Commonwealth v Hobbes.

cuous article. Nevertheless, we may rightly determine the effect on the mind of the dog by certain external phenomena usually manifested in the movements of the animal, whereof we may take judicial notice as facts of natural history, and, if so, then we may rightly assume like knowledge in the defendants.

Obviously it was in their minds, assuming their possession of such, to produce on the mind of the dog, likewise assuming its possession of such, an emotion of terror sufficient to inspire rapid flight in the animal's effort to escape from some mysterious object, mysteriously pursuing, and invested by the untutored canine imagination with some mysterious power of destruction.

Of course, a single moment's reflection and inspection by the dog would have dispelled the terror by demonstrating the perfectly harmless character of the tin can, and herein is suggested an element of contributory negligence which would inure to the defendants if in law they and the dog stood upon the same plane of intelligence, as undoubtedly they did stand in fact.

By inexorable process of logic, therefore, and without further analysis of the psychological process, we reach the blunt conclusion that the defendants intended to terrify the dog, that such an intention is essentially cruel, and that the conviction was proper unless we should hold that in order to consummate the crime of cruelty in tying a tin can to a dog's tail, there is requisite not only the intention to terrify but the actual production of terror.

It can hardly be questioned that a proper definition of the crime, involves not only the cruel intention, but the cruel result, and in the case at bar, unfortunately for the Commonwealth, the cruel result was not established by the evidence.

The defendants intended to terrify the dog, but the dog was not, in fact, terrified, nor did it even feel insulted. Terror might have developed if the opportunity to do so had not been frustrated by the intervention of the bull dog.

Thus doth law move in a mysterious way its wonders to perform. The bull dog, an unforseen factor in the affair, has occasioned all the trouble which affects the case. It inflicted all the pain which was suffered by its canine congener, it inspired the present prosecution, with the direful consequence of the present opinion, and, most reprehensible element of all, its performance now protects cruel-hearted men from receiving their just deserts.

As a Court, we must be hard-hearted as well as hard-headed in our conclusions, but as a man of humane impulses, we warn all tyers of tin cans to dogs' tails, that when this cowardly conduct is accompanied by the anticipated results of terror and flight, we shall be glad to impose condign punishment.

The Commonwealth thus may be consoled by the reflection that while losing the case it save a priceless principle.

In accordance with the views herein expressed, the judgment of the magistrate is reversed, with a dissenting opinion by the lady stenographer who participated in the hearing.

Commonwealth of Pennsylvania v Abram Adsit et al.

Criminal Law-Township Supervisors—Neglect to Perform Duties Indictment Jurisdiction-Acts of 1915 and 1917.

Sections 19 and 20, of the act of July 22, 1915, P. L., making it an indictable offense for supervisors of township roads the right to keep said roads in repair, were specifically repealed by the General Township Act of July 14, 1917, P. L. 840, so that such malifeasance as the failure to properly construct and maintain highways within their townships is no longer a misdemeanor or indictment in the Quarter Session Court. The jurisdiction now by statute is in the justice of the peace. Indictment for failure to repair certain highways and to remove

therefrom loose stones quashed.

The Act of July 14, 1917, P. L. 840, having provided the procedure against township supervisors who neglect to carry out the provisions of the act an indictment at common law in the quarter sessions court will not lie. The act commits this jurisdiction to a justice of the peace.

Misfeasance in Office. Sur Motion to Quash Indictment. No. 30 November Sessions, 1919. Q. S. Crawford County.

Albert L. Thomas, for defendant.
August Delp, for commonwealth.

PRATHER, P. J., September 9, 1920.-Defendants are indicted as supervisors of Greenwood Township for neglect to keep in repair certain public highways within said Township and for failure to remove therefrom loose stones in the beaten track.

The question involved is whether the offence complained of is indictable either at common law or under the statutory law, the general duties of supervisors with reference to highways, the non-discharge of which is complained of in this indictment, together with the penalties for failure to discharge, are enumerated in the act of July 22, 1915, P. L., 915. Sections 19 and 20 of this Act make such misfeasance indictable as a misdemeanor. The said act repealed all acts inconsistent therewith, and therefore its penal provisions seem to have furnished the only remedy for the default complained of. It is apparent that the district attorney relied upon the sections cited as authority for the indictment.

