the department of public health and charities [ James Gay Gordon, Jr., James M. Dohan, in cities of the first class, where no appropria- Asst. City Sol., Michael J. Ryan, City Sol., tion has been made therefor by ordinance. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 2163-2165; Dec. Dig. 995.*] 2. MUNICIPAL CORPORATIONS (§ 191*)-ORDINANCE-CONSTRUCTION-APPROPRIATION FOR SALARIES. Prior to act of July 22, 1913 (P. L. 879), creating a division of housing and sanitation in the department of public health and charities in cities of the first class, such department was empowered to establish a system of inspection and supervision over drainage, and to appoint inspectors at salaries to be fixed by councils and to employ tenement house inspectors. A city ordinance, approved December 31, 1913, made an appropriation for sanitary inspection, and fixed the number and salaries of the employés of that department, but did not indicate an intention to fix salaries and make an appropriation under the act of 1913. Held, that such ordinance related to the organization of the department under legislation existing prior to the act of 1913, and did not carry into effect the provisions of such act. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 525-529; Dec. Dig. § 191.*] 3. MUNICIPAL CORPORATIONS (§ 176*)-DEPARTMENT OF PUBLIC HEALTH AND CHARITIES-STATUTE CREATING DIVISION-TIME OF TAKING EFFECT. and John H. Fow, all of Philadelphia, for appellant. Paxson Deeter, of Philadelphia, for appellee. ELKIN, J. [1, 2] This bill was filed by a taxpayer to restrain the defendant city officials from making payment of salaries to the other defendants named in the bill for services rendered under the provisions of the services rendered under the provisions of the act of July 22, 1913 (P. L. 879). The purpose of this act was to create a division of housing and sanitation in the department of public health and charities in cities of the first class. The learned court below very properly held that, no appropriation having been made for the payment of the salaries in question, there was no fund upon which warrants could be drawn to make such payments, and that, the city officials not having authority to divert public moneys from the purposes for which they were specifically appropriated, the injunction should be awarded. It is argued that the ordinance of December 31, 1913, making an appropriation to the department of public health and charities, in the item for sanitary inspection, is broad enough in its terms to include the salaries of those defendants who claimed to have rendered services under the act of 1913. A careful reading of the ordinance convinces us that this position is not tenable. The amount appropriated for sanitary inspection, the number of inspectors and other employés of that department, and the salaries fixed in the ordinance, all relate to the organization under the old law and nothing therein contained shows the slightest indication of an intention to fix salaries and make an approWithout an priation under the act of 1913. appropriation there can be no payment of salaries. This is too well settled to admit of argument. On this ground alone it would be necessary to affirm the decree entered by the court below. The Act of July 22, 1913 (P. L. 879), creating a Division of Housing and Sanitation in the Department of Public Health and Charities in cities of the first class, did not go into opera-A tion automatically, but required definite action on the part of the city councils to make it effective to render its repealing clause operative on prior legislation inconsistent therewith. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 427-440; Dec. Dig. § 176.*] 4. MUNICIPAL CORPORATIONS (§ 191*)-DE- The words "there shall be," as used in the act of July 22, 1913 (P. L. 879), providing that there shall be a division of housing and sanitation attached to the department of public health and charities in cities of the first class, are equivalent to the words "there shall be established." [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 525-529; Dec. Dig. § 191.*] [3, 4] Another question has been raised, and being important to the orderly administration of the work of the Health Depart 5. STATUTES (§ 259*)—REPEALING STATUTES-ment, it should be decided. When and how TIME OF TAKING EFFECT. Where a revising statute is to take effect at a future period or upon the happening of certain contingencies or performance of certain acts, a clause therein repealing former laws on the same subject does not take effect until the act goes into operation. [Ed. Note. For other cases, see Statutes, Cent. Dig. §§ 333, 340; Dec. Dig. § 259.*] Appeal from Court of Common Pleas, Philadelphia County. does the act of 1913 go into operation and become effective? How shall the division of housing and sanitation be organized and by whom? Who shall determine the number of inspectors to be appointed and the salaries to be paid? On these most important questions the act is silent. The first section simply provides that in cities of the first class there shall be attached to the Department of Public Health and Charities a Division of Housing and Sanitation, but nothing is said as to how or when this division shall be organized, or what department or branch of the Munic Bill by John Thiel against the City of Philadelphia and others to enjoin payment of salaries. From decree awarding injunction, the defendant City of Philadelphia appeals. Af-ipal Government shall determine the numfirmed. Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, and ELKIN, JJ. ber of inspectors required to enforce the provisions of the law. The words "there shall be" as used in connection with the organiza For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes tion of a division of housing and sanitation | der section 2, and when they do the water comare equivalent to "there shall be established," missioners under the act of 1865 will be suand this necessarily implies that some au- done the act of 1865 is left in operation, and perseded and functus officio, but until that is thority must establish the division. It is not the commissioners under it retain their authorestablished automatically. ity." The second section provides for a chief of division, an assistant chief, and not less than 4 supervising inspectors, and not less than 100 other inspectors. The act does fix a minimum salary for the chief of division, but nothing is provided as to the salaries of other employés, the number of inspectors, and the power of appointment, except that the director, with the approval of city councils, shall have the power to add such additional clerks, stenographers, typewriters, and messengers as may be necessary to conduct the business of the division thus created. The only power conferred by the act upon the director in connection with fixing the number of employés in his department is that which relates to the statistician, clerks, stenographers, messengers, and even then he cannot act without the approval of city councils. The plain inference is that as to all other employés city councils must take the initiative by determining the number of inspectors to be employed and fixing the salaries to be paid. So far as this record discloses city councils have not acted, and we can see no escape from the conclusion that by reason of this failure to act there has been no organization of a division of housing and sanitation under the act of 1913. Under these circumstances, it is most pertinent to inquire, How and when does the act of 1913 supersede the old law? We have already indicated that the act of 1913 did not go into operation automatically, but that it required definite action upon the part of city councils to make it effective. It did contain a repealing clause, the effect of which must now be considered. If it repealed all former laws inconsistent with its provisions as of the date of its approval, and the new law for the reasons above stated is not in force, it would necessarily follow that the city is without any law regulating sanitary inspection at the present time. If such a result necessarily followed, it would be most unfortunate; but according to our view of the law it is not necessary to so hold. [5] It is well settled that, where the provisions of a revising statute are to take effect at a future period, or upon the happening of a certain contingency, or the doing of certain acts, and the statute contains a clause repealing former laws on the same subject, the repealing clause does not take effect until the provisions of the repealing act go into operation. Smith on Statutory Con., section 783; McArthur v. Franklin, 16 Ohio St. 193. Many other authorities might be cited to the same effect. This court recognized the principle in Com. v. Heller, 219 Pa. 65, 67 Atl. 925, wherein Chief Justice Mitchell said: The same may be said of the case at bar. The old law remains in force until it is superseded by the organization of the division of housing and sanitation under the act of 1913, and the repealing clause of this act does not take effect until the new law goes into operation. This means that the old law is still in force, and that the ordinance of December 31, 1913, making an appropriation for sanitary inspection, may be utilized in paying the salaries of employés who performed such services as were required to be performed under the old law. Nothing further need be said as to the legal questions in controversy between the parties here, but it is proper to suggest to all parties concerned that it is high time to get the matters adjusted without further delay so that worthy employés may receive their salaries promptly. Until an organization of the division under the new law has been effected and put in operation, the employés under the old law should continue to serve and receive their salaries under the appropriation made in the ordinance of December 31, 1913. The uncertainty as to the law under which their services are rendered should no longer exist. In an additional brief filed with leave of court, several constitutional questions have been raised, but we have concluded that these questions cannot properly be disposed of in the present proceeding. The objections insisted upon are not sufficient to have the act as a whole declared invalid; and, if it be deemed expedient to have these questions raised at a subsequent time, it may be done in a proper proceeding in which the precise questions are involved. Decree affirmed. Costs to be paid by the city. (245 Pa. 334) In re SPATZ'S ESTATE. Appeal of FENSTERMACHER. (Supreme Court of Pennsylvania. May 18, 1914.) TRUSTS (§ 169*) - TRUSTEES-NEGLECT AND MISMANAGEMENT-SURCHARGE. Where, on the audit of a deceased testamentary trustee's account, as stated by his administrator, to which account the substituted trustee excepted, it appeared that decedent held a trust fund of $20,000 for a minor and others, that proceedings instituted by the minor's guardian for decedent's removal as trustee has been discontinued by agreement on his filing a bond, reciting that the full $20,000 should be secured intact, and that the accountant charged himself with securities having a face value of $20,174.18, and where the accountant converted a portion of the securities into cash, and paid a portion of the $20,000 to the substituted trustee, who refused to accept the remaining securities "The authority of the councils is ample at in satisfaction of the balance, and where there any time to establish a water department un-I was no evidence of the value of many of the se*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes cash. curities, and it was shown that decedent had | demanded that the balance should be paid in mismanaged the estate and impaired its value, the court properly ordered the administrator to pay the balance in cash to the substituted trus tee. [Ed. Note.