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Kettering v Kettering.

Divorce Counsel Fees and Alimony--

-Rule

-Power of the Court.

Where a divorce case was decided without disposing of a rule for counsel fees and expenses, it is within the power of the court to make such order on said rule as the facts and circumstances warrant, and may order the payment of a lump sum where respondent has failed to comply fully with a prior order as to alimony pendente lite.

Petition for Counsel Fees and Expenses. No. 1581 April Termi, 1917. C. P. Allegheny County.

James Francis Burke and L. P. Monahan, for libellant.
R. P. & M. R. Marshall, for respondent.

Before Brown, MACFARLANE and SWEARINGEN, JJ.

SWEARINGEN, J., January 17, 1920.–Since this case was decided, our attention has been called to the fact that a rule for counsel fees and expenses was pending and that no disposition of it was made. That was a fact. After some delay, the testimony taken upon the rule was found.

The record shows that a petition was filed by the respondent and a rule to show cause was granted. The libellant answered the rule and about sixty pages of testimony were taken which is very contradictory.

It is well settled that, when a husband seeks to obtain a divorce from his wife upon the grounds laid in this case and under the circumstances that appear, he is obliged to pay her reasonable expenses and counsel fees. The libellant recognized this obligation and paid the respondent thirty dollars per week until August 3, 1918, when he reduced the amount to twelve dollars per week; and he had never paid her anything for counsel fees. They had not received any compensation for their services at the time this petition was filed.

The preparation of the case could not have been difficult, though it required time, and the testimony taken at the trial was not voluminous. The record discloses that at least two applications were made by the libellant to have the case referred back to the Master, after his report was filed, and that one was made for a discontinuance. These required answers to the rules to show cause and also arguments in Court. Consequently this divorce case, while not an extraordinary one, did impose more than the ordinary labors upon the counsel for respondent. But the record and testimony do not disclose any necessity for the respondent's making "at least 75 calls upon her counsel in the preparation of her case," or for her expenditure of $500 in assembling the witnesses and making provision for them during the proceedings. These allegations appear in the petition.

The libellant paid the respondent thirty dollars per week during the early part of their litigation, and then of his own motion, in August, 1918, reduced the sum to twelve dollars per week. Her necessities were apparently as great, when the reduction was made, as when he fixed the amount. We are not satisfied that this change in payments to her was made solely on account of his inability to continue them.

Considering all the circumstances and all the testimony, we conclude that the libellant should pay the respondent the sum of $500 as counsel fees and the sum of $1,000, as additional alimony pendente lite, frorii August, 1918, to and including the date of this decision, and it is so ordered.

In re Health Certificates.

Public Eating Houses---Employes--Suffering from Disease-Act of May

28, 1915, P. L. 642.

It is the duty of local boards of health to enforce the provisions of the Act of May 28, 1915, P. L. 642, relating to health certificates showing freedom from disease of employes of public eating houses. It is the duty of a proprietor of such an eating house not to employ any person suffering from any of the diseases specified by the Act.

OFFICE OF THE ATTORNEY GENERAL

Harrisburg, Pa.

February 11, 1920.
Colonel John D. McLean,
Deputy Commissioner of Health,

Harrisburg, Pa.
Sir:

Your request for an opinion as to whether it is proper and lawful for the Commissioner of Health to direct the local boards of health to enforce the act approved the twenty-eighth day of May, A. D. 1915, P. L. 642, relating, to public' eating places; and whether the act requires the proprietor of a public eating place to secure a health certificate showing freedom from the diseases specified by the act in a person before employment, has been re. ceived by this department.

First. The law makes it the duty of local boards of health to enforce the laws of the Commonwealth and the regulations of the State Department of Health, and in my opinion it is therefore proper for the Commissioner of Health to direct local boards of health to enforce the Act of May 28, 1915, P. L. 642, and to require from the local boards of health reports of their activities in the matter. And, it is not necessary for the Advisory Board of the State Department of Health to pass a regulation ordering and directing local boards of health to do what the Act of Assembly makes it their duty to do.

Second. Section 1 of the Act of 1915, P. L. 642, provides, that no person or persons, firm, corporation or common carrier, operating or conducting any hotel, restaurant dining car, or other public eating place in this Commonwealth, shall hereafter employ or keep in their employ, in certain capacities, persons suffering from certain diseases. It nowhere states how the proprietor of such eating place shall ascertain whether or not a person is suffering from any of the diseases specified in the act, and in my opinion, the proprietor is not required to secure a health certificate showing freedom from the specified diseases; nor, does he have the right to employ a person and await the next periodical medical examination to determine freedom from any of the diseases. It is his duty not to employ a person with any of the specified diseases, and it is also his duty to ascertain, in any way possiblu, whether or not the person has any of the diseases specified in the act before he employs such person.

