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Tissue v Tissue.

DivorceRule for Pendente Lite and Counsei Fei's.

In a petition for alimony and counsel fees in a divorce application upon the ground of desertion, the averments of the answer to the petition must be assumed to be true in deciding on the rule.

Where the respondent voluntarily left the libellant; has been working and earning money, and the rule for alimony was not applied for until four and one-half months after the divorce subpoena was served, determination of the rule will be postponed: Counsel fees, however, ordered.

In re Rule on Libellant to Pay Alimony Pendente Lite and Counsel Fees. No. 274 November Term, 1919. C. P. Washington County.

David M. McCloskey, for libellant.
Harry A. Jones, for respondent.

BROWNSON, J., June 30, 1920.—This rule lias been heard on petition and answer, and the averments of the answer must for present purposes be assumed to be true. It sets forth that the respondent voluntarily left the habitation of the libellant and of her own volition and accord has been living separate and apart from him, and that she has been working and earning money and "is in no sense of the word dependent upon” the libeilant. It further appears from the record that this rule was not applied for until the lapse of about four and one-half months after the subpoena in divorce was served upon Mrs. Tissue. It would seem then, that her circumstances are not such as to require action for the purpose of preventing her from becoming a charge upon the public, and that the que

on of alimony for support is one to be considered exclusively as between the parties to the case. Iv such circumstances it will not be improper to postponc the determination of her right to support, away from her ilusband's hoine, until the testimony has been heard, so that it may appear whether her leaving the libellant was a justifiable or a wrongful act, and whether the conduct of the respective parties has been such as to justify or forbid the making of an allowance for maintenance can then be passed upon: King v King, 36 Superior Ct., 33; Hartje v Hartje, 39 Id., 490.

As to counsel fees, however, the rule appears to be that an order will be made ordinarily, as a matter of course, for the purpose of requiring a husband to provide his wife, against whom he has filed such a libel as this, with the means of defending against the charge therein made.

And now, June 30, 1920, after consideration, it is ordered that the libellant payt to the respondent, or her counsel, as and for counsel fees, the sum of seventy-five dollars, and that further proceedings in the case be stayed until such payment, and that, so far as concerns alimony pendente lite, the rule be retained, to be disposed of after the testimony in the case shall have been taken.

(Reported by Vernon Hazzard, Esq., Monongahela, Pa.)

Hawkins v City of Pittsburgh et al.

Constitutional Law Municipalities

Control Sale of Corporate Securities

Charter Powers Ordinances to
-Creating Now Offices Special

Ordinances of the City of Pittsburgh, dated May 22, 1920, establishing a bureau to control the sale of corporate stocks, bonds or evidences of indebtedness within the city and to determine whether such securities were bona fide as well as the ordinance of February 18, 1920. requiring all sellers of corporate securities to take out a city license were held to be void on a bill filed by a taxpayer in that the city had no authority under its charter to pass ordinances except on matters purely municipal, and the sale of stocks and bonds is not a municipal matter,

The City of Pittsburgh had no legal right to enact a city ordinance creating a bureau of securities, with a superintendent and office force with salaries attached to supervise the sale of corporate securities. Section 16, of the Charter Act of 1901, empowers councils of cities of the second-class "to create any office which they may deem necesary for the good government and interests of the City, and to regulate and prescribe the powers, duties and compensations of all such said offices." This does not mean, however, that the City may set up bureaus and create offices to do whatever they please. It means that for the carrying out of the powers and the performance of the duties placed upon them they may create offices, and may assign one subject to one department and another to another, but it gives no authority whatever for creating offices to do that which the city is not empowered to do.

Sur Motion for Preliminary Injunction. C. P. Allegheny County.

No. 1759 July Term, 1920.

Watson & Fre uan, for plaintiff.
Charles B. Prichard, for defendant.

SHAFER, P. J., July 16, 1920.—The bill is by a resident and taxpayer of the City against the City and the Mayor, the Controller and Treasurer, to declare null and void an ordinance of the City approved May 22, 1920, creating a Bureau of Securities in the Department of Public Safety, and restraining the City and its officers from paying out any monies of the City under that ordinance.

