Page images
PDF
EPUB

In re Mine Inspectors. Previous Certificate-Amendment to Constitution of 1909 -Qualifications

Act of June 1, 1901, P. L. 535.

It is a necessary qualification for a candidate for the office of mine inspector to have a certificate of a successful examination under the provisions of the Act of June 1, 1901, P. L. 535, and an old certificate or one used for the purpose of qualifying as a candidate at a previous election, is not sufficient to entitle the holder to become a candidate for the office at an election held this year.

OFFICE OF THE ATTORNEY GENERAL,
Harrisburg, Pa.

April 20, 1920.
Honorable Seward E. Button,
Chief, Department of Mines,

Harrisburg, Pa. Sir:

This department is in receipt of your recent letter, asking for an opinion as to whether one can be a candidate for the election of Mine Inspector, unless he has taken an examination within four years.

I understand that some persons who have taken the examination years ago intend to become candidates this year without taking the examination.

The term of Mine Inspectors was fixed by Section 11 of the Act of June 8, 1901, P. L. 535, at three years, but upon the amendment of the Constitution in 1909, the general Act of March 2, 1911, P. L. 8, extended the terms of all public officers fixed at an odd number of years, one year, so that now Mine Inspectors are elected for a term of four years.

The Act of June 8, 1901, P. L. 535, amended the Act of June 2, 1891. Section 5 or Article II of the first mentioned Act provides that notice of examinations of candidates for the office of Mine Inspector shall be published, that examiners shall be sworn, and that"at least four of them shall sign a certificate, setting forth the fact of the applicants having passed a successful examination, and who have answered ninety per centum of the questions; * and shall give such certificate to only such applicant as has passed the required examination.”

Section 8 of Article II of the Act of 1901 provides that

"Candidates for the office of Mine Inspector shall file with the county commissioners a certificate from the mine examining board, as above set forth, before their names shall be allowed to go upon the ballot

the name of no person shall be placed upon the official ballot except such as has filed the certificate as herein required; and no persons shall be qualified to act as such Mine Inspector unless such certificate has been previously filed with the county commissioners of his county."

The Act of 1901 has been variously amended, but no amendment has made any change in the qualification of candidates for Mine Inspectors nor in the character of the examination nor the certificate required to be given to the successful applicants.

In the case of Moore et al. v Durkin, in the Court of Common Pleas of Lackawanna County, No. 1 November Term, 1911, the precise question which you present was before the court. It arose on a motion for an injunction to restrain the county commissioners from furnishing ballots for the election containing the name of one Evan C. Davis for the office of Mine Inspector for the Second District. Davis had passed the examination in April and May, 1902, and in the fall of 1911 petitioned the county commissioners to have the name placed upon the primary ballot as a candidate for the office of Mine Inspector without having passed an examination other than the one nine years before. The court, on October 18, 1911, after hearing, continued the preliminary

*

*

In re Mine Inspectors.

[ocr errors]

* *

injunction. Davis, apparently, acquiesced in the decision, because the case was not proceeded with further and is not listed.

I find no reported case upon this question, but Attorney General Carson, in an opinion dated February 13, 1903, reported in 12 Dist. Rep. 320, held that under the Act of 1901, supra, a Mine Inspector, in order to succeed himself, must be elected at the November election preceding the expiration of his term, and must qualify for such election by again passing the examination required by the Act. Attorney General Carson therein said:

You were elected for a definite term, and the term expires by its own limitation. The examination by which you were qualified fon your place relates solely to that term and to no other. The vancancy that will occur through the expiration of your term must be filled by election as prescribed in the Act of June 8, 1901, P. L. 535. A candidate must qualify in the manner prescribed by the Act. The fact that you were qualified as a candidate for your present term does not dispense with the necessity of qualifying in like manner for a new election. A successful examination does not qualify for all time or for as many times as the successful incumbent sees fit to announce himself as a candidate. The examination in each case is only for the term then to be filled, and its efficacy extends no further."

We adopt the conclusion of Attorney General Carson, and advise you that it is a necessary qualification for a candidate to have a certificate of a successful examination under the provisions of the Act of June 1, 1901, P. L. 535, and that an old certificate, or one used for the purpose of qualifying as a candidate at a previous election, is not sufficient to entitle the holder to become a candidate for the office this year.

Very truly yours,

WM. M. HARGEST, Deputy Attorney General.

Metz's Estate.

Descent and Distribution-Heirs,

-Children-Declarations— Evidence.

as

Where claimant was known and always recognized by decedent her daughter and acknowledged so to be in numerous writings and statements as well as in an insurance policy, in which she was designated “as daughter" and named as beneficiary, she was declared to be entitled to inherit all of her mother's estate in a contest between claimant and the half-brother and others of the decedent.