-For other cases, see Trusts, Cent. Dig. §§ 222-224; Dec. Dig. § 169.*] Appeal from Orphans' Court, Berks County. In the matter of the Estate of John H. Spatz, deceased. From a decree dismissing exceptions to the adjudication, Warren H. Fenstermacher, administrator of Isaac S. Spatz, deceased, who was a trustee of Emma S. Mohn under the will of John H. Spatz, deceased, appeals. Affirmed. See, also, 240 Pa. 303, 87 Atl. 572. Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, and ELKIN, JJ. Joseph R. Dickinson and W. Kerper Stevens, both of Reading, for appellant. Stephen M. Meredith, of Reading, for appellee. The auditing judge in his adjudication found that the deceased trustee had neglected and mismanaged the trust estate, and had impaired its value; that he kept no intelligent or accurate account; that there was no evidence of the value of a number of the securities set forth in the account; and that it in conclusion the auditing judge ordered the was impossible to say what they were worth; accountant to pay the balance as shown substituted trustee refused to accept the seabove, to the substituted trustee. When the curities, appellant might have disposed of claims, they were good, then no loss would them and paid over the proceeds. If as he have been incurred. If they were not, then the question whether the former trustee was chargeable for any loss resulting from the investment in the securities in question could have been raised and determined. As the acPOTTER, J. This is an appeal by the ad-countant did not, however, see fit to pursue ministrator of Isaac S. Spatz, deceased, who this obviously reasonable course, we do not was trustee of Emma S. Mohn, under the will of John H. Spatz, deceased, from the decree of the orphans' court of Berks county. The appeal is from the dismissal of exceptions to the adjudication of the account. By his will, John H. Spatz, who died in 1898, gave to his executor, Isaac S. Spatz, the sum of $20,000 to be held in trust and invested for the benefit of testator's daughter, Emma S. Mohn, during her life, with remainder to her children. In 1906 the Reading Trust Company, guardian of Luella F. Mohn, a daughter of Emma S. Mohn, presented a petition to the orphans' court, alleging that the trustee was wasting and mismanaging the trust estate, and that he was insolvent, and praying for his removal. As the result of an arrangement between the parties, the trustee filed for the protection of the trust estate a bond in the penal sum of $40,000 and the proceeding for his removal was discontinued. In the bond an agreement was recited upon the part of the trustee that the full amount of $20,000 of trust funds should be secured intact.. In 1911 Isaac S. Spatz died, and letters of administration on his estate were granted to Warren H. Fenstermacher, who filed the account of the decedent, as trustee under the will of John H. Spatz, deceased. The accountant charged himself with certain securities having a face value of $20,174.18. Exceptions were filed to the account by the Reading Trust Company, which had been appointed trustee to succeed Isaac S. Spatz, deceased, and while these exceptions were pending, the accountant converted a portion of the securities into cash, and paid over to the substituted trustee the sum of $10,728.27, leaving a balance due on the principal of the trust fund of $9,271.73. The substituted trustee refused to accept from the accountant the remaining securities in his hands, and see that he can fairly complain of being charged with them at their face value. As has already been stated, while Isaac S. Spatz was living, the guardian of the minor who was entitled to the remainder of the trust estate filed a petition, alleging mismanagement of the trust estate and insolvency of the trustee, and prayed for his dismissal. It was then that the trustee offered in court, to give a bond with security approved by the court "to secure to the cestui que trust, intact, the full amount of the trust fund of $20,000," and the due execution of the trust in accordance with the will and with law. The offer was accepted, the bond was given, and was approved by the court, and the proceeding for the discharge of the trustee was discontinued. The bond was given as an inducement for the withdrawal of the proceeding for the removal of the trustee. Full effect must therefore be given to the intention of the parties in giving and accepting the bond. That intention was to secure the payment of the full amount of the trust fund of $20,000. The sum of $10,728.27 has been paid, leaving a balance of $9,271.73, which as the auditing judge has found, is properly due. Under these circumstances it was not necessary for the court below to consider whether the securities were proper investments or not. That question might have arisen in the proceeding for the dismissal of the trustee, but he did not, at that time, see fit to justify the investments which he had made, and he settled the question of his liability in that respect by agreeing to give security for the payment of the full amount of the funds in his hands belonging to the trust estate. The court below, therefore, very properly dismissed