The facts are not in dispute, it being admitted that the plaintiff is a taxpayer, as alleged, and that the ordinance in question was passed by the City Council and that the City has acted upon it in the creation of a Bureau of Securities. The only question presented is one of law, and that is, whether or not the City has power to enact the ordinance in question. The ordinance undertakes to create a Bureau of Securities, with a superintendent and a stenographer-clerk, at salaries fixed therein, and to give this bureau charge and control of all persons who are now or hereafter may be licensed to sell corporate stocks, bonds or evidences of indebtedness within the City, and to determine whether such corporate stocks are bona fide, or represent any real value or assets, or whether they are mere schemes to defraud the public and mislead investors, and providing that if the superintendent of the bureau shall not approve an application for a license, no license shall be issued. The ordinance further provides that the superintendent may require from all persons seeking a license to sell stocks, all information which he may deem necessary and proper for the purpose of deciding whether or not the application should be approved, investigation to be made at the expense of the applicant. The ordinance further provides that any person who shall engage in selling corporate stocks, bonds or evidences of indebtedness within the City without having secured a license shall, upon conviction thereof, be fined a sum not exceeding One Hundred Dollars ($100.00), and in default of payment thereof be imprisoned in the Allegheny County Jail for thirty (30) days, each day said person continuing in said business to be deemed a separate offense. It

Hawkins v City of Pittsburgh et al.

further appeared in the evidence that an ordinance was approved on February 18, 1920, making it unlawful to sell in the City of Pittsburgh any corporate stocks without having a license under that ordinance, and providing that those who apply for a license shall set forth such facts as shall properly enable the Director to determine whether such stocks represent real assets or are mere schemes to defraud the public, and that if the Director shall find upon investigation that the stocks, the sale of which application is made, are bona fide and their sale would not be detrimental to the general public, he shall issue a license upon the payment of Fifty Dollars ($50.00). It will be seen that the ordinance of May 17 is intended to provide machinery for carrying out the provisions of the ordinance of February 18.

It is claimed by the plaintiff that both these ordinances are void, and especially the later ordinance, which is the direct subject of attack in this proceeding. It is, of course, admitted that the City has only such power to make ordinances as is granted it by its charter. When challenged by the plaintiff to show authority in the City charter for the making of the ordinance the City points to what is commonly called the General Welfare Clause, which provides that the City may make ordinances “in addition to the special powers in this section granted for the proper management, care and control of the City and its finances, and the maintenance of the peace, good government and welfare of the City and its trade, commerce and manufacture.” It is contended that the ordinance in question is proper for the maintenance of the trade and commerce of the City. The extent and scope of this clause of the City charter has seldom been the subject of judicial inquiry in this State. One thing is certain, that it does not authorize the City to legislate generally on all subjects which the Council might consider beneficial or necessary. An Act of the legislature expressly giving such powers to the City would be void for the reason that the legislature cannot delegate its powers. It seems to us that the clause substantially means that in addition to the enumerated specific powers contained in the charter, the municipality may make reasonable ordinances upon all the matters and subjects ordinarily recognized as municipal.

It is further contended by the plaintiff that even if the legislature had specifically granted the power to make such an ordinance to the City, the result would be special legislation forbidden by the Constitution, because it is contended the legislature itself has no power to make a law in regard to stocks and bonds and to designate what stocks or bonds may or may not be sold, unless that law is general, and that such a law, applicable only to cities of the second-class would be unconstitutional and void, and this for the reason that the sale of stocks and bonds, and the investment of monies in the same, is not in any sense a municipal matter.

It is with great reluctance that we find ourselves compelled to agree with these contentions of the plaintiff, and to hold that the ordinance in question is void. It is forcibly argued on the part of the Director of Public Safety that there is great need for regulation of the kind provided for by the ordinance, and experience in the courts from day to day shows the necessity of such regulation. That people should be protected in the purchase of bread and vegetables, and not in the purchase of stocks and bonds, seems indeed to be neglecting the weightier matters of the law, but the assise of bread and the control of markets has always been deemed a municipal function and their regulation within the power of the City, whereas the investments of its citizens, and that is what is in question here, have never been supposed to be subject to municipal regulation and are not local and confined in their effects to the limits of the City as is the regulation of the market. The subject is one which fully deserves the careful consideration of the legislature.

Hawkins v City of Pittsburgh et al.

The defendants argue that whatever may be the right of the City to regulate the sale of stocks and bonds, the ordinances in question which sets up a Bureau of the Department of Public Safety is good because authorized by Section 16 of the Act of 1901, which empowers councils of cities of the second-class "to create any office which they may deem necessary for the good government and interests of the City, and to regulate and prescribe the powers, duties and compensations of all such said offices." This does not mean, however, that the City may set up bureaus and create offices to do whatever they please. It means that for the carrying out of the powers and the performance of the duties placed upon them they may create offices, and may assign one subject to one department and another to another, but it gives no authority whatever for creating offices to do that which the City is not empowered to do.

We are of opinion therefore, that the ordinance in question, creating the Bureau of Securities in the Department of Public Safety, is void, for the reason that the City has not, and under the Constitution of the State, could not be given power to do what the ordinance directs to be done.

Brown et al. v Hance.

Attachment -Motion to Dissolve -Removal to Another State to Defraud

Creditors- Evidence -Act of March 17, 1869.

