ajarneU Iniuctaitg ffiihrarg atljata, New lork ■^^ Jl/WW, KFP 43l!A2l"l92'r"'' ''"'""' lllhird class city law / 3 1924 024 704 599 ,„ ajnrnpU Haw i>rl|nnl IGibraty Cornell University Library The original of tiiis bool< is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024704599 Bulletin No. 21. COMMONWEALTH OF PENNSYLVANIA LEGISLATIVE REFERENCE BUREAU "^ JAMES N. MOORE, Director. THE THIRD GLASS CITY LAW By JOHN H. FERTIG, Assistant Director and ELMER S. WELSH, ESO- and C. C. BREISCH, ESQ. CompUera vi p^4<^5fe«^^ (2) PREFACE This publication was prepared pursuant to the direction of the General Assembly contained in the General Appropriation Act of July 16, 1917. The development of the third class city law rests principally on three acts of assembly, the first of which was the Act of May 23^ 1874, P. L. 230. This was the act which first classified cities into three classes, enumerated certain powers general to all cities, and provided for the incorporation and government of third class cities. This act was followed by the Act of May 23, 1889, P. L. 277, which related only to third class cities and was in many respects simply a revision of the act of 1874. The third act is that of June 27, 1913, P. L. 568, usually known as the Clark Act. This act was also largely a revision of the two former acts but introduced several new features, among which were the commission form of government, non-partisan elections and the initiative and referendum. By amendments, -the non-partisan election features were abolished and the initiative and referendum greatly restricted. Neither of the Acts of May 23, 1874, or May 23, 1889, have been directly repealed. Many of the provisions of these acts have been re-enacted, or are repealed by later inconsistent legislation. On the other hand many provisions have been entirely omitted and are still undoubtedly good law. In order to ascertain these provisions, the Acts of 1874 and 1889 were carefully compared and a note made of all omitted provisions. This was followed by a comparison of the Acts of 1889 and 1913. In publishing the Act of 1913 references have been made to these omitted provisions of the two former acts in the notes under the appropriate sections. Such portions of the former acts as have been omitted and could not be published under the Act of 1913 have been published in the appendix with other legislation enacted from time to time. In order to give the reader the benefit of the comparisons made by the bureau, an article (XXII) has been inserted showing the manner in which each section and clause of the Acts of 1874 and 1889 has been affected by later legislation. This article will also show the section where omitted provisions of these acts have been published. (3) In arranging the material for publication it was thought advisable to keep the Act of June 27, 1913 (Clark Act), intact and publish the same as the first part of the bulletin, placing all the other legis- lation in an appendix. For convenience in indexing, and to facilitate use, new section numbers, in parenthesis, have been inserted at the beginning of each section and clause, running consecutively through the publication. A table of cases, table of acts and an analytical index have been added after the appendix. We will appreciate if the reader will call to our attention any errors or omissions. JAMES M. MOORE, Director Legislative Reference Bureau. Harrisburg, July 1, 1920. TABLE OF CONTENTS Act of June 27, 1913, P. L. 568. Article Article Article Article Article Article Article Article Article Article Article Article Article Article Article Article Article Arti.cle Article Article Article Article 1. II. III. IV. V. VI. VII. VIII. IX. X. XI. XII. XIII. XIV. XV. XVI. XVII. XVIII. XIX. XX. XXI. Incorporation _ _ , Creation and division of wards, Annexation of territory General provisions, Corporate powers, City council, _ ..... Executive department, City treasurer, City controller. City clerk, City solicitor, Board of health, Nominations and elections, Sewerage, / Exercise of right of eminent domain; assess- ment of damages and benefits, „ Taxation and municipal claims, City engineer, — — Topographical survey, — Indebtedness, _ Initiation of ordinances, Referendum of ordinances. Definition and repeal, Sections. . V 1-3 4- 7 8- 14 IS- 31 32- 89 90-103. 104-118 119-122 123-126 127-131 132-148 149-151 152-lS6a 157-165 166-179 180-187 188-194 195-198 199-200 201-207 208-212 APPENDIX XXII. Skeletons of the acts of May 23, 1874, P. L. 230, and May 23, 1889, P. L. 277, showing the ef- fect of subsequent legislation by way of amendment, repeal, etc., 213-214 (5) Article Article Article Article Article XXIII. Constitutional provisions prohibiting local and special legislation, . ^ _ XXIV. Classification of cities, _ XXV. Incorporation, XXVI. XXVII. Article XXVIII. Article XXIX. Article Article Article Article Article Article XXXI. Surrender of charter. Sections. 215 216-217 218-221 222-233 Annexation of territory. Adjustment of indebt- edness. Arrangement into wards — (a) Annexation of territory, (b) Adjustment of indebtedness, (c) Arrangement into wards, Boundaries, _ (a) Disputed boundaries, ._ (b) Center line of navigable stream to be boundary, Wards, (a) Division of wards, (b) Ward boundaries, XXX. Consolidation of cities, .„ 234-245 234-238 239-241 242-245 246-250 246-249 250 251-253 251-252 253 254-274 (a) Consolidation of cities contiguous or in close proximity to each other to- gether with intervening land 254-266 (b) Consolidation of boroughs contiguous or in close proximity to each other where letters patent have been granted to each of said boroughs to become third class cities, . Officers and employes, _ _. (a) Incompatible offices. Official bonds. (b) (c) (d) (e) (f) (g) (h) (i) Deputy controllers, probate clerks, Assessments for political purposes prohibited, _ _ Fire marshal, Fire department, Police department. Volunteer police during war times,.... Employes entering military service of the United States, 267-274 275-317 275-288 289-293 294-296 297-298 299-301 302-302a 303-310 311-314 315-317 XXXII. XXXIII. XXXIV. Bureau of mine inspection and surface support, 318-325 Department of city planning, .._ _. 326-331 Ordinances, ^ _.. 332-335 XXXV. Witnesses at hearings before council. 336 Sections. Article XXXVI. Civil service, 337-360 (a) List of eligibles, preference to soldiers, sailors and marines, 337-339 (b) Police department, 340-346 (c) Fire department, 347-353 (d) Engineering and electrical depart- ments, and building inspectors, 354-360 Article XXXVII. Taxation 361-386 (a) Collection of taxes by city treasurer, 361-374 (b) Exemption of real estate from taxa- tion, .. 375-376 (c) Adjustment of taxes between city, and borough detached from city 377 (d) Collection of delinquent taxes by treasurer's sales, _. 378-385 (e) Revenues received from Common- wealth from taxes on foreign fire in- surance companies, „ 386 Article XXXVIII. Collectiorf of municipal and tax claims 387-440 (a) By suit 387-391 (b) By lien, 392-435 (c) Method of establishing title to land ac- quired at sales on municipal or tax claims, 436-440 Article XXXIX. Indebtedness. Finance. Sinking Fund 441-483 (a) Constitutional limitation on city in- debtedness, sinking fund, 442-446 (b) Procedure to incur or increase indebt- edness. Enabling legislation, 447-456 (c) Certain bonds not to be debt of city, 457-461 (d) Bond issues to redeem existing issues, 462-464 (e) Cities not to become stockholders in corporations, etc., nor loan credit, 465 (f) Application of moneys borrowed for impracticable or impossible pur- poses to other purposes 466-472 (g) Bonds issued to be sold to highest re- sponsible bidder, 473 (h) City bonds subject to taxation for State purposes _ 474-477 (i) Constitutional prohibition on assump- tion of city debt by Commonwealth, 478 (j) Transfer of municipal securities, 479-483 Article XL. Eminent Domain. Condemnation proceedings. Assessment of damages and benefits 484-520 (a) Power of eminent domain. Appoint- ment of viewers. Real estate not subject to eminent domain. Costs of view _ 484-486 (b) Right to damages for injury to prop- erty, 487-491 Article XL. — Continued. Sections. (c) Security for damages where same not agreed upon. Taking possession of property, 492-496 (d) Proceedings before viewers. Assess- ment of damages and benefits. Fil- ing of report. Notice, 497-501 (e) Consideration of report of viewers. Exceptions. Appeals. Confirma- tion, S02-510 (f) Competency of evidence in condemna- tion proceedings, _ 511-512 (g) Liens against properties to be ascer- tained and payment thereof pro- vided for in certain cases, . 513-516 (h) Discontinuance of proceedings. Pay- ment of costs, _ 517 (i) Payment of assessments for benefits. Interest, 518 (j) Appropriation of right of way or ease- ment. Ascertainment of damages by jury instead of by viewers, 519-520 Article XLL Streets and highways, .._ 521-578 (a) Plans and location of streets and alleys, 521-522 (b) Grading, paving, curbing, macadamiz- ing and improving streets and alleys. Sidewalks. Shade trees along streets. Parking spaces. Opening, widening, straightening and extending streets and alleys, 523-534 (c) Refund of moneys erroneously paid for street improvements, _ 535 (d) Assessments against property to pay cost of street improvements. Issue of bonds payable by assessments in semi-annual instalments, 536-543 (e) Grading and improving streets adjoin- ing public buildings, by city and county, 544-545 (f) Improvement of highways on city boundary lines, 546-551 (g) Maintenance and improvement of streets connecting county roads, 552 (h) Improvement of highways outside city limits, 554 (i) Maintenance of turnpikes, 555 (j) Streets, lanes and alleys in village and town plots not used for twenty-one years not to be opened without con- sent of owner, _ 556 (k) Vacation of streets unopened for thirty years, 557-558 8 Article XLI. — Continued. Sections. (1) Vacation of alleys and passage-ways which constitute nuisances, SS9 (m) Recording of ordinances vacating streets, lanes and alleys, 560-S61 (n) Sign-boards, - 562-563 (o) Grade crossings, 564-575 (p) Street sprinkling and cleaning, 576-578 Article XLII. Lateral railroads, - 579 Article XLIII. Bridges and viaducts 580-641 (a) Construction of bridges, piers and abutments, 580 (b) Location and building of bridges and viaducts, 581-590 (c) Acquisition of toll bridges — 591-615 (d) Bridges constructed entirely or partly at county expense, 616-636 (e) Appropriation of private property for bridge purposes, 637-641 Article XLIV. Sewers and drains, (. 642-6S2 (a) Construction of sewers and drains, 642 (b) Acquisition of sewers by city, 643-645 (c) Joint ownership of sewage system, .... 646-647 (d) Connection with sewers of other mu- nicipalities, 648-649 (e) Efttry upon private land for sewer pur- poses, 650-652 Article XLV. Water supply, 653-674 (a) Acquisition of water works, 653-663 (b) Appropriation of springs and streams, 664-665 (c) Impounding water from forest reser- vations, 666 (d) Storage of water on portions of turn- pikes and public roads, 667-669 (e) Protection of drainage areas, 670 (f) Extension of water pipes and im- provements into adjoining districts, 671 (g) Mortgaging of water works owned by sub-divisions of cities, 672-674 Article XLVI. Wharves and docks, _ — 675-677 Article XLVIL Water courses, - — 678-696 (a) Acquisition and entry upon property for construction of dams, 678 (b) Vacation, alteration and relocation of creeks, runs or natural waterways, 679-688 (c) Confining, paving and enclosing creeks, runs and natural waterways, 689-695 (d) Protection of meadow lands, _ 696 Article XLVIII. Public buildings and works, ., _ 697-755 (a) Acquisition of real estate for public buildings and works, _. 697-702 9 Article XLVIII.— Continued, (b) (c) Article Article Article Article Article LIII. (d) (e) (f) (g) (h) Acquisition of property for audi- toriums, libraries, memorial build- ings and monuments : — Joint county and municipal buildings, (1) Under Act of April 18, 1913, P. L. 96, (2) Under Act of May 8, 1919, P. L. 130 Joint county and city hospitals, State art commission, Contracts for public work, Meeting rooms for war veterans, Displaying flags on public buildings,... XLIX. Waiting, rest rooms and drinking fountains L. Public libraries, - LI. Plumbing and drainage, LII. Cemeteries and burial grounds, Re- (a) Changing location of cemeteries. moval of bodies, _ — (d) Removal of bodies from unused and- neglected burial grounds, and from burial grounds, desired for public purposes, _ (c) Opening of streets, roads and alleys through cemeteries and burial grounds prohibited, — Sections. 703-707 708-717 708-712 713-717 718-733 734-741 742-752 753 754-755 756-759 760-788 789-861 862-868 862-865 Parks, playgrounds, gymnasiums, pools, shade trees, forests, etc.. swimmmg (a) Plans of parks and playgrounds, (b) Acquisition of land for park purposes, (c) Sale and lease of coal underlying parks and commons, _ (d) Playgrounds, playfields, gymnasiums, baths, swimming pools, recreation centers, (e) Shade tree commission, _ (f) Acquisition of land for municipal forests (g) Forest fires, _ _ Article Article Article Article Article LIV. Electric wires, ._ _ LV. Contracts with railroads and railways, LVI. Inspection of milk, „ _ LVII. Manufacture and sale of ice, LVIII. Licenses and license fees, (a) Settlement of disputes concerning license fees, (b) Sale of goods of bankrupt or assignee, etc., . 866-867 868 869-914 869 870-885 886-891 892-898 899-906 907-912 913-914 915-916 917-919 920 921 922-977 922-927 928-931 10 Article LVIII.- Article Article Article Article Article Article Article Article -Continued, (c) (d) (e) (f) (g) (h) (i) (i) (k) Article LIX. Article LX. Article LXI. Article LXII. LXIII. LXIV. LXV. LXVI. LXVII. LXVIII. . LXIX. LXX. Sections. Foreign dealei^ ..... 932-933 Hawkers and peddlers, 934-939 Persons exempt from license taxes, 937-939 Dances and dance halls,- 940-951 Lodging houses, 9S2-9S8 Infant boarding houses, _ 959-960 Operators of steam boilers and en- gines - 961-974 Motor vehicles for transportation pur- poses, - 975 Motor vehicles, tractors and trailers exempt from license fee, Junk dealers. 976-977 978-980 Inspection of elevators and scaffolding, 981-988 (a) Elevators, 981-984 (b) Scaffolding, 985-988 Inspectors of weights and measures, 989-997 Motor and other vehicles 998-1019 (a) Motor vehicles 998-1012 (b) Regulations for vehicles other than motor vehicles, 1013-1019 Investigation of fires, - — 1020-1024 Appropriations to, and acquisition and dedica- tion of land for use of National Guard, 1025-1030 Appropriations to historical societies, for me- morial services and for niusic, 1031-1033 Public health, 1034-1077 (a) Communicable diseases. Quarantine,..1034-1059 (b) Maintenance of quarantined persons,„1060-1064 (c) Abatement of nuisances, 1065-1069 (d) Rubbish and waste materials, 1070 (e) Keeping and slaughtering of animals, 1071 (f) Bone boiling establishments. Deposi- tories of dead animals, _ 1072 (g) Spitting in public places, — -. 1073-1077 Department of charity and support of the poor,..1078-1079 City trusts, — 1080-1092 Aldermen, 1093-1095 Penal Commitments to provisions. prisons, (a) Illegal use of public money, (b) Embezzlement, (c) Public contracts (d) Offenses against the currency,- (e) Public accounts, city 1096-1112 1096-1098 , 1099-1101 1102-1103 1104 -1105-1106 11 Article LXX. — Continued. Sections. (f) False statements, -._ 1107-1109 (g) Use of city "prisons 1110-1111 (h) Maintenance of city prisoners, 1112 Article LXXI. Actions by and against cities, _ 1113-1118 (a) Affidavits of defense, _ 1113 (b) Injunction bonds and appeals in equity, 1 1 14-1 1 1 5 (c) Actions on surety company bonds, 1116-1118 Article LXXII. Bureau of municipalities, - -. 1119-1121 12 AN ACT Providing for the incorporation, regulation and government of cities of the third class; regulating nomination and election of municipal offi- cers therein; and repealing, consolidating, and extending existing laws in' relation thereto. Approved June 27, 1913, P. L. S68. ARTICLE I INCORPORATION (Note: See also appendix Article XXV, sections (218)-(221).) (1) Section 1. Cities of the third class shall be chartered when- ever a majority of the electors of any town, township, or borough, or an}'' two or more contiguous towns, townships, or boroughs, situ- ate within the limits of the same county or situate in two or more contiguous counties, and having together a population of at least ten thousand according to the last preceding United States census, shall each separately vote at any general or municipal election in favor of the same; and the council or corporate authorities of any such town, township, or borough, or of any such contiguous towns, townships, or boroughs, as the case may be, may on their own mo- tion, or upon petition of one hundred or more qualified electors thereof, shall, by resolution duly passed and recorded among the minutes, submit the question of whether any such town, township, or borough, or whether any such contiguous towns, townships, or boroughs, shall become a cit}- of the third class, to the qualified elec- tors thereof; and they shall give notice by the publication of sai'd resolution, during at least four weeks immediately prior to the next general or municipal election, in all of the newspapers published in said towns, townships, or boroughs — and if no newspapers be pub- lished in said towns, townships, or boroughs, then publication shall be made in not more than two newspapers published in the county or counties wherein the towns, townships, or boroughs are located, — that such an election will be held ; they shall certify said resolu- tion to the county commissioners of the proper county or counties, who shall thereupon cause the said question to be printed at the foot of the official ballot to be used at the said general or municipal election in the towns, townships, borough or boroughs, aforesaid, in the following form : "Proposed city charter," and below shall be printed on two lines, with a square at the right of each, the words 13 "For city charter," and "Against city charter," and the electors shall designate with a cross mark (X) in one of said squares their desire to vote for or against such city charter. It shall be the duty of the election officers within said town, township, or towns, townships, borough or boroughs, to count the votes so cast for and gainst such city charter, and make return thereof on blanks to be furnished by the corporate authorities of said town or towns, township or town- ships, borough or boroughs, to the clerk of the court of quarter sessions of the proper county or counties, who shall compute the same and certify the result thereof to the corporate authorities afore- said, and a duplicate return to the Secretary of the Commonwealth, each duly certified in the manner required by law ; and in receiving, counting, and making return of the votes cast, the inspectors, judges, and clerks of the said election shall be governed by the laws of the Commonwealth regulating general elections, — and all the electors, inspectors, judges, and clerks voting at and in attendance upon the election to be held under the provisions of this act, shall be subject to the penalties imposed by the election laws of this Commonwealth. That any city of the third class heretofore or hereafter formed out of a borough formed by the consolidation of boroughs partly lying or situate in different counties, shall, for all municipal pur- poses of government and control, be deemed and considered- as under and within the jurisdiction of the courts of that county in which is situate the borough first incorporated of those forming such consolidated borough. (Amendment of May 13, 1915, P. L. 306.) (2). Section 2. Whenever by the returns of the election in any towns, townships, or boroughs, aforesaid, it shall appear that in each, separately, there is a majority against the city charter, no further proceeding shall be had, and it shall not be lawful to hold another election upon that question in such towns, townships or boroughs for three years thereafter. If it shall' appear by the said retuurns that there is a majority in each in favor of the city charter, the Governor shall issue letters patent, under the great seal of the Commonwealth, reciting the facts, defining the boundaries, of said city, and constituting the same a body corporate and politic by the name of the city of i , and the cor- porate authorities of any such town, township, or borough shall, within sixty days after such election, furnish to the Secretary of the Commonwealth the necessary information in regard to the boundaries of said city. (3). Section 3. All of the property and estates whatsoever, real and personal, of the towns, townships, or boroughs which shall have thus become a city of the third class, are hereby severally and respectively vested in the corporation or body politic of said city, 14 by the name, style, aiid title given thereto as aforesaid, and for the use and benefit of the citizens thereof forever; and the charters of the said towns, townships or boroughs shall continue in full force and operation, and all officers under the same shall hold their re- spective offices until the first Monday of January following the general municipal election next succeeding the issuing of the letters patent to the said city, at which time the officers of said city chosen at the preceding municipal election shall enter upon their respective terms of service, and the city government shall be duly organized under this act. All suits, prosecutions, debts, and claims, whatso- ever, shall thereupon become transferred to the said city, which in all suits pending shall be substituted as a party, and be under the management and control thereof, as fully and completely as if no alteration had been made in said charter; and all claims and demands of whatsoever nature, whether payable presently. or in the future, existing against the said towns, townships, or boroughs, when the said charter shall go into operation, shall by force thereof be recoverable from or against the said city: Provided, That where two or more towns, townships, or boroughs shall, under the pro- visions of this act, be consolidated into a city, the bonds and float- ing indebtedness, and the interest thereon, of each of said towns, townships, or boroughs, contracted prior to such consolidation, shall be paid by the said city thus organized and chartered, so that the taxes shall be uniform throughout the territorial limits of the whole city. (Amendment of May 27, 1919, P. L. 310, Sec. 2.) When the city of Wilkes-Barre, incorporated under a special act became a city of the third class under the general acts of May 23, 1874, and May 23, 1889, the person holding the office of tax receiver, an office created under the special act, was entitled to continue in office until the end of his term, although such office was not elective: Com. ex. rel. McMaims vs. Ricketts, 196 Pa. 598. The Legislature having declared that, in changing a borough to a city, the borough charter shall remain in full force and operation "until the first Monday of January following the general municipal election next succeeding the issuing of the letters to the said city, at which time the city government shall be duly organ- ized under this act," has, by necessary implication, declared that the city charter shall meanwhile remain in abeyance: Com. ex. rel. vs. McGroarty, 148 Pa. 606; Com. ex. rel v. Langley, 233 Pa. 222, so. 59 P. L. J. 596 (Super. Ct. dismissing appeal); Com. ex. rel. Gans vs. Fayette County Commissioners, 59 P. L. J. 593. 15 ARTICLE II CREATION AND DIVISION OF WARDS (Note: For other provisions relating to wards see Appendix, Article XXIX, Sections (2Sl)-(2S3).) (4). Section 1. Wards in cities of the third class may be divided, or new wards created therein, by the court of quarter sessions of the proper county, on application thereto for that purpose, by the petition of at least one hundred qualified electors thereof, or of the council of such city ; and upon such petition praying for the division of a ward, or for the erection of a new ward out of parts of two or more wards, the said court shall appoint five impartial men, residents of the city but not of the wards to be affected thereby, as commissioners to inquire into the propriety of granting the prayer thereof; excepting, however, that in cities having not more than three wards said commissioners shall be selected from the city at large, and may be residents of the ward or wards to be affected thereby ; and it shall be the duty of the commissioners so appointed, or any four of them, to examine the premises and to ,make a draft of the ward or wards to be divided, showing the division thereof, or of the new ward or wards proposed to be created, as the case may be ; and they shall make report to the said court of quarter sessions at its next term, together with their opinion of the same; and at the term after that at which the report shall be made the court shall make such order thereupon as to it shall appear just and reasonable. (Amendment of July 17, 1917, P. L. 1019). On an appeal from an order disapproving the recommendation of commissioners in proceedings to divide the ward of a city, and dis- missing the petition, the appellate court cannot consider the evidence inasmuch as the appeal is in effect only a certiorari, but it may look into the opinion of the lower court for the purpose of ascertaining the grounds of the decision. Forty-sixth Ward, 58 Super. Ct. 428. But see Act of April 18, 1919 P. L. 72. The provision that the report of the commission shall be made to the next term of court is directory and not imperative. In re-Division of the Fifteenth Ward, 11 Phila. 406. (5). Section 2. If the commissioners, or a majority of them, report favorably to such a division or creation, the court shall order a vote of the qualified electors of the ward to be affected thereby to be taken on the question of division or creation thereof, and shall 16 appoint an election, to be held on the day of municipal or general election, when the election officers of the ward or wards proposed to be divided or affected thereby shall hold such election at the places and in the manner provided by law for the regulation of mu- nicipal elections. It shall be the duty of the mayor of the said city . to give at least fifteen days' public notice, by advertisement in at least three newspapers, if so many be printed in said city, or by handbills posted in the most public places in said ward or wards, that such an election will be held, and of the time and place of hold- ing the same. The judge and inspectors of election of said ward or wards shall receive from the electors thereof written or printed tickets, having on the outside the word "New ward," and on the inside the words "For new ward," or "Against new ward," and deposit the same in a box to be provided for that purpose. The officers of such election shall count the said tickets in the manner prescribed by law and shall forthwith make out a return showing the number of votes for and against such new ward, and shall de- liver the same to the clerk of the court of quarter sessions of the proper county within three days; and the said clerk shall record said return, and forthwith lay it before the court. If it appear that a majority of the votes so taken are for a new ward, said court shall thereupon order and decree the creation of such new ward or wards, agreeably to the lines marked out and returned by the commis- sioners, and shall number the new wards, and cause a certified copy of the whole proceeding to be placed on record among the minutes of council. If a majority of votes shall be against the new ward, no further action shall be had upon such proceeding, nor shall any new application for such new ward be heard for two years from the date of such election : Provided, That no ward shall contain less than three hundred taxable inhabitants, according to the last pre- ceding enumeration, and no city of the third class shall contain more than twenty-one wards. See notes to the section immediately preceding. (6). Section 3. That on the petition of at least twenty-five elec- tors, resident within the district to be stricken ofif or attached, or of the council of any city of the third class, to the court of quarter sessions of the proper county, praying for the detaching from one ward a part thereof and attaching the same to another ward, the said court shall appoint five impartial men, resident of the city but not of the ward to be affected thereb)^ as commissioners to in- quire into the propriety of granting the prayer thereof; and it shall be the duty of the commissioners thereof, or any four of them, to examine the premises, and to make a draft of the wards affected, and showing the lines as the division will affect them; and shall make a report to said court at the next term, together with their 17 2 opinion of the necessity of the same; and at next term after that at which the report shall be made the court shall take such action thereon as to it shall appear just and reasonable. (7.) Section 4. If the commissioners, or a majority of them re- port in favor of the petition, the court shall order a vote of the. qualified electors of the ward from which the territory is to be stricken off to be taken on the question, and shall appoint an elec- tion, to be held on the day of the municipal or general election, when the election officers of the ward shall hold such election at the place and in the manner provided by law for the regulation of municipal ejections. It shall be the duty of the mayor of such city to give at least fifteen days' public notice, by advertisement in at least three newspapers, if so many be printed in said city, or by handbills in the most public places in said ward, that such an election will be held, and of the time and place of holding the same. The judges and the inspectors of the election in said ward shall receive from the electors thereof written or printed tickets, having on the outside the word "Division," and on the inside the Vv'ords "For division" or "Against division," and deposit the same in a box to be provided for that purpose. The officers of such election shall count the said tickets in the manner prescribed by law, and shall forthwith laake out a return showing the number of votes for and against such separation, and shall deliver the same to the clerk of the court of quarter sessions of the proper county within three days; and the said clerk shall record said return, and forthwith lay it before the court. If it shall appear that a majority of the votes so taken are for the separation, the said court shall thereupon order and decree the separation from the one ward and the attachment to the other ward, agreeably to the lines marked out and returned by the com- missioners, and shall cause a certified copy of the whole proceeedings to be placed of record among the minutes of councils. If a majority oi votes shall be against such separation, no further action shall be had upon such proceeedings nor shall any new application for such separation and addition be heard for two years from the date of such election. 18 ARTICLE III. ANNEXATION OF TERRITORY. (For other provisions relating to the annexation of territory, see Appendix Article XXVII. Sections (234)-(24S). (8.) Section 1. Any borough or township, or part of a township, adjoining any city of the third class, and being a part of the county in which the same is situated, — or being located in a different county, or partly in a different county, from that in which the city or the larger part of the city is located, — may be annexed to such adjoin- ing city in the following manner ; namely, — In case of a borough, the town council may pass an ordinance for such annexation, whenever three-fifths of the taxable inhabitants of such borough shall present a petition asking therefor; in the case of a township, or part of a township, whenever three-fifths of the taxable inhabitants of such township or part of a township shall present a petition to council of said city, asking for such annexation; which said petition, in case a part only of a township desires to be admitted, shall be accom- panied by a plot of the same. (Amendment of May 3, 1917, P. L. 143, Sec. 1.) See also section immediately succeeding. (9.) Section 1. Any borough or township, or part of a town- ship, adjoining any city of the third class, and being a part of the county in which the same is situated, may be annexed to such ad- joining city in the following manner; namely, — In case of a borough, the town council shall pass an ordinance for such annexation, when- ever three-fifths of the -.taxable inhabitants of such borough shall present a petition asking therefor ; in the case of a township, or part of a township, whenever three-fifths of the taxable inhabitants of such township or part of a township shall present a petition to coun- cil of said city, asking for such annexation; which said petition, in case a part only of a township desires to be admitted, shall be ac- companied by a plot of the same : Provided, That nothing in this act contained shall be deemed to require any city of the third class to aimex any borough, township, or part of a township. (Amendment of July 6, 1917, P. L. 751.) This amendment overlooks the amendment of May 3, 1917, P. L. 143: See the section immediately preceding. There is no authority under the language of this section for the an- nexation of a part of a borough adjacent to a city. McAskie's Appeal, 154 Pa. 24. 19 In proceedings for the annexation of a borough by a city, jurisdiction is vested upon petition filed by the president of councils. The neglect or refusal of the mayor to act cannot have the effect of nullifying the law. No adverse presumption arises from the fact that the city ordi- nance was not certified by the city clerk. It is sufficient if the necessary jurisdictional facts are averred in the petition. Morrellville Borough's Annexation, 7 Sup. Ct. 532. Where a petition for annexation has been presented to the councils of a city of the third class, a petitioner does not have the right to withdraw his name from the petition after councils have started to act upon the matter. In re Annexation of South Allentown, 2 Lehigh L. J. 387. An ordinance admitting adjoining territory into a city is not such an extraordinary exercise of municipal power as requires that notice should be taken thereof in ~the title of an act for incorporating and governing cities. Lack. Twp. Harris's Appeal, 160 Pa. 494. An indescriptive draft accompanying a petition for the annexation of territory to a city may be replaced by an accurate one, by amend- ment regularly allowed by the court of quarter sessions, without re- ferring the proceedings back to councils for correction. "Taxable in- habitant" defined. Chester's Annexation, 174 Pa. 177. The plat which must accompany the petition for annexation must mark accurately the lines which inclose the district, and need not indi- cate the roads and buildings. There is no law which prohibits the an- nexation of farm land to a city. Susquehanna Township Appeal, 17 Pa. C. C. 398. (10.) Section 2. Upon presentation to the council of such city of a certified copy of the ordinance, in case of a borough; or of the petition, in the case of a township ; or of the petition and plot, in the case of a part of a township, said council may by ordinance an- nex such borough, township, or part of a township, to the said city. See notes to Sec. (8). (11.) Section 3. The action of said city council, after ten days, shall be final and conclusive, notwithstanding any initiative or refer- endum provisions of any act of Assembly relating to cities of the third class, unless an appeal therefrom be taken within the said ten days to the court of quarter sessions of the proper county. Upon such appeal the clerks of said city council and of said borough coun- cil shall certify to the said court all the papers and proceedings in the case, ^'hereupon the court shall examine and inquire, and if the proceedings appear to have been in conformit)- with the law, shall approve J:he same, and thereupon said annexation shall take effect. (Amendment of May 27, 1919, P. L. 310, Sec. 3.) An appeal from the borough ordinance before action by the city is premature. Appeal from Ordinance of South Chester Borough, 6 Del. Co. 539. The city council cannot by ordinance annex territory, the inhabi- tants of which have begun proceedings in the court of quarter ses- sions for the purpose of incorporating the territory into a borough. 20 In such a case the proceedings which have been first legally instituted have priority. Appeal of Dupont from Ordinance of City of Pitts- burgh, 56 P. L. J. 325. Where the proceedings for the annexation of territory to a munici- pality have been in regular form, and viewers have recommended such annexation, tlie court is powerless to set aside or stay the proceed- ings. Meadville Annexation, 37 Pa. C. C. 582. As to practice on appeals, see Logan Twp. Case, 24 Pa. C. C. 541. Where a city of the third class has annexed territory, it has no power, either directly or indirectly, to dissever such territory. Com. ex rel. Heinly vs. Marks, 248 Pa. 518, affirming 7 Berks 116. (12). Section 4. Upon the application by petition signed by a majority or more of the taxable citizens, owners of any outlots or sections of land containing not more than one hundred acres lying adjacent to any city of the third class, and being part of the county in which the same is situated, to the court of quarter sessions of the respective county, stating that they desire the same to be annexed to said city, the necessity therefor, and describing the- lots or land to be annexed, with a map or draft of the same, which petition shall be sworn to by one or more of the petitioners, and accompanied b> a resolution of the council of said city approving of the annexa- tion, the said court shall thereupon appoint three viewers to inquire into and investigate the allegations and facts in the said petition; and the said viewers, or a majority of them, shall make report to said court at its next sessions after their appointment. If they report that they find the statements and facts of said petition to be true, and recommend the annexation as prayed for, the said co.urt shall thereupon make an order or decree to carry the same into ef- fect; and the said out-lots or sections of land shall thereafter be a part of said city as fully as if the same had been originally a part thereof. The costs of the proceedings in all cases shall be paid by the city. If the report of said viewers shall be adverse to the prayer of the petitioners, the petition shall be dismissed. (13). Section 5. Whenever any borough, township, or part thereof, out-lots, or section of land, shall be annexed to an adjoining or adjacent city, as hereinbefore provided, it shall be the duty of the court of the county in which the city, or the larger part of the city, is located, upon petition and proof, to make such order or decree as Vi'ill give to the people of the annexed territory representation in the government of the said city, by including said territory within the limits of an adjacent ward or wards, or by creating a new ward or wards thereof; and said court shall, in case of the creation of new- wards or ward, appoint the election officers and place for holding the first election of ward officers; and for that purpose may order a special election, if said court shall deem the same necessary, to be conducted in the manner provided by law for conducting munici- 21 pal elections. The officers elected at such special election shall hold their respective offices until their successors, who are hereby re- quired to be elected at the municipal election held on the Tuesday following: immediately after the first Monday of November in the odd-numbered year next succeeding the same, shall be duly quali- fied. (Amendment of May 3, 1917, P. L. 143, Sec. 3.) This section is a substantial re-enactment of Sec. 6, Act of March 18, 1875, P. L. 15, except the following portion of the Act of 1875, which is omitted from the Act of 1913, "the petition to include the said terri- tory within the limits of an adjacent ward or wards, shall be signed by a majority of the electors residing therein, and shall be accompanied by the affidavit of two or more of the petitioners, that they have can- vassed the district named in the petition, and that the same is signed by a majority of the electors residing therein: Provided, That when the number of txable inhabitants residing in said annexed territory ex- ceed three hundred at the time of annexation, it shall be erected into a separate ward; and be entitled to representation in all the branches of the city government, as other wards of said city." The election for ward officers refers to those officers who perform some municipal function and does not include an alderman. Com. vs. Machamer, 18 Pa. 18 Pa. C, C. 92. (14). Section 6. When it shall appear to said court of quarter sessions that the township from v\rhich any part or portion or any out-lots or section of land has been taken, has moneys or funds on hand, or is indebted, it shall be the duty of said court to determine and decree how much of said funds or moneys shall be paid as a ratable and equitable part to the said city, or to the said townships, as the case may be; and all the territory virlthin the limits of the city as thus enlarged by the annexation of a borough, township, or part of a township, shall be liable for the bonded and floating in- debtedness, and the interest thereon, of both the annexed territorv and the city to which it or they are annexed, so that the taxes shall be uniform throughout the territorial limits of the whole city. (Amendment of May 27, 1919, P. L. 310, Sec. 4.) The following part of Sec. 5, Art. Ill, Act of May 23, 1889, P. L. 277, seems to be still in force: "And likewise determine and decree what ratable and equitable part or proportion of said indebtedness shall be paid by the said city to the said township and to fix the time or times on or within which any of the respective moneys, parts or portions shall be paid." See Sec. (214). 22 ARTICLE IV. GENERAL PROVISIONS. (15). Section 1. The legislative power of .every city of the third class shall be vested in a council composed of the mayor and four councilmen. Said council shall have and possess all powers heretofore conferred upon or vested in the select or common coun- cils, or both thereof, as heretofore constituted, unless otherwise pro- vided in this act. No officer of the United States or of the State cf Pennsylvania (except notaries public or officers of the militia), nor any county officer, or any officer or employe of any school dis- trict embraced in the territory of said city, or any other officer or auy employe of said city, or any department thereof, shall serve as a member of council during his continuance or employment, except as hereinafter provided. (Amendment of April 21, 1915, P. L. 139.) The mayor, although a member of council, is not a councilman, and council is not the exclusive judge of his qualifications. Com. vs. Fisher, No 2, 26 D. R. 1001; s. c. 45 Pa. C. C. 56. See Sec. 93. The office of local registrar of vital statistics created by the Act of May 1, 1905, P. L. 330, is incompatible with the office of councilman, and a member of councils forfeits his councilmanic place if he con- tinues to hold another and incompatible office. In such a case the court of common pleas has jurisdiction, in a quo warranto proceeding, to declare an ouster. Com. ex. rel. vs. Bennett, 233 Pa. 286; affirming 24 York 205. A warden or keeper of the county jail is not a county officer, conse- quently he can serve as councilman. The council has no power to de- clare vacant a member's seat except as provided for in Sec. 4, Art. 6. Com. ex rel. George C. Griswold vs. James Moir et al., 9 Lane. L. R. 278; s. c. 2 Lack. J. 303. The office of mayor is not incompatible with that of notary public. Notary Public, 27 D. R. 820. (16). Section 2. No ordinance shall be passed by council ex- cept by bill, and no bill shall be so altered or amended on its passage through council as to change its original purpose. No bills, except general appropriation bills, shall be passed containing more than one subject, which shall be expressed in its title. Sec. 2, Art. IV of the Act of May 23, 1889, P. L. 277, as amended by the Act of May 16, 1901, P. L. 224. Sec. 3, provides as follows: "No bill shall be considered unless referred to a joint or separate commit- tee, returned therefrom and printed for the use of the members; and no bill, except general appropriation bills, shall be passed containing more than one subject which shall be clearly expressed in its title.'' 23 As cities now have but one council, reference to joint committees is impossible, and since the council is composed of but five members there seems no necessity for reference of bills to any committee. Sec. S, Art. 6 of this Act of 1913 provides that, "Every motion, resolution or ordinance shall be reduced to writing before the vote is taken thereon." This provision would seem to eliminate the necessity of printing bills and amendments. An ordinance "providing for the security of persons and property — the preservation of the peace and good order" and providing that the police shall make arrests of persons who shall engage "in any game, play or amusement or in any other desecration of the Sabbath" will not sustain a conviction for selling ice cream and soda water where no breach of the peace or nuisance is established, since the term "any other desecration of the Sabbath" could be construed only as referring to a breach of the peace or a nuisance. Any other construction would bring it into conflict with the provisions of this section. Ruth vs. City of Johnstown, 21 D. R. 1118. An ordinance providing for the improvement of several streets does not offend against the constitution or this section as "containing more than one subject." Fourth Street, Harrisburg, 33 Pa. C. C. 204; s. c. 10 Dauphin Co. 50; 16 D. R. 989. An ordinance by the title of "An ordinance annexing the borough of Morrellville to the City of Johnstown, and designating the several wards thereof" is not void as containing two subjects. As this clause of the Act of 1889 was identical with the clause in the constitution re- lating to acts of the legislature, the decisions construing the latter are in point. In re Annexation of Morrellville Borough to the City of Johnstown, 7 Pa. Super. Ct. 532; affirming 20 Pa. C. C. 257. An ordinance "Establishing sewer district No. 4, defining the lines thereof, authorizing the construction of a main sewer therein, and to provide the means of paying for the cost thereof" contains but one subject. Harrisburg City vs. Eby at al, 16 Pa. C. C. 124; s. c. 4 Dauphin Co. 278. It is unimportant, when city councils are exercising their law-making power, whether the result of their labors is called an ordinance or a resolution. The act is an ordinance in either event, and must comply with the rules of law as to passing ordinances. Seventh Street, Lebanon City, 5 D. R. 591, but see Eaches vs. City of Reading, et al., 1 Berks Co. 350, s. c. 2 Lehigh Co. L. J. 272, and Fuller vs. City of Scranton, 18 W. N. C. 18, affirming 1 Pa. C. C. 405. It is not necessary that the title of an ordinance should furnish a complete index of its contents. It is sufficient if it fairly gives notice of the subject matter of the ordinance so as to reasonably lead to an inquiry into its body. The title must carry general notice of the pur- poses and the parties to be affected by it. The objection to the title of an ordinance is statutory rather than constitutional, although the statutes on the subject use the identical words of the constitution. City of Scranton vs. Boncherillo, 19 York 53; Esling's Appeal. In re confirmation of Plan No. 272, 89 Pa. 205; Com. ex rel. vs. Larkin 27 Pa. Super. Ct. 397; Hadtner et al. vs. City of Williamsport, 15 W. N. C. 138; Com. vs. R. N. La Bar, 5 Lack. L. N. 229; In re Petition for Viewers to assess damages to property of Mary Padden, 1 Lack. J. 382. An ordinance providing for a tax levy and making an appropriation is illegal as containing two subjects. Com. ex rel. vs. Morrow, 40 P. L. J. (O. S.) 287, but see Com. ex rel. Bell vs. Powell, 249 Pa. 144. 24 When all the provisions of an ordinance are germane to one general subject which is clearly expressed in the title, in a manner which does not tend to mislead, that is all that is required. Hence the title of an ordinance "authorizing the grading, paving and curbing" of a street named is sufficiently comprehensive to give notice of an inten- tion to impose assessments for benefits. Hamilton Avenue, 48 Pa. Super. Ct. 156; affirming 59 P. L. J. 469; 3 M. L. R. 137. An ordinance contains more than one subject and is, therefore, illegal, which prohibits "gaming and other disorderly practices," Sunday dese- crations and certain acts of malicious mischief ^nd also provides "it shall not be lawful for any person to expose for sale any wares or merchandise" on Sunday. Williamsport vs. Camarinos, 22 D. R. 492. "An ordinance for the paving of the roadways, from curb to curb, of street — and providing that all needed sewers, pipes, mains and connections shall be first laid and made" does not contain more than one subject. City of Chester vs. New Chester Water Com- pany, 25 D. R. 754. A city ordinance is not a law within the meaning of Sec. 3, Art. 3, of the Constitution of Pennsylvania relating to titles. City of Corry vs. The Corry Chair Company, 18 Pa. Super. Ct. 271. (17). Section 3. Every bill shall be read at length, and no bill shall be passed finally on the same day on which it was introduced, and at least three days shall intervene before its final passage. (Amendment of May 27, 1919, P. L. 310, Sec. S.) Sec. 3, Art. IV of the Act of May 23, 1889, P. L. 277, provides: "Every bill shall be read at length in each branch; all amendments made thereto shall be printed for the use of the members before the final vote is taken on the bill, and no bill shall be passed finally in either branch upon the same day on which it was, introduced or reported. On its final passage the vote shall be taken by yeas and nays, and the names of the persons voting for and against the same be entered on the journal; and no bill shall be passed finally unless a majority of the members elected to each branch be recorded thereon as voting in its favor." The procedure provided in this section of the Act of 1889 in pass- ing a bill or an amendment is necessarily changed by the above section of the Act of 1913 because of the abolition of the two-branch system of councils. The provisions concerning the printing of amendments and that defining the procedure in the final passage of a bill are sup- plied by Sec. S, Art. 6 of this Act of 1913, which provides as follows: "Upon every vote the yeas and nays shall be called and recorded; and every motion, resolution or ordinance shall be reduced to writing be- fore the vote is taken thereon." See Sec. (95). The presumption in favor of the constitutional regularity of pro- ceedings of the legislative department of the government does not apply to the regularity and legality of the proceedings of municipal corporations. City of Reading vs. Miller, 6 Berks Co. 257; s. c. 6 M. L. R. 61; Altoona City vs. James B. Bowman, 171 Pa. 307. A so-called resolution of city councils, taking property of a citizen in widening a street, is in legal effect an ordinance, and if passed on the same day it is introduced, is void. Seventh Street, Lebanon City, 5 D. R. 591. 25 (18). Section 4. The council shall prescribe by ordinance the number, duties, and compensation of the officers and employes of the city; and no payment of such compensation shall be made from the city treasury, or be in any way authorized, to any person except an officer or employe elected or appointed in pursuance of law ; and no ordinance shall be passed giving any extra compensation to any officer, servant, employe, or contractor, nor providing for the pay- ment of any claim against the city, without previous authority of law; and any officer drawing or countersigning any warrant, or passing any voucher for the same, or paying the same, shall be guilty of misdemeanor, and on conviction thereof be punished by a fine {lot exceeding five thousand dollars, and imprisonment not exceed- ing one year. Sec. 5 of the Act of May 23, 1874, P. L. 230, provides that, "No ordinance shall be passed, except by a two-third vote of both councils, and approved by the mayor, giving any extra compensation to any public officer, servant, employe, agent or contractor after services shall have been rendered or contract made." The above quoted exception seems to have been repealed and supplied as to third class cities by the Acts of May 23, 1889, P. L. 277, and June 27, 1913, P. L. 568, which make it unlawful for council to pass an ordinance providing for extra compensation. Under the above section "No ordinance shall be passfd • • * • * providing for the payment of any claim against the city, without previous authority of law." In Brobst vs. Albrecht et al., 19 D. R. 989, "previous authority of law" was declared to mean a "binding contract preceding the work claimed for" and such contract must be based on a proper appropriation. Under Sec. 5 of the Act of May 23, 1874, P. L. 230, it was held that council could provide for the payment of the just debts of the city even though they have so arisen as to be uncollectible by legal process, because of an invalid contract or the absence of any contract. Gallagher vs. Porter, Director of Public Safety, 24 D. R. 649; John T. Bailey et al. vs. Philadelphia et al., 167 Pa. 559; Vare vs. Stearns, 21 D. R. 79; but under the Act of 1913 there is no present authority for such action by council in third class cities. The pro- cedure necessary to permit a third class city to appropriate money to pay a moral obligation, founded upon an illegal or void contract, would seem to be to have the Legislature pass an act validating such illegal contracts, such as was done when the Act of April 20, 1917, P. L. 91, was passed validating contracts entered into under the Act of May 11, 1909, P. L. 506, which latter act was declared unconstitutional in "County Commissioners' Petition for the Construction of a Public Highway Tunnel," 255 Pa. 88. The Act of 1917 was declared constitu- tional in Kennedy vs. Meyer, 259 Pa. 306, where it was held "There can be no doubt of the legislature's right subsequently to ratify what it might have previously authorized." Councils cannot be compelled by mandamus to make an appropria- . tion to pay the salary of a plumbing inspector until the amount of such salary shall have been fixed by ordinance, even though the duty is imposed on councils by Act of Assembly of providing for the pay- ment of the salary of such an officer. Com. vs. Armstrong, 40 Pa. C C 588; 8. c. 61 P. L. J. 103, 22 D. R. 457. 26 A prior appropriation is essential to every contract entered into bv a city in which the appropriation of money is involved. This statute applies against the allowance of extra compensation to contractors and the payment of any claim not based upon previous authority of law, which means a binding contract preceding the work claimed for. It forbids such allowance and payment not only in the first instance but equally by way of compromise. Brobst vs. Albrccht et al., 19 D. R. 989; s. c. 2 Berks Co. 150-103, 3 Lehigh Co. L. J. 380; see Jonathon Clark & Sons Company vs. Pittsburgh, 217 Pa. 46. A board of health of a city has no power to fix the salary of the health officers in a sum in excess of the appropriation made by councils therefor, and by so doing make the city liable to respond to such officer for such excess. Watt vs. City of Altoona, 23 Pa. C. C. 410. (19). Section 5. All stationery, paper, fuel supplies, materials, printing, and advertising, and all work required by the city or any department thereof (except the ordinary repairs of highways, sewers and other public improvements), where the amount thereof exceeds two hundred and fifty dollars, shall be furnished and performed un- der contract to be given the lowest responsible bidder. The council sliall by ordinance provide for and regulate the award of ail con- tiacts, the manner of hiring and discharge of employes and laborers, and the fixing of their salaries or compensation when not otherwise fixed by ordinance, the purchase of supplies and materials, and the sale of personal property. The council may also by ordinance pro- vide a contingent fund or funds for necessary repairs and incidental expenses, not otherwise provided for in the general appropriations, and such funds may be expended without advertising for bids. Cities of the third class may by ordinance provide for the establish- ment of a purchasing department, which shall have supervision over the purchase and distribution of all supplies purchased to the amount allowed by the provisions of this act. The said department shall be attached to the department of^ accounts and finance, or such other department as council may determine. The operation of the said department shall be in accordance with rules and regulations to be adopted by the city council, the rules to include the manner in which quotations shall be secured on the supplies purchased. It shall be the duty of the said department to assist the council at all times in eliminating waste and extravagance in the purchase and distribution of the city's supplies. (Amendment of May 27, 1919, P. L. 310, Sec. 6.) In awarding contracts, the officers of the city must comply strictly with the requirements of the statutes and ordinances. Smith vs. City of Philadelphia, 227 Pa. 423; Bullitt et al. vs. City of Philadelphia et al., No. 2, 19 D. R. 1091; Smith vs. City of Philadelphia et al., 17 D. R. 231; Elmer E. Slocum vs. Robert W. Allen et al., 13 Lack. J. 264. Before a contract is made there must be an appropriation sufficient to cover the cost of the work. Bullitt et al. vs. City of Philadelphia 27 et al., No. 2, 19 D. R. 1091; Brobst vs. Albrecht et al., 19 D. R. 989; Smith vs. City of Philadelphia, 227 Pa. 423, affirming 18 D. R. 769; Smith vs. City of Philadelphia et al., 17 D. R. 231. The law is clear that no officer of the city has the power to bind the city by a contract not provided for by ordinance. Blankenburg vs. City of Philadelphia et al., 20 D. R. 531. The word "responsible" has a broader meaning than is involved in the pecuniary ability to make a good contract by security for its faithful performance. It is not compulsory to award the contract to the lowest bidder. The judgment, skill, promptness and efficiency of the contractor may be considered. Discretion is vested in the award- ing of contracts and if exercised in good faith, although erroneously, will be sustained. City of Erie, to use, vs. Bier, 10 Super Ct. 381; Com. ex rel. Snyder et al. vs. Mitchell et al., 82 Pa. 343; Findley vs. City of Pittsburgh, 82 Pa. 351; Amer. Pavement Co. vs. Wagner, 139 Pa. 623, affirming 7 Pa. C. C. 385; Brick & Paving Co. vs. Philadelphia, 164 Pa. 477, reversing 15 Pa. C. C. 85 and 3 D. R. 544; Reuting et al. vs. City of Titusville, 175 Pa. 512; McCallin's Appeal, 1 Monaghan 596, reversing 6 Pa. C. C. 107; City of Philadelphia vs. Durham et al., 16 D. R. 81; 'Warren-Ehret Co. vs. County Commissioners, 15 Luz. Leg. Reg. Rep. 267. The power to award contracts is discretionary and the court will not interfere, except where there is such palpable abuse of discretion as amounts to legal fraud, as where no attempt was made to ascertain the lowest responsible bidder upon free and open competition. Jones & Kumer vs. Jones et al., 22 D. R. 238, s. c. 1 Northumb. L. J. 28. While the courts will not in the absence of fraud or bad faith, award a mandamus to compel city officers to award contracts to the lowest bidders, they can mandamus the city officers to proceed to do their duty of deciding and acting according to their best jurgment, but the courts will not direct them in what manner to decide. Douglas et al. vs. Com. ex rel, 108 Pa. 559. The contingent fund cannot be expended for repairs or improvements to a city hall without advertising and contracting with the lowest re- sponsible bidder, where such repairs and improvements had been fore- seen by the council, and provision made for them in the general appro- priation ordinance. The city council cannot transfer the sum thus provided for to a contingent fund and pay the same out for such repairs. Dolan vs. Schoen ct al., 26 D. R. 880, s. c. 45 Pa. C. C. 510, 13 Sch. L. R. 54; Tatham et al. vs. The City of PhUadelphia et al., 2 W. N. C. 564. The city has the right to make a contract providing for the render- ing of assistance to the city assessor in making the assessment under the rules and formulae of the Somers Unit System of Realty Valua- uation. Competitive bids here would not be practicable and the pro- vision concerning the lowest responsible bidder would not apply. Bucher et. al. vs. City of Johnstown et. al. 25 D. R. 307, s. c. 6 Lehigh Co. L. J. 267. A provision in the specifications of a municipal contract for water works, requiring the contractor to employ no one not a citizen of the United States, and to pay no man a less sum for his labor than one dollar and a half per day, is inconsistent with the provisions that the contract is "to be given to the lowest responsible bidder." Frame vs. Felix ct. al. 167 Pa. 47. 28 ihe expression "lowest bidder," necessarily implies competition and a common standard by which to measure the respective bids, and that common standard must necessarily be previously prepared specifica- tions of the work to be done, and materials to be furnished, &c.. speci- fications freely accessible to all competitors for the contract, upon which alone their respective bids are to be based. A paving contract let without specifying the kind of paving to be done, the nature or character of the materials, could not be let by competitive bidding. Mazet vs. City of Pittsburgh et. al., 137 Pa. 548, affirming 6 Pa. C. C. 599, see McCallin's Appeal, 1 Monaghan 596; Jones & Kumer vs. Jones et al., 22 D. R. 238, s. c. 1 Northumb. L. J. 28; Warren-Ehret Co. vs. County Commissioners, 15 Luz. Leg. Reg. Rep. 257; Slocum vs. Allen et. al. 13 Lack. J. 264. A provision in a contract authorizing a public official to substitute paving materials other than those provided for by the contract and the action of such official in substituting paving materials for part of the street is irregular and will be enjoined. Hamilton Avenue 48 Super. Ct. 156; Slocum vs. Allen et. al. 13 Lack. J. 264. In awarding paving contracts the specifications may be for different kinds of paving, the effect of which is to bring into competition the several kinds of pavement, and, at the same time, reap the advantage of the rivalry between prospective contractors for each of the several kinds. Wabash Avenue, 26 Super. Ct. 305. A contract for street paving may be let where the specifications re- quired that the lake asphalt should be that obtained from two desig- nated sources, "or other lake asphalt which in quality and durability shall be equal to the standard" of the asphalt from the places desig- nated. Carroll vs. Philadelphia, 183 Pa. 55, affirming 6 D. R. 397 Where the specifications for public supplies are of such restrictive. phraseology as to exclude other manufacturers from competition, the court will restrain the execution of such a contract at the suit of a tax- payer. Breen vs. McCallin et. al., 6 Pa. C. C. 658; see McCallin's Ap- peal, 1 Monaghan 596. Private negotiations between municipal authorities and a bidder for a city contract, through which the terms and conditions of the com- petitive bids, are so modified and changed that the higher bidder be- comes in fact the lower and successful bidder is not permissible. The proper method for the municipal authorities to pursue, if convinced that the best interests of the city demanded it, i^ to set aside all of the bids, readvertise and secure another open competitive bidding, when all of the bidders will be on an exact equality. Louchheim vs. Phila. delphia, 218 Pa. 100; Ryan et al. vs. Ashbridge, Moyer et al., 10 D. R. 153. When municipal officers enter into private negotiations with the suc- cessful bidder for a city contract, they are not acting within the scope of their authority as agents. Brobst vs. Albrecht et al., 19 D. R. 989. A city official will not render himself individually liable to the lowest bidder by rejecting all bids offered, and calling for bids under the same or new specifications, when done in the honest and judicious exercise of his discretion, for no one is legally entitled to the contract until it is legally awarded to him. Amer. Pavement Co. vs. Wagner, 139 Pa. 623 affirming 7 Pa. C. C. 385. Contracts must be awarded under a free and open competition be- tween all persons who may wish to bid. Limiting the contractor to 29 employ only a certain class of workmen, without regard to qualifica- tions, prevents free and open competition, and is unlawful. Elliott vs. City of Pittsburgh et. al., 6 D. R. 455, 8. c. 45 P. L. J. (os) 8; Frame vs. Felix et. al., 167 Pa. 47. Council cannot award a contract for lighting by resolution. It must be done by ordinance, properly passed. Eaches vs. City of Reading et al., 1 Berks Co. 350, s. c. 2 Lehigh Co. L. J. 272; but see Seventh Street, Lebanon City, 5 D. R. 591. A resolution of city council, unless accompanied with the formalities necessary for the passage of an ordinance, has not the force of one to bind the city to the acceptance of a contract. Fuller vs. City of Scran- ton, 18 W. N. C. 18, affirming 1 Pa. C. C. 405. When a contractor deals in good faith with municipal authorities who have jurisdiction to make the contract which is duly awarded to him, and done the work which he has undertaken as required by his con- tract, the contract price is conclusive as to the value of the work. Where jurisdiction is proved or admitted as vested in municipal coun- cils then the presumption is that all merely directory provisions of the law have been substantially followed. City of Erie, to use, vs. Bier, 10 Super Ct. 381. The power to make contracts, vests in councils whose action is legis- lative and cannot be delegated. Com. ex rel. vs. Morrow, 40 P. L. J. (os) 287, Contra. See following case. When a municipal corporation has power to do any particular work it may authorize its agents to make contracts for that purpose, and such contracts will be binding upon the corporation. Reuting vs. City of Titusville, 175 Pa. 512. A municipal corporation may ratify the unauthorized acts and con- tracts of its agents or officers, which are within the corporate power, and such ratification need not necessarily be by resolution or ordinance, but may be implied from the acceptance of the work and formal asser- tion in judicial proceedings of a claim founded upon it. Hamilton Avenue, 48 Super. Ct. 155, affirming 59 P. L. J. 469, 3 M. L. R. 137. Ratification is only effective where there is authority to do the act which is subsequently ratified. Where a supplemental contract was awarded in direct violation of the requirements of the law, or their is no authority fo.r the city or its officers to enter into such a contract, any attempted ratification of their action in making such a contract is of no validity. Smith vs. City of Philadelphia, 227 Pa. 423, affirming 18 D. R. 769; Smith vs. City of Philadelphia et al., 17 D. R. 381; Bullitt et al. vs. City of Philadelphia et al.. No. 2, 19 D. R. 1091. While all contracts are "to be given to the lowest responsible bidder, under such regulations as shall be prescribed by ordinance," and an ordinance provided that "no contract shall be binding upon the city until the same shall have been reported to, and approved by, council," it was held the power of disapproval cannot be exercised arbitrarily and without some good and sufficient reason. New York and Cleve- land Gas Coal Co. vs. Pittsburgh et al., 6 D. R. 757. If the contracts and obligations of a municipal corporation do not overreach their current revenues, no legal objection can be made to them, no matter how great the indebtedness of such municipality may be, as there is no increase of indebtedness within the meaning of the constitutional provision limiting the power of municipal corporations 30 to contract debts; for in such case their engageraents do not extend be- yond their present means of payment, and so no debt is created. Renting vs. City of Titusville, 175 Pa. 512. Work under a contract let under an ordinance requiring any por- tion or all of the work be done within the city limits and which thus, in effect, violates the provision that the contract shall be let to "the lowest responsible bidder," will be enjoined. Taylor vs. City of Phila., 261, Pa. 458, reversing 26 D. R. 979. A paving contract may also include a provision for repairing such paving. Williamsport vs. Hughes, 21 Super. Ct. 443; Philadelphia, to use of Cunningham vs. Pemberton 25 Super. Ct. 323, reversing 29 Pa. C. C. 252, s. c. 12 D. R. 743. A contract, awarded for certain construction work, containing a provision for extra work as the director of public works shall require, and that the compensation for such work shall be its reasonable cost to the contractor, plus ten per cent, for profits, use of tools, etc., does not conflict with this section. Jonathan Clark & Sons Company vs. Pittsburgh, 217 Pa. 46, see Brobst vs. Albrecht et al., 19 D. R. 989. A municipal contract, compile and final in itself, cannot be en- larged by a supplemental contract for additional work, executed by the city's officials without competitive bidding in the manner provided by the ordinance enacted to carry this section into effect. A clause in the original contract reserving to the city the right to modify any of its essential terms by subsequent supplemental contract to be made by its officers without competitive bidding in the form prescribed by ordinance Is invalid, and such supplemental contracts arc illegal. The practice of letting contracts upon unbalanced bids is improper and a contract so awarded may be an index of fraud and collusion between the successful bidder and the city officials in charge of the work. Lewis et al. vs. City of Philadelphia, et al., 20 D. R. 113, affirmed in 235 Pa. 260; See also on supplemental contracts. Smith vs. City of Philadelphia, 227 Pa. 423, affirming 18 D. R. 769; Bullitt et al. vs. City of Philadelphia et al.. No. 2, 19 D. R. 1091; Smith vs. City of Phila- delphia et al., 17 D. R. 231. Where additional contracts have been let without new bids and new advertisements, equity will not grant relief when the relators have been guilty of laches, no fraud is alleged and no real injury done. Sheppard et al. vs. City of Philadelphia et al., 17 D. R. 636; Binney et al., vs. City of Philadelphia et al., 17 D. R. 636. Under a contract covering the whole of a particular improvement, at a price to be determined on the unit basis, providing that the city is not to be called on to pay more than a fixed sum until further appropriations have been made, additional work may be contracted for, under a supplemental contract, without the taking of new bids, provided the original contract contemplated such an extension of work and all who bid had notice thereof. Croasdill vs. City of Phila- delphia et al., 18 D. R. 719. A contract between a city and those who do work for it is not made invalid, although it may become improvident, because of a covenant that the city shall have power to add to or diminish the work called for by the specifications. Wabash Avenue, 26 Super. Ct. 305. Where a municipal ordinance requires bonds to be given by con- tractors "in the amount of the contract price," but does not state when the bonds shall be given, and it appears that the first payment, under 31 the contract, is ijot to become due until after the completion of the work, and then to be payable in installments, the requirements of the ordinance are met by giving a bond upon the completion of the work, conditioned according to the terms of the contract. Hallock vs. Lebanon, 215 Pa. 1. (20) Section 6. No money shall be paid out of the city treas- ury except upon appropriation made according to law^, and on war- rant drawn by the proper officer in pursuance thereof; and no mu- nicipal department shall create any debt or make any contract ex- cept in pursuance of previous authority of law or ordinance. Councils cannot be compelled by mandamus to make an appropria- tion to pay the salary of a plumbing inspector until the amount of such salary shall have beeen fixed by ordinance, even though the duty is imposed on councils by act of assembly of providing for the payment of the salary of such an officer. Com. vs. Armstrong, 40 Pa. C. C. 588, s. c. 61 P. L. J. 103, 22 D. R. 457. Persons contracting with officers of a municipal corporation are bound to take notice of the extent and limits of their powers. When municipal officers enter into private negotiations with the successful bidder for a city contract, they are not acting within the scope of their authority as agents so that their knowledge can be imputed to the city. The fact that there was no appropriation to support a con- tract robs the contract of all force, and a contract, void for that reason, was not validated by an ordinance subsequently passed, mak- ing an appropriation for the payment of" "unpaid bills." Brobst vs. Albrecht et al., 19 D. R. 989, s. c: 2 Berks Co. 150,-103, 3 Lehigh Co. L. J. 380; see Dunlap et al. vs. City, 13 W. N. C. 98. Where in an equity proceeding, to which the city is a party, the parties agree upon a decree, the court will not vacate such decree under circumstances which would be unjust or inequitable, because the city authorities had not expressed their assent to the entering of the decree by a municipal ordinance. Chester City vs. White, 220 Pa. 6^6, affirming 10 Del. Co. 394. A board of health of a city has no power to fix the salary of the health officers in a sum in excess of the appropriation made by coun- cils therefor and by so doing make the city liable for such excess. Watt vs. City of Altoona, 23 Pa. C. C. 410. Where a municipality borrows money and specifically appropriates it to a given use it is not necessary that the money so borrowed should be appropriated over and over again by annual ordinance in case some of it should happen not to be paid out during the year. Com. ex. rel. vs. Larkin, 27 Super. Ct. 397. Where one of the bidders for the contract for the cleaning of the streets of one of the six districts of a city has his bid accepted sub- ject to a sufficient appropriation to be made to cover the work, and ^ at the time the bid was accepted an appropriation had been made for the work of cleaning the streets of the whole city, but this appropria- tion fell short of the aggregate of the contracts awarded for the six districts, the bidder is under no duty to execute a contract with the city or to clean the streets of the district for which he bid Hinkle vs Philadelphia, 214 Pa. 126. 32 (21). Section 7. Any member of council or other city officer or employe who shall solicit, demand, or receive, or consent to receive, directly or indirectly, for himself or for another, from any company^ corporation, or persons, any money, office, appointment, employment^ testimonial, rev\^ard, thing of value or enjoyment or of personal ad- vantage, or promise thereof, for his vote or official influence, or for withholding the same, or with an understanding, expressed or im- plied, that his vote or official action shall be in any way influenced thereby; or who shall solicit or demand such money or other ad- vantage, matter, or thing aforesaid, for another, as the considera- tion of his vote or official influence, or for withholding the same, or shall give or withhold his vote or influence in consideration of the payment or promise of such money, advantage, or thing to another ; shall be held guilty of bribery, and upon conviction thereof ■ shall be punished by a fine not exceeding ten thousand dollars, and by separate and solitary confinement at labor for a period not exceed- ing five years, and shall be forever incapable of holding any place of profit or trust in this Commonwealth. (Amendment of May 27, 1919, P. L. 310, Sec. 7.) See notes to Sec. (23). The proviso in Sec. 49 of the Act of March 31, 1860, P. L. 382, to the effect "That the accused shall not be convicted on the testimony of an accomplice unless the same be corroborated by other evidence, or the circumstances of the case" has no application to an indictment against a councilman under this section. Com. vs. Klein, 42 Super. Ct. 66. (22). Section 8. Any person who shall, directly or indirectly, offer, give, or promise any money or anything of value, testimonial, privilege, or personal advantage to any member of council or other city officer or employe, to influence him in the performance or non- performance of any of his public or official duties, shall be guilty of bribery, and be punished in such manner as that offense is by law punishable. (Amendment of May 27, 1919, P. L. 310, Sec. 8.) The punishment imposed upon conviction under an indictment laid under this section is the same as that prescribed by Sec. 48 of the penal code of March 31, 1860, P. L. 382, for the oflfense of offering, giving or promising a bribe. The punishment provided in the pre- ceding section of this act, for the crime of accepting the bribe, does not apply. Com. vs. Cameron, 42 Super. Ct. 347, affirmed in 229 Pa. 592. (23). Section 9. A member who has a personal or private in- terest in any measure or bill proposed or pending before the council shall disclose the fact to council, and shall not vote thereon, nor take any part in the discussion of the same. If such interested pcr- 33 son shall vote without disclosmg nis interest in such measure or bill, and the same be carried by his vote, he shall forfeit his oftce, and the measure or bill shall be void. » The provision in Sec. 10, Art. 4, Act of May 23, 1889, P. ^■^^' that an interested member "shall disclose the fact to the brazen oi which he is a member" has been changed to read "to council in con- formity with the change to a unicameral system. A writ of quo warranto issued under this section was held properly quashed, where all that appeared was that the councilmen in Question had voted for a tenant as janitor of a municipal building and that .he tenant was at the time of the election indebted to him for rent. Com. ex. rel. vs. Strickler, 259 Pa. 60. A councilman who becomes a sub-contractor for street improve- ments is removable from office by quo warranto. Com. ex. rel. vs. Johnstin, 21 D. R. 993, s. c. 60 P. L. J. 269. An ordinance providing for the paving of a street is not invahd because it was passed by the casting of a vote by a member of coun- cil who had signed the petition for the pavement of the street. Erie City vs. Grant, 24 Super. Ct. 109. A member of council is prohibited from voting against as well as for his interest, but the interest referred to is a personal or private interest and not that as a member of a class. Hence a member of council, who is one of a class of contractors, may vote to impose an annual license tax on that class of contractors. Slutzker et al. vs. City of Altoona et. al., 11 D. R. 744. Where a councilman ousted from office by decree of court because he is a stockholder in a corporation furnishing supplies to the munici- pality, forthwith sells his stock and resigns his office in such corpora- tion, he thereby qualified himself for re-election or appointment to fill his own vacancy. Warner vs. Coatesville Borough, 231 Pa. 141. (24). Section 10. No portion of the property of the city shall be used for private gain by any ofificer of the city, councilman, agent or employee of said city, or any department thereof; nor shall the same be wilfully used or injured, or be sold or disposed of in any manner, without the consent of the council, by any officer, coun- cilman, agent or employe. Nor shall any officer, councilman, agent or employe of the said city, or any department thereof, be interested, directly or indirectly, either personally or as a member or officer of any firm, company, or corporation contracting with the city, or any department thereof, for the use, purchase or sale, lease, occupation or enjoyment, of any of the works, material, or property of said city. Any violation of the provisions of this section shall be a misde- meanor, and upon conviction thereof the person or persons so offend- ing shall be punished by a fine not exceeding one thousand dollars, and by imprisoHment not exceeding one year, or either, at the discre- tion of the court trying the same; and, upon such conviction, the party offending shall be forthwith removed from his office or employ- ment and shall not thereafter be eligible to election or appointment to 34 aiiy iJittcc^oi— pFouL ui TTOSt Under said city, or any department thereof. See Sees. (26) and (27). It is an indictable offense for a city official to advance money out of the city treasury before there is an appropriation for the purpose and receive interest on the same from the contractor. Com. vs. Hancock 2 W. N. C. 557. (25). Section 11. No member of the council, or any other city officer, shall become surety in any bond or obligation given to the city by any officer, or by any agent or contractor, for the faithful performance of any trust, agency, or contract. Any person becom- ing surety in violation of the provisions hereof shall forfeit his of- fice and be deemed guilty of a misdemeanor, punishable upon con- viction by a fine not exceeding five hundred dollars. (26). Section 12. No member of the council, or other officer of the city, shall, either directly or indirectly, be a party to, or in any manner interested in, any contract or agreement with such city, for any matter, cause, or thing whatsoever, by which any lia- bility or indebtedness is in any way or manner created against such city; and if any contract or agreement shall be made in violation of the foregoing provision, the same shall be null and void, and no action shall ever be maintained thereon against said city. See Sees. (24) and (27). Contracts entered into between the city and a firm in which a member of council was interested as a partner are void as against public policy and this is not affected by the fact that the councilman interested in the contract did not actually vote on the ordinance to approve the contract. This principle does not apply where a mem- ber of the contracting firm was in councils when the bids were ad- vertised, received and opened, and the award made, but resigned be- fore the formal contract between his firm and the city was executed. The right of the city to rescind such a contract is not barred by the fact that the contract was executed when the election to rescind was made. Upon exercising such right, the city, however, will be required to pay the contracting firm such sum as may be found to be justly due them on account of work done by them under the contract. City of Philadelphia vs. Durham et. a!., 16 D. R. 81. A contract let to a firm in which one of the councilmen holds only a salaried position is legal. Dunlap et al. vs. City, 13 W. N. C. 98. (27). Section 13. No member of the council, or other officer of such city, shall purchase any warrant, order, or claim for labor or supplies furnished to said city, nor be interested, directly or in- directly, in the purchase of the same for any sum less than the amount specified therein; any such person, purchasing a warrant, order, or claim in violation of 'the foregoing provision, shall be guilty of a misdemeanor, and on conviction thereof, shall be puni-shed by a fine not exceeding one hundred dollars. 35 (28). Section 14. All officers of the several cities of the third class, whether elected or appointed, shall, before entering upon their respective duties, take and subscribe the oath prescribed by section one of article seven of the Constitution of this Commonwealth. Any person refusing to take such oath shall forfeit his right to the of- fice; and any person guilty of violation thereof shall be deemed guilty of a misdemeanor, and upon conviction shall be sentenced to ^ay a fine not exceeding one thousand dollars, and to undergo an imprisonment not exceeding one year, or either, at the discretion of the court. (29). Section 15. Except as otherwise provided in this act, the terms of members of council, and all other city and ward officers of said cities, except aldermen, elected at the regular municipal elec- tion in any year, shall begin on the first Monday of January next ensuing thereto, and shall continue for the period fixed by law for the duration thereof in each particular case; and all elections for officers whose terms will expire on the first Monday of January of any year shall be held on the Tuesday following immediately after the first Monday of November next preceding thereto in the odd- numbered years. (30). Section 16. The members of council of the severjtl cities of the third class shall assemble in their place of meeting, for the purpose of organizing, at ten o'clock in the forenoon of the first Monday of January next succeeding the regular municipal election in the odd-numbered years; and the mayors of said cities shall be inaugurated and take the oath of office on the said day and hour of the first Monday of January following their election. In the year one thousand nine hundred and thirteen, the council shall organize at ten o'clock in the forenoon of the first Monday of December; and the mayors elected at the municipal election of that year shall be inaugurated and take the oath of office on the said day and hour. The mayor shall be the president of the council. This section appears to supply Sec. 1, Act of June 9, 1911, P. L. 857, as to third class cities. The action of a city council, acting under a misapprehension of the law in the election of its officers, by electing a president when no vacancy exists, is void of legal effect. Council is presumed to have intended to perform its duties under the Acts of Assembly in force at the time it undertook to do so. If council v/ere under the impres- sion that an organization would last only for one year, the law re- quiring it to be for two years would nevertheless give it that effect. Com. ex rel. Spangler vs. Gable, 5 Berks Co. 143. (31). Section 17. Whenever an election shall be held for city officers on the first Tuesday following the first Monday of November in my odd-numbered year, for regular terms of service, it shall be 36 the duty of the mayor to procure, at the expense of the city, from the prothonotary of the court of common pleas of the proper county, by which court the returns thereof shall be computed, a certified copy, under the seal of the court, of the vote for ail such officers as computed by the court according to law, and lay the same before council on the date and time fixed by law for their organization; and the said certificate shall be filed among the city archives, and a copy thereof entered upon the journal. In the case of special election for a member or members of council to fill a vacancy or vacancies, the mayor shall procure from the prothonotary, as aforesaid, a certificate of the vote for such member or members as returned to his office by the proper election officers, and lay the same before the council at the next regular meeting succeeding such election, which council shall enter the same among its proceedings. The court of quarter sessions shall appoint the places for holding the municipal and the general eletcions in all of the election districts of said cities. The prothonotary's certificate of election is prima facie evidence of title to office which council must accept. The title to such disputed office must be later tested, if at all, by quo warranto or otherwise. Connell vs. Kennedy et al., 20 Luz. 85. 37 ARTICLE FIVE. CORPORATE POWERS. (32). Section 1. The corporate powers, and the number, char- acter, powers, and duties of the officers, of cities of third class now in existence by virtue of the laws of the Commonwealth, shall be and remain as now provided by law, except where otherwise pro- vided by this act. (33). Section 2. Every city of the third class within this Com- monwealth is hereby declared to be a body corporate and politic, and shall have perpetual succession, and shall have power — (34). 1. To sue and be sued; (35). 2. To purchase and hold real and personal property for the use of the city ; See notes to Section (61). (36). 3. To lease and to sell and to convey any real or personal property owned by the city, and to make such order respecting the same as many (may) be conducive to the interests of the city; (37). 4. To make all contracts, and do all other acts in relation to the property and affairs of the city necessary to the exercise of its corporate or administrative powers; A resolution of city councils, unless accompanied with the formali- ties necessary for the passage of an ordinance, has not the force of one to bind the corporation to the acceptance of a contract. Fuller vs. City of Scranton, 18 W. N. C. 18, affirming 1 Pa. C. C. 405. (38). 5. To have and use a corporate seal, and alter the same at pleasure; and every such seal shall have upon it the word "Penn- sylvania," the name of the city, and the year of its original incor- poration. The powers hereby granted shall be exercised by the mayor and councilmen of such cities in the manner herein provided. (39). Section 3. Every city of the third class in its corporate capacity is authorized and empowered to enact ordinances for the following purposes, in addition to the other powers granted by this and other acts : — (40). 1. To levy and collect taxes for general revenue purposes, not to exceed ten mills on the dollar in any one year, on all persons, 38 real, personal and mixed property, within the limits of said city, taxable according to the laws of the State of Pennsylvania for county purposes; the valuation of such property to be assessed as herein- after provided. The local Acts of March 19, 1860, P. L. 175 and April 22, 1868, P. L. 1136, authorizing the city of Harrisburg to impose taxation on cor- porations for city purposes, were repealed by the Acts of May 23, 1874, P. L. 230, and May 23, 1889, P. L. 277. Harrisburg vs. Harris- burg Gas Co. 219 Pa. 76. The Act of April 1, 1872, limiting the rate of taxation for city purposes in the seventh ward of the city of Williamsport, and classify- ing lands subject to this tax is not inconsistent with the provisions of the Act of May 23, 1874, relating to cities, and not repealed by the latter act. City of Williamsport vs. Brown, 84 Pa. 438. The right to impose taxes for the support of the government, in all its departments, state, county or municipal, is the prerogative of the legislature. Subject to the restriction of the constitution, this power may be exercised by such agencies as the legislature may establish for that purpose. City of Erie vs. Reed, 113 Pa. 468. (41). 2. To provide for the assessment and collection of taxes, in addition to the above, not exceeding one per centum on the dol- lar upon the assessed valuation in any one year, on all persons, real and personal property, and all other matters and things within said city taxable for county purposes, for the payment of interest on bonded indebtedness, and for the payment of loans to support the government, and to make necessary improvements in said city. Under Sec. 20, CI. 33 of the Act of May 23, 1874, P. L. 230, the language of which was similar except that the word "to" before the last clause relative to "necessary improvements" was omitted, it was held in Scranton vs. D. L. & W. R. R. Co., 2 Walker 365, that the language authorized taxation for loans only, and not to make neces- sary improvements. (42). 3. To impose a poll-tax for general revenue purposes, not exceeding one dollar annually, on all male inhabitants above the age of twenty-one years. (43). 4. To levy and collect a license tax for general revenue purposes, not exceeding one hundred dollars each, annually, on all auctioneers, contractors, druggists, hawkers, peddlers, produce or merchandise venders, bankers, brokers, undertakers, pawnbrokers, trading stamp or premium -companies or dealers, warehouses or storage houses or places, merchants of all kinds, persons selling or leasing goods upon instalments, grocers, confectioners, butchers, wholesale meat dealers, restaurants, billiard-parlors, bowling-alleys, billiard-tables, pool-tables, and other gaming tables; drays, hack^, carriages, omnibuses, automobiles, carts, wagons, street railway cars, and including other vehicles likewise used in the city for hire or pay; lumber dealers, commission men, and all persons who make 39' a business of buying lumber for sale at wholesale or retail ; furniture dealers, saddle or harness dealers, stationers, jewelers, livery or auto- mobile or boarding-stable keepers ; real estate agents ; market-house companies and owners of market houses, garage companies and owners of other than private garages, express companies or agen- cies ; and, where no other license tax is imposed, on telegraph, tele- phone, steam-heating, gas, natural gas, water, electric light or power companies, or agencies or individuals furnishing communication, light, heat, or power, by any of the means enumerated; and to regu- late the collection of» the same ; and the taxes assessed under this clause shall be in addition to all other taxes levied and collected by the city, county, or Commonwealth. (Amendment of May 27, 1919, P. L. 310, Sec. 9). Under a city ordinance imposing a license tax on all milk venders, a person pursuing that occupation is liable for the tax notwithstand- ing he holds a license from the court as a hawkei and peddler. Easton vs. Kemmerer, 13 Pa. C. C. 522. The meaning of the word "butcher" in the Act of 1889, P. L. 277, which gives the power to impose a license tax for general revenue purposes, is wide enough to include those persons who reside and have their slaughter-houses elsewhere, but sell the meat within ~-the city limits. Harrisburg City vs. Deimler, 19 Pa. C. C. 542. A city of the third class has no power under this clause to impose a license tax upon the delivery wagon of a milkman. The delivery wagon of the baker, the butcher, the dry-goods dealer, or the milk- man is not within the purview of this statute. Reading City vs. Bit- ting, 167 Pa. 21. "Persons selling fresh meat within the city limits not of their own raising," are not specified as subjects of taxation. Harrisburg vs. Harris, 17 Lane. L. R. 173. A city of the third class has the power to enact an ordinance re- quiring dealers in meat and milk to pay a license fee of $10 per year, and imposing penalties for violation of the ordinance. Reading vs. Bitting 167 Pa. 21, distinguished; Reading City vs. Miller, 45 Super. Ct. 28. An ordinance of a city of the third class which classifies wholesale and retail merchants for the purpose of a municipal license tax does not violate any provision of the federal or state constitution, and under such classification, councils may impose diflferent rates upon the sev- eral classes. Com. vs. Clark, 195 Pa. 634. Councils may, in the exercise of their discretion, 'classify merchants or others according to the amount of their gross sales, and graduate the tax according to such sales. City of Williamsport vs. Wenner. 172 Pa. 173. Under CI. 4, Sec. 20, Act of May 23, 1874, P. L.<230, a city of the third class having accepted the provisions of said act, could impose a license tax upon dealers in wines and liquors, graduated by the es- timated amount of their gross annual sales. Allentown vs Gross 132 Pa. 319. 40 The Act of 1889 allows the city to impose a license tax on "'merchan- dise venders." A merchandise vender is one who buys to sell again, or who sells goods of his own manufacture at his store or place of business away from the manufactory. York vs. Helb, 17 York 97. An ordinance of a city of the third class imposing a license tax on ■'all peddlers, hucksters and persons traveling from house to house with goods, wares, merchandise or produce of any kind for sale, is not invalid because it imposes a graduated tax according to the amount of goods carried, or because it imposes an additiodnal tax of twenty per cent upon any person who used a horse and wagon in his business; nor is such an ordinance vitiated because "farmers, gardeners or other persons who raise, market and sell their own produce," were excepted out of its operations. A hawker and ped- dler is an itinerant or traveling trader who carries goods about in order to sell them, and actually sells them in contradistinction to a trader who has goods for sale and sells them in a fixed place of business. It is within the police powers of the state to pass a law requiring a peddler of goods to take out a license, even although these goods may have been brought from another state and are still the property of the importer. New Castle vs. Cutler, 15 Super. Ct. 612. The Act of June 27, 1913, P. L. S68, authorizing cities of the third class to levy and collect a license tax on agents for fire or life in- surance, repeals that part of Sec. 29 of the Act of June 1, 1911, P. L. 607, which provides that it shall be unlawful for any city, county or municipality to impose or collect any license fee or tax upon insurance companies or their agents authorized to transact business under said act. Com. vs. Bushnel, IS Dauphin 287; but see the Act of May 3, 1915, P. L. 217, infra Sec. (937). A city of the third class has no power to levy and collect a license tax from theatres or billposters, for general revenue purposes. It has authority, however, to levy such tax upon theatres and opera houses under the police power expressly delegated to it. Titusville vs. Gahan, 34 Super. Ct. 613. An ordinance which imposes license taxes varying in amounts upon different kinds of industries, is not void for want of uniformity. Hadtner vs. City of Williamsport, 15 W. N. C. 138. The fifth article of the Act of May 23, 1889, P. L. 277, expressly authorizes a tax of $100 for general revenue purposes on the capital stock of a telephone company, and a city ordinance providing there- for is valid. A city ordinance providing for the payment of a license fee for permission to plant poles is valid as a police regulation. The company can be required to pay both of the said charges in one year. Harrisburg vs. Penna. Tel. Co. 15 Pa. C. C. 518. A city of the third class has power to impose by ordinance an annual license tax upon a telephone company, although such com- pany is engaged in both local and interstate commerce business, if there is nothing in the language of the ordinance indicating a munici- pal intention to tax interstate commerce business. Johnstown vs. Central Dist. 23 Super. Ct. 381. A city of the third class may impose a license tax on steam heating companies and provide as a penalty for non-payment a fine of double the amount of the tax. Reading City vs. Heat & Power Co., 20 Pa. C. C. 411. 41 The Act of June 30, 1885, Sec. 3, P. L. 193, exempting banks from local tax on payment of state tax does not exempt banks in such case from the payment of a license tax under the Act of May 23, 1874, Sec. 20, CI. 4, P. L. 230, such license tax being incidental to the exer- cise of the police power. The license tax on banks authorized by the Act of May 23, 1889, P. L. 277, being for general revenue purposes, banks are exempt from payment of it upon compliance with the ex- empting provisions of the Act of 1885. OU City vs. Trust Co. 151 Pa. 454. (The Act of May 23, 1889, was subsequently amended so as. to make these taxes license taxes, and not taxes for general revenue pur- poses.) This clause authorizes a tax upon or in respect of each car and not a tax upon the business or occupation in which defendant is en- gaged. Harrisburg vs. Railway Company, 4 D. R. 683. A municipality has authority under its general police power to im- pose an annual license tax upon each street car run or operated upon any street or road in the city. Eric City vs. Motor Company, 24 Super Ct, 77. (44). 5. To borrow money on the credit of the city, and to pledge the credit and revenue thereof for the payment of the same, to an amount not exceeeding two per centum upon the assessed value of the taxable property in said city; and, with the consent of the people of the said city, obtained at an election held under the pro- visions of the Constitution and the general laws of this Common- wealth, to increase the indebtedness of such city, to an amount not exceeding in the aggregate seven per centum upon the assessed valuation of the taxable property therein. Under the Act of April 18, 1895, P. L. 36, amending the fourth section of the Act of April 20, 1874, P. L. 65, it was held that a municipality could only increase its indebtedness at any one time, at any one election, by an amount not over two per centum, by a vote of the people, Sener et al. vs. Ephrata Borough, 176 Pa. BO,i but a subsequent amendment to this fourth section of May 11, 1897, P. L. S3, permits any increase to be made so long as the total in- debtedness d,oes not exceed the constitutional limitation. The Constitution divides municipal indebtedness into three classes, considered with reference to amount, the procedure to create which, in each case, being determined by the amount, as follows: — First — Municipal authorities may create or increase the indebtedness up to two per cent of the assessed value of the taxable propei-ty, ex- cluding that indebtedness created previous to the adoption of the Constitution, so long as the total indebtedness does not exceed seven per cent. Part of Sec. 8, Art. IX, Constitution of Pennsylvania; Bor- ough of Millerstown vs. Frederick, 114 Pa. 435; Schuldice vs. Pitts- burgh, 234 Pa. 90. Second — New debt or increase of indebtedness exceeding two per cent, but less than seven per cent of the assessed value, is permitted only with the assent of the electors, except as to cities whose debt exceeded seven per cent on the first day of January, 1874, and has not since been reduced to less than such per centum, which cities 42 may be authorized by law to increase the same three per centum in the aggregate, at any time, upon such valuation. Part of Sec. 8, Art. IX, Constitution of Pennsylvania. Third — Where the debt is over seven per cent /of the assessed valuation it may be increased to ten per cent with the assent of "Three-fifths of the electors voting at a public election.'' Part of Sec. 15, Art. IX, Constitution of Pennsylvania. Again there are two classes of indebtedness, considered with refer- ence to the method of their creation, recognized in the Constitution, one called for convenience "councilmanic," which is created without the assent of the electors, and another called "electoral," which must be authorized by the electors. Where the total indebtedness does not exceed seven per cent the municipal authorities can, without vote of the electors, create or increase the "councilmanic" debt to two per cent of the assessed valuation of the taxable property. Keller vs. Scranton, 202 Pa. 586. Where the debt is more then two per cent and a part of the debt had been duly authorized by a vote of the elec- tors, such part may be deducted from the gross amount, and the re- mainder, if under two per cent of the assessed value, may be in- creased to two per cent without special authorization by the electors. Keller vs. Scranton, 202 Pa. 586. Where two or more municipalities unite and the act under which they unite transfers liability for preexisting debts from the respective units to the consolidated municipality, the status of the debts of the separate municipalities remain the same as before the consolidation, so that the debt of a unit, which was councilmanic, becomes a coun- cilmanic debt of the consolidated municipality, and the debt of a unit which was electoral, becomes an electoral debt of the consolidated municipality. Troop vs. Pittsburgh, 254 Pa. 172. The fact that the people vote to permit the funding of an old debt incurred without their consent does not transfer the debt from the councilmanic to the electoral class. While both councilmanic and electoral bonds must be paid by the tax payers, yet, in determining the amount of a municipality's coun- cilmanic debt, bonds representing the electoral debt, or cash held for their redemption, cannot be deducted in computing debt created by authority of councils only. Schuldice vs. Pittsburgh, 251 Pa. 28. (45). 6. To provide for the issuing of bonds, and for the appli- cation of bonds already issued by cities heretofore incorporated, for the purpose of funding any and all indebtedness, now existing or hereafter created, of the city, now due or to become due : Provided, That said bonds shall be payable in not less than one year and not more than thirty years from the date of their issue, and may be^ issued in series payable at different times within said thirty years or in equal annual instalments. Such bonds shall bear interest at a rate not exceeding six per centum per annum, with interest cou- pons attached, payable annually or semi-annually; and the said bonds shall not be sold or exchanged for less than their par value. (Amendment of May 27, 1919, P. L. 310, Sec. 11.) Sec. 27, Art. XV, Act of May 23, 1889, P. L. 277, provides: 43 "In all contracts for improvements, the cost of which is to be paid by assessments upon the property abutting or benefited, the city may ***** issue improvement bonds, based solely upon the assessments for any of said local improvemeents." (46). 7. To make provision for a sinking-fund to pay at ma- turity the bonded indebtedness of the city, and to levy and collect taxes on all the taxable property in the city, in addition to all other taxes, for the purpose of paying the same, under and subject to the limitations and requirements of this act and of the Constitution and laws of this Commonwealth. (47). 8. To lay out, open, widen, straighten, alter, extend, im- prove, establish, or re-establish grades of, and keep in order and re- pair and in safe passable condition, any street, avenue, alley, or lane, or any part thereof, within the city Hmits, or to vacate and discon- tinue the same whenever deemed expedient for the public good ; and to make sidev/alks, and construct and maintain bridges and culverts ; and to provide for the cost thereof either in whole or in part from the general revenues of the city. No ordinance for the opening, widening, straightening, extending, or vacating of any street, avenue, alley or lane, or parts thereof, shall be passed except in the manner provided in clause ten of this section. Sec. 20, Clause 2, Act of May 23, 1874, P. L. 230, provided for the payment of bridges and culverts "by assessments on real estate bene- fited thereby." For other provisions relating to the laying out, opening, etc., of streets, see appendix, Art. XLI, SecS. (S21) to (578). For po\vers of City Planning Commission concerning "the location, extension, widening, narrowing, enlargement, ornamentation and parking of any street, boulevard, parkway, * * * vacation" of any streets and "the location of any bridge" see Sees. (326) to (331) in- clusive. Previous to the passage of the Act of May 23, 1874, P. L. 230, where the borough or city charter, or a special or local law did not provfde otherwise, streets in cities, and in boroughs, which had not come within the provisions of the Act of April 3, 18S1, P. L. 320, were laid out, opened, widened, etc., under the general road laws of June 13, 1836, P. L. 555, by proceedings in the court of quarter sessions. Trickett on Pennsylvania Road Law, pages 485 and 553; West Chester Alley, Painter's Appeal, 160 Pa. 89. The court held, In re East Grant Street, Lane. 121 Pa. 596, that the provision in Sec. 13, Act of May 23, 1874, P. L. 230, that "Proceedings to be had in such cases as are now required by law," referred to the general road law of June 13, 1836, P. L. 551, with its supplements and amendments. The Act of May 23, 1874, P. L. 230, in Sec. 20, Clauses 2, 38 and 39 authorized cities of the third class, by action of council through ordinance, to "create," which would seem to mean "lay out," and also open, widen, improve, extend and vacate streets. 44 Where the Act of 1874 was not inconsistent with the charter of such city or any local or special law pertaining to such city, in the matter of laying out, opening, widening, etc., streets, both methods were in force. Shaaber vs. City of Reading, 133 Pa. 643, affirming 7 Pa. C. C. 230. The power, in a similar manner, to lay out, open, widan, improve, etc., streets, was also conferred upon third class cities by the Act of May 23, 1889, P. L. 277, and the Act of June 27, 1913, P. L. 568. By way of analogy to the above — In boroughs, previous to the Act of April 3, 18S1, P. L. 320, the streets were laid out by the court of quarter sessions under the General Road Law of June 13, 1836, P. L. SSI. Clause 2, of Sec. 2, of this latter act provided that the borougli council should have power to lay out, widen, straighten, etc., streets and it was held in "Somerset and Stoyestown Road" 74 Pa. 61, and in "Palo Alto Road," 160 Pa. 104, that the Act of 1836 was repealed so far as inconsistent by the Act of 18S1, and that subsequent to this latter act a street wholly within a borough was to be laid out by the bor- ough council and burgess, and not by the court of quarter sessions. It would seem, therefore, that streets wholly within a city are now laid out, opened, widened, etc., under Clause 8, Sec. 3, Art. V, Act of 1913. Where the street is partly in the city and partly in an adjoining borough or township, the provisions of the General Road Law of 1836 apply, and the court of quarter sessions has jurisdiction. Road in Ransom and Lack. Townships, 18 Pa. C. C. 417. Since the passage of the Act of May 16, 1891, P. L. 75, proceedings for the laying out, opening, widening, improving, vacating, etc., of streets, can be had under either that act or the Act of June 27, 1913, P. L. 568, the damages being assessed by proceedings in the court of common pleas, under the Act of 1891, or Art. XIV, Act of 1913. It is impossible that Sec. 13, Act of May 23, 1874, P. L. 230, which follows, is still in force where streets were laid out or commenced under any special' or local act, or where the street laid out is partly in the city and partly in a borough or a township. This section reads as follows: "Section 13. That the municipal authorities and courts having juris- diction in any city of this commonwealth, shall have exclusive control and direction of the opening, widening, narrowing, vacating and chang- ing grades of all streets, alleys, and highways within the limits of such city, and may open or widen streets, at such points, and of such width, as may be deemed necessary by such city authorities and courts, any private or special statute to the contrary notwithstanding; pro- ceedings to be had in such cases as are now required by law. Streets commenced under any special authority shall be completed, unless otherwise decided by councils; and any of said cities may, with the consent of the courts of quarter sessions of the proper county, enter security for damages to private property by reason of street im- provements, in such sum or sums as the said court may direct," (as amended by Act of June 8, 1881, P. L. 68.) Councils of a city of the third class have the right to contract for the repair of streets for a term of years. Municipal contracts for an indefinite term of years will not be sanctioned. It appears that ten years is the general limit. Campbell vs. Paving Co., 6 Lack. L. N. 119. 45 The council may designate an official to take the necessary proceed- ings to have a street officially opened and the city solicitor is a proper official to be so designated. In re Opening of Front Street vs. Harrisburg, 19 Dauphin Co. 383, s. c. 44 Pa. C. C. 666. In an ordinance authorizing the opening of a street, it is unneces- sary to set out the manner in which the cost of the improvement shall be paid and by vfhom paid. Ibid. Where a street is vacated it is thenceforth as if no street'had ever existed. When, after such vacation, a street is laid out on the same lines, the original loaction and payment of damages do not prevent the assessment of damages to or benefits against the present owners of said land for the re-located street: Chestnut Street, Harrisburg, 3 D. R. 497, s. c. 15 Pa. C. C. 115. ' Proceedings for the assessment of damages for the opening of streets should be commenced in the court of common pleas. Opening of Spring Street, 112 Pa. 258. A city of the third class has power to annul, vacate or discontinue a street originally laid out, opened and dedicated by the Common- wealth, whenever the municipal authorities deem it for the public good. Eichenlaub vs. City of Erie, 254 Pa. 70. It is the imperative duty of a municipality to exercise the most rigid inspection of, and scrutiny over, the proper erection and adjustment of poles and wires permitted on the city street for electrical service. The maintenance and repairs of the same also demand constant and rigid supervision, and every municipality owes such duty of rigid in- spection to its citizens. McKeesport City vs. Pass. Ry. Co., 2 Super Ct. 242. The legal vacation of a street is complete, when, in pursuance of an ordinance of council properly authorizing the same, a^ new plan from which the street is omitted is duly confirmed. Butler Street, 25 Super Ct. 357, Pulaski Avenue, 33 Super. Ct. 108. An ordinance to open or vacate a street is not invalidated because the improvements may largely benefit one property holder; nor even if procured at his instance under indemnification against the payment of damages, provided they serve a public use to the community and are not made solely for his advantage. Heller's Appeal, 17 D. R. 901, s. c. 11 Northampton Co. 217. The mere dedication of a street to public use by the owner will not make it a public highway unless it is accepted by the public and ac- tually opened upon the ground. A dedicated street becomes a pub- lic highway only to the extent to which it is actually opened and used. Oakley vs. Luz. Borough, 25 Super. Ct. 425. (48). 9. To construct and reconstruct sev^rers, and to extend the same beyond the city Hmits, in accordance with the provisions of existing laws ; and for the purpose of such construction or extension to take and occupy private lands and property, making compensation therefor to the owners thereof as required by law. See Act of June 15, 1871, P. L. 391, (Sec. 498). See Section (165). For other provisions relating to sewers see Appendix Art XLIV, Sees. (642)— (652). Cities are not bound to provide sewerage for the natural flow of the surface water, although they are invested with power to construct 46 such sewers, as in the judgment of the ofScers exercising the corporate powers, are necessary and expedient. Cooper vs. Scranton City, 21 Super Ct. 17. (49). 10. To cause to be graded, paved, or macadamized any public street, lane, or alley, or part thereof, which is now or may hereafter be laid out and opened in any of the said cities, and have the same set with curbstone ; and to provide for the payment of the costs and expenses thereof, in whole or in part, by the city, or by the owners of real estate bounding and abutting thereon, which cost and expense upon the abutting real estate shall be assessed accord- ing to the foot-front rule, or according to the benefits, as council shall by ordinance determine, except that in case of grading only, the said cost and expense shall be assessed according to benefits. When the costs and expenses, or any part thereof, are to be paid for by the foot-fi^ont rule, the city shall assess or cause to be assessed the said cost and expenses upon the real estate bounding or abutting on the line of the improvement, by an equal assessment on said prop- erty in proportion to the number of feet the same fronts on the re- spective street, lane, or alley, or part thereof, to be improved; and the council may provide for an equitable reduction from the frontage of lots at all street, alley, railroad, or like intersections, where, from the peculiar or pointed shape of the lots, an assessment for the full frontage would be inequitable and unequal. When the cost and ex- penses, or any part thereof, of any grading, paving, macadamizing, or other improvement of any street, lane, or alley, or part thereof, is to be paid for by the owners of real estate abutting or abounding as aforesaid, according to benefits, the same shall be assessed by viewers appointed by the court of common pleas, as is now or shall be hereafter provided by act of Assembly. But no ordinance shall be passed providing for the paving, macadamizing, grading, or other improvement of any street, avenue, lane, or alley, or part thereof, ai the cost and expense of the abutting property owners in whole or in part, or for the opening, widening, straightening, extending, or vacating thereof, except upon the petition of a majority in number or interest of the owners of property abutting or abounding on the line of the proposed improvement, to be verified by the affidavit of one or more of the petitioners (a majority in interest of owners of undivided interests in any piece of property to be deemed and treated as one person for the purpose of said petition), unless the ordinance for such improvement shall have been passed by the affirmative vote of at least four members of council, in which case council may direct the improvement to be made at the cost, or in part at the cost, of the owners of the abutting property, without petition : Pro- vided, however. That no such ordinance ordering any street or alley, or part thereof, to be thus improved, at the cost and expense 47 of the abutting property owners in whole or in part, without a pe- tition therefor, shall be finally passed in a less period than thirty days from {he date of its introduction ; and, in the meantime, copies of such ordinance shall be published in the official newspaper or newspapers of said cities for three consecutive weeks, once a week, immediately following the introduction thereof, and, in case said city shall have no official newspaper, then in at least one and not more than two newspapers published in the county in which such city is situate, once a week for three consecutive weeks: Provided, however, That the requirements for such publication shall not pre- clude the amendment of any paving ordinance as to the kind of pave- ment with which any street or alley, or part thereof, is proposed t(i be paved. The passage of the ordinance providing for any of the aforesaid improvements, upon petition therefor, and the publication of the names of the petitioners in one newspaper, or newspapers published in said city, and, in case no paper is published in said city, then in one newspaper published in the county in which said city is situate, by one insertion, at least five days before the passage of said ordinance, shall be conclusive that a majority in number or interest (as the case may be) have petitioned therefor. The cost and expenses of any improvement of streets and construction of sewers, done and completed under an ordinance providing for the assessment of the cost and expenses thereof under the foot-front rule, may be assessed according to benefits upon the passage of an ordinance to that effect within six months after the completion of the respective work, which assessment according to benefits shall be made in like manner and with like effect as if the original ordinance providing for the improvement had therein provided for such as- sessment. (Amendment of May 27, 1919, P. L. 310, Sec. 10). For other provisions relating to street improvements, see Appendix Sees. (521)— (578). Sec. 26, Art. XV, of the Act of May 23, 1889, P. L. 277, defines the word "owner," when used in connection with petitions for paving, as follows: "The term owner or owners is hereby declared to mean anv person or persons or bodies corporate who may own or claim the prop- erty to be affected by such improvement or assessment, in whom is vested any estate in fee-simple, fee-tail, for life, a perpetual lease hold or for a term of years, by lease or otherwise, not less than twenty years; a majority of the owners of an undivided property to con- stitute one person for the purposes of the petition." (49a). Sec. 31, Art. XV, Act of May 23, 1889, P. L. 277, amended by Sec. 35, Act of May 16, 1901, P. L. 224, in reference to notices of con- templated assessments for municipal improvements provides as fol- lows: "Whenever the cbst of local improvements of any kind in said cities of the |-hird class is to be as.scssed by the city upon the abutting prop- erties, at least five days' notice of the time and place of making the 48 assessment to pay the cost and expense of said local improvements shall be made by the person or persons authorized by councils to make said assessments, by publication in one or more newspapers for three successive days and by serving notice, either personally upon the owner if he can be found in the city, or on an adult person residing on each of the properties to be aflected by said assessment, at which time and place all parties interested shall be heard by the persons or person authorized to make said assessment. In case there is no personal ser- vice upon the owner, or an adult person cannot be found residing upon any property that may be affected by said assessment, said notice shall be deemed to have been properly served if tacked or posted conspicu- ously on the premises." (49b). Sec. 28, Art. XV of the Act of May 23, 1889, P. L. 277, as amended by Sec. 34, Act of May 16, 1901, P. L. 224, provides for the payment of assessments by instalments. This procedure was omitted in the Act of 1913. This section of the Act of 1889 is as follows: "Whenever any ordinance is passed providing for the grading, pav- ing or rracadamizing of any street, lane or alley, or part thereof, or for the construction of any sewer, the expense whereof is to be de- frayed by local assessments as herein provided, it may be prescribed in such ordinance that the assessments may be paid in not more than ten equal instalments, payable at such time as may be fixed by ordi- nance, the last thereof not to be more than ten years after the com- mencement of the work on the improvement for which it is assessed. The instalments shall bear interest at the rate of not more than six per centum per annum, commencing at such time as may be fixed by ordinance. If any of said instalments shall remain unpaid for two months after the same shall become due and payable, the whole of the assessment remaining unpaid shall be due and payable. Any person upon whom such assessment has been paid, may pay all or as many as he chooses of such instalments before the same are diie." (49c). Sec. 29, Art. XV, Act of May 23, 1889, P. L. 277, evidently refers to Sec. 28 of that act and is as follows: All assessments made in pursuance hereof shall be collected in the same manner and with the same penalties as are provided in this act for the collection of special taxes and assessments upon real estate, and it shall be lawful for councils to make and collect assessments upon real estate for the purpose aforesaid before the work is con- tracted for. See Sec. (398a). (49d). Sec. 27, Art. XV, Act of May 23, 1889, P. L. 277, provides: "In all contracts for improvements, the cost of which is to be paid by assessments upon the property abutting or benefited, the city may enter into an agreement with the contractor that he shall take an as- signment of such assessment in payment of the amount due him under the terms of his contract * * *." See Sec. (399). Under an ordinance to pave and curb the street there is an implied authority to do everything necessary or usual in curbing and paving, including such changes in the grade as are necessary or essential to the paving. Deer vs. Sheraden Borough, 220 Pa. 307. 49 Local assessments can be made only for improvements which con- fer peculiar local benefits upon property which adjoins the improve- ment, and even then they cannot be made if. the property has once before been subjected to such an assessment. Morewood Avenue, Chamber's Appeal, 159 Pa. 20. For definition of a "first paving," see City of Chester vs. Larkin, 72 Super. Ct. 204; Harrisburg vs. Segelbaum, 151 Pa. 172. While the cost of the original paving of a city street may be as- sessed against properties abutting thereon, as a species of taxation for the special benefit accruing, the repaving of such roadway being a purely public duty for the general benefit, the cost thereof cannot be imposed upon abutting properties, even though the cost of the original paving had been paid out of the city treasury. City of Williamsport vs. Beck, 128 Pa. 147; Boyer vs. City of Reading, 151 Pa. 185; Harris- burg vs. Segelbaum, 151 Pa. 172. Where an improvement of a street is made by the officers of a municipality without authority of ordinance, council may, by subse- quent ratification, validate and adopt the unauthorized act and thus legalize the contract so as to sustain municipal liens filed against abut- ting properties for the cost of the improvement. Bellevue Borough vs. Gibson, 43 Super. Ct. 561; Deer vs. Sheraden Borough, 220 Pa. 307. Taxes assessed for municipal improvements need not be assessed and collected under the same plan and scheme by which individuals are taxed for general state and city purposes. The Act of 1913, P. L. 568, is not unconstitutional. City of York vs. Eyster, 29 York, 193. The Act of 1913 does not materially change the law as it existed under Clause 10, Sec. 3, Art. V, of the Act of May 23, 1889, P. L. 277, as amended by the Act of May 16, 1901, P. L. 224, under which acts it was held that when a municipality adopted one system of payment for certain streets it was not prohibited from adopting another system for different streets. One cannot stand idly by until streets are paved and then assert that theree has been a gross abuse of discretion. York City vs. Eyster 68 Super. Ct. 104, aff. 29 York, 193. The absence of a provision for an appeal in the act authorizing as- sessments does not infringe the party's constitutional rights. Winter vs. City of Reading, 15 W. N. C. 329. Where the cost of a local improvement (a pavement), is appor- tioned amongst the adjoining lot owners according to the same rate per foot front, there is no unconstitutional discrimination, although another portion of the street was at another time paved with a cheaper pavement. Woodward vs. City of WUkes-Barre, 4 Kulp 125. In the absence of any statutory direction as to how the assessments are to be made, the power to make them is by ordinance, being an incident of the power to charge the cost of construction upon the abut- ting property. Eric vs. Flint, 8 Pa. C. C. 482. A petition for street improvement must be signed by a majority in number or interest of the abutting owners. In re Third Street, 13 D. R. 563. In assessing damages, upon the change of grade of a street, it is proper to show that the plaintiff is benefited by the establishment of a public park in that neighborhopd. Whatever affects the value of the land in the estimation of the general buyer, whether to raise or de- press it, may be shown. Bond vs. Philadelphia, 218 Pa. 475. 50 The act providing that in cities of the third class councils shall not order any street to be paved at the cost of abutting owners "unless the ordinance for such improvement shall have been passed by a vote of two-thirds of all the members of each branch of councils," is not merely directory, but is a limitation upon the power of councils. City of Bradford vs. Fox, 171 Pa. 343. (Instead of "two-thirds" of the mem- bers of council, the law now requires the vote of at least four mem- bers). The question whether a particular kind of paving is an original pav- ing or not is a question of fact in each case, but the governing consid- eration is the nature of the municipal action with regard to it. Harris- burg vs. Funk, 200 Pa. 348. If the record of a suit on a claim for paving shows that a petition was presented and an ordinance passed, the ordinance is conclusive of the fact that a majority of the owners had joined in the petition. In such case an afiSdavit of defense averring that the petition was not signed by a majority of owners is insufficient. Municipal claims for paving and other public improvements are a species of taxation, and the property owner has only such rights of contest and defense as the legislature chooses to allow him. Scranton vs. Jermyn, 156 Pa. 107. Cities of the third class have the choice, in assessing upon abutting properties, the cost of grading a street, either to make the assessment by the foot front rule or according to benefits. Scranton vs. Bush, 160 Pa. 499. The right to adopt the "foot front rule" in assessing the cost of street paving in Pennsylvania is definitely settled. Harrisburg vs. Mc- Pherran, 200 Pa. 343. A city of the third class may assess the cost of paving a street with wooden blocks on abutting property owners according to the foot front rule, where it appears that the street in question was a very old one originally in the condition of a country road, but later improved with new stone rolled down, but without any actual repaving or re- building of the roadway. Witmayer vs. Lebanon, 44 Pa. C. C. 340; s. c. 8, M. L. R. 14; 30 York 73. A city may assess the cost of paving a street upon the abutting property owners according to the "foot front" rule, and without re- gard to the actual number of square yards of pavement in front of any particular property. The fact that a street railway company has paved a portion of a street in front of a particular property, does not relieve the owner from assessment on a pro rata basis, ascertained by dividing the entire cost of the improvement in proportion to the entire number of feet of property fronting on the street. Scranton vs. Koehler, 200 Pa. 126. Section 1, of Art. IX, of the constitution which provides that all taxation must be uniform upon the same class of subjects within the territorial limits of the authority levying the tax refers only to such taxes as are levied for local improvement. York vs. Holtzapple, 29 York 134. Where the petition for the paving of a street is signed by a majority of the owners of abutting property, notice of the petition need not be published in a newspaper. Oil City" vs. Lay, 164 Pa. 370. Clause 10, Sec. 3, Art. V, of the Act of May 23, 1889, P. L. 277, in addition to authorizing the expense to be placed in whole or in part of the city, authorizes grading on the basis of benefits or grading 51 and paving on the basis of the foot front rule. But the Supreme Court held in City of Scranton vs. Pennsylvania Coal Co., 105 Pa. 445, and later confirmed in Hand vs. Fellows, 148 Pa. 455, and Scranton vs. Bush, 160 Pa. 499, that the foot front rule is not applicable to the more rural parts of territory embraced within the city limits, so that pavmg could only be done, at the costs of the owners of property, withm the built-up part of the city, where the foot front rule could be enforced. In the rural parts of the city the Act of 1891 provided a new and the only method for reaching the lot owners for paving directly, namely; on the basis of benefits. In the built-up portions the act pro- vides an additional mode of reaching the lot owners for paving, to wit: on the basis of benefits, while they were previously liable only according to frontage. The Act of 1891 is not inconsistent with the Act of May 23, 1889, P. L. 277, but only furnishes an additional remedy, and, therefore, does not repeal Clause 10, Section 3, Article V, of the latter act. Hand vs Fellows, 148 Pa. 456; McCall vs. Coates, 148 Pa. 462. Since the above decisions were rendered, which was 1892, Clause 10, Section 3, Article V, of the Act of 1889 was amended, first in 1901, P. L. 234 and again in 1903, P. L. 115, whereby the cost of paving can be collected under the 1889 act according to benefits. Clause 10, Sec- tion 3, Article V, Act of 1913 contains similar provisions. On same principle construing the Act of May 23, 1874, P. L. 230, and the Act of May 23, 1889, P. L. 277, see Scranton City vs. Bush, 150 Pa. 499. The question whether property is urban or rural, in regard to its liability for a foot front assessment for improvements, is usually for the jury, because it is one of fact; but where the facts are agreeed upon, it becomes a question of law for the court. Where it is a question of law, it should be withdrawn from the jury. City of Reading vs. Cath- arine Celia O'Reilly, et al., 169 Pa. 356. See notes to Sec. (45). (50). 11. To require owners of property abutting on anjr public street, lane, or alley to construct, pave, curb, repave, and recurb the sidewalks, and keep the same in good repair along such property, with such materials, at such grades, and under such regulations as may be prescribed by ordinance, and upon failure of such owners to comply therevv^ith upon notice, to authorize the same to be done by the city, and the expense thereof be levied and collected from such owners, with costs, which amount shall be a lien upon such premises fiom the time of the commencement of the work, which date shall be fixed by certificates of the city engineer, filed with the clerk, and may be collected by action at law, or such lien may be filed and pro- ceeded in as herein provided in the case of municipal liens, or the cost may be borne by the city in whole or in part; if in part, the rest to be collected from the owners in manner as above provided. See Sec. (165). (50a). Sec. 31, Art. XV, Act of May 23, 1889, P. L. 277, amended by Sec. 35, Act of May 16, 1901, P. L. 224, in reference to notices of contemplated assessments for municipal improvements provides as fol- lows: 52 "wnenever the cost of local improvements of any kind in said cities of the third class is to be assessed by the city upon the abutting pnp- erties, at least five days' notice of the time and place of making the assessment to pay the cost and expenses of said local improvements shall be made by the person or persons authorized by councils to make said assessments, by publication in one or more newspapers for three successive days and by serving notice, either personally upon the owner if he can be found in the city, or on an adult person residing on each of the properties to be affected by said assessment, at which time and pla»e all parties interested shall be heard by the persons or person authorized to make said assessment. In case there is no personal ser- vice upon the owner, or an adult person cannot be found residing upon any property that may be affected by said assessment, said notice shall be deemed to have been properly served if tacked or posted conspicu- ously on the premises." A city of the third class has no power, where a curb and pavement is in good condition, to require the property owners to recurb a street without regard to existing conditions, in a manner which is a departure from pre-existing regulations. When a sidewalk is once curbed and paved in accordance with the regulations of the city, the power of the city to charge, the owner for a new curb and pavement is dependent upon the condition of the old sidewalk and curb, and not upon the changed municipal regulations. Reading City vs. Heilman, 19 Super. Ct. 422. In conferring the power upon boroughs to compel each property owner to grade and pave the foot way in front of his premises, the legislature contemplated a street so nearly ready for the paving that nothing more is needed than ordinary leveling, and thus presenting a surface upon which each owner may pave at practically equal cost. Chester City vs. Lane 24 Super. Ct. 359. The property which directly abuts upon a public street is subject to the charge for construction and maintenance of a sidewalk directly in front thereof, whether the owner has the fee or only a life estate. York City vs. Beitzel, 41 Super. Ct. 194, reversing 21 York 100, 2 Leh. Co. L. J. 315. An ordinance requiring lot owners to construct sidewalks and keep the same in repair is a police regulation, and is not based on the right to subject property to local taxation. In such cases it is not material whether the property is rural or urban. Philadelphia vs. Weaver, 14 Super. Ct. 293. (51). 12. To provide for the payment of the debts and expenses of the city, and to appropriate money therefor. (52). 13. To create any office, public board, or department whicli they may deem necessary for the good government and interest of the city ; to prescribe the powers thereof, and to regulate and pre- scribe the terms, duties and compensation of all such officers, and of all officers who are members of any public board of (or) any de- partment so created. But no ordinance shall be passed increasing or diminishing the salary or compensation of an}^ officer, or of any member of any public board or department, after his or their electioti or appointment : Provided, however, That in case of the creation of 53 any public board or department, the members thereof shall, except where otherwise provided by this act, be elected or chosen by the council ; but no two persons from the same ward shall serve on the same board at the same time : Provided, That the provisions of this section as to the creation of any public board or department, and prescribing the duties thereof, shall not apply to the creation of any board of commissioners of water-works of any city whercm the title tj the water-works therein located is in the name of the^commis- sioners of water-works. This clause is constitutional. Com. vs. Elbert, 244 Pa. 535. Sec. 29, Act of May 23, 1874, P. L. 230, declared it a misdemeanor for a "watchman, and all other officers appointed by the said council * * * to ask, demand or receivee any other compensation or reward for their official services, to be followed by dismissal or forfeiture of their respective offices." A commissioner of highways appointed by the mayor, by virtue of an ordinance, is removable from office by the appointing power. Com. vs. Lynch, 22 Pa. C. C. 422. The Act of June 12, 1913, P. L. 476, relating to the appointment of a plumbing inspector in cities of the third class, is not repealed by the Act of June 27, J913, P. L. 568. Streib vs. Tyler, 44 Pa. C. C. 381; s. c. 25 D. R. 1042. A city of the third class cannot change the salary of the office of city assessor after the election or during the incumbency of the holder of the office. Devers vs. York City, 156 Pa. 359. (Sec. 2 of the Act of March 29, 1905, P. L. 71, seems to have changed this rule, but the same was again re-established by this clause. See notes to Sec. 3, Art. XV, infra Sec. (168).) See also Com. vs. Elbert, 244 Pa. 535. Policemen in cities of the third class, under the Act of 1889, are officers and not employes of the city. But they are not such officers as come within the restrictive clause in paragraph 13, Sec. V, of the Act of May 23, 1889, P. L. 277, which provides that the councils shall pass no ordinance "increasing or diminishing the salary or compensation of any officer, after his electoin or appointment." Art. VII, Sec. 4, of the act directs councils to fix the salary, and, if this is repugnant to the preceding provisions, the subsequent section must prevail. Russell vs. Williamsport, 9 Pa. C. C. 129. (53). 14. To require from all officers and agents of the city, elected or appointed, lawful bonds and security for the faithful per- formance of their duties ; and no officer or agent required by law or ordinance to give bond, as aforesaid, shall be sworn into office or enter upon the duties thereof until such bond shall have been duly approved by the proper authority. (54). 15. To provide for the removal of officers of the city whose offices are established by ordinance, and whose removal is not other- wise herein provided for. 54 (55). 16. To require the removal of all obstructions and nuis- ances from the sidewalks, curbstones, gutters, streets, public al- leys, ways, and street crossings, at the expense of the owners or Oc- cupiers of the ground fronting thereon, or at the expense of the person or persons placing the same there or causing the same; and to regulate the planting, trimming, care, and protection of shade trees in the streets, the building of cellars and basement ways, and other excavations through or under the sidewalks in said city. (Amendment of May 27, 1919, P. L. 310, Sec. 12.) (56). 17. To make and establish such and so many uniform rules and regulations as to them may seem expedient for the better regulations of porches, porticos, benches, doorsteps, railings; bulk, bay or jut windows; areas, cellar doors, and cellar windows; signs and sign posts, boards, poles or frames, awnings, awning posts, or other devices or things, projecting over, under, into, or otherwise occupying, the sidewalks or other portion of any of the streets, lanes, alleys ; and in relation to boxes, bales, barrels, hogsheads, crates, or articles of merchandise, lumber, coal, wood, ashes, building mate- rials, or any other article or thing whatsoever, placed in or upon any of the said sidewalks or other portion of said streets, lanes, or al- leys; and also to prevent and remove all encroachments thereon. (57). 18. To provide for and require the construction and main- tenance of bridges or other crossings over or under railroad tracks, and to enter into contracts with railroad companies for the construc- tion and maintenance of the same ; to require the erection of safety- gates and the placing of flagmen at the inter-section of railroads with public streets; to forbid the obstruction of the said crossings by locomotives or railroad cars; and also to make regulations con- cerning the rate of speed at which locomotives, cars, or trains shall pass upon or across the streets within the built-up portions of the city. Clause XVIII of Art. V of the Act of May 23, 1889, P. L. 277, in speaking of "regulations concerning' the rate of speed at which locomo- tives, cars or trains shall pass upon streets, etc.," used the words "reasonable regulations." See Sec. (165). For powers of City Planning Commission concerning the location of bridges, see Sees. (326) to (331) inclusive. (58). 19. To establish and maintain night-watch and police, and define the duties of the same. (59). 20. To regulate the police of the city ; and to impose fines, forfeitures, and penalties for the violation of any ordinance, and pro- vide for the recovery and collection of the same, and, in default of payment, to provide for confinement in the city or county prison, 55 or to hard labor upon the streets, or elsewhere, for the benefit of the city. The mayor and alderman of a city have power to commit to the county jail persons guilty of violating city ordinances. Burton vs. Erie Co., 206 Pa. 570. (60). 21. To provide for the erection or purchase of lockups or watch-houses in some convenient part of the city, for the detention and confinement of vagrants and persons arrested by the police of- ficers, until the persons so arrested can be taken before the proper magistrate for hearing, and committed to prison or discharged; but no person shall be detained therein for a longer time than twenty- four hours, except upon the order of a magistrate legally authorized, who may commit such person for further hearing. For powers of City Planning Commission concerning the location of public buildings within, and for three miles beyond, the city limits, see Sees. (326) to (331) inclusive. For powers of the State Art Commission over the design and loca- tion of public buildings, see Sec. (738). (61). 22, To erect or purchase, establish and maintain hospitals, prisons, workhouses, houses of correction for juvenile or other of- fenders, and to prescribe regulations for the government thereof; and also to erect all public buildings necessary for the use of the city, or of any department thereof; to purchase, or take, use, and occupy, private lands upon which to erect any of the said buildings ; to purchase, take, use, and occupy, within the limits of the respec- tive city, or within the county adjacent thereto, private lands, upon which to establish and maintain a hospital or hospitals for the treat- ment and separation of persons suffering with contagious and in- fectious diseases ; to purchase, or take, use and occupy within the limits of such city, or within the county adjacent thereto, private lands, upon which to establish and maintain a poor-farm, with all necessary and convenient buildings and appliances, where the city may support and maintain such poor persons as such city is by law required to support and maintain ; and the damages accruing by rea- son of the acquisition of any private propert)' for the purposes afore- said shall be compensated in the manner now, or which may here- after be, provided for by law, for the ascertainment and payment of damages for private property taken for public uses. See note to Sec. (60). A city of the third class has power to purchase a suitable lot of land and to erect thereon a city building in a lawful manner. Newell et al. vs. Bradford City, 18 Pa. C. C. 465. The only legal method of contracting for the purchase of property or buildings for city purposes is by means of an ordinance regularly passed as prescribed by law. The adoption by council of a report of a 56 committee recommending the purchase of a certain sight is not suffi- cient. Fuller vs. City of Scranton, 18 W. N. C. 18, affirming 1 Pa. C. C. 405. Cities may erect hospitals for contagious diseases without the city limits. The word "adjacent" construed. AUentown vs. Wagner, 214 Pa. 210, affirming 27 Super. Ct. 485. (62). 23. To establish and enforce suitable police regulations for the protection of pei"sons and property at public squares, parks, depots, depot grounds, and other places of public resort, and for the arrest and commitme"nt of professional thieves, and suspicious per- sons found in any part of the city who can give no reasonable ac- count of themselves. To provide for and pay old age pensions to such officers and employes as have been in the city's service over tv/enty years and have attained the age of seventy years. (Amendment of May 27, 1919, P. L. 310, Sec. 13.) (63). 24. To offer rewards for the arrest and conviction of per- sons guilty of capital or other high crimes v/ithin the city, but no policeman shall be entitled to receive any share thereof. (64). 25. To license, and collect a license-tax, from all skating- nnks, operas, theatres, concerts, shows, circuses, menageries, and all kinds of public exhibitions for pay (except those for religious, edu- cational or charitable purposes) ; to regulate the same, and to re- strain all exhibitions of indecent or immoral character. (65). 26. To regulate the time and place of bathing in rivers and other public water in and adjoining the said city. (66). 27. To establish stands for coaches, cabs, omnibuses, car- riages, wagons, automobiles, and other vehicles for hire, and to en- force the observance and use thereof; and to fix the rates and prices for transportation of persons and property from one part of the city to another^ (67). 28. To restrain, prohibit, and suppress tippHng shops, houses of prostitution, gambling houses, gaming, cock or dog fight- ing, and other disorderly or unlawful establishments or practices, desecration of the Sabbath day, commonly called Sunday, and all kinds of public indecencies. Sec. 20, Clause S, Act of May 23, 1874, P. L. 230, included "billard tables, bowling alleys." (68). 29. To prevent and restrain riots, noises, disturbances, or disorderly assemblies in any street, house or place in the city; to regulate, prevent, and punish the discharge of firearms, rockets, powder, fireworks, or any other dangerous combustible material, in the streets, lots, grounds, alleys, or in the vicinity of any building; to prevent and punish the carrying of concealed deadly weapons; 57' to arrest, fine, or set at work on the streets or elsewhere, all vagrants found in said city; to pervent and punish horse-racing, fast driving or riding in the streets, highways, alleys, bridges, or places in the city and all games, practices, or amusements therein likely to result in danger or damage to any person or property ; and to prevent and punish the riding or driving of horses, mules, oxen, cattle, or other teams, or the passage of any vehicle drawn thereby, or self-propelled, over and across sidewalks, and to regulate the passing of the same through the public streets. In addition to the above, Art. V, Sec. 3, CI. 29, Act of May 23, 1889, P. L. 277, includes "routs." (69). 30. To purchase and own ground for, and to erect, main- tain, and establish, market houses, milk depots, and market places, for which latter purpose parts of any streets or sidewalks may be temporarily used. To provide and enforce suitable general market regulations. To contract with any person or persons or association of persons, companies, or corporations, for the erection and regula- tion of market houses, milk depots, and market places, on such terms and conditions and in such manner as the council may prescribe, and raise all necessary revenue therefor as herein provided ; and also to levy and collect a license tax from every person or persons who may be authorized by council to occupy any portion of the streets or sidewalks for temporary market purposes. To provide for the col- lection and removal of garbage, ashes and other waste or refuse ma- terial. (Amendment of May 27, 1919, P. L. 310, Sec. 14.) The Act of April 6, 1802, P. L. 265, which seems not to be repealed, provides as follows: "From and after the passing of this act, it shall and may be lawful for any person or persons, to sell or expose to sale, provisions, vege- tables or fruit, in the markets of any city, [borough, or corporate town] within this Commonwealth: Provided always, That such provisions, vegetables, or fruit, shall not have been previously purchased within the limits of such city, [borough, or corporate town;] any law to the contrary notwithstanding." See note to Sec. (60). (70). 31. To regulate the weighing and measuring of every commodity sold in the city, in all cases^not othei-wise provided for by law, including the measuring of gas, water, and electric currents ; to provide for and regulate the inspection and weighing of hay, grain and coal, and the measuring of wood bark and fuel, to be used in the city, and to designate the place or places of inspecting and weighing the same ; and to regulate and prescribe the place or places for exposing for sale hay, coal, bark, and wood; and to demand and receive reasonable fees for inspection, weighing, and measuring, as aforesaid ; and for the regulation and stamping of weights and meas- 58 ures, and the regulation aad inspection of gas, water, and electric current meters, and other meters. For provisions relating to city inspectors of weights and measures, see Appendix Art. LXI, Sees. (989) to (997). Under Clause 31, Sec. 3, Art. V, of the Act of June 27, 1913, P. L. S68, relating to cities of the third class and providing for certain regu- lations and inspections of public service corporations, a city oi the third class is without power to pass an ordinance compelling the in- stallation of meters by and at the cost of a water company when requested so to do by any consumer without charge or expense to the consumer making the demand, the purpose of the ordinance being expressly to prevent the exaction of unjust and exorbitant charges from certain classes of consumers, as this section of the act, in so far at least as the powers conferred upon cities to regulate the powers of public service corporations are involved, was repealed by the Act of July 26, 1913, P. L. 1374, known as the Public Service Company law. The Public Service Company Law was intended to establish a com- plete and uniform system throughout the State for the enforcement of such powers as were conferred upon the Public Service Commission by that statute, and even if the act did not, as it does, so provide in express terms, it would operate as a repeal of former statutes incon- sistent with its provisions. Although cities of the third class, or any other class, may under their police power prescribe reasonable regulations as a protection to the health, lives, property and safety of their inhabitants, even as ap- plied to public service corporations, they cannot under the guise of a police regulation undertake to determine the reasonableness of rates charged by public service corporations, nor can they prescribe regu- lations relating to facilities, service and business of such corporations. These are the functions of the Public Service Commission and must be so regarded. York Water Company vs. York, 250 Pa. 115. (71). 32, To provide for the construction and maintenance of levees and ferries within the jurisdiction of any such city and within the limits thereof; to erect wharves on navigable waters adjacent to the city, regulate the use thereof, collect wharfage, and establish v/harf and dock lines; and to provide for protection against floods; to construct and maintain docks, retaining walls, dams, or embank- ments ; to remove obstructions from, deepen and widen the channels of rivers and streams flowing through or adjacent to the city; and to construct, maintain and manage municipal boat-houses and bath- houses. (Amendment of May 27, 1919, P. L. 310, Sec. 15.) See also Appendix, Art. XLVI, Sees. (675) to (677). Clause 32, Sec. 3, Art. V of the Act of May 23, 1889, P. L. 277, con- tains the word "dikes." (72). 3.3. To establish and change the channels, beds, and mouths of water-courses throtigh lands, marshes or waters in or adjacent to the city; to crib, wall, and cover them over, and to pre- vent and remove obstructions therefrom at the expense of those causing the same ; to establish, make, and regulate public wells, cis- 59 terns, aqueducts, and reservoirs and water, and to provide for filling the same ; to establish the lines of banks of streams of water which pass through or along the boundary of such cities, and by proceeding at law or equity to prevent and remove all such encroachments on the banks of streams and water-courses as threaten to or do injure said city or the property therein. For other provisions relating to water-courses see Appendix, Art. XLVII, Sees. (678) to (696). The local Act of 1860 incorporating the city of Harrisburg, authorized said city to straighten Paxton Creek within the limits of said city .and of Swatara Township. It also provided for proceedings thereunder in the court of quarter sessions for the assessment of damages, etc. Held that this act was not repealed by the General Municipal Cor- poration Act of May 23, 1874, P. L. 230. City of Harrisburg vs. Sheck, 104 Pa. 53. (73). 34. To purchase lands and premises for public parks and playgrounds, to levy and collect such special taxes as may be neces- sary to pay for the same, and to make appropriations for the im- piovement, maintenance, care, regulation, and government of parks and playgrounds owned or controlled by the city. (Amendment of May 27, 1919, P. L. 310, Sec. 16.) Clause XXXIV of Sec. 3, Art. V of the Act of May 23, 1889, P. L. 277, permitted the purchase of lands and premises for public parks, only "by and with the consent of a majority of the qualified electors, obtained at an election held therefor at a time and place to be fixed by councils," and also gave power to make "regulations for the govern- ment of parks owned or controlled by the city." Although this latter power was evidently intended to be included in the Act of 1913, the language was inadvertently misused and conveys a different meaning. Sec. 20, Clause 26, Act of May 23, 1874, P. L. 230, included the power "To establish and enforce suitable police regulations for the protection of persons and property at public squares, parks, depots, depot grounds and other places of public resort." See Art. LIII on Parks, Playgrounds, etc. For powers of the City Planning Commission concerning the location, etc., of parks and playgrounds within, and for three miles beyond, the city limits, see Sees. (326) to (331) inclusive. (74). 35. To provide for the erection of all needful pens, pounds, and buildings, within or without the city limits; to appoint keepers thereof; and to regulate or prohibit the running at large of cattle, hogs, horses, mules, sheep, goats, dogs, or other animals, also geese, ducks, chickens, fowls, et cetera; and to cause such as may be run- ning at large to be impounded, and sold to discharge the costs and penalties provided for the violations of such prohibitions and the expenses of impounding and of keeping the same and of such sale ; to regulate and provide for taxing the owners and harborers of dogs, to destroy dogs found at large contrary to any ordinance, pro- viding the owners cannot be found, or who neglect to care for such dogs. 60 This clause, so far as it relates to the taaxtion of dogs, seems to be repealed by Sees. 4 and 36 of the Act of July 11, 1917, P. L. 818. See note to Sec. (60). (75). 36. To make regulations for the enforcement of the laws of the Commonwealth relating to the control of communicable con- tagious diseases, and for the enforcement of the regulations and orders of the State Department of Health ; to make regulations to secure the general health of the inhabitants, and to remove, prevent, and abate nuisances. See also Art. XI, Sees. (132)— (148) and Appendix Art. LXVI Sees. (1034) to (1077). Neither rule of law nor statute imposes upon a municipality a duty to remove nuisances from its streets, unless they interfere with the free and lawful use of such streets by the traveling public. Whether or not a particular thing in a streeet is a nuisance that may affect an abutting owner, but not the traveling public, is a question solely for the municipal authorities. A municipal corporation is not liable to an action for damages either for the non-exercise of or for the manner in which, in good faith, it exercises discretionary powers of a public or legislative character. Malas vs. City of Coatesville, 28 D. R. 253, s. c. 10 M. L. R. 209. Cities of the third class by virtue of Clauses 36 and 46, Sec. 3, of Art. V, of the Act of June 27, 1913, P. L. S68, are empowered to ordain regulations for the collection and removal of garbage, a city, in the exercise of its power to regulate the collection and removal of garbage, has a discretion not controllable by the court, the question being not one of law, but of practical expediency. Serencse vs. Filbert, et al., 29 D. R. 190. (76). 37. To make all necessary orders and regulations to pre- vent the introduction of contagious or pestilential diseases into the city; to make quarantine laws for that purpose, and to enforce the same. Clause 37, Sec. 3, Art. V, of the Act of May 23, 1889, P. L. 277, authorizes the city to enforce the quarantine laws "within five miles . of the city limits." Where persons are quarantined under the regulations of a municipal board of health, and are unable to earn a livelihood by reason thereof, it is the duty of the municipal authorities to provide necessary food during the period of quarantine. Zellner vs. AUentown, 5 D. R. 547. ^^). 38. To purchase fire-engines, hooks, ladders, trucks, fire- alarms, and other apparatus for the extinction of fires; to organize a fire department, with or without pay; to make the necessary ap- propriation for the maintenance of the same, and to prescribe rules and regulations for the government of the officers and companies be- longing thereto; and, if a paid department, to provide by ordinance for the election or appointmeht of the officers and companies belong- ing thereto. Se« Sees. (347) to (353). 61 (78). 39. To regulate the construction and inspection of fire- places, chimneys, stoves, stovepipes, ovens, boilers, kettles, forges, or any appa:ratus used in any building, manufactory or business, and to order the suppression or cleaning thereof when deemed necessary for the prevention of fires ; to regulate and control the production and emission of unnecessary smoke from any chimney or other source, except railroad locomotives ; to regulate or prohibit the manufacture, sale, storage, or transportation of inflammable or explosive substances within the city, and to prescribe limits within which no dangerous, obnoxious, or offensive bxisiness shall be carried on. (Amendment of May 27, 1919, P. L. 310, Sec. 17). (79). 40. To provide a system for the inspection of buildings, to insure their structural or sanitary safety and incombustibility, and for the appointment of one or more building inspectors ; to pre- scribe limits within which buildings shall not be constructed, re- constructed, enlarged, or additions made, thereto, or into or within which they or any of them shall not be removed, except the same be of incombustible materials with fire-proof roofs; and any build- ing erected, reconstructed, enlarged, or having additions made thereto, or removed into or within such limits, contrary to the pro- visions of any ordinance forbidding the same, shall be a public nuisance and abatable as such, and may be restrained by injunc- tion. (80). 41. To provide for and regulate the lighting of streets with gas or electric lights, or light by other means, and to require and regulate the numbering of houses. A city of the third class may not let a contract to light the streets where the specifications, upon which the bid is based, were prescribed by a resolution which was not passed with the formalities required by law in the case of an ordinance. Touhill vs. City of Pittston, 15 D. R. 849. A city of the third class has no power to require a railroad com- pany to provide and maintain, at its own expense, electric or other lights at an intersection of its railroad, with the public streets of the municipality. Hazleton vs. L. V. R. R. Company, 11 D. R. 644. (81). 42. To have the exclusive right, at all times, to supply the city with gas or other light, and such persons, partnerships, and corporations therein as may desire the same, at such prices as may fee agreed upon ; and also to have, at all times, the unrestricted right t® make, erect, and maintain the necessary buildings, machiaery, and apparatus for manufacturing and distributing the same; or, in territory not supplied with light, to make contracts with and to authorize any person, company, or association so to do, and to give such person, compaay, or association the privilege of supplying gas ©r other light, as aforesaid, for any length ©f time not exceediag t«a years. 62 Cities of the third class may lawfully enter into a contract with an electric light company, providing for the lighting of the city streets by the latter, for the term of three years. Edison Electric Illuminating Co. vs. Jacobs, 8 Kulp 120. A city of the third class has a right to enter into a contract for lighting its streets for a term of five years. The "territory not sup- plied with light," may include the whole city or a part of it only. Black vs. City of Chester, 175 Pa. 101. Municipal contracts for an indefinite term of years will not be sanc- tioned. It appears that ten years is the general limit. Campbell vs. Paving Co. 6 Lack. L. N. 119. (82). 43. To have the exclusive right, at all times, to supply the city with vs^ater, and such persons, partnerships, and corporations therein as may desire the same, at such prices as may be agreed upon; and for that purpose to have, at all times, the unrestricted right, subject to the provisions of existing laws, to make, erect, and maintain all proper works, machinery, buildings, cisterns, reservoirs, pipes, conduits, for the raising, reception, conveyances, and distri- bution of water; or, in territory not supplied with water, to make contracts with and authorize any person, company, or association so to do, and to give such person, company, or association the privilege of furnishing water, as aforesaid, for any length of time not exceed- ing ten years : Provided, That the provisions of this section shall not apply to any city wherein the title to the water-works therein located is in the name of the commissioners of water-works. Article XII of the Act of May 23, 1889, P. L. 277, providing for a water and lighting department is not re-enacted in the Act of 1913, and appears not to be supplied. The authority and functions of the board of commissioners of the water and lighting department, which seems to have been abolished, are probably now vested in the city council, when that body chooses to exercise them. See Com. vs. El- bert, 244 Pa. 535. ARTICLE XII. Act of May 23, 1889, P. L. 277.) WATER AND LIGHTING DEPARTMENT. (82a). "Section 1. The councils of any city of the third class are hereby authorized and empowered to purchase, for such price as may be agreed upon by the councils of the city and a majority of the stock- holders of the company, all the real, personal and mixed estate of any water, gas or electric light company or companies in such city, or adjacent thereto, and thereupon the said city shall possess and ex- ercise all the rights, powers, privileges and franchises by law belong- ing or pertaining to such company or companies and may take and appropriate any stream or streams of water, spring or springs, lands, tenements, hereditaments, property and materials, near or accessible to such city, which may be necessary for the erection and maintenance of water, gas or electric light works, and for the supplying of said city with water or light, and may enter into and upon any lands, in- 63 closures, streets or highways to p of said works, . doing as little damage as possible to property, and making compensation to the owtier or owners of all species of prop- erty taken, appropriated or injured by them for the purposes afore- said, as herein provided; but the powers granted by this section shall not be exercised by councils until authority so to do shall have been given them by a majority of the voters of such city, at a special elec- tion held for that purpose, of which election the mayor shall give notice as provided for municipal elections.'' (82b). ["Section 2. Any city which now has the title to any water, gas or electric light works, by conveyance to the same in its corporate name, or which may hereafter erect or purchase water, gas or elec- tric light works under the provisions of this act, are hereby empow- ered to create a department to be called the water and lighting de- partment, and for the organization and government of the same the councils are hereby authorized and empowered to divide the city into three districts for the election of a board of commissioners, which dis- trict shall be numbered one, two and three; one commissioner to be chosen from each respective district, of which he shall be a resident at the time of his election, and no member of councils, or person hold- ing any city office, shall be eligible as a member of said board."] (This section would seem to be repealed.) (82c). ["Section 3. The councils of such city cre£^ting such de- partment as aforesaid, may on the second Monday of April, or within thirty days thereafter, in joint convention, elect one person from each of said districts, as a member of the board of commissioners of the water and lighting department; and at the first election each member of councils shall vote for but two commissioners, and the three per, sons, being one from each of said, districts, having the highest num- ber of votes shall be declared elected. The commissioners so elected shall serve for the term of one, two and three years respectively, to be computed from the date of election, and until their successors are duly elected and qualified. The term of each shall be determined by lot at the first meeting of the board, and thereafter on the second Monday of April of each year, or within thirty days thereafter, the councils shall, in joint convention elect one commissioner to serve for the term of three years."] (This section would seem to be repealed.) (82d). ["Section 4. The members of the board of commissioners created as aforesaid, shall receive such compensation for their ser- vices as may be provided by ordinance. Before entering upon thier respective duties they shall take and subscribe the oath herein pre- scribed for city officers, and they shall be removable by councils for misdemeanor in office or neglect of duty; and all vacancies occurring in the board shall be filled by councils for the unexpired term."] (This section would seem to be repealed. (82e). "Section 5. It shall be the duty of the board to take charge of the water and lighting department so created as aforesaid, and by their sole authority to employ and dismiss at pleasure a superintendent and a clerk, who shall be secretary of the board, whose compensa- tion shall be fixed by councils, and to employ such laborers, mechanics and workmen as they may deem necessary for the economical and 64 efficient administration of said department. They shall purchase such materials and supplies as may be required for keeping the works in good repair, and have charge and control of all constructions, re- pairs, enlargements and extensions of the works, and shall conduct and manage the affairs and business of the department in accordance with law and the directions of city councils." (82f). "Section 6. The said board of commissioners so created shall, whenever called upon by councils, make and submit to them full estimates of the cost, charges and expenses of any new work, enlarge- ment, extension of water or lighting supply, or alteration which coun- cils may contemplate making relative to said works; and said board may, at any time submit to councils any suggestions and estin'ates they may see proper to make touching the improvement, extension or enlargement of said works, but no new construction, re-construc- tion, extension, supply of water or light, or enlargement of said works shall be undertaken by said commissioners so created or materials or supplies be purchased therefor, without the previous consent and direction of councils.'' (82g). "Section 7. Whenever an extension of a supply of water or light to portions of the city not previously supplied shall be made by the said commissioners so created, they shall make out a full state- ment of the number of feet of main pipes laid or extended through any of the streets of the city in which main pipes were not laid before the said extension, and shall file the same in the department; and it shall be the duty of the clerk of said department, forthwith, on re- ceipt of said statement to make out a list of all owners of houses, lots and buildings on each side of the street through which said pipes are extended, and to charge said owners, and each of them, for each and every house, lot or building so situated in said streets, at such rate per foot as the city councils may by ordinance fix, for said mains extending along the front of their respective houses, lots and build- ings: Provided, That nothing herein contained shall be construed to prevent the councils from providing for the payment of water and gas pipes by the city." (82h). "Section 8. Said charge shall be called the frontage water tax, or lighting tax, as the case may be, and shall be collected and re- covered in the manner provided by this act for the recovery of munici- pal claims. And whenever any pipes for the conveyance of water or light shall be laid in any of the streets or highways, within such city, the owners of the ground in front of which the same shall be laid shall pay for the expense thereof such sum for each foot of the front of their ground upon such street as the city councils may by ordi- nance direct: Provided, That in all corner lots an allowance shall be made of one-third (1-3) the length of their front, but such allowance shall be always and only on the street or highway having the longest front and in case both fronts are of equal dimensions, the allowance shall be made in the street in which the pipes shall be last laid, but in no case shall the allowance exceed sixty (60) feet on any corner lot: And provided further. That when a corner lot shall have erected upon it two or more separate tenements, there shall only be an al- lowance made equal to one-third (1-3) of the depth of the corner tenement and the yard adjoining: And provided also, That the pro- 65 visions of this and the foregoing section shall not apply to any lot or piece of ground in such city upon which there may be a supply of water or gas obtained from any other source whatever; but if at any time the owner of such lot or piece of ground shall desire to obtain a supply of water or gas from the works of such city, then and in that case, the provisions of this section shall first be compiled with." (82i). "Section 9. The said commissioners so created shall have power by and with the approval of councils to fix the water and light- ing rates, and the quantity to be used, and for that purpose they shall, on the first Monday of March in each year, establish the rates for the succeeding year, which rates shall be submitted by them to councils for their approval, and, when approved, such rates shall not be changed for and during the year, but if not approved, the existing rates shall continue until modified by the commissioners, with the approval of councils." (82j). "Section 10. The city councils shall provide by ordinance for the collection of all the lighting and water rates that may accrue from time to time, to the said city, for the use of the water or light, fixing the time when such rates shall be payable, and the penalties for non-payment thereof; and such rates shall be charged to the re- spective owners of the real estate , on which such water or light is used, [and if the same shall not be paid in accordance with the pro- visions of such ordinance, claims for the amounts due shall be regis- tered in the city lien docket in the same manner as is herein provided in the case of unpaid city taxes on real estate, with the like force and effect as to the lien thereof."] Repealed by implication as to the filing of liens, (part in brackets), by Act of June 4, 1901, P. L. 364. See Kohler vs. Reitz 46 Super. Ct 350. (82k). "Section 11. The said commissioners, -created as aforesaid, shall annually, at a stated meeting of councils in the month of Janu- ary, report to said councils a full statement of all the repairs, altera- tions, reconstructions, new constructions, expenditures, and everything relating to the management and cost to the city of maintaining the said works. The treasurer of the city shall keep his accounts in such manner as to show in his monthly report, distinctly and separately the entire amount of revenue realized during each month from the water and lighting departments, of said city, respectively; and the revenues derived from the said water and lighting departments shall be applied exclusively to the purposes of said departments, respectively; and the surplus, if any, to the reduction of the debt thereof: Provided, Any surplus revenues from said water and lighting departments, after the payment of all debts of said respective departments, shall be applied as follows: The surplus from the water revenues, to the reduction of the bonded indebtedness which has been created by the city for the erection and construction of its water works; and the surplus from the lighting revenues, to' the reduction of any bonded indebtedness which has been created by the city for the erection and construction of its lighting plant. (Amendment of May 16, 1901, P. L. 224, Sec. 28). 66 (82-1). "Section 12. The city councils shall pass such ordinances, rules, and regulations as may be necessary for carrying into effect the provisions of this article, not inconsistent with this act, and may impose fines and penalties for the violation of such ordinances, rules and regulations, recoverable in the manner herein before provided for the recovery of fines and penalties for the violation of other city ordi- nances, and subject to the like limitation as to the amount thereof. Clauses 13 and 43 of Sec. 3, Art. 5, of the Act of June 27, 1913, P. L. S68, are not unconstitutional as special or local legislation, because of the express provision that they are not to apply to "any city wherein the title to the water works therein located is in the name of the Com- missioners of Water Works." The effect of the Act of June 27, 1913, P. L. S68, is to empower the council of third class cities, where the title to the water works therein located is not in the name of the Commissioners of Water Works, by ordinance to supersede the board of water commissioners and take into its own hands the administration of the affairs previously committed to that body. Cora. vs. Elbert, 244 Pa. 535, aff. 6 Berks Co. 159. The Act of May 23, 1874, P. L. 230, providing for the organization and government of cities of the third class, and authorizing such cities to erect and maintain water works is not repugnant to and does not repeal the Act of April 29, 1874, P. L. 73, relating to the organization of water companies for the purpose of supplying boroughs and cities with water; but Sec. 34 of the Act of April 29, 1874, P. L. 73, relating to the acquisition of water works is repealed so far as it relates to third class cities, by the Act of May 23, 1889, P. L. 277, which pro- vides the manner in which third class cities may acquire water works. White vs. City of Meadville, 177 Pa. 643. A borough ordinance granting without limit as to time permission to a water company to enter the borough and lay its pipes in the "Streets, when accepted and acted upon by the company, constitutes a contract between the borough and the company, and prevents the borough from erecting its own water works for that purpose so long as the water company continues to furnish a suitable and adequate sup- ply. Such a contract is binding on a city which annexes the borough to itself, and agrees to recognize all contracts for the supply of water made by the borough. Penna. Water Co. vs. Pittsburgh, 226 Pa. 624. (83). 44. To enter upon land or lands, lot or lots, of any person or persons, within the city, at all reasonable hours, by their duly appointed city engineer, in order to set out the foundation and regu- late the walls to be built between party and party as to the breadth and thickness thereof, which foundation shall be laid equally upon the land of the persons between whom such party wall is to be made ; and the first builder shall be reimbursed one moiety of the charge of said wall, or for so much thereof as the next builder shall have oc- casion to make use of, before such next builder shall or may use or break into said wall. The decision of the engineer of a city of the third class as to the lines of the people's property is not binding" on them. Rodearmel vs. Htitchison, 2 Pearson 324. 67 (84). 45. To enter upon the land or lands, lots or lots, of any person or persons, within the city, at all reasonable hours, by their duly appointed city engineers, in, order to regulate partition fences ; and when adjoining parties shall improve or enclose their lots, such fences shall be made in the manner generally used, and be kept in good repair at the equal expenses of the parties, unless the owners or occupants between whom such fences are erected shall agree otherwise. (85). 46. To make all such ordinances, by-laws, rules, and regu- lations, not inconsistent with or restrained by the Constitution and laws of this Commonwealth, as may be expedient or necessary for the proper management, care, and control of the city and its finances, and the maintenance of the peace, good government, safety, and welfare of the city, and its trade, commerce, manufactures, and the exercise of full and complete powers for local self-government in matters of police; and the same to alter, modify, and repeal, at pleasure; and to enforce all ordinances by inflicting penalties upon inhabitants or other persons for violations thereof, not exceeding one hundred dollars for any one ofifense, recoverable with costs, to- gether with judgment or imprisonment, not exceeding ninety days, if the amount of said judgement and costs shall not be paid. (Amendment of May 27, 1919, P. L. 310, Sec. 18). The first paragraph in Sec. 20, Act of May 23, 1874, P. L. 230, con- tains the provision "the suppression of vice and immorality," which seems to be omitted in the Acts of 1889 and 1913. There is no express or implied authority in a city to pass and en- force a penal ordinance purporting to regulate the safety devices to be adopted by a street railway, and which undertakes to enforce a higher standard than that imposed by the principles of common law. In the absence of express authority such ordinance will not be sus- tained. Mahoning & Shenango Railway & Light Company vs. New Castle, 233 Pa. 413. A city of the third class cannot enforce an ordinance laying pen- alties in excess of $100. Williamsport vs. Water Company, 7 D. R. 206. "The genera! welfare clause instead of limiting the inherent powers of municipalities in this respect, is broad enough to confer the express power to make an appropriation for the commemoration of events of great public interest in such a manner as to promote the general wel- fare of the city, and advance its trade, commerce and manufactures." Stegmaier vs. Goeringer 218, Pa. 502. A city of the third class has the power to construct a conduit or subway to accommodate all the electric wires suspended in a street O'Brien vs. City of Erie, 20 Pa. C. C. 337. A public corporation cannot make a contract to provide an enter- tainment for its citizens and guests. A controller of a city of the third class does not exceed the discretion vested in him in refusing to approve bills for expenses incurred for refreshments, entertain- ■ ments and dinners of delegates to a convention of a voluntary associa- tion known as "The League of Cities of the Third Class in Pennsyl- 6S vania," organized for the purpose of promoting remedial legislation for such cities, there being no prior usage as to the payment by the city of such expenses. Com. vs. Gingr&h, 21 Super, Ct. 286. See notes to Sec. (75). (86). 47. That the municipalities of the Commonwealth shall have power and authority to vacate, in whole or in part, all streets, lanes, and alleys within their corporate limits laid out by this Com- monwealth, whenever the same or the portion to be vacated shall have remained vinopened for a continuous period of thirty years next preceding such vacation. For powers of City Planning Commission concerning the vacation of streets within, and for three miles beyond, the city limits, see Sees. (326) to (331) inclusive. (87). 48. In the exercising the power aforesaid, all proceedings for the ascertaining of damages and the assessment of benefits inci- dent thereto shall be as now provided by law in reference to payment of costs, damages, and expenses of public improvements within muni- cipal corporations. (88). 49. To appropriate money and enter into contracts for the collection and disposal of garbage, ashes, and other waste and refuse matter, or any thereof; and to appropriate money, purchase equipment, and conduct a municipal collection and disposal of gar- bage, ashes and other waste or refuse matter, or any thereof. (Amendment of May 31, 1919, P. L. 3S8). (89). 49. To appropriate money to defray the expenses of musi- cal entertainments held under the auspices of governments of cities of the third class. (Amendment of June 4, 1919, P. L. 373). See Sec. (1033). 69 ARTICLE VI. CITY COUNCIL. (90). Section 1. The mayor and members of the city council in cities of the third class shall be at least twenty-five years of age, and shall be elected by the electors at large. They shall have been citizens and inhabitants of the city wherein they shall be elected one year next before their election, and shall reside therein during their terms of service. The mayor and members of council shall respec- tivel}'- serve for a term of four years from the first Monday of Jan- uay next succeeding their respective elections, and shall each be eligible to re-election. Mayors and councilmen in said cities, now in office, shall serve for the terms for which they were respectively elected. At the municipal elections in each of the said cities im- mediately preceding the expiration of the term of mayor thereof, the qualified electors of each such city shall elect a mayor to serve for the term of four years, and every fourth year thereafter a mayor shall be elected in each such city to serve for the term of four years. At the first municipal election held after the passage of this act, the qualified electors of each city of the third class shall elect four mem- bers of the city council. The two nominees for such office receiving respectively the highest number of votes at such election shall serve for four years from the first Monday of Januaiy next succeeding their election, and the two nominees for council at such election re- ceiving the next highest number of votes at such election shall serve during the term of two years from the first Monday of January next succeeding their election, and thereafter two councilmen shall be elected at large at each biennial municipal election to serve for the term of four years from the first Mondy of January next succeeding their election. (Amendment of May 27, 1919, P. L. 310, Sec. 19). This section and section (91) both being amendments of the same section of the Act of 1913 are identical in substance with slight varia- tions of language. See notes to the section immediately following. (91). Section 1. The mayor and members of the city council in cities of the third class shall be at least twenty-five years of age, and shall be elected by the electors at large. They shall have been resi- dents and inhabitants of the city wherein they shall be elected one year next before their election, and shall reside therein during their terms of service. The mayor and members of council shall respec- tively serve for a term of four years from the first Monday of January next succeeding their respective elections, and shall each be eligible 70 to re-election. The mayor and members of council in cities of the third class now in office shall serve for the terms for which they were respectively elected. At the municipal election in each of the said cities immediately preceding the expiration of the term of the mayor thereof, the qualified electors of each such city shall elect a mayor to serve for a term of four years, and every fourth year there- after a mayor shall be elected in each such city to serve for a term of four years. At the first municipal election held after the passage of this act the qualified electors of each city of the third class shall elect four members of city council. The two nominees for such of- fice receiving respectively the highest number of votes at such elec- -tion, shall serve for four years from the first Monday of January next succeeding their election; and the two nominees for council at such election receiving the next highest number of votes, shall serve for the term of two years from the first Monday of January next succeed- ing their election ; and 'thereafter two councilmen shall be elected at large at each biennial municipal election, to serve for a term of four years from the first Monday of January next succeeding their election. (Amendment of July 10, 1919, P. L. 903, Sec. 1.) See preceding section. Section 4 of Art. VI of the Act of May 23, 1889, P. L. 277 provides that, "Each branch (6f council) shall judge of the qualifications of its members, and contested elections shall be determined by the courts of law, in such manner as shall be directed by law, *****. A less number (than a quorum) may adjourn from time to time, ***** Each branch shall have power to vacate the seat of any of its mem- bers for misbehavior, official misconduct or neglect of duty, and shall thereupon fill such vacancy in the manner prescribed in the preceding section." There can be no question but that the qualifications of a councilman must be decided by the council to which the councilman was elected, but while the mayor is a member of council, he is not a councilman, and can be removed only by quo warranto: Gom. vs. Fischer No. 1, 26 D. R. 997; Com. vs. Fischer No. 2, 26 D. R. 1001; s. c. 45 Pa. C. C. 56. (It would seem that the power of Council to judge the qualifi- cations of its members, as it existed under the Act of May 23, 1889, was preserved by Sec. 1, Art. IV of the Act of 1913 which provides that the "council shall have and possess all powers heretofore conferred upon or vested in the select or common council ***** unless oth- erwise provided in this act.") The power of removal of an elective officer for adequate cause is not an inherent incident of municipal corporations. Such power in a municipal corporation does not exist save as it is expressly or im- pliedly given by the Constitution or by a statute. Where there is no legislative provision on the subject, municipal officers can be removed only under the circumstances prescribed by Art. VI, Sec. 4, of the Constitution: Com. ex. rel. vs. Reid et. al., 265 Pa. 329. 71 The following provisions of Art. VII, Sec. 1, Act of May 23, 1889, P. L. 277 concerning the qualifications and term of the mayor are omitted in the Act of 1913, viz: "and shall have been a citizen and inhabitant of the state four years ***** and until his successor is duly elected and qualified." Section 3 of Art. VI of the Act of May 23, 1889, P. L. 277 as amended by section 17 of the Act of May 16, 1901. P. L. 224 provides that "In case of a tie vote between two or more candidates having the highest number of votes for the same office; such candidates shall, in the presence of the branch, determine by lot which of them shall be entitled to hold the same." The Act of June 27, 1913, P. L. 568 repeals the provision in the Act of May 23, 1889, P. L. 277 that the mayor of such cities shall not be eligible to re-election for the next succeeding term: Kosek vs. Moore et al., 18 Luz. 104. The above section now specifically provides that the mayor is eligible to re-election. The office of mayor is not incompatible with that of notary public: Notary Public, 27 D. R, 820. (92). Section 2. Each member of council, including the mayor, shall have the right to vote on all questions coming before the coun- cil; but the mayor shall have no right to veto. Except as otherwise herein provided, an affirmative vote of three members shall be neces- sary in order to pass any ordinance. (Amendment of May 27, 1919, P. L. 310, Sec. 20). See section (96). (93). Section 3. The members of council shall take the oath of office prescribed by law, which oath may be administered by any person authorized to administer oaths. Three members of council shall constitute a quorum, but a smaller number may compel the attendance of absent members, under penalties to be prescribed by ordinance. The council may determine its own rules, provided said rules are not inconsistent with the Constitution and Laws of the State of Pennsylvania. See notes to section (91). (94). Section 4. The council of each of said cities of the third class shall hold stated meetings at least once in each month, and con- tinue them so long as the transaction of the public business demands, and at such other times as may be fixed by ordinance. The said council may hold special meetings at such times as any two council- men may deem proper to call the same, upon twenty-four hours notice to each member, which notice shall state whether such meet- ing is to be convened for special or general business. All meetings of council, whether regular or special, shall be open to the public. The council shall be a continuous body, and it shall be lawful for any council to complete any unfinished business or legislation begun by the preceding council. n (95). Section 5. The said council in cities of the third class shall keep a journal of its proceedings, which shall be at all times open to public inspection. Upon every vote the yeas and nays shall be called and recorded; and every motion, resolution, or ordi- nance shall be reduced to writing before the vote is taken thereon. Except where they shall be personally or privately interested, no member shall withhold his vote on any measure or question, unless he shall state his reason therefor to the council, which may excuse him and enter the reason upon the journal. See section (17). Where the journal shows the names of eight persons present (that being the entire membership) a final vote in the passage of an ordi- nance, under the Act of 1889, was taken and entered on the journal as "ayes 8, nays 0." Held, this was a sufficient compliance with the law and was "equivalent to a recording of yeas and nays by name:" The Chester Traction Co. vs. The Phila., Wilmington, and Balto. R. R. Co., 6 Del. Co. 481. Several ordinances may be voted upon at one time by a unanimous consent, one call of the yeas and nays being sufficient for all the ordinances: Daflinger vs. The Pittsburgh & Allegheny Telephone Co. and the City of Allegheny, 14 York 46; s. c. 48 P. L. J. (o. s.) 37. Where the journal fails to record the yeas and nays the ordinance is invalid: City of Reading vs. Miller, 6 Berks Co. 257, s. c. 6 M. L. R. 61; City of Corry vs. The Corry Chair Co., 18 Super. Ct. 271. (96). Section 6. Every legislative act of the council shall be by resolution or ordinance, and every ordinance or resolution which shall have passed said council shall be signed by the Mayor and attested by the dty clerk. See section (92). The Act of May 23, 1889, P. L. 277, in Art. VI, Ses. 7, provides as follows: "Every legislative act of the councils ***** shall be presented, duly certified, to the mayor for approval. If he approves, he shall sign the same, but if he shall not approve, he shall return it, with his objections, to the branch of councils wherein it originated, which shall thereupon proceed to reconsider it. If upon such reconsidera- tion two-thirds of the members elected to each branch shall pass the said ordinance or resolution, it shall become effective as though the mayor had signed the same. In all such cases the vote of councils shall be determined by yeas and nays, and the names of the members voting be duly entered upon the journals. Every ordinance or resolu- tion which the mayor shall not return within fifteen days from the date of its presentation to him, as aforesaid, shall become a law as fully and effectively as if he had approved the same. The mayor may disapprove of any item or items of any bill making appropriations, and such item or items shall be void unless repassed according to the rules herein prescribed for the passage of bills over the mayor's veto." The act of 1913, P. L. 568, having failed to confer the veto power, this provision of the act of 1889 is apparently no longer in force. See following case. 73 Quaere: Does the failure of the mayor to return the ordinance within fifteen days make the ordinance or resolution effective as a law? Under sections 6 and 7, Art. VI of the Act of June 27, 1913, P. L. 568, the mayor has no discretionary power as to the signing of ordin- ances passed by the majority of the members of council. His duty in such case is ministerial only and he may be compelled to sign by mandamus. An ordinance of the city of the third class is not ef- fective until signed by the mayor and attested by the city clerk: Com. vs. Ward, 24 D. R. 537; s. c. 12 Del. Co. 521, S Lehigh 396. Where the charter confers a power upon the municipality, and is silent as to the mode of exercising it, its exercise need not necessarily be by ordinance, but may be by resolution; C. V. Railroad Company vs. Pittston, 13 D. R. 675; s. c. 12 Luz. 89. Councils of cities of the third class may, in condemning land for park purposes, proceed either by formal ordinance or by simple joint resolu- tion; Roudebush vs. Meadville, 241 Pa. 261, affinning 40 Pa. C. C. 254. (97) . Section 7. All ordinances may be proved by the certificate of the city clerk, under the corporate seal ; and when printed or pub- lished in book or pamphlet foi'm, and purporting to be published by authority of the city, shall be read and received as evidence in all courts and places without further proof. All ordinances (shall), unless otherwise provided therein or by law, shall take effect in ten days after their passage, upon their being signed by the mayor and attested by the city clerk, and every ordinance prescribing a penalty for the violation thereof shall be forthwith published, at least three times, in not more than two newspapers printed and circulated within the city, in such manner as council may direct. All ordinances shall, within one month after their passage, be certified and recorded by the city clerk, in a book provided by the city for that purpose, which shall be at all times open to the inspection of citizens. A city ordinance is in the nature of a private statute and must be pleaded like any other matter of fact, and its terms specifically set out; the courts will not take judicial notice of it, and a mere reference to it in pleading is insufficient to bring it before the court; Torrey vs. Scranton Council, 13 Pa. C. C. 362; s. c. 2 D. R. 804; 10 Lane. 276, 5 Del. 308, 4 North. 