Diedrich's Petition.

in a loose way about them to a fellow workman who had no authority to represent the supposed owner of the rooms. Moreover, the wife was then and now is a helpless invalid, suffering from rheumatism, and needed comforts and assistance which respondent did not either wish or propose to furnish.

It is clearly evident that respondent, during the year or more of his absence from his wife, failed to contribute to her support, unless in so far as he may have by an order of the County Court based on non-support charges been compelled to do so.

The fact that the wife proposes to sell the Butler County farm if she secures a decree, Is no reason for refusing it. She must live; provide herself with a nurse or other proper attendant to care for her in her serious physical condition; she provided the money to purchase that farm from her own estate, and has expended a large part of the sum of $12,000 (aside from the $3,000 paid for the farm) in helping to maintain herself and her family. The husband, when he was regularly employed, did contribute all or nearly all of his wages to the support of his wife and family, but this money was gone before the farm was bought and did not go towards its purchase. Of recent years respondent has not been active in seeking or obtaining regular employment and his earnings have not been of much aid to the family.

The estrangement of the parties is to be regretted as is also the reprehensible treatment of the respondent at the hands of his son-but, nevertheless, as we have found that he actually and deliberately and unjustifiably left his and his wife's home, as indicated, and neglected to provide for her support, we have also determined that the wife is entitled to a decree granting the rights of a feme sole trader as defined by the Act of 1915.

Upon presentation of a proper form of decree, we shall make the final order in accordance with this petition.

Dixon v Dixon.

Divorce Resident of State-Temporary Absence-Exceptions to Master's Report.

Where the parties in a divorce proceeding had acquired a residence and matrimonial domicile within the State, a temporary absence during the year preceding the filing of the libel would not be a bar to granting a decree.

In Divorce. No. 1381 April Term, 1919. C. P. Allegheny County.

Owen S. Cecil, for libellant.

Before SHAFER, SWEARINGEN and CARPENTER, JJ.

SWEARINGEN, J., December 9, 1919.-This cause comes before the Court upon exceptions, ex parte libellant, to the report of the Master, he having found that the libellant had not resided in Pennsylvania one whole year immediately previous to the filing of the libel.

The parties were married at Lonaconing, Maryland, February 23, 1916. That was libellant's home town. The respondent was then living in Pittsburgh, Pennsylvania. The day after the marriage, he came to Pittsburgh,

Dixon v Dixon.

and a week afterward the libellant followed. They established their home on Rosemore Avenue, Brookline. They resided at several places, but finally went to 1412 Shelton Avenue, Brookline, where the libellant still lives. The libel was filed March 1, 1919, and the respondent was personally served with the subpoena on March 6, 1919. He never appeared or filed an answer, and he was not present either in person or by counsel at the hearings before the Master.

The grounds for divorce are that the respondent treated his wife cruelly and barbarously and endangered her life, and that he offered such indignities to her person as to render her condition intolerable and her life burdensome, and thereby she was forced to withdraw from his house and family. They have not lived together since February 16, 1919, when the libellant left the respondent. The testimony clearly establishes both grounds of divorce laid in the libel.

The Master, however, found that the libellant "did not reside continuously and was not domiciled in the County of Allegheny and State of Pennsylvania for one year prior to March 1, 1919, the date of filing the libel." He therefore concluded as matter of law that the Court had no jurisdiction over either the libellant or the subject matter, and he recommended the dismissal of the libel.

We do not agree with the finding, conclusion and recommendation of the Master. The testimony is that, in August, 1918, the respondent left the libellant at their home in Brookline, saying he was going to work in the shipyards at Philadelphia, and that "I wouldn't see him; he wasn't coming back and I could do what I liked with the things that were there." She didn't hear from him for almost two months, when he wrote her from Washington, D. C., and wanted her to come there. She wrote him that she could not go then, because his business affairs had not yet been fixed. He then telephoned her and she made the same reply. The next morning about five o'cock, she found him in her room at home. She again told him she could not go at that time. He told her that, if she didn't go, he would shoot himself, and pulled out a revolver and loaded it. She testified, "I was afraid he might turn on me, and so I told him I would go." They went that evening. She took her baby with her, but none of their household goods were taken. She found that he was a motorman on the street cars and had but one room for them to occupy; they had to take their meals outside, and the baby was sick "from the day we went there." On that account she remained about two weeks. Then she returned to Pittsburgh and he came with her. He had made no provision in Washington to keep house. When they reached Pittsburgh, they went to their house in Brookline, where they remained until she left him the following February, on account of his continued cruelty and indignities.

The respondent's home was in Pittsburgh at the time of the marriage. The libellant at once came here and acquired her matrimonial domicile likewise. We cannot perceive how her residence was broken by the two weeks she was with her husband in Washington, D. C. He had provided no home for his family there, and he did not attempt to obtain one. Her stay in Washington was merely temporary. Clearly, his purpose was not to change his residence and to make that city his home, because, whenever his wife wanted to "go back home" on account of their child's health, he immediately left his employment, if any-he had no home to leave-and accompanied her. It is plain that neither of these parties regarded their residence in Pittsburgh as changed. Therefore, the exceptions to the Master's finding and conclusions in this behalf must be sustained.

