cannot be contracted for and paid by the school board out of the money of the taxpayer of the particular school district. It is clear, however, the board cannot legally do so without first complying with the requirement of the third section of the Act of 1899. This the plaintiff makes no claim the school board did. kind, even if he had shown a contract with and townships during the prevalence of conthe board, such a contract, in our view of tagious diseases and to make the expendthe law, as it now exists would be ultra vires itures necessary to control the spread of such on the part of the school board, unless it disease under the supervision of the court as were shown the school board first followed a condition precedent to the employment the requirements of the Act of April 11, even of a sanitary agent. We do not decide 1899, which act is cited by plaintiff as con- that a practicing physician who has rendered fering upon school boards the power top service as a sanitary agent, but services employ a physician in case of contagious as a physician and medical attendant alone, diseases, such as smallpox, shown by the evidence to have been the disease with which the patients were afflicted whom the plaintiff attended in this case. But under act cited, if its provisions could be extended even by implication to the employment by a school board of a physician, by section three, empowering them to employ a sanitary agent, it is provided that: 'Before appointing any sanitary agent to aid in enforcing the rules and regulations of the board as aforesaid, the board shall make application to the court of common pleas of the county in which the township is located, or to a law judge thereof, setting forth particularly the reasons which, in their judgment, make the appointment of such agent necessary, setting forth also the compensation which the board deems proper to pay for the services of such sanitary agent, and if the said court or judge thereof, shall approve the reasons given by the said board for the appointment of such sanitary agent, and shall also approve the compensation deemed proper therefor, said board shall have the authority to appoint such sanitary agent for such term as may be designated by the said court, or judge thereof, the said compensation to be paid out of the school fund of the respective townships." There is no evidence in this case of a contract nor is it claimed, that if there was a contract, or if there was not, or what is claimed would amount to a ratification of an informal contract with the plaintiff in the first instance, that at any time the provisions of this Act of Assembly have been complied with, particularly the section we have just quoted. We have no doubt but that this third section of the act of '99 was intended as a check on school boards by the legislative mind recognizing the necessity for sanitary regulations when they authorize school boards to act as boards of health in towns "And the motion, with these remarks, for compulsory non-suit, is entertained and compulsory non-suit entered. The doctor in this case, the plaintiff, has rendered a very humane service in treating and restoring to health these three patients afflicted with an infectious and contagious disease at great personal sacrifice and pecuniary loss, and it would be the pleasure of the court, and no doubt of the jury, to see him compensated, but there must be some authority of law before the court can lend its powers to the collection of an account, however meritorious, that has not as a basis a contractual relation between the parties to the suit brought, particularly when it is shown that even if there was a contract, it was clearly outside of even any implied powers that may be vested in the school board of a school district. "Gentlemen of the jury, you have heard the remarks of the court, and its action relieves you from any further consideration of this case. The case has terminated upon a question of law raised, in favor of the defendant." For plaintiff, L. R. Boyd. For defendants, A. M. Linn. THAT a party to whom money due another is paid is not in possession of the evidences of the indebtedness is held, in Harrison Nat. Bank v. Austin (Neb.) 59 L. R. A. 294, not to be conclusive on the question of his authority to make the collection. Executive Department, HARRISBURG. Pittsburgh Rapid Transit Street Railway Company's et al., Charter-Applications. Application for charter-Street railways-Right to use streets and private property-Power of secretary of Commonwealth. In an application for a charter for a street railway it is not within the province of the secretary of the Commonwealth to pass upon such questions as whether the company can occupy streets already occupied by a street railway or lay its tracks partly on private property or cross other railways diagonally or the construction upon highways imposes an additional servitude upon the property. The application being in proper form the charter should be granted and the questions involved left to be determined by the courts. Opinion by CARSON, Attorney-General. Filed April 4, 1903. Request of the secretary of the commonwealth for opinion. I have considered the briefs filed