33, 3 Lack. J. 81. (98) . Section 8. The fiscal year of each of said cities of the third class shall begin on the first Monday of January in each and every year. This section shall not take effect until the first day of Janu- ary, one thousand nine hundred and fifteen, until which date the fiscal year in each city of the third class shall remain as heretofore. (99). Section 9. The council shall, at the end of each fiscal year, cause to be published, in not more than two newspapers printed and circulated in said city, a summarized statement of the receipts and expenditures of the city during the preceding year, its present funded and floating indebtedness and the date of the maturity of the funded 74 debt, and schedule of its assets and the character and value thereof, and the amount of taxable property therein. The council may, at its discretion, cause said summarized statement to be printed in pamphlet form, instead of being published in newspapers aforesaid: Provided, The said pamphlet be supplied for general distribution and notice published in at least two newspapers that the said pamphlets may be had upon request at the office of the city clerk. (100). Section 10. The several departments of the city govern- ment shall, before the commencement of the fiscal year, present to the covincil an estimate of the probable receipts and expenditures, and of the amount required by each of said departments for the pub- lic service, during the ensuing year, and council shall then proceed to make the annual appropriation thereto. No appropriation shall be made for any purpose until the interest accruing on the funded debt of the city, and the principal of such part of said debt as may be coming due, the salaries of officers, and the ordinary and neces- sary expenses of the city, shall first be provided for. When all esti- mates for the expenditures for the ensuing year shall be finally made, council shall fix the tax rate at such figure as, with all sources of revenue, will fully meet-and cover the aggregate amount of such es- timate ; and no appropriation shall be made for any purpose in ex- cess of the estimated receipts for the current fiscal year. This section contains no implied limitation of the power of councils to contract: Black et al. vs. Chester City, 175 Pa. 101. It is not necessary for a city of the third class to actually appropriate money to pay for lands which it is proposed to take for park purposes, prior to instituting proceedings for the taking of the land: Roude- bush vs. MeadvUIe, 241 Pa. 261. (101). Section 11. The councilmen in cities of the third class shall receive for their services during their term of service annuat salaries, to be fixed by ordinance, payable in monthly instalments. Councils may, by the ordinance fixing said salaries, provide for the assessment and retention therefrom of reasonable fines for absence from regular or special meetings of council or councilmanic commit- tees. The salary paid to any councilman shall not be less than two hundred and fifty dollars per year, nor more than three thousand dol- lars per year: Provided, however, That for the term of city council- men, and until thereafter changed by ordinance, the salary of each councilman shall be as follows : — In cities of the third class of fifteen thousand inhabitants or under by the last United States census, each councilman shall receive a salary of three hundred dollars per annum; where said population is between fifteen thousand and thirty thousand, seven hundred and fifty dollars per annum; in cities having a population above thirty thousand and not exceeding fifty thousand, two thousand dollars 75 per annum ; in cities having a population of over fifty thousand, and not exceeding seventy thousand, two thousand five hundred dollars per annum; in cities having a population of over seventy thousand, three thousand dollars per annum. The council elected under the provisions of this act shall have power, by ordinance, to determine the amount of salaries to be paid in said cities. The compensation to be received by councilmen shall not be increased or diminished during the term for which they shall be elected; but succeeding councils may change all compensation, said change to take effect af- ter the expiration of term of office of the council making the change. (Amendment of May 27, 1919, P. L. 310, Sec. 21). (102). Section 12. The council shall have power to enforce the attendance of witnesses, the production of books and papers, and power to administer oaths, in the same manner and with like effect, and under the same penalties, as in the case of magistrates exercis- ing criminal or civil jurisdiction under the statutes of Penn.sylvania. (103). Section 13. The terms of office of all members of council and of all other officers in cities of the third class, who are in of- fice at the time this act becomes effective, shall cease and determine on the first Monday ,in December next succeeding the passage hereof, except wherein otherwise provided in this act: Provided, however, That city treasurers, city controllers, city solicitors, city engineers, city assessors, and city clerks, who are in office at the time of the passage hereof, shall continue to exercise their offices for the re- mainder of the terms for which they were elected, and at the expira- tion of their respective terms of office, the persons elected to succeed said officers shall hold said offices as provided in this act. 76 ARTICLE VII. EXECUTIVE DEPARTMENT. (104). Section 1. The executive and administrative powers, authority, and duties, in every city of the third class, shall be dis- tributed into and among five departments, as follows : 1. Department of Public Affairs. 2. Department of Accounts and Finance. 3. Department of Public Safety. 4. Department of Streets and Public Improvements. 5. Department of Parks and Public Property. The council shall determine the powers and duties to be performed by, and assign them to, the appropriate department; shall prescribe the powers and duties of officers and employes; may assign par- ticular officers and employes to one or more of the departments; may require an officer or employe to perform duties in two or more departments ; and may make such other rules and regulations as may be necessary or proper for the efficient and economical conduct of the business of the city. The city council may, by ordinance, supersede the board of water commissioners and take into its own hands the functions and the administration of the affairs previously committed to that body: Com. vs. Elbert, 244 Pa. 535. (105). Section 2. The mayor shall be superintendent of the de- partment of public affairs ; and the council shall, at the first regular meeting after the election of its members, designate by majority vote one councilman to be superintendent of the department of ac- counts and finance, one to be superintendent of the department of public safety, one to be superintendent of the department of streets and public improvements, and one to be superintendent of the de- partment of parks and public property; but such designation shall ■ be changed whenever it appears that the public service would be benefited thereby. (106). Section 3. The mayor shall be the chief executive magis- trate of the city. It shall be his duty to be vigilant and active in causing the ordinances of the city, and the laws of the Common- wealth relating to the government of the city, to be executed and enforced therein ; and, in order to enable him effectually to preserve 17 the public peace within the city, all the powers which are devolved by the laws of this State upon sheriffs to prevent and suppress mobs, riots, unlawful and tumultuous assembUes, are hereby conferred upon him ; and he shall have authority, upon occasions of threatened public disorder, to require and enforce the closing up of bars, or any establishments in which liquors are sold, during the continuance thereof. (107). Section 4. The mayor shall also supervise the conduct of all city officers, examine the grounds of all reasonable complaints against any of them, and cause all of their violations or neglect of duty to be promptly punished or reported to the pi-oper tribunal for correction ; and for the purpose aforesaid he is hereby empowered to issue subpoenas and compulsory process, under his official seal, for the attendance of such persons and the production of such books and papers as he may "deem necessary. He shall' have the authority, at all times, to call upon any official of the city or heads of departments for any information as to the affairs under their control and manage- ment as he may require; and he may call special meetings of the council to consider any matter which he may think proper. He shall communicate to council, from time to time as he may deem ex- pedient, a statement of the condition and affairs of the city in respect to its government, finances, and improvements, together with sug- gestions and recommendations of all such measures as he may deem conducive to the interest and welfare thereof. (Amendment of May 27, 1919, P. L. 310, Sec. 22). Art. VII, Sec. 2, of the Act of May 23, 1889, P. L. 211, also requires the mayor to "communicate to councils at their first stated meeting in January of each year." (108). Sections. The mayor shall have the criminal jurisdiction of an alderman within the city; and shall have no civil jurisdiction except in relation to actions for fines, penalties, or forfeitures, im- posed by virtue of the ordinances of the city or the laws of the Com- monwealth relating thereto. He shall have the power of a commit- ting magistrate under the acts of Assembly relating to tramps and vagrants; and shall, in addition, have authority to commit to any city or county prison, for a term not exceeding ninety days, any dis- solute or disorderly person, in default of payment of such fine or penalty as may be fixed by ordinances, with the cost of suit or ar- rest. He shall be empowered to take acknowledgments of any in- struments in writing, solemnize marriages, and administer oaths and affirmations, and shall attest all his acts with his official seal. He shall keep a docket, and shall enter therein all actions and proceed- ings had before him ; and said docket with the entries therein, and duly certified transcripts thereof, shall be received in evidence in the same manner and with like effect as the docket entries and transcripts 78 of aldermen are by law admissible for similar purposes. He shall charge and receive for all official services the same fees and costs as are allowed by law to aldermen of the city for similar services, but shall pay over the same into the city treasury monthly, accord- ing to the statements thereof, verified by oath or affirmation before the superintendent of accounts and finance, and filed with him, (Amendment of May 27, 1919, P. L. 310, Sec. 23). Under the act of May 23, 1889, P. L. 277, Sec. 3, Art. VII, the state- ments of the mayor relative to fees and costs were to be "verified by oath or affirmation before the controller and filed with Tiim." The criminal matter of which he is to have jurisdiction the same as that of an alderman is for offenses committed within the city. Where a defendant is arrested for surety of the peace committed outside the city and held for court by the mayor, the court will quash the infor- mation because of lack of jurisdiction in the mayor: Com. vs. Ferlina, 16 Just L. R. 121. The mayor has no right to deprive a person, whom he has adjudged guilty of disorderly conduct or other crime under the statutes or ordinances, of the ownership of bottles of liquor, since the beverage was a recognized article of commerce, and plaintiff's ownership of it was entitled to the same protection as any other property he might have seen fit to purchase: Souel vs. Swing, 28 D. R. 109, s. c. 47 Pa. C. C. 352. (109). Section 6. The council shall fix, by ordinance, the num- ber, rank, and compensation of the members of the city police force, and prescribe all necessary rules and regulations for the organiza- tion and government thereof in accordance with this act ; and it shall be a misdemeanor in office punishable by fine or imprisonment, either or both, for any policeman to ask, demand, or receive any other com- pensation or reward whatsoever for his official services, to be fol- lowed by dismissal from office: Provided, That members of the police force may receive and retain regards offered for the arrest of persons accused of crime committed outside of the city in which they hold office. The council may also designate, from the force, the chief and other officers, who shall serve as such officers until their successors be duly designated and qualified. The council or the mayor acting by authority and direction of council, on occasions of threatened public disorder or danger, whenever in the judgment of the council or the mayor it is necessary for the public safety or to preserve order, may appoint supernumerary or extra policemen to serve for such period as the council or the mayor may designate, not exceeding ten days, whose compensation shall be fixed by council before or at the time said appointments are made. (Amendment of May 27, 1919, P. L. 310, Sec. 24). Art. VII, Sec. 4, Act of May 23, 1889, P. L. 277, contains the follow- ing: "In case of the temporary absence of any policeman from duty, from sickness or otherwise, the mayor may appoint a substitute, to serve 79 for such period as he may designate, not exceeaing ten days, for such compensation as may be fixed by councils." Policemen however are now to be appointed and removed ander the civil service act of June 20, 1917, P. L. 618, see infra, sections (340) to (346). The civil service police act of June 20, 1917, P. L. 618, did not take away from council the power to change a policeman's appointment from that of "chief of police" to that of patrolman, where the salary remains the same: Com. ex rel Morrison vs. Peace, 27 D. R. 897, s. c. 46 Pa. C. C. 362. Councils may increase or diminish the salary or compensation of policemen during their term of office: Russell vs. Williamsport, 9 Pa. C. C. 129. Policemen are petty officers or subordinate ministerial agents or em- ployes, and as such are not included in section 4 of article 6 of the constitution of the State of Pennsylvania, which provides that "ap- pointed officers other than judges of the courts of record, and the superintendent of public instruction may be removed at the pleasure of the power by which they shall have been appointed": Com. vs. Black, 201 Pa. 433; rev. 48 P. L. J. (o. s.) 1. Where a majority of council has elected a member of the police force and the mayor refuses to sign the appointment on the groimd that an ordinance of the city authorizes appointments only from the reserve force, the appointee not being a member of the reserve, man- damus will lie to compel the signature of the mayor: McAndrew vs. Donnelly, 18 Luz. L. R. 226; s. c. 14 Just. L. R. 94. (110). Section 7. Policemen shall be ex officio constables of the city, and shall and may, without warrant and upon view, arrest and commit for hearing any and all persons guilty of breach of the peace, vagrancy, riotous or disorderly conduct or drunkenness, or who may be engaged in the commission of any unlawful act tending to imperil the personal security or endanger the property of the citizens, or violating any of the ordinances of said city for the violation of which a fine or penalty is imposed. They shall have authority to serve and execute all criminal process or processes for the violation of the city ordinances which may be issued by the mayor or any alderman, and shall charge the same fees and costs as pertain by law to the constables of the city for similar services; but the said fees and costs shall be received and collected by the mayor, and by him paid into the city treasury monthly as herein provided. Police- men shall obey the orders of the mayor and make report to him, which report shall be laid by him before council whenever i-equired. The mayor shall exercise a constant supervision and control over their conduct, and hear and determine all complaints against them in the discharge of their duties; and upon finding any such com- plaint well founded, shall submit his report thereon to council for its action, and in the meantime, pending action by council, the mayor shall have power to suspend such policeman from duty. (Amendment of May 27, 1919, P. L. 310, Sec. 25) See Sec. (345). 80 special policemen appointed by a city of the third class, at a nomi- nal salary, are not entitled to the fees of constables for the service of criminal process issued by the mayor or aldermen: Knecht vs. Northampton, 4 North. 399. Policemen of cities of the third class are ex officio constables. In addition to the right to arrest without warrant in all cases upon view, they have the power to arrest without warrant for a felony actually committed, upon reasonable suspicion of its commission, upon threat of a series assault with probability of its execution, and upon breaches of the peace of which a renewal may be expected: Com. vs. Mc Wil- liams, 21 D. R. 1131; s. c. 4 Berks 270. Fines collected under an ordinance of a city of the third class are payable to the treasurer of the city and not to the treasurer of the county in which the city is situate: County of Dauphin vs. Gross, 15 Dauphin 140. Cpuncil has jurisdiction to hear complaints against policemen only in those cases in which the mayor has first held a preliminary hear- ing, and, upon finding such complaint well founded, has submitted his report to council for its action: Buttorff vs. City of York, at al. — — Pa. ; Free vs. City of York, Pa. , affirming 34 York 42. (HI). Section 8. The council shall have the power of appoint- ment and dismissal of all employes and subordinate officers of the city, except as otherwise provided by this act. The council shall cause the mayor to issue his proclamation to the qualified electors of the city, at least ten days before the annual municipal election, stating therein the officers to be voted for at such election. Under Section 6 of Art. VII of the act of May 23, 1889, P. L. 277, the mayor had power to nominate and by and with the advice and con- sent of councils to appoint subordinate officers, except the city clerk and clerks of councils. He also had the sole power of removal. Un- der this section of the act of 1889 vacancies which occurred in such positions were filled "in like manner" as original appointments. See sections (344), (345). See notes to section (120). (112). Secion 9. If for any reason whatsoever a vacancy oc- curs, or exists at the time this amendment goes into effect, in the city council, whether as to the mayor or one or more of the other members of council, the city council shall, by its remaining members, by a majority thereof fill such vacancy, within thirty (30) days thereafter, by electing a qualified elector to serve until his successor is elected by the qualified electors at the next regular municipal election and duly sworn into office ; and the person so elected shall serve for the remainder of the term of the person originally elected to said office : Provided, That, if, by reason of a tie vote, or otherwise, such vacancy shall not have been filled by the remaining members of city council within the time as limited herein, the court of common pleas of the proper county, upon the petition of ten or more qualified electors, shall fill such vacancy or vacancies by the appointment of a qualified person, or persons, for the portion of the unexpired term 81 as above provided. Nominations of candidates for any such ofJRce shall be made at the primary preceding the said regular municipal election, in accordance with the provisions of Article XII of the act to which this is an amendment. In case vacancies should.occur whereby the ofificers of a majority of the members of the city council, including the mayor, should be- come vacant, the remaining members shall fill such vacancies, one at a time, giving the new appointee such reasonable notice of his appointment as to enable him to meet and act with the then qualified members of the city council in making further appointments until a majority of the city council has been secured, when the said ma- jority shall fill, the remaining vacancy or vacancies, at a meeting at- tended by the majority of said city council, such appointees to re- ceive a majority of the votes of the members present at any such meeting. The person or persons selected to fill such vacancy or vacancies shall hold their offices as herein provided. If at any time vacancies should occur or exist in the membership of all members of city council, including the ma}'or, the court of common pleas of the county in which such city is situate shall ap- point a city council, including a mayor, of persons properly quali- fied, who shall serve as hereinbefore provided. The member of city council who shall be designated as the super- intendent of the department of accounts and finance shall be vice- president of the city council, and acting mayor of the city during the absence or inability of the mayor to act ; and, during such absence or inability, he shall exercise all the rights and powers of the mayor; and in the event of a vacancy in the office of the mayor by reason of death, resignation, or otherwise, the vice-president of council shall, in like manner, act as the mayor until the successor of the mayor is duly elected and qualified as hereinbefore provided. (Amendment of April 6, 1917, P. L. 52). The costs of a special election held to fill a vacancy in the councils of a city of the third class are to be paid by the county in which the city is located: Starr vs. County of Delaware, 8 Del. Co. 493. (113). Section 10. All actions, prosecutions, complaints, and proceedings for the violation of the ordinances of the city, and for fines, penalties, and forfeitures imposed thereby, shall be instituted in the corporate name of the city, and be conducted in the manner prescribed by law. No warrant shall be issued except upon com- plaint, upon oath or affirmation, specifying the ordinance for the vio- lation of which the same is issued and all process shall be directed to and served by any policeman or constable of the city, who shall execute the same anywhere within the city, or in the county of which it is part, or elsewhere, as may be provided by law. Warrants shall be returnable forthwith, and every summons shall be returnable in 82 not less than five nor more than eight days from the date thereof; and, upon such return, the like proceeding shall be had in all cases as are or may be directed by law in relation to summary conviction, or proceeding for the recovery of penalties, before justices of the peace, with the same right of appeal from any final judgment en- tered therein. All fines and penalties for the violation of the city ordinances received bj' any magistrate, and all fees, costs, fines and penalties received by any alderman in cases heard before him while presiding in the mayor's police court, shall be paid over by the mag- istrate before whom the same are recovered into the city treasury, monthly, according to a statement thereof, certified by oath or af- firmation before the superintendent of finance, and filed with him. Any alderman of the city may, at the request of the mayor or acting mayor, where either is for any reason unable or unwilling to act, attend the mayor's police court, and there perform all such duties and exercise all such powers as to which he has concurrent jurisdic- tion with the mayor, and for such services shall be allowed such compensation as council shall provide. Art. VII, Sec. 8, of the Act of May 23, 1889, P. L. 277, contains the following: "Proceedings for the violation of the city ordinances may be commenced by warrant or summons at the discretion of the mayor or alderman before whom the complaint is made." An ordinance of a city of the third class, providing that "it shall be unlawful for any person to purchase within the market or market spaces, during markets, any fruit, butter, eggs, vegetables, poultry or other provisions for the purpose of selling the same" is a valid police regulation, and proceedings for its violation may be commenced either by warrant or summons, at the discretion of the mayor or alderman before whom the complaint is made: Meadville vs. Miller, 14 D. R. 27. (114). Section 11. The superintendent of the department of ac- counts and finance shall have charge and keep a record of accounts, under appropriate titles, to show separately and distinctly all of the assets and property, whatsoever vested in the city, and all trusts in care of the same, debts owing by the city, and all of the receipts and expenditures of the various departments. He shall have the supervision and control of the accounts of all the departments, and require from them at any time a statement in writing of all money or property of the city in their hands. He shall countersign all war- rants upon the city treasury, the form whereof shall be prescribed by council, and shall not suffer any appropriation made by the city council to be overdrawn, but no warrant shall be countersigned un- less there is money in the treasury to pay the same. In every case in which an appropriation shall be exhausted, and the object of which is not completed, he shall immediately report the fact to the city council ; and accompany such report with a statement of the moneys which have been drawn on such appropriation, and the particular purposes for which they were drawn. He shall furnish bond,^ in such amount and with such sureties as shall be fixed by ordinance. The duties imposed by sections (114), (115), (116), and (117) upon the Superintendent of the Department of Accounts and Finance, are largely taken from the duties imposed upon the Controller under the Act of May 23, 1889, P. L. 227. The following omissions are however to be noted. Act of May 23, 1889, P. L. 211, Sec. 2, Art. 9. "The city controller shall keep a regular set of books in which shall be opened and kept as many accounts under appropriate titles as may be necessary to show separately and distinctly ***** all appropriations made by councils and the sums under the same respectively." Act of May 23, 1889, P. L. 277. Section 3, Art. 9. "He shall have the supervision and control of the accounts of all * * * * * Bureaus and officers of the city who shall collect, receive or disburse the public monies, or who are charged with the management or custody thereof, shall audit their respective accounts, and may at any time require from any or all of them a statement in writing of any and all monies or property of the city ***** under their control; and he shall im- mediately upon the discovery of any default, irregularity or delinquency report the same to the city councils. He shall likewise audit and re- port upon the acoiints of any such officer, upon the death, resigna- tion, removal or expiration of the term of the said officer." See notes to section (124). A city cannot enter into a contract for a sum in excess of the ap- propriations and revenues of the city for the year in which the ex- penditures are to be made: Deysher vs. City of Reading, 18 Pa. C. C. 611. (115). Section 12. Whenever a warrant on the treasurer shall be presented to the superintendent of finance to be countersigned, the person presenting the same shall be, by the superintendent of finance, required to produce evidence: (1) That the amount expressed in the warrant is due to the per- son in whose favor it is drawn. (2) That the supplies or services, for payment of which the war- rant is drawn, have been furnished or performed according to law and the terms of the contract. (116). Section 13. Every contract involving an appropriation of money shall designate the item of appropriation on which it is founded, and the estimated amount of the expenditure thereunder shall be charged against such item, and so certified by the superin- tendent of finance on the contract before it shall take effect as a con- tract, and the payments required by such contracts shall be made from the fund appropriated therefor. If the superintendent of finance shall certify any contract in excess of the appropriation made therefor, the city shall not be liable for such excess, but the super- intendent of finance shall he liable for the same, which may be re- covered in an action at law by the contracting party aggrieved. It 84 shall be the duty of the superintendent of finance to certify contracts for the payment of which sufficient appropriations have been made, and he shall, within ten, days after any such certification of a con- tract, report back to the council in writing that he has or has not certified the same in accordance with the provisions of this section. (Amendment of July 15, 1919, P. L. 968). The following proviso, which has been omitted from this act, is to be noted in the Act of May 23, 1889, P. L. 277, Section S, Art. 9, as amended by Section 24 of the Act of May 16, 1901, P. L. 224, where this duty was placed upon the controller. "Provided however that this section shall not apply to contracts for public improvements here- tofore or hereafter made, the cost of which has been or shall be as- sessed in whole or in part upon the properties abutting or benefited, except as to that part of such improvements directed to be paid out of an appropriation from the city treasury." See Section (124) notes. A construction contract entered into by a city is not valid unless it has the certificate of the superintendent of finance as required by this section (116). As nothing could be lawfully done under such an invalid contract its invalidity continued when the city entered into an agreement with another contractor to complete it, and a city which has entered into a contract lacking such certificate is properly enjoined from making payments thereunder: Lamb et al. vs. City of Erie et al., 262 Pa. 391, affirming 47 Pa. C. C. 276. The Act of May 23, 1889, Art. IX, Sec. 5, P. L. 277, made it the duty of a controller of a city of the third class, when a city contract was regular on its face and was for a lawful purpose and councils had made an appropriation therefor, to charge the mount of such contract against the appropriation and so certify on the contract, and such duty was ministerial. Although the controller doubted the legality of the contract, he was required to certify it and raise the question of its legality by refusing to countersign the warrant, when its legality could be determined by mandamus against him or by an action at law on the contract: Com. vs. Brown, 13 D. R. 53; s. c. 18 York 10; Com. vs. George, 148 Pa. 463. The provision in the Act of 1889, P. L. 277, Art. IX, Sec. 5, requir- ing the controller to certify upon a contract which involved an ap- propriation of money, the estimated amount of expenditure thereunder for the ensuing fiscal year, did not interfere with the right of the municipality to make a contract for lighting streets for a term of years: Black vs. City of Chester, 175 Pa. 101. A municipal contract for paving, providing for payment partly in cash for city property and by assessments against property of abut- ting owners, is one "involving the appropriation of money" under the Act of May 23, 1889, P. L. 277, and the validity of the contract is dependent upon the performance of required functions imposed on the controller in the matter certifying the item of appropriation on which it is founded. A certificate failing to indicate the cash appro- priation and indicating only the total assessments is defective: Harris- burg vs. Shepler, 190 Pa. 374; affirming 7 Super. Ct. 491. The phrase "appropriation of money" means money belonging to the city, not money merely in its custody: Harrisburg vs. Trego, 7 Super. Ct. 511. 85 A prior appropriation by a city of the third class is essential to every contract entered into by it, in which "the appropriation of money" is involved: Com. vs. Foster, 215 Pa. 177. The purchase of a street cleaning machine by the highway commit- tee of councils of a city of the third class, is invalid, where there has been no prior action of councils on the subject, and no appropriation made for the purchase: Kindling Mach. Co. vs. York City, 54 Super. Co. 318. Cities of the third class may lawfully enter into a contract with an electric light company, providing for the lighting of the city streets by the latter, for the term of five years: Edison Elec. Ilium. Co. vs. Jacobs, 8 Kulp. 120. (117). Section 14. The superintendent of accounts and finance shall, from time to time and as often as he may deem expedient or the city council shall direct, suggest plans to the council for the management and improvement of the city finances ; and he shall make a report, verified by oath or affirmation, to the city council, at the first stated meeting in March in each year, of the public accounts of the city, and of the trusts in its care, exhibiting all of the expenditures thereof, respectively, and the sources from which the revenue and funds are derived and in what manner the same have been disbursed ; each account to be accompanied by a statement in detail of the sev- eral appropriations made by council, the amount drawn on each ap- propriation, and the balance outstanding to the debit or credit of such appropriation at the close of the fiscal year, which report shall be published in pamphlet form. He shall also, at the first stated meeting in December in each year, present to council a detailed statement of the estimated receipts, expenditures, and liabilities, of every kind, for the ensuing year, with the balance of unexpended ap- propriations, and all other information of value as a basis for fixing the levy and tax rate for the next fiscal year. The superintendent of accounts and finance shall have authority to administer oaths or af- firmations in relation to any matter touching the authentication of every account with or claim or demand against, the city, but shall not be entitled to receive any fee therefor. He shall also have t)Ower to appoint a deputy, subject to the approval of council, which shall fix the salary of said deputy, who shall also have power to administer oahts or affirmations in all matters relating to the ajRFairs of said office, but the said superintendent shall in all cases be responsible and liable for the actions and conduct of the said deputy. (Amendment of May 27, 1919, P. L. 310, Sec. 26). (118). Section 15. The mayor of each city of the third class, elected under the provisions of this act, shall receive for his ser- vices during the term of service an annual salary to be fixed by or- dinance, payable in monthly instalments. The council shall, by ordinance, fix the amount of salary to be paid to the mayor for his 86 services, ana may provide for the assessment and retention there- from of reasonable fines for absence from regular or special meetings of council or councilmanic committees. The amount of salary in cities of the third class shall not be less than five hundred dollars, nor more than three thousand five hundred dollars per year. Until changed by ordinance the salary of said mayors in cities of the third class shall be as follows: In cities having a population of fifteen thousand or under, by the last United States census, five hundred dollars per annum ; in cities having a population of over fifteen thousand, and less than thirty thousand inhabitants, one thousand two hundred dollars per annum; in cities having a population ex- ceeding thirty thousand, and not exceeding fifty thousand inhab- itants, two thousand five hundred dollars per annum; in cities hav- ing a population of over fifty thousand, and not exceeding seventy thousand inhabitants, three thousand dollars per annum; in cities having a population of over seventy thousand inhabitants, three thousand five hundred dollars per annum; and the amount of com- pensation for the mayor in any of the said cities shall not be increased or diminished during the term of office for which he shall be elected. Succeeding councils may change the amount of such compensation, but such change shall not affect the compensation of the mayor then in office. (Amendment of May 27, 1919, P. L. 310, Sec. 27). 87 ARTICLE VIII. CITY TREASURER. (119). Section 1. The council of each city of the third class shall, on the first Monday of January, Anno Domini one thousand nine hundred and twenty, and on the first Monday of January in every fourth year thereafter, elect a city treasurer, who shall hold his office for the term of four years from the said first Monday of January, and until his successor is duly elected and qualified, or until the said treasurer shall have been removed from office accord- ing to law. The city treasurer shall be a competent accountant, and shall have been a resident of the city and an elector thereof for at least three years previous to his election. He shall give lawful bond to the city, with two or more sufficient sureties, or with a surety or other company authorized by law to act as surety, to be approved by the council, in such sum as it may by ordinance direct, conditioned for the honest and faithful discharge of his official duties and the safe-keeping and payment over of all public moneys entrusted to his care. He shall receive a fixed annual salary, to be provided by ordinance. (Amendment of May 27, 1919, P. L. 310, Sec. 28). See next section. (120). Section 1. Subject to the provisions of section thirteen of article six of this act, there shall be elected, at the municipal election in the year one thousand nine hundred and nineteen, and eveiy fourth year thereafter, a city treasurer, who shall hold office for a term of four years from the first Monday of January next succeeding his election and until his successor is duly elected and qualified, or un- til the said treasurer shall have been removed from office according to law. The city treasurer shall be a competent accountant, and shall have been a resident of the city and an elector thereof for at least three years previous to his election. He shall give lawful bond to the city, with two or more sufficient sureties, or with a surety or other company authorized by law to act as surety, to be approved by the council in such sum as it may by ordinance direct, conditioned for the honest and faithful discharge of his official duties and the safe-keeping and payment over of all public moneys entrusted to his care. He shall receive a fixed annual salary, to be provided by ordinance. (Amendment of July 10, 1919, P. L. 903, Sec. 2). See previous section. The Act of July 10, 1919, P. L. 903, is silent as to the appointment of deputies and assistants. The only change it made in the Clark Act was in making the office of city treasurer elective by the people instead of by the council. The two acts must be read together and if any clerks are needed they are to be appointed by the council: Keiser vs. Hart et al., 20 Luz. L. R. R. 464. An ordinance repealing a previous ordinance which provided for a salary for a clerk to the city treasurer, was held not in violation of Par. 13, Sec. 3, Art. S of the Act of 1889, P. L. 277, which directed that "no ordinance shall be passed increasing or diminishing the sal- ary of any officer after his election or appointment": Bovaird vs. City of Bradford, 232 Pa. 600. The collection of school taxes in a city of the third class is a right or duty incident to the office of city treasurer regardless of the method by which the treasurer is chosen: Com. vs. Gritman, 255 Pa. 277, af- firming 17 Lack. 127; Mundy vs. Myers 19 Luz. 213. (121). Section 2. The city treasurer shall demand and receive all moneys payable to the city from whatever source, and shall pay all warrants duly countersigned by the superintendent of finance and the city controller. His accounts shall be kept in such manner as to clearly exhibit all the items of receipts and expenditures of the city, and the sources from whence the moneys are received and the objects for which the same are disbursed; and he shall keep separate and distinct accounts of the receipts and expenditures , of the city, the sinking-fund, and the water and lighting department, respectively, and also of every special fund which may come into his hands. No money shall be paid out of the city treasury unless the same shall have been previously appropriated by council to the purpose for which it is to be drawn, which shall be explicitly men- tioned in the warrant therefor. The treasurer shall keep the public funds in such banks or financial depositories as council may direct, under such restrictions and safeguards as council may provide, and shall verify his cash accounts monthly, or whenever required, to the satisfaction of council ; and upon any default therein he may be suspended from office, and another treasurer appointed, as council may determine. No city treasurer shall be reappointed unless and until he shall have made such settlement on his duplicates and ac- counts for the past year as shall be satisfactory to council. (Amendment of July 19, 1917, P. L. 1093, Sec. 1). An inspector of weights and measures appointed under the Act of July 24, 1913, P. L. 960 is not entitled to a salary until the council has made a previous appropriation for the purpose : Nowling vs. Newell, 65 Super. Ct. 67. (122). Section 3. The city treasurer, and every other officer of the city receiving or having in his possession any money, accounts, property, or effects belonging to the corporation, shall, upon the termination of his office, deliver the same to the city or to his duly 89 qualified successor. Any, vacancy in the office of city treasurer shall be filled by the vote of the members elected to council, and the per- son so chosen to fill the same shall serve during the unexpired term of said officer. A city of the third class may ^institute mandamus proceedings in its own name to compel the return of property by a city engineer who who has been discharged. The mandamus may issue upon application of any person beneficially interested: Com. ex rel vs. Strauch, 14 Sch. 125, s. c. 32 York 58, 47 Pa. C. C. 246. 90 ARTICLE IX. CITY CONTROLLER— CITY CLERK. See also Sees. (294), (295), (296). (123). Section 1. In cities of the third class where the term of the city controller expires on the first Monday of January in the year one thousand nine hundred and twenty, the qualified electors of the city shall, at the municipal election of the preceding year, and every four years thereafter, elect a city controller, who shall possess the qualifications herein prescribed for the city treasurer and who shall serve for the term of four years from the first Monday of January next succeeding their respective elections. In cities of the third class where the city controller was elected in the year one thousand nine hundred and seventeen to serve until the first Monday in January in the year one thousand nine hundred and twenty-two, the qualified electors of said cities shall elect a city controller at the municipal election to be held in the year one thous- and nine hundred and twenty-one, and every four years thereafter elect a controller in like manner to serve for the term aforesaid, the said terms to begin on the first Monday of January next succeeding their respective elections. (Amendment of May 27, 1919, P. L. 310, Sec. 29). Art. IX, section 1, Act of May 23, 1889, P. L. 277, in addition to fixing the term of the controller at four years provides that he shall hold his ofEce, "until his successor is duly elected and qualified." (124). Section 2. The said city controller shall examine, audit and settle all accounts whatsoever in which the city is concerned, either as debtor or creditor, and shall also examine and audit the ac- counts of all officers and departments which collect, receive, and dis- burse public moneys, or who are charged with the management, con- trol, or custody thereof, and in case he discovers any default, irregu- larity, delinquency, or mismanagement, he shall make report to the council. He shall also make report to council, on the first Monday of January in each year, and oftener if so required by council, of the audits which he shall have made of the accounts of the officers hav- ing charge, custody, control, and disbursements of public moneys, showing the balance in their hands, respectively. He shall have the power to administer oaths or affirmations in relation to any matter touching the authentication of any account, claim, or demand against 91 the city, but shall not receive any fee therefor, and the treasurer of said city shall pay no money out of the city treasury unless the warrant therefor is duly countersigned by the city controller. He shall have power to issue subpoenas to obtain the attendance of of- ficers whose accounts he is authorized to adjust, audit, and settle, and also to subpoena any person or persons who it may be neces- sary to examine as witnesses, and in case any city officer or any witness refuses to appear upon being subpoenaed, he shall report such refusal to council, and the council is hereby empowered to enact ordinances to compel the attendance of city officers and witnesses before the said city controller and to impose penalties in case of re- fusal. The city controller shall give bond, with surety to be ap- proved by council, in such sum as the council shall fix by ordinance, and he shall receive such compensation as shall be prescribed by council : Provided, however. Such compensation shall not be less than the compensation paid to members of council, which shall not be increased or diminished during his term. In case a vacancy occurs in the office of city controller thirty days or more prior to the time for holding the next fall or municipal primary election in said cities, the council shall fill the vacancy by electing a city controller to serve until the first Monday of January next succeeding the time of hold- ing said fall or municipal primary election, and the qualified electors of the city in which said vacancy exists shall, at said fall or municipal primary election, nominate and, at the succeeding fall or municipal election, elect, in the manner provided by law, a city controller, who shall serve for the regular term of four years from the first Monday of January succeeding his election; but in case the vacancy occurs less than thirty days prior to the next fall or municipal primary elec- tion, the council shall elect a city controller to serve during the re- mainder of the term of the city controller whose office has become vacant. (Amendment of May 27, 1919, P. L. 310, Sec. 30). Section 39, clause 6, Act of May 23, 1874, P. L. 230, contained the following: "He (the controller) shall perform all the duties now enjoined on the county auditors by the laws of this State, * ♦ * * *." The following provisions of the Act of May 23, 1889, P. L. 277, re- lating to the controller are not re-enacted as to this officer by the Act of June 27, 1913, F: L. S68, and its amendments. Some of them, however, are enacted as to the superintendent of finance. These so re-enacted as to the latter oificer, are shown in brackets, and include only a part of the duties and the powers of this officer, many of whose duties and powers are similar to those of the controller. 92 ARTICLE IX. (Act of May 23, 1889, P. L. 277). The City Controller. Section 1. "***** (He holds office) until his successor is duly elected and qualified. He shall superintend the fiscal concerns of the city, and shall manage the same in the manner required by the laws of this State and the ordinances and resolutions of the city councils in acordance therewith. ***** Where no such provision or an in- sufficient provision (for settlement) has been made, he shall examine such accounts and report to the city councils the facts relating thereto, with his opinion thereon ** * * *." (As amended June 21, 1911, P. L. 1102, Sec. 10). Section 2. "[The city controller shall keep a regular set of books, in which shall be opened and kept as many accounts under appropriate titles as may be necessary to show separately and distinctly all the estates and property whatsoever real and personal, vested in the city, all trusts in the care of the same,] all debts due to and [owing by the city, all the receipts and expenditures of the various departments of the city government,] and all appropriations made by councils, and the sums under the same respectively." Section 3. "[He shall have the supervision and control of the ac- counts of all departments,] bureaus and officers in the city who shall collect, receive or disperse the public moneys, or who are charged with the management or custody thereof, ***** [and may at any time require from any or all of them a statement in writing of any or all moneys or property of the city in their hands] or under their control; ***** He shall likewise audit and report the acounts of any such officer upon the death, resignation, removal or expiration of the term of a city officer." Section 4. "[He shall countersign all warrants upon the city treas- urer, the form whereof shall be prescribed by councils, and shall not suffer any appropriation made by the city councils to be overdrawn; but no warrant shall be countersigned unless there is money in the treasury to pay the same. In every case in which an appropriation shall be exhausted, and the object of which is not completed, he shall immediately report the fact to the city councils, and accompany such report with a statement of the moneys which have been drawn on such appropriation and the particular purpose for which they were drawn. Whenever a warrant on the treasurer shall be presented to him to be counter-signed, the person presenting the same shall, if the controller require, produce evidence: "1. That the amount expressed in the warrant is due to the person in whose favor it is drawn. "2. That the supplies or the services for payment of which the warrant is drawn have been furnished or performed according to law and the terms of the contract.]" Section S. "[Every contract involving an appropriation of money shall designate the item of appropriation on which is it founded, and the estimated amount of the expenditure thereunder shall be charged against such item, and »o certified by the controller on the contract, before it shall take eflFect as a contract; and the payments required by such contract shall be made from the fund appropriated therefor. If the controller shall certify any contract in excess of the appropria- tion made therefor, the city shall not be liable for such excess, but the controller and his sureties shall be liable for the same, which may be recovered in an action at law by the contracting party aggrieved. It shall be the duty of the controller to certify contracts for the pay- ment of which sufficient appropriations have been made;] Provided however, That this section shall not apply to contracts for public im- provements heretofore or hereafter made, the cost of which has been or shall be assessed in whole or in part upon the properties abutting or benefited, except as to that part of such improvements directed to be paid out of an appropriation from the city treasury." (As amended May 16th, 1901, P. L. 224, Sec. 24). Section 6. "[The city controller shall, from time to time, and as often as he may deem expedient, or the city councils shall direct, sug- gest plans to the councils for the management and improvement of the city finances, and he shall make a report, verified by oath or af- firmation to the city councils ***** of the public accounts of the city and of the trusts in its care, exhibiting all the expenditures thereof, respectively, the sources from which the revenues and funds are de- rived, and in what manner the same have been disbursed; each account to be accompanied by a statement in detail of the several appropria- tions made by councils, the amount drawn on each appropriation, and the balance outstanding to the debit or credit of such appropriations, at the close of the fiscal year, which report shall be published in pamphlet form. He shall also at the first stated meeting in January in each year, present to councils a detailed statement of the estimated receipts, expenditures and liabilities of every kind for the ensuing year, with the balance of unexpended appropriations, and all other informa- tion of value as a basis for fixing the levy and tax rate for the next fiscal year.]" (As amended May 16th, 1901, P. L. 224, Sec. 25). See sections (114), (115), (116), (117). Under the Act of May 23, 1874, P. L. 230, a city controller was vested with deliberative and discretionary powers, and was not liable to be controlled in his judgment within the scope of his authority, by any court, through the agency of a writ of mandamus or other- wise. Where the question as to who was the incumbent of a munici- pal office is pending in the Supreme Court, on error to a quo warranto proceeding in the common pleas, the city controller will not be forced by mandamus to countersign warrants for salary, drawn upon the city treasury by one of the claimants of the contested office: Runkle vs. Com., 97 Pa. 328. The court will not grant a mandamus to compel a city treasurer to pay a claim which has not been countersigned by the controller, nor the money to pay it appropriated by the city council; nor when there is no money in the treasury except what has been specifically ap- propriated, and the city's debt has reached the limit fixed by the Con- stitution: Board of Health v«. City of Harritburg, 2 Pear. 242. I« a proper case, the court might correct an error in judgment on tke part of tke comtroHer, but thsy wou'.d not by mandamus inter- fer« in advance with his discretion, or dictate the decision, wkieh in 94 a given case, he must reach. Dechert vs. Com., 18 W. N. C. 157. The controller is to examine, audit and settle all accounts, and whenever a warrant is presented he may require evidence that the sum is due, and the supplies or services were furnished or performed according to law and the terms of the contract. Where there is a dispute as to the terms of the employment and a denial that the services were rendered, his refusal to countersign* the warrant is clearly an exercise of legal discretion: Com. vs. Hitchens, 12 D. R. 752; s. c. 50 P. L. J. 332 (o. s.). A controller cannot be compelled to countersign a warrant for the payment of a sum of money in settlement of litigation against the city, where there is no formal ordinance of council appropriating the money for the payment of the claim: Com. vs. Giririch, 22 Pa. C. C. 244. Under the Act of May 2.3, 1889, P. L. 277 the city controller had no right to go behind the records of city councils to determine judicially who was elected city solicitor. Where the records of council showed that a city solicitor was duly elected, the court granted a mandamus directing the city controller to countersign the warrant for his salary: Flick vs. Harpham, 13 Pa. C. C. 648; s. c. 3 D. R. 568. Under section 5, Art. IX of the Act of May 23, 1889, P. L. 277, a paving contract between a city of the third class and a contractor which was not certified by the controller in the manner prescribed by the Act was invalid, and the contractor was a mere volunteer without tfie right to recover from the city or from the property owners: Erie vs. Moody, 176 Pa. 478. (125). Sectin 3. The council of each city of the third class is hereby authorized and directed to elect a city clerk, who shall serve for a term of four years and until his successor is duly elected and qualified, and whose compensation shall be fixed by ordinance, and he shall be removable in the manner provided by law. (Amendment of May 27, 1919, P. L. 310, Sec. 31). (126). Section 4. Any ordinance, resolution, motion, or other proceeding of council, when certified by him under the seal of the proper city, may be read in evidence in any court in this Common- wealth. He shall also have the power of a notary public to admin- ister oaths in any matter pertaining to the business of said city, or in any legal proceeding in which it is interested. He shall also per- form such other duties as shall be prescribed by ordinance or reso- lution of council. 95 ARTICLE X. CITY SOLICITOR. (127). Section 1. Subject to the provisions of article six, the council of each of said cities of the third class on the first Monday of May, Anno Domini one thousand nine hundred and twenty, and on the first Monday of May every fourth year thereafter, or as soon thereafter as practicable in each of said years, by a vote of a ma- jority of the members, shall elect one person, learned in the law, and qualified to practice in the Supreme Court of this Common- wealth, who shall be styled the city solicitor, and shall serve for the term of four years from the said first Monday of May and until his successor shall be duly qualified, unless he shall have been re- moved from office sooner in the method prescribed by law. Vac- ancies in said office shall be filled by council for the unexpired term. He shall give lawful bond to the corporation, with two or more sure- ties, or with a surety or other company authorized by law to act as surety, to be approved by council, in such sum as they shall by ordinance direct, conditioned for the faithful performance of his of- ficial duties as the same are or may be defined by law or ordinance. (Amendment of May 27, 1919, P. L. 310, Sec. 32). The provision in the Act of May 23, 1874, which directed that coun- cils should elect a city solicitor on a certain day, is directory, and an election, otherwise regular, held on another day was held valid: Com. vs. Steele, 2 North. 1. (128). Section 2. The law matters of the city shall be under the superintendence, direction, and control of the city solicitor; and no department of the city shall employ or retain any additional counsel, in any matter or cause, except with the previous assent of council. He shall keep his office within the city, and there shall be deposited and preserved therein all assurances of title, and all con- tracts, bonds, books, patents, deeds, leases, mortgages, and other evi- dence of debt belonging to the city, unless the council shall other- wise provide or direct: Provided. That the provisions of this article ten shall not apply to any Board of Commissioners of water-works of any city wherein the title to the water-works therein located is in the name of the commissioners of water-works. A city solicitor is something more than a mere legal adviser; he is a public officer under bond for performance of prescribed duties, and needs no assent of councils for his official action: Spring Brook Water Co. vr City of Plttston, 10 Kulp 406. 96 The board of health has the right to invoke the assistance of the city solicitor in prosecuting a criminal prosecution; and they have no such general authority over municipal affairs as entitles them to pass him by and employ, in the name of the city, other and inde- pendent counsel: Smith vs. Scranton, 2 Pa. C. C. 331. (129). Section 3. The city solicitor shall prepare all bonds, obligations, contracts, leases, conveyances, and assurances to v^^hich the city or any department thereof may be party, as may be directed by resolution or ordinance; shall commence and prosecute all and every suit or suits, action or actions, brought by the corporatoin, for or on account of any of the estates, rights, trusts, privileges, claims, or demands of the same, as well as defend all actions or suits against the said corporation or any officer thereof, vi^herein or whereby any of the estates, rights, privileges, trusts, ordinances, or acts of the corporation, or any department thereof, may be brought in question before any court in this Commonwealth ; and shall do all and every professional act incident to the office which he may be lawfully authorized and required to do by the mayor, or by any ordinance or resolution of the said council. He shall, whenever required, furnish the council, the committees thereof, the mayor, or the heads of departments, with his opinion, in writing, upon any question of law which may be submitted by any of them in their official ca- pacities. (130). Section 4. There shall be kept in the office of the city solicitor a city lien docket, which shall be open to public inspection, and in which he shall cause to be entered all claims for curbing, pav- ing, or repaving sidewalks, assessments of damages, contributions for opening public streets, lanes, and alleys, or parts thereof, for grading, paving and macadamizing the same, for water and lighting frontage tax and water and lighting rates, sewerage, city taxes, and other matters that may be the subject of claim on the part of the city, which have or shall be returned to the solicitor as remaining due and unpaid after the period prescribed by law or ordinance for the payment of such claims; and it shall be the duty of the head of each department, wherein any such claim shall originate, to furnish to the city solicitor, within the period prescribed by law or ordinance, a statement of all claims for curbing, paving, et cetera, which remain due or unpaid, a certified copy of which the said heads of depart- ments shall at the same time furnish to the superintendent of finance. - Upon the payment of any lien or other debt of record due the city, to any person authorized to receive the same, it shall be the duty of the city solicitor forthwith to enter satisfaction upon the proper record thereof. 97 (131). Section 5. The city solicitor shall, at least once in every month, make a return to the superintendent of finance, under oath or affirmation, of each item of moneys received by or through him, or his assistants, by virtue of his office, or on account of any matters connected therewith ; and immediately upon making such return he shall pay over the amount in his hands to the city treasurer. He shall, in like manner, pay into the city treasury all fees received by him in his official capacity; but this provision shall not be taken to include the judgment fee or commission allowed him in his capacity of attorney, under any act of Assembly of this Commonwealth. He shall receive a fixed annual salary, to be provided by ordinance. 98 ARTICLE XI. BOARD OF HEALTH. (132). Section 1. The council of any city of the third class by ordinance may create a board of health. The organization, powers,^ and duties of said board of health shall be as provided by laws now in force in relation to boards of health, except the members, officers, and subordinates thereof may be appointed by the council. (Amendment of May 27, 1919, P. L. 310, Sec. 33). For "laws in force in relation to boards of health" see notes to sec- tion 2 of this article. (133). Section 2. In all cities of the third class where the coun- cil of said city shall not elect to create, by ordinance, a board of health, as provided in section one hereof, the said council shall ex- ercise all the rights, duties, and obligations imposed by existing legislation upon boards of health in cities of the third class. Section 3, Article XI of the Act of June 27, 1913, P. L. 568, pro- vided that the city clerk "shall be ex officio secretary of the board of health, in case the council of said city shall create a board of health under the provisions of this act." This section was repealed by Sec. 34, Act of May 27, 1919, P. L. 310, thus bringing back into force the provision covering this matter found in Sec. 3, Art. XI, Act of May 23, 1889, P. L. 277, as hereinafter set forth. Sec. 1 of this article provides that "The organization, powers and duties of said board of health shall be as provided by laws now in force in relation to boards of health." Prior to the passage of this act boards of health were governed by Art. XI of the Act of May 23, 1889, P. L. 277, and several clauses of section 46 of the Act of May 23, 1874, P. L. 230. Art. XI of the Act of May 23, 1889, reads as fol- lows: ARTICLE XI. [Act of May 23, 1889, P. L. 277.] Board of Health. (134). Section 1. The councils of any city of the third class may, by ordinance, create a board of health as herein provided, with the powers and duties herein enumerated. (135). Section 2. The said board shall consist of five members, who shall serve without compensation, and none of whom shall be members of councils. At least two of their number shall be reputable physicians of not less than two years' experience in the practice of tkeir profession. The board shall be appointed by districts to be 99 fixed by councils, representing as equally as may be all portions of the city, and shall serve for the term of five years from the first Mon- day of April succeeding their appointment. The mayor shall nomi- nate, and by and with the consent of the select council appoint the members of said board, and shall in like manner remove any or all of them for oflficial misconduct or neglect of duty, and fill all vacancies for the unexpired term. At tlie first appointment the mayor shall designate one of the members to serve for one year, one to serve for two years, one to serve for three years, one to serve for four years and one to serve for five years, and thereafter one member of said board shall be appointed annually to serve for the term of five years. (136). Section 3. The members of the board shall severally take and subscribe the oath herein prescribed for city officers, and shall annually organize by the choice of one of their number as president. They shall elect a secretary, not of their body, who shall keep the minutes of their proceedings and perform such other duties as may be directed by the board, and a health officer, who shall execute the orders of the board, and for that purpose the said health officer shall have and exercise the powers and authority of a policeman of the city. The secretary and health officer shall receive such salary as may be fixed by the board, and shall hold their offices during the pleasure of the board. They shall severally give bond to the city in such sums as may be fixed by ordinance, for the faithful discharge of their duties, and shall also take and subscribe the oath required of mem- bers of the board. All fees which shall be collected or received by the board, or by any officer thereof in his official capacity, shall be paid over into the city treasury monthly, together with all penalties which shall be recovered for the vioaltion of any regulation of the board. The president and secretary shall have full power to ad- minister oaths or affirmations in any proceeding or investigation touching the regulations of the board, but shall not be entitled to re- ceive any fee therefor. (137). Section 4. The said board of health shall have power and it shall be their duty, to make and enforce all needful rules and regu- lations to prevent the introduction and spread of infectious or contag- ious diseases, by the regulation of intercourse with infected places, by the arrest, separation and treatment of infected persons, and persons who shall have been exposed to any infectious or contagious disease, and by abating and removing all nuisances which they shall deem prejudicial to the public health; to enforce vaccination, to mark in- fected houses or places, [to prescribe rules for the construction and maintenance of house drains, waste and soil pipes and cesspools], and to make all such other regulations as they shall deem necessary for the preservation of the public health. , They shall also have power, with the consent of councils, in case of the prevalence or apprehended prevalence of any contagious or infectious disease, within the city, to establish one or more hospitals and to make provision and regu- lations for the management of the same. The board may in such cases appoint as many ward or district physicians and other sanitary agents as they may deem necessary, whose salaries shall be fixed by the board before their appointment. [It shall be the duty of all physicians prac- ticing within the city to report to the secretary of the said board of health the names and residences of all persons coming under their 100 professional care afflicted with such contagious or infectious diseases, in the manner directed by the said board.] The parts enclosed in brackets seem to be supplied by Act of June 7, 1901, P. L. 493, as amended, and Act of July 17, 1919, P. L. 1010. (138). Section 5. The said board of health shall have power, as a body or by committee, as well as the health officer, together with his subordinates, assistants and workmen, under and by order of said board, to enter at any time upon any premises in the city upon which there is suspected to be any infectious or contagious disease or nuis- ance de.trimental to the public health, for the purpose of examining and abating the same and all written orders for the removal of nuisances, issued to the said health officer by order of said board at- tested by the secretary, shall be executed by him and his subordinates and workmen, and the costs and expenses thereof shall be recoverable from the owner or owners of the premises from which the nuisance shall be removed, or from any person or persons causing or maintain- ing the same, in the manner herein provided; and the amount of the cost and expense thereof shall also be a lien upon the premises which has caused, or from which the nuisance shall be removed, from the time of the commencement of the work, which date shall be fixed by certificate of the health officer, filed with the city clerk and said lien may be filed and proceeded in as herein provided in the case of municipal liens. [It shall, furthermore, be the duty of said board of health to make suitable rules and regulations, providing for the grant- ing of licenses and permits to firms, corporations, master plumbers, and journeymen, authorizing them to carry on the business of plumb- ing or house drainage in said city, and said board of health, in con- nection herewith, shall appoint a board of examiners, to consist of three competent persons, who shall examine all applicants for license, and, if after proper examination made by such board of examiners, the firm, corporation, master plumber, or journeyman plumber making application for a license or permit, in accordance with such rules, shall be found competent, the same shall be certified to the Board of Health, which shall thereupon issue a license or permf to such firm, corpora- tion, master plumber, or journeyman plumber, which shall entitle him or them to carry on said business or work in said city; and a register of all such applicants and the certificates so issued shall be kept by said Board of Health, which said register shall be open to the inspec- tion of all persons interested therein. An examination of any one member of a firm, or the proper officer of said corporation, or the superintendent or foreman to be in charge of said business for a firm or corporation, shall be deemed sufficient.] [Said firm, corporation or^ master plumber, engaged or engaging in the business or work of plumbing or house drainage, shall pay for each examination the sum of five dollars, and each journeyman shall pay the sum of fifty cents, which sum shall be paid into the city treas- ury for the use of said cities. The proper officers of said cities are hereby authorized to pay the persons acting on said board the sum of four dollars per day, for each day or session actually employed, out of the funds in the treasury of said cities not otherwise appropriated. The license granted under the provisions of this act may be revoked by said board of health when any firm, corporation, master plumber or journeyman plumber, superintendent, or foreman, shall be deemed incompetent, or for any other reasonable cause; but said firm, cor- 101 poration, master plumber, or journeyman plumber, shall be entitled to an additional examination upon the payment of the fee provided in this act.] [Any firm, corporation, master plumber or journeyman plumber, violating the provisions of this act, or any of them, shall be liable to a fine of not less than ten dollars nor exceeding fifty dollars, for each and every day he or they shall engage in and conduct said busi- ness without having saiil license or permit. Such fine shall be recov- erable before any alderman, or police magistrate in said cities by sum- mary proceedings, and shall be sued for in the name of such cities, and when collected shall be paid into the treasury thereof.] Amend- ment of May 16, 1901, P. L. 224, Sec. 27.) [The provision concerning the licensing of plumbers is largely supplied by Sec. 2, Act of June 7, 1901, P. L. 493, as amended by Sec. 2, Act of May 14, 1909, P. L. 840 and by Act of June 12, 1913, P. L. 476.] (139). Section 6. [The said board of health shall have power to create and maintain a complete and accurate system for the registra- tion of all marriages, births and deaths, which my occur within the city, and to compel obedience to the same upon the part of all phy- sicians and other medical practitioners, clergyman, magistrates, under- takers, sextons and all other persons from whom information for such purposes may properly be required.] [The board shall make and cause to be published, all necessary rules and regulations for carrying into effect the powers and- functions with which they are hereby invested, which rules and regulations, when approved by the mayor, shall have the force of ordinances of the city, and all penalties for the violation thereof, as well as ex- penses necessarily incurred in carrying the same into effect, shall be recoverable for the use of the city, in the same manner as penalties for the violation of city ordinances, subject to the like limitation as to the amount thereof.] [This section seems to be supplied, and repealed by implica- tion, by Act of June 7, 1915, P. L. 900.] (140). Section 7. It shall be the duty of the board of health to submit annually to councils before the commencement of the fiscal year, an estimate of the probable receipts and expenditures of tKe board during the ensuing year, and councils shall then proceed to make such appropriation thereto as they shall deem necessary; and the said board shall, in the month of January of each year, submit a report in writing to councils of its operations for the preceding year, with the necessary statistics thereof, together with such other infor- mation or suggestions relative to the sanitary condition and require- mens of the city as it may deem proper, and councils shall publish the same in their official journal. It shall also be the duty of the board to communicate to the State Board of Health copies of all its reports and publications, together with such sanitary information as may from time to time be required by said State Board. The provisions of section 46 of the Act of May 23, 1874 P, L. 230, which do not seem to have been supplied by the Act of May 23, 1889, P. L. 277, are as follows: — Section 46. 102 (141). "Clause 2. A majority of the whole number of members shall be a quorum; * * * • ♦." (142). "Clause 4. Whenever any building, erection, excavation, premises, business, pursuit, matter or thing, or the sewerage, drainage or ventilation thereof, in the opinion of said board of health, whether in whole or in part be in a condition or in effect dangerous to life or health, the said board may declare the same to the extent it may specify as a public nuisance or dangerous to life and health, and the said board may order the same to be removed, abated, suspended, altered or otherwise improved or purified, as said order shall specify, and shall cause said order before its execution to be served on tTie owner, agent, occupant or tenant thereof or some of them; Pro- vided, Said parties or any of them are in such city and can be found, and if the party so served shall, before its execution is commenced, apply to said board to have said order or its execution stayed or modi- fied, it shall then be the duty of said board to temporarily suspend or modify said order, and to give to such party or parties together, as the case, in the opinion of the board, may require, a reasonable and fair opportunity to be heard before said board, and to present proofs and facts against said declaration, and the execution of said order, or in favor of its modification; and the board shall enter upon its minutes such facts and proofs as it may receive, and its proceedings on such hearing, and thereafter may rescind, modify or re-affirm its said declaration, and order and require execution of said original or of a new or modified order to be made in such form and effect as it may finally determine." (143). "Clause S. The mayor shall have power, and it shall be his duty, to detail from the regular police force of such city or to make new appointments for the purpose, whenever, in the opinion of the board of health, the public health and sanitary condition of such city may require; such policemen when so detailed, or when appointed, shall be known as the "sanitary police." The number comprising the sanitary police to be determined by the board of health, according to exigencies of the circumstances, and said sanitary police shall be subject to the exclusive direction and control of said board for the enforcement of proper sanitary measures and for the promotion of the public health; whenever, in the opinion of the board of health, the services of the sanitary police are no longer required, the sanitary condition of the city being clearly such as to render their longer continuance on said duty entirely unnecessary, they shall, on recom- mendation of the board of health, be returned to duty as regular policemen or be dismissed as the mayor may direct; but no permanent increase of the police force shall be made without consent of coun- cils by ordinance, duly enacted." (144). "Clause 6. Said board may take measures and supply agents, and afford inducements and facilities for general and gratuitous vacci- nation and disinfection, and may afford medical relief to and among the poor of such city, as in its opinion the protection of the public health may require; * • * • *." (145). "Clause 8. Whoever shall violate any provision of this act or any order of said board of health, made under the authority of the same, or of any law or ordinance therein referred to, or shall obstruct 103 or interfere with any person in the execution of any order of said board, or wilfully and illegally omit to obey any such order, shall be guilty of a misdemeanor, and on conviction shall be subject to fine and imprisonment, or both, at the discretion of the court; such fine shall not exceed one hundred dollars, and such imprisonment shall not ex- ceed ninety days, and all prosecutions and proceedings against any person for a misdemeanor under this act may be had or tried before any judge or tribunal having jurisdiction of any misdemeanors within such city; and any person, corporation or body which may have done or omitted any act or thing which is in this act, or any law or ordinance therein referred to, declared to be or to subject the party guilty thereof to punishment for a misdemeanor, shall, in addition thereto, be sub- ject to a pecuniary liability in the nature of a fine in an amount not to exceed one hundred dollars, as any court of record or any justice of the peace may decide." (146). "Clause 9. Where expenses shall be incurred by the board of health, under the provisions of this act, it shall be the duty of the city council of any city, upon application and certificate from said board of health, to pass the necessary appropriating ordinances to pay the expenses so incurred and certified." (147). "Clause 10. The proceedings of the board shall be public and its journal of proceedings opcr re tbt -nspection of any tax payer." A board of health of a city has nc power to fix the salary of the health officers in a sura in excess ot the appropriation made by coun- cils therefor, and by so doing make the city liable to respond to such officer for such excess. Watt vs. Altoona, 23 Pa. C. C. 410. Before a health officer can recover for services rendered in attend- ing a family afflicted with small pox, he must show that his salary was fixed by the bo^rd of health before his appointment as a ward, district physician 1. Supplied by Art. II, Sec. 1, Act of June 27, 1913, P. L. S68. 2. Supplied by Art. II, Sec. 2, Act of June 27, 1913, P. L. 568. 1. Supplied by Art. Ill, Sec. 1, Act of June 27, 1913, P. L. 568. 2. Supplied by Art. Ill, Sec. 2, Act of June 27, 1913, P. L. 568. 3. Amended by Act of May 16, 1901, P. L. 224, Sec. 1. Supplied by Art. Ill, Sec. 3, Act of June 27, 1913, P. L. 568. 4. Supplied by Art. Ill, Sec. 4, Act of June 27, 1913, P. L. 568. 5. Amended by Acts of May 16, 1901, P. L. 224, Sec. 2, and June 21, 1911, P. L. 1102, Sec. 2. Supplied by Art. Ill, Sees. 5 and 6, Act of June 27, 1913, P. L. 568, except the fol- lowing: "and likewise determine and de- cree what ratable and equitable part or proportion of said indebtedness shall be paid by the said city to the said township and to fix the time or times on or within which any of the respective moneys, parts or portions shall be paid." See Sec. (14). IV. Sec. 1. Supplied by Art. IV, Sec. 1, Act of June 27, 1913, P. L. 568. Sec. 2. Amended by Act of May 16, 1901, P. L. 224, Sec. 3. Supplied by Art. IV, Sec. 2, Act of June 27, 1913, P. L. 568, except the following: "No bill shall be considered unless referred to a joint or separate committee, returned therefrom, and printed for the use of the members." It would appear that printing of bills is no longer required as Art. VI, Sec. 5, of the Act of June 27, 1913, P. L. 568, requires that ordinances, etc., shall be reduced to writing before a vote is taken thereon. With only one branch in the present coun- cil composed of but five members, refer- ence to committee would seem unneces- sary. Art. IV, Sec. 2, of the Act of June 27, 1913, omits the word "clearly" in the clause re- lating to the title to ordinances. 11 161 Article IV— (Continued). Sec 3. Supplied by Art. IV, Sec. 3, and Art VI, Sec. 5, Act of June 27, 1913, P. L. S68. •Sec. 4. Obsolete. Sec. 5. Supplied by Art. IV, Sec. 4, Act of June 27, 1913, P. L. 568. Sec. 6. Amended by Act of May 16, 1901, P. L. 224, Sec. 4. Supplied by Art. IV, Sec. 5, Act of June 27. 1913, P. L. 568. Sec. 7. Re-enacted by Art. IV, Sec. 6, Act of June 27, 1913, P. L. 568. Sec' 8. Re-enacted by Art. IV, Sec. 7, Act of June 27, 1913, P. L. 568. Sec. 9. Re-enacted by Art. IV, Sec. 8, Act of June 27, 1913, P. L. 568. Sec. 10. Supplied by Art. IV, Sec. 9, Act of June 27. 1913, P. L. 563, except that the words "the branch of which he is a member" was changed to read "to council" to comply with the change to the one branch council. Sec. 11. Amended May 16, 1901, P. L. 224, Sec. 5. Supplied by Art. IV, Sec. 10, Act of June 27, 1913, P. L. 568. Sec. 12. Supplied by Art. IV, Sec. 11, Act of Jime 27. 1913, P. L. 568. Sec. 13. Supplied by Art. IV. Sec. 12, Act of June 27, Sec. 14. Supplied by Art. IV. Sec. 13, Act of June 27. 1913. P. L. 568. Sec. IS. Supplied by Art. IV, Sec. 14, Act of June Zl, 1913, P. L. 568. Sec. 16. Amended by Act of June 21, 1911, P. L. 1102, Sec. 3. Supplied by Art. IV, Sec. 15, Act of June 27. 1913, P. L. 568. Sec. 17. Amended by Act of June 21, 1911, P. L. 1102, Sec. 4. Supplied by Art. IV, Sec. 16, Act of June 27. 1913, P. L. 568. Sec. 18. Amended by Act of June 21, 1911, P. L. 1102. Sec. 5. Supplied by Art. IV, Sec. 17. Act of June 27, 1913, P. L. 568, except that the latter act refers to "council" or "the council" instead of "councils" or "the respective branch." Article V. Sec. 1. Re-enacted by Art. V, Sec. 1, Act of June 27. 1913, P. L. 568. Sec. 2. Supplied by Art. V, Sec. 2, Act of June 27, 1913, P. L. 568. The word "councilmen" is used instead of "councils." 162 A„ Article V — (Continued). Sec. 3. CI. 1. Re-enacted by Art, V, Sec. 3, clause 1, Act of June 27, 1913, P. L. 568. CI. 2. Re-enacted by Art. V, Sec. 3, clause 2, Act of June 27, 1913, P. L. 568. CI. 3. Re-enacted by Art. V, Sec. 3, clause 3, Act of June 27, 1913, P. L. 568. CI. 4- Amended by Act of May 16, 1901, P. L. 224, Sec. 6. Supplied by Art. V, Sec. 3, clause 4, Act of June 27, 1913, P. L. 568, which as amended by Act of May 27, 1919, P. L. 310, Sec. 9, omits the phrase "agents of fire, life or other insurance companies." This phrase in the Act of 1889 was repealed by the Act of May 3, 1915, P. L. 217. CI. 5. Re-enacted by Art. V, Sec. 3, clause 5, Act of June 27, 1913, P. L. 568. CI. 6. Supplied by Art. V, Sec. 3, clause 6, Act oi June 27, 1913, P. L. 568. This clause of the Act of 1889 has a phrase reading "for the application of bonds already issued by cities hereafter incorporated." In the Act of 1913 this is changed so as to apply to cities "heretofore incorporated." The reading of the act of 1889 was evidently an error. CI. 7.-' Re-enacted by Art. V, Sec. 3, clause 7, Act of June 27, 1913, P. L. 568. CI. 8. Amended by the Act of May 16, 1901, P. L. 224, Sec. 7. Supplied by Art. V, Sec. 3, clause 8, Act of June 27, 1913, P. L. 568. CI. 9. Supplied by Art. V, Sec. 3, clause P, Act of June 27, 1913, P. L. 568. CI. 10. Amended by Act of May 16, 1901, P. L. 224, and March 30, 1903, P. L. 115, Sec. 1. Supplied by Art. V, Sec. 3, clause 10, Act of June 27, 1913, P. L. 568. CI. 11. Amended by Act of May 16, 1901, P. L. 224, Sec. 9. Re-enacted by Art. V, Sec. 3, clause 11, Ac: of June 27, 1913, P. L. 568. CI. 12. Re-enacted by Art. V, Sec. 3, clause 12, Act of June 27, 1913, P. L. 568. CI. 13. Amended by Act of June 9, 1891, P. L. 255, and May 16, 1901, P. L. 224, Sec. 10. Supplied by Art. V, Sec. 3, clause 13, Act ^ of June 27, 1913, P. L. 568. The words "the select and common coun- cils in joint convention" were changed to "the council." 163 Article V— (Continued). CI. 14. Re-enacted by Art. V, Sec. 3, clause 14, Act of June 21, 1913, P. L. 568. CI. IS. Re-enacted by Art. V, Sec. 3, clause 15, Act of June 27, 1913, P. L. 568. CI. 16. Re-enacted by Art. V, Sec. 3, clause 16, Act of June 21, 1913, P. L. 568. CI. 17. Re-enacted by Art. V, Sec. 3, clause 17, Act of June 27, 1913, P. L. 568. CI. 18. Supplied by Art. V, Sec. 3, clause 18, Act of June 27, 1913, P. L. 568. The word "reasonable" was omitted by the Act of 1913. CI. 19. Re-enacted by Art. V, Sec. 3, clause 19, Ac( of June 27, 1913, P. L. 568. CI. 20. Re-enacted by Art. V, Sec. 3, clause 20, Act of June 27, 1913, P. L. 568. CI. 21. Re-enacted by Art. V, Sec. 3, clause 21, Act of June 27, 1913, P. L. 568. CI. 22. Amended by Act of March 30, 1903, P. L. 115, Sec. 2. Re-enacted by Art. V, Sec. 3, clause 22, Act of June 27, 1913, P. L. 568. CI. 23. Re-enacted by Art. V, Sec. 3, clause 23, Act of June 27, 1913, P. L. 568. CI. 24. Re-enacted by Art. V, Sec. 3, clause 24, Act of June 27, 1913, P. L. 568. CI. 25. Amended by Act of May 16, 1901, P. L. 224, Sec. 11.' Re-enacted by Art. V, Sec. 3, clause 25, Act of June 27, 1913, P. L. 568. CI. 26. Re-enacted by Art. V, Sec. 3, clause 26, Act of June 27, 1913, P. L. 568. CI. 27. Re-enacted by Art. V, Sec. 3, clause 27, Act of June 27, 1913, P. L. 568. CI. 28. Re-enacted by Art. V, Sec. 3, clause 28, Act of June 27, 1913, P. L. 568. CI. 29. Re-enacted by Art. V, Sec. 3, clause 29, Act of June 27, 1913, P. L. 568, except the word "routs" and the word "upon" before the word "'sidewalks" are omitted. See Sec. (68). CI. 30. Supplied by Art. V, Sec. 3, clause 30, Act of June 27, 1913, P. L. 568. The word "public" after the word "tem- porary" is omitted. C. 31. Re-enacted by Art. V, Sec. 3, clause 31, Act of June 27, 1913. P. L. 568. CI. 32. Amended by Act of May 16, 1901, P. L. 224, Sec. 12. Supplied by Art. V, Sec. 3, clause 32, Act of June 27, 1913, P. L. 568. The rrord "dikes" is omitted in the latter »ct. See Sac. (71). 164 Article V — (Continued). CI. 33. Amended by Act of May 16, 1901, P. L. 224, Sec. 13. Supplied by Art. V, Sec. 3, clause 33, Act of June 27, 1913, P. L. 568. CI. 34. Partly supplied by Art. V, Sec. 3, clause 34, Act of June 27, 1913, P. L. 568. The clause reading as follows: "by and with the consent of a majority of the qualified electors obtained at an election held there- for at ' a time and place to be fixed by councils," is omitted in the latter act. This clause of the Act of 1889 also contained a power to make "regulations for the gov- ernment of parks owned or controlled by the city." The Act of 1913 evidently was intended to vest similar power, but the language differs somewhat. See Sec. (73). CI. 35. Re-enacted by Art. V, Sec. 3, clause 35, Act of June 27, 1913, P. L. 568. CI. 36. Re-enacted by Art. V, Sec. 3, clause 36, Act of June 27, 1913, P. L. 568. CI. 37. Partly supplied by Art. V, Sec. 3, clause 37, Act of June 27, 1913, P. L. 568, which omits the clause "within five miles of the city limits." CI. 38. Re-enacted by Art. V, Sec. 3, clause 38, Act of June 27, 1913, P. L. 568. CI. 39. Re-enacted by Art. V, Sec. 3, clause 39, Act of June 27, 1913, P. L. 568. CI. 40. Amended by Acts of May 16, 1901, P. L. 224, Sec. 14, and March 30, 1903, P. L. 115, Sec. 3. I Re-enacted as amended by Art. V, Sec. 3, clause 40, Act of June 27, 1913, P. L. 568. CI. 41. Re-enacted by Art. V, Sec. 3, clause 41, Act of June' 27, 1913, P. L. 568. CI. 42. Re-enacted by Art. V, Sec. 3, clause 42, Act of June 27, 1913, P. L. 568. CI. 43. Re-enacted by Art. V, Sec. 3, clause 43, Act of June 27, 1913, P. L. 568. CI. 44. Re-enacted by Art. V, Sec. 3, clause 44, Act of June 27, 1913, P. L. 568. CI. 45. Re-enacted by Art. V, Sec. 3, clause 45, Act of June 27, 1913, P. L. 568. CI. 46. Amended by Act of May 16, 1901, P. L. 224, Sec. IS. Supplied by Art. V, Sec. 3, clause 46, Act of June 27, 1913, P. L. 568. CI. 47. Amended by Act of May 16, 1901, P. L. 224, Sec. 16. Supplied by Art. XVI, Sec. 1, Act of June 27, 1913, P. L. 568. 165 Article VI. Sec. 1. Supplied by Art. VI, Sees. 1 and 11, Act June 27, 1913, P. L. 568. Sec. 2. Amendedby Act of June21, 1911, P. L. IK Sec. 6. Partly obsolete. Remainder supplied 1 Art. VI, Sec. 1, Art. VIII, Sec. 1, and A, IX. Sec. 1, Act of June 27, 1913, P. L. Sf Sec. 3. Amended by Act of May 16, 1901, P. L. 22 Sec. 17. Partly obsolete. Partly supplied by Ai VI, Sec. 1, and Art. VII, Sec. 9, Act June 27, 1913, P. L. 568. The following clause seems to be omitt( by the Act of 1913: "In case of a t vote between two or more candidates ha ing the highest number of votes for tl same office, such candidates shall in tl presence of the branch, determine by li which of them shall be entitled to hold tl same." See Sec. (91). Sec. 4. Partly supplied by Art. VI, Sees.- 3 and Act of June 27, 1913, P. L. 568. The following provisions are omitted by tf Act of 1913: "Each branch shall judg of the qualifications of its members, an contested elections shall be determined b the courts of law in such manner as sha be directed by law. * * * * *A less nun ber may adjourn from time to time. * * * * Each branch shall have power to v; cate the seat of any of its members fi misbehavior, official misconduct, or neglei of duty, and shall thereupon fill sue vacancy in the mannej, prescribed in tl preceding section." See Sec. (91). Sec. 5. Supplied by Art. VI, Sec. 4, Act of June 2 1913. P. L. 563. Sec. 6. Supplied by Art. VI, Sec. 5. Act of Jui 27, 1913, P. L. 568. Sec. 7. Partly supplied by Art. VI, Sec. 6, Act i June 27, 1913, P. L. 568. The following is omitted in the Act of 191 but is evidently no longer in fore "Every legislative act of the councils * * * * shall be presented, duly certified, I the mayor for approval. If he approve he shall sign the same, but if he sha not approve, he shall return it, with h objection, to the branch of councils wher in it originated, which shall thereupon pr< ceed to reconsider it. If upon such r consideration two-thirds of the membei elected to each branch shall pass the sa ordinance or resolution, it shall becon 166 Article VI — (Continued). eflEective as though the mayor had signed the same. In all such cases the vote of councils shall be determined by yeas and nays, and the names of the members voting be duly entered upon the journals. Every ordinance or resolution which the mayor shall not return within fifteen days from the date of its presentation to him, as aforesaid, shall become a law as fully and effectively as if he had approved the same. The mayor may disapprove of any item or items of any bill making appro- priations, and such item or items shall be void unless repassed according to the rules herein prescribed for the passage of bills over the mayor's veto." See notes to Sec. (96). Sec. 8. Supplied by Art. VI, Sec. 7, Act of June 27, 1913, P. L. 568. Sec. 9. Supplied by Art. VI, Sees. 8 and 9, Act of June 27, 1913, P. L. 568. Sec. 10. Supplied by Art. VI, Sec. 10, Act of June 27, 1913, P. L. 568. Sec. 11. Amended by Act of May 16, 1901, P. L. 224. Sec. 18 and March 30, 1903, P. L. 115, Sec. 4. This section is obsolete. Article VII. Sec. 1. Amended by Acts of May 16, 1901, P. L. 224, Sec. 19 and June 21, 1911, P. L. 1102, Sec. 7. Partly supplied by Art. VI, Sec. 1, and Art. VII, Sees. 3 and 6, Act of June 27, 1913, P. L. 568. The following provisions concerning the mayor have been omitted: "(,ht) shall have been a citizen and inhabitant of the state four years." ***** "(He shall hold office) until his successor is duly elected and qualified." See Sec. (91). Sec. 2. Partly supplied by Art. VII, Sec. 4, Act of June 27, 1913, P. L. 568. The following provision is omitted: "(The mayor) shall, communicate to councils at their first stated meeting in January of each year." See Sec. (107). Sec. 3, Supplied by Art. VII, Sees. S and IS, Act of June 27, 1913, P. L. 568. Sec. 4. Amended by Act of May 16, 1901, P. L. 224, Sec. 20. Partly supplied by Art. VII, Sees. 6, 7 and 8 of Act of June 27, 1913, P. L. 568, and the police civil service act of June 20, 1917, P. L. 618. 167 Article VII— (Continued). The following clause was omitted: "In case of the temporary absence of any police- man from duty, from sickness or other- wise, the mayor may appoint a substitute; to serve for such period as he may desig- nate, not exceeding ten days, for such compensation as may be fixed by coun- cils." See Sec. (109). Sec. 5. Amended by Act of May 16, 1901, P. L. 224, Sec. 21. Supplied by Art. VII, Sec. 7, Act of June 27, 1913, P. L. 568, and Sec. 6 of the police civil service act of June 20, 1917, P. L. 618. Sec. 6. Supplied by Art. VII, Sec. 8, Act of June 27, 1913, P. L. 568. The provision concerning "clerks of dif- ferent branches of councils" is obsolete. Sec. 7. Supplied by Art. VII, Sec. 9, Act of June 27, 1913, P. L. 568. Sec. 8. Amended by Acts of May 16, 1901, P. L. 224, Sec. 22, and April 27, 1909, P. L. 192. Partly supplied by Art. VII, Sec. 10, Act of June 27, 1913, P. L. 568. The following provision was omitted by the Act of 1913: "Proceedings for the viola- tion of the city ordinances may be com- menced by warrant or summons at the discretion of the mayor or alderman be- fore whom the complaint is made." See Sec. (113). Article VIII. Sec. 1. Amended by Acts of May 16, 1901, P. L. 224, Sec. 23 and June 21, 1911, P. L. 1102, Sec. 8. Supplied by Art. VIII, Sec. 1, Act of June 27, 1913, P. L. 568. Sec. 2. Supplied by Art. VIII, Sec. 2, Act of June 27, 1913, P. L. 568. Sec. 3. Amended by Act of June 21, 1911, P. L. 1102, Sec. 9. Supplied by Art. VIII, Sec. 3, Act of June 27, 1913, P. L. 568. Article IX. Sec. 1. Amended by Act of June 21, 1911, P. L. 1102, Sec. 10. Partly supplied by Art. IX, Sees. 1 and 2, Act of June 27, 1913, P. L. 568, as amended by Act of May 27, 1919, P. L. 310, Sees. 29 and 30. ■ The following provisions are omitted: (He shall hold office) "until his successor is duly elected and qualified * ♦ ♦ ♦ ♦ vvhere provision for the settlement thereof is made by law; and where no such pro- vision, or an insufficient provision, has 168 Article IX — (Continued). been made, he shall examine such accounts and report to the city councils the facts relating thereto, with his opinion thereon." While the language "He shall superintend the fiscal concerns of the city and shall manage the same in the manner required by the laws of this State and the ordi- nances and resolutions of the city coun- cils in accordance therewith" is not dupli- cated in the Acfof 1913, the duties herein described are placed upon the Superin- tendent of Accounts and Finance by Art. VII, Sees. 11, 12, 13, 14 of the Act of 1913. See notes to Sees. (123), (124). Sec. 2. Omitted as to controller by Act of June 27, 1913, P. L. 563. See notes to Sec. (124) and also Sec. (114), the latter section relating to the duties of the Superintendent of Accounts and Finance. Sec. 3. Partly supplied by Art. IX, Sec. 2, Act of June 27, 1913, P. L. 568, as amended by Act of May 27, 1919, P. L. 310, Sec. 31. The following provision is omitted by the Act of 1913: "He shall have the super- vision and control of the accounts of all departments, bureaus and officers in the city who shall collect, receive or disburse the public moneys, or who are charged with the management or custody thereof, ***** and may at any time require from any or all of them a statement in writing of any or all moneys or property of the city in their hands or under their control; ***** He shall likewise audit and report the accounts of any such of- ficer upon the death, resignation, removal or expiration of the term of a city officer." See notes to Sec. (124), and also Sec. (114), the latter relating to the duties and powers of the Superintendent of Accounts and Finance. Sec. 4. Omitted as to controller by the Act of June 27, 1913, P. L. 568. See notes to Sec. (124), and also Sees. (114) and (115), the latter two sections relating to the duties and powers of the Superin- tendent of Accounts and Finance. Sec. 5. Amended by Act of May 16, 1901, P. L. 224, Sec. 24. Omitted as to controller by the Act of June 27, 1913, P. L. 568. 169 Article IX — (Continued). See notes to Sec. (124) and also Sec. (116), the latter relating to the duties and powers of the Superintendent of Accounts and Finance. Sec. 6. Amended by Act of May 16, 1901, P. L. 224, Sec. 2S. Omitted as to controller by the Act of June 27, 1913, P. L. 568. See Sec. (124) with notes, and also Sec. (117), the latter re- lating to the duties and powers of the Superintendent of Accounts and Finance. Sec. 7. Amended by Act of June 21, 1911, P. L. 1102, Sec. 11. Supplied by Art. IX, Sec. 2, Act of June 27, 1913, P. L. 568. Article X. Sec. 1. Amended by Act of May 16, 1901, P. L. 224, Sec. 26. Supplied by Art. X, Sec. 1, Act of June 27, 1913, P. L. 568. Sec. 2. Supplied by Art. X, Sec. 2, Act of June 27, 1913, P. L. 563. Sec. 3. Re-enacted by Art. X, Sec. 3, Act of June 27, 1913, P. L. 568. Sec. 4. Re-enacted by Art. X, Sec. 4, Act of June 27, 1913, P. L. 568. The Act of 1913 substitutes "the Superin- tendent of Finance" for "the City Con- troller." Sec. 5. Re-enacted by Art. X, Sec. 5, Act of June 27, 1913, P. L. 568. Article XI. Sec. 1. Supplied by Art. XI, Sec. 1, Act of June 27, 1913, P. L. 568. See notes to Sec. (133). Published as Sec. (134). Sec. 2. Omitted by Act of June 27, 1913, P. L. 568. See notes to Sec. (133). Published as Sec. (135). Sec. 3. Omitted by Act of June 27, 1913, P. L. 568 See notes to Sec. (133). Published as Sec. (136). Sec. 4. Omitted by Act of June 27, 1913, P. L. 568. See notes to Sec. (133). Published as Sec. (137). Sec 5. Amended by Act of May 16, 1901, P. L. 224, Sec. 27. Omitted by Act of June 27, 1913, P. L. 568. The provision concerning the licensing of plumbers is supplied by Sec. 2, Act of June 7, 1901, P. L. 840, as amended by Act of June 12, 1913, P. L. 478. See Sec. (790). See notes to Sec. (133). Published as Sec. (138). 170 Article XI — (Continued). Sec. 6. Sec. 7. Article XII. Sees. 1 Sec. 10. Sec. 11. Sec. 12. Article XIII. Sec. 1. Sec. 2. Sec. 3. Sec. 4. Sec. 5. Article XIV. Sec. 1. Sec. 2. Sec. 3. Supplied arid repealed by Act of June 7, 1915, P. L. 900. See notes to Sec. (133). Published as Sec. (139). Omitted by. Act of June 27, 1913, P. L. 568. See notes to Sec. (133). Published as Sec. (140). to 9 inclusive omitted by the Act of June 27, 1913, P. L. 568. See notes to Sec. (82). See Sees. (82a) to (82i) inclusive. Omitted by Act of June 27, 1913, P. L. 568. Repealed as to the filing of liens by Act of June 4, 1901, P. L. 364: See Kohler vs. Reitz, 46 Super Ct. 350. See notes to Sec. (82). See also Sec. (82j). Amended by Act of May 16, 1901, P. L. 224, Sec. 28. Omitted by Act of June 27, 1913, P. L. 568. See notes to Sec. (82). See also Sec. (82k). Omitted by Act of June 27, 1913, P. L. 568. See notes to Sec. (82). See also Sec. (82-1). Amended by Act of March 30, 1903, P. L. lis, Sec. 5. Supplied by Art. XIII, Sec. 1, Act of June 27, 1913, P. L. 568. Amended by Act of March 30, 1903, P. L. lis. Sec. 6. Supplied by Art. XIII, Sec. 2, Act of June 21, 1913, P. L. 568. Re-enacted by Art. XIII, Sec. 3, Act of June 27, 1913, P. L. S68. Re-enacted by Art. XIII, Sec. 4, Act of June 27, 1913, P. L. 568. Amended by- Act of May 16, 1901, P. L. 224, Sec. 29. Supplied by Art. XIII, Sec. 5, Act of June 27, 1913, P. L. 568. The Act of 1913 contains the clause "and col- lect the cost of paving." This is evi- dently an error and should read, "and col- lect the cost of laying." Supplied by Art. XIV, Sec. 1, Act of June 27, 1913, P. L. 568. Re-enacted by Art. XIV, Sec. 2, Act of June 27, 1913, P. L. 568. Partly supplied by Art. XIV, Sec. 3, Act of June 27, 1913, P. L. 568. 171 Article XTV— (Continued). The following provision is omitted: "Whether said property be immediately adjacent thereto or in the vicinity thereof." See Sec. (159). Sec. 4. Partly supplied by Art. XIV, Sec. 4, Act of June 27, 1913, P. L. 568. The following provision is omitted: "The costs and expenses incurred in the proceed- ings aforesaid shall be defrayed by the said city [and each of the said viewers N shall be entitled to two dollars per day for every day necessarily employed in per- formance of the duties herein prescribed."] The part in brackets is repealed by the Act of June 23, 1911, P. L, 1123, Sec. 4, as amended by the Act of June S, 1919, P. L. 393. See Sec. (160). Sec. 5. Supplied bj' Art. XIV, Sec. 5, Act of June 27, 1913, P. L. 568. See Sec. (161). Sec. 6. Supplied by Art. XIV, Sec. 6, Act of June 27, 1913, P. L. 568. Sec. 7. Supplied by Art. XIV, Sec. 7, Act of June 27, 1913, P. L. 568. > Sec. 8. Supplied by Art. XIV, Sec. 8, Act of June 27, 1913, P. L. 568. Article XV. Sec. 1. Amended by Act of May 16, 1901, P. L. 224, Sec. 30. Amended in effect by Act of March 29, 1905, P. L. 71, Sec. 1. Supplied by Art. XV, Sees. 1 and 2, Act of June 27, 1913, P. L. 568. Sec. 2. Amended in effect by Act of March 29, 1905, P. L. 71, Sees. 2 and 3. Supplied by Art. XV, Sees. 2 and 3, and Art. V, Sec. 3, clause 13, Act of June 27, 1913, P. L. 568. Sec. 3. Amended by Act of May 23, 1895, P. L. lib, Sec. 1. Amended in effect by Act of March 29, 1905, P. L. 71, Sees. 4, 6 and 10. Supplied by Art. XV, Sees. 4, 6, 10 and 14, Act of June 27, 1913, P. L. 568. Sec. 4. Amended by Act of May 23, 1895, P. L. 118, Sec. 2. Amended in effect by Act of March 29, 1905, P. L. 71, Sec. 11. Supplied by Art. XV, Sees. 11 and 14, Act of June 27, 1913, P. L. 568. Sec. 5. Amended by Act of May 23, 1895, P. L. 118, Sec. 3. 172 Article XV — (Continued). ^ Partly supplied by Art. XV, Sec. 14, Act of June 27, 1913, F. L. 568. The provisions "a majority of whom shall constitute" a quorum," and for compensa- tion for the board of revision and city clerk are omitted by the Act of 1913. See Sees. (93) and (179). Sec. 6. Obsolete. Sec. 7. Omitted by the Act of June 27, 1913, P. L. 568. Supplied by Act of June 20, 1901, P. L. 578, Sees. 3 and 7. Sec. 8. Amended by Act of May 16, 1901, P. L. 224, Sec. 31. Supplied by Act of June 20, 1901, P. L. 578, Sec. 5. Sec. 9. Supplied by Act of June 20, 1901, P. L. 578, Sees. 10 and 11. Under the Act of May 23, 1889, the city treasurer appointed collectors who gave bond to the city, and whose compensation was paid by councils. The treasurer placed duplicates of unpaid taxes in the hands of these collectors on the first day of November of each year. This system seems to have been changed by the Act of June 20, 1901, P. L. 578. The latter act authorizes the city treasurer to appoint deputies to collect the taxes, who are en- tirely responsible to the city treasurer. The city treasurer is responsible for the compensation and official conduct of these collectors. Among the duties prescribed for the treasurer are duties similar to those placed upon collectors under the Act of 1889. See Sec. (365). Sec. 10. Supplied by Act of June 20, 1901, P. L. 578, Sec. 12. Sec. 11. Amended by Act of May 23, 1895, P. L. 118, Sec. 4. This section is largely supplied by Sec. 12, Act of June 20, 1901, P. L. 578. [See Sec. (371)] and Sees. 10 and 26, Act of June 4, 1901, P. L. 364, as amended. [See Sees. (403), (420)]. The provision concerning the fees of the prothonotary are supplied as to counties having a population from 150,000 to 1,- 000,000 by the Act of May 23, 1913, P. L. 315, and as to counties from 800,000 to 1,500,000 by the Act of May 3, 1915, P. L. 326. 1^ Article XV— (Continued). Sec. 12. Amended by Act of May 23, 1895, P. L. 118, Sec. S. Partly supplied by Act of June 4, 1§01, P. L. 364, Sees. 2, 32. The following provision does not seem to be supplied: "nor shall the defendant or de- fendants or other person in any writ of fieri facias, venditioni exponas or levari facias be entitled to claim any exemption under a levy and sale of any real estate charged with such tax against the allow- ance or payment of the same." Sec Sees. (390), (397). Sec. 13. Probably repealed by Act of June 4, 1901, P. L. 364-400. See Day vs. Swanson, 236 Pa. 493. Supplied by Act of March 30, 1903, P. L. 106, Sees. 1, 2 and 3. Delinquent taxes in cities of the third class are collected under the Act of June 4, 1901, P. L. 364, by lien, or under the Act" of March 30, 1903, P. L. 106, by treasurer's sale. See Sees. (378) to (38S) and (392) to (435). Sec. 14. Probably repealed by Act of June 4, 1901, P. L. 364-400. See Day vs. Swanson, 236 Pa. 493. Re-enacted by Act of March 30, 1903, P. L. 106, Sec. 4. Sec. 15. Probably repealed by Act of June 4, 1901, P. L. 364-400. See Day vs. Swanson, 236 Pa. 493. Re-enacted by Act of March 30, 1903, P. L. 106, Sec. S. Sec. 16. Probably repealed by Act of June 4, 1901, P. L. 364-400. See Day vs. Swanson, 236 Pa. 493. Re-enacted by Act of March 30, 1903, P. L. 106, Sec. 6. Sec. 17. Probably repealed by Act of June 4, 1901, P. L. 364-400. See Day vs. Swanson, 236 Pa. 493. Re-enacted by Act of March 30, 1903, P. L 106, Sec. 7. Sec. 18. Probably repealed by Act of June 4, 1901, P. L. 364-400. See Day vs. Swanson, 236 Pa. 493. Re-enacted by Act of March 30, 1903, P. L. 106, Sec. 8. Sec. 19. Probably repealed by Act of June 4, 1901, P. L. 364-400. See Day vs. Swanson, 236 Pa. 493. 174 i-&i ii^ic .rt. V— vv^uuunucuy. Supplied by Act of March 30, 1903, P. L. 106, Sec. 2. Sec. 20. Amended by Act of May 16, 190J, P. L. 224, Sec. 32. Omitted by Act of June 27, 1913, P. L. 568. See Sec. (398a). Sec. 21. Partly supplied by Act of June 4, 1901, P. L. 364, Sees. 2, 3, 10, 11, 32, 35. The provision concerning the fees of the prothonotary is supplied as to counties having a population from 150,000 to 1,000,- 000 by the Act of May 23, 1913, P. L. 315, and as to counties from 800,000-to 1,500,- 000 by the Act of May 3, 1915, P. L. 226. Sec. 22. Amended by Act of May 16, 1901, P. L. 224, Sec. 33. The last 29 lines of the section are repealed by the Act of June 4, 1901, P. L. 364, Sees. 17, 18, 19. For collection of municipal claims by suit, see Sees. (387), (388), (389). Sec. 23. Repealed by Act of June 4, 1901, P. L. 364- 400, Sees. 24 and 33. Sec. 24. Repealed by Act of June 4, 1901, P. L. 364- 400, Sees. 1 and 18 as amended. Sec. 25. Repealed as to sales under registered claims by Act of June 4, 1901, P. L. 364-400, Sec. 18. Apparently in force as to sales under a gen- eral judgment secured by action of as- sumpsit under Sec. 22, Art. XV, Act of 1889, or under Sec. 1, Act of July 8, 1919, P. L. 786. See Sec. (391). Sec. 26. Supplied except as to definition of "owner or owners," by clause 10, Sec. 3, Art. V, Act of June 27, 1913, P. L. 568. See Sec. (49) notes. Sec. 27. The effect of the assignment to the con- tractor for performing the work of the assessment bills is provided for in Sec. 4, Act of June 4, 1901, P. L. 364. (For procedure in filing liens where contrac- tor is paid by assessment bills, see Act of June 4, 1901, P. L. 364, Sees. 9, 10, 11, 12). See Sees. (45), (49d), (lS2d), (399), and (428). Omitte'd by Act of June 27, 1913, P. L. 568. Sec. 28. Amended by Act of May 16, 1901, P. L. 224, Sec. 34. See Sees. (49b) and (lS2b). Omitted by Act of June 27, 1913, P. L. 568. Sec. 29. Omitted by Act of June 27, 1913, P. L. 568. See notes to Sees. (49c) and (I52c). 175 Article XV— (Continued). Sec. 30. Obsolete. Sec. 31. Amended by Act of May 16, 1901, P. L. 224. Sec. 35. Omitted by Act of June 27, 1913, P. L. 568. See Sees. (49a), (50a), (I52a), (lS8a). Article XVI. This whole article was amended by Act of May 16, 1901, P. L. 224, Sec. 36, and the article was given six sections instead of four sections. Sec. 4 of the amendment of 1901 was further amended by the Act of March 30, 1903, P. L. 115. Entire article supplied by Art. XVI, Sees. 2, 4, 5, 6, 7, 8 of the Act of June 27, 1913, P. L. 568. Article XVII. Sec. 1. Re-enacted by Art. XVII, Sec. 1, Act of June 27, 1913, P. L. 568. Sec. 2. Amended by Act of May 16, 1901, P. L. 224, Sec. 37. Re-enacted by Art. XVII, Sec. 2, Act of June 27, 1913, P. L. 568, with the word "posi- tion" changed to "provision." Sec. 3. Amended by Act of May 16, 1901, P. L. 224, Sec. 38. Re-enacted by Art. XVII, Sees. 3, 4, 5, Act of June 27, 1913, P. L. 568. Sec. 4. Re-enacted by Art. XVII, Sec. 6, Act of June 27, 1913, P. L. 568. Sec. 5. Re-enacted by Art. XVII, Sec. 7, Act of June 27, 1913, P. L. 568. Article XVIII. Sec. 1. Sec. 2. Sec. 3. Sec. 4. Article XIX. Sec. 1. Sec. 2. Sec. Sec. Amended by Act of May 16, 1901, P. L. 224, Sec. 39. Re-enacted by Art. XVIII, Sec. 1, Act of June 27, 1913, P. L. 568. Supplied by Art. XVIII, Sec. 2, Act of June 27, 1913, P. L. 568. See Sees. (92) and (196). Re-enacted by Art. XVIII, Sec. 3, Act of June 27, 1913, P. L. 568. Re-enacted by Art. XVIII, Sec. 4, Act of June 27, 1913, P. L. 568, except that the "Superintendent of Finance" is subsli- tuted for the "controller." This section defines the cities entitled to the benefits of the Act of 1889. Part of this section contains the repeal and saving clauses. The remainder is obso- lete. Obsolete. Obsolete. 176 ARTICLE XXIII. CONSTITUTIONAL PROVISIONS PROHIBITING LOCAL AND SPECIAL LEGISLATION. (215). The General Assembly shall not pass any local or special low: Authorizing the creation, extension or impairing of liens ; Regulating the affairs of * * * * * cities, ***** -wards ; Authorizing the laying out, opening, altering or maintaining, roads, highways, streets or alleys; Vacating roads, town plats, streets or alleys ; Relating to cemeteries, graveyards, or public grounds not of the State ; Incorporating cities, ***** or changing their charters ; Creating offices, or prescribing the powers and duties of officers in * * * * * cities. Constitution of Pennsylvania, Part of Sec. 7, Art. III. See notes to article on classification of cities immediately following. 177 12 ARTICLE XXIV. CLASSIFICATION OF CITIES. (216). For the purposes of legislation, regulating their municipal affairs, the exercise of certain corporate powers having respect to the number, character, powers and duties of certain officers thereof, the cities now in existence and those hereafter created in this Com- monwealth shall be divided into three classes: Those containing a population of one million or over shall con- stitute the first class. Those containing a population of one hundred thousand and under one million, shall constitute the second class. Those containing a population under one hundred thousand shall constitute the third class. Sec. 1, Act of June 25, 1895, P. L. 275. Classification of cities according to population is not prevented by Sec. 7, Art. Ill, of the Constitution of 1873, prohibiting local and special legislation, and the various legislative acts (Act of May 23, 1874, P. L. 230, Act of May 8, 1889, P. L. 133 and Act June 25, 1895, P. L. 275) dividing the cities of the Commonvirealth into three classes have been sustained. The validity of such classification must be re- garded as firmly established; and legislation may be passed for each class separately regardless of the number of cities contained in the class: Wheeler vs. Philadelphia, 77 Pa. 338; see Massey vs. Philadel- phia, 1 W. N. C. 534; Kilgore vs. Magee 85 Pa. 401; Ayar's Appeal, 122 Pa. 266; Opening of Ruan Street, 132 Pa. 257; Wyoming Street, 137 Pa. 494; Straub vs. Pittsburgh, 138 Pa. 356; Scranton vs. Whyte, 148 Pa. 419; Com. vs. Macferron, 152 Pa. 244; Com. vs. Moir, 199 Pa. 534; Beltz vs. Pittsburgh, 26 Super Ct. 66, affirmed in 211 Pa. 561; Scranton City vs. Ansley, 34 Super. Ct. 133; Pittsburgh's Redistricting, 37 Super Ct. 525; Com. vs. Heller 219 Pa. 65, affirming 9 Dauphin Co. 169. The courts, however, have refused to go beyond this point. The Act of April 11, 1876, P. L. 20, amending the Act of May 23, 1874, P. L. 230, by dividing the cities of the State into five classes and the Act of May 24, 1887, P. L. 204, dividing cities into seven classes, were declared unconstitutional on the ground that such extended classifi- cation was unnecessary and therefore unwarranted: Ayar's Appeal, 122 Pa. 266; and all other legislation dependent upon that classification was also rejected, the court saying, — "Those acts doubtless contain many wise and wholesome provisions, but they are so interwoven with and dependent on others that are unconstitutional and void, that neither of the Acts of 1876 or 1887 can be sustained, even in part:" Ayar's Appeal supra: see Shoemaker vs. Harrisburg 122 Pa. 285; Berg- haua vs. Harrisburg 122 Pa. 289; City of Meadville vs. Dickson 129 Pa. 178 1. Ordinances passed under authority of the Act of 1887 were vali- dated by the Act of May 13, 1889, P. L. 196; see Devers vs. York City 150 Pa. 208. For the purposes of classification all cities not belonging to the first or second class belong to the third, but for purposes of municipal gov- ernment, only so many of these belong to the third class, in the legis- lative sense of the words, as have taken on the municipal uniform which the legislature has provided for the class: Harris's Appeal, 160 Pa. 494. All cities of the third class, under the Act of May 23, 1874, P. L. 230, fell back into that class upon the determination of the unconstitu- tionality of the Acts of 1876 and 1887: Com. vs. Smoulter, 126 Pa. 137; Hoffman vs. Matthes, 6 Lane. L. Rev. 89. The transition of a city from one class to another works no change in its government, except such as the law makes necessary to adjust it to the class into which it goes; repeals no ordinances and vacates no offices except such as are abolished, and makes no vacancies to be filled except by the creation of new offices: Com. vs. Wyman, 137 Pa. 508; Com. vs. Richetts, 9 Kulp 361; Allegheny City vs. Kennedy 14 Pa. C. C. 152; Phoenix vs. Reynolds, 13 Phila. 522; see Knerr vs. Krause, 3 Pa. C. C. 563. When a city passes into another class it becomes subject to the laws and assumes the general plan of -municipal government provided for the class of cities which it enters, and only retains in full force such of its former legislation that is not in irreconcilable conflict with the laws governing the new class: Com. vs. Macferron, 152 Pa. 244; Scran- ton City vs. Ansley, 34 Super. Ct. 133; see also Com. vs. Moir, 199 Pa. 534. Classification, with the view of legislating for either class separately, " is essentially unconstitutional unless a necessity therefor exists, a necessity clearly distinguishing those of one class from each of the other classes, and imperatively demanding legislation for each class, separately, that would be useless and detrimental to the others: Wheeler vs. Philadelphia 77 Pa. 338; McCarthy vs. Com. 110 Pa. 243; Weiman vs. Railway Co. 118 Pa. 192; Ayar's Appeal, 122 Pa. 266; Open- ing of Ruan Street, 132 Pa. 257; Pittsburgh's Petition 32 Super. Ct. 210. In Roumfort Co. vs. Delaney, 230 Pa. 374, Justice Elkins said, "By reason of varying local conditions and upon the ground of necessity, the legislature deemed it wise to classify cities so that legislation of a municipal character might be passed for each class without disturbing other cities not requiring such legislation." The object of classification is to provide different systems of gov- ernment for cities differently situated in regard to their municipal needs and so long as it relates to and deals with such municipal af- fairs, and not to irrelevant or wholly local matter, the questions of where the lines shall be drawn, and what differences of system shall be prescribed for differences of situation, are legislative and not ju- dicial: Com. vs. Moir 199 Pa. 534; see also Pittsburgh's Redistricting 37 Super. Ct. 525; but the legislature must exercise its power within the lines laid down by the constitution, and, while what it shall do within those lines is a question entirely within its discretion, the ques- tions whether a law disregarding them shall be enforced, and whether a particular law does, attempt to transcend them are purely judicial: Opening of Ruan Street, 132 Pa. 257. 179 A law, relating to a particular class, that does not apply to all the members of the class equally or excludes any one of the class per- manently, and relates to subjects of a general, as distinguished from a municipal character, is prohibited by the constitution as local and special legislation: Weiman vs. Railway Co. 118 Pa. 192; Opening of Ruan Street, 132 Pa. 257; City of Scranton vs. Whyte, 148 Pa. 419; Com. vs. Macferron, 152 Pa. 244; Chalfante vs. Edwards, 173 Pa. 246; Lloyd vs. Smith 176 Pa. 213; Blankenburg vs. Black 200 Pa. 629; and if an act relates either expressly or by necessary implication, to one member only of a class it is unconstitutional: Sample vs. Pittsburgh 212 Pa. 533; but the fact that at the time of the passage of the act, it would technically apply to only a few cities does not make the law unconstitutional as long as it does not exclude any from the class which may at some time come into like situation and circumstances: Pitts- burgh's Petition, 32 Super. Ct. 210, affirmed in 217 Pa. 227; see also Stratton vs. Allegheny Co. 245 Pa. 519. Classification can only be based on population and not upon geo- graphical distinctions for the reason that classification founded on such distinctions operates on a certain number of a class to the perpetual ex- clusion of all others: Com. vs. Patton 88 Pa. 258; and such classifi- cation which is grounded on no necessity and has for its sole object an evasion of the constitution will not be encouraged: Scowden's Ap- peal 96 Pa. 422. While a classification which permanently excludes any one member of the class from its future operations is unconstitutionalj the fact that existing exceptions are not immediately abolished does not destroy the constitutionality of the act. The unconstitutionality consists not in the continuance of an existing exception, but in the creation of new ones: Com. vs. Heller, 219 Pa. 65, affirming 9 Dauphin Co. 169; Com. vs. Reynolds, 137 Pa. 389; Evans vs. Phillipi 117 Pa. 226; Von Storch vs. Scranton School District, 3 Pa. C. C. 511; City of Reading vs. Sav- age, 124 Fa. 328, distinguishing Scranton School District's Appeal 113 Pa. 176. In the latter case the Act of March 18, 1875, P. L. IS which provided for the appointment of assessors, the classification of real estate for taxation, and for the assessment and collection of taxes, etc., but con- taining a proviso excluding all cities of the third class which, by an ordinance, did not accept the provisions of the act, was declared un- constitutional, the court saying: "Xlie circumstances that the power to determine the question is delegated to another body does not at all aflfect the question. The practical result is the same, the Act of 1875 will be limited to the one or more cities that do accept, and that makes it local. All our recent decisions are to the effect that if local results either are or may be produced by a piece of legislation, it offends against this provision of the constitution, and is void." The tendency of this provision was to produce a new and separate class within the class that had accepted the law relating to cities of the third class. The S7th Sec. of the Act of May 23, 1874, I*. L. 230, which provided that "any city of the third class, or any city of a less population than ten thousand inhabitants, heretofore incorporated, may become subject to the provisions of this act, governing cities of the third class to be hereinafter incorporated," by an ordinance duly passed by councils, was sustained, however, on the ground that the acceptance of the act, which in its nature was a general law, by the various cities, that had 180 been previously incorporated under special laws, would have a tendency to uniformity by converting that which had been local or special into a class governed by general laws regulating all the members of the class : City of Reading vs. Savage, 124 Pa. 328. Classification of cities for purposes of legislation can only be sus- tained, when the act applies to all the members of the designated class and relates to the exercise of the "corporate powers" possessed by the cities of the class to which it refers, and to the "number, char- acter, powers and duties" of the oiEcers employed in the management of the municipal affairs. Conversely when an act is not applicable to all the members of the class to which it relates, and is not directed to the existence and regulation of municipal powers, and to matters of local government, it is local and special and therefore unconstitu- tional. The Act of March 19, 1879, P. L. 9, relating to the incorporation and regulation of street railways in cities of the second and third classes, was declared unconstitutional, as not relating to the municipal affairs of the cities of the second or third class, but to certain corporations that happened to be located within such cities: Weimar vs. Wilkins- burg & E. L. P. Railway Co. 118 Pa. 192. The Act of May 6, 1887, P. L. 87, providing a peculiar/code of pro- cedure in road cases in cities of the first class, was declared to be a violation of Sec. 7, Art. Ill of the Constitution, as it did not relate to the exercise of any of the corporate powers of such cities, or to any matter of municipal government but was a regulation of the practice and procedure in the courts. Opening of Ruan Street, 132 Pa. 257. The Act of June 14, 1887, P. L. 386 providing that the city councils may direct the opening, grading, widening or other improvement of any street, lane or alley, in cities of the second class, and providing for the creation and fixing the powers and duties of a "Board of View- ers" by the court of common pleas at the suggestion of the city at- torney, etc., was declared void in so far as it relates to the "Board of Viewers" as it did not relate to any subject under municipal con- trol, or to the exercise of any municipal power but affected judicial practice and the rights of the citizens of such cities to the free access of the courts. Wyoming Street, Pittsburgh, 137 Pa. 494. An act regulating the filing of liens in cities of the third class, for the grading and paving of streets (Art. XV, Act of May 23, 1889, P. L. 277) was upheld on the ground that the grading and paving of streets is clearly and exclusively one for municipal control and the power to collect the cost of the work so done by an appropriate form of taxation is a municipal power, if a regular and settled course of procedure is applied: City of Scranton vs. Whyte, 148 Pa. 419. The 12th section of the Act of March 22, 1877, P. L. 16, declaring that claims for overdue taxes and water rents in cities of the second class, filed in ctourt, shall be a lien on the real estate described therein without regard to whether the owner is named therein or not, and that a ju- dicial sale of such real estate shall vest a good title therto in the pur- chaser, was declared unconstitutional and void, for the reason that it did not relate to the exercise of any corporate power of such cities but attempted to prescribe a rule of law for the guidance of the judge of the courts in certairi judicial sales. Safe Deposit and Trust Co. vs. Fricke 152 Pa. 231. 181 The Act of June 8, 1891, P. L. 216, making it unlawful to "establish any cemetery upon lands, located within one mile from any city of the first class," etc., was declared to be a local law relating merely to a small piece of territory outside of the City of Philadelphia and there- fore unconstitutional, as no municipal power, duty, or officer was the subject of the legislative regulation of the Act: Philadelphia vs. West- minster Cemetery Co., 162 Pa. 105. The Act of June 2, 1881, P. L. 45, providing that "all taxes whether county, township, poor, school or municipal taxes" shall be a first lien on the real estate on which assessed and excepting cities of the first, second and fourth classes from the operation of the act, was declared unconstitutional. Legislation for a class of cities is only general and valid when it relates to some municipal purpose, as the collection of county, poor and school taxes is not such a purpose, the act is local and therefore prohibited. VanLoon vs. Engle, 171 Pa. 157. The Act of July 3, 1895, P. L. 603 regulating the affairs of school districts in cities of the second class, was declared to be unconstitu- tional for the reason that the regulation of schools is not a municipal function and therefore beyond the scope for which classification is permitted. The court saying: "The effect of the classification of cities must not be carried beyond its purpose as declared in the orig- inal classification law, and a law relating to any other subject though embracing all the cities of any given class, or of all the classes into which cities are divided is local and unconstitutional, if the subject be one upon which local and special legislation is forbidden. Chalfant vs. Edwards, 173 Pa. 246. The Act of July 26, 1897, P. L. 418, providing that eight hours out of twenty-four of each day shall constitute a legal days' work for me- chanics, workingmen and laborers in the employ of the State or munici- pal corporations, or otherwise engaged on public works, was declared void for the reason that although it includes all the municipalities in the State, its subject is one not within the purposes of classification but purely a labor regulation and therefore a special law prohibited by the Constitution. Com. vs. Casey 231 Pa. 170, reversing 43 Super. Ct. 494; see also Taylor vs. Philadelphia 261 Pa. 458; which declared the Act of July 6, 1917, P. L. 752, unconstitutional for the same reason. The Act of June 7, 1907, P. L, 453, regulating the maximum rate of fare to be charged for the transportation of passengers by street railway companies in cities of the second class, was held to be un- constitutional, as it did not relate to the exercise of the corporate powers or to the corporate officers of cities of the second class, nor regulate the affairs of such cities. It was held an improper classifi- cation since it applied to certain street railways located in but two of the cities of the State, and therefore special and local legislation, and prohibited by the Constitution. Ashworth vs. Pittsburgh Rail- ways Company 231 Pa. 539, reversing 44 Super. Ct. 326.' The Act of April 18, 1899, P. L. 49, which provided for the examina- tion and licensing of engineers having charge of steam boilers, etc., in cities of the first class, and excluding from its operation persons having charge of or operating steam boilers, or steam engines under ten horsepower, locomotive boilers used in transportation and steam engines and steam boilers carrying less than fifteen pounds pressure per square inch, was declared unconstitutional as local and special legislation. Local in that the subject of the act is not within the 182 purposes for which cities may properly be classified and is based on no real distinction as there is no substantial diflference in conditions existing in cities of the first class and any other municipality of the State, and special in that it does not apply to all within the class and therefor is an attempt to regulate labor contrary to the Constitution. Chalmers vs. City of Philadelphia 250 Pa. 251. It would seem that the Act of April 4, 1905, P. L. 102, extending the same provisions to cities of the second and third classes, is also unconstitutional for the above reasons. The Act of June 7, 1901, P. L. 493, prescribing rules, regulations and requirements for the construction of plumbing, etc., in cities of the second class, was declared a valid "exercise of the power of classifi- cation on the ground that the prevention of disease by municipal authority is a municipal function and as such may be regulated by class legislation. Beltz vs. Pittsburgh, 26 Super. Ct. 66, affirmed in 211 Pa. 561. (217). The classification of said cities respectively shall be ascer- tained and fixed by reference to their population according to the last preceding United States census, and whenever it shall appear by any such census that any city of the second or third class has at- tained a population entitling it to an advance in classification as herein prescribed, it shall be the duty of the Governor under the great seal of this Commonwealth, to certify the fact accordingly, which certificate shall be entered at large upon the minutes of the councils of such city, and recorded in the office for recording the deeds of the proper county. At the municipal election occurring not less than one month after the date of such certificate, the proper officers shall be elected to which the said city will become entitled under the change in classi- fication, [and upon the first Monday of April next ensuing,] the terms of all officers of said city then in office whose offices are sup- erseded by reason thereof shall cease and determine and the city government shall be duly organized, and shall thereafter be controlled and regulated by the laws of this Commonwealth applicable to the same under the classification hereby fixed and appointed. Sec. 2, Act of June 25, 1895, P. L. 275. This act fixes the status of a city for the purpose of classification, and being so fixed, certain laws based on classification, such as the liquor license laws, are operative therein regardless of whether or not the city has become a member of a designated class for the'purpose of municipal government. Com. vs. Robinson 9 Super. Ct. 569; contra, Com. vs. Shoup, 9 Pa. C. C. 289. The population, as shown by the United States census, which fixes the status of a city must be legally and ofiicially ascertained and the mere existence of the fact before it is officially announced is not suf- ficient. Its status, as to population, having been once settled, it re- tains that status until it is legally and officially ascertained, by the succeeding census, to have changed. See Lewis vs. Lack Co. 200 Pa. 590. The period of one month is to be computed from the date of the certificate of the Governor and not from the time of the entry of the 183 certificate upon the minutes of the councils. Com. vs. Clarke 8 Lack. L, N. 61. The provision of this act, fixing "the first Monday of April next en- suing" as the time when the terms of all officers of said city then in office, whose offices are superseded by reason of the change in classi- fication, shall cease and determine and the new city government shall be organized, is apparently no longer in operation. At the time of the passage of the act, the election of city and ward officers was held, as provided by Sec. 3, Art. VIII of the Constitution of 1873, on the third Tuesday of February and their term of office, under the various acts regulating the government of the cities of the State, began the first Monday of April following said election. This section of the Con- stitution, however, was amended November 2nd, 1909, and the election of city and ward officers, for regular terms of service, was directed to be held at the municipal election, which was fixed as the Tuesday next following the first Monday of November in each odd-numbered year. Schedule No. 2, adopted at the same time, provided that after the year nineteen hundred and ten, and until the legislature shall otherwise provide, the term of all city and ward officers shall begin on the first Monday of December in an odd-numbered year. By the Act of March 2, 1911, P. L. 8, the legislature accordingly fixed the time at which the term of all public officers elected in odd-numbered years should begin, as the first Monday of January succeeding their election, instead of the first Monday of December. Under these changes municipal officers are now elected at the municipal election held the first Tuesday after the first Monday in November in odd- numbered years and take their office the first Monday of January suc- ceeding their election. It would, therefore, seem that the terms of such officers as the city may be entitled to under a change in classi- fication would begin the first Monday of January following their elec- tion, and the new government would be organized at the same time, and not on the first Monday of April as herein provided. The Act of 189S should be amended to read the "first Monday of January" so that cities subsequently changing their classification may, without question, organize their government as of that date. The persons, at the time of the change of classification, legally filling offices common to cities of each class, serve out the official terms for which they were elected, becoming possessed of all the powers and subject to all the duties pertaining to their office in cities of the class to which the municipality has advanced. Com. vs. Wyman 137 Pa. 508; Allegheny City vs. Kennedy 14 Pa. C. C. 152; Com. vs. Ricketts 9 Kulp 361; see Knerr vs. Krause, 3 Pa. C. C. 563. The transition of a city from one class to another works such change in its government as the law makes necessary to adjust it to the class into which it goes. Com. vs. Wyman, 137 Pa. 508. So far as the legislation affecting a city of the third class conflicts with the uniform general plan of municipal government provided for cities of the second class, so far it must, upon its transition into that class, leave its former system behind it; else it could not adjust itscif to the class into which it has come, and the whole scheme of classifi- cation would fall. So far as its former legislation is not in conflict with the legislative plan of government for the new class, it remains in full force. Com vs. Macferron 152 Pa. 244; Scranton City vs. Ans- ley 34 Pa. Super. Ct. 133; see also Com. vs. Moir 199 Pa. 534. 184 ARTICLE XXV. INCORPORATION. (On same subject see Art. I, Act of June 27, 1913, supra Sees. (1) to (3). (218). Cities may be chartered whenever a majority of the elec- tors of any town or borough having a population of at least ten thousand shall vote at any general election in favor of the same. Constitution of Pennsylvania, Sec. 1, Art. XV. This section was intended to apply only to the chartering of cities and therefor an act providing for the annexation of territory adjacent to a city, upon petition of three-fifths of the taxable inhabitants thereof and an ordinance of city councils, is not unconstitutional, as a viola- tion of its provisions. Carbondale Township's Appeal, 5 Pa. C. C. 339. See notes to section immediately following. (219). Cities of the third class may be chartered whenever a ma- jority of the electors of any borough, having at least ten thousand inhabitants according to the preceding Federal census, or of any two or more continuous boroughs, situate within the limits of the same county, and having together a population of at least ten thou- sand according to such census, shall each separately vote at any special election in favor of the same. The council or corporate authorities of any such borough or of any such contiguous boroughs, as the case may be,, may of their own motion, or within seven days after receipt of a petition of one hundred or more qualified electors thereof, shall, by resolution duly passed and recorded among the minutes, submit the question of whether any such borough, or whether any such contiguous boroughs, shall become a city of the third class, to the qualified electors thereof. Such question shall be sub- mitted to the electors not more than fifteen days after the passage of such resolution. They shall give notice, by the publication of said resolution daily, during at least one week immediately prior to the said special election, in all of the newspapers published in said bor- ough or boroughs, and, if no newspapers be published in said bor- ough or boroughs, then publication shall be made in not more than two newspapers published in the county wherein the borough or boroughs are located, that such an election will be held. The time and place, when and where, such special election shall be held shall be designated in said resolution. They shall certify said resolution to the county commissioners of the proper county, who shall there- 185 upon cause the said question to be printed on the ballot to be used at the said special election in the borough or boroughs aforesaid, in the following form : "Proposed city charter," and below shall be printed on two lines, with a square at the right of each, the words "for city charter" and "against city charter," and the electors shall designate with a cross-mark (X) in one of said squares their desire to vote for or against such city charter. The county commissioners shall cause such ballots to be printed and distributed to the various polling-places designated in such resolution. It shall be the duty of the election officers within said borough or boroughs to receive the ballots so marked, and to count the votes cast for and against city charter, and make return thereof, on blanks to be furnished by the corporate authorities of said borough or boroughs, to the clerk of the court of quarter sessins of the proper county, who shall compute the same and certify the result thereof to the corporate authorities aforesaid, and a duplicate return to the Secretary of the Common- wealth, each duly certified in the manner required by law; and in receiving, counting, and marking return of the votes cast, the in- spectors, judges, and clerks of the said election shall be governed by the laws of the Commonwealth regulating general elections ; and all the electors, inspectors, judges, and clerks, voting at and in at- tendance vtpon the election to be held under the provisions of this act, shall be subject to the penalties imposed by the election laws of this Commonwealth. The judges, inspectors, and clerks shall receive the same compensation as at general elections. The expense of holding such election, including the printing and distribution of ballots, shall be paid by such borough, or share and share alike by such boroughs, or as agreed upon between such boroughs. Sec. 1, Act of July 7, 1913, P. L. 694. The provision for the holding of a special election for the incor- poration of third class cities, is in violation of Sec. 1, Art. XV of the Constitution and is unconstitutional. The general subject matter of this act is within the scope of the legislative power. Com. vs. South Bethlehem, 248 Pa. 581. A municipal charter granted by letters patent of the Governor, after a special election held by virtue of the above section, may be revoked by the court of common pleas of the county where the city is situated, upon the information of the Attorney General. Com. vs. South Beth- lehem, 14 North. Co. 179. (220). Whenever, by the returns of the election in any borough or boroughs aforesaid, it shall appear that in any such single borough, or in each of such contiguous boroughs, there is a majority against the city charter, no further proceeding shall be had, and it shall not be lawful to hold another election upon that question in such bor- ough or boroughs for three years thereafter. If it shall appear by the said returns that there is a majority in such single borough, or, in case of two or more contiguous boroughs, a majority in each, in 186 favor of the city charter, the Governor shall issue letters patent un- der the great seal of the Commonwealth, reciting the facts, defining the boundaries of said city, and constituting the same a body cor- porate and politic, by the name of the city of , and the corporate authorities of any such borough or boroughs shall, within fifteen days after such election, furnish to the Secretary of the Commonwealth the necessary information in regard to the bound- aries of said city. Sec. 2, Act of July 7, 1913, P. L. 694. (221). All of the property and estates whatsoever, real and per- sonal of the borough or boroughs which shall have thus become a city of the third class, are hereby severally and respectively vested in the corporation or body politic of said city, by the name, style, and title" given thereto as aforesaid, and for the use and benefit of the citizens thereof forever. The charters of the said borough or bor- oughs shall continue in full force and operation, and all officers un- der the same shall hold their respective offices, until the first Monday of January following the general municipal election next succeeding the issuing of the letters patent to the said city; at which time the officers of said city, chosen at the preceding municipal election, shall enter upon their respective terms of service, and the city gov- ernment shall be duly organized under this act. All suits, prosecu- tions, debts, and claims whatsoever shall thereupon become trans- ferred to the said city, which in all suits pending shall be substituted as a party, and be under the management and control thereof as fully and completely as if no alteration had been made in said charter; and all claims and demands of whatsoever nature, whether payable presently or in the future, existing against the said borough or bor- oughs when the said charter shall go into operation, shall, by force thereof, be recoverable from or against the said city: Provided, Where two or more borotighs shall, under the provisions of this act, be consolidated into a city, the debt or debts of each of said boroughs, contracted prior to such conslidation, shall be paid by such boroughs, respectively; and for the liquidation of such debt the authorities of such city shall have power to adjust arid provide for the same, and to levy separate rates of taxation on all property subject to taxation within the boundaries of the said borough, respectively. Sec. 3, Act of July 7, 1913, P. L. 694. 187 ARTICLE XXVI. SURRENDER OF CHARTER. (222). A city of the third class may surrender its charter and be constituted a borough in the manner hereinafter provided. Sc. 1, Act of July 22, 1919, P. L. 1113. (223). The council of any such city on its own motion may, or within fifteen days after the receipt of a petition signed by twenty- five per centum or more of the qualified electors thereof shall, pass a resolution, and record it upon its minutes, submitting the question of whether such city shall surrender its charter and be constituted a borough to the qualified electors of such city. Sec. 2, Act of July 22, 1919, P. L. 1113. (224). Such question shall be submitted to the electors not more than thirty days after the passage of such resolution. Notice of said resolution shall be given, by publication, in at least two newspapers published in the county and circulated in said city, once a week for three consecutive weeks immediately prior to the election at which the question is to be submitted, that such an election will be held. In the case of a special election, the time and place of holding the same shall be designated in the resolution, and published in the notice. Sec. 3, Act of July 22, 1919, P. L. 1113. (225). The council shall certify such resolution to the county commissioners of the proper county, who shall thereupon cause the question to be printed upon the ballot to be used at any special elec- tion or at the foot of the ofHcial ballot to be used at any general or municipal election in said city, in the following form : — "Proposed surrender of city charter." , And below shall be printed on two lines, with a square at the right of each, containing the words: "For surrender of city charter." and "Against surrender of city charter." And the electors shall designate with a cross-mark (X) in one of said squares their desire to vote for or against such surrender. Sec. 4, Act of July 22, 1919, P. L. 1113. 188 (226). The county commissioners shall cause the necessary bal- lots to be printed and distributed to the various polling-places in the city designated in such resolution. Sec. 5, Act of July 22, 1919, P. L. 1113. (227). It shall be the duty of the election officers within the city to receive the ballot so marked, and to count the vote cast for and against a surrender of the city charter, and make return thereof, on blanks to be furnished by the corporate authorities of the city, to the clerk of the court of quarter sessions of the proper county. Such clerk shall compute the return, and certify the result of the election to the corporate authorities of the city and a duplicate return to the Secretary of the Commonwealth, each duly certified in the manner required by law. Sec. 6, Act of July 22, 1919, P. L. 1113. (228) . In receiving, counting, and making return of the vote cast, inspectors, judges, and clerks of the said election shall be governed by the laws of the Commonwealth regulating general elections, and all the electors, inspectors, judges, and clerks voting at, or in at- tendance upon, the election to be held under the provisions of this act, shall be subject to the penalties imposed by the election laws of this Commonwealth. The judges, inspectors, and clerks shall re- ceive the same compensation as at general elections. The expenses of holding such election, including the printing and distribution of ballots, shall be paid by the city. Sec. 7, Act of July 22, 1919, P. L. 1113. (229). Whenever by the returns of the election in any city of the third class as aforesaid it shall appear that a majority of the vote cast is against the surrender of the city charter, no further proceed- ings shall be had, and it shall not be lawful to hold another election upon that question in such city for a period of three years thereafter. If it shall appear by the said returns that a majority of the vote cast in such city is in favor of surrendering the city charter, the Gov- ernor shall issue letters patent, under the great seal of the Common- wealth, reciting the facts constituting the same a body corporate and politic by the name of the borough of , and de- fining the boundaries of the borough thus constituted. The corporate authorities of any such city shall, within fifteen days after such election, furnish to the Secretary of the Commonwealth the neces- sary information in regard to the boundaries of said borough. The letters patent issued as aforesaid shall be immediately recorded in the office of the reecorder of deeds for the proper county. Sec. 8, Act of July 22, 1919, P. L. 1113. 189 (230). At the first municipal election occurring at least forty days after the issuing of letters patent, there shall be chosen the bor- ough officers provided for by "The General Borough Act," who shall begin their terms from the first Monday of January of the year next succeeding. In cases where nominations cannot be regularly made at the primary election, the nominations shall be made by filing cer- tificates of nomination with the county commissioners of the proper county in the same manner as is now provided for by law in the case of vacancies in elective offices. Council shall consist of one member from each ward, to be elected by the qualified electors thereof. Until otherwise changed, the wards of the city shall continue in limits as the wards of the borough. Sec. 9, Act of July 22, 1919, P. L. 1113. (231). All property and estates whatsoever, real, personal and mixed, of the city are hereby, upon the organization of the borough government, severally and respectively vested in the corporation or body politic of said borough, by the name, style, and title given thereto as aforesaid, and for the use and benefit of the citizens thereof forever. All suits, prosecutions, debts, and claims whatsoever shall, upon the organization of the borough government, be transferred to said borough. In all suits by or against the city, pending at the time of the organization of the borough government under this act, the borough shall be substituted as a party, and the suit shall be under the management and control of such borough as fully and completely as if no alteration had been made in said charter. All claiins and demands of whatever nature, whether payable presently or in the future, existing against the said city when the borough government shall be organized, shall be recoverable from or against the borough. Sec. 10, Act of July 22, 1919, P. L. 1113. (232). A borough constituted and created under the provisions of this act shall have the same powers, and be governed by the same laws as a borough heretofore incorporated and formed under any general law. Sec. 11, Act of July 22, 1919, P. L. 1113. (233). The charter of the city shall continue in full force and operation, and all officers under the same shall hold their respective offices, until the first Monday of January following the municipal election next succeeding the issuing of letters patent to the said borough, at which time the officers of said borough chosen as here- inbefore provided shall enter upon their respective terms of service, and the borough government shall be duly organized under this act. Sec. 12, Act of July 22, 1919. P. L. 1113. 190 ARTICLE XXVII. ANNEXATION OF TERRITORY. ADJUSTMENT OF INDEBTEDNESS. ARRANGEMENT INTO WARDS. (a) Annexation of Territory. (234). Any city, borough, township, or part of a township, may become annexed to any contiguous city in the same county, in the following manner, namely : There shall be presented to the court of quarter sessions of the county, a petition, signed by at least five per centum of the qualified voters, as shown by the registry lists for the last preceding general election of the city, borough, township, or part of a township, de- siring annexation to a city under this act; and in case such petition is for the annexation of a part of a township, there shall be a plan at- tached showing such portion, and the petition shall only be signed by qualified voters as above defined, and residing in such portion. The petition shall be subscribed by the petitioners within three months immediately preceding the presentation thereof to the court, and shall be verified by affidavit of one or more of the petitioners. Sec. 1, Act of April 28, 1903, P. L. 332, as amended by Sec. 1, Act of April 19, 1905, P. L. 216. This act did not repeal Art. Ill of the Act of May 23, 1889, P. L. 277, which provided for the annexation of territory adjoining cities of the third class. Both acts stood and afforded two methods of pro- cedure either of which could be invoked according to circumstances^ Annexation to City of Allentown, 16 D. R. 994, s. c. 2 Lehigh Co. L. J. 114; Annexation to City of Allentown, 2 Lehigh Co. L. J. 387; Meadville Annexation, 37 Pa. C. C. 582. It would, therefore, seem that Art. Ill of the Act of June 27, 1913, P. L. 568, which practically re- enacted Art. Ill of the Act of May 23 1889, did not repeal the Act of 1903. The Act does not violate Art. Ill, Sec. 7, of the Constitution, which prohibits local or special legislation "regulating the affairs of coun- ties, cities, townships, wards, boroughs or school districts," as it is gen- eral in character and the fact that the annexation must be "to any contiguous city in the same county" does not make it a local law. Sheraden Borough, 34 Super Ct. 639; Powell vs. Scranton, 227 Pa. 604: affirming 39 Super Ct. 488. The constitutionality of the Act was also raised, but not decided, in Higgins vs. Price, 36 Super. Ct. 215, and Commonwealth ex rel. vs. Parsons, 217 Pa. 435. 191 In proceedings under this act, to annex a Dorough to a contiguous city, the courts will take judicial notice of the fact that the borough is contiguous to the city, and the proceedings will not be invalid be- cause such fact is not verified by affidavit; and the same rule applies to the fact that the borough is in the same county as the city. Shera- den Borough, supra. A part only of a borough cannot be annexed to a contiguous city: see McAskie's Appeal, 154 Pa. 24. (235). The petition shall be filed, and thereupon the court shall direct notice to be given to the chief executive ofificer of the city to which the annexation is proposed to be made; and it shall be the duty of the councils of such city, within three months from the date of said notice, to, by ordinance, consent to or disapprove the pro- posed annexation. If the councils disapprove, then there shall be no further proceedings under that petition; but if the councils ap- prove, then the court shall direct such notice to be given the people of the territory proposed to be annexed as the court shall consider to be proper and reasonable, and the said notice shall state a reason- able date thereafter at which the petition will be considered and all parties heard. Upon the date fixed for the hearing, or as soon thereafter as prac- ticable, the court shall hear the case; and, if the requirements of this act have been complied with, then shall order an election to be held in the petitioning city, borough, township or any part thereof, referred to in the petition, upon the question of annexation. If such order be made within three months and more than thirty days be- fore the date of any general election, such election shall be held at such general election; otherwise, it shall be held at such date as the court shall fix, but in no case within thirty days from the making of such order. Sec. 2, Act of April 28, 1903, P. L. 332. The court commits no abuse of discretion in fixing ten days as suf- ficient notice to the public of the hearing of objections to the annexa- tion. Sheriden Borough, 34 Super Ct. 639. (236). The court shall direct that notice be given by advertise- ments or hand-bills, or both, of the time of such election; and shall also order the county commissioners to prepare separate ballots for such election, which shall read on the outside "Annexation" and on the inside "For Annexation" or "Against Annexation," and said commissioners shall provide for the placing of such ballots at the polling-places, at the opening of the polls on the day fixed, and for separate ballot-boxes to receive the ballots. Sec. 3, Act of April 28, 1903, P. L. 332. (237). The election shall be held at the regular polling-places, and by the regular election officers, or, in case of their absence, their places shall be filled as provided by law. In receiving and count- ing, and in making returns of, the votes cast, the inspectors, judges 192 ana clerks ot said election shall be governed by the laws of this Commonwealth regulating municipal elections; and the vote shall be counted by the court as is now provided by general laws govern- ing municipal elections, and all the penalties of the said election laws, for the violation thereof, shall apply to the voters, inspectors, judges and clerks voting at, and in attendance upon, the elections held un- der the provisions of this act. The result of the election shall be certified to the court of quarter sessions having jurisdiction of the proceedings. Sec 4, Act of April 28 1903, P. L. 332. (238). If it shall appear by the vote when counted that a ma- jority has voted for annexation, the court shall enter a decree ac- cordingly; otherwise, the proceedings shall be dismissed. In case the proceedings shall be dismissed, no petitions from that city, bor- ough, township, or part of a township, shall thereafter be presented unless signed by twenty per centum of the qualified voters thereof, as shown by the registry lists for the last preceding general elec- tion; and the court shall exercise its discretion as to allowing such petitions to be filed: Provided, however. That should the court per- mit such petition to be filed, no election shall be ordered to be held within two (2) years from the da.te of the former election on such annexation. If in such case the court allows the petition to be filed, the proceedings shall be as herein provided for the first petition. Sec. 5, Act of April 28, 1903, P. L. 332. An order of the quarter sessions by which territory is annexed to a city, unappealed from, is a final judgment and cannot be attacked in a collateral proceeding in equity. Powell vs. Scranton, 227 Pa. 604; affirming 39 Super Ct. 488. (b) Adjustment of Indebtedness. (239). If a decree be entered for annexation, on the first Monday of January thereafter the territory so annexed shall become a part of the city to which it is annexed, and all the territory within the limits of the city, as thus^ enlarged by said annexation, shall be liable for the floating and bonded indebtedness and the interest thereon of both the annexed territory and the city to which it is annexed, so that the taxes shall be uniform throughout the territorial limits of the whole city. This act shall apply to all cases in which the territory annexed has not become a part of the city prior to the first Monday of Janu- ary, nineteen hundred and ten. Part of Sec. 6, Act of April 28, 1903, P. L. 332, as amended by Sec. 1, Act of May 10, 1909, P L. 501. As to the adjustment of indebtedness see the two sections imme- diately following. As to the arrangement of the annexed territory into wards »•« infra sections (243). (244), (245). 193 13 (240). All the indebtedness of each ciiy, borough, township, or part of a township, annexed to a contiguous city under the provisions of the act to which this is a supplement, as well as the indebtedness of the city to which the same are annexed, shall be paid by the city as enlarged by such annexation; and all territory included within the limits of the same shall be liable for the payment of the floating and bonded indebtedness, and the interest thereon, of all the ter- ritory included within such enlarged city; and all taxes hereafter levied therefor shall be uniform throughout the territorial limits of such enlarged city. The provisions of this act shall apply as well to territory heretofore annexed under the provisions of this act, as well as to annexations taking place hereafter under the provisions thereof. Sec. 1, Act of May 6, 1915, P. L. 272, supplementing Act of April 28, 1903, P. L. 332. Under this act the debts of the constituent units of the enlarged city, which were incurred without the consent of the electors are to be reckoned as debts of the enlarged city in.curred without the consent of the electors, and debts of the constituent units, which were incurred with the consent of the. electors are to be reckoned as the debts of the consolidated city incurred with the consent of the electors. It does not increase the indebtedness of the consolidated city beyond the limit imposed by the Constitution nor does it impose a debt beyond the two per cent, limit, which may be incurred without the consent of the electors. Troop vs. Pittsburgh, 254 Pa. 172, affirming 63 P. L. J. 609. The original sixth section of the Act of April, 28, 1903, P. L. 332 which provided that the territory annexed should pay its own indebted- ness and should not be liable for the indebtedness of the city to which it is annex^ed, did not create any contract rights in the constituent units or its inhabitants, therefore, this act, providing that the indebted- ness of the annexed territory should be paid by the enlarged city, does not impair any contractual obligation and does not violate that part of the Constitution which forbids the passage of "any law impair- ing the obligation of contracts" see Moore vs. Pittsburgh 254 Pa. 185. (241). In all cases of the annexation of any city, borough, town- ship, or part of a township, to a contiguous city, under the provisions of an act of Assembly, approved the twenty-eighth day of April, Anno Domini one thousand nine hundred and three, entitled "An act for the annexation of any city, borough, township, or part of a township, to a contiguous city, and providing for the indebtedness of the same," all rights of creditors and all liens, and all rights of the municipality so annexed to enforce the payment of moneys due, or of contract liabilities, or of other claims or rights of property, existing at the time of such annexation, shall be preserved unimpaired to such annexed city, borough or township ; and such city, borough or township, for the purpose of enforcing its rights and claims in the premises, and also of having prior rights and claims in the premises, and also of having prior rights and claims enforced against it, shall be deemed in law to continue in existence. 194 S6l paxauHB pres inojj Saip»ja Xq 'jfjp piBs jo :>u3Kiua»AoS jo saifeuBjq :ju3J9jjxp aqj ui HOI:^B^u^s^Jd^.I X.ioiuj9i paxatnuB aij^ jo ©jdeed aqj oj 3AiJi ijiM. SB 33.iDop JO jspjo qons ajjEui o} rpnoo piBS Suxlujid puB 'joajaqj pjooaa jo aoBjd pug ajBp aq; 'uopBxauuB jo aajoap aq:^ q^joj Sut;;3S 'paxsuuB os 'diqsuAVo; b jo :^JBd jo 'diqsuMo; 'qSnojoq 'Xjp aqi jo uopoap SuTpaoajd jsb| aqi joj Xj^siSsj aq; Aq UAVoqs sb sja^oA patjqBnb ^q:^ jo lun^uao jad Aiu3iA^ ^SBaj ;b Aq pauSis 'uoi;x;ad B 'paja^ua uaaq SBq uoijBxauuB joj aajoap aq; qoiqM. ui A^unoD aq; jo suoissas jajjBnb jo ijnoa aq:j oj pajuasajd aq IPH^ ajaqx :XpuiBu fajnpaaojd Suiavoijoj aq^ Aq jauuBui Suiavoj -pj aq; ui 'paxauuB s; ;i qaiqM oj A^o auiBS aq; jo 'spjBM jo 'pjBM, B o;ui pa;aaja puB paSuBJjB aq 'a{qBDi;aBjd sb uoos sb 'iPH^ paxauuB snq; Xjo;ijja; aq; ;Bq; 'paxauuB si ;i qaiqM o; A^o aq; jo ;jBd b 'auioo -aq ja;jBajaq Xbui jo 'mou si puB 'aajq; puB pajpunq auiu puBsnoq; auo 'raiujoQ ouuy 'judy jo jfep q;qSp-X;uaAv; aq; paAOjddB ,/araBS aq; jo ssaupa;qapui aq; joj SuipiAOjd puB 'X;p snonSi;uoa b o; 'diqs -UMo; B JO :pBd jo 'diqsuAVo; 'qSnojoq 'X;p Xub jo uoi;BxauuB aq; joj ;oB uy,, pai;i;ua 'BiuBA|j(suuaj jo a;B;s aq; jo Xjqmassy jBjauag aq; JO ;oB aq; jo suoisiAOjd aq; japun 'j{;p snonSi;uo3 b o; paxauuB aq ipqs JO uaaq SBq 'diqsuAvo; b jo ;jBd jo 'dxqsuM.o; 'qSnojoq 'X;p AuB 'ja;jBajaq jo m.ou 'q;iBaM.uomujo2) siq; ui jaAauaq^ 'i£i'Z) 'SEi' "^d LIZ 'suosjEointment as notary public. Notary Public, 27 D. R. 820. (276). Every person who shall hold any office, or appointment of profit or trust, under the government of the United States, whether a commissioned officer or otherwise, a subordinate officer or agent, who is or shall be employed under the legislative, executive or ju- diciary departments of the United States, and also every member of congress, is hereby declared to be incapable of holding or exer- cising, at the same time, the office or appointment of [justice of the peace, notary public,] mayor, [I'ecorder, burgess] or alderman of any city, [corporate town, or borough, resident physician of the lazaretto, constable, judge, inspector or clerk of election] under this Commonwealth. Sec. 1, Act of May IS, 1874, P. L. 186. A borough postmaster who is subsequently elected burgess will be removed as burgess by quo warranto proceedings under this section of the act. Com. vs. Fix, 50 P. L. J. (o. s.) 293. (277) . The holding of any of the aforesaid offices or appointment's under this state, is hereby declared to be incompatible with any of- fice or appointment under the United States, and every such com- mission, office or appointment, so holden under the government of this state, contrary to the true intent and meaning of this act, shall be and is hereby declared to be null and void. Sec. 2, Act of May 1.^ 1874, P. L. 186. (278). If any person after the expiration of six months from the passing of this act, shall exercise any offices or appointments, the exercise of which is by this act declared to be. incompatible, every 214 person so offending shall for every such offense, being thereof legally convicted in any court of record, forfeit and pay any sum not less than fifty nor more than five hundred dollars, at the discretion of the court, one moiety of the said forfeiture to be paid to the over- seers, guardians or directors of the poor of the township, district, county or place where such offense shall have been committed, to be applied to the support of the poor, and the other moiety thereof to the prosecutor who shall sue for the same. Sec. .3, Act of May IS, 1874, P. L. 186. (279). No county commissioner shall be eligible to serve as mem- ber of the board of health, [or director of the public schools,] dur- ing his continuance in office. Sec. 7, Act of May l.S, 1874, P. L. 186. (280). No [justice of the peace], member of council, or other of- ficers, except school directors, constables, or election officers, shall, at the same time, be a member of the board of health of such munici- pality, or hold any office or appointment under the same. Sec. 20, Act of June 18, 1895, P. L. 203, as amended by Act of April 3, 1903, P. L. 138. This section is not repealed by the Act of May 14, 1909, P. L. S.'iS. Com. vs. Evans, 59 Super Ct. 607, affirming 31 Lane. 401. A borough councilman who is appointed as a health officer by the board of health may elect which of the two offices he desires to re- tain. Jones vs. Borough of Old Forge, 18 Lack. J. 324. (281). No alderman [or practicing attorney] shall be eligible to the office of an inspector of the county prison. Sec. 8, Act of May IS, 1874, P. L. 186. (282). No person shall, at the same time, be a member of more than one of the following bodies, to wit: The city councils, the guardians of the poor, the board of health and the inspectors of the county prison, nor shall any person be a member of any of these bodies who is at the same time a salaried officer under the same or under any of them. Sec. 9, Act of May IS, 1874, P. L. 186. (283). A member of council in any municipality shall not be eligible to the office of school director. A school director shall not be eligible to the office of member of council in any municipality. Sec. 1, Act of May 28, 1915, P. L. 450. (284). It shall not be lawful for any member of either branch of the legislature to hold or to exercise the office of councilman in any incorporated city of this commonwealth. Sec. 10, Act of May 15, 1874, P. L. 186. 215 (285). No member of council ot any city shall be eligible to any office, employment or agency directly chosen by councils, or either branch of them, during the term for which he shall have been elected to councils. Sec. 11, Act of May IS, 1874, P. L. 186. (286). Whenever, by the requirements of any law, a particular residence is a necessary qualification for the election or appointment of any officer, a removal from such residence shall operate as a for- feiture of the office. Sec. 12, Act of May 15, 1874, P. L. 186. (287). No member of said councils shall hereafter hold any of- fice or employment in the choice of said councils during the term for which he shall have been elected. Sec. 13, Act of May IS, 1874, P. L. 186. (288). Members of councils shall not hereafter hold any city or county offices in the choice of the people while serving as a member of said councils. Sec. 14, Act of May IS, 1874, P. L. 186. (b) Official Bonds. (289). When any employe of any [county,] city, [borough, school-district, or township] of this Commonwealth shall be required to give a bond for the faithful performance of his duties, and such bond shall be required to be endorsed by a surety company, it shall be lawful for such [county,] city, [borough, school-district, or town- ship] to pay the premium on such bond. Sec. 1, Act of May 23, 1907, P. L. 225. (290). Whenever any person or persons shall apply by petition, verified by affidavit, to the court of common pleas of the county in which any collector of taxes or other public officer may reside, who is not commissioned by the Governor of this Commonwealth, from whom by law security is required for the faithful performance of his official duties setting forth that the solvency of such public of- ficer or of any one or more of his official sureties has become im- paired or diminished since the execution and approval of the of- ficial bond of such officer, or that such officer has become liable for neglect of duty or become of intemperate habits, and that the said officer and his sureties are not worth the amount of the penalty of his said bond, or that said sureties are likely to suffer loss on accoimt of misconduct of such officer, the said court shall have the power to examine into the manner of the performance of said official duties, and the ability and solvency of the sureties of any such officer at any time during his term of office, and to require from him such other 216 additional security for the performance of his official duties as the said court shall deem expedient. Sec. 1, Act of May 26, 1897, P. L. 108. (291). Upon the presentation of any such petition, it shall be lawful for said court, or any judge thereof in vacation, to award a citation to such officer and his sureties, commanding them to appear at such time as the court may direct and answer the matters al- leged in said petition, and show cause why the said officer should not give other and further security, which citation shall be served at least five days before the return day thereof as is directed by law in regard to citations in the orphans court, and upon <-he return day of such citation, or at such time as shall be fixed for that purpose, the court shall hear the parties and examine the facts in the case, and if the said court shall be satisfied that the sureties of the said officer are insufficient, or have become liable for neglect of duty of such officer, or are likely to become so from his intemperance or other cause, the said court shall order and direct that he shall, within such time as shall be fixed by said court, enter into a new official bond, with securities to be approved by the court or any judge thereof, in lieu of the former bond, and upon the execution and ap- proval of such bond it shall be recorded or filed in the proper office in like manner as original bond of such officer, and the sureties therein shall be responsible in the same manner as the sureties in such original bond, who shall, upon the^pproval of such new bond, be discharged from all liability for any act or default occurring there- after; and in case the said officer shall neglect or refuse to comply with the order of said court or judge and give such other security aforesaid, the said court shall make an order removing said delinquent from office and declare said office vacant, and the vacancy in such office shall be filled in the same manner as vacancies occurring by death or resignation are by law filled. Sec. 2, Act of May 26, 1897, P. L. 108. (292). In case the said officer or any of his sureties cannot be found in the county so that service of citation can be made upon him or his sureties as required by the second section of this act, upon proof thereof being made at the return day thereof or time fixed for hearing as aforesaid, the court shall proceed to examine the facts in the case, and determine the same as provided in the second section of this act, the same as though personal service of said citation had been made as provided in said section : Provided however. That said citation shall be served on said sureties, or such of them as may be found in the county. Sec. .3, Act of May 26, 1897, P. L. 108. 217 (293). That said court in all proceedings under this act may, in their discretion at the request of said officer or his sureties, direct an issue on the facts set forth in said petition, to be tried by a jury without delay, and shall have power to make such decree respecting the payment of costs in said proceedings as may be just and equit- able. Sec. 4, Act of May 26, 1897, P. L. 108. (c) Deputy Controllers. Probate Clerks. See also sections (123) to (126). (294) . Each controller of the several cities of this Commonwealth shall be and he is hereby authorized to appoint a deputy controller, who shall have pOwer to administer oaths or affirmations in all mat- ters relating to accounts against each respective city; and, in the case of sickness, absence, or temporary inability of the controller to act, the said deputy shall have the same powers and perform the same duties as are imposed by law upon the city controller; the lat- ter, in all cases, to be responsible and liable for the actions and con- duct of his deputy in the matters aforesaid. Sec. 1, Act of March 24, 1909, P. L. S9. (295). The controller of each of the several cities of this Com- monwealth is hereby authorized to appoint a deputy controller, who in case of the sickness, absence, or inability of such controller to act, shall have the same powers and shall perform the same duties as are imposed by law upon the city controller. In the case of such appointment, the said controller shall be responsible for the acts of such deputy. In case of the sickness, absence, or inability of a city controller, and when such deputy shall not have been appointed, the council of such city may elect a deputy controller to serve during the sickness, absence or inability of such controller, or until such con- troller shall appoint a deputy, as aforesaid. Each deputy appointed under the provisions of this act shall furnish such bond, and receive such compensation as shall be fixed by council. Sec. 1, Act of May 10, 1911, P. L. 208. (296) . The controllers of the several cities of this Commonwealth shall be and are hereby authorized to appoint, from among their employes one person to be probate clerk, who shall have power to administer oaths or affirmations in all matters relating to accounts against said city. Sec. 1, Act of June IS, 1897, P. L. 159. 218 (d) Assessments for Political Purposes Prohibited. See also sections (344), (351), (358). (297). It shall be unlawful for any officer of this Commonwealth or of any county thereof, or for any mayor or head of department or other officer of any city of this Commonwealth to make or cause or knowingly permit to be made any assessment upon the pay, wages or salary of any officer or employe appointed by or holding office or employment under him for any political or party purpose whatsoever, or to make or cause or knowingly permit to be made any demand for the payment or gift of any money or other valuable thing to any committee, organization or person for use in any manner for any political or party purpose : Provided, however, That nothing in this act contained shall prevent any officer, or other employe ap- pointed as aforesaid from making a voluntary contribution to any committee or organization for legitimate political and campaign purposes. Sec. 1, Act of July IS, 1897, P. L. 275. (298). Any person who shall violate any of the provisions of this act shall be deemed guilty of a misdemeanor, and on conviction thereof in the court of quarter sessions of the proper county, be punished by imprisonment in the county prison for a term of not more than one year, and by a fine of not more than one thousand dollars, either or both, as the said court shall impose. Sec. 2, Act of July 15, 1897, P. L. 275. (e) Fire Marshal. (299). The councils of every city of the third class in this Com- monwealth may, by ordinance, provide for the creation of the office of firg marshal to be appointed by the mayor, by and with the ap- proval and consent of the [select] council, biennially, and such fire marshal, under the instructions and orders of the mayor, be author- ized to enter any building or premises wherein a fire has at any time occurred for the purpose of making such examination as may be deemed necessary to ascertain the cause of burning, and any per- son preventing or obstructing or attempting to prevent or obstruct said fire marshal while in the discharge of the duty aforesaid shall be guilty of a misdemeanor, and on conviction thereof shall be fined in a sum not exceeding fifty dollars, or undergo an imprisonment not exceeding three calendar months, or both, at the discretion of the court. Sec. 1, Act of June 24, 1895, P. L. 263. (3(X)). And that the mayor of such city shall be and is hereby authorized, whenever in his judgment the occasion demands it, to 219 issue subpoena in the name of the State of Pennsylvania to any per- son or persons requiring them to attend before him or the fire marshal at such time and place as may be named in said subpoena, then and there to testify, under oath or affirmation, which the fire marshal in the absence of the mayor is hereby empowered to ad- minister, as to the origin of the fire occurring within the bounds of such city, and also as to any facts or circumstances that may be deemed important to secure the detection and conviction of any party or parties guilty of the offense of arson or attempted arson. Sec. 2, Act of June 24, 1895, P. L. 263. (301). If councils of such city shall by ordinance so provide, the chief of police or the chief of the fire department of such city may be made ex-officio fire marshal thereof, and in such case all the pow- ers and duties herein given to or imposed upon such fire marshal shall be enjoyed and exercised by such chief of police or chief of the fire department, as the case may be. Sec. .3, Act of June 24, 1895, P. L. 263. (f) Fire Department. (302). The head of the department of public safety in each city or the first, second, and third class shall, from and after the first day of January, one thousand nine hundred twenty, divide the officers and members of companies of the uniformed fire force in the em- ploy of such cities, excepting the chief engineer and assistant chiefs, into two bodies or platoons, — one to perform day service, and the other to perform night service. The hours of day service shall not exceed ten, commencing at eight o'clock in the morning; the hours of night service shall not exceed fourteen, commencing at six o'clock in the afternoon. In cases of riot, serious conflagration, or other such emergency, the chief engineer of the bureau of fire, or tjie as- sistant chief deputy, or chief officer in charge at any fire, shall have the power to assign all the members of the fire force to continuous duty, or to continue any member thereof on duty, if necessary. No member of either of said platoons shall be required to perform con- tinuous day service or continuous night service for a longer consecu- tive period than two weeks; nor be kept on duty continuously longer than ten hours in the day platoon, or fourteen hours in the night pla- toon, excepting as may be necessary to equalize the hours of duty and service, and also excepting in cases of pot, serious conflagration, or other such emergency, as above provided: Provided, however. That this act shall not apply to employes who are employed subject to call. Sec. 1, Act of March 30, 1915, P. L. 34, as amended by Acts of April 4, 1917, P. L. 34, and Act of July 8, 1919, P. L. 734. 220 (302a). The provisions hereof shall not repeal or affect any law or ordinance relating to salaries, vacations, sick or disability leave or pay of members of fire departments in cities to which this act applies. Sec. 2, Act of March 30, 1915, P. L. 34. (g) Police Department. See also section (109). (303). From and after the paS;Sage of this act all municipalities [or corporations,] employing policemen within the Commonwealth of Pennsylvania, shall pay to all such policemen a fixed or stipulated salary ; and that hereafter it shall not be lawful for any such police- man to charge or accept any fee or other compensation, in addition to his salary, for any service rendered or performed by him of any kind or nature whatsoever pertaining to his office or dutife as a policeman, except public rewards and the legal mileage allowed for traveling expenses. Sec. 1, Act of July 14, 1897, P. L. 266. This act does not offeiid against the constitutional prohibition pro- viding that the general assembly shall not pass any local or special law regulating the fees or extending the powers and duties of con- stables. Weaver vs. Schuylkill Co., 17 Super. Ct. 327, affirming 23 Pa. C. C. 507, 9 D. R. 467; McAllister vs. Armstrong Co., 20 Pa. C. C. 201. A salaried police oflficer is entitled to witness fees where he appears in answer to subpoena. In such a case he is not performing a service pertaining to his office or duty as a policeman. Davis vs. Schuylkill Co., 27 Pa. C. C. 177; Templeton vs. Williams, 29 Super. Ct. 272, af- firming 24 Montg. 194, 22 York 11. The service of a subpoena is not a duty pertaining to the office of a policeman, and he is entitled to a fee for such service, and also for executing a writ of commitment. Com. vs. Jones, 14 D. R. 350, s. c. 3 Just. L. R. 128, 5 Lack. J. 328; Com. vs. McCafEerty, 20 D. R. 29, s. c. 11 Del. Co. 270, 2 M. L. R. 14. One who is otherwise entitled to the reward provided for by the Act of March 15, 1821, 7 Sm. L. 388, for the apprehension and con- viction of a hawse thief, is not precluded from receiving it by the fact that he is a policeman. Com. vs. Matthews, 10 Luz. Rep. 110. A policeman is entitled to fees for serving subpoenas and attending hearings as a witness, but not for making arrests. Aliquippa Borough vs. Hall, 21 D. R. 774, s. c. 4 M. L. .R. 42. A salaried policeman in his capacity as such is not entitled to any remuneration for services that he or some other sworn officer only could perform, but when the same services could be performed by any private person, who is capable of performing the service, he, as a pri- vate person, can perform the service and is entitled to remuneration. Com. vs. Murphy, at al. 7 Just. L. R. 31. (304). From -and after the passage of this act it shall not be law- ftilfor aay hig^h, ward, [township] or other coastable, who is at the same time employed as a policeman in any city, [borough or other 221 part of this Commonwealth] to charge^ OT accept any tee or other compensation, in addition to the salary paid to him as a policeman for any service rendered or performed by him pertaining to his of- fice or duties, either as a policeman or as such high, ward, or other constable, except public rewards and the legal mileage allowed to constables for traveling expenses. Sec. 2, Act of July 14, 1897, P. L. 266. The act refers to all constables in the Commonwealth and prohibits them from demanding or receiving fees for services rendered as con- stable as well as a salary as policeman. Weaver vs. Schuylkill Co., 17 Super. Ct. 327, affirming 23 Pa. C. C. 507, 9 D. R. 467; McAllister vs. Armstrong Co., 20 Pa. C. C. 201; McKinney vs. York Co., 8 Del. Co. 551, s. c. 16 York 121. (305). Any policeman or constable employed as a policeman as aforesaid violating any of the provisions of the several sections of this act, shall be deemed guilty of a misdemeanor, and upon con- viction, thereof shall be sentenced to pay a fine not exceeding fifty dollars and costs, or undergo imprisonment in the jail of the proper county not exceeding thirty days, or both at the discretion of the court. Sec. 3, Act of July,14, 1897, P. L. 266. (306). The several [boroughs and] cities of this Commonwealth, incorporated by general or special laws, shall have power to estab- lish by ordinance a police pension fund to be maintained by an equal and proportionate monthly charge against each member of the police force which shall not exceed annually three per centum of the pay of such member, which fund shall be under the direction of councils or committee to the direction of such officers of the city [or bor- ough] as may be designated by councils, and applied under such regulations as councils may by ordinance prescribe for the benefit of such members of the police force as shall receive honorable dis- charge therefrom by reason of age or disability and the families of such may be injured or killed in the service, but such allowances as shall be made to those who are retired by reason of the disabilities of age shall be in conformity with a uniform scale: Such ordinance may prescribe a minimum period of continuous service, not less than twenty years, after which members of the force may be retired from active duty, and such members as retired shall be subject to service from time to time as a police reserve until unfitted for such service, when they may be finally discharged by reason of age or disabilitj'. Payments made under the provisions of this section shall not be a charge on any other fund in the treasury of the city [or borough], or under its control save the police pension fumd herein provided for. The basis of the apportionment of the pe«iion shall be detw- mined by the rate of the monthly pay of the memb«r at the date 222 of death, honorable discharge, or retirement, and shall not in any case exceed in any year one-half the annual pay of such member com- puted at such monthly rate. Sec. 1, Act of May 24, 1893. P. L. 129. (307). It shall be competent for any such city [or borough] to take by gift, grant, devise or bequest, any money or property, real, personal or mixed, in trust for the benefit of such pension fund, and the care, management, investment and disposal of such trust funds or property shall be vested in such officer or officers of such city [or borough] for the time being as the said city [or borough] may desig- nate, and such care, management and disposal shall likewise be di- rected by ordinance and the said trust funds shall be governed thereby, subject to such directions not inconsistent therewith as the donors of such funds and property may prescribe. Sec. 2, Act of May 24, 1893, P. L. 129. (308). Whenever any person shall become entitled to receive a benefit from the police pension fund, and shall have been admitted to participate therein, he shall not be deprived of his right to an equal and proportionate participation therein upon the basis upon which he first became entitled thereto, save from one or more of the fol- lowing causes, that is to say, conviction of a crime or misdemeanor, becoming an habitual drunkard, becoming a non-resident of the" State, or failing to comply with same (some) general regulation re- lating to the management of said fund which may be made by ordi- nance, and which may provide that a failure to comply therewith shall terminate the right to participate in the pension fund after such due notice and hearing as shall be prescribed by ordinance. Sec. 3, Act of May 24, 1893, P. L. 129. (309). There may be paid to the organization or association con- stituting and having in charge the distribution of police pension funds in every city of the third class, one per centum of all city taxes col- lected by the city, other than taxes levied to pay interest on or ex- tinguish the debt of the municipality or any part thereof. Sec. 1, Act of May 1, 1919, P. L. 99. (310). The organization herein mentioned shall consist only of such as is by city ordinance designated as the official and authorized organization or association to hold, receive, and distribute the funds or moneys for the purpose of pensioning the police officers of said cities. Sec. 2, Act of May 1, 1919, P. L. 99. 223 (h) Volunteer Police During War Times. (311). Whereas, There exists an urgent need, during the time this Nation is at war, to immediately take steps to organize within this Commonwealth an efficient volunteer poHce force to prevent injury and destruction to the various industries of the Commonwealth by enemies of the Nation, and to suppress riots and tumults, and to preserve the public peace and safety; therefore: — Upon application to the Governor of the Commonwealth, the said Governor is hereby authorized, immediately after the passage of this act, and at any time during the continuance of the present war with Germany, or in any war in which this Nation may become involved, to appoint and commission such number of volunteer police officers, to serve without pay, in the several counties, as may be deemed necessary. In all cities, boroughs and townships where there is a duly constituted police department or police commission, such vol- unteer police officers shall be under, and subject to, the authority and direction of such department or commission. In all other cases the said Governor shall designate and appoint such officials, or of- ficial person or persons, to advise and direct the said police officers and services to be by them performed. Sec. 1, Act of July 18, 1917, P. L. 1062. The Governor, if he so desires, may issue one certificate for all the appointees in one county. The Governor has the power to com- mission such ofKcers either for one year or for any other specific time or "during the continuance of the present war with Germany." In Re Volunteer Police. Opinion by Wm. M. Hargest, Dep. Atty. Gen., 3 Dept. Rep. 3. "In every city, borough, or township wherein there is a duly con- stituted police department commission, it belongs to such department to direct and exercise authority over the volunteer police officers therein. In other cases it belongs to the person named by the Gov- ernor for that purpose." In Re Volunteer Police Force. Opinion by Francis Shunk Brown, Atty. Gen. 4 Dept. Rep. 1556. (312). All police officers so appointed shall take and subscribe the oath provided by article seven of the Constitution. Such oath shall be administered by an officer duly authorized to administer oaths, and shall be filed, together with the certificate of appointment, in the office of the recorder of deeds. Sec. 2, Act of July 18, 1917, P. L. 1062. The certificate of appointment and the oath required to be taken must be filed in the office of the Recorder of Deeds. No fee is allowed by law for filing said certificate and oath, and, therefore, none can be exacted by the Recorder of Deeds of the vari- ous counties. No tax of fifty cents can be imposed by the Recorder of Deeds for filing said certificate and oath. In re Volunteer Police. O^aion by Wm. Hargest, Dep. Atty. Gen. S Dept. Rep. 3320. 224 (313). The police-officers, when so appointed and qualified, shall have and possess all the powers of police officers of the several cities, boroughs and townships of the Commonwealth, and are authorized to arrest upon view, with or without warrant, any person apprehended in the commission of any offense against the laws of the Common- wealth or of the United States. Sec. 3, Act of July 18, 1917, P. L. 1062. A volunteer police officer can law/ully execute a warrant, dul^ is- sued in the county in which he is commissioned, for an offense com- mitted therein, in any county of the State to which the offender may go, in manner as prescribed in the Act of May 2, 1899, P. L. 17'3. His appointment does not invest such officer with any authority to make an arrest without a warrant outside of the limits of the county in and for which he is commissioned. In re Volunteer Police Officers. Opinion by Emerson Collins, Dep. Atty. Gen. 3 Dept. Rep. 3625. While a volunteer policeman can exercise any power which a city, borough or township police officer possesses, as stated in the pre- ceding opinion, it is against the reason and the spirit of the act that he should be called upon to render the ordinary routine service of a regular policeman. He is not to be used for ordinary, but extraor- dinary work, such as pointed out in the preamble and in Sec. 4 of this act, viz: "to prevent injury and destruction to the various industries of the Commonwealth by enemies of the nation, and to suppress riots and tumults, and to preserve the public .peace and safety." It was not intended that through the instrumentality of the volunteer police force the State would thereby relieve municipalities from any part of the duty and burden theretofore resting upon them of policing the same and maintaining the peace. Where a situation exists or impends endangering or threatening the peace and property of any community, and which is beyond the ability of the regular police force to cope with, the local police department should not hesitate promptly to summon the assistance of volunteer policemen. In re Volunteer Police Force. Opinion by Francis Shunk Brown, Atty. Gen. 4 Dept. Rep. 1556. (314). The police officers herein provided for shall be organized and disciplined especially for the purpose of the suppression of riots and tumults, and to preserve the public peace and safety; and shall be used whenever necessary to guard, protect, and preserve from injury and destruction by enemies of the Nation in the present war with Germany, or in any war in which this Nation may become in- volved_, all railroads, railways, mines, oil-wells, chemical plants, light-, heat- and power-plants, water-works and plants, iron-works, steel-plants, ammunition-plants, manufacturing plants, and all other industries, as well as all public works and public buildings. Sec. 4, Act of July 18, 1917, P. L. 1062. See notes to preceding section. 225 15 (i) Employes Entering Military Service ot United States. (315). Whenever any appointive officer or employe, regularly em- ployed by the Commonwealth of Pennsylvania in its civil service, or by any department, bureau, commission, or office thereof, or by any [county,] municipality, [township, or school district] within the Commonwealth, shall in time of war or contemplated war enlist, en- roll, or be drafted in the military or naval service of the United States, or any branch or unit thereof, he shall not be deemed or held to have thereby resigned from or abandoned his said office or employ- ment, nor shall be he removable therefrom during the period of his service, but the duties of his said office or employment, shall, if there is no person authorized by law to perform the powers and duties of such officer or employe during said period, be performed by a substitute, who shall be appointed by the same authority who appointed such officer or employe, if such authority shall deem the employment of such substitute necessary. Such substitute shall re- ceive so much of the salary or wages attached to said office or em- ployment as shall not be paid to the dependent or dependents of said officer or employe, as hereinafter provided, and such substitute may receive such further compensation from appropriations made for that purpose or otherwise, as may be required, when added to the amount received under the provisions of this act, to constitute a reasonable compensation for his services, in the opinion of the authority appoiiiting him. Sec. 1, Act of June 7, 1917, P. L. 600. A state employe who enlisted in the United States Military Service, and resigned, finally severing his employment with the State, previous to the approval of this act, would not come within its provisions. On the other hand, if he was away on leave of absence, or other tempo- rary arrangement, he wouUd come within its provisions. In re pay- ments to dependents of enlisted State employes. Opinion by Wm. H. Keller, First Dep. Atty. Gen. 3 Dept. Rep. 2983. This act does not apply to State officers and employes enlisting in the National Guard of Pennsylvania until this branch is mustered into the United States Service. In re payments to dependents of enlisted State employes. Opinion by Wm. H. Keller, First Dep. Atty. Gen. 3 Dept. Rep. 2190. The act applies to all employes of the state, without regard to rank, and without/regard to the rank in which they enter the army or navy service. In re payment to dependents of enlisted State employes. Opinion by Wm. M. Hargest, Dep. Atty. Gen. 3 Dept. Rep. 2313. The act does not apply to the employes of the penitentiaries, re- formatories, or other institutions similarly operated by the Common- wealth. In re State offiicers and employes. Opinion by Emerson Col- lins, Dep. Atty. Gen. 3 Dept. Rep. 3405. One entering an Officers' Training Camp is entitled to the benefits of this Act. In re payments to dependents of State employes. Opinion by Emerson Collins, Dep. Atty. Gen. 3 Dept. Rep. 3441. 226 One who was regularly employed in good faith in the service of the Commonwealth, and subsequently enlisted, enrolled or was drafted into the military or naval service of the United States, is entitled to the benefits of this act, even though his employment began after the passage of the act. In re payments to dependents of enlisted em- ployes. Opinion by William M. Hargest, Dep. Atty. Gen. 4 Dept. Rep. 425. Since this act applies only to appointive officers or employes, regu- larly employed by the State in its civil service, and this latter terir inchides all offices and positions of trust or employment in the service of the State, or of any political or civil division thereof or city, except such offices and positions in the naval or military departments one who is employed in the military department of the State and who, moreover, is only an extra employe, is not entitled to the benefits of the act. In re payments to dependents of enlisted State employes. Opinion by Wm. M. Hargest, Dep. Atty. Gen. 3 Dept. Sep. 2949. (316). Any said officer or employe, so enlisting, enrolling, or drafted, and having a dependent or dependents as aforesaid, may, at the time of his enlistment, enrollment, or draft, or immediately thereafter, file with the head or chief of the department, bureau, com- mission, or office in which he is employed, a statement in writing, executed under oath, setting forth the fact and date of his enlistment, enrollment or draft, his intention to retain his said office or em- ployment, and to resume the duties thereof after the expiration of his service in the military or naval service, or any branch or unit thereof; and the names and addresses of his wife, children, and de- pendent parent or parents, if any such he have; and requesting and directing that one-half of the salary or wages of his said office or employment, not exceeding two thousand ($2000.00) dollars per annum, shall be paid during his service in the military or naval service or any branch or unit thereof as follows : If he have a wife, to his wife, for her use and that of his children ; if he have any children and no wife, then to such person as he may designate for the use and benefit of his children. If he have a dependent parent or parents, then he shall direct such sum as he has theretofore been accustomed to contribute to their support to be paid to them and the amount payable to his wife, or children, if any he have, shall be proportion- ately decreased. If he have no wife or children he may direct the entire one-half of his said salary or wages, not exceeding two thou- sand ($2000.00) dollars per annum, to be paid to his dependent parent or parents if any such he have ; all sums so directed to be paid shall be paid to the person designated, in the same proportional instal- ments, as nearly as may be, as the salary or wages of such person were theretofore paid to him. With such statement he shall also also file powers of attorney, authorizing the proper dependents to receive their proportion of said salary or wages as aforesaid. Sec. 2, Act of June 7, 1917, P. L. 600. 