An attachment issued on the ground that defendant was about to move to another state and outside the jurisdiction of the court was dissolved where it appeared that plaintiff knew of defendant's intended removal, advised him about it and no effort was made to conceal the fact. Men who desire to remove to another state for the purpose of cheating their creditors do not usually publically declare their intention to remove.

Motion to Dissolve Attachment. No. 442 July Term, 1920. C. P. Allegheny County.

M. J. Hosack, for plaintiff.
Wm. T. Tredway, for defendant.
Geo. H. Stengel, for garnishee.

COHEN, J., June 22, 1920.—This is a proceeding to dissolve an attachment issued by virtue of the Act of March 17, 1869, predicated on an alleged matured indebtedness of defendant to plaintiffs, amounting to $5,000, payment' of which has been refused.

It is further alleged in plaintiffs' statement that defendant is about to move his property out of the jurisdiction of this Court, into Ohio, with intent to defraud his creditors and for the purpose of defeating the plaintiffs in the enforcement of said claim by reason of which plaintiffs would be unable to have execution thereon. All of which deponent avers he verily believes and expects to prove on trial of this case.

Instead of proceeding to take testimony to be read on hearing of the rule to dissolve, the witnesses were produced in open Court, which afforded an opportunity to see the witnesses and estimate the better the value thereof.

Plaintiffs in the suit filed an answer to defendant's rule to dissolve, which alleged that plaintiffs knew many weeks prior to the issuing of said attachment of defendant's intention to remove to Ohio and that plaintiffs knew at the time said check was delivered that a prior check for $7,250, given by defendant to plaintiffs, would not be good until further funds

Brown et al. v Hance

would be placed in the bank, on which said $7,250 check was drawn and for which reason the amount of the said $5,000 check sued on was loaned to defendant; and further that plaintiffs definitely understood and agreed that they would provide the balance of the funds necessary to make said $7,250 check good. It was under these circumstances that plaintiff then made out a check to defendant's order for $5,000, which defendant endorsed and delivered to plaintiffs, together with his bank book on the bank on which same was drawn, to be deposited to defendant's account before presentation of the original check for $7,250, which $5,000 check A. R. Miller, one of the plaintiffs, accordingly deposited to defendant's credit agreeably to said arrangement, and the $7,250 check was then presented and honored.

It appears from the testimony that the original check for $7,250 was given plaintiffs for the sale to defendant by them of one-fourth interest in certain acreage under lease by plaintiffs in Wayne County, Kentucky, as well as for an interest in a well which plaintiffs told defendant was then producing 40 barrels a day, and on the faith of which the said $7,250 was partially delivered to plaintiffs by defendant, when in fact said well was producing only 20 barrels a day.

Plaintiffs further advised with and counseled defendant in his proposed removal from Allegheny County, Pennsylvania, as to the best location for him, they advised him to remove to Kentucky, while defendant selected Dayton, Ohio, his former home.

Defendant further testified that it was agreed by and between him and plaintiffs that the $5,000 check was not to be paid by him until he had realized as his share of the profits of said enterprise, sufficient money with which to pay same, and that no such profits have yet arisen and that therefore no money was due on said $5,000 rate when said writ was issued.

These facts concering the time when said $5,000 was to become due were, however, eliminated at the hearing by a mutual agreement of the parties with the Court, that the question of the maturity of the note should not be considered; defendant insisting, however, all the time, that the insertion in the note, “With Interest” was otherwise inconsistent with the time—one day-fixed in the note for its payment, and conclusive of the defendant's contention that it was only to be paid out of the proceeds of the Kentucky purchase, which we are inclined to believe is reasonable. Although, as above stated, the maturity of the note sued upon has been conceded for the purposes of this case.

The main issue, if not the sole one, is: Was defendant at the time of the issuance of this attachment, about to remove from the jurisdiction of the Court with intent to defraud his creditors? We find from the entire evidence that there was but one debt owing hy defendant, and that only for $160, which was in serious dispute, but which has since been paid. As matter of law, however, the alleged indebtedness sued upon-if maturedand that question is not now before us as above shown, would be sufficient to sustain the attachment if defendant was about to remove with intent to defraud his creditors, the plaintiffs.

The vital question then is: Was defendant about to remove with that purpose? That he intended to remove is clear from the evidence, and that plaintiffs knew of such is equally evident, for we find from the testimony as above, stated that they had consuljed with defendant as to the proposed moving either to Dayton or Kentucky. It was developed during the hearing that defendant had sold an automobile shortly before this proceeding was started, but such a fact standing alone in these days of barter and exchange of those instruments of locomotion and transportation is not persuasive of the intent to defraud, especially when applied to the special circumstances of this case. Besides, the purchaser learned it was for sale

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