the exception which was filed to the award of $9,271.73, which is the balance due to the estate. In this view of the case, many of the ques *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes Coun Harry Shapiro, of Philadelphia, for appel lant. John Hampton Barnes and William B. Linn, both of Philadelphia, for appellee. tions raised by the assignments of error be- name be stricken from the roll of attorneys, come unimportant, and it is not therefore he appeals. Appeal dismissed. necessary to consider them in detail. Argued before FELL, C. J., and BROWN, sel for appellant argue at considerable length ELKIN, STEWART, and MOSCHZISKER, that the securities in question are good. The JJ. testimony does not satisfy us that the margin of security as to a number of the properties is sufficient to justify a prudent trustee in accepting the securities as a desirable investment. At any rate, the quality of the securities can be readily tested. If the amount invested in them can be realized, either by collection, or sale of the securities, the result will be satisfactory to all concerned. If it cannot be realized, the responsibility is not properly to be placed upon the new trustee. It is a matter to be settled in connection with the accounts of the deceased trustee. The bond which he gave was not conditioned for the production of undesirable securities, but it was given to secure the payment of the trust fund intact. This, of course, means payment in cash. Two of the assignments of error relate to the refusal of the court below to allow the accountant credit for the cost of filing the account, and for a reasonable counsel fee for services rendered in preparing the account, and at the audit. We do not see why such an allowance should not be made at the proper time and place. But this account, for some reason deals only with the principal sum of the trust estate. No accounting for the income is here shown. It may be that the court below intended that an allowance for expenses should be made when the accounting for the income is filed. That is a matter which will no doubt be properly adjusted by the court below. The assignments of error are overruled. This appeal is dismissed at the cost of appellant, and the decree of the orphans' court is affirmed. (245 Pa. 314) In re GOTTESFELD. (Supreme Court of Pennsylvania. May 11, 1914.) 1. JUDGMENT (§ 470*)-COLLATERAL ATTACK. A judgment of a court having jurisdiction cannot be reviewed collaterally in another court in a proceeding of any nature. [Ed. Note. For other cases, see Judgment, Cent. Dig. § 907; Dec. Dig. § 470.*] 2. JUDGMENT (§ 648*)-COLLATERAL ATTACK -DISBARMENT PROCEEDINGS. STEWART, J. [1] The appellant was a regularly admitted practitioner of law in the several courts of Philadelphia county, when on the 29th of September, 1911, he was indicted, with another, in the Circuit Court of the United States, charged with conspiring to conceal assets from a trustee in bankruptcy. To this indictment he pleaded not guilty, and after trial was duly convicted and sentenced to a term in the penitentiary. While serving the term of his imprisonment the Law Association of Philadelphia presented its petition in court of common pleas No. 1, setting forth therein the above facts, accompanied with a copy of the indictment and record of the conviction, asking that a rule be granted requiring him, Samuel J. Gottesfeld, to show cause why he should not be disbarred and his name be stricken from the roll of attorneys of that court. having issued the appellant filed an answer in which he admitted the fact of his conviction in the manner set forth in the petition, but denied his guilt, averring circumstances which led to his conviction which, in his view, imputed no actual guilt on his part. Later he filed a petition alleging that because of his confinement in the penitentiary he was prevented from properly defending himself, asking that a rule issue, directed to the Law Association, to show cause why a continuance of the proceeding should not be allowed and he afforded an opportunity to be heard. September 29, 1913, the court dismissed the rule for continuance and made absolute the rule to show cause why appellant should not be disbarred. The present appeal is from these several decrees. The rule [2] The burden of appellant's complaint is that he was denied an opportunity to impeach, not the record of his conviction, for that was admitted, but the verdict that condemned him. In other words, he asserts that he was not guilty of the offense for which he was tried and convicted, and insists that because the court gave him no opportunity to establish his freedom from guilt he was condemned unheard. The case calls for but little comment. It is fundamental that a particular sentence imposed, or judgment rendered, by a court having jurisdiction cannot be reviewed collaterally in any other court in any kind of a proceeding. The nature of the judgment has no effect on the operation of the rule. A decree with regard to the perPetition for disbarment of Samuel J. Got-sonal status of the individual is equally contesfeld. From a decree ordering that his clusive with a decision upon right of prop Where an attorney at law was convicted in a federal court of conspiring to conceal assets from a trustee in bankruptcy, and was sentenced, such judgment was conclusive, and the fact that he was guilty of the crime of which he was convicted could not be disputed by the attorney in subsequent disbarment proceedings, [Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 1309, 1310; Dec. Dig. § 648.