237 The payments will not be made to the party eniistmg out to ms wife, children or dependent parents. In re payments to dependents of enlisted State employes. Opinion by William M. Hargest, Dep. Atty. Gen. 3 Dept. Rep. 2313. Where a wife, child, or parent, has no means of support other than such as may be provided by the one so entering such service, the case is within the scope of this act. It does not apply where the nominated dependents have independent means of their own ample and adequate to maintain them suitably without aid or assistance from others. Only those who are actually dependent upon those temporarily leaving the civil service of the State or a county, municipality, township, or school district to enter the military or naval service of the United States are within the intendments of the act as beneficiaries thereof. That the salary or pay of one entering the service may be larger than what he had previously received from the State would not, of itself, defeat pay- ment to his dependents. In re payments to dependents of enlisted State employes. Opinion by Emerson Collins, Dep. Atty. Gen. 3 Dept. Rep. 3237. Under the provisions of the section the full one-half of the wages of such officers or employes enlisted in the United States service shall be paid to his dependent parents, in case there are no children. When there are children, then such sum as the enlisting employe had there- ' tofore been accustomed to contribute to the support of his dependent parents shall be paid to them, and the amount payable to his wife or children shall be proportionately decreased. In re pajrments to de- pendents of enlisted State employes. Opinion by Wm. H. Keller, First Dep. Atty. Gen. 3 Dept. 2190. An employe, eligible to the benefit of this act, acquires for his de- pendents the benefit of this act only from the date from which he makes formal claim, in accordance with the provisions of the act. The act is not retroactively cumulative and does not therefore carry with it back pay for the time that elapsed between the passage of the act and the filing of the State employe's claim and affidavit. In re payment to dependents of enlisted State employes. Opinion by Wm. H. Keller, First Dep. Atty. Gen. 3 Dept. Rep. 2983. (317). The statement required to be filed by section two of this act shall be prima facie evidence of the dependency of any person named as a dependent in said statement ; but the head of any depart- ment, bureau, commission, or office may, in case of doubt, satisfy himself as to the fact of such dependency, and if the person so nomi- nated as a dependent was not, in fact, dependent upon the officer < r employe enlisting, enrolling, or drafted in the military or naval service or any branch or unit thereof, at the time of his enlistment, enrollment or draft, shall refuse to make any payment to such per- son on account of the salary or wages of such officer or employe. Such head of a department, bureau, commission, or office shall also satisfy himself, before making payments to dependents under the provisions of this act, that the officer or employe was alive during the period for which any payment is made. No payment shall be made under the provisidns of this act to any officer or employe en- 228 listing, enrolling,, or drafted, as aforesaid, and so much of the sal- ary or wages of such officer or emploj'^e as is not paid, under the pre • visions of this act, to his dependents and his substitute, shall be recovered back into the fund from which said salary or wages is paid. Sec. 3, Act of June 7, 1917, P. L. 600. The liead of any given department, bureau, commission, or oiSce is vested with the power and duty of finding the fact of dependency in all doubtful cases and making payment or not as dependency may be determined. In re payments to dependents of enlisted State em- ployes. Opinion by Emerson Collins, Dep. Atty. Gen. 3 Dept. Kep. 3237. Also In re payment to dependents of State employes. Opinion by Emerson Collins, Dep. Atty. Gen. 3 Dept. 3441. 229 ARTICLE XXXTI. BUREAU OF MINE INSPECTION AND SURFACE SUPPORT. (318). Every municipal corporation within the limits of the an- thracite region of this Commonwealth may, by ordinance, create a Bureau of Mine Inspection and Surface Stipport, which in cities of the first and second class shall be attached to the Department of Public Works, and under the supervision and control of the Director of said Department. Sec. 1, Act of July 26, 1913, P. L. 1439. The provisions of the act, and all that can be secured through its effective operation, lie dormant until life is given it by municipal leg- islative action and is kept in it by the continuance of such action: Scranton City vs. Rose, 60 Super. Ct. 457, affirming 15 Lack. 122. For violation of its provisions the act carries its own penalty and the remedy therein prescribed is exclusive. City of Scranton vs. Peoples Coal Co., 20 Lack. 145. (319). Said bureau shall consist of one practical mining engineer, to be appointed by the chief executive of such municipal corpora- tions, with the consent of councils, and such other assistants, clerks and employes as may be provided for by councils, and shall be paid such compensation as councils may provide. Sec. 2, Act of July 26, 1913, P. L. 1439. (320). The members of the Bureau of Mine Inspection and Sur- face Support, shall have the right and power to enter, inspect, ex- amine, and survey any mine or colliery within the limits of the municipality, at all reasonable times, either by day or night, but not so as to impede or obstruct the workings of the mine or colliery ; and shall have power to take such other persons as may be necessary for the purpose of making such examination or survey; and the owner, operator, or superintendent of such mine or colliery is hereby required to furnish the means necessary for such entry, inspection, examination, survey, and exit. Section 3, Act of July 26, 1913, P. L. 1439. (321). The owner, operator, or superintendent, of every coal- mine or colliery shall, within three months after the passage and approval of an ordinance by any municipal corporation in this Com- monwealth creating a Bureau of Mine Inspection and Surface Sup- 230 port, authorized by this act, make or cause to be made and furnished to the Bureau of Mine Inspection and Surface Support an accruate map or plan of the workings or excavations of such coal-mine or col- liery, on a scale of one hundred feet to the inch ; which map or plan shall exhibit the workings or excavations in every seam of coal on a separate sheet, and the tunnels and passages connecting with such workings or excavations. It shall state in degrees the general in- clination of the strata, with any material deflection therein in said workings or excavations, and shall also state the tidal elevations of the bottom of each and every shaft, slope, tunnel, and gangway, and of any other point in the mine or on the surface where such eleva- tion shall be deemed necessary by the Bureau of Mine Inspection and Surface Support. The map or plan shall show- the number of the last survey station, and date of each survey on the gangways or the most advanced workings. Sec. 4, Act of July 26, 1913, P. L. 1439. (322). Every mine owner, operator, or superintendent shall place or cause to be placed upon the map of the Bureau of Mine Inspec- tion and Surface Support of each municipality, at least once in every three months, the plan of all extensions made in any mine, within the limits of such municipality, during the three months preceding, except those made immediately within thirty days from the time of placing such extensions upon said map. Sec. .S, Act of July 26, 1913, P. L. 1439. (323). It shall be unlawful for any person, firm, association, or corporation to dig, mine, remove, or carry away the coal, rock, earth or other minerals or materials forming the natural support of the surface, beneath the streets, avenues, thoroughfares, courts, alleys, places, and public highways of any municipal corporation within this Commonwealth, to such an extent and in such a manner as to thereby remove the necessary adequate support of the surface against subsidence, without having first placed, built, erected, and constructed sufficient adequate and permanent artificial support, in place and stead thereof, to maintain, uphold, and preserve the sta- bility of the surface of said streets, avenues, thoroughfares, courts, alleys, places and public highways. Sec. 6, Act of July 26, 1913, P. L. 1439. (324). Any person, being the general manager, superintendent, or person in charge of the work of any corporation, firm or associa- tion violating any of the provisions of this act, shall be guilty of a misdemeanor and upon conviction thereof, before any alderman, magistrate, or justice of the peace, within such municipality, shall 231 be sentenced to pay a fine not exceeding one thousand dollars, or to .undergo imprisonment in the county jail for a period not exceed- ing ninety days, or both, for each offense; each such fine shall be paid into the treasury of the proper municipal corporation. Sec. 7, Act of July 26, 1913, P. L. 1439. (325). The councils of the municipal corporations of this Com- monwealth are hereby authorized to enact such ordinances as may be necessary for the proper enforcement of the provisions of this act. Sec. 8, Act of July 26, 1913, P. L. 1439. 232 ARTICLE XXXIII. DEPARTMENT OF CITY PLANNING. (326). That an additional executive department in the govern- ment of cities of the third class is hereby created, to be known as the Department of City Planning, which shall be in charge of a City Planning Commission, consisting of five persons, to be appointed by the mayor and councils. In the first instance, one membet of said commission shall be appointed for one year, one member for two years, one member for three years, one member for four years, and one member for five years, and annually thereafter, a member of said commission shall be appointed for -a term of five years. An appointment to fill a casual vacancy shall be only for the unexpired portion of the term. All members of the said commission shall re- side within the zone of jurisdiction of said commission, as herein- after defined. They may make and alter rules and regulations for their own organization and procedure, consistent with the ordinances of the city and the laws of the Commonwealth. They shall serve without compensation, and make annually to the mayor and councils a report of their transactions. They may employ engineers and other persons, whose salaries and wages and other necessary expenses of the commission, shall be provided for through proper appropria- tion by councils. Sec. 1, Act of July 16, 1913, P. L. 752. (327). The clerks of council shall, upon introduction, furnish to the City Planning Commission, for its consideration, a copy of all ordinances and bills, and all amendments thereto, relating to the location of any public building of the city; and to the location, ex- tension, widening, narrowing, enlargement, ornamentation, and park- ing of any street, boulevard, parkway, park, playground, or other public ground; and to the relocation, vacation, curtailment, changes of use, or any other alteration of the city plan, with relation to any of the same ; and to the location of any bridge, tunnel, and subway, or any surface, underground, or elevated railway. The said com- mission shall have the power to disapprove any of the said ordi- nances, bills, or amendments, which disapproval however, must be communicated to councils, in writing, within ten days from the in- troduction of said ordinances ; but such disapproval shall not operate as a veto. Sec. 2, Act of July 16, 1913, P. L. 752. 233 (328). The City Planning Commission may make or cause to be made, and lay before councils and at its discretion cause to be pub- lished, maps of the city or any portion thereof, including territory extending three miles beyond the city limits, showing the streets, and highways, and other natural and artificial features, and also locations proposed by it for any new public buildings, civic centre, street, parkway, park, playground, or any other public ground or public improvement, or any widening, extension or relocation of the same, or any change in the city plan by it deemed advisable ; and it may make recommendations to councils, from time to time, concern- ing any such matters and things aforesaid, for action by councils thereto: and, in so doing, have regard for the present conditions and future needs and growth of the city, and the distribution and rela- tive location of all the principal and other streets and railways, water- ways, and all other means of public travel and business communi- cations, as well as the distribution and relative location of all public buildings, public grounds, and open spaces devoted to pub'ic use. Sec. 3, Act of July 16, 1913, P. L. 752. > (329). The City Planning Commission may make recommenda- tions to any public authorities, or any corporations or individuals in said cities, with reference to the location of any buildings, struc- tures, or works to be erected or constructed by them. Sec. 4, Act of July 16, 1913, P. L. 7S2. For powers of the State Art Commission over the design and'lo- cation of public buildings, see Sec. (738). (330). All plans, plots, or re-plots of lands laid out in building lots, and the streets, alleys, or other portions of the same intended to be dedicated to public use, or for the use of purchasers or owners of lots fronting thereon or adjacent thereto, and located within the city limits, or for a distance of three miles outside thereof, shall be submitted to the City Planning Commission and approved by it be- fore it shall be recorded. And it shall be unlawful to receive or record such plan in any public office unless the same shall bear thereon, by endorsement or otherwise the approval of the City Plan- ning Commission. The disapproval of any such plan by the City Planning Commission shall be deemed a refusal of the proposed dedication shown thereon. The approval of the commission shall be deemed an acceptance of the proposed dedication ; but shall not impose any duty upon the city concerning the maintenance or im- provement of any such dedicated parts, until the proper authorities of the city shall have made actual appropriation of the same by entry, use, or improvement. No sewer, water, or gas main or pipes, or other improvement, shall be voted or made within the area under the jurisdiction of said commission, for the use of any such pur- chasers or owners ; nor shall any permit for connection with or other 234 use of any such improvement existing, or for any other reason made, be given to any such purchasers or owners until such plan is so ap- proved. Where the jurisdictional limit of three miles outside of the city limits as provided in this section, may conflict with the zone of similar character connected with another city of the third class, the jurisdiction of said commission shall extend only to the point equi- distant between the city limits and the limits of said municipality. Sec. 5, Act of July 16, 1913, P. L. 752. This act applies to cases where an owner lays' out building lots with streets and alleys dedicated to public use or dedicated to the use of the purchasers or owners of the building lots. City of Chester vs. Wunderlick, 24 D. R. 125, s. c. 12 Del. 566. (331). It shall be proper for said cities to provide, by ordinance, for the exercise of all rights and powers herein conferred upon the City Planning Commission, by a park commission, or kindred munici- pal bureau or commission, authorized under existing laws. And no person holding office under the government of any of said cities, except the mayor, members of councils, or commissioners, shall be ineligible to serve as a member of a City Planning Commission. Sec. 6, Act of July 16, 1913, P. L. 752. 235 ARTICLE XXXIV. ORDINANCES. (332). Where by any existing law or rule of court, or by any law or rule of court that may hereafter be enacted and made, the performance or doing of any act, duty, matter, payment or thing shall be ordered and directed, and where any court shall, by special or other order, direct the performance or doing of any act, matter, payment, sentence or decree, apd the period of time or duration for the performance or doing thereof shall be prescribed and fixed, such time in all cases shall be so computed as to exclude the first, and include the last days of any such prescribed or fixed period, or dura- tion of time: Provided, That whenever the last day of any such period shall fall on Sunday, or on any day made a legal holiday by the laws of this Commonwealth, or of the United States, such day shall be omitted from the computation: And provided. That this act shall not apply to the payment of negotiable paper. . Sec. ], Act of June 20, 1883, P. L. 136. As to the application of this section to cities of the third class see the section immediately following. (333). The provisions of this act shall also apply to the ordi- nances, resolutions, by-laws and other regulations of all municipal or other public [or private] corporations now existing or hereafter created. Sec. 2, Act of June 20, 1883, P. L. 136. (334). From and after the passage of this act, any city of the third class in this Commonwealth is hereby authorized to validate any paving ordinance, heretofore or hereafter illegally passed, whether with or without petition, by repassing the ordinance by a majority of three-fourths of all the members elected to each branch of councils. The repassing of any such ordinance, in the manner aforesaid, shall cure any irregularity or illegality, whether in the pe- tition or in the ordinance: Provided, however. That this act shall not apply to any paving ordinance where the improvement was com- pleted more than two years from the passage hereof. Sec. 1, Act of April 29, 1909, P. L. 296. (335). In all cities [or boroughs] of this Commonwealth the city clerks or the clerks of the select or common council, of the said city [or borough,] whose duty it is to record all ordinances passed 236 by the select and common councils and approved by the mayor, or passed by a legal majority of councils without his approval, or be- coming a law by reason of the mayor not having returned the same, and who have duly published any such ordinance or ordinances, as required by law, but have failed or neglected within the time directed by law, to so record any such ordinance or ordinances, in books pro- vided by the said cities [or boroughs] for that purpose, be and they are hereby authorized to record all such ordinances within thirty days from the passage of this act, with the same power and effect as if originally recorded in time; and each and every of such ordi- nances, when so recorded within thirty days from the passage of this act, shall be as valid and effectual to all intents and purposes as if the same had been recorded within the time and in the manner heretofore directd by law; and all contracts, obligations and pay- ments heretofore made or given, or hereafter to be made or given, in pursuance of any such ordinance or ordinances, shall, when such ordinance or ordinances shall be recorded within the time and in the manner herein provided, be as valid and binding as though the said ordinance or ordinances had been originally recorded within the time and in the manner required by law. Sec. 1, Act of April 8, 190S, P. L. 119. 237 ARTICLE XXXV. WITNESSES AT HEARINGS BEFORE COUNCIL. (336). The councils, and each branch thereof, of any [borough or of any] city of the [second or] third class, within this Common- wealth shall have power to compel the attendance of witnesses, and the production of books, papers and other evidence, at any meeting of the body or any committee thereof, and for that purpose may is- sue subpenas, signed by the President of council or the chairman of the committee, in any pending case of inquiry, investigation or im- peachment, and cause the same to be served and executed in any part of this Commonwealth ; and if any witness shall refuse to testify as to any fact within his knowledge, or to produce any books or papers within his possession or under his control, required to be used as evidence in any such case, the clerk of that branch of council, by whose authority such witness was subpoenaed, shall forthwith re- port the facts relating to such refusal to one of the courts of com- mon pleas of the county within which such [borough or] city is situated; and all questions arising upon such refusal, and also upon any new evidence, not included in said clerk's report (which new evidence may be offered in behalf of or against such witness) shall at once be heard by said court. If the court determines that the testimony or evidence required by such witness is legal and prop- erly competent, and ought to be given or produced by him, then said court shall make an order commanding such witness to testify or produce books or papers (or both, as the case may be) and if such witness shall thereafter refuse to testify or to produce books or papers, as aforesaid, in disobedience of such order of the court, then the said court shall have power to order the commitment of such witness to the county jail of the proper county, for contempt. Any person so called as a witness may be examined under oath, and shall be liable to indictment, conviction and punishment for perjury, in the same manner and to the same extent as if the wit- ness had been called and examined before any committee of the Legislature of the Commonwealth, or in any judicial proceeding be- fore any of the courts thereof, in accordance with existing laws: Provided, That the person or persons outside of such [borough or] city, subpoenaed as aforesaid, shall not be required to respond to the same until they have been furnished with mileage to and from said [borough or] city, at the rate of ten cents per mile, and a per diem allowance of two dollars for the time their presence is desired in said city. Sec. 1, Act of March 19, 1903, P. L. 31. 238 ARTICLE XXXVI. CIVIL SERVICE. (a) List of Eligibles. Preferences to Soldiers, Sailors and Marines. (337). The names of all persons who shall attain the average percentage required by law or the rules and regulations of the board or commission having in charge the civil service examinations in any [county,] city [or borough,] shall be placed on the eligible list for appointmehts under the civil service in such [counties,] cities, [and boroughs]. Sec. 1, Act of June 12, 1919, P. L. 444. (338). The board or commission shall arrange the names of the persons on any eligible list according to their percentage, and shall certify to the appointing power, upon request, the four names stand- ing highest on said list, and the appointing power shall appoint any one of such four persons in like manner as other appointments are made, except as hereinafter provided in the case of honorably dis- charged soldiers, sailors and marines. Sec. 2, Act of June 12, 1919, P. L. 444. (339). Preference may be given, by the appointing power, to all honorably discharged soldiers, sailors, and marines, who served in the Army or Navy of the United States during times of war, who have passed the required civil service examinations, notwithstanding the fact that the names of such soldiers, sailors, and marines may not be among the four names standing highest upon the eligible lists as hereinbefore provided. Such appointments of soldiers, sailors, and marines, may be made without regard to any age limitations now provided for by law or the rules and regulations of any board or commission having in charge civil service regulations in any [county,] city, [or borough]. Sec. 3, Act of June 12, 1919, P. L. 444. (b) Police Department. (340). From and after the passage of this act, no person or per- sons may be appointed to any position whatever in the police de- partment, in any city of the third class in this Commonwealth, with- 239 out having first passed all the examinations hereinafter provided for, and having been appointed in the manner and according to the terms and provisions and conditions of this act. Sec. 1, Act of June 20, 1917, P. L. 618. (341). There shall be appointed and constituted in all said cities of the third class a civil service board, consisting of three citizens, who shall be elected by the city council and who shall serve for four years and until their successors are elected and qualified. One of -the said citizens shall be an educator, and one shall be a physician. At the first election the said council shall elect one per- son to serve for two years, one person to serve for three years, and one person to serve for four years; and upon the expiration of the term of any member of said board, one person shall be elected by the city council to serve upon said board for the term of four years. If any vacancies occur they shall be filled by the city council for the unexpired term. Each oi said members, before entering upon the duties of his office, shall take and subscribe to the oath of office pre- scribed by the Constitution of Pennsylvania, and file the same, duly certified by the officer administering it, with the controller of the city. No salary or otherwise compensation shall be paid to any member of the said board; two members of the board shall consti- tute a quorum necessary for the transaction of business; and said board shall organize under this act, for the purpose of transacting all business, immediately upon the passage of this act. Sec. 2, Act of June 20, 1917, P. L. 618. (342). The board shall, immediately upon organization, prepare and adopt such rules and regulations, to cover the selection and ap- pointment of all persons to be hereafter employed or appointed in the police department in said cities of the third class, as in the judg- ment of said board shall be best adapted to securing the best serv- ice for the public in said department; and such rules and regula- tions shall provide for ascertaining and determining, so far as pos- sible, the physical qualifications, habits, reputation, standing, ex- perience and education of all applicants for such positions, respec- tively; and they shall provide for examinations upon any and all subjects deemed proper or necessary by said board, for the purpose of determining their qualifications for the position sought and ap- plied for. Sec. 3, Act of June 20, 1917, P. L. 618. (343). Said board shall make and keep in numercial order a list containing the names of all apfJlicants for positions in said police department who may pass the required mental and physical exami- nations. Where more than one person takes examinations for any of said positions at the same time, those successfully passing such 240 f h' examination shall be entered upon the list of eligible names in the order of their respective percentages, the highest coming first; the oard shall furnish the council a certified copy of any and all lists so prepared and kept. Wherever any vacancy shall occur or any appointment be required in said police department, the city council spall make wiitten application to the president of said board, who shall forthwith certify to the city council, in writing, the first three names on the list of applicants for positions in the police department ; and thereupon the superintendent of the department of public af- fairs shall nominate to the city council one of the three persons whose names are submitted to fill such positions, and, if the city council approves such nomination, the person nominated shall be appointed to fill such vacancy and shall be assigned for service in the police department. If the council do not approve such nomination, then the superintendent of the department of public affairs shall submit another nomination for such position from the remaining two names ; and, if such nomination is not approved by the council, he shall sub- mit the third name; and the person of the three submitted, whose nomination by the superintendent is approved by the city council, shall be appointed to fill such a position in the police department. The name of the person so appointed shall be immediately stricken from the list of said board, and the names of the two rejected per- sons shall immediately be restored to their former place in said list. Sec. 4, Act of June 20, 1917* P. L. 618. (344). Provisions of this act shall apply to all employes of the said police department; and all appointments made under the pro- visions of this act shall be for and during good behavior; and no employee shall be removed or transferred for any political reasons whatever: Provided, further, however. That among those pers.ons possessing equal qualifications and eligibility for appointment pre- ference in appointment shall be given to honorably discharged sol- diers and sailors who served in the Army or Navy of the United States during the time of war : And provided further, .That all per- sons holding appointments in said police department of said cities at the time this act goes into effect shall remain in office without being required to pass examination, and shall be removed only in ac- cordance with the provisions of this act : Provided further. That, in the case of riot or emergency, temporary appointments in the said de- partment may be made without complying with the provisions of this act. Sec. 5, Act of June 20, 1917, P. L. 618. See also sections (297), (298). (345). All employes of said police depai-ment shall be subject to suspension by the superintendent of the department of public af- fairs for misconduct, or violation of any law of this Commonwealth, 241 any ordinance of the city, or regulation of the said police department, pending action by the city council upon the charges made against any such employes; and on hearing before the city council, where they may be represented by counsel, they may be fined, or suspended for a period not to exceed thirty days, with or without pay, or they may be discharged by city council, if found guilty of the charges made against them : Provided, however, That the said superintendei^t of the department of pubHc affairs may, for misconduct or violation as aforesaid, suspend any employe of said department of police for a period not to exceed ten days, with or without pay, without pre- ferring charges and without a hearing of council. Sec. 6, Act of June 20, 1917, P. L. 618, as amended by Act of May 17, 1919, P. L. 204. See Sec. (110). Council has jurisdiction to hear complaints against policemen only in those cases in which the mayor has first held a preliminary hear- ing, and, upon finding such complaint well founded, has submitted his report to council for its action. Buttorif vs. City of York, et al., Pa. ; Free vs. City of York, Pa. ; affirming 34 York 42. (346). The said civil service board may appoint a secretary and prescribe his duties. He shall be subject to removal at any time by the board, and the board shall have power to change his duties. The compensation to be paid said secretary provided for by this act, and all necessary stationery and supplies for said board, shall be such as council shall by ordinance direct. Sec. 7, Act of June 20, 1917, P. L. 618. (c) Fire Department. (347). From and after the passage of this act, no person or per- son's may be appointed to any salaried position whatever in the fire department, except volunteer departments, in any city of the third class in this Commonwealth, without first having passed all the examinations hereinafter provided for, and having been appointed in the manner and according to the terms, provisions and conditions of this act. Sec. 1, Act of May 3, 1917, P. L. 138. (348). There shall be appointed and constituted in all said cities of the third class a civil service board consisting of three citizens, who shall be elected by the city council, and who shall serve for four years and until their successors are elected and qualified. One of said citizens shall be an educator and one shall be a physician. At the first election the city council shall elect one person to serve for two years, one person to serve for three years, and one person to serve for four years ; and, upon the expiration of the term of any member of said board, one person shall be elected by the city council 242 to serve upon said board for the term of four years. If any vacan- cies occur they shall be filled by the city council, for the unexpired term. Each of said members before entering upon the duties of his office shall take and subscribe to the oath of office prescribed by the Constitution of Pennsylvania, and file the same, duly certified by the officer administering it, with the controller of the city. No sal- ary or other compensation shall be paid to any member of the said board; tvsro members of the board shall constitute a quorum neces- sary for the transaction of business; and said board shall organize under this act, for the purpose of transacting all business, immedi- ately upon the passage of this act. Sec. 2, Act of May 3, 1917, P. L. 138. (349). The said board, immediately upon organization, shall pre- pare and adopt such rules and regulations to cover the selection and appointment of all persons to be hereafter employed or appointed in each of said departments, in said cities of the third class, as in the judgment of said board shall be the best adapted to securing the best service for the public in each and all of said departments; and such rules and regulations shall provide for ascertaining and deter- mining, so far as possible, the physical qualifications, habits, reputa- tion, standing, experience, and education of all applicants for such positions, respectively ; and they shall provide for examinations upon any and all subjects deemed proper and necessary by said board, for the purpose of determining their qualifications for the position sought and applied for. Sec. 3, Act of May 3, 1917, P. L. 138. (350). Said board shall make, and keep in numercial order, a list containing the names of all applicants for positions in each of the several departments who may pass the required mental and physical examinations. Where more than one person takes examinations for any of said positions at the same time, those successfully passing such examinations shall be entered upon the list of eligible names in order of their respective percentages, the highest coming first; and said board shall furnish the council a certified copy of any and all lists so prepared and kept. Whenever any vacancy shall occur or appointment be required in any of said departments, the super- intendent of such department shall make written application to the president of said board, who shall forthwith certify to such super- intendent, in writing, the first three names on the list of applicants for positions in the designated department; and thereupon the superintendent of such department shall nominate to the city council one of the three persons whose names are submitted to fill such posi- tions, and, if the city council approve such nomination, the person nominated shall be appointed to fill such vacancy and shall be as- signed for .service in the designated department. If the council do 243 not approve such nomination, then the superintendent of such de- partment shall submit another nomination for such position from the remaining two names, and, if such nomination is not approved by the council, he shall submit the third name; and the person of the three submitted, whose nomination by the superintendent is approved by the city council shall be appointed to fill such positions and shall be assigned to the designated department. The name of the person so appointed shall be immediately stricken from the list of said board, and the names of the two rejected persons shall immediately be restored to their former place on said list. Sec. 4, Act of May 3, 1917, P. L. 138. (351). The provisions of this act shall apply to all regular sal- aried employes of said fire department; and all appointments made under the provisions of this act shall be for and during good be- havior, and no employe shall be removed or transferred for any political reasons whatever: Provided, further, however. That among those persons possessing equal qualifications and eligibility for ap- pointment, preference in appointment shall be given to them who have served as volunteer or call firemen, and honorably discharged sailors and soldiers who served in the Navy or Army of the United States during the time of war : And, provided further. That all per- sons who have had a total service of two years, and who hold ap- pointment in said department of said cities at the time this act goes into effect, shall remain in office without being required to pass examination, and be removed only in accordance with the provisions of this act : Provided further. That, in cases of emergency, temporary appointments in the said department may be made without complying with the provisions of this act. Sec. 5, Act of May 3, 1917, P. L. 138. See also Sees. (297), (298). (352). All employes of said department shall be subject to sus- pension by the superintendent of the department for misconduct, or violation of any law of this Commonwealth, any ordinance of the city, or regulation of the department, pending action by the city council upon the charges made against any such employes, and on hearing before the city council, where they may be represented by counsel, they may be fined, suspended, or discharged by the city council, if found guilty of the charges made against them. Sec. 6, Act of May 3, 1917, P. L. 138. (353). The said civil service board may appoint a secretary and prescribe his duties. He shall be subject to removal at any time by the board, and the board shall have power to change his duties. The compensation to be paid said secretary provided for by this act, and all necessary stationery and supplies for said board shall be such 244 as councils shall by ordinance direct. This act shall apply in all cities of the third class; but only to regular salaried employes of the fire department in said city, and not to any volunteer fire depart- ment in said city. Sec. 7, Act -hole amount of the taxes charged and assessed in the duplicates which shall be delivered to him during his term of office. In the case of city taxes, the said treasurer shall be required to give one bond, which shall include his duties as city treasurer and as collector of city taxes. All bonds given as aforesaid shall cover the full term of office of the said treasurer: Provided always. That should any of the said authorities levying any tax be of opinion, at any time, that the bond given as aforesaid is not sufficient, the said authority may require the said treasurer, as collector, to give additional security, to be approved in manner as aforesaid ; but the said collector shall not in any event be required to give bond or bonds aggregating in amount in excess of the tax to be collected by him. Sec. 6, Act of June 20, 1901, P. L. 578. (367). All persons who shall make payment during the months of March and April, in each year, of cit\- and poor tax, shall be en- titled to a reduction or abatement of one per centum from the amount thereof ; and all such taxes shall be payable at their face during the months of May and June, in each year. Upon all city and poor tax remaining unpaid on the first day of July in each year, one per centum shall be added thereto; and, upon the first day of each suc- ceeding month thereafter, there shall be added or charged an ad- ditional penalty for non-payment of one per centum, until such taxes are paid, which penalty shall be added to the taxes by said treas- urer, as collector, and be collected by him. 250 Sec. 7, Act of June 20, 1901, P. L. 578, as amended by Acts of June 27, 1913, P. L. 633, and May 29, 1917, P. L. 315, Sec. 3. When the city collects, the penalty for non-payment is one per cent per month; when the courts collect, interest at the legal rate runs from the date of entry of the judgment. Altoona vs. Morrison, 24 Super. Ct. 417. (368). The said trea.surer, as collector of taxes, shall keep his office in the same place occupied by him as city treasurer, which shall be kept open for the receipt of taxes at all times during business hours. All printing and stationery supplies shall be furnished by the proper authorities, respectively. Sec. 9, Act of June 20, 1901, P. L. 578. (369). The said treasurer, as collector of taxes, shall, at least once a month, pay over to himself as city treasurer, or charge him- self therewith, all the city and poor taxes collected by him; and at the same time he shall make a report or return to the superfii- tendent of accounts and finance, verified by affidavit, showing by whom and upon what properties the real estate, city, and poor taxes have been paid. Sec. 10, Act of June 20, 1901, P. L. 578, as amended by Act of May 29, 1917, P. L. 315, Sec. 5. (370). Upon the payment to said treasurer, as said collector, of any taxes assessed against real estate, it shall be his duty to satisfy the real estate taxes thus paid, upon the duplicates in his hands. He shall finally settle with the proper authorities all duplicates of city and poor taxes delivered to him on or before the first Monday of January following the date of the delivery of such duplicates, and pay over the amount charged against him, except such sums as he may be exonerated from collecting by the proper authorities, which exonerations may be made in the manner as heretofore practiced. Upon the expiration of the term of office of the city treasurer, in case of any of the taxes which he was commanded to collect remain un- paid, he shall have the right: (a) To collect all the delinquent taxes, for the space of one year after the expiration of his term of office ; and for this purpose all war- rants issued to him during his term of office shall be effective to him, as collector of taxes, for the space of one year after the expira- tion of his term as city treasurer ; (b) To certify real estate taxes, remaining unpaid and delinquent, to the city solicitor, for filing in the court of common pleas as a city lien; (c) Or he may turn over the unpaid or delinquent taxes on real estate to his successor in office, who- shall have power to collect the same, either by having the same filed in court as a lien or sell the 251 same at public sale, as provided by law authorizing the sale of real estate for the payment of delinquent taxes. In case the said treasurer, as collector of taxes, pays the taxes levied against any real estate, he shall be entitled to collect the same from the person or persons -who are liable therefor, by his warrant, so long as it is in force, and have the said taxes filed in court as a lien, for his use ; and, after the expiration of his term as city treas- urer, he shall continue in office as the collector of school taxes until the end of the then current school year. Sec. 11, Act of June 20, 1901, P. L. 578, as amended by Act of May 29, 1917, P. L. 315, Sec. 6. A tax collector must demand payment of taxes, and if after the time allowed the payment has not been made, he must proceed a,dversely to collect. The accounts of the collector must be settled by the auditing officer, otherwise a succeeding school board may main- tain suit upon the duplicate for taxes therein unaccounted for. City of Pittston vs. Kehoe, 17 Luz. L. R. 293. (371). Upon the settlement of the duplicates of city and school taxes and of any poor taxes which by law are made a lien on real estate, it shall be the duty of the said city treasurer, as collector of said taxes, to make out schedules of said city, school or poor taxes uncollected upon his duplicates, with a brief description of the prop- erties against which the same are assessed, for the pvirpose of hav- ing the same entered for lien or sold, in accordance with existing laws, or laws which may be hereafter enacted. Each schedule shall be accompanied by his affidavit thereto, setting forth that after the proper efforts he could not find sufficient personal property out of which the said taxes or any part thereof could be made or collected, as provided by law : Provided, however, That the failure of the said collector to collect the said taxes from personal property, when the same could have been collected, shall not impair the lien thereof or affect any sale made for the collection thereof: And Provided further. That in case any such collector shall make any willfully false return, he shall be liable therefor to any person or persons in- jured thereby. The schedule of unpaid city taxes, hereinabove pro- vided for, shall be certified by said treasurer, as collector, to the city solicitor of the respective city, for filing in court, with like force and effect as if certified by the city treasurer under existing laws. The schedule of impaid school and poor taxes, when a lien, shall be certified to such officer or person as is now, or shall here- after be, designated to receive the same for filing as a lien in court ; and where no such person is designated, the said schedule may be certified to the solicitor of the authority levying the tax, who may cause the said taxes to be registered as a lien in court, under exist- ing laws, and the certifying of the said schedules by the said treas- 252 urer, as a collector, shall in all cases have the like effect as if the same had been certified by the city treastirer, as aforesaid. Sec. 12, Act of June 20, 190i; P. L. 578. (372). The final accounts and monthly returns of the said treas- urer, as collector of taxes, shall be settled by the proper controllers or authorities entitled to examine and audit the same; and said col- lector shall, in settling his duplicates, state a separate account foi each different tax collected by him. Sec. 13, Act of June 20, 1901, P.. L. 578. (373). The compensation or commission to the said treasurer, as collector of each particular tax, shall be fixed by the respective authority. levying the tax: Provided, however. That this compensa- tion shall not, in any event, be less than one-half of one per centum on all taxes paid him before any penalty has been incurred, and five per centum on all taxes paid him after the penalty has been in- curred. His compensation for collecting city taxes shall be paid by warrant, but he shall have the right to retain his commission or compensation from and out of the other taxes collected by him. Sec. 14, Act of June 20, 1901, P. L. 578, as amended by Act of April 25, 1907, P. L. 117. , All taxes levied by a city of the third class, in the form of a tax and lawfully collected, as such, by the city treasurer, shall be subject to the provisions of this section providing compensation for the treas- urer for the discharge of the duty lawfully imposed upon him. Held, that the city treasurer is entitled to commissions on license taxes an- nually imposed upon persons engaged in certain occupations. Altoona vs. Koch, 52 Super. Ct. 431. (374). In all cases in which the period of two years, the limita- tion of the warrants of the duplicates of the county. State, dog, poor, road, city, township, ward, school, and borough tax collectors, have expired, and in case where the power and authority of said tax col- lectors have expired, or shall expire during the year one thousand nine hundred and nineteen, by virtue of the expiration of their terms of office, and said tax collector or collectors have or shall become personally liable for the taxes contained in said duplicates and war- rants, or any part thereof, by reason of the personal payment or otherwise by the said tax collector or collectors of the said taxes, or any part thereof, without having recovered or collected the same from the person or persons against whom they have been levied and assessed, or without having recovered or collected the same from the person or persons owning the property against which the said taxes have been levied and assessed, the said duplicates and warrants and the powers and authority of the said tax collectors, in all such cases, are hereby revived and extended for another period of two years after the passage of this act, and the said tax collector or collectors, their exeftfut'ors or administr'atcfrs if they are deice'asje'd, or either surety or 253 sureties if the said surety or sureties have paid the said taxes, ars hereby empowered to proceed and collect said taxes from all such persons who have not paid them, residing in said district within which said taxes are assessed, as well as from all persons who may remove or have removed from said city, ward, township, or town- ships, or boroughs, and have neglected to pay the taxes as aforesaid assessed, with the Uke efifect as if said warrant or warrants had not expired by the limitation of the two years as aforesaid, or the term of office of said collector had not expired: Provided, That the pro- visions of this act shall not apply to warrants issued prior to the year one thousand eight hundred ninety-four, and that nothing in this act shall release any bondsman or secui-ity: Provided, That this act shall not apply to cities having special laws on this subject: Pro- vided also. That no collector or the sureties thereof who take ad- vantage of this act shall be permitted to plead the statute of limi- tations in any action brought to recover the amount of any duplicate or warrant so extended or renewed : Provided further. That no sta- tute of limitations shall prevent the collection of any tax for which the warrants and powers and authorities of the said tax collectors have been so, as aforesaid, extended, renewed, and revived. Sec. 1, Act of June 4, 1919, P. L. 381. (b) Exemption of Real Estate from Taxation. (375). All playgrounds, with the equipments and grounds thereof annexed, necessary for the occupancy and enjoyment of the same, founded, endowed, or maintained, by public or private charity, which apply their revenue to the support and repair of such playgrounds and to increase the efficiency and facilities thereof, either in ground or buildings or otherwise and for no other purpose, and ^ owned, leased, possessed, or controlled by public school boards or properly organized and duly constituted playground associations, and ap- proved and acceptec^ by the board of county commissioners or board of revision of taxes of the county in which said playgrounds are situated as such playgrounds, be, and the same are hereby, exempt from [county,] city, [borough, road,] school, and poor taxes for terms of not less than five years : Provided, That a property, real or personal, other than that which is in actual use and occupation for the purpose aforesaid, and from which any inco^.e or revenue is derived, shall be subject to taxation same as heretofore. Sec. 1, Act of June 12, 1919, P. L. 452. (376). All churches, meeting-houses, or other regular places of stated worship, with the ground thereto annexed necessary for the occupancy and enjoyment of the same, all burial grounds not used or held for private or corporate profit, all hospitals, universities, col- 254 leges, seminaries, academies, associations, and institutions of learn- ing, benevolence, or charity, with the grounds thereto annexed and necessary for the occupancy and enjoyment of the same, founded, endowed, and maintained by the public or private charity, and all schoolhouses belonging to any county, borough, or school district, all court-houses, jails, poorhouses, and all other public property used for public purposes, with the ground thereto annexed and necessary for the occupancy and enjoyment of the same, be, and the same are hereby, exempted from all and every [county,] city, [borough, bounty, road,] school, and poor tax: Provided, That all property, real or personal, other than that that which is in actual use and oc- cupation for the purposes aforesaid, and from which any income or revenue is derived, shall be subject to taxation, except where ex- empted by law, for State purposes, and nothing herein contained shall exempt same therefrom : And provided. That all property, real and personal, in actual use and occupation for the purposes aforesaid, shall be subject to taxation, unless the person or persons, associa- tion or corporation, so using and occupying the same, shall be seized of the legal or equitable title in the realty and possessor of the per- sonal property absolutely. Sec. 1, Act of July 17, 1919, P. L. 1021. (c) Adjustment of Taxes Between City and Borough De- tached from City. (377). And it is further provided that in all cases where an as- sessment has been made and tax duplicates issued and in the hands of persons authorized to collect taxes levied prior to the establish- ment of a borough as provided in this act, then such an adjustment shall be made by the authorities ruling in such city and borough as will secure to said borough a just and equitable proportion of the taxes collected within the limits thereof for the current year imme- diately preceding such organization of a borough government; and nothing herein shall be construed in such a way as to prevent the proper authorities of such citj' collecting taxes upon tax duplicates that were issued and in the hands of tax receivers or collectors at the time of the establishment of a borourrh in pursuance of this act. Sec. S, Act of April 18, 1877, P. L. 55. This section applies to cases where two or more boroughs have been joined together to form a city of the third class and the inhabitants of a portion of the territory included therein desire to separate from the city and re-establish a borough organizatioru; The first four sec- tions of the act are repealed by the Act of May 14, 1915, P. L. 312. 255 (d) Collection of Delinquent Taxes by Treasurers' Sales. (378). In addition to the remedies now provided by law for the collection of delinquent city taxes, the city treasurers of the several cities of the second class and third class of this Commonwealth are hereby authorized and empowered to sell at public sale, in the man- ner hereinafter provided, all such property upon which the taxes, as- sessed and levied, have not been paid and have become delinquent. Sec. 1, Act of March 30, 1903, P. L. 106. Delinquent taxes in cities of the third class are collected under this act by treasurer's sale, or under the Act of June 4, 1901, P. L. 364 by lien. See Article on Collection of Municipal and tax claims. Sections (392) to (435). (379). Such sales shall be made on the first Monday in June, in the year succeeding the year in which the respective taxes are as- sessed and levied, or on any day to which such sale may be adjourned, or on any first Monday of June in any succeeding year. Sec. 2, Act of March 30, 1903, P. L. 106. (380) . - Where the respective treasurer has not already in his hands the duplicates of said taxes, or certificates or schedules thereof, it shall be the duty of any receiver or collector of taxes, or other per- son having such delinquent taxes in his hands, to certify to the said city treasurer -schedules of all unpaid taxes, with descriptions of the property assessed; and it shall be the duty of the city treasurer to advertise for sale all the lands upon which it appears the taxes have not been paid, as shown by the duplicates in his hands, or by the returns or schedules certified to him, as aforesaid. Said advertise- ment shall be made, once a week for three successive weeks prior to the day of sale, in at least tv/o newspapers of general circulation, printed and published in the respective city, aiid, in case two news- papers are not published in said city, then publication shall be made in two newspapers printed and published in the county in which said city is situate; and said treasurer shall also cause to be posted or tacked, in a conspicuous place on each parcel or lot of land ad- vertised for sale, at least ten days prior to the day of sale, a notice stating that said lands will be sold by said treasurer, for delinquent taxes, on a certain day and time, and at a certain place within the city, for which posting of notice he shall receive and tax as costs twenty-five cents for each notice : Provided, That no sale shall be valid where the taxes have been paid prior to said advertisement, or where the taxes and costs have been paid after advertisement and before sale: And provided further. That the lands sold under this act may be redeemed by the owner, or by any one interested in said lands, at any time within two years after such sale, by the payment to the city treasurer of the full amount which the purchaser paid to said treasifre'r for taxes and cfoBt's, anid twentyMjive pW cewtum in ia9o addition thereto ; and when the sale has been made for less than the taxes and costs, the party redeeming shall pay to said treasurer the balailce of taxes and costs which were not made by the sale of the said property. In case there are any city taxes, levied cither before or after the said sale, which remain unpaid, the person redeeming shall pay the same ; and in case the purchaser has paid any taxes of any kind whatsoever, assessed and levied against said property, the same shall be reimbursed to said purchaser before any redemption shall take effect. The said treasurer shall keep in his office a book, in which he shall enter all. the sales made by him; giving a descrip- tion of each property sold, the name of the person as the owner thereof as the same appears upon the duplicate, or has been returned to him, the time of sale and the price at which sold, together with the cost. Each respective city shall have the right to bid, at any such sale, the amount of taxes and costs, and if necessary purchase such lands. Sec. 3, Act of March 30, 1903, P. L. 106. (381). It shall be the duty of the purchaser or purchasers at said treasurer's sale, as soon as the property is struck down, to pay the amount of the purchase money, or such part thereof as may be necessary to pay all the taxes and costs, as also one dollar and fifty cents, for the use of the prothonotary, for entering the report of the treasurer and acknowledgment of the treasurer's deed, as hereinafter mentioned; and in case said amount is not forthwith paid, after the property is struck down, the sale may be avoided and the property immediately put up again by the said treasurer: Provided, how- ever. That this section shall not apply when the lands are purchased by said city. Sec. 4, Act of March 30, 1903, P. L. 106. (382). It shall be the duty of the city treasurer, at the first term of a court of common pleas of the proper county succeeding such sale, to make a report and return ; wherein he shall set forth a brief description of the land or property sold, the name of the person (where known) in which the same is assessed,Hhe amount of tax, and the year for which the same is assessed, the time when and the news- papers in which the advertisement for sale was made, with a copy of said advertisement, the time of sale, the name of the purchaser, and the price for which each respective property was sold ; and upon the presentation of said report or return, if it shall appear to said court that such sale has been regularly conducted, under the provisions of this act, the said report and the sale so made shall be confirmed nisi ; in case no objections or exceptions are filed to said sales within ten days, a decree of absolute confirmation may be entered, as of course, by the prothonotary. In case any objections or exception'? are filed, they shall be disposed of according to the practice of saiJ 257 17 courts and when the same are overruled or set aside, a decree oi absolute confirmation shall be entered, as aforesaid; but all objections or exceptions shall be confined to the regularity of the proceedings of said treasurer. Sec. 5, Act of March 30, 1903, P. L 106. (383). After any sale of property or lands for delinquent taxes has been confirmed by the court, as aforesaid, it shall be the duty of the purchaser or purchasers, where the bid exceeds the taxes and costs as aforesaid, to make and execute to the said treasurer, for the use of the persons entitled, a bond for the surplus money that may remain after satisfying and paying all the taxes and costs, as afore- said, with warrant of attorney to confess judgment annexed thereto; and it shall be the duty of said treasurer to forthwith file said bond in the office of the prothonotary of the proper county, at the number and term where said report and i^eturn is filed; and the surplus bond, filed as aforesaid, from the time of the date of the deed for property thus sold, shall bind as effectually, and in like manner as judgments, the land by said treasurer sold, into whose hands or possession soever they may come; and the owners of said lands at the time of sale, their heirs or assigns, or other legal representatives, may, at any time within five years after such sale, cause judgment to be entered in said court upon said bond, in the name of said treas- urer, for the use of said owners, their heirs, assigns or legal repre- sentatives (as the case may be), and in case the moneys mentioned in said bonds, with legal interest thereon from the time it is de- manded, be not paid within three months after such entry, execution may forthwith issue for the recovery thereof. Sec. 6, Act of March 30, 1903, P. L. 106. (384) . When the purchaser has paid the amount of his bid, or such portion thereof as he is required to pay under this act, and has given the surplus bond as above required, it shall be the duty of the city treasurer to make the said purchaser or purchasers his or their heirs or assigns, a deed in fee simple for the lands sold, as aforesaid, and the said deed or deeds to duly acknowledge in the court of common pleas; and such acknowledgment shall be duly entered and recorded by the prothonotary of said court in the treasurer's deed book, and for such service and the entry of the report of said treasurer said prothonotary shall receive the sum of one dollar and fifty cents. Sec. 7, Act of March 30, 1903, P. L. 106. (385). Where the owner or other person interested in the land thus sold shall redeem the same, it shall be the duty of the city treas- urer to acknowledge the receipt of the redemption moneys, upon the margin of the acknowledgment of the treasurer's deed, as the same is entered and recorded in the prothonotary's office, as aforesaid, 258 and thereafter said deed shall be void and of no effect; and there- upon such owner or person interested, as aforesaid, shall be entitled to have the treasurer's deed delivered up to him, her or them, by the purchaser, for cancellation. And it shall be the duty of the said treasurer to pay to said purchaser all the moneys he had paid at the time of sale, together with the twenty-five per centum penalty thereon ; and it shall also be the duty of said treasurer to enter upon the book of sales kept by him, as hereinbefore provided, an ac- knowledgment or receipt showing that the owner or party interested redeemed the same therein, giving date of redemption and amount of money received. Sec. 8, Act of March 30, 1903, P. L. 106. (e) Revenues Received from Commonwealth from Taxes on Foreign Fire Insurance Companies. (386). On and after the first day of January, one thousand nine hundred and nineteen, and annually thereafter, there shall be oaid by the State Treasurer to the treasurers of the several cities, town- ships, and boroughs within the Commonwealth, the entire net amount received from the two per centum tax paid upon premiums by for- eign fire insurance compapies. The amount to be paid to each of th? treasurers of the several cities, townships, and boroughs shall be based upon the return of said two per centum tax upon premiums re- ceived from foreign fire insurance companies doing business within the said cities, townships, and boroughs, as shown by the Insurance Commissioner's report. Warrants for the above purposes shall be drawn by the Auditor General, payable to the treasurers of the sev- eral cities, townships, and boroughs, in accordance with this act, whenever there are sufficient funds in the State Treasury to pay the same. Sec. 2, Act of June 28, 189S, P. L. 408, as amended by Acts of April 20, 1905, P. L. 229, and April IS, 1919, P. L. 964. The purpose is not expressed in the act, but it is understood to be to provide a fund for the relief of disabled firemen. The selection of those persons who shall participate in its distribution is exclusively within the legislative discretion of council. Com. vs. Smith, 10 North, 340, s. c. 2 Leh. Co. L. J. 143. An ordinance of a city appropriating money received from the state under this act to a fireman's relief association does not violate article 9, section 7 of the state constitution. Com. vs. Barker, 211 Pa. 610. 259 ARTICLE XXXVIII. COLLECTION OF MUNICIPAL AND TAX CLAIMS. (a) By Suit. (387). "Recovery may be had on claims for city taxes, water- frontage tax, lighting frontage tax, water taxes, lighting rates, sew- erage rates, piping, paving, repaving, curbing, or recurbing of side- walks, cost and expense of the removal of nuisances, for assessments for sewerage, sewer connections, grading, macadamizing or paving any public street, lane, alley, or part thereof, or for assessments for damages or benefits, and contributions lawfully imposed for the opening or vacation thereof, or the changing of water courses, and all other matters that may be subject of claim, in pursuance of this act or any other act and the laws and ordinances of any of said cities, in the court of common pleas of the proper county or before any magistrate having jurisdiction of the amount, by action at law to recover a general judgment against the owner or owners of property upon which the assessments were made ; * * * * * " Part of Sec. 22, Art. XV, Act of May 23, 1889, P. L. 277, as amended by Sec. 33, Act of May 16, 1901, P. L. 224. Under Sec. 37, Act of May 23, 1874, P. L. 230, no apportionment of any tax, cost or expenses between an owner at the time the as- sessment was made and an owner subsequently purchasing "shall af- fect the personal liability of the owner at the time of the assessment or register for the whole amount of the tax, interest and costs, in- cluding the per centum commission for delay of payment." Unless the claim has been registered and filed, a paving assessment cannot be collected by the city by action of assumpsit. Scranton vs. Robertson, 28 Super. Ct.' 55, affirming 5 Lack. J. 145. The act bases the right of recovery on a lien filed; scire facias thereon will result in a general judgment by the terms of the act, but a general judgment cannot be obtained on an unregistered claim by the common law action of assumpsit. A city cannot recover from a landowner the cost of repairing a pavement, once it has been laid. Scranton City vs. Sturges, 202 Pa. 182. See Sec. (365). (388). Hereafter all municipalities of the Commonwealth of Pennsylvania may proceed for the recovery of any municipal claim or claims, whatsoever, by lien or by action of assumpsit; and authority is hereby conferred upon justices of the peace to enter- tain such actions of assumpsit, to the limits of their jurisdiction. 260 Sec. 1, Act of April 4, 1907, P. X.. 40, as amended by Sec. 1, Act of March 25, 1909, P. L. 78. The municipal claim for which there may be a recovery under this section by action of assumpsit means not only a claim which might be ascertainable from the confirmed report of the viewers, but also must be a claim filed within the period fixed by the Act of June 4, 1901, P. L. 364, as amended by Act of June 20, 1911, P. L. 1076. Un- less so filed such claim is wholly lost. Effect of misnomer. Young- wood Borough vs. Gay, 7 West. L. J. i; affirmed in 71 Super. Ct. 154. This act is constitutional. The mere filing of a municipal claim for an assessment for a street improvement will not bar the municipality from proceeding by an action of assumpsit for the collection of the claim. Phila. to use, vs. DeArmond, 63 Super. Ct. 436. For distinction between the lien of a municipal claim upon prop- erty assessed and the procedure for its recovery, see McKeesport Bor- ough vs. Fidler, 147 Pa. 532. In an action of assumpsit under the Act of April 4, 1907, P. L. 40, for municipal improvements assessed under the Act of May 16, 1891, P. L. 75, and its supplements an affidavit of defense is sufficient which sets forth that no assessment had been made against the defendant, as the owner of any property, and that no notice had been served upon him. Borough of Youngwood vs. Gay, 71 Super. Ct. 154, affirming 7 West. 1. In an action of assumpsit under this act, it was imperatively neces- sary for a use plaintiff, bringing suit in the name of the municipality, under the practice Act of May 25, 1887, P. L. 271, to annex to the statement of claim a copy of the contract between the municipality and the use plaintiff. Philadelphia to use vs. DeHaven, 38 Super. Ct. 541. This act has. no retroactive effect and does not apply to the cases in which a road improvement had been completed and benefits assessed prior to its enactment. It imposes upon the owner of property a per- sonal liability to which he was not subject before, and therefore af- fects rights and not merely the remedy. Allentown vs. Roth, 231 Pa. 140, affirming 4 Leh. 136; Barnesboro vs. Speice, 40 Super. Ct. 609; Philadelphia vs. DeHaven, 41 Super. Ct. 265; Crafton Borough vs. Richards, 17 D. R. 835; 55 P. L. J. 279. In Miller's Estate, 18 D. R. 225, this act was held retroactive. (389). In addition to remedies provided by law, that all cities, [boroughs, first class tow^nships, incorporated towns, and any other municipalities] may proceed for the recovery and collection of any municipal claim or claims whatsoever by action of assumpsit against the owner or owners of the property affected by any municipal im- provement: Provided, That the provisions of this act shall extend to all municipal claims wherein the claim has been entered against the property as a lien : And provided further. That this act shall ex- tend to all municipal improvements heretofore made where the right of action in assumpsit has been instituted under the provisions of prior acts of Assembly and where the claim is not barred by the statute of limitations affecting actions of debt or assumpsit: Pro- vided, That such action in assumpsit shall be commenced within 261 three years after the completion of the work for which said claim arises. Sec. 1, Act of July 8, 1919, P. L. 786. A municipal claim for the cost of grading, paving and curbing, which was not filed in the court of common pleas, cannot be recovered in an action of assumpsit. This act is retroactive in effect, and its title is sufficient. Scott Township vs. Davis, 68 P. L. J. 217. (390). "Nor shall the defendant or defendants, or other persons, in any writ of fieri facias, venditioni exponas, or levari facias, be entitled to claim any exemption imder a levy and sale of any real estate charged with such tax, against the allowance or payment of the same." Part of Section 12, Article XV, Act of May 23, 1889, P. L. 277, as amended by Act of May 23, 1895, P. L. 118, Sec. S. (391). "In all cases where lands are sold for the payment of any tax or claim of said city, it shall be lawful for the said city to become the purchaser of the lands so offered for sale: Provided, however, That the amount bid for the respective property shall not exceed the amount necessary to secure the claims oi amounts due the said city, together with the costs of sale." Sec. 25, Art. XV, Act of May 23, 1889, P. L. 277-325. This section is repealed as to sales under the municipal claim act of June 4, 1901, P. L. 400, but is probably in force as to sales under a general judgment secured under section (.387). (b) By Lien. Note. Delinquent taxes may also be collected by treasurers sale under the Act of March 30, 1903, P. L. 106, see sections (378) to (385). (392). The word "taxes" as used in this act means any [county,] city, [borough, township,] school [bridge, road or] poor taxes. The word "highway" as used in this act, means the whole or part of any public street, public road, public lane, public alley, or other public highway. The words "tax claim," as used in this act, mean the claim filed to recover taxes. Part of Sec. 1, Act of June 4, 1901, P. L. 364. (393). The words "municipal claim," as used in this act, mean the claim filed to recover for the grading, guttering, macadamizing, or otherwise improving, the cartways of any public highway ; for grad- ing, curbing, recurbing, paving, repaving, constructing, or repairing the footways thereof; for laying water-pipes; gas-pipes, culverts, ?ewers, branch sewers, or sewer connections therein ; for assessments for benefits in the opening, widening or vacation thereof; or in the changing of water-courses or the construction of sewers through 262 private lands ; or in highways of townships of the first class ; or in the acquisition of sewers and drains constructed and owned by in- dividuals or corporations, and of rights in and to use the same; for the removal of nuisances ; or for water rates, lighting rates, or sewer rates. Part of Sec. 1, Act of June 4, 1901, P. L. 364, as amended by Sec. 1, Act of May 28, 1915, P. L. 599. The words "otherwise improving" includes paving. See also sec- tion (399). Philadelphia to use vs. Pemberton, 208 Pa. 214; Philadel- phia to use vs. Pemberton, 25 Super. Ct. 323, reversing 29 Pa. C. C. 252, s. c. 12 D. R. 743. (394). The word "claimant" as used in this act, means the plain- tiff or use-plaintiff, in whose favor the claim is filed as a lien. The word "contractor" as used in this act, means the person or persons, who, under contract with the legal plaintiff, performed the work for which the lien is given. Part of Sec. 1, Act of June 4, 1901, P. L. 364, as amended by Sec. 1, Act of May 28, 1915, P. L. 599. A municipal lien filed to use will not be stricken off because it is signed by attorney designating liimself as solicitor for claimant as word claimant means plaintiff or use-plaintiff. Prospect Park Boro. vs. Duhring, 14, Del. Co. 315. (395). The word "owner," as used in this act, means the person or persons in whose name the property is registered, if registered ac- cording to law; and in all other cases means any person or persons in open, peaceable, and notorious possession of the property as ap- parent owner or owners thereof, if any, or the reputed owner or owners thereof, in the neighborhood of such property. Part of Sec. 1, Act of June 4, 1901, P. L. 364, as amended by Sec. 1, Act of May 28, 1915, P. L. 599. See sections (405), (407). One who holds the legal title but enters into an executory agree- ment to sell is the "owner" of the property sufficient to support an assessment for a municipal claim. Youngwood Borough vs. Gay, 7 West. L. J. 1. A life tenant is an "owner" and his estate is properly chargeable for the construction of a sidewalk in front of the property. York City vs. Beitzel, 41 Super. Ct. 194, reversing 21 York 100, 2 Leh. Co. L. J. 315. (396). The word "property" as used in this act, means the real estate subject to the lien, and against which the claim is filed as a lien. Part of Sec. 1, Act of June 4, 1901, P. L. 364. The roadbed of a public road is not "real estate" within the mean- ing of this section. Philadelphia vs. Fhila. and Reading R. R. Co., 38 Super. Ct. 529-531; Philadelphia to use vs. Fairhill R. R. Co., Nos. 1 and 2, 41 Super. Ct. 245-246. 263 (397). All taxes which may hereafter be lawfully imposed or as- sessed on any property in this Commonwealth, in the manner and to the extent hereinafter set forth, shall be and they are hereby de- clared to be a first lien on said property, together with all charges, expenses and fees added thereto for failure to pay promptly; and such liens shall have priority to and be fully paid and satisfied out of the proceeds of any judicial sale of said property, before any other obligation, judgment, claim, lien or estate with which the said prop- erty may become charged, or for which it may become liable, save and except only the costs of the sale and of the writ upon which it is made. Sec. 2, Act of June 4, 1901, P. L. 364. Sec. 12, Art. XV, Act of May 23, 1889, P. L. 277, as amended by Act of May 23, 1895, P. L. 118, Sec. 5, provides inter alia, as follows: — "Nor shall the defendant or defendants or other persons in any writ of fieri facias, venditioni exponas or levari facias be entitled to claim any exemption under a levy and sale of any real estate charged with such tax against the allowance or payment of the same." See sections (398), (435), with notes. On a petition to a tax collector for an order on the receiver of a corporation to pay to the petitioner certain taxes which are claimed to be a first lien on the real estate of the company and of which petitioner claims priority of payment the^ourt will not decide whether the taxes are a first lien on real estate assessed in a proceeding to which the other creditors are not parties and have not had an opportunity to' be heard. Antran vs. Receivers of Tower Hill Connellsville Coal and Coke Company, 64 P. L. J. 239, s. c. 44 Pa. C. C. 278, 25 D. R. 773. Taxes do not constitute a Hen on real estate, unless some statute declares that they are a lien. To justify the sheriff in distributing moneys arising under execution to tax claims the taxes claimed must be a lien upon the property. First National Bank of Bridgeville vs. Pittsburgh Silica Co. 12 J. L. R. 281. Taxes, levied and assessed, are made a first lien upon real estate, whether the amount is filed in the prothonotary's office as a lien or not, and payable out of the funds in the hands of officers making forced sales of real estate; the lien of such taxes is divested. Nevling vs. Corley, 15 D. R. 151. Taxes for the current year are payable out of the proceeds of ■» sheriff's sale of real estate, sold on an execution to collect a debt other than taxes, although the claim has not been registered with the pro- thonotary and there is personal property on the premises. The lien is not created by registering the tax claim. That serves only to pre- serve an existing lien. McKinney et al vs. Schlingmann et al., 24 D. R. 1097, s, c. 16 Lack. J. 60; 6 M. L. R. 214. Right to demand from a receiver payment of taxes as a first lien where no formal lien was ever filed, not decided. Antram vs. Tower Hill Connellsville Coal and Coke Company Receivers, 25 D. R. 773, s. c. 44 Pa. C. C. 278, 64 P. L. J. 239. While municipal liens accrued or filed since the passage of the Act of June 4, 1901, P. L. 364, are not preferred to municipal liens, judg- ment or mortgages filed before that act, tax liens are preferred. As to tax liens see Haspel vs. O'Brien, 218 Pa. 146; Centre County vs. Weaver, 35 Pa. C. C. 334. 264 (398). All municipal claims which may hereafter be lawfully im- posed or assessed on any property in this Commonwealth, in the man- ner and to the extent hereinafter set forth, shall be and they are hereby declared to be a lien on said property, together with all charges, expenses and fees added thereto for failure to pay promptly, and said liens shall have priority to and be fully paid and satisfied out of the proceeds of any judicial sale of said property, before any other obligation, judgment, claim, lien or estate with which the said prop- erty may become charged, or for which it may become liable save and except only the costs of the sale and of the writ upon which it is made, and the taxes imposed or assessed upon said property. Sec. 3, Act of June 4, 1901, P. L. 364. See sections (387), (388), (389), (397), (426), (435), with notes. Section 20, Article XV, Act of May 23, 1889, P. L. 277, as amended by Sec. 32, Act of May 16, 1901, P. L. 224, provides as follows:— (398a). "All special taxes levied or assessments made for water- frontage tax, light frontage tax, sewerage tax, piping, paving, repav- ing, curbing, or recurbing sidewalks, grading, changing grades of ma- cadamizing, or paving any public street, lane or alley, or part thereof, for assessments of damages or benefits, and contributions lawfully im- posed for the opening, widening or vacation thereof, or the changing of water courses, and for all other purposes except general taxes, (the remedies for the collection of which shall be as herein provided,) that may be the subject of claim, entered in pursuance of this or any other act and the laws and ordinances of any of said cities, shall be paid within such time as councils may provide by ordinance; and if not so paid, five per centum penalty shall be added thereto, and such claim shall also bear interest at such rate per centum as may be fixed by ordinance, not exceeding six per centum." Municipal liens, entered since June 4, 1901, have no priority over mortgages created prior to the passage of the Act of June 4, 1901, P. L. 364. Martin vs. Greenwood, 27 Super. Ct. 245. A municipal lien for lighting rates, water rents, taxes, and the like, attaches at the time when the rates are lawfully assessed or imposed, and if the formal declaration of the claim in detail is filed within the statutory period, the lien will be preserved and relate back to the time when the rate or tax w^as lawfully imposed. The provision authoriz- ing a lien for the municipal lighting rates is constitutional and doe! not offend against Sec. 7, Art. Ill, which prohibits the enactment of any local or special law authorizing the creation of liens. Franklin Guards Association vs. Beyer, 70 Super. Ct. 263. In a sheriff's sale on a first mortgage a municipal lien filed after the Act of June 4, 1901, P. L. 364, is not preferred to a mortgage, judg- ment or municipal lien accrued and filed previous to that act. Oil City BuUding and Loan Association vs. Shanfelter, 29 Super. Ct. 251; Gibbons vs. Cochran, 32 Super. Ct. 185. Tax liens contra. See Haspel vs. O'Brien, 218 Pa. 146, reversing 32 Super. Ct. 147, and Gibbons vs. Cochran 32 Super. Ct. 185. (399). The lien for taxes shall exist in favor of and the claim therefor may be filed against the property taxed by, any county, city, borough, township, school district, road district, or poor district to which the tax is payable. The lien for the removal of nuisances shall 265 exist in favor of, and the claim therefor may be filed against the prop- erty from which it is removed or by which it is caused, by any city, borough, or township, by or for which the nuisance is removed. The lien for grading, guttering, paving, macadamizing, or otherwise im- proving the cartways of any highways ; for grading, curbing, recurb- ing, paving, repaving, constructing, or repairing the footways thereof ; or for laying water pipes, gas pipes, culverts, sewers, branch sewers, of sewer connections in any highwa}'' ; for assessments for benefits in the opening, widening or vacation thereof; or in the changing of water courses or construction of sewers through private lands; or in highways or townships of the first class; or in the acquisition of sewers and drains constructed and owned by individuals or corpora- tions, and of rights in and to use the same ; or for water rates, light- ing rates, or sewer rates, or rates for any other service furnished by a municipality, — shall exist in favor of, and the claim therefor may be filed against the property thereby benefited by, the city, borough, or township extending the benefit. Where the contractor performing the work is to be paid by assessment bills, the lien shall exist for, and the claim shall be filed to, his vise, and he shall under no circum- stances have recourse to the city, borough or township authorizing the work. Sec. 4, Act of June 4, 1901, P. L. 364, as amended by Sec. 2, Act of May 28. 1915, P. L. 599. See sections (387), (388), (389), (396), (400), (411), with notes. Sec. 21, Art. XV, Act of May 23, 1889, P. L. 277 provides;— "In all contracts for improvements, the cost of which is to be paid by assessments upon the property abutting or benefited, the city may enter into an agreement with the contractor that he shall take an as- signment of such assessment in payment of the amount due him un- der the terms of his contract, and in such case the city shall not be otherwise liable under such contract, whether said assessments are collectible or not; * ♦ * * *." A municipality can impose a valid municipal lien for street improve- ments only when the improvements are made in pursuance of law and the mode pointed out by the city ordinance is strictly followed. Scranton Sewer, 213 Pa. 4. The Act of June 4, 1901, 364, as amended, does not take away from a municipality any remedy which it before that time had for the col- lection of taxes or claims in a manner other than by filing a lien. The owner or occupier of real estate could be proceeded against person- ally where he was under previous legislation personally liable. And a municipality can enforce a regulation stopping the supply of water unless all arrearages are paid, whether owing by the tenant in posses- sion who acquired his title at a sheriff's sale or by his predecessors. Kohler vs. Reitz, 46 Super. Ct. 350. The road bed or right of way of a street railway company, covered with tracts, is not subject to a lien since a pavement confers no benefit on the property known as the right of way, but ground not occupied or used for its road bed is subject to a municipal lien for street im- provements. Borough of Dormant vs. Mount Washington Street Rail- way Company, No. 1, 63 P. L. J. 556. 266 A municipality may file a lien for abating a nuisance on an unadopted street, and where other items are improperly included, each for a specific amount, for which the municipality had no right to file a lien, the court may strike off the improper items without affecting the validity of the lien for the cost of abating the nuisance. Philadelphia vs. Hyde, 48 Super. Ct. 269. A municipal lien may be filed, for paving a cartway. Such lien is not invalid because the paving contract required the contractor to keep the pavement in repair for five years where it appears that the pavement laid in accordance with the specifications will last five years without repairs and the contract price did not include any charges for repairs or maintenance or guarantee. Philadelphia to use vs. Pem- berton, 203 Pa. 214; Philadelphia to use vs. Pemberton, 25 Super. Ct. 323, reversing 29 Pa. C. C. 252, s. c. 12 D. R. 743. In a lien filed to use, the use plaintiff is entitled to recover all that the municipality could have recovered including the penalty. Borough of Lansdowne vs. Phipps, 12 Del. Co. 235. Where improvement bonds were issued to a contractor and accepted by hira for paving a street, and the bonds provide that they shall rest upon and be payable out of assessments and from no other fund and a lien is filed by the municipality, it was not necessary to file the claim to the use of the contractor as the contractor was paid by the bonds and not by the assessment bills. York City vs. Eyster, 68 Super. Ct. 104, affirming 29 York 193; York City vs. Holtzapple, 67 Super. Ct. 596 affirming 7 Leh. Co. L. J. 193, 30 York 173. (4-00). All real estate, by whomsoever owned and for whatso- ever purpose used, shall be subject to all taxes' and municipal claims herein provided for; except that all property owned by the State, county, city or other municipal divisions, and actual places of re- ligious worship, places of burial not used or held for private or cor- porate profit, and institutions of purely public charity, shall not be subject to tax or municipal claims except for removal of nuisances, for sewer claims and sewer connections, or for the recurbing, paving, repaving, or repairing the footways in front thereof. All other real estate, by whomsoever owned and for whatsoever purpose used, shall be subject to all tax claims and municipal claims herein provided for: Provided, however. That notTiing in this act contained shall hinder or prevent any city, borough, or township of the first class from pro- viding that any municipal work may be done at the expense of the public generally, and be paid out of the general city, borough or township funds. Sec. 5, Act of June 4, 1901, P. L. 364, as amended by Sec. 3, Act of May 28, 1915, P. L. ,599. This section does not violate Art. 3, Sec, 3, of the Constitution as containing subject matter not sufficiently expressed in the title of the act. Garrick vs. Canavin, 243 Pa. 283. Nor does it violate Art. 3, Sec. 7 or Art. 9, Sections 1 and 2 of the Constitution. Pittsburgh vs. Cal- vary Cemetery Association, 44 Super. Ct. 289. 267 The road bed of a public railroad is not "real estate" within ths meaning of this section and is not subject to assessment for local tax- ation or municipal claims. Philadelphia vs. Phila. and Reading R, R. Co., 38 Super. Ct. 529-531, Philadelphia to use vs. FairhUl R. R. Co., Nos. 1 and 2, 41 Super. Ct. 245-246. When a municipality adopted one system of payment in paving cer- tain streets it was not prohibited from adopting another system for different streets. A municipality may properly discriminate between different localities and different streets without abuse of discretion. York City vs. Eyster, 68 Super. Ct. 104; affirming 29 York 193, 30 York 29. Where the charter of a cemetery company exempts the land of the company and the burial lots therein "from execution, attachment, tax- ation or any other claim, lien or process,'' a municipal lien for a sewer improvement cannot be filed against the land of the company or the burial lots. This section does not repeal those charter immunities. Union Dale Cemetery Company's Case, 227 Pa. 1. A playground connected with a parochial school which dispenses education to the public freely and without discrimination, is an insti- tution of purely public charity and is not subject to tax or municipal claims. Chester City vs. Prendergast, 31 York 5, s. c. 14 Del. Co. 226. An unused portion of a church lot is not exempt from a municipal claim for paving. Parnassus Borough vs. Parnassus United Presby- terian Church, 43 Pa. C. C. 142, s. c. 4 West. L. J. 155. A cemetery is not within the provisions of this section when the cemetery is owned by an incorporated church congregation, which sells lots to its members and non-members and places the proceeds in its own treasury and uses them for church purposes; and this is the case although it appears that the church was still indebted for a con- siderable portion of the purchase money of the land and for the cost of improving it for burial purposes and there was evidence of an in- tention to purchase the land not as an investment, but only and solely as a place of burial. Mount Oliver Borough vs. First German Evan- gelical Lutheran St. Paul's Congregation of East Birmingham, 51 Super. Ct. 343. A cemetery that had not fenced in or dedicated to burial purposes a portion of its land abutting on a street which was being paved, and had sold lots only to members of the church with which it was con- nected, its funds being mingled with tjjose of the church and expended for general church purposes is not within the exemption provided in this section. Eighteenth Street, 42 Pa. C. C. 253, s. c. 62 P. L. J. 265, 6 M. L. R. 50. A church corporation having signed a petition to councils for a street improvement, thereby indicating its intention ot pay its pro- portionate share of the cost thereof will be estopped from setting up exemption from assessment under this section. Ligonier Borough vs. Presbyterian Church, 22 D. R. 868, s. c. 2 West. L. J. 233, 4 M. L. R. 220; Broad Street, Sewickley M. E. Church's Appeal, 165 Pa. 475. (401). No claim .shall be filed for curbing, recurbing, paving, re- paving or repairing the foot way of any highway, unless the owner shall have neglected to do said work for such length of time as may be prescribed by ordinance, after notice so to do, served upon him oi 268 his agent or the person in possession of the property, except when in the case of curbing, or recurbing or repaying the footway, it shall form part of an improvement resulting also in the paving, macad- amizing or otherwise improving the cartway of said highway; and if there be no agent or party in possession it may be posted on the most public part of the property. Sec. 8, Act of June 4, 1901, P. L. 364. See section (405), (429), with notes. Notice to owner is not required before paving street. AUentown to use of Barber Asphalt Paving Co. vs. Light, 15 D. R. 619. A borough has a right to place the curb when the cartway of a street is paved, and at the same time charge the owner for the cost of the curb although at the tinie there is no sidewalk or paved foot- way. It is not necessary that the space allotted for a sidewalk be covered by paving. It is a sidewalk even if not paved. Punxsu- tawney vs. Cormalt, 44 Super. Ct. 365. A notice to curb and pave a borough sidewalk, served before the sidewalk is brought from the natural to the established grade, is not sufScient to sustain a lien for curbing and paving after the borough does the grading. To charge the property owner it is necessary to serve a notice after the borough brings the sidewalk to grade. Lans- downe Borough vs. Burdsall, 26 D. R. 938, s. c. 31 York 84, 14 Del. Co. 325; Chester City vs. Lane, Nos. 1, 2, 3,-4, 24 Super. Ct. 359-357-368- 369; Shady Avenue, 34 Super. Ct. 327. A city cannot recover from a property owner the cost of laying a sidewalk in front of his premises, where it appears that the notice to the owner to lay the sidewalk was posted on the pi-emises, which were at the time in possession of tenants. Such a notice is sufficient only when there is no party in possession. City of Scranton vs. Carter Es- tate, 21 Lack. J. 68. A notice from a borough to build a sidewalk in front of a vacant lot, served off the premises upon the wife of the occupant who lived on an adjoining property, but was not the owner's agent, will iibt support a municipal claim against the lot for a walk subsequently built by the borough, when the owner, a non-resident, had no know^ ledge of the borough's action in the matter, and there was no written or printed notice thereof posted on the premises. Laport Borough vs. Walsh, 28 D. R. 650. In a scire facias sur municipal lien to recover the cost of curbing and guttering for a sidewalk the defence that the borough has not brought the sidewalk to grade will not avail the defendant, unless it is shown that a material grading or filling and such as would make a difference in the expense to complete the work, was required. Morton Borough vs. Smith, 23 D. R. 1071, s. c. 12 Del. Co. 523, 5 M. L. R. 282. (402). Where claims are to be filed to use, the claimant, at least one month before the claim is filed, shall serve a written notice o*E his intention to file it unless the amount due is paid. Service of such notice may be made personally on the owner whereyer found ; but if he cannot be served in the county where the property is situ- ated, such notice may be served on his agent or the party in posses- 269 sion of the property ; and if there be no agent or party in possession of the property, it may be posted on the most pubHc part of the prop- erty. Sec. 9, Act of June 4, 1901, P. L: 364. Notice of intention to file lien by use claimant for construction of borough sewer may be given before assessment of cost is made. Pros- pect Park Boro. vs. Duhring, 14 Del. Co. 315. It is not necessary under clause 7, Sec. (405), in filing a municipal claim to set forth in the lien the notice provided for in this section. Allentown to use of Barber Asphalt Paving Co. vs. Light, 15 D. R. 519; City of York vs. Miller, 254 Pa. 436. Unless the notice required by this section is given owner where a claim is filed to use no recovery can be had. City of York vs. Miller, 254 Pa. 436, affirming 60 Super. Ct. 407, reversing 28 York 17. The giving of notice by the use plaintiff to the owner of the prop- erty although not required to be set forth in the lien, is an essential prerequisite to the filing of the lien. Defendant is permitted to show that he had not been served with notice by the use •plaintiff even though such lack of notice is not raised in the affidavit of defense. As to matters not alleged in the lien the defendant is not limited to the de- fense set forth in his affidavit. City of York vs. Miller, 254 Pa. 436, affirming 60 Super. Ct. 407, reversing 28 York 17. Where, under the terms of a contract and ordinance, the contractor was not a party to the lien, he could not be expected to give any notice of the intention to file the same. City of York vs. Eyster, No. 2, 30 York 29, affirmed in 68 Super. Ct. 104. Notice by a contractor of intention to file a lien is good, even though filed less than ten days after approval of ordinance assessing the cost where it is more than one month before the claim was filed. Prospect Park Borough vs. Wyndham, 8 M. L. R. 55, s. c. 14 Del. Co. 117. (403). Claims for taxes, water rents, lighting-rates, and sewer rates must be filed in the court of common pleas of the county in which the property is situated, on or before the last day of the third calendar year after that in which the taxes or rates are first payable ; and other municipal claims must be filed in said court within six months from the time the work was done in front of the particular property, where the charge against the property is assessed or made at the time the work is authorized ; within six months after the com- pletion of the improvement, where the assessment is made by the municipality upoji all the properties after the completion of the im- provement; and within six months after confirmation by the court, where confirmation is required; the certificate of the surveyor, en- gineer, or other officer supervising the improvement, filed in the proper office, being conclusive of the time of completion thereof, but he being personally liable to any one injured by any false statement therein. A number of years taxes or rates of different kinds, if pay- able to the same plaintiff, may be included in one claim. Municipal claims shall likewise be filed within said period, where an appeal is taken from the assessment for the recovery of which such 270 municipal claim is filed. In such case the lien filed shall be in the form hereinafter provided, except that it shall set forth the amount of the claim as an undetermined amount, the amount thereof to be determined by the appeal taken from the assessmnt upon which such municipal claim is based, pending in a certain court (referring to the court and the proceeding where such appeal is pending) . Upon the filing of such municipal claim, the claim shall be indexed by the prothonotary upon the judgment index and upon the locality index of the court, and the amount of the claim set forth therein as an un- determined amount. If final judgment is not obtained upon such appeal within five years from the filing of such municipal claim, the claimant in the lien shall, within such period of five years file a suggestion of non-payment in the form hereinafter set forth, which shall have the effect of con- tinuing the lien thereof for a further period of five years from the date of filing such suggestion. Such municipal claim shall be re- vived in a similar manner, during each recurring period of five years thereafter, until final judgment is entered upon said appeal and the undetermined amount of such municipal claim is fixed in the man- ner hereinafter provided. When the final judgment is obtained upon such appeal, the court in which said municipal claim is pending shall, upon the petition of any interested party, make an order fixing the undetermined amount claimed in such claim at the amount determined by the final judg- ment upon said appeal, which shall bear interest from the date of the verdict upon which final judgment was entered, and thereafter the amount of said claim shall be the sum thus fixed. Proceedings upon said municipal claim thereafter shall be as in other cases. Where, on final judgment upon said appeal, it appears that no amount is due upon the assessment for the recovery of which such claim is filed, the court in which such municipal claim is pending shall, upon the petition of any interested party, make an order strik- ing such municipal claim from the record, and charge the costs upon such claim to the plaintifl^ in the claim filed. Where such appeal is discontinued, the court in which such munici- pal claim is pending shall, upon the petition of any interested party, make an order fixing the undetermined amount claimed at the amount of the original assessment, which shall bear interest from the date that such assessment was originally payable, and thereafter the amount of such claim shall be the sum thus fixed. Such tax, municipal, or other claim, if filed within the period afore- said, shall remain a lien upon said properties until fully paid and satisfied: Provided, however, that either a suggestion of non-pay- ment and an averment of default in the form hereinafter provided, be filed in cases of tax claims either before or after judgmnt on the scire 271 facias, and in cases of other than tax claims after judgment on the scire facias, or else a writ of scire facias, in the form herein provided, be issued to revive the same within each period of five years fol- lowing — (a) the date on which said claim was filed, (b) the date on which a writ of scire facias was issued thereon, (c) the date on which any judgment was entered thereon, (d) the date on which a previous suggestion of non-payment and default was filed thereon, or (e) the date on which a judgment of revival was obtained thereon. The suggestion and averment shall be in the following form un- der the caption of the claim: — And now - _. the claimant, by _ _ his solicitor, suggests of record that the above claim is still due and owing to the claimant, and avers that the owner is still in default for non-payment thereof. The prothonotary is hereby directed to enter this suggestion and averment on the municipal lien or the proper docket of the claim, and also to index it upon the judgment index and on the locality index of the court, for the purpose of continuing the lien of the claim. Such suggestion and averment must be signed by the solicitor or chief executive officer of the claimant. The prothonotary shall docket and index the suggestion and averment as directed therein; and for such services shall be entitled to a fee of one dollar, to be taxed and collected as other costs in the claim. The filing and in- dexing of such suggestion and averment within five years of filing the claim or the issuing of any writ of scire facias thereon, or of any judgment thereon, or of the filing of any prior suggestion and aver- ment of default, shall have the same force and effect, for the pur- poses of continuing and preserving the lien of the claim, as though a writ of scire facias had been issued or a judgment or judgment of revival had been obtained within such period: Provided, That no writ of levari facias shall be issued upon a claim, for the purpose of exposing the property liened to sheriff's sale, except after a judg- ment shall have been duly obtained upon the claim, as provided in this section, and such judgment must have been obtained within five years of the issuance of the levari facias. Whenever the lien of a claim has been revived and continued by the filing and indexing of a suggestion and averment of default, the claimant may, at any time within five years therefrom, issue a writ of scire facias thereon, re- citing all suggestions and averment of default filed since the filing of the claim, and shall proceed thereon, in the manner herein pro- vided, subject to the right of the owner to raise any defense arising since the last judgment. If a claim be not filed within the time aforesaid, or if it be not prosecuted in the manner and at the time aforesaid, it shall be wholly lost. 272 Sec. 10, Act of June 4, 1901, P. L. 364, as amended by Sec. 1, Act of June 20, 1911, P. L. 1076. The law contemplates three different kinds of claim: First, where the act of the municipality has reference to work in front of the par- ticular property, and charges and assesses the cost, when the work is authorized, but the claim is not complete, nor does the lien attach un- til the work is done. In such case the law requires the lien to aver the date when the,. work was completed, and the lien must be filed within six months from that time. Second, where the act of the municipality has reference to the general improvement of the* street, and the proper proportionate part of the cost is not assessed against each particular property until the entire work is completed. In such case the law requires the lien to aver the date of completion of the en- tire improvement, and the lien must be filed six months from that time. Third, where a confirmation by the court is necessary, the law requires the lien to aver the date of confirmation by the court, and the lien must be filed within six months from that time. Clause 5, Sec. (405), relates to the same three classes of cases. Lans- downe Borough, to use, vs. Hartel, 48 Super. Ct. 430, affirming 11 Del. Co. 356, 458. A borough cannot join in one municipal lien assessments for dif- ferent improvements assessed by different ofiicials. A municipal claim which is silent as to the date of the completion of the work is fatally defective. Avalon Borough vs. Ardery, 29 D. R. 178, s. c. 67, P. L. J. 307. Under Sec. 3, Act of April 23, 1889, P. L. 44, where the paving of two squares was done in two installments, a lien filed more than two years after the completion of the work on the first square, but within six months after the completion of the work on the second square, is valid. Tarentum Borough vs. Moorhead, 26 Super. Ct. 273. Where a number of blocks on a street were paved the ordinance pro- viding "the intent being that the completion of the pavement on each square shall be the completion of the improvement as authorized by ordinance," the contractor has a right to file a lien for the paving of the first block as soon as the block is finished. Philadelphia to use vs. Street, 41 Super. Ct. 503. Where the lien avers that a curbstone and block were set in front of a particular property on specified dates, it is a sufficient averment that the work was done and completed on the dates specified, although the word "completion" is not used in the claim. If the claim is filed within six months from the dates specified it will be good. Lansdowne Borough to use vs. Hartel, 48 Super. Ct. 430, affirming 11 Del. Co. 356, 458. The Act of June 4, 1901, P. L. 364, refers to municipal improvements wherein the municipality and the property owner alone are concerned. Section 10, as amended above, refers to the officers of the municipality which undertakes to make a municipal improvement when it speaks of "the certificate of the surveyor, engineer, or other officer supervising the improvement." A ledger entry of the State Highway Department . is, therefore, not the equivalent of the certificate of a municipal officer and will not prevent the abutting owner from showing, in the absence of such certificate, that the lien was filed more than six months after 273 18 the completion of the improvement. Punxsutawney Borough vs. Nordstrom, 61 Super. Ct. 253; Borough of Punxsutawney vs. Perry Wingert, 63 P. L. J. 155. Since the certificate of the proper officer as to the time of the com- pletion of an improvement is conclusive, this question cannot be suc- cessfully raised in an affidavit of defense, where the date of the com- pletion stated in the certificate showed that the lien was filed within the six months. Philadelphia to use vs. Street, 41 Super. Ct. 503. Claims for taxes are wholly lost unless filed in the court of common pleas on or before the last day of the third calendar year after that in which they were first respectively payable. Armstrong, for use vs. Wolcott, 26 D. R. 899, s. c. 65 P. L. J. 389; First National Bank of Bridgeville vs. Pittsburgh Silica Co. 12 J. L. R. 281; Phila. to use, vs. DeArmond, 63 Super. Ct. 436; Wainright Jr. vs. Mooney, 64 P. L. J. 267; Armstrong vs. Wolcott, 65 P. L. J. 389, s. c. 26 D. R. 899. If a municipal claim be not filed within the period fixed by this sec- tion, the borough cannot recover such claim in any form of action. The filing of the claim is necessary to avoid a lapse of the claim. Youngwood Borough vs. Gay, 7 West. L. J. 1, affirmed in 71 Super. Ct. 154. A municipal lien filed more than six months after the actual com- pletion of the improvement is invalid, and uncontradicted testimony as to the actual time of the completion of such improvement will pre- vail over a record from the State Highway Department indicating a late date. Borough of Punxsutawney vs. Perry Wingert, 63 P. L. J. 155. Scire facias to reduce a tax lien to judgment and an execution upon such judgment is not the remedy now provided by law for collecting taxes on seated lands where no personal property is available for dis- tress and where the owner refuses to pay the collector. Washington County vs. Lindsey, 66 P. L. J. 3. A municipal claim, filed before the passage of the Act of June 4, 1901, P. L. 364, loses its lien if a scire facias is not issued and prose- cuted to judgment within five years from the date of the filing of the claim and all subsequent proceedings would be a nullity. City of Phila. vs. Elliott, 23 D. R. 643. A scire facias to revive a municipal lien must not only be issued within one of the five year periods as fixed by this section but must aso be served as required by law, see sections (411)-(412), within such five year period. Scranton City vs. Scranton Hosiery Mills, 44 Pa. C. C. 87, s. c. 16 Lack. J. 275. Judgment of non pros, will be award- ed where scire facias not properly proceeded in. City of Scranton to use vs. Wm. H. Richmond, 16 Lack. J. 64. An alias writ of scire facias is not a continuation of the original writ, where the latter was not properly issued and served, and in such case the alias becomes the original and imlcss issued and served in the man- ner and within the time prescribed by the act under which it is issued it is void and will not serve to continue the lien. Scranton City vs. Stokes, No. 2, 28 Super. Ct. 437. Judgment of non pros, will be awarded on a rule where scire facias is not prosecuted within the proper time. City of Scranton to use vs. Wm. H. Richmond, 16 Lack. J. 64. See Wainwright Jr. vs. Mooney, 64 P. L. J. 267. 274 The entry of a general appearance by a defendant nine years after a claim was filed cannot be construed as a waiver of the defense that the lien of the claim had expired four years before the appearance was entered or cure a lack of service of notice. Phila. to use vs. Mason, 37 Super. Ct. 478. In the case of Scranton vs. Genet, 232 Pa. 272 (decided before the passage of the amendment of 1911) it was held that the first scire facias provided for in section 10 is the process to reduce the claim to judgment and that it is this judgment that must be revived by writ of scire facias "to revive the judgment.'' The right to revive pertains not to the lien but the judgment obtained thereon. In Reading vs. Moers, 11 Berks 229, s. c. 11 M. L. R. 95 Judge Endlich (on June 21, 1919) held "In the light of Scranton Genet, supra, it is readily seen that, at any rate so far as concerns other than tax claims, this enact- ment (referring to the amendment of 1911), very like the one of 1901, requires that the municipality take the steps pointed out by the sta- tute to enforce or continue the claim; that within certain designated periods, the proceedings be pushed to a finality; and that failure to comply with these requisitions destroys the claim. In the present case, as already stated, a scire facias issued to No- 142, Apr. 7, 1913, was not prosecuted to a verdict or judgment within five years from the date of its issuance. It follows that the claim is lost to the city and cannot be the basis of any further proceedings for collection.'' A municipal claim ci.n be striken off only for defects appearing on the face of the record; matters of defense, such as the right of the city to lay a pavement and the liability of the owner can be raised only on scire facias. Adamstov/n Borough vs. Hartman, 35 Lcinc. 73, s. c. 10 M. L. R. 174, 33 York 48, 67 P. L. J. 545. In a rule to strike off a municipal claim based on a viewers report, questions, which a lot owner desires to raise, should in the first in- stance be raised before the viewers. Township of Stowe vs. Sterrett, 66 P. L. J. 709. (404). Hereafter all municipal liens filed under any act of As- sembly shall be revived, continued, and collected under and accord- ing to the procedure and provisions of the act, approved the fourth day of June, one thousand nine hundred one (Pamphlet Laws, three hundred and sixty-four), and the several amendments thereof and supplements thereto, entitled "An act providing when, how, upon what property, and to what extent, liens shall be allowed for taxes, and for municipal improvements, and for the removal of nuisances ; the procedure upon claims filed therefor; the methods for preserv- ing such liens and enforcing payment of such claims ; the effect of judicial sales of the properties liened, and the manner of distributing the proceeds of such sales." Sec. 1, Act of April 4, 1919, P. L. 30. (405). Said claim shall set forth: 1. The name of the county, city, borough, township, school dis- trict, road district, or poor district, by which filed. 2. The name of the owner of the property against which it is filed. 275 3. A description of the property against which it is filed. 4. The authority under, or by virtue of which, the tax was levied or the work was done. 5. The time for which the tax was levied or the date on which the work was compkted, in front of the particular property against which the claim is filed; or the date of completion of the improve- ment, where the assessment is made after completion ; or the date of confirmation by the court, where confirmation is required done. 6. If filed to the use of a contractor, the date of and the parties to the contract for doing said work; and, 7. In other than tax claims, the kind and character of the work done, for which the claim is filed, and if the work be such as to i^e- quire previous notice to the owner to do it, when and how such notice was given. Said claim must be signed by the solicitor or chief executive officer of the claimant ; and in the case of a use plaintiff, must be accom- panied by an affidavit that the facts therein set forth are true to the best St his knowledge, information and belief. Sec. 11, Act of June 4, 1901, P. L. 364. See sections (394), (395), (401), (402), (411), (414), (429) with notes. What a municipal claim shall contain is found in this section and the requirements in other sections do not relate to what is necessary to be contained in municipal liens, and if these requirements outside section 11 have not been observed they become matter of defense on a scire facias and are not available on a motion to strike off a lien. McDonald Borough vs. William, 41 Pa. C. C. 157. A municipal lien for paving a sidewalk which gives the date of the ordinance under which the work was done, describes the property against which the lien is claimed, and avers that the owner was duly notified in writing to do the work, complies with the requirements of this section. Glenolden Borough to use vs. Scott, IS D. R. 705, s. c. 9 Del. Co. 514, 10 Northampton C. R. 77, 19 York 75; McDonald Borough vs. Williams, 41 Pa. C. C. 157. Where a municipal lien filed by a borough against a decedent's es- tate for paving a street misnamed the county in which the borough was situated; and set forth the name of the owner at the time the lien was filed as "The Robert Miller Estate;" and filed it for a lump sum, ' setting forth "the kind and character of the work done'' as "grading, paving and curbing of Market Street in front of the said lot or piece of ground" without stating whether it was roadway or footway, the number of feet, or price, or nature and character of the materials userf; and stated that the Work "was finally confirmed by the said burgess and town council," will be stricken off on motion as too vague and indefinite and not according to the requirements of this section. Freeport Borough vs. Robert Miller Estate, 34 Super. Ct. 395. On a scire facias sur municipal lien, the lien will be stricken from the record, where the lien did not state the name of the registered owner of the property at the time the lien was filed. Borough of Belle- vue vs. Whitehead et al., 64 P. L. J. 237. See definition of owner, Sec- tion (392). 276 Where the description of the property is definite and is not rend- ered uncertain or doubtful by failure to embrace an area which might have been included, is a sufficient compliance with clause 3. Township of Stowe vs. Sterrett, 66 P. L. J. 709. Where, under clause 3, the de- scription was insufficient: In re Rule to strike off tax lien against. Schappert, 18 Luz. L. R. Rep. 76. It is not necessary, under clause 4, to set forth the ordinance or laws which authorized the improvement. A reference to them is suf- ficient. Allentown to use of Barber Asphalt Paving Co. vs. Light, 15 D. R. 619. Under clause 4 of this section it is not necessary for the lien to set out at length the acts and ordinances under which the work was done. If the lien refers to such authority by recital of title it will be suf- ficient. York City vs. Holtzapple, 67 Super. Ct. 596, affirming 7 Leh. Co. L. J. 193; 30 York 173, nor is it necessary for the lien to set out when and by whom the amount claimed was assessed, nor the copy of the contract between the botough and the use plaintiffs. Lansdowne Boro. to use vs. Hartel, 48 Super. Ct. 430, affirming 11 Del. Co. 355, 458. A municipal lien need not state the Acts of Assembly nor the gen- eral ordinances but the authority by which the municipality acted in the particular case, and which are required to be set out, is "the action of the proper body and the character and extent of that action." Un- der clause 7 where curbing is laid the lien should. also set forth that the owner neglected to do the work for the length of time prescribed by ordinance after notice. Where an act of Assembly directs the manner in which a lien shall be filed, the direction contained therein must be strictly followed. City of Lancaster vs. Haller, 35 Lane. 97. The three different classes of lien, which are provided for in Section (403) and in clause 5 of this section, are defined in the following case, which holds that an averment in a municipal claim that a curbstone and block were set in front of a particular property on specified dates, is a sufficient averment that the work was done and completed on the dates specified, although the word "completion" is not used in the claim. Lansdowne Borough, to use, vs. Hartel, 48 Super. Ct. 430, af- firming 11 Del. Co. 356, 458. Under clause 7 of this section a claim is properly signed by a bor- ough solicitor when he signs his name as solicitor only on the back of the claim, as filled out for filing in court. Old Forge Borough vs. Foley Estate, 67 Super. Ct. 125, reversing 17 Lack J. 197. A municipal lien filed to use will not be stricken oflF because it is signed by an attorney, designating himself as solicitor for claimant as word claimant means plaintiflf or use plaintiiif (See section (394)). Prospect Park Boro. vs. Duhring, 14 Del. Co. 315. As to signing claim for use plaintiff see Allentown to use vs. Ackerman, 37 Super. Ct. 363, affirming 2 Leh. Co. L. J. 236. A claim with a rubber stamp impression of the signature of the "solicitor for claimant" ratified later by his appearance in defense of the claim, is a sufficient signing; and a notarial certificate that he made af- fidavit thereto, is a sufficient compliance with this section. Philadel- phia to use vs. Kinkaid et al. 24 D. R. 287. The only person authorized to make the affidavit is the solicitor or chief executive officer of the claimant, or, perhaps the use plaintiff himself, if he be a naural person. Where the affidavit accompanying the claim is not made by the person designated but is so drawn as 277 to affect the landowner with notice of that fact, the defect will be deemed to have been waived if the owner raises no objection either by demurrer or motion to stril^e off the claim and first raises the ob- jection on a motion for compulsory nonsuit. AUcntown to use vs. Ackerman, 37 Super. Ct. 363, affirming 2 Leh. Co. L. J. 236. The lien compiles with clause 7 when it describes the character of the work as "cartway paving with stone block" and "new curb." It is hot necessary to set out the kind of stone blocks used or the kind of curb set. A lien for paving which is on a printed form containing the printed signature of "John L. Kinsey, City Solicitor, per" followed by the written signature of an assistant to the solicitor is a sufficient sign- ing. Philadelphia vs. Meighan, 15 D. R. 10. "The kind and character of the work done" is sufficiently set out in claim stating, "the paving of North Seventh Street on the east side thereof on front of the above described property" and these aver- ments are followed by a statement of the number of square yards of paving, and the cost per yard. It is not necessary to state the ma- terials of which the pavement was constructed. Allentown to use vs. Ackerman, 37 Super. Ct. 363, affirming 2 Leh. Co. L. J. 236. Under clause 7 the lien must aver that notice of an intention to file a municipal lien for abating a nuisance was served on the registered owner, if there be one, and must state when and how the notice was served and must set forth the kind and character of the work done. A claim for a lump sum for "regrading and repairing sideyards with cement" without specifying the amount of work done, the number of feet of regrading and paving and the price paid for the same, is defec- tive and will be stricken off. Philadelphia vs. Lewis, 40 Pa. C. C. 698, s. c. 22 D. R. 176. A municipal lien is not invalid for uncertainty as to the kind and character of the work done when it is based on a report of viewers who were appointed to assess the damages and benefits for grading, paving and curbing a named street. Township of Stowe vs. Sterrett, 66 P. L. J. 709. Likewise a claim signed "The City of Allentown, to use of the Barber Asphalt Paving Co., by M. P. Schantz, Attorney for use plain- tiff" is properly signed. Notice to owner under clause 7 is not re- quired before paving a street, nor is it necessary to set forth in claim the notice provided in Section (402). A municipal claim may be stricken from the record upon sufficient cause shown; the procedure provided by the Act of 1901 is not exclusive. Allentown, to use of Barber Asphalt Paving Co. vs. Light, 15 D. R. 619. The notice spoken of under clause 7 is that provided for in section (401). Allentown, to use of Barber Asphalt Paving Co. vs. Light, 15 D. R. 619; City of York vs. Miller, 254 Pa. 436; Philadelphia to use vs. Kinkaid et al., 24 D. R. 287. A municipal lien for a sewer is sufficient which sets out the size of the sewer, its material, its length in front of defendant's property, the price per foot, the length and price per foot of the house con- nections, together with the title and date of approval of the ordinance under which the work was done. Erie City vs. Willis, 26 Super. Ct. 459. Upon motion to strike off municipal lien for sewer on ground that lien is for something more than cost of construction of sewer and 278 which is not separately valued, court is bound to consider only aver- ment in lien and if it conforms to act of assembly lien will not be stricken off. Prospect Park Boro. vs. Duhring, 14 Del. Co. 315. It is not necessary to state in the claim filed for lien what was done by the secretary of council as to notice or how the assessment was made or apportioned. McDonald Borough vs. Williams, 41 Pa. C. C. 157, nor is it necessary to state that the city engineer made a certificate stating the time of the completion of the improvement and filed it with the city clerk, and that no notice was given to the defendant of the time and place of making the assessment. AUentown to use vs. Acker- man, 37 Super. Ct. 363, affirming 2 Leh. Co. L. J. 236. (406). The property described in tax claims shall include the whole property against which the tax is levied. The property de- scribed in municipal claims may include the whole contiguous prop- erty, or it may include only the lot in front of or upon which the work is done, or to which service is supplied, of such depth as is usual in properties of the same kind or character in the particular neighborhood. No municipal claim or tax claim shall be invalid by reason of including therein property to a greater depth than as above provided; but the court in which the same is filed may, at any time prior to judgment thereon, but not afterwards, upon it appearing that such claim includes property to a greater depth than is hereby made subject to such claim, limit the lien thereof to the proper depth. In all cases where a tax is levied on or filed against separate and dis- tinct properties, in one amount covering all, the proper public author- ity shall, if tendered with atl costs, if any, accept payment of the portion of the whole amount of said tax chargeable upon each or any of the separate and distinct properties so charged together, ac- cording to the tax rate and assessed valuation thereof, and payment and satisfaction of any one portion may be made without prejudice to the claim against the remainder. Sec. 12, Act of Jtme 4, 1901, P. L. 364, as amended by Sec. 4, Act of May 28, 1915, P. L. 599. (407). Any person having an interest in the property, whenso- ever acquired, may, after ten days prior notice in writing, by leave of court, intervene as a party defendant and make defense thereto, with the same effect as if he had been originally named as a defendant in the claim filed. And the claimant may by writing filed at his costs, strike off the name of any defendant therein; and may substitute as a defendant, and issue a scire facias against, any person who may have any interest therein as owner, or who is the personal repre- sentative of an owner who has died either before or after filing the claim, but such substitution shall always be without prejudice to any intervening rights. Sec. 13, Act of June 4, 1901, P. L. 364, as amended by Sec. 5, Act ' of May 28, 1915, P. L. 599. 279 On the trial of a municipal lien where it appears that the defendant named is dead, the trial judge commits no error in refusing to per- mit a suggestion of the death of the defendant to be filed, where it ap- pears that neither the heirs of the decedent nor any other persons, claim- ing title have registered their title, or have intervened or asked to in- tervene as parties defendant. Philadelphia vs. Dale, 56 Super. Ct. 342. (408). In all cases where a tax or municipal claim is levied on or filed against separate and distinct properties as one estate, it shall and may be lawful for the proper public authority, either before or after filing a claim therefor, to apportion the same ratably upon the separate and distinct properties so assessed together. And the court in which the claim is filed, on proof that the properties were separate and distinct at the time the tax was levied or the work was done, shall at any stage of the proceedings, apportion the charge against such properties. When apportioned, they shall be treated and con- sidered in all respects as if separate and distinct claims had been -filed ; and payment and satisfaction of any one portion may be made without prejudice to the claim as against the rest. Sec. 14, Act of June 4, 1901, P. L. 364. Where defendants were in error jointly assessed as being the owners of two certain lots an apportionment can be .made under this sec- tion. Borough of Ligonier vs. Deeds et sH., 3 West. L. J. 200. A municipal lien for a sidewalk may be filed against a number of lots in a borough described as consecutively numbered where it ap- pears that the lots are contiguous, are not held by a separate title, are not used for separate or distinct purposes, and that the improve- ment was made at one time, under one ordinance and one contract. The fact that a fence was between two of the lots, without more, will not invalidate the lien. Prospect Park Borough vs. McCoach, 52 Super. Ct. 527. A municipal claim for a sidewalk may be filed which includes the sidewalks on two streets, where the property is located at the corner of the two streets and is but a single property. York City vs. Beitzel, 41 Super. Ct. 194, reversing 21 York 100, 2 Leh. Co. L. J. 315. (409). Any defendant named in the claim, or any person allowed to intervene and defend thereagainst, may, at any stage of the pro- ceedings, present his petition, under oath or affirmation, setting forth that he has a defence in whole or in part thereto, and of what it con- sists; and praying that a rule be granted upon the claimant to file an affidavit of the amount claimed by him, and to show cause why the petitioner should not have leave to pay money into court; and in the case of a municipal claim, to enter security in lieu of the claim ; whereupon a rule shall be granted as prayed for. Upon the pleadings filed, or from the claim and the affidavit of defence, and without a petition where an affidavit of defence has been filed, the court shall determine how much of the claim is admitted or not suf- ficiently denied ; and shall enter a decree that upon the payment by such petitioner to the claimant of the amount thus found to be due, 280 with interest and costs if anything be found to be due, or upon pay- ment into court, if the claimant refuses to accept the same, and upon payment into court of a sum sufficient to cover the balance claimed, with interest and costs, or upon the entry of approved security in the case of a municipal claim, that such claim shall be wholly dis- charged as a lien against thejproperty described therein, and shall be stricken from the judgment index. Thereafter the material dis- puted facts, if any, shall be tried by a jury, without further plead- ings, with the same effect as if a writ of scire facias had duly issued upon said claim, to recover the balance thereof; but the jury shall be sworn to try the issues between the claimant and the parties who paid the fund into court or entered security, and verdict, judg- ment and payment, or execution shall follow as in other cases. The same course may be pursued, at the instance of any owner, where the claim has not in fact been filed, and if, in that event, the petitioner complies with the decree made, the money paid into court or security entered shall stand in lieu of the claim, and the latter shall not be filed, and if filed shall be stricken off upon motion. Sec. IS, Act of June 4, 1901, P. L. 364. Upon presentation of a proper petition, it is the duty of the court to determine from the pleadings filed how much of the claim is ad- mitted or not sufficiently denied; if a part of it is sufficiently denied then it is the right of the defendant to tender payment of the balance to the municipal authorities, pay into the court or give security for the amount in dispute and have the claim stricken from the judgment index. Thereafter the material, disputed facts, if any, are to be de- termined in the manner provided by the statute. Sharpsville Boro. vs. Randall, 73 Super. Ct. 61. This section provides an adequate legal remedy to prevent filing municipal paving claims; therefore, an injunction should not issue on the ground of irreparable mischief. Discussion concerning joinder of parties in injunction application. Geesey et al. vs. City of York, 25 D. R. HI, s. c. 28 York 203, affirmed in 254 Pa. 397. (410). Any party named as defendant in the claim filed, or ad- mitted to defend thereagainst, may file, as of course, and serve a notice upon the claimant or upon the counsel of record to issue a scire facias thereon, within fifteen days- after notice so to do. If no scire facias be issued within fifteen days after the affidavit of serv- ice of notice is filed of record, the claim shall be stricken off by court upon motion. If a scire facias be issued in accordance with such notice, the claimant, shall not be permitted to discontinue the same, or suffer a nonsuit upon the trial thereof, but a compulsory nonsuit shall be entered by the court if the claimant does not ap- pear, or withdraws or for reason fails to maintain his claim. Sec. 16, Act of June 4, 1901, P. L. 364. 281 (411). The claim shall be sued by writ of scire facias, and the form thereof shall be substantially as follows : The Commonwealth of Pennsylvania to (names of the parties de- fendant) Greeting: Whereas, The (city, borough, or other municipality as the case may be), on the day of , A. D. 1 , filed its claim in our court of common pleas of County, at No Term, 1 .... , M. L. D., for the sum of $ , with interest from the .... day of . . . . , 1 .... , for (give the improvement, or that for which the claim is filed) against the following property situate in (give location and brief description of the property), owned or reputed to be owned by j'^ou. And whereas. We have been given to understand that said claim is still due and unpaid, and rem.ains a lien against the said property; Now, 3'^ou are hereby notified to file your affidavit of defence to said claim, if defence you have thereto, in the office of the prothono- tary of our said court, within fifteen days after the service of this writ upon you. If no affidavit of defence be filed within said time, judgment may be entered against you for the whole claim, and the property described in the claim be sold to recover the amount thereof. Witness the Honorable President Judge of our said Court, this day of , A. D. 1 Prothonotary. (Seal) The claimant, when he files his praecipe for the writ of scire facias, may direct the prothonotary to add and insert the names of any per- sons whom the claimant may know to have an interest in the prem- ises, and the scire facias shall be issued containing such additional names. But the parties to the claim may agree upon an amicable scire facias, upon such terms as may be agreed upon, with the same effect as if a scire facias, in the form aforesaid, had been duly is- sued, served, and returned; or the defendants, or any of them, mav waive the issue of a scire facias, and appear with like effect as if the scire facias had been issued and served. Sec. 17, Act of June 4, 1901, P. L. 364, as amended by Sec. 1, Act of May 6, 1909, P. L. 4S2. See sections (402), (414), (429), with notes. A writ of scire facias issued on a recorded municipal lien in the form prescribed by this section entitles the plaintiff to judgment in the absence of sufficient affidavit of defence. Borough of West Read- ing vs. Scblegel et al., 9 Berks Co. 169. 282 A bill in equity to restrain a municipality from filing liens and col- lecting paving claims against certain property owners will be dis- missed because the plaintiffs have a full and adequate remedy at law by setting up any matter of defence in a hearing on a scire facias. Geesey vs. City of York, 254 Pa. 397, affirming 25 D. R. Ill, 28 York 203. A plaintiff cannot have a verdict unless his proofs satisfy every requirement of the act. The regularity of a municipal lien as to form and contents must be taken advantage of either by demurrer or on a motion to strike off and these can be employed only where there is a defect apparent on the record. Where defendant goes to trial with- out objection to the form of the lien it is too late to enter such ob- jection at the trial. Facts averred in the claim and not traversed by the defendant are taken as admitted. City of York vs. Miller, 254 Pa. 436, affirming 60 Super. Ct. 407, reversing 28 York 17. In a trial on a scire facias sur municipal lien for paving the de- fendant may show that the improvement was negligently made, and not completed, and that by such failure the defendant suffered dam- age. In such a suit by a use plaintiff the defendant may set off money which the use plaintiff owed him. York City, to use vs. Miller, 60 Super. Ct. 407, reversing 28 York 17. A writ of scire facias issued after the passage of the Act of June 4, 1901, P. L. 364, to enforce the collection of a municipal claim for pav- ing which had accrued and been assessed prior to the passage of the Act of 1901, must follow the form and procedure prescribed in the earlier Act of May 16, 1891, P. L. 69. Scranton City vs. Stokes, Nos. 1 and 2, 28 Super. Ct. 434, 437. The service of a scire facias to revive a lien must be made within the five year period and must conform to the requirements of this act in both the manner and time of service. Scranton City vs. Scrjmton Hosiery Mills, 44 Pa. C. C. 87, s. c. 16 Lack. J. 275. See Section (403). An affidavit of defence to a municipal claim which is filed after the period of fifteen days but before plaintiff' moves for judgment, is in time to prevent judgment being entered, provided the affidavit is sufficient. City of Scranton vs. McAnulty, 25 D. R. 66, s. c. 8 M. L. R. 31, 17 Lack. J. 107. Whether or not the land is rural is a question for the jury on a scire facias sur municipal lien. Prospect Park Borough vs. Wyndham, 8 M. L. R. 55 s. c. 14 Del. Co. 117. Concerning sufficiency of affidavit of defence, see Carrick vs. Canevin, 243 Pa. 283. Carrick vs. Canevin, 55 Super. Ct. 233. In a contest on a scire facias issued on a lien filed to use "The gen- eral rule midoubtedly is that the rights of the legal plaintiff only can be regarded and must prevail." Allentown to use vs. Ackerman, 37 Super. Ct. 363, affirming 2 Leh. Co. L. J. 236. On the trial of a scire facias sur municipal lien where it appears that the writ was served on the defendant who appeared regularly aind made no objection to the form of the writ either in his affidavit of defense or otherwise, and it areo appeared that the writ could not be found, the defendant has no standing, after both sides had closed to ask for binding instructions in his favor, because the writ had not been offered in evidence, and because the writ was invalid. Plaintiff w^as not bound to offer the writ in evidence. Scranton vs. Koehler, 36 Super. Ct. 95, affirming 8 Lack. J. 83. 283 A municipal claim which recites the authority under which the work was done and sets forth in detail everything required by section (405), is sufficient to require the defendant to file an affidavit of defense to a scire facias issued upon it. York City vs. Beitzel, 41 Super. Ct. 194, reversing 21 York 100, 2 Leh. Co. L. J. 315. (412). The sheriff to whom the scire facias is given for service shall add to the writ, as parties defendant, all persons, other than those named therein, who may be found in possession of the prop- erty described or any part thereof, and in case no one is in posses- sion, he shall post a true copy of the writ on the most public part of said property; and he shall add to the said writ the names of any persons, not already named therein, whom he may ascertain to have an interest in the property described, or any part thereof; which writ shall then be further served, as follows : — (a) By serving, as in the case of a summons, such of those named in the writ, or added thereto, as may be found in the county in which the writ issued; and, (b) Where the sheriff has information that those named in the writ, or added thereto, or any of them, may be found in any other county of this Commonwealth, the said persons ghall be served, as in case of a summons, by the sheriff of the county in which the said defendants or any of them may reside, he being deputized for that purpose by the sheriff of the county in which the writ issues; and, (c) In case any of those named in the writ, or added thereto, can- not be found, or their residences within this Commonwealth are un- Ifnown, or in case they reside without the Commonwealth, the said writ may be served by advertising a copy thereof, or a brief notice of the contents of the same, once a week for three successive weeks, in one newspaper of general circulation in the county, and in the legal periodical, if any, designated by the court for that purpose: Provided, however, That any defendant may accept service of said writ, in person or by counsel, with the same effect as if duly served therewith by the sheriff. Where the said writ, or the brief notice of the contents thereof, have been advertised as aforesaid, the same shall have the same ef- fect as if the writ had been personally served ; and all those named therein, as to whom publication has been made, shall file their affi- davit of defence, as required by the said writ, within fifteen days after the date of the last weekly advertisement of the said writ. Sery- ice of any such writ may be made at any time within three months from the date on which it was issued, but it shall be served and re- turned at the earliest date possible, and the plaintiff may require its return at any time, whether or not it be actually served. Sec. 18, Act of June 4, 1901, P. L. 364, as amended by Sec. 2, Act of May 6, 1909, P. L. 452. 284 See notes to section (411). The proceedings on a scire facias sur municipal lien are regulated by this section by the operation of which the return of nihil habet is abolished. The writ must be served on all the parties defendant in some one of the several ways therein prescribed, and that, within the period of three months from the date of issue in default of which the sheriff's return will be set aside on motion. City of Scranton vs. Scranton Hosiery Mills, 16 Lack. J. 191 and 275 s. c. 44 Pa. C. C. 87. Under sub-division "c" of this section, if a defendant named in a writ of scire facias sur municipal lien cannot be found or has no known residence within the Commonwealth, the writ must be served by advertisement; a return of service "by mailing him a true and at- tested copy of the within writ in a registered letter," is defective, and will be set aside. Dunmore Borough vs. Burke et al., 26 D. R. 1057, s. c. 18 Lack. J. 113. The Act of May 3, 1915, P. L. 242, requiring the sheriflf to advertise in German, Italian and Yiddish newspapers has been declared uncon- stitutional in Phila. vs. Unknown, 24 D. R. 753. Irregularities in the sheriff's return of the service of a writ showing failure to do certain things prescribed by statute, which, however, do not affect the right of the court to enter judgment, are cured by the entry of judgment and the sale of the property. Tiegel vs. Love, *62 P. L. J. 532, affirmed in 61 Super. Ct. 149. In a scire facias proceeding on a municipal lien where the present registered owner is not included as a defendant, or, when included, is not properly served with notice, he cannot be bound by the proceed- ing. In such a case the entry of the general appearance by the pres- ent owner nine years after the claim was filed cannot be construed as a waiver of the defense that the lien of the claim had expired four years before the appearance was entered. Philadelphia to use vs. Mason, 37 Super. Ct. 478. Service on the defendant against whom the claim was filed, but who had conveyed his title before the scire facias issued, is not suf- ficient to support a judgment. The purpose of the act as amended was to provide for notice of the scire facias to the real party in interest, so that he should not be at the inevitable hazard of having his property taker in execution without opportunity either to make a valid defense or to save costs if he had no defense. City of Scranton vs. Meadow Brook Land Co., 20 Lack. J. 33; 28 D. R. 882. Where a sheriff's return of the service of a writ of scire facias sur municipal lien does not comply with the act, the return may be amended even aftfer a sheriff's sale and deed to the purchaser, so as to conform to the facts. A sheriff's return may always be amended so as to conform to the truth, unless some new right has arisen in the meantime founded upon the defective return. Where such an amend- ment has been allowed, and no appeal taken therefrom, the correctness of the allowance cannot be attacked in a collateral proceeding. Ma- loney vs. Simpson, 226 Pa. 479. (413). If no affidavit of defense be filed within the time desig- nated, judgment may be entered and damages assessed by the pro- thonotary by default, for want thereof. Such assessment shall in- clude a five per cent fee for collection to plaintiff's attorney, not ex- ceeding, however, twenty dollars. If an affidavit of defense be filed, 285 a rule may be taken for judgment for want of a sufficient affidavit of defense, or for so much of the claim as is insufficiently denied, with leave to proceed for the residue. The defendant may, by rule, require the plaintiff to reply, under oath or affirmation, to the state- ments set forth in the affidavit of defense, and after the replication has been filed may move for judgment on the whole record. Sec. 19, Act of June 4, 1901, P. L. 364. See section (434) with notes. The "five per cent fee for collection to plaintiff's attorney, not ex- ceeding, however, twenty dollars," are solicitor's fees; the title to which is in the municipality and not in the attorney at all. Pittsburgh vs. O'Brien, 239 Pa. 60, affirming 60 P. L. J. 545. Where the record shows a municipality proceeds to curb and pave a sidewalk, after bringing it down to proper grade, without giving the property owner an opportunity to do it, the owner can ask for a judgment on the whole record. Chester City vs. Lane, Nos. 1, 2, 3, 4, 24 Super Ct. 359-367-368-369. A scire facias sur municipal claim takes the place of a statement and the defendant must file an affidavit of defense to it to prevent judgment from being taken against him. Oil" City vs. Hartwell, 164 Pa. 348. (414). Tax claims and municipal claims shall be prima facie evi- dence of the facts averred therein in all cases; and the averments in both tax and municipal claims shall be conclusive evidence of the facts averred therein, except in the particulars in which those aver- ments shall be specifically denied by the affidavit of defense, or amendment thereof duly allowed. A compulsory nonsuit, upon trial, shall be equivalent to a verdict for defendant, whether the plaintiff appeared or not. If plaintiff recovers a verdict, upon trial, in excess of the amount admitted by the defendant in his affidavit of defense or pleadings, he shall be entitled to an attorney's fee for col- lection, equal to five per centum of such excess, but not exceeding fifty dollars. Sec. 20, Act of June 4, 1901, P. L. 364, as amended by Sec. 6, Act of May 28, 1915, P. L. 599. See section (40S) with notes. The rule that in the absence of a rule of court the affidavit of de- fense when it has presented a summary judgment has performed its whole office and is not before the court on the trial unless put in evi- dence as an admission against the party making it is unaffected, ex- cept when facts are averred in the lien, and not denied in the affi- davit of defense. City of York vs. Miller, 254 Pa. 436, affirming 60 Super. Ct. 407, reversing 28 York 17. On the trial of a scire facias sur municipal lien for paving, where the municipality offers the lien as prima facie evidence, and the lien recites the acts and ordinances under which the work was done, the municipality is not required to offer the ordinances in evidence, if the affidavit of defense does not challenge the authority of the munici- pality to make the improvement under the ordinances or deny that 286 such ordinances imposed the cost on the abutting owners. York City vs. Holtzapple, 67 Super. Ct. 596, affirming 7 Leh. Co. L. J. 193, 30 York 173. Upon motion to strike off municipal lien for sewer on ground that lien is for something more than cost of construction of sewer, and which is not separately valued, court is bound to consider only aver- ment in lien, and if it conforms to act of Assembly, lien will not be stricken ofif. Prospect Park Borough vs. Duhring, 14 Del. Co. 315. Where a lien avers that the amount of the claim is the cost of con- structing the sewer in front of the defendant's property (in which were included incidental expenses, advertising, engineer's services and like charges.) This averment in the claim is made prima facie evi- dence. Prospect Park Borough vs. Wyndham 8 M. L. R. 55, s. c. 14 Del. Co. 117. A claim conforming to the requirements' of the law makes it evi- dence of the facts thus necessarily averred, and it is not incumbent on the plaintiff in the presentation of its case in chief, to disprove al- legations of the afifidavit of defense. Somerset Borough vs. Sweitzer, 54 Super. Ct. 283; AUentown, to use, vs. Ackerman, 37 Super. Ct. 363, affirming 2 Leh. Co. L. J. 236. The property which directly abuts on a public street is, under our statutes, subject to the charge for the construction and maintenance of the sidewalk directly in front thereof, without regard to whether the owner of that property is also possessed of the fee in the land over which the street is located, so that an averment in the affidavit of defense that the pavement is not upon the property of the defendant, but upon the property of the city, is immaterial. Likewise the affi- davit of defense is insufficient which avers that the municipality had adopted a plan which if carried into cfilect by proper municipal action would result in the widening of the highway; or which avers that the pavement was not constructed according to the ordinance, and fail.s to state in what respect the construction departed from the provisions of the ordinance; or which avers (when the property was located at the corner of two streets), that the claim was "not apportioned to the several pavements on the said street," where there is no allegation that the land against which the claim was filed was not a single prop- erty. York City vs. Beitzel, 41 Super. Ct. 194, reversing 21 York 100, 2 Leh. Co. L. J. 315. (415). The judgment upon such claim may be revived by writ of scire facias in the following form : The Commonwealth of Pennsyl- vania, to C. D. and E. F., Greeting : Whereas, A. B., claimant, on the day of , A. D. 1 .... , recovered judgment in the sum of dollars against you, that the fol- lowing described property be sold to satisfy the same: (Here describe the property in full.) 287 And whereas, we have been given to understand that though judgment, as aforesaid, was rendered, yet the amount thereof is still due and unpaid, and remains as a lien against said property: Now, yo,u are hereby notified to file your affidavit of defense to A. B.'s claim upon said judgment, if any defense you have, in the office of the prothonotary of our said court, within fifteen days after service of this writ upon you. If no affidavit of defense be filed within that time, said judgment may be revived against you for the amount set forth, with interest from the time of its recovery, and said property be sold to recover the whole thereof. Witness the Hon , President Judge of our said court, this day of , A. D. 1 (Seal.) Prothonotary. But the parties to the judgment may agree upon an amicable scire facias to revive, or to an amicable judgment of revival, upon such terms as may be agreed upon, with the same effect as if a scire facias in the form aforesaid had been duly issued, served and returnd. Sec. 21, Act of June 4, 1901, P. L. 364. A municipal claim, filed before the passage of the Act of June 4, 1901, P. L. 364, for the cost of removing a nuisance from a lot and not revived under the law as it then stood, the scire facias not having been served and prosecuted to judgment within five years from the date of the filing of the claim, the lien has been lost and all subse- quent proceedings were a nullity. City of Phila. vs. Elliott, 23 D. R. 643. (416). Said writ of scire facias shall be served, and the proceed- ings thereon shall be conducted, as to persons who are found by the sheriff, in the manner hereinbefore provided for the original scire facias sur claim; but, in any and all events, two returns of nihil habet to the writs to revive shall be equivalent to personal service upon the defendants. The practice and procedure following said scire facias to revive, so far as applicable, shall be the same as in the case of the original scire facias to collect the claim. Sec. 22, Act of June 4, 1901, P. L. 364, as amended by Sec. 7, Act of May 28, 1915, P. L. 599. (417). The practice and procedure following said scire facias to revive, so far as applicable, shall be the same as in the case of the original scire facias to collect the claim. Sec. 23, Act of June 4, 1901, P. L. 364. (418). All judgments for the plaintiff, whether on the original scire facias or any scire facias to revive, shall be deterris only, and shall be recovered out of the property bound by the lien, and not 288 otherwise ; but the costs, whether as against the plaintiff, or the de- fendant actually defending against the claim, may be recovered by execution as in personal actions. Sec. 24, Act of June 4, 1901, P. L. 364. (419). After the expiration of twenty days from the recovery of judgment, whether on the original scire facias or any scire facias to revive, except in cases where the property named is essential to the business of a quasi-public corporation, the court shall, upon the petition of the plaintiff, appoint a sequestrator of the rents, issues and profits of the property bound by the judgment, unless in the meantime an appeal be taken, and approved security given to operate as a supersedeas. If the owner against whom the judgment is en- tered be in possession of the property sequestered, or the party in possession refuse to pay a fair rent, the court shall, upon petition filed and served, grant a rule, and, if it be made absolute, award a writ in the nature of a writ of habere facias possessionem, directed to the owner, commanding him to deliver such possession to the sequestrator within fifteen days thereafter, unless such property be occupied by the owner and his family for a home, in which case he shall be entitled to retain possession for a period of three months from the time the petition was served upon him. Sec. 25, Act of June 4, 1901, P. L. 364. (420). Every claim filed, scire facias issued, verdict recovered and judgment entered, in accordance with the provisions of this act, shall be docketed in appropriate dockets, and, except as hereinafter provided, shall be entered upon the judgment index of the court. When a claim is stricken off or satisfied, the name of a defendant stricken out, a scire facias discontinued or quashed, or a verdict or judgment stricken off or satisfied, a note thereof shall be made on such docket or dockets; [Provided, however, That in counties in which the filing of liens for county taxes was authorized by law prior to the passage of the act of one thousand nine hundred and one, aforesaid, the m_ethod of filing, entering, docketing, and index- ing liens, for county, road, poor, school, borough, school building, township, and other taxes assessed in boroughs and townships, in such counties, shall remain and be continued thereafter, in the same manner and form as in use prior to the passage of the said act, ap- proved June fourth, one thousand nine hundred and one, notwith- standing the passage of the same.] Sec. 26, Act of June 4, 1901, P. L. 364, as amended by Sec. 1, Act of April 3, 1903, P. L. 152. See notes to Section (421). 289 19 Where a municipal lien was indexed in the name of "Albert J. Foehl,' instead of "J. Albert Foehl," defendant's correct name, and there was no locality index, a purchaser of the defendant's property, without actual notice of the lien, takes it free of the lien. Lancaster City vs. Foehl, 39 Pa. C. C. 494, s. c. 29 Lane. 147, 21 D. R. 858. (421). It shall be the duty of the prothonotaries of the courts of common pleas to keep a locality index, in which shall be entered all tax or municipal claims hereafter filed, and upon any written order therefor they shall give a certificate of search, showing all the claims filed against any property. For so doing they shall receive the sum of twenty-five cents, and five cents additional for each claim certified, and no more. Sec. Zl, Act of June 4, 1901, P. L. 364. See notes to Section (420). The prothonotary is entitled to a fee of twenty-five cents for enter- ing upon the locality index. Zimmerman vs. Reading, 18 D. R. 1011, s. c. 1 Berks Co. 114, 22 York 131. The direction to the prothonotary to keep a locality index is man- datory, and if a locality index is not kept in the county, and a munici- pal lien for improvements is entered in the wrong name in the proper indexes, a purchaser of the property assessed; without actual notice of the lien, takes it free of the lien. Apollo Borough vs. Clepper, 44 Super. Ct. 396. The neglect of the prothonotary to enter a municipal lien for as- sessments in the Mechanic's Lien Docket, -as formerly required by Section (420), and in the locality index, as required by this section, does not invalidate a municipal lien for assessments for benefits to property, as between the parties, nor absolutely bar recovery upon the scire facias issued upon the lien. Erie City vs. Willis, 26 Super. Ct. 459. (422). At any time before the property is sold, approved security may be entered for a stay of proceedings until the expiration of one year after the date of filing the claim. The entry of such security by the owner, before the entry of judgment on the claim, shall be equivalent to an admission by him that the property is liable for the claim. After the stay has expired the claimant may proceed upon the claim and the bond given, separately or simultaneously. Sec. 28, Act of June 4, 1901, P. L. 364. (423). Execution upon any judgment recovered upon any such claim, except where the property named is essential to the business of a quasi-public corporation, shall be by writ of levari facias, in the following form : The Commonwealth of Pennsylvania: To the Sheriff of County, Greeting : Whereas, A. B., claimant, on the day of ,...., Anno Domini 1 . . . ., recovered judgment in the sum of 290 dollars, with interest from the day of , Anno Domini 1 and the costs amounting to dollars, in our court of common pleas of said county of , Term No , M. L. D. against C. D. and E. F., that the following de- scribed property in your bailiwick be sold to satisfy the same, viz: (Here describe the property in full.) Now, this is to command you that you expose the said property to sale by public vendue and outcry, after due advertisement accord- ing to law, and that return of said sale, with the moneys realized thereby and this writ, you make to our said court on the day of , Anno Domini 1 Witness the Honorable , president judge of our said court, this day of Anno Domini 1 . . . . Advertisement of such sale shall be made, and the deed to the purchaser shall be executed, acknowledged and delivered, as in other real estate sales by the sheriff. Sec. 29, Act of June 4, 1901, P. L. 364. (424). The plaintiff in any judgment recovered on a tax or munici- pal claim may, upon paying the sheriff's costs, fix an upset price to be realized at any sale under such judgment, sufificient to pay all taxes and municipal claims, and all accrued but unfiled taxes and claims, in full. No sale shall be made on a judgment recovered on a tax or municipal claim except for a sum sufficient to pay all taxes and municipal claims in full, except as hereinafter provided, and the plaintiff in such judgment may purchase the property at such sale, for that sum, if no one bids a higher price therefor. Sec. 30, Act of June 4, 1901, P. L. 364, as amended by Sec. 8, Act of May 28, 1915, P. L. 599. (425). Where judgment is recovered upon any claim, the prop- erty named in which is essential to the business of a quasi-public corporation, the claimant shall have execution thereupon as in other cases of judgments against such corporations. Upon the distribution of any fund realized by a sale of the franchises, and the whole or any part of the assets of the corporation, the court shall determine the actual value of the property bound by the lien, and the claim shall be preferred with such other claims, to the extent of the value thus determined. Sec. 31, Act of June 4, 1901, P. L. 364. 291 (426). The lien of a tax or a municipal claim shall not be divested by any judicial sale of the property Hened, where the amount due is indefinite or undetermined, or where the same is not due and pay- able; nor shall the lien of a tax or municipal claim be divested by any judicial sale of the property Hened, as respects so much thereof as the proceeds of such sale may be insufficient to discharge; nor, except as hereinafter provided, shall a judicial sale of the property liened, under a judgment obtained on a tax or municipal claim, dis- charge the lien of any other tax or municipal claim than that upon which said sale is had, except to the extent that the proceeds realized are sufficient for its payment, after paying the costs and expenses of the sale, and of the writ upon which it was made, and any other prior tax or municipal claims to which the fund may first be ap- plicable. On any such sale being made all tax claims shall be paid out of the proceeds thereof: first, the oldest tax having priority; and municipal claims shall be paid next, the oldest in point of lien having priority. Mortgages, groundrents, and other charges on or estates in the property which were recorded, or created where re- cording is not required, before any tax other than for the current year accrue, or before the actual doing of the work in front of or upon the particular property for which the municipal claim is filed, shall not be disturbed by such sale unless a prior lien is also dis- charged thereby. In case the property be not sold for a sum suf- ficient to pay all taxes and municipal claims, together with the costs thereon, the plaintiff in any such claim may postpone the sale, with- out payment of costs, and file his petition setting forth that more than one year has elapsed since the filing of his claim ; that he has exposed the property to sheriff's sale thereunder, and was unable to obtain a bid sufficient to pay the upset price in full ; and, if a munici- pal claimant other than a municipality, that he will bid sufficient to pay the upset price, and upon the production of searches or a title insurance policy showing the state of the record and the ownership of the property, and of all tax and municipal claims, mortgages, groundrents, or other charges on or estates in the land, the court shall grant a rule upon all parties thus shown to be interested to appear and show cause whj^ a decree should not be made that said property be sold, freed and cleared of their respective claims, mort- gages, charges, and estates. If, upon a hearing thereafter, the court is satisfied that service has been made of said rule upon the parties respondent, in the manner provided in the act to which this is an amendment for the service of writs of scire facias to obtain judg- ments upon tax and municipal claims, and that the facts stated in the petition be true, it shall order and decree that said property be sold at a subsequent sheriff's sale day, to be fixed by the court with- out further advertisement, clear of all claims, liens, mortgages, 292 charges, and estates, to the highest bidder at such sale ; and the pro- ceeds reaUzed therefrom shall be distributed in accordance with the priority of such claims; and the purchaser at such sale shall take, and forever thereafter have, an absolute title to the property sold, free and discharged of all tax and municipal claims, liens, mortgages, charges, and estates of whatsoever kind, subject only to the right of redemption as provided by law. Any person interested may, at any time before the sale, pay the petitioner the whole of his claim, with interest and costs, whereupon the proceedings on petition shall at once determine. For the purpose of enabling the petitioner in any such proceeding to give the notice required, he may take the testimony of the defend- ant in the claim, or of any other person whom he may have reason to believe has knowledge of the whereabouts of any of the parties respondent, either by deposition, commission, or letters rogatory. Any county, municipality, township, or school district, being a claimant, shall have the right, and is hereby empowered to bid and become the purchaser of the property at such sale ; and while the said property, so purchased, is held and owned by either a county or a municipality, township or school district, it shall not be subject to tax claims, unless it be redeemed by the former owner or other per- son having the right to redeem, as provided by the act to which this is an amendment. If, however, a county, municipality, township, or school district shall become the purchaser at said sale, the former owner or other person, desiring to redeem, shall pay all taxes and municipal claims accrued and chargeable against the property prior to the sale thereof, together with the costs and interest thereon, and also all taxes and claims, M'hether filed or not, which would have accrued and become chargeable against the property had the same been purchased at the sale by some party other than the county, city, or other municipal division. Upon the delivery tjy the sheriff of a deed for any property sold under a tax or municipal claim, the judgment vipon which such sale was had shall thereupon and forever thereafter be final and conclu- sive as to all matters of defense which could have been raised in the proceeding, including payment, and no error or irregularity in obtaining or entering of such judgment shall affect the validity thereof. Sec. 32, Act of June 4, 1901, P. L. 364, as amended by Sec. 9, Act of May 28, 1915, P. L. 599. See sections (397), (398), (435), with notes. Property purchased by a borough at a sale for unpaid taxes will not be taxed during the period of the borough's ownership, but taxes during the period of the borough's ownership must be paid by the owner upon redemption of the property. A municipality is not liable to a county for taxes during the years of its ownership. Armstrong, for use, vs. Wolcott, 26 D. R. 899, s. c. 65 P. L. J. 389. 293 Where property failed to bring the amount of a municipal claim at a judicial sale, such municipal lien will be preserved from divestiture, unless the sale is on the municipal lien itself. This section does not have the effect of preserving a municipal lien against the property sold upon such lien, as the act provides a remedy if the bid is insufficient to pay the claim. Wainright, Jr., vs. Mooney, 64 P. L. J. 267, s. c. 14 Del. Co. 66. The provisions that the lien of a tax or municipal claim will not be divested by judicial sale as respects so much thereof as the pro- ceeds of such sale may be insufficient to discharge, applies to a sale on mortgage executed and recorded prior to the approval of the act containing this provision, and taxes assessed subsequent to the pass- age of that act and of the Act of June 4, 1901, P. L. 364, are not di- vested by a judicial sale on such a prior mortgage. Clinton County vs. Harrisburg Trust Co., 39 Pa. C. C. 498, s. c. 21 D. R. 760. Under the Act of May 23, 1889, P. L. 277, tax liens were not sub- ject to divestiture by judicial sale, except to the extent that the pro- ceeds of such sales were actually applied to the payment of the liens. Altoona vs. Enzbrenner, 7 D. R. 740, s. c. in 21 Pa. C. C. 339 sub nomine Altoona vs. Brenzemer. Under the Act of May 22, 189S, P. L. Ill, a judicial sale divests the lien of taxes even if the county commissioners or officers having taxes for collection failed to give notice to the officers or persons selling such land of the amount of taxes against the same, provided the amount of the purchase money shall equal the amount of the taxes. Miller vs. Clawson, 28 D. R. 203. On distribution of sheriff's sale of realty, taxes for the current year have priority over mortgage on which sale was had, though notice was not given sheriff until after sale. Grigg vs. Benson, 35 Montg. 317. Under the Act of May 23, 1889, P. L. 277, a city of the third class having filed a lien for paving subsequent to the lien of a judgment creditor, and the property against which the liens were filed having been sold by judicial process, if the proceeds of the sale being applied to the liens in their order reaches and pays part of the municipal lien it will be discharged to the extent of the payment; otherwise it re- mains a lien that cannot be divested by any judicial sale except a sale on an execution by proceeding on the lien itself. Morris vs. Hainer, 16 Pa. C. C. 468, s. c. 4 D. R. 635, 43 P. L. J. (os) 133. (427). The owner of any property sold under a tax or municipal claim, or his assignees, or any party whose lien or estate has been discharged thereby, may redeem the same at any time within one year from the date of the acknowledgment of the sheriff's deed therefor, upon payment of the amount bid at such sale; the cost of drawing, acknowledging and recording the sheriff's deed ; the amount of all taxes and municipal claims, whether or not entered as liens, if actually paid the principal; and interest of estates and encum- brances, not discharged by the sale and actually paid ; the insurance upon the property, and other charges and necessary expenses on the property, actually paid, less rents or other income therefrom, and a sum equal to interest at the rate of ten per centum thereon, from 294 the time of each of such payments. If both owner and creditor de- sire to redeem, the owner shall have the right so to do only in case he pays the creditor's claim in full. If more than one creditor de- sires to redeeem, the one who was lowest in lien at the time of sale shall have the prior right, upon payment in full of the claim of the one higher in lien. Within the year, one who was lower in lien may redeem for (from) one higher in lien who has already redeemed, and the owner may redeem from him ; and so on throughout, in each case by paying the claim of the one whose right was higher; and one higher in lien may redeem from one lower in lien, unless his claim is paid; but in each case the right must be exercised within the year. Any person entitled to redeem may present his petition to the proper court, setting forth the facts, and his readiness to pay the redemption money; whereupon the court shall grant a rule to show cause why the purchaser should not reconvey to him the prem- ises sold; and if, upon hearing, the court shall be satisfied of the facts, it shall make the rule absolute', and upon payment being made or tendered, shall enforce it by attachment. Sec. 33, Act of June 4, 1901, P. L. 364. Where a person entitled to redeem under the Act of May 23, 1889, P. L. 277, has presented his petition "setting forth the facts and his readiness to pay the purchase money" he is not required to first actually redeem the property by payment or tender of the money actually necessary, the act plainly contemplating a determination by the court, after a hearing of the right of petitioner to redeem, and a fixing of the amount upon payment of which a recognizance will be ordered. Such proceedings being strictly under the statute no question of accounting for rents and profits, or other collateral issues not covered by its provisions will be considered. Hicks vs. Griswold, 2 Lack. L. N. 129. (428). Any claim filed or to be filed, under the provisions of this act, and any judgment recovered thereon may be assigned or transferred to a third party, either absolutely or as collateral se- curity, and such assignee shall have all the rights of the original holder thereof. Where the claim has been paid in full by one of the several defendants therein, whether originally named as such or al- lowed to intervene and defend, it shall be satisfied of record as to him, and marked to his use as against the other defendants, pro rata, according to their respective interests in the property bound by the claim. Sec. 34, Act of June 4, 1901, P. L. 364. Sec. 27, Art. XV, Act of May 23, 1889, P. L. 277, provides:— "In all contracts for improvements, the cost of which is to be paid by assess- ments upon the ^property abutting or benefited, the city may enter into an agreement with the contractor that he shall take an assign- ment of such assessment in payment of the amount due him under the terms of his contract, and in such case the city shall not be other- wise liable under such contract, whether said assessments are collec- tible or not; *••♦*." 295 (429). Any claim, petition, answer, replication, scire facias, af- fidavit of defense, or other paper filed of record, may be amended from time to time, by agreement of the parties or by leave of the court, upon petition for that purpose, under oath or affirmation, set- ting forth the amendment desired, that the averments therein con- tained are true in fact, and that by mistake they vi^ere omitted from or wrongfully stated in the particulars as to which the amendment is desired. Such amendments shall be of right, saving intervening rights, except that no amendment of the claim shall he allowed, af- ter the time for its filing has expired, which undertakes to substitute an entirely dififerent property from that originally described in the claim ; but the description of the property may be amended so as to be made more accurate, as in other cases of amendment. The court may, for cause shown and filed of record, enlarge the time for filing the affidavit of defense, answer or replication, for issuing a scire facias or for entering security, by rule or special or standing order; and any judgment by default jnay be opened by the court, upon cause shown by interveners or other defendants, as in other cases ; but no enlargement of the time for issuing a scire facias shall ex- tend the same beyond the time herein provided for preserving or re- taining the lien thereof. Sec. 35, Act of June 4, 1901, P. L. 364. A lien cannot be amended after motion made to strike it oflf, one and one-half years after filing. Freeport Borough vs. Robert Miller Estate, 34 Super. Ct. 395. Tlie court will not permit a lien to be amended after the expiration of eight years from the time the claim was filed. Philadelphia vs. Lewis, 40 Pa. C. C. 698. Contra — "There is no limitation as to the time of making amendments, and the reasonable presumption is the act intended that proper amendments can be made at any time during the existence of the lien or course of the trial;" and this is so even after the time for filing the lien has expired, except where the amend- ment undertakes to substitute an entirely different property. Mc- Donald Borough vs. Williams, 41 Pa. C. C. 157. A lien may be amended after verdict, and any time before judgment so as to exclude therefrom land improperly included therein. Borough of Dormont vs. Mount Washington Street Railway Company, No. 1, 63 P. L. J. 556. If the lien does not meet all the requirements of Section 11 of this act, it may be amended in accordance with the facts. Adamstown Borough vs. Hartman, 36 Lane. 73, s. c. 10 M. L. R. 174, 33 York 48, 67 P. L. J. 545. A sheriff's return may always be amended so as to conform to the truth unless some new right has arisen in the meantime founded upon the defective return — and such amendment cannot be attacked in a collateral proceeding. Maloney vs. Simpson, 226 Pa. 479. Where a borough files a lien against a property for curbing, but the lien misstates the number of the ordinance under which the improve- ments were authorized, and the mistake is not noticed either in the proceedings to strike off the lien or at the first trial, but is noticed 296 at the second trial after the proper ordinance had been put in evidence, and objection is then made, it is the duty of the trial court to permit the lien to be amended so as to show the true number of the ordinance in accordance with the proofs. Aliiance Borough vs. Schwartz, 53 Super. Ct. 448, reversing 13 Northampton Co. 314, s. c. 4 M. L. R. 97. A motion to amend a municipal lien after verdict to exclude certain land will be refused where mistake is not alleged. Borough of Dor- mont vs. Mount Washington Street Railway Company, No. 2, 63 P. L. J. 557. An amendment to a municipal lien whereby it is intended to ex- clude certain land after a special verdict has been returned in favor of the plaintifif is not necessary. Borough of Dormont vs. Mount Wash- ington Street Railway Company, No. 3, 63 P. L. J. 558. A municipal lien which fails to set forth the authority on which it is based or that proper notice was given to the defendant as required in Section (405), may be corrected by amendment under oath or af- firmation. City of Lancaster vs. Haller, 35 Lane. L. R. 97, 27 D. R. 803. An owner of real estate against which a lien for municipal improve- ments should have been filed, but which is filed against other land, may consent to an amendment of the lien by which the amount thereof is chargeable against his property, without first securing the consent of the holder of a mortgage whose lien antedates that of the municipal claim. The provision "saving intervening rights," is for the protec- tion and benefit of the property owner, and those who acquire rights in the property after the filing of a lien erroneously described, and who were misled thereby. Dunlevy Trustee, for use, etc., vs. Bell, 61 P. L. J. 259. Where a municipality files a municipal lien for a specific sum, being the costs of abating a nuisance, and improperly includes two other items each for a specific amount for which it had no right of lien (the lien not being for the gross sum of all these items), the court may strike oS the two improper items without affecting the validity of the lien for the cost of abating the nuisance. Philadelphia vs. Hyde, 48 Super. Ct. 269. Where the court on discharging a rule to strike off a municipal lien allows the defendant time within which to file an affidavit of defense, and the defendant instead adopts another course, the plaintiff may enter judgment at the end of such period, for want of an affidavit of defense, in the absence of any allowance by the court of further time, to file an affidavit of defense or application by the defendant for such allowance. Lansdowne Borough to use vs. Hartel, 48 Super. Ct. 430, affirming 11 Del. Co. 356, 458. (430). Any rule granted under the provisions of this act may be made returnable at such time as the court may direct, either therein or by rule of court, or by special or standing order. All petitions, answers, and replications shall be under oath or affirmation. Answers must be filed and served within fifteen days after service of the petition; and rules and replications must be filed within fifteen days after service of the last of the answers. Replications must be confined to a reply to new matter, set forth in the answers. The facts averred by either party, and not denied in the answer or re- 297 plication of the other, shall be taken as true in all subsequent pro- ceedings in the cause, without the necessity for proof thereof, unless amended as herein set forth. Any fact necessarily found by the court in finally determining a rule, shall also be taken as true in all subsequent proceedings in the cause, without the necessity for proof thereof, unless either part)'', by writing filed and served at least ten days prior to the time fixed for trial, requires that it be submitted to the jury. Sec. 36, Act of June 4, 1901, P. L. 364. (431). Unless otherwise herein provided, all notices, petitions, and rules shall be served, upon counsel for the parties interested or upon the parties themselves in the manner bills in equity are served, or upon the owner by leaving a copy with the party in possession of the real estate, or, in default of service in any of the methods stated, then in such manner ^as the court shall direct. Sec. 37, Act of June 4, 1901, P. L. 364, as amended by Sec. 10, Act of May 28, 1915, P. L. S99. (432). Whenever security is required to be given, in accordance with the provisions of this act, it may be approved by the prothono- tary, subject to an appeal to the court as in other cases. If there- after the security be found to be insufficient, new security may be required within a given time; in default of the entiy of which, the cause may proceed with the same effect as if none had been given, the sureties, however, remaining liable. By agreement of the parties, or upon approval by the court, after notice, new security may be en- tered in lieu of that originally taken, and an exoneratur entered on the first bond ; or the security given may be limited to a particular property, if clear of encumbrances, and if also the security be en- tered as a lien upon said property. Sec. 38, Act of June 4, 1901, P. L. 364. (433).. In cases where there is a use-plaintiff, if the claim shall be paid, or otherwise satisfied or discharged, at any time before or after filing, it shall be the duty of the use-plaintiff or his legal representa- tives, at the request of the owner or of any other person interested, by a statement in writing showing how the claim was paid, satisfied or discharged, and on the payment of costs if any be due, to enter satisfaction on the record of such claim. In such cases, a refusal to satisfy the claim for a period of sixty days after notice so to do, served upon the use-plaintiff or his agent or attorney, shall subject such use-plaintiff to a suit, as for penalty, at the hands of the party aggrieved, in such sum as the jury shall determine to be just, but not exceeding the amount of the claim. Sec. 39, Act of June 4, 1901, P. L. 364. 298 (434). From any definite judgment, order or decree, entered by the court of common pleas under any of the prcfvisions of this act, or from the refusal to open a judgment entered by default, an appeal may be taken by the party aggrieved to the Supreme or Superior Court, as in other cases. Sec. 40, Act of June 4, 1901, P. L. 364. An order simply dismissing a motion for judgment on the whole record, and not entering judgment for the plaintiff, is interlocutory and no appeal lies from it. Philadelphia to use vs. Pemberton, 206 Pa. 73. (435). This act shall apply only to claims wherein the right to file a lien accrues after the date of its approval ; but the rights of other claimants, under existing laws, shall remain unaffected by its pass- age, and all claims properly filed thereunder are hereby validated. And this act shall not apply to taxes assessed upon unseated land. Sec. 41, Act of June 4, 1901, P. L. 364, as amended by Sec. 1, Act of March 26, 1903, P. L. 63. See sections (397), (398), (426). Section 41 of the Act of April 29, 1844, P. L. 486, was repealed as to seated land by the Act of June 4, 1901, P. L. 364, as amended by the Act of March 26, 1903, P. L. 63. Day vs. Swanson, 236 Pa. 493. The Act of June 4, 1901, P. L. 364, applies only to seated land and does not repeal former legislation for the collection of taxes on un- seated land. Long et al. vs. Phillips, 241 Pa. 246. Unseated land assessed as seated land and sold as such under the Act of June 4, 1901, P. L. 364, is valid, and the purchaser acquires a good title under the Act of June 3, 1885, P. L. 71, relating to tax sales. Hare vs. South Penn Oil Company, 256 Pa. 119. The Act of June 4, 1901, P. L. 364, is not retroactive in effect, and does not repeal the Act of May 16, 1891, P. L. 69, as to municipal claims which accrued before the approval of the Act of 1901. Scranton City vs. Stokes, Nos. 1 and 2, 28 Super. Ct. 434-437; Phila. vs. Mason, 37 Super. Ct. 478; Tiegel vs. Love, 61 Super. Ct. 149, affirming 62 P. L. J. 532. The Act of June 4, 1901, P. L. 364 has no application to a case where an ordinance was adopted and most of the work done prior to the passage of the Act of 1901, but not entirely completed until about a month thereafter. Tarentum Borough vs. Moorhead, 26 Super. Ct. 273. While the Act of June 4, 1901, P. L. 364 repeals certain acts, it does not repeal them, nor the procedure provided by them, in so far as they concern the collection of municipal claims, the right to collect which had occrued prior to June 4, 1901. Tiegel vs. Love, 61 Super. Ct. 149. But see section (404). (c) Method of Establishing Title to Land Acquired at Sales on Municipal or Tax Claims. (436). In all cases where land has been heretofore sold by the sheriff on claims for unpaid taxes or municipal liens, under any act or acts of Assembly, the purchaser, including a municipality in case it be the purchaser, at such sale, or his or its successor in title, may pre- 299 &ent his or its petition, under oath, to the court of common pleas of the county wherein the land is situate, setting forth: (a) The lo- cation of the lands by metes and bounds, or, if it be in a recorded plan of lots, the plan number of the lot and the place of record of the plan ; (b) the names of the former owners, reputed owners, per- sons in possession, or any other person having or claiming to have a right to, interest in, or claim against, said land, if any there be ; and (c) that upon diligent inquiry no person has been found who has or claims to have any right, title, or interest in, or claim against, said land, unless it be those named in the petition. Thereupon a rule shall be granted upon the persons named in the petition, and generally upon all other persons not named in the petition, who have or claim to have any right, title, or interest in, or claim against, the said land, to appear within sixty days from service of the rule, and show cause why the title of the petitioner to said land should not be adjudicated, and decreed valid and indefeasible as against all rights and claims whatsoever. The rule may be made returnable to such term or return day as may be fixed by the court, and shall be entered of record in the appearance docket of said court, and duly indexed therein and also in the ejectment index of said court. As to persons domiciled within the county, the rule shall be served and returned as writs of summons are served and returned. As to those persons who do not have their domicile within the county in which the rule is issued, or those whose domicile is outside the State, the rule may be served by mailing a true and attested copy of the pe- tition and rule by registered letter to his or their last known ad- dress, if any. In addition thereto, the court shall direct that notice by one ad- vertisement in a newspaper of general circulation in the county where the land is situate be given to all persons, including those named in the petition, to appear on or before the return day of the rule, and show cause why the title of the petitioner should not be adjudicated, and decreed valid and indefeasible as against all rights or claims whatsoever. The advertisement shall be made at least sixty days before the return day of the said rule. Sec. 1, Act of May 16, 1919, P. L. 180. See also the Act of June 4, 1915, P. L. 842 on the same subject. (437). In case no person or persons shall appear within the time hereinbefore stipulated, or in case he shall appear and does not make answer to said rule within fifteen days after appearance, the court shall make the rule absolute as to all persons who do not appear or answer, as the case may be. Thereafter all rights and claims of those against whom the rule is made absolute with respect to said land, shall be totally barred ; and any deficiency or defects whatever in the procedure, whereby the land was acquired at sheriff's sale, as 300 aforesaid, from the filing of the claim up to and including the actual sale and delivery of sheriff's deed, shall not thereafter be asserted, and the title of the petitioner shall be adjudicated, and decreed valid and indefeasible as against all such persons. If any person or per- sons shall appear and make answer to said petition, the court shall thereupon order and decree that such person or persons shall begin proceedings to establish his or their title or interest in, or claim against, said land within ninety days thereafter, and if such person or persons shall fail to comply with said order or decree, the court shall thereupon make the rule absolute v/ith the same force and ef- fect as hereinbefore stated. Sec. 2, Act of May 16, 1919, P. L. 180. (438). The court may make such other or further orders or de- crees in the premises as it may deem necessary or proper. Sec. 3, Act of May 16, 1919, P. L. 180. (439). The remedy herein provided is not intended as an exclu- sive method of establishing title to land acquired at a sheriff's sale on a tax claim or municipal claim. Sec. 4, Act of May 16, 1919, P. L. 180. (440). The provisions of this act shall not affect the right of re- demption as now provided by law. Sec. S, Act of May 16, 1919, P. L. 180. 301 ARTICLE XXXIX. INDEBTEDNESS. FINANCE. SINKING FUND. Since the passage of the Act of April 20, 1874, P. L. 65, authorizing the incurring or increasing of indebtedness by municipalities, num- erous curing acts have been passed validating bond issues where there was some defect, error, or omission in the procedure preliminary to the issue. The following is a complete list of these curing acts: (441). 1875, March 30, P. L. 39. 1897, May 19, P. L. 76. 1897, May 25, P. L. 91. 1897. June 23, P. L. 201. 1901, February 13, P. L. 8. 1901, April 19. P. L. 80. 1901, June 4, P. L. 363. 1903, April 23, P. L. 282. 1905, March 10, P. L. 34. 1905, April 10. P. L. 123. 1909, April 29, P. L. 280. 1911. June 19. P. L. 1044. 1913, March 27, P. L. 18. 1913, April 17, P. L. 76. 1913, A^ay 1, P. L. 145. 1915, May 14, P. L. 473. 1915, May 14, P. L. 493. 1917, April 26, P. L. 107. 1917, May 29, P. L. 308. 1919, March 26, P. L. 29. (a) Constitutional Limitation on City Indebtedness. Sinking Fund. (442). The debt of any [county,] city, [borough, township, school district, or other municipality or incorporated district,] ex- cept as herein provided, shall never exceed seven per centum upon the assessed value of the taxable property therein, nor shall any such municipality [or district] incur any new debt, or increase its indebtedness to an amount exceeding two per centum upon such assessed valuation of property, without the consent of the electors thereof at a public election in such manner as shall be provided by law. 302 Constitution of Pennsylvania, part of Sec. 8, Art. IX. The Constitution divides municipal indebtedness into three classes, considered with reference to amount, the procedure to create which, in each case, being determined by the amount, as follows: First — Municipal authorities may create or increase the indebted- ness up to two per cent of the assessed value of the taxable property, excluding that indebtedness created previous to the adoption of the Constitution, so long as the total indebtedness does not exceed seven per cent. Part of Sec. 8, Art. IX, Constitution of Pennsylvania; Bor- ough of Millerstown vs. Frederick, 114 Pa. 435; Schuldice vs. Pitts- burgh 234 Pa. 90. Second — New debt or increase of indebtedness exceeding two per cent., but less than seven per cent, of the assessed value, is permitted only with the assent of the electors, except as to cities whose debt ex- ceeded seven per cent, on the first day of January, 1874, "and has not since been reduced to less than such per centum, may be authorized by law to increase the same three per centum in the aggregate, at any time, upon such valuation." Part of Sec. 8, Art. IX, Constitution of Pennsylvania. Third — ^Where the debt is over seven per cent, of the assessed val- uation it may be increased to ten per cent, with the assent of "Three fifths of the electors voting at a public election." Part of Sec. 15, Art. IX, Constitution of Pennsylvania. Again there are two classes of indebtedness, considered with refer- ence to the method of their creation, recognized in the Constitution, one called for convenience "councilmanic," which is created without the assent of the electors, and another called "electoral," which must be authorized by the electors. Where the total indebtedness does not exceed seven per cent, the municipal authorities can, without vote of the electors, create or increase the "councilmanic" debt to two per cent, of the assessed valuation of the t^^xable property. Keller vs. Scranton 202 Pa. 586. Where the debt is more than two per cent, and a part of the debt had been duly authorized by a vote of the electors, such part may be deducted from the gross amount, and the remaindeV, if under two per cent, of the assessed value, may be increased to two per cent, without special authorization by the electors. Keller vs. Scranton, 202 Pa. 586. Where two or more municipalities unite and the act under which they unite transfers liability for pre-existing debts from the respective units to the consolidated municipality, the status of the debts of the sep- arate municipalities remain the same as before the consolidation, so that the debt of a unit, which was councilmanic, becomes a council- manic debt of the consolidated municiality, and the debt of a unit which was electoral, becomes an electoral debt of the consolidated municipality. Troop vs. Pittsburgh, 254 Pa. 172. The fact that the people vote to permit the funding of an old debt incurred without their consent does not transfer the debt from the councilmanic to the electoral class. While both councilmanic and electoral bonds must be paid by the tax payers, yet, in determining the amount of a municipality's council- manic debt, bonds representing the electoral debt, or cash held for their redemption, cannot be deducted in computing debt created by authority of councils only. Schuldice vs. Pittsburgh, 251 Pa. 28. 303 A school district cannot incur an indebtedness in excess of two per centum upon the assessed valuation of the property of the district without the assent of the electors thereof. Briel, et al. vs. Karthaus Township School District, 22 D. R. 511. A contractor cannot allege ignorance of the indebtedness of a school district, and where his contract offends the constitutional in- hibition, he is presumed to know that the contract is illegal and not capable of enforcement. Kreusler vs. McKees Rocks School District, 256 Pa. 281. Bonds issued by a municipality to purchase a water works, secured solely by the water works without any further liability on the part of the municipality, will constitute an indebtedness forbidden by this section of the constitution, if the aggregate of such bonds taken with the prior municipal indebtedness amounts to more than seven per cent, of the taxable property of the municipality. Lesser vs. War- ren Borough, 237 Pa. 501, affirming 21 D. R. 578, 60 P. L. J. 619, 3 M. L. R. 153. The validity of a municipal contract, in so far as it relates to an increase of the municipal debt beyond the constitutional restriction, must be determined as of the time it was made. Where there are bona fide outstanding debts due the municipality, and revenues which are not necessary with which to meet current expenses during the year, deduction of the amounts thereof may be made under the pro- visions of the Act of April 20, 1874, P. L. 65, in ascertaining the net indebtedness. Yates vs. Connellsville Borough, 40 Pa. C. C. 33, s. c. 60 P. L. J. 438, 4 M. L. R. 26, 21 D. R. 1048. A contract for the erection of a school building at a price which in addition to previous existing indebtedness would create a total debt in excess of two per cent, of the assessed valuation of the property of the school district will be enjoined as an illegal increase of indebted- ness, although the manner of payment is limited to available funds of current revenues as they may arise from a special tax levy or other- wise. McKinnon vs. Mertz, 225 Pa. 85, affirming 56 P. L. J. 195. A contract by which a municipality obligates itself to pay money to a contractor for a public improvement is an increase of indebted- ness within the meaning of the constitution. Waters vs. Tamaqua Borough, 37 Pa. C. C. 65; s. c. 19 D. R. 1075, 5 Sch. L. R. 148, 2 M. L. R. 15. The increase of two per cent, authorized by this section may not be transcended except by a popular vote, and this, whether the in- crease has been made by successive additions, each less than two per cent., or at any one time and by one municipal act alone. Houston vs. Lane, 191 Pa. 143, affirming 15 Lane. 177, 8 D. R. 19. A municipal contract cannot be enforced where it appears that the contract if enforced would result in an increase of indebtedness to an amount exceeding two per centum upon the assessed valuation of property without the assent of the electors. O'Malley vs. Olyphant, 198 Pa. 525. Debt and indebtedness in this section are not used in any technical way, but in their broad general meaning of all contractual obligations to pay in the future for considerations received in the present. Un- liquidated damages to land owners from a public improvement are a debt within this meaning. Keller vs. Scranton, 200 Pa. 130; see also Lesser vs. Warren Borough, 237 Pa. 501. 