The second section of the act, relating to medical inspection, in my opinion, does not relieve the proprietor of an eating place from the obligation not to employ a person suffering from any of the diseases specified by the act.

Very truly yours,
BERNARD J. MYERS,

Deputy Attorney General.

Commonwealth v Gatti, No. 1.

Aliens-Dogs Found on Premises

Act of June 1, 1915, P. L. 644.

-Property of Minor Native Born Son

An unnaturalized foreigner did not violate the Act of June 1, 1915, P. L. 644, and on appeal from a summary conviction before a magistrate was discharged where two dogs found on his premises were owned by his native born minor son, who paid the dog tax and had a hunter's license. The son had a right to keep his dogs in the house which was the common home of himself and his father.

Appeal from Summary Conviction. No. 96 February Sessions, 1919. Q. S. Westmoreland County.

Thomas G. 'Taylor, Assistant District Attorney, for Commonwealth.
Williams, Wegley & Doran, for defendant.

COPELAND, J., July 19, 1919.-This is an appeal specially allowed the 21st day of January, 1919, and filed by leave of Court nunc pro tunc as of the 10th day of January, 1919, by the defendant, who, was, on the last mentioned date, convicted before a Justice of the Peace of violation of the Act of June 1, 1915, P. L. 644.

The first section of this Act provides: “That it shall be unlawful for any unnaturalized foreign-born resident to hunt for, capture or kill in this Commonwealth any wild bird or animal, either game or otherwise, of any description, excepting in defense of person or property; and, to that end, it shall be unlawful for an unnaturalized foreign born resident within this Commonwealth to either own or be possessed of a dog of any kind."

This Act also provides a penalty of fine or imprisonment and the forfeiture of such dog upon conviction of a person violating the Act. It is further provided in the third section of this Act: “The possession of a dog at any place outside of buildings, within this Commonwealth, by an unnaturalized foreign born resident, shall be conclusive proof of violation of the provisions of Section 1 of this Act, and shall render any person convicted thereof liable to the fine as fixed by said Section."

It is further provided in the fourth section of this Act: "The presence of a dog in a room or house or building, or tent or camp of any description within this Commonwealth, occupied or controlled by an unnaturalized foreign born resident shall be prima facie evidence that such dog is owned or controlled by the person occupying or controlling the property in which said dog is found and shall render such person liable to the fine imposed by Section 1 of this Act."

The petition for allowance of appeal admits that the defendant is an unnaturalized, foreign-born resident of the Commonwealth and of Westmoreland County, and does not deny that two dogs were kept on and about the premises occupied and controlled by the defendant at the time mentioned. On the hearing of the appeal, the testimony of the Commonwealth's witness did not go further than to show the presence of two dogs on the premises and in the house occupied and controlled by the defendant. There was no testimony introduced on the part of the Commonwealth to show possession of a dog by the defendant at any place outside of buildings, or that the defendant used a dog or dogs in hunting, contrary to the Act.

The petition for allowance of appeal also avers, and the proofs offered by the defendant and a number of witnesses called in his behalf fully sustains the averments, that the two dogs in question were owned by Raymond Gatti, a minor son of the defendant, who was a native born citizen of the United States and of the State of Pennsylvania; that the tax imposed by law on said dogs had been paid by said Raymond Gatti for the year 1918;

Commonwealth y Gatti, No. 1.

and further shows that Raymond Gatti was a person duly licensed to hunt game in Pennsylvania for the year 1918; and also that he had his residence and place of actual abode on the premises and in the house occupied and controlled by his father, the defendant.

The Commonwealth, nevertheless, contends that the presence of the two dogs in such house or home, rendered the defendant liable to conviction and fine. To sustain this contention would involve a disregard of the evidence and the clear intendment of the fourth section of the Act, which provides that the presence of a dog in such house shall be only prima facie evidence that such dog is owned or controlled by the person occupying or controlling the property in which it is found.

There is nothing in the law which forbids a citizen of the United States of any age to own a dog or dogs. That the dogs in question were owned by Raymond Gatti, as stated before, was conclusively proven. Nor is there any law prohibiting such owner from keeping such dogs in the house in which he resides. Accordingly, the said Raymond Gatti had the right to keep his dogs in the house which is the common house of himself and his father.