Public Schools

In re Appointment of School Director.

-Directors-Vacancy on Board-Failure to Attend Meetings

-Power of the Court-School Code of 1911.

The power of the Court to fill a vacancy on a Fourth Class School Board under Section 214 of the School Code of May 18, 1911, P. L. 309 comes into play only when the School Board has for thirty days made default in the performance of its duty, primarily resting upon it, to fill an existing vacancy and if there has been no such default because a vacancy has not legally existed, or had not been known to the board, for more than thirty days prior to the presentation of a petition, praying for the filling of a vacancy, the petition must be denied. A School Board cannot be declared in default for not filling a vacancy until thirty days after it, as a board, has had certain knowledge of something said or done by a director unequivocally manifesting the intention presently to resign, and a vacancy does not occur within the meaning of the School Code of 1911 before such knowledge comes to the board, so that there was no vacancy where a director had expressed to another director an intention to resign and this had never been reported to the board. His failure to attend the meetings of the board would not create a vacancy until the board had so declared.

The Court refused to fill a vacancy on a Fourth Class School Board where thirty days had not elapsed since the time a vacancy was known to exist, although the member had been in default by failure to attend the board meetingg for a longer period. The board should be given an opportunity to fill the va cancy before action by the Court.

Petition to Fill Vacancy. No. 39 February Term, 1920. C. P. Washing ton County.

BROWNSON, J., November 28, 1919.-In the year 1917 Charles Butler was elected a school director for the Township of East Bethlehem. He accepted and entered upon this office, and for almost a year attended and took part in the meetings of the school board. A petition has been presented to the court by a number of resident tax payers of the township, averring that Mr. Butler presented his resignation as a school director to the board of school directors of the township "several months ago," and that through neglect the remaining members of the board failed to fill the vacancy caused by such resignation within thirty days after its presentation, and praying the court to appoint J. W. Carroll to fill said vacancy. This petition is based upon Sec. 214 of the School Code of May 18, 1911, P. L. 309, which provides that upon the occurrence of a vacancy in any board in (inter alia) a school district of the fourth class, the remaining members shall by a majority vote fill such vacancy "within thirty (30) days thereafter," and "if by reason of a tie vote or otherwise, such vacancy shall not have been filed by the board of school directors as is herein provided, within thirty (30) days after such vacancy shall have occurred, the court of common pleas of the proper county * shall fill such vacancy," etc. To this petition an answer has been filed, on behalf of the board of school directors of the township, denying that Charles Butler had resigned his office and that the remaining members neglected to fill a vacancy therein, ant denying the existence of any such vacancy. A hearing has been had and testimony has been heard upon the issue of fact raised by the petition and answer. From the weight of the testimony we find the material facts of the case to be as follows:

The last meeting of the board of school directors that was attended by Charles Butler was held in the month of October, 1918. In the latter part of November, or early in the month of December, 1918 (most probably the latter), Mr. Butler, in a conversation which he had with John D. Griffith. also a member, and the secretary, of the board, in the store of the latter. stated to Mr. Griffith his desire, purpose and intention to retire from the board, giving as a reason therefor that domestic matters made it inconvenient for him to attend meetings. Mr. Griffith then endeavored to dis

In re Appointment of School Director.

suade him from resigning, requesting him, even though he might not be able for the time to attend meetings, to continue as a member of the board and from time to time give to the remaining members the benefit of his counsel and advice when applied to therefor. Subsequent conversations to the same general effect occurred between Griffith and Butler. The latter never ap peared before the board and presented to it his resignation as school di rector. He did not at the time of any of his conversations with the secretary, Griffith, or at any other time, hand to Griffith, for transmission to the board, a written resignation, nor did he even request the secretary to present to the board on his behalf an oral resignation, nor send to it a resignation by any one else. But from the time of the conversation with Griffith in the store, mentioned above, he regarded himself as having ceased by resignation to be a member. He never attended another meeting, and he stated to two or three of the citizens of the township that he had resigned and was no longer a school director. Griffith and other members of the board, or at least a majority of them, regarded him as still a mem ber, and still hoped to be able to get him to resume his attendance at meetings. At various times between December 1918, and the summer of 1919, Griffith consulted and advised with Butler about school affairs and business to be dealt with by the board, reporting at meetings of the board the views expressed by the latter. Butler regarded himself as giving advice on these matters simply as a citizen and taxpayer, while Griffith understood him to be doing so in the character of a school director.

The question we have to determine is whether upon the facts that have been shown, there existed, as a matter of law, a vacancy caused by resig nation, giving rise to a duty on the part of the remaining members of the board to appoint some one in the place of Mr. Butler. The power given to the court by section 214 of the School Code comes into play only when the school board has for thirty days made default in the performance of the duty, resting primarily upon it, to fill an existing vacancy, and if there has been no such default, because a vacancy had not legally existed, or had not been known to the board, for more than thirty days prior to the presentation of this petition, the prayer of the petition must be denied!