These sections, however, were specificially repealed by the General Township Act of July 14, 1917, P. L., 840 (995). Article III of Chapter VI of this General Township Act beginning at page 865 ennumerates the duties of supervisors relative to the maintenance of public highways, and Section 240 of this Act, in the same chapter, provides the penalty for failure to discharge these duties as follows:

Any township supervisor, township superintendent, roadmaster, or contractor, employed to work on the roads, bridges and highways of any township of the second class, who shall violate any of the provisions of this act, other than those for the violation of which specific penalties are provided, or who shall fail, neglect, or refuse to carry out the provisions of this act, shall, upon conviction, before a justice of the peace, be sentenced to pay a fine of not more than fifty dollars, to be collected in the name of the township as other debts of like amount are collected. All such fines shall be paid to the township treasurer, for the use of the road fund.

Such misfeasance as the failure of supervisors to properly construct and maintain highways within their township is no longer a misdemeanor, and therefore no longer the subject of indictment in the quarter sessions under the statute. The jurisdiction now by the statute is in the justice of the peace.

Our second inquiry is whether such misfeasance is indictable at common law. This is answered by reference to the 19th section of the Act of March 21, 1808, 4 Sm., 332, Purdon's Digest, Vol. I, p. 271 which provides:

"In all cases where a remedy is provided or duty enjoined, or anything directed to be done by any act or acts of assembly of this commonwealth, the

Commonwealth of Pennsylvania v Abram Adsit et al.

directions of the said acts shall be strictly pursued; and no penalty shall be inflicted, or anything done agreeably to the provision of the common law in such cases, further than shall be necssary for carrying such act or acts into effect."

We are therefore of the opinion that the causes of complaint laid in the indictment are committed to the jurisdiction of a justice of the peace, and that an indictment in the court of quarter sessions will not lie. It follows that the indictment should be quashed.

Right to Incorporate

In re Dentistry.

Profession-Legislative Intent-Franchise or License.

The legislature in authorizing the formation of corporations to carry on "any lawful business" did not intend to include the professions, so that a charter cannot be granted to practice dentistry. The right to practice dentistry is in the nature of a franchise or license, and cannot be sold, assigned or inherited. It is not a business open to all but a personal right regulated by an act of assembly.

I return herewith the application for a charter of the "White Dentists," which was referred to me with a request for an opinion as to whether its purpose is within the Acts of Assembly authorizing the granting of charters.

The application states the purpose to be "cleaning, treating, extracting, filling crowning, and bridging teeth; manufacturing and installing artificial teeth and rendering the services and attention customary, necessary and usual in dentistry, and oral hygiene; the same to be performed by duly and legally qualified dentists."

It is contended that this purpose is within the letter and spirit of the Act of July 9, 1901, P. L., 624, which amends the 18th Section of the Act of April 29, 1874, P. L., 73, by authorizing the formation of companies "for the transaction of any lawful business not otherwise specifically provided for by Act of Assembly."

As stated by Attorney General Carson In re Sayre Trackless Trolley Co., 13 Dist. Rep., 602:

"These words, it must be admitted, are extremely broad, and their vagueness is not relieved by any attempt at a definition of the words 'lawful business.' On the surface, the words import any business not contrary to law; that is not prohibited by law or conducted by methods not forbidden by law."

The question arises whether the purpose of the proposed corporation is not unlawful because it contemplates the conduct of an inherently lawful business in a method forbidden by law. The manifest and express purpose of the applicants for this charter is to practice dentistry in the State of Pennsylvania. The right to practice dentistry in this State is regulated by Act of Assembly. It is in the nature of a franchise or license from the State. It cannot be sold, assigned,

In re Dentistry.

or inherited, but must be earned by hard study and good conduct. It is attested by a certificate or license from the Board of Dental Examiners of the State. It is not a lawful business except for persons who have complied with all the conditions required by statute. The practice of dentistry is not a business open to all, but a personal right, limited to persons of good moral character, with special qualifications ascertained and certified after a long course of study and a thorough examination by the Board of Dental Examiners.