304 Where the indebtedness of a city exceeds the limit fixed by this section of the constitution, it cannot create a new debt. If the con- tracts and engagements of municipal corporations do not overreach their current revenues, no objections can lawfully be made to them, however great the indebtedness of such municipalities may be, for in such case their engagements do not extend beyond their present means of payment, and so no debt is created. Appeal of City of Erie, 91 Pa. 398. The municipal authorities may increase tlie debt from time to time until two per centum has been added, provided the original debt, with the increase, does not exceed seven per centum. After the two per centum has been added there can be no further increase without the vote of the people. Pike County vs. Rowland, 94 Pa, 238. (443). An}- of the said municipalities [or counties] may incur indebtedness in excess of seven per centum, and not exceeding ten per centum, of the assessed valuation of the taxable property therein, if said increase of indebtedness shall have been assented to by three- fifths of the electors voting at a public election, in such manner as shall be provided by law. Constitution of Pennsylvania, part of Sec. IS, Art. IX. The term "municipalities" as used in this section does not include the city of Philadelphia. See section (4S3). (444). No debt shall be contracted or liability incurred by any municipal commission, except in pursuance of an appropriation previously made therefor by the municipal government. Constitution of Pennsylvania, Sec. 2, Art. XV. (445). Every city shall create a sinking fund, Virhich shall' be in- violably pledged for the payment of its funded debt. Constitution of Pennsj'lvania, Sec. 3, Art. XV. See notes under Act of April 20, 1874, P. L. 65, subdivision (b) of this article. (446). Any [county, township, school district or other] munici- pality incurring any indebtedness shall, at or before the time of so doing, provide for the collection of an annual tax sufficient to pay the interest and also the principal thereof within thirty years. Constitution of Pennsylvania, Sec. 10, Art. IX. This section does not apply to the incidental and ordinary expenses of making and repairing township roads. Lehigh Coal and Naviga- tion Company's Appeal, 112 Pa. 360. A municipality will not be permitted to deny its liability upon bonds on the ground that no tax had been actually levied or assessed for ' their payment, where the record shows that the statement filed by the clerk in the office of the court of quarter sessions, in advance of the issue, declared unqualifiedly that such a tax had been levied. Bell vs. Waynesboro, 195 Pa. 299. 305 20 Municipal indebtedness as used in this section is such indebtedness as may arise from some contract of the municipality, and which, being in excess of the current revenues, is to be interest bearing, for some definite period. Davis vs. Doylestown, 3 Pa. C. C. 573. Borrowing money with which to pay oflf a valid existing indebted- ness, thus merely exchanging one creditor for another, is not pro- hibited by this section of the constitution. Hempfield Township Super- visors, 36 Pa. C. C. 532, s. c. 11 Del. Co. 188, 57 P. L. J. 235. If a municipality at the time of making a contract levies a tax in good faith supposed to be adequate to meet it, but on account of un- forseen occurrences the result is an insufficient fund, it cannot be held that the contract would thereby be made bad. Potters National Bank vs. Ohio Township, 260 Pa. 104. This seection does not apply to the case of a municipality incurring a lawful indebtedness and intending to pay at once by levying a tax, or with money then in its treasury. Within the constitutional limit, debts within the lawful power of a municipality to incur may be con- tracted without providing for a direct annual tax, unless payment of such indebtedness is deferred to a fixed future period. Com. vs. Stra- ban Township, 45 Pa. C. C. 85, s. c. 19 Dauphin 302. When a school district enters into an agreement with a contractor for the construction of a school house, it incurs an indebtedness, the payment of which must be provided for at or before its creation. The absence of such provision makes the contract, as between the parties to it, unlawful and void. Spatz vs. School Districts of Heidelberg and Robesonia, 25 D. R. 452, s. c. 7 Berks 222. (b) Procedure to Incur or Increase City Indebtedness. Enabling Legislation. (447). Whenever the debt of any [county,] city, [borough, town- ship, school district or other municipaUty or incorporated district] within this Commonwealth shall be equal to seven per centum upon the assessed value of the taxable property, as fixed by the last pre- ceding assessed valuation therein, it shall be unlawful to increase the same, and all such increase shall be void, and any obligation is- sued for such increase, or any part thereof, shall be of no binding force upon such municipality [or district;] and each of the officers thereof wilfully authorizing such increase, or executing any obliga- tion therefor, shall be guilty of a misdemeanor, and upon conviction thereof shall be fined not €xceeding ten thousand dollars, and un- dergo an imprisonment not exceeding one year, or either, at the dis- cretion of the court trying the same: Provided, That any city, the debt of which now exceeds seven per centum of such assessed valua- tion, may, under authority of law to be hereafter enacted, increase the same three per centum in the aggregate at any one time upon such valuation. Sec. 1, Act of April 20, 1874, P. L. 65. 306 The entire indebtedness which may be created by a municipality under the constitution, whether created before or since its adoption, is limitd to seven per centum of the assessed value of the taxable property. Schuldice vs. Pittsburgh, 234 Pa. 90. ' The existing debt is ascertained by subtracting from the total in- debtedness the amount of the certificates of the funded debt held in the sinking fund. Brooke et al. vs. City of Philadelphia et al. 152 Pa. 123; Bruce et al. vs. Pittsburgh et al. 166 Pa. 152, and any cash held therein, Schuldice vs. City of Pittsburgh, 251 Pa. 28; 234 Pa. 90. The issuance of bonds for the purpose of funding or refunding a debt previously created and existing is not an increase of indebtedness, but merely a continuation thereof. Schuldice vs. City of Pittsburgh, 251 Pa. 28. It is lawful for county commissioners to make temporary loans as the necessities of the county may require to meet the usual and ordi- nary expenses of the county, provided they borrow no more than thty can repay out of the current revenue of the county available within the year in which such money is borrowed. Commissioners of Schuyl- kill Co. vs. Snyder, 20 Pa. C. C. 649; see also Brown, et al. vs. City of Corry, et al. 4 D. R. 645; see Snyder et al. vs. Commissioners of Schuylkill Co. 190 Pa. 440. Additional power is conferred by this act and the constitution to increase municipal indebtedness and to levy additional taxation, with- out any necessity for repealing pre-existing limitations of the tax rate for ordinary municipal purposes. Millvale Borough, Appeal of Howard et al. 162 Pa. 374. See also notes to Sec. S of this act, infra Sec. (455). Sec. 59 of the Act of May 23, 1874, P. L. 230, v^hich authorizes the increase of indebtedness beyond seven per cent of the assessed valuation in cities accepting the provisions of that act, reads as fol- lows: (447a). "Any city of the third class, or any city heretofore in- corporated having a population less than ten thousand, and accepting the provisions of this act, the debt whereof now exceeds seven per centum of the assessed valuation of the taxable property therein, may by ordinance or ordinances, duly passed, increase its indebted- ness to an amount not exceeding three per centum of such assessed valuation and no more: Provided, That such increase shall only be made in the manner and after the notice and in accordance with every requirement made necessary for the increase of the indebtedness of a city of the first class, under the provisions of the eleventh section of this act: And provided further. That this act shall not be construed as repealing any law authorizing the proper authorities of any city included in the third class, to issue bonds and fun4 their indebted- ness." (448). Any [county,] city, [borough, school district, township of the second class, or other municipality or incorporated district,] may incur debt or increase its indebtedness to an amount in the aggre- gate not exceeding two per centum upon the assessed value of the taxable property therein, as fixed and determined by the last preced- ing assessed value thereof: and the corporate authorities of such municipality may, by a vote thereof, duly recorded upon its minutes, 307 authorize and direct the incurring or the increase of such debt to the amount aforesaid ; and may issue coupon bonds or other securi- ties therefor, in sums not less than one hundred dollars each, bear- ing interest at a rate not exceeding six per centum per annum, pay- able semi-annually, and the principal thereof reimbursable at a period not exceeding thirty years from the date at which the same is authorized ; and an annual tax, commencing the first year after such debt shall be increased or incurred, sufficient for the payment of the interest thereon, and the principal of such debt within a period not exceeding thirty years from the date of such increase, shall be forthwith assessed. Before issuing any such obligation or security, it shall be the duty of the principal officer or officers of such munici- pality [or incorporated district] to prepai^e a statement showing the actual indebtedness of such district, the amount of the last preceding assessed valuation of the taxable property therein, the amount of debt to be incurred, the form, number and date of maturity of the obligations to be issued therefor; and he shall make and append thereto his oath or affirmation of the truth of the facts therein stated, and Shalt file the said statement in the office of the clerk of the court of quarter sessions of the proper county; upon failure so to do, he shall be guilty of a misdemeanor, and on conviction thereof shall be punished as provided in the first section of this act. Certified copies of the record of such statement, under the seal of said court, shall be competent evidence in all the courts of this Commonwealth : Pro- vided, That the bonds shall not be sold at less than their par value. Sec. 2, Act of April 20, 1874, P. L. 65, as amended by Sec. 1, Act of April 13, 1897, P. L. 17, and Sec. 1, Act of April 28, 1915, P. L. 195. See Sec. 442 with notes. Upon a taxpayer's bill to enjoin a municipality from borrowing money under an ordinance of council the burden is upon the plain- tiff to show (1) that the total amount of net increase of debt exceeds two per centum of the assessed valuation of taxable property; (2) that the power of councils to increase the indebtedness without a vote of the electors has been exhausted; (3) that the proposed loan ex- ceeds the limit provided by Art. IX, Sec. 8, of the constitution; (4) that the loan cannot be made without a prior vote of the electors; and (5) that no provision has been made for repayment, and it cannot be repaid out of current revenues : Alexander vs. City of Fhila. at al. 17 D. R. 799. . The municipal authorities have the right to borrow without the as- sent of the electors two per centum of the assessed valuation, so long as the total indebtedness is less than seven per cent., excluding any in- debtedness existing prior to the adoption of the constitution, and this exclusion applies to refunding bonds issued since that time to take the place of bonds outstanding when the constitution went into effect. Schuldice vs. Pittsburgh, 234 Pa. 90, affirming 59 P. L. J. 192. A municiality cannot increase its indebtedness without the consent of the electors in such an amount that the proposed increase added to the debt previously incurred amounts to more than two per centum. 308 Appeal of the City of Wilkes-Barre, 109 Pa. 554, but this would not seem to include debts existing at the time of the adoption of the con- stitution, and the Act of April 20, 1874, P. L. 65. Borough of Millers- town vs. Frederick, 114 Pa. 435. Where the debt of a municipality is more than two per cent of the assessed value of taxable property therein, and it appears that a part of the debt had been duly authorized by vote of the electors, such part may be deducted from the gross amount, and the remainder, if un- der two per cent of the assessed value, may be increased to two per cent, without special authorization by the electors. Keller vs. Scran- ton, 202 Pa. 586. In order to find whether or not the indebtedness of a municipality has reached the limit of two per centum of its assessed valuation be- yond which, a further increase is prohibited without the assent of the electors, it is improper to compute the increase by subtracting from the present indebtedness the indebtedness in 1874. When the dif- ference between the new debt incurred since 1874 and the amount of such debt paid off and placed in the sinking fund is more than the said two per cent, limit, no more indebtedness can be incurred without the consent of the electors; nor can that portion of the debt incurred siijce 1874 which was incurred with the assent of the electors be sub- tracted from the increase to bring it within the said two per cent, limit. Houston et al. vs. City of Lancaster, 15 Lane. L. R. 177, af- firmed in 191 Pa. 143. In determining the percentage of the loan, the borough authorities are not required to go behind the face of the last assessment. Appeal of Wm. H. Brown, et al. Ill Pa. 72. The fact that the people vote to permit the funding of an old debt incurred without their consent does not transfer the debt from coun- cilmanic to the electoral class. Schuldice vs. Pittsburgh, 251 Pa. 28. It is not necessary that the loan should be issued redeemable by annual instalments. The intent of the act is that a certain sum shall be annually raised in anticipation of payment which may be made in the redemption of the bonds annually or paid into the sinking fund for the payment of the bonds at the expiration of a term of years. Bruce et al. vs. Pittsburgh et al. 166 Pa. 152. The manner of payment is left to the municipal authorities, and they are not restricted to any particular method of financing the debt. Blamere vs. Borough of Parsons, et al. 17 Luz. L. R. 417, s. c. 7 M. L. R. 175. Before the bonds are issued, an annual tax must be assessed to pay the indebtedness, but the first year in which the same can be collected is that which succeeds the incurring of the indebtedness, that is, the issue and sale of the bonds, this period of time being the next fiscal year or the next tax year, but not the next civil year. D. L. & W. R. R. Co. vs. Scranton City, 5 Pa. C. C. 437, s. c. 5 Kulp, 67. An ordinance providing for the increase of the municipal debt is invalid which does not provide for the levy and collection of an an- nual tax sufficient to pay the principal with interest within thirty years. Bruce et al. vs. Pittsburgh et al. 166 Pa. 152. The statement filed by the municipal authorities with the clerk of the court of quarter sessions is to give notice of the proposed loan. A remonstrance is not the proper method of registering objections to the loan or of raising any question as to the legality of the same, and will be stricken off as irrelevant matter. Laird vs. Grecnsburg, 8 Pa. C. C. 621. 309 The statement provided for by this section must be filed before the securities are sold, which represent the proposed increase of debt. Com. ex rel. Lyon vs. Ripple, Mayor, 4 Kulp 59. There is no presumption that officers of a municipality, acting un- der oath of office, have not, in increasing the municipality's indebted- ness, made the statement required by this section. Safe Deposit Bank of Pottsville vs. County of Schuylkill, 190 Pa. 188. An indebtedness of a school district for materials supplied in the erection of a school house is not within the provisions of this act nor of Sec. 8, Art. IX, of the constitution, if at the time the contract is made, the district has a surplus of assets over liabilities, though sub- sequent contracts for the completion of the building extended the In- debtedness to an amount beyond two per cent, of the assessed valua- tion, there being no proof that the directors then had in contempla- tion such an increase of the debt. School District of Denison Town- ship, vs. Shortz, et al. 2 Penny. 231. The assessed valuation is the valuation for taxable purposes, and if taxes for school purposes in a city are legally levied upon the city valuation, then the city valuation is the proper valuation upon which to base an increase of indebtedness. Com. vs. Schmitz, 18 D. R. 861, s. c. 56 P. L. J. 31. Where a municipal corporation undertakes that which does not necessarily appertain to the municipality, it must have express power to do so, but the power is implied where it undertakes to do that which is necessary. The power to create or to increase debt to an amount not exceeding two per centum is granted in this section. City of Williamsport vs. Com. 84 Pa. 487. As to loans for temporary or other purposes, this section does not provide for a definite statement of purpose as is required to give notice to the public by section three of this act authorizing a loan only upon direct vote of the people. The practice, however, is, as it ought to be, to set out in the ordinance the purpose or purposes for which the in- debtedness is to be incurred, even when the loan is for temporary purposes and authorized by ordinance without a vote of the people. Elliott vs. Philadelphia, 229 Pa. 215. The municipal authorities are not obliged to advertise for bids be- fore issuing bonds. Pearson vs. Kantner et al. 8 Sch. L. R. 63. Where bonds were issued to provide for the payment of an exist- ing legal indebtedness, and the constitutional and statutory require- ments were not followed, the bonds are void, but since the money borrowed is applied to an existing valid indebtedness, thus merely exchanging one creditor for another, the borough is liable for the money and recovery may be had against it in a suit on the contract. Borough of Rainsburg vs. A. E. Fagan, 127 Pa. 74. (449). The indebtedness of any [county,] city, [borough, town- ship, school district, or other municipahty or incorporated district,] in this Commonvsrealth, may be authorized to be increased to an amount exceeding two per centum, and not exceeding seven per centum, upon the last preceding assessed valuation of th taxable property therein, with the assent of the electors thereof, duly ob- tained at a public election to be held in the said district or munici- pality. Whenever the corporate authorities of any [county,] city, 310 [borough, township, school, or other municipaUty or incorporated district,] by their ordinance or vote shall have signified a desire to make such increase of indebtedness, they shall give notice during at least thirty days, by weekly advertisements in the newspapers, not exceeding three in said district, and, if no newspaper be published therein, by at least twenty handbills posted in the most public parts thereof, of an election to be held at the place or places of holding the municipal elections in said [district or] municipality, on a day to be by them fixed, for the purpose of obtaining the assent of the elec- tors thereof to such increase of indebtedness. Said notice shall contain a statement of the amount of the last as- sessed valuation, of the amount of the existing debt, of the amount and percentage of the proposed increase, and for the purposes for which the indebtedness is to be increased. Such election shall be held at the place, time, and under the same regulations as provided by law for the holding of municipal elections, and it shall be the duty of the inspectors of such election to receive tickets, and to de- posit said tickets in a box provided for that purpose, as is provided by law in regard to other tickets received at said election; and the tickets so received shall be counted and a return thereof made to the clerk of the court of quarter sessions of the proper county, duly certified as is required by law, together with a certified copy of the ordinance and the advertisement; and the said clerk shall make a record of the same, and furnish a certified copy thereof, under seal, showing the result, to the corporate authorities of such municipality, and the same shall be placed of record upon the minutes thereof. The corporate authorities of such municipality shall, in all cases, fix the time of holding such election on the day of the municipal or of the general election, unless more than ninety days elapse between the date of the ordinance or vote desiring such increase and the day of holding the said municipal or general election. If any other day be fixed for such election, the expense of holding the same shall be paid by the municipality for the benefit of which it shall be held. In receiving and counting and in making returns of the votes cast, the inspectors, judges, and clerks of said election shall be governed by the laws of this Commonwealth regulating municipal elections; and the vote shall be counted by the court, as is now provided by general laws governing municipal elections, and all the penalties of the said election laws for the violation thereof are hereby extended to, and shall apply to the voters, inspectors, judges, and clerks voting at and in attendance upon, the elections held under the provisions of this act. Sec. 3, Act of April 20, 1874, P. L. 65, as amended by Sec. 1, Act of June 9, 1891, P. L. 252 and Sec. 1, Act of May 1, 1909, P. L. 317. 311 The provisions of this section for increasing the indebtedness be- yond two per cent of the assessed valuation must be strictly com- piled with. Wetherop vs. Titusville School Board et al. 7 Pa. C. C. 451. A court of equity will restrain the carrying into effect of a borough ordinance for an election to be held by citizens of the borough where the ordinance provides for the submission of several distinct ques- tions, one of which is the funding of an old debt, and compels the citizens to vote for the whole or none. The only question that can be submitted to the people under this act is that of increasing the public debt of the municipality. A bill in equity can be maintained by a taxpayer and citizen of a borough to restrain the carrying into execution of such an ordinance, which is illegal. Bloomsburg Town Election Case, 18 Pa. C. C. 449; s. c. 4 D. R. 671. Before the authorities of a municipality can authorize an election to pass upon an increase in municipal indebtedness to an amount exceed- ing two per centum upon the assessed valuation of taxable property they must first act by giving expression, by "ordinance or vote," to their desire for the increase. Ploffman vs. Pittsburgh, 229 Pa. 36. This is mandatory, and is not complied with by an ordinance in which the councils both ordain "that the debt of the said city shall be increased in the sum of eight million dollars," and direct that an elec- tion shall be held. Bullitt vs. Philadelphia, 230 Pa. 544, affirming 19 D. R. 1083; (but see note following). It is not necessary for a borough council to express its "desire" to increase the indebtedness of the borough by a separate ordinance, as preliminary to submitting the question to a vote of the electors. The question of "desire" may be included in the same ordinance in which the election and notice are provided for. Egan vs. Claysville Borough, et al. 239 Pa. 259; Storch vs. Lansdowne Borough, 239 Pa. 306. The use of the word "desire" does not mean that only those par- ticular individuals constituting the corporate authorities at the time of the passage of the ordinance signifying a desire to increase the debt, shall be permitted to make the increase. Barr vs. Philadelphia, 191 Pa. 438. No particular form or words are required in publishing notice of an election hereunder so long as the purpose and object to be ac- complished are sufficiently set forth and it contains the information as prescribed in this section. Brandt vs. Elizabethtown Borough School District, 26 Lane. L. R. 249. The mandate as to notice is sufficiently compiled with if notice is properly published in two newspapers, and possibly in one newspaper published in English. Where the advertisements in two newspapers plainly makes up the required weekly advertisements for thirty days, it is equivalent to one complete advertisement in one newspaper and substantially, if not literally, compiles with the law. Harrisburg vs. Dauphin Deposit Bank, 12 D. R. 207; s. c. 6 Dauphin Co. 4. See Witherop vs. Titusville School Board et al. 7 Pa. C. C. 451. Where there was an irregular publication in three daily newspapers, and not continuously in any one, and twelve days elapsed during which no publication of the notice appeared, the statutory requirement that notice for "at least thirty days, by weekly advertisements," is not satisfied. Graham et al. vs. City of Lebanon, 240 Pa. 337. 312 The ''statement" required to be published must comply strictly with the law. Failure to comply with this requirement in any substantial manner will invalidate the loan. Bullitt et al. vs. City of Philadelphia et al. No. 1, 19 D. R. 1083, affirmed in 230 Pa. 544. Bonds issued to take up outstanding bonds and notes issued for temporary loans, where the total is in excess of two per cent of the assessed valuation, the increase of indebtedness in excess of the two per cent rriight be credited and authorized by an election. Roy vs. Columbia Borough 192 Pa. 146. The electors are to assent or dissent to or from the increase of the indebtedness, not to or frorn the purposes to which it is to be applied, and it is not necessary that they shall vote separately on each item set apart for the particular purpose for which the debt is about to be increased, several of which purposes may be included in the same loan. Barr vs. Philadelphia, 191 Pa. 438. A proposed increase of municipal indebtedness, when submitted to public vote at the regular municipal or general election, should be voted upon the general official ballot and not upon special separate ballots provided for that purpose. School District of Kingston vs. Luz. Co. et al. 17 Luz. L. R. Rep. 431, s. c. 6 M. L. R. 197. The ballots to be used at an election to ascertain whether the in- debtedness of a borough shall be incli^ascd must be official ballots fur- nished by the county commissioners, and must be in the form pre- sented by the Act of April 29, 1903, P. L. 338. McLaughlin vs. Summit- hill Borough, 224 Pa. 425; and an election to pass upon an increase, of a borough's indebtedness, where the ballots were taken in the form prescribed by the Act of 1874, and its amendments, is void. Holtzman vs. Braddock, 14 D. R. 547. The laws relating to municipal elections do not require returns of a special election held to decide the matter of a proposed increase of indebtedness, to be presented to, opened and computed by the court. Steelton Borough's Election, 22 Pa. C. C. 593. As this act provides no method for contesting the result of an elec- tion on the question of an increase of a municipality's indebtedness, there can be no contest thereof. Wilson vs. Blaine, et al. 262 Pa. 367. The county is not liable for the expense of a special election held to determine whether the indebtedness of a municipality shall be in- creased or not. Wilkes-Barre vs. County of Luzerne, 5 Luz. L. R. 75; Gaskins vs. Montour Co. 8 Luz. L. R. 270. There is no provision in the constitution or acts of Assembly that confer upon the courts the power to assume jurisdiction of a contest of a borough election on the question of increase of indebtedness. Fowler vs. Gable 3 D. R. 23. (450). Whenever, by the returns of such election, it shall ap- pear that there is a majority voting .for "no increase of debt," such increase shall not be made; nor shall any other election upon the same subject be held in that municipality for one year from the date of such preceding election. If the return of such election shall show a majority voting "that debt may be increased," the corporate authorities of the municipality may increase the same to the amount named and specified in the notice given for the holding of such elec- tion, not exceeding seven per centum of the last assessed valuation 313 of such municipality, in the manner and subject to all the require- ments provided by the second section of this act for increasing in- debtedness, to an amount not exceeding two per centum of the last assessed valuation, including the amount named in the sworn state- ment to be filed in the office of the clerk of the court of quarter ses- sions of the proper county ; and they shall, before issuing any obliga- tions therefor, assess and levy an annual tax, the collection whereof shall commence the first year after the said increase, which tax shall be equal to and sufficient for and applied exclusively to the payment of the interest and the principal of such debt within a period not ex- ceeding thirty years from the date of such increase; and the moneys arising from such tax shall be applied at such periods as the munici- pality may stipulate in such obligations, to the redemption at par of the said outstanding obligations according to their terms. Sec. 4, Act of April 20, 1874, P. L. 65, as amended by Acts of April 18, 1895, P. L. 36, and May 11, 1897, P. L. S3, Sec. 1. Under the Act of April 18, 1895, amending the fourth section of the Act of 1874, P. L. 65, it was held that a municipality could only in- crease its indebtednes's at, any one time at any one election by an amount not over two per centum by a vote of the people. Wm. Sener, et al. vs. Ephrata Borough, 176 Pa. 80. A subsequent amendment to this section, May 11, 1897, P. L. 53, permits any increase to be made so long as the total' indebtedness does not exceed the constitutional limitation. The provision of this section as to the time within which an elec- tion may be held where a majority of the electors voted for "no in- crease of debt" has been indirectly amended by the Act of May 28, 1913, P. L. 377. See the two sections immediately succeeding. An ordinance providing for the increase of the municipal debt is invalid which does not provide for the levy and collection of an an- nual tax sufKcient to pay the principal with interest within thirty years. Bruce et al. vs. Pittsburgh et al. 166 Pa. 152. While a given time is fixed for the payment of the debt the manner of payment is left to the municipal authorities, and they are not re- stricted to any particular method of financing the debt. Blamere vs. Borough of Parsons et al. 17 Luz. L. R. Rep. 417, s. c. 7 M. L. R. 175. While a certain sum should be raised each year in anticipation of pay- ment it is not necessary to pay it off in annual instalments. Bruce et al. vs. Pittsburgh et al. 166 Pa. 152. The municipal authorities are not obliged to advertise for bids be- fore issuing bonds. Pearson vs. Kantner et al. 8 Sch. L. R. 63. See also notes to Sec. 7 of this act, infra Sec. (462). (451). Whereas, Section four of an act, entitled "An act to regu- late the manner of increasing the indebtedness of municipalities, to provide for the redemption of the same, and to impose penalties for the illegal increase thereof," approved the twentieth day of April, Anno Domini one thousand eight hundred and seventy-four, pre- scribes that no other election can be held on the same subject for one year from the date of the preceding election, thus causing, in 314 certain years, a special election, or requiring the election to be post- poned for another year; therefore, — Preamble, Act of May 28, 1913, P. L. 377. (452). Whenever an election is held to increase municipal in- debtedness, and the increase is defeated by a majority vote, another election for the same purpose, or on the same subjects, may be held after fifty-one weeks ; and that, on the fourth day of November, Anno Domini one thousand nine hundred and thirteen, an election may be held to increase municipal indebtedness for the same purposes, or on the same subjects, as were defeated by a majority vote at the election held on the fifth day of November, Anno Domini one thou- sand nine hxmdred and twelve. Sec. 1, Act of May 28," 1913, P. L. 377. (453). Any of the said municipalities may incur indebtedness in excess of seven per centum, and not exceeding ten per centum, of the assessed valuation of the taxable property therein, if said in- crease of indebtedness shall have been assented to by three-fifths of the electors voting at a public election, in such manner as shall have been or may hereafter be provided by law for the increase of in- debtedness by mimicipalities with the assent of the electors. Sec. 3, Act of June S, 1915, P. L. 846. The term "municipalities" as used in this section does not include the city of Philadelphia. This section was adopted to carry into efTect the provisions of Sec. IS, Art. IX of the constitution, see supra Sec. (443). (454). Said municipalities shall have all the rights and powers necessary and needful to carry out the provisions of this act. Sec. 4, Act of June S, 1915, P. L. 846. (455). The word "indebtedness," used in this act, shall be deemed, held and taken to include all and all manner of debt, as well floating as funded, of the said mimicipality ; and the net amount of such in- debtedness shall be ascertained bj'' deducting from the gross amount thereof, the moneys in the treasury, all outstanding solvent debts, and all revenues applicable within one year to the payment of the same. Sec. 5, Act of April 20, 1874, P. L. 65. The indebtedness of a municipality, like that of an individual, is what it owes and can be called upon to pay. In determining the net amount of its indebtedness, a municipality is not entitled to deduct authorized, but unissued loans. "Solvent debts," are debts due to a municipality directly, payment of which it can enforce as one of its quick assets for the liquidation of any of its obligations. McGuire vs. Philadelphia, No. 1, 245 Pa. 287. A "temporary loan" is a "debt" or "indebtedness" unless provision is made for its payment out of the current revenues. Alexander vs. City of PhUadelphia, et al. 17 D. R. 799. 315 Bona fide outstanding debts due the municipality and revenues not necessary to meet current expenses during the year may be deducted in ascertaining the net indebtedness. Yates vs. Connellsville Borough, 21 D. R. 1048; s. c. 40 Pa. C. C. 33, 60 P. L. J. 438, 4 M. L. R. 26; El- liott vs. Philadelphia, 229 Pa. 215. Net indebtedness is ascertained by deducting (1) bonds and cash in the sinking fund; (2) money in treasury; (3) outstanding solvent debts, and (4) revenues available vi^ithin the year for the payment of indebtedness. Snyder vs. School District of the Borough of Greens- burg, et al. 15 Lack. J. 317; s. c. 4 West. L. J. 13. The indebtedness contemplated under this act and Sec. 10, Art. IX, of the constitution is such as may arise from some contract of the municipality itself and which is to run for some definite period and is interest bearing. Com. vs. Township of Straban, 19 Dauphin Co. 302; s. c. 45 Pa. C. C. 85. Temporary loans, for usual and ordinary expenses of the munici- pality, to be paid out of the current revenues of the year, is not "in- debtedness" under this act, and its flotation does not require a pro- ceeding hereunder. Snyder et al. vs. Commissioners of Schuylkill Co. 190 Pa. 440, affirming 20 Pa. C. C." 649. (See latter case.) An annual sum to be paid monthly for lighting the streets of a bor- ough for a limited term is not the incurring of a new indebtedness. Wade et al. vs. Oakmont Borough et al. 165 Pa. 479. When the cost of municipal improvements shall be considered an indebtedness, see Schuldice vs. City of Pittsburgh 59 P. L. J. 192, af- firmed in 234 Pa. 90. Bonds issued by a bridge company of which the municipality owns all the stock and has complete control, are properly counted as a part of the municipality's debt. Schuldice vs. City of Pittsburgh, 251 Pa. 28. See also notes to Sec. 1, of this act, supra Sec. (447). (456). The corporate authorities of every such municipality [or district] shall, at the end of their fiscal year, prepare and publish in at least two newspapers of said municipality or of the county in which the same is situate, if so many be printed therein, a statement showing in detail, the actual indebtedness, the amount of the funded debt, the amount of the floating debt thereof, the valuation of tax- able property therein, the assets of the corporation, with the char- acter and value thereof, and the date of maturity of the respective forms of funded debt thereof; and a neglect or failure so to do shall be a misdemeanor, punishable by fine not exceeding one thousand dollars. Sec. 6, Act of April 20, 1874, P. L. 65, as amended by Sec. 1, Act of April 12, 1875, P. L. 46. (c) Certain Bonds Not to be a Debt of City. (1) Constitutional Provision. (457). No obligations which have been heretofore issued, or which may hereafter be issued, by any [county or] municipality, other than Philadelphia, to provide for the construction or acquisi- 316 tion of water works, subways, underground railways, or street rail- ways, or the appurtenances thereof, shall be considered as a debt of a municipality, within the meaning of section eight of article nine of the Constitution of Pennsylvania or of this amendment, if the net revenue derived from said property for a period of five years, either before or after the acquisition thereof, or, where the same is constructed by the [county or] municipality, after the completion thereof, shall have been sufficient to pay interest and sinking-fund charges during said period upon said obligations, or if the said obU- gations shall be secured by liens upon the respective properties, arid shall impose no municipal liability. 'Where municipalities [or coun- ties] shall issue obligations to provide for the construction oi prop- erty, as herein provided, said municipalities [or counties] may also issue obligations to provide for the interest and sinking fund charges accruing thereon until said properties shall have been completed and in operation for a period of one year; and said municipalities [and counties] shall not be required to levy a tax to pay said interest and sinking-fund charges, as required by section ten of article nine of the Constitution of Pennsylvania until after said properties shall have been opei"ated by said [counties or] municipalities during said period of one year. Constitution of Pennsylvania, part of Art. IX, Sec. IS. (2) Enabling Legislation. (458). Obligations which have been heretofore issued, or which may hereafter be issued by any municipality other than Philadelphia, to provide for the construction or acquisition of water-works, sub- ways, underground railways or street railways, or appurtenances theref, shall not be considered as a debt of the municipality, within the meaning of any act of Assembly of the Commonwealth of Penn- sylvania authorizing or limiting the incurring of debt or indebted- ness, or the increasing of debt or indebtedness, by any municipality, v/hether with or without the assent of the electors thereof, if the net revenue derived from said property for a period of five years, either before or after the acquisition thereof (or where the same is constructed by the municipality, after the completion thereof) shall have been sufficient to pay interest and sinking-fund charges during said period upon said obligations, or if the said obligations shall be secured by liens upon the respective properties, and shall impose no municipal liability. Sec. 1, Act of June 5, 191S, P. L. 846. (459). Where a municipality shall issue obligations to provide for the construction of water-works, subways, underground railways or street railways, or appurtenances thereof, the municipality may 317 also issue obligations to provide for the interest and sinking-fund charges accruing thereon until said properties shall have been com- pleted and in operation for a period of one year; and said munici- pality shall not be required to levy a tax to pay said interest and sinking-fund charges, until after said properties shall have been operated by the municipality during the said period of one year. Sec. 2, Act of June S, 1915, P. L. 846. (460). Said municipalities shall have all the rights and powers necessary and needful to carry out the provisions of this act. Sec. 4, Act of June 5, 1915, P. L. 846. (461). Should any section or provision of this act be held by the court to be invalid or unconstitutional, it shall not be held to affect any other section or provision of this act. Sec. 5, Act of June 5, 1915, P. L. 846. (d) Bond Issues to Redeem Existing Issues. (462). The existing indebtedness of any such municipality evi- denced by outstanding bonds or certificates of indebtedness hereto- fore issued, may be provided for as the same shall mature, by a re- issue of bonds or certificates of indebtedness to the holders of said outstanding bonds or certificates, or by the issue and sale at not less than par of new bonds or cerificates; and the present floating indebtedness of any such municipality, may be funded by the issue and sale at not less than par of bonds or certificates of indebtedness in sums not less than one hundred dollars each : Provided, That no such bonds or certificates shall be issued for a longer period than thirty years from the date thereof; and it shall be the duty of the proper corporate authorities of such municipality to provide for the payment of principal and interest of all such bonds, in the manner pointed out in the fourth section of this act. Sec. 7, Act of April 20, 1874, P. L. 65. A commission cannot be allowed for the conversion of outstanding bonds or certificates of indebtedness into a new series issued here- under when such commission would reduce the sum received by the municipality to less than par. City of Scranton vs. Vail et al. 6 Kulp, 237. Taxes levied and collected to redeetri bonded indebtedness may be applied to indebtedness created subsequent, as well as that created prior, to the adoption of the constitution. Appeal of the City of Wilkes-Barre, 116 Pa. 246. The issuance of bonds for the purpose of funding or refunding a debt previously created and existing, is not an increase of indebted- ne.ss, but merely a continuation thereof. Schuldice vs. City of Pitts- burgh, 251 Pa. 28. 318 Outstanding promissory notes, renewals or substitutes for tem- porary loans, made in earlier years, can only be legally redeemed by new loans, when this act has been complied with. Snyder et al. vs. Commissioners of Schuylkill Co., 190 Pa. 440, affirming 20 Pa. C. C. 649. (See latter case.) A court of equity will not enjoin municipal authorities from issuing bonds for the purpose of funding floating indebtedness of the munici- pality where they are not charged with fraud, and there is nothing in the evidence to show that they abused or intended to abuse the dis- cretion vested in them, or that they were seeking to increase the debt of the municipality, but simply to change the form of an already existing debt. Snyder et al. vs. Commissioners of Schuylkill Co., 190 Pa. 440, affirming 20 Pa. C. C. 649. See also notes to Sec. 4 of this act, supra Sec. (450). (463). The existing indebtedness of any [county,] city, other than those of the first or second class, [borough, school district, or other municipality or incorporated district,] within this Commonwealth, evidenced by outstanding bonds, certificates, or notes issued prior to the twentieth day of April, Anno Domini one thousand eight hun- dred and seventy-five, maj'- be provided for as the same shall mature by an issue to the holders of such outstanding bonds, certificates or notes, of bonds or certificates in lieu thereof, if they shall agree to receive the same, or by the issue and sale at not less than par, of bonds or certificates in lieu of indebtedness outstanding on the said twentieth day of April, Anno Domini one thovtsand eight hundred and seventy-five, except as hereinafter provided : Provided, That such bonds or certificates shall bear interest, at a rate not exceeding six per centum per annum, and may be issued redeemable at the pleasure of the obligors at any time fixed by them within twenty years from the date thereof; and it "shall be the duty of the proper corporate authorities of such municipality [or incorporated district,] to assess and levy a special annual tax; not exceeding five mills on the dollar on the assessed valuation thereof, immediately after the passage of this act, to pay such bonds or certificates reissued or is- sued and sold as aforesaid, and. which shall be sufficient for, and ap- plied exclusively to, the payment of the interest and principal of such bonds and certificates within a period not exceeding twenty years from the date of such bonds and certificates so re-issued or so issued and sold: Provided furtber, That the provisions of this act shall not be so construed as to authorize a re-issue of any bonds or certificates which were issued, the legality and validity of which is now questioned by legal proceedings in any of the courts of the com- monwealth: And provided further, That said re-issued bonds shall not be liable to local taxation : And provided further, That this act shall apply to municipalities the amount of whose legal indebtedness is limited in their respective charters of incorporation and supple- ment thereto as well as those not so limited. 319 Sec. 1, Act of May 8, 1876, P. L. 128. Bonds issued under this act cannot be used to redeem floating in- debtedness of the municipality incurred after April 20, 1875, and all such bonds issued for such debts are illegal and void. And a com- mission for their handling cannot be allowed if the return to the municipality on the bonds is reduced below par. The City of Scran- ton vs. Vail et al. 6 Kulp, 237. (464). In all cases where any [county,] city, [borough, munici- pality or school district] in this Commonwealth has, by virtue of any general or special act of Assembly, issued bonds or other in- terest-bearing evidences of indebtedness, with or without interest coupons attached, to secure any indebtedness of any such [county,] city, [borough, municipality or school district,] which may have matured but remain unpaid and uncancelled or are about to mature and become payable, or whenever any [county,] city, [borough, municipality or school district,] shall have the option to redeem or pay any such bonds or interest-bearing evidences of indebtedness, or whenever holders of any bonds or interest-bearing evidences of in- debtedness of any [county,] city, [borough, municipality or school district,] which may not have matured or become redeemable, are willing to surrender the whole or any part of such issue of bonds or interest-bearing evidences of indebtedness, it shall be lawful for any such [county,] city, [borough, municipality or school district,] for the purpose of redeeming or paying off any or all of the bonds or other interest-bearing evidences of indebtedness, payable, redeem- able or offered for redemption, as aforesaid, to issue and sell either registered or coupon bonds, bearing interest at a rate not exceeding the rate the issue proposed to be refunded bears, and payable at any time not exceeding thirtj^ years after the date thereof, and not ex- ceeding in the aggregate the amount of the bonds or other evidences of indebtedness so redeemed or paid, and the said bonds so issued or sold, in accordance with the provisions of this act, shall be exempt from taxation except for State purposes : Provided, however. That all moneys for the redemption of the issue of bonds proposed to be re- funded, placed in the sinking fund if any, shall be first applied to the payment, as far as applicable, of the principal of such bonds, and the balance of such issue only shall be redeemed by the issue of new bonds. Sec. 1, Act of April 14, 1881, P. L. 10, as amended by Sec. 1, Act of March 1, 1899, P. L. 6. Sec. 2 of the Act of March 1, 1899 repeals Sec. 2 of the Act of April 14, 1881. The holders of old bonds shall not be required to surrender them for new bonds except on the basis of their par value, and not at a premium the new bonds may command in the market, John Lloyd vs. Altoona City, 134 Pa. 545. 320 (e) Cities Not to Become Stockholders in Corporations, Etc., Nor Loan Credit. (465). The General Assembly shall not authorize any [county,] city, [borough, township or incorporated district] to become a stock- holder in any company, association or corporation, or to obtain or appropriate money for, or to loan its credit to, any corporation, as- sociation, institution or individual. Constitution of Pennsylvania, Sec. 7, Art. IX. T{iis section was intended to prevent a city from becoming jointly interested as stockholder with any company, etc., and from appro- priating money or loaning its credit to any corporation or individual. Wheeler, et al. vs. Philadelphia, 77 Pa. 338. The absolute acquisition of the property of a company is not pro- hibited by this section. Erode vs. Philadelphia, 230 Pa. 434, affirm- ing 18 D. R. 899. There is nothing in this section which would prevent the directors of the poor of a county from placing pauper children of their district in an incorporated home, or release them from liability for their main- tenance. Such an action is not lending the credit of the municipality to or becoming a stockholder of such a corporation, but merely es- tablishes a contractual relation between the home and the directors of the poor," for which the latter are responsible. Colored Children's Home vs. Cambria Co. Poor District, 72 Super. Ct. 106. (f) Application of Moneys Borrowed for Impracticable or Impossible Purposes, to Other Purposes. (466). Whenever any city of the third class has increased its indebtedness, with the assent of the electors of such city, in accord- ance with the provisions of an act, approved the twentieth day of April, one thousand eight hundred seventy-four (Pamphlet Laws, sixty-five), entitled "An act to regulate the manner of increasing the indebtedness of municipalities ; to provide for the redemption of the same, and to impose penalties for the illegal increase thereof," and the amendments and supplements thereto, and the purpose for which said increase was asked and assent obtained has proved to be ini- practicable or impossible, the corporate authorities of any such city may, by their ordinance or vote, signify a desire to use the money, so borrowed or authorized to be borrowed, for any other lawful municipal purpose ; and the said moneys, so borrowed or authorized to be borrowed, may be used for such other municipal purpose, if the assent of the electors thereto is obtained as herein provided. . Sec. 1, Act of March 26, 1919, P. L. 24. (467). The corporate authorities of any such city shall give notice, during at least thirty days, by weekly advertisements, in newspapers, not exceeding three, ira the district, and, if no news- paper be published thersin, then" fey at least twenty printed hawd- 321 21 bills, posted in public places in said city, of an election to be held at the place or places of holding the municipal elections, on a day to be by them fixed. Such notices shall state: (a) The date of such election: (b) the amount of money theretofore borrowed or authorized to be borrowed ; (c) the purpose for which such money was originally authorized ; (d) the reason why said money may not be used for the purpose for which it was borrowed or authorized to be borrowed ; (e) the new purpose for which the corporate author- ities of such citj' desire to use said money borrowed or authorized to be borrowed. A certified copy of the ordinance hereinbefore required and of the above notice shall be filed in the office of the clerk of the court of quarter sessions. Sec. 2, Act of March 26, 1919, P. L. 24. (468). The corporate authorities of such city shall, in all cases, fix the time of the holding of any such election on the day of the municipal or general or other special election, unless more than ninety days elapse between the date of the ordinance and the day of holding the municipal or general or other special election. If any day other than the day of the municipal or general or other special election day is fixed, the expense of holding the election shall be paid by the city. Sec. 3, Act of March 26, 1919, P. L. 24. (469). Such election shall be held at the place, time, and under the same regulations, as provided by law for the holding of municipal elections ; and the question to be submitted to the electors shall be in the following form : Shall the sum of dollars heretofore borrowed or authorized to be borrowed by the city of , for the purpose of , be used by the said city for the purpose of ? The ballot shall be prepared in the manner provided by the gen- eral election law for the submission of similar questions. Sec. 4, Act of Mairch 26, 1919, P. L. 24. (470). The election shall be conducted by the regular election of- ficers. The election officers shall count the tickets cast at such elec- tion, and make a return thereof to the clerk of the court of quarter sessions of the county, duly certified as is required by law. In re- ceiving and counting, and in making return of the votes cast, the inspectors, clerks, and ju4ges of election shall be governed by the laws of this Commonwealth governing municipal elections; and the vote shall be counted by the court as is now provided by laws gov- 322 erning municipal elections. All penalties of the said election laws for violation thereof are hereby extended to, and shall apply to, the voters, inspectors, judges, and clerks, voting at, and in attendance upon, elections held under the provisions of this act. Sec. 5, Act of March 26, 1919, P. L. 24. (471). The clerk of the court shall make a return of the vote cast upon such question, as filed in his ofHce, to the corporate authorities of such city, and the same shall be placed on record among or upon the minutes thereof. Sec. 6, Act of March 26, 1919, P. L. 24. (472). If at such election a majority of the electors shall vote in favor of using said borrowed or authorized to be borrowed money, for the purpose other than that for which it was originally authorized, the said" money shall thereafter be used for such new purpose in the same manner as if it had originally been authorized and borrowed for such purpose. Sec. 7, Act of March 26, 1919, P. L. 24. (g) Bonds Issued to be Sold to Highest Responsible Bidder. (473). When any [county,] city, [borough, township, school district, or other municipality or incorporated district] of this Com- monwealth, having authority so to do, shall borrow money and is- sue bonds or other securities therefor, except in the case of the giv- ing of notes for temporary loans as may be authorized by law, the authorities thereof shall sell the same to the highest responsible bid- der, after public notice by advertisement, once a week for three weeks, in at least one newspaper of general circulation published in the county in which such [county,] city, [borough, township, or school district,, or other municipality or incorporated district,] shall be situated: Provided, That no bid for such bonds or securities at less than their par value shall be accepted. Sec. 1, Act of July 6, 1917, P. L. 747. (h) City Bonds Subject to Taxation for State Purposes, (474). [All scrip, bonds, certificates and evidences of indebted- ness issued, and all scrip, bonds, certificates and evidences of in- debtedness assumed, or on which interest shall be paid, by any and every private corporation, incorporated or created under the laws of this Commonwealth or the laws of any other State or of the United States, and doing business in this Commonwealth ;] and all scrip, bonds, certificates, and evidences of indebtedness issued, and all scrip, bonds, certificates, and evidences of indebtedness assumed, 323 or on which interest shall be paid, by any [county,] city, [borough, township, school district, or incorporated district] of this Common- wealth are hereby made taxable in the year one thousand nine hun- dred and nineteen, and annually thereafter, for State purposes, at the rate of four mills.on each dollar of the nominal value thereof: Pro- vided, That this section shall not apply to bank notes, or notes dis- counted or negotiated by any bank or banking institution, savings institution, or trust company: And provided. That the provisions of this act shall not apply to building and loan associations, or to savings institutions having no capital stock ; but nothing herein con- tained shall be construed to relieve or exempt individual depositors in savings institutions having no capital stock from any taxation to which such depositors may be subject; and if at any time, either now or hereafter, any persons, individuals, or bodies corporate have agreed or shall hereafter agree to issue his, their, or its securities, bonds, or other evidences of indebtedness, clear of and free from the said four mills tax herein provided for, or have agreed or shall here- after agree to pay the same, nothing herein contained shall be so construed as to relieve or exempt him, it, or them from paying the said four mills tax on any of the said such securities, bonds, or other evidences of indebtedness as may be held, owned by, or owing to the said saving institution having no capital stock: And provided further, That the provisions of this act shall not apply to fire com- panies, firemen's relief associations, life or fire insurance corpora- tions having no capital stock, secret and beneficial societies, labor unions and labor union relief associations, and all beneficial organiza- tions paying sick or death benefits, or either or both, from funds received from voluntary contributions or assessments upon mem- bers of such associations, societies, or unions : And provided further. That corporations, limited partnerships, and joint-stock associations, liable to tax on capital stock for State purposes, shall not be re- quired to pay any further tax under this section on the mortgages, bonds, and other securities owned by them in their own right; but corporations, limited partnerships, and joint-stock associations, holding such securities as trustees, executors, administrators, guard- ians, or in any other manner, shall be liable for the tax imposed by this section upon all securities so held by them, as in the case of individuals : And provided further, That none of the classes of prop- erty made taxable by this section for State purposes shall be taxed or taxable for county, school, or other local purposes. .It is the intent of this act that all scrip, bonds, certificates, and evidences of indebtedness made taxable under this section are not taxable under section one (1) of the act to which this is an amend- ment, and that only such scrip, bowds, certificates, and evidences of 324 indebtedness which cannot be made taxable under this section are to be taxed under section one (1) of said act. Sec. 17, Act of June 17, 1913, P. L. 507, as amended by Act of July 15, 1919, P. L. 955. Bonds of a Pennsylvania corporation held by a trust company, which fails to pay its capital stock tax before March first, as provided by the Act of June 13, 1907, P. L. 640, will not be exempt from taxation under the proviso in this section. Eellevue Realty Savings & Trust Co. vs. Monongahela River Consolidated Coal and Coke Co., 68 Super. Ct. 149. A municipality in issuing bonds has no authority to assume the State tax where such tax together with the interest rate on the loan exceeds the sum it is authorized by law to pay for money. Irwin et al. vs. Township of Mifflin et al. 64 P. L. J. 445, s. c. 26 D. R. 39. (475). The tax for State purposes, imposed upon obUgations of private and public corporations by section seventeen of this act, shall be collected in the same manner as the tax heretofore imposed for State purposes upon such obligations ; it being the true intent and meaning of this act that the provisions of the law in force at the time of the passage of this act relating to the collection of the State tax upon such obligations shall remain vmaffectcd by the present act. That the provisions of this section shall apply to all foreign corporations, duly registered and doing business in this State, with- out regard to whether the treasurers of other fiscal officers of such corporations whose duty it may be to pay the interest on obligations of the character aforesaid may be residents or nonresidents of this Commonwealth. Sec. 18, Act of June 17, 1913, P.- L. 507, as amended by Act of July IS, 1919, P. L. 958. (476). The treasurer of each [school district, county, and] city, [the burgess or other chief officer of each incorporated district or borough,] of this Commonwealth, within ninety days after the pas- sage of this act, shall make return, under oath or affirmation, to the Auditor General of the amount of scrip, bonds, or certificates of in- debtedness outstanding by said [county,] city, [incorporated district, school district, borough, or incorporation,] as the same existed on the first day of January, one thousand eight hundred aiid sixty-four, and of each succeeding year thereafter, together with the rates of interest thereon at each of those periods, under the penalty of five thousand dollars ; the amount to be settled by the Auditor General, and the amount thereof sued for and collected as debts due by de- faulting public officers are collected : Provided, That on the receipt of said returns the Auditor General shall proceed to settle the ac- counts of each [county,] city, [incorporated district, school district, and borough] with the Commonwealth, fix the State tax due and unpaid, and transmit notice of the amount by mail, to officers mak- 325 ing said returns ; and that, if the amount so found due shall not be paid within sixty days, the Attorney General shall sue and collect the same, with interest from the date of such settlement; and here- i'itcr it shall be the duty of the treasurer of every [county,] city, [borough, school district, and incorporated district] in this Common- wealth to deduct the said State tax on payment of any interest or dividend on debts due by the [county,] city, [borough, school dis- trict, or incorporated district,] and pay the same over to the State Treasurer within thirty days after the said interest or dividend has fallen due. Sec. 4, Act of April 30, 1864, P. L. 218, as amended by Act of May 11, 1911, P. L. 236. (477). It shall be the duty of the treasurer of each [county,] in- corporated city, [district and borough] of this Commonwealth, on the payment of any dividend or interest, to any holder or agent claim- ing the same, on any scrip, bond or certificate of indebtedness is- sued by said incorporated city, [district and borough] aforesaid, to assess the tax herein made and provided for state purposes, upon the nominal value of each and every said evidence of debt; said tax to be deducted by the said treasurer, on the payment of any interest or dividend aforesaid, and the same shall be held by him, until paid over to the state treasurer; and the said treasurers shall be subject to the same penalties and liabilities now prescribed by existing laws in relation to taxes on bank dividends. Part of Sec. 42, Act of April 29, 1844, P. L. 486. (i) Constitutional Prohibition on Assumption of City Debt by Commonwealth. (478). The Commonwealth shall not assume the debt, or any part thereof, of any city, [county, borough or township,] unless such debt shall have been enacted to enable the State to repel invasion, suppress domestic insurrection, defend itself in time of war, or to assist the State in the discharge of any portion of its present in- debtedness. Constitution of Pennsylvania, Sec. 9, Art. IX. (j) Transfer of Municipal Securities. (479). That bonds which have been or which may be issued [by the state of Pennsylvania, or] by any [county,] city, [municipal authority or corporation therein,] payable to bearer, may, at the option and at the expense of the holder thereof, be returned, and new registered bonds of the same or of a larger denomination, to the rvor^regate amount thereof, be issued, payable at the same time and place as the bonds so retired to the order of the holder of said reg- 326 istered bonds, and be transferable only in the presence of the register, transfer agent, clerk, or other person duly authorized by such [state, county,] city, [municipal authority or corporation] to keep the transfer book and make such exchanges and transfers which book of transfers the parties or corporations issuing such bonds are hereby required to keep ; and for the interest due or to become due on the bonds so retired as aforesaid, it shall be lawful for the obligors to issue interest certificates, at the same rate of interest, due at the same time and place as the original coupons cor- responding with the denominations of the registered bonds, and pay- able to the order of the holder of said registered bond : Provided, That nothing heretofore properly and lawfully done under or in pur- suance of the said first section, shall be impaired or invalidated by reason of this amendment. Sec. 1. Act of May 1, 1873, P. L. 87, as amended by Act of May 2, 1879, P. T:. 47. (480). And it shall further be lawful for any corporate body, as aforesaid, which shall issue or may have issued coupon bond or bonds payable to bearer, to register any such original bond or bonds in the name of the holder thereof, and upon his or her request, and at his or her expense, and stamp or print in large type, or write upon the face thereof, that the same will only be paid to the order of the registered holder thereof ; and front and after such stamping, print- ing or writing, such bonds shall only be transferable in the manner provided for in the first section of this act, unless the holder shall make them payable to bearer by a properly attested assignment to that effect; such bond shall continue subject to successive registra- tions, limitations or transfers to bearer, at the option of each holder ; and the word registered stamped, printed or written upon the coupon of such bonds, shall be legal notice that they are no longer payable to bearer, but to the order of the party in whose name the bond to which the coupon is attached, shall be registered, unless the last as- signment thereon duly executed, shall be to the bearer, in which event the coupon shall be payable as in other cases of coupon bonds to bearer. Sec. 2, Act of May 1, 1873, P. L. 87. (481). It shall be lawful for the holder or holders of any such coupon bonds or bond, payable to bearer, to stamp, print or write on the face thereof, "payable to endorsed holder," and to endorse thereon, pay to order of signing his. her or their names thereto in the presence of some officer authorized to take the acknowledgment of deeds, who shall attest the same under his hand and seal, and said bond, thereafter, shall only be payable to the legal holder thereof, or the legal representative of such holder ; such bond or bonds shall continue subject to successive transfers in the same 327 manner, and with like force and effect by the person thus legally holding the same; and the holder of such bond may stamp, print or write on the coupons thereof, "endorsed," and such stamping, printing or writing on the face and coupons of such bond, shall be notice that they are no longer payable to bearer, but to the endorsed holder, or order, or the legal representatives thereof, unless the last endorsement shall be to bearer when they shall be payable- as other coupon bonds to bearer. Sec. 3, Act of May 1, 1873, P. L. 87. (482). Registrations made, or to be made, of such bonds, in the manner herein provided, or in such other manner as may have been adopted between the makers and holders thereof, shall be valid ; and the provisions of this act shall not be construed as repealing special enactments in regard to the transfer of bonds of any corporation, nor shall the transfer of any bond or bonds in the manner herein provided impair any security or the lien of any mortgage, which may have been given to secure the payment thereof, or the rights, duties and powers of any trustee in relation therto. Sec. 4, Act of May 1, 1873 P. L. 87. (483). All certificates of stocks and loans which have been or may hereafter be issued [by this Commonwealth, or] by any municipal [or other] corporation, shall be transferable by the legal owner thereof, without any liability on the part of the transfer agents of the Commonwealth, or the municipal or other corporation permitting such transfers, to recognize or see to the execution of any trust, whether expressed, implied or constructive, to which such stocks or loans may be subject, unless when stich transfer [agents of the Com- monwealth, or] officers of such municipal [or other] corporation, charged with the duty of permitting such transfer to be made, shall have previously received actual notice in writing, signed by or on behalf of the person or persons for whom such stocks or loans ap- pear by the certificate thereof to be held in trust, that the proposed transfer would be a violation of such trust. Sec. 1, Act of May 23, 1874, P. L. 222. Under this act it is the duty of the transfer agents of the cor- poration to make transfer of stocks or loans upon proper request of the owners thereof, without affirmative proof by the latter that such transfer is not in violation of a trust to which the stock or loan belonged. Miller vs. Westmoreland Coal Co. 40 Pa. C. C. 399; s. c. 22 D. R. 904. A resident trustee for foreign executors who is the holder of a city loan, which stands in his name as such trustee, is entitled to trans- fer the same, with the concurrence of the cestuisque trustent. Phelps et al. vs. Philadelphia et al. 12 Phila. 300. 328 ARTICLE XL. EMINENT DOMAIN. CONDEMNATION PRO- CEEDINGS. ASSESSMENT OF DAMAGES AND BENEFITS. (NOTE: See also Article XLI. Roads, Streets, Highways, and Article XIV of the Act of June 27, 1913, P. L. 568, Exercise of Right of Eminent Domain; Assessment of Damages and Benefits.) (a) Power of Eminent Domain. Appointment of View- ers. Real Estate Not Subject to Eminent Do- main. Costs of View. (484). All municipal corporations of this Commonwealth shall have power, whenever it shall be deemed necessary in the laying out, opening, widening, extending, grading or changing- grade or lines of streets, lanes or alleys, the construction of bridges and the piers and abutments therefor, the construction of slopes, embank- ments and sewers, the changing of water courses or vacation of streets or alleys, to take, use, occupy or injure private lands, prop- erty or material, and in case the compensation for the damages or the benefits accruing therefrom have not been agreed upon, any court of common pleas of the proper county, or any law judge thereof in vacation, on application thereto by petition by said municipal cor- poration or any person interested, shall appoint three discreet and disinterested freeholders as viewers, and appoint a time not less than twenty nor more than thirty days thereafter when said viewers shall meet upon the line of the improvement and view the same and the premises affected thereby. The said viewers shall give at least ten days' notice of the time of their first meeting by publication in one or more newspapers of said corporation of the county in which it is situate, and where the publication is in more than one newspaper, one of said newspapers may be in the German language, and by hand- bills posted upon the premises, or otherwise, as the said court shall direct, having regard to the circumstances of the case. Sec. 1, Act of May 16, 1891, P. L. 75, as amended by Sec. 1, Act of June 12, 1893, P. L. 459. See Sec. (532). Under the Act of June 28, 1917, P. L. 650, amending Sec. 1, of the Act of April 14, 1915, P. L. 122, infra Sec. (513), the petition for tHe appointment of viewers must, in certain cases, contain allegations specifying the liens against the porperties in question. 329 The act is not retroactive and cannot be applied where the im- provements were authorized and completed previous to its passage. Morton vs. Homestead Borough, 15 Pa. C. C. 646, s. c. 42, P. L. J. 328. (Repealing EiTect of Act.) The Act of May 16, 1891, took away no power in any municipality that existed before, nor interfered with any mode of its exercise, ex- cept where there is an irreconcilable repugnancy. Hanover Borough's Appeal 150 Pa. 202, revet-sing 5 York 128 s. c. 1 D. R. 283; see Church Street in Slatington Borough, 2 D. R. 269, s. c. 3 Northampton 309. In the construction of sewers there is nothing in the Act of May 16, 1891, P. L. 75, providing for their payment by benefits, inconsistent with Art. XIII, Sec. 1, Act of May 23, 1889, P. L. 277 which provides for their payment by the city Out of the general revenue. The Act of 1889 is therefore not repealed by implication. The pov/er of payment by benefits, given in the Act of 1891, is ad- ditional to the power to do this work at the expense of the city as given in the Act of 1889. "The part of the Act of 1889, providing for the assessments upon properties benefited as the councils may determine, is supplied arid repealed by the Act of 1891, which provides that these assessments shall be made by viewers appointed by the court." Com. ex rel. vs. George, 148 Pa. 463; Petition for appointment of Viewers, 8 Lack. J. 195. (Proceedings — when Proper.) Where a municipality adopted a natural water-course for drainage purposes and subsequently, for a consideration, permitted the owner of the land to close it up, the municipality can only reopen it by pro- ceedings de novo and not by a mere resolution of council. Strohl vs. The Borough of Ephrata, 178 Pa. 50, reversing 13 Lane. 1. (Proceedings to Follow Original Act.) Proceedings for the opening of streets, or construction of sewers must follow the act under which the proceeding originated. Where the proceeding was started under special acts the Act of May 16, 1891, P. L. 75, cannot be later applied. The Borough of Verona vs. The Al- legheny Valley Railway Company, 187 Pa. 358; Shenandoah "Fourth Ward Sewer System," 4 Northumberland L. J. 174, s. c. 15 Sch. HI. But where the local law, under which the property was taken, makes no provision for compensation, damages and benefits can be assessed under the Act of 1891. Wodland Avenue 178 Pa. 325. (Sewers.) A party aggrieved by the construction of a sewer has an adequate remedy at law under the Act of May 16, 1891, P. L. 75, and has no standing in equity. Thrall vs. City of WiUiamsport, 18 Pa. C. C. 330, affirmed in 4 Super. Ct. 165. A ''storm sewer" that discharges only surface water is nevertheless a sewer. Arnold Storm Sewer, 1 West. L. J. 61. The principle that property holders are relieved from payment for parallel sewers in the same street applies only where the parallel sewer is constructed for, and answers the same purpose as the sewer constructed at private expense. Thrall vs. City of WiUiamsport, 18 Pa. C. C. 330. 330 (Opening Streets.) When a plaintiff proceeds under the Act of May 16, 1891, P. L. 75, to have his damages assessed for a lawful taking of his land, he will thereafter be stopped from asserting an irregularity in the proceedings to open the street under which the land was appropriated. Oakley vs. Luzerne Borough, 25 Super. Ct. 425. The dedication of land for a street does not relieve the owner from assessments for benefits as a contribution to the expenses of opening the rest of the street. In re Hansberry Street, 21 Pa. C. C. 590. (Grading Streets.) It seems that, for an unlawful grade — that is, a physical establish- ment of a new grade without a change of the city plan properly author- ized — if the city be liable at all, it can be made liable only in an action at common law. In re Shawmont Avenue, IS Pa. C. C. 23, s. c. 5 D. R. 190. The statute of limitations begins to run against property holders damaged by change in the grade of a street from the date of the commencement of the grading and not from the date of the ordinance authorizing the change of grade. Viewers will be appointed if pe- titioned for within six years of the commencement of the change of grade. Change of Grade of Norv/ood Street, 28 Pa. C. C. 555. (Vacation of Streets.) When a street is vacated, it is then and thenceforth as if no such street ever existed, even though it is not entirely closed and people occasionally use it. This cannot affect proceedings for laying out a street on the same location twenty years later. Chestnut Street, Har- risburg, 15 Pa. C. C. 115, s. c. 3 D. R. 497. The legal vacation of a street is complete when a new plan from which it is omitted is adopted. Tabor Street, 25 Super. Ct. 355; But- ler Street, 25 Super. Ct. 357; Vacation of William Street and other streets, 7 D. R. 1. See Pulaski Avenue, 17 Pa. C. C. 391, s. c. 5 D.. R. 1. An ordinance repealing an ordinance authorizing the opening of a street is not a proceeding to vacate the street. Black Street, 236 Pa. 395, affirming 59 P. L. J. 45. It is not necessary to delay the opening or vacation of a street un- til the damages have been assessed. Vacation of William Street and other streets, 7 D. R. 1. (Grading Sidewalks.) There is no legislative authority empowering a municipality to im- pose upon property owners the burden of grading sidewalks to meet substantial changes in the grade of the cartway, and it has been de- cided that an assessment against abutting property for the grading of the footway cannot be sustained. Philadelphia vs. Weaver, 14 Super. Ct. 293. A sidewalk is not included within the term "street." Shady Avenue, 34 Super. Ct. 327. (Granting Views.) In the opening and grading of a street the property owner must submit his whole claim to the viewers and to the court, and the part which he neglects to submit must be taken to have been waived, and no second process can be had for its recovery. The taking and the injury to the remaining land form but a single subject of complaint where they occur at or about the same time. Pusey vs. City of Alle- gheny, 98 Pa. 522; Tabor Street (No. 1), 28 Super. Ct. 167. 331 Where the grading of a street occurs as a separate act of the pub- lic authorities, and so long after the opening of the street that the assessment of damages at the time of the appropriation cannot in- clude those resulting from the grading, the latter may be ascertained by a second view. Clark vs. City of Philadelphia 171 Pa. 30. (Appointment of Viewers.) Viewers are appointed under Sec. 5, Act of June 23, 1911, P. L. 1123 (County Viewers Act) which act likewise prescribes their pro- cedure in sections 7, 8, and 9. The petition for the appointment of viewers must aver that the parties have not agreed upon the amount of damages claimed. Front Street, Harrisburg 44 Pa. C. C. 666, s. c. 19 Dauphin 383, but the viewers will be appointed although the city made no attempt to agree with the owners on the damages. In re appointment of viewers on Shaler Street, 59 P. L. J. 315; Borough of Hanover's Petition No. 3, 30 York 185. Viewers may be appointed to ascertain the benefits and assess the damages occasioned by municipal improvements in more than one street. In re Petition of City of Pittsburgh for Viewers, 64 P. L. J. 22. Owners who have not received notice, as directed by the act and the order of the court, may file another petition for the appointment of viewers. It is not necessary for them to reopen the former pro- ceeding. Orthodox Street, City of Philadelphia's Appeal, 169 Pa. 499. Viewers will be appointed under a general law to assess damages and benefits, where property has been taken, injured or destroyed under a local law that makes no provision for compensation. Wood- land Ave., 178 Pa. 325. If, after viewers are appointed, the municipality files an answer set- ting forth the ordinance, and it appears that the averments of the petition are inconsistent with the ordinance, the court will quash the petition for the appointment of viewers. In such a case the general rule that a motion to set aside or strike off the judgment must be based on an irregularity appearing on the face of the record is not applicable. McKaeig vs. Philadelphia, 53 Super. Ct. 591. Before viewers are appointed there must be such corporate action on the part of the city, as amounts to a taking, use, occupation or in- jury, within the terms of the law. This involves an ordinance or resolution duly passed and approved, defining the character of the improvement proposed to be made, with such details and specifica- tions as will fully inform the oiBcers and agents of tlie municipality, as well as the property owners affected, of what is to be done and how it is to be accomplished. Lackawanna Avenue Viaduct, 14 Pa. C. C. 603, 4 Northampton 206, 3 Lack J. 273. It is the duty of the court to appoint viewers when the petition conforms to the act. The appointment of viewers and their appraise- ment of the property does not, of itself, fix any liability upon the bor- ough. Borough of Hanover's Petition, 26 York 153. Upon petition for the appointment of viewers, the court must ap- point the jury if the petition alleges the jurisdictional facts. The ap- pointment will not be stricken off on motion and evidence taken there- under denying the facts set up in the petition. Powell's Petition, 15 D. R. 973, s. c. 10 Del. Co. 256; Spring Street Sewer, 5 D. R. 373. 332 Viewers will not be appointed where the injury is done by a private sewer company by the city's permission and not by the city itself. The sewer referred to in the act must be a public sewer under munici- pal control. Hench & Dromgold vs. City of York, 14 York 9. It is not necessary that the order of the court for the appointment of viewers should contain a direction in detail to the viewers to com- ply with the requirements of the act. The Act of May 16, 1891, P. L. 75, is constitutional. Nicholson Borough, Main Street, 27 Super. Ct 750. An order appointing viewers, directing them to assess the petitioner's damages only, is amendable and should include all those injured. Lock- hart Street, 8 D. R. 623, s. c. 7 Northampton 55; 22 Pa. C. C. 363. (Objections to Viewers.) If exceptants knew of the disqualification of viewers, or had op- portunity to ascertain the fact before the viewers acted, they can- not afterwards object. Pennsburg Alley, 12 Pa. C. C. 213, s. c. 2 D. R. 136, 10 Lane. 7, 101, 8 Montg. 177, 5 Del. Co. 150. Irregularity in the appointment and number of viewers cannot be objected to for the first time on the trial of an appeal from a board of viewers. It is then too late. Prager vs. Armstrong County, 48 Super. Ct. 140. (Powers of Viewers.) Where viewers are appointed to "assess the cost, damages, and ex- penses" of certain grading and curbing and no assessment can be legally made for "cost and expenses," the viewers may still assess the "damages." Grading and Curbing 17th and 18th Streets, and Sixth Avenue, 1 West. L. J. 72, s. c. 21 D. R. 1008. (Notice.) A mortgagee is not entitled to receive actual notice, or be made a party to the proceedings, since the mortgagee is not the owner of the land. Jackson vs. Pittsburgh, 36 Super. Ct. 274, but see the Act of April 14, 1915, P. L. 122 infra Sees. (513), (514), (515), (516). (Trespass.) When proceedings were begun under the Act of 1891, and appellant successfully contended in the lower court that such proceedings were not proper, and an action in trespass was brought to recover for the same injury, appellant cannot later contend on appeal that Act of 1891 should have been followed. Lafean vs. York County, 20 Super. Ct. 573. Where grading was done on certain streets in 1887, and a statement in a trespass action was amended in 1892 to include damages on one of these streets, it was held that the common pleas court has jurisdiction in a suit in trespass to recover damages for change of grade. Brady, Executor vs. Wilkes-Barre, 161 Pa. 246. Damages by an abutting property owner, for change of grade, can- not be recovered in an action of trespass. The Act of May 16, 1891, P. L. 75, furnishes the remedy. Samuel O. McKee vs. City of Pitts- burgh, 7 Super. Ct. 397; Deer vs. Sheraden Borough, 220 Pa. 307. Trespass is not the proper remedy to recover damages for change of grade. Proceedings before viewers should be had either under the Act of May 23, 1889, P. L. 277 or the Act of May 16, 1891, P. L. 75 when the change of grade results in injury to abutting property by 333 reason of the accumulation of water, and the injury is the direct, im- mediate and unavoidable consequence thercoi, irrespective of care or negligence in the manner of the execution of the work. Cooper vs. Scran- ton City 21 Super. Ct. 17; Hoster vs. City of Philadelphia 12 Super. Ct. 224; Curran vs. East Pittsburgh Borough, 20 Super. Ct. 590; V\^il- son vs. Borough of Ephrata 22 Lane. 91; Banner vs. City of York, 12 York 9. And this is true where grading causes water to accumulate before properties on a street intersecting with the one graded. Carney vs. City, 14 D. R. 119. A proceeding before viewers is the appropriate remedy for an in- jury caused by street improvement, which is the direct, immediate, necessary and unavoidable consequence of the exercise of the power conferred on the municipality by this act, irrespective of care or negli- gence, while for an injury resulting from the negligent performance of the work the remedy is by action of trespass. Barrett vs. Minersviile Borough, 38 Super. Ct. 76; Fyfe vs. Turtle Creek Borough, 22 Super. Ct. 292; Annie E. Stark vs. City of Phila. 195 Pa. 101; Chatham Street, 16 Super. Ct. 103. (Damages — when Barred.) Where the city pays a landowner a sum of money as a consideration for permission to build a sewer through his land, and the owner examines or has access to the maps, plans and profiles and observes its construction, he cannot come in for additional damages six years later. Yingst vs. Harrisburg, 43 Super. Ct. 418, affirming 12 Dauphin 224. (Release of Damages.) Where a street is dedicated to public use and the city is indemnified against all damages caused by grading of the street, and the deed of dedication is accepted by the city and duly recorded, subsequent pur- chasers of lots have proper notice and cannot proceed against the city for damages. Tabor Street (Nos. 1 and 2) 26 Super. Ct. 167 and 175. A city lot owner may release the city from all damages which may result from a proposed change of grade of an abutting street, and such release precludes the holder of a mortgage lien, who subsequently ac- quires title by virtue of foreclosure proceedings, from recovering dam- ages from the city for injuries due to such change of grade. Shields vs. City of Pittsburgh, 252 Pa. 74. (485). No corporation now incorporated under the laws of this State or which shall hereafter be incorporated thereunder, shall exer- cise the right of eminent domain as against the land now occupied by any building which was used during the Colonial or Revolution- ary period as a place of assembly by the council of the Colony of Pennsylvania, or by the Supreme Executive Council of the Com- monwealth of Pennsylvania, or by the Congress of the United States ; or as against the land now occupied by any fort, redoubt, or block- house erected during said Colonial or Revolutionary period; or as nErainst any building used as headquarters by the Commander-in- chief of the Continental Army; or as against the site of any such building, fort, redoubt, blockhouse, or headquarters, or site thereof, 334 is now or shall h«reafter be presei-ved for its historic memories and associations, and not for private profit: Provided, That the said Colonial and Revolutionary period, as applied to the buildings, forts, redoubts, blockhouses or headquarters, or the sites thereof, as afore- said, shall be taken as ended on the third day of September, Anno Domini one thousand seven hundred and eighty three. Sec. 1, Act of May 10, 1907, P. L. 196. See Section (868). (486). The viewers provided for in the foregoing sections may be appointed before or at any time after the entry, taking, appro- priation or injury of any property or materials for constructing said improvements. The costs of the viewers, and all court costs in- curred in the proceedings aforesaid, shall be defrayed by the said municipal corporation, and each of the said viewers shall be entitled to a sum not exceeding five dollars per day for every day necessarily employed in performance of the duties herein prescribed. Sec. 4, Act of May 16, 1891, P. L. 75. The salary of the viewers is now regulated by Sec. 4, Act of June 23, 1911, P. L. 1123, as ameaded by the Act of June 5, 1919, P. L. 393. Viewers may be appointed to assess damages and benefits under a municipal ordinance providing for the opening of a street at a con- firmed grade before the actual physical opening at the established grade. Winter Avenue, 23 Super. Ct. 353. Viewers may be appointed to assess damages for change of grade, where the change has been authorized but has not been physically made nor any contract let therefor. Weikel Street, 27 Pa. C. C. 529, s. c. 11 D. R. 651. Viewers will be appointed if petitioned for within six years of the commencement of the grading. Change of Grade of Norwood Street, 28 Ea. C. C. 555. The fact that viewers may be appointed before or at any time after the entry, taking or injury of property, does not change the rule as to the person entitled to receive the damages. Thirteenth Street, 38 Super. Ct 265. (b) Right to Damages for Injury to Property. (487). The right to damages against cities, [counties, boroughs, or townships,] within this Commonwealth, is hereby given ^to all owners or tenants of lands, property, or material abutting on, or through which pass roads, streets, lanes, or alleys, injured by the laying out, opening, widening, vacating, extending or grading of said roads, streets, lanes or alleys, or the changing of grades or lines thereof, by said cities, [counties, boroughs or townships ;] the con- struction and the vacating by said cities, [counties, boroughs or townships] of bridges, and the piers, abutments, approaches, em- bankments, slopes, or causeways therefor, or leading thereto ; and the 335 construction of sewers by said cities, [counties, boroughs or town- ships] in, over, upon, along, or through said lands, property or material. Sec. 1, Act of May 28, 1913, P. L. 368. See also, in the matter of damages for grading streets, Sec. (526). The vacation of a road or street is not an injury to the abutting land owners within the provisions of the Constitution requiring compensa- tion for private property taken in the exercise of the right of eminent domain, and in the absence of special legislative provision for dam- ages none can be recovered. Under this act the plaintiff has no remedy against the Commonwealth for the diversion of a road. Saeger vs. Commonwealth of Penna. 258 Pa. 239; affirming 45 Pa. C. C. 452. Prior to the passage of this act the owner of land abutting on a public highway had no franchise or vested right of any kind in the perpetual maintenance of the highway on a fixed location. He could not, therefore, recover damages if such highway were vacated. Wright vs. Luz. Co. 67 Super. Ct. 618, affirming 18 Luz. 485. At the time of the passage of this act there were laws in existence authorizing cities, counties, boroughs and townships, to do the sev- eral things mentioned in this section and the purpose of this act of Assembly is that they shall pay the damages when they exercise their right to do them. It does not provide for any change in the existing laws as to who is liable for the payment of such damages. Road in Fulton Township 23 D. R. 678; s. c. 31 Lane. L. R. 134, 28 York 94. (488). All juries of view appointed, or which shall hereafter be appointed, under existing laws, for assessing damages or benefits for taking, using, occupying, or injuring lands, property, or material are hereby directed, and it shall be their duty, to assess the damages provided for in section one of this act, if any, against said cities, [counties, boroughs, or townships] as the case may be, and the bene- fits, if any, in connection therewith, and make report thereof as under existing laws. Sec. 2, Act of May 28, 1913, P. L. 368. The municipal division that appropriates or vacates the land (where it has the authority so to do) must pay the damages. Woodward vs. County of Fayette, 258 Pa. 375; Wright vs. Luzerne County 67 Super. Ct. 618, affirming 18 Luz. 485. It is not the intention of this act that all the damages should be as- sessed against the municipality, as such a construction of the law would also require all the benefits to be assessed to the municipality and this would be an absurdity. Rockland Avenue, 62 P. L. J. 631; see Upper Darby Sewer, 27 D. R. 482, s. c. 14 Del. Co. 444. (489). The right of appeal to the proper court of common pleas from said report, and the right of trial by jury in said court of com- mon pleas, and the right to file exceptions to said report, are hereby given to any party or parties not satisfied with said report, in accord- ance with proceedings under existing laws. Sec. 3, Act of May 28, 1913, P. L. 368. 336 (490). After disposal of exceptions, or verdict and final judg- ment, any interested party or parties may have an appeal to the Superior Court or Supreme Court, as in any other cases. Sec. 4, Act of May 28, 1913, P. L. 368. (491). The provisions of this act shall apply to all existing and future proceedings. Sec. 5, Act of May 28, 1913, P. L. 368. This act is to be construed as retrospective in effect and is not in that respect unconstitutional. Miller vs. Menallen Township, 42 Pa. C. C. 579, s. c. 62 P. L. J. 669. (c) Security for Damages Where Same Not Agreed Upon. Taking Possession of Property. (492). In all cases where the parties have not agreed upon the amount of damages claimed, or where, by reason of the absence or legal incapacity of the owner or owners, no such agreement can be made for the lands, property or materials to be taken, occupied or injured, the municipal corporation may tender sufficient security to the party claiming or entitled to any damages, or to the attorney or agent of any person absent, or to the agent or other officers of a corporation, or to the guardian or committee of any one under legal incapacity, the condition of which shall be that the said municipal corporation shall pay or cause to be paid, such amount of damages as the party shall be entitled to receive, after the same shall have been agreed upon by the parties, or assessed in the manner provided for by this act. In case the party or parties claiming damages re- fuse or do not accept the security so tendered, the said municipal corporation shall then give the party, his or their agent, attorney, guardian or committee, a written notice of the time when the same will be presented for filing in the court, and thereafter the said mu- nicipal corporation may present said security to the court of common pleas of the county where the lands or other property are situated, and, if approved, the security shall be filed in said court for the benefit of those interested, and recovery may be had thereon for the amount of damages assessed, if the same be not paid, or cannot be made by execution on the judgment in the issue formed to try the question, and upon the approval of said security said municipal cor- poration may proceed with the improvement. Sec. S, Act of May 16, 1891, P. L. 75. See Sec. (493). The filing of a bond is a condition precedent to the entry upon land. Until this has been done, the municipality is a trespasser and must be enjoined. Strohl vs. The Borough of Ephrata, 178 Pa. 50, re- versing 13 Lane. 1. 337 22 . The Act of June 27, 1913, Art. XIV, Sec. 5, expressly directs that "the city shall tender sufficient security to the parties claiming or en- titled to damages," thus making mandatory that which, under the Act of 1891 is permissible. Front Street, Harrisburg, 44 Pa. C. C. 666, s. c. 19 Dauphin 383. (493). In all cases where the several cities of this Common- wealth are or shall be required by law to give or tender security in the taking, appropriation, or injury of lands and property, where the same is being acquired for any authorized public use or purpose, the said security may be the bond of the proper city, and be given and tendered without surety or sureties: Provided, however. That if it shall appear to the proper court or a law judge thereof, when the said iDond is presented for approval, that the power of taxation in the respective city is not sufficient security, the said court or law judge may require the said city to give or tender bond with surety or sureties. Sec. 1, Act of March 1.1, 1903, P. L. 25. This act is constitutional, for it is well settled that, where private property is taken by a municipal corporation for public use, it is suf- ficient, under the Constitution, if the means be provided for the pay- ment of the compensation, without unreasonable delay, out of an adequate fund, and that the public purse or the power of taxation of the municipality is adequate security to the owner. Harrigburg's Park, 34 Pa. C. C. 219, s. c. 10 Dauphin 174. (494) . Whenever any court of quarter sessions in this Common- wealth S'hal'l order any municipal corporation to enter security for the payment of damages for the taking of land for any street, road or highway, the bond of the said municipality shall be taken with- out sureties. Sec. 1, Act of May 23, 1891, P. L. 109. It would seem that the court of quarter sessions only has jurisdic- tion where the street is partly in the city and partly in an adjoining borough or township. See notes to Sec. (47). (495). When any municipality, [corporation, or company,] hav- ing the right to acquire lands, buildings or other property by virtue of the laws of eminent domain, has tendered a bond in sufficient sum to secure the owner or lessee for damages, and the same has been accepted, or, if the acceptance of said bond has been refused, and the same has been filed in and approved by the court, such municipality, [corporation, or company,] shall have the right to immediate possession thereof. If the owner, lessee, or occupier shall refuse to remove his personal property therefrom, or give up posses- sion thereof, the petitioner in the proceedings may serve written notice upon such owner, lessee, or his agent, or the occupier, to re- move his personal property therefrom, and give up possession of 338 said lands, buildings or- other property, within sixty days from the date of the service of said notice. Sec. 1, Act of June 7, 1907, P. L. 461. (496). If the owner, lessee, or occupier of said lands, buildings or other property shall refuse or neglect to remove his personal property therefrom and give possession thereof, upon proof of the service of the notice, specified in section one of this act, in the office of the prothonotary for the county in which said lands, buildings or other property is located, a writ of habere facias possessionem s'lall forthwith issue, directing- the sheriff to give to the party entitled thereto full and peaceable possession as is provided for by existing laws. Sec. 2, Act of June 7, 1907, P. L. 461. (4) Proceedings Before Viewers. Assessment of Dam- ages and Benefits. Filing of Report. Notice. (497). The said viewers, having been duly sworn or affirmed faithfully, justly and impartially to decide, and true report to make i-nncerning all matters and things to be submitted to them, and in relation to which they are authorized to inquire in pursuance of the provisions of this act, and having viewed the premises or exam- ined the property, shall hear all parties interested and their wit- nesses, and shall estimate and determine the damages for property taken, injured or destroyed, to whom the same is payable; and hav- ing so estimated and determined the damages, together, with the benefits as hereinafter mentioned, they shall prepare a schedule thereof, and give notice to all parties to whom damages are allowed, or upon whom assessments for benefits are made, of a time, not less than ten days thereafter, and of a place where said viewers will meet and exhibit said schedule and hear all exceptions thereto and evidence. Notice of the time and place of said meeting shall be given, in the manner provided by law for the service of a summons in a personal action, upon all parties allowed damages or assessed benefits, as shown by said schedule, if the said parties can be found in the municipality, or upon an adult person residing upon the prop- erty affected by the assessment in case the owner or reputed owner cannot be found, and to all others by publication in the newspaper or newspapers in which the first notices of said view were published. When no service is made upon the owner, reputed owner, or upon an adult person residing upon the property affected, said notice, where publication thereof has also been made, shall be deemed to have been properly served if tacked or conspicuously posted on the premises. Councils, by ordinance, may provide by whom the notice provided by this act shall be posted, given and served, and fix the 339 compensation for said service. After, making whatever changes are deemed necessary, the said viewers shall make report to the court, showing the damages and benefits allowed and assessed in each case, and file therewith a plan, showing the improvement, the properties taken, injured or destroyed, and the properties benefited thereby. When said report is filed, notice thereof shall be given by pubUcation once in the newspaper or newspapers publishing the notice provided for in section one of this act. Said notice shall state the date of filing of the report, and shall contain a schedule of the damages and benefits as shown therein ; and shall further state that unless excep- tions thereto be filed within thirty days from the date of filing, the siiid report will be confirmed absolutely. Sec. 2, Act of May 16, 1891, P. L. 75, as amended by Sec. 1, Act of April 2, 1903, P. L. 124. Under Sec. 2, Act of April 14, 1915, P. L. 122, infra Sec. (514) the viewers are required in certain proceedings to ascertain the amounts and date of entry of any liens against the property in question. (Single Proceeding.) "It is certainly true that the act contemplates a single proceeding for the ascertainment of all damages." Orthodox Street, City of Philadelphia's Appeal, 169 Pa. 499. And this includes, as well, the entire costs and expenses. They should be assessed by one set of viewers and in one report. Pittsburgh Street, 4 D. R. 681, s. c. 43 P. L. J. (os) 180; Riple et al. vs. City of Erie, 15 D. R. 512;" In re Petition of the City of New Castle, 16 Pa. C. C. 478. And this is true wliether the damages are the result of one or more causes on the same street, and will include all those damaged. It is not essential that the property owner appear before the viewers and claim damages in order to have them awarded to him. Lockhart Street, 8 D. R. 623? s. c. 7 Northampton 55; 22 Pa. C. C. 363; Suter vs. Wilmerding Borough, 14 D. R. 391, s. c. 9 Del. Co. 428; 52 P. L. J. (os) 288; Spangler vs. City of York, 19 York 175. The rule that all damages should be assessed in a single proceeding and accrue to those entitled when they are assessed, and not to sub- sequent purchasers, does not apply to non-abutting owners. As to them, the damages are not for property actually taken, but for a con- sequential injury, and only arises when the physical change is made in the grade of the street. Love Lane Grading — Damages of Rosa Gegg, 29 Lane. 33; Love Lane Grading — Damages of Lizzie McCue, 29 Lane. 36. Where a municipal ordinance provides for the opening of a street at a certain grade it is proper for the viewers in estimating and de- termining the damages to treat thes improvement as an entirety. Winter Avenue, 23 Super. Ct. 353; In re Shawmont Avenue 18 Pa. C. C. 23, s. c. 5 D. R. 190. Where an ordinance for the grading and paving of a street, a part of which is level and a part hilly, provides that the level part shall be paved with asphalt, and the hilly part with block stone, and the work is let in two contracts on the same day, the asphalt paving being given to one contractor, and the stone paving to another, the work 340 though done under the two contracts is a single improvement, and one jury of view may assess the benefits therefor. Shady Avenue, 34 Super. Ct. 327. (Notice.) Where the report of viewers states that they gave due and lawful notice of their meeting, proof of such notice is not necessary. The presumption is in favor of the regularity of the notice. Howell vs. Morrisville Borough 29 Pa. C. C. 1, s. c. 13 D. R. 673, reversed on another question in 212 Pa. 349. The act makes no provision for service upon an agent of a corpora- tion, and unless an agent has special authority, service must be made upon som'e officer of the corporation, which would constitute personal service. In re Viewers for North Lexington Street, 66 P. L. J. 636. A trustee named in a mortgage to secure bond holders is not en- titled to notice or to be made a .party to the condemnation proceed- ings. Borough of Hanover's Petition, No. 2, 27 York 133, s. c. 5 M. L. R. 204. A mortgagee is not entitled to receive actual notice; or be made a party to the proceedings, since the mortgagee is not the owner of the land. Jackson vs. Pittsburgh 36 Super. Ct. 274. It is the duty of viewers to give notice to, and hear all patries in- terested, whether they were petitioners or not. In re Grading of Liberty Street, Meadville, 11 D. R. 488, s. c. 8 Lack. L. N. 211. Where no notice of an assessment of damages is given to certain property owners, only such owners as have not been notified can take advantage of the omission. Pentisburg Alley, 12 Pa. C. C. 213, s. c. 2 D. R. 136, 10 Lane. 7, 101; 8 Montg. 177, 5 Del. Co. 150. If the defendant had no notice and had no opportunity to make de- fense before the viewers, or in court, the confirmation of the report of the viewers amounts to nothing, as respects the defendant, and defense may be made on the scire facias or upon trial of the cause as the case may be. Scranton City vs. Watson 61 Super. Ct. 86, re- versing 15 Lack. 111. ' Failure to give the proper legal notice relieves a defendant from the duty of presenting its claim for exemption as "a place of burial, not used or held for private or corporate profit." Carrick vs. Canevin 55 Super. Ct. 233. The provisions for notice to a party assessed should not be disre- garded when we come to fit into the system the provisions of the Act of April 4, 1907, P. L. 40, providing for the action of assumpsit. Borough of Youngwood vs. Gay, 71 Super. Ct. 154, affirming 7 West. L. J. L An affidavit of defense in a scire facias sur municipal claim for grad- ing and paving a street is sufficient which avers failure to give proper notice. Carrick vs. Canevin, 55 Super. Ct. 233. A notice is not sufficient that is addressed to a Roman Catholic bishop as "trustee" without describing the premises to be assessed, or naming the cestui que trust, and the real owners of the property are not put on notice of the proceedings thereby. When a property owner has had no opportunity to produce his defense before the viewers, he may make his defense in his answer to the scire facias on a munici- pal claim. Want of jurisdiction of a board of viewers, appearing on the face of the record, may be taken advantage of' at any time. Car- rick VB. Canevin, 243 Pa. 283. 341 Where the only notice is that tacked on the church building it is insufficient. In addition churches are not assessable. Borough of Car- rick vs. Church, 63 P. L. J. 25. (Return Day.) Where the report of a jury of view is not made to the term at which it is returnable, and no order of court is obtained continuing it to the next term, the report must be set aside. Sharpless Petition, 2 D. R. 385, s. c. 5 Del. Co. 196. (Meetings — Adjournment of.) In the absence of a request for a continuance or an offer to submit sworn testimony, viewers are not obliged to adjourn from the locus in quo to some other place or time, defer action and not proceed with their duties, all persons present having been given full opportunity to be heard upon all matters relating to the inquiry. Second Street, Harris- burg, 32 Pa. C. C. 297, s. c. 9 Dauphin 121. (Evidence.) It is error for viewers to hear and consider testii^'^ny as to offers of compromise between the municipality and the claimant. Race Street, Middletown, 36 Pa. C. C. 89, s. c. 12 Dauphin Co. 80, 19 D. R. 19. On opinion of real estate experts as to damage. See Dawson vs. Pittsburgh, 159 Pa. 317. The contract between the city and the contractors for doing the grading on a street is not admissible as evidence on the trial of an appeal. Carson vs. Allegheny City, 213 Pa. 537. An ordinance is not an enactment of which judicial notice may be taken. The existence of the ordinance must be proved like any other fact. In a change of grade proceeding evidence is admissible to show what uses the property was capable of and how such uses had been interfered with. In such a case the amount and cost of filling required to make the lot conform to, or be available for use at the new grade are competent. McFadden Co. vs. Philadelphia, 59 Super. Ct. 44. Municipal authorities when adopting plans for or locating streets, sewers or other improvements are vested with a discretion which the courts are without power to review, and in a proceeding to assess benefits and damages arising from the execution of the plan, evidence tending to show that some other plan might have been more bene- ficial or less injurious is not admissible. Fyfe vs. Turtle Creek Bor- ough, 22 Super. Ct. 292; Chatham Street, 16 Super, Ct. 103. (Assessments.) The Act of May 16, 1891, P. L. 75 does not make assessments liens upon the properties assessed. Scranton City vs. Clarke 34 Super. Ct. 128. Under an ordinance directing the chief burgess and clerk "to execute and deliver for and on behalf of said borough proper contracts and agreements for the making of the improvement, upon terms and with such contractors as the council shall approve and direct," the grading, curbing and paving of a street was done by the street commissioner under the supervision of the borough engineer. On an objection to an assessment. Held — that the ordinance did not require the borough to do the work through a contractor. Highland Avenue, 4 West. L. J. 23. 342 Assessments for paving, sewers and other local improvements must be confined to the property abutting upon the line of the improve- ment. Morewood Avenue, 159 Pa. 20; Park Avenue Sewers, 159 Pa. 433; Beechwood Avenue Sewer (1) Pittsburgh's Appeal (1), 179 Pa. 490; Harriott Avenue 24 Super. Ct. 597; Fifty-fourth Street, Pitts- burgh's Appeal 165 Pa. 8; Grafius Run 218 Pa. 632, affirming 31 Si^xer. Ct. 638. Such assessments cannot be levied against an owner personally, or against a street railwaiy company, occupying a street improved, or against the tracks of a street railway laid on the street. It is also doubtful whether local or special assessments can be made for bene- fits resulting from the regxading of a street. Harriott Avenue, 24 Super. Ct. 597. Viewers appointed but not on the petition of the abutting property owners, to "assess the costs, damages and expenses" of certain grad- ing and curbing, cannot assess the "costs and expenses" on the abut- ting owners, as prescribed by Sec. 8, but they may assess the "dam- ages" on the properties specially benefited through the instrumentality of viewers appointed under the first section of this act, as amended June 12, 1893, P. L. 459. Grading, and Curbing 17th and 18th Streets, etc., 21 D. R. 1008, s. c. 1 West. L. J. 72. (Damages.) Damages are recoverable, not only for injury to the land, but for injury to the improvements erected thereon, and in determining the amount of damages to which an owner is entitled, the land, with the improvements upon it, and the uses to which it may be devoted, must all be considered not as independent claims, but as elements affecting the market value and the increase and decrease thereof resulting from the public improvements. Fyfe vs. Turtle Creek Borough, 22 Super. Ct. 292. The general increase in value from the development of the neigh- borhood is not such a local and special advantage as to be taken into account as part of the benefits. Dawson vs. Pittsburgh, 159 Pa. 317. Where the land in question seems to constitute a single body of lanS it is proper not to apportion the damages among different portions of it. Race Street, Middletown, 36 Pa. C. C. 89, s. c. 12 Dauphin Go. 80, 19 D. R. 19. But where the property is divided by a fence into two parts, it is proper to apportion the damages to each lot, and make assessments for benefits in like manner. Nicholson Borough, Main Street, 27 Super. Ct. 570. An owner of land, who acquires title after the passage of an ordi- nance authorizing the grading of a street, can recover for the injury to his property caused by the grading. It is the physical change and not the mere establishment of a grade on the official plans that gives a right of action. Hawley vs. Pittsburgh, 204 Pa. 428; Clark vs. City of PhUa. 171 Pa. 30. See Winter Avenue, 23 Super. Ct. 353. The person entitled to receive the damages for the injury resulting from a change of grade is the owner at the time the actual work on the ground is begun. And this is the case even if the petition for the appointment of viewers had been presented by the owner of an earlier date. The cause of action arises only when the injury is complete and the injury is complete as soon as the part of the work 343 which will do the injury is begun, so that when a municipality takes the property or enters upon the actual work, its liability becomes fixed. Thirteenth Street, 38 Super. Ct. 265; See Allegheny City vs. Dietrich, 8 D. R. 570, s. c. 47 P. L. J. (os) 88. A lot owner who joins in a request to the municipal authorities to grade a street is not estopped thereby from claiming damages for an injury to his property by the grading. Dunn vs. Tarentum Bor- ough, 23 Super. Ct. 332. A church which joins in a petition asking for the paving of a street in front of its property is estopped from denying its liability to an assessment. Broad Street, Sewickley Methodist Episcopal Church's Appeal, 165 Pa. 475; Ligonier Borough vs. Presbyterian Church, 22 D. R. 868. In the opening of a new street, an award of viewers cannot include an allowance for laying pavement and making curbing. Race Street, Middletown, 36 Pa. C. C. 89, s. c. 12 Dauphin Co. 80; 19 D. R. 19. The limit of special benefits is the limit of liability to special as- sessment. A property owner cannot be assessed with the cost of a main sewer where it appears that a smaller local sewer would have been sufficient to give the property all the benefit it derives from the main sewer. West Liberty Avenue Sewer, 54 Super. Ct. 242; nor for a twelve inch sewer, sixteen feet in depth, where a ten inch sewer, eight feet in depth, would have been sufficient to give the property owner and all lots intervening between it and the point of discharge suf- ficient drainage. A property cannot be taxed for the benefit of other lots on another slope, the accommodation of which caused the in- creased diameter and depth of the sewer. Harrisburg vs. Cummings, 6 D. R. 437. Damages cannot be assessed against properties benefited by the construction of a sewer, for the purpose of paying land damages sus- tained by the owners — although assessments to pay the cost and ex- , pense of a sewer is proper. Mill Creek Sewer 196 Pa. 183; Harnett's Case, 28 Super. Ct. 361. The provisions which require the viewers "to determine the dam- ages for property taken, injured or destroyed" means the actual and physical appropriation of or injury to the property of persons, and does not cover indirect or consequential damages to the business of a sewer company. Olyphant Sewage-Drainage Co. vs. Olyphant Bor- ough, 211 Pa.. 526, affirming 4 Lack. J. 369; but does cover consequen- tial damages to abutting owners arising from the building of a sewer on a plotted but unopened street. Spring Street Sewer, 5 D. R. 373. When a report of viewers, assessing "the costs and expenses" of an improvement upon the abutting property owners as benefits, is confirmed by the court, this is an adjudication that the sewer cost the actual amount charged against the abutting owners, consequently damages allowed other property owners, because of the improvement, are not included in the assessments of the benefits. An owner as- sessed benefits is not concerned with the manner in which the per- sons who arc allowed damages may recover the amounts allowed them. Winton Borough's Sewer, 46 Super. Ct. 502, affirming 11 Lack, J. 203, 24 York 86, 2 M. L. R. 166. 344 (Viewers.) The parties in interest are entitled to have the judgment of the viewers as to the damages and benefits and' the cost of the improve- ment and are not compelled to accept the judgment of the city engi- neer or of the city councils on the subject. Wheeler Avenue Sewer, 214 Pa. 504. This section does not contemplate that the plan, showing the im- provement, required to be filed by the viewers with their report, should show definitely every change that contributed to the damage sustained or benefit produced. In re Grading of Liberty Street, Meadville, V. D. R. 488, s. c. 8 Lack. L. N. 211. When the viewers specifically find that no property was taken, in- jured or destroyed, no separate schedule showing damages and bene- fits, and offsetting one against the other, can be prepared. Second Street, Harrisburg, 32 Pa. C. C. 297, s. c. 9 Dauphin 121. When the ownership of land, for injury to which damages are al- leged, is in dispute, the viewers must find the fact as to ownership definitely and distinctly before making an award. Race Street, Middle- town, 36 Pa. C. C. 89, s. c. 12 Dauphin Co. 80, 19 D. R. 19. (Viewers' Report.) The hearing and report of viewers must comply with sections 7, S and 9 of the Act of June 23, 1911, P. L. 1123 in addition to this sec- tion of the Act of 1891. Front Street, Harrisburg, 44 Pa. C. C. 666, s. c. 19 Dauphin 383. The court will disregard the title written at the head of a report of viewers although such title may have been ambiguous, misleading or incorrect. Carlisle Street, 55 Super. Ct. 223. In the absence of any report as to other properties abutting on the improvement the court is bound to presume that the viewers took no notice of them. Spangler vs. City of York, 19 York 175. A viewers report that does not show upon its face that it com- piled with the requirements of the act will be set aside. McDermott vs. New Castle, 3 D. R. 221, s. c. 41 P. L. J. (os) 97, 13 Pa. C. C. 474. But a report of viewers does not have to state upon what evidence they arrived at their conclusions, nor the particular items entering into the damages allowed. In re Grading of Liberty Street, Meadville, 11 D. R. 488, B. c. 8 Lack. L. N. 211. The viewers should return with their report the exceptions filed be- fore them to their schedule of damages and benefits and indicate thair action thereon. Spangler vs. City of York, 19 York 175, see Wilson's Appeal, 152 Pa. 136. All exceptions, and requests in writing for rulings, placed before them should be returned by the viewers with their report. Omega Street, Traver's Appeal 152 Pa. 129. Viewers appointed to ascertain the damages, costs and expenses in the grading of a street, cannot make the report required by the act, until the costs and expenses of the grading have been ascertained. Thirteenth Street, 38 Super. Ct. 265. The fact that the plan attached to the report did not show the whole of defendant's property was not ground for reversal where there was other evidence as to the extent and description of defendant's prop- erty, and where such facts were not in dispute. Philadelphia vs. Con- way, 257 Pa. 172. 345 Where a board of viewers, after preparing a schedule of benefits and damages for a municipal improvement, fails to file its report vi court for a period of ten years, neither the municipality nor the prop- erty owners can tak« advantage of the negligence of the board of viewers to file the report as required by law, the former to avoid the payment of damages or the latter to avoid the payment of benefits. In re Borough of Sheridan for Appointment of Viewers, 65 P. L. J. 387. (498). In all cases of the appropriation of land for public use, other than for roads, streets or highways, it shall not be lawful to assess, apportion or charge the whole or any portion of the damage done to or value of the land so appropriated, to, among or agciinst the other property adjoining or in the vicinity of the land so appro- priated, nor the owners thereof ; and all acts, or paits of acts, incon- bistent herewith, are hereby repealed. Sec. 1, Act of June 15, 1871, P. L. 391. Sec. 3, of Art. XIV, Act of May 23, 1889, P. L. 277 authorized the viewers appointed in the vacation of any public highway to assess the damages upon any property benefited by such improvements, "whether said property be immediately adjacent thereto or in the vicinity thereof." The Act of June IS, 1871, P. L. 391 is not repealed by the Act of May 16, 1891, P. L. 75 nor by the Act of April 2, 1903, P. L. 124. The Act of 1891 authorized only the assessment of the expenses and costs of a sewer. Where the viewers limited their inquiry to the ascer- tainment of damages for property taken and did not consider the cost of constructing the sewer, but assessed benefits generally, with- out regard to the cost of the sewer, it is error. The Act of 1871 does not permit the assessment of land damages for sewers: Mill Creek Sewer 196 Pa. 183; Winton Borough's Sewer 46 Super. Ct. 502, affirm- ing 11 Lack. J. 203, s. c. 24 York 86, 2 M. L. R. 155, nor for pubF.c parks: Hoffman vs. Philadelphia 250 Pa. 1; Susanna Root's Case, 77 Pa. 276, reversing 9 Philadelphia 553. This act still remains in force when land is taken for parl< purposes. In assessing damages for land taken for park purposes it is not lawful to charge against those damages as benefits that may have resulted to adjoining lands nor even to the owner upon the lands not taken. Hoffman vs. Philadelphia, 250 Pa. 1; Susanna Root's Case, 77 Pa. 276 reversing 9 Phila. 553. On exceptions to a report of viewers assessing benefits and dam- ages growing out of the construction of a sewer, where it appears that a large sum was assessed against the city, it will be assumed thai such assessment included the land damages, inasmuch as there can be no assessments of benefits in sewer cases against individual owners to pay land damages. Reynolds Street Sewer (No. 1) 34 Super. Ct. 209. The Act of June 15, 1871, P. L. 391, does not prohibit the assess- ment of benefits for sewer construction. Register vs. Lower Merion Township, 20 D. R. 902, s. c. 26 Montg. Co. 137. (499). The payment of damages sustained by the making of the improvements aforesaid, or by the vacation of any public highway, may be made, either in whole or in part by the corporation, or in 34d whole or in part by assessments upon the property benefited by such improvements, as said viewers may determine and the court approve, and in the latter case the viewers appointed to assess damages, having first estimated and determined the same apart from benefits, shall also assess the said damages, or so much thereof as they may deem just and reasonable, upon the properties peculiarly benefited by the improvement, including in the said assessment all properties for which damages have been allowed, if, in their judgment, such properties will be benefited thereby, and shall report the same to the said court. The total assessments for benefits shall not exceed the total damages awarded or agreed upon. Sec. 3, Act of May 16, 1891, P. L. 75. Clause 10, Sec. 3, Art. S of the Act of May 23, 1889, P. L. 277, in addition to authorizing the expense to be placed in whole or in part on the city, authorizes grading on the basis of benefits or grad- ing and paving on tlie basis of the foot front rule. But the Supreme Court held in City of Scranton vs. Pennsylvania Coal Co. 105 Pa. 445, and later confirmed in Hand vs. Fellows 148 Pa. 456 and Scranton vs. Bush 150 Pa. 439, that the foot front rule is not applicable to the more rural parts of territory embraced within the city limits, so that pav- ing could only be done, at the costs of the owners of property within the built up part of the city, where the foot front rule could be en- forced. In the rural parts of the city the Act of 1891 provided a new and the only method for reaching the lot owners for paving directly, namely, on the basis of benefits. In the built up portions the act provides an additional mode of reaching the lot owners for paving, to wit: On the basis of benefits, while they were previously liable only according to frontage. The Act of 1891 is not inconsistent with the Act of May 23, 1889, P. L. 277 but only furnishes an additional remedy, and, therefore, does not repeal clause 10, Sec. 3, Art. S of the latter act. Hand vs. Fellov/s 148 Pa. 456; McCall vs. Coates, 148 Pa. 462; Scranton City vs. Clarke 34 Super. Ct. 128. See Philadelphia vs. Weaver 14 Super. Ct. 293. Since the above decisions were rendered, which was 1892, clause 10, Sec. 3, Art. 5 of the Act of 1889 was amended, first in 1901, P. L. 234 and again in 1903, P. L. 115, v/hereby the cost of paving can be col- lected under the 1889 act according to benefits. Clause 10, Sec. 3, An. 5 of 1913 contains similar provisions. On same principle construing the Act of May 23, 1874, P. L. 230 and the Act of May 23, 1889, P. L. 277; see Scranton City vs. Bush, 160 Pa. 499. (Damages.) "Damages" must be construed to mean the total cost of the improve- ment. In re Petition of the City of New Castle 16 Pa. C. C. 478. Property is injured, where its drainage is materially affected, even though not on the line of the improvement. In re Change of Grade of Chatham Street; Appeal of City of Phila., 191 Pa. 604. In a change of grade proceedings, the defandant cannot claim the plaintiff was estopped from proceeding for damages because he had 347 signed the petition for the change of grade, where the petition con- tained no expense or implied waiver. Hobbs vs. Shamokin Borough; 66 Super, Ct. 22, affirming 3 N. L. J. 17. Under Art. 16, Sec. 8 of the Constitution of Penna., the injury meant to be provided for was such as was unavoidable in the accomplishment of a public undertaking, but the property protected is not limited to that directly abutting upon the improvemens, but includes all suf- ficiently near to make the injury approximate, immediate and sub- stantial. Cooper vs. Scranton City 21 Super. Ct. 17; In re Change of Grade of Chatham Street, Appeal of City of Phila., 191 Pa. 604; Stork vs. City of Philadelphia 195 Pa. 101. The theory on which the legislation on the subject of opening streets proceeds, is that the advantage or benefits to be derived from the opening, exceed the damages that will be sustained; and that suf- ficient benefits will be found, assessed and collected to pay all dam- ages. If this should prove not to be the case, the city would of course, be liable for the deficiency. Where, in the opening of a street, a bond has been filed, the primary fund out of which damages are intended to be paid, is that raised by the assessment and collection of the benefits. City of Pittsburgh, vs. Irwin's Executors, 85 Pa. 420. Remote and speculative benefits should not be considered in es- timating the damages and benefits resulting from the opening of a street. The criterion is the difference in market value of the whole tract before and after the changed condition but a general advance in value in the neighborhood is not ground for assessing benefits if the property does not border on the improvement. Philadelphia vs. Con- way, 257 Pa. 172; see In re Section "G" 17th Sewer District, 8 Lack. J. 219, s. c. 21 York 67 in which the court held it was proper for the viewers to use the foot front rule. Where property lies at the corner of unopened intersecting streets, and the streets are thereafter opened and separate juries of view ap- pointed to assess damages and benefits resulting to the abutting prop- erty from the opening of each of the two streets, benefits may be sep- arately assessed for the opening of the street upon which but a small portion of the property abuts if it appear that the entire property has been benefited by the improvement. Philadelphia vs. Conway, 257 Pa. 172. Damages are to be assessed as of the date of the completion of a sewer. The fact that the injury was temporary in its nature, and had been abated at or before the completion of the work, does not pre- vent recovery. The viewers are to consider the question of parma- ment injury just as if they were called on to value it at the moment when compensation could first be demanded, and in doing that, the only safe rule is to ascertain and award as compensation, the differ- ence between the value of the property, unaffected by the municipal improvement, and its value as affected thereby, at the completion of the improvement. (What is proper to consider in determining dam- ages resulting from construction of a sewer considered.) Chatham Street 16 Super. Ct. 103. In assessing benefits to cover the cost of a sewer the foot front rule is proper. Exceptions to Report of Viewers. In re Section "G", 17th Sewer District, 8 Lack. J. 219, s. c. 21 York 68. The vacation of a street does not give abutting property owners the right to damages under this act. Howell vs. Morrisvillc Borough, 212 348 Pa. 349, reversing 29 Pa. C. C. 1, 13 D. R. 673; Ruscomb Street 30 Super. Ct. 476-480: This being so, the fact that the street was va- cated upon the petition of the parties who are benefited thereby can- not change the result. Nocton vs. Penna. Railroad Co. 32 Super. Ct. 555. Whether an owner whose property abuts on the street vacated but not on the part vacated, and is left in a cul de sac by reason of such vacation, is entitled to damages under this act. See In re Melon Street, 182 Pa. 397; Nocton vs. Borough of Norristown 20 Montg. 194, s. c. 18 York 105; Ruscomb Street, 30 Super. Ct. 476. It seems that an action of trespass is sustainable by a person who is injured by the vacation of a street. MsCall vs. The D. L. & W. R. R. Co. and Borough of Duryea, 71 Super. Ct. 508. In a proceeding to assess damages for land taken by a city to widen a street, the benefits and special advantages which may accrue to the part or tract of land not taken or injured by the improvement, must be taken into consideration in determining the difference in value be- fore and after the appropriation. Broad Street, Widening, 225 Pa. 184. Whfere, on an appeal from a report of viewers in the opening of a street, the damages awarded are reduced, the parties who paid their assessment are entitled to recover back from the municipality their ratable proportion of the money paid to the borough in excess of the damages finally awarded. The fact that such payments were volun- tary is immaterial. Wolfe vs. Edgewood Borough, 58 Super. Ct. 38, • affirming 61 P. L. J. 601. (500). In proceedings to assess damages and benefits arising from. improvements under the act to which this is a supplement, if property is both benefited and damaged by such improvements, the excess of damages over benefits, or the excess of benefits over dam- ages, or nothing in case the benefits and damages are equal, shall be awarded to or assessed against the several owners of property affected thereby. This act shall not prevent said viewers, if they so desire, from making a separate report of the damages and bene- fits, respectively; but, in the event of their making such separate report, if the damages to the property of any person be greater than the benefits received,, or if the benefits be greater than the damages, or if the damages and benefits be equal, in either case they shall strike a balance and carry the difiference forward to another column, so that the assessment shall show what amount, if any, is to be re- ceived or paid by the property owner, and the difference only, shall, in any case, be collectible of such property owner or paid to such property owner. Appeals hereafter taken from the report of the Board of viewers shall be from such net amount only. This act shall apply to pending proceedings, where the viewers report has not as yet been filed. Sec. 1, Act of May IS, 1913, P. L. 215. Where property is taken under the power of emineat domaia, and the owner is in possessfon tkoreef after the date from which damages are claimed, he must allew as a credit »n sueh damages the net income 349 received therefrom, or, if occupied by him, the net rental value thereof. Penna. Co. for Ins. on Lives and Granting Annuities, Trustee vs. Philadelphia 262 Pa. 439. (501). Viewers, or juries of view^, appointed by any court of this Commonwealth to assess the damages and benefits, due to the taking, injury or destruction of private property, in and by the con- struction or enlargement of any public work, highway or improve- ment, shall make their reports within a time which said court shall fix when so appointing them: Provided, That if any of the viewers or juries of view so appointed, shall for any good and sufficient reason appearing to the court, be unable to file its report within the period so fixed, the said court may, in its discretion, either before or after the expiration of the time fixed, extend the time for the filing of such report to such a time as justice and the circumstances nf the case may demand. Sec. 1, Act of March 18, 1903, P. L. 28. This act is constitutional and applies with equal pertinency to va- cation as to opening or widening proceedings. Umbria Street, 32 Super. Ct. 333. A rule of court on this subject previously adopted in conformity with the law as it stood at the time of its adoption, is superseded by this act. In re Tulpehocken Township Road, 21 D. R. 158, s. c. 3 Berks Co. 387. It is only where the viewers or juries of view are unable to report from any good and sufficient reason that the court may, in its discretion either before or after the expiration of the time fixed, extend the time for filing its report. A nunc pro tunc order will not be made where the only excuse offered for the delay was the oversight of counsel. In Matter for Petition of Public Road, 64 P. L. J. 552, s. c. 30 York 130. A proper case for the exercise of that discretion would seem to be made out where it appears that the non-performance of the reviewers' duties was owing to uncontrollable circumstances and the omission sooner to ask for an extension of time v/as due to counsel's illness. In re Tulpehocken Township Road, 21 D. R. 158, s. c. 3 Berks Co. 387. Likewise, where the time intervening between the issuing of an order to view and lay out a public road and the next session of the court is too short to permit the viewers to act, the court may enlarge and continue the order to the following session. In re Public Road in Beech Creek Township,, 17 D. R. 581, s. c. 34 Pa. C. C. 570. And where the sickness of one of their number prevent a jury of viewers from complying with the order to report at a certain term, the order may be continued' to a date between regular terms to be fixed by the court. In re Road in Bushkill Township, 12 Northampton Co. 118. Where an application to extend time for a report of review is made by the executrix of one of the petitioners for the review without hav- ing been formally brought upon the record, it would seem that her presentation of the petition ought itself to be regarded as a request to be permitted to become a party, which would be effectually granted by the allowance of her prayer. In re Tulpehocken Township Road, 21 D. R. 158, 8. c. 3 Berks Co. 387. 350 A rule of court allowing an enlargement of time for return of viewers by special order of the court is lawful under this act. In re Road in Cumru Township, 5 Berks Co. 281. (e) Consideration of Report of Viewers. Exceptions. Appeals. Confirmation. (502). Upon the report of said viewers, or any two of them being filed in said court, any party interested may, within thirty days thereafter, file exceptions to the same; and the court shall have power to confirm said report, or to modify, change or other- wise correct the same, or change the assessments made therein or refer the same back to the same or new viewers, with like power as to their report. When said report is first filed in court, the prothonotary thereof shall mark the same confirmed nisi, and in case no exceptions are filed thereto within said thirty days, he shall enter a decree (as of course) that said report is confirmed absolutely. Within thirty days after the confirmation, modifications, changing or correcting of any report, any interested party may appeal from the said decree to the Superior Court, or to the Supreme Court, as the case may be. The said report, when and as finally confirmed, shall be conclusive as to any assessments made therein to pay the costs and expenses of any sewer, street or other improvement. And within thirty days after said report is filed in court, as aforestated, any party whose property is taken, injured or destroyed, or who is assessed benefits to pay damages for property taken, injured or destroyed, may appeal to the court of common pleas, and demand a trial by jury, according to the course of the common law. Every ;:rpel!ant shall state in the appeal the grounds upon or for which the appeal is taken, and the same shall be signed by the party or parties taking the appeal, or by his or their agent or attorney; and shall be accompanied by an affidavit of the party appellant, or of his or their agent or attorney, that the appeal is not taken for the purpose of de- lay, but because the appellant firmly believes that injustice has been done. Upon the trial of any such appeal in court,, the report of the viewers, as finally approved, confirmed, modified or changed by the court, shall be prima facie evidence of the benefits as. therein men- tioned ; and in case the party appellant does not obtain a verdict •nore favorable than was the report of viewers, as finally confirmed, modified, or changed, the said appellant shall not recover any costs on the appeal. The said court of common pleas shall have power to order what notices shall be given in connection with any part of said proceedings, and make all and such orders as it may deem requisite and may by rule or otherwise, prescribe the form of the pleadings. After verdict and final judgment, either party may have an appeal to the Superior Court or Supreme Court,, as in other cases. No appeal 351 taken under this act shall prevent the filing of liens by any munici- pality for any assessment made by said report; but, upon the final termination of the issue, the court shall make such order as to the lien filed as shall appear right and proper. Sec. 6, Act of May 16, 1891, P. L. 75, as amended by Sec. 2, Act of April 2, 1903, P. L. 124. For an appeal by a city from an assessment "by viewers or other- wise than upon a trial in court," see Sec. (504). The Act of March 27, 1903, P. L. 83, provides that when a report ,, of viewers shall be filed in the court of quarter sessions, the same shall be confirmed at the expiration of thirty days, unless exceptions thereto have been filed. The text of this act has not been cited as all proceedings of this kind in which a city is interested are in the court of common pleas. The Act of April 2, 1903, P. L. 124, is constitutional. Haas vs. City of Pittsburgh, 56 P. L. J. 361; Brackney vs. Crafton Borough, 31 Super. Ct. 413. The question of excessive assessment ought to be passed upon by a jury, although the court has the right to pass upon the question. Chestnut Street, HarrisbUrg, 15 Pa. C. C. 115, s. c. 3 D. R. 497. (Damages, Benefits — Procedure.) The right of the plaintiff to recover is limited to damages arising from such injuries as were the direct, immediate and necessary or un- avoidable consequences of the act of eminent domain itself, irrespec- tive of the care or negligence in the performance thereof. If the in- jury results from negligence in the performance of the work, the remedy of the landowner is by an action of trespass. Ralston vs. Sharon Hill Borough, 43 Super. Ct. 280. A municipality can make assessments for benefits or damages and can impose a valid municipal lien for street improvements only when the improvertients are made in pursuance of law and the mode pointed oiit by the city ordinance is strictly followed. Scranton Sewer, 213 Pa. 4. (Evidence.) A viewers report prepared and filed in proceedings conducted un- der the Act of 1891 and before the passage of the Act of 1903 can- not be received as "prima facie evidence of the benefits as therein mentioned," as provided in the Act of 1903. Carson vs. Allegheny City 213 Pa. 537. Upon trial of an appeal in court the report of the viewers is not admissible "generally" but only as "prima facie evidence of the bene- fits;" Fraser vs. Pittsburgh, 41 Super. Ct. 103, and is not evidence of the damages awarded; O'Donnell vs. Pittsburgh, 227 Pa. 14. Upon the trial of an appeal, the report of the viewers as finally con- firmed by the court is prima facie evidence of the benefits assessed. This confirmation may be as of course by the prothonotary, when no exceptions have been filed, or by the court when exceptions have been filed. O'Donnell vs. Pittsburgh, 227 Pa. 14. In a jury trial upon an appeal, the only question to be determined by the trial is the effect of the improvement upon the market value of the property. That is the test by which the jury must be gov- erned and by which the admissibility of any evidence offered must be 352 determined. Fraser vs. Pittsburgh, 41 Super. Ct. 103; Dawson vs. Pittsburgh, 159, Pa. 317. In assessing damages for land taken for a sewer the jury may con- sider as entering, into the element of damages, the amount of space occupied by the earth taken' from the ditch, the travel of men and wagons along its course, the length of time occupied, and the char- acter and value of the crops on the ground; but can not consider any damages arising from negligence in the doing of the work. Ralston vs. Sharon Hill Borough, 43 Super. Ct. 280. In a proceeding to assess damages for the construction of a sewer or other municipal improvements, the courts are without power to re- view the discretion of the municipality in adopting a plan for the lo- cation of the sewer. Ralston vs. Sharon Hill Borough, 43 Super. Ct. 280; Curran vs. East Pittsburgh Borough, 20 Super. Ct. 590. On the trial of an appeal from a report of viewers in a road case the contract between the city and contractors for the improvement is not admissible in evidence for the defendant. Carson vs. Allegheny City, 213 Pa. 537. Where the evidence justifies the conclusion that excessive damages are awarded by a jury a new trial will be granted. Danner et al. vs. City of York, No. 2, 14 York 10. (Appeal.) A city has the right of appeal from the report of the viewers to the court of common pleas under the Act of 1891. Although not given expressly, the right is secured under Art. XVI, Sec. 8, of the Constitution; City of Pittston's Appeal 8 D. R. 641, s. c. 17 Lane. 27, 9 Del. Co. 482, 9 Kulp 468, 13 York 102, 127, 47 P. L. J. (os) 157. An owner of property, who is assessed with benefits by a jury of view, is entitled to an appeal to the Common Pleas and a jury trial. Mount Pleasant Avenue, Appeal of Tourison et al., 171 Pa. 38; Beech- wood Avenue Sewer (2) Pittsburgh's Appeal (2) 179 Pa. 494. Any property owner injured has the right to appeal from the award of the viewers though not an original petitioner. Lockhart Street 8 D. R. 623; 7 Northampton 55; 22 Pa. C. C. 363; Weikel Street 27 Pa. C. C. 529, s. c. 11 D. R. 651. An appeal might be denied because a lot owner did not present his claim, but certainly not because he did not present all the evidence available to support that claim. Roach vs. The Borough of Washing- ton, 33 Pa. C. C. 101, s. c. 54 P. L. J. (os) 323. The right of appeal within thirty days from the confirmation of the report of viewers, as given by this section, does not take away the right given by the Act of May 19, 1897, P. L. 67, to appeal within six months. Scranton Sewer 213 Pa. 4. When a statute fixes the time within which an act must be done, the courts have no power to enlarge it, although it relates to a mere ques- tion of practice. This rule is applicable to the provision that excep- tions to a report of viewers must be filed within thirty days. An order which merely states "The exceptions are sustained" is not a final order from which an appeal will properly lie. St. Clair Borough vs. Souilier, 234 Pa. 27. An appeal frorri a report of viswers will b* strickea off if it is not filed within thirty days after th« filing of the repcwt in court. In re 353 23 Williams Street, Appeal of John Barry, 191 Pa. 472, affirming 8 D. R. 80; Bechtel vs. Bechtelsville Borough, 3 D. R. 713. The general rule in road cases is that a person affected with notice of the proceedings from the beginning who has allowed the time for having them reviewed on appeal to expire cannot accomplish the same object by moving the court to strike off the order of confirmation and then appealing from the refusal of the court to grant his motion. The pendency of such a rule to show cause does not have the effect of tolling the statute. Winter Avenue, 23 Super. Ct. 353. A judgment of the court, unappealed from within the statutory period, becomes final and cannoti be later opened, when the appel- late court has decided a similar state of facts between different liti- gants contrary wise. Pulaski Avenue, 220 Pa. 276. An attorney's affidavit in an appeal is sufficient when it states that "he firmly believes that injustice has been done," although it does not state that the "appellant firmly believes." In re Widening of Twenty- fourth Street, 13 D. R. 619, s. c. 17 York 155, 9 Del. Co. 176. (Appeal — Form of.) A paper signed "City of Pittston," by its solicitor and attorney, to which the affidavit of the solicitor is attached that the appeal i.s not taken for delay, but which does not shov/ any authority from the city council for taking the appeal, nor claim that the city is aggrieved, and which does not indicate that it was ever seen by the court, is not a proper appeal from the award of viewers. City of Pittston's Ap- peal 8 D. R. 641, s. c. 17 Lane. 27, 9 Del. Co. 482; 9 Kulp 468; 13 York 102, 127, 47 P. L. J. (os) 157. (See Sec. (504), with cases.) The appeal need not set forth the same was authorized by resolu- tion of council, if it was taken by the chief burgess and the borough solicitor, although it would be better practice to set forth the resolu- tion. Howell vs. Northampton Borough, 21 D. R. 287, s. c. 13 North. Co. 34, 11 Del. Co. 533; 4 M. L. R. 16. The provisions of this section providing for an appeal are manda- tory and must be strictly complied with. A petition for an appeal is fatally defective and will be dismissed which fails to state the grounds of the appeal and to aver that the property of the petitioner has been "taken, injured or destroyed" or has been "assessed benefits to pay damages for property taken, injured or destroyed." Such appeal can- not be amended after the statutory period of thirty days have elapsed. Thornburg vs. McKees Rocks, 64 P. L. J. 489; Guthrie et al. vs. Mc- Kees Rocks, 64 P. L. J. 493; Brehm, administrator vs. Canonsburg Borough, 35 Pa. C. C. 394, s. c. 18 D. R. 727; Emery vs. New Castle 38 Pa. C. C. 225, s. ■:. 20 D. R. 583; Contra, see Howell vs. Northamp- ton Borough, 21 D. R. 287, s. c. 13 North. Co. 34; 11 Del. Co. 533; 4 M. L. R. 16; In re Widening of Twenty-fourth Street, 13 D. R. 619, s. c. 17 York 155, 9 Del. Co. 176, wherein it was held the appeal will not be quashed or stricken off but an opportunity will be given' to perfect same. Also in Novotny vs. Borough of Donora, 59 P. L. J. 143, a similar question under the Act of June 13, 1874, P. L. 283 was similarly decided. The requirement in the act that the "grounds upon or for which the appeal is taken" should be set forth therein is sufficiently compiled with if the appeal states, either that assessments for benefits should 354 not have been made or that damages should have been awarded. In re Widening of Twenty-fourth Street, 13 D. R. 619, s. c. 17 York 155, 9 Del. Co. 176. An appeal from a board of viewers appointed to determine the costs, damages and expenses and assess benefits for the construction of a sewer cannot be referred to a board of arbitrators. Sweeney Brothers Co. vs. City of Pittsburgh, 57 P. L. J. 252. Where appeal from both benefits and damages as awarded by viewers was taken and verdict was rendered in favor of land owner, which represented excess of damages over benefits, court will strike off municipal lien, where lien was filed for amount assessed as special benefits against property by viewers. Greensburg Boro. vs. Parks, 6 West. 39. An appeal from an award of a board of viewers appointed to assess benefits and damages will not be stricken off because the report relates only to the assessment of the "costs and expenses" of an improve- ment. Goldsmith vs. Borough of Tarentum, 57 P. L. J. 494. When exceptions are filed to, and an appeal taken by the same parties from, a viewers' report, an order overruling exceptions to the report is not a "final decree" from which an appeal can be taken to the appellant court. There cannot, in the nature of things, be a final decree in the case until the question of damages is first settled by the verdict of a jury. No judgment or decree is final that does not terminate the litigation between the parties to the suit, in that jurisdiction. (Decided in 1894 which is previous to the amendment to this section). Second Street, Pennsylvania Steel Co's. Appeal, 161 Pa. 571. An order made by the court merely setting aside a report of viewers, for a legal reason, apparent upon its face, is not a final adjudication of the rights of the parties interested, but is an interlocutory order from which no appeal lies. Barnett's case, 23 Super. Ct. 361. An order which merely states "The exceptions are sustained" is not a final order from which an appeal will properly lie. St. Clair Borough vs. Souilier, 234 Pa. 27, nor is the appointment of viewers a final judgment. Queen Street, 18 Super. Ct. 241. On an appeal to an appellate court from the common pleas, which has absoutely confirmed a report of viewers, the question of dam- ages can only be raised where testimony and exceptions raised this question properly before the jury of view and the lower court. Where no exceptions are filed to a viewers report the appeal only takes be- fore the appellate court the report of viewers and the order of confir- mation. Every presumption is in favor of a viewers' award, and findings of the viewers on questions of fact approved by the lower court will not be disturbed by the appellate court, except for clear error, appearing from the record. Carlisle Street, 55 Super. Ct. 223, West Liberty Avenue Sewer, 54 Super. Ct. 242. (Exceptions and Appeal.) If exceptions are filed to the viewers; award of damages, an ap- peal thereafter within the time stipulated by the act, supersedes such exceptions. The entry of the appeal before exceptions filed neces- sarily precludes the necessity of such exceptions. If both are filed at the same time, the proper course is to require an election by the 355 party as to which proceeding he desires to adopt. Bechtel vs. Bech- telsvillc Borough, 3 D. R. 713; Contra see William Bowers vs. Brad- dock Borough 172 Pa. 596, where a similar question under the Act of June 13, 1874, P. L. 2&3' was decided differently. (Exceptions.) A taxpayer who "had no property taken, injured or destioyed and can make no complaint of the assessment of damages or benefits by the viewers" has no standing to file exceptions to a viewers report. The parties "interested" who may file exceptions, are those directly and not remotely affected by the proceedings. Olyphant Borough Sewer, O'Malley's Appeal, 198 Pa. 534. Exceptants to an assessment of damages cannot be permitted to take their chances of a favorable verdict to themselves and then set aside the report, because some of the juries were not freeholders. If they knew of the disqualification or had full opportunity to ascertain the fact before the viewers acted, they cannot afterwards object. Pennsburg Alley, 12 Pa. C. C. 213, s. c. 2 D. R. 136; 10 Lane. 7, 101, 8 Montg. 177, 5 Del. Co. 150. An owner of property which is assessed benefits only to pay the cost of the construction of an improvement does not have the right to ap- peal from the assessment and demand a jury trial. His only remedy is to file exceptions to the report of the viewers. Sercnth Street Sewer, 35 Super. Ct. 484, affirming 10 Del. Co. 197; Harrisburg vs. Forster, 39 Super. Ct. 238, affirming 34 Pa. C. C. 228, 10 Dauphin Co. 176; Mur- dock vs. Pittsburgh (No. 1) 223 Pa. 280; Fraser vs. Pittsburgh, 41 Super. Ct. 103; Winton Borough's Sewer, 46 Super. Ct. 502; Lageman vs. Pittsburgh, 47 Super. Ct. 493, affirming 58 P. L. J. 171; City of Chester vs. Chester Steel Castings Co. 10 Del. Co. 197; Seventh Street Sewer, 10 Del. Co. 594. And unless the court could reasonably infer that their assessment was fraudulent the exceptions should be dis- missed. Murdock vs. Pittsburgh, (No. 2), 223 Pa. 283. Irregularities as to appointment of viewers and their want of authority and other questions of law should be raised by filing ex- ceptions to the viewers report in court and not by appeal. Questions of fact should be raised by an appeal. The provision allowing an ap- peal does not require that exceptions be first filed. An appeal to the common pleas stays final confirmation of the viewers report so far as the report affects property of the appellant but does not pre- vent final confirmation as to all others who do not except or appeal. City of Pittsburgh vs. Canevin, Trustee, 64 P. L. J. 636. In the case of Omega Street, Traver's Appeal, 152 Pa. 129 which arose under the remedial act of May 16, 1891, P. L. 71 the court held that questions of fact must be raised before the viewers, and if a lot owner fails to appear before the viewers to raise questions of fact on which he wishes to be heard, he will be held to have waived them; but questions of form or of law, arising upon the face of the report, may be brought to the attention of the court by exceptions by any one interested and without regard to his appearance or non-appearance before the viewers. A property owner may object to the validity of an ordinance, and may challenge a viewers' report upon the ground that there was no authority of law for the appointment of viewers for the assessment of benefits, by filing exceptions to the report of viewers, notwithstand- ing the fact that his objection to the appoinment of viewers had been previously overruled by the court. The appointment of viewers is not a final judgment. Queen Street, 18 Super. Ct. 241. The question of damages cannot be determined on exceptions to the viewers -report but can only be considered on appeals from the report of the board of viewers. In re Viewers, 65 P. L. J. 43; In re Damages of Gegg for changing grade of Love Lane 29 Lane. S3; la re Assessment of Benefits and Damages 12th Sewer District of Scran- ton, Pa. 7 Lack. J. 170. Objections to an ordinance providing for the widening of a street, since it concerns damages primarily, cannot be raised on "exceptions to the report of viewers appointed to assess damages, but must be raised by an appeal. An exceptant who did not appear before the viewers and except and object must be held to have waived any ob- jections as to damages, as affected by the course and description of the street in the ordinance and draft attached to the report. Frederick Street, Young's Appeal, 155 Pa. 623, affirming 12 Pa. C. C. 577, 5 York 128 (See Borough of Hanover's Appeal 6 York 37 and Frederick Street (No. 2) 6 York 159). Exceptions do not lie because the ordinance instituting proceedings to take over a sewer system was passed finally the same day it was introduced, nor because some of the property proposed to be taken is located outside the municipal limits, where it is all a part of the sewer system used in the municipality. Borough of Hanover's Pe- tition (No. 2), 27 York 133, s. c. 5 M. L. R. 204. The question of v/hether a majority in interest and number of prop- erty owners signed the petition for the improvement cannot be raised on exceptions to the report of viewers. In re Viewers, 65 P. L. J. 43. Failure to file exceptions before the viewers waives any objection as to damages. Where the report of viewers does not disclose that the exceptant to the report filed exceptions before the viewer, and the exceptant to the report does not allege that he filed exceptions before the viewers or seek to amend the viewers report by the addition of exceptions alleged to have been filed by him and not returned with the report, exceptions to the report by him will be dismissed. In re Petition of McKees Rocks Borough, 64 P. L. J. 491. It is the duty of the court to supervise and review the work of the viewers and to correct errors to which its attention is called by ex- ceptions filed, but it is not its duty to direct the testimony to be taken anew when that heard by the jury is before it, or to proceed de novo and consider all the testimony taken and make a new award. Every presumption is in favor of the award, and unless errors in proceed- ings or findings are pointed out the report should be confirmed. In re Petition of the City of Pittsburgh for the appointment of viewers. Maria F. Smith's Appeal, 179 Pa. 630; In re Petition of the City of Pittsburgh, etc., 179 Pa. 634. This section is not in conflict with the Act of June 23, 1911, P. L. 1123, as to the power of the court to refer a report of viewers back to the same viewers to be prepared in proper form after exceptions filed and sustained. In re Widening Braddock Avenue, 66 P. L. J. 730. On exceptions to a viewers report the court can review — 1st, the right to assess the properties; 2nd, whether there was a wrong princi- 357 pie applied in making the assessment. Exceptions to Report of View- ers, In re Section "G," 17th Sewer District, 8 Lack. J. 219, s. c. 21 York 68. Where exceptions are sustained to a viewers report that had been lost after having been properly filed in court, the court can refer the matter to new viewers. In re Petition of McKees Rocks Borough, 64 P. L. J. 491. The finding of road viewers on questions of fact, approved by the court below after a thorough examination, will not be disturbed by the appellate court, except for clear error. Amberson Avenue, Appeal of Childs et al., 179 Pa. 634; Carlisle Street, 55 Super. Ct 223; West Liberty Avenue Sewer, 54 Super. Ct. 242. The confirmation of a report of viewers is an adjudication of the facts therein recited and has the effect of a judgment of a court of record and cannot be attacked collaterally, unless shown to be absolutely void. Lamberton vs. City of Franklin, 15 D. R. 739, s. c. 7 Lack. J. 290. (Viewers Report.) The provision reading "The said report, when and as finally con- firmed, shall be conclusive as to any assessments made therein to pay the costs and expenses of any sewer, street or other improve- ment," is applicable to the assessment against the property. In a pro- ceeding in rem for the collection of the amount of the assessment, out of the property, the confirmation of the report of viewers is con- clusive, but it has no bearing in an action of assumpsit under the Act of April 4, 1907, P. L. 40, where the defendant was not assessed and never received notice, which the statute provided he should have, in case he was assessed. Borough of Youngwood vs. Gay, 71 Super. Ct. 154, affirming 7 West. L. J. 1. It is not necessary that money be actually appropriated to pay for property which it is proposed to take for municipal improvements, prior to the confirmation of the viewer's report. Borough of Hanover's Petition, No. 2, 27 York 133, s. c. 5 M. L. R. 204. Viewers are not required to award damages or assess benefits if they find the properties were neither damaged nor benefited by the im- provement. Their report cannot be attacked because only two of them signed the report. St. Clair Borough vs. Souilier, 234 Pa. 27. The court has power to change the amount of damages awarded to individual claimants by viewers, but it will not do so, unless it be shown that the viewers acted fraudulently, erroneously or mistakenly. If it were made to appear that the viewers had based their estimate on a false basis, or had acted upon irrevelant or incompetent testi- mony, or had in any way been influenced by anything not legally warranted, the court would correct such erroneous action. In re Grad- ing of Liberty Street, Meadville, 11 D. R. 488, s. c. 2 Lack. L. N. 211. Where the viewers properly assessed damages, but awarded them to the wrong party, the court may modify the report so as to make the award to the right party. Howell vs. Morrisville Borough, 29 Pa, C. C. 1, s. c. 13 D. R. 673. Where exceptions are taken but the right of appeal was lost by reason of misapprehension, the court returned the report to the viewers, 358 before whom further testimony on the question of an alleged exces- sive assessment for benefits may be submitted. Chestnut Street, Har- risburg, 15 Pa. C. C. 115, s. c. 3 D. R. 497. (503). Where any exceptions are filed to any report of viewers, made and filed in court in pursuance of the act, entitled "An act in relation to the laying out, opening, widening, straightening, ex- tending or vacating streets and alleys, and the construction of bridges in the several municipalities of this Commonwealth, the grading, paving, macadamizing or otherwise improving streets and alleys, providing for ascertaining the damages to private property resulting therefrom, the assessment of the damages, costs and ex- penses thereof upon the property benefited, and the construction of sewers and the payment of the damages, costs and expenses there- of, including the damages to private property resulting therefrom," approved the sixteenth day of May, Anno Domini one thousand eight hundred ninety-one, to which this act is supplementary, and the said exceptions affect the entire report the same shall not be confirmed absolutely as to any part thereof until the said exceptions have been finally disposed of by the court; but when exceptions are filed that only go to or affect some particular assessment of benefits or damages, and which in the consideration and final dis- posal thereof will not affect the assessments made against or in favor of other parties, in such case it shall be lawful for the court, at any time after the report has been filed thirty days, by decree, order or rule to confirm all such assessments as to which no excep- tions have been filed. Sec. 1, Act of April 18, 190S, P. I.. 198. (504). In all cases of damages assessed against any municipal or other corporation, or individual or individuals, invested with the privilege of taking private property for public use, for property taken, injured or destroyed by the construction or enlargement of their works, highways or improvements, whether such assessments shall have been made by view.irs or otherwise than upon a trial in court, and an appeal is not provided for or regulated by existing laws, an appeal may be taken by either party to the court of com- mon pleas of the proper county, within thirty days from the ascer- tainment of the damages, or the filing a report thereof in court, .pur- suant to any general or special act, and not afterwards. Sec. 1, Act of June 13, 1874, P. L. 283. For an appeal by "any party whose property is taken, injured or destroyed, or who is assessed benefits to pay damages for property taken, injured or destroyed" see Sec. (502). The Act of June 13, 1874, P. L. 283 was intended to carry into ef- fect the provisions of Art. XVI, Sec. 8 of the Constitution, which gives a right of trial by jury in all cases of damages for land taken, in what- 359 ever manner by municipal corporations and other for public use. Williams et al. Executors vs. City of Pittsburgh, 83 Pa. 71, Bachler's Appeal 90 Pa. 207. This Constitutional provision applies to the assessment of benefits as well as of damages by a jury. Pusey's Appeal. In re Charles Street, 83 Pa. 67. The purpose of Sec. 8, Art. 16 of the Constitution, as well as of the Act of June 13, 1874, P. L. 283, was to protect private property and to regulate the taking of it for public use. South Lebanon Town- ship School District's Petition, 22 Super. Ct. 330; and to allow con- sequential damages, which were not assessable prior to the Constitu- tion of 1874. Alley in West Chester, 1 Chest. Co. 525; Pusey vs. City of Allegheny, 98 Pa. 522, s. c. 10 W. N. C. 561. The Act of June 13, 1874, P. L. 283, does not apply to cases in which subsequent statutes, authorizing the taking of private property for pub- lic use, provide for and regulate such appeals. Miller vs. South West Penna. Pipe Lines, 2 D. R. 602. The absence of a provision for an appeal in an act, authorizing an assessment for public improvements, does not infringe the property owner's constitutional rights as carried into effect in the Act of June 13, 1874, P. L. 283. Winter vs. City of Reading, 15 W. N. C. 329. The Act of June 13, 1874, P. L. 283, No. 170 is prospective as well as retroactive. In re Carbondale and Providence Turnpike, 17 W. N. C. 310. Nothing more was intended by the Act of 1874 than to give the party aggrieved the right of trial for the purpose of having his dam- ages determined by a jury, instead of by viewers, or by the court. In opening streets, where a bond has been filed, the primary fund out of which damages are intended to be paid is that raised by the assessment and collection of the benefits. City of Pittsburgh vs. Irwin's Executors, 85 Pa. 420. The Act of June 13, 1874, P. L. 283, Act No. 170, applies alike to property owners and to corporations and, in the matter of appeal, amended the Act of April 13, 1846 and its supplements incorporating and regulating the Penna. Railroad and which did not provide for an appeal, even though the railroad did not accept the provisions of the Constitution of 1873, since the Act of 1874 only made a change in the remedy used by the property owner in order to obtain compensation for property taken and is constitutional. Long's Appeal, 87 Pa. 114. In proceedings in the opening of streets under the Act of May 16, 1891, P. L. 75, land owners assessed for benefits may appeal to the court of common pleas, either under the Act of May 23, 1889, P. L. 277, Art, XIV, Sec. 3, or under the Act of June 13, 1874, P. L. 283. Chestnut Street, 3 D. R. 497 (1894) (Such an appeal is now provided for in Sec. 6, Act of 1891 as amended in 1903, P. L. 124.) Kelly vs. City of Philadelphia, 6 Pa. C. C. 243. Where the act, under which a street is vacated puts the vacation on the same footing in the matter of damages to property owners as the taking for opening or widening an appeal will lie to the court of common pleas under the Act of June 13, 1874, P. L. 283. Hare vs. Rice et al., 142 Pa. 608. A municipality has the right to appeal, under the Act of June 13, 1874, P. L. 283, from the award of a jury appointed under the Act of May 16, 1891, P. L. 75, to assess damages for opening a street. 360 Gardner vs. City of Chester, 13 Pa. C. C. 4, s. c. 2 D. R. 704; 5 Del. Co. 237, 293, 7 York 31; 3 Lack. J. 119, 10 Lane. 234; Liberty Street, 27 Pa. C. C. 156, s. c. 12 D. R. 95. "It looks as if an appeal will lie, whether the road or street is opened at the instance of the municipality or not." Robinson vs. South Chester Borough et al., 2 Chest. Co. 441, s. c. 1 Del. Co. 18. A municipality has the right to appeal from a report of viewers un- der the Act of June 13, 1874, P. L. 283, No. 170. Howell vs. North- ampton Borough 21 D. R. 287, s. c 13 North. Co. 34, 11 Del. Co. 533, 4 M. L. R. 16; Miller vs. The Borough of Manheim, 7 Lane. Co. 291; In re Opening Alley "C" and "Eby" Street and Widening Hazel Street, in the Borough of Manheim, 7 Lane. Co. 292. Where a county is a party to a proceeding provided for the assess- ment of damages in the laying out, opening and grading of city streets, it can take an appeal from the award of viewers under Art. 16, Sec. 8 of the Constitution and the Act of June 13, 1874, P. L. 283. In re Ap- peals by County of Lancaster in opening South Shippen Street, Lan- caster, 1 Lane. Co. 68. The time within which the appeal must be taken is thirty days from the filing of the report. The filing of exceptions to the report of viewers has nothing to do with the right of appeal and both courses can be followed at the same time. Bowers vs. Braddock Borough, 172 Pa. 596; Correll vs. Mount Jewett Borough, 49 Super. Ct. 118, af- firming 38 Pa. C. C. 609; Borough of Millvale vs. John Poxon et aL 123 Pa. 497; Brown vs. Beaver Borough, 12 Pa. C. C. 313, s. c. 2 D. R. 318; Lincoln vs. Birdsboro, 7 Pa. C. C. 539; In re Private Road ht Nescopeck Township, 14 W. N. C. 559, affirming 2 Kulp 487. But see Rodgers vs. Borough of Freemansburg, 2 Pa. C. C. 523. The appeal must be taken within thirty days from the time that the reviewers file their report, and not from the time that their report is confirmed. The fact that exceptions have been filed to the report does not extend the time within which an appeal may be taken. In re Pri- vate Road Nescopeck Township, 14 W. N. C. 559, affirming 2 Kulp 487; In re Opening of Union Street 3 Del. Co. 565, s. c. 6 Lane. Co; 73. Filing exceptions to the report of viewers does not operate as a waiver of the right of appeal to the common pleas and a trial by jury. Rodgers vs. Borough of Freemansburg, 2 Pa. C. C. 523. But where a report of viewers to assess damages has been made, exceptions filed by both parties and the court has entered judgment upon the award, this judgment is a final adjudication of the contro- versy until set aside by the court or reversed by writ of error and un- til then, an appeal is not proper. The Penna. R. R. Co. vs. Gorsuch, 84 Pa. 411. Where the report of viewers was set aside on exceptions by P, whose land was taken, and a new view ordered, and "P appeared be- fore the new viewers and pressed his claim for damages, and within thirty days after the filing of the new report demanded a jury trial in the common pleas. Held, P was entitled to a trial by a jury and also that he had not waived his constitutional right by permitting the case to go before the last board of viewers without objections on his part. Puse/s Appeal, In re Charles Street, 83 Pa. 67. 361 Where an appeal is taken under the Act of June 13, 1874, P. L. 283, a duplicate of the appeal taken in the quarter sessions should at the same time be filed in the common pleas. In re Richmond Street, 11 Phila. 453, s. c. 8 Leg. Gaz. 75. After two years acquiesence in an appeal taken from the report of viewers assessing damages occasioned by the opening of a street it is too late to move to dismiss the appeal on the ground that it was not entered in the court of common pleas within the thirty days limited by the act of Assembly, the appellee having ruled the appel- lant to declare and having pleaded in the meantime. Geissinger vs. Hel- lertown, 6 Lane. 1 ; 1 North. 306, afSrmed in 133 Pa. 522. An appeal from the court of quarter sessions is in time if notice thereof is entered in that court within thirty days from the time the award is filed, although the appeal be not certified to the court of common pleas until after that period has elapsed. Geissinger vs. Hel- lertown Borough, 133 Pa. 522. An appeal to the court of common pleas under the Act of June 13, 1874, P. L. 283, vests in that court exclusive jurisdiction, wherefore, while such an appeal is pending in the court of common pleas, it is error for the court of quarter sessions to entertain and determine exceptions filed (after such appeal) to a report of viewers awarding damages for the widening of a city street. In re Widening of Chest- nut Street, 128 Pa. 214; Walnut Street, 24 Super. Ct. 114. But in the case of William Bowers vs. Braddock Borough, 172 Pa. 595, Justice Green takes a contrary position when he says "The hear- ing of the exceptions can go on and be completed before the case is actually tried, and if the exceptions are decided favorable to the ap- pellant so as to defeat the proceeding, no trial will be necessary. If otherwise the trial can then proceed." A party dissatisfied with the report of viewers has two courses open to him; he may except or he may appeal; if he appeals the jurisdiction of the court of quarter sessions is superseded. But there must neces- sarily be an election which course shall be pursued; otherwise ona judgment might be entered upon the exceptions, and a totally different one upon the verdict of the jury. If exceptions are filed to the view- ers' award of damages, an appeal thereafter, within the time stipulated by the act, supersedes such exceptions. The entry of the appeal be- fore exceptions filed necessarily precludes the necessity of such ex- ceptions. If both are filed at the same time the proper course is to require an election by the party as to which proceeding he desires to adopt. Bechtel vs. Bechtelsvillc Borough, 3 D. R. 713; Lincoln vs. Birdsboro, 7 Pa. C. C. 539. Where in opening a street, an appeal from a report of viewers in which damages and benefits are assessed, an issue is framed, the city only is made the defendant. Cooke et al. vs. The City, 2 W. N. C. 446. Where in an appeal to the court of common pleas under the Act of June 13, 1874, P. L. 283, the court directs an issue to be framed and improperly joins certain property owners as defendants, it was held their joinder as parties with the city was a ground for reversal, had the question been properly raised. Cummings vs. The City of Wil- liamsport, 84 Pa. 472. The Act of June 13, "1874, P. L. 283, providing for an appeal within thirty days of the filing of the report, is not repealed by the Act of 362 May 26, 1891, P. L. 116, which provides for atn appeal to be taken within thirty days from the decree of confirmation by the court of quarter sessions. Vernon Park. Philadelphia's Appeal, 153 Pa. 70; Spear vs. Montgomery County, 24 Pa. C. C. 177. The Act of June 13, 1874, P. L. 283, No. 170, is not repealed by im- plication by the Act of May 16, 1891, P. L. 75 and its amendments. Where an appeal is taken under the Act of June 13, 1874, P. L. 283, No. 170, in proceedings begun under the Act of May 16, 1891, P. L. 75, and its amendments of April 2, 1903, P. L. 124, the appeal must contain the grounds of the appeal as provided by the Act of 1903 and where the appeal filed does not contain the grounds, the appeal v/ill not be quashed, but an opportunity will be given to perfect same. The appeal need not set foi'th that the same was authorized by resolu- tion of council if it was taken by the chief burgess and the borough solicitor although it would be better practice to set the resolutions forth. Hov/ell vs. Northampton Borough, 21 D. R. 287, s. c. 13 North. Co. 34, 11 Del Co. 533, 4 M. L. R. 16. The Supreme Court will not, on an appeal involving a report of view- ers appointed to assess damages resulting from the opening and grad- ing of a street, take notice of the fact that such grading was done sub- sequently to the filing of the report appealed from, where nothing to that effect appears on the record. Pusey vs. City of Allegheny, 98 Pa. 522, s. c. 10 W. N. C. 561. Where a plaintiff whose land has been appropriated, appeals from the report of the viewers under the Act of June 13, 1874, and secures a verdict for less than that awarded by the viewers, he can tax no costs against the defendant which accrued subsequent to the appeal. Hoover vs. Union Township School District, 4 Pa. C. C. 520. (505). Any appeal taken pursuant to this act, shall be signed by the party or parties taking the same, or by his or their agent or attorney, and shall be accompanied by an affidavit of the party appel- lant, or of his or their agent or attorney, that the same is not taken for the purpose of delay, but because the affiant firmly believes that injustice has been done. Sec. 2, Act of June 13, 1874, P.'L. J. 283. Strict compliance with the terms of this section is a condition es- sential to the jurisdiction of the court to hear the appeal. An appeal is properly quashed where the affidavit filed in support of the appeal avers nothing beyond the fact that the statement set out in the paper filed was correct and true. Appearance through counsel, in an is- sue framed by the court upon such an appeal, does not constitute a waiver of the right to take advantage of the failure on the part of the appealing party to file the required affidavit. This would be true if the requirement were simply directory, but since it is mandatory and compliance essential to jurisdiction, waiver is impossible. Butler E. and F. Co. vs. Butler Borough, 238 Pa. 180. Demand for a jury trial "in the manner provided by the laws of this Commonwealth" cannot be construed as an appeal in accordance with the act of 1874. Ford et al. vs. Borough of Chartiers, 4 Penny. 62. A defective affidavit on an appeal may be cured by amendment even after the time allowed for an appeal. Novotny vs. Borough of Donora, 59 P. L. J. 143; See Guthrie et al. vs. McKees Rocks, 64 P. L. J. 493. 363 An appeal, however, is fatally defective vfhen the required affidavit has been omitted. Hanover Borough Alley, 4 D. R. 160; Ford ct al. vs. Borough of Chartiers, 4 Penny. 62. An attorney at law signing himself as an attorney for a municipality may appeal for the municipality, if no question is raised as to the attorney's authority; but if a property owner files a petition for a rule to strike off the appeal and specifically alleges therein that the attorney had no authority to appeal on behalf of the municipality, and such an averment is not denied by an answer to the petition, the court will take the averment as true and will make absolute the rule to strike off the appeal. McAlpine Street, 40 Super. Ct. 268. (506). When no appeal is taken in accordance with the provi- sions of the act of thirteenth June, one thousand eight hundred and seventy- four, and judgment is entered in accordance with law, and the party to whom has been awarded damages declines and refuses to accept payment of said award or judgment, then it shall be lawful for such municipal or other corporation, individual or individuals, against whom such damages have been assessed, upon proper peti- tion to the court of common pleas of the proper county in which said award or judgment is entered, after notice by rule or publication ordered by said court, to pay the amount of said award and cost into said court, and the court upon such payment, to order and direct the satisfaction of said award or judgment by the proper officer. Sec. 1, Act of June 2, 1891, P. L. 172 being a supplement to the Act of June 13, 1874, P. L. 283. (507). Where any appeal is taken to the action of any court con- firming any viewers' reports or any part thereof, to which exceptions have been filed and overruled, such appeal, if taken for any manner or thing which will or may affect the entire report, shall have the effect of suspending the absolute confirmation of the entire report until the appeal is finally disposed of by the appellate court; but where the appeal is to matters and things which do not go to or affect the entire report or affect other assessments, any such appeal shall only affect the particular assessment or cause as to and for v/hich the appeal is taken. In order to determine whether any appeal affects the entire report or any particular assessment, it shall be the duty of the appellant to file in the court below, before or at the time he files his writ of certiorari, a copy of his specifications or assign- ments of error, or grounds of appeal, and, upon the request of the proper municipality, or any interested party, the court below, or a judge thereof in vacation, shall certify whether the said appeal so taken does not affect the entire report and the said certificate shall be conclusive on said question. Where the court or judge certifies that the appeal taken will affect the entire report, no further proceed- ings shall be taken in the court below until after the final action of the appellate court; but where the said court or judge certifies 364 that the appeal taken will only affect the particular assessment of benefits or damages, as the case may be, then the confirmation of all other assessments, as to which no appeal has been taken, shall be deemed and taken to be final and absolute. If on any appeal the action of the court below, confirming any report or any assessment, is affirmed, the date of the decree or judgment of the appellate court shall be deemed and taken as the day on which said report or assess- ment was finally confirmed. Sec. 2, Act of April 18, 1905, P. L. 198. (508). Where any appeal is taken to the Supreme Court from the action of any court confirming the report of viewers, or any part thereof, and an appeal is also taken to the Superior Court from the same report or any part thereof, and the appeals in both cases are substantially the same, and in which the same questions are involved, it shall be lawful for the Superior Court to certify the said appeal to the Supreme Court, to be heard with the other appeals from the same report, involving the same questions. And it shall *be lawful for the Supreme Court to consolidate the said appeals, and to hear the same as one case. And where several appeals are taken from the confirmation of the same report, either to the Superior or the Supreme Court, the appellate court may consolidate the ap- peals, where the grounds of appeal are similar and the same ques- tions involved. Sec. 3, Act of April 18, 1905, P. L. 198. (509). It shall be lawful for the several parties or persons to unite and join in a single appeal from the confirmation of the report of viewers, or any parts thereof, either to the Superior or Supreme Court, where the grounds of appeal are similar and the same ques- tions are involved; but the uniting of the appellants shall not unite the amounts, or change the jurisdiction. When the appeal, if taken by each appellant singly, would be to the Superior Court, then the joint appeal shall be to the said court; but if the appeal of any one joint appellant, if taken singly, would be to the Supreme Court, then the joint appeal shall be to the said court. If any appeal has been taken^to the Supreme Court, any other party, without regard to the amount involved, may appeal to the same court, and join in the said appeal, in case the grounds of appeal are similar and the same ques- tions are involved. Sec. 4, Act of April 18, 1905, P. L. 198. (510). This act shall apply to appeals already taken, where the same have not been argued or disposed of. The proper municipality or any party interested may, by notice or rule upon the appellant, in any case, cause a statement or copy of the specifications of error 365 or grounds of appeal to be filed in the court below ; upon which the said court, or judge thereof, in vacation, shall certify whether the appeal taken does or does not affect the entire report, in the manner and with the effect as set forth in section two of this act. Should any appeal, under this act or the act to which this is a supplement, be made to the wrong appellant court, it shall be the duty of the said court to certify the appeal to the court to which the appeal should originally have been taken. Sec. 5, Act of April 18, 1905, P. L. 198. (f) Competency of Evidence in Condemnation Proceed- ings. (511). In all proceedings arising from the exercise of the right of eminent domain it shall be competent for all witnesses called, when duly qualified, to state their opinion as to the market value of the property before the exercise of the right of eminent domain and as unaffected by it, and its market value immediately after the exercise of the right of eminent domain and as affected thereby : — * (a) To state in detail, and costs, all the elements of benefit or damage which they have taken into consideration in arriving at their opinion ; (b) In arriving at their opinion as to the market value immedi- ately after the exercise of the right of eminent domain to add to their opinion of the market value before such exercise the cost or value of all the elements of benefit or advantage and to deduct therefrom all the disadvantage or damage, in order to arrive at the market value after such exercise of the right of eminent domain and as affected thereby; (c) In all proeceedings to assess damages or benefits for the opening of any street, alley, or other highway, to take into consid- eration as one of the elements of advantage or disadvantage the cost of street improvements. Sec. 1, Act of April 21, 1915, P. L. 159. Under paragraph (a) a witness may state the costs of the elements considered, not as distinct items of loss, yet the witness bases his estimate upon the costs, and his testimony necessarily discldfces the reasons for the opinions he expresses, Under paragraph (c) the only "cost of street improvements" that can be considered are such as have been authorized, planned or pro- jected by the city. Kirkpatrick vs. City of Pittsburgh, 64 P. L. J 651, s. c. 30 York 110. In an appeal from a report of viewers for damages incident to the opening of a street, plaintiff must prove title before damages can be recovered, and until this is done, testimony as to the value of the property taken will be excluded. Kirkpatrick vs. City of Pittsburgh, 64 P. L. J. 661, s. c. 30 York 110. 366 (512). In all claims for damages against a [county,] city, [bor- ough, or township,] arising from the exercise of the right of eminent domain, it shall be competent for the party or parties claiming dam- ages to offer in evidence, as a declaration against interest, the value of the property affected as assessed for the purpose of taxation. Sec. 2, Act of April 21, 191S, P. L. 159. (g) Liens Against Properties to be Ascertained and Pay- ment Thereof Provided for in Certain Cases. (513). In all proceedings hereafter instituted for the condemna- tion and appropriation of land and property by the exercise of the right of eminent domain, excepting proceedings to ascertain dam- ages and benefits by reason of municipal, street or sewer improve- ments, the petition for the appointment of viewers therein shall con- tain allegations specifying any judgments, mortgagess, or other claims (hereinafter designated "liens") which are liens upon the land and property sought to be appropriated or condemned, as afore- said. Sec. 1, Act of April 14, 1915, P. L. 122, as amended by Sec. 1, Act of June 11, 1915, P. L. 942, and Sec. 1, Act of June 28, 1917, P. L. 650. (514). Testimony shall be taken in said proceedings to ascertain the amounts of said liens, and the dates of the entry of the same, and the amounts of said liens and the dates of entry thereof shall be found as facts by the viewers in said proceedings. Certified lists of liens from the courts of the Commonwealth and the United States shall be prima facie evidence of the existence, dates, amounts, dates of entry, and places of record of said liens, and, unless modified or overcome by oral or documentary evidence, shall be conclusive upon the parties thereto, as to items just specified. Sec. 2, Act of April 14, 1915, P. L. 122. (515). Where it appears that liens exist, as aforesaid, which are liens upon property sought to be condemned and appropriated as aforesaid, a report of the facts found as aforesaid shall be made to the court having jurisdiction of the proceedings; which report shall be subject to exceptions in manner to be regulated by the Supreme Court by general rule, prescribed, amended, and published from time to time; and upon the findings in relation to said liens being finally found by said court having jurisdiction of said proceedings, said court shall make an order directing the payment and distribu- tion of the amount found to be payable as compensation to the parties entitled thereto : First to the owners of said Herts, then to the owners of the property appropriated as aforesaid: Provided, how- ever. That the parties interested shall have the right of appeal from said order of distribution to the Superior and Supreme Courts of 367 the Commonwealth, as shall be determined by the amount distrib- uted to said parties respectively, in manner now provided by law. Payment in accordance with said order of distribution shall abso- lutely discharge the party making said payment from all claims of whatsoever nature, by any person, firm, corporation, or claimant as against said property, when the payment thereof shall be evi- denced by a receipt of record in said proceedings ; and in said receipt and on the record thereof any claimant may reserve the right to pursue the owner of said property for any balance due upon his lien against any other property or assets of the said owner. Sec. 3, Act of April 14, 1915, P. L. 122, as amended by Sec. 2, Act of June 11, 1915, P. L. 942. (516). Upon payment of the compensation for land or property appropriated as aforesaid, in accordance with said order of distri- bution, title to the land or property appropriated shall vest in the taker thereof, in accordance with the provisions of the law under which such appropriation is made, and all claims for compensation shall be deemed paid and satisfied as herein provided. Sec. 4, Act of April 14, 1915, P. L. 122, as amended by Sec. 3, Act of June 11, 1915, P. L. 942. (h) Discontinuance of Proceedings, Payment of Costs, (517). In case any such mimicipal corporation shall repeal any ordinance passed, or discontinue any proceeding taken, providing for any of the improvements mentioned in the preceding sections prior to the entry upon, taking, appropriation or injury to, any prop- erty or materials, and within thirty days after the filing of the re- port of viewers assessing damages and benefits, the said munici- pality shall not thereafter be liable to pay any damages which have been, or might have been, assessed, but all costs upon any proceed- ing had thereon shall be paid by said municipal corporation, to- gether with any actual damage, loss or injury sustained by reason cf such proceedings. Sec. 7, Act of May 16, 1891, P. L. 75. The whole proceeding is tentative and experimental until the munici- pality has entered upon the property or begun the work which causes the injury, or the report of viewers has been filed and the municipality has not within thirty days thereafter repealed the ordinance. Thir- teenth Street, 38 Super. Ct. 265; Borough of Hanover's Petition, 26 York, 153. An ordinance repealing an ordinance authorizing the opening of a street is not a proceeding to vacate the street. Black Street, 236 Pa. 395, affirming 59 P. L. J. 45. When a municipality discontinues a proceeding it is proper for the court to appoint an auditor to determine the costs and damages of the parties affected. Hamilton Avenue, 41 Pa. C. C. 113, s c 61 P L. J. 383, 22 D. R. 581. 368 An auditor may be appointed to assess the "costs and expenses" and "damage, loss or injury" and a person so consenting by liis acta cannot later object to that method. The act does not prescribe any method of recovery. Pittsburgh's Petition, 243 Pa. 392, afBrming 59 P. L. J. 45. In the case of, In re Proceedings of City of Allegheny, for Opening, etc., of Trimble Avenue, 45 P. L. J. 461, the court made absolute a rule to allow the petitioner his costs, including his witnesses' and his attornejr's fees, and to have them taxed as part of the proceedings. A petition should be filed by each party of the proceeding who al- leges that he has incurred costs or suffered any actual damage, loss or injury, setting forth the items thereof in detail, and verified by an affidavit that the cash items thereof represent moneys actually ex- pended. To this petition there should be attached such vouchers as can be procured showing these payments. A copy of the petition should be furnished to the city solicitor, that he may make answer or objection thereto. If any petitioner claims to have paid witness fees, he must set out the number of days each witness attended; no lumping charges will be considered. Opening of Seventieth Street, 7 D. R. 113. The word "costs" are such as are authorized by statutes only. The words "damage, loss or injury" include only such damages as are based on injury to the property affected and do not include speculative or incidental damages. Pittsburgh's Petition 243 Pa. 392, affirming 59 P. L. J. 45. A municipal lien, entered for benefits assessed under an ordinance, which is subsequently repealed before any work is done, will be stricken off at the instance of the defendant, and in such case he is entitled to have his attorney's fees taxed as part of the costs of the proceeding. Allegheny City vs. Dietrich, 8 D. R. 570, s. c. 47 P. L. J. (os) 88. A final judgment for damages for the opening of a street is conclu- sive, although appeals of other property owners are undisposed of and, subsequent to the judgment, the ordinance for the opening of the street is repealed by council; and although there is no actual taking or occupation of the land. Myers et al. vs. Borough of South Bethlehem, 149 Pa. 85. (i) Payment of Assessments for Benefits. Interest. (518). All assessments for benefits to pay damages, costs and expenses shall bear interest at the expiration of thirty days after they shall have been finally ascertained and fixed, and shall be pay- able to the treasurer or other proper officer pi the municipality. Part of Sec. 10, Act of May 16, 1891, P. L. 75. The Act of June 1, 1915, P. L. 685, provides that the damages caused by the taking, injury or destruction of private property by municipal corporations shall, from the date of such taking, injury, or destruc- tion, bear interest at the rate of six per centum per annum. This act was held unconstitutional in Penna. Co. etc.. Trustees vs. Phila. 262 Pa. 439, as being a special act fixing the rate of interest, contrary to Art. Ill, Sec' 7 of the Constitution. 369 24 (j) Appropriation of Right of Way or Easement. Ascer- tainment of Damages by Jury Instead of by Viewers. (519). In any and every action brought to ascertain or recover damages caused to any owner of lands by reason of the appropria- tion of a right of way or easement in the lands of such owner by any municipal or other corporation invested with and having the right of eminent domain as now authorized by the laws of Pennsyl- vania, where such owner of lands and such municipal or other cor- poration cannot agree upon the amount of damage done or properly payable to said owner for the appropriation of a right of way or casement in said lands, the parties may, by agreement with each other, waive the right to have such damages assessed as is now required by law, and such owner may thereupon file his statement and claim in the c^ourt of common pleas of the proper county and rule the defendant to plead thereto within fifteen days from notice of such rule, duly served upon said corporation, and the said suit shall be proceeded with the same as if an award of viewers had been filed and an appeal had been taken therefrom. Sec. 1, Act of May 21, 1895, P. L. 89. Even after the appointment of viewers the parties may file an agree- ment waiving their rights to proceed by viewers and stipulating that the case be proceeded with pursuant to this act. Kaufman vs. Pitts- burgh, Carnegie & Western Railroad Company, 210 Pa. 440. (520). Either party to such action as is referred to in section one of this act shall have the right during the trial of such action, on motion to the judge presiding at such trial, to demand and have ilie jury which may be selected to try said cause visit and view the premises over or through which the right of way or easement men- tioned in section one of this act may extend, before rendering a ver- dict in such case. Sec. 2, Act of May 21, 1895, P. L. 89. Where the right exists to demand a view of the premises by the jury, the request therefore comes too late when not made until after the evidence was closed on both sides. The view pertains to the evi- dence, and properly the motion therefore should be made by the party desiring it before he closes his case in chief. If made after all tlie evidence is in it is discretionary with the court to allow or refuse it. The better practice is to make the motion, or at least to give notice thereof, as soon as the jury is sworn, so that proper and timely ar- rangements can be made for taking them to the premises. Denniston vs. The Philadelphia Company, 1 Super. Ct. 599. This act only applies to such actions as are brought directly to re- cover damages without the intervention of viewers to assess the dam- ages. Where the case arises by appeal from the award of viewers, neither party can demand as of right that the jury shall visit and viev/ the premises. It is then discretionary with the trial judge. Frazee vs. Manufacturers Light and Heat Company, 20 Super. Ct. 420; Bond vs. Philadelphia 218 Pa. 475. 