*] Appeal from Court of Common Pleas, Philadelphia County. For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes erty. Such decree, or judgment, is in the na- [ the harshness of the rule applicable to warture of judgment in rem. ranties. "Thus judgment of outlawry not merely declares the party an outlaw, but renders him so, and is therefore a judgment in rem, and resembles the act of the Ecclesiastical Court depriving a man of his preferment," etc. Note to Duchess of Kingston Case, 2 Smith's Leading Cases, 751. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1677-1685; Dec. Dig. § 655.*] 2. INSURANCE (§ 90*) - POWER OF AGENT — PROVISION IN APPLICATION. agent has negligently or fraudulently written untrue answers in the application different from the answers given by the applicant. [Ed. Note. For other cases, see Insurance, Dec. Dig. § 90.*] 3. INSURANCE (§ 291*) - APPLICATION - VA LIDITY OF POLICY. While an applicant for life insurance must of his health as known to him and believed to exercise good faith in disclosing the condition be true, his failure to disclose the existence of a latent disease, concerning which from the nature of things he could have no exact information, will not invalidate the policy. [Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 681-690, 694-696; Dec. Dig. § 291.*] 4. INSURANCE (§ 668*)-APPLICATION-MISREPRESENTATIONS QUESTION FOR JURY. A covenant, in an application for life insurance, that the agent cannot bind the company by "making or receiving any representations or information," will not protect the comThe doctrine of res judicata applies wheth-pany from liability on the policy where the er the judgment be in civil or criminal proceeding, and, once rendered, the party convicted may not thereafter dispute the truth thereby established. The appellant had no right to a further hearing on the question of his guilt. His guilt was a fact established by an unchallenged record of a court of competent jurisdiction, and was no longer open to dispute. A decree of disbarment followed necessarily. It was of no consequence that in committing the offense of which he was convicted appellant was exercising no function of his professional office. The offense was in its nature crimen falsi, involving employment of falsehood to injuriously affect the administration of public justice, and was therefore an infamous offense. The disbarment that followed was not punitive, but protective simply. Courts can command public confidence only as those who serve therein are themselves observant of the law which it is the duty of the courts to enforce. In his high office the attorney at law is a minister of justice; he ceases so to be when, whether in the line of his professional work or outside of it, he prostitutes his knowledge of the law and the skill he has acquired therein to thwart the law by deceit and falsehood in its one and only purpose, viz., to ac-ent when the answers were made, their testimocomplish distributive justice among Such was the offense of which the appellant was found guilty; the sentence and judgment established his disqualification for the high and responsible office he held, and the record of his conviction, once brought to the attention of the court, was ample warrant in itself for the decree of disbarment that followed. men. The appeal is dismissed at costs of appellant. (244 Pa. 582) Whether an applicant who states to the best of her knowledge and belief that she is in good health, when in fact she is suffering from a latent disease, acts in good faith in making such statement is for the jury in an action on the policy. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1556, 1732-1770; Dec. Dig. § 668.*] 5. INSURANCE (§ 655*)-ACTION ON POLICYEVIDENCE. the defense was that false answers were made Where, in an action on an insurance policy, in the application, and it appeared that the husband and daughter of the insured were pres ny that the answers written down in the application were not the answers made by insured to the agent who wrote them down, and also the report of a medical examiner corroborating such testimony, which report was in the hands of the insurance company, were admissible in evidence. [Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 1677-1685; Dec. Dig. § 655.*] Appeal from Court of Common Pleas, Lackawanna County. Assumpsit on a life insurance policy by Jacob Suravitz against the Prudential Insurance Company of America. From judgment for defendant, plaintiff appeals. Re SURAVITZ v. PRUDENTIAL INS. CO. OF versed. AMERICA. Argued before FELL, C. J., and BROWN, (Supreme Court of Pennsylvania. March 30, MESTREZAT, ELKIN, and STEWART, JJ. 1914.) 1. INSURANCE (§ 655*)-APPLICATION-WAR RANTIES. In an action on a life insurance policy issued on an application stipulating that the answers therein are to be deemed representations and not warranties, the inquiry may extend, not only to the materiality of the answers alleged by defendant to be false, but also to the accuracy and good faith of defendant's agent in writing down the answers, and to whether the application was signed in good faith without having been read, and without knowledge that the answers were incorrectly written down; the applicant in such case being relieved from C. P. O'Malley and Peter L. Walsh, both of Scranton, for appellant. A. A. Vosburg, of Scranton, for appellee. ELKIN, J. This is an action on an insurance policy which by its terms made all statements of the insured representations and not warranties. The defense is that the answers contained in the application as to the good health of the applicant for insurance, and whether she ever had any serious illness or whether she ever had any serious illness or disease, were untrue in fact when made, and *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |
