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Anderson v Clark.

not agreed. She was within her rights in refusing to sign a lease containing a new stipulation. It is to be noted that defendant gave plaintiff a "copy of the lease.” Manifestly if the original was not signed, she was misled.

Defendant removed the sign displayed by plaintiff and displaced floral emblems necessary in advertising her business and on the theory that the tenancy is from month to month, he has threatened to eject her and otherwise interfered in the business she is conducting.

We are of opinion that plaintiff has shown such right as entitles her to a continuance of the injunction to final hearing.

In re Automobiles.

Corporations -Buying and Selling Used Cars-License-Charter Powers

-Act of June 30, 1919, P. L. 702.

The Act of June 30, 1919, P. L. 702, regulating motor vehicles, is an exercise of police power of the State. Its regulations are reasonable and apply uniformly to all persons, whether natural or artificial, so that a corporation organized under the General Incorporation Law of 1874 to "buy, sell, handle, lease, repair, build and deal in all kinds of automobiles" must take out a license to buy and sell used cars. Its charter does not exempt it from the requirements of the Act.

OFFICE OF THE ATTORNEY GENERAL,

Harrisburg, Pa.

February 25, 1920.

Mr. Benjamin G. Eynon,
Register of Motor Vehicles,
State Highway Department,

Harrisburg, Pa.

Sir:

I have your communication of the 20th instant, asking to be advised whether the Fiat Motor Company is subject to the provisions of the Act of June 30, 1919, P. L. 702, entitled “An Act regulating the sale, conveyance, transfer, or disposition of second-hand motor vehicles," ctc.

It appears that the Fiat Motor Company was incorporated under the General Incorporation Law of this Commonweaith, and that its charter authorizes it to "buy, sell, handle, lease, repair, build and deal in all kinds of automobiles."

Section 9 of said Act of 1919 provides as follows:

“That after the first day of July, one thousand nine hundred and wineteen, it shall be unlawful, and it is hereby forbidden, for any person to carry on or conduct in this Commonwealth the business of buying, selling, or dealing in used motor vehicles urless and until he shall have received a license from the Commissioner of highways of the Commonwealth, authorizing the carrying a? or conducting of such business. Upon making such application the person applying therefor shall pay to the State Highway Commissioner a fee of one hundred dollars ($100.00)."

In re Automobiles.

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Section 10 of the Act provides that violation of the provisions of the said ninth section shall constitute a misdemeanor, punishable by a fine of mot less than three hundred dollars ($300.00), and not more than one thousand dollars ($1,000.00), or to imprisonment for not less than one year or more than three years, or both, at the discretion of the Court.

This Act is an exercise of police power of the State. Its regulations are reasonable, and apply uniformly to all persons, whether natural or artificial, engaged in the business undertaken to be regulated. Corporate charters and franchises are granted and accepted subordination to the police power of the State. As against this power, which finds appropriate expression in the maxim, salus populi suprema lex, the doctrine that a corporate charter is a contract, must give way. Penna. R. R. v Braddock Electric Ry., 152 Pa., 116. The above mentioned corporation took its charter subject to Section 3 of Article XVI of the State Constitution o! 1874, ivhich declares that:

The exercise of the police power of the State shall never be abridged or so construed as to permit corporations to conduct their business in such manner as to infringe the equal rights of individuals or the general well-being of the State.”

Section 10 of Article XVI provides thus:

“The general Assembly shall have the power to alter, revoke or annul any charter of incorporation now existing and revokable at the adoption of this Constitution, or any that may hereafter be created, whenever in their opinion it may be injurious to the citizens of this Commonwealth, in such manyer, however, that no injustice shall be done to the corporators."

The power to annul a charter of a corporation clearly embra:?s the lesser power to regulate the business of such corporation. Persons and property of all kinds are subject to general restraints and burdens in order to secure the welfare and prosperity of the State at large. The interests of the few must yield to the wants of the many. Commonwealth v lock Mutual Beneficial Association, 10 Phila., 554.

The right to subject private corporations to such new regulations as the general welfare demands is discussed in an illuminating and convincing manner in Cooley's Constitutional Limitations, 7th Ed., page 836:

“Although these charters are to be regarded as contracts, and the rights assured by them are inviolable, it does not follow that these right are at once. by force of the charter-contract, removed from the sphere of State regulation, and that the charter implies an undertaking, on the part of the State, that in the same way in which their exercise is permissible at first, and under the regulations then existing, and those only, may the corporators continue to exercise their rights while the artificial existence continues. * *

the rights and privileges which come into existence under it are placed upon the same footing with other legal rights and privileges of the citizen, and subject in like manner to proper rules for their due regulation, protection, and enjoyment."

It was held in People, ex rel. Larrabee v Mulholland, 82 N. Y., 324, that a corporation incorporated under an Act of Assembly was subject to a municipal ordinance requiring licenses for persons engaged in peddling milk in the city. The Court, in their opinion, say that the Act of incorporation did not so much give the right or privilege to sell as it declared the purpose for which the corporation was sought, and awarded to it the right to do as a corporation that which any natural person might do without it. The mere coming together as corporators gave the persons making the asscciation no more right as a corporate body within the bounds oi the city than every one of them already had as individuals.

In re Automobiles.

In view of the principles and decisionis referred to there can be no doubt that the Fiat Motor Company, created and formed to carry on a business already lawful and proper to be engaged in by natural persons, is as inuch subject to, and affected by, the aforesaid Act of 1919 as a natural person. This conclusion is in harmony with the opinion of Deputy Attorney General Collins, rendered February 2, 1916, holding that the Seaman's Boarding House Association of the City of Philadelphia, incorporated by the Act of 1865, P. L. 613, is subject to the Act of 1915, P. L. 888, regulating the business of employment agents.

You are advised, therefore, that the Fiat Motor Company is not exempted by its charter from the provisions of the said Act of 1919, and that your officers should institute proceedings agains: it if it continues to refuse to take out the license as provided in Section 9 of the Act.

Very truly yours,

ROBERT S. GAWTHROP,

First Deputy Attorney General.

Graebing v Graebing. Divorce-Unhappy Marriage--Rude Treatment

-Conscience of Chancellor.

The court would not be justified in granting a decree in divorce simply because the marriage was an unhappy one, or because the husband was unsympathetic and at times perhaps rude and coarse in his treatment of his wife. That is not the test. The conscience of the Chancellor must be moved by such measure of proof as will clearly and satisfactorily warrant the decree sought.

In Divorce.

No. 1495 October Term, 1919.

C. P. Allegheny County.

Robert R. Werle, for libellant.

REID, J., January 28, 1920.—The libel in this case alleges cruel and barbarous conduct, and such indignities to libellant's person as to render her condition intolerable and life burdensome, thereby forcing her to withdraw from the respondent's house and family.

The Master recommends the dismissal of the libel and the refusal of the decrec prayed for, on the ground that “A most careful scrutiny does not convince the Master that the evidence produced is sufficient to prove the charge in the libel on which to base a decree of absolute divorce.”

We have also read and carefully considered the testimony to test the accuracy of the Master's conclusions. If we were to grant the decree simply because the marriage was an unhappy one, or because the husband was unsympathetic and at times perhaps rude and coarse in his treatment of his wife, we might allow such a plea to prevail. That, however, is not the test. The conscience of the Chancellor must be moved by such measure of proof as will clearly and satisfactorily warrant the decree sought.

We agree with the Master that such measure and character of proof were absent in the case. He saw the libellant, the whole story of abuse was practically unsupported he was best able to judge of the weight to be given it.

The report is sustained.

Russell v Averman-Lynn, Inc.

Collateral Agreement

Evidence

Com

ContractsWritten-Verbal

petency Appeal.

In assumpsit over the sale of an automobile, evidence which explained but did not vary or contradict the terms of the written agreement was competent and appeal by defendant from County to Common Pleas refused. It was also competent to explain the meaning of an abbreviation so as to identify the car.

Where plaintiff contracted in writing to buy an automobile from defendant and then entered into a verbal agreement pending the arrival of the car, it was held, in an action to recover the amount paid, to be competent to prove the terms of the collateral agreement in that this evidence dill not vary tradict the terms of the writing.

or con

No. 619 April Term, 1920.

Petition for Appeal from Cowity Court. C. P. Allegheny County.