370 ARTICLE XLI. STREETS AND HIGHWAYS. (a) Plans and Location of Streets and Alleys. (521). Every municipality shall have a general plan of its streets and alleys, parks and playgrounds, including those which have been or may be laid out, but not opened; which plan shall be filed in the office of the engineer or other proper officer of the municipality, and all subdivisions of property thereafter made shall conform there- to. The location of streets or alleys, or parts thereof, or parks or playgrounds, laid out and confirmed by authority of councils; shall not afterwards be altered without the consent of councils; and no map or plot of streets or alleys or parks or playgrounds, shall be entered or recorded in any public office of the county in which said municipality is situated until approved by councils. No person shall hereafter be entitled to recover any damages for the taking for public use of any buildings or improvements of any kind which may be placed or constructed upon or within the lines of any located street or alley, or park or playground, after the same shall have been lo- cated or ordained by councils. Sec. 12 of the Act of May 16, 1891, P. L. 75, as amended by Sec. i, Act of July 22, 1913, P. L. 902. For powers of City Planning Commission concerning the plan of streets, parks and playground within, and for three miles beyond the city limits, see Sees. (326) to (331) inclusive. This section does not violate the bill of rights, and is constitutional. Harrison's Estate, 250 Pa. 129, affirming 23 D. R. 605. The provision that no damages shall be recovered for buildings con- structed within the lines of located streets or alleys does not violate Art. XVI, Sec. 8, of the constitution of the state. The act is merely declaratory of the common law. Bush vs. McKeesport City, 166 Pa. 57. Exceptions to report of viewers in opening of a street, because damages were not allowed for buildings erected thereon after the street was located and mapped, will be overruled, since the question could be determined upon the trial of an appeal. Front Street, Har- risburg, 44 Pa. C. C. 666, s. c. 19 Dauphin, 383. 371 -(522). Every mixnicipality shall have power, by ordinance, to locate streets and alleys, and to include therein streets and alleys, or parts thereof, theretofore opened or used for highway purposes; and to locate streets or alleys, theretofore opened or used for high- way purposes, of a greater width, and to include therein such streets or alleys, or parts thereof; and to revise the lines of such streets or alleys in accordance therewith, and to place the same on the general plan of the streets and alleys of stfch municipality of such greater width. All subdivisions of property thereafter made shall conform thereto. No such location shall be construed to authorize the entry upon, taking, or appropriation of any property, within such located street or alley, not theretofore opened or used for highway purposes ; nor shall the same interfere in any .way with the rights of the owners to the full use and enjoyment of such property, except that, whenever thereafter such located street or alley shall be ordered to be opened, widened, extended, or straightened according to such location, buildings erected upon property within the lines of such located streets or alleys after such location was made, shall be re- moved at the expense of the owner, and without any liability there- for to such municipality. Sec. 1, Act of May 15, 1913, P. L. 212, supplementing Act of May 16, 1891, P. L. 75. For powers of City Planning Commission concerning location of streets, see Sees. (326) to (331) inclusive. (b) Grading, Paving, Curbing, Macadamizing and Im- proving Streets and Alleys. Sidewralks. Shade Trees Along Streets. Parking Places. Opening, Wid- ening, Straightening and Extending Streets and Alleys. (523). Every municipal corporation shall have power to lay out, establish, or re-establish grades of streets and alleys, or parts thereof, and to construct bridges, piers, and abutments therefor, and sewers and drains in any street or alley, or through or on or over private property. Every municipal corporation shall also have power, upon the petition of a majority of property owners in interest and number abutting the line of the proposed improvement, to be verified by affidavit of one or more parties to said petition (a majority in inter- est of owners of undivided interests in any piece of property to be deemed and treated as one person for the purposes of petition), to grade,' pave, curb, macadamize, and otherwise improve any public street or public alley, or part thereof, within its corporate limits, or which may be", in whole or in part, boundaries thereof. And also in- cluding the improvement of any street, road, lane, or alley, and any 372 sections or parts thereof in length, in the space between the curb, gutter, or actual carriage-way line and the property line, either by an original work or improvement thereon, or by a change, repair, renewal, or alteration in the said highway space, by the spacing and constructing of a footwalk, curb, parking space, or shade-trees, or by changing, altering, renewing, replanting, pruning, or otherwise improving the same in any or all of said particulars. On petition, viewers shall be appointed as provided in the first section of this act, who shall assess the costs And expenses of the sewer, or grading, paving, curbing, macadamizing, footwalks, parking, shade-tree plant- ing, or changing, altering, renewing, replanting, pruning, or other improvement of each street or alley, or part thereof, within its cor- porate limits, upon the property benefited, according to benefits, if sufficient can be found, but, if not, then the deficiency, when finally ascertained, shall be paid by the municipal corporation, and the proceedings of said viewers, and the proceedings on their report, shall be as provided in this act for viewers and reports of viewers in cases of property taken, injured or destroyed. Sec. 8, Act of May 16, 1891, P. L. 75, as amended by Sec. 1, Act of May 28, 1915, P. L. 573. See Sees. (49), (152) and (400). For the first section of this act as to the appointment of viewers, see Sec. (484). For proceedings before viewers, see Sees. (497) to (510). For powers of City Planning Commission concerning streets and bridges within, and for three miles beyond, the city limits, see Sees. (326) to (331) inclusive. The Acts of April IS, 1891, P. L. 17, and May 26, 1891, P. L. 116, provide that any city required to pay damages, or any owner or tenant affected by a change of grade or the laying out, widening, opening or changing of a public street, lane or alley, shall have the right to ap- peal to the court of common pleas for a jury trial, from the decree of the court of quarter sessions confirming an award of a jury of view. It would seem that these acts apply only to proceedings under the general road law of 1836. The Act of May 23, 1891, P. L. 109, provides that when the damages are not assessed by the view opening a road, a petition may be filed within six years from the confirmation of the report by the court of quarter sessions, or within six years from the date of notice of the intended opening. This act would seem likewise to apply only to proceedings under the general road law. Where property owners petition for an improvement "charging the costs, damages and expenses thereof" to their several properties, it is optional with the municipal authorities either to accept the offer of the petitioners or to provide for the assessment of the costs, dam- ages and benefits in the statutory mode. Dunn vs. Tarentum Borough. 23 Super. Ct. 332. It is one of the inherent and implied powers of a city to pave, grade, sewer and otherwise improve its streets, and to pay therefor, 373 and this power exists without any express legislative grant, and unless it has been taken away by some legislation. Com. ex rel. vs. George, 148 Pa. 463. This is a general act and part of a series of curative acts, and in- tended as a blanket supplement to the others to supply deficiencies and confirm doubtful powers under existing legislation. Howell vs. Morrisville Borough, 212 Pa. 349; In re Viewers in Kingston, 15 Luz. L. R. R. 295. A sewer which discharges only surface water is a sewer within the meaning of the act. Arnold Storm Sewer, 1 West. L. J. 61. Where an ordinance for improvements is adopted without petition of property owners there is no authority to assess the cost thereof upon abutting properties. 17th & 18th Streets and Sixth Avenue, 1 West. L. J. 72; but see contra as to sewers, Derry Borough Sewer Case, 1 West. L. J. 127. Under this act a property owner cannot claim to be relieved from assessments, because only a part of his property directly abuts upon the improvement. The statute does not contemplate an assessment based wholly upon frontage. This is only one element to be con- sidered. The assessments must be based upon the benefit to the en- tire property. Hamilton Avenue, 48 Super. Ct. 155, affirming 59 P. L. J. 469; 3 M. L. R. 137. Prior to this act the municipal authorities had power to ordain the grading of a street without petition, and this power was not taken away by the act. Marcoz vs. Wilmerding Boro. 37 Super. Ct. 185. An ordinance for the construction of a sewer may originate in coun- cil, without a petition of property owners. Corry vs. Corry Chair Company, 18 Super. Ct. 271. Where property is injured, taken or destroyed in the construction ot a municipal improvement, the party affected has a constitutional right to appeal to a jury. But this right of appeal does not extend to the assessment for the costs and expenses of making municipal improve- ments such as a sewer. Such assessment, whether laid by councils or a board of viewers, is an exercise of the taxing power, with which courts and juries of right have little to do. Fifth Sewer District, 5 D. R. 303, s. c. 2 Lack. J. 149. This act affords an appropriate remedy to a property owner alleg- ing damages as resulting from the building of a sewer on an abutting street, and a petition for the appointment of a jury under this act and for this purpose should not be quashed. Spring Street Sewer, 5 D. R. 373. The costs and benefits of a sewer must be determined and assc^ed by the viewers, and cannot be fixed by ordinance of city council. Wheeler Avenue Sewer, 214 Pa. 504. Where a branch sewer is constructed on a street upon the petition of property owners on the street, and for the peculiar and almost exclusive benefit of the property abutting on the street, the fact that it was necessary, in order to reach the main sewer, to conduct the branch sewer for a short distance through an intersecting- street, is not a valid reason for not treating the improvement as an entirety ;n the assessment of benefits. Grant Street, 17 Super. Ct. 459. Damages resulting to an abutting property owner from an alleged change of grade cannot be collected in an action of trespass against the city, where the plaintiff fails to show that the change was illegally 374 made. In such a case the proper method of ascertaining the dam- ages is by petition for appointment of viewers under this act. Danner vs. City of York, 12 York, 9. In the rural parts of a city the Act of 1891 provides a new and the only mode for reaching the lot owners directly. In the built up por- tions the act provides an additional mode of reaching the lot owners, to wit: On the basis of benefits, while they were previously liable only according to frontage. The petitioners may decide upon which basis the assessment is to be made. The act is not inconsistent with the provisions of the Act of May 23, 1889, P. L. 288. Hand vs. Fel- lows, 148 Pa. 456; McCall vs. Coates, 148 Pa. 462. With respects to sewers, mentioned in the first clause, but not in the second, and with respect to all for which property owners may petition, as mentioned in the second clause, the viewers have some- thing to do, but they have to do with nothing else. Grading and Curb- ing 17th & 18th Streets, 21 D. R. 1008, s. c. 1 West L. J. 72. The act provides an elaborate and complete system for the assess- ment of damages and benefits caused by the making of improvements. It is well settled that for such injury as is the direct, immediate, neces- sary and unavoidable consequence of the exercise of the power, a pro- ceeding before viewers is the appropriate remedy, but for injury by negligent performance of the work, the remedy is by action of tres- pass. Stork vs. Philadelphia, 195 Pa. 101, Barrett vs. Minersville, 38 Super. Ct. 76. An exception to an assessment as being too high is not well taken. The remedy is by appeal. The proportion of the cost to be paid by the city cannot be fixed by ordinance, as that is a matter within the province of the viewers. 12th Sevirer District of Scranton, 7 Lack. J. 170. The limit of special benefit is the limit of liability to special assess- ment. Where a ten inch sewer is sufficient, it is illegal to assess abut- ting property owners with a fifteen inch sewer. Park Avenue Sewers, 169 Pa. 433. Places of burial not used for private or corporate profit are exempt from liability for assessments for paving a road way. Pittsburgh vs. Calvary Cemetery Association, 44 Super. Ct. 289. (524). All cities in this Commonwealth shall have power, with- out petition of property owners, to grade, pave, curb, macadamize, and otherwise improve any public street or public alley, or part thereof, within their corporate limits: Provided, The ordinance or ordinances authorizing and directing such improvement shall be adopted and enacted by the afifirmative vote of three-fourths of the members elect composing the councils of the said cities, and shall be approved by the mayor or city recorder thereof. No such ordi- nance shall be finally adopted and enacted in a less period than thirty (30) days from the date of its introduction, and in the meantime copies of said ordinance shall be published in each of the official newspapers of such cities, once a week for three consecutive weeks, immediately following the introduction thereof, and in the event %7f, such, cities shall have no official newspapers, then in at least two weekly newspapers, published in the county in which the cities are situate, once a week for three consecutive weeks. Sec. 1, Act of May 22, 1895, P. L. 105, as amended by Sec. 1, Act of April 25, 1903, P. L. 301. This act was intended to authorize cities to improve streets partly or wholly at the expense of property owners specially benefited, with- out the latter's consent shown by a previous petition. Greenfield Ave., Pittsburgh's Appeal, 191 Pa. 290, reversing 21 Pa. C. C. 619; 8 D. R. 80; 46 P. L. J. (os) 245. An ordinance not published as required by the act is void. Fulton Street, 8 Super. Ct. 104; Capouse Ave., City of Scranton, 7 Lack. J. 360. This act does not apply to foot walks. Reynoldsville Boro. 22 Pa. C. C. 461. The ordinance requires a vote of three-fourths of the members elect of each council. Lowry vs. City of Scranton, 4 Lack. L. N. 317. (525). In exercising the power aforesaid all proceedings for the ascertaining of damages and the assessment of benefits incident thereto shall be as now provided by law in reference to payment of costs, damages and expenses of public improvements within muni- cipal corporations. Sec. 2, Act of May 22, 1895, P. L. 105. This section is not unconstitutional as extending, altering or amend- ing the provisions of a law by reference to its title only. Greenfield Ave., Pittsburgh's Appeal, 191 Pa. 290, reversing 21 Pa. C. C. 619; 8 D. R. 80; 46 P. L. J. (os) 245. (526). All municipal corporations of this Commonwealth in the grading of any street, lane, or alley, or any part thereof, shall be, and are hereby, authorized and empowered to use so much of the lots and lands abutting on the same for the construction of embank- ments, slopes, fills, and culverts, as may be necessary and proper for the completion of the improvement; and the assessment of dam- ages, costs, and expenses resulting thereby shall be regarded as other assessments of damages, costs, and expenses caused by the grading of streets, lanes, and alleys in said mvmicipalities, and shall be assessed and paid as is now provided by existing laws where land is actually taken for the laying out, opening, widening, ex- tending, vacating, or grading of streets, lanes, or alleys. Sec. 1, Act of July 8, 1919, P. L. 763, supplementing Act of May 16, 1891, P. L. 75. (527). The municipal authorities of any city in this Common- wealth may occupy private property for the purposes of slopes or embankments, whenever necessary or proper to do so by reason of the grading of any street or alley within the corporate limits. Sec. 1, Act of May 1, 1876, P. L. 86. 376 (528). The councils shall have power to provide for the payment out of the general revenue or by the property benefited, of all dam- ages done to private property by reason of the taking, injury or destruction of the same, by reason of slopes or embankments as aforesaid, or by the grading of streets or alleys within the corporate limits; and upon the petition of any person claiming damages, it shall be the duty of said council to appoint three discreet and dis- interested freeholders of the city as appraisers, to appraise the dam- ages of the petitioners and all others who may have sustained dam- ages as aforesaid, in the improvement of any particular street or alley, and make assessments therefor upon the properties benefited : Provided, That no one shall be entitled to damages, unless some one makes application for appraisers within thirty days after the com- pletion of the improvement; said appraisers having given personal notice to all parties demanding appraisers, and to all others by hand- bills posted along the line of the improvement, shall proceed to the discharge of their duties and shall make report to councils, and said councils may confirm their report or refer it back to the same or ether appraisers, with the like proceedings as in the first instance; and after confirmation by cotincils of any report, any person ag- grieved may appeal within twenty days to the court of quarter sessions, and the said court shall hear the appeal and fix and ascer- tain the damages and benefits ; and after the same shall have been finally determined, the said benefits shall be payable to the city treasurer for the period of thirty days, of which notice shall be served upon each property, and after that time the same shall be placed in the hands of the city solicitor for collection, who shall collect the same together with interest and five per centum as at- torney fees for collection. Sec. 2, Act of May 1, 1876, P. L. 86. (529). That the assessments herein authorized shall be prior liens, and shall not be divested by any judicial sale except for so much thereof as the proceeds of such sale shall be sufficient to dis- charge and pay, and may be recovered in the court of common pleas for the proper county, by action of debt to recover a general judg- ment against the debtor or debtors, as now provided by law, or proceedings thereon may be had by scire facias as in case of mechan- ics' liens; and the lien filed shall be prima facie evidence of the claim, and the judgment shall be entered by default thereon, unless the defendant or defendants file an affidavit of the nature of the defence as required in cases where the plaintiflF has filed his copy of the cause of action in such court, and the judgment and process thereon shall be with like effect as in other cases: Provided, That nothing herein contained shall apply to cities of the first or second 377 class: And be it further provided, That nothing in this act shall apply to cities of the fifth class, unless the same shall be accepted by an ordinance duly passed by a vote of two-thirds of each branch of the city councils, after notice given by pubUcation in two or more city papers by two insertions in each paper. Sec. 3, Act of May 1, 1876, P. L. 86. This section appears to be repealed as to the extent of liens and as to procedure by the Act of June 4, 1901, P. L. 364. This act does not contemplate a separate view and appraisement, but the property owner must submit his whole claim to the viewers and the court, and that part which he neglects so to submit must be taken to have been waived, and no second process can be had for its re- covery. Pusey vs. City of Allegheny, 98 Pa. 522. (530). Every municipal corporation shall have power to open, widen, straighten or extend streets or alleys, or parts thereof, within its limits, and to vacate streets or alleys, or parts thereof, upon the petition of a majority in number and interest of owners of property abutting on the line of the proposed improvement, to be verified by the affidavit of one or more parties, as in the preceding section; a majority in interest of owners of undivided interests in any piece of property, to be deemed and treated as one person for the purposes of petition. Every municipal corporation shall have power, when- ever the councils or authorities thereof shall deem it necessary, to open, widen, straighten or extend streets or alleys, or parts thereof, and to vacate streets or alleys, or parts thereof, without any petition of property owners : Provided, The ordinance or ordinances author- izing the same shall be adopted and enacted by the affirmative vote of three-fourths of the members elect, composing the councils of such municipality, and approved by the mayor, city recorder, or burgess thereof. No such ordinance shall be finally adopted and enacted in a less period than thirty (30) days from the date of its introduction, and in the meantime copies of said ordinance shall be published in each of the official newspapers of such municipality, once a week, for three consecutive weeks, immediately following the introduction thereof, and in case such municipality shall have no official newspapers, then in at least one newspaper published in the county in which the municipality is situate, once a week for three consecutive weeks. Sec. 9, Act of May 16, 1891, P. L. 75, as amended by Act of May 22, 1895, P. L. 106, and Sec. 1, Act of March 19, 1903, P. L. 35. For powers of City Planning Commission concerning streets, within, and for three miles beyond, the city limits, see Sees. (326) to (331) in- clusive. See Sec. (868). 378 This act creates two methods of procedure for opening, widening, etc., of streets. The publication of a copy of the ordinance is not required where the same is enacted in pursuance of a petition of a majority in number and interest of the owners of property abutting on the line of the proposed improvement. Ursinus College vs. Col- legeville Borough, 10 D. R. 642. An ordinance passed under the authority of this act cannot be the subject of review in the court of quarter sessions; the court of com- mon pleas alone has jurisdiction of these proceedings. Wyoming Avenue, 5 D. R. 767, s. c. 8 Kulp 269. A county is not a municipal corporation within the meaning of this act, consequently its provisions do not apply to a case of damages to property due to the erection of a county bridge. College Avenue Bridge, 9 D. R. 15; s. c. 13 York 93. "Vacation" of a street is intended to be included with widening, straightening and opening in the general term "improvement." Vaca- tion of Irvine Street, Pittsburgh, 40 P. L. J. (os) 219. This section does not provide an exclusive method of widening streets in a city. Locust Street, Lancaster, 10 Lane. 206. In order to widen or open a street it requires an enactment of an ordinance by an aiSrmative vote of three-fourths of the members elect of council. Petition of John F. Evans, in Lititz Borough, 14 Lane. 369, s. c. 7 Del. Co. 77. This section does not provide for an appeal from the decision of councils that a petition for the vacation of a street is sufficient. Ebe's Appeal, 10 D. R. 367; s. c. 48 P. L. J. (os) 361. An ordinance adopting a general plan of streets and not opening any particular street would not be a compliance with this act, and v/ould not authorize the opening of the street by the borough. Han- over and Plum Streets, 22 D. R. 664. "The line of the proposed improvement" means only those parts abutting on the portion of the street vacated, and the consent of owners farther along the street need not be obtained. Appccd of Joseph Gant, in re Irvine Street, Pittsburgh, 40 P. L. J. (os) 219. Under this act, a street cannot be opened where it appears that two of the persons who signed the petition, and who were necessary to make up a majority of owners, had only a parol agreement with their father to purchase the land, had paid no money on account of the purchase and had never taken possession. leva Street 12 Pa. C. C. 611, s. c. 3 D. R. 509, 41 P. L. J. (os) 468. The court of common pleas has no power to quash an ordinance fixing the grade lines and regulating the width of a footwalk in an established street, on the ground that a majoiitj;^ of the property owners had not petitioned for the improvement and that no notice had been given of the passage of the ordinance. Reynoldsville Bor- ough 22 Pa. C. C. 461. Where the owner of land donates a strip thirty feet wide for the use of the public as a street, and the city afterwards acquires thirty feet from the owner of land on the opposite side for the same purpose, the remainder of the donor's land will be held to abut upon the im- provement, and will be liable to assessments for benefits. Thirteenth Street, 16 Super. Ct. 127. Under this act assessments for benefits can only be levied against real estate abutting upon the improvements. Such assessments cannot 379 be levied against an owner personally, or against a street railway com- pany occupying a street improved, or against the tracks of a street railway laid on the street. Harriott Avenue, 24 Super. Ct. 597. In a proceeding to widen and straighten a street, already opened and in use as a highway, when private property jutting into the street has been taken, the damages sustained by the owner may not be assessed against other properties abutting on the street, as the other property owners had the use of the street for adequate purposes be- fore the proceeding in question, and they derived no particular or special benefit from the improvement itself, further than that which- they had in common with the rest of the community. In re William Street, Pittston, 13 Super. Ct. 266. Where a part of a street is vacated, owners of property abutting on a part of the same street which is not vacated are entitled to damages caused by the vacation. In re Melon Street, 182 Pa. 397, reversing 1 Super. Ct. 63. Assessments for benefits must be confined to the particular prop- erties which do in fact abut directly upon the line of improvement. Verona Borough's Appeal, 4 Super. Ct. 608; Morewood Arenue, 159 Pa. 20; Orkney Street, 9 Super. Ct. 604, affirming 194 Pa. 425. (531). In all cases where public roads, or parts thereof, in town- ships of this Commonwealth, connecting a city with a city, a city with a borough, or a borough with a borough, or connecting one part of a city with another part of the same city, shall have become inconvenient and burdensome, and shall require altering and widen- ing, or either altering or widening, to meet the requirements of pub- lic travel thereon, it shall be lawful for the court of quarter sessions, by the same process now provided for opening and laying out public roads, to alter and widen, or either alter or widen, such roads, vacat- ing such part or parts of the said old roads as are rendered useless by such alteration : Provided, That upon a petition, the width of the road so widened shall be fixed by the court, on recommendation of the viewers, and damages, taking into account benefits conferred, bhall be awarded and paid according to the provisions of the act of June thirteenth, one thousand eight hundred and thirty-six, and its supplements : Provided further, That, in addition to the powers con- ferred upon the viewers by this act, they are hereby authorized and shall assess the cost of such widening and altering, or either widening or altering, of such road to the respective cities and boroughs, or city and borough and townships, or township, as the case may be, in such proportion as to them may seem equitable and just, taking into consideration benefits derived by such widening and altering, or either widening or altering, to the cities or borough, or city and borough and townships, or township, connected by and throuerh which said such road may pass ; and in case such widening or altering, or either, is made necessary in part by the use of such road by a corporation, or corporations, then the viewers shall have further 380 power to assess such corporation, or corporations, such part of the cost of widening and altering, or either, as the viewers may agree is just and reasonable. Sec. 1, Act of April 3, 1903, P. L. 137, as amended by Sec. 1, Act- of June 1, 1907, P. L. 372. For powers of City Planning Commission concerning streets within and for three miles beyond, the city limits, see Sees. (326) to (331) inclusive. This act does not repeal the local act of March 24, 1868, P. L. 464, nor aflfect its application to a case where the viewers report against the imposition of the costs and damages on the municipalities men- tioned in the second proviso of the Act of April 3, 1903. Loyalsock Township Road, 26 Super. Ct. 219. (532). In all cases of assessment of damages for the opening or widening of any street or highway in any [borough,] city, [or other municipality,] in this Commonwealth, the award of damages, if any, shall include all damages due to the grade at which said street or highway is to be opened or widened, and the plan attached to the report of the viewers awarding the damages shall have therein a profile plan showing the existing grade, as well as the grade to which said street is to be opened and widened. Sec. 1, Act of June IS, 1915, P. L. 985. This act supplies the Act of May 26, 1891, P. L. 117, which applied only to cities. Where in proceedings under the Act of May 26, 1891, P. L. 117, viewers have allowed damages for the opening and grading of a street to an established grade, a subsequent purchaser of land abutting on the street cannot recover damages for the physical change of grade to the established grade. Scdgley Avenue, Lehigh Avenue, 217 Pa. 313, afBrming 14 D. R. 829; Thirteenth Street, 38 Super. Ct. 265. The right to damages for the change of grade in a street arises when the actual physical change is made and the statute of limitations begins to run only from that time. Richmond Street, 28 Pa. C. C. 531; t. c. 12 D. R. 391. The Act of May 26, 1891, P. L. 117, relates to damages resulting from an established paper grade of a street, and has no bearing upon the recovery of the expense of making the physical change. Greentree Avenue, 21 Super. Ct. 177; Lageman v». Pittiburgh, 47 Super. Ct. 493, affirming 58 P. L. J. 171. Viewers appointed under the Act of May 26, 1891, to assess dam- ages for the opening or widening of any street must prepare a schedule ©f benefit* and damages, and a plan showing the improvement, and tke properties taken, injured or benefited. McDermott vs. City of New Castle, 13 Pa. C. C. 474, s. c. 3 D. R. 221, 41 P. L. J. (os) 97. The claim of a property owner for the opening and grading of a street, including consequential as well as direct injuries, must be in- serted as an entirety, and if he omits any part of it, which he could legally assert at that time, he is estopped from afterwards setting it up. Tabor Street No. 1, 26 Super. Ct. 167; Lageman vs. Pittsburgh, 47 Super. Ct. 493. 381 Where damages are claimed for the opening, widening or change of grade of a street by an owner of land not abutting thereon, there must be a physical change of grade on the ground or an actual in- jury to the property. The injury must be proximate, immediate and substantial, and some right of property, or easement or privilege en- joyed by the owner, or access to his property, must be interferred with. Ogontz Avenue 225 Pa. 126. When the city undertakes in one proceeding to both open and grade a street and actually completes the physical change there is no ques- tion as to the right of an owner to recover any damages he may suf- fer from the grade and there is no necessity for making a record of what the grade regulation is, for the regulation has been executed and the record is upon the ground. The omission in such a case of a profile plan is a mere irregularity and not a jurisdictional defect in the report of viewers. Carlisle Street, 55 Super. Ct. 223. In a case where a jury of viewers has been appointed under the Act of 1891, and they have filed their report, the owner of land abutting on the street in question cannot wait until the actual physical grading of the street many years after, and then demand the appointment of another jurji- to appraise his damages. Dettra vs. Philadelphia, 245 Pa. 139. When the city serves notice upon the property owners of its in- tention to open the street, the right to the damages, as well as the right to maintain an action to recover them, immediately accrues to those who are at that date the owners of the abutting land. North Front Street, 52 Super. Ct. 345. The Act of 1891 refers only to the assessment of damages for the opening or widening of a street, it does not refer to the change of grade of any street. Frick vs. Philadelphia, 60 Super. Ct. 283. In a case where a street is widened and the grade subsequently changed, followed by an ordinance for curbing and paving, a proceed- ing under the Act of 1891 would include all elements of damages arising under the several actions of the municipality. St. Francis Sis- ters vs. Millvale Boro., 69 Super. Ct. 302. (533). The majority in interest and number required for peti- tions to councils shall be fixed as of the date of the preseatation of said petition. After the passage or approval of any ordinance for the opening, widening, straightening, extending, grading, paving, macadamizing or otherwise improving any street or alley, notice shall, within ten days thereafter, be given by hand-bills posted in conspicuous places along the line of the proposed improvement, which notice shall state the fact of the passage or approval of the ordinance, the date of the passage or approval, that the petition for the improvement was signed by a majority in interest and num- ber of owners of property abutting on the line of the proposed i- provement, and that any person interested and denying the fact that said petition was so signed, may appeal to any court of common pleas of the proper county within sixty days from the passage or approval of said ordinance, and any person interested may, within sixty days from the passage or approval of said ordinance, present 382 a petition to any court of common pleas of the proper county setting forth the facts* whereupon the said court shall inquire and determine whether said improvement was petitioned for by the^ requisite major- ity, and if said court shall find that it was not so petitioned for, shall quash said ordinance, but if said court shall find that it was : petitioned for, it shall approve the ordinance. If no appeal shall be taken as aforesaid, or if the court on appeal shall approve the ordinance, the municipal corporation may proceed with the improve- ment, and thereafter all parties interested shall be estopped from denying the fact that said petition was signed by the requisite major- ity of property owners as required by this act. All assessments for benefits to pay damages, costs, and expenses shall bear interest at the expiration of thirty days after they shall have been finally ascer- tained and fixed, and shall be payable to the treasurer or other proper officer of the municipality. Sec. 10, Act of May 16, 1891, P. L. 75. "The majority in interest and number of owners of property abut- ting on the line of the proposed improvement," means the majority of owners on the portion of the street to be actually improved, and not the majority of the owners on the whole of the street. Speer vs. Pittsburgh, 166 Pa. 86; Cooper vs. Bellevue Bore, 51 Super. Ct. 602; Union Alley, 9 D. R. 209, s. c. 3 Dauphin 76. The question whether or not the requisite majority have signed the petition cannot be raised on exceptions to the report of viewers. In re Viewers, 65 P. L. J. 43; Beechv/ood Avenue, 194 Pa. 86. No appeal lies from a decision of the court of common pleas de- termining whether a public improvement was petitioned for by a ma- jority in interest and number of owners of property abutting on the line of the proposed improvement. Diamond Street, Pittsburgh, 196 Pa. 254. Under this act, no appeal lies from an ordinance vacating a street. "Otherwise improving any street" does not embrace the vacating of a street. D. of A. R. vs. Schenley, 204, Pa. 572; Nocton vs. Railroad Company, et al., 20 Montg. 25 s. c. 74, 81, 194. The appeal to the common pleas for which provision is made by this section relates to a single matter. The subject there to be de- termined is whether the contemplated improvement was petitioned for by the requisite majority of property owners. Heller's Appeal, 16 D. R. 647, s. c. 10 North, 334. The failure to give the notice pro'.'ided for in this section is not in itself fatal to the borougli's claim for the cost of the improvement. Duquesne Borough vs. Keeler, 213 Pa. 518. Where the report of viewers states that they gave due and lawful notice of their meeting, proof of such notice is not necessary. The presumption is in favor of the regularity of the notice. Howell vs. Morrisville Borough, 29 Pa. C. C. 1. Though the act does not specifically provide for the costs of appeal thereunder, a fair consideration of its terms makes the municipality properly chargeable with such costs. Ebc's Appeal, 10 D. R. 370, s. c. 48 P. L. J. (os) 363, 383 Benefits assessed against a property owner under this ^ct are c - clusively presumed to be only so much as represent the benent to his property by the public improvement, and he cannot claim exon- erations upon the payment of such benefits. Lamberton vs. City ot Franklin, 15 D. R. 739, s. c. 7 Lack., J. 290. Property owners who are awarded damages for the grading ot streets abutting their property, are entitled to interest from the final confirmation of the viewer's report. Moony vs. Pittsburgh, 47 P. L. J. (os) 370. (534). The municipal authorities may require sidewalks, board- walks and curbstones to be laid, set and kept in repair, and after notice to the owner or owners of property to lay, set or repair such walks or stone in front of his, her or their property, and his, her or their failure to do so, the said municipal authorities may do the necessary work and assess the cost thereof upon the property of said owner or owners in front or along which said walk or curbstone so laid, set or repaired, shall be situate, and file a lien therefor or collect the same by action of assumpsit. Sec. 11, Act of May 16, 1891, P. L. 75. A county is not a municipal corporation within the meaning of this act. College Avenue Bridge, 9 D. R. 15, s. c. 13 York 93. The provisions of this section, except as to filing liens, are simply declaratory of existing law. The title of the act is neither defective nor misleading so as to require the courts to declare it void. Pitts- burgh vs. Daly, 5 Super. Ct. 528. Before a city can file a lien with the added penalties for laying a side-walk, notice must be given to the owner of the property. Pitts- burgh vs. Fay, 8 Super. Ct. 269. In the absence of notice the owner is neither liable for the whole cost nor any part of it. Pittsburgh vs. Biggert, 23 Super. Ct. 540; Angle vs. Stroudsburg Borough, 29 Super. Ct. 601; Shady Avenue, 34 Super. Ct. 327. A railroad company owning property abutting on a street is sub- ject to a municipal ordinance requiring the laying of a pavement, and^ where the company, after notice, fails to perform the work, the municipality itself may proceed therewith and collect the cost from the company. A justice of the peace has no jurisdiction in such a case in an action of assumpsit, especially where the amount is more than one hundred dollars, Mt. Joy Borough ts. R. R. Co. 11 D. R. 765; 8. c. 19 Lane. 217, 8 North 247. (c)' Refund of Moneys Erroneously Paid As Assessments For Street Improvements. (535). Whenever any city, [borough, or incorporated town,] within this Commonwealth shall have, under existing laws, paved, curbed, and guttered, or otherwise improved, its highways, or any of them, or has opened or graded or acquired or condemned property in or along its highways, or any of thewi, at the expense in whole 384 or in part of the owners of property bounding and abutting there- on, and such owners or any number of them shall have paid the assessments, levied against them by such city, [borough, or in- corporated town,] or by viewers, for such improvement, into the respective treasury, — the said cities, [boroughs, or incorporated towns] are hereby authorized and empowered to refund to the said owners, or to their heirs or assigns, the amount of the assessment thus paid by them, if it shall have been determined by any proceed- ing at law or in equity by a court of competent jurisdiction that the owners of property bounding or abutting on said highway or highways were not liable for the payment of such improvement at the time such improvement was ordered by the council of said cities, {boroughs, or incorporated towns] to be made. Sec. 1, Act of July S, 1917, P. L. 682, as amended by Sec. 1, Act of March 21, 1919, P. L. 20. (d) Assessments Against Property to Pay Cost of Street Improvements. Issue of Bonds Payable by Assess- ments in Semi-Annual Instalments. (536). In addition to the present method provided by law for the payment and collection of the costs and expense of the permanent paving and improvement of any streets, alleys and other highways, or parts thereof, by the cities of this Commonwealth, said cities shall have power to ordain that said costs and expense may be paid and collected in accordance with the provisions of this act. Sec. 1, Act of June 12, 1893, P. L. 453. (537). In order to provide for the payment of the cost and ex- pense of such improvements, the councils of the cities of this Com- monwealth may, from time to time, issue their bonds in such sums as may be required, in all to an amount not exceeding the cost and expense of such improvement and interest thereon. Said bonds shall bear the name of the street or alley to be im- proved. They shall be payable at a period not less than five years from the date of their issue, to be provided in the ordinance direct- ing the improvement, and bear interest at a rate not exceeding six per centum per annum, payable semi-annually, on the first day of July and January. Sec. 2, Act of June 12, 1893, P. L. 453. (538) . In all cases where it may be necessary to obtain the assent of the electors to an issue of bonds, the question of thus increasing the city debt shall be so submitted to the electors that they shall have the opportunity of voting for or against the issue of bonds for the 385 25 improvement of any partictllar street or alley, separately and apart from the question of increasing the city debt for the improvement of any other street or alley. Sec. 3, Act of June 12, 1893, P. L. 453. (539). Said bonds shall be negotiated at not less than par as other bonds of said cities are negotiated, and the proceeds thereoi applied solely to the payment of the cost of said improvement. The contract price of the same and interest thereon to the first day, when interest thereon is payable, shall be taken as the cost of said improve- ment, to be assessed on the property benefited, according to existing laws in each of said cities. Sec. 4, Act of June 12, 1893, P. L. 453. (540). Such assessments shall be entered in the proper municipal lien and judgment docket in the prothonotary's office, and shall, H filed within six months from the completion of the improvements, without the issuing of a scire facias to revive, remain a first lien upon the property assessed until fully paid, having precedence of all other liens, except taxes, and shall not be diverted by any judicial sale, unless the payment of the same is provided for from the proceeds of such sale. The assessment shall state the name of the city claimant, the name of the owner or reputed owner, a reasonable description of the property, the amount claimed to be due, for what improvement the claim is made, and the time when the assessment was finally confirmed or made. Sec. 5, Act of June 12, 1893, P. L. 453. This section would seem to be partly repealed by the Municipal Claim Act of June 4, 1901, P. L. 364. See notes to P. & L. Digest, Vol. 3, Col. 5284, Sec. 43. (541). Such assessment shall be payable at the city treasurer's office in equal, semi-annual instalments, with interest, at the rate provided in said bonds, from the date to which interest was com- puted on the amount of the assessments, or so much as remains un- paid from time to time, until all said assessments and interest arf fully paid. The money so received by the city treasurer shall be applied to the sinking fund. Sec. 6, Act of June 12, 1893, P. L. 453. (542). In case of default in the payment of any semi-annual in- stalment of said assessment and interest for a period of sixty days after the same shall become due and payable, the entire assessment and accrued interest shall become due and payable and the city 386 solicitor shall proceed to collect the same under the provisions of general laws creating and regulating municipal liens and proceed- ings thereon. Sec. 7, Act of June 12, 1893, P. L. 453. (543). Any owner of property against whom an assessment shall have been made for such improvement shall have the right to pay the same, or any part remaining unpaid, in full with interest thereon to the next semi-annual payment due on said assessment ; such pay- ment shall discharge the lien. If any owner shall subdivide any property after such lien attaches, he, in like manner, may discharge the same upon any subdivided portion thereof by paying the amount for which said part would be liable. Sec. 8, Act of June 12, 1893, P. L. 453. (e) Grading and Improving Streets Adjoining Public Buildings, By City and County. (544). The county commissioners of counties now erecting or which may hereafter erect public buildings in any city of this Com- monwealth shall be authorized and empowered, and they are hereby authorized and empowered, by and with the approval of the court of common pleas, or if there be more than one of su.ch courts then by and with the approval of all the courts of common pleas of such county, to join with the proper authorities of such city in the grad- ing, regrading, paving, repaving and improvement of so much of the streets and highways as are in, upon or alongside of the grounds upon which said public buildings stand, and said commissioners are further empowered to enter into contract with any such city authorities for the payment of a just proportion of the expense of said grading, regrading, paving, repaving and improvement of said streets and highways, and said commissioners are further empowered to appropriate from the county treasury sufficient funds for this purpose. Sec. 1, Act of May 24, 1887, P. L. 203. This act does not render a county liable for the negligence of its ofKcers in failing to keep in good condition the sidewalks in the public street in front of the county buildings. Bucher vs. Northumberland County, 209 Pa. 618. (545). Said commissioners are further empowered to act with any committee or committees, which may be appointed by such city authorities, to establish grades, determine the kind and quality di paving materials to be used, and to ratify the contracts entered into by said city authorities in the course of said improvements, and no obligation shall rest upon the county to which said improvements 387 shall be made for any proportion of the expense thereof until the selections of grades and paving materials and the acceptance of bids by said city authorities shall have been ratified by said com- missioners and approved by the court or courts of common pleas, as provided in the first section of this act. Sec. 2, Act of May 24, 1887, P. L. 203. (f) Improvement of Highways on City Boundary Lines. (546). Whenever any street, alley, or highway, entirely within the limits of any city, [borough, or township,] shall divide the said city, [borough, or township] from any other municipality or town- ship located in the same county, the property on the side of said street, alley, or highway, opposite the present line of said first- named municipality, [borough, or township,] shall, for a depth of one hundred and fifty feet from said line, be assessed for any and all municipal improvem.ents to or on the street's, alleys, or highways on which the said property shall abut, in the manner provided by the acts of Assembly for assessments of benefits and damages, as if the said property were entirely located within the limits of said first- named municipality, [borough, or township.] Sec. 1, Act of May 28, 1907, P. L. 287. This act is constitutional and does not violate the constitutional prohibition against the passage of local or special laws. Ben Avon Boro. vs. Crawford, 64 Super. Ct. 163. (547). Whenever the center line of any highway constitutes a dividing line between a city and a township located in an adjacent county, it shall be lawful for the commissioners of the county and for the commissioners or township supervisors of such township, as the case may be, to enter into a contract with the city provid- ing for the grading, curbing, macadamizing, or paving of the roadway of said highway, the cost thereof to be borne one-half by the city, and one-half by the township and the county in which such township shall be situated in equal portions. Sec. I, Act of June 20, 1919, P. L. 513. (548). The said alteration or improvement shall be constructed, and subsequent repairs shall be made, under the supervision of the proper authorities of the said city, in compliance with existing laws governing such construction or improvement of such city, and in further complinace with plans and specifications to be agreed upon in writing between such city and the commissioners of the county and the commissioners or township supervisors of the said township. The cost of repairs shall be borne OHc-half by the city, and one-half 388 by the township or by the county and townhsip in equal portions or such other proportion as may be agreed upon by the county and township. Sec. 2, Act of June 20, 1919, P. L. 513. (549). In all cases in which it shall be found impossible to enter into such contract or agreement as is provided for by the first sec- tion of this act, or where either the city or the township or the county in which such township is situated shall refuse to enter into such contract or agreement, it shall be lawful for either the city or the county or township to present its petition to the court of com- mon pleas of either county, setting forth the facts and circumstances, including the condition of the highway from which the necessity or desirability for the grading, curbing, macadamizing, or paving of the roadway appeiars, and the estimated cost thereof, and that the terms of the said contract as provided for in section one cannot be agreed upon by the said city and the county or township, or either or any of them, or that either such city or the county or township, or any or either of them, refuses to enter into such contract. Such petition may pray that such court may, after hearing all the parties concerned, make its order or decree, defining the nature and character of the improvement reasonably necessary or desirable to be made to the roadway, and requiring the parties hereinabove specified to enter into a contract or contracts for the making and constructing of the same as herein provided for. A copy of the said petition, duly certi- fied, shall be served upon the city or the county and township con- cerned, other than the petitioner, with notice of such day as may be fixed by the court for the hearing. Thereupon either or both of the parties served with such notice shall be entitled, on or before such date, to file in the said court its answer to the said petition, setting forth its version of the facts or such other matters in relation thereto as may be deemed necessary or proper by it. The said court, upon the date so fixed or at such other time as it may appoint, shall hear the evidence of the parties, or it may refer the matter to a master, who shall hear the testimony of the parties and report his findings, in the same manner and under the same procedure as provided by the rules in equity in similar cases, to the said court, which may reject, confirm, or modify the same, and may make its decree or order directing the making of such alterations or improvements to the roadway as may be deemed reasonably necessary or desirable and providing for the sharing of the cost of such improvements, one- half by the city, and one-half by the county and township in equal portions. The said order or decree may further provide that the repairs to such alterations and improvements subsequently required shall be borne one-half by the city, and one-half by the county or 389 township in equal portions or such other proportions as between the county and the township as such court may find to be legal and proper; and thereupon the said grading, curbing, macadamizing, or paving of the roadway of such highway shall proceed in accordance with the decree or order of the said court in the same manner as if the contract or agreement provided for in the first section of this act had been entered into and duly executed. Sec. 3, Act of June 20, 1919, P. L. 513. (550). Whenever the center line of any highway constitutes the dividing line between any city [or borough] and a township located in the same county, it shall be lawful for the commissioners of the county and for the commissioners or road supervisors of such township, as the case may be, to enter into a contract with the city [or borough,] providing for the grading, curbing, and macadam- izing, or paving, of the roadway of said highway; the cost thereof to be borne one-half by the city [or borough] and one-half by the county and township, in equal portions. Sec. 1, Act of May 20, 1913, P. L. 267. (551). The said alteration or improvement shall be constructed, and subsequent repairs shall be made, under the supervision of the proper authorities of the said city [or borough,] in complinace with existing laws governing the construction of such alterations or im- provements in said city [or borough,] and in further compliance with plans and specifications to be agreed upon, in writing, between said city [or borough] and the commissioners of the county and com- missioners or road supervisors of the said township. The cost of re- pairs shall be borne one-half by the city [or borough] and one-half by the tov/nship, or by the county and township, in equal portions, or such other proportion as may be agreed upon by the county and township. Sec. 2, Act of May 20, 1913, P. L. 267. (g) Maintenance and Improvement of Streets Connec- ting County Roads. (552). When a municipality intervenes between two ends of a county highway, and the municipality has failed to properly im- prove the municipal streets or highways constituting the shortest and most reasonable route through said municipality, which will connect the two ends of such highway, it shall be lawful for the councils of such municipality to authorize, by ordinance, that the proper corporate authorities of the municipality contract, in the manner herein provided, with the county commissioners, that the shortest and most reasonable route through said municipality con- necting the two ends of such highway be improved. 390 Or, when a county highway terminates at the corporate limits of a municipality in the same or in another county, and connects with a municipal street or alley which the municipality has failed to properly improve, and the county commissioners of the county in which the municipality is located deem the improvement of such municipal street or alley necessary, in order to make such county highway easily accessible to the residents of the municipality or to the traveling public, it shall be lawful for the councils of such municipality to authorize, by ordinance, that the proper corporate officials of the municipality contract with the county commissioners, in the manner herein provided, that such municipal street or alley, or any part thereof, be improved ; and also that there be improved, when necessary, any part or parts of the streets connected there- with which connect the said county highway with the business dis- trict or districts of said municipality, or with a system of improved streets therein, or which connect the said highway with another county highway terminating at the limits of said municipality. If several municipalities are contiguous to each other, and at the cor- porate limits of any one of them a county highway terminates, and one or more of such municipalities have failed to properly improve any municipal street or alley therein, and the county commission- ers deem the improvement of such street or alley necessary, in order to make such highway easily accessible to the residents of the munici- pality or to the traveling public, it shall be lawful for the councils of such municipality or municipalities to authorize the proper cor- porate authorities to enter into a similar contract with the county commissioners. The county commissioners shall have the power to improve said streets or alleys as herein provided, and said powers herein given shall also include the right to widen, repave, or other- wise improve said municipal streets and alleys, whenever the same is necessary to accomplish the purpose herein conferred. When- ever an improvement is made to a municipal street or alley pursuant to this section, it shall be lawful for the county to pay the total cost of such improvement, or the cost may be divided between the muni- cipality and the county. The municipal ordinance authorizing the improvement shall stipulate what percentage of the cost, if any, shall be borne by the municipality, and what percentage of the cost shall be borne by the county. /The contract for any such improvement may be taken by the county, upon the stipulation by the municipality to pay its proportionate share of the cost, if any, upon the comple- tion of the work; or it may be taken by the municipality, upon a like stipulation of the county; or the improvement may be made by joint contract. When municipal streets or alleys are widened or improved by the county, in the manner herein provided, and special benefits result therefrom to abutting property, the munici- 391 pality shall collect such bspefits in the manner now provided by law, and shall apply the amount thereof to its share, if any, of the cost of such improvement. Before any municipal street or alley is improved under this sec- tion, the county commissioners and the proper corporate authori- ties of such municipality shall agree upon the maintenance of such municipal street or alley. Such agreement may provide that such municipal street or alley shall be kept and maintained in good re- pair by the municipality, in which case upon the completion of said road all further liability and responsibility of the county shall cease and determine, or it may provide that it shall be kept and maintained in good repair by the county, and the share of the munic- ipality shall be paid annually to the county. The proper corporate authorities of such municipality shall have the right to issue permits determining the manner in which public service corporations or individuals shall place, on or under or over such municipal streets or alleys, railway tracks, pipes, conduits, telegraph lines, or other devices used in the furtherance of business ; and nothing herein contained should be construed to in any way affect or impair the rights, powers, and privileges of the municipality in, on, under, over, or through the public streets or alleys of such municipalities, except as herein provided. Sec. 18, Act of May 11, 1911, P. L. 244, as amended by Sec. 1, Act of April 14, 1915, P. L. 116. This act does not prevent the improvement of borough streets at the expense of the county alone. Martindell vs. Berry, 59 P. L. J. 503; 10 Just. L. R. 58. Where the county commissioners of a county and the authorities of a borough co-operate to pave a width of sixteen feet of a public road extending through the borough, and agree that the county shall pay two-thirds of such improvement and the borough one-third thereof, abutting owners although they petitioned for the improvement, can- not be assessed for the one-third cost thereof payable by the bor- ough. In such a case where the borough at the same time improves the portion of the road or street outside of the strip of sixteen feet paved, the borough may impose the cost of the latter improvement upon the abutting owners, but in proceedings to assess benefits, the width of the road outside of the strip of sixteen feet paved must be made to appear as also the cost of the improvement outside the limit of such strip, so that no portion of the cost of paving the strip shall be imposed upon the abutting owners. Dormont Borough, 64 Super. Ct. 134. (h) Improvement of Highways Outside City Limits. (554). The counties, cities, and boroughs of this Commonwealth may, singly or jointly, appropriate and expend moneys for the im- provement of highways outside of the limits of such cities or bor- 392 oughs, for the purpose of connecting improved streets in such cities or boroughs with a State highway or State-aid highway: Provided, however, That the part of the highway to be improved to make such connection outside of the city or borough limits shall be less than one mile in length. Sec. 1, Act of May 23, 1913, P. L. 336. (i) Maintenance of Turnpikes. (555). When any turnpike, or part thereof, has been, or may here- after be, appropriated or condemned for public use, free of tolls, under any existing laws, and the assessment of damages therefor shall have been paid by the proper county; or when any turnpike company or association has heretofore abandoned or may hereafter abandon its turnpike, or any part thereof; or when any turnpike com- pany or association, owning any turnpike, has heretofore been dis- solved, or may hereafter be dissolved, by proceedings under any existing laws of this Commonwealth, such turnpike, or part thereof, shall be properly repaired and maintained at the expense of the [county,] city, [or borough] in which the said turnpike, or part thereof, lies, or the same may be improved, under any existing laws, by the said [county,] city, [or borough.] Sec. 1, Act of April 20, 1905, P. L. 237, as amended by Sec. 1, Act of April 25, 1907, P. L. 140. These acts are constitutional. The Act of May 10, 1909, P. L. 499, repealing them, was itself repealed by the Act of March 15, 1911, P. L. 21, and such repeal revived the former acts. Manchester Super- visors vs. Wayne County, 257 Pa. 442; Winters vs. Koontz, 60 Super. Ct. 134, affirmed in 251 Pa. 164. (j) Streets, Lanes and Alleys in Village and Town Plots Not Used for Twenty-One Years Not to Be Opened Without Consent of Owner, (556). Any street, lane or alley, laid out by any person or per- sons in any village or town plot or plan of lots, on lands owned by such person or persons, in case the same has not been opened to, or used by, the public for twenty-one years next after the laying out of the same, shall be and have no force and effect and shall not be opened, without the consent of the owner or owners of the land on which the same has been, or shall be, laid out. Sec. 1, Act of May 9, 1889, P. L. 173. A failure to open and use a street within twenty-one years after its dedication will not operate to effect an automatic vacation thereof. Barnes vs. Railroad Co. 27 Siiper. Ct. 84, affirming 30 Pa. C. C. 479, 13 D. R. 363. 393 The statutory limitation begins to run from the date of the actual laying out of the plan. The sale of lots and the acknowledgment and recording of the plan are simply evidence of that fact. Glass Co. vs. Brackenridge Boro. 226 Pa. 89, affirming 56 P. L. J. 251. In a case where there has been a dedication of land as a public street, and an acceptance thereof by resolution of the municipal authorities, but no opening or use by the public within twenty-one years after the dedication, the municipality has no authority or do- minion over it. City of Chester vs. Thurlow Land Co. 13 D. R. 285, s. c. 9 Del. Co. 51. After the statutory period, if no action has been taken to subject the street to public use, the servitude imposed by the owner upon his land for such use is removed, and the street is of no force or aflfect as a public highway. The land is discharged from such servitude and the dedicated portion of it has entirely lost its character as a public street. Scott vs. Donora Southern R. R. Co. 222 Pa. 634. The act has no retroactive effect and does not apply to a street that was accepted by the municipality and was in use at least by railroad companies having municipal franchises to operate upon it before the passage of the act. Pittsburgh vs. P. & L. E. R. R. Co. 263 Pa. 294, affirming 65 P. L. J. 287. A highway laid out on a plan of lots, which has not been opened to or used by the public for twenty-one years after laying out of same, cannot be opened by the mufaicipality without consent of owners, un- less compensation is made in accordance with law. Shamokin vs. Yost 4 Northum. 156. Where, on a plot of lots, land is indicated as a street by the owner thereof, and it has not been opened or used for a period of more than twenty-one years, the act applies. The question whether there has been a dedication for public use is one for determination by a jury. Shamokin vs. Halt 250 Pa. 80; affirming 2 N. L. J. 175; 7 M. L. R. 97. Where a street has been dedicated to public use, and part of it has been opened and used under authority of dedication, this act cannot be invoked to prevent the opening and using of the remaining portion of the street. St. Francis Sisters vs. Millvale Boro. 69 Super. Ct. 302; Hawkes vs. Philadelphia 254 Pa. 346. This act does not apply to an alley or street shown on a plan of lots laid out many years prior to the passage of the act, and used as an open way of some width by the public generally as occasion required. Bond vs. Barrett 50 Super. Ct. 307. The act does not apply to a plan of streets made by a municipality without the owners of the land having participated therein or dedi- cated the streets to public use. United Brethren Congregation vs. Emaus Borough 56 Super. Ct. 136. The act has no application to a street, one part of which has been opened for years, and the remaining part has been freely used by the public. Shetter et al. vs. Welsel et al. 15 Dauphin 175. In a case where lots were sold according to a plan showing them to be on a street, and the grantees continued in possession to the middle of the street for a period of more than twenty-one years, when the municipality opened the street to public use, a claim for damages for such opening will be sustained. Quicksall vs. Philadelphia, 177 Pa. 301; Woodward vs. Pittsburgh, 194 Pa. 193; reversing 46? L J (os) 422. 394 This act is not retroactive in effect so as to apply to streets opened and used prior to its passage. Osterheldt vs. Philadelphia 195 Pa. 355; State Road 236 Fa. 141; Hill vs. Wilkinsburg 61 P. L. J. 262, s. c. 4 M. L. R. 231. In an action for damages for opening a street, it is for the jury to determine under all the circumstances whether there was an adequate prior opening of the street and an effectual acceptance by the public. Seibert vs. Berks Co. 18 D. R. 56; s. c. 1 Berks Co. 218. The act refers only to unused streets, and either technical opening or the fact of public use is enough to take the street out of the opera- tion of the act. Sturges' Appeal, 240 Pa. 44, affirming 13 L'kck. J. 67. Where a street has been dedicated to the public use by the record- ing of a plan of lots, and the street, has been accepted by the city, no one can acquire title to a portion of the street by any length of adverse use. The act does not apply to such a case. McGuire vs. Wilkes-Barre, 36 Super. Ct. 418; Hileman vs. HoUidaysburg Bore, 47 Super. Ct. 41 ; Corbett vs. Wilkes-Barre, 38 Pa. C. C. 565, s. c. 15 Luz. L. R. Rep. 163; 2 M. L. R. 65. This act has no application where the rights of purchasers or the public have attached. Montgomery vs. Haymaker, 18 D. R. 1009, s. c. 57 P. L. J. 9. V/here land has been dedicated to the use of a street, but the street has not been opened for a period of twenty-one years and has not been used by the public as a street for that period, the original dedi- cation will not bind the owner, and the street cannot be opened with- out his consent. Seminary vs. Washington Borough, 18 Super. Ct. 555. This act relieves land upon which streets have been laid out by the owner, but not opened or used for twenty-one years, from the servi- tude imposed. If the municipality proceeds to open the street after that time, the owner is entitled to damages. Oakley vs. Luz. Borough, 25 Super. Ct. 425. (k) Vacation of Streets Unopened for Thirty Years. (557). The municipalities of the Commonwealth shall have the power and authority to vacate, in whole or in part, all streets, lanes and alleys within their corporate limits, laid out by this Common- wealth, whenever the same, or the portion to be vacated, shall have remained unopened for a continuous period of thirty years next pre- ceding such vacation. Sec. 1, Act of March 21, 1905, P. L. 46. For powers of City Planning Commission concerning the vacation of streets within, and for three miles beyond, the city limits, see Sees. (326) to (331) inclusive. (558). In exercising the power aforesaid, all proceedings for the ascertainment of damages, and the assessment of benefits incident thereto, shall be as now provided for by law in reference to payment of costs, damages and expenses of public improvements within munic- ipal corporations. Sec. 2, Act of March 21, 1905, P. L. 46. 395 On a case stated to determine the validity of the title to land which plaintiffs had agreed to convey to defendant "free and clear of all liens and encumbrances," but which defendant refused to accept, where it appeared that part of the land had been laid out as a public street, although never opened through the lands of plaintifis, its vacation under this act made the land liable to possible assessment for benefits, and judgment was properly entered for defendant. Shoub vs. Dun- bar, 256 Pa. 311, affirming 64 P. L. J. 647. (1) Vacation of Alleys, Lanes and Passageways Which Constitute Nuisances, (559). From and after the passage of this act, where the bureau of health or health officers of any city, [county, township or borough or district] in the State shall declare as a public nuisance and menace to health any alley, lane, or passageway located therein, used wholly or partly by the public, that thereupon any two or more owners of property, adjacent, contiguous, or abutting upon the same, may present their petition, duly verified by oath or affirmation, to the court of quarter sessions of the said city or county in which the said alley, lane or passageway is located, setting forth the facts regarding the said nuisance, and praying that the said alley, lane, passageway, or so much thereof as may be necessary, be vacated; which said petition shall be accompanied by a certificate of the bureau of health or health officers, setting forth that they have declared the said alley, lane, or passageway to be a public nuisance and menace to health. That thereupon the said court shall appoint a jury of view, of three men, being duly qualified resideiits of the city [or county] where the proceedings are had. That the said jury, being duly sworn or affirmed to faithfully perform their duties, shall give notice to the abutting, contiguous, and adjacent property owners, or others that are likely to be affected by the proceedings, of the time and place of the first meeting, in such manner as the court may direct; and after the said first meeting, the jury shall proceed to view the prem- ises, and inquire into and take testimony in the manner usually pur- sued by juries of view in the opening of streets and the like; and then to present and file in the court of their appointment their re- port, in writing, of their findings and recommendations as to whether or not the said alley, lane, or passageway, or so much thereof as may be necessary, be vacated, and awarding the damages, and assessing the benefits, if any, to the properties affected thereby: Provided, That after they shall have prepared their report, the jury shall give notice, in writing, to all the parties to be affected by the said report, at least ten days before the day therein named for its filing, that the same is open to inspection, at a place within the said city or county named therein, within which period any party or person ag- grieved thereby shall have the right to file with the jury exceptions 3% thereto; whereupon it shall be the duty of the said jury to proceed to reconsider their report with the exceptions; and if the same or any part thereof are, in their opinion, in part or in whole, well founded, then it shall become their duty to modify their said report as justice may require, and thereupon file the same in the court of their appointment. If, however, no exceptions be filed within the period of the notice, then it shall be the duty of the said jury, at the expiration of the said period, to forthwith file its said report in the court of their appointment: Provided further, That any party or person affected by the said report shall have, after the same is filed in the court aforesaid, the right to appeal to the court of com- mon pleas of the city or county where the proceedings are had, within thirty days after the filing of the said report; whereupon the appeal shall, as to the parties thereto, proceed in the same man- ner as actions of trespass are now conducted. At the end of the period allowed for appeal, the said report shall be absolutely con- firmed by the court aforesaid, as to such awards or assessments of benefits from which no appeals have been taken : Provided, That this act shall not apply in any case where the vacation of such alley, lane, or passageway shall wholly deprive any lot or lots of ground abutting thereon of the sole means of ingress or egress to or from such lot or lots. Sec. 1, Act of June 8, 1907, P. L. 503, as amended by Act of June 19, 1911, P. L. 1036. This act is a verbatim re-enactment of the Act of April 17, 1905, P. L. 193 as amended by Act of June 20, 1911, P. L. 1087, except that the Act of 1905 contains at the end thereof the following exception: "otherwise than to or from the front line or main line thereof: And provided further, That tbe provisions of this act shall not apply to any alley, lane or passageway, created or existing by grant or con- tract, and not heretofore accepted by the public authority of the city, borough, or township in which the same may be located." (m) Recording of Ordinances Vacating Streets, Lanes and Alleys. (560). That whenever the municipal authorities of any munic- ipality of this Commonwealth have vacated, or shall hereafter vacate by ordinance, any public street, lane, or alley, or part thereof, it shall be lawful for the person or persons who shall become the owner or owners of such vacated street, lane, or alley, or part there- of, by operation of law or otherwise, to record a certified copy of such ordinance in the recorder's office of the proper county, and the recorder shall index the same as a conveyance from such munic- ipality to such owner or owners. Such ordinance shall be certified from the records of such municipality, under the hand af its secretary or clerk, and under the seal of such municipality: Provided, That 397 such certified copy of such ordinance shall be accompanied by the application of such person or persons, to the recorder of deeds of such county, to record such ordinance, and that he or they, making the application, are the owner or owners of the whole or part of such street, lane, or alley vacated, to be verified by the affidavit of such person or persons as to the truth of the facts in said applica- tion stated, which application shall be recorded with said copy of Euch ordinance. Sec. 1, Act of May 23, 1907, P. L. 223. (561). The recorder of deeds shall receive for recording said application and ordinance like fees as for recording other instruments or conveyances of land. Sec. 2, Act of May 23, 1907, P. L. 223. (n) Signboards. (562). It shall be unlawful for any person to erect or maintain any device or sign in the form of railway-crossing sign-boards on or near any of the public highways of this Commonwealth, or for any sign owner to permit such a device or sign to remain on or near the public highways of this Commonwealth or for any landowner or tenant in possession to knowingly permit such a sign to remain on his land in view of any public highway, unless such sign or device is erected under a permit from the State Highway Department, which shall approve the location, construction, and design of such sign or device: Provided however. That the provisions of this act shall not apply to crossing sign-boards erected or maintained by incor- porated railroad or railway companies. Sec. 1, Act of June 21, 1919, P. L. 568. (563). Any person violating the provisions of this act shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be subject to a fine of not less than five dollars and not more than one hundred dollars. Sec. 2, Act of June 21, 1919, P. L. 568. (o) Grade Crossings. (564). Except as in this act elsewhere provided, all crossings, hereafter established, whether of highways by railroads or of rail- roads by highways, shall, except in cities of the first and second classes, be above or below the grade thereof. Sec. 1, Act of June 7, 1901, P. L. 531. The Act of June 7, 1901, P. L. 531, is intended to prohibit grade crossings wherever it is physically possible to do so. Cumberland Val- ley R. R. Company's Appeal, 245 Pa. 107. 398 This act is intended to apply to the regulation, alteration and aboli- tion of all grade crossings, and applies to lateral railroads. CUfton Heights Boro. vs. Kent Mfg. Co. 220. Pa. 585. The act does not apply to a case where the highway and the railroad were in actual existence prior to the passage of the act. Ligonier Val- ley R. R. Co. vs. Latrobe Boro. 216 Pa. 221; Westover Boro. vs. Penna. R. R. Co. 35 Super. Ct. 359. (565). Every railroad company constructing a new line of rail- road, under its chartered powers, across a highway, except in cities of the first and second classes, shall construct the same above or below the grade of the highway, unless permitted, in the r^anner hereinafter provided, to construct the same at grade; and such rail- road company may exercise the powers, contained in its charter and the general laws, for altering the grade and location of highways in order to avoid grade crossings. Sec 2, Act of June 7, 1901, P. L. 531. (566). Every municipality or other authority, hereafter construct- ing a highway, except in cities of the first and second classes, across an existing railroad, shall construct the same above or below the grade thereof, unless permitted, in the manner hereinafter provided, to construct the same at grade, and the cost of said work shall be paid one-half by said municipality and one-half by the railroad com- pany owning said railroad. Sec. 3, Act of June 7, 1901, P. L. 531. (567). Whenever it shall be desired by any railroad company, constructing a new railroad, or by /any municipality or authority, constructing a new highway, except in cities of the first and second classes, that the railroad or highway should be so constructed that the railroad and highway shall cross each other at the same grade, a petition shall be presented by the party desiring such construc- tion to the court of common pleas of the district within which said crossing is situated, upon ten days' notice to the corporation own- ing said railroad or to such municipality or authority, describing the proposed construction, and setting forth the reasons that are supposed to make the same necessary or desirable; and the court of common pleas shall thereupon have jurisdiction of the parties and the subject matter of such petition, and may proceed summarily or otherwise and upon such notice as it shall deem sufficient, to examine the matter, either by evidence, by reference to a master or to commissioners, or otherwise, and if satisfied that such construc- tion is reasonably required to accommodate the public or to avoid excessive expense in view of the small amount of traffic on the high- way or railroad, or in view of the difficulties of other methods of construction, or for other good and sufficient reasons, then it shall 399 make an order or orders permitting such crossing at grade to be established ; and it may, in such orders, in its discretion, prescribe what gates, signals or other safeguards shall be maintained by the railroad company, in addition to the signals and safeguards pre- scribed by statute; and all such orders shall be binding upon the parties and shall be observed by them; all costs and expenses of the proceedings shall be ascertained and allowed by the court of common pleas, and shall be paid by such party as it shall decide, or be by it apportioned between the parties, and may be collected by execution out of said court. Sec. 4, Act of June 7, 1901, P. L. 531. Jurisdiction over the construction, regulation, alteration or abolition of grade crossings appears to be now vested in the Public Service Commission, by Act of July 26, 1913, P. L. 1374. This act repealed the Act of June 13, 1836, P. L. SSI, so far as the latter related to highway crossings of a railroad at grade. Jurisdic- tion of such grade crossings is transferred by this act from the quarter sessions court to the common pleas. Penna. R. R. Co. vs. Bogert 209 Pa. 589. (568). Any railroad company may, at any time, at its own cost and of its own motion, vacate and alter any crossing of its tracks at grade by a highway, except in cities of the first and second classes, by passing the highway over or under its railroad, and for this pur- pose may use the powers contained in its charter and the general laws for altering the location and grade of the highway: Provided, That no highway which has been constructed at grade, by permis- sion of the court of common pleas, shall be so altered without like permission, unless by agreement with the municipality wherein the crossing is situated. Sec. 5, Act of June 7, 1901, P. L. 531. For powers of City Planning Commission concerning bridges and subways within, and for three miles beyond, the city limits, see Sees. (326) to (331) inclusive. See also The Public Service Company Law of 1913. (569). Any municipality, except cities of the first and second classes, may of its own motion, at any time, at its own cost, vacate and alter any railroad grade crossing of a highway, within its limits, by passing the highway over or under the grade of the rail- road: Provided, That no highway which has been constructed at grade, by permission of the court of common pleas, shall be so altered without like permission, unless by agreement with the rail- road company : And provided, further, That such alteration shall not without the consent of the railroad company, create a steeper grad- ient than the established gradient, in the same direction, upon the division of said railroad upon which the crossing is located. The 400 said municipality shall, before proceeding with the work, give thirty days' notice to the railroad company of the proposed vacation, altera- tion and change, with plans and details thereof; and it shall be the duty of the railroad company, in case the highway is to be carried under the railroad, to protect and support the railroad tracks during the progress of the work, and in case of the failure of the railroad company so to do, the municipality may proceed to enter upon the railroad and provide for such protection and support. Sec. 6, Act of June 7, 1901, P. L. 531. See note to previous section. (570). If any additional lands or rights or easements therein are necessary or required for the use of the railroad company, in mak- ing the changes hereinbefore authorized, the same may be purchased or condemned by the company owning or operating said railroad, and for that purpose the company owning or operating the railroad is hereby invested with all the powers of condemnation contained in the charters of said companies or either of them, or in the laws under which said companies or either of them is organized; such lands taken by the railroad company shall be paid for by the company acquiring them. If any additional lands or rights or easements therein are necessary or required for the changes of highways, or the locations of new highways or passageways, such lands may be taken by the municipality by purchase or condemnation, and the cost of the same shall be deemed a part of the cost of the changes and alterations, and paid for in like manner as the other expenses thereof. The railroad companies interested in the proposed improvement shall have notice of any such condemnation proceedings, and the right to be heard therein, and no such purchase shall be made without the approval of the railroad company. Sec. 7, Act of June 7, 1901, P. L. 531. (571). In case the parties interested cannot agree upon the dam- ages sustained by any person, through the alteration of the gr^de of any public highway, as aforesaid, the same shall be determined by a jury, in the court of common pleas for the district where the crossing and property are situated, upon petition brought by any party so claiming to be damaged, as aforesaid, within one year after the decree of the court shall have been rendered in the proceedings aforesaid. Sec. 8, Act of June 7, 1901, P. L. 531. (572). Whenever it is necessary for the safety of any railroad, operated by steam, or for the convenience or safety of the public, except in cities of the first and second classes, that a private way crossing a railroad operated by steam shall be changed or abolished, 401 26 the said railroad company shall have a right, upon petition to the court of common pleas of the district in which the same may be situated, to apply for a removal and discontinuance of the same, and the said court shall determine such question, upon the proper notice and hearing; and any party claiming damage by reason of said removal or discontinuance shall have the right to have the same determined by a jury and proper proceedings in said court of common pleas, within one year from the date of the decree of said court order- ing said removal or discontinuance, and the decree of the court in such matter shall be final and conclusive. Sec. 9, Act of June 7, 1901, P. L. 531. Where a railroad company which has constructed a farm crossing over its lines relocates its lines without providing a crossing, the loss of the crossing becomes a proper item of damage in consider- ing the value of the property taken or destroyed, but does not en- title the dwner of the land to an injunction to restrain the construc- tion and operation of the new line. Williams vs. D. L. & W. R. R. Co. 255 Pa. 133. The right of a property owner to a private crossing over the tracks of a railroad company which owns a right of way acquired by condem- nation through the lands of such property owner, is a vested right, as sacred as any other property right and a court of equity has jurisdic- tion to compel the railroad company to restore the crossing which it has wrongfully demolished. Green vs. B. & O. R. R. Co. 245 Pa. 35. (573). Nothing in this act shall prevent any railroad company from laying additional tracks at crossings previously existing, or from constructing switches and sidings and branch lines from their lines of railroad, now or hereafter constructed, to any mill, factory, or other manufacturing establishment, or other industrial plant, or any elevator, wharf or pier, or gravel-, marl-, or clay-bed, or any mine, or from laying additional tracks to increase their yard facilities at terminal or other points, across public highways at the grade there- of, outside of the corporate limits of cities of the first and second classes; but such signposts and signals shall be employed for the protection of such crossings as are by law prescribed for railroad crossings of public highways. Sec. 10, Act of June 7, 1901, P. L. 531. (574). That the proper authorities of any [county,] city, [town or township of this state, respectively,] be and they are hereby au- thorized and empowered to enter into contracts with any of the rail- road companies, whose roads enter their limits, respectively, whereby the said railroad companies may relocate, change or elevate their railroads within said limits or either of them in such manner as in the judgment of such authorities, respectively, may be best adapted to secure the saftey of Uves and property, and promote the interest of said [county,] city, [town or township;] and for that purpose 402 the said authorities shall have power to do all such acts as may be necessary and proper, to effectually carry out such contracts; and any such contracts made by any railroad company or companies as aforesaid with said authorities or either of them, are hereby fully ratified and confirmed: Provided, That nothing in this proviso con- tained shall affect any contract made, or hereafter to be made, with any railroad company, from apportioning the expenses of altering and adjusting the grades of existing railroads and intersecting streets in any city or borough, so as to dispense with grade crossings. Sec. 1, Act of June 9, 1874, P. L. 282. This act empowers the local authorities to control the action of rail- road companies in the extension or relocation of their roads. Mc- Aboy's Appeal, 107 Pa. 548. Under this act, municipal authorities may grant to railroads the right of extending their lines to the boundaries of the city. Western Pennsylvania R. R. Go's Appeal, 99 Pa. 155. This act contains a prohibition of the building, by any railroad com- pany, of elevated roads in a city without a previous contract entered into between such company and the city authorities. It applies to all railroads whether built before or after the passarge of the act. Phila, vs. P. & R. R. R. Co. 7 Pa. C. C. 390; s. c. 25 W. N. C. 320; 19 PhUa. 507. Under this act a railroad companj' may contract with counties, cities, towns and townships to relocate, change or elevate its tracks. Ridgway vs. P. & R. R. R. Co. 22 D. R. 739. An agreement by the city with certain railroads for the abolition of grade crossings is not a contract or obligation of the city, and does not involve an increase in the debt of the city beyond the constitu- tional limitation. Chew et al. vs. Philadelphia 25 D. R. 1130. (575). Wherever any railroad is or shall be crossed at grade by a public road, street, or highway, and the railroad company shall have constructed or shall construct, or there shall have been or shall be constructed, by others, with such company's consent, an under- grade subway or an overgrade bridge or crossing, sufficiently near said public crossing to reasonably accommodate the traveling public, the court of quarter sessions of the county in which the said crossing exists, upon petition of said railroad company or other persons, may, if satisfied that said undergrade subway or overgrade bridge or cross- ing reasonably accommodates the traveling public, after notice to any corporation using or occupying or authorized to use or occupy the street, proposed to be vacated, with tracks, wires, pipes or con- duits, and, by rule to show cause, to the supervisors if the said cross- ing is in a township, or to the burgess or mayor if said crossing is in a borough or city and after testimony, taken either in open court or by deposition, as the court may direct, order that said road, street, or highway where it crosses said railroad at grade, and its approaches on both sides, shall be vacated, and that the said undergrade crossing 403 or subway or the overgrade bridge or crossing and its approaches on both sides, substituted therefor, shall be a public highway, and be maintained by the proper authorities ; and any company which had rights in or upon the street so vacated shall have, and be permitted to exercise, the same rights upon said streets, highways, bridges, and subways so opened, and to connect the same with its system without obtaining further authority or consent. Sec. 1, Act of April 22, 1905, P. L. 295. (p) Street Sprinkling and Cleaning. (576). In addition to the corporate powers specified in article five of said act, every city of the third class is authorized and em- powered to enact ordinances for the following purposes: To cause any public street, or part thereof, not less than one block, to be sprinkled with water, or, if such street is paved, to be cleaned dur- ing such time as it may be necessary, at the expense of the owners of property abutting upon the same. Sec. 1, Act of May 2, 1899, P. L. 188. (577). Councils shall cause any street, or part thereof not less than one block, to be sprinkled or, if such street is paved, t6 be cleaned at the cost of such abutting property owners, upon the petition of the owners or occupiers of such property, who shall repre- sent a majority of th^ feet front on the street or part thereof. Sec. 2, Act of May 2, 1899, P. L. 188. (578). Said councils may cause such sprinkling to be done with the water of the city, when water works are owned or operated by such city, and with sprinkling carts and apparatus owned by such city, or may contract for the use of said carts and apparatus with the lowest responsible bidder, as provided in section six, article four of said act, to which this is a supplement. Sec. 3, Act of May 2, 1899, P. L. 188. 404 ARTICLE XLII. LATERAL RAILROADS. (579). If any [person or persons, corporation of the first or sec- ond class, partnership,] municipal [or quasi-municipal] corporation, [school or poor district of the State of Pennsylvania,] incorporated under general or special act of Assembly, being the owner or owners of lands, mills, quarries, coal-mines, lime-kilns, or other real estate, in the vicinity of any railroad, canal, or slack-water navigation, made or to be made by any company, or by the State of Pennsylvania, and not more than four miles distant therefrom, shall desire to make a railroad thereto over any intervening lands, he, it, or they, their engineers, agents, and artists, may enter upon any lands, and sur- vey and mark such route as he, it, or they shall think proper to adopt, doing no damage to the property explored, and thereupon may present a petition to the court of common pleas of the county in which said interv-ening land is situated, setting forth his, its, or their desire to be allowed to construct and finish a railroad in and upon the said route, and the beginning, courses, and distances thereof, and place of intersection of the main railroad, canal, or slack-water navigation, which shall be filed and entered of record in the said court, whereupon the said court shall appoint six disinterested and judicious men, resident in said county, who shall view the said marked and proposed route for a railroad, and examine the same ; and if they, or any four them, shall deem the same necessary and useful for public or private purposes, they shall report in writing to the subsequent term of said court what damages will be sustained by the owner or owners of the said intervening land by the opening, con- structing, completing, and using the said railroad, and the report of the land viewers and appraisers shall be filed of record in the said court, and if not appealed from, be liable to be confirmed or rejected by the said court, as to right and justice shall appertain; and if either of the parties shall be dissatisfied with said report, he, it, or they may appeal therefrom to the said court of common pleas within twenty days after such report has been filed in the pro- 405 thonotary's office, and not after; and after such appeal, either party- may put the cause at issue in the form approved of by the court, and the said issue shall be placed first on the trial list of the next regular term of the said court, and be there tried and determined by the court and Jury; and the verdict so rendered, and judgment thereon, shall be final and conclusive, without further appeal or writ of error, and it shall be the duty of the said viewers and jury to take into consideration the advantages which may be derived by the owner or owners of land passed by the said railroad, when making up their report or forming their verdict thereon. Sec. 1, Act of May S, 1832, P. L. 501, as amended by Sec. 1, Act of May 17, 1919, P. L. 205. For powers of City Planning Commission concerning the location of any railway within, and for three miles beyond the city limits, see Sees. (326) to (331) inclusive. ARTICLE XLIII. BRIDGES AND VIADUCTS. (a) Construction of Bridges, Piers and Abutments. (580). Every municipal corporation shall have power [to lay out, establish, or re-establish grades of streets and alleys, or parts thereof, and] to construct bridges, piers, and abutments therefor, [and sewers and drains] in' any street or alley, or through or on or over private property. Part of Sec. 8, Act of May 16, 1891, P. L. 75, as amended by Sec. 1, Act of May 28, 191S, P. L. 573. The power to exercise the right of eminent domain when required to construct bridges and the proceedings of the view are published under Article XL. For powers of City Planning Commission concerning the location of any bridge within, and for three miles beyond, the city limits, see Sees. (326) to (331) inclusive. / (b) Location and Building of Bridges and Viaducts. (581). The several cities of this Commonwealth are hereby au- thorized to locate and build viaducts or bridges, to be used as public highways, over rivers, creeks, streams, railroads and private prop- erty, or over and across any of them, whether the said viaducts or bridges be wholly within, or partly without and partly within, the city limits, for the purpose of uniting two or more different streets or highways, or separate parts of the same highway or extension thereof. Sec. 1, Act of March 26, 1903, P. L. 71. See note to Sec. (580). (582). The said cities shall have the right to enact ordinances, providing for the laying-out and opening of the routes or locations for said viaducts and bridges, which shall be public highways; and the proceedings for the said laying-out and fixing .the locations, and 407 for the opening thereof, shall be the same as is provided by law in the laying-out and opening of streets in said cities, except that no petition of property owners shall be required therefor. Sec. 2, Act of March 26, 1903, P. L. 71. (583). In case the said respective city has not agreed with the owner or owners for the damages done, or likely to be done, by the erection of said viaduct or bridge, it shall be lawful for the said city to take and appropriate the lands and property necessary, over and across which to erect said bridge or viaduct, and the damages and benefits caused by said taking and appropriation shall be assessed by three freeholders, as viewers, appointed by the court of common pleas, in the same manner and with like proceedings as is now, or shall hereafter be, provided by law in the opening of public streets. Sec. 3, Act of March 26, 1903, P. L. 71. (584). The said city shall also have the power to enter into and unite in a contract or in contracts with the county commissioners of the proper county, where said viaduct or bridge will cross a river, creek or -stream, or other place, over which the county is authorized by law to build bridges; and also with railroad, street railway, and other companies and parties interested, or with any or all of them, for the building, constructing and maintenance of said viaduct or bridge, or for certain parts or portions thereof, and for the pay- ment of any damages caused by the location and the said erection. Sec. 4, Act of March 26, 1903, P. L. 71. (585). The said county commissioners may contract, subject to the approval of the court of quarter sessions of the proper county, for that part or portion of the viaduct or bridge which crosses any river, creek, stream, or other place, over which the county is by law authorized to build bridges, including the abutments and. piers there- of, and such part shall thereafter be maintained as a county bridge; or they may contract for such part or portion of the whole structure as is equal to the pait or portion of the viaduct or bridge over the respective river, creek, stream, or other place, as aforesaid : Provided, however. That the said county commissioners may contract to pay an amount of money greater than that which is hereinabove provided for, toward the construction of said work, but the amount of the said additional moneys, over and above the amount necessary to build the viaduct across the respective river, stream, creek, or other place, shall be first approved by the court aforesaid. Sec. S, Act of March 26, 1903, P. L. 71. (586). The contracts herein provided for may stipulate that the respective city, county, railroad company, street railway or other company, or patfies interested, or any of them, shall pay a certain 408 part or portion of the whole contract price or cost of the work, in- cluding damages ; or may stipulate that each shall construct, or pay for the construction of a certain part or portion of the work, and may otherwise provide for the payment of the damages. When any railroad company, street railway or other company, or other parties interested, agree to pay a certain part or portion of the cost of the entire work, they shall pay such part or portion into the proper city treasury; and upon said payment, the city treasurer shall be liable therefor, and he shall pay the same over to the contractor, as may be provided in the contract; but the amount to be paid by the respective county shall be paid directly to the contractor, as may be provided by the said contract. ^The said agreements may also pro- vide for the maintenance of the said viaducts and bridges, after their erection. All contracts provided for by this act shall be binding upon the parties thereto, their lessees, successors, heirs and assigns. Sec. 6, Act of March 26, 1903, P. L. 71. (587). Before any railroad, which has not contributed to the payment of the cost of construction of said viaduct or bridge, shall be permitted to run its line or lines of tracks under said bridge oi viaduct, it shall enter into a contract with the said city to there- after pay a reasonable amount, part or portion toward the keeping-up and maintaining of the said structure, which amouijt shall be at the same rate, on the same basis, as is paid by the other railroad com- panies. Sec. 7, Act of March 26, 1903, P. L. 71. (588). Whenever the city, county commissioners, and the said railroad, street railway and other companies, and others interested, or any of them, have entered into a contract or contracts for the construction of said bridge or viaduct, as is hereinbefore provided, it shall be lawful for the said city and the said county commissioners to have prepared plans or specifications of the entire work, and thereafter to advertise for bids, and to award the contract to the low- est responsible bidder. The contract for the said work shall provide that the county shall pay for its certain part of said bridge or via- duct, and the city shall contract for the other part of the said work ; but the said contract, as to the city's part thereof, shall be based upon the appropriation made by the city for the part of the work for which it had agreed to pay, and the remaining part of the contract price shall be based upon the amounts the other parties have agreed to pay ; and the contractor shall have a right of action against each party uniting in said contract, for the part thereof agreed to be paid by each party, respectively, as set forth in the contract or contracts in which all the parties unite, as aforesaid. Sec. 8, Act of March 26, 1903, P. L. 71. 409 (589). In case the county commissioners do not unite in any such contract as is hereinbefore provided for, or in case said via- duct does not cross any river, creek, stream, or place, over which the county is authorized to build bridges, it shall be lawful for the said city to contract for the construction of the viaduct, as aforesaid, and to pay for the entire work ; or to contract with all, or any other, of the aforesaid parties, in manner aforesaid, in which case the plans and specifications for the said work shall be prepared by the city, and advertisement shall be made for bids, and the contract let, in the manner hereinbefore provided. The contract for the work shall be based upon the city's appropriation, and upon the amounts agreed to be paid by the other parties, as provided in the preceding section. Sec. 9, Act of March 26, 1903, P. L. 71. (590). Any of the contracts hereinabove provided for may be rf^corded in the recorder's office of the proper county, in which the respective city is situate, and such record shall be notice to all per- sons who might be affected thereby. Sec. 10, Act of March 26, 1903, P. L. 71. (c) Acquisition of Toll Bridges. (591). Whereas, In cities of this Commonwealth sections or dis- tricts thereof are divided and separated from each other by rivers and streams of water, rendering bridges necessary for the connection of the same in order that the inhabitants may have access to each part. And whereas. Many of such bridges have been erected and are operated by private corporations and the tolls thereon have become burdensome to the people, and it is desirable such cities should have the ownership of and control of such bridges to make the same free for the people, therefore : Preamble, Act of May 26, 1893, P. L. 154. (592). Whenever any city of this Commonwealth shall be divided or separated in any of its territorial sections or parts by intervening rivers or streams of water it shall be lawful, and the right is given to such city or cities, to purchase, enter upon, take, use, hold and appropriate such bridge or bridges, together with the approaches and appurtenances thereto, lying within the corporate limits of such cities as shall have been erected and now in use over such rivers or streams of water so dividing and separating the sections or parts aforesaid. Whenever the councils of such cities shall determine upon the purchase, appropriation or condemnation of such bridge or bridges, approaches and appurtenances, it shall be so expressed by ordinance or joint resolution of such councils. Sec. 1, Act of May 26, 1893, P. L. 154. 410 The act does not apply to bridges which run from the city to another city which has been annexed to the first city since the passage of the act. Pittsburgh and Allegheny Bridge Co. vs. City of Pittsburgh, 56 P. L. J. 149. There is a distinction between the acquisition of the property of a bridge company under this act and the acquisition of control of a bridge by purchase of the capital stock of the company by a city. Com. vs. Monongahela Bridge Company, 8 Dauphin 91; see also Trac- tion Co. vs. Bridge Company, 184 Pa. 180. (593). If the compensation to be paid for such bridge cannot be agreed upon between the owners thereof and such cities, it shall be lawful for such city, or cities, to tender the bond thereof as security to the person, firm or corporation claiming or entitled to compensation, or to the attorney or agent of any absent person, or to the agent or officers of a corporation, or to the guardian or com- mittee of any one under legal incapacity, the conditions of which shall be that the said city shall pay or cause to be paid such amount of damages or compensation as the person, firm or corporation, as the case may be, shall be entitled to receive after the same shall be agreed upon or assessed in the manner provided in this act; in case the party or parties claiming damages or compensation refuse or do not accept the security so tendered, such city shall then give the party, his or their agent, attorney, guardian or committee, written notice of the time when the same will be presented in the court for approval, and thereafter the said city may present said security to any court of common pleas of the county wherein such bridges are located and used, and when approved, the said security shall be filed in said court for the benefit of those interested, and recovery may be had thereon for the amount of damages or compensation assessed, if the same be not paid, or cannot be made by execution on the judg- ment in the issue formed to try the question, and upon the approval of said security said city may enter upon, appropriate, take, hold, use and control such bridge or bridges. Sec. 2, Act of May 26, 1893, P. L. 154. (594). In case the compensation for damages accruing from such appropriation, taking, holding and using, have not been agreed upon, any court of common pleas of the proper county, or any law judge thereof in vacation, on application thereto by said city or any person interested, shall appoint three discreet and disinterested freeholders as viewers, and appoint a time not less than ten nor more than twenty days thereafter, when said viewers shall meet and view the said bridges. The said viewers shall give at least ten days' notice in writing of the time of their first meeting to the owners, agents, offi- cers, attorneys or representatives of the persons interested, or such other notice as the court may direct. 411 The said viewers having been first duly sworn or affirmed faith- fully, justly and impartially, to decide and true report to make con- cerning all matters and things to be submitted to them and in relation to which they are authorized to inquire under the provisions of this act, and having viewed the property and structure, shall hear all parties interested and their witnesses and shall estimate and deter- mine the damages for the property so taken, appropriated, held and used, to whom the same are payable; they shall give at least ten days' notice'thereof, in the manner herein provided, to all parties in- terested of the time and place when said viewers will meet and ex- hibit said report and hear all exceptions thereto. After making whatever changes are deemed right and proper the said viewers, or anj'^ two of them, shall make report to the court, showing the amount of damages or compensation allowed, and to whom payable, and shall file therewith a plan showing the location of said bridge, or bridges, so taken arid appropriated. Sec. 3, Act of May 26, 1893, P. L. 154. (596). Upon the report of said viewers, or any two of them, being filed in said court, any party interested may, within thirty days thereafter, file exceptions to the same, and the said court shall have power to confirm said report or to modify, change or otherwise correct the same, or refer the same back to the same or new viewers with like power as to their report. Or within thirty days from the filing of such report in court any party interested may appeal and demand a trial by jury, and any party so interested may, within thirty days after final decree, have an appeal to the Supreme Court. If no exceptions are filed, or no demand made for trial by jury within said thirty days after the filing of said report, the same shall become absolute. The said court of common pleas shall have power to order what notices shall be given in connection with any part of said proceed- ings and may make all such orders as it may deem requisite. Sec. 4, Act of May 26, 1893, P. L. 154. (597). The viewers provided for in the foregoing sections may be appointed before, or at any time after the entry upon, taking and appropriating of such property. They shall have power to administer oaths or affirmations to all parties and witnesses. The costs of the viewers and all court costs incurred in the pro- ceedings aforesaid shall be defrayed by said city, and each of the said viewers shall be entitled to a sum not exceeding five dollars per day for every day necessarily employed in performance of the duties herein prescribed. Sec. 5, Act of May 26, 1893, P. L. 154. 412 (598). The several municipalities of this Commonwealth are au- thorized to purchase or condemn any public toll-bridge crossing any river or stream within the limits of such municipalities. Sec. 1, Act of March 24, 1909, P. L. 67. (599). In case the municipality desires to obtain any such bridge, and is unable to agree with the owner or owners of the bridge upon the price to be paid therefor, any court of common pleas of the county wherein said bridge is located, or any law judge thereof in vacation, on application therefor by petition of said municipality, shall appoint three discreet and disinterested persons as viewers, and appoint a time, not less than ten nor more than twenty days thereafter, when said viewers shall meet and inspect the said bridge and view the same, together with the approaches and appurtenances thereto. Sec. 2, Act of March 24, 1909, P. L. 67. (600). The said viewers, having been duly sworn or affirmed justly and impartially to decide and true report to make concerning all matters and things to be submitted to them, and in relation to which they are authorized to inquire, in pursuance of the provisions of this act, and having viewed the said bridge, together with the ap- proaches and appurtenances thereto, shall hear all parties interested and their witnesses ; and shall estimate and determine the damages for the property taken, and to whom the same is payable; and pre- pare a schedule thereof, and give notice to all parties interested of a time, not less than ten days thereafter, and of a place where they will meet and exhibit said schedule and hear all objections thereto and evidence. Notice of the time and place of said meeting shall be given, by personal service, upon all parties in interest, or their attorneys of record. After making whatever changes are deemed necessary, the said viewers shall make report to the court .showing the damages allowed and to whom the same is payable, and file there- with a plan showing the bridge, together with the approaches and appurtenances thereto. Sec. 3, Act of March 24, 1909, P. L. 67. (601). The viewers provided for in the foregoing sections may be appointed before, or at any time after, the entry, taking, or appro- priation of the said bridge, together with the approaches and appurt- enances thereto. The costs incurred in the proceedings aforesaid shall be defrayed by the municipality, and each of the viewers shall receive such compensation as may be fixed by the court. Sec. 4, Act of March 24, 1909, P. L. 67. 413 (602). If the compensation to be paid for any bridge, which the municipality desires to obtain, cannot be agreed upon between the owners thereof and such municipality, and if the municipality de- sires to take possession of such bridge, it shall be lawful for it to tender its bond as security to the owner or owners of such bridge, — the condition of which shall be that the said municipality shall pay or cause to be paid such amount of damages as the owner or owners thereof shall be entitled to receive, after the same shall have been agreed upon by the parties, or awarded in the manner provided for by this act. In case the owner or owners of such bridge refuse or do not accept the said bond, the said municipality shall give the owner or owners thereof written notice of the time when the same will be presented for approval ; and may present said bond to a court of common pleas of the county wherein said bridge is located, and, when approved, the said bond shall be filed in court for the benefit of said owner or owners, and upon the approval of said bond said municipality may enter upon, appropriate, take, hold, use, and con- trol such bridge. Sec. S, Act of March 24, 1909, P. L. 67. (603). Upon the report of said viewers, or any two of them, be- ing filed in said court, either party may within thirty days there- after file exceptions to the same; and the court shall have power to confirm said report, or to modify, change, or otherwise correct the same, or refer the same back to the same or new viewers, with like power as to their report; or, within thirty days from the filing of any report in court, or the final confirmation thereof, either party may appeal and demand a trial by jury ; and either party may, within thirty days after final decree, have an appeal to the Superior or to the Supreme Court, according to law. Upon final confirmation, in any of the cases provided in this section, the award shall be a good and valid judgment against the said municipality. The said court of common pleas shall have power to order what notices shall be given in connection with any part of said proceedings, and may make all such orders as it may deem requisite. Sec. 6, Act of March 24, 1909, P. L. 67. (604). In case any municipality shall discontinue any proceed- ings taken, providing for the appropriation or condemnation of any bridge, prior to the entry upon, taking, or appropriation thereof and before judgment therein, the said municipality shall not thereafter be liable to pay any damages which have been or might have been allowed; but all costs upon any proceedings had thereon shall be paid by it, together with any actual damage, loss, or injury sustained 414 by reason of such proceedings ; and such damage, loss, or injury shall be determined and fixed by the court in which the proceedings are pending. Sec. 7, Act of March 24, 1909, P. L. 67. (605). Whenever any bridge shall be purchased or condemned under this act, the municipality shall control, maintain, and use the said bridge as a public bridge ; but it shall have power to charge tolls or rentals for the use thereof, from railway, telephone, and telegraph companies, and other persons making use thereof for other than ordinary public foot and vehicle travel: Provided, That where con- tracts exist between such persons and the owners of the bjidge, such contracts shall be preserved for the benefit of the municipality, and shall be assigned thereto. Sec. 8, Act of March 24, 1909, P. L. 67. (606). The several municipalities of this -Commonwealth are au- thorized to purchase, condemn, maintain, and use any public toll- bridge crossing any river or stream within the limits of such munici- pality; and to enter into contracts as hereinafter provided, with the county commissioners of the proper county whereby said county shall pay a portion of the cost thereof. Sec. 1, Act of March 24, 1909, P. L. 69. (607). In case the municipality desires to obtain any such bridge, and is unable to agree with the owner or owners of the bridge upon the price to be paid therefor, any court of common pleas of the county wherein said bridge is located, or any law judge thereof in vacation, on application therefor by petition of said municipality, shall appoint three discreet and disinterested persons as viewers ; and appoint a time, not less than ten nor more than twenty days thereafter, when said viewers shall meet and inspect the said bridge and view the same, together with the approaches and appurtenances thereto. ' Sec. 2, Act of March 24, 1909, P. L. 69. (608). The said viewers, having been duly sworn or affirmed justly and impartially to decide and true report to make concerning all matters and things to be submitted to them, and in relation to which they are authorized to inquire, in pursuance of the provisions of this act, and having viewed the said bridge, together with the approaches and appurtenances thereto, shall hear all parties inter- ested and their witnesses ; and shall estimate and determine the dam- ages for the property taken, and to whom the same is payable; and prepare a schedule thereof, and give notice to all parties interested of a time, not less than ten days thereafter, and of a place where they 415 will meet and exhibit said schedule, and hear all objections thereto and evidence. Notice of the time and place of said meeting shall be given by personal service upon all parties in interest, or their at- torneys of record. After making whatever changes are deemed nec- essary, the said viewers shall make report to the court, showing the damages allowed and to whom the same is payable, and file there- with a plan showing the bridge, together with' the approaches an(? appurtenances thereto. Sec. 3, Act of March 24, 1909, P. L. 69. (609). The viewers provided for in the foregoing sections may be appointed before, or at any time after, the entry, taking, or ap- propriation of the said bridge, together with the approaches and ap- purtenances thereto. The costs incurred in the proceedings afore- said shall be defrayed by the municipality, and each of the viewers shall receive such compensation as may be fixed by the court. Sec. 4, Act of March 24, 1909, P. L. 69. (610). If the compensation to be paid for any bridge, which the municipality desires to obtain, cannot be agreed upon between the owners thereof and such municipality, and if the municipality desires to take possession of such bridge, it shall be lawful for it to tender its bond as security to the owner or owners of such bridge, — the condition of which shall be that the said municipality shall pay or cause to be paid such amount of damages as the owner or owners thereof shall be entitled to receive, after the same shall have been agreed upon by the parties, or awarded in the manner pro- vided for by this act. In case the owner or owners of such bridge refuse or do not accept the said bond, the said municipality shall give the owner or owners thereof written notice of the time when the same will be presented for approval; and may present said bond to a court of common pleas of the county wherein said bridge is lo- cated ; and, when approved, the said bond shall be filed in court for the benefit of said owner or owners, and upon the approval of said bond said municipal corporation may enter upon, appropriate, take, hold, use, and control such bridge. Sec. 5, Act of March 24, 1909, P. L. 69. (611). Upon the report of said viewers, or any two of them be- ing filed in said court, either party may within thirty days there- after file exceptions to the same ; and the court shall have power to confirm said report, or to modify, change, or otherwise correct the same, or refer the same back to the same or new viewers, with Hke power as to their report; or, within thirty days from the filing of any report in court, or the final confirmation thereof, either party may appeal and demand a trial by jury; and either party may, within 416 thirty days after final decree, have an appeal to the Superior or to the Supreme Court, according to law. Upon final confirmation, in any of the cases provided, in this section, the award shall be a good and valid judgment against the said municipality. The said court of common pleas shall have power to order what notices shall be given in connection with any part of said proceedings, and may make all such orders as it may deem requisite. Sec. 6, Act of March 24, 1909, P. L .69. (612). In case any municipality shall discontinue any proceeding taken, providing for the appropriation or condemnation of any -bridge, prior to the e»ta:y upon, taking, or appropriation thereof, and before judgment therein, the said municipality shall not thereafter be liable to pay any damages which have been or might have been allowed; but all costs upon any proceedings had thereon shall be paid by it, together with any actual damage, loss, or injury sustained by reason of such proceedings; and such damage, loss, or injury shall be de- termined and fixed by the court in which the proceedings are pend- ing. Sec. 7, Act of March 24, 1909, P. L. 69. (613). Said municipality may enter into and unite in a contract with the county commissioners of the county in which said bridge is located, upon such terms and conditions as may be agreed upon, for^ the purchase, appropriation, or condemnation of said bridged The contract may stipulate that the respective municipality and county shall pay a certain part or portion of the whole purchase price or damages allowed by condemnation proceedings. The amounts to be paid by the county shall be paid into the municipal treasury; and, upon said payment, the municipal treasurer shall be liable therefor, and it shall be held and applied solely for the said purpose or pur- poses. The said agreements may also provide for and include pro- visions for the maintenance, repair, and building of the said bridge, after its purchase or condemnation by the said municipality. Before any county shall enter into any contract with any munici- pality, as aforesaid, a petition of at least twenty taxpayers of the county, where such bridge is situated, shall have been presented to the court of quarter sessions of said county, — representing that the said bridge is necessary to the accommodation of public travel and that the payment of tolls over such bridge is burdensome to the traveling public, and that a municipality in said county is desirous of purchasing or condemning, maintaining, and using said bridge, and of entering into a contract with said county whereby the said county shall pay a portion of the cost thereof, and praying the said court for an order authorizing and empowering the commisftiomers 417 27 of said county to enter into such a contract with said municipa i Yi upon the terms and conditions set forth in said petition,-— and said court shall have granted the prayer of said petition. Sec. 8, Act of March 24, 1909, P. L. 69. (614). Whenever any bridge shall be purchased or condemned under this act, the municipality shall control, maintain and use the said bridge as a public bridge; but it shall have power to charge tolls or rentals for the use thereof, from railway, telephone, and telegraph companies, and other persons making a use thereof for other than ordinary public foot and vehicle travel: Provided, That where contracts exist between such persons and the owners of the bridge, such contracts shall be preserved for the benefit of the munici- pality and shall be assigned thereto. Sec. 9, Act of March 24, 1909, P. L. 69. (615). The act of Assembly of May first, one thousand eight hundred and sixty-one, entitled "An act relating to Allegheny county" (Pamphlet Laws, four hundred and fifty), so far as it is inconsistent herewith or supplied hereby, and all other acts and parts of acts, general, special, or local, inconsistent herewith or supplied hereby, be and the same are hereby repealed. Sec. 10, Act of March 24, 1909, P. L. 69. (d) Bridges Constructed Entirely or Partly at County Ex- pense. (616). The several counties of this Commonwealth are hereby authorized and empowered, — whenever the county commissioners of such county, or a majority of them, shall, by resolution, decide so to do, and upon the approval thereof by a grand jury and by the court of quarter sessions in the manner hereinafter provided, — to locate, lay out, open, construct, and maintain public bridges, whether wholly or partly within any city, borough, or township therein, across any river or stream dividing or separating any part of said county from any other part thereof; together with such bridge approaches, via- duct, or other approaches as the covmty commissioners, or a^ majority of them, may in their judgment deem necessary or convenient for the purpose of connecting any such bridge with the existing streets or public roads in such cities, boroughs, or townships; and, to that end, to take, enter upon, and appropriate property and rights of prop- erty of all kinds, whether devoted to a public or private use, for the purposes aforesaid, and for the necessary slopes, piers, walls, abut- ments, fills, and embankments ; and to enter upon or over any street, pubHc highway, or public road, in such cities, boroughs, or townships, in the manner hereinafter provided. Sec. 1, Act of May 24, 1917, P. L. 276. See note to Sec. (580). 418 (617). Whenever the county commissioners of any county shall resolve to exercise any of the powers conferred by section one hereof, they shall cause to be prepared plans and surveys showing the loca- tion of the proposed bridge and its approaches, and the property or rights of property affected thereby, together with any streets or public roads in any city, borough, or township proposed to be used in, connection therewith ; and they shall present the same, together with their petition on behalf of said county, to the court of quarter sessions of such county, praying for authority to locate, lay out, o.pen, and construct the same ; which petition shall briefly describe the location and the estim.ated cost thereof, or, if the method of construction has not been fully determined, the estimated cost thereof for each aler- native method of construction proposed. Upon the filing of any such application or petition, the court shall fix a time for the hearing of the same by, and refer the same to, the grand jury. Notice of the time, place, and purpose of said hear- ing shall be given by an advertisement, published once a week for three successive weeks, in at least one newspaper of general circula- tion in such county, and by handbills posted in conspicuous places along or in the neighborhood of the proposed bridge and its ap- proaches, or otherwise as the court shall direct, having regard to the circumstances of the case. If the grand jury by a majority vote shall approve said applica- tion or petition, it shall thereupon certify its approval to said court; whereupon the <;ourt shall make an order fixing a time, not less than ten days thereafter, for the filing of exceptions thereto. Upon the hearing thereof the court may, for proper cause shown, disap- prove of said application ; otherwise, it shall make an order approv- ing the location, and the plans and surveys therefor, and authorize such county to construct such bridge and its approaches, and to let a contract or contracts therefor, under specifications to be prepared by the county engineer or other proper county authority; and there- upon the said bridge and its approaches shall be deemed to be laid out and opened in accordance with the surveys and plans accompany- ing said petition. Where the proposed bridge crosses any navigable stream or other public water, or the property, rights of property, or rights of way of any railroad or other public service corporation, and, by reason thereof, the approval of any State or Federal officer, board, or body is required as to the location and construction of such a bridge or its approaches, such county shall be deemed to have full and complete authority to construct such bridge in such other location and in such other manner as may be necessary to comply with the conditions pre- scribed by such officer, board or body in granting such approval : Pro- vided, The county commissioners of such county be of the opinion, 419 and by resolution duly adopted by a majority vote so decide, that the bridge as thus changed is necessary for the convenience of the travel- ing pubUc, and will accommodate substantially the same traveling public as the bridge would have done if it had been constructed at the location and in the manner originally provided. Upon the adopr tion of any such resolution, and prior to the construction of such bridge, and the entry upon and taking of property for that purpose, such county, through its county commissioners, shall present its peti- tion to the court of quarter sessions of said county, briefly setting forth the facts as to the obtaining of such approval, and the changes made in consequence thereof, and the adoption of such resolution, to- gether with plans and surveys showing the new location and manner of construction and an estimate showing the cost of the construction of such bridge as thus changed, and if the proceedings shall appear to be regular, the court shall make an order fixing a time, not less than twenty days thereafter, for the filing of exceptions thereto. Notice of the time and place of hearing on said exceptions shall be given by advertisement, published once a week for two successive weeks, in at least two newspapers of general circulation in such county, and by handbills posted in conspicuous places along or in the neighborhood of the proposed bridge and its approaches, or other- wise as the court shall direct, having regard to the circumstances of the'case. Upon the hearing thereof the court may, for proper cause shown, disapprove of said petition; otherwise, it shall thereupon make a decree authorizing and empowering said county to construct such bridge in accordance with such new plans and surveys, and thereupon such bridge shall be deemed to have "been laid out and opened in accordance with such plans and surveys. The provisions of this act shall apply to proceedings now pending, as well as those hereafter begun. Sec. 2, Act of May 24, 1917, P. L. 276, as amended by Sec. 1, Act of June 7, 1919, P. L. 414. (618). For the purpose of making the necessary preliminary surveys, in order to prepare said plans and estimates, the county commissioners of the several counties and the persons by them em- ployed for such purpose shall have the right to enter upon private or public property, and to designate by proper marks upon the ground the line and location of any such proposed bridges and approaches. Sec. 3, Act of May 24, 1917, P. L. 276. (619). The county commissioners, pursuant to a resolution duly adopted by a majority of the board, may agree with the owners of property, rights of property, or rights of way of any railroad or any public service corporation, affected thereby, as to the amount of damages occasioned to any person for property taken, injured, or 420 destroyed for the purposes aforesaid; which agreement the county commissioners shall report to the court of quarter sessions of said county, and upon the approval thereof by such court, such damages shall be payable by the county out of the general county funds or other funds provided for that purpose. Sec. 4, Act of May 24, 1917, P. L. 276, as amended by Sec. 2, Act of June 7, 1919, P. L. 414. (620). In case the compensation for the damages has not been agreed upon, any court of common pleas of the proper county, or any law judge thereof in vacation, on application thereto by petition by said county or any person interested, shall appoint three discreet and disinterested freeholders as viewers, and appoint a time, not less than twenty nor more than thirty days thereafter, when said viewers shall meet upon the line of the proposed bridge and its ap- proaches, and view the same and the premises affected thereby. The said viewers shall give at least ten days' notice of the time of their first meeting, by publication in one or more newspapers of the county in which it is situate, and by handbills posted in conspicuous places in the vicinity of the proposed bridge and its approaches, or otherwise as the said court shall direct, having due regard to the circumstances of the case. Sec. S, Act of May 24, 1917, P. L. 276. (621). The said viewers, having been duly sworn or a^rmed faithfully, justly, and imparitally to decide and true report to make concerning all matters and things to be submitted to them, and in relation to which they are authorized to inquire in pursuance of the provisions of this act; and, having viewed the premises and ex- amined the property connected with and affected by the proposed bridge and its approaches, shall hear all parties interested and their witnesses ; and, having a due regard to, and making just allowance for, the advantages which may have resulted, or which may seem likely to result, to the owner or owners of said lands or materials, in consequence of the locating, laying out, opening, maintenance, and construction of said bridge and its approaches, shall estimate and determine the damages for property taken, injured, or destroyed, and to whom the same is payable ; and, having so estimated and de- termined the damages, they shall prepare a schedule thereof, and give notice to all parties to whom damages are allowed of a time, not less than ten days thereafter, and of a place where said viewers shall meet and exhibit said schedule, and bear all exceptions thereto and evidence. Notice of the time and place of said meeting shall be given, in the manner provided by law for the service of summons in a personal action, upon all parties allowed damages as shown by said 421 schedule, if the said parties can be found in the county; or upon an adult person, if any, residing upon the property affected, in case the owner or reputed owner cannot be found ; and, to all others, by pub- lication in the newspaper or newspapers in which the fix-st notices of said view were published. When no service is made upon the owner, reputed owner, or upon an adult person residing upon the property affected, said notice, where publication thereof has also been made, shall be deemed to have been properly served if tacked or conspic- uously posted on the premises. The court may provide by v/hom the notice provided by this act shall be posted, given, and served, and fix the compensation for said service. After making whatever changes are deemed necessary, the said viewers shall make repoi't to the court, showing the damages allowed in each case, and file there- with a plan showing the improvement and the properties taken, in- jured, or destroyed. When said report is filed, notice thereof shall be given by publication once in the newspaper or newspapers in which first notices of said view were published. Said notice shall state the date of filing of the report, and shall contain a schedule of the damages shown therein ; and shall further state that, unless ex- ceptions thereto be filed within thirty days from the date of filing, the said report will be confirmed absolutely. Sec. 6, Act of May 24, 1917, P. L. 276. (622). The viewers provided for in this act may be appointed eithej before or at any time after the entry upon, taking, appropria- tion, or injuring of any property for said purposes. The costs of said viewers and all court costs incurred, including all advertising and notices in connection therewith, shall be paid by such county; and each of said viewers shall be entitled as compensation, unless otherwise provided by law, to a sum not exceeding five dollars per day for each and every day necessarily employed in the performance of the duties herein prescribed. Sec. 7, Act of May 24, 1917, P. L. 276. (623). In all cases where the parties have not agreed upon the amount of damages claimed, or where, by reason of the absence or legal incapacity of the owner or owners, no such agreement can be made for the lands, property, or materials to be taken, occupied, or injured, such county may tender sufficient security to the party claiming or entitled to any damages, or to the attorney or agent of any person absent, or to the agent or other officers of a corporation, or to the guardian or committee of any one under legal incapacity; the conditions of which shall be that the said county shall pay or cause to be paid such amount of damages as the party shall be en- titled to receive, after the same shall have been agreed upon by the 422 parties or assessed in the manner provided for in this act. In case the party or parties claiming damages refuse or do not accept the security so tendered, the said county shall then give the party, his or their agent, attorney, guardian, or committee, a written notice of the time when the same will be presented for filing in the court ; and thereafter the said county may present said security to the court of common pleas of the county where the lands or other property are situated, and, if approved, the security shall be filed in said court for the benefit of those interested, and recovery may be had thereon for the amount of damages assessed, if the same be not paid or can- not be made by execution on the judgment in the issue formed to try the question, and, upon the approval of said security, said county may proceed with the improvement. Sec. 8, Act of May 24, 1917, P. L. 276. (624). Upon the report of said viewers, or any two of them, being filed in said court, any party interested, may, within thirty days thereafter, file exceptions to the same ; and the court shall have power to confirm said report, or to modify, change, or otherwise cor- rect the same, or refer the same back to the same or new viewers, with like power as to their report. When said report is first filed in court the prothonotary thereof shall mark the same "confirmed nisi," and, in case no exceptions are filed thereto within said thirty days, he shall enter a decree (as of course) that said report is confirmed absolutely. Within thirty days after the confirmation, modification, changing, or correcting of said report, any interested party may appeal from said decree to the superior Court or to the Supreme Court, as the case may be. And within thirty days after said report is filed in court, as aforesaid, such county, and any party whose prop- erty is taken, injured, or destroyed, may appeal to the court of common pleas, and demand a trial by jury according to the course of the common law. Every appellant shall state in the appeal the grounds upon or for which the appeal is taken, and the same shall be signed by the party or parties taking the appeal, or by his or their agent or attorney; and shall be accompanied by an affidavit of the party appellant, or of his or their agent or attorney, that the appeal is not taken for the purpose of delay, but because the appellant firmly believes that injustice has been done. In case the party appellant does not obtain a verdict more favorable than was the report of the viewers, as finally confirmed, modified, or changed, the said appel- lant shall not recover any costs on the appeal. The said court of common pleas shall have power to order what notices shall be given in connection with any part of said proceedings, and make all such orders as it may deem requisite, and may, by rule or otherwise, pre- 423 scribe the form of the pleadings. After verdict and final judgment either party may have an appeal to the Superior or Supreme Court, as in other cases. Sec. 9, Act of May 24, 1917, P. L. 276. (625). In case the county commissioners, or a majority of them, of any such county, shall repeal or rescind any resolution passed, or discontinue any proceeding taken, providing for any such bridge or its approaches, prior to the entry upon, taking, appropriation, or injury to any property or materials, and within thirty days after the filing of the report of viewers assessing damages, the said county shall not thereafter be liable to pay any damages which have been or might have been assessed, but all costs upon any proceedings had thereon shall be paid by said county, together with any actual dam- age, loss, or injury sustained by reason of such proceedings. Sec. 10, Act of May 24, 1917, P. L. 276. (626). All damages found, agreed upon, or awarded for or on account of the location, laying out, opening, and construction of any such public bridge, and its approaches and appurtenances, and all costs and expenses incurred in connection therewith, shall be paid by such county, out of the general county funds, or from such other funds as may be set apart or appropriated for that purpose. Sec. 11, Act of May 24, 1917, P. L. 276. (627). Upon the approval of any application to construct any such bridge, and its approaches and other appurtenances, the county commissioners of such county are authorized and empowered to ad- vertise and solicit proposals for the construction thereof, in the man- ner provided by law for the letting of county contracts, and to let a contract or contracts therefor to the lowest responsible bidder. No contract shall be awarded for any such work unless proper security shall be given for the faithful performance thereof by the person or persons to whom the contract shall be awarded, with proper surety, to be approved by the county commissioners of such county, which surety shall be equal in amount to at least fifty per cent of the con- tract price therefor. Sec. 12, Act of May 24, 1917, P. L. 276. (628). The several counties, through their county commissioners or a majority of them, are hereby authorized and empowered to make and enter into contracts or leases with any street-railway, telegraph, telephone, or corporation, or persons, desiring to make use of said bridge and its approaches for other than ordinary public foot or ve- hicle traffic, and with the successors and assigns of such companies for the concurrent use of such portion of said public bridge and ap- 424 proaches as shall not substantially impair or restrict the public use and enjoyment thereof, upon such terms and conditions as shall be agreed upon, or to charge tolls or rentals for such special use; but no such contract or lease shall be entered into for a longer period than twenty years; and no such contract or lease shall be entered into by any such county unless such contract or lease shall be first approved by the Public Service Commission of this Commonwealth. Sec. 13, Act of May 24, 1917, P. L. 276. (629). The several counties of this Commonwealth are hereby authorized and empowered to appropriate, and pay out of the general county funds, all moneys necessary for said purposes; and to levy, assess, and collect taxes, for the purposes aforesaid, on all real and personal property within said county now or hereafter taxable for county purposes, in addition to all other taxes. Sec. 14, Act of May 24, 1917, P. L. 276. (630). The several counties are further authorized and em- powered pursuant to a resolution adopted for that purpose by a majority of the county commissioners of such county, to borrow money and to incur indebtedness for the purposes aforesaid, to an amount not exceeding the limit of indebtedness prescribed by the Constitution of this Commonwealth, in compliance with the laws regulating the manner of increasing such indebtedness, and also to fund any indebtedness incurred for the purposes aforesaid; and to issue, as evidences of such indebtedness, registered and coupon bonds, or either of them, payable within thirty years from fhe date of their issue, and bearing interest at a rate not exceeding six per centum per annum, payable semiannually, which bonds shall not be sold at less than their par value and accrued interest ; and to levy and collect taxes on all taxable property in such county, in addition to all other taxes, for the purpose of paying such indebtedness and interest thereon. Any county incurring such indebtedness shall, at or before the time of incurring the same, make provision for a sink- ing-fund to pay at maturity all indebtedness so incurred and interest thereon. Sec. IS, Act of May 24, 1917, P. L. 276, as amended by Sec. 3, Act of June 7, 1919, P. L. 414. (631). Should any board of county commissioners, in the exer- cise of the powers herein conferred, deem it necessary or advisable to enter upon any street or public highway in any eity or borough, or to take any other action afifecting the property, rights, or authority of any such city or borough, for the purpose of constructing or main- taining any such bridge, with its approaches and other appurtenances, or otherwise, the consent thereto of such city or borough, by ordi- nance, shall be first had and obtained. Sec. 16, Act of May 24, 1917, P. L. 276. 425 (632). Any city or borough, wherein any such bridge is pro- posed to be located or erected, shall have the power and authority to agree with said county to bear a portion of the cost of the locat- ing, laying out, opening, and construction of any such bridge and its approaches and appurtenances, and to provide the approach therefor within the limits of the respective city or borough, and to bear the cost of the maintenance of any approach within the respective city or borough, as shall be agreed upon between any such county, city, or borough. All such agreements shall be entered into in writing, and at least one executed copy shall be furnished to each county, city, and borough becoming a party thereto. Sec. 17, Act of May 24, 1917, P. L. 276. (633). Any bridge erected under the terms of this act shall be a county bridge, and the duty of maintaining the same shall, except as otherwise herein provided, devolve upon such county, and the ex- pense thereof shall be paid out of the general county funds provided for that purpose. Sec. 18, Act of May 24, 1917, P. L. 276. (634). Whenever different parts of any city within any county of this Commonwealth, or any part of such city and any township bordering thereon, are separated therefrom by any intervening valley or ravine, and the county commissioners of such county, or a majority of them, shall, by resolution, deem it expedient and necessary that such city construct a public bridge for the purpose of connecting the tprritories thus separated, and that such bridge will be of substantial advantage and benefit to the taxable inhabitants of the township bordering hereon or townships adjacent thereto, and that it is reason- able and proper that such county participate with such city in the cost and expense of the laying out and construction of such bridge, — then, and in that event, such couiity shall have the power to contract V\rith such city for the laying out and construction by such city of such bridge, and to pay to such city such portion of the cost thereof as the coimty commissioners shall deem reasonable and proper and shall agree to pay, and to appropriate money, levy taxes, and to incur indebtedness therefor. Sec. 1, Act of July 8, 1919, P. L. 761. (635). The several counties are further authorized and em- powered, pursuant to a resolution adopted for that purpose by a ma- jority of the county commissioners of such county, to borrow money and to incur indebtedness, for the purposes aforesaid, to an amount not in excess of the limit prescribed by the Constitution of this Com- monwealth and in compliance with the acts regulating the manner of increasing indebtedness ; and also to fund any indebtedness incurred 426 for the purposes aforesaid, and to issue as evidences of such indebted- ness registered or coupon bonds, or either of them, payable within thirty years from the date of their issue, and bearing interest at a rate not exceeding six per centum per annum payable semi-annually, which bonds shall not be sold at less than par and accrued interest; and to levy taxes on all taxable property in such county, in addition to all other taxes, for the purpose of paying such indebtedness and interest thereon. Any county incurring such indebtedness shall, at or before the time of incurring the same, make provision for a sink- ing-fund to pay at matvirity the indebtedness so incurred and interest thereon. Sec. 2, Act of July 8, 1919, P. L. 761. (636). When the building of a county bridge over a river, creek, or rivulet, railway or canal, has been found necessary by report of viewers, by the court, and by the grand jury, under proceedings as provided by existing laws, and it has also been found, in like man- ner, that the erection of such bridge will require more expense than it is reasonable that the one or more adjoining townships or city of the third class should bear, that whenever the county commissioners do not deem it advisable to enter such bridge on record as a county bridge, but shall consider it proper to assist such township or town- ships, or such city of the third class, in building the same, they are hereby authorized and empowered, from and out of the county funds, to either build such bridge, or any portion or portions thereof, or furnish such township or townships, or city of the third class, the whole or part of the money necessary to build it, without entering such bridge on record as a county bridge. Sec. 1, Act of June 13, 1879, P. L. 146, as amended by Sec. 1, Act of June IS, 1911, P. L. 970. Under this act, where the county commissioners assume for the county the entire burden of building a bridge, the county ig bound to build the approaches to the bridge, so as to make it completely ac- cessible to public travel. Com. vs. Westfield Borough, 11 Pa. C. C. 369, s. c. 1 D. R. 495. (e) Appropriation of Private Property for Bridge Pur- poses. (637). It shall be lawful, and the right is hereby given to the cities of this Commonwealth to enter upon, take, use and appro- priate private property for the purpose of constructing and maintain- ing all such piers, abutments, fills, slopes and approaches as shall be found necessary in the erection, construction and maintenance of such bridges as shall be authorized and constructed by such cities, within their corporate limits, over any stream or river which shall separate any parts or portions of such city. Sec. 1, Act of May 26, 1893, P. L. 139. 427 (638). If the compensation and damages arising from any such taking, using and appropriating of private property cannot be agreed upon by the owners thereof and such cities, it shall be lawful for such city to tender the bond thereof as security to the party claim- ing or entitled to any damages, or to the attorney or agent of any absent person, or to the agent or other officers of a corporation, or to the guardian or committee of any one under legal incapacity, the condition of which shall be that the said city shall pay, or cause to be paid, such amount of damages as the party shall be en- titled to receive, after the same shall be agreed upon or assessed in the manner provided by this act. In case the party or parties claiming damages refuse, or do not accept the security so tendered, the said city shall then give the" party, his or their agent, attorney, guardian or committee, written notice of the time when the same will be presented in the court for approval, and thereafter the said city may present said security to the court of common pleas of the county where the lands or other property are situated, and when approved, the said security shall be filed in said court for the benefit of those interested, and recovery may be had thereon for the amount of damages assessed, if the same be not paid, or cannot be made by execution on the judgment in the issue formed to try the ques- tion, and upon the approval of said security said city may proceed with the said work. Sec. 2, Act of May 26, 1893, P. L. 139. (639). In case the compensation for damages accruing from such appropriation have not been agreed upon any court of common pleas of the proper county, or any law judge thereof in vacation, on application thereto by said city or any person interested, shall ap- point three discreet and disinterested freeholders as viewers and ap- point a time, not less than ten nor more than twenty days thereafter, when said viewers shall meet upon the property and view the same and the premises affected thereby. The said viewers shall give at least ten days' personal notice of the time of their first meeting upon the owners, agents, attorneys or representatives thereof, if the same reside within the county in which such city is located, otherwise by handbills posted upon the premises or by such other notice as the court shall direct. The said viewers having been duly sworn or affirmed faithfully, justly and impartially to decide and true report to make concerning all matters and things to be submitted to them and in relation to which they are authorized to inquire under the provisions of this act, and having viewed the premises or examined the property shall hear all parties interested and their witnesses and shall estimate and determine the damages for the property taken, injured or destroyed, to whom the same are payable, and hav- 428 ing due regard to the advantages and disadvantages ; they shall give at least ten days' notice thereof in the manner herein provided to all parties interested of the time and place when said viewers will meet and exhibit said report and hear all exceptions thereto. After mak- ing whatever changes are deemed necessary the said viewers shall make report to the court, showing the damages, if any allowed, and file therewith a plan showing the location of said bridge, or bridges, the properties taken, injured or destroyed, and the names of the persons to whom such damages are payable. Sec. 3, Act of May 26, 1893, P. L. 139. (640). Upon the report of said viewers, or any two of them, being filed in said court any party may, within thirty days there- after, file exceptions to the same ,and the court shall have power to confirm said report, or to modify, change, or otherwise correct the same, or refer the same back to the same or new viewers with like power as to their report. Or within thirty days from the filing of any report in court, or the final action of the court upon the ex- ceptions, any party whose property is taken, injured or destroyed, may appeal and demand a trial by jury, and any party interested therein may, within thirty days after final decree, have an appeal to the Supreme Court. If no exceptions are filed, or no demands made for trial by jury within the said thirty days after the filing of said report, the same shall beconie absolute. The said court of common pleas shall have power to order what notices shall be gi1??n in connection with any part of said proceedings and may make ail such orders as it may deem requisite. Sec. 4, Act of May 26, 1893, P. L. 139. (641). The viewers provided for in the foregoing sections may be appointed before, or at any time after, the entry, taking, appro- priation^ or injury of any property or materials for constructing said bridge or bridges. The costs of the viewers and all court costs incurred in the pro- ceedings aforesaid shall be defrayed by the said city, and each of the said viewers shall be entitfed to a sum, not exceeding five dollars per day, for every day necessarily employed in performance of the duties herein prescribed. Sec. S, Act of May 26, 1893, P. L. 139. 429 ARTICLE XLIV. SEWERS AND DRAINS. (a) Construction of Sewers and Drains. (642). Every municipal corporation shall have power [to lay out, establish, or re-establish grades of streets and alleys, or parts thereof, and] to construct [bridges, piers, and abutments therefor, and] sewers and drains in any street or alley, or through or on or over private property. * * * * On petition, viewers shall be appointed as provided in the first section of this act, who shall assess the costs and expenses of the sewer, [or grading, paving, curbing, macadamiz- ing, footwalks, parking, shade-tree planting, or changing, altering, renewing, replanting, pruning, or other improvement of each street or allej'', or part thereof, within its corporate limits,] upon the prop- erty benefited, according to benefits, if sufficient can be found, but, if ndt, then the deficiency, when finally ascertained, shall be paid by the municipal corporation, and the proceedings of said viewers, and the proceedings on their report, shall be as provided in this act for viewers and reports of viewers in cases of property taken, injured or destroyed. Part of Sec. 8, Act of May 16, 1891, P. L. 75, as amended by Act of May 28, 1915, P. L. 573. See notes to Sec. (523). For the appointment of viewers and the proceedings of the view, see Art. XL. (b) Acquisition of Sewers by City. (643). From and after the passage of this act, it shall be lawful for any municipality, in which any corporation created and existing under and by virtue of the laws of this Commonwealth, or any per- son or persons or unincorporated associations, have constructed and are maintaining or may hereafter construct and maintain, sewers, culverts, conduits, and pipes, with the necessary inlets and appli- ances, for surface, under surface and sewage drainage, to become the owners of such sewers, culverts, conduits, and pipes, with the necessary inlets and appliances, for surface, under surface, and sew- 430 age drainage, and the property of such company, person or persons, or unincorporated associations, by paying therefor the actual value of the same at the time of taking by the municipality. Sec. 1, Act of April 19, 1901, P. L. 82, as amended by Sec. 1, Act of July 21, 1913, P. L. 865. In a proceeding to ascertain the value of a sewerage system, under the authority of this act, proof of the original cost of construction, while not controlling, is competent evidence to be considered as an element in ascertaining the present value. Borough of Hanover vs. Hanover Sewer Company, 251 Pa. 95, reversing 28 York, 77; see also Borough of Hanover's Petition, 26 York 153, 27 York 133, 5 M. L. R. 204. (644). In case of disagreement as to the amount to be paid, the same shall be ascertaiRed in the same manner as damages are now ascertained for private property taken, injured or destroyed by reason of municipal improvements, under the act of the General Assembly of the Commonwealth of Pennsylvania, approved sixteen May, one thousand eight hundred and ninety-one (Pamphlet Laws, 75), en- titled "An act in relation to the laying out, opening, widening, straightening, extending or vacating streets and alleys, and the con- struction of bridges in the several municipalities of this Common- wealth, the grading, paving, macadamizing or otherwise improving streets and alleys, providing for ascertaining the damages to private property resulting therefrom, the assessment of the damages, costs and expenses thereof upon the property benefited, and the construc- tion of sewers and payment of damages, costs and expenses thereof, including damages to private property resulting therefrom." Sec. 2, Act of April 19, 1901, P. L. 82. For the procedure provisions of the Act of May 16, 1891, P. L. 75, see Art. XL. (645). That whenever the amount to be paid by any municipality to any corporation, person or persons, or unincorporated associa- tion, for the acquisition of sewers, culverts, conduits and pipes, with the necessary inlets and appliances, under the act of the Gen- eral Assembly, approved the nineteenth day of April, Anno Domini one thousand nine hundred and one (Pamphlet Laws, eighty-two), shall have been ascertained in the manner provided in said act, it shall be lawful for the court of common pleas of the proper county, or any law judge thereof in vacation, on application thereto by petition by said municipal corporation or any person interested, to appoint viewers, who shall assess the costs and expenses of the sewers, culverts, conduits and pipes, with the necessary inlets and appliances, acquired by said municipality, upon the property bene- fited, according to benefits, if sufficient can be found; but, if not, then the deficiency when finally ascertained shall be paid by the 431 municipal corporation ; and the proceedings of said viewers, and the proceedings on their report, shall be as provided in said act of May sixteen, one thousand eight hundred and ninety-one (Pamphlet Laws, seventy-five), for viewers and reports of viewers in cases of property taken, injured, or destroyed. Sec. 3, Act of April 19, 1901, P. L. 82, as amended by Sec. 2, Act of July 21, 1913, P. L. 865. (c) Joint Ownership of Sewage Systems. (646) Whenever in the construction of a sewage system, includ- ing trunk-line sewers or drains and a sewage-disposal plant or plants, or either, after plans and specifications have been prepared and submitted to the State Department of Health, and approved in ac- cordance with the act of Assembly of April twenty-second, one thou- sand nine hundred and five, entitled "An act to preserve the purity of the waters of the State, for the protection of the public health," it shall be necessary or advisable for two or more municipalities, or a municipality and a township, to use such sewage system in common, then, and in such case, such municipalities and townships may unite in the construction and ownership of such sewage system, and shall jointly maintain the same. Sec. 1, Act of May 1, 1909, P. L. 306, as amended by Sec. 1, Act of June 15, 1911, P. L. 966. (647). Two or more municipalities, or such municipality and township, are hereby authorized to enter into an agreement for the purpose of building sewers as provided in the first section of this act. Sec. 2, Act of May 1, 1909, P. L. 306, as amended by Sec. 2, Act of June IS, 1911, P. L. 966. (d) Connection with Sewers of Other Municipalities. (648). From and after the passage of this act any municipality [and township of the first class] in the Commonwealth may con- nect with the sewer or sewers owned by any adjacent or adjoining municipality, for sewage purposes, in the manner and subject to the conditions hereinafter prescribed. Sec. 1, Act of July 17, 1901, P. L. 668. (649). Whenever any city [or borough or township of the first class] shall desire to connect with the sewer of any adjacent munici- pality, for sewage purposes, an appUcation shall be made by councils to the court of quarter sessions of the proper county, setting forth that fact; and if the court shall be of the opinion that this can be done without in any way impairing the usefulness of the existing 432 sewer, it shall appoint three viewers, who shall personally view and inspect the sewer and the proposed connection therewith, and in- vestigate all other facts in the case, and levy and assess the dam- ages, or proportionate part of the expense of building the original sewer, which the petitioning municipality should pay, and also fix the proportion of the expense for repairs which each municipality shall thereafter bear, and determine all other questions liable to ariee in connection therewith; and thereupon report to the court the result of their investigation and deliberations, which said report shall be confirmed within thirty days after the filing, unless an appeal should be taken therefi-om, which appeal shall be prosecuted as simi- lar appeals are now by law required to be prosecuted; and either party may appeal from the decision of the court of quarter sessions to the Superior Court. Sec. 2, Act of July 17, 1901, P. L. 668. (e) Entry Upon Private Lands for Sewer Purposes. (650). All cities of the Commonwealth are hereby authorized and empowered, by themselves, their agents, artisans, engineers, and workmen, with their tools, appliances, instruments, carts, wagons, and other carriages, and beasts of burden or draft, from time to time and at all time hereafter, for the purpose of es- tablishing and constructing a system of sewers and drains, to enter into such lands and enclosures, and public or private roads or high- ways, or over or through any private streams, as may be necessary, and to occupy, excavate and lay sewers and drains through the same, to maintain, alter and repair, doing as little damage to private property as possible, and making compensation to the owner or owners thereof in the manner hereinafter provided. Sec. 1, Act of April 10, 1905, P. L. 125. The title referring to lands within or without the corporate limits is the same in effect as the body of the act, for there the cities are authorized to enter upon such lands and enclosures as may be neces- sary for the purpose of establishing and constructing a system of drains or sewers, and they are not thereby confined to the limits of their municipality. Petition of City of Lancaster, 20 D. R. 225, s. c. 27 Lane. 233, 2 M. L. R. 121. (651). All cities, by their engineers and laborers, with their tools, appliances, instruments, carts, wagons, and other carriages, and beasts of burden or draft, may enter upon the land contiguous to the sewers constructed or in the course of construction, first giving notice to the owner or owners thereof, and from and thence take and carry away stone, earth, sand or other materials necessary to the construction, repair, or proper laying and repair of said sewers, doing as little damage as possible, and repairing any breaches they may 433 28 make in the enclosures thereof, and making compensation to the owner or owners thereof in the manner hereinafter provided. Sec. 2, Act of April 10, 1905, P. L. 125. (652). If the parties cannot agree upon the compensation to be made to the owner or owners of such land, enclosures, stream.s, public or private roads or highways, or to any person or persons who may be injured by the diversion, absorption, or pollution of any waters that may be used by said cities for the purpose afore- said, it shall and may be lawful for either party to present a peti- tion to the court of common pleas of the county in which the lands are situate, asking the court to appoint three viewers to view and assess, and report to the court, what damage, if any, has been done by the said city. The report to be filed at the next term of court; and notice of the time of the meeting of said viewers to be served upon all parties interested, at least five days before the day of view; which report, being confirmed by the court, judgment shall be entered thereon ; and execution may issue in case of non-payment of the sum awarded; with two dollars per diem, and mileage, for each day the viewers were in attendance, and the same pay for witnesses as now provided for attendance at court; with power in the viewers to issue subpoenas, at the instance of either party, to compel the attendance of witnesses ; the costs of the proceedings to be assessed and paid by the losing party : Provided, That either party may appeal to the common pleas court, within thirty days after such report shall have been filed in the prothonotary's office of said county, in the same manner as appeals are allowed in other cases; upon which appeal such proceedings shall be iiad as are used in actions for dam- ages at law. Sec. 3, Act of April 10, 1905, P. L. 125. 434 ARTICLE XLV. WATER SUPPLY. (a) Acquisition of Water Works. (653). The several cities [and boroughs] of this Commonwealth, desirous of owning and operating the waterworks, plants, or system for the supplying of water to any such municipality and the inhab- itants thereof, which waterworks, plants, or system is now, or may hereafter be, owned by a private corporation, firm, or individual, may petition the court of common pleas of the proper county, setting forth that the said municipality is desirous of owning said water plant or s)^stem, owned by such corporation, firm, or individual, and that it will be necessary, in order to make payments therefor, to issue bonds, secured by such plant or system of waterworks, and that therefore a value should be placed upon such waterworks, plant, or system, including all property, real or personal, used in connection therewith and reasonably necessary for its purposes. Sec. 1, Act of May 31, 1907, P. L. 355. A water company incorporated since the Act of June 2, 1887, P. L. 310, is not possessed of any exclusive privileges. Where a water company files a paper disclaiming exclusive privileges and stating that it will not sell its plant at any valuation to a borough which it supplies, the court will not appoint appraisers under the Act of May 31, 1907, P. L. 355, upon petition of the borough. Catasauqua Borough's Petition, 3 Lehigh Co. L. J. 48. This act is not applicable to a water company incorporated in 1897 under the general corporation Act of April 29, 1874, P. L. 73, and which had, by contract with the borough, obtained the exclusive priv- ilege of supplying water in the borough. In re Petition of West Con- shohocken, 29 Montg. Co. 9, s. c. 4 M. L. R. 138. A water company incorporated and furnishing water to a munici- pality prior to the date of this act is not subject to its provisions. The charter of the company constitutes a contract with the state which cannot be abrogated by legislative enactment. Manheim Bor- ough vs. Manheim Water Co., 229 Pa. 177, affirming 27 Lane. L. R. 321. (654). The said court shall thereupon appoint three disinterested civil engineers as appraisers, to value and appraise such plant or system and the property used in connection therewith and reasonably 435 necessary for its purposes, who shall file their report in the office of the prothonotary of the proper court within three months after their appointment, unless such time be extended by the court. Sec. 2, Act of May 31, 1907, P. L. 3S5. In a case where procedings have been begun under this act, by a municipality for the purpose of acquiring the plant of a water com- pany, and the respondent files a disclaimer consenting that the munici- pality may install a plant with like force and effect as if the proceeding had been prosecuted to completion, and upon this disclaimer the pe- tition of the municipality is dismissed, the water company cannot thereafter, and after the municipality has spent large sums of money towards the construction of a plant of its own, maintain a bill in equity to prevent the completion of the municipal water works. Clear Springs Water Company vs. Catasauqua Borough, 231 Pa. 290, affirm- ing 3 Lehigh Co. L. J. 319. (655). The appraisers so appointed shall have full access to the books and records of the private corporation, firm, or individual owning said waterworks or system, to inform themselves as to the income and value thereof. They shall have power to administer oaths, and are hereby authorized to hear and consider the testimony of witnesses and other legal proofs. Their report shall be final, if not appealed from within ten days after notice of the filing thereof shall have been served on the mayor .or burgess of the city [or borough] and upon the corporation, firm, or individual owning the waterworks. Within said ten days either party may appeal from such appraise- ment, alleging an under or over valuation of the property thereby, and praying for a hearing before the court; and the said court shall thereupon, upon application of either party, fix a time when said appeal may be heard, of which time at least ten days' notice shall be given to the parties ; and upon such hearing the court shall have power, after hearing legal proofs and arguments, to increase or lower such appraisement, or otherwise, and modify the same as the facts may warrant, subject, however, to the right of appeal by either party to the proper appellate court, as in other cases in equity. Sec. 3, Act of May 31, 1907, P. L. 355. (656). After such value is finally determined, the municipality is authorized to buy said water plant at the valuation so fixed and determined; and the said corporation, firm, or individual, owning same, shall, within ten days' notice of such determination, and a request by the municipality so to do, file in said court a paper in- dicating its consent and election to sell and convey its plant, system, and property, so appraised, to the municipality, at the valuation fixed as aforesaid ; and, in default whereof, such corporation, firm, or individual shall cease to have any exclusive privilege of supplying said municipality, or the citizens thereof, with water, and said munic- 436 ipality may install or cause to be installed such plant or system as the authorities may deem necessary and expedient for the accom- modation of the public. Sec. 4, Act of May 31, 1907, P. L. 355. An issue of bonds, under this act, which raises the municipal in- debtedness above the constitutional limitation of seven per centum is illegal and will be prohibited upon petition for an injunction. Les- ser vs. Warren Borough, 237 Pa. 501, affirming 21 D. R. 578, 60 P. L. J. 619, 3 M. L. R. 153. (657). For the purpose of said purchase the municipality may issue bonds, which shall be secured solely by such waterworks, sys- tems and property, and the revenues thereof, and without other lia- bility whatever of said municipality thereon, to an amount not ex- ceeding the appraisement of the value fixed by said appraisers or the court. The proceeds of the sale of such bonds shall be used exclu- sively for the purpose of making payment for the property so ac-- quired. Sec. S, Act of May 31, 1907, P. L. 355, as amended by Sec. 1, Act of April 22, 1909, P. L. 135. (658). The municipality shall provide an adequate sinking-fund for the receipts and revenues derived from said waterworks or systems, for the payment of the interest on such bonds and for their redemption. The bonds shall be payable within thirty years from the date of their issue, and shall be redeemable at such earlier period as the municipality may by ordinance provide, and shall bear interest at a rate to be fixed by the municipality, not exceeding six per centum per annum. The bonds shall be exempt from taxation for any purpose. Sec. 6, Act of May 31. 1907, P. L. 3S5, as amended by Sec. 2, Act of April 22, 1909, P. L. 135. (659). Should there be, at the time of the passage of this act, a contract or agreement, in writing, existing between any corporation, firm, or individual owning the water plant or system, and a munici- pality then being supplied with water by such corporation, firm or in- dividual, establishing or adjusting or fixing the manner in which such water plant or system may be appraised, purchased, or acquired, then, and in that case, appraisers shall be selected and the appraise- ment made in accordance with the terms of such contract, and to the respective parties to such contract shall, in lieu of the preceding provisions of this act, carry out the terms of said contract in ar- riving at the value of said water-plant or system. Sec. 7, Act of May 31, 1907, P. L. 355. (660). The council of any city, [borough, or town] of the com- monwealth of Pennsylvania may, on behalf of such city, [borough, or town] enter into a contract with any private individual, copartner- 437 ship, association, or corporation for the leasing of any water-supply works, systems and property, or both, of such private individual, copartnership, association or corporation. Sec. 1, Act of May 3, 1917, P. L. 141. (661). The said leasing may be for such term of years and at such rental as shall be agreed upon by the city, borough, or town and the private individual, copartnership, association, or corporation. Sec. 2, Act of May 3, 1917, P. L. 141. (662). The property so acquired shall be operated in the same manner as if the same had been acquired by such city, [borough or town] by purchase or condemnation proceedings. Sec. 3, Act of May 3, 1917, P. L. 141. (663). The council of the city, [borough, or town,] with the con- cent of the Public Service Commission, shall fix the rates to be charged for the water furnished within the limits of such city, [bor- ough, or town] to individuals, copartnerships, associations, or cor- porations. Sec. 4, Act of May 3, 1917, P. L. 141. (b) Appropriation of Springs and Streams. (664). Any city [or borough] desiring to erect waterworks, or to improve its water supply, may, for such purpose, appropriate springs, streams, known as rivers or creeks, lands, easements, and rights of way, whether within its territorial limits or not; and for the purpose of conducting water obtained outside of the territorial limits of any city [or borough,] may lay pipes, across, under and over any lands, rivers, streams, bridges, public highways, and cross railroads: Provided, That no waters or springs, appropriated under the provisions of this act, shall be used in such manner as to de- prive the owner or proprietor thereof of the free use of and enjoy- ment of the same, at all times, for any domestic, dairy, stock, or farm purposes. Sec. 1, Act of May 25, 1887, P. L. 267, as amended by Sec. 1, Act of April 15, 1907, P. L. 90. The Act of April IS, 1907, P. L. 90 is constitutional although its title gives no notice of the proviso in the body of the act in favor of the owner or proprietor of springs. Stein vs. Macungie Borough, 22 D. R. 785, s. c. 5 Lehigh Co. L. J. 22, 4 M. L. R. 12, 5 M. L. R. 254. (665). Prior to any appropriation, the city [or borough] shall attempt to agree with the owner as to the damage done or likel}' to be done to him. If the parties cannot agree, or the owner cannot be found, or is not sui juris, the said city [or borough] may file its 438 bonds in the common pleas court of the county conditioned for the payment, to the owner or owners of the property appropriated, of the damages for the taking thereof when the same shall have been ascertained according to law. Upon the approval of the bond and its being filed, the right of the corporation to enter upon the property or rights intended to be appropriated shall be complete. Upon peti- tion of either the property owner or the city [or borough] at any time thereafter, the said court shall appoint three disinterested free- holders of the county to serve as viewers, to assess the damages proper to be paid to the owner for the property or rights appro- priated and shall fix a time for their meeting, of which notice shall be given to both parties. When the report is filed either party may appeal and have a jury trial, as provided by law. Sec. 2, Act of May 25, 1887, P. L. 267, as amended by Sec. 1, Act of June 19, 1911, P. L. 1033. The provision authorizing the city or borough to enter upon the property or rights upon filing a bond is for the benefit of the munici- pality. The courts have' no power to compel a city or borough to file its bond but if it enters adversely without having done so it is liable to successive actions of trespass for damages, or to ejectment by injunction. Lancaster & Susquehanna Turnpike, 26 Lane. L. R. 6, *. c. 22 York 108. (c) Impounding Water from Forest Reservations. (656). The Commissioner of Forestry and the Forestry Reserva- tion Commission are hereby authorized and empowered to give to [boroughs and other] municipalities of this Commonwealth, upon such terms and subject to such restrictions and regulations as said Commissioner and Commission may deem proper, the privilege of impounding water upon any Forest Reservations, now owned or hereafter to be acquired by the Commonwealth, and of constructing, maintaining and operating lines of pipes upon and through said reservations, for the purpose of conveying water therefi-om, when- ever in the judgment of the said Commissioner and Commission it shall be to the public interest so to do. Sec. 1, Act of April 14, 1905, P. L. 156. Quaere: Does the word "municipali,ties" as used in this act apply to cities or is it restricted to municipalities lower in grade than boroughs? (d) Storage of Water on Portions of Turnpikes and Public Roads. (667). Whenever any municipal corporation in this Common- wealth shall supply water to the public, shall have found, or shall find, it necessary, in storing water, to occupy and flow with water portions of any turnpike or any public road in this Commonwealth, 439 or where any public road now leads into, crosses over or through any reservoir used for the storing of water, the said municipality shall cause the same to be reconstructed forthwith, at its own proper ex- pense on a favorable location and in as perfect a manner as the original road, and for such purpose are authorized to condemn land for that purpose whenever an agreement as to price cannot be had with the owners. And after such change is made, such municipality shall file in the court of quarter sessions of the proper county a map or plan showing such change of road, and shall furnish to the super- visors or other public authorities of the township or municipal cor- poration a copy of such map and the changes made. Sec. 1, Act of May 7, 1907, P. L. 167. (668). Any such municipality shall be and is hereby empowered to acquire and hold, by purchase or condemnation, such lands, along and contiguous to the streams of water or reservoirs from which water is taken for public use, as may be necessary to preserve them from contamination : Provided, That no land shall be taken for the uses mentioned in this act until just compensation shall have been made for property taken, injured, or destroyed, which shall be paid or secured before such taking, injury, or destruction. Sec. 2, Act of May 7, 1907, P. L. 167. (669). The damages incurred in changing the location of any turnpike or public road, as authorized by this act, shall be ascer- tained and paid by such municipality, in the same manner as is pro- vided for in regard to the taking of lands, waters, materials, property, and franchises for public purposes, as now provided by law. Sec. 3, Act of May 7, 1907, P. L. 167. (e) Protection of Drainage Areas. (670). Any city owning and operating a water-works system is hereby authorized and empowered to enter, by any of its employes, upon private lands through which may pass any stream or streams of water supplying such city, for the purpose of patrolling the drain- age area of such stream or streams, and making investigations or in- quiries pertaining to the condition of the stream or streams, sanitary or otherwise : Provided, however. That any injury or damage done to the property, so entered upon shall be paid by such city. Sec. 1, Act of May 2, 1905, P. L. 350. (f) Extension of Water Pipes and Improvements into Adjoining Districts. (671 ) . All commissioners of water-works in any city of the third class, wherein the title to the water-works therein located is in the name of the commissioners of water-works, shall have the right, 440 and are hereby authorized and empowered, to extend the water- pipes and improvements of any such water-works beyond the bounds of the cities wherein they are located, into the county and munici-- palities of the county in the vicinity of said cities, and to furnish water to any and all corporations, persons, and municipalities in the counties in which such water-works are located, under and in pursuance of the laws, rules, and regulations now existing, or to be hereafter enacted, governing commissioners of water-works. Sec. 1, Act of June 13, 1913, P. L. 507. (g) Mortgaging of Water- Works Owned by Subdivisions of Cities. (672). Whenever any ward, district, subdivision or corporation which, under existing laws, may form part of any public or municipal corporation, and which are not organized or conducted for private profit, are engaged in supplying with water any city of which they are a part of less population than twenty thousand inhabitants, they shall have power in addition to all powers enjoyed under exist- ing laws to borrow money to be secured by mortgage upon the real estate belonging to said ward, district, corporation, subdivision or part of such public or municipal corporation respectively: Pro- vided, That the question of borrowing money and executing a mort- gage as aforesaid shall first be submitted to an election of the quali- fied electors of the district which is responsible for the existing indebtedness of said ward, district, subdivision or corporation, re- spectively; notice of said election to be published in the cities in which said corporations are respectively located once a week for three weeks prior thereto in two newspapers published in said city, or if there be none, then in two newspapers published nearest there- to; and the notice of the said election shall contain the amount of the proposed mortgage and a description of the property to be mort- gaged : Provided, That such notice shall only be given by the direc- tion of a majority of the councilmen residing, in and representing such district. Sec. 1, Act of May 8, 1876, P. L. 132. (673). Such election shall be held by the regular election officers of the ward or district as other elections are held by law ; the tickets voted to be labeled on the outside "mortgage ticket," and to contain inside thereof the words, "for the mortgage," or "against the mort- gage," respectively. Sec. 2, Act of May 8, 1876, P. L. 132. (674). It shall be the duty of said election officers, after the closing of the polls, to count up all the votes so cast for or agair\st the mortgage, and within three days to make return thereof to the 441 directors of such water-works, who, if a majority of said voters shall be in favor of such mortgage, shall thereupon be authorized to execute and deliver a mortgage of the described premises for the amount of money contained in the notice aforesaid, which said mort- gage shall recite the notice, election and other proceedings herein directed. Sec. 3, Act of May 8, 1876, P. L. 1.32. 442 ARTICLE XLVI. WHARVES AND DOCKS. (675). The damages for the taking or injury of any property for use as a public wharf, pier, or bulkhead shall include full com- pensation for the value of said property taken or injured; and, in the event that the property so taken or injured shall constitute a part of a plant used as an entirety, the damage to owner or tenant shall be assessed by taking the difference in market value of such plant as a whole, including buildings, machinery, fixtures, and other equipment, installed and used in said plant, before and after such taking or injuring, and notwithstanding that part of said plant may be separated by a street or public highway. Sec. 1, Act of June 20, 1913, P. L. 543. See Sees. (71) and (157). (676). In addition to their existing powers in respect to the public wharves, the municipalities of this Commonwealth shall have power to erect and maintain market-houses and terminal sheds or stations on said wharves, for the receipt and distribution of freight, cypress and other matter hauled by boats, railroads, and street cars. Said power shall include the right to construct railroad and street- railway tracks or other facilities on said wharves to provide for the convenient handling of such freight or express matter, and the right to collect rents, tolls, or charges for the use of such market-houses, terminal stations, tracks, and other facilities. No permit other than a license revocable at will shall be granted for the use of such tracks, terminal stations, or other facilities, and no exclusive permit for the use of such tracks or facilities shall be granted. Sec. 1, Act of July 24, 1913, P. L. 1017. See Sees. (71) and (157). (677). No structure erected pursuant to the provisions of this act, and no right granted under the powers herein conferred, shall interfere with the general public use of wharves for river commerce. Sec. 2, Act of July 24, 1913, P. X.. 1017. 443 ARTICLE XLVII. WATER COURSES. (a) Acquisition and Entry upon Property for Construc- tion of Dams. (678). Whenever the consent of the Commonwealth of Pennsyl- vania has been or shall be granted to any city to construct and maintain a dam, in a public navigable river or stream flowing through, or partly within and partly without its corporate limits for the purpose of improving the sanitary conditions of such city, power is hereby conferred upon it to purchase, acquire, enter upon, take, use and appropriate private property, either within or without its territorial limits, for that purpose; and if said city cannot agree with the owner or owners, lessee or lessees, of such privatie property upon the compensation for the property appropriated or the dam- ages done, or when by reason of the absence or legal incapacity of any such owner or owners, lessee or lessees, no such compensation can be agreed upon, the court of common pleas of the county in which such property may be situate, or any judge thereof in vacation, on application thereto by petition by said city or such owner, lessee, or any person interested, shall appoint viewers, in accordance with the existing law or laws governing the taking of private property under the power of eminent domain, to view and ascertain the dam- ages done by reason of such taking, use, appropriation, occupancy, or injury. All proceedings to be had and report made with the right of appeal and exception, in accordance with the existing law or laws aforesaid, in such case made and provided. Sec. 1, Act of June 5, 1913, P. L. 423. (b) Vacation, Alteration and Relocation of Creeks, Runs or Natural Waterways. (679). From and after the passage of this act, whenever [the burgess and town council of any borough or] the councils of any city within this Commonwealth shall deem it essential to the preserva- 444 tion of health, or to the interest and welfare of any [borough or] city and the inhabitants thereof, to vacate, change, al^r or re- locate the course or channel of any creek, run or natural waterway, other than navigable streams, [the said burgess and town council or] the councils of any city shall have full power and authority by ordinance duly passed to vacate, change, alter or relocate the course or channel of any creek, run or natural waterway other than navi- gable streams, or any part thereof, withiii the limits of such [bor- ough, or] city, and for this purpose to enter iipon, condemn and take such property and materials as may be necessary to affect such change, alteration or relocation: Provided, however. That no or- dinance for the vacation, changing, alteration or relocation of the course or channel of any creek, run or natural waterway shall be passed until notice thereof has been given by publication of the proposed ordinance, at length, for at least once a week for three consecutive weeks in at least one newspaper published in the county in which said [borough or] city is situate. Sec. 1, Act of April 28, 1899, P. L. 74. (680). To effectually carry out the provisions of this act, the [borough or] city authorities of any [borough or] city may, at any time, after the passage and approval of the proper ordinance, pre- sent a petition in any court of common pleas of the proper county, setting forth, at length, the nature and character of the vacation, change, alteration or relocation proposed in the course or channel of any such creek, run or natural waterway, together with a descrip- tion of the proposed change or improvements ; and praying the court to appoint three disinterested freeholders to ascertain the dam- ages, costs and expenses resulting from the vacation, change, alter- ation or relocation of the course or channel of any such creek, run or natural waterway, and to fairly and ratably assess the said dam- ages, costs and expenses, or so much thereof as said viewers may deem just and reasonable, upon the property benefited or affected by such vacation, change, alteration or relocation, and make report thereof to court, whereupon said court of common pleas, of any law judge thereof in vacation, shall appoint three disinterested free- holders as viewers, and appoint a time, not less than twenty nor more than thirty days thereafter, when said viewers shall meet upon the line of the improvement and view the same and the prem- ises affected thereby. Said viewers shall give notice of the time of their first meeting by posting handbills upon the premises affected at least ten days prior to such meeting, or by such other means as the court shall deem necessary and proper. Sec. 2, Act of April 28, 1899, P. L. 74. 