One of the modes by which a vacancy may be created is, both at common law and under the statute, "by resignation." The statute contains no regulation as to when a resignation will have the effect and operation of creating a vacancy. As to the common law rule on the subject the cases in other jurisdictions seem to be in irreconcilable conflict, some holding that an acceptance of the resignation is essential, and that until acceptance takes place, or if it be refused, no vacancy arises; while others hold that acceptance is not necessary, that the officer has a right to resign at any time without consent, and that a vacancy is created as soon as a resignation is given or sent to the proper authority: See cases cited in Bouvier's Law Dict. (Rawle's 3rd revision), 2407, 2408; 29 Cyc., 1403, 1404; Dillon on Munic. Corp. (5th Ed.) sec. 416 et seq.; notes in 23 L. R. A. 681, 12 id. (N. S.) 1910 and 16 id. (N. S.) 1058. The former doctrine seems to be recognized in Pennsylvania: Com. v Krapf, 249 Pa., 81, 84. However, even if we assume that an acceptance is required to cause the resignatior to have the technical effect of creating a vacancy, it may still be a question whether, if the board. after receiving the resignation of a member, and his ceasing to meet with it, should withhold all action thereon for a long time with the purpose of enabling the remaining four members to exercise all its powers, it would not be in default within the spirit and true meaning of section 214 of the act. We shall therefore consider whether there has been such a resignation in this case as to impose upon the other members the duty of taking some action

In re Appointment of School Director.

An intention to resign is ineffective until manifested in a proper way: State v Pollner, 18 Ohio Cir. Ct. R., 304; State v Ladeen, 104 Minn., 252, 16 L. R. A. (N. S.) 1058. This proper way is (in the absence of a statutory provision to the contrary) to tender it to the officer or body having authority to appoint a successor: Edwards v United States, 103 U. S., 471; Thompson v United States, 103 U. S., 480; Fryer v Norton, 67 N. J. L., 537. The resignation of a school director, then, should be given or sent to the board of which he is a member. As the statute does not prescribe any particular form, it may, it seems, be given by parol: cases cited in Bouvier at page 2407. If, therefore, Mr. Butler, when he stated to Mr. Griffith his intention to resign, had requested the latter to convey to the board his oral resignation, and Griffith had done so, this could, we believe, be deemed a sufficient presentation of a resignation to the board. But no such request is shown to have been made, and Griffith never did report an oral resignation to the board. Down until the time when this petition was presented, this board never had before it anything unequivocally manifesting and giving it official knowledge of the fact that Mr. Butler considered himself as resigning from it. Even if we assume that, in circumstances such as those of the present case, the correct doctrine is that a formal acceptance of a resignation is unnecessary, we hold that the board cannot be declared in default for not filling a vacancy, arising from a resignation by Mr. Butler, until thirty days after it, as a board, has had certain knowledge of something said or done by him unequivocally manifesting the intention presently to resign, and that a vacancy does not "occur" within the meaning of the statute, before such knowledge comes to the board: Hunlock v Jones, 9 Kulp 278, 279; Ashley Borough School Director, 41 Co. Ct., 4. The most that is shown by the weight of the evidence, upon the question of an actual resignation, is that Mr. Butler thought he was expressing to Mr. Griffith, as a representative of the board, an intention presently to resign, but what he said was not so unequivocal as to cause Mr. Griffith so to understand, and the latter accordingly never reported to the board, as a resignation to be acted upon, what Butler had said to him.

It is argued that even if he had not resigned, Mr. Butler's failure to attend meetings of the board had the effect of creating a vacancy and imposing upon the board the duty of appointing a successor. But under section 221 of the School Code the effect of a failure to attend meetings is to bring into existence a power in the board to declare the seat vacant, and until they do make such a declaration no vacancy arises. The evidence shows that in this case the other directors regarded Mr. Butler as having a good excuse for his absences, and they made no such declaration.

The existing situation is not the result of a wilful and perverse refusal or neglect of the board to act, but grows out of a misunderstanding between Mr. Butler and other members. It now appears unequivocally, by his signing the petition presented to the court, and by his affidavit appended thereto, that he regards himself as having resigned, and the school board now claims the right to appoint his successor and asks the court not to assume and exercise this power. Upon principle and for reasons that are mentioned in the opinion of Judge Strauss in the case of Ashiey Borough School Director, supra, any doubt as to whether the school board is in default, or, in other words, whether a resignation was given to it, in so unequivocal a form as to impose upon it the duty of acting, more than thirty days before the petition in this case was presented to the court, ought to be resolved in its favor, so as to afford it an opportunity yet to appoint a successor. Accordingly we think the prayer of the petition should be denied. It will of course be understood that this will not prevent the presentation of another petition in the event of a failure of the board to appoint a suc