in support of the oral arguments made before the deputy secretary of the commonwealth and myself by counsel for the applicants and protestants in the above matter. cordance with your request I state the following conclusions: In ac An examination of the applications, as amended, discloses the fact that they are in conformity with the Act of May 14, 1889, and its supplements; that the routes contained therein are physically continuous; and that the routes to be pursued are, with but slight variations, laid out upon public streets. The objections urged are as follows: That the construction of the proposed railways would involve the entire appropriation and exclusive use of certain streets and alleys named in the applications; that the construction and operation of street railways upon alleys would amount to additional servitudes because the streets and alleys, upon which tracks are proposed to be laid, are in some instances, quite narrow; that the proposed route in part passes over private property, and in part is laid upon private rights of way; that the proposed crossings involve diagonal crossings for distances varying between one hundred and fifteen and three hundred feet along and across streets already laid with tracks, or upon which an exclusive right to lay tracks. is vested in another company in order to connect two streets, both opening on the streets so crossed diagonally, but not at directly opposite points, and this, too, whether the streets opposite to each other, or not directly opposite to each other, bear the same or different names; and that, therefore, the proposed routes are not legally continuous. To these objections it is replied that the routes contained in the several charter applications are legally as well as physically continuous, and be constructed so as to form a complete circuit, as required by the Act of May 14, 1889, and the amendments thereto. The contention involves a consideration of several important questions: (a) Whether a company, under § 1 of the amended street railway act, can occupy streets, highways, bridges or private property, in whole or in part occupied by tracks previously laid and belonging to other companies. (b) Whether a proposed street railway can locate its rails for short distances upon private property. (c) Whether it can cross other street railways diagonally because of the alleged necessity for establishing a crossing in this manner in order to complete continuous circuit. (d) Whether the effect of the decision of the Supreme Court in the case of Philadelphia, Morton & Swarthmore St. Ry. Co.'s Petition, 203 Pa. 354, is to forbid such a diagonal crossing. (e) Whether the facts that the streets to be occupied are narrow and abutting property-holders may be inconvenienced by the operation of a street railway constitute a valid objection. (f) Whether the construction of a street railway upon a highway in a city imposes an additional servitude on the adjacent property, for which compensation could be claimed. It is plain that these questions are purely judicial. In my judgment, they are beyond the scope and powers of your office, which, it must be borne in mind, is a part of the executive and not of the judicial department. To determine them it would be necessary to resolve disputed questions of fact and to compare, interpret and apply several acts of assembly. To find facts and to apply the law are of the very essence of judicial duty. Such a duty is not cast upon you. You ought not to be called upon to consider such questions because they are not within your jurisdiction, and because, lacking all the machinery and powers of a court, you have neither the right nor the power to decide them. These views are in harmony with rulings of the department, made in the following cases; Monongahela Water Co. v. South Side Water Co., 15 Pa. C. C. R. 603; Union Water Co., 12 Pa. C. C. R. 61; The Granite Water Co., same vol., 63; New Castle Co. v. Water Co., 18 Pa. C. C. R. 498; the Relief Bridge Co., 30 Weekly Notes, 200. In all of these the principle is laid down that where there is a dispute as to facts, and claims are presented which are in conflict with each other, the parties must be remitted to the courts for a final and conclusive determination of the controversy, and that, while many facts alleged on the one side and denied on the other, would doubtless be material in a suit at law, yet they are not to be decided in the state department, which is confined to an examination as to whether the applications are in form, whether the purposes of the proposed corporations are legal, whether ten per centum of the authorized capital has been paid in in cash, and whether or not, on the face of the records and the law requiring the purpose to be clearly stated, a charter should issue. Where applications are in due form and the purpose of the charter asked for is within the terms of the law, and the amount of capital subscribed seems prima facie sufficient for the purpose, it is asking too much of the state department to refuse a charter because there is an apprehension that the applicants contemplate doing something in violation of law or may perform acts ultra vires or both; Sowego Water & Power Co., Biennial Report of the Secretary of the Commonwealth for 1896, page 22. If a doubt be raised as to the soundness of the positions contended for, opportunity for its final and judicial determination should be afforded, particularly where the precise questions raised have never been adjudicated. The right to secure such a hearing and adjudication would be entirely defeated should the state depart ment refuse the applications for the charters now asked for; Pittsburgh Illuminating Co., Biennial Report of the Secretary of the Commonwealth for 1896, page 26. The fundamental principle underlying the whole matter is best stated in the language of Judge LUDLOW, of the Court of Common Pleas, of Philadelphia county, in the case of Mitcheson v. Harlan, 3 Phila. Reports, 394 where that learned judge said: "We can readily conceive of a question of fact being presented to the consideration of the governor, connected with the issuing of letters patent, so embarrassed by conflicting testimony as to render the satisfactory solution of it a matter of very great doubt and uncertainty; in such a case, for the executive to deny the letters patent, would be to assume a power which would destroy a right without the intervention of a court." In my judgment, the charters applied for should be allowed. The American Bar Association. The Twenty-sixth Annual Meeting of the Association will be held at Hot Springs, Virginia, on Wednesday, Thursday and Friday, August 26th, 27th and 28th, 1903. The sessions of the Association will be at 10.30 o'clock A. M. and 8 o'clock P. M. on Wednesday and Thursday, and at 10.30 o'clock A. M. on Friday, Eastern standard time. The sessions of the Section of Legal Education will be held on Thursday and Friday afternoons at 3 o'clock. The session of the Section of Patent, Trade Mark and Copyright Law will be held on Thursday and Friday afternoons at 3 o'clock. On Wednesday aftermoon at 3 o'clock there will be a meeting of the Association of American Law Schools. All the meetings will be held at the Homestead Hotel. Revealed by a Flash of Lightning. to come from an overturned hemlock tree. As he stood there, a vivid flash of lightning lit up the forest and directly in front of him, uncovered by the uptorn roots of the overturned tree, McCarthy beheld the decomposed remains of a human body. It was just for an instant that McCarthy was able to see it, but that instant was enough to frighten him so badly that he ran blindly through the woods, coming out into a clear The truth of the familiar saying, that "murder will out," is well illustrated by a case that was tried in Sullivan county, Pennsylvania, nearly fifty years ago, and which is absolutely unique in the annals of crime. At the time referred to, there lived in Elkland township, Sullivan county, a German cobbler and his young and pretty wife. The husband's name was John Vitengrubering near his home. and he was of a rather shiftless nature and strongly addicted to drink. They had one child, a boy about three years of age. The wife was about fifteen years younger than her husband, and they frequently quarreled. Some time after coming to Sullivan county they were visited by a young carpenter named John Ramm. Having come from the same section in Germany in which the Vitengrubers had lived, Ramm was permitted to make his home with them. But soon after his arrival the quarrels between husband and wife became more frequent and bitter, and strange stories began to be whispered about concerning Ramm, the boarder. One Sunday Vitengruber suddenly disappeared. His wife and Ramm said he had gone over into an adjoining county to work at his trade. This story was believed, until about a month afterward, when a neighbor noticed that Ramm was not only wearing Vitengruber's clothing, but that he also carried his watch. This led to the arrest of Ramm and Mrs. Vitengruber, but there was nothing to show that their story was untrue, and they were discharged. For some time afterward the pair continued to live in the log hut in the woods, and then something startling occurred. It was four months after the disappearance of Vitengruber that Joseph McCarthy was traveling, one night, through the woods, near the hut where Mrs. Vitengruber lived with her paramour. There was a terrible storm in progress, and trees and limbs were being blown in every direction. A zigzag path led through the woods, directly past the little log house, and it was while wandering about in search of this path that McCarthy saw something that made his hair raise. The rain was falling in torrents. Suddenly McCarthy caught a sickening ordor that seemed Next morning, in company with a neighbor, McCarthy retured to the fallen tree, but the body was gone. In a shallow furrow, however the imprint remained, and a close inspection revealed startling evidences of crime. The men found the nails of a human being, together with a bunch of hair and caps of hard skin that had evidently covered human heels. The hair was exactly the same color as the hair of Vitengruber. An effort had been made by somebody, that very morning, to chop off the trunk of the fallen tree, so that the upturned roots would fall back over the open grave, but