445 (681). Said viewers, having been duly sworn or affirmed faith- fully, justly and impartially to decide and true report to make con- cerning all matters and things to be submitted to them, and in rela- tion to which they are authorized to inquire in pursuance to the provisions of this act, and having viewed the premises or examined the property, shall hear all parties interested and their witnesses, and shall estimate and determine the costs and expenses and the damages for property taken, injured or destroyed, to whom the same is payable ; and having so estimated and determined the dam- ages, together with the benefits as hereinafter mentioned, they shall prepare a schedule thereof, and give notice to all parties to whom damages are allowed, or upon whom assessments for benefits are made, of a time, not less than ten days thereafter, and of a place where said viewers will meet and exhibit said schedule and hear all exceptions thereto and evidence. Notice of the time and place of said meeting shall be given, by personal service, upon all parties allowed damages or assessed benefits, as shown upon such schedule. After making whatever changes are deemed necessary, the said viewers shall make report to the court, showing the damages, costs and expenses, and benefits allowed and assessed, in each case, and file therewith a plan showing the improvements, the properties taken, injured or destroyed, and the properties benefited thereby. When said report is filed, notice thereof shall be given by publication once a week for two weeks in a newspaper published in the county in which said borough or city is located, proof of publication of which shall be filed with the court at least five days before the confirmation of said report. Said notice shall state the date of filing of the report, and shall contain a schedule of damages and benefits as shown therein, and shall further state that, unless excep- tions thereto be filed within thirty days from the date of filing, the said report will be confirmed absolutely. Sec. 3, Act of April 28, 1899, P. L. 74^ (682). The payment of damages sustained by the changes pro- vided for in this act, in the course or channel of any creek, run or natural waterway may be made either in whole or in part, by the [borough or] city, or in whole, or in part by assessment upon the property benefited by such improvements as said viewers may deter- mine and the court approve ; and, in the latter case, the viewers appointed to assess damages, having first estimated and determined the same, together with the costs and expenses thereof apart from benefits, shall also assess the said damages, costs and expenses or so much thereof as they may deem just and reasonable, upon the properties peculiarly benefited by the improvement including in the said assessment all properties for which damages have been allowed, 446 if in their judgment such properties shall be benefited thereby, and shall report the same to the said court. The total assessment for benefits shall not exceed the total damages and cost of such change or improvement. Sec. 4, Act of April 28, 1899, P. L. 74. Where a municipality by ordinance directs the construction of a main storm sewer, and subsequently and after the sewer has been constructed directs by another ordinance that a run should be changed and relocated so that the water thereof should be deflected into the sewer, and thereafter viewers are appointed who do not assess the damages, costs and expenses resulting from the change of the course of the run, as provided by this act, but do ascertain the cost of the sewer, and assess benefits against properties not on the line of the improvement such assessment of benefits is invalid and will be set aside. Grafius Run, 218 Pa. 632, affirming 31 Super. Ct. 638. (683). The viewers provided for in the foregoing sections may be appointed before or at any time after the entry, taking, appro- priation or injury of any property or material for constructing said improvement, or making such changes or alterations, as herein pro- vided for. The costs of the viewers and all court costs, incurred in the proceedings aforesaid, shall be defrayed by the [borough orj city, and each of said viewers shall be entitled to a sum not to ex- ceed three dollars ($3) per day for every day necessarily employed in performance of the duties herein prescribed. Sec. 5, Act of April 28, 1899, P. L. 74'. (684). In all cases where the parties have not agreed upon the amount of damages claimed, or where, by reason of the absence or legal incapacity of the owner or owners, no such agreement can be made for the lands, property or materials to be taken, occupied or injured, the [borough or] city may tender sufficient security to the party claiming or entitled to any damages, or to the attorney or agent of any persoa absent, or to the agent or other officer of a cor- poration, or committee of any one under legal incapacity, the condi- tion of which shall be that the said borough or city shall pay or cause to be paid such amount of damages as the party shall be entitled to receive after the same shall have been agreed upon by the parties or assessed in the manner provided for by this act. In case the party or parties claiming damages refuse or do not accept the security so tendered, the [borough or] city shall then give the party, his or their agent, attorney, guardian or committee, written notice of the time when the same will be presented for filing in the court, and there- after the said borough or city may present said security to the court of common pleas of the county wherein the lan'ds or other property are situated, and, if approved, the security shall be filed in said court for the benefit of those interested, and recovery may be had 447 thereon for the amount of damages assessed, if the same be not paid, or cannot be made by execution on the judgment in the issue formed to try the question, and upon the approval of said security said [borough or] city may pi'oceed with the improvement. Sec. 6, Act of April 28, 1899, P. L. 74. (685). Upon the report of the said viewers, or any two of them, being filed in said court any party may, within thirty days there- after, file exceptions to the same, and the court shall have power to confirm said report, or to modify, change or otherwise correct same, or change the assessment made therein, or refer the same back to the same or new viewers, with like power as to their report ; or, within thirty day^ from the filing of any report in court, any party whose property is taken, injured, damaged or destroyed may appeal and demand a trial by jury, and any party interested in any assess- ment of damages or benefits may, within thirty days after final decree, have an appeal to the Supreme or Superior Court. The said court of common pleas shall have power to order what notices shall be given in connection with any part of said proceeding, and may make all such orders as it may deem requisite. Sec. 7, Act of April 28, 1899, P. L. 74. (686). In case any [borough or] city shall repeal any ordinance passed, or discontinue any proceeding taken, providing for any of the changes or alterations provided for in the preceding sections of this act, prior to the entry upon, taking, appropriation or injury to any property or materials, and within thirty days after the filing" of the report of the viewers assessing damages and benefits, the said municipality shall not thereafter be liable to pay any damages which have been or might have been assessed, but all costs upon any pro- ceeding had thereon shall be paid by said municipal corporation, together with any actual damage, loss or injury sustained by reason of such proceedings. Sec. 8, Act of April 28, 1899, P. L. 74. (687). When the court had made its final decree, confirming said report or fixing the assessments in each case, the assessments of benefits shall become and be liens upon the property assessed, and collected as now provided by law. Said assessment of benefits shall bear interest at the expiration of thirty days from the con- firmation of the report or the making of the decree, and may be col- lected by action of assumpsit; the lien of the judgment, however, to be limited to the property assessed. Sec. 9, Act of April 28, 1899, P. L. 74. (688). Nothing in this act contained shall apply to any creek, run or natural waterway now or hereaftw used by any municipality 448 or water company as a source of supply, in whole or in part, for water, unless such municipality or water company shall consent and agree to the vacation, change, alteration and relocation of the course or channel of such creek, run or waterway. Sec. 10, Act of April 28, 1899, P. L. 74. (c) Confining, Paving and Enclosing Creeks, runs and Natural Waterways. (689). From and after the passage of this act, whenever any city of the third class within this Commonwealth shall deem it es- sential to the preservation of health or to the interest and welfare of the city and the inhabitants hereof, to confine, and pave, or com- pletely enclose, any creek, run, or natural waterway, other than navi- gable streams, the said city shall have full power and authority by ordinance duly passed, and after plans and specifications have been submitted to and received the approval of the Water Supply Com- mission of Pennsylvania, to confine and pave, or completely enclose, any creek, run or natural waterway, other than navigable streams, or any part thereof, within the limits of said city, and, for this pur- pose, to enter upon any such lands as may be necessary to complete the work of confining and paving, or complete enclosure. Sec. 1, Act of June 1, 1907, P. L. 378. (690). When the work of confining and paving, or complete en- closure, of any creek, run or natural waterway, other than navigable streams or any part thereof, has been completed, as specified in the ordinance, if the said city cannot agree with the property holders, on the division of the costs and expenses thereof, the city may pre- sent its petition, in any court of common pleas of the proper county, setting forth briefly the character of such improvements, and that the cost, expenses, and damages incurred have not been collected or fully paid to said city, and praying the court to appoint three disin- terested freeholders as viewers, to ascertain the damages, costs and expenses resulting from the confining and paving, or the complete enclosure, of any creek, run or natural waterway, and to fairly and ratably assess the said damages, costs, and expenses or so much thereof as said viewers may deem just and reasonable, upon the property benefited or affected by such confining and paving, or com- plete enclosure, and make a report thereof to court; whereupon said court of common pleas, or any law judge thereof in vacation shall appoint three disinterested freeholders as viewers, and appoint a time, not less than twenty nor more than thirty days thereafter, when said viewers shall meet upon the line of the improvement and view the same and the premises afifected thereby. Said viewers shall give at least ten days' notice of their first meeting, by publication in one of the newspapers published in the said city, and by posting 449 29 handbills upon the premises on the line of said improvement, or by such other means as the court shall deem necessary and proper. Sec. 2, Act of June 1, 1907, P. L. 378. (691). Said viewers, having been duly sworn or affirmed faith- fully, justly and impartially to decide and true report to make con- cerning all matters and things to be submitted to them in relation to which they are authorized to inquire, in pursuance of the pro- visions of this act, and, having viewed the premises or examined the property, shall hear all parties interested and their witnesses; and shall estimate and determine the costs and expenses of the improve- ment, and the damages for property taken, injured or destroyed, if any, to whom the same is payable ; and, having so estimated and de- termined the costs, expenses, and damages, together with the bene- fits as hereinafter mentioned, they shall prepare a schedule thereof, and give notice to all parties to whom damages are allowed, or upon whom assessments for benefits are "made, of a time not less than ten days thereafter, and of a place where said viewers will meet and exhibit said schedule, and hear all exceptions thereto and evidence. Notice of the time and place of said meeting shall be given by per- sonal service upon all parties allowed damages or assessed benefits, as shown upon said schedule, if resident in the city, and to all others by publication in a newspaper as provided for in the second section of this act. After making whatever changes are deemed necessary the said viewers shall report to the court, showing the damages and benefits assessed in each case, and file therewith a plan showing the improvement of the properties taken, injured, or destroyed, and the properties benefited thereby. When said report is filed, notice thereof shall be given by publication once in the newspaper publish- ing the notice provided for in section two of this act, and by personal notice to each person awarded damages or assessed benefits. Said rotice shall state the date of filing the report and shall contain a schedule of the damages and benefits shown therein, and shall further state that, unless exceptions thereto be filed within thirty days from the date of filing, the said report will be confirmed absolutely. Sec. 3, Act of June 1, 1907, P. L. 378. (692). The cost of the improvement, including the payment of damages sustained by the making of the improvements, aforesaid, may be borne either in whole or in part by the city, or in whole or in part by assessment upon the property benefited by such improve- ments, as said viewers may determine and the court approve; and, in the latter case the viewers appointed to assess the damages, hav- ing first estimated and determined the same apart from benefits, shall also assess the said damages, or so much thereof as they may deem just and reasonable, upon the properties peculiarly benefited by 450 the improvement, including in the said assessment all properties for which damages have been allowed, if in their judgment such prop- erties will be benefited thereby, and shall report the same to the said court. Sec. 4, Act of June 1, 1907, P. L. 378. (693). The costs of the viewers, and all court costs incurred in the proceedings aforesaid, shall be defrayed by the said city; and each of the said viewers shall be entitled to the sum -of five dollars ($5.00) per day for every day necessarily employed in the perfor- mance of the duties herein prescribed. Sec. 5, Act of June 1, 1907, P. L. 378. (694). Upon the report of said viewers, or any two of them, being filed in said court, any party may, within thirty days thereafter, file exceptions to the same ; and the court shall have power to confirm , said report, or to modify, change, or otherwise correct the same, or change the assessments made therein, or refer the same back to the same or new viewers, with like power as to their report; or, within thirty days from the filing of any report in court, any party whose property is taken, injured, or destroyed may appeal, and demand a trial by jury; and any party interested in any assessment of dam- ages or benefits may, within thirty days after the final decree, have an appeal to the higher courts. The said court of common 'pleas shall have power to order what notices shall be given in connection with any of the said proceedings and may make all such orders as it may deem requisite. Sec. 6, Act of June 1, 1907, P. L. 378. (695) . The final assessments made on any property or properties to pay for the costs, expenses and damages, or either of the im- provements, under this act, shall be a lien for the amount of such assessment upon the properties so assessed, dating from the time of the final confirmation of the report under which said assessment was made, or the final decree of the court fixing such assessment; and shall, if filed within six months from said final assessment, and confirmation, remain a first lien upon said properties; and the lien thereof shall be continued, revived, and collected in the manner pro- vided for the revival of, the Hen of, and the collection of liens for municipal improvements, as provided for by the act approved June four, nineteen hundred and one (Pamphlet Laws, three hundred and sixty-four), and the several supplements thereto. Sec. 7, Act of June 1, 1907, P. L. 378. 4sr (d) Protection of Meadow Lands. (696). All corporations organized for the purpose of the erecting and maintaining of meadow banks, building sluices, and digging ditches, and generally for the protection of meadow lands from in- undations, be and the same are hereby authorized and empowered, at any time after the passage of this act, to surrender the charter and franchises vested in such corporations. And immediately thereupon all of the duties heretofore performed by such companies shall de- \'olve upon the respective cities or counties within which the lands lie which had been theretofore within the jurisdiction of such meadow companies. Sec. 1, Act of June 9, 1911, P. L. 834. 4-52 ARTICLE XLVIII. PUBLIC BUILDINGS AND WORKS. (a) Acquisition of Real Estate for Public Buildings and Works. (697). The several cities of this Commonwealth shall have power to acquire by purchase any real estate, within the city limits, which they may need, upon which to erect and construct necessary munici- pal buildings, fire engine houses, gas and electric light works, and, withiu or without the city limits, within the same county, sufficient real estate, for present and future use, upon which to erect work- houses or houses of detention, hospitals, waterworks, poorhouses, for the purpose of a poor-farm, garbage and incinerating furnaces, and sewage disposal works, or plants with the necessary filter-beds, appliances, drains, and sewers, and for any extensions thereof; and in case they cannot agree with the owner or owners as to the price thereof, or in case the owner or owners thereof are absent, or are incapacitated from any cause, or are unknown, by reason of which no agreement can be made, it shall be lawful for each respective city, and the same is hereby authorized and empowered, to take and appropriate, for any of the said purposes and ary extensions thereof, all such necessary and sufficient real estate, within or without the city limits, as the case may be, after an ordinance shall have been passed providing for such taking and appropriation. Sec. 1, Act of March 26, 1903, P. L. 63, as amended by Sec. 1, Act of March 14, 1907, P. L. 12. It would seem that, under this act, a city may erect a hospital for contagious diseases without the city limits. AUenown vs. Wagner, 214 Pa. 210, affimung 27 Super. Ct. 485. This act does not give a city the right to take land for public library purposes through condemnation proceedings. The words "'municipal buildings," as used therein, do not cover a public library building. Philadelphia's Petition, 253 Pa. 434, affirming 60 Super. Ct. 594. For powers of City Planning Commission concerning public build- ings within, and for three miles beyond, the city limits, see Sees. (326) to (331) inclusive. For powers of the State Art Commission over the design and location of public buildings, see Sec. (738). 453 (698). In cases where the city and the owner or owners carno: agree as to the price or damages to be paid, or where by reason oi the absence or legal incapacity of such owner or owners, or where the owner or owners are unknown, no agreement as to the price or the damages sustained can be agreed upon, the said city may tender its bond to the party claiming or entitled to said moneys or damages, cr to the agent of any person absent, or to the guardian or committee of any one under legal incapacity, the condition of which shall be that the said city will pay or cause to be paid such amount of dam- ages as the party shall be entitled to receive after the same shall have been agreed upon by the parties, or assessed in the manner provided by this act: Provided, however, That in case the party claiming damages refuses^ to or does not accept said bond, as tendered, the said city shall give said party a written notice, at least five days beforehand, of a time when the same will be presented for filing in court; and thereafter said city may present said bond to the proper court of common pleas, or to any law judge thereof in vacation; and if the said bond is approved, it shall be filed in said court for the use of those interested. In case the title to the lands to be taken and appropriated, as aforesaid, is defective, disputed or doubtful, or the party owning or interested in the said real estate is absent, unknown, not of full age, of unsound mind, or from any cause cannot be bargained with or served with notice or have a bond tendered to him, her or them, within the county where the lands are taken, the court of common pleas of the proper county, or any law judge thereof in vacation, upon petition of the said city, setting forth the necessary facts, shall direct the filing of a bond to the Common- wealth of Pennsylvania, in an amount to be fixed and approved by the court, or a law judge in vacation, for the use of those who may be found entitled to the damages for said taking and appropriation, the condition whereof shall be the same as is hereinabove provided in bonds to be tendered owners when known. Upon the filing and approval of any bond provided for by this section, the respective city shall have the right to enter upon, take and appropriate the lands mentioned in the bond aforesaid, and the title acquired by vir- tue of the provisions of this act shall be the fee simple title. Sec. 2, Act of March 26, 1903, P. L. 63. (699). In case the damages-for the said taking and appropriation have not been agreed upon, any court of common pleas of the proper county, or any law judge thereof in vacation, on application thereto by petition of the city or any person interested, shall appoint three discreet and disinterested freeholders as viewers, and appoint a time, not less then twenty nor more than tTiirty days thereafter, when said viewers shall meet upon the premises or lands taken or appro- 454 priated, and view the same. The said viewers shall give or cause to be given at least ten days' notice of said meeting, to the owner or owners of the lands taken, if such owner or owners reside within the proper county and can be found ; and where the owner or owners are minors, and have a guardian, then said notice shall be given to the guardian, if resident within the county, and can be found; and where the owner or owners are lunatic or of unsound mind, and have a committee or guardian, such notice shall be served upon said guardian or committee ; and in all cases where the owner or owners are incapacitated or are unknown, notice shall be given in at least two newspapers of general circulation, printed and published in the proper city or county; and they shall give such other or further notice as the court shall direct, having regard to the circumstances of the case. Where minors have no guardians, and lunatics or per- sons of unsound or feeble mind have no guardians or committees, the said court shall have power to appoint a guardian, or committee ad litem, and direct that said notice, and all other notices required by this act, shall be served upon them. Sec. 3, Act of March 26, 1903, P. L. 63. (700). The said viewers, having been duly sworn or afifirmed, faithfully, justly, and impartially to decide, and a true report to make, concerning the matter to be submitted to them in relation to which they are authorized to inquire, in pursuance of the provisions of this act, shall hear the parties interested and their witnesses, and shall estimate and determine the value of the lands taken and appropriated, and any damages that may have been sustained by reason of said taking and appropriation, and to whom the same is payable; and, having so estimated and determined the value of the property and damages sustained, they shall make up their report, which shall be signed by them, or any two of them, and thereupon filed in the court of common pleas from which the order to view issued. Upon the filing of said report, the said viewers shall give notice thereof by one publication in at least two newspapers printed an'd published in the proper city or county, and in additional papers if so directed by the court. Sec. 4, Act of March 26, 1903, P. L. 63. (701). Upon said report being filed in court, any interested party, within thirty days, may file exceptions thereto; and the court shall have power to confirm, modify, change, or otherwise correct the same, or refer the same back to the same or new viewers, with like power as to their report. Or, within said thirty days from the filing of any such report in court, the respective city, or any party whose lands have been taken, may appeal to the proper court of common pleas, and demand a trial by jury, according to the course of the 455 common law ; and said court shall have power to order what notices shall be given in connection with any part of the proceedings, and make all such orders as it may deem requisite. Upon the entry of final judgment on any issue had upon such appeal, either party shall have the right to an appeal to the Superior or Supreme Court, as in other cases. Sec. S, Act of March 26, 1903, P. L. 63. (702). The viewers provided for in the foregoing sections may be appointed at any time after the ordinance is passed and approved providing for said taking and appropriation, and their fees shall be not more than four dollars for each day necessarily employed, and all costs of views shall be paid by the proper city. Sec. 6, Act of March 26, 1903, P. L. 63. The provisions of this act with regard to the appointment, pro- cedure and pay of viewers is largely supplied by the Act of June 23, 1911, P. L. 1123. The viewers are now appointed from the board created by that act. (b) Acquisition of Property for Auditoriums, Libraries, Memorial Buildings and Monuments. (See Article L,) (703). Cities shall have power to take, purchase, or acquire through condemnation proceedings, property for the purpose of erecting thereon public auditoriums, public libraries, public memorial buildings, and monuments. Sec. 1, Act of July 8, 1919, P. L. 783. For powers of City Planning Commission concerning public build ings within, and for three miles beyond, the city limits, see Sees. (326) to (331) inclusive. For powers of the State Art Commission over the design and location of public buildings, see Sec. (738). (704). Cities, by order of council or commissioners, shall have power to appropriate money, from the public funds or by issuance of bonds according to existing law governing the issuance of such bonds, for the erection, on said property taken, purchased, or ac- quired through condemnation proceedings, public auditoriums, pub- he libraries, public memorial buildings, and monuments. Cities shall also have power to appropriate moneys for the operation and main- tenance of such public auditoriums, public libraries, memorial build- ings, and monuments. Sec. 2, Act of July 8, 1919, P. L. 783. (705). All proceedings for the assessment of damages for prop- erty taken under the provisions of this act shall be had in the same manner as is now provided by law for the taking of property for pub- lic improvements in such cities. Sec. 3, Act of July 8, 1919, P. L. 783. 456 (706) . Cities shall have power to donate ground thus acquired for a public library to any library association provided said association will furnish the funds for the erection of the library building the Vlans of which are approved by the city, but only in such cases where the said library association is by its by-laws and charter compelled to put back into the property any surplus earnings from the opera- tion of said library. Cities, by order of council or commissions, may contribute from time to time towards the operating support of such hbrary a sum not to exceed fifty per centum (50%) of the annual operating maintenance of said library. Sec. 4, Act of July 8, 1919, P. L. 783. (707). Cities, in the case of public auditoriums, may by order of council or commissioners charge a nominal rental for the use of said auditorium. All moneys derived from rental of said auditoriums shall first be devoted to the maintenance of said auditorium, and any annual balance accruing therefrom shall be turned over to the city funds for the maintenance of public parks and grounds. Sec. 5, Act of July 8, 1919, P. L. 783. (c) Joint County and Municipal Buildings. (1) Under the Act of April 18, 1913, P. L. 96. (708). In each county of this Commonwealth, where the county- seat is within the limits of any city, the county commissioners and the proper corporate authorities of such city shall have the power and they are hereby authorized, to agree upon a site within the limits of such city, and to erect thereon a joint county and municipal build- ing, to be used by the county for courthouse and other purposes, and to be used by the city for municipal purposes. The land upon which said building shall be erected shall be owned in severalty by such county and city; and the part of such building which shall stand upon the land owned in severalty by the county shall belong in severalty to the county, and the part of such building which shall stand upon the land owned in severalty by the city shall belong in severalty to the city. The county commissioners of such county and the corporate authorities of such city shall choose such site, and shall determine the parts of the land so chosen which shall be owned in severalty by each; and when this has been done, and the erection of such joint building has been agreed upon, they shall agree upon and adopt plans for such joint building. The building may be so designed and constructed that part of the building on the land owned by each shall be used by each, respectively ; or the build- ing may be so designed and constructed as to permit of the use by the county of any portion or portions of the part of the building 457 -. f ^V,^ use by the city of owned by the city, and likewise to permit of the use ^^^^^ ^y the any portion or portions of the part of the building^^ county com- county; and, whether so specially designed or not, ^^^^^ ^^^^ ^^^ missioners and corporate authorities of such ci y ^^^ ^^^ ^^ ^^^ power, and they are hereby authorized, to V^^^' building owned county of any portion or portions of the part ot tn ^^ by the city, and likewise to permit of the use by tlie/^J' tion or portions of the part of the building owned by t^«J=°^°^' upon such terms and conditions as may be in the judgment oi me county commissioners and the corporate authorities just and reason- able. The building shall be so constructed as to permit of an ap- portionment of the cost of the part thereof owned respectively by such county and city, and the building shall be paid for in accord- ance with such apportionment. The county commissioners of such county and the corporate authorities of such city may provide that the corridors, stairways, and elevators be used in common by both county and city. They may install for the whole building a single system of lighting, heat, ventilation, and plumbing, and for other general equipment, which shall be used in common by the county and the city. They may pro- vide that the mechanical plants and power plants necessary for the elevators, lighting, heating, ventilating, plumbing, and cleaning, and the plants necessary for all other general equipment, be located partly in a portion of the part of the building owned by each, or that such plants or general equipment be located wholly in the part of the building owned by the county or wholly in the part of the building owned by the city, in such a manner as to conveniently serve all portions of the building; and such plants or general equip- ment shall be considered and regarded as fixtures for the use and benefit of the whole building, and shall be paid for by the county and city in such equitable proportions as the county commissioners and proper executive officers of such city shall agree upon. If, how- ever, the county commissioners and the corporate authorities of such city do not deem it advisable to provide such plants, or any of them, they may secure light, heat, or power for said building in such man- ner as to them may seem most advantageous ; and may for said pur- poses, either jointly or separately, acquire other land in the vicinity cf the joint county and municipal building, and construct thereon, or on land belonging to either or both, jointly or separately, me- chanical plants, and power plants for the purpose of supplying light, heat, and power to said joint building. The same to be supplied at such terms and conditions as may be, in the judgment of the -ounty commissioners and the corporate authorities just and reason- able 458 The administration, maintenance, control, and operation of such joint building shall be, and is hereby vested, in the county commis- sioners and the proper executive officers of such city ; and they shall exercise the powers and rights in relation thereto in such manner as the county commissioners and the proper executive officers of such city may, from time to time, agree upon. Sec. 1, Act of April 18, 1913, P. L. 96, as amended by Sec. 1, Act of March 26, 1915, P. L. 12. See note to Sec. (703). This act is general in nature and does not violate Art. Ill, Sec. 7 of the Constitution, prohibiting local or special legislation, nor does it violate Art. Ill, Sec. 20, providing that the general assembly shall not delegate to any special commission, private corporation or association, any power to make, supervise or interfere with any municipal im- provement. Stratton vs. Allegheny County, 245 Pa. 519. Under the Act of April 18, 1913, P. L. 96, an injunction was granted restraining the erection' of a joint building, where the plan showed that certain entire floors of the proposed building were to be used by the city, and certain other entire floors by the county, so that part of the building selected for use by each municipality would not be entirely on the ground owned by it in severalty, but would overlap the ground of the other. Trimble vs. City of Pittsburgh, 248 Pa. 550. The limitations imposed by the original act were changed by the amendatory Act of March 26, 1915, P. L. 12. (709). It shall be lawful, and the county commissioners and the corporate authorities of such city are hereby authorized and em- powered, to choose for the site of such joint county and municipal building land owned and held by the county, or land owned and held by the city. Whenever the site chosen, as aforesaid, consists of land owned and held by the county, it shall be lawful for the county commissioners of such county, and they are hereby authorized and empowered, to convey in fee to such city, at private sale and upon a fair valuation, so much of said land as may be necessary for the purpose of erecting the portion of the joint building to be owned by the city. It shall be lawful for the corporate officials of such city, and they are hereby authoj"ized and empowered, to pay in cash for said land, or, in their discretion, to convey in fee to the county, at private sale and at a fair valuation, in exchange for the conveyance to the city of the land aforesaid, any land owned by the city, which in the estimation of the corporate authorities of such city, is not needed for municipal purposes. The land, or any part thereof, so conveyed to the county, may be held and used by the county for county purposes ; or, if in the estimation of the county commis- sioners it is not needed for such purposes, it may be sold by the county commissioners at either public or private sale. Whenever the site chosen, as aforesaid, consists of land owned and held by the. city, it shall be lawful for the corporate authorities of such city, and they are hereby authorized and empowered, to con- 459 vey in fee to such county, at private sale and upon a fair valuation, so much of said land as may be necessary for the purpose of erect- ing thereon the portion of the joint building to be owned by the county. It shall also be lawful for the county commissioners of such county, and they are hereby authorized and empowered, to pay in cash for said land, or, in their discretion, to convey in fee to the city, at private sale and upon a fair valuation, in exchange for the conveyance to the county of the land aforesaid, any land owned by the county, which, in the estimation of the county commissioners is not needed for county purposes. The land, or any part thereof, so conveyed to the city, may be held and used by the city for municipal purposes ; or, if in the estimation of the corporate authorities of such city it is not needed for such purposes, it may be sold by the cor- porate authorities of such city at either public or private sale. Sec. 2, Act of April 18, 1913, P. L. 96, as amended by Sec. 2, Act of March 26, 1915, P. L. 12. (710). Any sale or conveyance of land made pursuant to the pro- visions of this act shall be subject to the approval of the majority of the judges of the court of common pleas of the proper county, of the price agreed to be paid therefor, and the terms and conditions thereof. The county commissioners shall also submit to the judges aforesaid, for their approval, the plans adopted for the part of the building to be owned by the county, and also the portion of the building, if any, to be used by the county, in the part to be owned by such city; and when such approval is obtained the county com- missioners shall have full authority to erect the part to be owned by the county, in conjunction with the erection by the city of the part to be owned by the city, on the site chosen, and in the manner aforesaid. The county commissioners and the corporate authorities, for the construction of such building, are authorized and empowered to enter into a joint contract for the payment of the whole, or a sev- eral contract for the payment by each of their proportionate share, of the cost of such building; and they are further authorized and empowered to make such other agreements, and to do such other acts, as may be necessary to fully exercise the powers herein con- ferred. Sec. 3, Act of April 18, 1913, P. L. 96, as amended by Sec. 3, Act of March 26, 1915, P. L. 12. Under the last clause of this section, which provides that the authorities of the city and county "are authorized and empowered to make such other agreements, and do such other acts, as may be necessary to fully exercise the powers herein conferred," the employ- ment of a competent constructing and supervising engineer to sublet contracts and oversee their construction, is a proper exercise of the discretion conferred by the statute. It is not necessary that the con- tract for the erection of the entire building should be let as a whole to a general contractor. Trimble vs. City of Pittsburgh, 248 Pa. 550. 460 (711). If it shall be deemed necessary to acquire additional land for such site, the county, in case the site is chosen on the land of the county, or if the sit^ chosen is on the land of the city, then the city is authorized and empowered to acquire by purchase or condemna- tion such additional land. The right of eminent domain herein con- ferred upon the cotmty shall be exercised in the manner provided by the act of Assembly of June first, one thousand eight hundred and eighty-three, authorizing the county commissioners of any county to acquire ground at the county-seat for the purpose of the erection or extension of such building as may be necessary for the accomo- dation of the courts and the several officers of the county. The right of eminent domain herein conferred upon the city shall be exercised in the manner provided by law for the acquisition of real estate within the city limits for the erection of municipal buildings. Sec. 4, Act of April 18, 1913, P. L. 96. For the manner in which the right of eminent domain shall be exer- cised by the city, see Act of March 26, 1903, P. L. 63. (Sections (697) to (702)). (712); In case the site chosen for such joint municipal building is in land owned and held by the county, it shall be lawful for the county commissioners of such county, and they are hereby authorized and empowered, to incur or increase the indebtedness of the county to an amount sufficient to pay for the cost of the erection of the por- tion of the building selected by the county and the land upon which it is erected, and any additional land acquired by the county by pur- chase or condemnation for such site, as well as the unpaid balance of any purchase money on land herein authorized to be conveyed by the county to the city, by issuing coupon bonds in sums of not less than one hundred dollars, each bearing interest at the rate not ex- ceeding five (5) per centum per annum, and the principal thereof reimbursable at a period not exceeding thirty years from the date c't which the same are authorized. Sec. S, Act of April 18, 1913, P. L. 96. (2) Under the Act of May 8, 1919, P. L. 130. (713). In each county in this Commonwealth where the county- seat is wiliiin the limits of any city, the county commissioners and the corporate authorities of such city shall have the power, and they are hereby authorized, to agree upon a site within the limits of such city, to acquire, own and hold the same as tenants in com.mon, and to erect thereon a joint county and municipal building or buildings, to be used by the county for courthouse and other county purposes and by the city for municipal purposes. The county commissioners and the corporate authorities of such city shall agree upon and adopt plans for such building or buildings, and, upon the approval of such 4^1 plans by the court of common pleas of such county, the county com- missioners and the corporate authorities of such city shall have full authority to erect, upon the land thus obtained and held, the build- ing or buildings so adopted and approved. Sec. 1, Act of May 8, 1919, P. L. 130. See note to Sec. (703). (714). It shall be lawful, and the county commissioners and the corporate authorities of such city are hereby authorized and em- povi^ered, to choose, for the site of such joint county and municipal building or buildings, land owned and held by the county, or land owned and held by the city. Whenever the site, chosen as afore- said, consists of land owned and held by the county, it shall be law- ful for the county commissioners of such county, and they are hereby authorized and empowered, to convey in fee to such city, at private sale and upon a fair valuation, such an undivided interest therein as rriay be agreed upon. It shall be lawful for the corporate authorities of such city, and they are hereby authorized and empowered, to pay in cash for such undivided interest, or, in their discretion, to. convey in fee to the county, at private sale and at a fair valuation, in ex- change for the conveyance to the city of the undivided interest afore- said, any land owned by the city which, in the estimation of the corporate authorities of such city, is not needed for municipal pur- poses. The land, or any part thereof, so conveyed to the county, may be held and used by the county for county purposes, or, if in the estimation of the county commissioners it is not needed for such purposes, it may be sold by the county commissioners at either public or private sale. Whenever the site, chosen as aforesaid, consists of land owned and held by the city, it shall be lawful for the corporate authorities of such city, and they are hereby authorized and empowered, to con- vey in fee to such county, at private sale and upon a fair valuation, such an undivided interest therein as may be agreed upon. It shall also be lawful for the county commissioners of such county, and they are hereby authorized and empowered, to pay in cash for such undivided interest, or, in their discretion, to convey in fee to the city, at private sale and upon a fair valuation in exchange for the con- veyance to the county of the undivided interest aforesaid, any land owned by the county which, in the estimation of the county com- missioners, is not needed for county purposes. The land, or any part thereof, so conveyed to the city, may be held and used by the city for municipal purposes, or, if in the estimation of the corporate authorities of such city it is not needeed for such purposes, it may be sold by the corporate authorities of such city at either public or private sale. Sec. 2, Act of May 8, 1919, P. L. 130. 462_ (715). Any sale or conveyance of land or interest therein made pursuant to the provisions of this act, shall be subject to the ap- proval of the court of common pleas of the proper county of the price agreed to be paid therefor and the terms and conditions thereof. The county commissioners and the corporate authorities of such city, for the construction of such building or buildings, are authorized and empowered to enter into a joint contract or contracts, and agree- ment or agreements, for the payment by each of its proportionate share of the cost of the construction, maintenance, and operation of such building or buildings, with the right to provide in such agree- ment or agreements for the modification, from time to time, of the proportionate parts of the cost of maintenance and operation, as the county or city in fact uses a greater or lesser part of the building or buildings, to be apportioned upon the floor space occupied, or other- wise equitably determined. The county commissioners and the cor- porate authorities of such city are further authorized and empow- ered to agree between them as to the manner, and to what extent, each shall occupy the joint building or buildings so erected, and to malce such other agreements, and do such other acts, as may be necessary to fully exercise the powers herein conferred. In the event that the county commissioners and the corporate authorities of such city are unable to agree upon the proportionate part of the cost of construction, rnaintenance, and operation of such joint building or buildings to be paid by each, or upon any modi- fication thereof which may be necessary from time to time, the ques- tion or questions shall, on motion of either party, be submitted to a board of arbitrators, one to be chosen by the county commissioners, and one by the corporate authorities of such city, and, if the two thus chosen are unable to agree a third arbitrator shall be selected by them, the decision of a majority thereof, or of the original two, to be final and conclusive upon both the county commissioners and the corporate authorities of such city, without right of appeal. The ex- penses of such arbitration shall be borne equally by the county and the city, and the compensation of each arbitrator shall not exceed ten dollars per day for each day actually devoted to the duties of his ap- pointment. Sec. 3, Act of May 8, 1919, P. L. 130. (716). If it shall be deemed; necessary by the county commis- sioners and the corporate authorities of such city to acquire land for such building or buildings, then such county commissioners and cor- porate authorities are hereby vested with the necessary power and authority to acquire, in the name of such county and city, in such proportions of undivided interest as may be agreed upon, by pur- chase, condemnation, or otherwise, any and all such real estate, 463 either vacant or occupied, as the respective authorities may deem necessary to furnish a suitable site or sites for such building or buildings, and to sell, convey, transfer, dispose of, or abandon the same, or any part thereof, as the county commissioners and the cor- porate authorities of such city may determine. Whenever the county commissioners and the corporate authorities of such city cannot agree on the terms of their purchase with the owner or owners of any real estate that has been selected as afore- said, such county commissioners and corporate authorities, after having decided upon the amount and location thereof, may enter upon, take possession of, and occupy such land as may have been se- lected, and designate and mark the boundary lines thereof, and thereafter may use the same for the purposes authorized by this act. The funds which are raised by taxation in such county and city shall be pledged, and hereby are made security, to the owner or owners of any property taken for the purposes aforesaid for all dam- ages they may sustain on account of the taking of such property. The title to all real estate acquired by condemnation proceedings, as herein provided for, shall be vested in such county and city in fee simple. When the county commissioners and the corporate authorities of such city shall enter upon and occupy lands for the purposes herein authorized, they, or the owners of such premises or any one of them in behalf of all of them, may present a petition to the court of com- mon pleas of the county in which such land is situated, setting forth the facts, giving a description of the premises taken by metes and bounds, and the names of all the owners thereof; whereupon the said court shall appoint a jury of viewers, and shall fix a time for a hearing, when they shall view the said premises. Said time shall not be less than ten nor more than thirty days after their said ap- pointment, of which time and place, five days' notice shall be given by the petitioners to said viewers and other parties interested. If on account of non-residence, or for any other reason, personal notice cannot be given, notice of such view shall be given as the court may direct. At the same time and place fixed for the said view, the said view- ers, having first been duly sworn or affirmed to perform their duties with fidelity and according to law, shall view and examine the premises so taken, and, after hearing such parties as may desire to be heard, shall decide and make a true report to said court concern- ing the matters set forth in such petition and submitted to them, and taking into consideration the quality and location of, and im- provements upon, the land so taken and occupied, and taking into consideration the damages sustained and the benefits accruing, shall estimate and determine what amount of damages, if any, have been 464 sustained by the owners of such premises by reason of the taking of said land, and to whom payable, if they can ascertain the legal owners thereof. Such hearing may be adjourned from time to time as such viewers may direct, and the said county commissioners and corporate authorities and the parties interested shall have at least five days' notice of the filing of such report. If the actual owner of such premises, or any part thereof, by reason of non-residence or othei-wise cannot be notified, notice of the filing of such report shall be given as directed by the court. If no exceptions are filed to, or appeal taken from, said report, by any party interested, within thirty days after the filing thereof, the same shall be confirmed absolutely by the court, and the amount therein awarded to any person shall be a valid debt and obligation of such county and city, in the proportions of the interest acquired by each, collectible as provided by law. If on account of any liens* existing against such premises, or if the actual owners thereof cannot be found, or if the owners or any of them, refuse the amount awarded by such report, or if for any other reason the said county commissioners and corporate authori- ties cannot pay the sum awarded for such damages to the persons legally entitled thereto, they may pay the same into court, and there- after the owners of such premises, or its lien creditors, shall look to said fund for all damages accruing to them on account of the taking of said property. Exceptions to, or appeals from, said report shall be disposed of ac- cording to the rules of said court. All costs and witness fees in any such case shall be borne equally by the county and city: Provided, That in cases where an appeal is taken by any property owners from the award made by any board of viewers, and the appellant does not recover a verdict for a greater amount than the viewers awarded, the appellant shall pay all cost of such appeal and trial. Sec. 4, Act of May 8, 1919, P. L. 130. (717). It shall be lawful for the county commissioners of such county, and they are hereby authorized and empowered, to incur or increase the indebtedness of the county to an amount sufficient to pay its share of the cost of any land or lands required and of erect- ing the building or buildings aforesaid, by issuing coupon bonds in sums of not less than one hundred dollars each, bearing interest at a rate not exceeding five per centum per annum, and the principal thereof reimbursable at a period not exceeding thirty years from the date at which the same are authorized. Sec. S, Act of May 8, 1919, P. L. 130. 465 30 (d) Joint County and City Hospitals. (718). The county commissioners of any of the several counties and the corporate, authorities of any city of the third class located within such county, are^ hereby authorized to agree upon a site v/ithin the limits of such county, and to erect thereon a joint county and municipal building or buildings to be used by such county and city as a hospital for general purposes, or as a hospital for the care and treatment of communicable diseases, or both. Sec. 1, Act of May 23, 1919, P. L. 2SS. See note to Sec. (703). (719). The said county commissioners and corporate authorities may choose for the site of such joint county and municipal hospital or hospitals land owned and held by the county or land owned and held by the city. Sec. 2, Act of May 23, 1919, P. L. 255. (720). Whenever the site chosen consists of land owned and held by the county, the respective county commissioners may convey in fee to such city, at private sale, upon a fair valuation, such an un- divided interest therein as shall be agreed upon. Whenever the site chosen consists of land owned and held by the city, the respective corporate authorities may convey in fee to such county, at private sale, upon a fair valuation, such an undivided interest, therein as shall be agreed upon. Any sale or conveyance of land or interest therein made pursuant to the aforesaid provisions of this act, shall be subject to the ap- proval of the court of common pleas of the proper county as to the amount agreed to be paid and as to the terms and conditions thereof. Sec. 3, Act of May 23, 1919, P. L. 255. (721). The county commissioners and corporate authorities may acquire, in the name of such county and city, in such proportions of undivided interest as shall be agreed upon, by purchase, condem- nation, or otherwise, such real estate, either vacant or occupied, as the respective county commissioners and corporate authorities may deem necessary to furnish a suitable site for the hospital or hospitals herein provided for, and may sell, convey, transfer, or abandon the same, or any part thereof, as the said county commissioners and corporate authorities may determine. Sec. 4, Act of May 23, 1919, P. L. 255. (722). Whenever the county commissioners and the corporate authorities cannot agree with the owner or owners of real estate which may have been selected as aforesaid, after having decided 466 tipon the size and location of such real estate,- the said county com- missioners and corporate authorities may enter upon, and take pos- session of, and occupy such land for the purposes herein provided. The title to such real estate shall be vested in the respective county and city in fee simple. The funds in'the office of the treasurers of such county and city shall be securit)'^ to the owner or owners of any real estate so taken for all damages sustained by the taking of such real estate^ Sec. 5, Act of May 23, 1919, P. L. 2SS. (723). After entry by the county commissioners and corporate authorities upon such land, the said county commissioners and cor- porate authorities, or the owner or owners of such real estate or any one in behalf of all, may petition the court of common pleas to ap- point a board of three viewers from the county board of viewers. Said court, when appointing such viewers, shall fix a time when the viewers shall meet upon the premises and view the same, which time shall not be less than twenty days nor more than thirty days after such appointment. Notice of the view shall be given to all parties in interest as the court may direct. Sec. 6, Act of May 23, 1919, P. L. 25S. (724). The viewers, having been duly sworn or affirmed accord- ivg to law, shall view and examine the land so taken, and shall hear such parties as may desire to be heard. Hearings may be adjourned from time to time as the viewers may direct. After completion of the examination of the real estate, and hearing of the parties inter- ested, the viewers shall decide, and make a true report to -the court, concerning the matters set forth in the petition. Immediately after the filing of such report, notice of such filing shall be given to all parties interested, in such manner as the court may direct, which notice shall state that, unless exceptions be filed thereto within thirty days after the filing thereof, the same will be confirmed abso- lutely. Sec. 7, Act of May 23, 1919, P. L. 2S5. (725). Within thirty days after the filing of any report, excep- tions thereto may be taken by any party or parties interested in such real estate. Immediately after the filing of such report the pro- thonotary shall mark the same "confirmed nisi." Where no excep- tions are filed thereto, said prothonotary shall enter a decree that the report is confirmed absolutely; where exceptions are filed, the court shall confirm, modify, or change such report, or refer the report back to ths same or new viewers. Sec. 8, Act of May 23, 1919, P, L. 255. ~ 467 (726). Within thirty days after the filing of any report, an appeal therefrom may be taken by any party or parties interested to the court of common pleas, demanding a trial by jury. Sec. 9, Act of May 23, 1919, P. L. 255. (727). Within six months after the final confirmation of any re- port, or within six months after a verdict and final judgment on ap- peal for a trial by jury, an appeal to the Supreme or Superior Court may be taken by any party or parties interested in such real estate, as in other cases. Sec. 10, Act of May 23, 1919, P. L. 255. (728). Any amount of money awarded as herein provided, if re- fused by the person or persons entitled thereto, shall be paid into court, and thereafter all such persons shall look to said fund for all damages accruing by reason of the taking of such real estate. Sec. 11, Act of May 23, 1919, P. L. 255. (729). All costs and witness fees in any condemnation proceed- ings shall be paid equally by the county and city : Provided, That in cases where an appeal is taken by any property owner from the award of the viewers, and the appellant does not recover any greater amount than the viewers awarded, the appellant shall pay all costs cf such appeal. Sec. 12, Act of May 23, 1919, P. L. 255. (730). The said county commissioners and corporate authorities shall adopt plans and specifications for the erection of such hospital building or buildings as may be deemed necessary. Upon approval of such plans and specifications by the court of common pleas of the proper county, the county commissioners and corporate authorities are authorized to erect upon such site the building or buildings ac- cording to the plans and specifications so adopted and approved. If any lands purchased or condemned have erected thereon any build- ings suitable for the purposes provided for by this act, the county commissioners and corporate authorities are authorized to use such buildings and to make such repairs and alterations thereto as may be necessary. Sec. 13, Act of May 23, 1919, P. L. 255. (731). The said county commissioners and corporate authorities may enter into a joint contract or contracts, and agreement or agreements, for the construction, repair, alteration, maintenance, and operation of such hospital building or buildings, and for the pay- ment by each of the proportionate share of the cost thereof. Such contracts and agreements may, from time to time, be modified or 468 altered, upon approval thereof by the court of common pleas of the proper county. Similar agreements may be made, as herein pro- vided, as to the ijianner and extent of the occupancy of such hos- pital building or buildings, and such other agreements as may be necessary to properly carry out the provisions of this act, not other- wise herein provided for. Sec. 14, Act of May 23, 1919, P. L. 255. (732). The said county commissioners and corporate authorities may make rules and regulations for the proper conducting of such hospital or hospitals, and may make a joint agreement or agree- ments for the purchase of the necessary equipment therein, and may make and enter into agreements for the employment and compensa- tion of the required number of physicians, surgeons, nurses, and other employes, necessary for the proper conduct of such hospital . or hospitals. Sec. 15, Act of May 23, 1919, P. L. 255. (733). The county commissioners of such county and the cor- porate authorities of any such city may incur or increase the indebt- edness of the county or city to an amount sufficient to pay its share of the real estate required, and of the constructing of the hospital building or buildings aforesaid, together with the necessary equip- ment therein, by issuing coupon bonds, at a rate not exceeding six per centum per annum and the principal thereof reimbursable at a period not exceeding thirty years from the date of authorization. Sec. 16, Act of May 23, 1919, P. L. 255. (e) State Art Commission. (734). A State Art Commission is hereby created in the Depart rnent of Public Grounds and Buildings, consisting of five citizens? of this Commonwealth^ to be appointed by the Governor, by and with the advice and consent of the Senate, for the term of three years. All vacancies on the commission shall be filled by the Gov- ernor. Three members shall constitute a quorum. Sec. 1, Act of May 1, 1919, P. L. 103. (735). The membei's of the commission shall serve without com- pensation, but shall be paid all actual traveling and other necessary expenses incurred in the performance of their duties. Sec. 2, Act of May 1, 1919, P. L. 103. (736). The Governor shall appoint a president and a secretary of the commission. The commission shall have power to -adopt its own rules of procedure, and to prescribe regulations for the submission to it of all matters within its jurisdiction. Sec. 3, Act of May 1, 1919, P. L. 103. 469 (737). The Board of Public Grounds and Buildings shall furnish such offices for the commission as shall be required, and shall also furnish to it such clerical and other assistants as it may require, and fix the compensation of the persons so employed. Sec. 4, Act of May 1, 1919, P. L. 103. (738). From and after the approval of this act, no public monu- ment, memorial, building, or other structure shall become the prop- erty of the Commonwealth or any;feubdivision thereof, by purchase, gift or otherwise, unless a design for the same, and the proposed lo- cation thereof, shall have first been submitted to, and approved by, the State Art Commission. No construction or erection of any public monument, memorial, building or other structure, which is to be paid for, either wholly or in part, by appropriation from the State Treasury or from any sub- division of the State, or for which the State or any subdivision is to furnish a site, shall be begun unless the design and proposed location thereof shall have been approved by such commission. No monument, memorial, building, or other structure, belonging to any person or corporation, shall be erected upon or extend over any highway, stream, lake, square, park, or other public place, within any subdivision of this State, except the design for and the location thereof shall have been approved by such commission. Sec. 5, Act of May 1, 1919, P. L. 103. For powers of City Planning Commission "relating to the location of any public building" within, and for three miles beyond, the city limits, seel Sees. (326) to (331) inclusive. (739). The commission shall submit annually to the Governor on, or before the first Monday of December, a report of its proceedings during that year, together with such recommendations as the com- mission shall deem conducive to the improvement of the Common- wealth or any subdivision thereof. Sec. 6, Act of May 1, 1919, P. L. 103. (740). The expenses of the commission and the compensation of employes shall be paid out of appropriations to be made to the Department of Public Grounds and Buildings. Sec. 7, Act of May 1, 1919, P. L. 103. (741). The provisions of "this act do not apply to a city of the first or second class. All acts or parts of acts inconsistent with this act are hereby re- pealed. Sec. 8, Act of May 1, 1919, P. L. 103. 470 (f) Contracts for Public Work. (742). In the letting of contracts for the erection and construc- tion of any public building when plans and specifications for same shall be submitted for bids, the same shall be accompanied by a bil! or list of quantities of materials required for such building, to be prepared and furnished by the architect or engineer preparing the plans, which bill or list shall be attached to the specifications, and shall be for a guide to bidders in making their estimates of materials required, and a means by which bidders may test their own esti- mates: Provided, however. That the correctness of such bill or list cf materials shall not be taken as being guaranteed by the authori- ties submitting such plans and specifications for bids. Sec. 1, Act of July 2, 1895, P. L. 426. (743). In the preparation of specifications for the erection, con- struction, and alteration of any public building, when the entire cost of such work shall exceed one thousand dollars, it shall be the duty of the architect, engineer, or other person preparing such specifica- tions, to prepare separate specifications for the plumbing, heating, ventilating, and electrical work; and it shall be the duty of the per- son or persons authorized to enter into contracts for the erection, construction, or alteration of such ptiblic buildings to receive sep- arate bids upon each of the said branches of work, and to award the contract for the same to the lowest responsible bidder for each of said branches. Sec. 1, Act of May 1, 1913, P. L. 155. It would seem that regardless of the provision of this act, that the contract shall be awarded to the "lowest responsible bidder," the person or persons authorized to award such contract may exercise their discretion in the selection of the contractor, and, if acting in good faith, make the award to a higher bidder, if considerations of superior skill, promptness or efficiency on the part of such bidder lead them to do so. In a long line of cases construing a similar provision in the Act of May 23, 1874, P. L. 230, it has been repeatedly held that the word "responsible" as used in the act, applies not to pecuniary ability only; but also to judgment and skill. "The duties thereby imposed on the city authorities are not merely ministerial, limited to ascertaining whose bid is the lowest, and the pecuniary responsibility of the bid- der and his sureties. The act calls for an exercise of duties and powers which are deliberate and discretionary." Commonwealth ex rel. Snyder vs. Mitchell, 82 Pa. 343; Douglass vs. Commonwealth, 108 Pa. 559; Inter-State Vitrified Brick and Paving Co. vs. Philadelphia, 164 Pa. 477; Routing vs. Titusvillc, 175 Pa. 512. The inclusion of gas fitting, tinning and metal ceiling in the contract with plumbing does not violate the provisions of the act, while it pre- scribes separation of plumbing from heating, ventilating and electrical work, it does not necessarily prescribe separation of plumbing from 471 gas fitting, tinning and metal ceiling, especially, when such matters are, by the custom of the trade, included in the general category of plumbing, furnished by the same shops or artisans. Langan vs. School District of City of Pittston, 17 Luz. L. R. 385. Where separate bids were invited, under four specific heads, and contracts were awarded for two, which exhausted the entire appro- priation, and the other bids were held for future acceptance, it was decided that the procedure though unusual was not necessarily ultra vires. Ibid. (744). All [counties] cities, [boroughs, towns, townships, school districts, and poor districts] shall, in the improvement of lands, or in the erection, alteration, addition, or repair of edifices and pubUc buildings, of any kind, in said districts, have the power to require of the contractor or contractors, employed in and about said improve- ments, an additional bond, with sufficient surety or sureties, provid- ing for the payment of all labor and material entering into the said improvements. Sec. 1, Act of May 10, 1917, P. L. 158. (745). The labor and material-men furnishing labor and material in and for said improvements, upon the contract of said contractor, shall have the right according to law to sue in an action of assumpsit, in the name of the obligee for his or their use, upon said bond, upon proof of said contractor's failure to pay for said labor or material. Sec. 2, Act of May 10, 1917, P. L. 158. (746). All contracts executed [by the Commonwealth of Pennsyl- vania, or any officer or bureau or department thereof, on behalf of the said Commonwealth, or] by any municipality, or any officer or bureau or board thereof, or by any municipal division or subdivision of the Commonwealth, which contracts shall involve the construction or doing of any work involving the employment of labor, shall contain a provision that the contractor shall accept, in so far as the work covered by any such contract is concerned, the provisions of the Workingman's Compensation Act of 1915, and any supplements or amendments thereto which may hereafter be passed, and that the said contractor will insure his liability thereunder, or file with the Commonwealth, or the municipal corporation or board with whom the contract is made, a certificate of exemption from insurance from the Bureau of Workingmen's Compensation of the Department of Labor and Industry. Sec. 1, Act of July 18, 1917, P. L. 1083. (747). Every officer [of the Commonwealth of Pennsylvania, or any bureau or department thereof or] of any municipality, or any bureau or department thereof, or any municipal division or subdi- vision of this Commonwealth, who shall sign on behalf of [the said 472 Commonwealth or any municipality thereof, or] any municipal divi- sion or subdivision thereof, any contract requiring in its performance the employment of labor, shall require, before the said contract shall be signed, proof that the said contractor with whom the contract is made shall have accepted the Workingmen's Compensation Act of 1915, and any supplements or amendments thereto which may be hereafter passed, and proof that the said contractor has insured his liability thereunder in accordance with the terms of the said act, or that the said contractor has had issued to him a certificate of exemp- tion from insurance from the Bureau of Workmen's Compensation of the Department of Labor and Industry. Sec. 2, Act of July 18, 1917, P. L. 1083. (748) . Any contract executed in violation of the provisions of this act shall be null and void. Sec. 3, Act of July 18, 1917, P. L. 1083. (749). None but citizens of the United States shall be employed in any capacity in the erection, enlargement or improvement of any public building, or public work within this Commonwealth: Pro- vided, That apprentices to a trade or profession who may be under twenty-one years of age shall not be subject to the provisions of this act: Provided, That the provisions of this act shall not apply to public work where the cost thereof is paid in whole or in part from assessments of benefits. Sec. 1, Act of June 25, 1895, P. L. 269. In an action on a bond of a municipal contractor by the city to the use of persons employed on the work by the contractor, the surety on the bond cannot defend on the ground that the use plain- tiffs, day laborers, were aliens employed by the contractor in viola- tion of this act. Philadelphia vs. McLinden, 205 Pa. 172; affirming 26 Pa. C. C. 287. (750). The person or persons who may be by law empowered to enter into a contract for the erection, enlargement or improvement of any public building or public work shall insert in such a contract a stipulation or covenant that the provisions of section one of this act will be fully complied with. Sec. 2, Act of June 25, 1895, P. L. 269. (751). It shall be lawful for any city [county, township, borough, or other municipal divisions or subdivision of the Commonwealth], in the construction of any building or the performance of any public work, to provide, by ordinance, municipal regulation, or contract, that any portion or all of the work on the said building, or the work on the said public improvement, shall be done within the territorial 473 limits of the said city, [county, township, borough, or other munici- pal division or subdivision] for which the said work is being per- formed. Sec. 1, Act of July 6, 1917, P. L. 752. This act was declared unconstitutional because in conflict with Art. Ill, Sec. 7, of the Constitution, prohibiting special legislation regulat- ing labor, trade, mining or manufacturing. Taylor vs. Philadelphia, 261 Pa. 458; reversing 26 D. R. 979. (752). All ordinances, regulations, or contracts heretofore en- acted, made, or executed by any city, [county, township, borough or other municipal division or subdivision of the Commonwealth,] providing that all or any portion of any public work, done for said city, [county, township, borough or other municipal division or subdivision,] shall be done within the territorial limits of the said city, [county, township, borough, or other municipal division or sub- division] are hereby validated : Provided, however, That in all other respects the said ordinance, regulation, or contract is in accordance with the existing law. Sec. 2, Act of July 6, 1917, P. L. 752. (g) Meeting Rooms for War Veterans. (753). Each [county], city, [and borough] may, in their discre- tion, upon application therefor, furnish to each organization com- posed of veterans of the Civil War, veterans of the Spanish-Ameri- can War, veterans of the War with Germany and Austria, veterans of any foreign war, and sons of veterans, a room or rooms in any public building of such county, city or borough, sufficient for the meeting of each of such organizations at least once each month. Sec. 1, Act of July 8, 1919, P. L. 784. (h) Displaying Flags on Public Buildings. (754). After the approval of this act it shall be lawful to display the flag of Pennsylvania on any public building in this Common- wealth. Sec. 1, Act of June 5, 1913, P. L. 419. (755). After the approval of this act it shall be lawful to display the flag of any county, city, borough, or other municipality in the State on the public buildings of any county, city, borough, or other municipality of the State. Sec. 2, Act of June 5, 1913, P. L. 419. 474 ARTICLE XLIX. WAITING, REST ROOMS AND DRINKING FOUN- TAINS. (756). In addition to the powers now existing in the cities [and boroughs] of this Commonwealth over the public highways therein, said cities [and boroughs] shall also have power to construct and maintain in any of the highways within their corporate limits, re- spectively, comfort- and waiting-stations and drinking fountains, or either, for the convenience of the traveling public. Sec. 1, Act of June 27, 1913, P. L. 632. For powers of City Planning Commission concerning the location of public buildings within, and for three miles beyond the city limits, see Sees. (326) to (331) inclusive. For powers of the State Art Commission over the design and lo- cation of public buildings, monuments and memorials, see Sec. (738). (757). Any damages that may accrue to abutting properties by reason of the construction of the aforesaid improvements, or either of them, shall be ascertained and collected in the same manner as provided by law for ascertaining and collecting damages to abutting properties caused by the grading of streets in such municipalities, respectively. Sec. 2, Act of June 27, 1913, P. L. 632. (758). The county commissioners, in co-operation with the municipal authorities of the municipality wherein the courthouse lies, may provide, and equip and maintain in the court house rest or waiting-rooms for females, and provide female attendants there- for. One-half of the cost of providing such rooms and of maintaining the same, including salaries and all incidental expenses, shall be paid by the county, and the other half by the municipality ; for all which purposes the county commissioners and said authorities may, respec- tively, appropriate moneys. Sec. 1, Act of April 23, 191S, P. L. 174. 475 (759). The county commissioners of any county may appropriate moneys to assist any city or borough, being the county-seat within the boundaries of such county, to construct and maintain comfort stations. Sec. 1, Act of July 8, 1919, P. L. 762. 476 ARTICLE L. PUBLIC LIBRARIES. See Sections (703) to (707). (760). The tenn "municipality," wherever used in this act, shall be interpreted as meaning any [county,] city, [borough, town or township,] as the case may be, but shall not be interpreted as mean- ing school district. Sec. 1, Act of July 20, 1917, P. L. 1143. (761). The term "municipal authorities," wherever used in this act, shall be interpreted as meaning the mayor and council of any city, [the burgess and council of any bjrough or town, the super- visors of any township or the commissioners of any county, as the case may be.] Sec. 2, Act of July 20, 1917, P. L. 1143. (762). Any municipality may make appropriations to establish or maintain, or both, a free, public, nonsectarian library, for the use of the residents of such municipality. The appropriations for maintenance shall not exceed two mills on the dollar on all taxable property annually. Special taxes for these purposes may be levied on the taxable property of the municipality, or the same may be levied and collected with the general taxes. Sec. 3, Act of July 20, 1917, P. L. 1143. (763). The municipal authorities of any municipality may sub- mit to the qualified electors of such municipality, at any election, the question of establishing or maintaining, or both, a free, public, nonsectarian library, and must submit such question, if petitioned for by three per centum of the voters, at the next preceding general election. At such election the question of establishing an annual tax at a certain rate, not exceeding two mills on the dollar, on all taxable property of the municipality, shall be submitted and voted upon. Sec. 4, Act of July 20, 1917, P. L. 1143. 477 (764). If the majority of votes cast upon this question shall be in favor of establishing such tax rate, the municipal authorities, at the first meeting following the official announcement of the result of such election, shall take the necessary steps to levy and collect the tax so levied, and shall appoint a board of library directors as pro- vided in section nine of this act. Said board shall have exclusive control of the library so established or maintained, or both, and shall be governed as provided in other sections of this act. Sec. 5, Act of July 20, 1917, P. L. 1143. (765). The rate of tax so voted shall be an annual tax rate until another vote is taken changing the same : Provided, That the muni- cipal authorities may increase said rate, not to exceed two mills on the dollar, on all taxable property of the municipality, without submitting the question to a vote. The tax shall be levied and col- lected in like manner as other taxes in the. municipality, and shall be in addition to all other taxes, and shall be used for no other purpose than that of establishing or maintaining, or both, a free, public library. The money so raised shall be under the exclusive control of the board of library directors provided in section nine of this act. Sec. 6, Act of July 20, 1917, P. L. 1143. (766). If the residents of any municipality shall raise by popular subscription a sum equal to or exceeding the gross amount of a two-mill tax on all taxable property in the municipality, and shall offer the sum so subscribed to the municipality for the purpose of establishing a free, public, nonsectarian library, said sum shall be accepted by the municipal authorities, and shall be used for the sole purpose of establishing such library; provided, not more than two per centum of the said sum shall be subscribed by one individual or firm. Said subscription may be made payable in four quarterly payments, and shall be in such form as to be collectible by legal process if necessary. Sec. 7, Act of July 20, 1917, P. L. 1143. (767). In case of the establishment of a free, public, nonsectarian library under the provisions of section seven of this act, the munici- pal authorities shall immediately place the sum so subscribed under the control of a board of library directors, appointed as provided in section nine of this act, and proceed to levy and collect a tax at the annual rate of not less than one-half mill nor more than two mills on the dollar on all taxable property in the municipality, for the purpose of maintaining the library so established. Sec. 8, Act of July 20, 1917. P. L. 1143. 478 (768) . The affairs of all public libraries established or maintained, or both, under the provisions of the preceding sections of this act, shall be under the exclusive control of a board of library directors, to be composed of not less than five nor more than seven members, as may be decided by the municipal authorities, who shall appoint the members and fill any vacancies occurring from any cause. The first appointees shall be appointed as nearly as may be, — one-third for one year, one-third for tvi^o years, and one-third for three years. All appointments to fill the places of those whose terms expire shall be for a term of three years. Vacancies shall be filled for the un- expired terms. No member of this board shall receive any salary for his services as such. Sec. 9, Act of July 20, 1917, P. L. 1143. (769). The board of library directors shall organize as soon as may be after appointment, by the election of a president, a secretary, and a treasurer from its membership, and such other officers and agents as the board may deem necessary. The treasurer shall give bond to the municipality, with satisfactory surety, in such amount as the board may determine. Sec. 10, Act of July 20, 1917, P. L. 1143. (770). Two or more municipalities may unite in establishing or maintaining, or both, a free library, under the terms of an agree- ment entered into between them. Said agreement shall be in writ- ing, and shall set forth the purpose, the terms as to support and control, and the conditions under which the agreement shall be altered or terminated. Said agreement shall not be valid until it has been accepted by a majority vote of the municipal authorities of each of the municipalities agreeing thereto, and signed by the proper officer of each of said municipalities. Sec. 11, Act of July 20, 1917, P. L. 1143. (771). Any municipality may make appropriations, not to exceed two mills on the dollar on all taxable property in the municipality, to maintain or aid in the maintenance of a free library established otherwise than under the provisions of sections three, four and seven of this act: Provided, That the municipal authorities shall be repre- sented by two members of the board having control of the affairs of said library. Sec. 12, Act of July 20, 1917, P. L. 1143. (772). Any municipality may contract with the managers or owners of any existing nonsectarian library for the free use of such library by the residents of such municipality, whether said library 479 is located in the same or in another municipality. The term of such contract shall be three years, but it may be renewable as therein provided. Sec. 13, Act of July 20, 1917, P. L. 1143. (773) . The municipality may appropriate annually, from the taxes levied and collected for municipal purposes, an amount not to exceed two mills on the dollar on all taxable property in the municipality, for the purpose specified in section thirteen of this act. ^ Sec. 14, Act of July 20, 1917, P. L. 1143. (774). When the county commissioners of any county levy a tax for the purpose of establishing or maintaining, or both, a free, public, nonsectarian library, they are hereby authorized to exempt from said levy all taxable property in any municipality which is alread}'^ levying a tax for the purpose of maintaining a free library; Provided, however. That the municipal authorities of such munici- pality, may elect to join with the county in establishing or maintain- ing, or both, such library ; in which case the taxable property in such municipality shall be included in such tax levy by the county com- missioners, and the free library in such municipality shall become a part of the county library system and be supported from the tax for maintaining the county library. Sec. IS, Act of July 20, 1917, P. L. 1143. (775). All moneys appropriated for the establishment or main- tenance, or both, of a free, public, nonsectarian library, and all moneys, if any, received from other sources for its use, shall be under the exclusive control and shall be disbursed under the direc- tion of the board of library directors who shall make an annual re- port to the proper munfcipal authorities. The accounts of the treas- urer of the board of library directors shall be audited as in the case of other municipal expenditures. Sec. 16, Act of July 20, 1917, P. L. 1143. (776). The annual report required by the last preceding section shall cover the fiscal year of the municipality. Said report shall contain an itemized statement of all receipts from whatever source and expenditures, and shall show the condition of the library and any branches thereof; the number of volumes, maps, pamphlets, and other material ; the number added by purchase, gift, or otherwise ; the number lost or withdrawn ; the number of registered borrowers, and readers; a classified statement of the circulation of material, with such other information and suggestions as may seem desirable. A copy of each report made to the municipal authorities shall be sent to the State Free Library Commission. Sec. 17. Act of July 20, 1917, P. L. 1143. 480 {^77^. The board of library directors may establish branches, deposit stations, traveling libraries, and such other agencies as it may deem necessary to bring the books within convenient reach of all the residents. Sec. 18, Act of July 20, 1917, P. L. 1143. (778). Every library established or maintained, or both, under the provisions of this act, shall be free to the use of all the residents of the municipality, subject to such reasonable rules and regulations as the board of library directors may adopt, and the board may ex- clude from the use of the library any person who may wilfully violate such rules. The board may extend the privileges of such library to persons residing outside the limits of such municipality, upon such terms and conditions as the board may prescribe. Sec. 19, Act of July 20, 1917, P. L. 1143. (779). It shall be lawful for any municipality or any corpora- tion, owning or managing a free, public, nonsectarian library, to take and hold any property, real or personal, or both, for library purposes; and any person desiring to make donations of books, money, personal property, or real estate for the benefit of a free, public, nonsectarian library, whether established or maintained under the provisions of this act or not, may vest the title thereto in the municipality or the corporation having control of the affairs of the said library, to be held and controlled by said municipality or cor- poration according to the terms of the deed, gift, devise, or be- quest; and, as to such property, the said municipality or corpora- tion shall be held to be special trustee; but in the absence of re- strictions by the terms of such donation, deed, gift, devise, or be- quest, the said property shall be controlled and administered by the board of library directors or by the corporation, as the case may be. ~Sec. 20, Act of July 20, 1917, P. L. 1143. (780). Whenever there is in any municipality a free, public, nonsectarian library which is open to the use of all the residents thereof, no new library shall be there established under the pro- visions of this act, but all public aid hereby authorized shall be given to such existing library, under proper agreement, to enable it to meet as far as possible the needs of such residents : Provided, however. That wherever there may be, at the time of the passage of this act, two or more such libraries receiving aid from the same municipality, the appropriation authorized by this act shall be di- vided between said libraries according to the terms of an agreement previously entered into between said libraries. Sec. 21, Act of July 20, 1917, P. L. 1143. 481 31 (781). Any municipality is hereby authorized to purchase or set apart lands and buildings, or parts of buildings already owned by it or both or to erect or lease buildings, to be used for free library work, or to alter buildings already erected so as to make them suitable for such use, and it is hereby authorized to provide for the cost of the same as in the case of other buildings to be used for municipal purposes. Sec. 22, Act of July 20, 1917, P. L. 1143. For powers of City Planning Commission concerning the location of public buildings, within, and for three miles beyond the city limits, see Sees. (326) to (331) inclusive. For powers of the State Art Commission over the design and location of public buildings see Sec. (738). - (782). Any municipality may, by ordinance or resolution, pur- chase, enter upon, and appropriate private property within its limits, for the purpose of erecting or enlarging public library buildings. Sec. 23, Act of July 20, 1917, P. L. 1143. (783). Whenever any municipality shall appropriate private prop- erty for public library purposes, and the municipality cannot agree with the owners thereof for the price to be paid therefor, or when by reason of the absence or legal incapacity of the owner thereof no such compensation can be agreed upon, the court of common pleas, or any judge thereof in vacation, on application thereto by petition, by the municipal authorities or any person interested, shall appoint a board of viewers for the assessment of damages caused by such appropriation, as in such cases provided. Sec. 24, Act of July 20, 1917, P. L. 1143. (784). The proceedings before the viewers for the allowance of damages for property taken, injured, or destroyed, and the proceed- ings upon their report, shall be as provided in other cases where such municipality appropriates private property for municipal purposes. Sec. 25, Act of July 20, 1917, P. L. 1143. (785). If five per centum of the registered voters of any munici- pality shall petition the municipal authorities to submit the question of creating a bonded indebtedness for purchasing grounds and erect- ing buildings for library purposes, the said authorities must submit such question at the next ensuing election. Sec. 26, Act of July 20, 1917, P. L. 1143. (786). Any building which shall be owned and occupied by a free, public, nonsectarian library, and the land on which it stands and that which is immediately and necessarly appurtenant thereto, shall be exempt from all county, city, borough, town, school, bounty, 482 poor, or road taxes, notwithstanding the fact that some portion or portions of said building or lands appurtenant may be yielding rent- als to the corporation or association managing such library: Pro- vided, That the net receipts of said corporation or association from rentals shall be used solely for the purpose of maintaining the said library. All gifts, devises, grants or endowments made to such a library, and for such purposes, shall be free from collateral Inherit- ance tax; and any gifts, endowments, or funds of such a library which are invested in interest bearing securities, the income from which is used solely for the purchase of books or the maintenance of such library, shall be exempt from any State tax on money at in- terest. Sec. 27, Act of July 20, 1917, P. L. 1143. (787). This act shall not in any way affect any agreement or agreements heretofore made by any municipality under any prior act relating to free public libraries, but all such agreements are hereby ratified and are to continue as binding contracts between the parties. Sec. 28, Act of July 20, 1917, P. L. 1143. (788). Any one who shall wilfully cut, mutilate, mark, or other- wise injure any book, volume, map, chart, magazine, newspaper, painting, engraving, or other property of, or deposited in, any free library shall be deemed to be guilty of a misdemeanor, and may be prosecuted for said offense before any court of competent juris- diction; and, upon conviction thereof, shall be liable to a fine of not more than twenty-five dollars and costs of prosecution, or to imprisonment in the county jail not exceeding fifteen days, or both, at the discretion of the court ; the said fine when collected to be for the use of the said library against which the aforesaid offense was committed. Sec. 29, Act of July 20, 1917, P. L. 1143. 483 ARTICLE LI. PLUMBING AND DRAINAGE. (789). From and after the passage of this act, it shall not be lawful for any persons to carry on or work at the business of plumb- ing or house drainage in the cities of the second and third class of this Commonwealth until a certificate or license to engage in or work at said business shall have been granted said persons by the director of the department of public safety, or department or board or bureau of health, of such cities ; nor until they have registered as such in the office of the department or board or bureau of health of said cities. Sec. 1, Act of June 7, 1901, P. L. 493, as amended by Sec. 1, Act of May 14, 1909, P. L. 840, and Sec. 1, Act of May 21, 1913, P. L. 276. This act relates to a subject which is a legitimate basis for the classi- firation of cities, and is constitutional. Beltz vs. City of Pittsburgh, 211 Pa. 561, affirming 26 Super. Ct. 66, affirming SI P. L. J. (os) 197. (790). All and every person, or persons, engaged or engaging in the business or work of plumbing and house drainage in said cities, shall apply in writing to the said director of the department of public safety, department or board or bureau of health, for such certificate or license ; and if, after proper examination made by the department or board or bureau of health of said cities, such person or persons so applying shall be found competent, the same shall be certified to the director of the department of public safety, depart- ment or board or bureau of health, who shall thereupon issue a certificate or license to such person or persons, which shall, for the period of one calendar year or fractional part thereof next ensuing the date of such examination, entitle him or them to engage in, or work at, the business of plumbing and house drainage. The mayor of said cities is hereby authorized to appoint a board of examiners, to consist of the board or bureau of health, one plumbing inspector, and two competent plumbers in nowise connected with the city govc^imeut, who shall examine all applicants for license under the provisions of this act. The said board shall make all reasonable 484 rules, regulations, and examinations, which shall be approved by the said director of the department or board or bureau of health. An examination of any one member of a firm or corporation, or of the superintendent or foreman therefor, shall be deemed sufficient. Said person or persons, firm or corporation, engaged or engaging in the business of plumbing or house drainage, shall pay for each exam- ination the sum of five dollars, and each journeyman or person en- gaged in the work shall pay the sum of fifty cents, which sum shall be paid into the city treasury, for the use of said cities. The proper officers of said cities are hereby authorized to pay to the plumbers acting on said board the sum of five dollars per day, for each day or session thus actually employed. The mayor of said cities is hereby authorized and required to appoint a competent person as plumbing inspector, whose duty it shall be to supervise, superintend, and inspect all plumbing and house drainage, in conformity with the provisions of this act. And the several cities are hereby authorized and required to make proper provision for the payment of the salary of the said plumbing in- spector, as provided by law. Every registered master plumber shall have a bona fide place of business in said cities, and shall display on the front of his or their place of business a sign, "Registered Plumber," bearing the name or names of the person, firm, or corporation, in letters not less than three inches high. No person other than a registered master plumber shall be al- lowed to carry on, or engage in, the business, nor shall any per- son or persons expose the sign or plumbing or house drainage, or any advertisement pertaining thereto, unless he or they have first secured a license or certificate and been registered in the office of the board or bureau of health of such cities; nor shall any person or persons other than a registered master plumber, — or person in his or their employ, or under his or their supervision, — be allowed to alter, repair, or make any connection with, any drain-, soil-, waste-, or vent-pipe, or'any pipe connected therewith. Every registered master plumber, firm, or corporation shall give immediate notice of any change in his, their, or its place of business ; and upon his, their, or its retirement from business shall surrender his, their or its certificate of registry to the board or bureau of health. Every person, firm, or corporation, or representative thereof, in reg- istering, shall give the full name, or names, of the person, firm, or officers' jiames of the corporation, for which he or they shall register. At the expiration of each calendar year said certificate or license shall be null and void. A licensed master or journeyman plumber desiring to continue in, or work at, the business of plumbing and house drainage for the ensuing year, shall, between the first and 485 thirty-first days of December of each and every year, surrender the said certificate or license to the department or board or bureau of health, and re-register his, their, or its name or names, and busi- ness or home address, upon such form or forms as may, from time to time, be furnished by said department or board or bureau of health. A re-examination will not be necessary for re-registration, un- less the licensed master or journeyman plumber should have failed to make an application for re-registration at the specified time. The sum of one dollar shall be paid by master plumbers, firms, or corporations, and the sum of twenty-five cents by journeymen plumb- ers, for re-registration, which sum shall be paid into the city treas- ury, for the use of said cities. A register of all such applicants, and the license or certificates issued, shall be kept in said department, board or bureau of health, which said register shall be open to the inspection of all persons interested therein. Any person, firm, or corporation holding a license or certificate, granted by any first, second, or third class city of this Commonwealth, to engage in or work at the business of plumbing and drainage work, desiring to do plumbing or drainage work in any other city than the one in which said license or certificate was granted, shall, without examina- tion, be registered before entering upon such work : Provided, how- ever, That such registration shall be restricted and limited to such plumbing and drainage work as he, they, or it shall have contracted for at the time of registry. On the completion of such contract or contracts the registration of such person, firm, or corporation shall be null and void, and no further permit shall be issued until he, they, or it shall have first registered his or its name, or their names and address, as hereinbefore provided. Sec. 2, Act of June 7, 1901, P. L. 493, as amended by Sec. 2, Act of May 14, 1909, P. L. 840, and Sec. 1, Act of June 12, 1913, P. L. 476. (791). From and after the passage of this act, the construction of plumbing, house drainage and cesspools shall be conducted only under and in accordance with the following rules, regulations and requirements, namely: Sec. 3, Act of June 7, 1901, P. L. 493. Plans and Specifications. (792). There shall be a separate plan for each building, public or private, or any addition thereto, or alterations thereof, accom- panied by specifications showing the location, size and kind of pipe, traps, closets and fixtures to be used, which plans and specifi- cations shall be filed with the board or bureau of health. The said 486 plans and specifications shall be furnished by the architect, plumber or owner, and filed by the plumber. All applications for change in plans must be made in writing. Sec. 4, Act of June 7, 1901, P. L. 493. Filing Plans and Specifications. (793). Plumbers before commencing the construction of plumb- ing work in any building in the said cities (except in case of re- pairs, which are here defined to relate to the mending of leaks in soil, vent or waste-pipes, faucets, valves and water supply pipes, and shall not be construed to admit of the replacing of any fixture, such as water-closets, bath-tubs, wash-stands, sinks, et cetera, or the respective traps for such fixtures), shall submit to the board or bureau of health plans and specifications, legibly drawn in ink, on blanks to be furnished by said board or bureau. Where two or more buildings are located together and on the same street, and the plumb- ing work is identical in each, one plan will be sufficient. Plans will be approved or rejected within twenty-four hours after their receipt. Sec. 5, Act of June 7, 1901, P. L. 493. Duty of Owners and Plumbers in Constructing Drains, et cetera. (794). It shall be the duty of every person constructing or own- ing any drain, soil-pipe, passage or connection, between a sewer and any ground, building, erection or place of business, and in like manner the duty of the owners of all grounds, buildings, erections, and of all parties interested therein or thereat, to cause and require that such drain, soil-pipe, passage or connection, shall be adequate for its purpose, and shall at all times allow to pass freely all material that enters or should enter the same ; and no change of drainage, sewerage or the sewer connections of any house shall be permitted, unless notice thereof shall have been given the board or bureau of health, and assent thereto obtained in writing. Sec. 6, Act of June 7, 1901, P. L. 493. Inspection and Approval. (795). Drainage, sewerage or plumbing work must not be covered or concealed in any manner until after it is inspected and approved by the board or bureau of health. Notice must be given said board or bureau, upon blanks to be furnished by it, when the work is sufficiently advanced for such inspection; when it shall be the duty of the proper officers to inspect the same within three days after receipt of said notice. Sec. 7, Act of June 7, 1901, P. L. 493. 487 Material of House Drains. (796). The main drainage system of every house or building shall be separately and independently connected with the street sewer, where such sewer exists, except where two houses are built together on a lot with a frontage of thirty feet or less, when one connection with main sewer will be allowed; but there shall be a separate house drain for each house, connected by a "Y" connection in the front of such houses, at the property line, with main house sewer; or, where one building exists or is erected in the rear of another, on an interior lot, of single ownership, and no private sewer is available, or can be made for the rear building through an ad- joining alley, courtyard or driveway, the house drain from the front building may be extended to the rear building, and the whole will be considered as one house drain. Where it is necessary to con- struct a private sewer to connect with sewer on adjacent street, such plans may be used as may be approved by the department or board or bureau of health, but in no case shall joint drains be laid in cellars, parallel with the street or alley. House drains or soil-pipes, laid beneath floor, must be extra heavy cast-iron pipe (as per table in section sixteen), with leaded and caulked joints, and carried five feet outside cellar wall. All drains or soil-pipes connected with main drain where it is above the cellar floor shall be of extra heavy cast-iron pipe, with leaded and caulked joints, or of heavy wrought-iron pipe, with screw joints properly secured, and carried five feet outside cellar wall, and all arrange- ments of soil- or waste-pipes shall be as direct as possible. Wrought-iron pipes shall be galvanized.. Changes of direction on pipes shall be made with "Y" branches, both above and below the ground and where such pipes pass through a new foundation-wall a relieving arch shall be built over it, with two-inch space on either side of main pipe. The size of the main house drain shall be determined by the total area of the buildings and paved surface to be drained, according to the following table, if iron pipe is used. If the pipe is terra cotta, the diameter shall be one size larger for the same amount of area drainage. Dlamater. Pall } Inch Per Foot. Fall } Incb Per Foot. 1,800 square feet dralnase area, 8,000 square feet drainage area, 6,000 square fee* drainage area, 9,100 square feet drainage area, 14,000 square feet drainage area. 2,500 square teet drainage area. «,60O square feet drainage area. 7,500 square feet drainage area. 13,600 square feet drainage area. 80,000 square feet drainage area. R Inrhftfl. .,-.... 488 The main house drains may be decreased in diameter beyond a rain-water conductor or surface inlet by permission of the department or board or bureau of health, when the plans show that conditions are such as to warrant such decrease ; but in no case shall the main house drain be less than four (4) inches in diameter. Sec. 8, Act of June 7, 1901, P. L. 493, as amended by Sec. 3, Act of May 14, 1909. P. L. 840. Location of Main Trap. (797). The house drain must be provided with a horizontal trap, placed immediately inside the cellar wall. The trap must be pro- vided with a hand-hole, for convenience in cleaning, the cover of which must be properly fitted and made gas- and air-tight, with heavy brass screw-cap ferrule, caulked in. This class of traps shafl be subject to the approval of the board or bureau of health. Sec. 9, Act of June 7, 1901, P. L. 493. iFresh Air Inlet. (798). A fresh air inlet^must be connected with the house drain just inside of the house trap. Where underground, it must be of extra heavy cast-iron. Said inlet must lead to the outer air, and finish with an automatic device, approved by the board or bureau of health, at a point just outside the front wall of building. The fresh air inlet must be of the same size as the drain, up to four inches. For five and six inch drains it must not be less than four inches in diameter; for seven and eight inch drains, not less than six inches in diameter, or its equivalent; and for larger drains, not less than eight inches in diameter, or its equivalent. Sec. 10, Act of June 7, 1901, P. L. 493. The act does not apply to a city that does not have a system of sewage in connection with its water supply. Independent, discon- nected, storm sewers located in various parts of the city, for surface water only, and sewers by private parties, do not constitute a system of sewerage and water supply as contemplated by the act. City of York vs. Eyster, 23 York 169. Laying of House Sewers and Drains. (799). House sewers and house drains must, where possible, be given an even grade to the main sewer of not less than one- quarter of an inch per foot. Sec. 11, Act of June 7, 1901, P. L. 493. 489 Location of House Sewer. (800). When main sewer is not located on street, house sewers must be constructed on outside of buildings, and branch into each house separately, and in no case will the sewer from one house to another be permitted to run through cellars. Sec. 12, Act of June 7, 1901, P. L. 493. Drains Outside of Buildings. (801). Where the ground is of sufificient solidity for a proper foundation, cylindrical terra-cotta pipe the best quality, free from flaws, splits or cracks, perfectly burned, and well glazed over the entire inner and outer surfaces, may be used, if laid on a smooth bottom, with a special groove cut in the bottom of the trench for each hub, in order to give the pipe a solid bearing on its entire length, and the soil well rammed on each side of the pipe. The spigot and hub ends shall be connected. The space between the hub and pipe must be thoroughly filled with cement mortar, made of equal parts of the best American natural cement and bar sand, thoroughly mixed dry, and enough water afterwards added to give proper consistency. The mortar must be mixed in small quantities, and used as soon as made. The joints must be carefully wiped out and pointed, and all mortar that may be left inside removed, and the pipe left clean and smooth throughout, for which purpose a swab may be used. It must not be laid closer than five feet to an exterior wall of any building, or be less than three and one-half feet below the surface of the ground, or when the sewer passes near a well, nor will it be allowed in bad or made ground. Sec. 13, Act of June 7, 1901, P. L. 493. Material of Sewers Between Buildings. (802). Where a sewer is laid between buildings, in a passageway, alley or courtyard, at a less distance than five feet from the build- ings, it must be constructed of extra heavy cast-iron pipe, for a distance corresponding to the length of the foundation of said build- ings. Sec. 14, Act of June 7, 1901, P. L. 493. Floor Drains. (803). Floor or other drains will only be permitted when it can be shown, to the satisfaction of the board or bureau of health, that their use is absolutely necessary, and arrangements made to maintain a permanent water-seal in the traps, and be provided with check- or back-water valves. Sec. IS, Act of June 7, 1901, P. L. 493. 490 Weight and Thickness of Cast-iron Soil-Pipe. (804). All cast-iron pipes must be sound, free frona holes, and of a uniform thickness, known as "extra heavy" pipe, and corres- ponding fittings will be required. The pipe must be tested to fifty pounds water pressure, and marked with the maker's name. Pipes shall weigh as follows, namely : Two-inch pipe, five and one-half pounds per lineal foot. Three-inch pipe, nine and one-half pounds per lineal foot. Four-inch pipe, thirteen pounds per lineal foot. Five-inch pipe, seventeen pounds per lineal foot. Six-inch pipe, twenty pounds per lineal foot. Seven-inch pipe, twenty-seven pounds per lineal foot. Eight-inch pipe, thirty-three and one-half pounds per lineal foot. Ten-inch pipe, forty-five pounds per lineal foot. Twelve inch-pipe, fifty-four pounds per lineal foot. Sec. 16, Act of June 7, 1901, P. L. 493. Subsoil Drains. (805). Subsoil drains must discharge into a sump or receiving tank, the contents of which must be lifted and discharged into the drainage system above the cellar floor by some approved method. Where directly sewer connected, they must be cut off from the rest of the plumbing system by a brass flap-valve on the inlet to the catch-basin, and the trap on the drain from the catch-basin must be water supplied, as required for cellar drain. Sec. 17, Act of June 7, 1901, P. L. 493. Yard and Area Drains. (806). All yards, areas and courts must be drained. Tenement- houses and lodging-houses must have the yards, areas and courts drained into the sewer. These drains, when sewer connected, must have connection not less than four inches in diameter. They should be controlled by one trap, — the leader trap, if possible. Sec. 18, Act of June 7. 1901, P. L. 493. Use of Old House Drains and Sewers. (807). Old house drains and sewers must be used, in connection with new buildings or new plumbing, only when they are found, on examination by the board or bureau of health, to conform in all respects to the requirements governing new sewers and drains. All extensions to old house drains must be of extra heavy cast-iron pipe. Sec. 19, Act of June 7, 1901, P. L. 493. 491 Leader Pipes. (808). All buildings shall be kept provided with proper metallic leaders, for conducting water from the roofs in such manner as shall protect the walls and foundations of said building from injury. In no case shall the water from said leaders be allowed to flow upon the sidewalk, but the same shall be conducted by a pipe or pipes to the sewer. If there be no sewer in the street upon which such buildings front, then the water from said leaders s'hall be conducted, by proper pipe or pipes below the surface of the sidewalk, to the street gutter. Sec. 20, Act of June 7, 1901, P. L. 493. Material for Inside and Outside Leaders. (809). Inside leaders must be constructed of cast-iron, wrought- iron, or steel, with roof connections made gas- and water-tight by means of heavy copper-drawn tubing slipped into the pipe. The tubing must extend at least seven (7) inches into iron leader pipe. Outside leaders may be sheet metal, but they must connect with house drain by means of a cast-iron pipe extending vertically five (5) feet above grade level, where the building is located along public driveways or sidewalks. Where the building is located off building line, and not liable to be damaged, the connection shall be made with iron pipe extending at least one foot above grade level. Sec. 21, Act of June 7, 1901, P. L. 493, as amended by Sec. 4, Act of May 14, 1909, P. L. 840. Trapping of Leaders. (810). All leaders must be trapped with cast-iron running traps, so placed as to prevent freezing. Sec. 22, Act of June 7, 1901, P. L. 493. Use of Leaders. (811). Rain-water leaders must not be used as soil-, waste-, or vent-pipes, nor shall such pipes be used as a leader. Sec. 23, Act of June 7, 1901, P. L. 493. Exhaust from Steam Pipes, et cetera. (812). No steam exhaust, blow-off or drip-pipe shall connect with a sewer or -house drain, leader, soil-pipe, waste or vent-pipe. Such pipes must discharge into a tank or condenser, from which suitable outlet to the sewer shall be made. Such condensers shall be water supplied, to help condensation and protect the sewer, and shall also be supplied with relief vent to carrj'^ off dry steam. Sec. 24, Act of June 7, 1901, P. L. 493. 492 Diameter of Soil-Pipes. (813). The smallest diameter of any soil-pipe permitted to be used shall be four-inch. The size of soil-pipes must be not less than those set forth in the following tables : Maximum number of fixtures connected to — Sou and Wut« Combined. Size of Flue. Branch. Main. iln.. 48 flxtnres, 96 fixtures. 268 flxtuies. ie fixture! , 6 to.. «to.. 192 fixtures. 336 fixtures, SoU-Plpe Alone. Branch. Main. 8 water-closeti, _. 16 water-closets, .. 84 water-closets, __ 16 water-closetB. 32 water-closets. 68 water-closets. If the building is six (6), and less than twelve (12), stories in height, the diameter shall be not less than five inches (5) ; if more than twelve (12) stories, it shall be six (6) inches in diameter. A building six or more stories in height, with fixtures located below the sixth floor, soil-pipe four (4) inches in diameter will be allowed to extend through the roof; provided the number of fixtures does not exceed the number given in the table. All soil-pipes must extend at least two feet above the highest window, and must not be reduced in size. Traps will not be per- mitted on main, vertical, soil or waste lines. Each house must have a separate line of soil- and vent-pipes. No soil or waste line shall be constructed on the outside of a building. Fixtures with — One and one-quarter inch traps, count as one fixture ; One and one-half inch traps, count as one fixture; Two-inch traps, count as two fixtures; Two and one-half inch traps, count as three fixtures ; Three-inch traps (water-closets), count as four fixtures; Four-inch traps, count as five fixtures. Sec. 25, Act of June 7. 1901, P. L. 493, as amended by Sec. 5, Act of May 14, 1909, P. L. 840. Changes in Direction. (814). All sewer, soil and waste pipes must be as direct as possible. Changes in direction must be made with "Y" or half "Y" branches, or one-eighth bends. OiTsets in soil or waste pipes will not be permitted when they can be avoided; nor, in any case, un- less suitable provision is made to prevent accumulation of rust or 493 other obstruction. Offsets shall be made with forty-five degree bends, or pimilar fittings. The use of T-"Y's" (sanitary T's) will be permitted on upright lines only. Sec. 26, Act of June 7, 1901, P. L. 493. Joints for Soil- and Waste-Pipes. (815). Joints in cast-iron pipes and soil- and waste-pipes must be so filled with oakum and lead, and hand caulked as to make them gas-tight. Connections of lead and cast-iron pipes must be made with brass sleeve or ferrule, of the same size as the lead pipe in- serted in the hub of the iron pipe, and caulked with lead. The lead pipe must be attached to the ferrule by wiped joint. Joints be- tween lead and wrought-iron pipes must be made with brass nipple, of same size as lead pipe. The lead pipe must be attached to the nipple by wiped joints. All connections of lead waste-pipe must be made by means of wiped joints. Sec. 27, Act of June 7, 1901, P. L. 493. Traps for Bath-Tubs, Water-Closets, et cetera. (816). Every sink, bath-tub, basin, water-closet, slop-hopper, or fixture having a waste-pipe, must be furnished with a trap, which shall be placed as close as practicable to the fixture that it serves, and in no case shall they be more than one foot from said fixture. The waste-pipe from the bath-tub or other fixtures must not be con- nected with a water-closet trap. Sec. 28, Act of June 7, 1901, P. L. 493. Size of Horizontal and Vertical Waste-Pipe Traps and Branches. (817). % Hoilzontal and Vertical. 1} Inches, 11 Inches, 2 Inchei, 2J Inches, 8 Inches, Number of Small Fixtures. 8 to 8. 9 to 20. 21 to U. If building is ten (10) or more stories in height, the vertical waste-pipe shall not be less than three (3) inches in diameter. The use of wrought-iron pipe for waste-pipe two inches or less in diam- eter is prohibited. 494 The size of traps and waste branches, for a given fixture, shall be as follows : — Etnd ol fixtuiea. Size In iDcbes. Trap. Brancti. Water-closet, Slop sink with trap combined, Slop sinlf ordinary, Pedestal urinal, Floor drain or wasb, Yard drain or catch basin, Urinal trough, Laundry trays (8 or 5), Combination sinli and tray (for each fixture), Kitchen sinl£s (small) for dwellings, Kitchen sinks (large), hotels, restaurants, grease trap, Pantry sinks, Wash basin, one only, Bath tubs 4x10 inches, drum trap, Shower baths, Shower baths (floor), Sitz baths, Drinking fountains, 8 3 » 8 i 4 2 2 IJ u ii li ii s u u 4 3 2 3 i i a 2 2 IJ 2 li U li li 2 11 U Sec. 29, Act of June 7, 1901, P. L. 493, as amended by Sec. 6, Act of May 14, 1909, P. L. 840. Overflow Pipes. (818). Overflow pipes from fixtures must, in all cases, be con- nected on the inlet side of traps. Sec. 30, Act of June 7, 1901, P. L. 493. Sediment Pipes. (819). Sediment pipes from kitchen boilers must not be connected on the outlet side of traps. Sec. 31, Act of June 7, 1901, P. L. 493. Setting of and Sizes of Traps. (820). All traps must be well supported, and set true with re- spect to their water levels. The sizes for traps must not be less than those given in the following : Traps for water closets, four inches in diameter. Traps for slop sinks, one and one-half inches to three inches in diameter. Traps for kitchen sinks, one and one-half inches in diameter. Traps for wash trays, two inches in diameter. Traps for (bowl) urinals, one and one-half inches in diameter. Traps for washstands, one and one-fourth inches in diameter. All bath-tubs shall be supplied with drum-traps, not less than 'three inches in diameter, with three-inch trap-screws on floor line. 495 In case where an additional fixture is required in a building, and it is impossible to get revent pipe for the trap, the board or bureau of health shall designate the kind of trap to be used. This shall not be construed to allow traps without revents, in new buildings. Sec. 32, Act of June 7, 1901, P. L. 493. Safe and Refrigerator Waste-Pipes. (821). Safe waste-pipes must not connect directly with any part of the plumbing system. Safe waste-pipes must discharge over an open, water supplied, publicly placed, ordinarily used sink, placed not more than three and one-half feet above the cellar floor. The safe waste from a refrigerator must be trapped at the bottom of the line only, and must not discharge upon the ground floor, but over an ordinary portable pan, or some properly trapped, water supplied sink, as above. In no case shall the refrigerator waste-pipe discharge over a sink located in a room used for living purposes. The branches on vertical lines must be made by "Y" fittings, and be carried to the safe with as much pitch as possible. Where there is an offset on a refrigerator waste-pipe in cellar, there must be cleanouts to control the horizontal part of the pipe. In tenement- and lodging-houses the refrigerator waste-pipes must extend above the roof, and not be larger than one and one-half inches, nor the branches less than one and one-quarter inches. Refrigerator waste-pipes, except in tenement-houses, — and all safe waste-pipes, must have brass flap-valves at their lower ends. Lead safes must be graded, and neatly turned over beveled strips at their edges. Sec. 33, Act of June 7, 1901, P. L. 493. Material for Vent-Pipes. (822). All vent-pipes must either be of lead, brass, loricated porcelain, enameled iron, or galvanized iron pipe. Sec. 34, Act of June 7, 1901, P. L. 493. Ventilation of Traps and Soil Lines. (823). Traps shall be protected from siphonage or air pressure by special vent-pipes of a size not less than the following tables : — Uaxlmum IXeveloped Length In Feet. Number of Traps Vented. Size of Flp«. Mains. Branch. Main Vertical. 15 Inch vent, -.- IJ Inch vent, ao, . - 1. 2 or less. in nr li>s>, an nr IMS, 60 or lea _. 40 _»_ — _„ --_ — « 65 100 _ 10. nr mnrfl Btorlni . ....._.».-. 20 or leas. 40 or less. 100 or leas. S inch vent, 496 The branch vent-pipes shall be not less than the following sizes : — One and one-fourth inches in diameter, for one and one-fourth inch traps. One and one-half inches in diameter, for one and one-half inch to two and one-half inch traps. Two inches in diameter, for three inch to four inch traps. One-half their diameter, for traps five inches and over. Where two (2) or more water-closets are placed side by side on a horizontal branch, the branch line shall have a relief extended as a loop vent. A pipe two (2) inches in diameter will be sufficient as a loop vent for two (2) closets. A pipe three (3) inches in diameter shall be used as a relief for three (3) or four (4) closets; and where more than four (4) closets are located on the same branch the relief shall not be less than four (4) inches in diameter. All house drains and soil lines on which a water-closet is located must have a four-inch main vent line. Where an additional closet is lo- cated in the cellar or basement, and within ten feet of main soil or vent line, no relief vent will be required for said closet; but where it is more than ten feet, a two-inch vent line will be required. Relief vent pipes for water-closets must not be less than two inches in diameter, for a length of forty feet, and not less than three inches in diameter, for more than forty feet. No revent from traps under bell-traps will be required. Any building having a sewer connection with a public or private sewer used for bell-trap connections or floor drainage only, a two- inch relief line must be extended to the roof of building from rear end of main drain. House drains, constructed for roof drainage only, will not require a relief vent. A floor-trap for a shower shall be vented, unless located in cellar or ground floor, the paving of which renders the trap inaccessible. If the number of these fixtures on a branch is two (2) or more, the waste line shall be extended as a loop vent, instead of back venting the separate traps; and when located in basement floor, they shall be provided with a removable strainer or cleanout. Back vent pipes, from traps above the floor, must either be con- nected with crown of trap with ground-in brass coupling, or, if connected solidly to trap, must have a ground Jn brass coupling at wall. Sec. 35, Act of June 7, 1901, P. L. 493, as amended by Sec. 7, Act of May 14, 1909, P. L. 840. Horizontal Vent-Pipes. (824). Where rows of fixtures are placed in a line, fittings of not less than forty-five (45) degrees to the horizontal must be used on vent lines to prevent filling with rust or condensation; except 497 ■V? on brick or tile walls, where it is necessary to channel same for pipes, ninety (90) degree fittings will be allowed. Trapped vent- pipes are strictly prohibited. No vent-pipe from house side of any trap shall connect with ventilation pipe, or with sewer-, soil-, or waste-pipe. Vent-pipes from several traps may be connected together, or may be carried into the main vent line above the highest fixture. Where one vertical vent line connects with another, a "Y" fitting must be used. Branch vent-pipes must be connected as near to crown of trap as possible. Sec. 36, Act of June 7, 1901, P. L. 493, as amended by Sec. 8, Act of May 14, 1909, P. L. 840. Offsets on Vetit Lines. (825). All offsets on vent lines must be made at an angle of not less than forty-five degrees to the horizontal, and all lines must be connected at the bottom with a soil- or waste-pipe, or the drain, in such manner as to prevent the accumulation of rust, scale or con- densation. Sec. 37, Act of June 7, 1901, P. L. 493. Connections for Closet Vents. (826). Rubber connections for back vents will not be permitted, without double couplings and thimble inside. Sec. 38, Act of June 7, 1901, P. L. 493. Ventilators Prohibited. (827). No brick, sheet metal, or earthen ware flue, or chimney flue, shall be used as a sewer ventilator, or to ventilate any trap, drain, soil, or waste-pipe. Sec. 39, Act of June 7, 1901, P. L. 493. Soldering Nipples. (828). Soldering nipples must be extra heavy brass, or brass pipe, iron pipe size. Sec. 40, Act of June 7, 1901, P. L. 493. Brass Cleanouts. (829). Brass screw-caps for cleanouts must be extra heavy, not less than one-eighth of an inch thick. The screw-cap must have a solid, square or hexagonal nut, not less than one inch high. The body of cleanout ferrule must, at least, equal in weight and thickness the caulking-ferrule, for the same size pipe. Sec. 41, Act of June 7, 1901, P. L. 493. 498 Diameter and Weight of Ferrules. (830). Brass ferrules must be of best quality, bell shaped, extra heavy cast-brass; not less than four inches long, and two and one- quarter inches, three and one-half inches, and four and one-half inches in diameter, and not less than the following weights : Diameter two and one-fourth inches, weight one pound. Diameter three and one-half inches, weight one pound twelve ounces. Diameter four and one-half inches, weight two pounds eight ounces. Sec. 42, Act of June 7, 1901, P. L. 493. Setting of Fixtures. (831). The closet and all other fixtures must be set open, and free from all inclosing wood or other work. Where water-closets will not support a rim-seat, the seat must be supported on galvanized iron legs, and a drip tray must be used, which tray must be porce- lain, enameled on both sides and secured in place. In tenement- houses and lodging-houses, sinks must be entirely open, set on iron legs or brackets, without any inclosing wood or other work. Sec. 43, Act of June 7, 1901, P. L. 493. • Closets Prohibited. (832). Pan, plunger or hopper closets will not be permitted in any building. No range closet, either wet or dry, nor an evaporating system of closets, shall be constructed or allowed inside of any build- ing. A separate building, constructed especially for the purpose, must be provided in which such range closets shall be set. Sec. 44, Act of June 7, 1901, P. L. 493. Water-Closet Connections with Soil-Pipe. (833). All earthenware traps must have heavy brass floor-plates, soldered to the lead bends and bolted to the trap flange, and the joint made permanently secure and gas-tight. Sec. 45, Act of June 7, 1901, P. L. 493. Water-Closets, Where Located. (834). Water-closets must not be located in sleeping apartments, nor in any room or compartment which has not direct communication with external air, either by window or air-shaft of at least four square feet. Sec. 46, Act of June 7, 1901, P. L. 493. 499 Water-Closets, How Supplied. (835). No water-closets, except those placed in yards, and flush meters, volumeters or similar devices, shall be supplied directly from the supply pipes. Sec. 47, Act of June 7, 1901, P. L. 493. (836). All water-closets must have flushing rini-bowls. Sec. 48, Act of June 7, 1901, P. L. 493. Water-Closets to be Supplied from Flushing-Tanks. (837). Water-closets within buildings shall be supplied with water from special tanks or cisterns, which shall hold not less than six gallons, when full to the level of the overflow pipe, for each closet supplied, excepting automatic or siphon-tanks, which shall hold not less than five gallons for each closet supplied. A group of closets may be flushed from one tank, but water-closets on differ- ent floors must not be flushed from the same tank, except flushi- meters, volumeters or similar devices. The water in said tanks must not be used for any other purpose. Sec. 49, Act of June 7, 1901, P. L. 493. Water-Closets for Tenement-Houses. (838). In no case will the water-closet system of tenement- or lodging-houses be permitted in cellars, basements, or under side- walks. Sec. 50, Act of June 7, 1901, P. L. 493. Number of Closets Required. (839). In all sewer connected, occupied buildings, there must be at least one water-closet, and there must be additional closets so as there will never be more than fifteen persons per closet. In lodging-houses, where there are more than fifteen persons on any floor, there must be an additional water-closet on that floor for every fifteen additional persons, or fraction thereof. Sec. 51, Act of June 7, 1901, P. L. 493. Water-Closet Apartments. (840). In tenement-houses, lodging-houses, factories, workshops, and all public buildings, the entire water-closet apartments and side- walls, to a height of sixteen inches from the floor, except at the door, must be made waterproof with asphalt, cement, tile, or other waterproof material, as approved by the board or bureau of health. In tenement-houses and lodging-houses, the water-closet and urinal 500 apartments must have a window or windows opening into the outer air, of sufficient size, all of which shall be shown on plans, and shall be subject to the approval of the board or bureau of health. Except that tenement- or lodging-house, three stories or less in height, may have such window opening on a ventilating-shaft, not less than ten square feet in area. In all buildings, the outer partition of such apartments must extend to the ceiling, or be independently ceiled over, and these partitions must be air-tight. The outside partitions must include a window opening to outer air on the lot whereon the building is situated; or some other approved means of ventilation must be provided. When necessary to properly light such apart- ments, the upper part of the partitions must be of glass. The in- terior partitions of such apartments must be dwarft partitions. Sec. 52, Act of June 7, 1901, P. L. 493. Construction of Urinals. (841). All urinals must be constructed of materials impervious to moisture and that will not corrode under the action of urine. The floor and walls of urinal apartments must be lined with similar non-absorbent and non-corrosive material. Sec. 53, Act of June 7, 1901, P. L. 493. Urinal Platforms. (842). The platforms or treads of urinal stalls must not be con- nected independently to the plumbing system, nor can they be con- nected to any safe waste-pipe. Sec. 54, Act of June 7, 1901, P. L. 493. (843). Iron trough water-closets and trough urinals must be porcelain enameled or galvanized cast-iron. Sec. 55, Act of June 7, 1901, P. L. 493. (844). All water-closets and other fixtures must be provided with a sufiScient supply of water for flushing, to keep them in a proper and cleanly condition. Sec. 56, Act of June 7, 1901, P. L. 493. Flush Pipes. (845). Water-closet flush pipes must not be less than one and one-quarter inches, and urinal flush pipes one-half inch in diameter. Sec. 57, Act of June 7, 1901, P. L. 493. Lining for Closet and Urinal Cisterns. (846). The copper lining of water-closet and urinal cisterns must not be lighter than twelve-ounce copper, and must be stamped on 501 lining with maker's name. Where lead is used for lining, it must not weigh less than four pounds to the square foot. All other ma- terials are prohibited. Sec. 58, Act of June 7, 1901, P. L. 493. Fixtures Prohibited. (847). Wooden wash-trays, sinks or bath-tubs are prohibited inside of buildings. Such fixtures must be constructed of non-ab- sorbent material. Cement or artificial stone tubs will not be per- mitted, unless approved by the board or bureau of health. Sec. 59, Act of June 7, 1901, P. L. 493. Yard Water-Closets. (848). Water-closets when located in yard must be so arranged as to be conveniently and adequately flushed, and the water-supply pipes and traps protected from freezing by being placed in a hopper- pit at least four feet below the surface of the ground, the walls of which pit shall be constructed of hard burned brick or stone, laid in cement mortar, or of concrete. The walls for pit, where one (1) closet is installed, may be four (4) inches in thickness; or salt- glazed sewer-pipe, thirty-six (36) inches in diameter, may be used. Where pit is for more than one (1) closet, the walls shall be nine (9) inches in thickness. The soil-pipe and traps used inside pit must be extra heavy cast-iron, and the trap to have hand-hole for cleanout purposes, with cleanout caulked in. If the closet is lo- cated in the rear of a soil or vent-pipe, the drain on which it is located shall be vented with a four-inch pipe, carried above roof of closet, away from any opening or window. All outside closets shall be of the tank pattern. The water to be supplied to tank through an automatic seat-action valve. The waste from valve may be permitted to discharge on cement floor of pit, which shall be provided with four-inch trap and strainer. The enclosure of yard water-closet shall be ventilated by slatted openings, and there shall be a trap-door of sufficient size to permit of convenient access to the hopper-pit. Sec. 60, Act of June 7, 1901, P. L. 493, as amended by Sec. 9, Act of May 14, 1909, P. L. 840. Cesspools and Privy Vaults. (849). No privy vault, or cesspool for sewage, shall hereafter be be constructed in any part of the city, where a sewer is at all acces- sible, which shall be determined by the department or board or bureau of health ; nor shall it be lawful to continue a privy vault or cesspool on any lot, piece, or parcel of ground abutting on or con- 502 tiguous to any public sewer, within the city limits. The department or board or bureau of health shall have the power to issue notice, giving at least three months' time to discontinue the use of any cesspool and have it cleaned and filled up. No connection for any cesspool or privy vault shall be made with any sewer; nor shall any water-closet or house drain empty into a cesspool or privy vault. Sec. 61, Act of June 7, 1901, P. L. 493, as amended by Sec. 10, Act of May 14, 1909, P. L. 840. In Distiicts Where No Sewer Exists. (850). In rural districts, or districts where no sewer exists, privy vaults shall not be located within two feet of party or street line, nor within twenty feet of any building. Before any privy vault shall be constructed, application for permission therefor shall be made to the department or board or bureau of health ; and such privy vault shall have nine-inch walls, constructed of hard burned brick, or stone, laid in cement mortar, or of concrete, with bottom and sides cemented so as to be water-tight; size to be not less than four feet in diameter and six feet deep. Sec. 62, Act of June 7, 1901, P. L. 493, as amended by Sec. 11, Act of May 14, 1909, P. L. 840. Material and Workmanship. (851). All material used in the work of plumbing and drainage must be of good quality and free from defects. The work must be executed in a thorough and workmanlike manner. Sec. 63, Act of June 7, 1901, P. L. 493. No Person Allow Name to be Used. (852). No person, firm or corporation, carrying on the business of plumbing and house drainage, shall allow his or their name to be used by any person, directly or indirectly, either to obtain a permit or permits or to do any work under his or their license. Sec. 64, Act of June 7, 1901, P. L. 493. Terms Used. (853). The term "private sewer" is applied to main sewers that are not constructed by and under the supervision of the department of public works. The term "house sewer" is applied to that part of the main drain or sewer extending from a point five feet outside of the outer wall of a building, vault or area to its connection with public sewer, private sewer or cesspool. 503 The term "house drain" is applied to that part of the main hori- zontal drain and its branches inside the walls of the building, vault or area, and extending to and connecting with the house sewer. The term "soil-pipe" is applied to any vertical line of pipe ex- tending through the roof, receiving the discharge of one or more water-closets, with or without other fixtures. The term "waste-pipe" is applied to any pipe extending through roof, receiving the discharge from any fixtures except water-closets. The term "vent-pipe" is applied to any special pipe provided to ventilate the system of piping, and to prevent trap siphonage and back pressure. Sec. 65, Act of June 7, 1901, P.> L. 493. A pipe which carries nothing but roof water from two spouts, and surface water from a small area next to the rear of a house is not a drain pipe within the meaning of the act. City of York vs. Eyster, 23 York, 169. (854). Whenever it shall come to the knowledge of the depart- ment or board or bureau of health, or complaint in writing shall be made by any citizen, that the plumbing or drainage in any build- ing has become a nuisance, or is contrary to the provisions and requirements of this act or the ordinances of the city, or is of faulty construction and liable to breed disease or endanger the health of the occupants, or upon the request of any owner or occupant, of any building fitted with plumbing or drainage prior to the passage of this act, then the department or board or bureau of health shall direct the proper officer to examine the plumbing or drainage in any such building, and the said officer shall make a drawing of the plan of said plumbing, drainage, and sewer and ventilating shaft connections. He shall report his findings, in writing, to the depart- ment or board or bureau of health, and suggest such changes as are necessary to make the same conform to the rules governing such matters. The department or board or bureau of health shall thereupon notify the owner or agent of any such building of the changes which are necessary to be made in said plumbing or drainage. Said changes shall be made within the time fixed by the department or board or bureau of health; and, upon refusal or neglect to obey such orders, the department or board or bureau of health shall institute legal proceedings to have such changes made and said nuisance abated, by action before a justice of the peace or court of record ; in which said action the owner or agent of said building may show in defence, that the plumbing or drainage was not a nuisance, or was not of faulty construction or out of repair, and, in case of a building con- 504 structed subsequent to the passage of this act, said plumbing or drainage was not contrary to the provisions and requirements of this act or the ordinances of the city. Sec. 66, Act of June 7, 1901, P. L. 493, as amended by Sec. 12, Act of May 14, 1909, P. L. 840. First Inspection. (855). When drain, soil, waste, vent, and other pipes in the build- ing, connected or to be connected with the sewer, have been placed in position, a preliminary water or air test of the same shall be applied, in presence of an officer of the board or bureau of health. Sec. 67, Act of June 7, 1901, P. L. 493. Final Test. (856). When the work has been completed, a final notice shall be filed with the board or bureau of health, when a final air or peppermint test shall be made, in presence of said officer; when, if found satisfactory, a certificate of approval of the work will be issued; but no such plumbing or drainage work or system shall be used until said test has been made and certificate issued. Sec. 68, Act of June 7, 1901, P. L. 493. (857). When work is ready for inspection the plumbing contrac- tor shall make such arrangements as will enable the proper officer to reach all parts of the building easily and readily, and also have present the proper apparatus and appliances for making said tests, and furnish such assistance as may be necessary to a proper appli- cation of the same. S^c. 69, Act of June 7, 1901, P. L. 493. (858). In case of any dispute or difference of opinion existing between the department or board or bureau of health and any per- son, firm or corporation, as aforesaid, regarding the construction of plumbing, house drainage or cesspools, the same shall be submitted by either party to the director of the department of public safety, or the presiding officer of the department or board or bureau of health, who shall pass upon the same, and whose findings therein, after hearing, shall be final and conclusive upon all parties. Sec. 70, Act of June 7, 1901, P. L. 493, as ameaded by Sec. 13, Act of May 14, 1909, P. L. 840. In the absence of a board of health, there is n« one legally authorized to inspect or approve the work of a plumber. City of York vs. Eyster, 23 York, 169. (859) . Any person or persons who shall' fail to comply with any of the provisions of this act, regarding the procuring of a license or certificate to engage in or work at the business of plumbing or 505 house drainage, shall be liable to a fine of not less than ten dollars ($10.00), nor exceeding fifty dollars ($50.00), for each and every day he or they shall engage in or work at said business, without first having obtained said certificate or license ; and any person or persons who shall violate any of the rules, regulations, or requirements set forth in this act, regarding the construction, reconstruction or test- ing of plumbing, house drainage, or cesspools, shall be liable, for every such offense, to a fine of not less than ten dollars ($10.00), nor more than fifty dollars ($50.00) . All fines~and penalties imposed by this act shall be recoverable, by summary proceedings, before any alderman, police magistrate, or justice of the peace in said cities ; and all suits or actions at law instituted for the recovery thereof shall be in the name and for the use of the city within or against which offense is committed ; and upon recovery thereof, all such fines and penalties shall be paid to the city trea-surer thereof. In default of the payment of any fine or penalty imposed by any alderman, police magistrate, or justice of the peace, under the provisions of this act, the person or persons so offending may be committed to the jail, work-house, or other penal institution of the county in which said city is situated, for a period not exceeding thirty days. Sec. 71, 'Act of June 7, 1901, P. L. 493, as amended by Sec. 14, Act of May 14, 1909, P. L. 840. The act contemplates that, upon conviction of the offender, the magistrate should fix the amount of the fine and pass sentence. A suit by the city for the penalty was not intended. Com. vs. City of Scranton, 14 D. R. 679; 6 Lack, 141; 19 York 9. An action cannot be maintained, under this act, in the name of the city of Pittsburgh, without its consent, to recover the penalty provided by the act for conducting the business of a plumber/ without a license. Clauchs vs. Pittsburgh, 31 Super. Ct. 331, affirming 14 D. R. 571. (860). From and after the passage of this act, the boards of health in cities [and boroughs] of this Commonwealth shall be and they are hereby authorized and directed to adopt and promulgate suitable rules and regulations for the construction of house drain- age and cesspools, and to provide for the registration of journey- men and master plumbers, and persons engaged in the plumbing business in cities and boroughs: [Provided, That the provisions of this act shall not apply to boroughs having no system of water supply or system of sewage. J Sec. 1, Act of June 24, 189S, P. L. 232. The exception of boroughs having no system of water supply or system of sewage is a proper classification for the purposes of the act. The statute does not involve an unlawful delegation of legisla- tive power. A regulation under the act which provides for the regis- 506 tration of master plumbers only, and fails to provide for the registry of journeymen, is invalid as lacking in uniformity. Com. vs. Shafer, 32 Super. Ct. 497, affirming 20 York 73, 2 Lehigh Co. L. J. 74, 32 Pa. C. C. 433, 54 P. L. J. 71. (861). Any person who shall refuse or neglect to comply with the requirements of said rules and regulations when promulgated, shall be guilty of a misdemeanor, and on conviction be sentenced to pay a fine of not more than one hundred (100) dollars, or undergo an imprisonment not exceeding one year, or both, in the discretion of the court: Provided, That the provisions of this act shall not be construed to repeal the provisions of an act, entitled "An act author- izing the boards of health in cities of the first class to regulate house drainage, the registration of master plumbers and the construction of cesspools," approved the thirtieth day of June, Anno Domini one thousand eight hundred and eighty-five. Sec. 2. Act of June 24, 189S, P. L. 232. 507 ARTICLE LII. CEMETERIES AND BURIAL GROUNDS. See also Section (376). (a) Changing Location of Cemeteries. Removal of Bodies. (862). Whenever any incorporated or unincorporated church, cemetery, or burial association own burial grounds, wholly or in part in any city, [township, or borough] in this Commonwealth, and by reason of the growth thereof, as well as for sanitary purposes, it is deemed necessary or desirable, in the opinion of the said church, cemetery, or burial association^ to change the location thereof; or if, by reason of the opening of streets, roads, or public passages around or through the same, a portion of the property has become angular and partly surrounded by improvements; or if, by reason of the proximity of adjacent property, the interment of the dead may in the interest of public health be prohibited in any part or parts of the ground belonging to any incorporated oi: unincorporated church, cemetery, or burial association aforesaid; or, from other causes, any burial ground, belonging to or in charge of any incor-- porated or unincorporated church, cemetery, or burial association, has ceased to be used for interments, and has become so neglected as to become a public nuisance ; or that the remains of bodies in- terred in any such neglected or disused cemetery in any city, [town- ship, or borough] interfere with and hinder the improvements, ex- tensions, and general progressive interest of any city, [township, or borough] — it shall be lawful for such incorporated or unincorporated church, cemetery, or burial association, and they are hereby author- ized and empowered, to purchase new and more suitable grounds in the vicinity of such city, [township, or borough,] of such extent and area as they shall deem expedient; or to purchase lots or sec- tions in other properly regulated burial-ground or cemetery in the vicinity of such city, [township, or borough,] for the burial of the dead ; and to purchase frpm the holders of lots in their own grounds the said lots, whether interments have been made in them or not, 508 and provide for the reinterment of bodies that may be buried in any of the lots so purchased by them. And the board of managers, trustees, or other officials in whom is vested the management of the affairs of such incorporated or unincorporated ckurch, cemetery, or burial association, are also hereby authorized and empowered to contract and agree with the owners of the lots in which interments have been made to remove from said lots the dead, to such new locations, upon such terms as may or can be mutually agreed upon. And in case any bodies have been interred in lots in such cemetery or cemeteries, and the owners of the. lots in which the interments are made cannot, after diligent search by the board of managers, trustees, or other officials, be found, such bodies may be removed by the aforesaid managing officials to lots in such grounds, so pur- chased by said incorporated or unincorporated church, cemetery, or burial association, or to lots or sections in other properly regu- lated burial ground or cemetery, in the vicinity of such city, [town- ship, or borough,] and interred therein ; the expense of such removal and interment, enclosures and improvements to be bourne by such in- corporated or unincorporated church, cemetery, or burial association ; and, upon such removal being made, the ground from which the bodies are so removed shall be deemed and considered vacated for burial purposes, and revert to and become the property of such in- corporated or unincorporated church, cemetery, or burial association making such removal, and be taken and considered the same as if said lot or lots had never been sold by the said church, cemetery, or burial association, for the purpose of interment or any other pur- pose whatsoever. And in case the holders of lots in which no inter- ments have been made cannot, after diligent search by the managing .officials above mentioned, be found, then the managing officials may in their discretion, assign to said owner parts of the ground so pur- chased, equal in value to the said lots the owners of which cannot be found ; or assign to such owners lots of equal value in other properly regulated burial-ground or cemetery in the vicinity of such city, [township, or borough ;] or the said managing officials may set apart or hold in trust for the owners of said lots who cannot be found, a sum of not less than the original price paid for said lots by the owner, and shall hold and securely keep the said sum, so set apart, for the benefit of the said owners, and pay to them whenever they may call for the same ; and thereupon, whenever lots of equal value shall have been set apart, on the books of said incorporated or unin- corporated church, cemetery, or burial association, as having been assigned to said owners who cannot be found, in the new and more suitable ground so purchased, or in a properly regulated burial- ground or cemetery in the vicinity of such city, [township, or bor- ougli,] or as soon as the said managing officials shall set apart a 509 sum equal to the price paid for said lots, 327. For powers of City Planning Commission coiiceriiing parks and playgrounds within, and for three miles beyond, the city limits, see Sees. (326) to (331) inclusive. (873). Whenever any of said cities in the exercise of the right so confefred has heretofore acquired, taken, used, or appropriated, or shall hereafter acquire, take, use or appropriate private property for public park purposes, and said city cannot agree with the owner or owners, lessee or lessees of such private property upon the compensation for the property appropriated and the damages done, or when by reason of the absence or legal incapacity of any such owner or owners, lessee or lessees, no such compensation can be agreed upon, the court of common pleas of the proper county, or any judge thereof in vacation, on application thereto by petition by said city, or such owner, lessee or any person interested, shall 517 appoint three discreet, disinterested, freeholders of said city as view- ers to view and ascertain the damages done by reason of such tak- ing, use, appropriation, occupancy, or injury, and shall appoint a time, not less than twenty nor more than thirty days thereafter, for said viewers to meet at or upon the premises where the damages are alleged to be sustained or the property taken, of which- time and place ten days notice shall be given by the petitioner to said viewers and all parties interested by personal service when such service can be obtained, otherwise by publication in one or more newspapers and by handbills posted on the premises, or in such other manner that said court shall direct. And the said viewers or any two of them having been duly sworn or affirmed, faithfully, justly and impartially to decide and a true report make concerning all matters and things to be submitted to them and in relation to which they are authorized to inquire into, in pursuance of the pro- visions of this act, and having viewed the premises or examined the property, shall estimate and determine the quantity, quality and value of the land or property so entered upon, taken, used, appro- priated, or injured as the case may be, and having a due regard to and making just allowance for the advantages which may have re- sulted or which may seem likely to result to the owner or owners of said land or property in consequence of the making, enlarging, or extending of such public park, and after having made a fair and just comparison of said advantages and disadvantages, they shall estimate and determine whether any, and if any, what amount of damages has been or may be sustained, and to whom payable and make report thereof to said courtr If any damages be awarded and the report of said viewers be confirmed by said court, judgment shall be entered thereon, and if the amount thereof be not paid within thirty days after the entry of such judgment, said judgment shall be collected by due legal process as other judgments are col- lected from said city. Upon the report of said viewers, or any two of them, any party who may, within twenty days thereafter, file an appeal from said report to said court in writing, and accompanied with an affidavit that the same is not taken for the purpose of delay but because the affiant firmly believes that injustice has been done, and after such appeal, either party may put the cause at issue in the form directed by said court and the same shall be tried by said court and a jury, and after final judgment, either party may appeal to the Superior or Supreme Court under the provisions and in the manner prescribed in other cases. The said court of common pleas shall have power to order what notices shall be given in connection with any of the proceedings, and may make all such orders as it may deem requisite. The costs incurred in the proceedings afore- said shall be defrayed by said city and each of the viewers shall be 518 entitled to receive a sum, not exceeding five dollars per day, or such compensation as shall be decided upon by the proper court, not exceeding five dollars per day, for every day necessarily employed in the performance of their duties. Sec. 2, Act of June 26, 1895, P. L. 349, as amended by Sec. 2, Act of July IS, 1897, P. L. 273. The salary of the viewers is now regulated by Sec. 4, Act of June 23, 1911, P. L. 1123 as amended by the Act of June 5, 1919, P. L. 393. (874). It shall be lawful for, and the right is hereby conferred upon the cities of this Commonwealth to purchase, acquire, enter upon, take, use, and appropriate private property, for the purpose of making, enlarging, extending, and maintaining public parks, park- ways, and play-grounds within the corporate limits Of such cities, whenever the councils thereof shall, by ordinance or joint resolu- tion, determine thereon : Provided, That where such private prop- erty is outside of the city, it may be annexed thereto by ordinance of said city: And provided. That where any poorhouse properties are so taken, and such cities shall have made adequate provisions for thereafter accommodating and supporting the poor of the dis- tricts, wards, and townships within such cities, wherein such poor- houses are located, nominal damages only shall be allowed for such taking, and the land shall be held on condition that such city shall continue to make adequate provisions for the poor of such districts, wards, or townships. Sec. 1, Act of June 8, 1907, P. L. 466. See Sec. (872). For powers of the City Planning Commission concerning the loca- tion, etc., of parks, parkways, and playgrounds, within, and for three -miles beyond, the city limits, see Sees. (326) to (331) inclusive. (875). It shall be lawful for, and the right is hereby conferred upon, cities of this Commonwealth to purchase, acquire, enter upon, take, use and appropriate neighboring private property, within two hundred feet of the boundary lines of such property so taken, used, and appropriated for public parks, parkways and play-grounds in order to protect the same by the resale of such neighboring prop- erty with restrictions, whenever the councils thereof shall by ordi- nance or joint resolution, determine thereon: Provided, That in the said ordinance or joint resolution, the councils thereof shall declare that the control of such neighboring property, within two hundred feet of the boundary lines of such public parks, parkways, or play- grounds, is reasonably necessary, in order to protect such public parks, parkways, or playgrounds, their environs, the preservation of the view, appearance, light, air, health, or usefulness thereof. Sec. 2, Act of June 8, 1907, P. L. 466. 519 The Act of June 8, 1907, P. L. 466 is unconstitutional in so far as it authorizes cities to take and appropriate neighboring private property within two hundred feet of the boundary line of property appropriated for public parks, parkways and playgrounds. Penna. Mutual Life Ins. Co. vs. Phila., 242 Pa. 47, affirming 22 D. R. 195. (876). It shall be lawful for, and the right is hereby conferred upon, the cities of this Commonwealth, to resell such neighboring property, with such restrictions in the deeds of resale in regard to the use thereof as will fully insure the protection of such public parks, parkways, and playgrounds, their environs, the preservation of the view, appearance, light, air, health, and usefulness thereof, whenever the councils thereof shall, by ordinance or joint resolution determine thereon. ~ Sec. 3, Act of June 8, 19©?, P. L. 466. Unconstitutional. See note to section (875). (877). The taking, using, and appropriating, by the right of emi- nent domain as herein provided, of private property for the purpose of making, enlarging, extending, and maintaining public parks, park- ways, and playgrounds, and of neighboring property, within two hundred feet of the boundary lines of such public parks, parkways, and playgrounds, in order to protect such public parks, parkways, and playgrounds, their environs, the preservation of the view, appear- ance, light, air, health, and usefulness thereof, by reselling such neighboring property, with such restrictions in the deeds of resale as will protect said property, so taken for the aforesaid purpose, is hereby declared to be taking, using, and appropriating of such pri- vate property for public use : Provided, however. That the proceeds arising from the resale of any such property, so taken, shall be de- posited in the treasury of said cities, and be subject to general appro- priation by the councils of said cities. Sec. 4, Act of June 8, 1907, P. L. 466. Unconstitutional. See note to section (875). (878). In all cases wherein cities of this Commonwealth shall hereafter take, use, and appropriate private property for the afore- said purposes, by ordinance, or joint resolution, if the compensation and damages arising therefrom cannot be agreed upon by the owners thereof and such cities, such compensation and damages shall be con- sidered, ascertained, determined, awarded, and paid in the manner provided in an act entitled "An act providing for the manner of ascertaining, determining, awarding, and paying compensation and damages in all cases where municipalities of this Commonwealth may hereafter be authorized by law to take, use, and appropriate private property for the purpose of making, enlarging, and main- 520 taining public parks within the corporate limits of such munici- pality," approved the eighth day of June, Anno Domini one thou- sand eight hundred and ninety-five, (P. L. 188). Sec. 5, Act of June 8, 1907, P. L. 466. Special legislation conferring upon certain courts of quarter sessions jurisdiction of proceedings to condemn private property for the pur- pose of opening streets has not been repealed by this general act, providing that condemnation proceedings shall be instituted, under the Act of June 8, 189S, P. L. 188, in the court of common pleas. In such case the courts of quarter sessions and common pleas have con- current jurisdiction. In re Opening of Parkway, 249 Pa. 367. (879). In all cases where any municipality of this Common^, wealth shall hereafter be authorized and empowered by law to ac- quire, enter upon, take, use and appropriate private property for the purposes of making, enlarging and maintaining public parks within the corporate limits of such municipality, whenever the councils thereof shall by ordinance or joint resolution determine thereon, the compensation and damages arising from such taking, using and appropriating of private property for the purposes aforesaid, shall be considered, ascertained, determined, awarded and paid in the manner hereinafter provided. Sec. 1, Act of June 8, 1895, P. L. 188. (880). If the compensation and damages arising from such tak- ing, using and appropriating of private property for the purposes aforesaid, cannot be agreed upon by the owners thereof and such municipalities, it shall be lawful for such municipalities to tender its bond as security to the party claiming or entitled to any damages, or to the attorney or agent of any absent person, or to the agent or other officer of a corpration, or to the guardian or committee of any person under legal incapacity, the condition of which shall be that the said municipality shall pay or cause to be paid such amount of damages as the party shall be entitled to receive, after the same shall have been agreed upon or assessed in the manner provided in this act. In case the party or parties claiming damages refuse or do not accept the security so tendered, the said municipality shall then give the party, his or their agent, attorney, guardian or com- mittee, at least ten days written notice of the time when the same will be presented in any court of common pleas of the county in which the land so to be acquired, taken, used or appropriated is situate, for approval; and thereafter, the said municipality may pre- sent its bond to said court of common pleas, and when approved, the said bond shall be filed in said court for the benefit of those interested, and recovery may be had thereon for the amount of dam- ages ascertained or finally determined, if the same be not paid or 521 cannot be made by execution on the judgment in the issue formed to try the question, and upon the approval of said security, said municipality may enter into possession, take, hold, use and enjoy said land for the purposes aforesaid forever. Sec. 2, Act of June 8, 1895, P. L. 188. A city has no right to enter upon land appropriated for park pur- poses without tendering to the owner a proper bond. Meadville vs. Roudebush, 38 Pa. C. C. 209; 20 D. R. 602. The bond should not be submitted to the court of common pleas for approval until after there has been a bona fide effort to reach a satisfactory adjustment with the owner of the property. Roudebush vs. Meadville, 241 Pa. 261, affirming 40 Pa. C. C. 254. Under the Act of March 11, 1903, P. L. 25, the bond may be tendered without surety; and a bond so given does not violate Art. XIV, Sec. 8, of the Constitution, requiring that the compensation for land taken shall be paid, or secured, to the owner before the taking. Harrisburg's Park 34 Pa. C. C. 219; 10 Dauphin 174. Where private property is taken by a municipal corporation for public use, it is suificient, under the Constitution, if the means be pro- vided for the payment of the compensation, without unreasonable de- lay out of an adequate fund, and that the public purse or the power of taxation of the municipality is adequate security to the owner. Ibid (881). In case the compensation for damages accruing from such appropriation has not been agreed upon by the parties in interest, any court of common pleas of the proper county as aforesaid, or any law judge thereof in vacation, on application thereto by said municipality or any person interested in such land and property, shall appoint three discreet and disinterested freeholders as view- ers, and appoint a time not less than ten nor more than twenty days thereafter, when said viewers shall meet upon the property and view the same and the premises affected thereby. The said viewers shall give at least five days personal notice of the time of their first meeting upon the owners, agents, attorneys or rep- resentatives thereof, if the same reside within the county in which such municipality is located, otherwise by handbills posted upon the premises or by such other notice as the court shall direct. The said viewers, having been duly sworn and tirue report to make con- cerning all matters and things to be submitted to them in relation to which they are authorized to inquire under the provisions of this act, and having viewed the premises, or examined the property, shall hear all parties interested and their witnesses, and having due re- gard to the advantages and disadvantages, shall estimate and deter- mine the damages for the property taken, used or appropriated, and to whom the same are payable; they shall give at least ten days' notice thereof in the manner herein provided to all parties interested of the time and place when said viewers will meet, and exhibit, said report and hear any exceptions thereto. After making whatever 522 changes are deemed necessary and proper, the said viewers shall make report to court, showing the damages, if any, allowed, and file therewith a plan showing the properties acquired, taken, used and appropriated, and the names of the persons to whom such damages are payable. Sec. 3, Act of June 8, 1895, P. L. 188. (882). Upon the report of said viewers, or any two of them, being filed in said court, any party may within thirty days there- after file exceptions to the same; and the court shall have power to confirm said report, or to modify, change or otherwise correct the same, or refer the same back to the same or new viewers with like power as to their report. Or within thirty days from the filing of any report in court, any party whose property is so acquired, taken, used or appropriated may appeal and demand a trial by jury and any party interested therein may, within thirty days after final decree, have an appeal to the Supreme Court. If no exceptions are filed or no demand made for trial by jury within said thirty days after the filing of said report, the same shall become absolute. The said court of common pleas shall have power to order what notices shall be given in connection with any part of said proceedings, and may make all such orders as it may deem requisite. Sec. 4, Act o£ June 8, 1895, P. L. 188. (883). The viewers provided for in this act may be appointed before or at any time after the entry, taking or appropriation of any property to be used for the purpose aforesaid. They shall have power to administer oaths and adjourn their hearings from day to day as they may find necessary. Sec. 5, Act of June 8, 1895, P. L. 188. (884). The costs of the viewers and all court costs incurred in the said proceedings, including advertising and printing and posting notices, shall be defrayed by the said municipality, and each of the said viewers shall be entitled as compensation to a sum not exceed- ing five dollars per day for every day necessarily employed in the performance of the duties herein prescribed. Sec. 6, Act of June 8, 1895, P. L. 188. The salary of the viewers is now regulated by Sec. 4, Act of June 23, 1911, P. L. 1123', as amended by the Act of June 5, 1919, P. L. 393. (885). All damages when ascertained and determined shall be assessed against and paid by the municipality so taking, using and appropriating the property as aforesaid. Sec. 7, Act of June 8, 1895, P. L. 188. It is not necessary for a city of the third class to actually appropriate money to pay for lands which it is proposed to take for park purposes, prior to instituting proceedings for the taking of the land. Under the 523 statutes the property owner is sufSciently protected, and it cannot be successfully argued that the failure to previously appropriate renders the condemnation proceedings invalid. Roudebiish vs. Mead- ville, 241 Pa. 261, affirming 40 Pa. C. C. 254. (c) Sale and Lease of Coal Underlying Parks and Com- mons. (886). It shall be lawful for councils of cities of the third class, by ordinance duly and regularly passed, and approved by the mayor, to sell or lease, at the best price obtainable, and subject to such conditions as they may deem it necessary to impose for the pro- tection of the surface, the coal under any park or common owne'd by and situate within the corporate limits of said cities; the pro- ceeds thereof to be applied only to the improving, policing and light- ing of said park or common: Provided, That when any park or common shall front on a river or other public stream, it shall be lawful to use such portion of the amount realized from the sale or lease of such coal for the erection of retaining walls, as councils shall deem necessary for the purpose. Sec. 1, Act of June 4, 1901, P. L. 424. (887). Before any coal shall be sold or leased, as provided in the first section of this act, the proposed sale shall be advertised at least once a week, in three daily papers published in the city in which said coal is situate, and also in some New York journal or magazine devoted to coal mines and mining, for four weeks; and sealed bids shall be received, and the person, firm or corporation offering the highest and best price shall be the purchaser. Sec. 2, Act of June 4, 1901, P. L. 424. (888). Whenever any city of the third class shall have sold or leased the coal underlying any public park or common within the limits of said city, the proceeds of such sale or leasing shall be ap- plied only as follows : First. To the improvement, policing, and lighting of the said park or common, or the redemption of bonds issued for the improvement of said park or common. Second. Any surplus of the said proceeds left, beyond what is required for improving, policing, and lighting said park or com- mon, may be applied to the purchase and improvement of other lands, within the limits of the city or immediately adjacent thereto, for use as public parks or commons: Provided, That no land shall be purchased for such use, with said funds, unless the ordinance author- izing the purc|iase shall have been passed by the affirmative vote of two-thirds of the members elected to each branch of council. Sec. 1, Act of April 16, 1903, P. L. 21S. 524 (889). Whenever hereafter any such city shall have leased the coal under any public park or common, for a rental or royalty pay- able in annual or other periodical instalments, the said city may issue park improvement bonds, based upon the faith and credit of the city and a pledge of the royalties accruing in its favor upon the lease of the coal, as aforesaid, which royalties shall be paid to the city treasurer and placed to the credit of the sinking-fund for the redemption of said bonds and the payment of interest thereon as the same shall become due. Sec. 2, Act of April 16, 1903, P. L. 215. (890). In order to provide for the payment of the cost of any im- provement made in any public park or common, the city may from time to time issue park improvement bonds, based upon the faith and credit of the city and upon a pledge of the royalties, as aforesaid, in such sums as may be from time to time required, not to exceed the cost of such improvement and interest thereon. Said bonds shall bear interest at the rate not to exceed six per cent, per annum, payable semi-annually. The method of redemption shall be provided for in the ordinance authorizing the issue. Sec. 3, Act of April 16, 1903, P. L. 215. (891). Said bonds shall be sold at not less than par, and the proceeds thereof shall be applied solely to the payment of the cost of the said improvement. They shall be redeemable in not less than five years, and payable at any time not exceeding thirty years from the date of issue thereof, at the option of said city. Sec. 4, Act of April 16, 1903, P. L. 215. (d) Playgrounds, Playfields; Gymnasiums, Baths, Swim- ming Pools, Recreation Centers. (892). The city council of any city of the [second or] third class, [or the borough council of any boroug'h or the county commis- sioners of any county,] may desigilate and set apart for use as play- grounds, playfieHs, gyninasdums, public baths, swimming pools, or indoor recreation centers, any lands or buildings owned by such city, [borough, of comity,} and not dedicated or devoted to other public use. Such city, [borotigh or county] may, in such manner as may be authorized or provided by law for the acquisition of land or build- ings Sot public purposes in such city, borough, ot county, acquire lands or buildings, therein for use as playgrounds, playfields, gym- nasiums, public baths, swimming pools, or irtdooi' recreation centers, or, if there be no law authorizing such acquisition, the city council [of the feorotigh council or the county commissioners, as the case 525 may be,] may acquire lands or buildings for such purposes by gift, or purchase, or may lease lands or buildings in such city, [borough or county] for temporary use for such purposes. Sec. 1. Act of July 8, 1919, P. L. 784. For powers of City Planning Commission concerning parks, play- grounds etc., and public buildings within, and for three mlies beyond, the city limits, see Sees. (326) to (331) inclusive. For powers of the State Art Commission over design and location of public buildings, see Sec. (738). (893). The authority to supervise and maintain playgrounds, playfields, gymnasiums, public baths, swimming pools, or indoor recreation centers may be vested in any existing body or board or in a recreation board, as the city [or borough] council [or the county commissioners] shall determine. The local authorities of any such city, [borough or county] may equip, operate, and maintain the playgrounds, playfields, gymnasiums, swimming pools, public baths, or indoor recreation centers, as authorized by this act. Such local authorities may, for the purpose of carrying out the provisions of this act, employ play leaders, recreation directors, supervisors, superintendents, or any other officers or employes, as they deem proper. Sec. 2, Act of July 8, 1919, P. L. 784. (894). If the city [or borough] council [or the county commis- sioners] shall determine that the power to equip, operate, and main- tain playgrounds, playfields, gymnasiums, public baths, swimming pools, or recreation centers shall be exercised by a recreation board, they may establish, in said city, [borough or county,] such recreation board, which shall possess all the powers, and be subject to all the responsibilities, of the respective local authorities under this act. Such board, when established, shall consist of five persons, and, when established in a city [or borough] two of the members shall be members of the school board. The board shall be appointed by the mayor of such city [or the burgess of such borough or the commis- sioners of such county,] and shall serve for terms of five years or until their successors are appointed, except that the members of such board first appointed shall be appointed for such terms that the term of one member shall expire annually thereafter. Members of such board shall serve without pay. Women shall be eligible for appoint- ment. Vacancies in such board occurring otherwise than by expira- tion of term shall be for the unexpired term, and shall be filled in the same manner as original appointments. Sec. 3, Act of July 8, 1919, P. L. 784. (895). The members of a recreation board, established pursuant to this act, shall elect their own chairman and secretary and select 526 all other necessary officers, to serve for a period of one year, and may employ such persons as may be needed as authorized by this act. Such board shall have power to adopt rules and regulations for the conduct of all business within its jurisdiction. Sec. 4, Act of July 8, 1919, P. L. 784. (896). Any two or more cities, [or boroughs,] or any city or borough or any city or borough and county, may jointly acquire property for, and operate and maintain, any playgrounds, playfields, gymnasiums, public baths, swimming pools, or indoor recreation cen- ters. Any school district shall have power to join with any city, [borough or county] in equipping, operating, and maintaining play- grounds, playfields, gymnasiums, public baths, swimming pools apd indoor recreation centers, and may appropriate money therefor. Sec. S, Act of July 8, 1919, P. L. 784. (897). The city [or borough] council [or the county commis- sioners] may issue bonds for the purpose of acquiring lands or build- ings for playgrounds, playfields, gymnasiums, swimming pools, pub- lic baths, or indoor recreation centers and for the equipment thereof. Sec. 6, Act of July 8, 1919, P. L. 784. (898) . All expenses incurred in the operation of such playgrounds, playfields, gymnasiums, swimming pools, public baths, and indoor recreation centers, established as herein provided, shall be payable from the treasury of such city, [borough, county, or school dis- trict.] The local authorities of such city, [borough, county, or school district] having power to appropriate money therein, may annually appropriate and cause to be raised by taxation such tax, not to exceed two mills on the dollar of the assessed valuation of taxable property in such city, [borough, county, or school district,] for the purpose of maintaining and operating playgrounds, play- fields, gymnasiums, public baths, swimming pools, and recreation centers. Sec. 7, Act of July 8. 1919, P. L. 784. ' (e) Shade Tree Commission. (899). In [townships of the first class, boroughs, and] cities of the Commonwealth of Pennsylvania there may be appointed in the manner hereinafter provided, a Commission of three freeholders, to be known and designated as the Shade-tree Commission of the said [towship, borough, or] city, who shall serve without compensa- tion, and who shall have exclusive and absolute custody and control of, and power to plant, set out, remove, maintain, protect, and care for, shade trees, on any of the public highways of the said [townships, boroughs, and] cities, the cost thereof to be provided for in the 527 manner hereinafter stated : Provided, That in [townships, boroughs, or] cities in which a Commission for the care of pubHc parks shall have been created, said Commission shall, upon the acceptance of this act as provided in section two, be charged with the duties of the Commission as above provided, and shall, for that purpose be pos- sessed of all the powers herein mentioned and granted. Sec. 1, Act of May 31, 1907, P. L. 349. The commission has no authority to arbitrarily cut down vigorous, healthy and ornamental trees well adapted to the soil and climate and substitute therefor new trees of another variety, merely to secure uniformity along a street, and such action will be restrained by in- junction as the title of the act states its purpose to be the plant- ing and care of shade trees, the power to remove trees embraces only those trees which, by reason of being a nuisance, decayed or not adapted to the soil or locality should be removed. Bushong vs. Wyomissing Borough, 25 D. R. 690; 8 Berks, 47; 7 M. L. R. 121; 30 York 86. (900). [The commissioners of any township of the first class, or] the councils of any [borough or] city, in the State of Pennsyl- vania, may, [by majority vote in the case of the commissioners, or] by joint resolution in the case of the councils, accept the provi- sions of this act; and when such [majority vote or] joint resolution shall have been duly passed and approved, and such Shade-tree Commissioners appointed, or, in their stead, the duties and powers herein provided have been devolved upon an existing park commis- sion, then, from that time and in that event, this act and all its pro- visions shall be in full force and application in such [township, of the first class, borough, or] city, so accepting ; and such commission- ers shall be appointed, for terms of three, four, and five years, re- spectively, and, on the expiration of any term, the new appointment shall be for five years, and any vacancies shall be filled for the un- expired term only; [and in townships of the first class] the said appointment shall be made [by the commissioners thereof; and in boroughs, by the chief burgess, and] in cities, by the mayor thereof: Provided, That in cities where a Commission exists for the care of public parks, the term and appointment of such Commission shall not be changed by this act, but shall be and remain as provided by the Act of Assembly, and by the ordinance of councils creating such Com- mission for the care and maintenance of public parks. And such Shade-tree Commission shall, twice in every year, report in full its transactions and expenditures for the municipal fiscal year then last ended, to the authority under and by which it was appointed; Pro- vided, That an existing park commission, acting under this enact- ment, may embody its report in its regular report to the councils, as by law or ordinance provided. Sec. 2, Act of May 31, 1907, P. L. 349. 528 (901). When such shade-tree commissioners, or park commission- ers so acting, shall propose the setting oixt or planting or removing of any shade trees, or the material changing of the same in any high- way, they shall give public notice of the time and place appointed for the meeting at which such contemplated work is to be consid- ered, specifying in detail the highways, or portion thereof, upon which trees are proposed to be planted, removed, or changed, in one or more — not exceeding two in all — of the newspapers published in said [township, borough or] city, once each week for at least two weeks, prior to the date of said meeting. Sec. 3, Act of May 31, 1907, P. L. 349. (902). The cost of planting, transplanting, or removing any trees in any highway, and of suitable guards, curbing, or grating for the protection thereof, when necessary, and of the proper replacing of any pavement or sidewalk necessarily disturbed in the doing of such work, shall be borne by the owner of the real estate in front of which such trees are planted, set out, or removed ; and the cost there- of as to each tract of real estate shall be certified by the commission- ers to [the township commissioners, or to] the presidents of the coun- cils in [boroughs and] cities, and also to the person having charge of the collection of taxes for the said [township, borough, or] city ; and upon the filing of said certificates, the amount of the cost of such improvement, of which notice shall also be given to each property owner involved, accompanied with a copy of the aforesaid certificate, together with a notice of the time and place for payment, shall be and become a lien upon said real estate, in front of which said trees have been planted, set out, or removed; said lien to be collectible, if not paid in accordance with notice as "herein provided, in the same manner as other liens for taxes are now collectible against the prop- erty involved. Sec. 4, Act of May 31, 1907, P. L. 349. (903). The cost and expense of caring for said trees after hav- ing been planted or set out, and the expense of publishing the notices provided for in section three, shall be borne and paid for by a general tax, to be levied annually in the manner that taxes for [township, borough, and] city purposes are now levied, in such [townships of the first class, boroughs, or] cities; such tax not to exceed the sum of one-tenth of one mill on the dollar on the assessed valua- tion of the property in such [townships of the first class, boroughs, or] cities; and the needed amount shall each year, in due time, be certified by the shade-tree commissioners to the proper authorities charged with the assessment of taxes in said [townships, boroughs, or] cities to be assessed and paid, as other taxes are assessed and paid, and to be drawn against as required by said commissioners, in 529 34 the same manner as moneys appropriated for [township, borough, or] city purposes, are now drawn against in said [townships, bor- oughs, or] cities: Provided, That the [commissioners of any town- ship of the first class, and the]' councils of any [borough or] city, accepting the provisions of this act, may provide for the expense of the maintenance of trees on highways, in accordance with the pro- visions of this section by actual appropriation, equal to the amount certified to be required by the said Commission,- in lieu of the specific assessment above authorized. Sec. 5, Act of May 31, 1907, P. L. 349. (904). The Commission, under which the provisions of this act shall be carried out, in any [township of the first class, borough, or] city, shall have power to employ and pay such superintendents, en- gineers, foresters, tree-wardens, or other assistants, as the proper per- formance of the duties revolving upon it shall require ; and to make, publish and enforce regulations for the care of, and to prevent injury to, the trees on the highways of any [township, borough, or] city accepting the .provisions of this act ; and to assess suitable fines and penalties for violations of this act, provided such regulations shall have been published at least twice in one or more, not exceeding two, newspapers of the [township, borough, or] city, involved, after hav- ing been submitted to and being approved by the [commissioners of the township of the first class, or the] councils of the [borough or] city afifected ; and such fines and penalties, so assessed for violations of this act, shall become liens upon the real property of the offender, and be collectible by the constituted authorities as liens for taxes upon real property are now collected. Sec. 6, Act of May 31, 1*907, P. L. 349. (90S). All the moneys due and collected from fines or penalties or assessments, in consequence of the acts of said shade-tree com- mission in enforcing this act, shall be paid to the treasurers of the [townships, boroughs, and] cities accepting its provisions, and shall be placed to the credit of said Commission, subject to be drawn upon by the said Commission for the purposes of this act. Sec. 7, Act of May 31, 1907, P. L. 349. (906). This act shall take effect immediately; but its provi- sions shall not be and become binding upon any [township, borough, or] city until it has been duly accepted, as provided in section two. Sec. 9, Act of May 31, 1907, P. L. 349. 530 (£) Acquisition of Land for Municipal Forests. (907). All [townships of the first class, boroughs, and] cities of this Commonwealth are hereby empowered to acquire, by pur- chase, gift, or lease, and hold as the property of the municipality, tracts of land at present covered with forest or tree growth, or suit- able for the growth of trees, and to administer the same, under the direction of the Commissioner of Forestry of the Commonwealth of Pennsylvania, in accordance with the practices and principles of scientific forestry, for the benefit and advantage of the said munici- palities. Such tracts may be of any size suitable for the purpose, and may be located either within, adjacent to, or at a distance from the corporate limits of the municipality purchasing the same: Pro- vided, That it shall be requisite for the commissioners, burgess, or mayor of any municipality, availing itself of the provisions of this act, to submit to the Commissioner of Forestry, and secure his ap- proval of, the area and location of any lands proposed to be acquired for the purposes of municipal forests, previous to the passage of the ordinance provided for in section two. Sec. 1, Act of April 22, 1909, P. L. 124. (908). Whenever [the township commissioners of any township of the first class, or] the councils of any [borough or] city, shall deem it expedient for the municipality to acquire any such lands for the purposes of a municipal forest, they shall so declare in an ordi- nance, wherein shall be set forth all facts and conditions relating to the proposed action ; which said proposed ordinance, prior to its pas- sage, shall be duly advertised once a week for three weeks, and, after its passage and approval, in accordance with existing law. All money necessary for the purchase of such tracts shall be appropriated in like manner as is now done under existing law, for municipal pur- poses; and such funds may be provided out of current revenue, or by the proceeds of a sale of bonds, in accordance with existing law. Sec. 2, Act of April 22, 1909, P. L. 124. (909). Upon the acquisition of any municipal forests or of lands suitable for such, under this act, the proper authorities shall notify the Commissioner of Forestry, who shall make such rules for the government and proper administration of the same as may be nec- essary. The municipal authorities shall thereupon publish such rules, declare the uses of the forest in accord with the true intent of this act, and make such provision for its administration, maintenance, protection and development as shall be necessary or expedient. Sec. 3, Act of At,ril 22, 1909, P. L. 124. 531 (910). All moneys necessary to be expended, from time to time, for the administration, maintenance, protection, and development of said forest, shall be appropriated and applied as is now done, under existing law, for municipal purposes ; and all revenue and emoluments arising from said forest shall be paid into the municipal treasury, to be used for general municipal purposes. Sec. 4, Act of April 22, 1909, P. L. 124. (911). The municipal forest may be used by the people for gen- eral outing or recreation grounds, subject to the rules governing its administration for the purpose of a municipal forest, in which the major idea shall be the sale of forest products for producing a con- tinuing municipal revenue. Sec. S, Act of April 22, 1909, P. L. 124. (912). The alienation of a municipal forest, or any part thereof, shall be made only in the manner prescribed herein for the purchase of the same, to wit : by ordinance duly advertised before and after passage, but such ordinance shall not be effective in legalizing such alienation until after it shall have been approved by a majority vote of the people at the next ensuing election. Sec. 6, Act of April 22, 1909, P. L. 124. (g) Forest Fires. (913). The Department of Forestry is authorized to enter into agreements for the prevention and suppression of forest fires with [county, township,] municipal, [and private] agencies owning or controlling woodlots, forests, or wild lands, or whose activities in whole or in part are directed toward the prevention and suppression of forest fires. The department is authorized to expend from its general forest fire appropriation, for such protective and preventive purposes as it deems effective, a sum of money equal in amount to the amount which shall be expended by such agencies in accordance with such agreements. All expenditures must first be presented to the Department of Forestry in monthly statements, in form and manner prescribed for the payment of any sum from the forest fire appropriation. The Commissioner of Forestry shall audit the same and transmit them to the Auditor General, who shall then draw his warrant for one-half of the amount of expenditures approved by the Commissioner of Forestry. Sec. 1, Act of June 4, 1915, P. L. 815. (914). Every [county, township,] municipal, [or private] agency working under agreement with the department in accordance with this act, shall render to the department, at the end of each calendar 532 year, a report setting forth a complete itemized statement of ex- penditures made with a view to the prevention and suppression of forest fires, and stating such other information as the department mjay request. The financial statement and facts relating thereto shall be accompanied by an affidavit subscribed to by the person authorized to make the report. Sec. 2, Act of June 4, 1915, P. L. 815. 533 ARTICLE LIV. ELECTRIC WIRES. (915). Within the police power of municipal authorities of cities of the third class [and boroughs] in this Commonwealth there shall be included the right to define, by ordinance, a reasonable district within which all electric light wires, telephone and telegraph wires, shall be placed under ground, in conduits owned either by the municipality or by corporations owning such wires, or by corpora- tions organized for the purpose of laying such conduits and renting space therein : Provided, That in all cases in which such conduits are owned by any private corporation, partnership, or individual, there shall be reserved to the municipality, whether expressed in the ordinance or not, the right to regulate by ordinance the manner in which such conduit shall be used, and the terms and conditions and rate of rental to be charged for space therein, and also the right to take such conduits, either by purchase, upon agreement of the owners thereof and the municipality, or by condemnation proceedings; in which latter case the court of common pleas, or any judge thereof in vacation, shall, upon petition of the municipal authorities, appoint a jury of three reputable citizens of the county, not residents of the municipality, and the proceedings shall be the same as provided by law in the case of the condemnation of land by a railroad com- pany. The municipal authorities shall not have the power to surrender or barter away the rights herein reserved, either by ordinance or contract, or otherwise. Sec. 1, Act of April 28, 1903, P. L. 33S, as amended by Sec. 1, Act of June 12, 1913, P. L. 488. This act empowers all cities of the' third class to require all the companies using electrical currents on the streets to place their wires in an adequate conduit owned either by themselves or by others. Authority to require all wires to be placed under ground does not im- pose upon the city the necessity of including all wires carrying elec- tricity in such an order. A city may compel a telegram company to place its wires in conduits of another company, which was not or- ganized for the purpose of laying conduits and letting space therein. Oil City vs. Postal T. Cable Co., 68 Super. Ct. 77. 534 (916). The court of quarter sessions of the proper county shall have the right to review any ordinance passed in pursuance of this act, and to annul such ordinance if deemed to be unreasonable, upon appeal of any person, partnership or corporation interested: Pro- vided, That such appeal be taken within thirty days from the approval and advertisement of such ordinance. Sec. 2, Act of April 28, 1903, P. L. 335. 535 ARTICLE LV. CONTRACTS WITH RAILROADS AND RAILWAYS. (917). The proper authorities of any [county,] city, [town or township] of this state, respectively, be and they are hereby author- ized and empowered to enter into contracts with any of the railroad companies, whose roads enter their limits, respectively, whereby the said railroad companies may re-locate, change or elevate their rail- roads within said limits or either of them, in such manner as in the judgment of such authorities, respectively, may be best adapted to secure the safety of lives and property, and promote the interest of said [county,] city, [town or township ;] and for that purpose the said authorities shall have power to do all such acts as may be necessary and proper, to effectually carry out such contracts ; and any such contracts made by any railroad company or companies as aforesaid with said authorities or either of them, are hereby fully ratified and confirmed: Provided, That nothing in this proviso contained shall affect any contract made, or hereafter to be made, with any railroad company, from apportioning the expenses of altering and adjusting the grades of existing railroads and intersecting streets in any city or borough, so as to dispense with grade crossings. Sec. 1, Act of June 9, 1874, P. L. 282. For powers of City Planning Commission concerning the location of any railway within, and for three miles beyond the city limits, see Sees. (326) to (331) inclusive. See Art. Ill, Sec. 11 of the Public Service Company Law of 1913. This act contains a prohibition of the building of elevated railroads in a city by a railroad company without a previous contract entered into between such company and the city authorities. Philadelphia vs. P. & R. R. R. Co., 7 Pa. C. C. 390; s. c. 25 W. N. C. 320; 19 Phila. 507. See also Western Penna. R. R. Co.'s Appeal, 99 Pa. 155; Mc- Aboy's Appeal, 107 Pa. 548; Ridgway vs. P. & R. R. W. Co. 22 D. R. 739. (918). In case the local authorities of any city, [borough or town- ship] shall deem it necessary for the public benefit and convenience to secure the removal of any street railway tracks already laid, or 536 prevent the laying of such tracks already authorized to be laid, or to change the route of any street railway on any street or streets, or portion of a street or streets, within its corporate limits, and such purpose or purposes can be accomphshed by agreement with the street passenger railway company or motor power company owning, leasing or operating such tracks, it shall and may be lawful for the said parties to enter into a contract, for a period not exceeding fifty years, for such considerations and upon such terms and conditions, and containing such stipulations, reservations and covenants as may be agreed upon between the respective parties thereto ; and such con- tract may include a covenant providing that, during the continuance thereof, municipal consent shall not be granted to any other company to use or occupy the street, streets, or portions of a street or streets, covered by such contract, for street railway or passenger transporta- tion purposes ; which covenant shall be enforceable by bill in equity against such city, [borough or township,] in case of attempted breach thereof ; and such contract may also provide for the laying or relay- ing of such tracks, upon such terms and under such contingencies and conditions as may be agreed upon. When such contract shall have been made, it shall form a part of the charter of the company, with like force and effect as to all its terms, conditions, stipulations, restrictions, covenants, and provisions as to change of routes as if the same formed a part of the original charter of such company ; and no removal of tracks already laid, or postponement of or delay in the time of beginning or completing the work of laying tracks al- ready authorized to be laid, and no change of route therein provided for, shall operate or be construed to deprive or divest any such com- pany, entering into such contract, of any of the rights, franchises or privileges possessed by it at the time of entering into such con- tract, so as to operate in favor of any company subsequently formed and seeking to occupy, for street railway purposes, the street, streets, or portions of a street or streets covered by such contract : Provided, however. That nothing in this act contained, nor any contract made in pursuance thereof, shall be construed to limit or affect in any way, or impose any additional liability for the exercise of, the right of a steam railroad company to lay its tracts over, under, and across such street or streets, or portions thereof. Sec. 1, Act of May 3, 190S, P. L. 379. The local authorities of a city may enter into a contract with any street railway company operating within the municipal limits to secure the removal, or prevent the laying of tracks already laid or to change the route of any street railway. The contract may not exceed fifty years and gives the local authorities and the street railway company the right to provide for the abandonment or modification of a charter route for that period. Such contract, when made, forms a part of the charter of the company with like force and effect as if the same 537 were part of the original charter. An ordinance providing for a gen- eral authority to a street railway company to relocate its line, without the formal consent of the municipality, as evidenced by a contract, is not in accordance with the provisions of this act. Passyunk Ave. B. M. Assn, vs. Pub. Service Com., 73 Super. Ct. 242, s. c. 8 P. C. R. 324. (919). It shall and may be lawful for any city, [borough or town- ship,] of the one part, and any street passenger railway company, surface, elevated, or underground, or motor power company leasing and operating the franchises and property of such company within the limits of such cities, [boroughs or townships,] of the other part, to enter into contracts with each other affecting, fixing, and regulat- ing the franchises, powers, duties, and liabilities of such companies, and the regulations and respective rights of the contracting parties. Such contracts may, inter alia, provide for payments by the com- panies to the local authorities, in lieu of the performance of certain duties or the payment of license fees or charges imposed in favor of such city, [borough or township,] by the charters of the respective companies or by any general law or ordinance, for the appointment by the local authorities of a certain number of persons to act as directors of such company, in conjunction with the directors elected by the stockholders of such companj^ and, further, may provide for the ultimate acquisition by the local authorities, upon terms mutually satisfactory, of the leaseholds, property and franchises of the con- tracting companies. Sec. 1, Act of April IS, 1907, P. L. 80. This act does not violate Art. IX, Sec. 7, of the state constitution. Erode vs. Philadelphia, 230 Pa. 434, affirming 18 D. R. 899. 