Parents are presumed to know better than anyone else who are their children and when they say in unimpeachable written language and by their continuous acts during their lives acknowledge one as their child, it will be conclusive.

SO

No. 9 January

Sur Contested Claim of Daughter's Right to Inherit.
Term, 1920. 0. C. Allegheny County.

R. T. II. VcCready, for petitioners.
J. C. R. Johnston, for collateral heirs.

MILLER, P. J., April 14, 1920.-Maria Metz, the decedent, died February 16, 1919; her husband, Ludwig Metz, predeceased her; Mary Metz Bodnar claims to be their only child; her claim is disputed by the half-brother of Mrs. Metz in support of the claim of the mother of Mrs. Metz, and of himself and other of her children.

From her earliest recollection, beginning with her infancy in Bohemia, the claimant knew Mr. and Mrs. Metz as her parents, they called her

Metz's Estate.

daughter; held her out and treated her as such, and she was so called by all parties interested in the family.

She says she was born on the 24th of August, 1895, and is going on her twenty-fifth year.

When she was eight or nine years old she was brought to this country by Mrs. Metz, Mr. Metz having preceded them, and the family took up their residence in Allegheny, where she continued to be known and called Mary Metz and was treated and held out as the only daughter.

In legal proceedings before a magistrate in 1914 both Mr. and Mrs. Metz made affidavit describing her as their daughter; in the application for her marriage license as Mary Metz to Bodnar, Mr. Metz again made affidavit that she was his daughter, Mrs. Metz being present when the application was made.

Mrs. Metz, the decedent, became a member of some fraternal organization and took out a regular insurance policy, in which she set forth as her beneficiary the name of the claimant “as daughter.” In her application to become a member of the Protected Home Circle it is certified over the seal of this organization that Mrs. Metz inter alia directed $700 of the fund to be paid to her daughter, Mary Bodnar, nee Metz.

Only once in the lifetime of Mrs. Metz did any question or rumor come to Mrs. Bodnar of her parentage. She was told that she was not the daughter of Mr. and Mrs. Metz, by some neighbor or employer; she at once went to Mrs. Metz with the story, who, having heard it, cried, and said to her, “Don't believe what you hear from others. Believe what tell you."

After her marriage to Bodnar and the death of Mr. Metz, Mrs. Metz lived with Mrs. Bodnar as her mother and was cared for and provided for until her death.

Following the death of Mrs. Metz, her half-brother, Adolph Smutny, who with his wife had come to America ofter the Metz's had settled here and lived in their community, but who was estranged from Mrs. Metz for a number of years, raised the question of Mrs. Bodnar's kinship as the daughter and questioned her right to inherit from Mrs. Metz, as well as to accept the insurance benefits as said daughter.

Thereupon Mrs. Bodnar wrote to the mother and daughter of Mrs. Metz, who lived in Bohemia, calling them grandmother and auntie and requesting them to certify to her kinship as the daughter of Mrs. Metz or furnish her evidence thereof; instead of answering her letters they enclosed the same with letters to Smutny, and in their answers certified that she was not the daughter of Mrs. Metz. It is evident that while Mrs. Bodnar was writing to the grandmother and aunt, Smutny was doing the same thing.

In connection with the correspondence from the grandmother and aunt to Smutny they furnished a baptismal certificate, Exhibit No. 9, setting forth over the signature of the parish priest that “the records of the church therein mentioned show that on the 15th of August, 1895, there was baptised one

Marianna, illegitimate daughter of Mary Sewiora, unmarried daughter of Jacob Sewiora, a watchman at the pumps,” etc.

Smutny testified further in connection with this and other exhibits offered by him that as a young boy or man he lived with or near his sister, Mrs. Metz, in Bohemia; that she had no children; that going to their home after an absence by reason of service in the army or from some other place of employment he found this child in the household; that she was then one or two years old; that Metz told him the grandmother had brought her there, saying that as she had five children on hand and the Metz's had none they should take her to raise; that they agreed to do so if she behaved herself; he further says that Mrs. Metz told him the same in effect; that he always afterwards saw her in the family of the Metz's; that she went by the

Metz's Estate.

name Cevra in school, but by all others was called by the name of Metz and treated as their daughter; in an attempt to corroborate this his wife testified to the same matters in substance, and other testimony was offered of various declarations made by Mrs. Metz that Mary was not their child.