this effort had been unsuccessful. The men examined the chips and, from their peculiar shape, determined that they had been made by Ramm, who was an experienced axman. The arrest of Ramm and Mrs. Vitengruber followed and their trial came up at the next term of court before Judge DAVID WILMOT, the author in Congress of the famous "WILMOT proviso." But the Commonwealth was unable to prove the corpus delicti, for even if there had been a human body under the tree, there was no proof that it was Vitengruber's. The attorneys for the Commonwealth were at their wits' ends, and it looked as though the defendants would be acquitted, when a new and sensational turn in the case occurred. The last witness called by the Commonwealth was the four-year-old son of Mrs. Vitengruber. Judge WILMOT was at first inclined to rule out the witness, on account of his extreme youth, but finally decided to hear his testimony. During the interval between the time of Mrs. Vitengruber's arrest and her trial at court, the boy had been in charge of a minister of the gospel, and his appearance in court was the first time the mother had seen her child for two months. THE right of a riparian owner to use a She was much agitated when he was placed on the stand, and soon began to sob convul- | navigable stream for floating logs is held, in sively. The boy was called to testify as to several articles of wearing apparel. One was a coat, which the lad said belonged to his father. Then the lawyer held up a pretty red cap and immediately the child cried: "That's mine, that's mine! My mother made it for me," and ran, with extended hands to seize the cap. But before he had crossed the space between the witness stand and the attorney's table, Mrs. Vitengruber had rushed towards him and caught him in her arms. She kissed him over and over, and then suddenly turning, and pointing at Ramm, she shrieked: "He done it! He killed my husband and threw him in the lake! Oh, my God, help me! The priest, the priest!" With these tragic words the woman fell to the floor, her boy still clutched in her arms. She soon became unconsious and was carried from the court-room. So intense was the excitement which followed that Judge WILMOT adjourned the court until Monday morning, it then being late Saturday afternoon. That night Mrs. Vitengruber made a full confession, acknowledging her relations with Ramm, and her assistance in burying her husband's remains under a tree, after he had been killed by Ramm. Subsequently, after the storm had uncovered the body, they rolled the corpse into a bed-tick and took it out into the lake and threw it overboard. Before court convened on Monday morning, Ramm had also confessed, telling, how, during a quarrel about Mrs. Vitengruber, he had struck her husband on the head with an axe and killed him. Ramm was hanged in the jail yard at Laporte, September 14, 1856. Mrs. Vitengruber escaped the fate of her paramour, because she became insane. Her dramatic confession in the court room caused her collapse.-The Green Bag. THE publication of an unjust and malicious criticism of a manufactured article is held, in Marlin Firearms Co. v. Shields (N. Y. 59 L. R. A. 310, not to be restrainable by injunction, although the manufacturers has no remedy at law because of inability to prove special damages. Hutton v. Webb (N. C.) 59 L. R. A. 33, not to be derived from the State; and it is held that he cannot be deprived of such right without just compensation. TRACKMEN charged with the inspection and repair of the tracks and roadbed are held, in Smith v. Erie R. Co. (N. J. Err. & App.) 59 L. R. A. 302, not to be fellow servants of a trainman, so as to absolve the master from liability for injury to the latter by the negligence of the former. AN injunction to restrain a riparian owner from cutting trees along the stream, on the ground that it facilitates evaporation to the injury of the lower proprietor, is held, in Fisher v. Feige (Cal.) 59 L. R. A. 333, not to be allowable. The question of liability for facilitating evaporation of stream is discussed in a note to this case. ONE who attempts to take fish from a private lake contrary to law, knowing that it is guarded by a watchman with a gun which is sometimes discharged, is held, in Magar v. Hammond (N. Y.) 59 L. R. A. 315, to have no right to recover for a wound unintentionally inflicted upon him by a shot from the gun, although it is negligently fired. A LAKE, although 20 miles long and 7 wide, with water in some places 18 feet deep, is held, in Webster v. Harris (Tenn.) 59 L. R. A. 324, not to be navigable in the technical sense, so as to place the title to its bed in the state, where it is covered and filled with trees, stumps and snags, through which there are no proper channels to make navigation available. THE negligent jolting of a train by which a passenger is hurled through the rear door and left in an insensible condition upon the track is held, in Southern R. Co. v. Webb (Ga.) 59 L. R. A. 109, to be the proximate cause of his death, where he is subsequently run over and killed by an engine belonging to another company which the first company knew had a right to use the track and was likely to use it at any time. |