Section 3 of the Act of May 3, 1915, P. L., 219, provides, inter alia, as follows: "A person shall be deemed to be engaged in the practice of dentistry within the meaning of this Act * * * who is manager, proprietor or conductor of a place for performing dental operations."

The same Act provides in Section 1 thereof, as follows:

"Any person who shall practice dentistry without having been registered in accordance with the provisions of this Act shall be guilty of a misdemeanor" etc. The language of the sections of the Act of 1915 quoted, make it plain that a corporation which conducts a place for performing dental operations, is engaged in the practice of dentistry. It is impossible for a corporation to be examined as to its fitness to practice dentistry. It cannot secure a license so to practice. As these conditions cannot be performed by a corporation, it follows that the practice of dentistry by it is an unlawful business for a corporation to engage in. Manifestly, it was not the intent of the Legislature, when it undertook to regulate the practice of dentistry, and to issue licenses for the practice thereof, that others than natural persons should receive a license to practice.

I am not unmindful of the fact that there is precedent in Pennsylvania for the granting of a charter to a corporation whose purpose is to practice dentistry. I believe, however, that such corporations are formed for the purpose of evading the provisions of the law regulating the practice of dentistry.

I am of opinion that the Legislature in authorizing the formation of corporations to carry on "any lawful business," did not intend to include the professions.

When the provisions of the law regulating the practice of dentistry are read in connection with the law relating to the forming of business corporations, it is obvious that they do not relate to the same subject-matter.

If there ever was any justification for the granting of a charter to a corporation whose purpose was to practice dentistry, on the ground that it was a lawful business, the Act of 1915 referred to, makes it unlawful to grant a charter to a proposed corporation whose purpose is to practice dentistry in this State. You are advised, therefore, not to issue the letters-patent to the White Dentists, as applied for.

Very respectfully yours,

WM. I. SCHAFFER,
Attorney General.

McKeever et al. v City of Pittsburgh.

Negligence-Fall on Sidewalk- -“Slipped”—Weather Conditions—Motion for Judgment N. O. V.

A city was held not liable in damages for injuries caused by Plaintiff's fall on a sidewalk which happened at night and at a poorly lighted spot on a sloping sidewalk when it was snowing. It was not sufficient to say that Plaintiff "slipped." The city would not be liable simply for a fall caused by weather conditions.

Motion for Judgment N. O. V. No. 1013 July Term, 1917. C. P. Allegheny County.

K. P. & M. R. Marshall, for plaintiff.

Chas. A. O'Brien, City Solicitor and Thos. M. Benner, Assistant City Solicitor, for defendant.

Before SHAFER, P. J., KLINE and DREW, JJ.

DREW, J., August 6, 1920.-This is a suit to recover compensation for damages which plaintiffs claim they sustained by reason of the negligence of defendant. The facts are briefly these:

On January 24, 1917, about 9:15 in the evening of that day, the plaintiffs, Mr. and Mrs. McKeever, accompanied by their young children, were returning to their home, in what is known as Brookline, City of Pittsburgh. They had left the street car and were walking upon a boardwalk constructed and maintained by the defendant, the City of Pittsburgh. It was snowing at the time and the boardwalk was wet and not well lighted, and Mrs. McKeever fell and was severely injured. In describing how the accident happened she said:

"I was proceeding with my little girl, I had her by the right hand, and I walked along, and just my feet, just fell, I just fell quickly, I didn't stumble and fall, I just fell quickly, just to the ground."

On cross-examination she testified as follows:

"Q. And your feet went out from under you, you say?

Q. You don't know whether you stumbled or whether you slipped? I didn't stumble, I know.

A.

Q. Or whether your feet slipped off the sidewalk?

Q.

Well, I say you don't know whether your feet slipped off the sidewalk on to the earth, whether you slipped down toward the street, or you don't know anything about it, except that you just fell? A. I fell to the ground.

Q. That's all you know about it?

A. Yes."

The only other evidence with reference to the actual happening of the accident is contained in the testimony of Mr. McKeever, a plaintiff: "Q. Did you see your wife fall this evening?

A. Yes, I did. I was walking right behind her. I might say I was carrying our child, the youngest child, and she was leading the older one.

Q. Do you know what made your wife fall?

A. She slipped."