Smutny's testimony is not satisfactory. It is filled with numerous contradictions and variances, as compared with what he said before the Register. His manner of testifying, coupled with the contradictions, impeaches his credibility; especially valueless is his offer of the alleged copy of the baptismal certificate, which, even if competent, does not identify this claimant with one Marianna Sewiora, illegitimate offspring of one Mary Sewiora. There is no connection by proof, not even by inference, that this certificate, even though a true copy of the parish record, applies to and identifies this claimant as the person therein described. Nor is there any connection between the name Cevra, which Smutny says she was known by, with either the name on the baptismal certificate nor with the name of Metz,

Nor is the other alleged oral gossip of Mrs. Metz of weight against her statements in writing on the insurance applications and against her affidavit and acquiescence when other affidavits were made in writing, and these in recent years, setting forth distinctly, both by express act and by implication, that the claimant was her daughter.

This claimant, of course, can not know anything of her parentage except as told her by those who said they were her father and mother and who called her and treated her as their daughter; they alone know better than any one else whether this was their child; they have said so in unimpeachable written language and by their continuous acts during all the life of this claimant.

The conclusion, therefore, is that from the weight of the credible and competent testimony Mary Metz Bodnar is the daughter of Maria Metz, the decedent, and as such is entitled to inherit the estate.

The exceptions are for failure to account for funds received from the Protected Home Circle and for failure to specifically charge certain insurance benefits against general expenses. The inventory filed shows that the estate consisted of cash deposited in the Ohio Valley Bank; presumptively this was money belonging to the decedent, other than these insurance funds; if so, the exceptants having been found not to be of the kin entitled to inherit have no standing to file the exceptions.

If, on the other hand, the accountant has received funds from these organizations which are earmarked as belonging to some one else and has not accounted for that here, the parties interested have their right of redress against her for money had and received, but it is not a part of this account.

Sloan v Sloan.

Divorce-Hearing

Service of Notice

-Affidavit-Rule of Court 102.

Leaving a copy of notice of a Master's hearing in a divorce proceeding at the home of the respondent with one not the respondent is not personal service and offends Rule of Court 102, and where there was nothing to indicate an effort to give personal service and a failure to find respondent and thereby lay ground for notice by publication, the service was set aside.

Divorce. No. 1480 January Term, 1920. C. P. Allegheny County.
F. A. Piekarski, for libellant.

CARPENTER, J., May 15, 1920.—The Sheriff's return shows personal service of subpoena December 16, 1919, at No. 855 Rebecca Street, Wilkinsburg, Pa. The Master's report, paragraph “f” of the "Schedule,” reads:

“Notice of the time and place of hearing before the master was given to the respondent, by L. J. Korpanty, who on March 16th, 1920, served personally a copy of the master's notice upon the respondent, by leaving a copy thereof with Mrs. J. C. Sloan, at his home and residence at 855 Rebecca Street, Wilkinsburg, Pa., and making known to her the contents thereof."

The affidavit of L. J. Korpanty to which the master refers reads: "State of Pennsylvania, County of Allegheny, ss:

Personally appeared before me, a Notary Public in and for said County and State, L. J. Korpanty, who being duly sworn according to law, deposes and says that he served the above notice on Norman Lester Sloan, by leaving a copy thereof with Mrs. J. C. Sloan, personally, and by making known to her the contents thereof, at his residence at 855 Rebecca Street, Wilkinsburg, Pa., at 3:20 P. M. on the 16th day of March, 1920.

L. J. KORPANTY.”

Sworn and subscribed before me this 25th day of March, 1920.

MARY BRINK,

Notary Public.
My commission expires February 19, 1921,
Rule 102 as amended June 1st, 1916, provides that:

"In all cases in which the Master has been appointed he shall, after consultation with the counsel for parties and the Stenographer to whom the case is assigned, fix the time for hearing and shall then give notice thereof (in writing) to the counsel for the parties and to the Stenographer, at least ten days before the time of hearing; and shall give notice to the respondent personally, if he or she can be found, or if he or she cannot be found, by advertisements published once a week for three weeks in one newspaper and in the Pittsburgh Legal Journal, such notice, or the last advertisement, 'to be not less than ten days before the case is called for hearing."

It will be noted the rule requires that ten days notice shall be given "personally," if the respondent can be found. The Master says, notice of the time and place of hearing was served personally, but immediately adds "by leaving a copy thereof with Mrs. J. C. Sloan at his residence at 855 Rebecca Street, Wilkinsburg." The affidavit showing the manner of service says it was "by leaving a copy thereof with Mrs. J. C. Sloan, personally, and by making known to her the contents thereof."

Just how personal notice to Mrs. J. C. Sloan can be construed as "personal notice to respondent,” we cannot understand. Moreover there

[ocr errors]
« PreviousContinue »