538 ARTICLE LVI. INSPECTION OF MILK. (920). The councils of cities [and boroughs] in this Common- wealth be and they are hereby authorized and empowered to pro- vide for the inspection of milk, under such rules and regulations as will protect the people from adulteration and dilution of the same. Sec. 1, Act of April 20, 1869, P. L. 81. An ordinance providing for the inspection of milk sold within city limits is a valid exercise of police power, and expressly conferred by this act. Com. vs. Bracony, 40 Pa. C. C. 528; 22 D. R. 871; 17 Dauphin 25. For law relating to examination of glassware used in milk tests sec sections (993) to (997). 539 ARTICLE LVII. MANUFACTURE AND SALE OF ICE. (921). Each city of the third class is hereby authorized to manu- facture ice, and to sell the same to the inhabitants of such city at such rates as shall be fixed by ordinance, and to that end may erect, equip, and maintain such buildings and other structures, and may purchase or hire and maintain such vehicles, as may be deemed necessary for such purpose. Se;. 1, Act of June 25. 1913, P. L. 550. 540 ARTICLE LVIII. LICENSES AND LICENSE FEES. (a) Settlement of Disputes Concerning License Fees. (922). Whenever, hereafter, any dispute shall arise between any [township,] city, [borough, or other municipal corporation] of this State, having authority under the law to charge a license fee against any telegraph, telephone, light, power, street passenger railway, motor traction, gas or water company, occupying the highways of such municipality with its poles, wires, conduits, or cables, as to whether or not the amount of license fee, named in any ordinance of said municipal corporation, for the inspection and regulation of the said poles, wires, conduits, or cables, under its police power, is or is not reasonable, either party may apply, by petition, to the court of Common pleas of the county where said municipal corporation is situated, to determine the said dispute. Upon the filing of said peti- tion, setting forth the nature and character of the dispute, and the facts bearing upon the question thus raised, the said court shall issue a citation to the respondent, commanding, it to appear and answer the said petition at a time named, and to abide by and obey the order of the court. Said citation and a copy of said petition shall be served upon the respondent, not less than fifteen days before the time fixed for answering. To said petition the respondent shall make answer within the time fixed, or such extension thereof as the court shall allow, specifically answering the facts set forth in said petition, and averring such other or further facts as it shall deem necessary for the proper determination of the said dispute. At any time after the return day fixed in the said citation, the said court shall, upon applica- tion of either party, fix a date for the hearing of the issue raised by said petition and answer; and thereupon shall take the evidence and decide the said dispute in the way and manner provided by law for the hearing of cases in equity. Sec. 1, Act of April 17, 1905, P. L. 183, as amended by Sec. 1, Act of July 26, 1913, P. L. 1371. 541 The fact that electric street railway companies are not included within the provisions of this act does not make it unconstitutional as special legislation; such companies are by the constitution itseif placed in a separate class. West Chester vs. Postal Telegraph-Cable Co.,. 227, Pa. 384, affirming 38 Super. Ct. 603, affirming 18 D. R. 101. This act does not violate the provision of the constitution relating to the title of statues; nor is it in conflict with the constitutional guarantee of the right of trial by jury; nor does it delegate legislative power to the courts. Pittsburgh & Allegheny Telephone Co. vs. Braddock Borough, 43 Super. Ct. 456, affirming 56 P. L. J. 372. Where there is an agreement between the borough and a telephone company fixing the amount of the license tax the reasonableness of the license fee is not a question for determination by the court. Coch- ranton Borough vs. Cochranton Telephone Company 41 Super. Ct. 146. A public service corporation is not bound by the provisions of an invalid ordinance which fixes the license fees, even though the ordi- nance has been formally accepted by the company. Norwood Borough vs. Keystone Tel. Co. 64 Super. Ct. 261; affirming 13 Del. 181, 6 Le- high 262, 7 M. L. R. 182, 29 York 46. The procedure under this act applies to license fees imposed under the police powers of the municipality, and not to the license tax auth- orized by Clause 4, Sec. 3, of Art. S, of the Act of 1889, P. L. 277; Postal Telegraph-Cable Co. vs. Altoona, 58 Super. Ct. 24. Under this act the court of common pleas has no jurisdiction to de- termine a dispute as to the amount that should be allowed as rent for the use of a county bridge in stringing wires over it by a tele- phone company. Petition of Telephone Co. 63, P. L. J. 401. In proceedings under this act, the findings of fact of the court have the same conclusive force as the verdict of a jury. Nanticoke Borough vs. Bell Telephone Co., 47 Super. Ct. 184. Where a telephone company accepts a grant under an ordinance, providing that the said company "shall be governed by all the legal ordinances of a general nature now in force or that may hereafter be enacted;;'' it is not bound by an ordinance which fixes an unreason- able fee, and in such a case, upon proper petition under this act it is the dutyi of the court to hear the evidence and decide the question on its merits. Johnstown Telephone Co. vs. Femdale Borough, 47 Super. Ct. 461. See also Johnstown Telephone Company vs. Southport Bor- ough, 47 Super. Ct. 468, and Windber Telephone Co. vs. Scalp Level Borougii, 47 Super. Ct. 470. The proceedings upon petition under this act are de novo and it is the duty of the court to hear and determine the question at issue, hav- ing due regard for the weight of the evidence, and there is no burden upon the petitioner to produce evidence to prove that the ordinance is unreasonable. N. Y. & P. T. and T. Co. vs. Coudersport Boro., 49 Super. Ct. 46, rev. 38 Pa. C. C. 33, 20 D. R. 346, 2 M. L. R. 223. (923). Said court shall have power to allow any pleading to be amended, to niake all necessary, general or special rules or orders for the produciiion of evidence and to expedite the said hearing, and 542 may hear and determine the matter ex parte if the respondent fails to answer or appear at the time fixed for the hearing. Sec. 2, Act of April 17, 1905, P. L. 183. (924). The said court, in its decision of said dispute, shall de- termine the amount of annual license fees which should be paid to the said municipal corporation in order to properly compensate it for the necessary cost of the services performed, or to be performed, by it, for the inspection and regulation of the poles, wires, conduits, cables, pipe or mains of the said telegraph, telephone, light, power, street passenger railway, motor traction, gas, or water company; and the amount thus determined shall be the maximum sum which the said municipal corporation shall be authorized to charge as license fees against such petitioning corporation. Sec. 3, Act of April 17, 1905, P. L. 183, as amended by Act of July 26, 1913, P. L. 1371, and Sec. 2, Act of June 23, 1917, P. L. 643. A municipal tax on telegraph poles cannot be imposed for revenue purposes, but only to reimburse the municipality for reasonable costs of inspection and notifying the company of defects. Postal Telegraph Co. vs. City of Lancaster, 18 D. R. 874. The frequency and character of the inspections, and whether or not they are reasonable, are matters within the discretion of the mu- nicipal authorities in the first instance, and their action will be re- versed only for a clear abuse of discretion. Union Telephone Com- pany vs. Greenville Borough, 18 D. R. 932, s. c. 36 Pa. C. C. 197. The fees are limited to the cost of inspection and regulation of the poles and wires by the city's employees. Consolidated Tel. Companies of Penna. vs. Easton, 16 D. R. 887, s. c. 11 North. 1, 10 Del. Co. 333. Where a municipal ordinance, subject to which a telephone com- pany is authorized to occupy streets and highways, imposes an an- nual license tax of fifty cents per pole, the company is not concluded by such ordinance, but may petition the court under this act to deter- mine the proper amount to be paid, and if such application is made pending suit to recover tax, proceedings will be stayed until hearing has been had on petition. Such tax cannot be imposed for revenue purposes, but only to reimburse borough for costs of inspection and regulation. Marietta Borough vs. Telephone Co., 36 Lane. 269, 271, s. c. 11 M. L. R. 106; 29 D. R. 32. It is not necessary for a municipality to maintain a separate and dis- tinct organization for the purpose of inspecting and regulating the lines of a public service corporation in order to empower it to charge a license fee for those purposes. Monessen Boro. vs. Cent. D. & P. T. Co., 51 Super. Ct. 452, affirming 21 D. R. 904, 1 West. L. J. 240. A provision in an ordinance requiring an inspection of poles, and wires of a telephone company three times weekly in a borough as the basis on wlaich to fix a license fee is such an abuse of discretion as to call for the intervention of the courts. Myersdale Boro. vs. Somer- set Tel. Co. 68 Super. Ct. 385. The cost of inspection and supervision is the standard- by which the amount of license fee is determined. Bell Tel. Co. vs. Hazleton, 67 Super. Ct. 264, Dormont Boro. vs. West Liberty Street Railway Co., 543 64 Super. Ct. 562. Petition of Penna. Gas Co., 258 Pa. 234, Port Clin- ton vs. Postal Tel. Co., 4 Schuyl. L. R. 178, Petition of Postal Tel. Cable Co. 57 P. L. J. 49. A borough license tax against a telegraph company doing an inter- state business must be limited to an amount necessary to reimburse the borough' for inspection and regulation of the poles, wires, etc., and such other expenses as may be reasonably anticipated in connection therewith. Postal Tel. Cable Co. vs. HoUidaysburg Borough, 17 D. R. 298. Under the Act of Congress, of July 24, 1866, and March 1, 1884, a foreign telegraph company may occupy public streets and highways with its poles without first obtaining a license from the municipality. Punxsutawney Borough vs. Western Union Telegraph Company, 18 D. R. 308. (925). Either party shall have the right of appeal from the order of the court, to the Supreme or Superior Court, as in other cases. Sec. 4, Act of April 17, 1905, P. L. 183. (926). The amount of such annual license fees, as determined by the final order of the court, shall continue until altered by the court itself; but no application shall be made for that purpose oftener than once in every two years. Sec. S, Act of April 17, 1905, P. L. 183. The tax imposed under this act should be uniform upon the same class of objects and corporations, unless reasons for a distinction are shown. Gettysburg vs. United Telephone Co., 19 D. R. 875. If there be no inspection or supervision by the municipality there can be no license fee imposed. Del. & Atl. Telegraph and Telephone Company's Petition, 224 Pa. 55, affirming 37 Super. Ct. 151, afErming 10 Del. Co. 340. See also United Telephone eind Telegraph Company's Petition, 31 Pa. C. C. 481, s. c. 4 Just. L. R. 280, 10 Del. Co. 29; 7 Lack J. 85, 15 D. R. 193. (927). Nothing in this act contained shall be so construed as to alter or affect the duty of said telegraph, telephone, light, power, street passenger railway, motor traction, gas, or water company to properly erect, or construct and maintain, its poles, wires, conduits, cables, pipes or mains, or to relieve it from liability for negligence in regard thereto, either primarily to the person injured or second- arily to the municipal corporation, if judgment is recovered against it by the person injured by reason of such negligence. Sec. 6, Act of April 17, 1905, P. L. 183, as amended by Act of July 26, 1913, P. L. 1371, and Sec. 3, Act of June 23, 1917, P. L. 643. (b) Sale of Goods of Bankrupt or Assignee, Etc. (928). It shall be unlawful for any person, firm or corporation, without a license as provided in this act, to conduct any business the whole or greater part of which shall consist of the sale of goods 544 which shall be held forth or represented or advertised to be goods of, or obtained from, the estate of any bankrupt; or goods of, or ob- tained from, an assignee, or a person, firm or corporation about to go out of business ; or goods that have been damaged in any way : -Providing, That nothing in this act shall prohibit the sale of any such goods by any assignee, trustee, receiver, or other officer appointed by any court of this Commonwealth or of the United States, acting for the estate of any such bankrvipt, or other person, firm or corpora- tion, within the limits of the city, [borough or township] wherein the said person, firm, or corporation conducted said business, or had the goods immediately before the appointment of such assignee, triistee, receiver or other ofificer: And provided further. Nothing in this act shall prohibit the sale of any goods, damaged in any way, if the same are sold within the limits of the city, [borough, incor- porated town or township] wherein said owner conducted business, or had the said goods at the time the said goods become damaged. Sec. 1, Act of May 20, 1913, P. L. 227. (929) . A license to conduct business under this act shall be issued by the treasurer of the proper city, [borough or township] wherein the said business is conducted. The fees for cities, [incorporated towns, or boroughs] shall be fixed by ordinance of the proper city, [incorporated town or borough.] In cities, [incorporated towns, and boroughs] the license fee shall not be less than one hundred dollars ($100), nor more than two hundred dollars ($200), for each calendar month, or fraction thereof. [In townships the license fee shall be twenty-five dollars ($25) for each calendar month, or fraction there- of, and shall be for the use of the school fund of the township.] The license shall be renewed monthly during the time such person, firm, or corporation shall conduct such business. This license shall be in addition to all license fees and taxes imposed by this Commonwealth and the proper city, [borough, incorporated town, or township.] Sec. 2, Act of May 20, 1913, P. L. 227. (930). Any person, firm or corporation that shall violate any of the provisions of this act shall be guilty of a misdemeanor, and upon conviction thereof shall be sentenced to pay, for each day such busi- ness shall be conducted without a license, a fine of not more than two hundred dollars ($200). Sec. 3, Act of May 20, 1913, P. L. 227. (931). Hereafter every person, whether principal or agent, enter- ing into, beginning, or desiring to begin a transient, retail business in any city, [borough or township] of this Commonwealth, for the sale of any goods, wares or merchandise whatsoever, whether the same shall be represented or held forth to be bankrupt, assignees, or about 545 ~ 35 to quit business, or of goods damaged by fire, water or otherwise, shall take out a license for the same from the proper authorities of the said city, [borough or township]. The amount of such license in any city for borough] shall be fixed by ordinance, duly passed by the council of such city [or borough,] and shall not be less than twenty- five dollars ($25.00) nor exceed the sum of two hundred dollars ($25.00) per month or fractional part thereof, to be paid to the treasurer of said city [or borough; and the amount of such license in any township shall be the sum of twenty-five dollars ($25.00) per month or fractional part thereof, to be paid to the county treasurer, for the use of the school fund of said township.] Said license to be renewed monthly during the continuance of said sale, and upon failure of said person or persons so to secure such license, he, she or they shall be fined in a sum not less than one hundred dollars ($100.00) nor more than two hundred dollars ($200.00), to be collected as other fines are by law collectible, and in default of payment of said fines, to be imprisoned in the jail of said city or county for a period not exceeding thirty days. Sec. 1, Act of May 2, 1899, P. L. 159. This act seems to be supplied by Act of May 20, 1913, P. L. 227. This act is constitutional, and a borough ordinance coming properly within its terms will be sustained. Borough of Mahanoy City vs. Olkin, 31 Pa. C. C. 491, s. c. 1 Leh. Co. 373, 3 Schu. Co. 84, 5 Just. L. R. 146. This act repeals an ordinance of a borough regulating the licensing of retail merchants, passed under the Act of May 4, 1889, P. L. 86, as amended by the Act of May 10, 1893, P. L. 35. Washington Borough vs. Sherwood, 9 D. R. 766, s. c. 7 North. 336, 14 York 152, 48 P. L. J. (os) 228. See also Reading vs. Jones, 14 D. R. 66. This act is not in violation of the Interstate Commerce Clause of the Federal Constitution, when applied without discrimination to citi- zens and products of this and other states and goods within the state not sold in the original package. Block vs. City of Lancaster, 22 D. R. 1056, s. c. 30 Lancaster L. R. 275, 5 M. L. R. 9. (c) Foreign Dealers. (932). Hereafter the several cities [and boroughs] of this State shall have power to tax or license foreign dealers in merchandise, or their agents, having no permanent place of business in any such city [or borough,] but temporarily engaged in selling and disposing of merchandise, either by wholesale or by retail, to an amount not ex- ceeding the local taxes or licenses imposed on resident merchants engaged in a like business : Provided, That the provisions of this act shall not apply to sales by sample. '■ Sec 1, Act of May 24, 1887, P. L. IBS. 546 (933). Cities [and boroughs] shall have power to enforce the pro- visions of this act by providing proper penalties by ordinance duly enacted. Sec. 2, Act of May 24, 1887, P. L. 185. The act does not apply to citizens of this State. Lansford Borough vs. Erode, 7 Pa. C. C. 221. (d) Hawkers and Peddlers. (934). No person or persons shall be employed, engaged or con- cerned in the business or employment of hawking, peddling or selling produce or merchandise or either or any of them, within the limits of any city of the [second and] third classes within this Common- wealth, without having previously taken out a license; and if any person or persons shall go from house to house within the limits of such cities to sell or offer or expose for sale such articles or any of them, without having paid such sum or sums as may be fixed by ordinance of councils of such cities into the treasury thereof and received a license therefor, the person or persons so offending shall forfeit and pay, for each and every offense, the sum of fifty dollars, to be recovered summarily before the mayor of such city wherein the offense shall have been committed: Provided, however. That nothing herein contained shall be construed so as to prohibit farm- ers, gardeners or dairymen from selling the products of their own farms, gardens or dairies. Sec. 1, Act of June 10, 1881, P. L. 109. This act is not in conflict with Section 1, Art. 9 of the State Constitu- tion, which provides that all taxes shall be uniform upon the same class of subjects. Kneeland vs. Pittsburgh, 11 Atl. 657. (935). Councils of the cities of the [second and] third classes, after the approval of this act, shall be empowered to fix by ordinance the amount to be paid for a license and the time the same shall be granted for, and prescribe and regulate the manner of payment there- of into the treasury of such cities. Sec. 2, Act of June 10, 1881, P. L. 109. (936). This act shall not be in operation nor shall it go into effect in any city of the [second and] third classes, until councils shall accept the same by ordinance. Sec. 3, Act of June 10. 1881, P. L. 109. (e) Persons Exempt from License Fees. (937) . From and after the passage of this act, it shall be unlawful for any city, [county, or municipality] to impose or collect any license foe upon insurance companies or their agents, or insurance brokers, 547 authorized to transact business under an act approved the first day of June, nineteen hundred and eleven, entitled "An act to establish an Insurance Department ; authorizing the appointment of an Insurance Commissioner, and prescribing his powers and duties ; also providing for the licensing, examination, regulation, and dissolution of insur- ance and surety companies and associations, and for the licensing and regulation of insurance agents and insurance brokers ; also providing for the collection of fees, and prescribing penalties for the violation of any of the provisions of this act, and repealing all existing acts." Sec. 1, Act of May 3, 1915, P. L. 217. (938). From and after the passage of this act it shall be unlawful for any city, [borough or municipality,] to levy any license or mer- cantile tax upon persons taking orders for merchandise by sample, from dealers, for individauls or companies who pay a license or mer- cantile tax at their chief places of business. It shall also be unlaw- ful for any city [borough or municipality] to collect such license or mercantile tax hereafter levied by virtue of any ordinance of any city, [borough or municipality :] Provided, That nothing in this act shall authorize such person to sell by retail, to others than dealers or merchants. Sec. 1, Act of May 17, 1883, P. L. 31. Under this act, manufacturers of goods which are delivered to cus- tomers on previous orders, cannot be classed as peddlers, and are exempt from municipal license taxation as such. Mt. Joy vs. King & Co., 6 Lane. L. R. 345. (939). After the passage of this act, it shall be unlawful for any [borough or] city of this Commonwealth to levy or collect any money or tax, as a license fee, from any farmer who sells his own products in or about the streets of any borough or city of this Com- monwealth. Sec. 1, Act of April 22, 1903, P. L. 258. This act does not restrict the povyer of the municipality to regulate its public markets, provided such regulations are reasonable and for tbe public good. Blough vs. Johnstown, 24 D. R. 270. Farmers, producing the milk which they sell, under the provisions et this *ct, are exempt from payment of a license fee, notwithstanding a borough ordinanca which requires such payment, but they must comply with all other requirements of the ordinance or be subject to th« peaalty provided therein. Phoenixville Borough vs. Little, 24 D. R. 536, s. c. 7 M. L. R. 119. This act restrains a borough from enacting an ordinance prohibiting farmers from selling their products to regular customers at the houses 9i such customers from wagons, and requiring such vendors to sell only on csrtain days and requiring them to pay a licens* fee. Belle- Hate Borough vs. Kerstetter, 36 Pa. C. C. 78. 548 Under this act, by municipal ordinance a farmer may be obliged to take out a license authorizing him to sell his products on the streets of the city, but he is exempt from the payment of the license fee. Frantz vs. AUentown, 6 Leh. 173. This act does not restrain a borough from establishing a curbstons market. Mt Carmel vs. Vought, 6 Just. L. R. 64. (f ) Dances and Dance Halls. (940). This act shall apply to all cities of the [first, second and] third class, within this Commonwealth. Sec. 1, Act of May 16, 1919, P. L. 193. (941). The term "public dance" or "public ball," as used in this act, shall be taken to include any dance or ball conducted in connec- tion with instruction in dancing for hire, and any dance or ball to which admission may be had by the payment of a fee or by the pur- chase, possession or presentation of a ticket or token, or in connection with which a charge is made for caring for clothing or other prop- erty, and any dance or ball to which the public generally may gain admission with or without the payment of a fee. The term "dance hall" or "ball room," as used in this act shall be taken to include any room, place, or space, in which a public dance or public ball, as herein defined, shall be held, and any room, hall, or academy, in which classes in dancing are held and instruction in dancing is given for hire. Sec. 2, Act of May 16, 1919, P. L. 193. (942). From and after the first day of June, one thousand nine hundred and nineteen, no person, persons, society, club, or corpora- tion shall hold a public dance, or public ball within the limits of any city of the [first, second, or] third class, within this Commonwealth, without having first obtained a permit therefor from the mayor there- of : Provided, however. Such permit shall not be required for dances held and conducted by regularly established instructors in dancing in connection with such instruction. The fee for such permit, which shall be paid at the time of the issuing thereof, shall be one dollar for each public dance or ball. Sec. 3, Act of May 16, 1919, P. L. 193. (943). From and after the first day of June, one thousand nine hundred and nineteen, it shall be unlawful to hold or conduct any public dance or public ball, or to hold or conduct classes in dancing, or to give instructions in dancing for hire, in any hall, ball room, or academy, within the limits of any city of the [first, second and] third class, within this Commonwealth, unless the dance hall or ball room or academy in which the same may be held, shall have been duly licensed for such purpose. 549 Application for such license shall be made by the proprietor of such dance hall or ball room or academy to the mayor, who is hereby authorized to issue the same. The fee payable for each such license granted hereunder shall be as follows : In the case of dance halls maintained and conducted in connec- tion with regularly established instruction in dancing, and exclu- sively used in such connection, the annual license fee shall be ten dollars. In the case of all other dance halls and ball rooms, the annual license fee shall be fifteen dollars. Each license granted hereunder shall expire on the first day of June of each year. The fee payable for each license granted hereunder shall be for the whole or any portion of a calendar year, and all moneys received by way of license fees hereunder shall be paid into the general fund of the city. Every licensed public dance hall or ball room or academy shall post its license in a conspicuous place within the hall where the dance is held. Sec. 4, Act of May 16, 1919, P. L. 193. (944). It shall be the duty of the mayor to cause an investiga- tion of all applications for public dance hall or ball room licenses to determine whether or not the dance hall, ball room, or academy, sought to be licensed, complies with the rules, regulations, ordi- nances, and laws applicable thereto, and, in making such investiga- tion, he shall, when desired, have the assistance of any department of the government of the city. Sec. S, Act of May 16, 1919, P. L. 193. (945). No license for a public dance hall or ball room or academy shall be issued until it shall be ascertained that the place for which it is issued complies with and conforms to all laws, ordinances, health and fire regulations, applicable thereto, and is a safe and proper place for the purpose for which it shall be used, properly ventilated, and supplied with sufficient toilet conveniences. Sec. 6. Act of May 16, 1919, P. L. 193. (946). The license of any public dance hall or ball room or academy may be forfeited or revoked by the mayor for disorderly or immoral conduct on the premises, or upon proof that the dance hall, ball room or academy was frequented by disorderly or immoral per- sons, or for the violation of any of the rules, regulations, ordinances, and laws, governing or applying to public dance halls, ball rooms, or 550 academies, or public dances. If at any time the license of a public dance hall, ball room, or academy shall be forfeited or revoked, at least three months shall elapse before another license or permit shall be granted for dancing on the same premises. Sec. 7, Act of May 16, 1919, P. L. 193. (947). All public dance hall or ball rooms or academies shall be kept at all times in a clean, healthful, and sanitary condition, and all stairways and other passages and all rooms connected with public dance hall, ball room, or academy shall be kept open and well lighted. Sec. 8, Act of May 16, 1919, P. L. 193. (948). All public dance halls, ball roonis, and academies shall be subject to inspection by the police department of the city at all reasonable times and whenever they are open for dancing, instruction in dancing, or for any other purpose. Any police officer shall have the power to cause the place, hall or room where any piiblic dance or ball is given to be vacated when- ever any provision of any law or ordinance with regard to public dances and public balls is being violated, or whenever any indecent act shall be committed, or when any disorder of a gross, violent or vulgar character shall take place therein. Sec. 9, Act of May 16, 1919, P. L. 193, (949). It shall be unlawful, after nine o'clock post meridian, to permit any person to attend or take part in any public dance who has not reached the age of sixteen years. Sec. 10, Act of May 16, 1919, P. L. 193. (950). All public dances shall be discontinued, and all public dance halls shall be closed, on or before the hour of one o'clock ante meridian : Provided, however, That upon the application of a bona fide organization or society, and upon an investigation by the proper authority, the mayor may grant such organization or society a per- mit to continue a dance until two o'clock ante meridian. Sec. 11, Act of May 16, 1919, P. L. 193. (951). Any person, persons, society, club, or corporation who shall violate the provisions of this act shall be subject to a penalty of twenty-five ($25) dollars to be recovered with costs as debts of like amount are now by law recoverable. Sec. 12, Act of May 16, 1919, P. L. 193. 551 (g) Lodging Houses. (952). Every building in any city of this Commonwealth, not licensed as an hotel, inn or tavern, in which ten or more persons are lodged for a price, for a single night, of twenty-five cents or less for each person, shall be deemed a public lodging-house within the mean- ing of this act. Sec. 1, Act of July 2, 1895, P. L. 428. The act applies to all cities and is constitutional. Com. vs. Robert Muir, 180 Pa. 47, affirming 1 Super. Ct. 578. (953). "The mayor of any city in this Commonwealth may license persons to keep public lodging-houses in said city, upon payment of a fee of two dollars, and upon compliance with and subject to the following provisions and requirements. The said license shall expire on the thirty-first day of December, in the year in which it is issued. It shall specify particularly the place licensed, and it shall not protect the licensee in carrying on business in any other place. No such license shall be granted to a person by the mayor who is not of good moral character, and no license shall be issued until the building inspectors of said city and the fire marshal, or, if such offi- cials do not exist, such other official or person as the mayor shall name to examine into the safety of the building, license for which is applied for, shall certify that the building is safe for the load it will probably have to carry, is provided with all the fire-escapes required by law, and with such additional means of escape, in case of fire, as the construction of the building, its surroundings and the use to which it is to be put required to be adopted for the safety of the lodgers. No such hcense shall be granted until the mayor shall receive a certificate from the health authorities of said city setting forth that the plumbing in the building sought to be Hcensed is in accord- ance with the rules of said health authorities, or, if no such rules have been adopted, that the plumbing is in good condition, and further that the building is supplied with a sufficient number of water closets and urinals for the people intended to be accommodated, and with good and sufficient means of ventilation. Sec. 2, Act of July 2, 189S, P. L. 428. (954), In every public lodging-house a register shall be kept in which shall be entered the name and address of each and every lodger, together with the time of his arrival and departure, and such register shall, at all times, be open to the inspection of the police authorities of said city. Each and every failure to carry out and comply with the requirements of this section shall subject the lodging-house 552 keeper to a fine of five dollars to be collected at the suit of the city in which such hotise is licensed, before any magistrate, alderman or justice of the peace. Sec. 3, Act of July 2, 1895, P. L. 428. (955). The keeper of every public lodging-house shall, at all times when required by the fire marshal, the fire chief or by any officer connected with the building inspectors, or with the board of health, or the bureau of health or with the police department or bureau, or by the mayor or any one delegated by him, give such official, full and free access to said lodging-house or to any part thereof. Sec. 4, Act of July 2, 1895, P. L. 428. (956). The health authorities of said city may, from time to time, adopt rules and regulations for the government of public lodging- houses for the cleansing and disinfection of the same, or of the furni- ture, bedding and other personal property in and upon the same, as may in the judgment of said health authorities be necessary and proper for the public safety. Sec. 5, Act of July 2, 1895, P. L. 428. (957). Any keeper of a public lodging-house who shall fail to comply with any provision of this act, or with any requirement of the health authorities of said city, or shall so conduct his lodging-house as to render it a nuisance to the neighborhood in which it is situated, shall forfeit his license : Provided, however. That no license shall be forfeited by the mayor of the city in which it was issued, except after public hearing by him of which the lodging-house keeper shall have at least one week's notice. Sec. 6, Act of July 2, 1895, P. L. 428. (958). Whoever shall keep a public lodging-house in any city in this Commonwealth, or shall be concerned or in any way interested therein, without having the license herein required shall be guilty of a misdemeanor and on conviction shall be sentenced to pay a fine not exceeding one hundred dollars, and to undergo an imprisonment of not more than thirty days, or either, or both, at the discretion of the court. This act shall take effect the first day of July, Anno Domini one thousand eight hundred and ninety-five: Provided, however. That this act shall not apply to Wayfarers' Lodges operated under the provisions of an act, entitled "An act to authorize in cities of the first class, whenever Wayfarers' Lodges shall be established therein, the commitment of persons to the House of Correction as vagrants, who shall obtain shelter and food from such Lodges, and who shall re- 553 fuse to perform work in return therefor when physically able to work," approved the thirteenth day of June, Anno Domini one thou- sand eight hundred and eighty-three. Sec. 7, Act of July 2, 1895, P. L. 428. (h) Infant Boarding Houses. (959). It is hereby made unlawful for any person or persons in any city of the third class, other than institutions duly incorporated for the purpose, to engage in the business of receiving, boarding, or keeping infant children under the age of three years, for hire, reward, or otherwise, or to receive or take for such purpose more than two such children unaccompanied by an adult caretaker or caretakers, without legal commitment, unless he or she shall have first obtained a license so to do from the mayor of each respective city; or to en- gage or continue in such business, or receive, take, or retain more than two children, after the revocation of such license. Sec. 1, Act of June 9, 1911, P. L. 854. (960). The mayor of each of the said cities shall grant said license upon such terms, and under such rules, regulations, and penalties as shall be prescribed by general ordinance. Sec. 2, Act of June 9, 1911, P. L. 854. (i) Steam Boilers and Engines. (961). It shall be unlawful for any person or persons to have charge of or to operate a steam-boiler or steam-engine over ten- horsepower, in cities of the [second and] third class of this Com- monwealth, except locomotive boilers, used in transportation, and steam-engines, and steam-boilers carrying less than ^fteen pounds pressure per square inch, unless said person or persons are upwards of twenty-one years of age, and holds a license, as hereinafter pro- vided for; and it shall be unlawful for any owner or owners, user or users, of any steam-boiler or steam-engine over ten-horsepower, other than those excepted above, to operate or cause to be operated a steam-boiler or steam-engine without a duly licensed engineer. Sec. 1, Act of April 4, 1905, P. L. 102. Following the principles enunciated in the case of Chalmers vs. Philadelphia, 250 Pa. 251, it appears that this act is unconstitutional. (962). All persons desiring authority to perform the duties of an engineer shall apply to the boiler inspector of such cities, who shall examine the applicant as to his knowledge of steam machinery and his experience in operating the same, also the proofs he produces in support of his claim, and if, upon full consideration, the inspector is 554 satisfied that the applicant's character, habits of life, knowledge and experience in the duties of an engineer, are all such as to authorize the belief that he is a suitable and safe person to be entrusted with the powers and duties of such a station, he shall grant him a license, upon the payment of three (3) dollars, authorizing him to be em- ployed in such duties for the term of one year, and such licnse shall be annually renewed, without examination, upon the payment of one (1) dollar, provided it is presented for renewal within ten days after its expiration. Licenses so granted shall be graded into two classes : One of which shall entitle the licensee to have charge of or to operate stationary steam-boilers and steam-engines only ; the other of which, shall entitle the licensee to have charge of or to operate portable steam-boilers and steam-engines only; such licenses shall not be transferred from one grade to the other without a re-examination, said re-examination to be conducted without cost to the licensee. No person shall be eligible to examination for a license unless he furnishes proof that he has been employed about a steam-boiler or steam-engine for a period of not less than two years, prior to the date of application, which must be certified to by at least one employer and two licensed engineers. Sec. 2, Act of April 4, 1905, P. L. 102. (963). The inspector shall investigate all acts of incompetency or misconduct committed by any licensed engineer while acting under the authority of his license, and shall have power to summon before him any witnesses within his respective city, and compel their at- tendance by a similar process as used in the State courts to compel the attendance of witnesses ; and he may administer all necessary oaths to any witnesses thus summoned before him, and, after reason- able notice in writing, given to the alleged delinquent, of the time and place of such investigation, such witnesses shall be examined, under oath, touching the performance of his duties by any such licensed engineer, and if the inspector shall be satisfied that such licensed engineer is incompetent, or has been guilty of a misde- meanor, negligence, unskiliulness, or has endangered life, or wilfully violated any provision of this law, he shall immediately suspend or revoke his license, as the facts of the case may require. Sec. 3, Act of April 4, 1905, P. L. 102. (964). Every engineer who receives a license shall, before enter- ing upon his duties, make oath before the inspector, to be recorded with the application, that he will faithfully and honestly, according to his best skill and judgment, without concealment or reservation, perform all the duties required of him by law. Sec. 4, Act o(f April 4, 1905, P. L. 102. 555 (965). Every engineer who shall receive a license shall, when employed about a steam-plant, place his certificate of license, which shall be framed under glass, in some conspicuous place, about the engine or boiler, where it can be seen at all times; and any neg- lect to comply with this provision by any engineer shall be deemed a misdemeanor, and, upon conviction thereof, shall be subject to a fine of not exceeding one hundred dollars, or the revocation of his license, or both, in the discretion of the court. Sec. 5, Act of April 4, 1905, P. L. 102. (966). All engineers licensed under the provisions of this law shall assist the inspector in his examination of any boiler under his charge, and shall point out all defects and imperfections known to them in the boilers or machinery, and, in default thereof, the license of any such engineer or engineers, so neglecting or refraining, shall be revoked by the inspector. Sec. 6, Act of April 4, 1905, P. L. 102. (967). Every person who has been employed as a steam engineer, in the city in which he applies for a license, for a period of four years next prior to the passage of this act, and who files with his application a certificate of said fact, under oath, accompanied by a statement from his employer or employers verifying the same, shall be entitled to a license without further examination. Sec. 7, Act of April 4, 190S, P. L. 102. (968). It shall be the duty of an engineer, when he assumes charge of boilers and machinery, to forthwith thoroughly examine the same, and if he finds any part thereof in bad condition, caused by neglect or inattention on the part of his predecessor, he shall immediately report the facts to the inspector, who shall thereupon investigate the matter, and if the former engineer has been culpably derelict of duty he shall suspend or revoke his license. Sec. 8, Act of April 4, 1905, P. L. 102. (969). It shall be the duty of every licensed engineer, when he vacates a position as engineer, to notify the boiler inspector of such fact, and any failure to comply with this provision shall be punish- able by a suspension of the license for such period or periods as the boiler inspector may determine. Sec. 9, Act of April 4, 1905, P. L. 102. (970) . Every owner or lessee, or agent of the owner or lessee, of any steam-boiler or steam-engine over ten-horsepower, embraced within the provisions of this act, or any appliances- connected there- with and every person acting for such owner, lessee or agent, is hereby forbidden to delegate or transfer, in any manner whatever, 556 the responsibility or liability for the management or operation, or the maintenance in good condition and repair, of any such steam- boiler or steam-engine, or appliances connected therewith, to any person or persons other than a licensed engineer in charge thereof, as shown by compliance with section two of this act ; and any viola- tion of the provisions of this section shall be deemed to be a misde- meanor, to be punished by a fine not exceeding five hundred dollars ($500), or by imprisonment not exceeding three months, or both, at the discretion of the court : Provided, however. That on the pur- chase, or agreement to purchase, a new steam-boiler or steam-engine over ten-horsepower, or appliances connected therewith, the builder or builders thereof may contract or agree with the purchaser or pur- chasers to accept ?aid responsibility for a period not to exceed sixty days : provided that there is to be a licensed engineer in attendance thereon. Sec. 10, Act of April 4, 190S, P. L. 102. (971). All fees received under this act shall be paid into the treasury of the city wherein the license is granted. Sec. 11, Act of April 4, 1905, P. L. 102. (972). Any violation of the provisions of section one of this act shall be deemed a misdemeanor, to be punished by a fine not exceed- ing five hundred dollars, or by imprisonment not exceeding three months, or both, at the discretion of the court. Sec. 12, Act of April 4, 1905, P. L. 102. (973). Any officer charged with a duty under the provisions of this act, who shall fail to discharge the same or comply with the requirements thereof, shall, upon conviction, be punishable by a fine not exceeding five hundred dollars, or by imprisonment not ex- ceeding three months, or both, at the discretion of the court. Sec. 13, Act of April 4, 1905, P. L. 102. (974). Each city of the [second and] third classes shall, by ordi- nance, provide for carrying into effect the provisions of this act. Sec. 14, Act of April 4, 1905, P. L. 102, as amended by Sec. 1, Act of May 16, 1913, P. L. 216. (j) Motor Vehicles for Transportation Purposes. (975). Each city may regulate the transportation by motor- vehicles (not operated on tracks) of passengers or property, for pay, •within the limits of the city, or from points in the city to pomts beyond the limits of the city. In such regulation the city may impose reasonable license fees, make regulations for the operation of vehicles, 557 the rates to be charged for transportation, and may designate certain streets upon which such vehicles, if operated, must be operated. Sec. 1, Act of June 1, 1915, P. L. 685. This act does not repeal the Public Service Commission Act so far as it relates to the same subject. Scranton Ry. Co. vs. Fiorucci, 66 Super. Ct. 475. A city has the right to regulate in the interest of public safety the running of jitneys as well as all other traffic upon the public streets. Regulation is not to be carried to the point of prohibition. Jitney Bus Association vs. City of Wilkes-Barre, 256 Pa. 242, affirming 19 Dauphin 65. Courts have no power to declare a municipal regulation unreason- able unless it clearly appears upon the face of the ordinance or by competent testimony that the legislative power is exercised in a plainly and grossly oppressive manner and contrary to right. Phila- delphia Jitney Association vs. Blankenburg, 24 D. R. 1000, s. c. 7 M. L. R. 153. Municipal corporations may regulate vehicles within the corporate limits unless the regulations are clearly unreasonable. Jitneys may be required to give bond and be subject to other reasonable regulations. M. J. Bagley, et al., vs. City of Scranton, 16 Lack. J. 332, s. c. 29 York 172; 7 M. L. R. 166. (k) Motor Vehicles, Tractors, and Trailers Exempt From License Fee. (976). No city, [borough, incorporated town, township, or coun- ty,] shall require or collect any registration or license fee or tax for any motor vehicle or license from any operator thereof, except as to motor vehicles transporting passengers for pay or hire within the limits of any city or from points within such city to points outside of the city limits. Part of Section 9, Act of June 30, 1919, P. L. 678. (977). No city, [county, borough, incorporated town, or town- ship] shall adopt, enforce, or maintain any ordinance, rule, or regula- tion contrary to or inconsistent with the terms of this act ; or require of any person any license tax upon or registration fee for any trac- tion-engine, tractor, or trailer, or any permit or license to operate. Operators of traction-engines or tractors shall have the same rights upon the public streets and highv/ays as the drivers of any other vehicles, and no public road open to horse-drawn vehicles shall be closed to traction-engines or tractors. Sec. IS, Act of June 8, 1915, P. L. 926. 558 ARTICLE LIX. JUNK DEALERS. (978). From and after the passage of this act it shall be unlaw- ful for any keeper, owner, proprietor, or employe of any junk shop within any city within this Commonwealth or for any owner, pro- prietor, or employe of any second hand store within any such city, to barter, purchase, exchange, buy or accept from any person what- soever, except plumbers holding licenses as such from such city, or the owner or owners of buildings from which the material is taken, any pipe, faucet, boilers, spigots, coils, or any other like material whatever, or to barter, purchase, exchange, buy, receive, or accept any other second hand goods, wares, or merchandise of any kind or nature whatever, without providing and keeping books, and making therein at the time of such purchase, exchange, receiving or accept- ing, the entries hereinafter provided. Sec. 1, Act of April 11, 1899, P. L. 37. The act is sufficient in title, does not violate the rule against special legislation, and deals with a subject within the police powers of the State. Com. vs. Mintz, 19 Super. Ct. 283, afHrming 25 Pa. C. C. 96. (979). Every owner of such junk shops and second hand stores shall provide and constantly keep a book, in which shall be fairly written down in the English language, at the time of every purchase of any such material a description of all articles so purchased, the name and residence of the person from whom such purchase was made, and the day and hour of such purchase, and such books shall at all times be open to the inspection of any and every member of the police and detective forces of such city. Sec. 2, Act of April 11, 1899, P. L. 37. (980). Any person who shall violate, or neglect, fail, or refuse to comply with all of the provisions of this act or any of them, shall for every offense, upon conviction before any court of compe- tent jurisdiction, be subject to a fine of not less than twenty nor more than five hundred dollars, and in default of payment thereof be imprisoned for a period not exceeding ninety days. Sec. 3, Act of April 11, 1899, P. L. 37. 559 ARTICLE LX. INSPECTION OF ELEVATORS AND SCAF- FOLDING. (a) Elevators. (981). The several cities of this Commonwealth may provide for a bureau of elevator inspection, to be in charge of a chief in- spector, and containing such and so many other inspectors and employes as may, from tin*e to time, be needed for the proper man- agement of said bureau. The salary of the chief inspector and other inspectors and employes shall be such as may, from time to time, be fixed by ordinance. In cities containing a Department of Public Safety, the said bureau shall form a bureau of said department. In all other cities it shall be an independent bureau, subject to such control as may be determined by ordinance. Sec. 1, Act of May 28, 1907, P. L. 297. (982). Such cities may, from time to time, provide that every elevator or hoist which may be used in said city, the kind and char- acter of materials that may be used therein; or in any way of the appliances attached thereto or connected therewith, and the kind and character of safety devices required, shall be subject to the approval of the chief of said bureau; and may provide when and at what times inspection shall be made of said elevators or hoists, or of said appliances ; what permits shall be required for their erec- tion and use; when and what character of reports shall be made thereof and of said appliances, and of all accidents caused thereby or connected therewith ; what charge shall be made for said inspec- tion and permits, and where the inspection certificate shall be placed — in, upon, or near said elevator or hoists — what persons shall be permitted to operate them, and, generally, whatever in their judg- ment is. necessary or convenient to the public, in the use of said elevators or hoists, in order to insure the safety of the passengers or property being carried upon the same: Provided, That before any particular manufacture of elevator or hoist, or appliances con- 560 iiected therewith, shall be finally rejected as dangerous or unsafe, the manufacturer thereof shall, if he requests it, be given a public hearing before the chief inspector and an opportunity to prove the safety and non-dangerous character of his make of elevator or hoist or appliance. Sec. 2, Act of May 28, 1907, P. L. 297. (983). Such cities may provide the penalties which shall be charged against and recoverable from, those using elevators or hoists in violation of the provisions of the ordinances regarding the same, or the regulations the bureau adopted in accordance' with the pro- visions of such ordinances; and may wholly forbid the use of any elevator or hoist not complying with the requirements thereof, and may also apply to the proper court of commn pleas for an injunction whensoever, in the opinion of the said bureau, the exigency of the particular cause may require it. Sec. 3, Act of May 28, 1907, P. L. 297. (984). Any owner, lessee, agent, or other person, running or authorizing the running of any elevator or hoist in disregard of a notice from said bureau to cease so doing, shall be guilty of a misdemeanor, and, upon conviction thereof, shall, for that fact alone, be subject to a fine not exceeding five hundred dollars, or of im- prisonment not exceeding three months, either or both, at the dis- cretion of the court'; and the fact of such notice, duly proved, shall be conclusive evidence of negligence against such person, in any action to recover for injuries to person or property caused by the use of such elevator or hoist during the period within which its use was forbidden by said bureau; but nothing in this section con- tained shall be so construed as to limit the criminal liability of such persons, in case of injury or death caused by the use of any such elevator or hoist, cither with or without notice from said bureau of its dangerous or unsafe character or condition. Sec. 4, Act of May 28, 1907, P. L. 297. (b^ Scaffolding. (985). Whenever complaint is made to the mayor, director of public safety, superintendent of police, or other persons in charge of the police force, in any city of the [first, second or] third class in this State that the scaffolding, or sUngs, hangers, blocks, pulleys, stays, braces, ladders, irons, or ropes of any sling or stationary scaffolding, used in the construction, alteration, repairing, painting, cleaning, or pointing of buildings, within the Hmits of any city aforesaid, are unsafe, or liable to prove dangerous to life or limb of any person, such mayor, director of public safety, superintendent of 561 36 police, or other person in charge of the police force, shall immediately cause an inspection to be made of such scaffolding, or the slings, hangers, blocks, pulleys, stays, braces, ladders, irons, ropes or other parts connected therewith. If, after examination, such scaffolding or any of such parts is found to be dangerous to life or limb, the mayor, director of public safety, superintendent of police, or other persons in charge of the police force, shall prohibit the use thereof, and require the same to be altered and reconstructed so as to avoid such danger. The person directed to make such inspection shall attach such certificate to the scaffolding, or the slings, hangers, irons, ropes, or other parts thereof, examined by him, stating that he has made such examination, and that he has found it safe or unsafe, as the case may be. If he declare it unsafe, he shall at once, in writing, notify the person responsible for its erection of the fact, and warn them against the use thereof. Such notice shall be served personally upon the person responsible for the erecting, or by conspicuously affixing it to the scaffolding or part thereof to be declared unsafe. After such notice has been so served or affixed, the person respon- sible therefor shall immediately remove such scaffolding or part thereof, and alter or strengthen it in such manner as to render it safe, in the discretion of the person who has examined it, or of his supe- riors. Any person whose duty it is to examine or test any scaffold- ing or part thereof, as required by this act, shall have free access at all reasonable hours to any building or premises containing them, or where they may be used. Sec. 1, Act of April IS, 1907, P. L. 81. This act is special and local legislation and is unconstitutional. Jodoin vs. Ball, 43 Pa. C. C. 555; s. c. 25 D. R. 1050. (986). If any scaffolding or staging, swung or suspended from an overhead support or supports, shall be more than ten feet from the ground or floor, the same shall be deemed unsuitable and im- proper, and as not giving proper protection to the Hfe and limb of any person employed or engaged thereon, unless such scaffolding or staging shall, when the same is in use, have a safety-rail, rising at least thirty-four inches above the floor or main portion of such scaffolding or staging, and extending along the outside thereof the entire length of the outside thereof, properly attached thereto, and unless such scaffolding or staging shall be provided with braces so as to sustain the weight of a man's body leaning against it, and prevent the scaffolding or staging from swaying from the building or structure. ISec. 2, Act of April IS, 1907, P. L. 81. 562 (987). All swinging and stationary scaffolding shall be so con- structed as to bear four times the maximum weight to be dependent therefrom or placed thereon when in use, and not more than three men shall be allowed on any swinging scaffolding at one time. Sec. 3, Act of April IS, 1907, P. L. 81. From the fact that a plain duty is imposed by the act for the benefit of individuals and that the penalty for violations thereof is inadequate to compel compliance with its provisions, it is to be inferred that the penalty was intended to be cumulative to such remedy as the com- mon law gives when a duty owing to an individual is neglected. Ban- ner vs. Wells, 248 Pa. 105. (988). Any person who violates, or omits to comply with, any of the foregoing provisions of this act, or who suffers or permits the use of any article or scaffolding declared by a proper officer to be defective, or who destroys or defaces any notice posted in accordance with the provisions of this act, or who hinders or ob- structs any officer who may be detailed to enforce its provisions, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by a fine not exceeding five hundred dollars or by imprisonment not exceeding six months, or both, at the discretion of the court. Sec. 4, Act of April 15, 1907, P. L. 81. 563 ARTICLE LXI. INSPECTORS OF WEIGTHS AND MEASURES. (989). No State office shall be continued or created for the in- spection or measuring of any merchandise, manufacture or com- modity, but any county or municipality may appoint such officers when authorized by law. Constitution of Pennsylvania, Sec. 27, Art. III. (990). The mayors of cities of the [second and] third class, and the several boards of county commissioners, shall, respectively, appoint one or more competent persons as inspectors of weights and measures, in the respective [county or] city, whose salary shall not be less than one thousand dollars per ^nnum, to be paid out of the respective revenues of such [county or] city: [Provided, however. That the payment of a minimum salary shall not apply to counties having a population of fifteen thousand or less.] In addition to the salary provided by law, the said [county and] city inspectors shall be entitled to receive the actual expenses incurred by them personally in performing the duties of their office; such as transportation, hotel, livery, telephone, telegraph, and postal- charges, to be paid by the boards of county commissioners of their respective counties and by the proper officers of their respective cities, in such proportion as may be agreed upon by said boards of county commissioners and proper officers of cities, on bills item- ized and properly sworn to: Provided, however. That nothing in this act shall be construed to prevent [two or more counties, or] any county and city, from combining the whole or any part of their districts, as may be agreed upon by the board of county commis- sioners and mayors of cities, with one set of standards and one inspector, upon the written consent of the chief of the bureau of standards : [Provided further, In cities of the -first class the inspec- tors shall be appointed by the county commissioners of the county in which the said city may be located.] Any inspector appointed in pursuance of an agreement for such combination shall, subject to the terms of his appointment, have the same authority and duties 564 as if he had been appointed by each of the authorities who are parties to the agreement. The [county and] city inspectors of weights and measures, as appointed by the respective [counties and] cities, shall hold their office during good behavior; and shall not be removed, discharged, or reduced in pay or position except for inefficiency, incapacity, conduct unbecoming employes, or other just cause, and until the said officials shall have been furnished with written statements of the reason for such removal, discharge,- or reduction, and shall have been given reasonable time to make writ- ten answer thereto. Nor shall such removal, discharge, or reduction be made until the charge or charges shall have been examined into and found true in fact by the appointing power of such [county or] city, at a hearing, upon reasonable notice to the person charged, at which time he may be represented by counsel and offer testimony or witnesses in his own behalf. It shall be unlawful for any sealer or inspector of weights and measures, or any of his deputies, to perform clerical or other services for the [county or] city of their respective districts. Sec. 1, Act of May 11, 1911, P. L. 275, as amended by Acts of July 24, 1913, P. L. 960 and Sec. I, July 19, 1917, P. L. 1102. This act undertakes to compel the counties to create the office of inspector of weights and measures, though the constitution restricts the legislature to a mere authorization of- such appointment. That por- tion of the act which provides that the inspector cannot be removed ex- cept for causes specified in the act is unconstitutional. Com. ex rel., Lowell vs. Hoyt, 254 Pa. 45. The act is not unconstitutional because it is mandatory on ths county commissioners to appoint inspectors of weights and measures. The word "may" is frequently used, as well in the constitution as in the statutes of the State, in the sense of "shall." Com. vs. Greene County Commissioners, 27 D. R. 275; 65 P. L. J. 657. The amending Act of July 24, 1913, P. L. 960, is not defective in title. Neither is it a local law, •although the minimum salary provision does not apply in counties having a population of fifteen thousand or less. While a city and county may combine in the appointment of an in- spector, there is no requirement that such action be taken. Goodwin vs. Bradford City Council, 248 Pa. 453. (991). All [county and] city inspectors so appointed shall be sup- plied, at the expense of their respective [counties and] cities, with standard tests of weights and measures, in conformity with those established by the Government of the United States or the Bureau of Standards of the State, and the laws of this Commonwealth; and to ensure the accuracy of these tests they shall be compared with the standard tests to be purchased by the Secretary of In- ternal Affairs, and, when so compared and their correctness estab- lished, they shall be so .stamped or marked in such manner as may 565 be established by the rules and regulations hereinbefore referred to, to be put in force by said Secretary of Internal Affairs, and ap- proved by the Governor of the Commonwealth. Each inspector shall report in writing, at least once every month, to the chief of the State Bureau of Standards, upon blanks furnished by the chief. Such report shall contain: (1) The number of tests made since the last preceding report. (2) The number of weights, measures, and balances found by such tests to be correct. (3) The number of weights, measures, and balances found by such tests to be false. (4) The number of prosecutions instituted by such in- spector since the last preceding report, together with the name of the accused, the title of the court where the prosecution was insti- tuted, and the result of such prosecution. (5) Such other matters as the chief may, from time to time, prescribe. The inspectors shall take charge of and safely keep the proper standards. They shall be furnished by the chief cf the Bureau of Standards of this Commonwealth with full specifications of tol- erances and allowances to be used by them in the performance of their duties. Each inspector shall have power, within his respec- tive jurisdiction, to test all instruments and devices used in weighing or measuring anything sold or to be sold, including instruments and devices for weighing at coal mines, and seal the same if found to be correct. Such test shall include all appliances connected or used with such instruments or devices. For the purpose of making such test, each inspector, at any reasonable time and without formal warrant, may enter upon any premises; and may, on any public highway, stop any vendor or dealer, or the agent or servant of such vendor or dealer, or stop any vehicle used in delivering any com- modity which is weighed or measured as delivered. He may con- demn and mark as condemned, or may seize, any false or illegal instrument or device used, or intended to be used, in weighing or measuring. If he shall seize any such instrument^or device, he shall retain possession thereof until it shall have been used as evidence in any prosecution under the laws of this Commonwealth relating to weights and measures or to the sale of commodities. After the determination of such prosecution, the false or illegal instrument or device shall be destroyed, unless otherwise ordered by the proper court. Sec. 2, Act of May 11, 1911, P. L. 275, as amended by Acts of July 24, 1913, P. L. 960, and Sec. 1, July 11, 1917, P. L. 799. (992). Each pesron who shall, directly or indirectly, or by his servant or agent, or as the servant or agent of another, violate any of the provisions of this act, or give or offer to give any false weight or measure, or use any weighing device after it shall have been condemned and before it shall have been adjusted and sealed, or 566 obstruct or attempt to obstruct any inspector in the performance of his duty, shall be guilty of a misdemeanor. Upon conviction thereof such person shall, for the first offense, be sentenced to pay a fine not to exceed twenty-five dollars; for the second offense shall be sentenced to pay a fine not exceeding fifty dollars, and for each subsequent offense, such person shall be sentenced to pay a fine of not more than one hundred dollars or to undergo an imprison- ment in the proper county jail for not more than thirty days, or both, in the discretion of the court. In default of the payment of any fine, as aforesaid, the person convicted shall be sentenced to serve one day in jail of the proper county for each dollar of the fine and costs. It shall be unlawful for any inspector to use any tests or standards, or to attempt to use the same, in ascertaining the correctness or accuracy of weights and measures, until such comparisons are made and their accuracy established, and so stamped or marked; and any inspector violating the provisions of this act shall be guilty of a misdemeanor, and upon conviction therefor shall be fined not exceed- ing one thousand ($1,000) dollars, or undergo imprisonment for a period not exceeding one year, or both or either, at the discretion of the court. Sec. 3, Act of May 11, 1911, P. L. 275, as amended by Sec. 3, Act of July 24, 1913, P. L. 960. (993). Every person, firm, company, asyociation, corporation, or agent thereof, engaged in the business of buying milk or cream on the basis of, or in any manner with reference to, the amount or percentage of butterfat contained therein, as determined by the "Babcock test," shall use standard "Babcock" bottles, pipettes, and weights, as defined in section two of this act. All such Babcock test bottles, pipettes, and weights, so used, shall have been inspected for accuracy by the Bureau of Standards of Pennsylvania or its proper officer or agent, and shall be legibly and indelibly marked, by the said Bureau of Standards or its inspectors of weights and measures, with the letters "S. G. P." (Standard Glassware Pennsyl- vania), and no Babcock bottle, pipette, or weight shall be used for such test unless so examined and marked by the said inspectors ot weights and measures. It shall be unlawful for any person, persons, firm or company, association, corporation, or any agents, to use any other than standard test bottles, pipettes, and weights, which have been examined and marked as provided in this section, to determine the amount of fat in milk or cream bought on the butterfat basis as retermined by the Babcock test. Sec. 1, Act of May 23, 1919, P. L. 278. 567 (994). The term "Standard Babcock Testing Glassware" shall apply to glassware and weights complying with the following speci- fications : (a) Standard Milk Test Bottles. Graduation. The total per centum graduation shall be eight. The graduated portion of the neck shall have a length of not less than sixty-three and five-tenths millimeters (two and one-half inches). The graduation shall represent whole per centum, five- tenths per centum, and tenths per centum. The. tenths per centum graduation shall not be less than three millimeters in length; the five-tenths per centum graduations shall be one millimeter longer than the tenths per centum graduations, projecting one millimeter to the left; the whole per centum graduation shall exend at least one-half way around the neck to the right and projecting two milli- meters to the left of the tenths per centum graduations. Each per centum graduation shall be numbered, the number being placed on the left of the scale. The error at any point of the scale shall not exceed one-tenth per centum. Neck. The neck shall be cylindrical, and the cylindrical shape shall extend for at least nine millimeters below the lowest and above the highest graduation mark. The top of the neck shall be flared to a diameter of not less than ten millimeters. Bulb. The capacity of the bulb up to the junction of the neck shall not be less than forty-five cubic centimeters. The shape of the bulb may be either cylindrical, or conical with the smallest diameter at the bottom. If cylindrical, the outside diameter shall be between thirty-four and thirty-six millimeters; if conical, the outside diameter of the base shall be between thirty-on-e and thirty- three millimeters, and the maximum diameter between thirty-five and thirty-seven millimeters. The charge of the bottle shall be eighteen grams. The total height of the bottle shall be between one hundred and fifty and one hundred and sixty-five millimeters (five and seven- eights and six and one-half inches) . (b) Standard Cream Test Bottles. Three types of bottles shall be accepted as standard cream test bottles ; a fifty per centum, nine gram, short-neck bottle ; a fifty per centum, nine gram, long-neck bottle ; and a fifty per centum, eighteen gram, long-neck bottle. Fifty per centum, nine gram, short-neck bottles : Graduation. The total per centum graduation shall be fifty. The graduated portion of the neck shall have a length of not less than 568 sixty-three and five-tenths millimeters (two and one-half inches). The graduation shall represent five per centum, one per centum, and five-tenths per centum. The five per centum graduations shall extend at least half way around the neck to the right. The five- tenths per centum graduation shall be at least three millimeters in length, and the one per centum graduation shall have a length inter- mediate between the five per centum and the five-tenths per centum graduations. Each five per centum graduation shall be numbered, the number being placed on the left of the scale. The error at any point of the scale shall not exceed five-tenths per centum. Neck. The neck shall be cylindrical, and the cylindrical shape shall extend at least nine millimeters below the lowest, and nine millimeters above the highest graduation mark. The top of the neck shall be flared to a diameter of not less than ten millimeters. Bulb. The capacity of the bulb up to the junction of the neck shall not be less than forty-five cubic centimeters. The shape of the bulb may be either cylindrical, or conical with the smallest diameter at the bottom. If cylindrical, the outside diameter shall be between thirty-four and thirty-six millimeters; if conical, the outside diameter of the base shall be between thirty-one and thirty- three millimeters, and the maximum diameter between thirty-five and thirty-seven millimeters. The charge of the bottle shall be nine grams. All bottles shall bear on top of the neck, above the graduations, in plainly legible characters, a mark defining the weight of the charge to be used (nine grams). The total height of the bottle shall be between one hundred an^ fifty and one himdred and sixty-five millimeters (five and seven- eight and six and one-half inches), same as standard milk test bottles. Fifty per centum, nine gram, long-neck bottles : The same specifications in every detail as specified for the fifty per centum, nine gram, short-necked~bottle, shall apply for the long- neck bottle, with the exception, however, the total height of this bottle shall be between two hundred and ten and two hundred and thirty-five millimeters (eight and one-fourth and eight and seven- eights inches), and that the total length of the graduation shall not be less than one hundred and twenty millimeters. Fifty per centum, eighteen gram, long-neck bottles : The same specifications in every detail as specified for the fifty per centum, nine gram, long-neck bottles, except that the charge of the bottle shall be eighteen grams. All bottles shall bear, on the top of the neck, above the graduation, in plainly legible charac- ters, a mark defining the weight of the charge to be used (eighteen grams). 569 (c) The Standard Babcock Pipette Total length of pipette, not more than three hundred and thirty millirtieters (thirteen and one-fourth inches). Outside diameter of suction tube, six to eight millimeters. Length of suction tube, one hundred and thirty millimeters. Outside diameter of delivery tube, four and five-tenths to five and five-tenths millimeters. Length of delivery tube, one hundred to one hundred and tw^enty millimeters: Distance of graduation mark above bulb, thirty to sixty millimeters. Nozzle, straight. Delivery, seventeen and six-tenths cubic centi- meters of -water at twenty degrees Centigrade in five to eight sec- onds. (d) Standard Weights. The standard weights shall be of nine (9) grams and eighteen (18) grams denominations. Sec. 2, Act of May 23, 1919, P. L. 278. (995). Any person violating any of tha provisions of this act shall be guilty of a misdemeanor, and shall be subject to the same penalties as provided in the act to which this is a supplement. Sec. 3, Act of May 23, 1919, P. L. 278. (996). The Bureau of Standards of the State of Pennsylvania, through its inspectors of weights and measures, shall be charged with the enforcement of the provisions of this act. Sec. 4, Act of May 23, 1919, P. L. 278. (997). The provisions of this act shall take effect January first, one thousand nine hundred and twenty, with the exception that the provisions of section two, as respects the denominations of the glassware therein specified, shall not be held to require the abandon- ment of the use of glassware of other denominations in the use at the time of the passage of this act, provided that the said glassware of other than standard denominations shall have been certified, after examination by the proper officer of the Pennsylvania Bureau of Standards, to be correct to their graduations. Sec. 5, Act of May 23, 1919, P. L. 278. 570 ARTICLE LXII. MOTOR AND OTHER VEHICLES. (a) Motor Vehicles. (998). No person shall operate a motor vehicle on the ptiblic highways of the State recklessly or at a rate of speed greater than is reasonable and proper having regard to the width, traffic, and use of the highway, or so as to endanger property or the life or limb of any person. No person shall drive a motor vehicle at a rate of speed exceeding one (1) mile in two (2) minutes, and no commercial motor vehicle in class AA, as provided in section nine of this act, shall at any time exceed a rate of speed of twenty (20) miles per hour. In class A, a rate of speed of twenty (20) miles per hour. In class B, a rate of speed of eighteen (18) miles per hour. In class C, a rate of speed of fifteen (15) miles per hour. In class D, a rate of speed of fifteen (15) miles per hour. In class E, a rate of speed of twelve (12) miles per hour. In class F, a rate of speed of ten (10) miles per hour: Provided, That the authorities having charge of the highways may, in dangerous or built-up sections or at schoolhouses, churches, and public playgroiinds, place signs marked "fifteen (15) mile speed limit" in letters not less than five (5) inches in height. Said signs shall be placed on the right-hand side of the highway, facing the traffic to be controlled, clearly legible therefrom, and at these places the speed limit shall not exceed a rate of one (1) mile in four (4) minutes for a distance beyond 'said sign of not more than one-eighth (^) of a mile, and, if such highway is still in a dangerous or built-up section, a second sign similar to the above described may be erected, and the speed limit shall not exceed the rate of one (1) mile in four (4) minutes for not more than one-eighth (|) of a miles beyond said sign, and as many signs may be erected as may be necessary. At 571 the end of said dangerous or built-up sections, there shall be erected a sign reading "end of fifteen (15) mile speed limit," in letters not less than five (5) inches in height; said signs to be placed at right angles to the highway and facing the traffic to be controlled. Sec. 19, Act of June 30, 1919, P. L. 678. See note to Sec. (1008). In a prosecution under the Act of July 7, 1913, P. L. 672, it was held that an indictment framed in the words of the act is good. Com. vs. Rieker, 35 Lane. L. R. 74. Under the Act of 1913, which limits the rate of speed to one mile in two and one-half minutes, it was held that driving an automobile at the rate of fifty miles an hour on a public highway is a violation of the act. Everitt vs. Auchu,* 66 Super. Ct. 443. In a prosecution under the Act of 1913, the allegation in a com- plaint that the defendant ran "in a reckless manner," at a place where a "run slow" sign had not been erected by the local authorities, can be construed only that he ran at a speed in excess of twenty-four miles an hour, the speed limit prescribed in section 14 of the act. Com. vs. Vollmer, 25 D. R. 1070, s. c. 65 P. L. J. 12, 7 M. L. R. 212, 44 Pa. C. C. 462, 33 Lane. L. R. 125. The provision that no person shall operate a motor vehicle "reck- lessly or at a rate of speed greater than is reasonable and proper, having regard to the width, traffic and use of the highway, or so as to endanger property, or the life or limb of any person" is not void for uncertainty. Com. vs. Clime 26 D. R. 663, s. c. 34 Lane. L. R. 85; see Com. vs. Davidson, 21 D. R. 885. A borough ordinance provided: "No motor or other vehicle shall be driven at a greater speed than one mile in four minutes within this borough, and in congested districts a further reduction of this speed must be observed, consistent with safety to other vehicles and pedes- trians." Held this provision is inconsistent with the Act of July 7, 1913, P. L. 672, fixing the speed limit for motor vehicles and is void Richards vs. Borough of Freedom, 65 P. L. J. 600; s. c. 34 Lane. L. R. 395. Where the ownership of the car is established and where the testi- mony of three persons positively defines the offense, place and man- ner thereof, and this is met only by denial of defendant owner, un- supported by other evidence, that he committed the offense, he was properly found guilty. Com. vs. Becker, 34 Lane. L. R. 66, s. e. 19 Luz. L. R. Rep. 23. In construing Sec. 13 of the Act of July 7, 1913, P. L. 672 it was held that constables have no authority to erect danger signs in a bor- ough unless properly authorized by the burgess and/:ouncil. Com. vs. J. Clyde Myton, 16 Lack. J. 234; s. c. 6 Lehigh Co. L. J. 246; 18 Dauphin 393; 7 M. L. R. 27, 44 Pa. C. C. 329; 64 P L. J. 427. (999). Eveiy motor vehicle on the public highways shall, from one hour after sunset until one hour before sunrise, or whenever it is impossible to see clearly for a distance of two hundred (200) feet show at least two lights of approximately equal power on the front of such vehicle that shall be clearly visible for a distance of two hun- 572 dred (200) feet : Provided, That motor-cycles to which no side car is attached need display only one such light ; but no brilliant light shall be displayed on any motor vehicle standing on the left-hand side of the highway. Every motor vehicle equipped with and using electric light or lights of more than four (4) candlepower not equipped with a per- manent deflecting or diffusing device, upon any of the public high- ways of this State, shall be provided and equipped with some practical and efficient device or devices whereby the forward lights of such vehicle may be dimmed or lessened at the will of the operator to such an extent that such electric light or the reflection therefrom through said forward lights will not interfere with the sight of, nor tempor- arily blind the vision of, the driver of an approaching vehicle, and it shall be the duty of every operator of such motor vehicle equipped with and using electric lights upon the public highways of this State to effectually apply such dimmer to the forward lights of the vehicle operated by him or her, and cause such lights to be dimmed and les- sened so as not to interfere with the sight or temporarily blind the vision of the operator of any approaching vehicle. Every motor vehicle, including motor-cycles, shall also, whether standing or in motion, display one red light on the rear thereof, and, if a trailer be attached to such motor vehicle or another motor vehicle is being towed so as to obscure such red light, then a red light shall be displayed on the rear of such vehicle or such trailer. The registration plate on the rear of every motor vehicle, includ- ing motor-cycles and trailer, shall also be clearly illuminated during the same period. Whenever there is not sufficient light within the limits of the highway to clearly reveal persons, vehicles or substantial objects at a distance of two hundred (200) feet, the front lights shall, when the vehicle is in motion, clearly illuminate the road for a distance of at least two hundred (200) feet in front of such vehicle, and for five (5) feet to the right of such vehicle at a point twenty (20) feet in front of the lamps. No lights of more than thirty-two (32) candlepower shall be used on any motor vehicle, and all lights in excess of four (4) candle- power equipped with reflectors shall be so arranged, designed, dif- fused, or deflected that no dazzling rays of light shall, at a point seventy-five (75) feet or more ahead of the lamps, rise more than forty-two (42) inches above the level surface on which the vehicle stands. All additional or supplemental lights, including movable spot lights or searchlights, shall fully comply with these restrictions, and the rays of light from any searchlight or spot light shall at no time ex- tend to the left of the center of the highway. 573 \ No red light shall be displayed on the front of any motor vehicle. The State Highway Commissioner may, after proper road and lab- oratory tests, approve certain devices for controlling the front lights on motor vehicles so that they shall comply with the provisions of this section, upon the payment of such fee as he may deem neces- sary to cover the actual cost of such tests, not to exceed the sum of fifty ($50) dollars and may issue a certificate to the applicant, describing the device and certifying that such tests have been made, and that the device when properly applied complies with the requii-g- ments of this act. Sec. 20, Act of June 30, 1919, P. L. 678. (1000). Every motor vehicle shall be provided when in use with adequate brakes, capable of controlling such vehicle under all normal conditions, and with an adequate horn, bell or other signal device, and, where such vehicle is so constructed or covered as to prevent the operator thereof from having a sufficient view of the traffic fol- lowing, it shall be equipped with a mirror or other device that will enable the operator to see the road to the rear. Sec. 21, Act of June 30, 1919, P. L. 678. (1001). Every operator of a motor vehicle shall sound his horn, bell, or signal device, giving reasonable warning of his approach whenever necessary to insure the safety of other users of the high- way, and before passing any vehicle he may overtake or pedestrain using any part of the highway other than the sidewalk, also at curves and intersecting highways where the view of approaching vehicles for a distance of one hundred (100) feet is obscured, but the horn, bell or other signal device shall not be sounded unnecessarily. Sec. 22, Act of June 30, 1919, P. L. 678. (1002). No person, whether an employe of the owner or custodian of any motor vehicle or not, shall tamper with or make use of or operate any motor vehicle without the knowledge or consent of the owner or custodian thereof. No person shall operate a motor vehicle while under the influence of intoxicating liquor or any narcotic or habit producing drug, or permit any person v/ho may be under the influence of intoxicating liquor or narcotic drugs to operate any motor vehicle owned by him or in his custody or control. No person shall take part in any race or speed contest for a prize or wager or otherwise upon any public highway, or attempt to estab- lish or lower any speed record, upon any public highway. Any operator of a motor vehicle who shall have injured the per- son or property of any other user of the highway shall stop, and render such assistance as may be necessary, and shall, upon request, 574 give his name and address to the injured party or his proper repre- sentative. This provision shall apply to the owner of the motor vehicle if present, whether he was operating sucn motor vehicle or not. No person shall turn off any or all of the lights on a motor vehicle for the purpose of avoiding identification or arrest. Any person violating any of the provisions of this section shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be sentenced to pay a fine of not less than one hundred ($100) dollars nor more than five hundred ($500) dollars, or to undergo imprisonment not exceeding one (1) year or both at the discretion of the court, and the clerk of the court in which such conviction is had shall certify such conviction to the State Highway Commis- sioner, who shall suspend or revoke the license issued to such person, and no other license shall be issued to such person for a period of one (1) year following such conviction. Sec. 23, Act of June 30, 1919, P. L. 678. An indictment under section 16 of the Act of July 7, 1913, P. L. 672, which charged that the defendant did "unlawfully operate a motor vehicle upon the streets of the city of Lancaster, Pa., when intoxi- cated," was held to be good. This offense is specifically excepted from the provisions of section 21 of said act, providing for summary con- viction and where the magistrate's return shows that a complaint was properly made, a hearing had and the defendant gave bail to answer at court, (where the same would be presented to the Grand Jury in ordinary course) the proceedings are proper. Com. vs. Snider, 35 Lane. L. R. 75. In a case coming within the provisions of Sec. 16, of the Act of 1913 it was decided that the proper proceeding was by warrant and indictment. Com. vs. Dimegilo, 25 D. R. 830; s. c. 44 Pa. C. C. 34; 30 York, 15; 13 Del. Co. 437. (1003). No motor vehicle of any description shall be used or operated on the public highways unless the engine be muffled so that the explosions thereof shall not constitute a nuisance to the public; and no muffler cut-out shall be used on any public highway in any city, borough, or incorporated town. No motor vehicle shall be used upon any public highway with chains or other devices projecting more than one (1) inch upon the tires thereof. No commercial motor vehicle shall he used or operated on any public highway, the weight of which, including chassis, body and load, shall be in excess of seven thousand (7,000) pounds for a vehicle in class AA, eleven thousand (11,000) pounds for a vehicle in class A, fifteen thotisand (15,000) pounds for vehicles in class B, twenty thousand (20,000) pounds for vehicles in class C, twenty-four thousand (24,000) pounds for vehicles in class D, and twenty-six (26,000) thousand pounds for vehicles in classes E and F. 575 No motor vehicle or trailer shall be operated upon any public highway, having a gross weight of vehicle and load combined in ex- cess of twenty-six thousand (26,000) pounds, or in excess of nineteen thousand five hundred (19,500) pounds on any axle, or in excess of eight hundred (800) pounds on any one wheel for each nominal inch of width of tire on such wheel, or that exceeds an over-all length of vehicle of three hundred and thirty-six (336) inches, except hook- and-ladder trucks and water-towers, or an over-all width of vehicle or load of ninety (90) inches. All commercial vehicles or trailers, the chassis of which weighs more than two thousand (2,000) pounds registered under this statute, shall have painted, on a conspicuous place on the outside, and on both sides of said motor vehicle or trailer, the maximum weight limit of said motor vehicle or trailer, including chassis, body, and load, in figures three (3) inches high. Any person or persons carrying, on any motor vehicle or trailer, a - load in excess of the maximum carrying capacity as so fixed by the manufacturer, or any person or persons who remove or disfigure said signs, shall be guilty of a misdemeanor, and upon conviction thereof shall be subject to a fine of not less than twenty-five ($25) dollars or more than one hundred ($100) dollars, or imprisonment not ex- ceeding six (6) months, or both, at the discretion of the court, and the clerk of the court in which such conviction is held shall certify such conviction to the State Highway Commissioner of Pennsylvania, who may forthwith revoke the license of any licensee so convicted. Any person intending to use a truck or trailer for special hauling, gross weight of vehicle and load combined or of length in excess of the specifications hereinbefore mentioned, shall apply to the State Highway Commissioner for permission so to do upon a blank in such form as the State Highway Department shall prescribe. Such application shall set forth the location of the roads over which it is proposed to haul, the counties, townships, and municipalities in which such roads are located, the weight and length of truck, and its registration number, the number of trailers to be used, the maxi- mum capacity of such trailers, the weight of each when empty, the kind of materials to be hauled, and the date at which said hauling will be completed. The State Highway Commissioner, upon receipt of such applica- tion and a fee of five dollars ($5), shall immediately inform himself as to the condition of the highways mentioned in said application by referring the same to the local' authorities or otherwise, and, if satis- fied that the proposed use of such roadways will not result in damage thereto, may grant a permit for such number of days, and under such restrictions, as in his discretion may be necessary to prevent extraordinary damage to the roads by reason of such hauling.. 576 All the provisions of this section shall apply to the owner of the motor vehicle, or the person having control thereof, who causes or permits such motor vehicle to be operated or equipped contrary to such provisions, and any such person shall be deemed equally guilty with the operator of any violation thereof. Sec. 24, Act of June 30, 1919, P. L. 678. (1004). No operator of a motor vehicle who meets or overtakes a street passenger car that has stopped for the purpose of taking on or discharging passengers, shall pass said car on the side on which the passengers get on or off until the car has started and until any pas- sengers who may have alighted shall have reached the side of the highway. When meeting or when overtaken by any other vehicle legally traveling at a greater rate of speed, the operator of any motor vehicle shall turn promptly to the right of the center of the highway, allow- ing such other vehicle free passage to the left. The operator of any motor vehicle overtaking another vehicle shall pass such vehicle on the left, but shall not attempt to pass any such vehicle at intersecting highways, or at a sharp turn or curve or on approaching the crest of a hill where a full view of the highway ahead for a distance of two hundred (200) feet is ob- structed. Every operator of a motor vehicle shall, at all times, keep as close as possible to the right-hand side of the highway, allowing other vehicles free passage to the left, and no operator of a motor vehicle shall allow such vehicle to stand in the center of the highway or so as to obstruct or interfere with any other users thereof. At the intersection of public highways, the operator of a motor vehicle shall keep to the right of the intersection of the centers of such highways when turning to the right, and shall pass to the right of such intersection before turning to the left. When two vehicles approach the intersection of two public high- ways at the same time, the vehicle approaching from the right shall have the right of way. When signaled to do so by the rider or driver of any horse or other animal of draft or burden, the operator of a motor vehicle shall stop until any danger has been avoided. Sec. 25, Act of June 30, 1919, P. L. 678. (1005). The operator of any motor vehicle shall stop upon re- quest or signal of any constable, police officer, or member of the Stat^ Police Force, or designated officer of the State Highway De- partment, who shall be in uniform or shall exhibit his badge or other sign of authority, and shall, upon request exhibit his regis- 37 tration certificate or license, and shall write his name in the pres- ence of such officer if so required, for the purpose of establishing his identity. He shall also furnish to any legally constituted author- ity any information in his possession as to the identity of the opera- tor or owner of any motor vehicle. Sec. 26, Act of June 30, 1919, P. L. 678. A proceeding by indictment for the ot.nse of refusing to stop a motor car at the request of an officer of the State Department of Highways is coram non judice and void, there being no such ofTensi, at common law, and no statutory provision that v/ould support an indictment. By this section and section 33 of the act, this ofifense is defined and made punishable by fine to be collected by process of summary coiiviction, subject to the right of the accused, at his option, to be tried, by a judge of the court of quarter sessions, rather than by the nsagistrate, upon entering security, but this gives no general jurisdiction to the quarter sessions to be exercised by indictment. Com. vs. Sutton, 21 Lack. J. 100. (1006). Operators of motor vehicles shall have the same rights upon the public highways as the drivers of other vehicles, and no public highway open to other vehicles shall be closed to motor ve- hicles. Sec. 21, Act of June 30, 1919, P. L. 678. (1007). It being the purpose of this act to provide a system or code of law regulating the use and operation of motor vehicles throughout this Commonwealth, no city, borough, incorporated town, township, or county, shall hereafter adopt, maintain, or enforce any rule, regulation, or ordinance, regulating the speed, equipment, use, or operation of motor vehicles, other than city or borough ordinances regulating the stopping, and parking of vehicles, the use of certain streets as one-way streets, or regulating the kind and weight of traffic on certain streets and in public parks, or the establishment of safety zones : Provided, however, That no such special regulation shall be effective unless notice of the same is posted conspicuously by the municipality making the same at points where any highway affected thereby joins other highways, and no regulation shall be valid which excludes such vehicles from any State highway or from any main highway leading from one municipality to another: Pro- vided, That any city may regulate the transportation by motor ve- hicles of passengers for pay within the limits of such city or from points in the city to points beyond the city limits, and make and enforce regulations for the operation of such vehicles, not inconsistent with this act, and designate certain streets upon which such vehicles may be operated. Sec. 28, Act of June 30, 1919, P. L. 678. 578 (1008). All informations for offenses defined in this act, commit- ted by motor-vehicle owners or users, shall be brought under this act, and not under any local ordinance, rule, or regulation, and all such information shall be made before a mayor, burgess, magistrate, alder- man, or justice of the peace, within the city, borough, incorporated town, or township, wherein such offense is alleged to have occurred, except in the case of misdemeanors, when the information shall be made in the county wherein the oflfense is allged to have occurred. When the rate of speed of any motor vehicle is timed on a meas- ured stretch of any highway for the purpose of ascertaining whether or not the operator of such motor vehicle is violating the provisions of this act, such time shall be taken by not less than two (2) per- sons, one of whom shall have been stationed at each end of such measured stretch, and no convictions shall be had upon the unsup- ported evidence of one person, and no such measured stretch shall be less than one-eighth (i) of a mile in length. Sec. 29, Act of June 30, 1919, P. L. 678. In proceedings against violators of the speed provisions of the act, the testimony of two witnesses is not required, except in cases in which the motor vehicle was timed on a measured stretch of highway. Motor Vehicles, 1920 Dauphin, 70, s. c. 68 P. L. J. 194, 6 Dept. Rep. 525. (1009). In any proceeding for the violation of the provisions of this act, or for damages growing out of the use or operation of a motor vehicle, the registration number displayed on such motor ve- hicle shall be prima facie evidence that the owner of such vehicle was then operating the same: Provided, however, That if at any hearing or proceeding the owner shall testify under oath or affirma- tion that he was not operating the said motor vehicle at the time of the alleged violation of this act, and shall submit himself to an exam- ination as to who, at that time, was operating such motor vehicle, and reveal the name of the person if known to him, or, if the infor- mation is made in a county other than that of his own residence, shall forward to the mayor, burgess, magistrate, alderman, or justice of the peace, an affidavit setting forth these facts, then the prima facie evidence arising from the registration number shall be over- come and removed, and the burden of pi oof shifted. Sec. 30, Act of June 30, 1919, P. L. 678. The registered number on an automobile is only presumptive evi- dence that the car belongs to the party to whom the license was is- sued and this presumption may be rebutted by positive evidence that the car has been sold to another. Rafalovitch vs. Klinger Company, 66 P. L. J. 277. Where, in proof of violation of section 14 of the Act of 1913, prima- facie evidence of motor car ownership was established by defendant owner admitting that the car bearing a given registered number be- 579 longed to him, and while he, unsupported by other testimony, denied that he committed the offense, but hei did not allege that any one other than himself ever operated the car or was operating it at the time of the alleged violation of the act, he was properly found guilty. Com. vs. Becker, 19 Luz. L. R. Rep. 23; s. c. 34 Lane. L. R. 66. (1010). Constables and police officers of the State, and of the cities, boroughs, incorporated towns, townships, and counties of this Commonwealth, may arrest, upon view, any person or persons violat- ing any of the provisions of this act, and such officer shall forthwith make and file with the mayor, burgess, magistrate, alderman, or justice of the peace, before whom the person arrested is taken, an affidavit setting forth in detail the offense complained of, and at once furnish a copy thereof to the person arrested. If the defendant is unable to give bail, as is provided for in section thirty-three of this act, for a hearing or for his appearance at court, the mayor, burgess, magistrate, alderman, or justice of the peace, shall accept as bail any article of sufficient value, or, provided the defendant is the owner thereof, shall hold in custody the motor vehicle found in his possession, and the court, mayor, burgess, mag- istrate, alderman, or justice of the peace, after the trial of the de- fendant, or when bail according to law has been given, shall make such order as to the disposition of such motor vehicle or other articles accepted as bail as shall seem just and proper. Sec. 31, Act of June 30, 1919, P. L. 678. In a prosecution under section 19 of the Act of July 7, 1913, P. L. 672, it was decided that, where) an affidavit or information was not served with the warrant served by the constable or other officer hav- ing authority to serve warrants, but the defandant appeared in answer to the warrant, made no objection to the service and submitted to a hearing, an appeal will not be granted on account of defective service. Com. vs. Becker, 34 Lane. L. R. 66; s. c. 19 Luz. L. R. Rep. 23. (1011). Any person, except as provided in sections three, eleven, fourteen, sixteen, twenty-three, twenty-four, thirty-four, and thirty- five, convicted of violating any of the provisions of this act, shall be subject to a fine or penalty of not less than ten ($10) dollars nor more than twenty-five ($25) dollars, to be collected by a sum- mary conviction before any mayor, burgess, magistrate, alderman, or justice of the peace, as like fines and penalties are now by law collected, or in case of nonpayment of such fine, to undergo an im prisonment in the county jail for a period not exceeding five (5) days: Provided, That any person so convicted shall have the right of appeal as in other cases of summary conviction : And further pro- vided. That any person accused of violating any of the provisions of this act may waive the summary hearing, and give bond in a sum equal to double the amount of the maximum fine that might be im- '580 posed for appearance for trial before a judge of the court of quarter sessions, or in the county court or in the municipal court in counties wherein svich courts exist, and thereupon the burgess, magistrate, alderman, or justice of the peace shall, within fifteen (IS) days re- turn the complaint or information to the said court and if any person so accused shall be convicted in such court of the offense charged, he shall be subject to a fine of not less than ten ($10) dollars, nor more than twenty-five ($25) dollars, or, in case of nonpayment of such fine, to undergo imprisonment in the county jail for a period not exceeding five (5) days. Any person previously convicted of violating any of the pro- Aisions of this act shall, upon conviction of any second or sub- sequent violation within a period of six (6) months after such con- viction, be subject to pay a fine of not less than twenty-five ($25) dollars nor more than fifty ($50) dollars, or, in case of nonpayment of such fine, to undergo imprisonment in the county jail for a period not exceeding ten (10) days: Provided, That any person so accused of any second or subsequent violation of the provisions of this act shall have the same right of appeal, or may waive summary hear- ing in the same manner and upon the same conditions, as is provided for in cases of first violation. Sec. 33, Act of June 30, 1919,' P. L. 6/3. See note to Sec. (1005). In construing section 21 of the Act of July 7, 1913, P. L. 672, which in general import is similar to this section, it was held that the act is not unconstitutional. Two methods of hearing are provided: First, waiving the summary hearing and demanding a trial by jury; or second, trial before the magistrate, and after conviction, appeal, to be heard as cases of summary conviction are usually heard. In the former preceding the case is to be tried by jury and in the latter be- fore the court. Where defendant gave bail for a hearing but the record shows no hearing but a recognizance for appearance at court, it is to be presumed that the defendant chose the iirst method. An improper recognizance can be perfected. Com. vs. Ricker, 35 Lane. L. R. 74. In Com. vs. Davis, 44 Pa. C. C. 562, s. c. 64 P. L. J. 692, 33 Lane. L. R. 388; 14 Del. Co. 171 it was held that where a person waives a hearing before a justice of the peace and secures a trial by jury, the proceeding before the court and jury is a summary conviction, of which a grand jury has no jurisdiction. But see contra. Com. vs. Clime 26 D. R. 663, s. c. 34 Lane. L. R. 85, Com. vs. Rieker, 35 Lane. L. R. 74. Proceedings under the Act of 1913 are either by warrant in cases of misdemeanor, or by suit for a penalty as provided for in section 21 of the act. Com. vs. Dimegilo, 25 D. R. 830; s. c. 13 Del. Co. 437, 30 York 15, 44 Pa. C. C. 34. Under the Act of 1913,, a judgment of a justice of the peace against a defendant was set ^side where the record of the justice failed to set 581 forth in substance the evidence taken on behalf of the Commonwealth and of the defendant. Com. vs. Davies, 43 Pa. C. C. 536, s. c. 6 Lehigh L. J, 338; Com. vs. Shive, 28 York 113. Under the Act of 1913, it was decided that one who operates an automobile upon a public highway without displaying a license number tag on the car, may be convicted of a violation of the act although the owner of the car was riding with him at the time and has also been fined by a justice of the peace for the same offense. It is no de- fense that defendant was a minor, and committed the offense under the direction of his father, who was the owner of the car and rode with him at the time. Com. vs. Buzard, 27 D. R. 21; s. c. 45 Pa. C. C. 396. (1012). All fines and penalties collected under the ' provisions of this act for violations of the same and all bail forfeited shall be paid to the State Treasurer, to be placed in a deposit-fund to be available for the use of the State Highway Department, except those collected for violations of the provisions as to speed or weight, which shall be paid to the treasurer of the city, borough, town, or township, wherein the violation occurred, to be used for the con- struction, repair, and maintenance of the highways thereof, and sworn statements of all fines and penalties so collected shall also be made, upon blanks to be furnished by the State Highway Department, by the burgess, magistrate, justice of the peace, or other officer im- posing or receiving the same, to the State Highway Commissioner. Said reports shall be made quarterly, not later than the tenth (10th) day of the months of January, April, July, and October of each year. Any burgess, magistrate, justice of the peace, or other officer, who shall fail to make such quarterly reports and returns, or either of them, shall be deemed guilty of a misdemeanor in office, and, upon conviction thereof, shall be subject to a fine of not less than one hundred ($100) dollars nor more than five hundred ($500) dollars, or imprisonment in the county jail for a period of sixty (60) days, or both, at the discretion of the court. Sec. 35, Act of June 30, 1919, P. L. 678. This section is substantially a re-enactment of Sec. 22 of the Act of July 7, 1913, P. L. 672, with the addition of forfeited bail. In con- struing the Act of 1913 it was decided that the return of fines and penalties imposed must be sworn to before some officer other than the person making the return. In re Administration of Oaths, Opinion by Wm. H. Keller, Dep. Atty. Gen. 3 Dep. Rep. 463. (b) Regulations for Vehicles Other than Motor Vehicles. (1013). On and after the first day of July, one thousand nine hundred and nineteen, from one hour after sunset until one hour before sunrise, or whenever it is impossible to distinguish substantial objects at a distance of two h'undred feet, there shall be displayed upon every vehicle excepting agricultural machinery and such as are 582 propelled by hand or are loaded with hay or straw in bulk, while standing or in motion upon any public highway in the State of Pennsylvania, at least one white light, which shall be clearly visible for a distance of at least two hundred (200) feet from both the front and the rear of such vehicle. Sec. 1, Act of June 12, 1919, P. L. 451. (1014). No vehicle meeting or overtaking a street passenger car that has stopped for the purpose of taking on or discharging pas- sengers, shall pass such car, on the side on which passengers get on or off, until the car has started, and until any passenger who may have alighted shall have reached the side of the highway. Sec. 2, Act of June 12, 1919, P. L. 4S1. (1015). Slow moving and heavily-ladened vehicles, 'shall, at all times, keep as near to the right-hand boundary of the highway or to the right-hand curb as possible, and the driver of any vehicle meeting another vehicle or overtaken by another vehicle traveling at a greater speed, shall turn promptly to the right of the center of the highway, allowing such other vehicle free passage t.o the left ; and no vehicle shall be permitted to stand in the center ol any high- way or so as to obstruct or interfere with traffic thereon. Sec. 3, Act of June 12, 1919, P. L. 451. (1016). The term "public highway," as used in this act, shall include all roads, streets, avenues, alleys, and public places and all public bridges and the approaches thereto. Sec. 4, Act of June 12, 1919, P. L. 451. (1017). Constables and police officers of the cities, boroughs, incorporated towns, townships, and counties in Pennsylvania, and members of the State Police Force may arrest, upon view and without warrant, any person violating ony of the provisions of this act. Sec. 5, Act of June 12, 1919, P. L. 451. (1018). Any person violating any of the provisions of this act shall be subject to a fine of not less than two ($2.00) dollars nor more than five ($5.00) dollars for each offense, to be collected by summary conviction before any burgess, alderman, magistrate, or justice of the peace, which fine shall be paid into the treasury of the city, borough, incorporated town, or township, wherein the offense has occurred. In the case of nonpayment of such fine such person shall undergo an imprisonment in the county prison for a period not exceeding five (5) days. Sec. 6, Act of June 12, 1919, P. L. 451. 583 (1019). All acts and parts of acts inconsistent herewith are here- by repealed; but nothing in this act shall affect or limit the special requirements for the display of lights or the regulations and re- strictions placed upon motor vehicles. Sec. 7, Act of June 12, 1919, P. L. 451. 584 ARTICLE LXIII. INVESTIGATION OF FIRES. (1020). Whenever it shall be made to appear by the affidavit of a credible witness that any building or other property has been set on fire maliciously, or burned from an unknown cause, it shall be lawful for the mayor or any alderman of any city, [or justice of the peace of any borough or township] wherein such fire may have occurred, upon request of any citizen of such city, [borough or township,] as the case may be, or. of any president, secretary or agent of any insurance company having a policy written and in force upon the premises burned or attempted to be burned, to pro- ceed, with all reasonable dispatch, to investigate and ascertain, as far as practicable, the facts relating to the cause and origin of such fire; and for this purpose the said mayor, alderman or justice of the peace shall have all the powers of a coroner for summoning a jury and witnesses and conducting the investigation. Sec. 1, Act of April 17, 1869, P. L. 74. An indictment for arson was based upon the report of a jury of three men under this act. The jurors and the justice were members of an insurance company in which the building destroyed was insured. The defendant was required to testify at the investigation. Held that there was no ground for quashing the indictment. The act is not unconstitutional as special or local legislation, nor as being defective in title. Com. vs. Williams, 54 Super. Ct. 545. (1021). The number of jurors shall not be less than three, and shall be selected from the vicinity where the fire occurred, who, after being sworn or affirmed to perform their duties faithfully, and inspecting the place where the fire occurred, and hearing such testimony as may be produced before them in regard to the prem- ises, shall make out and deliver to the officers having cognizance of £he case, a report, under their hands and seals, in which they shall find and certify, as far as ascertained, how and in what manner 585 such fire occurred, and who was guilty of firing the same, either as principal or accessory, or if not wilfully set on fire, then to certify how the same originated, as far as can be ascertained. Sec. 2, Act of April 17, 1869, P. L. 74. (1022). If the jury shall find that any person or persons wil- fully set fire to the premises in question, or that' reasonable cause exists for believing them to have been accsssory thereto, then the mayor or other officer having cognizance of the case as aforesaid, shall bind over the witnesses to appear at the next court of quarter sessions of the proper county, to give testimony in the case; and if the person charged or implicated by the jury as aforesaid be not in custody, the mayor or other officer holding the inquest shall issue his warrant for the arrest of the accused, and being brought before such magistrate shall be committed or admitted to bail, to appear and answer, at the next court of quarter sessions of the proper county, such bill or bills of indictment as may then and there be preferred against him, her or them, in the same manner as persons are held by such magistrates to answer, upon information made before them for like offences. Sec. 3, Act of April 17, 1869, P. L. 74. (1023). The officer issuing such process shall have the same power to examine the defendant as in other cases; the testimony of all witnesses examined before the jury under this act shall be reduced to writing, by the officer holding the inquest, and shall be returned by him, together with the inquisition of the jury and the recognizances and examinations taken by such officer, to the next court of quarter sessions of the proper county. Sec. 4, Act of April 17, 1869, P. L. 74. (1024). The compensation of the mayor or other magistrate hold- ing such inquest, and of the jurors and witnesses in attendance, shall be the same as is now allowed by law in cases of coroner's inquests super visum corporis, and shall be paid by the person or persons at whose instance the proceedings are instituted; in all cases where the inquest shall not find sufficient cause to bind over any person on a charge of causing or being accessory to such burn- ing, but if such cause shall be certified by the said inquest, then the costs of the proceedings shall abide the issue in court in the same manner as costs before committing magistrates on similar charges instituted by information now do, and shall be paid accord- ingly: Provided, That this act shall not apply to the city of Phila- delphia or to the county of Allegheny. Sec. 5, Act of April 17, 1869, P. L. 74. 586 ARTICLE LXIV. APPROPRIATIONS TO, AND ACQUISITION AND DEDICATION OF LAND FOR USE OF NATIONAL GUARD. (1025). Municipalities of this Commonwealth shall have and are hereby given the right of eminent domain for the purpose of appro- priating to themselves, for the use of 'the National Guard of Penn- sylvania, such public lands, easements and public property as may be in their possession or control and used or held by them for any other purpose. Such right however shall not be exercised as to any street or highway or wharf, but all other public easements and property may be appropriated and used for the purposes herein provided, any limitation of the use thereof by the municipality, either by donation, dedication, appropriation, statute, or otherwise, to the contrary notwithstanding. Sec. 1. Act of June 26, 1895, P. L. 332. (1026). Any [county,] city, [town, borough, or other municipal division] of this Commonwealth shall be, and is hereby, authorized znd empowered either independently or in connection with any ofher county, city, town, borough, or municipal division of this. Conimon- wealth, to provide and appropriate moneys, or convey land to the Commonwealth of Pennsylvania, to assist the Armory Board of the State of Pennsylvania in the erection, wherever deemed most ad- vantageous by the said Armory Board of the State of Pennsylvania, of armories for the use of the National Guard of Pennsylvania; and to furnish water, light, or fuel, either' or all, free of cost to the Commonwealth of Pennsylvania, for use in any armory of the Na- tional Guard ; and to do all things necessary to accomplish the pur- poses of this act. Sec. 1, Act of March IS, 1909, P. L. 33. (1027). The councils of the cities of the [first, second, and] third class of the Commonwealth be, and they are hereby, respectively, authorized to appropriate, from any moneys in their respective treas- 587 uries not otherwise appropriated, annually, a sum not exceeding five hundred dollars for the support and maintenance of each company of the National Guard, the sum of one thousand dollars, annually, to each battery of artillery, and two hundred and fifty dollars, an- nually, to each regimental sanitary detachment, using and occupying an armory, building, rooms, or quarters within the limits of said city. Sec. 1, Act of May 24, 1887, P. L. 182, as amended by Act of May 21, - 1901, P. L. 273, and Sec. 1, Act of May 10, 1917, P. L. 161. . (1028). Any moneys so appropriated shall be paid by warrant of the controller of said cities, drawn to the order of the command- ing officer of such company, only when it shall be certified to the said city controller, by the Adjutant General of the State, that the said company or companies have satisfactorily passed the annual inspection provided by law. Sec. 2, Act of May 24, 1887, P. L. 182. (1029). That the moneys," so appropriated, shall be used and expended solely and exclusively for the support and maintenance, discipline and training of the said company; and the commanding officer shall account, by proper vouchers to said city controller each year, for the expenditure of the money so appropriated; and no appropi-iation shall be made for any subsequent year until the expenditure of the previous year be duly and satisfactorily accounted for. Sec. 3, Act of May 24, 1887, P. L. 182. (1030). Any commanding officer who shall embezzle, misappro- priate or use any of said moneys hereby authorized to be appro- priated, otherwise than is herein provided for, shall, upon conviction thereof, be sentenced to undergo an imprisonment not exceeding one year and pay a fine not exceeding five hundred dollars. Sec. 4, Act of May 24, 1887, P. L. 182. 588 ARTICLE LXV. APPROPRIATIONS TO HISTORICAL SOCIETIES, FOR MEMORIAL SERVICES, AND FOR MUSIC. (1031). It shall be lawfiil for the councils or council of cities of the [first, second, and] third classes within this Commonwealth to make an annual appropriation from the funds of such city or cities for the support and maintenance of the principal historical society located therein : Provided, That, as a prerequisite to the receiving of an appropriation, any such society shall be incorporated under the laws of the State of Pennsylvania, shall own its own build- ing and keep it open to the public, shall have a membership of at least two hundred persons who pay annual dues of at least two dollars, shall hold, annually, at least six regular meetings that shall be open to the public, and shall at all times maintain facilities for the free storage, deposit, and inspection of ofificial documents and records of such city or cities, and other proper public or historical archives and records. Sec. 1, Act of July 12, 1919, P. L. 923. (1032). After the passage of this act the cities, [boroughs, and townships] of this Commonwealth are hereby authorized to appro- priate moneys for the expenses of Memorial Day services, and to pay the same out of such moneys in their respective treasuries, as are not otherwise appropriated, in the manner appropriations are now made and paid. Sec. 1, Act of June 25, 1895, P. L. 298. (1033). From and after the passage of this act, it shall be law- ful for any city of the third class to appropriate public moneys for the purpose of having music in any public park or place. At the 589 time of making of the annual appropriation ordinance, any city coun- cil in a city of the third class may appropriate such sum of money as in their judgment shall be necessary for the purpose of supplying music in any i)ublic park or place. Sec. 1, Act of April S, 1917, P. L. 44. See also Sec. (89). 590 ARTICLE LXVI. PUBLIC HEALTH. (For other health laws in force in cities of the third class see sec- tions 132 to 146 inclusive.) (a) Communicable Diseases. Quarantine. (1034). That the following diseases are hereby specifically de- clared to be communicable; to wit, Actinomycosis, anthrax, bubonic plague, cerebrospinal meningitis (epidemic), (cerebrospinal fever, spotted fever), chicken-pox, Asiatic cholera, diphtheria, (diphtheritic croup, membranous croup, putrid sore throat), epidemic dysentery (bacillary or amebic dysentery), ery- sipelas, German measles, glanders (farcy), rabies (hydrophobia), lep- rosy, malarial fever, measles, mumps, pneumonia (true), puerperal fever, relapsing fever, scarlet fever (scarlatina, scarlet rash), small- pox (variola, varioloid), tetanus, trachoma, trichiniasis, tuberculosis in any form, typhoid fever, para typhoid fever, typhus fever, whoop- ing-cough, yellow fever, anterior poliomyelitis, impetigo contagiosa, pellagra, scabies, or uncinariasis. The Department of Health may, when it deems it necessary to safeguard human life and health, declare as communicable diseases additional to those hereinabove specifically so declared, but only in the following manner; that is to say. The Commissioner of Health shall call a meeting of the advisory board, five days written notice of which shall be sent to each member of the board. The notice shall state the time and place of meeting and the fact that a proposed regulation will be presented declaring a certain disease or diseases — setting it or them forth by name — to be communicable. The notice shall also state such of the diseases as should, in the opinion of the Commissioner of Health, be quar- antinable or reportable, or both, and the quarantine period therefor. If at such meeting four members of the advisory board personally present shall vote affirmatively upon such proposed regulation, any disease therein set forth is or are hereby declared communicable, 591 with the same force and effect as if expressly enumerated i^ this act. Any such disease is hereby further declared quarantinable or reportable, or both, as may be provided in the regulation, with the force and effect hereinbefore referred to. Printed notice of the regu- lation shall be promulgated in the same manner as is provided by law in the case of other regulations of the Department of Health. The regulation may be amended at such meeting so as to eliminate some or any of the diseases set forth in the notice, but no disease shall be declared communicable which is not contained in the notice. Every physician practicing in any portion of this Commonwealth who shall treat or examine any person suffering from or affected with any disease herein specifically declared communicable and re- portable or by regulation declared communicable and reportable, shall, if said case shall be located in [a township of the first class, a borough, or] a city, forthwith make a report in writing to the health authorities of said [township,] city, [or borough;] and, if said case shall be located in a [township of the second class, or a] city, [borough, or township of the first class] not having a board of health or body acting as such, to the health officer appointed by the State Department of Health for such district; upon blanks supplied for that purpose, in which report he shall, over his or her own sig- nature, state the name of the disease, and the name, age, sex, color, nativity, and occupation, if any, of the person suffering therefrom, together with the street and house number of the premises in which said person may be located, or otherwise sufficiently designate the same, the date of the onset of the disease, the name and occupation of the householder in whose family the disease may have occurred, the number of children in said household attending school and the name or names of the school or schools so attended, together with such information relating to said case as may be required by said health authorities and the State Department of Health. Sec. 1, Act of July 17, 1919, P. L. 1010. Under the Act of June 18, 1895, P. L. 203, it was held that the failure of a physician to report a contagious disease was not an indictable of- fense, but a statutory wrong punishable by summary fine. Com. vs. Chadman, 11 D. R. 430, s. c. 19 Lane. 117. (1035). Upon receipt by the health authorities of any [township of the first class, borough, or] city, or by the health officer of the State Department of Health, of a report of the existence of a case of anthrax, bubonic plague, cerebrospinal meningitis (epidemic), (cerebrospinal fever, spotted fever), chicken-pox, Asiatic cholera, diphtheria (diphtheritic croup, membranous croup, putrid sore throat), German measles, glanders (farcy), leprosy, measles, mumps, scarlet fever (scarlatina, scarlet rash), smallpox (variola, varioloid), typhoid fever, para typhoid fever, typhus fever, whooping-cough, 592 yellow fever, or any disease declared communicable and quaran tin- able by regulation as hereinbefore provided, the said health author- ities or tlie health officer of the State Department of Health, as the case may be, shall quarantine or cause to be quarantined the premises in which such disease exists and any person or persons who has or have been exposed thereto, in the manner prescribed by the rules and regulations both of said health authorities and the State Depart- ment of Health; and shall post or cause to be posted, in a conspic- uous place or places upon the premises in which said disease may be located, a placard or placards, upon which shall be printed in' con- spicuous letters the name of the disease from which the person or persons in said house or premises is or are suffering, with the warn- ing that the said premises are quarantined, that no person or persons other than the attending physician and trained nurse shall enter or leave the said premises, except by permission of the health authori- ties, and setting forth the penalties prescribed by this act for viola- tions of quarantine: Provided, That variola or varioloid shall be placarded as "smallpox," and that diphtheritic croup, membranous croup, and putrid sore throat shall be placarded as "diphtheria," that scarlatina and scarlet rash shall be placarded as "scarlet fever," and that para typhoid fever shall be placarded as "typhoid fever:" Provided further. That in addition to the placarding aforesaid, said health authorities may, for the purpose of enforcing quarantine regu- lations, place a guard or guards over said house or premises. Sec. 2, Act of July 17, 1919, P. L. 1010. (1036). The said placard or placards shall remain in place until the expiration of the quarantine period fixed by the health authori- ties and the recovery, death, or removal of the person or persons affected; and shall only be removed by the health officer, at which time he shall disinfect the premises, except for typhoid fever and para typhoid fever, in accordance with the rules and regulations of the health authorities and the State Department of Health regard- ing the destruction and disinfection of infected bedding, clothing, and other articles which have been exposed to infection and the disinfec- tion of rooms, premises, and inmates. Sec. 3, Act of July 17, 1919, P. L. 1010. (1037). The quarantine period for anthrax, bubonic plague, cere- brospinal meningitis (epidemic), (cerebrospinal fever, spotted fever), Asiatic cholera, typhus fever, yellow fever, relapsing fever, leprosy, and whooping-cough shall be until the recovery, death, or removal of the patient so suffering, and shall be determined in accordance with the rules and regulations of the health authorities. The quar- antine period for smallpox (variola, varioloid) and scarlet fever (scar- latina, scarlet rash) shall be a minimum period of thirty days or 593 38 until such time thereafter as the last person in tne premises so sunei- ing shall have fully recovered or until death or removal. The quar- antine period for diphtheria (diphtheritic croup, membranous croup, putrid sore throat) shall be a minimum period of twenty-one days or until complete recovery or the death or removal of the patient: Provided, That if antitoxin has been used for curative purposes for the patient and for the immunizing of all of the inmates of the prem- ises, and two negative bacteriological cultures have' been secured from the diseased area of each patient on the premises, for two suc- cessive days, the minimum period of quarantine may be fourteen days. The quarantine period for measles, German measles, chicken- pox, and mumps shall be for a minimum period of sixteen days or until the recovery of the last person on the premises so suffering or until complete recovery or the death or removal of the patient. Sec. 4, Act of July 17, 1919, P. L. 1010. (1038). No child or other person suffering from anthrax, bubonic plague, cerebrospinal meningitis (epidemic), (cerebrospinal fever, spotted fever), Asiatic cholera, smallpox (variola, varioloid), typhus fever, yellow fever, relapsing fever, leprosy, diphtheria, (diphtheri- tic croup, membranous croup, putrid sore throat), measles, German measles, glanders (farcy), chicken-pox, mumps, whooping-cough, or any disease declared communicable and quarantinable by regulation as hereinb'^fore provided, shall be permitted to attend any place of amusement or anj church or any other public gathering, or to be exposed on any public street or in any store, shop, factory, or other place of business, or be permitted to attend any public, private, paro- chial, Sunday, or other school ; and the teachers of public schools and the principals, superintendents, teachers, or other persons in charge of private, parochial, Sunday, or other similar schools are hereby required to exclude any of such persons from said schools ; such exclusion to continue until the case has recovered, the quaran- tine lifted, and the premises thoroughly disinfected. Sec. 5, Act of July 17, 1919, P. L. 1010. (1039). No child or other person suffering from scarlet fever (scarlatina, scarlet rash) shall be permitted to attend any place of amusement or any church or other public gathering, or to be exposed on any public street or in any store, shop, factory or other place of business, or be permitted to attend any public, private, parochial, Sunday, or other school ; and the teachers of public schools and the principals, superintendents, teachers, or other persons in charge of private, parochial, Sunday, or other schools are hereby required to exclude any and all such persons and children from said school; such exclusion to continue for a period of ten days following the 594 removal of quarantine ana a thorough disinfection of the premises, subject to a certificate of complete recovery furnished to the health authorities by the attending physician. Sec. 6, Act of July 17, 1919, P. L. 1010. (1040). No child or other person residing in the same premises with any person suffering from anthrax, bubonic plague, cerebro- spinal meningitis (epidemic), (cerebrospinal fever, spotted fever), Asiatic cholera, smallpox (variola, varioloid), typhus fever, yellow fever, scarlet fever (scarlatina, scarlet rash), relapsing fever, leprosy, diphtheria (diphtheritic croup, membranous croup, putrid sore throat), measles, German measles, chicken-pox, mumps, or any dis- ease declared communicable and quarantinable by regulation as here- inbefore provided, shall be permitted to attend any place of amuse- ment or any church or other public gathering, or to be exposed, ex- cept by permission of the health authorities, on any public street or in any store, shop, factory, or other place of business, or be per- mitted to attend any public, private, parochial, -Sunday, or other schools; and the teachers of public schools and the principals, sup- erintendents, teachers or other persons in charge of private, parochial, Sunday, or other similar schools are hereby required to exclude any and all such persons from said schools; such exclusion to continue until quarantine is lifted and the premises thoroughly disinfected. Sec. 7, Act of July 17, 1919, P. L. 1010. (1041). Any child or person residing on the same premises with any person suffering from anthrax, cerebrospinal meningitis (epi- demic), (cerebrospinal fever, spotted fever), or typhus fever may be allowed, after taking a disinfecting bath and putting on disinfected clothing, to remove from the said premises and take up his or her residence on other premises, and may, after such removal, be ad- mitted into any of the said schools; and any child or person resid- ing on the same premises with any one suffering from diphtheria (diphtheritic croup, membranous croup, putrid sore throat) may be allowed, after taking a disinfecting bath and putting on disinfected clothing, and after antitoxin has been administered for immunizing purposes, to remove from the said premises and take up his or her residence on other premises occupied only by adults, and may, after five days from said removal, be admitted into any of the said schools ; and any child or person residing on the same premises with any child suffering from scarlet fever (scarlatina, scarlet rash), measles, German measles, mumps, or chicken-Pox may be allowed, after tak- ing a disinfecting bath and putting on disinfected clothing, to re- move from the said premises and take up his or her residence on other premises occupied only by adults or by children who are im- mune to the disease (scarlet fever, scarlatina, scarlet rash, measles, 595 German measles, mumps, or chicken-pox) existing on the said prem- ises from which the said child or person has removed — such immunity being shown by the official health records, — and may, fourteen days after such removal, be admitted to any of the said schools : Pro- vided, That if the child or person residing on the same premises with any person suffering from any of the said diseases (scarlet fever, scarlatina, scarlet rash, measles, German measles, mumps, or chicken-pox), and removing therefrom as above provided, is him- self or herself immune from the disease existing on the said prem- ises by virtue of a former attack, this fact being shown by the offi- cial health records or by other evidence satisfactory to the health authorities, such immune child or person may, on the day following such removal, be admitted to any of the said schools; and any child or person residing on the same premises with any person suffering from relapsing fever may be allowed, after taking a disinfecting bath and putting on disinfected clothing, to remove from the said prem- ises and take up his or her residence on other premises, and may, after ten days from such removal, be admitted to any of the said schools. In the case of children or persons residing on the same premises with any child or person suffering from any disease de- clared communicable and quarantinable as hereinbefore provided, the Department of Health, by general regulation, shall determine the conditions upon which said child or person may take up his residence upon other premises or be admitted to school. Sec. 8, Act of July 17,. 1919, P. L. 1010. (1042). Every teacher, principal, superintendent, or other per- son or persons in charge of any public, private, parochial, Sunday, or other school having in any such school any child or person show- ing an unusual rash or skin eruption, or complaining of soreness in the throat, or having symptoms of whooping-cough, or any dis- ease of the eye, shall immediately exclude such child or other person from the schools pending the action of the health authorities, and shall report such fact to the health authorities, and shall report such fact to the health officer of the city, [borough, or township,] giving the name and residence of such child or other person. Sec. 9, Act of July 17, 1919, P. L. 1010. (1043). No child or other person excluded from any school by - the provisions of this act shall be re-admitted thereto, unless he or she or some person on his or her behalf shall fui-nish to the prin- cipal, superintendent, or teacher, or other person in charge of said school, a certificate setting forth that the conditions for such read- mission prescribed by this act have been complied with ; which cer- tificate shall be signed by a person to be designated for that pur- 5% pose, in cities, [boroughs, and townships of the first class,] by the health authorities thereof exclusively, and in townships of the sec- ond class, and cities, [boroughs, and townships of the first class] not having boards of health or bodies acting as such, by the State Department of Health ; and the registry of all pubUc, private, paro- chial, Sunday, and other schools shall exhibit the names and resi- dences of all children and persons excluded therefrom or readmitted thereto agreeably to the provisions of this or any other act of As"- sembly ; and said register shall be open at all times to the inspection of the city, [borough, or township] authorities, and the State De- partment of Health, and their respective officers and agents. Sec. 10, Act of July 17, 1919, P. L. 1010. (1044). Blanks whereon to make the reports and certificates re quired by this act shall be supplied, in cities, [boroughs, and town- ships of the first class,] by the health authorities thereof, respec- tively; and in [townships of the second class, and in] cities, [bor- oughs, and townships of the first class] not having boards of health or bodies acting as such, by the State Department of Health.- Sec. n, Act of July 17, 1919, P. L. 1010. (1045). It shall be the duty of the health authorities of cities, [boroughs, and townships of the first class,] respectively, to furnish daily, by mail or otherwise, to principals, superintendents, teachers, and other persons in charge of public, private, parochial, Sunday, and other schools, a printed or written bulletin, containing the name, location, and disease of all persons suffering from any of the diseases comprehended by sections five and six of this act, upon receipt by them of reports of such cases from physicians as re- quired by section one of this act; and such bulletin shall be daily furnished to such persons in charge of such schools in [townships of the second class, and in] cities, [boroughs, and townships of the first class] not having boards of health or bodies acting as such, by the health officer for the State Department of Health. Sec. 12, Act of July 17, 1919, P. L. 1010. (1046). Upon the removal to a hospital or other place, or upon the discharge by the recovery or death, of any person or persons who has or have suffered from tuberculosis or any of the diseases comprehended by section two of this act, all premises which have been occupied by the said person or persons while suffering from any of the said diseases shall be disinfected or destroyed, at such time and in such manner as may be authorized and required by the health authorities. Sec. 13, Act of July 17, 1919, P. L. 1010. 597 (1047). No person suffering from any of the diseases compre- hended by section two of this act, nor any who has charge of the persons so suffering, shall enter any hired vehicle or other public conveyance, or permit any one in his or her charge who is suffering therefrom to enter such vehicle, without previously securing the consent of health authorities, and notifying the owner or driver thereof that he or she or the person in his or her charge is so suffer- ing; and the owner or driver of such vehicle shall immediately pro- vide for the disinfection of such conveyance, under the direction of the health authorities, after it has, with the knowledge of such owner or driver, conveyed any such sufferer. Sec. 14, Act of July 17, 1919, P. L. 1010. (1048). No person suffering from anthrax, bubonic plague, cere- brospinal meningitis (epidemic), (cerebrospinal fever, spotted fever), chicken-pox, Asiatic cholera, diphtheria, (diphtheritic croup, mem- branous croup, putrid sore throat), measles, German measles, glan- ders (farcy), mumps, scarlet fever (scarlatina, scarlet rash), small- pox (variola, varioloid), typhus fever, typhoid fever, yellow fever, whooping-cough, or any disease declared communicable and quaran- tinable by regulation as hereinbefore provided, shall wilfully expose himself or herself in any street or public place or public conveyance, nor shall any person in charge of anyone so suffering thus expose the sufferer. Sec. IS, Act of July 17, 1919, P. L. 1010. (1049). No person, without previous disinfection, shall give, lend, sell, transmit, or expose any bedding, clothing, rags, or other articles, which have been exposed to infection from any of the diseases com- prehended by section one of this act: Provided, That such restric- tion shall not apply to the transmission of articles with proper pre- caution for the purpose of having the same disinfected. Sec. 16, Act of July 17, 1919, P. L. 1010. (lOSO). No person shall let any room, house, or part of a house, in which there, has been a person suffering from tuberculosis or any of the diseases comprehended by section two of this act, with- out having such room, house, or part of a house, and all articles therein, previously disinfected to the satisfaction of the health author- ities. The keeping of a hotel, boarding-house, or apartment-house shall be deemed as letting a part of a house to any person who shall be admitted as a guest into such hotel, boarding-house or apartment- house. Sec. 17, Act of July 17, 1919, P. L. 1010.' Under the Act of June 18, 1895, P. L. 203, it was decided that a fam- ily quarantined by a board of health on account of disease, and for that 598 reason without the means of obtaining a HveHhood, must be sup- ported by the board of health and not by the poor district. Beaver County Commissioners, 14 D. R. 491. (1051). The health authorities of the several [townships, bor- oughs, and] cities of this Commonwealth may, and they are hereby authorized and empowered to, establish additional rules and regu- lations regarding the isolation and quarantine of persons who may be suffering from any of the diseases comprehended by section one of this act, and for the destruction, disinfection, and fumigation of bedding, clothing, or other infected articles, and for the disinfection and fumigation of houses and premises, and for the carrying out of the provisions of this act, as they may in. good faith declare the public safety and health demand; which rules and regulations they may, from time to time, alter or amend, but in no instance shall such rules abridge in aiiy way the provisions of this act or the regu- lations of the State Department of Health. Sec. 18, Act of July 17, 1919, P. L. 1010. (1052). In the preparation for burial of the body of any preson who has died of Asiatic cholera, glanders (farcy), bubonic plague, 'smallpox (variola, varioloid), yellov/ fever, typhus fever, scarlet fever (scarlatina, scarlet rash), Mapsing fever, cerebrospinal men- ingitis (epidemic), (cerebrospinal fever, spotted fever), diphtheria (diphtheritic croup, membranous croup, putrid sore throat), tetanus or leprosy, it shall be the duty of the undertaker or person acting as such to thoroughly disinfect and place such body within the cofifin or casket in which it is to be buried, within six hours after being first called upon to take charge of the same, provided said call is made between the hours of five ante meridian and eleven post meridian ; otherwise such body shall be placed in such coffin or casket within twelve hours ; the coffin or casket then to be closed tightly, and not again opened unless permission be granted by the health authorities for special and satisfactory cause shown. Sec. 19, Act of July 17, 1919, P. L. 1010. (1053). The body of a person who has died of any of the dis- eases mentioned in section nineteen of this act shall not remain un- buried for a longer period of time than thirty-six hours after death, unless special permission be granted by the health authorities ex- tending the time during which said body shall remain unburied for special and satisfactory cause shown. The undertaker or person acting as such shall be responsible for any violation of the provi- sions of this section. Sec. 20, Act of July 17, 1919, P. L. 1010. 599 (1054). All services held in connection with the funeral of the body of a person who has died of any of the diseases mentioned in section nineteen of this act shall be private, and the attendance thereat shall include only the immediate adult relatives of the de- ceased who may not at the time be under absolute quarantine re- strictions and the necessary number of adult pall-bearers, and any advertisement of such funeral shall state the cause of death. Sec. 21, Act of July 17. 1919, P. L. 1010. (1055). The body of a person who has died of any of the diseases mentioned in section nineteen of this act shall, in no instance, be taken in to any church, chapel, public hall, or public building, for the holding of funeral services. The undertaker or person acting as such and the sexton, janitor, or other person having control of such church, chapel, public hall, or public building, shall be respon- sible for any violation of the provisions of this section. Sec. 22, Act of July 17, 1919, P. L. 1010. (1056). No undertaker or person acting as such at the funeral or burial of the body of a person who has died of any of the diseases mentioned in section nineteen of this act, shall furnish or provide for such funeral or burial more than the necessary number of con- veyances for such adult relatives as are mentioned in section twenty- two of this act and pall-bearers; and all such conveyances shall be fumigated and disinfected, at such time and in such manner as may be directed and required by the health authorities. Sec. 23, Act of July 17, 1919, P. L. 1010. (1057). The body of a person who has died of any of the dis- eases mentioned in section nineteen of this act shall not be conveyed from any dwelling or other building or place to any cemetery or other point or place, except in a hearse or other vehicle used for the purpose of conveying corpses only, or in such vehicles as shall be satisfactry to the health authorities, and under such regulations as they may in any case adopt. The undertaker or person acting as such having charge of the funeral or transportation of such body shall be responsible for any violation of the provisions of this sec- tion. Sec. 24, Act of July 17, 1919, P. L. 1010. (1058). The health authorities of the several cities, [boroughs, and townships of the first class] shall, at the end of each week and for the fraction of each week occurring at the end of each month, report to the State Department of Health, upon blanks supplied for that purpose, a list of all cases of communicable diseases com- prehended by section one of this act which have been reported to 600 them during said period; which report shall contain the name ot each person suffering therefrom, respectively, and his or her age, sex, color, and nativity, together with the name of the disease, and the date of the onset thereof; and, in the event of no reports of any of said diseases having been received by the aforesaid health au- thorities, respectively, during any said period, that fact shall be re- ported to the State Department of Health. Sec. 25, Act of July 17, 1919, P. L. 1010. (1059). Any person who shall remove, deface, cover up, or de- stroy, or cause to be removed, defaced, covered up, or destroyed, any placard relating to any of the diseases comprehended by sec- tion two of this act, shall for every such offense, upon conviction thereof in a summary proceeding before any magistrate or justice of the peace of the county wherein such offense was committed, be sen- tenced to pay a fine of not less than ten ($10) dollars or more than one hundred ($100) dollars, to be paid to the use of said county, and costs of prosecution, or to be imprisoned in the county jail for a period of not less than ten days or more than thirty days, or both, at the discretion of the court. Any person, other than the attending physician or trained nurse, who shall enter or leave any quarantined premises without having secured permission from the health author- ities ; or who shall violate any of the quarantine restrictions imposed by this act or by the rules and regulations of the health authorities of any city, [borough, or township of the first class] or the rules and regulations of the State Department of Health; or who shall interfere with a health officer or any other duly qualified agent of the State Department of Health or of any local board or department of health in the discharge of his official duties in the placarding, quar- antining, disinfecting, or releasing from quarantine of any premises or in the investigation of any alleged case of quarantinable disease, — shall for every such offense, upon conviction thereof in a summary proceeding before any magistrate or justice of the peace of the county wherein said offense was committed, be sentenced to pay a fine of not less than fifty ($50) dollars or more than one hundred ($100) dollars, to be paid to the use of the said county, and costs of prose- cution, or to be imprisoned in the county jail for a period of not less than ten or more than thirty days, or both, at the discretion of the court. ' Any physician, undertaker, teacher of a public school, principal of a school, superintendent of a Sunday school, sexton, janitor, parent or guardian, or any other person or persons who shall fail, -neglect, or refuse to comply with or who shall violate, any of the provisions of this act, — shall for every such offense, upon conviction thereof in a summary proceeding before any magistrate or justice of the 601 peace of the county wherein said offense was committed, be sen- tenced to pay a fine of not less than twenty ($20) dollars or more than one hundred ($100) dollars, to be paid to the use of said county, and costs of prosecution, or to be imprisoned in the county jail for a period of not less than ten or more than thirty days, or both, at the discretion of the court. Sec. 26, Act of July 17, 1919, P. L. 1010. (b) Maintenance of Quarantined Persons. (1060). If any person shall come out of any city, borough, town- ship, or district, in this Commonwealth, into any other city, [borough, township, or district,] and shall happen to fall sick of any contagious or infectious disease before he shall have gained a settlement therein, the bureau of health, board of health [or board of school directors of such] city, [borough, or township, or district,] shall, as soon as conveniently may be, give notice to the bureau of health, board of health, or board of school directors of the city, [borough, township, or district, as the case may be,] where such sick person had last gained a settlement, or to one of them, the name, circumstance, and condition of such sick person ; and if the bureau of health, board of health, or board of school directors, to whom such notice shall be given, shall neglect or refuse to repa)'- the moneys necessarily expended for the use of such sick person and to take charge of relieving and main- taining him, or shall, on request made, refuse or neglect to pay the money expended in maintaining such sick person, in every such case it shall be the duty of the court of quarter sessions of the county where such sick person was last settled, upon complaint to them made, to compel the payment by such bureau of health or board of school directors or board of health of all such sums of money as were necessarily expended for such purposes, in the manner directed by law in the case of a judgment obtained against overseers of poor: Provided, That in all cases the court of quarter sessions of the proper county shall have the right and authority to supervise, cor- rect, and amend, or allow, the charges or expenses received, or any items thereof. Sec. 1, Act of May 1, 1909, P. L. 307. (1061). All persons falling sick of any contagious or infectious disease, excepting those entitled to relief under the existing poor- laws, shall bear and pay all expenses incident to such sickness, except expense of quarantine ; and in case any bureau of health, board of health, or board of school directors have made payment, under section one of this act, then they shall recover any money so ex- pended, in the same manner as debts of like amount are now by law collected : Provided, The expense of the care and maintenance 602. of the poor person, sick with a contagious or infectious disease, shall be paid out of the funds at the disposal of said bureaus of health, board of health, or board of school directors. Sec. 2, Act of May 1, 1909, P. L. 307. (1062). A settlement may be gained in any district as follows: — 1. By any person who shall come to inhabit in the same, and who shall, for himself and on his own account, execute any public office legally placed therein during one whole year. 2. By any person who shall be charged with and pay the pro- portion of any public taxes or levies for one year. 3. By any person who shall bona fide take a lease of any real estate of the yearly value of ten dollars, and shall dwell upon the same for one whole year, and pay the said rent. 4. By any person who shall become seized of any freehold estate within such district, and who shall dwell upon the same for one whole year. 5. By any unmarried person, not having a child, who shall be lawfully bound or hired as a servant within such district, and shall continue in such service during one whole year. Sec. 3, Act of May 1, 1909, P. L. 307. (1063). Every married woman shall be deemed during coverture and after her husband's death, to be settled in the place where he was last settled; but, if he shall have no known settlement, then she shall be deemed, whether he be living or dead, to be settled in the place where she was last settled before her marriage. Sec. 4, Act of May 1, 1909, P. L. 307. A husband whose vv'ife is in a state insane asylum as a charge upoA the township in which he resides, may acquire a new settlement by removal to another township, and, after such new settlement has been acquired, the wife will become a charge upon the township to which the husband has removed. Canaan Twp. Overseers vs. Covington Twp. Overseers, 54 Super. Ct. 25. (1064). Every illegitimate minor child shall be deemed to be settled in the place where the mother was legally settled at the time of the birth of such child. Sec. S, Act of May 1, 1909, P. L. 307. (c) Abatement of Nuisances. (1065). From and after the date of the passage of this act it shall be lawful for the select and common council of any city of the third class within this Commonwealth, by a joint resolution, 603 to authorize and empower the mayor of such city to present a peti- tion to the court of common pleas of the county wherein such city is located, setting forth that any property, building, premises, busi- ness or occupation, specif3dng the same fully and describing the same accurately, located within said city has become a public nuis ance, injurious or dangerous to the community, to the public health, and upon presentation and hearing of such petition, if the nuisance complained of be not a nuisance, per se, then it shall be lawful for the court to appoint six disinterested and discreet freeholders of said county to go upon the premises where said nuisance is alleged to exist at a time to be fixed in the order appointing the same, of which time due notice shall be given to all persons interested, which shall not be less than twenty nor more than thirty days from the date of the order making such appointment, and shall thereupon, being first duly sworn, view the property, premises, building, busi- ness, or occupation, shall hear the parties, their witnesses and coun- sel, and shall make due report thereof to the court appointing them. Sec. 1, Act of June 26, 1895, P. L. 367. (1066). The said viewers appointed as aforesaid, shall have power: First. To determine whether or not the property, premises, build- ing, business or occupation is a nuisance, and if they shall find it is a nuisance, shall so return in their award ; and Second. They shall further find what, if any, compensation shall be paid by the city to the owner or owners of said property, prem- ises, building,, business or occupation for the abatement of the same, and if the findings of the sjiid viewers be in favor of the said city and direct the abatement of said nuisance, then judgment shall be entered upon their award within thirty days after the same is filed, unless the said award be appealed from or exceptions thereto be filed within thirty days : And provided. That no execution or other process for the collection of any sum of money awarded to any person or persons, corporation or corporations, as compensation for the abatement of any nuisance, shall issue until the said nuisance has been fully and completely abated, and return thereof made to the court. Sec. 2, Act of June 26, 1895, P. L. 367. (1067). Any of the parties interested in any proceedings pro- vided by the first and second sections of this act, may appeal to the court of common pleas of the proper county within thirty days from the date of filing an award ; such appeal to be in the same form as now governs appeals from the awards of arbitrators, the party appealing to pay the costs incurred and to give bond, with one surety, for the payment of all costs which may thereafter be in- 604 curred; and upon such appeal being prefected the court shall frame an issue, which issue shall be placed at the head of the next trial list then open, and shall be tried by the court and jury in the same manner as feigned issues are now tried, and upon such trial the jury shall have power to find the same facts as are provided may be found by the viewers in the first section of this act; and if the jury shall find in favor of the city and award any compensation to the owner or owners of said property, premises, building, business or occupation, judgment shall be entered upon the verdict of a jury: Provided, however, That no execution or other process for the col- lection of such judgment shall issue, until the nuisance complained of shall have been fully and completely abated and return thereof made to the court; upon which the court shall have power to award execution or other process necessary to enforce the collection of the judgment. Sec. 3, Act of June 26, 1895, P. L. 367. (1068). Whenever the award of viewers, or the verdict of a jury, shall find that a nuisance exists, and the owner or owners of any property,- premises, building, business or occupation, causing the same shall fail to abate the same within sixty days from the date of the judgment, the authorities of said city shall have full power and authority to enter upon said property, premises, or building where said nuisance exists, and abate the same, and shall not be liable in any form of action for so doing ; and the cost and expense of abating the same shall be deducted from any compensation awarded in said proceedings. Sec. 4, Act of June 26, 1895, P. L. 367. (1069). This act is intended to apply only to such nuisances as are not such, per se, and all acts or parts of acts inconsistent here- with shall be and the same are hereby repealed. Sec. 5, Act of June 26, 1895, P. L. 367. (d) Rubbish and Waste Materials. (1070). From and after the passage of this act, it shall be un- lawful, and is hereby forbidden, for any person or persons to throw waste paper, sweepings, ashes, houshold waste, nails or rubbish of any kind into any street, in any city, [borough, or township] in this Commonwealth, or to interfere with, scatter or disturb the con- tents of any receptacle or receptacles containing ashes, garbage, house- hold waste, or rubbish, which shall be placed upon any of said paved streets or sidewalks for the collection of the contents thereof. Any person or persons who shall violate any of the provisions of this act shall, upon conviction thereof before any magistrate, be sentenced 605 to pay the cost of prosecution, and to forfeit and pay a fine not exceeding ten ($10) dollars, for each and every such offense, and in default of the payment thereof, shall be committed, and imprisoned in the county jail of the proper county for a period not exceeding ten days. Sec. 1, Act of April 20, 1905, P. L. 227. (e) Keeping and Slaughtering of Animals. (1071). From and after the passage of this act, it shall be lawful for any city of the third class to prohibit the keeping and slaughter- ing of horses, cows, calves, swine, sheep, goats, and other animals or fowls deemed objectionable by the department of health in any dwelling, rooming-house, or tenement, or any part thereof; nor shall any of the aforesaid animals or such fowl be kept in the yard of any such building or the lot thereof or the property adjoining, in closely built up sections, without the person desiring to keep the same first having obtained a permit from the department of health. Application for such permit shall be accompanied by a fee of fifty cents, and such permit when granted shall expire not later than the calendar year for which it is issued. Sec. 1, Act of July 17, 1919, P. L. 1035. (f) Bone Boiling Establishments. Depositories of Dead Animals. (1072). From and after the passage of this act, bone boiling es- tablishments and depositories of dead animals may be established and operated in this Commonwealth under the following conditions, to wit: That no establishment for bone boiling or depository of dead animals shall continue to be operated or shall be erected and operated within any city [or borough} within this Commonwealth, unless the permission of the board of health of said city [or borough] shall have been obtained, and the said establishment shall be con- ducted in accordance with the regulations prescribed by the said board of health; [and further, in case a bone boiling establishment or depository of dead animals exists, or is erected and conducted in a township in any county of this Commonwealth, the same shall be conducted under the supervision and subject to the regulations prescribed by the State Board of Health.] And every person of- fending against the provisions of this act, shall for every sucK of- fense, and each month's continuance of the same after notice, for- feit and pay to the board of health if in a city [or borough, or to the school board of the district or township if in a township,] the sum of fifty dollars, to be recovered as debts of that amount are recoverable and also be liable to indictment at common law for creating and maintaining a nuisance. Sec. 1, Act of May 19, 1897, P. L. 77. 606 A bone boiling plant in a thinly populated district on the outskirts of the city, operating under a license of the board of health in com pliance with this act, is not a nuisance, although it may cause much inconvenience to persons residing in the neighborhood. Shetzline vs. Layer, 19 D. R. 1025. (g) Spitting in Public Places. (1073). From and after the passage of this act, it shall be un- lawful for any person to spit on any public walk, public wharf or landing, or on the floor, platform, stairway, or elevator, or cover- ing used thereon, of any railroad or railway station, or other build- ing to which the public has access; or on the floor or platform or steps, or any covering used thereon, of any railroad or railway car, or other vehicle, conveyance, or common carrier used for the trans- portation of the public. Sec. 1, Act of May 11, 1909, P. L. 516. (1074). It shall be the duty of owners of all such buildings, cars, or other vehicles, conveyances, or common carriers, used for trans- portation of the public in this Commonwealth, or the officers in con- trol thereof, to post and keep posted, in prominent places, conspic- uously lettered signs warning the public against violating the pro- visions of this act, and calling attention to the penalty for such violation. Where spitting receptacles are provided for the con- venience of the public, in buildings, and cars and other vehicles, that are open and in use daily by the public, such receptacles shall be cleansed and disinfected daily; and in buildings, cars, and other vehicles, that are not open or used daily, the said receptacles shall be cleansed and disinfected immediately after each day that such buildings, cars, and other vehicles are used by the public. Sec. 2, Act of May 11, 1909, P. L. 516. (1075). Any person violating the provisions of section one of this act, shall, upon conviction thereof in a summary proceeding before a justice of the peace, alderman, or magistrate of the county wherein such offense is committed be sentenced to pay a fine of one dollar and costs ; such fine to be paid into the treasury of the municipality in Avhich the violation is committed; or, if committed upon a train or car, into the treasury of the municipality or town- ship in which the offender is tried and convicted. In default of payment of such fine and costs, the offender shall be sentenced to be confined in the proper county jail for a period of not less than one day, nor more than five days. Sec. 3, Act of May 11, 1909, P. L. 516. ^7 (1076). Any person or persons, firm or corporation, violating the provisions of section two of this act, shall, upon conviction thereof in a summary proceeding before a justice of the peace, alderman, or magistrate of the county wherein such ofifense is committed, be subject to a fine of not less than five dollars, nor more than fifty dollars. Sec. 4, Act of May 11, 1909, P. L. 516. (1077). Any constable, or other person authorized by law to make arrests, is hereby empowered to arrest persons violating the pro- visions of section one of this act on trains or cars in motion or in transit, and to take such offenders before the nearest justice of the peace, alderman, or magistrate, either at the place where the ofifense is committed or at the next regular stopping place of the train or car ; and such justices of the peace, aldermen, and magistrates are hereby given jurisdiction in such cases. Sec. 5, Act of May 11, 1909, P. L. 516. ARTICLE LXVII. DEPARTMENT OF CHARITY AND SUPPORT OF THE POOR. (1078). Cities of the third class, and other cities containing less than ten thousand inhabitants coming within the provisions of an act of Assembly entitled, "An act dividing the cities of this State into three classes, regulating the passage of ordinances, providing for contracts ^for supplies and work for said cities, authorizing the increase of indebtedness, and the creation of a sinking fund to re- deem the same, defining and punishing certain offenses in all of said cities, and providing for the incorporation and government of cities of the third class," approved the twenty-third day of May, Anno Domini one thousand eight hundred and seventy-four, in addi- tion to the other powers conferred in said act, are authorized and empowered to esiact ordinances for the following purposes : First. To create a department for the purpose of administering charity and for support of the poor, and such department shall have the care, management, administration and supervision of the char- ities, almshouses, poorhouses and the relief of the poor of said city, subject however, to the control of the councils. Second. To levy a tax annually, not exceeding ten mills on the dollar, on all persons and property taxable by each of said cities for city purposes, for the support of said department. Third. To create any office which may be deemed necessary by any such city for the proper government, support and management of said department, to regulate and prescribe the powers, duties and compensation of all such officers and to require of each of them bonds with sufficient security, conditioned for the faithful performance of his duties. Sec. 1, Act of May 13, 1889, P. L. 192. (1079). This act shall not repeal any special or local law relat- ing to public charities in the poor affairs in any of the cities afore- said. S«c. 2, Act «f May 13, 1889, P. L. 192. 609 39 ARTICLE LXVIII. CITY TRUSTS. (1080). The city councils of any city, with the approval of the mayor [or recorder thereof,] may establish in such city institutions authorized to collect and hold certain educational and economic collections, the object of each being the scientific, educational and economic instruction of the public concerning commerce, manufac- turing, mining, and agriculture; said institutions to have power to purchase or accept by gift any real estate, money or personal property necessary for their use and promotion, and poWer to use, convey or transfer the same, as if they were bodies corporate to be governed by boards of trustees, nominated, appointed and confirmed in such manner as the city councils may determine. Sec. 1, Act of April 25, 1903, P. L. 314. A dedication or gift of lands by a city to an institution included within the terms of the act cannot be revoked so long as the lands are used for the purposes of the dedication, and a subsequent absolute conveyance of the lands by the city to a private corporation for its own use will be declared void at the instance of taxpayers complaining thereof. Phila. Museums vs. University of Fa. 251 Pa. 115. (1081). Whenever any person shall have heretofore made, or hereafter make, any bequests, devises, or gifts, and shall have cre- ated, or may hereafter create, in connection therewith, a trust or trusts for the benefit of the people of any incorporaed city of this Commonwealth, for the purpose of establishing and maintaining any library, museum, art gallery, school or other institution for the ad- vancement of learning, science^^ music or art, or any one or more of said purposes, the terms and conditions and scope of the said trust or trusts being prescribed, and the manner in which the trus- tees shall be selected or appointed for the administration of said trust or trusts being specified, and providing that officers or rep- resentatives of the said city shall be some of said trustees, and if such bequests, devises, or gifts shall have been accepted by the city upon the terms imposed, it shall be lawful to form a corporation, in the manner hereinafter provided, for the management of said trust or trusts, either separately or together, if there be no inconsistence 610 in said trusts, with power to confer degrees in art, pure and applied science, philosophy, literature, painting, music, medicine, law, and theology, or any of them. Sec. 1, Act of April 26, 1911, P. L. 82. This act seems to supply sections 1, 2 and 4 of the Act of May 28, 1907, P. L. 300. (1082). With the consent of the said city, evidenced by a reso- lution of its councils, the majority of said trustees, named or acting under the provisions of the instrument creating the trust or trusts, may present a petition to the court of common pleas of the county in which said city shall be situate, which shall set forth the terms and provisions and conditions of such trust or trusts, the fact of the acceptance thereof by the city, as evidenced by the proper action of its councils, and, with such petition, the said trustees shall file articles of association, in which articles of association they shall certify : 1. — The name under which such trust or trusts shall be incor- porated. 2. — The purpose for which it is formed (which shall embody the terms and provisions of the trust or trusts). 3. — The kind or kinds of degrees which the corporation shall have power to confer. 4.- — The amount of assets in the possession of said subscribers, which are to be devoted to the establishing and conducting of those branches of education in which the corporation shall have power to confer degrees. 5. — The minimum number of persons whom it is intended to reg- ularly employ, as members of the faculty, in each branch of educa- tion in which the corporation shall have power to confer degrees. 6. — ^A brief statement of the requirements for admission, and of the course of study to be pursued in each branch of education in which the corporation shall have power to confer degrees. 7. — The place or places where its business is to be transacted. 8. — The term for which it is to exist. 9. — The names and residences of the trustees, and the manner in which their successors are to be chosen or qualified. 10. — The officers of the said city, and the names of those filling the offices at the time, Avho ex virtute officii are trustees, and the wanner of their appointment or selection by the proper body of the eity government. 611 11. — Such other provisions as may be necessary to carry out the intent of the testator or donor. The practice as to the execution, acknowledgment, and advertise- ment of said petition and articles of association shall follow the practice provided by the act to which this a supplement, relating to corporations of the first class. Sec. 2, Act of April 26, 1911, P. L. 82. (1083). The said petition and articles of association shall be presented to a law judge of the said county, who is hereby required to examine them, and, if they shall be found to be in proper form, and shall appear lawful and not injurious to the community, he shall endorse thereon these facts ; and shall, thereupon direct the prothon- otary or clerk of said court to transmit to the Superintendent of Public Instruction of the Commonwealth a certified copy of said certificate of incorporation, together with the said endorsements thereon. Sec. 3, Act of April 26, 1911, P. L. 82. (1084). Upon the receipt of said certified copy of said certifi- cate of incorporation, the said Superintendent of Public Instruc- tion shall, within sixty days thereafter, cause the College and Uni- versity Council of Pennsylvania to be convened, at such time and place as he may designate ; and said council shall thereupon hear and consider said application from an educational standpoint; and if the course of instruction and standard of admission and the composition of the faculty shall appear to said council to be sufficient, and the educational needs of the particular locality in which the proposed institution is to be located and of the Commonwealth at large, are likely to be met by the granting of said application, the said council shall thereupon cause to be endorsed upon said petition or certificate its findings and its approval of the same, together with a recommen- dation to the law judge or court before whom the same was origin- ally presented that the same be granted. If in the judgment of the council the said application should not be granted, it shall endorse thereon its findings and its disapproval of the same, with a recom- uncndation that said application be refused. The said certified copy of said certificate shall, with the endorsements thereon, thereupon be returned by the said Superintendent of Public Instruction to the law judge or court, who, in finally passing upon the petition, shall be guided in his decree by the findings of said College and University Council. In case the law judge, after giving his consideration to the findings of said council, shall be satisfied with the propriety of the application, in view of all the facts, he shall approve the same; and order and decree that upon the recording of s»id certificate, with 612 the recommendation of said council and a copy of said order of court, in the office of the recorder of deeds, et cetera, of the county in ' which the business of the corporation is to be transacted, the sub- scribers thereto and their associates and successors shall be a cor- poration, for the purpose and upon the terms therein stated; and henceforth the persons named therein and subscribing the same, and their associates and successors, shall be a corporation by the name therein given. In case of the disapproval of said application by the council, aforesaid, the proposed charter shall not be granted. Sec. 4, Act of April 26, 1911, P. L. 82. Sec. 2, Act of May 28, 1907, P. L. 300, provides that upon the record- ing of said charter and order in the office for the recording of deeds, "thereupon the property and money held by the said trustees undef said trust or trusts shall immediately vest in the said corporation." (1085). Upon the incorporation of any institution under the pro- visions of this act, it shall be lawful for said city to grant and con- vey to such corporation any property which said city may have provided for the use of such institution under the terms of the orig- inal gift; and to permit such corporation to hold, occupy, and use such portions of its public parks, or lands acquired for, or set aside for the use of, such institution under the terms of the original gift; and to appropriate annually for its support any moneys it may have agreed to appropriate under the terms of the original gift. Sec. 3, Act of May 28, 1907, P. L. 300. (1086). All corporations chartered under the provisions of this act shall be subject to visitation and inspection by representa,J:ives of the said council; and if any of them shall fail to keep up the standard recited in its charter, in any of the branches of education in which it has power to confer degrees, the court may, upon the recommendation of the council, revoke the power to confer degrees in that branch or branches of education in which the corporation shall so fail. Sec. S, Act of April 26, 1911, P. L. 82. (1C87). Nothing in this act, or in any act of this Commonwealth now in force, shall be construed as fixing an arbitrary standard by which applications for charters under this act shall be measured, either with respect to value of assets, number of faculty, or course of instruction ; but such matters shall be within the discretion of the law judge or court to whom petition is presented and the College and University Council. Sec. 6, Act of April 26, 1911, P. L. 82. (1088). Any corporation created under this act shall have per- petual succession, by its corporate name, for the purposes mentioned if its articles; and, in addition to the power to confer degrees, as 613 provided in its articles, shall have general powers as follows: To maintain and defend judicial proceedings, make and use a common seal, and alter the same at pleasure ; held, purchase, sell, and trans- fer such real and personal property as the purposes of the corpora- tion may require; appoint and remove subordinate officers and agents ; to enter into any obligation necessary for the transaction of its affairs, and to make, and, from time to time, alter, or amend by-laws for the regulation of its affairs, not inconsistent with its articles of association or the laws of this Commonwealth. Sec. 7, Act of April 26, 1911, P. L. 82. (1089). Whenever any property or estate, whatsoever, has been bequeathed or devised to any municipal corporation of this Common- wealth in trust, for the purpose of establishing or maintaining a public park for the use and benefit of the citizens of such munic- ipality, it shall be lawful for, and the Judge or judges of the court of common pleas of the county in which such municipal corpora- tion is located, is or are, on petition of the councils, of said municipal corporation, hereby directed, to appoint five persons as directors of city trusts, all of whom shall be citizens of such municipality, and none of whom shall hold any office or employment thereunder, who shall exercise and discharge all the duties and powers of said city, however acquired, concerning such property bequeathed, devised or appropriated to such charitable use7 to the extent that the same has been, or hereafter may be, by statute or otherwise, vested in or dele- gated to the said city or the officers thereof. • Sec. 1, Act of June 4, 1901, P. L. 429. (1090). The persons so appointed shall serve as members of the board of directors of city trusts during good behavior, subject however, to removal by the said judge or judges of the court of com- mon pleas for dereliction or neglect of duty, or for smy other cause deemed by the said court to be important for the conservation of the said trusts thus imposed upon them. All vacancies shall be, from time to time filled by the said court, on petition of the councils of said city, or any of its citizens. Sec. 2, Act of June 4, 1901, P. L. 429. (1091). It shall be the duty of the said directors of trusts to carefully invest and preserve the trust funds, and they shall have power to make such rules and by-laws for the proper regulation of their business not inconsistent with the terms annexed to any bequest or devise in the last will and testament of any decendent, and they shall have power to appoint and employ as many agents and employes as in their judgment shall be necessary for the proper discharge of the said trust or trusts, and in the name and in accordance with 614 the conditions of said trusts to do any and all things requisite for the proper administration and management of the property under their control. Sec. 3, Act of June 4, 1901, P. L. 429. (1092). The said directors, in the discharge of their duties and within the scope of their powers aforesaid, shall be considered agents or officers of said city, but no compensation or emolument what- ever shall be received by them for any services performed relating to the said trusts, nor shall any of them have or acquire any personal interest in any contract whatever made through them or their agents or employes. Sec. 4, Act of June 4, 1901, P. L. 429. 615 ARTICLE LXIX. ALDERMEN. (1093). Each of the wards of each of the said cities shall be en- titled to elect one alderman, who shall have all the powers and jurisdiction of a justice of the peace, and said alderman shall be elected ^ the municipal election next preceding the expiration of the commission of the justice of the peace, resident in the district out of which the said ward shall be created; if two justices of the peace reside therein, then the alderman shall be the successor "ol the justice of the peace whose commission shall first expire, and no successor shall be elected to the one still in office, but his commis- sion shall be and remain in full force until its expiration. Sec. 32, Act of May 23, 1874, P. L. 230. Each ward of third class cities, whether incorporated under the Act of 1874, or accepting its provisions, or incorporated under the Act of 1889, is entitled to elect one alderman as determined by the Act of 1874. The Acts of 1874 and 1889 are in pari materia. Com. vs. Hast- ings, 16 Pa. C. C. 425, s. c. Dauphin 303. There can be but one alderman in each ward of a city of the third class. Battis vs. Price, 2 Pears. 459. (1094). If any person shall think himself aggrieved by any judg- ment against him as defendant, by the mayor or any alderman of any of the said cities, of the third class, in any action, prosecution or proceeding for any fines, penalties or forfeitures, imposed or enacted by or under any law or statute of this Commonwealth relative to the said city, such person may, if the said judgment shall exceed the sum of five dollars, exclusive of costs, appeal from the said judgment to the court of common pleas of the county, in the manner and sub- ject to the same requirements as is provided by law for appeals from justices of the peace. Sec. 33, Act of May 23, 1874, P. L. 230. (1095). All actions, prosecutions, complaints and proceedings for violation of the laws and ordinances of said city, and for fines, penalties and forfeitures imposed or enacted thereby, which shall be 616 brought before the mayor or any alderman or aldermen of the said cities, respectively, shall be instituted in the corporate name of the said city ; those which shall be brought for violation of the laws of the Commonwealth relating to the said city, or for fines, penalties and forfeitures imposed and enacted thereby, shall be instituted in the name of the Commonwealth or as prescribed by the said laws of the Commonwealth, and all other actions^ prosecutions, complaints and proceedings so brought for fines, penalties or forfeitures imposed or enacted by the law or statutes of this Commonwealth, shall be instituted and conducted as provided by law ; and all warrants, writs, orders and process in and concerning the said actions, prosecutions, complaints and proceedings, or in and concerning any criminal prose- cutions, complaint, case or proceeding, made and issued by the said mayor and alderman, respectively, shall be made, directed and issued to the chief of police, or to any of the police constables or other con- stables of the said city, who shall respectively serve, obey and execute the same anywhere within the said city, or in the county of which it is part,, or in any of the cities or counties of this state, under the provisions of the acts of Assembly of this Commonwealth, or the same may be issued and served and executed anywhere in the said city and county by special constables or other persons as provided by law. Sec. 34, Act of May 23, 1874, P. L. 230. 617 ARTICLE LXX. PENAL PROVISIONS. COMMITMENTS. CITY PRISONS. (a) Illegal Use of Public Money. (1096). Whenever any moneys shall have been or may hereafter be collected by law, in any city, [county or township,] for any special purpose, and paid into the hands of the treasurer of such city, [county or township,] it shall be unlawful for such treasurer to apply such moneys, or any part thereof, to any other purpose than for which such moneys shall have been or may be collected; and every such misapplication shall be held and deemed a mis- demeanor, for which such treasurer may be indicted and tried in the court of quarter sessions of the proper city [or county] ; and upon conviction thereof, such treasurer shall be punished by fine of not less than the amount so misapplied, and by imprisonment in the jail of the proper city or county for not less than three months, nor more than one year: Provided, That prosecutions, for all offenses under this act, shall be commenced within six years from the time when such offense was committed. Sec. 1, Act of May 16, 18S7, P. L. S3S. (1097). If any officer [of this Commonwealth or] of any city, [borough, county or township thereof,] shall loan out, with or with- out interest, or return therefor, any money or valuable security re- ceived by him, or which may be in his possession, or under his con- trol by virtue of his office, he shall be guilty of a misdemeanor in office, and on conviction be sentenced to pay a fine not exceeding one thousand dollars, and undergo an imprisonment, by separate or solitary confinement at labor, not exceeding five years, and if still In office, be adjudged thereafter incapable of exercising the same, and the said office shall be forthwith declared vacant by the court passing sentence. Sec. 62, Act of March 31, 1860, P. L. 382. This section does not make the borrower responsible. Pittsburgh vs. Moreland, 47 P. L. J. 195. 618 For requirements of indictment under this section, see Com. v«. Quay, 7 D. R. 723; Com. vs. Rupp, 9 Watts 114. Public money as defined by this section properly includes the monev of a city and a city treasurer cannot loan the money of the city for his personal benefit. Com. vs. Marcer, 29 Leg. Int. 52. (1098). If any such officer shall enter into any contract or agree- ment with any bank, corporation or individual, or association of individuals, by which said officer is to derive any benefit, gain or advantage from the deposit with such bank, corporation or indi- vidual, or association, of any money or valuable security held by him, or which may be in his possession, or under his control by virtue of his said office, he shall be guilty of a misdemeanor, and on conviction, be sentenced to pay a fine not exceeding one thousand dollars, and to undergo an imprisonment not exceeding one year, and if still in office, be adjudged thereafter incapable of exercising the same, and the said office shall be forthwith declared vacant by the court passing sentence. Sec. 63, Act of March 31, 1860, P. L. 382. By analogy with County of Lackawanna vs. Duffy, 248 Pa. 575, the moneys of a city, with which the city treasurer is entrusted, do not belong to him, but to the city, and any interest paid by the banks in which the said moneys are deposited belongs to the city and not to the treasurer. (b) Embezzlement. (1099). If any [state, county, township or] municipal officer of this Commonwealth, charged with the collection, safe keeping, transfer, or disbursement of ptfblic money, shall convert to his own use, in any way whatsoever, or shall use by way of investment in any kind of property or merchandise, any portion of the public money entrusted to him for collection, safe keeping, transfer or disbursement, or shall prove a defaulter, or fail to pay over the same when thereunto legally required by the [state, county or township treasurer or other] proper officer or person authorized to demand and receive the same, every such act shall be deemed and judged to be an embezzlement of so much of the said money as shall be thus taken, converted, invested, used or unaccounted for, which is hereby declared a misdemeanor; and every such officer, and every person or persons whomsoever aiding or abetting or being in any way accessory to said act, and being thereof convicted, shall be sentenced to an imprisonment, by separate or solitary confinement at labor, not exceeding five years, and pay a fine equal to the amount of the money embezzled. Sec. 65, Act of March 31, 1860, P. L. 382. Each of the acts specified in this section is a complete oilense, but when two or more of such are in fact only successive steps in one 619 appropriation of the same money, they then constitute but a single offense, and may be charged in the same indictment. Com. vs. Ment- zer, 152 Pa. 846, affirming 10 Lane. L. H. 188. As to sufficiency of indictment, see Com. vs. Carson 21 Super. Ct. 48. On a trial for being accessory to an embezzlement, the guilt of the principal must be first proved either by the record of his conviction or otherwise. Com. vs. House, 10 Super. Ct. 259. On question of evidence generally, see Com. vs. House, 8 Super. Ct 92. In the civil courts constructive demands may be made and are recognized, but not so in a criminal court in the prosecution for an offense having as one of its statutory ingredients a refusal to pay on demand. A demand there means actual demand. Com. vs. Shoener, 212 Pa. 527, s. c. 216 Pa. 71. A public officer cannot be convicted for failing to pay over public moneys on proper demand, as provided in this section, until an actual, and not a constructive, demand has been made by the proper officer or party authorized to demand and receive the same, and no offense is committed until such dem?nd has' been made, and the statute of limitations begins to run from the date of the demand. Com. vs. Shoener, 216 Pa. 71, affirming 30 Super. Ct. 321. Where during the term of office of a tax collector it is discovered that he has appropriated money received as taxes to his own use, and such conversion and appropriation is established by competent evi- dence, the offense is complete. In such a case it is not necessary to show a prior demand ty some one authorized to make such demand. Com. vs. Lisler, 67 Super. Ct. 1, affiirming 2 North. L. J. 430; 12 Sch. L. R. 408; 3 North. L. J. 138. (1100). If any person charged with the collection, safe keeping, or transfer of any [state, county, township, school], city, [borough,] or municipal taxes, under any law or laws of this Commonwealth, shall convert or appropriate the moneys so collected, or any part thereof, to his own use in any way whatever, or shall use by way of investment in any kind of property or merchandise any portion of the money so collected by him from such tax or taxes, and shall prove a defaulter or fail to pay over the same or any part thereof at the time or times, place or places, required by law and to the person or persons legally authorized to demand and receive the same, every such act shall be deemed and adjudged to be an em- bezzlement of so much of said money as shall be thus taken, con- verted, appropriated, embezzled, used, or unaccounted for, which is hereby declared a misdemeanor; and every such tax collector and every person or persons whomsoever aiding or abetting or being in any way accessory to such act, and, being thereof convicted, shall be sentenced to an imprisonment not exceeding five years, or pay a fine not exceeding five thousand dollars, or both, at the discretion of the court. Sec. 1, Act of June 3, 1885, P. L. 72, No. 45. 620 As to sufiSciency of indictment hereunder see Com. vs. Barge, 11 Super. Ct. 164. An agreement between an insolvent tax collector and his assignee that unpaid taxes legally assessed be appropriated to the payment of the individual debts of the collector and credited to the property owner is void, as against public policy, and because specially prohibited by this act. Com. vs. Mahon, 12 Super. Ct. 616. A tax collector is lia"ble under this act, if in default two years prior to the indictment. Com. vs. McCullough, 19 Super. Ct. 412. A court in imposing sentence is limited to the punishment prescribe 1 by the terms of the violated statute. This act provides for a sentence not exceeding five years; the Act of June 26, 1895, P. L. 374 limits simple imprisonment to the county jail, hence a sentence for a crime under the Act of 188S must be in the county jail and not in the peni- tentiary. Com. vs. John H. Barge, 11 Super. Ct. 164. (1101. If any person, being an officer, [director,] superintendent, manager, [receiver,] employe, agent, attorney, [broker, or member] of any [bank or other body corporate, or public company,] municipal [or quasi municipal] corporation, shall fraudently take, convert or apply to his own use, or the use of any other person, any of the money or other property of such [bank, body corporate or company] municipal [or quasi municipal] corporation, [or belonging to any person or persons, corporation or association, and deposited therein, or in possession thereof,] he shall be guilty of a misdemeanor. Sec. 116, Act of March 31, 1860, P. L. 382, as amended by Sec. 1, Act of June 12, 1878, P. L. 196. Sec. 5, of the Act of 1878, fixes the punishment at a fine not exceed- ing one thousand dollars, and imprisonment by separate or solitary confinement at labor not exceeding six years. See infra. Sec. (1108). An employe of the Philadelphia gas works was held to be an em- ploye of a municipal or quasi-municipal corporation within this act. Culp vs. Com. 109 Pa. 363, affirming 16 Phila. 