At the trial it was also contended, without any citation of authority for the contention, that a fact admitted, viz: that Raymond Gatti was not yet twenty-one years of age, in some manner or to some extent limited his right to own' and keep dogs in the common residence of himself and his unnaturalized foreign born father. We have been unable to find authority to support this contention.

It is clear, therefore, under the evidence, that the defendant is not guilty of a violation of the Act of Assembly under which the charge against him was preferred. The conviction is, therefore, illegal and void and the judgment of the Justice of the Peace is set aside and the defendant discharged.

Commonwealth v Gatti, No. 2.

-Act of May

Aliens-Fire Arms--Found on Premises -Owned by Others

8, 1909, P. L. 466, Amended by Act of July 11, 1917, P. L. 799.

An unnaturalized foreigner did not violate the Act of May 8, 1909, P. L. 466, as amended by the Act of July 11, 1917, P. L. 799, and on appeal from a summary conviction before a magistrate was discharged, where one of two shotguns found on his premises was owned by his native born minor son and the other was owned by another unnaturalized foreigner, residing in this Commonwealth, each of whom were licensed to hunt game.

Appeal from Summary Conviction. No. 97 February Sessions, 1919. Q. S. Westmoreland County.

Thomas G. Taylor, Assistant District Attorney, for Commonwealth.
Williams, Wegley & Doran, for defendant.

COPELAND, J., July 19, 1919.—This case was heard on appeal by defendant from a conviction before a Justice of the Peace, which appeal was allowed and filed at the same time as the appeal taken by the same defendant at No. 96 February Sessions, 1919, in which the judgment of the Justice of the Peace was set aside and the defendant discharged in opinion this day handed down.

Commonwealth v Gatti, No. 2. The defendant in this case was convicted for violation of the provisions of the Act of 8th May, 1909, P. L. 466, as amended by the Act of 11th July, 1917, P. L. 799, which makes it unlawful for an unnaturalized, foreign-born resident to hunt for, capture or kill wild birds or animals, and to that end, makes it unlawful for such person, within the Commonwealth, to either own or be possessed of a shotgun or rifle of any make, or a pistol, or a firearm of any kinds. The provisions of the Act with respect to the possession of firearms are in almost precisely the same terms as the provisions of the Act of the 1st of June, 1915, P. L. 644, forbidding such unnaturalized foreign born resident to own or be possessed of a dog.

On the hearing of this appeal, it appeared, by the admission of the defendant as well as by the testimony of the witnesses for the Commonwealth, that two shotguns were kept and found in the house or dwelling of the defendant in Burrell Township, this county, on the 31st day of December, 1918. There was no evidence that the defendant was in possession of these firearms outside of any building, or that he hunted or killed any wild bird or animal in violation of the terms of the Act of Assembly.

In this case, as in the case relative to the possession of two dogs, it was shown that the ownership of the guns was in others than the defendant. It was proven by competent testimony that was not contradicted that one gun was owned by Raymond Gatti, a minor son of the defendant, who had his residence in the house of his father, in which the guns were found, and that the other gun was owned by Frank Ferrari, an unnaturalized citizen of the United States, residing in this Commonwealth, and that the gun was kept in a room in the house of the defendant which was rented and occupied by Frank Ferrari. It was further shown that both Raymond Gatti and Frank Ferrari, owners of the guns in question, were, at the time the information was made against the defendant, licensed to hunt in the Commonwealth for the year 1918. It also appeared that Raymond Gatti was over the age of sixteen and that he had regularly obtained his hunter's license.

The contention of the Commonwealth that, notwithstanding these facts, the mere presence of the shotguns in the house or dwelling occupied and controlled by the defendant, rendered him liable to the penalty imposed by Section 1 of the Act, and for which judgment had been entered by the Justice of the Peace, if sustained, would rob asiy significance the words of the fourth Section of the Act, which provide that “the presence of a shotgun or rifle or pistol or firearm of any kind in a room or house or building or tent or camp of any description within this Commonwealth, occupied or controlled by an unnaturalized, foreign-born resident shall be prima facie evidence that such gun is owned or controlled by the person occupying or controlling the property in which the gun is found," etc.

The evidence is clear that these firearms were owned and were kept in the place of residence of persons have a legal right to own and keep them. The judgment of the Justice of the Peace is erroneous and it is, therefore, set aside and the defendant discharged.

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