Beatty, Jlagee & Martin, for plaintiff.
Bialis, Irons & Ryan, for defendant.

Before STONE AND MACFARLANE, JJ.

MACFARLANE, J., February 14, 1920.—This was assumpsit for $900 paid by plaintiff to defendant by a check of June 4, 1919, for $200. and check of June 6, 1919, for $700. Defendant agreed to sell plaintiff a Chandler automobile, touring model, at $1,897, agreement in writing, dated June 4, 1919, and $200. check paid.

The contract or order was on a printed blank, the automobile to be delivered on

or about July 1st, for which plaintiff agreed to pay $1,897, $200. part payment and agreed to pay balance when the automobile was ready. "It being understood, however, that the amount deposited herewith shall be returned to me should you be unable to make delivery." A tabular form was in the body of the contract as follows: "Total price

-$1,897. Less Deposit

-$200 Less S. H. Car Chand. Tour...

700 900.

Balance due on delivery.

.$ 997.” It was further stated "That there is no understanding, verbal or otherwise, other than that set forth herein."

As already above stated, a check for $700. was given on June 6th. Demand was made for the delivery, and a refusal, and plaintiff brought this suit.

On the trial plaintiff was permitted to introduce testimony in effect thai, prior to the execution of the agreement, the defendant loaned plaintiff a second-hand Chandler car, to be used by him until the new car was delivered. when it was to be returned, and that the check for $700. was given to the defendant at the time of the loaning of the second-hand car as security for its return, and upon the delivery of the new and the return of the second-hand car the $700. was to be applied on account of the purchase money. That the second-hand car was not satisfactory and was returned to the defendant, who took possession of it. The admission of this testimony is the error complained of.

It appeared that "S. H. car Chand. Tour.” meant “second-hand car, Chandler touring model.” The article shows a credit given or to be given for a second-hand car and, clearly, it is competent to show the identity of the car to be used as a credit and that it was a car that was formerly the

Russell v Averinan-Lynn, Inc.

property of the defendant. If this was bought by the plaintiff from the defendant, the fact, if relevant, would not vary or contradict the written agreement. Neither does it have that result when the evidence was that it was a bailment and not a purchase. Og its face, the agreement was that the total price of $1,897. was payable $200. on execution, $997. on delivery, and that credit had been or would be given for a second-hand car. Instead a check for $700. was given, a deviation from the terms of payment, i. e., from the consideration. The defendant has the second-hand car and the check and, plainly, evidence is admissible to explain. All real consideration may be shown by parol: Henry's Penna. Trial Evidence, Section 350.

The testimony does not contradict the writing. The parties made a collateral agreement. Appeal refused.

In re Speed Limit.

Motor l'ehicles

-Witnesses Conviction Act of June 30, 1919, P. I.. 678.

Section 29 of the Motor Vehicle Act of June 30, 1919, P. L. 678, providing that no person shall be convicted of exceeding the speed limit of one mile in two minutes except on the evidence of two witnesses, applies only to where the speed is taken over a measured stretch of road.

OFFICE OF THE ATTORNEY GENERAL,

Harrisburg, Pa.

February 20, 1920.

Mr. Benjamin G. Eynon,
Registrar of Motor Vehicles,
State Highway Department,

Harrisburg, Pa.

Sir:

I have your communication of the 16th instant, asking to be advised whether, under the Act entitled “An Act relating to and regulating the use and operation of motor vehicles, etc.," approved June 30th, 1919, P. L. 678, the testimony of two witnesses is necessary to secure a conviction for the offense of driving a motor vehicle at a rate of speed exceeding that limited by Section 19 of the Act. You refer me to Section 29 of the Act, and ask whether the provisions thereof apply in every case involving the violation of the speed regulations of said Section 19.

Section 19 of the Act provides, inter alia, that “no person shall drive a motor vehicle at a rate of speed exceeding one mile in two minutes."

It further provides for a slower speed for commercial vehicles of different classes. Section 29 of the Act provides as follows:

"When the rate of speed of any motor vehicle is timed on a measured 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) persons, one of whom shall have been stationed at each end of such measured stretch, and no convictions shall be had upon the unsupported evidence of one person, and

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