496. As to the sufficiency of an indictment hereunder see Com. vs. Hot- tenstein 2 Woodw. 477; Com. vs. Koons, 1 Kulp 134, s. c. 9 Luz. L. R. Rep. 171. For time within which action must be brought under this section, see section (1109). (c) Public Contracts. (1102). It shall not be lawful for any councilman, [burgess,] [trustee, manager or director,] of any [corporation] municipality or public institution, to be at the same time a treasurer, secretary or other officer, subordinate to the president and directors, who shall receive a salary therefrom, or be the surety of such officer, nor shall any member of any [corporation or] public institution, or any officer or agent thereof, be in anyivise interested in any contract for the sale or furnishing of any supplies, or materials to be furnished to, or for the use of any [corporation], municipality or public insti- 621 tution of which he shall be a [member or] officer, or for which he shall be an agent, nor directly nor indirectly interested therein, nor receive any reward or gratuity from any person interested in such, contract or sale ; and any person violating these provisions, or either of them, shall forfeit his membership in such [corporation], munic- ipality or institution, and his office or appointment thereunder, and shall be held guilty of a misdemeanor, and on conviction thereof be sentenced to pay a fine not exceeding five hundred dollars: [Pro- vided, that nothing in this section contained, shall prevent a vice president of any bank from being a director of such bank, or of re- ceiving a salary as vice president] . Sec. 66, Act of March 31, 1860, P. L. 382. A councilman cannot be surety on the bond of the city treasurer. Com. vs. Allen, 70 Pa. 465. But a county commissioner may be surety on the official bond of the county treasurer. Com. vs. Krickbaum, 199 Pa. 351. The fact that one auditor is surety for the treasurer whose accounts he audits does not impeach the settlement. Hamburg Borough vs. Doering, 8 D. R. 131. An indictment will not lie against a borough councilman who fur- nishes, supplies or materials to the borough, unless he is a member of some corporation or public institution which is interested in the contract with the borough. Com. vs. Naylor, 8 Lack. L. N. 20. This act applies to a councilman who is a stockholder in a com- pany that has a contract to furnish the municipality with electric lights, and this though the contract was made with the company of which the councilman was a stockholder and secretary previous to his being elected to council. Com. vs. De Camp 177 Pa. 112, s. c. 39 W. N. C. 69. Com. vs. McAvoy, 9 Kulp 168. See appeal of Harrison Township 20 Pa. C. C. 54 s. c. 45 P. L. J. 196 This act does not apply to officers of a private corporation Key- stone Surgical Supply Co. vs. Bate, 187 Pa. 460. And trustees of an insurance company, one of whom is its solicitor, the other its travel- ing representative, neither being denominated an officer by its by- laws, are not within this section. Com. vs. Christian, 9 Phila. 556, The manifest intent of this section is that an officer of a munici- pality shall not make any contract in which he is necessarily in- terested. Appeal of Harrison Township, 20 Pa. C. C. 54, s. c. 45 P. L. J. 196. But this financial interest must be established, not merely alleged. Clapper vs. Greensburg 48 P. L. J. 112. A contract between a municipality entered into through its coun- cils, and a private corporation, some of whose officers and stockholders are councilmen, is void. Kennett Electric Light Company vs. Kennett Sq. Borough, 4 D. R. 707, s. c. 9 York 65. 6 Del. Co. 229. A borough ordinance providing for a contract with a water com- pany for a supply of water to the borough, enacted when a majority of the councilmen were stockholders in the water company, is il- legal and void and no liability can be enforced thereon; nor will the fact that, for several years afterward the borough used and paid for water supplied under the contract, and that in some of those years, when the bills were passed, less than a majority, or none at all, of 622 the councilmen were stocknoiaers of the water company, constitute a ratification of such contract. Borough of Milford vs. Milford Water Co. 124 Pa. 610. The words "any member of any corporation" refer to the corpora- tion purchasing or receiving the supplies or materials, and of whicu the individual is a member, an oiHcer or an agent. It is plainly in- tended to prevent anyone who is a member, officer or agent of any corporation, municipality or public institution from being in anywise interested, directly or indirectly, in the furnishing of supplies or ma- terials to the corporation, municipality or public institution with which he is officially connected. The statute intends to prohibit persons from occupying a position in which they will be virtually contracting with themselves, so that a councilman who is co-owner, with his brother of a quarry and joins in ratifying by councils, of a contract with his brother to supply the municipality with stone from this quarry, may be convicted of violating this section. Com. vs. Witman, 217 Pa. 411. While a stockholder and the secretary of a water company, who is also a member of a borough council, is disqualified from voting on an ordinance for the supply of the borough with water by said company, yet the ordinance is not rendered invalid if it appears that the con- tract is legitimate, and that a majority of the members of the coun- cil, without counting such member, voted for such ordinance. Marshall vs. EUwood City Borough, 189 Pa. 348; s. c. 43 W. N. C. 482; Com. vs. Naylor, 8 Lack. L. N. 20; Crawford vs. Borough of Clifton Heights, 8 DeL Co. 313 s. c. IS York 119. "Supplies" and "materials'.' include horses, wagons, and labor. In re Hazle Township, 1 D. R. 813, s. c. 6 Kulp. 491; also coal and wood; Wolford vs. School Dist. of Upper Salford, 46 Super. Ct 1, affirming 8 Just. L. R. 134, 135. A borough cannot enter into a contract for sewer supplies with a borough officer. Riebe vs. Walton, 18 Pa. C. C. 289, s. c. sub nomine Riebe vs. Lansford Borough, 5 D. R. 557. The fact that a person, while a member of the town council, is also a member of a firm, which in the usual course of its business fur- nishes certain supplies for ordinary repairs and ordinary use in a de- partment of the borough, without previous contract^ is not sufficient to subject such councilman to the penal provisions of this section. Com. vs. Hilibish, 12 Pa. C. C. 25, Com. ex rel. vs. Sword, 63 P. L. J. 145, s. c. 6 M. L. R. 201. This act does not apply to the purchase by a councilman of sup- plies from a corporation without the knowledge of another member of the council who was treasurer of the corporation. Com. vs. Swords, 6 M. L. R. 201, s. c. 63 P. L. J. 145; nor does it extend to a health of- ficer so as to prohibit this receiving a salary from a municipality. Snyder vs. Brookville Boro. 12 Just. L. R. 234. A councilman, manager and stockholder of a concern furnishing the borough with supplies is removable on quo warranto under this sec- tion. Com. vs. Collins, 18 D. R. 893. This statute is penal and must be strictly construed. Money is not within its letter, and certainly is not within is spirit, and there- fore the act does not apply to a^case where a borough council author- 623 izes a loan on a bank, and a member of the council authorizing such loan is also a member of the banking institution. Long vs. Lemoyne Boro. 222 Pa. 311, 318, A stockholder of a gas company, who is also superintendent, which company furnishes gas to a borough is disqualified from holding of- fice under this act and the Act of May 28, 1907, P. L. 262. Com. ex rel. vs. Layton, 59 P. L. J. 488, 489, s. c. 3 M. L. R. 74. This section does not confine the interest of a member of town council to a money or pecuniary interest coming directly to the mem- ber of the corporation. Members of council who are also members of a fire company, violate the act of Assembly, if they enter into a contract between the borough and such fire company and will be ousted from their office of council. Com. ex rel. Brown vs. Pfeil et al. 31 York 89, s. c. 13 Sch. L.R. 292, 3 N. L. J. 167. One financially interested in a public service corporation of a munici- pality cannot remain a member of the school board during the life of a contract of said corporation to supply schools with its product. Com. vs. Hauser, 19 Luz. 387. A contract made by the supervisors of a township of the second class for lighting village streets will be void if one of the supervisors is a stockholder in the electric company, with which the contract is made, since a township is a municipality and included within the terms of the act. Dreese et al. vs. Beaver Township Supervisors, et al. 24 D. R. 586; 42 Pa. C. C. 242. A councilman employed by a water company furnishing water to a borough under contract, on which he never voted or with which he was never concerned, cannot be removed by quo warranto under this act. Com. vs. Wineman, 21 D. R. 911, s. c. 1 West L. J. 238; 4 M. L. R. 31. This section and the Act of May 28, 1907, P. L. 262, do not con- travene Art. 6, Sec. 4, of the constitution, and quo warranto is the proper proceeding to declare the office of councilman forfeited. Com. vs. Larden, 18 D. R. 716, s. c. 35 Pa. C. C. 631. The furnishing by a borough councilman of teams and drivers for the public work of the borough and receiving compensation therefor is furnishing supplies and cause for removal upon quo warranto. Com. ex rel. vs. Cloud, 19 D. R. 299; s. c. 2 M. L. R. 3; 36 Pa. C. C. 190. On a quo warranto the court will give judgment of ouster against an offending councilman, under this section, without a previous con- viction on an indictment. Com. vs. Allen 70 Pa. 465. A councilman who is surety on the bond of the city treasurer will be ousted on quo warranto. Com. vs. Allen 70 Psu 465; and so will a councilman who is a stockholder in and secretary of a corporation which has a contract for furnishing the city with electric lights. Com. vs. DeCamp 177 Pa. 112. As no member of a governing body may vote on any question in- volving his own character or conduct, his right as a member or his pecuniary interest, if that be immediate, particular and distinct from the public interest, a member of a borough council is disqualified from voting for a resolution accepting his resignation from the council. If elected water superintendent of the borough after such resignation 624 he will be ousted on quo warranto. Com. vs. Raudenbush 249 Pa. 86. One who is a stockholder in a corporation holding a contract with a borough at the time of his election as councilman thereof who bona fide parts with his stock before taking his seat as a member of coun- cil does not forfeit his right to the office. Com. ex rel. Gast vs. Kelly, 255 Pa. 475. (1103). Any .person who shall contract for the sale, or sell any supplies or materials as aforesaid, and shall cause to be interested in any such contract or sale, any [member], officer or agent, of any [corporation], municipality [or institution] or give or offer to give any such person^any reward or gratuity, to influence him or them in the discharge of their official duties, shall not be capable of re- covering any thing upon any contract or sale, in relation to which he may have so practiced or attempted to practice corruptly, but the same shall be void, and such party shall be guilty of a misde- meanor, and on conviction thereof, be sentenced to pay a fine not exceeding five hundred dollars. Sec. 67, Act of March 31, 1860, P. L. 382. (d) Offenses Against the Currency. (1104). If any officer of any municipal [or other] corporation, not authorized by law shall be instrumental in, or shall consent to or connive at the making or issuing of any note, bill, check, ticket or order, intended to be used as currency, he shall be guilty of a misdemeanor, and on conviction thereof, be sentenced to pay a fine not exceeding one thousand dollars for each offense, and to undergo an imprisonment not exceeding six months. Sec. 68, Act of March 31, 1860, P. L. 382. (e) Public Accounts. (1105). If any person, being an officer, [director,] superintendent, manager, [receiver], employe, agent, attorney, [broker, or member] of any [body corporate or public company, or] municipal [or quasi municipal] corporation, shall as such receive or possess himself of any money or other property of such [corporate or public company] municipal [or quasi municipal] corporation, otherwise than in pay- ment to him of a just debt or demand, and shall, with intent to de- fraud, omit to make or cause or direct to be made, a full and true entry thereof in the books and accounts of such [body corporate, public company,] municipal [or quasi municipal] corporation, he shall be guilty of a misdemeanor. Sec. 117, Act of March 31, 1860, P. L. 382, as amended by Sec. 2, Act of June 12, 1878, P. L. 196. 625 This section and the other sections of this act, amending the Act oi 1860, are not unconstitutional because they recite sections only as amended. Com. vs. Bamberger No. 1, 33 Lane. L. R. 65; s. c. 25 D. R. 652. Com. vs. Flecker, 17 Pa. C. C. 671, s. c. 8 Kulp. 225. For penalty provided for violation of this section and for time within which action must be brought hereunder, see sections (1108) and (1109) infra. (1106). If any officer, [director,] superintendent, manager, [re- ceiver,] employe, agent, attorney, [broker, or member] of any [bank or other body corporate, or public company] municipal, [or quasi municipal] corporation, shall, with intent to defraud, destroy, alter, mutilate or falsify any of the books, papers, writings or securities belonging to the [bank, body corporate or public company], municipal [or .quasi municipal] corporation, of which he is a [director], officer, superintendent, manager [receiver], employe, agent, attorney, [broker or member,] or shall make or concur in the making of any false entry or any material omission in any book of accounts or other document, he shall be guilty of a misdemeanor. Sec. 118, Act of March 31, 1860, P. L. 382, as amended by Sec. 3, Act of June 12, 1878, P. L. 196. For penalty provided for violation of and for time within which action must be brought under this section, see Sections (1108) and (1109) infra. (f) False Statements. (1107). If any officer, [director,] superintendent, manager, [re- ceiver,] employe, agent, attorney, [broker, or member] of any [bank or other body corporate, or public company], municipal [or quasi municipal] corporation, shall make, circulate or publish, or concur in making, circulating or publishing, any written or printed state- ment or account, which he shall know to be false in any particular, with intent to deceive or defraud any member, [shareholder] or cred- itor of such [body corporate or public company] , municipal [or quasi municipal] corporation, or with intent to induce any person [to be- come a shareholder or partner therein, or] to interest or advance any money or property to such body corporate [or public company,] or to enter into any security for the benefit thereof, shall be guilty of a misdemeanor. Sec. 119, Act of March 31, 1860, P. L. 382, as amended by Sec. 4, Act of June 12, 1878, P. L. 196. (1108). Every person found guilty of a misdemeanor under any or either of the preceding sections of this title, wherein the nature and extent of the punishment is not specified, shall be sentenced to pay 626 a fine not exceeding one thousand dollars, and to undergo an im- prisonment by separate or solitary confinement at labor not exceed- ing six years. Sec. 5, Act of June 12, 1878, P. L. 196. (1109). Indictments for misdemeanors committed by any officer, [director, receiver,] superintendent, manager, [broker,] attorney, agent, employe or member of any [bank, body corporate or public company], municipal [or quasi municipal] corporation, may be com- menced and prosecuted at any time within four years from the time the alleged offense shall have been committed. Sec. 6, Act of June 12, 1878, P. L. 196. The limitation period is fixed by the act under which the indictment is found. Com. vs. Swab. 59 Super. Ct. 485; Com. vs. Schering, 61 Super. Ct. 261. Where the statute under which the prosecution is brought requires a demand, it is an actual and not a constructive demand and the statute of limitations begins to run from the date that the demand was made. Com. vs. Shoener, 216 Pa. 71, affirming 30 Super. Ct. 321. An indictment commenced and prosecuted at any time within four years from the time the alleged offense was committed is within the statutory limitation. Com. vs. Clevenstine, 66 Super. Ct. 125. Culp vs. Com. 109 Pa. 363. The limitation - of four years prescribed in this section does not apply to the prosecution of an attorney-at-law for misappropriation of moneys entrusted to his care. Com. vs. Bretz, 28 D. R. 918; 1919 Dauphin 29; 67 P. L. J. 153. (g) Use of City Prisons. (1110). Sheriffs, constables, members of the State constabulary, or other persons authorized by the laws of this Commonwealth to make arrests, hereafter shall have the use, for a period not to exceed forty-eight hours, of [borough and township lockups and] city [or county] prisons, for the detention of prisoners until they can be dis- posed of according to law, if found necessary by the officer in charge. Sec. 1, Act of April 23, 1909, P. L. 141. (1111). [Boroughs], cities, and [townships] shall be entitled to receive a compensation of fifty cents per day, of twenty-four hours, for each prisoner so incarcerated, from the treasury of the county having jurisdiction over the prisoner. Sec. 2, Act of April 23, 1909, P. L. 141. Under this act the expense of maintaining prisoners confined in city, borough or township lock-ups for forty-eight hours, charged with statutory oflFenses must be borne by the county, but there is no liability for those' charged with violation of municipal ordinances. McKees- port vs. Allegheny County, 21 D. R. 326; 60 P. L. J. 248. 627 (h) Maintenance o£ City Prisoners. (1112). Hereafter when a prisoner shall be committed to any county jail or prison in this Commonwealth, either for the non- payment of a fine or penalty for the violation of any city [or bor- ough] ordinance, [or any ordinance of a township of the first class,] or while awaiting a hearing upon any charge for the violation of any city [or borough] ordinance, [or any ordinance of a township of the first class,] the costs of proceedings and the expenses of maintaining sucn prisoner during his confinement by virtue of any such commit- ment, shall be borne and paid by the city, [borough, or township of the first class] whose ordinances were alleged to have been vio- lated, or to which any such fines or penalties are payable ; and the county in which such city, [borough or township of the first class] is located shall not be liable to the sheriff for any such maintenance, or to any officer, magistrate, or person for any costs of such pro- ceedings. Sec. 1, Act of June 7, 1911, P. L. 677. This act supplies the Act of March 28, 1905, P. L. 61. Under the Act of 1905, P. L. 61, it was held that the city was not liable for the sheriff's fees for commitment and discharge of such prisoners as are included within the provisions of the act. Manifold vs. City of York, 15 D. R. 101; 19 York 85. See Sedgwick vs. Erie Co., 7 Just. L. R. 218. The Act of March 28, 190S, P. L. 61, repeals the local Act of March 28, 1870, P. L. 619, Sec. 30, relating to the maintenance of prisoners in the prison of Clinton County. Mussina vs. Clinton Co. 35 Pa. C C. 155; 17 D. R. 1093. The Act of March 28, 1905, P. L. 61, applies to Lehigh County, not- withstanding its special Act of April 6, 1869, P. L. 716; it is a gen- eral act and applies not merely to counties where the sheriff has charge of the prisoners in the county jail. "The expense of main- taining," as used in the act means only the board of prisoners, and not everything that is required for their support including room, cloth- . ing, bed, food and fuel. County of Lehigh vs. City of Allentown, 4 Leb. 176. 62S ARTICLE LXXI. ACTIONS BY AND AGAINST CITIES. (a) Affidavits of Defense. (1113). [Counties,] cities, [boroughs, townships, school districts, and other municipalities] shall not be required to file an affidavit of defense. Part of Sec. 12, Act of May 14, 191S, P. L. 483, as amended by Sec. 1, Act of May 3, 1917, P. L. 149. The Act of April 26, 1893, P. L. 26, exempting municipal corpora- tions from filing affidavits of defense in actions of assumpsit was re- pealed by the general Practice Act of 1915, P. L. 483, by necessary implication, but by the Act of May 3, 1917, P. L. 149, amending the twelfth section of the Act of 1915, municipalities are again exempted from the obligation to file an affidavit of defense. The court will, as an exercise of good discretion, open a judgment entered under the Practice Act of 1915, against a municipality for want of an affidavit of defense, and allow a reasonable time to file the affidavit. Walsh vs. Borough of Throop, 18 Lack. J. 130. (b) Injunction Bonds and Appeals in Equity. (1114). No injunctions shall be issued by any court or judge, until the party applying for the same shall h^ve given bond with sufficient sureties, to be approved by said court or judge, conditioned to indemnify the other party for all damages that may be sustained by reason of such injunction. Sec. 1, Act of May 6, 1844, P. L. 564. (1115). The first section of said act shall not be held or con- strued to apply to any bill or proceedings in equity now pending or which may be hereafter instituted, wherein [the Commonwealth or] any city [or county of this Commonwealth] is libellant, plain- tiff or complainant, nor shall any city [or county] be required to give security on appeal to the supreme court in any proceeding in equity: Provided, however. That in all such cases it shall be the duty of the court in which the same may be pending, as far as 629 practicable to expedite the hearing and final determination thereof by such rules, order or orders, not inconsistent with the laws of this Commonwealth, as justice and equity may require. Sec. 1, Act of November 6, 1856 (1857), P. L. 797. (c) Actions on Surety Company Bonds. (1116). It shall be lawful for any [borough,] city [or other municipality] of this Commonwealth, to which is given the bond or other obligation of any officer thereof for the performance of his duties, or the bond or other obligation of any contractor therewith for the performance of his contract, in which bond or obligation any corporation or surety company is the surety, to bring any suit, action or other legal proceeding upon said bond or obligation in the county in which the respective [borough,] city [or other munici- pality] is situate, with like effect as if the said corporation or surety company were a resident of the said county. Sec. 1, Act of May 2, 1901, P. L. 111. (1117). The summons or other process shall be served upon the said corporation or surety company defendant by reading the same in the hearing of any president, vice president, secretary, chief clerk, treasurer, or in the hearing of any other officer of said company, or of any director or agent thereof; or by giving any of the afore- said officers or agents notice of the contents of said summons or other process, and giving him a true and attested copy thereof. If any of the aforesaid officers or agents cannot conveniently be found, then such service may be made by leaving a true and attested copy of the summons or other process at the dwelling house of such of- ficer or agent, with an adult member of the family ; and if said officer or agent resides in the family of another, then said attested copy may be left with an adult member of the family with which such officer or agent resides. Where the corporation or surety company defendant is a foreign corporation, authorized to do business in this State, the summons or other process may be served in the manner provided by law for the service of a summons upon any duly ap- pointed and registered agent of said foreign corporation or company, resident in this State. Sec. 2, Act of May 2, 1901, P. L. 111. (1118). The said summons or other process, hereinbefore pro- vided for, shall be served by the sheriff or his deputy within the county in which the writ issues; but when the corporation, surety company, or the officers or agents thereof, are non-residents, the said sheriff shall deputize to serve said summons or other process 630 the sheriff of any other county in which the corporation or surety company defendant is located, or the officers thereof reside; or in which the registered State agent is resident, in cases where a "foreign corporation or surety company is defendant ; but the mileage for ser- vice in the latter cases shall be computed only from the county seat in which the said deputized sheriff resides. Sec. 3, Act of May 2, 1901, P. L. 111. 631 ARTICLE LXXII. BUREAU OF MUNICIPALITIES. (1119). The Secretary of Internal Affairs shall establish in the said Department of Internal Affairs a Bureau of Municipalities. The said Bureau shall gather, classify, index, make available, and disseminate data, statistical information, and advice that may be helpful in improving the methods of administration and municipal development in the several municipalities of the Commonwealth; and shall maintain, for the benefit of the municipalities, a publicity service to install or assist in the installation and establishment of modern systems of accounting in the various municipalities of the State, and in order to promote a comprehensive plan or series of plans for the probable future requirements of cities, [boroughs or town- ships] of the Commonwealth, either separately or jointly, in respect to a system of traffic thoroughfares and other highways or main highways, transportation of every sort suitably co-ordinated, sites for public buildings, parks, parkways, playgrounds, and other public uses, the preservation of natural and historic features, and any and all public improvements tending to the advantage of municipalities [or townships] affected, tending to their advantage as a place of business and residence, and to either make or secure or assist in making or securing the necessary surveys, plans, and information. Sec. 1, Act of April 4, 1919, P. L. 45. (1120). The Secretary of Internal Affairs is hereby authorized to employ a Chief of Bureau of Municipalities, who in his judgment shall be qualified to perform the duties herein described. He is also authorized to employ such engineering, accounting, clerical, stenographic, and other expert service, relating to the gathering of information, its distribution and publication and other duties incident to the purpose of the Bureau, or transfer to such duties in this Bureau as he may find advisable the work and services of other bureaus or of others employed in the Department. The sal- aries of the employes appointed under the provisions of this act 632 shall be fixed by the Secretary of Internal Affairs, and shall be paid from the funds appropriated to the said Department of Internal Affairs. Sec. 2, Act of April 4, 1919, P. L. 45. (1121). It is hereby made the duty of every city, [borough, township, or county] official to furnish such information as may be requested by the Chief of the Bureau of Municipalities or his duly authorized deputy. Sec. 3, Act of April 4, 1919, P. L. 45. It is the duty of city and borough officials to furnish any informa- tion requested of them under this section for which services they are entitled to no compensation, but such duty is not imposed upon anj official other than those expressly designated. In re Bureau of Mun. Opinion of Emerson Collins, Dep. Atty. Gen. 4 Dept Rep. 767. 633 634 CHRONOLOGICAL TABLE OF STATUTES. References are to section numbers in ( ). Constitution of Pennsylvania, Art Art. Art Art III, Sec. 7, Sec. 27, IX, Sec. 7, Sec. 8, Sec. 9, Sec. 10, Sec. 15, XII, Sec. XV, Sec. 265, 501, 1802, April 1832, May 1844, April 1844, May 1849, April 1856, Nov. 1857, May 1860, March 31, P. L. 382, 6, P. L. 5, P. L. 29, P. L. 486, 6. P. L. 564, 5, P. L. 397, 6, (1857), P. L. 797, 16, P. L. 535, 1^4, AprH 30, P. L. 218, 1869, April 17, P. L. 74, 1869, April 20, P. L. 81, 1871, June 15, P. L. 391, 1873, May 1, P. L. 87, 2, 1, Sec, 2, Sec. 3, Sec. Sec. 1. 1 Sec. 42, Sec. 1, Sec. 1, Sec. 1, Sec. 1, Sec. 62, Sec. 63, Sec. 65, ^Sec. 66, Sec. 67, Sec. 68, Sec. 116 Sec. 117 Sec. 118 Sec. 119 Sea 4 (Amended), . Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. 1, 2, 3, 4, 5, 1, 1, 1 2, 3. 4. (Amended), (Amended), (Amended), (Amended), (Amended), (Amended), . .._ 215 .... 989 __ 465 .._ 442 .... 478 .._ 446 ..443,457 .... 275 ._ 218 _.. 444 „„ 445 ._ 69n _ 579 .... 477 _ 1114 .._ 868 ... 1115 ._. 1096 ._ 1097 .... 1098 _ 1099 _ 1102 _ 1103 _ 1104 ._ 1101 ... 1105 „ 1106 1107 476 1020 1021 1022 1023 1024 920 498 479 480 481 482 635 1874, April 20, P. L. 65, 1874, May IS, P. L. 186, 1874, May 23, P. L. 222, 1874, May 23, P. L. 230, 1874, June 9, P. L. 282, 1874, June 13, P. L. 283, 1875, March 18, P. L. 15, 1875, April 12, P. L. 46, 1876, May 1, P. L. 86, Sec. 1 447 Sec. 2 (Amended), 448 Sec. 3 (Amended), 449 Sec. 4 (Amended), 450 Sec. 5, 455 Sec. 6 (Amended), 456 Sec. 7, . .'. 462 Sec. 1. 276 Sec. 2, 277 Sec. 3, 278 Sec. 7 279 Sec. 8, 281 Sec. 9, 282 Sec. 10, 284 Sec. 11 285 Sec. 12, 286 Sec. 13, 287 Sec. 14, 288 Sec. 1, 483 Sec. S, 18n Sec. 11, 195n Sec. 13, 47n Sec. 20, Par. 1 _„ 85n Sec. 20, CI. 2, 47n Sec. 20, CI. 5, 67n Sec. 20, CI. 26, 73n Sec. 29, 52n Sec. 32, _ 1093 Sec. 33, _ 1094 Sec. 34 1095 Sec 37, 387n Sec. 38, 365n Sec. 39, CI. 6, 124n Sec. 46, CI. 2 „._ 141 CI. 4 142 CI. 5 143 CI. 6 144 CI. 8, 145 CI. 9, 146 CI. 10, 147 Sec. 47, lS4n Sec 49, 156a Sec 56, 188n Sec. 57, 208a Sec. 58, 208b Sec. 59, 447a Sec. 1 _ 574,917 Sec. 1, 504 Sec. 2, 505 Sec. 6, — 13a Sec. 1, 456 Sec. 1, 527 Sec 2, 523 Sec. 3, 529 636 1876, May 8, P. L. 128, 1876, May 8, P. L. 132, 1877, April 18, P. L. 55, 1878, June 12, P. L. 196, 1879, May 2, P. L. 47, 1879, June 13, P. L. 146, 1881, April 14, P. L. 10, 1881, June 8, P. L. 68, 1881, June 10, P. L. 109, 1883, May 17, P. L. 31, 1883, June 20, P. L. 136, 1885, June 3, P. L. 72, 1887, May 12, P. L. 96, 1887, May 24. P. L. 182, 1887, May 24, P. L. 185, 1887, May 24, P. L. 203, 1887, May 25, P. L. 267, 1889, May 9, P. L. 173, 1889, ifay 13, P. L. 192, 1889, May 23, P. L. 277, Art. Art. Art. Art Art. Sec. Sec Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec Sec. Sec Sec. Sec. Sec Sec Sec. Sec. Sec. Sec Sec. Sec. III. Sec V, Sec VI, Sec Sec Sec VII, Sec. Sec Sec. Sec Sec IX, Sec Sec Sec. Sec 1, 1. 2. 3. 5. 1 2, 3, 4. 5, 6, 1. 1 1 1, 1. 2. 3. 1. 1, 2. 1. 1 2 1 2. 3. 4, 1. 2. 1. 2. 1 2 1. 1, 2, 5, 3. 463 1 672 674 377 1101 1 105 1105 1 107 1 lOS 1 109 479 (Amended), .. .' 636, (Amended), 464 47n 934 935 936 933 332 , 333 . 1100 866 (Amended), . (Amended) 867 (Amended), 1027 1028 1029 1030 : 932 : . 933 250,544 545 664 -665 556 1078 1079 14n 76n (Amended), . (Amended), . CI. 27, CI. 29, 68a CI. 32, 71n CI. 34, 73n 91n .......... 91n 96n 91n 107n 108n 109n ..: 1 1 3n 123n, 124n 1 14n, 124n 1 14n, 124n 124a 637 1889, May 23, P. L. 277, Art. IX— (Continued). Sec. 5, 116n,124n Sec. 6, 124n Art. XI, Sec. 1, 134 Sec. 2, 135 Sec. 3, 136 Sec. 4, 137 Sec. 5, (Amended), 138 Sec. 6, 139 Sec. 7, 140 Art. XII. Sec. 1, 82a Sec. 2, 82b Sec. 3, 82c Sec. 4, 82d Sec. 5, 82e Sec. 6, 82f Sec. 7 82g Sec. 8, 82h Sec. 9 821 Sec. 10, 82i Sec. 11, 82k Sec. 12, 821 Art. XIII, Sec. S, lS6ti Art. XIV, Sec. 3, lS9n, 498n Sec. 4, 160n Sec. 5, 161n Art. XV. Sec. S, ^.. 179.1 Sec. 12 (Amended) „390, 397n Sec. 20 (Amended) 398a Sec. 22 (Amended), 387 Sec. 25 391 Sec. 26, 49n Sec. 27, 45n 49d lS2d 399n 428n Art. XVIII , Soc. 2, Art. XIX, , Sec. 2, 1891, April 15, P. L. 17, Sec. 1, 1891, May 16, P. L. 64, Sec. Sec. 1. 2. 18»1, May 16, P.L. 75, Sec. Sec. Seo. Sec. 1 2 3. 4. Sec. 28, 49b lS2b Sec. 29, 49= 152c Sec. 31, 49a 152a 158a 196n 209n 523n 251 252 (Amended), 484 (Amended), 497 499 486 638 1891, May 16, P. L. 75— (Continued). 1891. May 23, P. L. 109, 1891, May 26. P. L. 116. 1891, June 2, P. L. 172, 1891, June 24, P. L. 394, 1893, May 24, P. L. 129. 1893, May 26. P. L. 139, 1893, May 26, P. L. 154, 1893. June 3, P. L. 284, 1893. June 12. P. L, 453, 1893, June 12, P. L. 459, 1895, May 21, P. L. 89, 1895, May 22, P. L. 105. 1«95, May 23. P. L. 118, 1895, Ju«e 8, P. L. 188, Sec. Sec. Sec. Sec. Sec. 492 502 517 8 (Amended) , 523, 580. 642 9 (Amended). 530 5, 6 (Amended), . 7. Sec. 10. Sec. 11, Sec. 12 (Amended), . Sec 1, Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. 1. 1, 1. 1. 2, 3, 1, 2, 3. 4. 5. Preamble Sec. 1. 1895. Jme m> P. I,. 203. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sea Sec. Sec Sec. Sec. Sec Sec Sec Sec Sec. Sec. Sec Sec S«e. 20 (Ameaded), . 2, 3. 4> 5. 1. 2. 3 4 1. 2. 3. ...... 4 5 6. 7. 8. 1, 1, 2, 1 2, 3, 5. 1. 2, 3. 4. 5, 6. 7. (Amended), . .._518, 533 534 .._521, 869 494 — 523n : 506 87P — 306 . 307 308 637 638 639 640 641 591 592 593 594 596 597 246 , 247 248 249 536 537 53S 53*^ 540 541 542 543 484 — 519 520 524 525 179« .390. 397« 879 880 881 882 883 __ 884 .__ 885 ...._ 280 639 1895, June 24, P. L. 232, 1895, June 24, P. L. 263, 1895, June 25, P. L. 269, 1895, June 25. P. L. 275, 1895, June 25, P. L. 298, 1895, June 26, P. L. 331, 1895, June 26, P. L. 332, 1895, June 26, P. L. 349. 1895, June 26, P. L. 367, 1895, June 28, P. L. 408, 1895, July 2, P. L. 426, 1895, July 2, P. L. 428, 1897. May 11, P. L. S3, 1897, May 19, P. L. 11, 1897, May 26, P. L. 108, 1897, June IS, P. L. 159. 1897, July 9. P. L. 217. 1897, July 14, P. L. 266, 1897, July IS, P. L. 273. 1897, July 15, P. L. 275, 1899, March 1, P. L. 6, 1899, April 11, P. L. 37, 1899, April 28, P. L. 74, Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec, Sec. Sec. Sec. Sec. Sec. Sec. Sec. 1. 2. 1. 2, 3, 1. 2, 1. 2, 1. 1, 2, 3, 1. 1 2 1. 2, 3, 4, 5, 2 1. 1. 2, 3, 4. S, 6. 7, 1, 1. 1. 2, 3, 4, 1, 1. 1, 2, 3, 2, 1, 2. 1. 1, 2, 3, 1. 2, 3, 4, S. 6. (Amended), (Amended), (Amended), 860 861 299 300 301 749 750 216 217 1032 871n 871n 871 1025 872 873 1065 1066 1067 1063 1069 385 742 952 953 954 955 956 957 §53 450 1072 290 291 292 293 296 253 303 304 305 873 297 298 464 978 979 980 679 680 681 682 683 684 640 -.„ ...^ , -7 , J). Sec. 7, 685 Sec. 8, - 686 Sec. 9, 687 Sec. 10 688 1899, May 2, P. L. 159, Sec. 1, 931 1899, May 2, P. L. 188, Sec. 1 576 Sec. 2, 577 Sec. 3, 578 1901, April 19, P. L. 82, Sec. 1 (Amended), 643 Sec. 2, 644 Sec. 3 (Amended), 645 1901, May 2, P. L. Ill, Sec. 1, 1116 Sec. 2, 1117 Sec. 3, 1118 1901, May 16, P. L. 224, Sec. 17, 91n Sec. 24, 124;i Sec. 25 124n Sec. 27, 138 Sec. 28, 82k Sec. 32, 398a Sec. 33 387 Sec. 34, 49b, 152b Sec. 35, ._ 49a „ 50a 1 58.1 IPOl, June 4, P. L. 364, Sec. 1 (Amended) _. 392 393 391 395 396 Sec. 2, 397 Sec. 3, 398 Sec. 4 (Amended), 399 Sec. 5 (Amended), 400 Sec. 8, 401 Sec. 9, 402 Sec. 10 (Amended), 403 Sec. 11, 405 Sec. 12 (Amended), 406 Sec. 13 (Amended), 407 Sec. 14, 408 Sec. 15, 409 Sec. 16, 410 Sec. 17 (Amended), 411 Sec. 18 (Amended), 412 Sec. 19, 413 Sec. 20 (Amended), 414 Sec. 21, 415 Sec. 22 (Amended), 416 Sec. 23, 417 Sec. 24, 418 Sec. 25, 419 Sec. 26 (Amended), 420 641 41 1901, June 4, P. L. 364— (Continued). Sec. 27, 421 Sec. 28, 422 Sec. 29, 423 Sec. 30 (Amended), 424 Sec. 31, - 425 Sec. 32 (Amended), 425 Sec. 33, 427 Sec. 34, 423 Sec. 35, 429 Sec. 36, 430 Sec. 37 (Amended), 431 Sec. 38, 432 Sec. 39, 433 Sec. 40, 434 Sec. 41 (Amended), 435 1901, June 4, P. L. 424, Sec. 1, 886 Sec. 2, 887 1901, June 4, P. L. 429, Sec. 1, 1089 Sec. 2, 1090 Sec. 3, 1091 Sec. 4, 1092 1901, June 7, P. L. 493, Sec. 1 (Amended), 789 Sec. 2 (Amended), 790 Sec. 3, 791 Sec. 4, 792 Sec. 5, 793 Sec. 6, 794 Sec. 7, 795 Sec. 8 (Amended), 796 Sec. 9 797 Sec. 10 798 Sec. 11 799 Sec. 12, 800 Sec. 13 _ 801 Sec. 14 - 802 Sec. 15 ~ 803 Sec. 16 804 Sec. 17, 805 Sec. 18, 806 Sec. 19 — 807 Sec. 20, 808 Sec. 21, 809 Sec. 22, _ „.. 810 Sec. 23, 811 Sec. 24 812 Sec. 25 (Amended), 813 Sec. 26 814 Sec. 27 815 Sec. 28, 816 Sec. 29 (Amended), 817 Sec. 30, 818 Sec. 31, 819 Sec. 32, 820 642 lyui, June 7, if. U 493— (Lontinued;. Sec. 33, 821 Sec. 34, 822 Sec. 35 (Amended), 823 Sec. 36 (Amended) 824 Sec. 37 825 Sec. 38, 826 Sec. 39 827 Sec. 40, 828 Sec. 41, 829 Sec. 42, _ _ 830 Sec. 43, 831 Sec. 44 832 Sec. 45, 833 Sec. 46 834 Sec. 47, 835 Sec. 48, 836 Sec. 49, 837 Sec. 50 838 Sec. 51 839 Sec. 52, 840 Sec. 53, 841 Sec. 54, 842 Sec. 55 843 Sec. 56, 844 Sec. 57, 845 Sec. 58, . 846 Sec. 59 847 Sec. 60 (Amended), 848 Sec. 61 (Amended), 849 Sec. 62 (Amended), 850 Sec. 63, 851 Sec. 64, 852 Sec. 65, 853 Sec. 66 (Amended), 854 Sec. 67, 855 Sec. 68, 856 Sec. 69, 857 Sec. 70 (Amended) 858 Sec. 71 (Amended), 859 1901, June 7, P. L. 531, Sec. 1, 564 Sec. 2 565 Sec. 3, 566 Sec. 4, 567 Sec. 5, 568 Sec. 6 569 Sec. 7, 570 Sec. 8, 571 Sec. 9 572 Sec. 10, 573 1901, June 20, P. L. 578, Sec. 1 (Amended), 361 Sec. 2, 362 Sec. 3 (Amended), 363 S«c. 4. 364 643 1901, June 20, P. L. '578— (Continued). 1901, July 17, P.L. 668, 1903, March 11, P. L. 25, 1903. March 18, P.L. 28, 1903, March 19, P.L. 31, 1903, March 19. P.L. 35, 1903, March 26, P.L. 63, 1903, March 26, P.L. 63, 1903, March 26, P. L. 71, 1903, March 27, P. L. 83. 1903, March 30, P. L. 106, 1903, April 2, P. L. 124, 1903, April 3, P. L. 137, 1903, April 3, P. L. 138, 1903, April 3, P. L. 152, 1903, April 16, P. L. 215, 1903, April 22, P. L. 258, 1903, April 25, P. L. 301, 1903, April 25, P. L. 314, Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. 5, 6, 7 9, 10 11 12, 13, 14 1, 2, 1, 1, 1, 1. 1, 1 2, 3. 4, 5, 6, 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 1, 1. 2, 3, 4, 5, 6, 7, 8, 1, 2, 1 1, 1. 1, 2,. 3, 4, 1. 1, 1. 365 366 (Amended), 367 36S (Amended), 369 (Amended), 370 371 372 (Amended), 373 648 649 493 501 336 - 530 435 (Amended) 697 - 698 699 700 701 - 702 581 582 583 584 585 586 587 588 589 590 502n 378 379 380 381 : 382 _ 383 384 385 ...„ 497 502 (Amended) 531 280 420 888 889 „ 890 _ 891 939 524 1080 644 1903, April 28, P. L. 332, 1903, April 28, P. L. 335, 1905, March 21, P. L. 46, 1905, March 28, P. L. 61, 1905, March 29, P. L. 71, 1905, April 4, P. L. 102, 1905, April 8, P. L. 119. 1905, April 10, P. L. 125, 1905, April 14, P. L. 156, 1905, April 17, P. L. 183, 1905, April 17, P. L. 193, 1905, April 18, P. L. 198, 1905, April 19, P. L. 216, 1905, April 20, P. L. 227, 1905, April 20, P. L. 237, 1905, April 22, P. L. 295, 1905, May- 2, P. L. 350, 1905, May 3, P. L. 379, 1906, Feb. 7, P. L. 7, Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. 1 2, 3. 4. 5. 6 1 2, 1. 2, 1, 3. 1. 2, 3. 4, 5, 6, 7, 8, 9, 10. 11, 12, 13, 14 1, 1, 2, 3. 1, 1 2, 3 4, 5, 6 1. 1. 2, 3, 4, S. 1, 1, 1 1, 1. 1, 1, 2, 3. (Amended), . 234 _..,..... 235 236 237 238 (Amended), 239 242 (Amended), 915 916 557 558 1162 166n 168n 961 962 ...- 963 964 965 966 967 963 969 970 971 972 973 (Amended), 974 335 650 651 652 666 (Amended), 922 , 923 (Amended), 924 -.. 925 926 (Amended), 927 5S9n 503 507 508 5oy 510 234 1070 (Amended), 555 575 670 913 254 255 - 256 645 1906, Feb. 7, P. L. 7— (Continued). 1907, March 14, P. L. 12, 1907, April 4, P. L. 40, 1^07, April 15, P. L. 80, 1907, April 15, P. L. 81, 1907, April 15, P. L. 90, 1907, April 25, P. L. 104, 1907, April 25, P. L. 117, 1907, May 7, P. L. 167, 1907, May 1907, May 10, P. L. 196, 23, P. L. 223, 1907, May 23, P. L, 225, 1907, May 28, P. L. 287, 1907, May 28, P. L. 295, 1907, May 28, P. L. 297, 1907, May 28, P. L. 300 1907, May 31, P. L. 349, 1907, May 31, P. L. 355, 1907, June 1, P. L. 372, 1907, June 1, P. L. 377, 1907, June 1, P. L. 378, 4, 257 5, 258 6, 259 7, 260 8, _- 261 9, 263 Sec. 10, 264 Sec. 11, 265 Sec. 12, 266 Sec. 1. 697 1 (Amended), 383 1, 919 1, 985 2, 986 3, 987 4 988 1, 664 1 555 1 373 1, 667 2, 668 3, 669 1, 485 1, 560 2, . 561 1 289 1, 546 1, 243 2. 244 1, 981 2, 982 3, 983 4 984 2, 1084n 3, 1085 1, 899 2, 900 3, 901 4, 902 5, 903 6, 904 7 905 9, 906 1, 653 2, 654 3, 655 4, 656 5 (Amended), 657 6 (Amended), 658 7, 659 1, 531 1, 241 1* 689 Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. 646 1907, June 1, P. L. 37&— (Continued). 1907, June 7, P. L. 461, 1907, June 8, P. L. 466, 1907, June 8, P. L. 503, 1909, March 15, P. L. 33, 1909, March 24, P. L. 59, 1909, March 24, P. L. 67, 1909, Marck 24, P. L. 69, 1909, March 25, P. L. 78, 1909, April 22, P. L. 124, 1909, April 22, P. L. 135, 1909, April 23, P. L. 141, 1909, April 29, P. L. 291, 1909, April 29, P. L. 296, 1909, May 1, P. L. 306, 1909, May 1, P. L. 307, Sec. 2, 690 Sec. 3, 691 Sec. 4, 692 Sec. 5 693 Sec. 6, 694 Sec. 7, 695 Sec. 1, 495 Sec. 2, 496 Sec. 1 874 Sec. 2, 875 Sec. 3, 876 Sec. 4, 877 Sec. 5, 878 Sec. 1 (Amended), 559 Sec. 1, 1026 Sec. 1, 294 Sec. 1, 598 Sec. 2, 599 Sec. 3, 600 Sec. 4, 601 Sec. 5, 602 Sec. 6, 603 Sec. 7, 604 Sec. 8, 605 Sec. 1 606 Sec. 2, 607 Sec. 3, 608 Sec. 4, 609 Sec. 5, 610 Sec. 6, 611 Sec. 7, 612 Sec. 8, 613 Sec 9, 614 Sec. 10, .. 615 Sec. 1, 388 Sec. 1, 907 Sec. 2, ^ 90S Sec. 3, 909 Sec. 4, 910 Sec. 5, 911 Sec. 6, 912 Sec. 1, 657 Sec. 2, 653 Sec. 1, _ 1110 Sec. 2, 1111 Sec. 1 „ 866 Sec. 2, 867 Sec. 1, ™ 334 Sec. 1 (Amended), 646 Sec. 2 (Amended), 647 Sec. 1, 1060 Sec. 2, ... 1061 Sec. 3, 1062 647 1909, May 1, P. L. 307— (Continued). Sec. 4 1063 Sec. 5, - 1064 1909, May 1, P. L. 317, Sec. 1, 449 1909, May 6, P. L. 452, Sec. 1, 411 Sec. 2 412 1909, May 6, P. L. 459, Sec. 1, 872 1909, May 10, P. L. 501, Sec. 1, 239 242 1909, May 11, P. L. 516, Sec. 1, 1073 Sec. 2, 1074 Sec. 3, 1075 Sec. 4, 1075 Sec. 5," 1077 1909, May 14, P. L. 840, Sec. 3, 796 Sec. 5 813 Sec. 6, 817 Sec. 7 823 Sec. 8, _ 824 Sec. 9, _ 843 Sec. 10, 849 Sec. 11, 850 Sec. 12, 854 . Sec. 13, 858 Sec. 14, 859 1911, April 21, P. L. 80, Sec. 1, 245 1911, April 26, P. L. 82, Sec. 1, 1081 Sec. 2, 1082 Sec. 3, 1083 Sec. 4, 1084 Sec. 5, 1086 Sec. 6, 1087 Sec. 7 1083 Sec. 1, _ 295 Sec. 1, 476 Sec. 18 (Amended), 552 Sec. 1 (Amended), 990 Sec. 2 (Amended) _ 991 Sec. 3 (Amended), 992 Sec. 1, 1112 Sec. 1, _... „ 696 Sec. 1, _ 959 Sec. 2, 960 Sec. 1, 646 Sec. 2 647 Sec. 1, T536 Sec. 1, 665 ■ Sec. 1, 559 Sec. 1 403 Sec. 1, 559„ Sec. 10 124n Sec. 4 (Amended), 486n Sec. 1 (Amended), 708 Sec. 2 (Amended) 709 648 1911, May 10, P.L. 208, 1911, May 11. P.L. 236, 1911, May 11. P.L. 244, 1911, May 11, P.L. 275, 1911, June 7. P.L. 677, 1911, June 9. P.L. 834, 1911, June 9. P.L. 854, 1911, June 15, P.L. 966, 1911, June 15, P.L. 970, 1911, June 19, P. L. 1033, 1911, June 19, P. L. 1036, 1911, June 20, P. L. 1076, 1911, June 20, P. L. 1087, 1911, June 21. P. L. 1102, 1911, June 23, P. L. 1123, 1913, April 18, P. L. 96, 1913, April 18, P. L. 96— (Continued). Sec. 3 (Amended), 710 Sec. 4 „ 711 Sec. 5, 712 1913, May 1, P. L. 155, Sec. 1, 743 1913, May IS. P. L. 212, Sec. 1 522 1913, May 15, P. L. 215, Sec. 1, .„ 500 1913, May 16, P. L. 216, Sec. 1, 974 1913, May 20, P. L. 227, Sec. 1 923 Sec. 2, 929 Sec. 3 _ 930 1913, May 20, P. L. 267, Sec. 1, 550 Sec. 2, 551 1913, May 21, P. L. 276, Sec. 1, 789 1913, May 23, P. L. 336, Sec. 1, 554 1913, May 28, P. L. 368, Sec. 1 487 Sec. 2, 488 Sec. 3, 489 Sec. 4, 490 Sec. 5, 491 1913, May 28, P. L. 377, Preamble, 451 Sec. 1, 452 1913, June 5, P. L. 419. Sec. 1, 754 Sec. 2, 755 1913. June 5. P. L. 423, Sec. 1, 678 1913, June 12, P. L. 476. Sec. 1. 790 1913, June 12, P. L. 488, Sec. 1. _ 915 1913, June 13, P. L. 507, Sec. 1, 67i 1913, June 17, P. L. 507, Sec. 17 (Amended), 474 Sec. 18 (Amended) 475 1913, June 20, P. L. 543, Sec. 1, 675 1913, June 25, P. L. 550, Sec. 1, 921 1913, June 25, P. L. 551, Sec. 1, .._ 862 Sec. 2. 863 Sec. 3. 864 Sec. 4 865 1913, June 27, P. L. 568, Art. I, Sec. 1 (Amended), 1 Sec. 2, ,. 2 Sec. 3 (Amended), 3 Art. II, Sec. 1 (Amended), 4 Sec. 2, 5 Sec. 3, 6 Sec. 4, 7 Art. Ill, Sec. 1 (Amended), 8 Sec. 1 (Amended), 9 Sec. 2. 10 Sec. 3 (Amended), 11 Sec. 4 1.2 Sec. 5 (Amended), 13 Sec. 6 (Amended, 14 Art. IV, Sec. 1 (Amended), — 15 Sec. 2, 16 Sec. 3 (Amended), 17 Sec. 4. 18 649 1913, June 27, P. L. 568, Art. IV— (Continued). Sec. 5 (Amended), 19 Sec. 6, — - 20 Sec. 7 (Amended), 21 . Sec. 8 (Amended), 22 Sec. 9, 23 Sec. 10, 24 Sec. 11, 23 Sec. 12, 26 Sec. 13, 27 Sec. 14 28 Sec. 15, 29 Sec. 16 30 Sec. 17, 31 Art. V. Sec. 1, _ 32 Sec. 2, Par. 1, 33 CI. 1, 34 CI. 2 35 CI. 3, 36 CI. 4, 37 CI. 5, 38 Sec. 3, Par. 1, 39 CI. 1, 40 CI. 2, 41 CI. 3, 42 CI. 4, (Amended), .. 43 CI. 5, 44 CI. 6 (Amended),.. 45 CI. 7, 46 CI. 8, 47 CI. 9, 48 CI. 10 (Amended),.. 49 CI. 11, 50 CI. 12 „.: 51 CI. 13 52 CI. 14, S3 CI. 15, 54 CI. 16 (Amended),.. 55 CI. 17 56 CI. 18, 57 CI. 19, 58 CI. 20, 59 CI. 21, 60 CI. 22 61 CI. 23 (Amended),- 62 CI. 24 63 CI. 25, 64 CI. 26, 65 CI. 27, 66 CI. 28 67 CI. 29, 68 CI. 30 (Amended),- 69 CI. 31, 70 CI. 32 (Amended),. 71 650 1913, June 27, P. L. 568, Art. V, Sec. 3.— (Continued). CI. 33, 72 CI. 34 (Amended),- 73 CI. 35, 74 CI. 36 75 CI. 37, 76 CI. 38, n CI. 39 (Amended),- 78 CI. 40, 79 CI. 41 80 CI. 42, : 81 CI. 43, 82 CI. 44, 83 CI. 45, 84 CI. 46 (Amended),- 85 CI. 47 86 - CI. 48, 87 CI. 49 (Amended),- 88 CI. 49 (Amended),- 89 Art. VI, Sec. 1 (Amended), 90 Sec. 1 (Amended) - 91 Sec. 2 (Amended), 92 Sec. 3, 93 Sec. 4, 94 Sec. 5, . 95 Sec. 6, 96 Sec. 7, .- 97 Sec. 8, 08 Sec. 9, 99 Sec. 10, 100 Sec. 11 (Amended), 101 Sec. 12, 102 Sec. 13. 103 Art. VII, Sec. 1, 104 Sec. 2, 105 Sec. 3, 106 Sec. 4 (Amended), 107 Sec. 5 (Amended), 108 Sec. 6 (Amended), 109 Sec. 7 (Amended), 110 Sec. 8, 111 Sec. 9 (Amended), 112 Sec. 10 113 Sec. 11, 114 Sec. 12, lis Sec. 13 (Amended), 116 Sec. 14 (Amended), 117 Sec. 15 (Amended), 118 Art. VIII; Sec. 1 (Amended), 119 Sec. 1 (Amended), 120 Sec. 2 (Amended), 121 Sec. 3, .'- 122 Art IX, Sec. 1 (Amended), 123 Sec. 2 (Amended), 124 551 . ' ,: 1913, June 27, P. L. 568, Art. IX— (Continued). Sec. 3 (Amended), 125 Sec. 4, - 126 Art. X, Sec. 1 (Amended), 127 Sec. 2, 128 Sec. 3, :. 129 Sec. 4, _ 130 Sec. 5, 131 Art. XI, Sec. 1 (Amended), 132 Sec. 2, 133 Sec. 3 (Repealed), 148 Art. XII, Sec. 1 (Amended), 149 Art. XIII, Sec. 1 152 Sec. 2, 153 Sec. 3, 154 Sec. 4, 155 Sec. S, 156 Art. XIV, Sec. i; 157 Sec. 2, 158 Sec. 3, 159 Sec. 4, 160 Sec. 5, 161 Sec. 6 (Amended), 162 Sec. 7 (Amended), 163 Sec. 8, 164 Sec. 9, 165 Art. XV, Sec. 1 (Amended), 166 Sec. 2, 167 Sec. 3, 168 Sec. 4, 169 Sec. 5, 170 Sec. 6, 171 Sec. 7, 172 Sec. 8, 173 Sec. 9, 174 Sec. 10 (Amended), 175 Sec. 11 176 Sec. 12, 177 Sec. 13, 178 Sec. 14, 179 Art. XVI, Sec. 1 (Amended), 180 Sec. 2 181 Sec. 3 182 Sec. 4 183 Sec. 5 184 Sec. 6 _ 185 Sec. 7 186 Sec. 8 187 Art. XVII, Sec. 1 18^ Sec. 2 189 Sec. 3 190 Sec. 4, 191 Sec. 5, 192 652 1913, June 27, P. L. S68, Art. XVII— (Continued). Sec. 6, 193 Sec. 7, 194 Art. XVIII, Sec. 1, 195 Sec. 2, 196 Sec. 3, 197 Sec. 4, 198 Art. XIX, Sec. 1 (Amended), 199 Sec. 2 (Amended), 200 Art. XX, Sec. 1 (Amended), 201 Sec. 2 (Amended), 202 Sec. 3 (Amended), 203 Sec. 4 (Amended) 204 Sec. 5 (Amended), 205 Sec. 6 (Amended), 206 Sec. 7 (Amended), 207 Art. XXI, Sec. 1, 208 Sec. 2, 209 Sec. 3, 210 Sec. 4 (Amended), 211 Sec. S, 212 1913, June 27, P. L. 632, Sec. 1, v 756 Sec. 2, 757 1913, July 7, P. L. 694, Sec. 1, 219 Sec. 2 220 Sg(. 3 _ _ 221 1913, July 16, P. L. 752, Sec! l' ZZ'..Z"ZZ'!Z™ 326 Sec. 2 327 Sec. 3 328 Sec. 4, . 329 Sec. 5, 330 Sec. 6, 331 1913, July 21, P. L. 865, Sec. 1 643 Sec. 2 645 1913, July 22, P. L. 902, Sec. 1, -.521, 869 1913, July 24, P. L. 960, Sec. 3. 992 1913, July 24, P. L. 1017, Sec. 1, 675 Sec. 2, 677 1913, July 26, P. L. 1371, Sec. 1. 922 1913, July 26, P. L. 1439, Sec. 1, _ 318 Sec. 2, 319 Sec. 3, 320 Sec. 4, 321 Sec. 5, 322 Sec. 6, 323 Sec. 7, 324 Sec. 8 _. 325 1915, March 26, P. L. 12, Sec. 1, 708 Sec. 2 709 Sec. 3 710 1915, March 30, P. L. 34, Sec. 1 (Amended), 302 Sec. 2, 302a 1915, April 14, P. L. 116, Sec. 1, 552 653 1915, April 14, P. L. 122, 1915, April 21, P. L. 139, 1915, April 21, P. L. 159, 1 (Amended), . 2 1915, April 23, P. L. 174. 1915, April 28, P. L. 195, 1915, May 3, P. L. 217, 1915, May 6, P. L. 260, 1915, May 6, P. L. 272, 1915, May 13, P. L. 306, 1915, May 13, P. L. 309, 1915, May 28, P. L. 450, 1915, May 14, P. L. 483, 1915, May 28, P. L. 573, 1915, May 28, P. L. 599. 1915, June 1, P. L. 685, 1915, June 1, P. L. 685, 1915, June 4. P. L. 815, 1915, June 5, P. L. 846, 1915, June 1915, June 8, P. L. 926, 11, P. L. 942, 1915. June 15, P. L. 985, 1917, April 5, P. L. 44, 1917, April 6, P. L. 52, 1917, May 3, P. L. 138, 1917, May 3, P. L. 141, Sec. Sec. Sec. Sec. Sec. Sec Sec. Sec. Sec. Sec. Sec Sec Sec. Sec Sec Sec. Sec. Sec. Sec Sec Sec Sec Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. 12 (Amended), . Sec. 1, 3 (Amended), . 4 (Amended), . 1, 1 - 2, 1, 1, ,. 1 1, 1, 1, 2 1. Sec. 1, Sec 2, Sec 3, . Sec. 4, Sec 5, Sec. 6, Sec. 7, Sec 8, Sec 9, Sec 10, Sec. 1, 1, 1. 2, 1. 2. 3, 4, 5, Sec. 15, Sec. 2, 3, 1, 1. 1. 1. 2. 3, 4, S. 6. 7. 1. 2, 3, 4, 513 514 515 516 15 511 512 758 448 937 262 246 150 151 283 1113 -523, 580. 642 -393,394,395 399 400 406 .._ 407 ..._ 4U „_ 416 _ 424 .._ 426 _ 431 .._ 518n _ 975 ,_ 913 ,__ 914 ..™ 453 .__ 459 _ 453 -454,460 .__ 461 _ 977 _ 515 ..... 516 .._. 532 — 1033 __ 112 _ 347 — 348 _ 349 _ 350 _. 351 __ 352 _ 353 — 660 .._ 661 662 ._ 663 654 1917. May 3, P. L. 143, 1917, May 3, P. L. 149, 1917, May 10, P. L. 158, 1917, May 10, P. L. 161, 1917, May 24, P. L. 262, 1917, May 24, P. T-. 276, 1917, May 29, P. L. 315, 1917. June 7, P. L. 600, 1917, June 20, P. L. 618, 1917, June 23, P. L. 643, 1917, June 1917, July 1917, July 1917, July 28, P. L. 650. 5. P. L. 682, 6, P. L. 747, 6, P. L. 751, Ser 1. 3, 1. 1. 2. 1, 1. 2. 3, 4, 5, 6, 7. 8, 1. 2 3, 4 s, 6,. 7. 8. 9. 10. 11, 12. 13. 14, 15 16, 17, 18, 1, 2, 3, s, 6, 1. 2. 3, 1, 2, 3. 4, s, 6 7, 2, 3. 1, 1 1. 1, 8 Spp 13 Spr 1113 Spp 744 Spp 745 Spp 1027 Spp 267 Spp 268 Spp 269 Sec. Spp 270 . 27 i Spp 272 Spp 273 Spp .. 274 Sec. Spp (Amended). „ . . 616 617 Spp 613 Sec. Spp (Amended) . 619 620 Spp 621 Spp ....... 622 Spp 623 Spp 624 Spp 625 Spp 626 Sec. Spp . 627 628 Spp 629 Sec. Spp (Amended), ,. 630 631 Sec. Spp 632 633 Spp 361 Sec. Spp ........ 363 367 Spp 369 Sec. Spp . 370 315 Spp 316 Spp 317 Spp 340 Spp 341 Sec. Spp 342 343 Spp 344 Sec. Spp (Amended), 345 346 Sec. Spp 924 927 Sec 513 Sec. Spp (Amended), 535 473 Sec. 9 655 1917. July 6, P. L. 752, 1917, July 1917, July 11, P. L. 799, 16, P. L. 1002, 1917, July 1917, July 17, P. L. 1019, 18, P. L. 1062, 1917, July 18, P. L. 1083, 1917, July 19, P. L. 1093, 1917, July 19, P. L. 1102, 1917, July 20, P. L. 1143, 1919, March 21, P. L. 20, 1919, March 26, P. L. 24, Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. 1. 2, 1. 1. 2, 3, 4, 5, 6, 7, 1, 1, 2, 3, 4, 1. 2, 3, 1, 1. 1. 2, 3, 4, 5, 6, 7, 8, 9, Sec. 10, Sec. 11, Sec. 12, Sec. 13, Sec. 14, Sec. 15, Sec. 16, Sec. 17, Sec. 18, Sec. 19, Sec. 20, Sec. 21, Sec. 22, Sec. 23, Sec. 24, Sec. 25, Sec. 26, Sec. 21, Sec. 28, Sec. 29, Sec. 1. Sec. 1, Sec. 2, Sec. 3. Sec. 4, 751 752 991 354 355 356 357 358 359 360 4 311 312 313 314 746 747 748 121 990 760 761 762 763 764 765 766 767 768 769 770 771 772 773 774 775 776 777 778 779 780 781 782 783 784 785 786 787 788 535 466 467 468 469 656 1919, March 26, P. L. 24— (Continued). Sec. S 470 Sec. 6, 471 Sec. 7, 472 1919, April 4, P. L. 36, Sec. 1 .• 404 1919, April 4, P. L. 45, Sec. 1 1119 Sec. 2, 1120 Sec. 3, 1121 1919, April 15, P. L. 964, Sec. 1, 386 1919, May 1, P. L. 99, Sec. 1, 309 Sec. 2, _ 310 1919, May 1, P. L. 103, Sec. 1 734 Sec. 2, 735 Sec. 3, __ 736 Sec. 4, 1..- 737 Sec. S, 738 Sec. 6, _ 739 Sec. 7 740 Sec. 8, 741 1919, May 8. P. L. 130, Sec. 1, 713 Sec. 2, 714 Sec. 3, 715 Sec. 4, 716 Sec. 5, 717 1919, May 16, P. L. 180. Sec. 1, 436 Sec. 2, 437 Sec. 3, .._ 438 Sec. 4, 439 Sec. 5, 440 1919, May 16, P. L. 193, Sec. 1, 940 Sec. 2, , 941 Sec. 3, 942 Sec. 4 943 Sec. 5, 944 Sec. 6, 945 Sec. 7, 946 Sec. 8, 947 Sec. 9, 948 Sec. 10, „ 949 Sec. 11, 950 Sec. 12, 951 1919, May 17, P. L. 204, Sec. 1, 345 1919, May 17, P. L. 205, Sec. 1, 579 1919, May 23, P. L. 255, Sec. 1, 718 Sec. 2, 719 Sec. 3, 720 Sec. 4 721 Sec. 5, .. 722 Sec. 6, 723 Sec. 7, 724 Sec. 8 725 Sec. 9, 726 Sec. 10, 727 Sec. 11. 728 657 1919, May 23, P. L. 2SS— (Continued). Sec. 12 729 Sec. 13, 730 Sec. 14 731 Sec. IS, 732 Sec. 16, =-. 733 1919, May 23, P. L. 278. Sec. 1, 993 Sec. 2, 994 Sec. 3, 995 Sec. 4, 996 Sec. 5, 997 1919, May 27, P. L. 310, Sec. 2, 3 Sec. 3, 11 Sec. 4, 14 Sec. S, 17 Sec. 6, 19 Sec. 7, 21 Sec. 8, 22 Sec. 9, 43 Sec. 10, 49 Sec. 11, „.. 45 Sec. 12, 55 Sec. 13, 62 Sec. 14, 69 Sec. 15 71 Sec. 16, IZ Sec. 17, 78 Sec. 18, 85 Sec. 19, .._ 90 Sec. 20, 92 Sec. 21, 101 Sec. 22, 107 Sec. 23, 108 Sec. 24, 109 Sec. 25 110 Sec. 26, 117 Sec. 27, _. 118 Sec. 28, _ 119 Sec. 29, _ 123 Sec. 30, .._ 124 Sec. 31, 125 Sec. 32, 127 Sec. 33 132 Sec. 35 162 Sec. 36, „ 163 Sec. 37, — 166 Sec. 38, 175 Sec. 39, 180 Sec. 40, _ 199 — 200 Sec. 41, ..._ 201 202 203 — 204 e«58 1919, May 27, P. L. 310, Sec. 41— (Continued). 1919, May 31, P. L. 358, 1919, June 4, P. L. 373, 1919, June S, P. L. 393, 1919, June 7, P. L. 414, 1919, June 12, P. L. 444, 1919, June 12, P. L. 451, 1919, June 12, P. L. 452, 1919, June 20, P. L. 513, 1919, June 21, P. L. 568, 1919, June 30, P. L. 678. 1919, June 30, P. L. 678, 1919, July 8, P. L. 734, 1919, July 8, P. L. 761, 1919, July 1919, July 1919, July 8, P. L. 762, 8, P. L. 763, 8, P. L. 783, Sec. 42, Sec. 1, Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. 1, ...... 1, 1 2, 3, 1, 2, 3 1, 2, _..... 3 4, ....... 5 6 7, ■:.... 1 - 1, ....„ 2 3, ...... 1, ...... 2 9, .._.. 1919, July 8, P. L. 784, Sec. 1. Sec. 2, Sec. 1. Sec. 1, Sec. 1, Sec. 2, Sec. 3. Sec. 4. Sec. s. Sec. 1. Sec. 19, ._ Sec. 20, .... Sec. 21, — Sec. 22, Sec. 23, Sec. 24, .... Sec. 25, Sec. 26, .... Sec. 27, .... Sec. 28 Sec. 29, .... Sec. 30, Sec. 31, Sec. 33, .... Sec. 35, .... Sec. 1, .... 205 206 207 211 88 89 486n 617 619 630 337 338 339 1013 1014 1015 1016 1017 1018 1019 375 547 548 549 562 563 976 998 999 1000 1001 1002 1003 1004 1005 1006 1007 1008 1009 1010 1011 1012 302 634 635 759 526 703 704 705 706 707 753 659 1919, July 8, P. L. 784, 1919, July 1919, July 1919, July 1919, July 1919, July 1919, July 1919, July 8, P. L. 786, 10, P. L. 903, 12, P. L. 923, IS, P. L. 955, 15, P. L. 958, IS, P. L. 968, 17, P. L. 1010, 1919, July 17, P. L. 1021, 1919, July 17. P. L. 1035, 1919, July 22, P. L. 1113, Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. 1 2, 3, .... 4, .... 5, .... 6, .... 7 1, .... 1, .... 2, .... 3, .... 1, .... 1, .... 1, .... 1, .... 1, ... 2 3 4, .... 5, .... 6, .... 7 8 9, .... 10 11, _.. 12 13, ..„ 14, .... 15, .... 16, _., 17, .._ 18, -.. 19 20, .... 21, „ 22, _ 23, ._. 24, .... 25, _ 26 1 1, .... 1, .... 2, .... 3, .... 4, ... 5 6, .... 7, ... 8 9. ... 10, _.. 11, ... 12, _ 892 893 894 895 896 897 898 389 91 120 149 1031 474 475 116 1034 1035 1036 1037 1038 1039 1040 1041 1042 1043 1044 1045 1046 1047 1048 1049 1050 1051 1052 1053 1054 1055 1056 1057 1058 1059 376 1071 222 223 224 225 226 227 228 229 230 231 232 233 660 TABLE OF CASES. References are to Sections in ( ). Adamstown v. Hartman, 36 Lane. 73; s. c. 10 M. L. R. 174, 33 York 48, 67 P. L. J. 545, 403, 429 Administration of Oaths, Opinion by Deputy Attorney General, 3 Dep. Rep. 463, 1012 Alexander v. Phila. et al., 17 D. R. 799 448, 455 Aliquippa Borough v. Hall, 21 D. R. 774; s. c. 4 M. L. R. 42, 303 Allegheny City v. Dietrich, 8 D. R. 570; s. c. 47 P. L. J. (os) 88, .... 497, 517 Allegheny City v. Kennedy, 14 Pa. C. C. 152, 216,217 Allentown v. Gross, 132 Pa. 319, 43 Allentown v. Roth, 231 Pa. 140, affirming 4 Lehigh 136, 38S Allentown v. Wagner, 214 Pa. 210, affirming 27 Super. Ct. 485, . 61, 697 Allentown to use v. Ackerman, 37 Super. Ct. 363, affirming 2 Le- high 236, 405,411,414 Allentown to use v. Light, 15 D. R. 619, 401,402,405 Alliance Borough v. Schwartz, 53 Super. Ct. 488, reversing 13 Northampton 314; s. c. 4 M. L. R. 91, 429 Altoona v. Bowman, 171 Pa. 307, 17 Altoona V. Brenzerner, 21 Pa. C. C. 339; s. c. 7 D. R. 740, 426 Altoona v. Enzbrenner, 7 D. R. 740; s. c. 21 Pa. C. C. 339, 426 Altoona v. Koch, 52 Super. Ct. 431, 373 Altoona v. Morrison, 24 Super. Ct. 417, 367 Amberson Ave., Appeal of Childs et al., 179 Pa. 634, 502 American Pavement Co. v. Wagner, 139 Pa. 623, affirming 7 Pa. C. C. 385, : 19 Anderson v. Lower Merion Twp., 217 Pa. 369, 152 Angle v. Stroudsburg Borough, 29 Super. Ct. 601, 534 Annexation of Borough of Karick to City of Pittsburgh, 63 P. L. J. 566, : _ 244,245 Annexation of South Allentown, 2 Lehigh 387, 9, 234 Annexation to City of Allentown, 16 D. R. 994; s. c. 2 Lehigh 114, 234 Antran v. Receivers of Tower Hill Connellsville Coal and Colce Co., 64 P. L. J. 239; s. c. 44 Pa. C. C. 278, 25 D. R. 773, 397 Apollo Borough v. Clepper, 44 Super. Ct. 396, 421 Appeal of City of Erie, 91 *Pa. 398, 442 Appeal of City of Wilkes-Barre, 109 Pa. 554, 448 Appeal of City of Wilkes-Barre, 116 Pa. 246, 462 Appeal of Harper, et al., 109 Pa. 9, 153 Appeal of William H. Brown, et al., Ill Pa. 72, 448 661 Armstrong to use v. Wolcott, 26- D. R. 899; s. c. 65 P. L. J. 389, .- 403,426 Arnold Storm Sewer, 1 West. L. J. 61, 484,523 Ashwort V. Pittsburgh Rys. Co., 231 Pa. 539, reversing 44 Super. Ct. 326, 216 Avalon Borough v. Ardery, 29 D. R. 178; s. c. 67 P. L. J. 307, 403 Ayar's Appeal, 122 Pa. 266, 216 Bachler's Appeal, 90 Pa. 207, , 504 Bagley v. Scranton, 16 Lack. J. 332; s. c. 29 York 172, 7 M. L. R. 166, 975 Bailey et al. v. Phila. et al., 167 Pa. 569, 18 Barnes v. Railroad Co., 27 Super. Ct. 84, affirming 30 Pa. C. C. 479, 13 D. R. 363, 556 Barnesboro v. Speice, 40 Super. Ct. 609, 388 Barnett's Case, 28 Super. Ct. 361, 497, 502 Barr v. Phila., 191 Pa. 438, 449 Barrett v. Minersville Borough, 38 Super. Ct. 76, 152,484,523 Battis V. Price, 2 Pears. 459, 1093 Beaver County Commissioners, 14 D. R. 491, 1050 Bechtel v. Bechtelsville Borough, 3 D. R. 713, 502, 504 Beech Creek Twp. Public Road, 17 D. R. 581; s. c. 34 Pa. C. C. 570, 501 Beechwood Avenue, 194 Pa. 86, 533 Beechwood Avenue Sewer, (1), Pittsburgh's Appeal, (1), 179 Pa. 490, 497 Beechwood Avenue Sewer, (2), Pittsburgh's Appeal, (2), 179 Pa. 494, 502 Bell V. Waynesboro, 195 Pa. 299, 446 Bell Telephone Co. v. Hazleton, 67 Super. Ct. 264, 924 Bellefonte Borough v. Kerstetter, 36 Pa. C. C. 78 _. 939 Bellevue Borough v. Gibson, 43 Super. Ct. 561, 49 Bellevue Borough v. Whitehead et al., 64 P. L. J. 237, 405 Bellevue R. S. and T. Co. v. Monongahela River C. C. and C. Co., 68 Super. Ct. 149, 474 Beltz v. Pittsburgh, 51 P. L. J. (os) 197, affirmed in 26 Super. Ct. 66, affirmed in 211 Pa. 561, 216,789 Ben Avon Borough v. Crawford, 64 Super. Ct. 163, 546 Berghaus v. Harrisburg, 122 Pa. 289, 216 Binney v. Philadelphia et al., 17 D. R. 636, 19 Black V. City of Chester, 175 Pa. 101, 81, 100, 116 Black Street, 236 Pa. 395, affirming 59 P. L. J. 45, 484,517 Blamere v. Borough of Parsons et al., 17 Luz. L. R. 417; s. c. 7 M. L. R. 175, 448,450 Blankenburg v. Black, 200 Pa. 629, 216 Blankenburg v. Philadelphia et al., 20 D. R. 531, 19 Block V. Lancaster, 22 D. R. 1056; s. c. 30 Lane. 275, 5 M. L. R. 9, 931 Bloomsburg Imp. Co. v. Bloomsburg, 215 Pa. 452, 870 Bloomsburg Town Election Case, 18 Pa. C. C. 449; s. c. 4 D. R. 671, 449 Blough v. Johnstown, 24 D. R. 270 939 Board of Health v. City of Harrisburg, 2 Pearson 242 124 Bond V. Barrett, SO Super. Ct. 307, 556 Bond V. Philadelphia, 218 Pa. 475, _ 49,520 Boundary line between Carbondale Township and Borough of Archibald, 2 Lack. L. N. 109, 248 Bovaird v. City of Bradford, 232 Pa. 600, „ 120 662 . Bowers v. Braddock Borough, 172 Pa. 596 502,504 Bowser v. Philadelphia, 41 Pa. SIS, 152 Boyer v. City of Reading, 151 Pz. 185, 49 Brackney v. Crafton Borough, 31 Super. Ct. 413, _. 502 Braddock Ave., widening, 66 P. L. J. 730, 502 Bradford v. Foster, 5 D. R. 523, 153 Bradford v. Fox, 171 Pa. 343, 49 Brady, Executor, v. Wilkes-Barre, 161 Pa. 246, 484 Brandt v. Elizabethtown Borough School District, 26, Lane. 249, .... 449 Breen v. McCallin, 6 Pa. C. C. 658, 19 Brehm, Administrator, v. Canonsburg Borough, 35 Pa. C. C. 394; s. c. 18 D. R. 727, 502 Brick and Paving Co. v. Philadelphia, 164 Pa. 477, reversing 15 Pa. C. C. 85 and 3 D. R. 544, _._ 19 Briel et al. v. Karthaus Twp. School District, 22 D. R. 511 442 Broad Street, Sewickley, M. E. Church's Appeal, 165 Pa. 475, 400, 497 Broad Street, widening, 225 Pa. 184, .-. 499 Brobst v. Albrecht et al. 19 D. R. 989; s. c. 2 Berks Co. 150-103, 2 Lehigh 380 „ 18, 19, 20 Brode v. Philadelphia, 230 Pa. 434, affirming 18 D. R. 899, 465, 919 Brooke et al. v. Philadelphia et al., 162 Pa. 123, 447 Brown v. Beaver Borough, 12 Pa. C. C. 313; s. c. 2 D. R. 318, . 504 Brown v. Gahring et al., 18 D. R. 516, 133 Brown et al. v. City of Corry et al., 4 D. R. 645 447 Bruce et al. v. Pittsburgh et al., 166 Pa. 152, 447,448,450 Bucher v. Northumberland County, 209 Pa. 618, 544 Bucher et al v. Johnstown et al., 25 D. R. 307; s. c. 6 Lehigh 267, 19 Bullitt v. Philadelphia, No. 1, 230 Pa. 544, affirming 19 D. R. 1083, 449 Bullitt et al. v. Philadelphia et al.. No. 2, 19 D. R. 1091, 19 Bureau of Municipalities, Opinion by Deputy Attorney General 4 Dept. Rep. 767 _ 1121 Burton v. Erie Co., 206 Pa. 570, 59 Bush y. McKeesport, 166 Pa. 57, 521 Bushkill Twp. Road, 12 Northampton 118, _ 501 Bushong V. Wyomissing Borough, 25 D. R. 690; s. c. 8 Berks 47, 7 M. L. R. 121, 30 York 86, 899 Butler E and F Cdmpany v. Butler Borough, 238 Pa. 180, 505 Butler Street, 25 Super. Ct. 357, 47, 484 Buttorff v. City of York et al., affirming 34 York 42, 110, 345 Campbell v. Paving Co., 6 Lack L. N. 119, 47,81 Canaan Twp. Overseers v. Covington Twp. Overseers, 54 Super. Ct. 25, - 1063 Capouse Ave., Scranton, 7 Lack. J. 360, '. 524 Carbondale and Providence Turnpike, 17 W. N. C. 310, 504 Carbondale Township's Appeal, 5 Pa. C. C. 339, 218 Carlisle Street, 55 Super. Ct. 223 497,502,532 Carney v. City, 14 D. R. 119 - 484 Carrick v. Canevin, 55 Super. Ct. 233, 411,497 Carrick v. Canevin, 243 Pa. 283, 400,411,497 Carrick Borough v. Church, 63 P. L. J. 25 497 Carroll v. Philadelphia, 183 Pa. 55, affirming 6 D. R. 397, 19 Carson v. Allegheny City, 213 Pa. 537 497,502 Catasauqua Borough's Petition, 3 Lehigh 48, _ - 653 663 Cawley v. Allentown, 2 Lehigh 58, ^33 Centre County v. Weaver, 35 Pa. C. C. 334; 397 Chalfant v. Edwards, 173 Pa. 246, 216 Chalmers v. Philadelphia, 250 Pa. 251, . 216, 961 Change of Grade of Norwood Street. 28 Pa. C. C. 555 484 Charles Street, Pusey's Appeal, 83 Pa. 67 504 Chatham Street, 16 Super. Ct. 103, 484, 497, 499 Chatham Street, Grading, Philadelphia's Appeal, 191 Pa. 604, 499 Chester v. Chester Steel Castings' Co., 10 Del. Co. 197 502 Chester v. Gas Co., 20 D. R. 1121; s. c. 11 Del. Co. 478, 156 Chester v. Lane, Nos. 1, 2, 3, 4, 24 Super. Ct. 359-367-368-369 50, 401, 413 Chester v. Larkin, 272 Super. Ct. 204, 49 Chester v. Prendergast, 31 York 5; s. c. 14 Del. Co. 226, 400 Chester v. Thurlow Land Co., 13 D. R. 285; s. c. 9 Del. Co. 51, 556 Chester v. Water Co., 25 D. R. 754; s. c. 13 Del. Co. 477, 16, 156 Chester v. White, 220 Pa. 646, affirming 10 Del. Co. 394, 20 Chester v. Wunderlich, 24 D. R. 125; s. c. 12 Del. Co. 566, 330 Chester Traction Co. v. P. W. and B. R. R. Co., 6 Del. Co. 481, 95 Chester's Annexation, 174 Pa. 177, 9 Chestnut Street, Harrisburg, 3 D. R. 497; s. c. 15 Pa. C. C. 115, „ .47, 158, 4?4, 502, 504 Chestnut Street, widening, 128 Pa. 214, 504 Chew et al. v. Philadelphia, 25 D, R. 1130, 574 Church Street in Slatington Borough, 2 D. R. 269; s. c. 3, North- ampton 309, 484 Clark V. Philadelphia, 1711 Pa. 30, ., 484,497 Clark and Sons Co. v. Pittsburgh, 217 Pa. 46, _ _ 18, 19 Clauchs V. Pittsburgh, 31 Super. Ct. 331, affirming 14 D. R. 571, 859 Clear Spring's Water Co. v. Catasauqua Borough, 231 Pa. 290, af- firming 3 Lehigh 319, 1 654 Clifton Heights Borough v. Kent Manufacturing Co., 220 Pa. 585, 564 Clinton County v. Harrisburg Trust Co., 39 Pa. C. C. 498; s. c. 21 D. R. 760, ..._ - 426 Clopper V. Greensburg, 48 P. L. J. 112, _ 1102 Cochranton Borough v. Cochranton Telephone Co., 41 Super. Ct. 146, _ 922 College Avenue Bridge 9 D. R. 15^ s. c. 13 York 93, 530, 534 Colored Children's Home v. Cambria County Poor District, 72 Super. Ct. 106, A 465 Commissioners of Schuylkill Co. v. Snyder, 20 Pa. C. C. 649, 447 Commonwealth v. Allen, 70 Pa. 465, 1102 Commonwealth v. Armstrong, 40 Pa. C. C. 588; s. c. 61 P. L. J. 103, 22 D. R. 457, 18, 20, 133 Commonwealth v. Bamberger, No. 1, 33 Lane. 65; s. c. 25 D. R. 652, 1105 Commonwealth v. Barge, 11 Super. Ct. 164, 1100 Commonwealth v. Barker, 211 Pa. 610, 386 Commonwealth v. Becker, 34 Lane. 66; s. c. 19 Luz. 23, 998,1009,1010 Commonwealth v. Bennett, 24 York 205, 133 Commonwealth v. Black, 201 Pa. 433, reversing 48 P. L. J. (os) 1, 109 Commonwealth v. Bracony, 40 Pa. C. C. 528; s. c. 22 D. R. 871, 17 Dauphin 25, 920 Commonwealth v. Bretz, 28 D. R. 918; s. c. 1919 Dauphin 29, 67 P. L J. 153, 1109 664 Commonwealth v. Brown, 13 D. R. S3; s. c. 18 York 10, 116 Commonwealth v. Brown, 40 Pa. C. C. 201, _ 361 Commonwealth v. Bushnell, 18 Dauphin 287, 43 Commonwealth v. Buzard, 27 D. R. 21; s. c. 45 Pa. C. C. 396,.... 1011 Commonwealth v. Cameron, 42 Super. Ct. 347, affirmed in 229 Pa. 592, 22 Commonwealth v. Carson, 21 Super. Ct. 48, 1099 Commonwealth v. Casey, 231 Pa. 170, reversing 43 Super. Ct. 494, 216 Commonwealth v. Chadman, 11 D. R. 430; s. c. 19 Lane. 117, 1034 Commonwealth v. Christian, 9 Philadelphia 556, 1102 Commonwealth v. Clark, 195 Pa. 634, 43 Commonwealth v. Clarke, 8 Lack. L. N. 61, 217 Commonwealth v. Clevenstine, 66 Super. Ct. 125, 1109 Commonwealth v. Cline, 26 D. R. 663; s. c. 34 Lane. 85, 998,1011 Commonwealth v. Collins, 18 D. R. 893, 1102 Commonwealth v. Davidson, 21 D. R. 885, _ 998 Commonwealth v. Davies, 43 Pa. C. C. 536; s. c. 6 Lehigh 338, 1011 Commonwealth v. Davis, 44 Pa. C. C. 562; s. c. 64 P. L. J. 692, 33 Lane. 388, 14 Del. Co. 171, 1011 Commonwealth v. De Camp, 177 Pa. 112; s. c. 39 W. N. C. 69, ......... 1102 Commonwealth v. Dimegilo, 25 D. R. 830; s. c. 44 Pa. C. C. 34, 30 York IS, 13 Del. Co. 437, 1002, 1011 Commonwealth v. Dusman, 240 Pa. 464, affirming 26 York 157-169, 12 Just. L. R. 99, 361 Commonwealth v. Elbert, 244 Pa. 535, affirming 6 Berks 1S9,.- 52, 82, 104, 210 Commonwealth v. Evans, 59 Super. Ct. 607, affirming 31 Lane. 401, ' 280 Commonwealth v. Ferlina, 16 Just. L. R. 121, lOS Commonwealth v. Fischer, No. 1, 26 D. R. 997, 91 Commonwealth v. Fischer, No. 2, 26 D. R. 1001; s. c. 45 Pa. C. C. 56, - 15,91 Commonwealth v. Fix, 50 P. L. J. (os) 293, 276 Commonwealth v. Flecker, 17 Pa. C. C. 671; s. c. 8 Kulp 225, 1105 Commonwealth v. Foster, 215 Pa. 177, 116 Commonwealth v. Gingrich, 21 Super. Ct. 286, 85 Commonwealth v. Gingrich, 22 Pa. C. C. 244, 124 Commonwealth v. Greene County Commissioners, 27 D. R. 275; s. c. 65, P. L. J. 657, 990 Commonwealth v. Gritman, 25S Pa. 277, affirming 17 Lack. 127, 120, 361 Commonwealth v: Hancock, 2 W. N. C. 557, 24 Commonwealth v. Hastings, 16 Pa. C. C. 425; s. c. 4 Dauphin 303, .... 1093 Commonwealth v. Hauser, 19 Luz. 387, 1102 Commonwealth v. Hazen, 207 Pa. 52, 870 Commonwealth v. Heller, 219 Pa. 65, affirming 9 Dauphin 169, . — 216 Commonwealth v. Hilbish, 12 Pa. C. C. 25, 1102 Commonwealth v. Hitchens, 12 D. R. 752; s. c. SO P. L. J. (os) 332, 124, 133 Commonwealth v. Hottenstein, 2 Woodward 477, — 1101 Commonwealth v. House, 8 Super. Ct. 92, .._ 1099 Commonwealth v. House, 10 Super. Ct. 259 - 1099 Commonwealth v. Jones, 14 D. R. 350; s. c. 3 Just. L. R. 128, S Lack. J. 328, 303 Commonwealth v. Klein, 42 Super. Ct. 66, 21 Commonwealth v. Koons, 1 Kulp. 134; s. c. 9 Luz. 171, 1101 Commonwealth v. Krickbaum, 199 Pa. 351, 1102 Commonwealth v. LaBarr, S Lack. L. N. 229, 16, 8S 665 Commonwealth v. Larden, 18 D. R. 716; s. c. 35 Pa. C. C. 631 1102 Commonwealth v. Lisler, 67 Super. Ct. 1, affirming 2 North. L. J. 430, 12 Schuylkill 408, 3 North. L. J. 138, - 1099 Commonwealth v. Lynch, 22 Pa. C. C. 422, •''2 Commonwealth v. McAvoy, 9 Kulp 168 1102 Commonwealth v. McCafiferty, 20 D. R. 29; s. c. 11 Del. Co. 270, 2 M. L. R. 14, 303 Commonwealth v. McCullough, 19 Super. Ct. 412, _ — 1100 Commonwealth v. McWilliams, 21 D. R. 1131; s. c. 4 Berks 370, .... 110 Commonwealth v. Macferron, 152 Pa. 244, 216,217 Commonwealth v. Machamer, 18 Pa. C. C. 92, 13a Commonwealth v. Mahon, 12 Super. Ct. 616, 1100 Commonwealth v. Marcer, 29 Leg. Int. 52, 1097 Commonwealth v. Matthews, 10 Luz. Rep. 110 303 Commonwealth v. Mentzer, 162 Pa. 846, affirming 10 Lane. 188, 1099 Commonwealth v. Mintz, 19 Super. Ct. 283, affirming 25 Pa. C. C. 96, 978 Commonwealth v. Moir, 199 Pa. 534, „. 216,217 Commonwealth v. Monongahela Bridge Co., 8 Dauphin 91, 592 Commonwealth v. Muir, 180 Pa. 47, affirming 1 Super. Ct. 578, . 952 Commonwealth v. Murphy et al., 7 Just. L. R. 31, 303 Commonwealth v. Myton, 16 Lack. J. 234; s. c. 6 Lehigh 246, 18 Dauphin 393, 7 M. L. R. 27, 44 Pa. C. C. 329, 64 P. L. J. 427, 998 Commonwealth v. Naylor, 8 Lack. 20, 1102 Commonwealth v. Patton, 88 Pa. 258, _ 216 Commonwealth v. Quay, 7 D. R. 723, 1097 Commonwealth v. Raudenbush, 249 Pa. 86, 1102 Commonwealth v. Ricketts, 9 Kulp. 361, 216,217 Commonwealth v. Rieker, 35 Lane. 74, 998, 1011 Commonwealth v. Robinson, 9 Super. Ct. 569, 217 Commonwealth v. Rupp, 9 Watts 114, 1097 Commonwealth v. Scheiring, 61 Super. Ct. 261, _ 1109 Commonwealth v. Schmitz, 18 D. R. 861; s. c. 56 P. L. J. 31, ...... 448 Commonwealth v. Scranton, 14 D. R. 679; s. c. 6 Lack. 141, 19 York, 9, ,. 859 Commonwealth v. Shafer, 32 Super. Ct. 497, affirming 20 York 73; s. c. 2 Lehigh 74, 32 Pa. C. C. 433, 54 P. L. J. 71, 860 Commonwealth v. Shive, 28 York 113, 1011 Commonwealth v. Shoener, 212 Pa. 527; s. c. 216 Pa. 71, affirm- ing 30 Super. Ct. 321, 1099, 1109 Commonwealth v. Shoup, 9 Pa. C. C. 289; s. c. 8 Lane. 105, 208,217 Commonwealth v. Smith, 10 North. 340; s. c. 2 Lehigh 143, 386 Commonwealth v. Smoulter, 126 Pa. 137 216 Commonwealth v. Snider, 35 Lane. 75, 1002 Commonwealth v. South Bethlehem, 14 North. Co. 179, 219 Commonwealth v. South Bethlehem, 248 Pa. 581, 219 Commonwealth v. Steele, 2 North 1, 127 Commonwealth v. Straban Twp., 45 Pa. C. C. 85; s. c. 19 Dauphin 302, 446,455 Commonwealth v. Sutton, 21 Lack. 100, 1005 Commonwealth v. Swab, 59 Super. Ct. 485, 1109 Commonwealth v. Titusville School District, 41 Pa. C. C. 292, 361 Commonwealth v. Tobin, 239 Pa. 105, affirming 60 P. L. J. 655, 361 666 Commonwealth v. Vollmer, 25 D. R. 1070; Sj c. 65 P. L. J. 12, 7 M. L. R. 212, 44 Pa. C. C. 462, 33 Lane. 125, ! 998 Commonwealth v. Ward, 24 D. R. 537; s. c. 12 Del. Co. 521, 5 Le- high 396, — 9(3 Commonwealth v. Westfield Borough, 11 Pa. C. C. 369; s. c. 1 D R- 495 636 Commonwealth v. Williams, 54 Super. Ct. 545, 1020 Commonwealth v. Witman, 217 Pa. 411, 1102 Commonwealth v. Wyman, 137 Pa. 508 _ 216,217 Commonwealth v. Wyneman, 21 D. R. 911; s. c. 1 West. L. J. 238, 4 M. L. R. 31, 1102 Commonwealth ex rel. v. Bennett, 233 Pa. 286, affirming 24 York 205, „ 15 Commonwealth ex rel. Brown v. Pfeil et al., 31 York 89; s. c. 13 Schuylkill 292, 3 N. L. J. 167, 1102 Commonwealth ex rel. v. City of Wilkes-Barre et al., 258 Pa. 130, reversing 19 Luz. 59-143-420, _ 200 Commonwealth ex rel. v. Cloud, 19 D. R. 299; s. c. 2 M. L. R. 3, 36 Pa. C. C. 190, _ 1102 Commonwealth ex rel. v. Conahay et al. v. Anderson et al., 18 D. R. 597; s. c. 11- Northampton 384, 11 Del. Co. 53, 173 Commonwealth ex rel. v. Fayette County Comsmissioners, 59 P. L. J. 593, . 3 Commonwealth ex rel. v. Gable, 5 Berks 143, 30 Commonwealth ex rel. v. George, 148 Pa. 463, 116,152,484,523 Commonwealth ex rel. Griswold v. James Moir et al., 9 Lane. 278; s. c. 2 Lack. J. 303, 15 Commonwealth ex rel. v. Hoyt, 254 Pa. 45, 990 Commonwealth ex rel. v. Johnstin, 21 D. R. 993; s. c. 60 P. L. J. 269, _ 23 Commonwealth ex rel. v. Kelly, 255 Pa. 475, 1102 Commonwealth ex rel. v. Langley, 233 Pa. 222; s. c. 59 P. L. J., 596, ., 3 Commonwealth ex rel. v. Larkin, 27 Super. Ct. 397, 16, 20 Commonwealth ex rel. v. Lay ton, 59 P. L. J. 488-489; s. c. 3, M. L. R. 74, - 1102 Commonwealth ex rel. v. McGroarty, 148 Pa. 606, 3 Commonwealth ex rel v. Marks, 248 Pa. 518, affirming 7 Berks, 1 16, 1 1, 280 Commonwealth ex rel. v. Mitchell, 82 Pa. 343, 19, 743 Commonwealth ex rel. v. Morrow, 40 P. L. J. (os) 287, 16, 19 Commonwealth ex rel. v. Parsons, 217 Pa. 435, _ 234, 241 Commonwealth ex rel. v. Pittsburgh, 18 D. R. 3; s. c. 55 P. L. J. 349 243,244 Commonwealth ex rel. v. Powell, 249 Pa. 144, 16 Commonwealth ex rel. v. Reid et al., 265 Pa. 329, 91 Commonwealth ex rel. v. Ricketts, 196 Pa. 598, 3 Commonwealth ex rel. v. Ripple, Mayor, 4 Kulp 659, 448 Commonwealth ex rel. v. Strauch, 14 Schuylkill 125; s. c. 47 Pa. C. C. 246, 32 York 58, _ _ 122, 180, 358 Commonwealth ex rel. v. Strickler, 259 Pa. 60, .■-. 23 Commonwealth ex rel v. Sword, 63 P. L. J. 145; s. c. 6 M. L. R. 201, - 1102 Connell v. Kennedy, et al., 20 Luz. 85, 31 667 Consolidated Telephone Cos. of Pennsylvania v. Easton, 16 D. R. 887; s. c. 11 North. 1, 10 Del. Co. 333, 924 Cook et al. v. The City, 2 W. N. C. 446, 504 Cooper V. Bellevue Borough, 51 Super. Ct. 602, 533 Cooper V. Scranton City, 21 Super. Ct. 17 48,152,484,499 Copelin V. Harrisburg School Directors, 242 Pa. 221, reversing 16 Dauphin 179, 361, 363 Corbett v. Wilkes-Barre, 38 Pa. C. C. 565; s. c. IS Luz. 163, 2 M. L. R. 65, 556 Correll v. Mt. Jewett Borough, 49 Super. Ct. 118, aflSrming 38 Pa. C. C. 609 504 Corry v. The Corry Chair Co., 18 Super. Ct. 271, 16,95,523 County Commissioners' Petition, 255 Pa. 88, 18 Crafton Borough v. Richards, 17 D. R. 835; s. c. 55 P. L. J. 279, .... 388 Crawford v. Clifton Heights Borough, 8 Del. 313; s. c. IS York 119, 1102 Croasdill v. Philadelphia et al, 18 D. R. 719, 19 Culp v. Commonwealth, 109 Pa. 363, affirming 16 Phila. 496, 1101, 1109 Cummings v. Williamsport, 84 Pa. 472, B- 504 Cumru Twp. Road, 5 Berks 281, _ 501 Curran v. East Pittsburgh Borough, 12 Super. Ct. 590, 484,502 C. V. R. R.'s Appeal, 245 Pa. 107, 564 C. V. R. R. Co. V. Pittston, 13 D. R. 675; s. c. 12 Luz. 89, 96 D. A. R. V. Schenley, 204 Pa 57^ 533 Dafiinger v. Pittsburgh and Allegheny Tel. Co. and City of Alle- gheny, 14 York 46; s. c. 48 P. L. J. (os) 37, 95 Dallas Boundary Line, 10 Kulp. 64, _. 247 Danner v. Wells, 248 Pa. 105, 987 Danner v. York, 12 York 9, _ :.. 484, 523 Danner et al. v. York City, No. 2, 14 York 10, 502 Dauphin County v. Gross, 15 Dauphin 140, _ 110 Davis V. Doylestown, 3 Pa. C. C. 573, 446 Davis V. Schuylkill County, 27 Pa. C. C. 177, 303 Dawson v. Pittsburgh, 159 Pa. 317, 497, 502 Day v. Swanson, 236 Pa. 493, 435 Deshart v. Commonwealth, 18 W. N. C. 157, 124 Deer v. Sheraden Borough, 220 Pa. 307, 49,484 Del. and Atl. T. and T. Co.'s Petition, 224 Pa. 55, affirming 37 Super. Ct. 151, affirming' 10 Del. Co. 340, _ 926 D. L. and W. R. R. Co. v. Scranton, 5 Pa. C. C. 437; s. c. 5 Kulp. 67, 448 Denniston v. Phila. Company, 1 Super. Ct. 599, 520 Derry Borough Sewer Case, 1 West. L. J. 127, 523 Dettra v. Philadelphia, 245 Pa. 139 532 Devers v. York City, 150 Pa. 208, 216 Devers v. York City, 156 Pa. 359,; 52 Deysher v. City of Reading, 18 Pa. C. C. 611 114 Diamond Street, Pittsburgh, 196 Pa. 254, 533 Disputed Boundary Line, 14 North. Co. 17, 247 Division of the Fifteenth Ward, 11 Phila. 406, 4 Dolan v. Schoen et al., 26 D. R. 880; s. c. 45 Pa. C. C. 510, 13 Sch. L. R. 54 19 Dormont Borough, 64 Super. Ct. 134 552 Dormont Borough v. Mt. Washington Street Ry. Co. No. 1, 63, P- L. J. 556 „ 399, 429 668 Dormont ISorough v. Mt. vvtisuuigton Street Ry. Co., No. 2, 63 P. L. J. 557, Dormont Borough v. Mt. Washington Street Ry Co., No. 3, 63, P. L. J. 558, Dormont Borough v. West Liberty Street Ry. Co., 64 Super. Ct. 562, Douglass et al. v. Commonwealth ex rel., 108 Pa. 559, DuBois Cemetery Co., v. Griffin, 165 Pa. 81, Dunlap, et al. v. City, 13 W. N. C. 98, Dunlevy Trustee for use, etc. v. Bell, 61 P. L. J. 259, Dunmore Borough v. Burke et al., 26 D. R. 1057; s. c. 18 Lack. J. 113, - Dunn V. Tarentum Borough, 23 Super. Ct. 332, Duquesne Borough v. Keeler, 213 Pa. 518, Eaches v. City of Reading et al., 1 Berks 350; s. c. 2 Lehigh 272, East Grant Street, Lancaster, 121 Pa. 596, Easton v. Kemmerer, 13 Pa. C. C. 522, Ebe's Appeal, 10 D. R. 367; s. c. 48 P. L. J. (os) 361, Ebe's Appeal, 10 D. R. 370; s. c. 48 P. L. J. (os) 363, Edison Electric Illuminating Co. v. Jacobs, 8 Kulp. 120, Egan V. Claysville Borough et al., 239 Pa. 259, Egypt Street, 2 Grant 454, - Eichenlaub v. City of Erie, 254 Pa. 70, Eighteenth Street, 42 Pa. C. C. 253; s. c. 62 P. L. J. 265, 6 M. L. R. SO, - Elliott V. Philadelphia, 229 Pa. 215, Elliott V. Pittsburgh et al., 6 D. R. 456; s. c. 45 P. L. J. (os) 8, Emery v. New Castle, 38 Pa. C. C. 225; s. c. 20 D. R. 583, Erie v. Flint, 8 Pa. C. C. 482, Erie v. Grant, 24 Super. Ct. 109, Erie v. Moody, 176 Pa. 478, Erie v. Motor Co., 24 Super. Ct. 11, Erie V. Reed, 113 Pa. 468, Erie v. Russell, 148 Pa. 384, - Erie v. Willis, 26 Super. Ct. 459, Erie to use v. Bier, 10 Super. Ct. 381, Esling's Appeal, 89 Pa. 205, Evans v. Phillipi, 117 Pa. 226, Everitt v. Auchu, 66 Super. Ct. 443, Federal Street and Pleasant Valley Pass. Co. v. Pittsburgh, 226 Pa. 419, Fifth Sewer District, 5 D. R. 303; s. c. 2 Lack. J. 149, Fifty-fourth Street— Pittsburgh's Appeal, 165 Pa. 8, Findley v. City of Pittsburgh, 82 Pa. 351, First National Bank of Bridgeville v. Pittsburgh Silica Co., 12 Just. L. R. 281, ..— Flick V. Harpham, 13 Pa. C. C. 648; s. c. 3 D. R. 568, Ford et al. v. Borough of Chartiers, 4 Penny. 62, Forty-sixth Ward, 58 Super. Ct. 428, Fourth Street, Harrisburg, 33 Pa. C. C. 204; s. c. 10 Dauphin Co. 50, 16 D. R. 989, 429 429 924 19, 743 .868 20, 26 429 412 497, 523 533 16,19 47 43 530 533 81,116 449 868 47 400 448, 455 19 502 49 23 124 43 40 152 405, 421 19 16 216 998 261 523 497 19 397,403 124 505 4 16 669 Franklin Guards Ass'n v. Boyer, 70 Super. Ct. 263, Frantz v. Allentown, 6 Lehigh 173, Fowler v. Gable, 3 D. R. 23, '^^ Frame v. Felix et al., 167 Pa. 47, ^^ 398 939 Fraser v. Pittsburgh, 41 Super. Ct. 103 502 Frazee v. M. L. and H. Co., 20 Super. Ct. 420 S20 Frederick Street, No. 2, 6 York 159, 502 Frfdrick Street, Young's Appeal, 155 Pa. 623, affirming 12 Pa. C. C. 577, 5 York 128 502 Free v. City of York et al., affirming 34 York 42, 110,345 Freeport Borough v. Miller Estate, 34 Super. Ct. 395 405, 429 Frick V. Philadelphia, 60 Super. Ct. 283, 532 Front Street, etc., Harrisburg, 19 Dauphin 383; s. c. 44 Pa. C. C. 666, _.. 47, 157, 158, 161, 484, 492, 497, 521 Fuller V. City of Scranton, 18 W. N. C. 18, affirming 1 Pa. C. C. 405, - 16,19,37,61 Fulton Street, 8 Super. Ct. 104 524 Fulton Twp. Road, 23 D. R. 678; s. c. 31 Lane. 134, 28 York 94, .- 487 Fyfe V. Turtle Creek Borough, 22 Super. Ct. 292 _ 484,497 Gallagher v. Porter, Director of Public Safety, 24 D. R. 649, 18 Gardner v. Chester, 13 Pa. C. C. 4; s. c. 2 D. R. 704, 5 Del. Co. 237- 293, 7 York 31, 3 Lack. J. 119, 10 Lane. 234, 504 Gaskins v. Montour County, 8 Luz. 270, 449 Geesey et al. v. City of York, 25 D. R. Ill; s. c. 28 York 203, af- firmed in 254 Pa. 397 - 409,411 Geisinger v. Hellertown Borough, 133 Pa. 522, affirming 6 Lane. 1, 1 North. 306, 504 Gettysburg v. United Telephone Co., 19 D. R. 875, 926 Gibbons v. Cochran, 32 Super. Ct. 185, 398 Gilchrist v. Strong, 167 Pa. 628, 250 Glass Co. V. Brackenridge Borough, 226 Pa. 89, affirming 56 P. L. J. 251, 556 Glenolden Borough to use v. Scott, 15 D. R. 705; s. c. 9 Del. Co. 514, 10 Northampton 77, 19 York 75 405 Goldsmith v. Tarentum Borough, 57 P. L. J. 494, 502 Goodwin V. Bradford City Council, 248 Pa. 453, 990 Grading and Curbing, 17th and 18th Streets and Sixth Avenue, 1 West. L. J. 72; s. c. 21 D. R. 1008, - 484, 497, 523 Grafius Run, 218 Pa. 632, affirming 31 Super. Ct. 638 _ 497, 682 Graham et al. v. City of Lebanon, 240 Pa. 337, 449 Grant Street, 17 Super. Ct. 459 523 Great Island Cemetery, 40 Pa. C. C. 559; s. c. 22 D. R. 607, 866 Green v. B. and O. R. R. Co., 245 Pa. 35, 572 Greenfield Ave., Pittsburgh's Appeal, 191 Pa. 290, reversing 21 Pa. C. C. 619, 8 D. R. 80, 46 P. L. J. (os) 245, 524, 525 Greensburg Borough v. Parks, 6 West. 39, 502- - Grcese et al. v. Beaver Twp. Supervisors et al., 24 D. R. 586; s. c. 42, Pa. C. C. 242, „ 1102 Grigg V. Benson, 35 Montgomery 317, 426 Guthrie v. McKees Rocks, 64 P. L. J. 493, 502, 505 679 Hadtner, et al. v. City of Williamsport, IS W. N. C. 138, 16,43 Hallock V. Lebanon, 215 Pa. 1, 19 Hamburg Borough v. Doering, 8 D. R. 131, 1102 Hamilton Ave., 41 Pa. C. C. 113; s. c. 61 P. L. J. 383, 22 D. R. 581, 517 Hamilton Ave., 48 Super. Ct. 156, affirming 59 P. L. J. 469, 3 M. L. R- 137, 16, 19, 523 Hammett v. Phila. 65 Pa. 146, 152 Hand v. Fellows, 148 Pa. 456, 49, 499, 523 Hanover and Plum Streets, 22 D. R. 664, 530 Hanover Borough v. Hanover Sewer Co., 251 Pa. 95, reversing 28 York n, 643 Hanover Borough Alley, 4 D. R. 160, 505 Hanover Borough's Appeal, 6 York 37, 502 Hanover Borough's Appeal, 150 Pa. 202, reversing 5 York 128, 1 D. R. 283 _ _ 484 Hanover Borough's Petition, 26 York 153, 484,517,643 Hanover Borough's Petition, No. 2, 27 York 133, s. c. S, M. L. R. 204, 497,502,643 Hanover Borough's-Petition, No. 3, 30 York 185, 484 Hansberry Street, 21 Pa. C. C. 590, 484 Hare v. Rice et al., 142 Pa. 608 504 Hare y. South Penn Oil Co., 256 Pa. 119, 435 Harriott Avenue, 24 Super. Ct. 597, 497, 530 Harris' Appeal, 160 Pa. 494, 216 Harrisburg v. Cummings, 6 D. R. 437, _ 497 Harrisburg v. Dauphin Deposit Bank, 12 D. R. 207; s. c. 6, Dauphin 4, 449 Harrisburg v. Deimler, 19 Pa. JC. C. 542, 43 Harrisburg v. Eby, et al., 16 Pa. C. C. 124; s. c. 4 Dauphin 278, .... 16, 153 Harrisburg v. Forster, 39 Super. Ct. 238, affirming 34 Pa. C. C. 228, 10 Dauphin 176, 502 Harrisburg v. Funk, 200 Pa. 340 49 Harrisburg v. Harris, 17 Lane. 173, 43 Harrisburg v. Harrisburg Gas Co., 219 Pa. 76, 40 Harrisburg v. McPheran, 200 Pa. 343, 49 Harrisburg v. Mateer, 4 D. R. 554 152 Harrisburg v. Penna. Telephone Co., 15 Pa. C. C. 518,. 43 Harrisburg v. Railway Co., 4 D. R. 683, 43 Harrisburg v. Segelbaum, 151 Pa. 172, 49 Harrisburg v. Sheck, 104 Pa. S3, 72 Harrisburg v. Shepler, 190 Pa. 374, affirming 7 Super. Ct. 491, 116 Harrisburg v. Trego, 7 Super. Ctj 511, 116 Harrisburg's Park, 34 Pa. C. C. 219; s. c. 10 Dauphin 174, 493.872,880 Harrison Twp., 20 Pa. C. C. 54; s. c. 45 P. L. J. 196, 1102 Harrison's Estate, 250 Pa. 129, affirming 23 D. R. 605, 521,869 Haspel V. O'Brien, 218 Pa. 146, reversing 32 Super. Ct. 147, 397, 398 Haus' Estate, 12 Pa. C. C. 74; s. c. 2 D. R. 88, 156 Hawkes v. Philadelphia, 264 Pa. 346, 556 Hawley v. Pittsburgh, 204 Pa. 428, 497 Hazelton v. L. V. R. R. Co., 11 D. R. 644 80 Hazle Twp., 1 D. R. 813; s. c. 6 Kulp 491, 1102 Heller's Appeal. 16 D. R. 647; s. c. 10 North. 334, 533 Heller's Appeal, 17 D. R. 901; s. c. 11 Northampton 217, 47 671 Hempfield Twp., Supervisors, 36 Pa. C. C. 532; s. c. 11 Del. Co. 188, S7 P. L. J. 23S, 446 Hench and Dromgold v. York, 14 York 9, 484 Hicks V. Griswold, 2 Lack. L. N. 129, - 427 Higgins V. Price, 8 Lack. J. 333, 243 Higgins V. Price, 36 Super. Ct. 21 S - 234 Highland Avenue, 4 West. L. J. 23, 497 Hileman v. Hollidaysburg Borough, 47 Super. Ct. 41, 556 Hill v. Wilkinsburg, 61 P. L. J. 262; s. c. 4 M. L. R. 231, 556 Hinkle v. Philadelphia, 214 Pa. 126, 20 Hobbs v. Shamokin Borough, 66 Super. Ct. 22, affirming 3 N. L. J. 17, 499 Hoffman v. Matthes, 6 Lane. 89, 216 Hoffman v. Philadelphia, 250 Pa. 1, 159,498 Hoffman v. Pittsburgh, 229 Pa. 36, _ 449 Holtzman v. Braddock, 14 D. R. 547, _ 449 Hoover v. Union Twp. School District, 4 Pa. C. C. 520, 504 Hoster v. Philadelphia, 12 Super. Ct. 224, _ 484 Houston v. Lancaster, 191 Pa. 143, affirming 15 Lane. 177, 8 D. R. 19, _... 442, 448 Howell v. Morrisville Borough, 212 Pa. 349, reversing 29 Pa. C. C. 1, 13 D. R. 673, 497, 499, 502, 523, 533 Howell V. Northampton Borough, 21 D. R. 287; s. c. 13 North. 34, 11 Del. Co. 533, 4 M. L. R. 16, 502,504 Inter-state Vitrified Brick and Paving Co. v. Philadelphia, 164 Pa. 477, 743 Iowa Street, 12 Pa. C. C. 611; s. c. 3 D. R. 509, 41 P. L. J. (os) 468, 530 Irvine Street, Pittsburgh, Gant's Appeal, 40' P. L. J. (os) 219, .... 530 Irwin et al. v. Township of Miflflin et al., 64 P. L. J. 445; s. c. 26 D. R. 39, ...- 474 Jackson v. Pittsburgh, 36 Super. Ct. 274, 484,497 Jermyn v. City of Scranton et al., 186 Pa. 595, reversing 3 Lack. L. N. 112, _ 179 Jitney Bus Ass'n v. Wilkes-Barre, 256 Pa. 242, affirming 19 Dauphin 65, _ _ 975 Jodin V. Ball, 43 Pa. C. C. 555; s. c. 25 D. R. 1050, 985 Johnstown v. Central District, 23 Super. Ct. 381, 43 Johnstown Telephone Co. v. Ferndale Borough, 47 Super. Ct. 461, 922 Johnstown Telephone Co. v. Southport Borough, 47 Super. Ct. 468, 922 Jones v. Borough of Old Forge, 18 Lack J. 324, _ 280 Jones and Kumer v. Jones et al., 22 D. R. 238; s. c. 1 Northum- berland L. J. 28, 19 Kaufman v. P. C. and W. R. R. Co., 210 Pa. 440 519 Reiser v. Hart et al., 20 Luz. 464 120 Keller v. Scranton. 200 Pa. 130, _ 442 Keller v. Scranton, 202 Pa. 586, _ _ 44,442,448 Kelley v. Philadelphia, 6 Pa. C. C. 243, 504 Kennedy v. Meyer, 259 Pa. 306, 18 Kennett Electric Light Co. v. Kennett Square Borough, 4 D. R. 707; s. c. 9 York 65, 6 Del. Co. 229, 1102 Keystone Surgical Supply Co., v. Bate, 187 Pa. 460 1102 Kilgore v. Magee, 85 Pa. 401 216 672 Kindling Machine Co. v. York City, 54 Super. Ct. 318, 116 ICirkpatrick v. Pittsburgh, 64 P. L. J. 661; s. c. 30 York 110, 511 Knccht V. Northampton, 4 North. 399, 110 Kneeland v. Pittsburgh, 11 Atl. 657, 934 Knerr v. Krause, 3 Pa. C. C. 563, 216,217 Koch V. Oil City, 47 Super. Ct. 248, 133 Kosek V. Moore et al., 18 Luz. 104, 91 Kohler v. Reitz, 46 "Super. Ct. 350, 82 j, 399 Kreusler v. McKees Rocks School District, 256 Pa. 281, 442 Lackawanna Avenue Viaduct, 14 Pa. C. C. 603; s. c. 4 Northampton 206, 3 Lack. J. 273, 484 Lackawanna County v. Duffy, 248 Pa. 575 1098 Lackawanna Twp., Harris' Appeal, 160 Pa. 494, 9 Lafean v. York Co., 20 Super. Ct. 573, 484 Lageman v. Pittsburgh, 47 Super. Ct. 493, affirming 58 P. L. J. 171, 502, 532 Laird v. Greensburg, 8 Pa. C. C. 621, 448 Laird v. Pittsburgh, 205 Pa. 1, 870 Lamb et al. v. City of Erie et al., 262 Pa. 391, affirming 47 Pa. C. C. 276, 116 Lamberton v. Franklin City, 15 D. R. 739; s. c. 7 Lack. J. 290, .... 502,533 Lancaster v. Foehl, 39 Pa. C. C. 494; s. c. 29 Lane. 147, 21 D. R. 858, 420 Lancaster v. Haller, 35 Lane. 97, 27 D. R. 803, , 405,429 Lancaster v. Susquehanna Turnpike, 26 Lane. 6, 22 York 108, 665 Lancaster's Petition, 20 D. R. 225; s. c. 27 Lane. 233, 2 M. L. R. 121, 650 Langan v. Pittston School District, 17 Luz. 385, 743 Lansdowne Borough v. Burdsall, 26 D. R. 938; s. c. 31 York 84, 14 Del. Co. 325, _ 401 Lansdowne Borough v. Phipps, 12 Del. Co. 235, 399 Lansdowne Borough to use v. Hartel, 48 Super. Ct. 430, affirming 11 Del. Co. 356-458 403, 405, 429 Lansford Borough v. Brode, 7 Pa. C. C. 221, 933 Laporte Borough v. Walsh, 28 D. R. 650, - 401 Lehigh Coal and Navigation Co.'s Appeal, 112 Pa. 360, 446 Lehigh County v. Allentown, 4 Lehigh 176, 1112 Lesser v. Warren Borough, 237 Pa. 501, affirming 21 D. R. 578, 60 P. L. J. 619, 3 M. L. R. 153, 442,656 Lewis V. Lackawanna County, 200 Pa. 590, 217 Lewis et al. v. Philadelphia et al., 20 D. R. 113, affirmed in 235 Pa. 260, 19 Liberty Street, 27 Pa. C. C. 156; s. c. 12 D. R. 95, 504 Liberty Street Grading, Meadeville, 11 D. R. 488; s. c. 8 Lack. L. N. 211, 497, 502 Ligonier Borough v. Deeds et al., 3 West. L. J. 200, 403 Ligonier Borough v. Presbyterian Church, 22 D. R. 868; s. c. 2 West. L. J. 233, 4 M. L. R. 220, , 400,497 Ligonier Valley R. R. Co. v. Latrobe Borough, 216 Pa. 221, 564 Lincoln v. Birdsboro, 7 Pa. C. C. 539, 504 Lloyd V. Altoona, 134 Pa. 545 464 Lloyd V. Smith, 176 Pa. 213, 216, Lockhart Street, 8 D. R. 623, s. c. 7 Northampton 55, 22 Pa. C. C. 363, - .484,497,502 Lock Haven Cemetery, 40 Pa. C. C. 560; s. c. 22 D. R. 614, 866 Locust Street, Lancaster, 10 Lane. 206, 530 Logan Twp. Case, 24 Pa. C. C. 541, 11 673 43 Long V. Lemoyne Borough, 222 Pa. 311, 1102 Long et al. v. Phillips, 241 Pa. 246, ~- 435 Long's Appeal, 87 Pa. 114 504 Love Lane Grading — Damages of Lizzie McCue, 29 Lane. 36, 497 Love Lane Grading — Damages of Rosa Gegg, 29 Lane. 33, 497, 502 Lowery v. Scranton, 4 Lack. L. N. 317, 524 Loyalsock T-wp. Road, 26 Super. Ct. 219, 531 McAboy's Appeal, 107 Pa. 548, _ 574, 917 McAllister v. Armstrong County, 20 Pa. C. C. 201, 303, 304 McAIpine Street, 40 Super. Ct. 268, 505 McAndrew v. Donnelly, 18 Luz. L. R. 226; s. c. 14 Just. L. R. 94, 109 McAskie's Appeal, 154 Pa. 24, 9,234 McCall v. Coates, 148 Pa. 462, 49, 499, 523 McCall V. D. L. and W. R. R. Co. and Duryea Borough, 71 Super. Ct. 508 - 499 McCallen's Appeal, 1 Monaghan 596, reversing 6 Pa. C. C. 107, .... 19 McCartley v. Commonwealth, 110 Pa. 243 216 McDermott v. New Castle, 3 D. R. 221; s. c. 41 P. L. J. (os) 97, 13 Pa. C. C. 474, 497,532 McDonald Borough v. Williams, 41 Pa. C. C. 157, 405,429 McFadden Company v. Philadelphia, 59 Super. Ct. 44, _. 497 McGuire v. Philadelphia, No. 1, 245 Pa. 287, 455 MlcGuire v. Wilkes-Barre, 36 Super. Ct. 418, , 556 McKaeig v. Philadelphia, 53 Super. Ct. 591, 484 McKee v. Pittsburgh 7 Super. Ct. 397 , 484 McKees Rocks Borough Petition, 64 P. L. J. 491 502 McKeesport v. Allegheny County, 21 D. R. 326; s. c. 60 P. L. J. 248, 1111 McKeesport v. Fidler, 147 Pa. 532 _ 388 McKeesport v. Pass. Ry. Co., 2 Super. Ct. 242, 47 McKinney v. York Co., 8 Del. Co., 551; s. c. 16 York 121, 304 McKinney et al. v. Schlingmann et al., 24 D. R. 1097; s. c. 16 Lack. J. 60, 6 M. L. R. 214, 397 McKinnon v. Mertz, 225 Pa. 85. affirming 56 P. L. J. 195, 442 McLaughlin v. Summit Hill Borough, 224 Pa. 425, 449 ^Mahoning and Shenango R. and L. Co. v. New Castle, 233 Pa. 413, 85 Mahanoy City v. Olkin, 31 Pa. C. C. 491; s. c. 1 Lehigh 373, 3 Schuylkill 84, 5 Just. L. R. 146, 931 Malas v. City of Coatesville, 28 D. R. 253; s. c. 10 M. L. R. 209, .... 75 Maloney v. Simpson, 226 Pa. 479, 412,429 Manchester Supervisors v. Wayne County, 257 Pa. 442, 555 Manheim — Opening and widening certain streets, 7 Lane. 292, 504 Manheim Borough v. Manheim Water Co., 229 Pa. 177, affirming 27 Lane. 321 653 Manifold v. York, 15 D. R. 101; s. c. 19 York 85, 1112 Marcoz v. Wilmerding Borough, 37 Super. Ct. 185, 523 Marietta Borough v. Telephone Co., 36 Lane. 269-271; s. c. 11 M. L. R. 106, 29 D. R. 32, 924 Marshall v. Elwood City Borough, 189 Pa. 348; s. c. 43 W. N. C. 482, _ 1102 Martin v. Greenwood, 27 Super. Ct. 245, _ 398 Martindell v. Berry, 59 P. L. J. 503; s. c. 10 Just. L. R. 58, 552 Massey v. Philadelphia, 1 W. N. C. 534, 216 Mazet V. Pittsburgh et al. 137 Pa. 548, affirming 6 Pa. C. C. 599, .... 19 674 Meadeville v. Dickson, 129 Pa. 1, 216 Meadeville v. Hummel, 15 Pa. C. C. 298, ; 133 Meadeville v. Miller, 14 D. R. 27, 113 Meadeville Annexation, 37 Pa. C. C. 582, „ 11, 234 Mellon V. Spring-dale Borough, 60 P. L. J. 485, 4 M. L. R. 33, 868 Melon Street, 182 Pa. 397, reversing 1 Super. Ct. 63, 499, 530 Methodist Cemetery Case, 39 Pa. C. C. 17; s. c. 20 D. R. 672, 59 P. L. J. 643, : 866 Meyersdale Borough v. Somerset Tel. Co., 68 Super. Ct. 385, 924 Milford V. Milford Water Co., 124 Pa. 610, 1102 Mill Creek Sewer, 196 Pa. 183, 497,498 Miller v. Clavsrson, 28 D. R. 203, 426 Miller v. Manheim Borough, 7 Lane. 291, 504 Miller V. Menallen Twp., 42 Pa. C. C. 579; s. c. 62 P. L. J. 669, .... 491 Miller v. South West Pa. Pipe Lines, 2 D. R. 602, 504 Miller v. Westmoreland Coal Co., 40 Pa. C. C. 399; s. c. 22 D. R. 904, 483 Miller's Estate, 18 D. R. 225, „ 388 Millerstown v. Frederick, 114 Pa. 435, _ 44,442,448 Millvale v. Poxon et al., J23 Pa. 497, 504 Millvale, Appeal of Howard et al., 162 Pa. 374, 447 Monessen Borough v. Central D. and P. T. Co., 51 Super. Ct..452, affirming 21 D. R. 904, 1 West. L. J. 240, „ _ 924 Montgomery v. Haymaker, 18 D. R. 1009; s. c. 57 P. L. J. 9, 556 Moony v. Pittsburgh, 47 P. L. J. (os) 370, 533 Moore v. Pittsburgh, 254 Pa. 185, 240,262 Morewood Avepue— Chamber's Appeal, 159 Pa. 20, —.49, 497, 530 Morrellville Boroughs Annexation, 7 Super. Ct. 532, affirming 20 Pa. C. C. 257, _ 9, 16 Morris v. Hainer, 16 Pa. C. C. 468; s. c. 4 D. R. 635, 43 P. L. J. (os) 133, _ 426 Morrison v. Peace, 27 D. R. 897; s. c. 46 Pa. C. C. 362, 109 Morton v. Homestead Borough, IS Pa. C. C. 646; s. c. 42 P. L. J. 328, „ i 484 Morton Borough v. Smith, 23 D. R. 1071; s. c. 12 Del. Co. 523, 5 M. L. R. 282, 401 Motor Vehicles, 1920 Dauphin 70; s. c. 68 P. L. J. 194, 6 Dep. Rep. 525, - _ :... 1008 Mt. Carmel v. Vought, 6 Just. L. R. 64, 939 Mt. Joy V. King and Co., 6 Lane. 345, 938 Mt. Joy V. Railroad Co., 11 D. R. 765; s. c. 19 Lane. 217, 8 North. 247, _ 634 Mt. Oliver Borough v. First German Evangelical Lutheran, St. Paul's Congregation of East Birmingham, 51 Super. Ct. 343, 400 Mt. Pleasant Avenue — ^Appeals of Tourison et al, 171 Pa. 38, 502 Mundy v. Gaertner, 20 Luz. 213, 361 Mundy v. Myers, 19 Luz. 213, _ '.. 120,361 Murdoch V. Pittsburgh (No. 1), 223 Pa. 280, 502 Murdoch v. Pittsburgh (No. 2), 223 Pa. 283, 502 Mussina v. Clinton County, 35 Pa. C. C. 155; s. c. 17 D. R. 1093, 1112 Myers et al. v. South Bethlehem Borough, 149 Pa. 85, 517 675 Nanticoke Borough v. Bell Telephone Co., 47 Super. Ct. 184, 922 Nescopeck Twp. Private Road, l4 W. N. C. 559, affirming 2 Kulp. 487, :. 504 Nevling v. Corley, 15 D. R. 151, ^^^ New Castle v. Cutler, IS Super. Ct. 612 4j New Castle Petition, 16 Pa. C. C. 478, 497,499 New York and Cleveland Gas Coal Co. v. Pittsburgh et al., 6 D. R. 757, ■ 1^ N. Y. and Pa. T. and T. Co. v. Coudersport Borough, 49 Super. Ct. 46, reversing 38 Pa. C. C. 33, 20 D. R. 346, 2 M. L. R. 223 922 Newell et al. v. Bradford City, 18 Pa. C. C. 465, .' 61 Nicholson Borough, Main Street, 27 Super. Ct. 570, 484,497 Nocton V. Norristown Borough, 20 Montg. 194; s. c. 18 York 105, 499 Nocton V. P. R. R. Co., 32 Super. Ct. 555 499 Nocton V. Railroad Co. et al., 20 Montgomery 25; s. c. 74-81-194, 533 North Front Street, 52 Super. Ct. 345 532 North Lexington Street Viewers,- 66 P, L. J. 636, 497 Norwood Borough v. Keystone Telephone Co., 64 Super. Ct. 261, affirming 13 Del. Co. 181, 6 Lehigh 262, 7 M. L. R. 182, 29 York 46, 922 Norwood Street, 28 Pa. C. C. 555 486 Notary Public, 27 D. R. 820, 15,91,275 Novotny v. Donora Borough, 59 P. L. J. 143, 502, 505 Nowling v. Newell, 65 Super. Ct. 67, 121 Oakley v. Luzerne Borough, 25 Super. Ct. 425 47,484,556 O'Brien v. City of Erie, 20 Pa. C. C. 337, 78 O'Donnell v. Pittsburgh, 227 Pa. 14, 502 Ogontz Avenue, 225 Pa. 126, 532 Olyphant Borough Sewer, O'Malley's Appeal, 198 Pa. 534 502 Olyphant Sewer-Drainage Co. v. Olyphant Borough, 211 Pa. 526, affirming 4 Lack. J. 369 : 497 O'Malley v. Olyphant, 198 Pa. 525, 442 Oil City V. Hartwell, 164 Pa. 348, 413 Oil City V. Lay, 164 Pa. 370, 49 Oil City V. Oil City Boiler Works, 152 Pa. 348, 152 Oil City V. Postal Telegraph Cable Co., 68 Super. Ct. 77, 915 Oil City V. Trust Co. 151 Pa. 454, 43 Oil City Building and Loan Ass'n v. Shanfelter, 29 Super. Ct. 251, 398 Old Forge Borough v. Foley Estate, 67 Super. Ct. 125, reversing 17 Lack. J. 197, 405 Omega Street-Traver's Appeal, 152 Pa. 129, 497,502 Opening of Ruan Street, 132 Pa. 257, 216 Opening of Spring Street, Reading, 112 Pa. 258 47,157 Ordinance of City of Pittsburgh, 56 P. L. J. 325, _ 11 Ordinance of South Chester Borough, 6 Del. Co. 539, 11 Orkney Street, 9 Super. Ct. 604, affirmed in 194 Pa. 425 530 Orthodox Street, Phila's Appeal, 169 Pa. 499 484,497 Osterheldt v. Phila., 195 Pa. 355, ' SS6 Palo Alto Road, 160 Pa. 104 47 Park Ave. Sewers, 169 Pa. 433 152 497 523 Parkway, opening, 249 Pa. 367, 373 676 Paraassus Boreugh v. Parnassus United Presbyterian Church, 43 Pa. C. C. 142; s. c. 4 West. L. J. 155 400 Passyunk Ave., B. M. Ass'n v. Public Service Commission, 73 Super. Ct. 242, s. c. 8 P. C. R. 324, 918 Payments to dependents of enlisted employes — Opinion by Dpt. Att. Gen., 3 Dept. Rep. 2190, 31S, 316 Payments to dependents of enlisted employes — Opinion by Dpt. Att. Gen., 4 Dept. Rep. 425, 315 Payments to dependents of enlisted State employes — Opinion by Dpt. Att. Gen., 3 Dept. Rep. 2313, 315,316 Payments to dependents of enlisted State employes — Opinion by Dpt. Att. Gen., 3 Dept. Rep. 2949, 315 Payments to dependents of enlisted State employes — Opinion by Dpt. Att. Gen., 3 Dept. Rep. 2983, 315, 316 Payments to dependents of enlisted State employes — Opinion by Dpt. Att. Gen., 3 Dept. Rep. 3237, 316,317 I'ayments to dependents of State employes — Opinion by Dpt. Att. Gen., 3 Dept. Rep. 3441, 315,317 Pearson v. Kantner et al., 8 Schuylkill 63 448, 450 Pennsburg Alley, 12 Pa. C. C. 213, s. c. 2 D. R. 136; 10 Lane. 7-101; 8 Montg. 177; 5 Del. 150, 484,497,502 Pennsylvania Co. v. Pittsburgh, 226 Pa. 322, 261 Pennsylvania Co. for Insurance on Lives and Granting Annui- ties, Trustee v. Phila., 262 Pa. 439, _ 500,518 Pennsylvania Gas Co.'s Petition, 258 Pa. 234, 924 Pennsylvania Water Co. v. Pittsburgh, 226 Pa. 624, 82 Petition for appointment of Viewers, 8 Lack. J. 195, 484 Petition for Public Road, 64 P. L. J. 652, s. c. 30 York 130, 501 Petition for Viewers, 1 Lack. J. 382, 16, 157 Petition of Evans in Lititz Borough, 14 Lane. 369, s. c. 7 Del. Co. n, 530 Phelps et al. v. Phila. et al., 12 Phila. 300, 483 Philadelphia v. Conway, 257 P. 172, 497, 499 Philadelphia v. Dale, 56 Super. Ct. 342, 407 Philadelphia v. DeHaven, 41 Super. Ct. 265, ..._ ,. 388 Philadelphia v. Durham, et al. 16 D. R. 81, 19,26 Philadelphia v. Elliott, 23 D. R. 643, 403,415 Philadelphia v. Hyde, 48 Super. Ct. 269, 399, 429 Philadelphia v. Lewis, 40 Pa. C. C. 698, s. c. 22 D. R. 176, ,... 405, 429 Philadelphia v. McLinden, 205 Pa. 172, affirming 26 Pa. C. C. 287, 749 Philadelphia v. Meighan, 15 D. R. 10, 405 Philadelphia v. P. and R. R. R. Co., 38 Super. Ct. 529-531, 396, 400 Philadelphia v. P. and R. R. R. Co., 7 Pa. C. C. 390, s. c. 25 W. N. C. 320; 19 Phila. 507 574-917 Philadelphia v Unknown, 24 D. R. 753, 412 Philadelphia v. Weaver, 14 Super.i Ct. 293 50, 484, 499 Philadelphia v. Westminster Cemetery Co., 162 Pa. 105, 216 Philadelphia Jitney Ass'n v. Blankenburg, 24 D. R. 1000, s. c. 7 M. L. R. 153, 975 Philadelphia Museums v. University of Pennsylvania, 251 Pa. 115, 1080 Philadelphia to use v. De Armond, 63 Super. Ct. 436, 388,403 Philadelphia to use v. DeHaven, 38 Super. Ct. 541, 388 Philadelphia to use v. Fairhill R. R. Co., Nos. 1 and 2, 41 Super. Ct. 245-246, 396, 400 677 Philadelphia to use v. Kinkaid et al. 24 D. R. 287, .: 405 Philadelphia to use v. Mason, 37 Super. Ct. 478, -403, 412, 435 Philadelphia to use v. Pemberton, 25 Super. Ct. 323 reversing 29 Pa. C. C. 252, s. c. 12 D. R. 743, 19, 393, 399 Philadelphia to use v. Pemberton, 206 Pa. 73, 434 Philadelphia to use v. Pemberton, 208 Pa. 214, 393, 399 Philadelphia to use v. Street, 41 Super. Ct. 503 _ 403 Philadelphia's Petition, 253 Pa. 434, affirming 60 Super. Ct. 594, 697 Phoenix v. Reynolds, 13 Phila. 522, 216 Phoenixville Borough v. Little, 24 D. R. 536, s. c. 7 M. L. R. 119, 939 Pike County v. Rowland, 94 Pa. 238, 442 Pittsburgh v. Biggert, 23 Super. Ct. 540, 534 Pittsburgh v. Calvary Cemetery Ass'n, 44 Super. Ct. 289, 400, 523 Pittsburgh v. Canevin, Trustee, 64 P. L. J. 636, 502 Pittsburgh V. Daly, S Super. Ct. 528, 534 Pittsburgh v. Fay, 8 Super. Ct. 269, 534 Pittsburgh v. Irwin's Executors, 85 Pa. 420, 499,504 Pittsburgh v. Moreland, 47 P. L. J. 195, 1097 Pittsburgh v. O'Brien, 239 Pa. 60, affirming 60 P. L. J. 545, 413 Pittsburgh v. P. and L. E. R. R. Co., 263 Pa. 294, affirming 65 P. L. J. 287 556 Pittsburgh and Allegheny Bridge Co. v. Pittsburgh, 56 P. L. J., i;9 592 Pittsburgh and Allegheny Telephone Co. v. Braddock Borough, 43 Super. Ct. 456, affirming 56 P. L. J. 372, 922 Pittsburgh's Petition, 217 Pa. 227, affirming 32 Super. Ct. 210, affirming 15 D. R. 423, s. c. S3 P. L. J. 279, _ 216,254,260,264 Pittsburgh's Petition, 179 Pa. 634 ". 502 Pittsburgh's Petition 243 Pa. 392, affirming 59 P. L. J. 45, 517 Pittsburgh's Petition for viewers, 64 P. L. J. 22, .'. 484 Pittsburgh's Petition for Viewers, Smith's Appeal, 179 Pa. 630, 502 Pittsburgh's re-districting, 37 Super. Ct. 525, 216 Pittsburgh Street, 4 D. R. 681, s. c. 43 P. L. J. (os) 180, 497 Pittston v. Kehoe, 17 Luz. L. R. 293, 370 Pittston's Appeal, 8 D. R. 641, s. c. 17 Lane. 27; 9 Del. Co. 482; 9 Kulp. 468; 13 York 102-127; 47 P. L. J. (os) 157, 502 Port Clinton and Postal Tel. Co., 4 Schuylkill 178, 924 Postal Telegraph and Cable Co. v. Altoona, 58 Super. Ct. 24, 922 Postal Tel. Cable Co. v. Hollidaysburg, 17 D. R. 298 924 Postal Tel. Cable Co.'s Petition, 57 P. L. J. 49, 924 Postal Telegraph Co. v. Lancaster, 18 D. R. 874, 924 Potters National Bank v. Ohio Twp. 260 Pa. 104, 446 Powell V. Scranton, 227 Pa. 604, affirming 39 Super. Ct. 488, 234, 233 Powell's Petition, 16 D. R. 973, s. c. 10 Del. Co. 256, 484 Prager v. Armstrojig Co., 48 Super. Ct. 140, _ 157,484 Prospect Park Boro. v. Duhring, 14 Del. Co. 315, 394,402,405,414 Prospect Park Borough v. McCoach, 52 Super. Ct. 527, 408 Prospect Park Boro. v. Wyndham, 8 M. L. R. 55, s. c. 14 Del. Co. 117, - 402,411,414 P. R. R. Co. v. Bogert, 209 Pa, 589 S67 P. R. R. Co. V. Gorsuch, 84 Pa. 411, 504 Pulaski Avenue, 17 Pa. C. C. 391, s. c. 5 D. R. 1, 48,]. Pulaski Avenue, 220 Pa. 276, 502 Pulaski Avenue, 33 Super. Ct. 108 47 Punxsutawney v. Cormalt, 44 Super. Ct. 365, 40i 678 Punxsutawney v. Nordstrum, 61 Super. Ct. 253 403 Punxsutawney v. Perry Wingert, 63 P. L. J. ISS 403 Punxsutawney v. Western Union Tel. Co., 18 D. R. 308 _ 924 Pusey V. Allegheny City, 98 Pa. 522, s. c. 10 W. N. C. 561, 484, 504, 52;^ Queen Street, 18 Super. Ct. 241, 502 Quicksall v. Phila., 177 Pa. 301, 555 Race Street— Middletown, 36 Pa. C. C. 89, s. c. 12 Dauphin 80, 19 D. R. 19, 497 Rafalovitch v. Klinger Company, 66 P. L. J. 277, 1009 Rainsburg Borough v. Pagan, 127 Pa. 74, 448 Ralston v. Sharon Hill Borough, 43 Super. Ct. 280 502 Reading v. Bitting, 167 Pa. 21, 43 Reading v. Heat and Power Co., 20 Pa. C. C. 411, 43 Reading v. Heilman, 19 Super. Ct. 422, 50 Reading v. Jones, 14 D. R. 66, _ 931 Reading v. Miller, 45 Super. Ct. 28, 43 Reading v. Miller, 6 Berks 257, s. c. 6 M. L. R. 61, 17, 95 Reading v. Moers, 11 Bucks 229, s. c. 11 M. L. R. 95, , 403 Reading v. O'Reilly, at al., 169 Pa. 366, 49 Reading v. Savage, 124 Pa. 328, 216 Rees V. City of Erie, 243 Pa. 189, ' 179 Register v. Lower Merion Twp. 20 D. R. 902, s. c. 26 Montgomery 137, ; _ 152,498 Renting et al. v. Titusville, 175 Pa. 512, 19, 743 Reynolds Street Sewer, No. 1, 34 Super. Ct. 209, 152, 498 Reynoldsville Borough, 22 Pa. C. C. 461, 524, 530 Richardson v. Freedom Borough, 65 P. L. J. 600, s. c. 34 Lane. 395, 998 Richmond Street, 28 Pa. C. C. 531, s. c. 12 D. R. 391, 532 Richmond Street, 11 Phila. 453, s. c. 8 Leg. Gaz. 75, 504 Ridgway v. P. and R. R. W. Co. 22 D. R. 739, ., 574-917 Riebe v. Walton, 18 Pa. C. C. 289, s. c. sub. nom. Riebe v. Lans- ford Borough, 5 D. R. 557, _ 1102 Ripley et al. v. Erie, 15 D. R. 12, 497 Roach V. Borough of Washington, 33 Pa. C. C. 101, s. c. 54, P. L. J. (os) 323, 502 Road in Ransom and Lackawanna Twps., 18 Pa. C. C. 417, 47 Robinson v. South Chester Borough et al., 2 Chester Co. 441, s. c. 1 Del. Co. 18, 504 Rockland Ave., 62 P. L. J. 631, 488 Rodearmel v. Hutchinson, 2 Pearson 324, 83 Rodgers v. Freemansburg Borough, 2 Pa. C. C. 523, 504 Rouchheim v. Phila., 218 Pa. 100, 19 Roudebush v. Meadville, 241, Pa. 261, affirming 40 Pa. C. C. 254, 38 Pa. C. C. 209, 20 D. R. 602, 96,100,872,880,885 Roumfort Company v. Delaney, 230 Pa. 374, 216 Roy v. Columbia Borough 192 Pa. 146, 449 Rule to strike off tax lien against Shappert, 18 Luz. L. R. Rep. 76, 405 Runkler v. Com., 97 Pa. 328, 124 Ruscomb Street, 30 Super. Ct. 476-480, 499 Russell v. Williamsport, 9 Pa! C. C. 129, 52,109 P..uth V. City of Johnstown, 21 D. R. 1118, 16 Ryan et al. v. Ashbridge, Mayor et al. 10 D. R. 152, 19 679 Saeger v. Com., 258 Pa. 239, affirming 45 Pa. C. C. 452, 487 Safe Deposit and Trust Co. v. Fricker, 152 Pa. 231, 216 Safe Deposit Bank of Pottsville v. Schuylkill Co., 190 Pa. 188....... 448 Saint Clair Borough v. Souilicr, 234 Pa. 27, 502 Saint Frances Sisters v. Millvale Borough, 69 Super. Ct. 302 532,556 Sample v. Pittsburgh, 212 Pa. 533, 216,254 School District of Denison Twp. v. Sliortz, et al. 2 Penny. 231, 448 School District of Kingston v. Luzerne County et al, 17 Luz. 431, s. c. 6 M. L .R. 197, 449 Schuldice v. Pittsburgh, 234 Pa. 90, affirming 59 P. L. J. 192, 44, 442, 447, 448, 455 Schuldice v. Pittsburgh, 251, Pa. 28, 44,442,447,448,455,462 Scott V. Donora Southern R. R. Co. 222 Pa. 634, 556 Scott Township v. Davis 68 P. L. J. 217, 389 Scowden's Appeal, 96 Pa. 422, 216 Scranton v. Ansley, 34 Super. Ct. 133, 152, 216, 217 Scranton v. Barnes, 147 Pa. 461 153 Scranton v. Boncherillo, 19 York 53, : 16 Scranton v. Bush, 160 Pa. 499, 49,499 Scranton v. Carter Estate, 21 Lack, J. 68, _ 401 Scranton v. Clarke, 34 Super. Ct. 128, 497,490 Scranton v. Genet, 232 Pa. 272, 403 Scranton v. Jermyn, 156 Pa. 107, 49 Scranton v. Jones^ 133 Pa. 219, 156 Scranton v. Koehler, 200 Pa. 126, 49 Scranton v. Koehler, 36 Super. Ct. 95, affirming 8 Lack. J. 83, .... 411 Scranton v. Levers, 200 Pa. 56, 152 Scranton v. McAnulty, 26 D. R. 66, s. c. 8 M. L. R. 31, 17 Lack. J. 107, 41 1 Scranton v. Meadowbrook Land Co. 20 Lack. J. 33; s. c. 28 D. R. 882, 412 Scranton v. Mears, 2 Lack. J. 53, 155 Scranton v. Penna. Coal Co., 105 Pa. 445, 49,499 Scranton v. Peoples Coal Co., 20 Lack 145, 318 Scranton v. Robertson, 28 Super. Ct. 55, affirming 5 Lack. J. 145, .— 387 Scranton v. Rose, 60 Super. Ct. 458, affirming 15 Lack. 122, 318 Scranton v. Scranton Hosiery Mills, 44 Pa. C. C. 87, s. c. 16 Lack. J. 191-275, 403, 411, 412 Scranton v. Stokes, Nos. 1 and 2, 28 Super. Ct. 434-437, 403,411,435 Scranton v. Sturges, 202 Pa. 182, 387 Scranton v. Vail et al. 6 Kulp 237, 462,463 Scranton v. Watson, 61 Super. Ct. 86, reversing IS Lack. Ill, 497 Scranton v. Whyte, 148 Pa. 419, 216 Scranton Ry. Co. v. Fiorucci, 66 Super. Ct. 475 975 Scranton School District's Appeal, 113 Pa. 176, 216 Scranton Sewer, 213 Pa. 4 399,502 Scranton to use v. Richmond, 16 Lack. J. 64, 403 Second Street, Harrisburg, 32 Pa. C. C. 297, s. c. 9 Dauphin 121 497 Second Street, Pa. Steel Go's Appeal, 161 Pa. 571, 502 Section "G", Seventeenth Sewer District, 8 Lack. J. 219, s. c. 21 York 68, : 499,502 Sedgley Ave., Lehigh Ave., 217 Pa. 313, affirming 14 D. R. 829, .... 532 Sedgwick v. Erie Co., 7 Just. L. R. 218 1112 Seibert v. Berks County, 19 D. R. 56, s. c. 1 Berks Co. 218 556 680 Seminary v. Washington Borough, 18 Super. Ct. SSS, 5S6 Sener et al. v. Ephrata Borough, 176 Pa. 80, 44,450 Serencse v. Filbert et al. 29 D. R. 190, 7.S Seventh St. Lebanon, 5 D. R. S91, 16, 17, 19 Seventh Street Sewer, 10 Del. Co. 594, 502 Seventh Street Sewer, 35 Super. Ct. 484, affirming 10 Del. Co. 197, 502 Seventieth Street, opening, 7 D. R. 113, 517 Shaaber v. City of Reading, 133 Pa. 643, affirming 7 Pa. C. C. 230, 47, 157 Shady Ave., 34 Super. Ct. 327, 401, 484, 497, 534 Shaler Street, Viewers, 59 P. L. J. 315, 484 Shamokin v. Helt, 250 Pa. 80, affirming 2 N. L. J. 175, 7 M. L. R. 97. 556 Shamokin v. Yost, 4 Northumberland 156, 556 Sharpless Petition, 2 D. R. 385, s. c. 5 Del. 196, 497 Sharpsville Borough v. Randall, 73 Super. Ct. 61, 409 Shawmont Avenue, 18 Pa. C. C. 23, s. c. 5 D. R. 190, 484, 497 Shenandoah, "Fourth Ward Sewer System" 4 Northumberland 174, s. c. 15 Schuylkill 111, 484 Sheppard et al. v. Phila., 17 D. R. 636, 19 Sheradan Borough — Appointment of Viewers, 65 P. L. J. 387, .... 497 Sheraden Borough, 34 Super. Ct. 639, 234, 235 Shetter et al. v. Welsel et al., 15 Dauphin 175, 556 Shetzline v. Layer, 19 D. R. 1025 1072 Shields V. Pittsburgh, 201 Pa. 328, affirming 48 P. L. J. (os) 327, 872 Shields V. Pittsburgh, 252 Pa. 74 484 Shoemaker v. Harrisburg, 122 Pa. 285, 216 Shoub v. Dunbar, 256 Pa. 311, affirming 64 P. L. J. 647 558 Slocum v. Allen et al. 13 Lack. J. 264, 13 Slutzker et al. v. City of Altoona, et al. 11 D. R. 744, ...._ 23 Smith v. Philadelphia, et al. 17 D. R. 231, 19 Smith V. Philadelphia, et al. 17 D. R. 381, :. 19 Smith V. Philadelphia, 227 Pa. 423, affirming 18 D. R. 769, 19 Smith V. Scranton, 2 Pa. C. C. 331, 128, 133 Snyder v. Brookville Borough, 12 Just. L. R. 234, 1102 Snyder v. School District of the Borough of Greensburg, et al. IS Lack. J. 317, s. c. 4 West. L. J. 113, 455 Snyder et al. v. Commissioners of Schuylkill Co., 190 Pa. 440, af- firming 20 Pa. C. C. 649, 447, 455, 462 Somerset and Stoyestown Road, 74 Pa. 61 47 Somerset v. Sweitzer, 54 Super. Ct. 283, 414 Souel V. Swing, 28 D. R. 109, s. c. 47 Pa. C. C. 352, 108 South Lebanon Twp. School District's Petition, 22 Super. Ct. 330, .- 504 South Shippen Street, Lancaster, County's Appeal, 1 Lane. 68, 504 Spangler v. York, 19 York 175, 497 Spatz V. School Districts of Heidelberg and Robesonia, 25 D. R. 452, s. c. 7 Berks 222, 446 Spear v. Montgomery Co., 24 Pa. C. C. 177, 504 Speer v. Pittsburgh, 166 Pa. 86, 533 Spring Street Sewer, 5 D. R. 373, 484,497,523 Springbrook Water Co. v. City of Pittston, 10 Kulp 409, 128 Starr v. County of Delaware, 8 Del. Co." 493, 112 State officers and employes — Opinion by Dpt. Att. Gen. 3 Dept. Rep. 3405, 315 State Road, 236 Pa. 141, 556 681 Steelton Borough's Election, 22 Pa. C. C. 593, 449 Stegmaier v. Goeringer, 218 Pa. 502, - °-' Stein V. Macungie Borough, 22 D. R. 785, s. c. 5 Lehigh 22, 4 M. L. R. 12, 5 M. L. R. 254 664 Storch V. Lansdowne Borough, 239 Pa. 306, 449 Stork V. Phila., 195 Pa. 101, : 484, 499, 523 Stowe Twp. V. Sterrett, 66 P. L. J. 709, * 403,405 Stratton v. Allegheny Co., 245 Pa. 519, 1 216, 70S Straub V. Pittsburgh, 138 Pa. 356,- _ 216 Streit V. Tyler, 44 Pa. C. C. 381, s. c. 25 D. R. 1042, , 52 Strohl V. Ephrata Borough, 178 Pa. 50, reversing 13 Lane. 1, 484,492 Sturges' Appeal, 240 Pa. 44, affirming 13 Lack. J. 67, 556 Susanna Root's Case, 77 Pa. 276, reversing 9 Phila. 553, 159,498 Susquehanna Twp. Appeal, 18 Pa. C. C. 398, 9 Suter V. Wilmerding Borough, 14 D. R. 391, s. c. 9 Del. Co. 428, 52 P. L. J. (os) 288, 497 Sweeney Bros. Co. v. Pittsburgh, 57 P. L. J. 252, 502 Tabor Street, 25 Super. Ct. 355, » 484 Tabor Street, Nos. 1 and 2, 26 Super. Ct. 167, 175, ,484,532 Tarentum Borough v. Moorhead, 26 Super. Ct. 273, 403, 435 ^ Tatham et al. v. Phila. et al. 2 W. N. C. 564, 19 Taylor v. Philadelphia, 261 Pa. 458, reversing 26 D. R. 979 19, 216, 751 Telephone Co.'s Petition, 63 P. L. J. 401, 922 Templeton v. Williams, 29 Super. Ct. 272, affirming 24 Mont- gomery 194, 22 York 11, 303 Third Street, 13 D. R. 563, i 49 Thirteenth Street, 16 Super. Ct. 127 530 Thirteenth Street, 38 Super. Ct. 265, 486, 497, 517, 532 Thornburg v. McKees Rocks, 64 P. L. J. 489, 502 Thrall v. Williamsport, 18 Pa. C. C. 330, affirmed in 4 Super. Ct. 165, 484 Tiegel v. Love, 62 P. L. J. 532, affirmed in 61 Super. Ct. 149, 412, 435 Titusville v. Gaban, 34 Super. Ct. 613, 43 Titusville Street, 3 D. R. 752, 159, 160 Topographical Survey, 6 York 171, 188 Torry v. Scranton Council, 13 Pa. C. C. 362, s. c. 2 D. R. 804, 10 Lane. 276, 5 Del. Co. 308, 4 North. 33; 3 Lack. J. 81, 97 Touhill V. City of Pittston, 15 D. R. 849, 80 Traction Co. v. Bridge Co. 184 Pa. 180, 592 Trimble Ave., Pittsburgh, opening 45 P. L. J. 461, 517 Trimble v. Pittsburgh, 248 Pa. 550, 708, 710 Troop v. Pittsburgh, 254 Pa. 172, affirming 63 P. L. J. 609, 44,240,262,442 Tulpehocken Twp. Road, 21 D. R. 158, s. c. 3 Berks 387, 501 Twelfth Street Sewer District, Scranton, 7 Lack. J. 170, 502, 523 Twenty-fourth Street, widening, 13 D. R. 619, s. c. 17 York 155, 9 Del. Co. 176, 502 Umbria St., 32 Super. Ct. 333, 1S8_ 501 Union Alley, 9 D. R. 209, s. c. 3 Dauphin 76 ' 53.3 Union Dale Cemetery Company's Case, 227 Pa. 100 400 Union Street, opening, 3 Del. Co. 565, s. c. 6 Lane. 73, 504 LTnion Telephone Co. v. Greenville Borough, 18 D. R. 932, s. c 36 Pa. C. C. 197, 924 682 United Brethren Congregation, v. Emaus Borough, 56 Super. Ct. 136, 556,863 United T. and T. Co.'s Petition, 31 Pa. C. C. 481, s. c. 4 Just. L. R. 280, 10 Del. Co. 29, 7 Lack. J. 85, 15 D. R. 173, 926 Upper Darby Sewer, 27 D. R. 482, s. c. 14 Del. Co. 444, 488 Ursinus College v. Collegeville Borough, 10 D. R. 642, 530 Vacation of Irvine Street, Pittsburgh, 40 P. L. J. (os) 219, 530 Vacation of William Street, et al., 7 D. R. 1, _ 484 Van Loon v. Engle, 171 Pa. 157, 216 Vara v. Stearns, 21 D. R. 79, 18 Verona Borough v. Allegheny Valley Ry. Co., 187 Pa. 358, 484 Verona Borough's Appeal, 4 Super. Ct. 608, 530 Vernon Park, Phila.'s Appeal, 163 Pa. 70, .-. 504 Viewers, 65 P. L. J. 43, 502,533 Viewers in Kingston, IS Luz. L. R. R. 295, 523 Volunteer Police — Opinion by Dpt. Att. Gen. 3 Dept. Rep. 3, 311 Volunteer Police— Opinion by Dpt. Att. Gen. 3 Dept. Rep. 3320,.... 312 Volunteer Police Force — Opinion by Att. Gen. 4 Dept. Rep. 1556, 311,313 Volunteer Police Officers — Opinion by Dpt. Att. Gen. 3, Dept. Rep. 3625, -. 313 Von Storch v. Scranton School District, 3 Pa. C. C. 571, 216 Wabash Avenue, Zd Super. Ct. 305, 19 Wade et al. v. Oakmont Borough et al. 165 Pa. 479, 455 Wainright, Jr. v. Money, 64 P. L. J. 267, =. c. 14 Del. Co. 66, 403,426 Walnut Street, 24 Super. Ct. 114, 504 Walsh V. Throop Borough, 18 Lack. J. 130, 1113 Warner v. Coatesville Borough, 231 Pa. 141, 23 Warren-Ehret Co. v. County Commissioners, 15 Luz. L. R. R. 267, 19 V/ashington Borough v. Sherwood, 9 D. R. 766, s. c. 7 North. 336; 14 York 152; 48 P. L. J. (os) 228, 931 Washington County v. Lindsey, 66 P. L. J. 3, 403 Waters v. Tamaqua Borough, 37 Pa. C. C. 65, s. c. 19 D. R. 1075, 5 Schuylkill 148, 2 M. L. R. 15, 442 Watt v. City of Altoona, 23 Pa. C. C. 410, 20, 18, 133 Weaver v. Schuylkill County, 17 Super. Ct. 327, affirming 23 Pa. C. C. 507, 9 D. R. 467, 303,304 Weikel Street, 27 Pa. C. C. 529, s. c. 11 D. R. 651, 486,502 Weiman v. Wilkinsburg and E. L. P. Ry. Co. 118 Pa. 192, 216 West Chester v. Postal Telegraph and Cable Co., 227 Pa. 384, affirming 38 Super. Ct. 603, affirming 18 D. R. 101, 922 West Chester Alley, 1 Chester Co. 525 504 West Chester Alley, Painter's Appeal, 160 Pa. 89, 47 West Conshohocken's Petition, 29 Montgomery 9, s. c. 4 M. L. R. 138, '. 653 West Liberty Avenue Sewer, 54 Super. Ct. 242, 497, 502 West Reading Borough v. Schlegel et al., 9 Berks 169, 411 Western Pa. R. R.'s Appeal, 99 Pa. 155, 574,917 Westover Borough v. P. R. R. Co. 35 Super. Ct. 359, 564 Wheeler v. Philadelphia, 11 Pa. 338, 216, 465 Wheeler Avenue Sewer, 214 Pa. 504, 497,523 White v. City of Meadville, 177 Pa. 643, 82 Wilkes-Barre v. County of Luzerne, 5 Luz. 75, 440 683 ^Villiam Street, Appeal of Barry, 191 Pa. 472, affirming 8 D. R. 80, 50- William Street, Plttston, 13 Super. Ct. 266 =30 Williams V. D. L. and W. R. R. Co. 255 Pa. 133 572 .Williams et al. Executors v. Pittsburgh, 83 Pa. 71, « 504 Williamsport v. Beck, 128 Pa. 147, "^^ Williamsport v. Brown, 84 Pa. 438, 40 Williamsport v. Camarinos, 22 D. R. 492, 16, 208 Williamsport v. Com. 84 Pa. 487, 448 Williamsport v. Hughes, 21 Super. Ct. 443 19 Williamsport v. Water Co., 7 D. R. 206, 85 Williamsport v. Weimer, 172 Pa. 173 43 Wilson V. Blaine et al. 262 Pa. 367 - 449 Wilson V. City of Scranton, 141 Pa. 621, 157 Wilson v.- City of Scranton, 12 Lack. J. 8, 157 Wilson V. Ephrata Borough, 22 Lane. 91 484 Wilson's Appeal, 152 Pa. 136, 497 Windber Telephone Co. v. Scalp Level Borough, 47 Super. Ct. 470, 922 Winter v. City of Reading, 15 W. N. C. 329 49, 504 Winter v. Koontz, 60 Super. Ct. 134, affirmed in 251 Pa. 164, 555 Winter Ave., 23 Super. Ct. 353, 486, 497, 502 Winton Borough's Sewer, 46 Super. Ct. 502, affirming 11 Lack. J. 203, 24 York 86, 2 M. L. R. 166, 497,498,502 Witherop v. Titusville School Board, et al. 7 Pa. C. C. 451, 449 Witmayer v. Lebanon, 44 Pa. C. "C. 340, s. c. 8 M. L. R. 14, 30 York 73, 49 Wolfe V. Edgewood Borough, 58 Super. Ct. 38, affirming 61 P. L. J. 601, 499 Wolford V. Upper Salford School District, 46 Super. Ct. 1, af- firming 8 Just. L. R. 134-135, ^ 1102 Woodland Avenue, 178 Pa. 325, 484 Woodward v. City of Wilkes-Barre, 4 Kulp. 125, 49 Woodward v. Pittsburgh, 194 Pa. 193, reversing 46 P. L. J. (os).422 556 Wright v. Luzerne County, 67 Super. Ct. 618, affirming 18 Luz. 485, 487,488 Wyoming Avenue, 5 D. R. 767, s. c. 8 Kulp. 269 530 Wyoming Street, 137 Pa. 494, 216 Yates V. Connellsville Borough, 40 Pa. C. C. 33, s. c. 60 P. L. J. 438, 4 M. L. R. 26, 21 D. R. 1048 442,455 Yingst V. Harrisburg, 43 Super. Ct. 418, affirming 12 Dauphin 224, 484 York V. Beitzel, 41 Super. Ct. 194, reversing 21 York 100, 2 Le- high 315, 50, 395, 408, 411, 414 York V. Eyster, 23 York 169, 798, 853, 853 York V. Eyster, 68 Super. Ct. 104, affirming 29 York 193, 30 York 29 399, 400, 49, 402 York V. Helb, 17 York 97, , ; 43 York V, Holtzapple, 29 York 134, 49 York V. Holtzapple, 67 Super. Ct. 596, affirming 7 Lehigh Co. 193, 30 York 173 ........399, 405, 414 York V. Markel, 17 York 117, 133 York V. Miller, 254 Pa. 436, affirming 60 Super. Ct. 407, reversing 28 York 17, 402, 405, 411, 414 684 York Water Co. v. York, 250 Pa. 115, 70 Youngwood Borough v. Gay, 7 West. L. J. 1, affirmed in 71 Super. Ct. 154, 388, 395, 403, 497, 502 Zellner v. Allentown, 5 D. R. 547 76, 133 Zimmerman v. Reading 18 D. R. 1011, s. c. 1 Berks 114, 22 York 131 421 Zion's German Reformed Congregation's Appeal, 1 Monaghan 635, 866 685 686 ANALYTICAL INDEX. References are to Section Numbers in ( ). Sec. ACCEPTANCE OF GENERAL LAW, by cities acting under local laws, _ 208a, 208b ACTIONS BY AND AGAINST CITIES, Affidavits of defense, cities not required to file, 1113 Appeals to Supreme or Superior Court, Bond not required from city in equity cases, 1115 Bond of Surety company. Action on by city in county where city is located, 1116 Service of summons or process on surety company, 1117, 1118 Injunction, Bond must be filed before issuance of, except where city is plaintiff, _ 1114, 1115 Bond not required from city in appeals to Supreme or Superior Court, 1115 AFFIDAVITS OF DEFENSE, Cities not required to file, 1113 ALDERMEN, Appeal from judgment of, 1094 Election of, 1093 Election of in annexed territory, 244 Fees, costs, fines and penalties collected, disposition of, 113 Ineligible as inspector of county prison, 281 Mayor's police court, power to hold, duties and compensation, 113 Offices incompatible with, 276 Powers and jurisdiction of, 1093 Powers of in investigation of fires, 1020, 1022, 1023 Proceedings for violation of city ordinances to be instituted in name of city, 1095 Proceedings for violation of laws of Commonwealth to be instituted in name of Commonwealth, 1095 Service of process issued by, officers who may make, juris- diction, 1095 ALLEYS, See STREETS AND HIGHWAYS. AMUSEMENTS, Dangerous ones prohibited, 68 Licensing and regulation of, 64 ANIMALS, See also PUBLIC HEALTH. ■ Regulations concerning, 74 687 ANNEXATION OF TERRITORY, See also CONSOLIDATION OF CITIES. Sec Action by city council, 10 When final, appeal, : ^^ Adjustment of indebtedness, 239, 240, 241 Boroughs, when permitted, °i "> 234 Cities, when permitted 234 Election. Ballots, 236 Effect of, 238 Notice of 236 Place and method of holding, 237 Time of, 235 When court will direct, 235 Indebtedness and assets, adjustment of, 14 Indebtedness of annexed territory, 239, 240, 241 Legal effect of, 241 Out-lots, when and how admitted, costs, 12 Parks, land may be annexed for, 872, 874 Parkways, land may be annexed for, 874 Petition, requisites of, 234 Playgrounds, land may be annexed for, 874 Proceedings in, after filing of petition, 235 Townships and parts of townships, when permitted, 8, 9, 234 Wards, Arrangement into, 13, 242, 243, 245 Elections and election districts in, ; 13, 244, 245 Officers, election and terms of 13, 244 APPEALS FROM ASSESSMENT FOR TAXES, See TAXES. APPROPRIATIONS. Estimate of receipts and expenditures to be basis of, 100 Priority of, 100 ASSESSOR, See OFFICERS AND EMPLOYES. AUDITORIUMS, See PUBLIC BUILDINGS AND WORKS. BATH HOUSES, construction and maintenance of, 71 BATHING, regulation of, 65 BATHS, See PARKS AND PLAY GROUNDS. BENEFITS, See EMINENT DOMAIN. BOARD OF HEALTH, See PUBLIC HEALTH. BOARD OF REVISION OF TAXES AND APPEALS, See TAXES; COUNCIL. BOAT HOUSES, construction and maintenance of, 71 BOILERS, See LICENSES AND LICENSE FEES. BOND OF SURVEY COMPANY, Action on by city in county where city is located, 1 1 jg Service of summons or process on surety company 1117 mg 688 BONDS, See INDEBTEDNESS. Sec. BONE BOILING ESTABLISHMENTS, regulation of by board of health, 1072 BOUNDARIES, Center line of navigable stream to be, 250 Disputed, Commissioners, appointment, duty and compensation, .... 247,248 Jurisdiction of court to determine 246 Marking of, expense, 249 Procedings for determination of, 247 Wards, proceedings to determine in, 253 BRIBERY, definition of, penalty, 21,22 BRIDGES AND VIADUCTS, Appropriation of private property for bridge purposes, pro- cedure 637-641 Authority to construct and locate, and contract for, 523, 580, 581, 589 Construction and maintenance of bridges, 47 Construction of bridges entirely or partly at county expense, proceedings, 616-636 Contracts for construction of, recording of, 590 Contracts with county commissioners for construction and maintenance of, 584, 585, 586, 588 Contracts with railroad and other companies for construc- tion and maintenance of 584, 586, 588 Damages, Cities liable for, in constructing and vacating bridges, .... 487 To private property in construction of, assessment of, 583 Eminent Domain, exercise of right of for bridges, 484 Proceedings for laying out and locating, '. 582 Railroads to contribute to maintenance of, 587 Toll bridges. Acquisition of, 591, 592, 598, 606 By joint action of city and county, 606, 61 3 Proceedings to determine compensation to owners, 593, 594, 596, 597, 599-604, 607-612 Security for compensation to owners, 593, 602, 610 Authority of city to charge tolls, 605, 614 Use of by railroad which has not contributed to construction of, 587 BUDGET, Duty of Superintendent of Accounts and Finance to furnish, _ 117 Provision for, 100 BUILDING INSPECTOR, See CIVIL SERVICE. BUILDINGS, See also HOUSES. Construction of, regulation and inspection of scaflFolding used in 985 Inspection and regulation of, 79 Regulations to prevent fire - 78 689 44 BUREAU OF MINE INSPECTION AND SURFACE SUP- Sec. PORT, Employes, appointment and compensation of 319 Excavations under streets, regulation of, 323 Map or plan to be furnished by owner, operator or superintendent, 321 , 322 Ordinances concerning, _ 32.S Penalties for violation of act, 324 Power to create, _ 318 Powers of _ 320 BUREAU OF MUNICIPALITIES, Duties of 1119 Established in Secretary of Internal Affairs Department, 1119 Information to, by cities 1121 Officers and Employes, salaries of, _ 1120 Powers of Secretary of Internal Affairs concerning, 1120 BURIAL GROUNDS, changing location of, upon petition of Cemetery Co., procedure, 862, 863 Removal of bodies. From neglected or disused cemeteries, procedure, costs, re-interment, monuments, 866, 867 Upon petition of Cemetery Co., procedure, costs, 862, 863, 866 Upon petition of citizens, procedure 866 Upon petition of city or school board, procedure, 866 Sale of. By Cemetery Co., procedure, 864 Distribution of proceeds from 865 Streets or alleys cannot be opened through, _ 868 Title, transfer of by cemetery company, 864 BUSINESS, power to prohibit when noxious or dangerous, 78 CEMETERIES, See BURIAL GROUNDS. CHARITY, See DEPARTMENT OF CHARITY AND SUP- PORT OF THE POOR. CHARTER, Surrender, power of city to, 222 Surrender of. Action of council, 223, 225 Election of borough officers after surrender of city charter, 230 Election on. Ballot, 225,226 Conduct of, duty of officers, 227, 228 Expense of, 228 When held, notice of, 224 When not permissible, „ 229 Legal effect of, 231, 232 Procedure after election favoring surrender 229 Termination of city government _ 233 CISTERNS AND AQUEDUCTS 72 690 Sec. CITIES, acceptance of general law by, 208a, 208b Classification of, _ 216 Change in, effect of, 217 Subject to provisions of Clark Act, 208 CITY ASSESSOR, See OFFICERS AND EMPLOYES. CITY CLERK, See OFIFCERS AND EMPLOYES. CITY CONTROLLER, See OFFICERS AND EMPLOYES. CITY ENGINEER, See OFFICERS AND EMPLOYES. CITY PLANNING, Commission, Appointment, vacancies, compensation, 326 Ordinances to be submitted to, _ 327 Powers and duties of, „.326, 327, 328, 329, 330 Assignment of, .T. 331 Who ineligible for, 331 Department of, created 326 CITY PRISONERS, maintenance of, 1112 CITY PRISONS, use of by officers, compensation for, 1110,1111 CITY SOLICITOR, See OFFICERS AND EMPLOYES. CITY TREASURER, See OFFICERS AND EMPLOYES. CITY TRUSTS, Created to establish public educational institutions. Corporations to manage. Applications for charters within discretion of court and college and university council, 1087 Appropriations of money for support of 1085 Duration of, 1088 Parks may be set aside for by city, 1085 Power to form, _ 1081 Powers of 1081, 1088 Procedure to form, 1082, 1083, 1084 Property conveyed to, or set aside for, by city, 1085 Revocation of certain powers of, 1086 Visitation and inspection of by college and uni- versity council, 1086 Institutions to collect and hold educational and economic col- lections. Establishment of, 1080 Powers, object and government of, 1080 Public parks. Directors of city trusts. Appointment and qualifications of, 1089 Compensation of, 1092 Powers and duties of, 1089, 1091, 1092 Removal of, - - 1090 Term of, - 1090 Vacancies in, how filled, - 1090 691 CIVIL SERVICE, Sec. Appointments, Method of making, ^^^ Soldiers, sailors and marines preferred, .—. : 339 Engineering or electrical department and Building Inspector, Application of act, ^ ^^^ Appointment of employes. Method of making 354, 357, 358 Soldiers and sailors preferred, 353 Term of 358 Civil Service Board, Appointment, term, vacancy, 355 Oath, quorum, _ 355 Rules and regulations 356 Compensation of examiners, 360 Fining of employes, 359 List of eligibles for appointment, _ 357 Removal or transfer of employes for political reasons pro- hibited, 358 Suspension and removal of employes, 359 Fire Department, Application of act, 351 Appointments in, Method of making, 347, 350, 351 Soldiers, sailors and volunteer firemen preferred, 351 Term of _ 35 1 Civil Service Board, Appointment, term and qualification of, vacancies in, 348 Compensation, oath, quorum 348 Rules and regulations of, 349 Secretary, appointment, term, duties, compensation, .... 353 Fining of employes in, 352 List of eligibles for appointment, 350 Removal or transfer of employes for political reasons pro- hibited, 351 Suspension and removal of employes in, 352 Temporary appointments in, '. 351 Volunteer department exempt from act, 353 List of elegibles for appointment, 337, 338 Police, Application of act, 344 Appointments, Method of making, 340, 343, 344 Soldiers and sailors preferred, 344 Term of, 344 Civil Service Board, Appointment, term and qualification of, vacancy 341 Compensation, oath, quorum 341 Rules and regulations of, _ _ 342 Secretary, appointment, term, duties, x:ompensation, .... 346 Fining of, 345 List of eligibles, 343 Removal or transfer for political reasons prohibited, 344 Suspension and removal _ 345 Temporary appointments, _ _ 344 692 CLAIMS FOR LABOR AND SUPPLIES, Councilmen and of- Sec. ■ ficers not to purchase at a discount, penalty, 21 CLERK, See OFFICERS AND EMPLOYES. COMMODITIES, Power to inspect and regulate place of sale of, 70 COMMONS, See PARKS AND PLAY GROUNDS. COMMUNICABLE DISEASES, See PUBLIC HEALTH. CONDEMNATION PROCEEDINGS, See EMINENT DO- MAIN. CONSOLIDATION OF BOROUGHS, contiguous or in close proximity to each other where letters patent have been granted to each of said boroughs to become third class cities, 268-274 Expense of, 269 Jurisdiction of courts, 274 Legal effect of, 273 Municipality, definition of, 267 Officers of consolidated city, election and term, 271 Ordinances of boroughs in effect until repealed, 272 Organization of government in 271 Power of cities to consolidate, and manner of determining question of, 268 Proceedings for, 268, 269 Termination of the borough government, 270 CONSOLIDATION OF CITIES, Assets, court to determine in consolidated cities, 263 Boundaries, how determined, _ 256 Election on. Ballot, : 258 Conduct of, return and computation of, 259 Effect of : 260 When cities lie in different counties, 265 Expense of, 259 In land intervening between consolidated cities, 264 Notice of, 258 When court will not order, 260 When court will order, time of, 257 Indebtedness, Adjustment of, 261, 262, 263 Limitation of in, 263 Jurisdiction of proceedings where cities lie in different counties, 265 Legal effect of, 263 Petition for, 255, 256 Exceptions to, 257 Hearing on and notice of, 255, 257 School law not affected by, 266 School taxes in, not affected by, 266 Taxes, uniform throughout consolidated city, 262 Temporary government, 264 Wards, intervening land attached to certain, 264 When permissible, 254 693 ' , ' ' Sec. CONSTABLE, compensation of, while acting as policeman, — 304,305 CONSTITUTION, local and special legislation, provisions re- lating to, 215 CONSTITUTIONALITY, effect of unconstitutional provision in Clark Act, 212 CONTINGENT FUND, how raised and expended, 19 CONTRACTS, Duty and liability of Superintendent of Finance concerning, 115 Property of city, power to make, concerning, 37 Restrictions on municipal departments, 20 Supplies and work, when and how awarded, 19 CONTRACTS WITH CITY, councilmen and officers not to be in- terested in, effect of, 26 CONTRACTS WITH RAILROADS AND RAILWAYS, For acquisition of property of street railway companies, 919 For regulation of franchises, powers, duties and liabilities of street railway companies, 919 Power to make concerning change and laying of tracks of street railway companies, 918 Power to make concerning change of railroads within city limits, _ 9 1 7 Power to make for acquisition of property of street railway companies, 919 Power to make for regulation of franchises, powers, duties and liabilities of street railway companies 919 Street railway companies may be given exclusive privilege of occupied streets for fifty years, 918 CONTROLLER, See OFFICERS AND EMPLOYES. CORPORATE POWERS, 32-80 COURT, jurisdiction of, where city is formed out of borough formed by consolidation of boroughs in different counties, 1 COUNCIL, Assessments for taxes, power to regulate, 178 Councilmen, Board of Revision of Taxes and Appeals, shall act as, .... 179 Bond given to city, not to be surety on, penalty, 25 Bribery of defined, penalty, 21, 22 City property, not to be interested in contracts for use, purchase or sale of, 24 Claims for labor and supplies, purchase at discount pro- hibited, penalty 27 Compensation of, jqi Contracts with city, not to be interested in, effect Cf, .... 26 Election and term of. Generally 29, 90, 91 In consolidated cities, 264 694 COUNCIL— (Continued). Councilmen — (Continued). Sec. Fines of for failure to attend meetings, 101 Ineligible for City Planning Commission 331 Nomination and election, method of, 149, 151 Oaths, 93 Offices incompatible with, 15,282,283,284,285,287,288 Ordinance, number of votes necessary to pass, 92 Personal interest in ordinance, effect of, 23 Qualifications of, 90, 91 Voting, how conducted, recording of, 95 Voting power, 92 Department of Charity and Support of the Poor, power to create, govern and levy tax for, 1078 Evidence, power concerning, 102, 124 Journal of proceedings, 95 Legislative powers vested in, 15, 199 Meetings, Open to the public, 94 Regular — special, 94 Special, mayor may call, 107 Membership, eligibility to, IS Organization, time of, 30 Quorum, 93 Rules, power to provide, 93 Vacancy in, how filled, 112 VVater and Lighting Department, power to pass ordinances concerning, 82-1 COUNCILMEN, See COUNCIL. CREDIT, loan of by city not permitted, 465 CRIMES, restraint, prohibition and suppression of, 67 CULVERTS, construction and maintenance of, 47 DAMAGES, See EMINENT DOMAIN. DANCE HALLS, See LICENSES AND LICENSE FEES. DEBT, restrictions on municipal, department, 20 DEPARTMENT OF CHARITY AND SUPPORT OF THE POOR, Jurisdiction of 107S Power to create, govern, and levy tax for support of, 1078 Special or local laws not repealed by act, 1079 DEPARTMENT OF CITY PLANNING, See CITY PLANNING. DEPARTMENT OF PUBLIC SAFETY, Superintendent, Fire Department, powers over, 302, 302a DEPARTMENTS, council to determine powers and duties of, .... 104 Creation and regulation of, compensation fixed, 52 Superintendents provided for, 105 DOGS, regulations concerning, 74 DRAINS, See SEWERS. 695 Sec. DRINKING FOUNTAINS, See WAITING, REST ROOMS AND DRINKING FOUNTAINS. EDUCATIONAL AND ECONOMIC COLLECTIONS. See CITY TRUSTS. ELECTIONS, places for holding to be fixed by court of quarter sessions, 31 Proclamation, Ill ELECTRIC LIGHT WORKS, See LIGHT. ELECTRIC WIRES, Conduits, Condemnation of, procedure to assess damages, 915 Rate of rental to be charged for space, power to regulate by ordinance, 915 Regulation of by ordinance where privately owned, 915 Light, telephone and telegraph, power to define district where to be placed in conduits, 915 Ordinances concerning wires and conduits, appeals to court concerning, 916 ELECTRICAL DEPARTMENT, See CIVIL SERVICE. I ELEVATORS AND SCAFFOLDING, Elevators, Bureau of inspection of, Notice by, penalty for disregard of, 984 Power to appoint inspector and employes, 981 Power to provide for, 981 Salaries of inspector and employes, 981 Construction and inspection of, power to regulate, 982 Power to regulate construction and inspection of, 982 Regulations concerning, power to provide penalties for violation of, ^ 983 Safety of, right of manufacturer to prove, 982 Use of in violation of notice, effect upon civil action, 984 Use of in violation of notice, penalty for 984 Scaffolding, penalties for violation of act, 988 Regulation and inspection of, 985, 986, 987 EMINENT DOMAIN, Application of Act of May 28, 1913, P. L. 368, 491 Application of Clark Act to proceedings instituted or land taken previously, 164 Bridges, exercise of right of, for, 484, 637-641 Creeks, runs and natural waterways, exercise of right for con- fining, enclosing and paving, 689-695 Dams, exercise of right for construction of 678 Discontinuance of proceedings, 163, 517 Electric wire conduits, exercise of right for acquisition of, .... 91. S Joint county and city ho.spitals, exercise of right for, 721-729 Joint county and uumicipal buildings, exercise of right for, 711 716 Lands contiguous to streams and reservoirs, exercise of right to prevent contamination, ggg 696 EMINENT DOMAIN— (Continued). Sec. National Guard, exercise of right of, for, 1025 Parks, exercise of right of, for, 872,874 Parkways, exercise of right of, for 874 Playgrounds, exercise of right of, for 874 Procedure, Appeals to Supreme and Superior Court, 162,490,502 Appeals to Supreme and Supei-ior Court after lower court overrules exceptions, Assignments of error, 507, 510 Certificate of judge as to eflfect of, 507, 510 Certification of, to proper appellate court, 510 Consolidation of appeals, 508 Date of decree, when lower court affirmed, _ 507 Effect of, on confirmation of report, 507 Joining of, by appellants, effect of, 509 Attorney fees, where proceedings discontinued, city liable for, 163 Award of damages and costs payable into court, 506 Benefits, Amount of limited, 159, 499 Exceptions and appeal, 159 Payable to city treasurer and to bear interest, 518 Who are assessable for ; 498 Bond, Effect of acceptance of, or approval of by court, right to possession of property, _ 492, 495 Where'damages not agreed upon, tender of, condition, filing in court, collection of, 161, 492 Without sureties, to be given by cities. Exceptions, _ 493, 494 Costs, payable by municipality, 486 Where proceedings discontinued, city liable for, .— 163, 517 Damages, Appeals from assessment of, where not otherwise provided, 504,505 Ascertainment of, without viewers, where right of way or easement appropriated, 519, 520 For appropriation of land, when assessible against neighboring propertj', 498 Method of determining 158,499 Not recoverable for buildings erected within lines of streets, parks, or playgrounds, 869 Payment of, Power of council to determine, 159 Power of viewers to determine, 499 To whom cities liable for, 487 When proceedings discontinued, 163,517 Damages and benefits, where property is both benefited and damaged, how assessed, 500 Discontinuance of proceedings, effect of as to costs and damages, 163, 517 697 EMINENT DOMAIN— (Continued). Sec. Procedure — (Continued). Evidence, Certified lists of liens, in certain cases, to be prima facie, 514 Competency of, in determining damages, 511, 512 Witnesses to consider certain elements in deter- mining damages, 511 Interest, payable on benefits, 518 Judgment, entry and execution on, 160 Liens, Discharge of, in certain cases, on property con- demned, effect of, 515, 516 List of, must be set out in petition for appointment of viewers, in certain cases, 513 • Proof of, in certain cases, 514 Notice, of assessments, lS8a Power of common pleas court to determine, 162 Possession, how city acquires, 495, 496 Right of, after acceptance or approval of bond, .. 492, 495 Title to appropriated land, vesting of, in certain cases, 516 View, by jury in common pleas, of right of way or ease- ment, 520 Viewers, Appointment of _ 157, 162, 484, 486 Assessment of damages against city and of benefits in certain proceedings 488 Can be dispensed with, where right of way or ease- ment is appropriated, 519 Compensation of, 486 Costs of, payable by municipality, 486 Duties of, 158, 159, 162, 165, 488, 497, 499, 500, 501, 514, 515 Notice of first meeting of, _ 157,484 Notice of meeting to hear exceptions to .schedule of assessments by, 497 Oath of, 158, 497 Petition for appointment of, in certain cases, to con- tain list of liens, _ 513 Time of meeting to view premises, 157,484 Viewers report, Appeals from, form and contents of, 502, 505 Appeals from, not to prevent filing of liens, 502 Appeals from, to be from net amount, 500 Appeals from, jury trial, time of filing, costs, 162, 489, 502, 504 Confirmation of, effect of, 502,503 Contents of, .'. 497 Evidence of benefits, is prima facie, 502 Exceptions filed with appeal from, 162 Exceptions to, time of filing, effect of, 489, 502, 503 Liens, in certain cases, to be reported in, 515 Notice by viewers of filing 497 Power of court in proceedings on appeal from, 502 Power of court on determining exceptions to, 502 Time for filing, 162, 501 698 EMINENT DOMAIN— (Continued). Sec. Property exempt from, -., 485, 868 Public buildings and works, exercise of right for, 697-702 Public libraries, exercise of right ior purposes of, 782-784 Sewers, exercise of right for, 1S7, 484, 643-645, 650-652 Slopes and embankments, exercise of right for, 157, 484 Springs and streams, exercise of right in appropriation of, .... 664, 665 Streets, in laying out, opening, widening, extending or grad- ing, 157,484 Vacation of, exercise of right for, 484 Toll bridges, exercise of right for, 593-612 Turnpikes, exercise of right for grading, paving, curbing bridging or culverting of — appointment and duties of viewers, 165 In grading, paving, curbing, bridging and culverting of by city, 165 Turnpikes and public roads, exercise of right in reconstruc- tion of, - 667, 669 Water, Gas or Electric Light Works, exercise of right for, 82a, 157 Water-courses, exercise of right for vacation, alteration or relocation of, 157, 484, 679-688 EMPLOYES ENTERING MILITARY SERVICE, Evidence of dependency, 317 Office or employment not resigned or abandoned by, 315 Payments to be made only during life of, 317 Power of attorney to dependents to receive salary 316 Salaries payable to dependents of, 316 Salary not to be paid to, 317 Statement under oath as to dependency, 316 Substitutes for, appointment of, salary, _ 315 ENGINEER, See OFFICERS AND EMPLOYES. ENGINEERING DEPARTMENT, See CIVIL SERVICE. ENGINES, See LICENSES AND LICENSE FEES. EVIDENCE, See COUNCIL; MAYOR; CITY CLERK; CITY ENGINEER; WITNESSES; INDEBTEDNESS; MUNICIPAL AND TAX CLAIMS; EMINENT DOMAIN. EXCAVATIONS UNDER SIDE WALKS, regulation of, SS EXPLOSIVES, regulations concerning, 78 FARMER, See LICENSES AND LICENSE FEES. FERRIES, Cprfstruction and regulation of, 71 FINANCIAL REPORT, duty of Superintendent of Accounts and Finance to make, - 117 FINANCIAL STATEMENT, publication of, 99 699 FIRE, - Sec. Aldermen, powers of, in investigating, 1020, 1022, 1023 Investigation of. Arrest of suspected persons, 1022 Costs and fees of, 1024 Duty of jury in, 1021 Powers of mayor and aldermen in, 1020, 1022, 1023 Witnesses at, examination and testimony of, 1023 Powers to compel attendance of at court, 1022 Mayor, powers of in investigating, 1020, 1022, 1023 Regulations to prevent, 78 HRE APPARATUS, power to purchase, 77 FIRE DEPARTMENT, See also CIVIL SERVICE. Chief of, may serve as Fire Marshal, 301 Organization, maintenance and regulation of, 11 Two Platoon System, _ 302, 302a FIRE MARSHAL, See OFFICERS AND EMPLOYES. FIREARMS AND COMBUSTIBLES, regulation and prevention of, 68 FISCAL YEAR, 98 FLOODS, protection against, _ 71 FOREIGN FIRE INSURANCE COMPANIES, State tax on re- turned to cities, 386 FOREST FIRES, agreement with Department of Forestry to prevent and suppress, _ 913, 914 FORESTS, See MUNICIPAL FORESTS. FRANCHISES, granting of, 202, 203 GARBAGE, collection and disposal of, 69, 88 GAS WORKS, See LIGHT. GENERAL WELFARE, _ 85 GRADE CROSSINGS, See STREETS AND HIGHWAYS. GYMNASIUMS, See PARKS AND PLAY GROUNDS. HAWKERS, See LICENSES AND LICENSE FEES. HEALTH, See PUBLIC HEALTH. HIGHWAYS, See STREETS. HISTORICAL SOCIETIES, appropriations to, power to make, .; 1031 HORSE RACING, prevention of 68 HOSPITALS, See also PUBLIC BUILDINGS AND WORKS. Establishing and maintenance of, _ f^\ Power to acquire land for and erect, (jj HOUSES, numbering of, gQ 700 Sec. ICE, manufacture and sale by city authorized, 921 INCOMPATIBLE OFFICES, _ 275, 276, 277, 279, 280, 281, 282, 283, 284, 285, 287, 288, 331 Effect of holding '. _ 277 Penalty for exercising, 278 INCORPORATION, Election, General or municipal, when proper, 1 Special, when proper, „ 219 When not permissible, 2, 220 Where one or more boroughs in same county are incor- porated into city, 219 Legal effect of on districts incorporated 3, 221 Population required, 1, 218, 219 Procedure, 1, 2, 219, 220 Territory that may be incorporated, 1, 218, 219 INDEBTEDNESS, 441-483 Acts validating bond issues, 441 Adjustment of, In annexation of territory, 239, 240, 241 In boroughs incorporated into city, .".... 221 In districts incorporated into city, _ 3 Annual statement of, publication of, contents, penalty for failure to publish, 456 Application of moneys, borrowed for impracticable or impos- sible purposes, to other purposes, procedure, .". 466-472 Bond issues to redeem existing issues, 197 Bonds, Denomination of, interest, when redeemable, 448, 462, 463, 464 Exchange of, From coupon to registered bond, 479, 480, 481 From registered to coupon bond, 480 Procedure, interest payments, 479, 480, 481, 482, 483 For park improvements based on lease of coal lands, sale and redemption of, 889, 890, 891 For playgrounds, playfields, gymnasiums, swimming pools, public baths or indoor recreation centers, 897 Issue and regulation of, 45 Issuing of, to redeem existing issues and floating in- debtedness 462, 463, 464 Municipal forests, may be issued for, 908 Not a debt of city when issued for certain public works, 457, 458, 459, 460, 461 Notice of sale of, 473 Redemption at par, 450 Registration of, transfer of, changing to coupon bond, .... 479-483 Report of to Auditor General by City Treasurer, penalty, 476 Sale of at not less than par, 448, 462, 463, 473 Sale of to highest responsible bidder, 473 State tax on, 474 Collection of by treasurer, 1 475, 476 Payment of to State Treasurer, 476 701 INDEBTEDNESS— (Continued). Sec. Bonds — (Continued). Transfer of, 479-483 Consolidated cities, adjustment of in, 261,262,26.3 Limitation of in, ~ - 263 Creation and limitation of, ■" Definition of, 45.S ' Elections, Notice of, To determine question of application of borrowed moneys to other purposes, 467 To increase, 449 Time and place of, how governed, duty of election of- ficers, returns, expense, 449 To determine question of application of borrowed moneys to other purposes, 467-472 When held on same subject where assent of electors re- fused, 450,452 Increase, Method of. When in excess of two per cent, 442 When increase is from seven to ten per cent, 443, 447, 447a, 453, 454 When increase is from two to seven per cent, 449, 450 When not exceeding two per cent, 448 Penalty upon officers exceeding legal limitation on, 447 Void when above limitation, _ 447 When assent of electors not required, _ 448 When assent of electors required, 442, 443, 447, 447a, 449, 453 Limitation on, _ _442, 443, 447, 448, 449, 453 Limitation on power of municipal commission to create, 444 Notice of election to increase, contents of, 449 Notice of election to secure right to use borrowed moneys for other purposes, contents of, filing of, _ _. 467 Notice of sale of bonds, 473 Obligations issued for certain public works, not to be a debt of city, - 457, 458, 459, 460, 461 Ordinance providing for, publication, _ _ 196 Penalty, for failure to file statement in office of Clerk of Court, 448 For failure to publish annual statement, 456 Power to liquidate, 51 Powers of city in issuing obligations not a debt against city, 460 Report of to be made by City Treasurer to Auditor General, penalty, 476,477 Sinking fund. Application of funds in 464 Board of. Commissioners of, powers and duties of, 198 Duty to create, 445 Investment of the funds of, 198 Levy of annual tax for, 195, 196 Levy of annual tax to pay within thirty years, 446 Levy of annual tax, When obligations issued to pay certain self-supporting public works, 457^ 459 Where bonds are issued to redeem existing indebted- ness, 462,463 702 INDEBTEDNESS— (Continued). Sec. Sinking fund — (Continued). Levy of Annual Tax — (Continued). Where increase made with assent of electors, 450 Where increase made without assent of electors, 448 Power to create, 46 State cannot assume that of city except in certain instances, 478 State tax on, 474 Collection of by treasurer, 475, 476 Duties of City Treasurer concerning, 475, 476, 477 Payment of to State Treasurer, 476 Statement, certified copy to be evidence, 448 Publication, contents of, : 99 Where increase made with assent of electors, contents, fil- ing, 450 Where increase made without assent of electors, contents, filing, 448 Unconstitvitional provisions of act relative to issuing of obli- gations not a charge against city, effect of, ....-- 461 Validating acts, 441 INDOOR RECREATION CENTERS, See PARKS AND PLAY GROUNDS. INFANT BOARDING HOUSES, See LICENSES AND LI- CENSE FEES. INFLAMMABLE SUBSTANCES, regulations concerning, 78 INITIATIVE AND REFERENDUM, Initiative, Council, duty concerning ordinance proposed by, 199 Election on, how and when held, notice, _ 199 Petition for, procedure on, 199 Petition for, requisites of 199 Repeal or amendment of ordinance proposed by, 199 Subjects excluded from, j 200 Referendum, Council, duty concerning ordinance objected to, 201, 203 Elections, computation of returns of, 205 Conduct of, „- - 205 How and when held, form of ballots, costs, 201, 203, 204 Notice of, - 206 Franchises, granting of, - ~ 202 Ordinances efifective when, 201, 202 Petition for, preparation of and procedure on, notice, 201 Requisites of, 201, 202 Subjects excluded from, 207 INJUNCTION, bond must be filed before issuance of, 1114 INSURANCE COMPANIES, AGENTS AND BROKERS, See LICENSES AND LICENSE FEES. JUNK DEALERS, Record of purchases and sales. Penalty for failure to keep 980 To be kept by, - 978, 979 To be open to inspection, 979 703 LANE, See STREETS AND HIGHWAYS. _ ^^'^' LATERAL RAILROADS, city may construct, procedure, damages ^^^ to private property, LEGISLATION, See also INITIATIVE AND REFERENDUM. ^^ Must be by resolution or ordinance, 71 LEVEES, construction and regulation of, LIBRARIES, See PUBLIC LIBRARIES; PUBLIC BUILDINGS AND WORKS. LICENSES AND LICENSE FEES. Agents selling by sample to dealers not required to have li- cense, "•5° Amusemen,ts, - 64 Dairymen not required to have license, 934 Dealers in produce or merchandise must have license, 934 Disputes concerning. Amendments of pleadings, 923 Appeals to Supreme and Superior Courts, 925 Duty of corporations to properly construct works, not altered or aflfected, 927 Hearings, conduct of, _ 922, 923 License fee as fixed by court, duration of, when applica- tion for change permissible, 926 License fee to be determined by court, 924 Powers and duties of courts in determination of, 922, 923, 924 Procedure before court, petition, service, answer, 922 Farmers not required to have license, 934, 939 For hawking, peddling or selling of produce or merchandise, to be fixed and regulated by council, 93S Foreign dealers, power to license and enforce by penalties, 932, 933 Gardners not required to have license, — 934 Hawkers must have license, penalty, 934 Infant Boarding House, Mayor to grant license, 960 Must have license, _ 959 Insurance companies, agents or brokers not to be licensed, 937 Motor vehicles for transportation for hire, licensing and regu- lation of, - 975, 976 Peddlers must have license, penalty, 934 Plumbers, license required by, fee, 790 Power to levy and collect, 43 Public Dance Halls and Public Dances, Application of act regulating, 940 Compulsory vacation of public dance halls, 94ft Conditions of public dance hall, _ 947 Definition of, "dance hall" or "ball room" 94I "Public dance" or "public ball" cj^j Inspection of public dance halls, 040 License for public dance hall. Applications for to be investigated, Fee for, and expiration of, and disposition of fees, ijl 704 LICENSES AND LICENSE FEES— (Continued.) Sec. Public Dance Halls and Public Dances — (Continued). License for Public Dance Hall — (Continued). Mayor to issue, 943 Post in conspicuous place, 943 Revocation of, effect of, 946 When granted, 945 ^ When required, 943 Penalties for violation of act regulating, 951 Permit for public dance, Fee for, 942 Mayor to issue, 942, 950 When required, 942 Persons under sixteen years, 949 When halls must be closed and dances discontinued, 950 Public Lodging House, Conditions demanded before license granted, 953 Definition of, 952 Expiration and privilege of license, 953 Fee for license, 953 Forfeiture of license for, 957 Inspections and investigations by public officials, 955 Penalty for failure to get license for, 958 Register, contents of, penalty for failure to keep, 954 Rules and regulations for government, cleansing and dis- infection of, 956 Steam boilers and engines, regulations concerning, licensing and duties of engineers, 961-974 Streets used for temporary market purposes, 69 Traction engines, tractors or trailers do not require license, — . 977 Transient Merchants, License, By whom issued, how fixed, duration of, 929,931 Payable to City Treasurer, 931 Penalty for failure to secure, 930, 931 When not required, 928, 932 When required, 928, 931, 932 When act regulating hawking, peddling or selling of produce or merchandise is in effect in a city, 936 LIEN DOCKET, solicitor, duty to keep, 130 LIGHT, Eminent domain, exercise of right of for gas and electric works, 157 Power to purchase electric and gas works and acquire property, 82a Power to supply, 81 LOCKUPS, detention in limited, 60 Erection or purchase of authorized, 60 LODING HOUSES, See LICENSES AND LICENSE FEES. MAGISTRATES, See ALDERMEN. MARKET HOUSES, establishment and regulation of, -•- 69 MAYOR, See OFFICERS and EMPLOYES. 705 45 MEADOW LANDS, corporations for protection of, surrender of Sec, charter, ... 696 MEMORIAL BUILDINGS, See PUBLIC BUILDINGS AND WORKS. MEMORIAL DAY SERVICES, appropriations for, powei to make, ^032 MILK, power to provide for inspection of, 920 Testing of. See WEIGHTS AND MEASURES. MILK DEPOTS, See MARKET HOUSES. MONUMENTS, See PUBLIC BUILDINGS AND WORKS. MOTOR VEHICLES, See also LICENSES AND LICENSE FEES. Arrest of offenders by officers 1010 Brakes, 1000 Driving regulations, 1004 Fines and penalties collected, disposition of, 1012 Information for violation of act, jurisdiction, 1008 Injury to individuals, duty of operator to stop in case of, 1002 Intoxication of operator a misdemeanor, 1002 License number to be prima facie evidence of ownership, re- buttal of, 1009 Lights, to be displayed by at night time, 999 Turning off forbidden, _ 1002 Muffler cut-outs, use of — 1003 Muffler required on engine, 1003 Operating without consent of owner forbidden, ._ 1002 Operator to have view of traffic, _ 1000 Ordinances not to be inconsistent with law, 1007 Penalty for violation of act, procedure 1011 Projections on tires, — 1003 Registration certificate or license, exhibition of on request of officer, 1005 Right to use of public streets and highways, 1006 Signal device, 1000 Sounding warning by, 1001 Speed regulations, 998 Speed, timing of - 1008 Street passenger cars, passing of by, 1004 Transportation of passengers for pay, regulation of by city, .... 1007 Weight and size of load regulated, 1003 MUNICIPAL AND TAX CLAIMS, Adjustment of, without filing, 409 Advertisement of sale, - 423 Affidavit of defense. Amendment of, 429 Filing of _ 412, 429 Judgment for want of, attorney's fee, 413 Judgment for want of sufficient, 413 Replication to, 413 Affidavits to petitions, answers, etc., 430 Amendment of proceedings, 429 706 MUNICIPAL AND TAX CLAIMS— (Continued). Sec. Amicable proceedings to revive judgment 415 Amount, how entered when lien filed pending appeal from as- sessment 403 Appeals to Supreme and Superior Courts, 434 Application of Act of 1901, P. L. 364 435 Apportionment of claim on separate properties _ 406, 408 Assignment of assessments for, to contractor, 399 Assignment of claims and judgments, 428 Attorney's fee allowed claimant's attorney, 413, 414 Bond, Approval and sufficiency of, 432 For stay of proceedings before judgment entered, effect of, 422 City may purchase at sale on, _ 391 Claimant defined, 394 Collection of by lien, 388,.392-43S Collection of by suit, 387-389 Completion of improvement, certificate of surveyor or engineer as to time of, _ 403 Contents of, 405 Contractor, When lien filed for use of, 399 Defined, 394 Costs, recovery of, 418 Deed, Execution and delivery of, 423 Of sheiriff, validity of, 426 Defendants, names of, how stricken from record and substi- tuted, 407 Defense, procedure in, 409 Where claim not filed, 409 discontinuing appeal from assessment, entry of amount of claim, 403 Docketing of proceedings, 420 Evidence, claims are prima facie, 414 Execution, Against quasi-public corporations, 425 City may purchase property at sale, 426 Distribution of proceeds when against quasi-public cor- porations - 425 Plaintiff in judgment may purchase 424 Procedure, form of Levari Facias, 423 In sale of property where bid insufficient, 426 Sale price. Minimum, 424 Upset price fixed by plaintiff, 424 Stay of sale by payment of claim 426 Testimony as to location of parties respondent 426 Exemption not allowed in collection of, 390, 397n Facts averred and not denied taken as true, _.... 430 Fee of prothonotary for searches, 421 Fees of prothonotary for indexing and docketing revival of hen, 403 707 MUNICIPAL AND TAX CLAIMS- (Continued). Sec. Filing, How prevented, 409 Time of, 403 To use of contractor, notice of, 399, 402 Where appeal from assessment taken, procedure, indexing, 403 Form, Of levari facias, 423 Of scire facias in revival of judgment, 415 Of scire facias in suing out claim, 411 Habere facias possessionem, issuing of, to give possession to sequestrator, 419 Highway defined, 392 Indexing of proceedings, 420 Interest, time from which to run when claim filed, pending ap- peal from assessment, 403 Intervention by parties having an interest in property, 407 Judgment, Assignment of, 428 Binds land only, 418 By default. Appeal from refusal to open, 434 Opening of, 429 Execution upon is by levari facias, 423 For want of an affidavit of defense, attorney's fee, 413 For want of a sufficient affidavit of defense, 413 Minimum sale price under, 424 Purchase by plaintiff in, 424 Revival of, procedure, 415, 416, 417 To be final and conclusive after delivery of sheriff's deed, 426 Upset price fixed by plaintiff at sale under, 424 Levari facias, form of, 423 Lien, Duration of, revival, 403 Execution by levari facias only after judgment entered on, 403 Priority of, 397, 398, 426 Procedure for revival, continuation and collection of, 404, 417 Revival by scire facias, time of, 403 Revival by suggestion and averment, time and effect of, .... 403 Revival, form of suggestion and averment, signing, docket- ing and indexing of, 403 Revival, when appeal from assessment taken and amount undetermined, 403 When divested by judicial sale, 426 When not divested by judicial sale, 426 Locality index, 421 Municipal claim defined, 393 Non suit, entry of, effect of, 410, 414 Notice, Service of 431 To claimant to -issue scire facias, 410 When filed to use of contractor, 402 Opening judgments by default 429 Owner defined, 395 708 MUNICIPAL AND TAX CLAIMS— (Continued). Sec. Payment by one of several defendants, effect of, 42S Payment of, penalty, interest, 39ga Petitions, service of, 43j Plaintiff may purchase at sale on, minimum price, 424 Power of court to extend service for filing papers, 429 Procedure, After expiration of stay as granted, 422 In sale of property where bid insufficient, 426 Where amount of claim is undetermined pending appeal from assessment 403 Property, Against which to be filed, 399 Definition of, 396 Included in claim, ' 406 Subject to and exempt from liens, 400 Purchase of property by municipalities, 426 Quasi-public corporations, executions against, 425 Redemption of property by owner or creditor, 427 Replications, contents and effect of, filing, 430 Reports to be made to city solicitor by heads of departments, 130 Revival of judgment, procedure, 415,416,417 Rules, Return of, filing, 430 Service of, 431 Sale of property, Advertisement, procedure, 423 City may purchase at, 426 Minimum sale price, 424 Plaintiff in judgment may purchase, 424 Procedure where bid insufficient, 426 Stay of by payment of claim, _ 426 Upset price may be fixed by plaintiff, 424 Satisfaction of record by use plaintiff, 433 Satisfaction of record when claim paid by one of several de- fendants, 428 Scire facias, Amendment of, 429 Amicable, 411, 415 Form of, in revival of judgment, 415 Form of, in suing out claim, 411 Issuing of, power of court concerning, 429 Notice to claimant to issue, effect of, 410 Praecipe for, directions to prothonotary, 411 Service of, duty of sheriff, return, 412, 416 Suit to be by writ of, 411 Waiver of, 41 1 Security, sufficiency of, approval, 432 Sequestrator of rents, issues and profits, appointment of, pro- cedure, 419 Service of notices, petitions and rules, 431 Sidewalks, claim for, not to be filed unless owners failed to do work, 401 709 MUNICIPAL AND TAX CLAIMS— (Continued). Sec. Stay of proceedings before sale of property, bond, 422 Stay of sale by payment of claim, ^^° Striking off, after judgment on appeal from assessment and no amount due, 'Wj Substitution of parties defendant, 407 Taxes and tax claims defined, 392 Testimony as to location of parties respondent, 426 Time for filing answers, rules and replications, 430 Title to land acquired at sales on, method of establishing, procedure, 436, 437, 438, 439, 440 Upset price may be fixed by plaintiff, 424 Validation of certan claims, - 435 What may be included in one claim, 403 MUNICIPAL FORESTS, Acquisition of land for, procedure, method of payment, 907, 908 Administration of, .......r 907, 909, 910 Alienation of, 912 Commissioner of Forestry, Must approve location and size of before acquisition, 907 Must make rule for administration of, 909 Fires, Agreement with Department of Forestry for prevention and suppression of, 913 Reports to Department of Forestry of expenditures for, 914 Location and size of, „ 907 Purpose and use of, 911 Receipts from and expenditures for, provisions concerning, 910 Rules for administration of 909 MUSEUMS, See CITY TRUSTS. MUSIC; Power, To appropriate money for, 1033 To provide, 89 NATIONAL GUARD, Appropriations for support and maintenance of, 1027 Certificate of inspection by Adjutant General, 1028 Expenditure of 1029 Penalty for misappropriation or embezzlement of, 1030 Appropriations to and dedication of land for use of 1026 Power to take land for 1025 NIGHT WATCH, See OFFICERS AND EMPLOYES; POLICE. NUISANCE, See also PUBLIC HEALTH. Alleys, lanes and passageways constituting, vacation of, 559 Building erected contrary to ordinance is, 79 Expenses of removal of, 138 Lien for removal of, 399 Removal and prevention of, 55, 75, 137, 138, 142 OATH OF OFFICE, _ 28 710 OFFICERS AND EMPLOYES. See also INCOMPATIBLE OF- Sec. FICES; BUREAU OF MINE INSPECTION AND SURFACE SUPPORT. Appointment and dismissal of, 111 Assessor, Assessments, how made, notice, _ 170, 171, 174, 179 Liability for failure to make, 177 Notice of hearing appeals, 176, 179 On omitted property, limit of, 172 Power of council to regulate, _ 178 Time of completion, 175 Assistant, appointment and compensation, 168 Election and term of, _ „ 166 Oath of, 167 Power to administer, 179 Powers and duties, 169, 170, 171, 172, 173, 175, 176, 179 Qualifications of, 166 Registry of real estate, right to information concerning, 174 Salary of, 168 Vacancy, power of council to create, filling of, 165, 167, 177 Bond given to city, not to be surety on, penalty, 25 To city, required to give 53 Bonds of. Additional security on, proceedings, 290, 291, 292, 293 Councilman and officers excluded as sureties on, 25 Officers and agents of city required to give, 53 Premiums, payment of by city, ...'. 289 Bribery of, defined, penalty, - 21, 22 Certificate of election of to be procured by mayor, 31 City Clerk, Election and term of, - 125 Initiation of ordinances, duty in, 199 Powers and duties of, 126, 179, 183 Referendum of ordinances, duty in, 201, 202, 204, 206 Salary of, — — 125 City Property, not to be interested in contracts for, use, pur- chase, sale or lease of, 24, 1102 Claims for labor and supplies, purchase at discount prohibited, penalty, 21 Contracts with city, not to be interested in, effect of, 2(>,\W1 Controller. Bond of, - 124 Deputy, appointment, powers and duties of, - 294, 295 Bond of, ~ 295 Compensation of - 295 Election and term of - 123 Nomination and election, method of, 149 Powers and duties, - 124, 364 Probate Clerk, appointment and powers of, 296 Qualifications of, 123 Salary of, 124 Vacancy, _ 124 Councilmen. See COUNCIL. Election and beginning of term, 29 711 OFFICERS AND EMPLOYES— (Continued). Sec. Election and terra of in annexed territory, ; 244,245 Engineer. See also TOPOGRAPHICAL SURVEY. Bond of, 180, 182 Election and term of, 180 Partition fences, power over, - 84 Party walls, power over, 83 Powers and duties of, 181, 183, 185 Registration of real estate, 184, 185, 186, 187 Salary of, 182 Vacancies in, how filled, 180 Fire Marshal, appointment, powers and duties of, 299, 300, 301 Mayor. Absence or inability of, who to act, 112 Certificate of election of officers, to be procured by, 31 Docket of, to be evidence, 108 Election and term of, 90, 91 Fees of, 108 Fines for failure to attend meetings, 118 Fires, power to investigate origin of, 299, 300 Inauguration and oath, time of, 30 Ineligible for city planning commission, 331 Lodging houses may be liceYised by, license may be re- voked by, 953 Nomination and election, method of, 149 When sole nominee, _ 150 Offices incompatible with, 276 Police, suspension and control of, 110,345 Power of, in investigation of fires, 1020, 1022, 1023 Powers and duties of, 106, 107, 108, 364 Public dance halls, licenses for, to be issued by, powers and duties of mayor concerning, 943, 944, 946 Public dances, permits for, to be issued by, 942 Qualifications of 90, 91. Recreation Board, power to appoint, 894 Salary of, 1 18 Shade tree commissioners, power to appoint, 900 Tax warrants, to be executed by, 364 Vacancy, how filled, 112 Veto power, prohibited, 92 Voting power 92 Nominations and elections, 149 Number, character, powers, duties and compensation of, 18, 19, 32 Oath of office, penalty, 28 Payments by, when prohibited, penalty, 18 Pensions, who eligible, 62 Police. See also VOLUNTEER POLICE and CIVIL SERV- ICE. Chief of, may serve as fire marshal, 301 Complaints against, hearings, 110 Extra, appointment and compensation of, 109 Fees, when and to whom payable, 110 Night watch, power to establish, 58 712 OFFICERS AND EMPLOYES— (Continued). Sec. Police — (Continued). Pension fund, Benefits, how determined, 306 Who deprived of, 308 Contributions to by city, 309, 310 Establishment, maintenance and administration of, 306 Pensions payable from fund only, 306 Property left in trust for, administration of, 307 Retired policemen to act as reserves, discharge of, 306 Retirement of policemen under, 306 Who beneficial under, 306 Power to establish, 58 Powers and duties, « 110 Regulation and compensation of, 59, 109, 303, 304, 305 Rewards, not entitled to, 63 Supervision and control of, 110 Suspension of, 110 Political assessments, prohibition, penalty, 297, 298 Qualifications of residence, effect of removal, 286 Removal of, 54 Solicitor. Bond of, 127 Election and term of, 127 Municipal claims, duty of departments to report to, 130 Powers and duties 128, 129, 130, 131 Qualifications of, 127 Salary of, 131 Vacancy in, how filled, 127 Superintendent of Accounts and Finance. Bond of 1 14 Deputy, appointment and compensation of, 117 Duties and powers of, 114, 115, 116, 117 Municipal claims, duty of departments to report to, 130 Term and election of in consolidated cities, 264 Terms of, 103 When change in class of city, 217 Treasurer. See also TAXES. Bond of, 119, 120, 366 Election and term of, 119, 120 Nomination and election, method of, 149 Oath of, 362' Payments by, regulated, 20 Powers and duties, 121, 122, 82k, 365, 378, 380, 381, 382, 383 384, 38S, 476, 477, 905 Qualifications of, 119, 120 Salary of, 119, 120 Vacancy in, 122 Warrants on, proofs required by superintendent of finance, 115 Requisites of, 114, 121, 124 OFFICES. Creation and regulation of, compensation fixed, 52 OFFICIAL BONDS. See OFFICERS AND EMPLOYES. 713 ORDINANCES. See also INITIATIVE AND REFERENDUM. Sec. Council's duty to enact, to carry Clark act into effect, 210 Department of charity and support of the poor, power to create, govern and levy tax for, by, 10^8 Enforcement of 85, 106 Fines and penalties for violation of, 59 Franchises, granting of, by, 202, 203 In consolidated cities, 263 Indebtedness, authorized by, and publication of ordinance authorizing 196 Mine inspection and surface support, power to enact, 318, 325 Must be reduced to writing, 95 Officers and employes, number, duties and compensation of, provided by, 1 8 Paving, validation of, 334 Personal interest of councilmen in, effect of, _ 23 Procedure in enacting, _ 17 Proof of, - 97, 126 Publication of, 97 Recording and certification of, 97 Requisites of, .'. 16 Sewers, assessment for cost and expenses of, by, 49 Signing and attestation of, 96 Streets, Opening, widening, straightening, extending, procedure, .... 49 Paving, macadamizing and grinding, procedure, 49 Vacating of, procedure, 49 Time under, how computed, 332, 333 Unrecorded, validation of, 335 Violations of, proceedings in, 113 Votes necessary to pass, 92 What; prohibited, _ 18 When to take effect, Generally, 97,201 If submitted to referendum, 201 PARKS AND PLAYGROUNDS. See also CITY TRUSTS. Asquisition of land for. By eminent domain, procedure, 872, 873, 874, 878, 879-885 By gift or lease, , 871 By purchase, 870, 872, 874 Where location of park not specified, 871 Where parks are within city limits, 870, 872, 874 Where parks are without city limits, 872 Where playgrounds are within city limits, 874 Annexation of property for, when outside of city, 872, 874 Damages not recoverable for buildings erected within lines of, 869 Establishment and. regulation of, 73 Improvement, regulation and control of 870 Location of, power of council in, effect of, 869 Plan of, filing and recording of, 869 Poorhouse properties may be appropriated for, .: 872, 874 Power of city to authorize use of parks for public educa- tional institutions established by certain city trusts, .... 1085 714 PARKS AND PLAYGROUNDS— (Continued). Sec. Procedure for condemning private property for, damages, costs. Where park is within or without city limits, 873 Where park is within city limits, 879-885 Where parks and playgrounds are within city limits, 878 Public use, definition of, for eminent domain purposes, 877 Sale or lease of coal lands under. Advertisement of, 887 Application of proceeds from, 886, 888 Bonds may be issued on faith of, sale and redemption of, ..889, 890, 891 Highest and best bidder is purchaser, 887 Power of council, 886 Taxes, exempt from; 375 When for play grounds, play fields, gymnasiums, public baths, . swimming pools, or indoor recreation centers. Acquisition of lands and building's for, 892,896 Bonds may be issued for acquiring or equipping of, 897 Designation of land and buildings for 892 Equipment, maintenance, operation and supervision of, .... 893,896 Expenses of operation, 898 Recreation Board, 894, 895 PARKWAYS, Acquisition of land for, procedure, 874,878 PARTITION FENCES, Regulation and maintenance of, 84 PARTY WALLS, Regulation of construction of, 83 PEDDLERS. See LICENSES AND LICENSE FEES. PENAL PROVISIONS. Agreements with banks for use of public moneys for private benefit prohibited, penalty, _. 1098 Currency, offences against by officers, 1104 Embezzlement of public moneys, penalty, 1099-1101,1108 Loaning money or securities of city, prohibited, penalty, 1097 Misapplication of moneys collected for special purposes, penalty -. 1096 Public Accounts. False statements concerning, penalty, 1107,1108 Falsification or mutilation of, penalty, 1106, 1108 Receipt or possession of money without entry upon, penalty 1105,1108 Public contracts, interest in prohibited, suretyship by officers prohibited, penalty, 1102, 1103 Statute of limitations 1109 Regulation of, for enforcing ordinances, 85 PENSIONS. See OFFICERS AND EMPLOYES. Police. PERSONAL PROPERTY. See PROPERTY. PLAY FIELDS. See PARKS AND PLAYGROUNDS. PLAY GROUNDS. See PARKS AND PLAY GROUNDS. PLUMBING AND DRAINAGE. Brass cleanouts, - 829 Cast iron soil pipe, weight and thickness of, 804 715 PLUMBING AND DRAINAGE— (Continued). Sec. Cess pools and privy vaults, °'^° In districts where no sewer exists, 850 Changes in direction of pipes, °14' Changes necessary, notice to owner, 854 Closets, number required, 839 Prohibited, 832 Connections for closet vents, 826 Drains outside of buildings 801 Duty of owners and plumbers in constructing drains, etc., 794 Examination and report of defective, 8S4 Exhaust from steam pipes, etc., 812 Ferrules, diameter and weight of, 830 Final test, 856, 857 Firs't inspection, 855 Fixtures prohibited, 847 Setting of, ; 831 Floor drains, 803 Flush pipes, 845 Fresh air inlet, 798 Horizontal vent-pipes, 824 House Drains. Maint trap to be provided for, requisites of 797 material for, 796 Separate connections with sewer, exceptions, 796 Size of regulated, 796 House sewer, location of, 800 House sewers and drains, laying of, 799 Inspection of and approval, 795 Inspector of, appointment, duty and compensation of, 790 Joints for soil and waste pipes, 81S Leader pipes, 808 Material for, 809 Leaders, trapping of, 810 Use of, 81 1 License of plumbers, application for, _ 790 Examination for, 790 Required, - 789 Lining for closet and urinal cisterns, 846 Material and workmanship, 851 Oflsets on vent lines, 825 Old house drains and sewers, use of, 807 Overflow pipes, 808 Penal provisions of act, 859 Plans and specifications for each building, 792, 793 Plumbers. Duty of, in constructing drains, etc., 794 Licensing of. Board of examiners, appointment and compensation of, 790 Rules and regulations of, 790 Duration ot license, 791) Surrender of license, 790 Fee for examination, 790 716 PLUMBING AND DRAINAGE— (Continued). Sec. Plumbers — (Continued). Name of, not to be used by others to secure permits, 852 Notice of change of business location, 790 Plans and specifications of plumbing work to be filed before commencement of work, 793 Re-examination and re-registration of, 790 Registration in other city without examination 790 Sign on place of business, 790 Unqualified persons not to advertise or engage in business, 790 Registration of those engaged in, 789 Rules and regulations for, 791-860 To be adopted by board of health, penalties for violations of, 860,861 Sediment pipes, _ _ 819 Settlement of disputes concerning construction of, 8S8 Sewer connections for each house to be separate, exceptions, .— 796 Sewers between buildings, material of, 802 Size of horizontal and vertical waste-pipe, traps and branches, 817 Soil pipes, size of, 813 Soldering nipples, 828 Subsoil drains, 805 Terms used in act defined, 853 Traps, setting and sizes of, . 820 For bath tubs, water-closets, etc., 816 Urinals, construction of, 841 Platforms of, 842 Ventilation of traps and soil lines, 823 Ventilators prohibited, 827 Vent-pipes, material for, 822 Waste-pipes, safe and refrigerator, 821 Water-closet apartments, 840 Connections, with soil pipe, 833 Water-closets and urnials, construction of, 843, 844 For tenement houses, 838 How supplied, .'. 835, 837 Location of, ■ 834 Must have flushing rim-bowls, 836 Yard and area drains, 806 Yard water closets, 848 POLICE. See OFFICERS AND EMPLOYES, VOLUNTEER POLICE. POLICE REGULATIONS, Establishment and enforcement of, .... 62 POLITICAL ASSESSMENTS. See OFFICERS AND EM- PLOYES. POOR. See DEPARTMENT OF CHARITY AND SUPPORT OF THE POOR. POOR-FARM, Power to acquire land for, establish and maintain, 61 POWERS. See CORPORATE POWERS. PRISONERS. See CITY PRISONERS. 717 PRISONS. See also CITY PRISONS. Sec. Establishing, maintenance and regulations of, "1 PROPERTY. Personal, sale of regulated " 1" Power to contract concerning, 37 To lease and sell, 36 To purchase and hold, 35 Registration of, 174, 184, 185, 186, 187 Use, purchase, sale and lease regulated, penalty, 24 PUBLIC BATHS. See PARKS AND PLAY GROUNDS. PUBLIC BOARDS. See DEPARTMENTS. PUBLIC BUILDINGS AND WORKS. Acquisition of real estate for purpose of, by purchase and con- demnation, — 697-702 Appropriation of private property for, appeal from report -of viewers, 701 Compensation to owner, security for, 698 Report of viewers, _ 700 Auditoriums, libraries, memorial buildings and monuments. Acquisition of property for, assessment of damages, 703, 70S Construction and maintenance of, authority for, 704 Contracts for public work, bond for payment of labor and ma- terial, actions on, =. 744, 745 Citizens only to be employed, 749, 750 Plans and specifications to be accompanied' by list of ma- terials, 742 Regulations confining work to territorial limits of city, 751, 752 Separate specifications and bids for plumbing, heating, ventilating and electrical work, 743 Workmen's compensation act, acceptance of by contractor, 746, 748 Duty of municipal officer concerning, 747 Donations and contributions to libraries by city, 706 Eminent domain, exercise of right of, for, 697-702 Viewers, appointment of, compensation, 699, 702 Flags on public buildings, 754, 755 Joint county and city hospitals. Acquisition of land for purposes of, 721 Authority for construction of, 718, 719 Buildings on purchased lands may be used, for, 730 Condemnation proceedings, appeal to supreme or superior court, 727 Appeals from report of viewers, 726 Costs and witness fees, 729 Exceptions to report of viewers, 725 Payment of award into court, 728 Viewers, appointment of, 723 Hearing and report of, 724 Eminent domain, right of, for purpose of, 722 Indebtedness, authority for increase of, for, 733 Joint contracts for construction and maintenance of, .... 731 718 I'UBLIC BUILDINGS AND WORKS— (Continued). Sec. Joint County and City Hospitals — (Continued). Plans for, approval of by court, 730 Rules and regulations concerning, authority to make, 732 Sales of land between county and city, approval of court, 720 Joint county and municipal buildings. Agreement for proportionate occupation of, 715 Authority for construction of, 708, 713 Contract for construction ma,y be joint or several 710 Eminent domain, exercise of right, for purpose of, 711, 716 Indebtedness, increase of by county for purpose of, 712,717 Maintenance, control and use of, 708 Sale of land for purpose of, to be approved by court, 710, 715 Several ownership of parts, 709, 714 Meeting rooms for war veterans, 753 Power to acquire land for and erect, 61 Rents for use of public auditorium, 707 State Art Commission, Annual report of 739 Appointment and compensation of, 734, 735 Approval by, of public buildings, etc., 738 Clerks and assistants, appointment and compensation of, .... 737, 740 Rules of procedure, authority to adopt, 736 PUBLIC DANCES. See LICENSES AND LICENSE FEES. PUBLIC HEALTH. Animals, Dead, depositaries of, power to regulate and prohibit, 1072 Keeping and slaughtering of, power to regulate and pro- I hibit, 1071 Board of health. Appointment and term of 135 Budget, duty to present to council, 140 Compensation of 135 Contagious or infectious diseases, powers and duties con- cerning, 137, 138 Council may create, 132, 134 Expenses of, appropriations for, 146 Fees and penalties, disposition of, 136 Nuisances, power to abate, procedure in, 137, 138, 142 Number and qualifications of, 135 Officers of, Bond to be given by, 136 Powers, duties, term and compensation of, 136, 138 Offices incompatible with membership in, 279, 280, 282 Organization and oath of 132, 136 Penal provisions, - 145 Powers and duties of 132, 137, 138, 140, 142, 143, 144 To be exercised by council, : 133 Proceedings and journal of proceedings, 147 Quorum, ^^1 Reports of, 14° Sanitary police, appointment and control of, 143 Vacancy in, how filled, 1^5 Bone boiling establishments. Power to regulate 1072 Communicable diseases. Attendance at certain places of children and persons suffer- ing from or exposed to, prohibited, 1038-1040 719 PUBLIC HEALTH— (Continued). Sec. Communicable Diseases — (Continued). Blanks for reports and certificates to be supplied, 1044 Bulletins of persons suffering from, to be furnished to schools by health authorities, - 1045 Burial of persons dying with, 10S2-10S7 Children, readmission to schools, 1043 Conveyances at funerals, 1056 Conveyance of bodies from home to cemetery, 1057 Disinfection of clothing, bedding, etc., 1049, 1051 Of premises, 1046, lOSl Of vehicles used by persons suffering from, 1047 Duty of health authorities to furnish bulletins of persons suffering from, to school teachers, 1045 Exclusion of children from public schools on suspicion of, 1042 F'uneral of person dying with, to be private, 1054, 1055 Maintenance of quarantined persons. District liable for, Settlement in, how gained, 1062 Of illegitimate minor children in, how de- termined, 1064 Of married women in, how determined, 1063 Liability of district in which person had last settlement, 1060 Recovery from individual, of expenses paid by district, 1061 Particular diseases classed as, 1034 Penalty for violation of act, 1059 Persons residing on exposed premises may leave on cer- tain conditions, 1041 Physicians to report to health authorities, 1034 Power of Department of Health to declare, 1034 Quarantine. Of persons and premises, placards, 1035 Period of, 1034, 1037 Regulations concerning, powers of health authorities to make, 1051 Removal of placards, 1036 Regulation of use of vehicles by persons suffering from, .... 1047 Regulations concerning, power to make, 75, 76 Renting rooms, houses, etc., without disinfection, pro- hibited, 1050 Report of cases by health authorities, 1058 Schools, registry of children excluded to be kept, 1043 Wilful exposure of persons suffering from forbidden, 1048 Disinfection, power to supply, 144 Nuisances. Abatement of, Application of act, 1069 By action of council and mayor, petition to court, appointment of viewers, 1065 Compensation to owners of property affected, 1066, 1067 Power of city when owner of property neglects, 1068 Report of viewers, appeals from, 1066, 1067 Penal provisions, 145 Poor, medical relief to, ■. 144 720 PUBLIC HEALTH— (Continued). r Sec. Regulations concerning 75 Rubbish and waste materials, 1070 Spitting. Arrests, power tomake, for violation of act, 1077 Penalties for violating act, 1075, 1076 Prohibited in certain places 1073 Receptacles, cleaning of, 1074 Signs warning public, posting of, 1074 Vaccination, Power of Board of Health to enforce, 137 Power to supply, 144 PUBLIC LIBRARIES. Agreements not affected by act, 787 Appropriation of private property for purpose of, appointment of viewers to assess damages, 783 Appropriations for establishment and maintenance of, limit of, 762, 767 Board of directors. Annual report of, 776 Appointment, term, powers and duties, 764, 768, 775, 777, 778 Organization of, 769 Treasurer, audit of accounts of, 775 Bond of, -. 769 Contracts for free use of appropriations for, 772, 773 Damage to books, etc., penalty, 788 Division of appropriations to, - 780 Election to create bonded indebtedness for, petition for, 785 Election to determine establishment and maintenance of, tax rate to be decided at, 763,764 Eminent domain, exercise of right for purposes of, procedure, 782-784 Joint municipal free libraries, agreement for, 770, 774 Limitation on number of, 780 Municipal aid to, 771 Municipal and corporate control of, 779 Municipal authorities defined, 761 Municipality defined to include cities, 760 Popular sTibscrii)tions for support of, 766 Public use of, 778 Purchase of lands and buildings for purposes of, authority for, 781, 782 Taxation. Exemption from, 786 For establishment and maintenance of, 762, 765, 767, 774 Exemptions from, 774 PUBLIC LODGING HOUSES. See LICENSES AND LI- CENSE FEES. PURCHASING DEPARTMENT, Creation, powers atid regula- tion of, 19 QUARANTINE. See PUBLIC HEALTH. RAILROAD CROSSINGS, Bridge's, construction and maintenance of, ■ Regulation and protection of, Speed of trains, regulating, - 721 46 57 57 57 RAILROADS, Lateral railroads, city may construct, damages to private property, procedure, ~ "^ RAILROADS AND RAILWAYS. See CONTRACTS WITH RAILROADS AND RAILWAYS. REAL PROPERTY. See PROPERTY. REFERENDUM. See INITIATIVE AND REFERENDUM. RESERVOIRS, Power to establish and regulate, 72 RESOLUTIONS. See ORDINANCES. REWARDS, For arrests and convictions 63 RIOTS AND DISTURBANCES, Prevention of, 68, 106 RIVERS. See WATER COURSES. RUBBISH AND WASTE MATERIALS. See PUBLIC HEALTH. SANITARY POLICE. See PUBLIC HEALTH. SCAFFOLDING. See ELEVATORS AND SCAFFOLDING. SEAL, Authority to make and' use, 38 SECOND HAND DEALERS. See JUNK DEALERS. SEWERS. See also MUNICIPAL AND TAX CLAIMS. Acquisition of, by purchase, procedure, _ 643, 644 Assessments for, According to benefits, method of selecting viewers, 49, 153 Assignment of, lS2d Collection by installments, lS2b, lS2c Collection of, liens 155, lS6a Foot front rule, peculiar shaped or corner lots, 153 Methods of, 49, 152 Notice of making, 152a Payable in installments, collection of, 152b, 152c Viewers, Appointment of, 153, 154 Report of, objection, procedure, 154 Authority to construct, 523, 642 Connection with, 1 56 Power to charge fee for, 152 Sewers of other municipalities 648, 649 Construction and extension of, 48 Construction, power of, 152 Costs and benefits of, assessment of, 642, 645 Costs, method of payment, 152 Damages, Cities liable for, in construction of, 487 Eminent domain, exercise of right of, for, 157, 484, 643-645, 650-652 Joint ownership of sewage systems, _ 646, 647 SHADE TREES. Assessments concerning, payable to city treasurer, „ 905 Cost of caring for _ 903 722 SHADE TREES— (Continued). Sec. Cost of planting, protection and removal of, and fixing street. Certification of, by commissioners to council and tax col- lector, notice of, effect of, ,., 902 Collection of, when certified to council and tax collector, .. 902 Who to pay, 902 Park Commission. Notice of meeting to consider work concerning trees, ex- pense of notice, 901,903 Reports of, as Shade Tree Commission, 900 When powers of Shade Tree Commission given to, ...... 899 Penalties for violations of act, collection of, payable to city treasurer, 904,905 Planting and care of, _ SS Rules and regulations concerning, 904 Shade Tree Commission. Acceptance of act providing for, 900, 906 Appointment of commissioners, terms, vacancies, 900 How composed, powers and compensation, 899 Notice of meeting to consider work concerning trees, 901 Powers of, 899, 904 Reports of 900 When Park Commission shall have powers and duties of, .. 899 When shade tree commission act is in effect, 900, 906 SIDEWALKS. See STREETS. SINKING FUND. See also INDEBTEDNESS. Power to levy and collect taxes for 46 SKELETONS of the acts of May 23, 1874, and of May 23, 1889, showing provisions in force, repealed, etc., 213, 214. SLOPES AND EMBANKMENTS, Eminent domain, exercise of right 1 57, 484 SMOKE, Regulations concerning, _ 78 SOLICITOR. See OFFICERS AND EMPLOYES. STATE ART COMMISSION. See PUBLIC BUILDINGS AND WORKS. STEAM BOILERS. See LICENSES AND LICENSE FEES. STEAM ENGINES. See LICENSES AND LICENSE FEES. STOCKHOLDER, Cities not to become, in companies, associa- tions, or corporations 46S STREAMS. See WATER COURSES. STREET RAILWAYS. See RAILROADS AND RAILWAYS. STREETS AND HIGHWAYS. See also MUNICIPAL AND TAX CLAIMS: TOPOGRAPHICAL SURVEY. Adjoining public buildings, grading and improvement of, by city and county, 544, 545 Alleys, lanes and passageways, constituting nuisances, vaca- tion of, ■ - 559 723 STREETS AND HIGHWAYS— (Continued). Sec. Altering and widening of, in certain cases, assessment of costs, 531 Assessments for improvements, Assignment of, _ 49d Entire amount to become due and payable on default in payment of installments, 542 Notice of, 49a Payment by installments. Collection of, - 49b, 49c To discharge lien of; 543 Refund of, when erroneously paid, 535 To be filed in prothonotary's office, contents of, 540 Bond issue for improvement of, separate vote of electors for improvement of particular street, 538 Bonds for expense of improvement of, when payable, interest, 537 For improvement of, sale of, 539 Buildings constructed on after location of, no damages to be allowed for, _ 521 Burial grounds. Opening through, prohibited 868 Cemeteries, Opening through, prohibited, 868 Cleaning and sprinkling of, 576-578 Connecting county roads, maintenance and improvement of, .... 552 Damages. Cities liable for, in laying out, opening, widening, vacating, extending or grading 487 Not recoverable for buildings erected within lines of, 521,869 To private property in improvement of, provision for pay- ment of, 528 Eminent domain, exercise of right of; 157,484 Encroachments and obstructions upon, regulating, 56 Excavations under, regulation of, penalties, 323, 324 Grade crossings, establishment, regulation, alteration and va- cation of, procedure, 564-575 Grades, establishing of, 47 Grading only, assessment for, 49 Grading, paving, macadamizing, curbing, etc., of, 523, 524 Grading, paving or macadamizing, procedure in and assessment for, 49 Improvement of. Adjoining public buildings, by city and county, 544, 545 Assessments for damages and benefits, recovery on, 529 Assessments for, to remain lien until paid, 540 Assessments for, when and where payable, 541 Collection of costs and expenses, 536 Contract price, to be assessed on property benfited, 539 Lots and lands abutting on may be used for, 526 On city boundary lines, 546 On city and township boundary line, Contract for, apportionment of cost, 547, 548, 550 Court to direct contract for, 549 Supervision of, by city, 548, 551 Outside city limits, 554 Payment of assessment for to discharge lien, 543 Payment of, by issue of bonds, - 537 Petitions to council for, majority in number and interest, how determined, appeals to court, 533 724 STREETS AND HIGHWAYS— (Continued). Sec. Improvement of — (Continued). Proceedings for assessment of damages and benefits, S2S, 526 Refund of money erroneously paid for assessments for, 535 Upon petition of property owners, 523 Without petition, publication of ordinance, 524 In town plots, unopened for twenty-one years, 556 Laying out, opening, widening, straightening, altering, extend- ing, improving and repairing, 47 Lighting of, 80 Location and revision of, power of council, 522 Location not to be changed without consent of council, 521 Obstructions, removal of, 55 On city boundary line, improvement of, 546 Opening and widening of, assessment of damages due to grade, profile plan of grade, 532 Opening of, through cemeteries or burial grounds prohibited, 868 Opening, widening, straightening and extending of, authority for, publication of ordinance, 530 Opening, widening, straightening, extending, procedure in and assessment for, 49 Ordinances vacating streets, lanes and alleys, recording of, .... 560, 561 Outside city limits, improvernent of, 554 Pipes and conduits in, regulations concerning, 156 Plans of, city to have, 521 Private property. Assessments for damages and benefits, recovery on, 529 Damages to, provision for payment of, 528 Occupation of, for slopes and embankments, 527 Railroads, relocation and change of, for safety of public, 574 Recording of ordinances vacating streets, lanes, and alleys, .... 560,561 Refund of moneys erroneously paid as assessments for im- provements, 535 Sidewalks. Assessment for, notice of, 50, 50a Construction and improvement of, 47, SO Construction and repair of, cost, 534 Cost, method of payment, 50 Excavations under, _ 55 Improper use of, 68 Sign-boards, form of, regulation, 562, 563 Speed of locomotives, cars or trains on, 57 Sprinkling and cleaning of, 576-578 Turnpikes, grading, paving, curbing, bridging and culverting of by city, 165 Maintenance, of, 555 Vacating of, 47 Procedure in and assessment for, 49 When unopened for thirty years, ^ 86, 87 Proceedings to determine damages and benefits, 557, 558 Vacation of alleys, lanes and passageways constituting nuisances, 559 What prohibited in, 68 725 SUCCESSION. Sec. Perpetual, by corporate name, — 33 SUITS BY AND AGAINST CITY, Power to bring and defend, .... 34 SUPERINTENDENT OF ACCOUNTS AND FINANCE. See OFFICERS AND EMPLOYES. SURRENDER OF CHARTER. See CHARTER. SWIMMING POOLS. See PARKS AND PLAYGROUNDS. TAXATION. See TAXES. TAXES. See also MUNICIPAL AND TAX CLAIMS. Adjustment of between city and borough detached from city, 377 Assessment and collection of, to pay loans and interest, 41 Assessments of property for levy of, see also City Assessor. Appeals, Notice of hearing, 176, 179 Board of revision of taxes and appeals. Appeals to court of common pleas from, costs, 179 Appeals to, time for completion of, by, 179 Clerk, City clerk to act as, ._ _ 179 Council to act as, 179 Powers and duties of, 179 Completion of, by assessor, _ 175 How made. Notice, 169, 770, 171, 174, 179 On omitted property, 172 Power of council to regulate, 178 Bonds issued to redeem certain existing floating indebtedness not subject to certain, 463, 464 Collection of, By city treasurer, 361-374 By lien, _ 392-435 By suit, 387-391 Delinquent, by treasurer's sales, 378-385 Collector of. Bond of, 366 Compensation of, 373 Final settlement of duplicates by, 370, 372 Monthly settlement by, _ 369 Office of, location, hours open, 368 Powers after expiration of term 370, 374 Powers and duties of 365,370,371,374 Settlement of accounts, 372 Supplies of, furnishing, 368 Term of, as collector of school taxes, _ 370 Department of Charity and Support of the Poor, power to levy, 1078 Deputy collectors of. Appointment, powers and compensa- tion of, „ 365 Duplicates, Inspection and custody of 363 When issued to collector, 363 Exemption of real estate from, 375, 376 Foreign fire insurance companies, state tax on, distributed to cities 386 In annexed territory, 241 726 TAXES— (Continued). Sec. Levy, For cost of caring for shade trees and for certain notices, 903 For general revenue purposes, 40 For playgrounds, playfields, gymnasiums, public baths, swimming pools and recreation centers, 898 License tax for general revenue purposes, 43 Penalty added ^ 367 Poll tax for general revenue purposes, 42 Property exempt from, 375, 376, 774, 786 Rate of, how fixed, 100 Rebate on, „ 367 State tax on bonds of city, collection of, return to state, .-.474, 475, 476, 477 Treasurer to collect, city, school and poor, 361 Treasurer's sales. Bond for surplus purchase money, filing, effect of and rights under, 383 City may purchase at, 380 Collection by, _ 378 Deed of treasurer 384 Docket of, to be kept by treasurer, 380 Duties of purchaser at, 381, 383 Notice of, 380 Prothonotary's fee for duties in connection with, 384 Redemption of land, procedure, _ 380, 385 Resale on default of purchaser, 381 Return, exceptions to, confirmation of, 382 Time of, 379 Uniformity of, in annexation of territory, 239, 240 Throughout consolidated city, 262 Warrants for collection, Duration of, 365, 370, 374 Extension of, -- 374 Issuing of, 364 TELEGRAPH AND TELEPHONE WIRES. See ELECTRIC WIRES. TOLL BRIDGES. See BRIDGES AND VIADUCTS. TOPOGRAPHICAL SURVEY. Building within street lines, damages not recoverable, 194 Engineer, powers and duties of, 189, 192 Plan, notice and adoption of, 190, 191 Recording, eflfect of, 191 Power to authorize, 188 Sectional surveys, - 192, 193 TRACTION ENGINES, TRACTORS AND TRAILERS. See also LICENSES AND LICENSE FEES. Rights on streets, ^'^^ TREASURER. See OFFICERS AND EMPLOYES. TRUSTS. See CITY TRUSTS. 727 TURNPIKES. Sec. Eminent domain, in grading, paving, curbing, bridging and cul- verting of, by city, 165 Maintenance of, 555 VAGRANTS • ■ - 68 VEHICLES, arrest by officers for violation of act 1017 Driving regulations, 1015 For hire, regulation of, ,f 66 Lights to be displayed by, at night 1013 Motor, not affected by act, 1019 Penalty for violation of act, 1018 Public highvifay defined, 1016 Street passenger cars, passing of, by, 1014 VIADUUCTS. See BRIDGES AND VIADUCTS. VICE. See CRIMES. VOLUNTEER POLICE. Appointment of, during war times 311 Direction and control of, 311 Oath of, : 312 Powers of, _ 313 Purpose and object of organization, 314 WAITING, REST ROOMS AND DRINKING FOUNTAINS. Authority for construction and maintenance of, 756, 758, 759 Damages to property in construction of, 757 WARDS. Annexed territory, 242 Elections and election districts in, 244, 245 Creation of into, 13 Procedure for arrangement into, 243 Boundaries, Proceedings to determine, 253 Consolidation of cities. Intervening land attached to certain, .... 26-1 Creation and division of, appointment and duties of commis- sioners for 4 Conduct and effect of election on, 5 Power of court, 4 Report of commissioners on, 4 When election on authorized, 5 Number and population of, 5 Transfer of part of, Appointment and duties of commissioners for, 6, 251 Conduct and effect of election on, 7, 252 Report of commissioners on, 6, 251 When election on authorized, 7, 252 WARRANTS. Sec OFFICERS AND EMPLOYES. Trea.surer. WATER AND LIGHTING DEPARTMENT, Frontage lighting tax, 82g, 82h Frontage water tax, 82g, 82h Ordinances, power of council to make, 82-1 728 WATER AND LIGHTING DEPARTMENT— (Continued). Sec. Powers and duties of, : 82e, 82f, 82g, 82i, 82k Quantity, power to fix, g2i Rates, power to fix, ^. 82i Revenue, application of, 82k Tax, collection of, 82j WATER COURSES. Acquisition and entry upon property for construction of dams, 678 Alteration, vacation or relocation of creeks, runs or natural water-ways, 679-688 Appeal from report of viewers, 685 Appointment of viewers to assess damages, report costs of view, 680,681,683 Assessment of damages and benefits, lien of, 687 Assessment of damages and costs upon property benefited, 682 Exemptions from, 688 Repeal of ordinance concerning, effect of, 686 Security to owner of land, 684 Confining, paving and enclosing creeks, runs and natural water- ways, Appeals from report of viewers, 694 Appointment of viewers to assess damages and benefits, .... 690 Assessment of damages and benefits, 691, 692 To be lien, 695 Authority for, 689 Costs of view, 693 Dams, acquisition and entry upon property for construction of, 678 Eminent Domain, exercise of right, 157,484 For construction of dams, .-.. 678 For vacation, alteration or relocation of, 679-688 Meadow lands, Corporations for protection of, surrender of charter, : 696 Regulation and control of, 71, 72 WATER SUPPLY AND WATER WORKS. See also WATER AND LIGHTING DEPARTMENT: MUNICIPAL ' AND TAX CLAIMS: WATER COURSES. Asquisition of private water works. Bond issue for purpose of, 657,658 By lease, - 660, 661 Operation of, and rates, 662, 663 By purchase. Proceedings to determine value of, 653-655, 659 Exclusive privilege terminated, 656 Acquisition of property for, 82a, 157 Appropriation of springs and streams for purpose of, compen- sation to owners, 664, 665 Drainage areas, entry upon private lands for purpose of pro- tecting, 670 Eminent domain, Exercise of, as to land contiguous to streams and reser- voirs to prevent contamination, 668 Exercise of, generally, 82a, 157 Exercise of, in appropriation of springs and streams, 664, 665 729 WATER SUPPLY AND WATER WORKS— (Continued). Sec. Eminent Domain — (Continued). Exercise of, to reconstruct turnpikes and public roads, 667, 66^ Extension of water pipes and improvements into adjoining districts, _ 671 Impounding water from forest reservations, 666 Mortgaging of water works owned by subdivisions of citites, procedure, 672-674 Power to supply, 81 Protection of drainage areas, entry upon private lands for pur- pose of, 670 Storage of water on portions of turnpikes and public roads, .... 667 Roads, Public, appropriation of land to reconstruct such as were occupied or overflowed, damages 667, 669 Springs and streams, appropriation of, for purposes of, 664, 665 WEIGHTS AND MEASURES, Constitutional prohibition against state oifice for regulation of, 989 Inspection of, penalty for violation of act, 992 Inspectors of, Appointment, term and compensation 990 Powers and duties of, 991 Reports to State Bureau of Standards, 991 Standard tests to be furnished to, 991 Instruments and devices, destruction of false and illegal, 991 Milk, Standards to be used in testing of, 993-997 Regulation of 70 Standards to be used in testing of, 993-997 WELLS „ __ _. 72 WHARVES AND DOCKS, Construction and regulation of, 71 Damages to owner for property taken or injured for use of 675 Market houses and railroads may be erected upon, restric- tions on — 676, 677 Property, compensation to owner for taking or injury of, for use of 675 WIRES. See ELECTRIC WIRES. WITNESSES, Compulsory attendance and testimony of, 336 Perjury of, penalty, 336 730