Beatty's Nomination

a registered Democratic voter in the 5th District of the 3rd Ward of Wilkinsburg, there being no such district in said ward. This is a fatal defect, and the evidence seems to indicate that E. N. Gay is the only Democratic voter answering the description of the party named in the nominating petition which is signed E. M. Gay. This seemingly indicates fraud and corruption somewhere, and for this reason amendment will not be allowed.

an

And now April 17, 1920, the third objection to the nominating petition is hereby sustained and the nominating petition is set aside. The Prothonotary is directed to certify this order to the Secretary of the Commonwealth.

In Re: Nominating Petition of Frank C. Beatty as a candidate for delegate to the Democratic National Convention Nomination of candidates-Petition-Evasions-Amendment.

A nomination petition will not be declared invalid on account of erasures in the filling in of the blank spaces on the heading, in the absence of evidence that the erasures were made after the petition had been signed.

The fact that a candidate has disregarded the command of a subpoena to appear and testify in support of objections filed to his petition, cannot be permitted to prejudice the rights of electors who have exercised their rights of citizenship.

Application to set aside nominating petition. C. P. Dauphin County, No. 265, June Term, 1920.

B. B. McGinnes and W. J. Brennen for petition.

Henry, P. J., 52d Judicial District, specially presiding, April 20, 1920.

The requisite number of signers to this petition is 200. The number of signatures upon the three sheets of the petition filed is 236. The first sheet shows upon its face that 15 of the signatures were attached on the date following the making of the affidavit by the party who certifies to the signatures. The Court is asked to declare the third sheet invalid because it shows evidence of erasure in the filling in of blank spaces of the heading. It may well be that these erasures were made prior to the signing, and in the absence of some evidence to establish that the erasures were made after the signing, the Court would not sustain this contention. A handwriting expert was called, who testified that certain groups of signatures were in one handwriting. He testified positively with respect to 30 of these signatures in eight groups. Even conceding his opinion to be correct, it might be that eight of these sig

Sweeney's Nomination

natures were by parties qualified to sign, which would leave only 22 which might be termed signatures not made by the parties themselves and for the making of which no authority has been shown. He also testified that he thought 18 other signatures were in one handwriting. This is not very persuasive evidence when we consider that it is the opinion of an expert. Conceding the 22 in be invalid, there would still be a sufficient number of valid signatures to the different sheets of the petition if properly certified. The candidate himself has not placed himself in a very enviable position when he has disregarded the command of a subpoena to appear in Court and testify in support of the objections filed to his petition, but this cannot be permitted to prejudice the rights of the electors who have here exercised their rights of citizenship. There is no evidence of fraud, and an amendment of the faulty affidavit will be permitted.

And now, April 20, 1920, the allegations of the 6th paragraph of the objecting petition are sustained, the others are overruled and dismissed, with leave to amend to correct this defect, if such amendment be filed in the office of the Secretary of the Commonwealth on or before noon of Friday, April 23, 1920. In default of such Amendment, the nominating petition is set aside. The Prothonotary is hereby directed to certify this order to the Secretary of the Commonwealth.

In Re: Nominating Petition of Daniel Sweeney Nomination of candidates-nominating petition-Residence of candidate.

The Act of July 12, 1913, P. L. 719, does not require a candidate for a party office to set forth his residence in his nomination petition. Application to set aside nominating petition. C. P. Dauphin County, No. 270, June Term, 1920.

B. B. McGinnis and W. J. Brennen for petition.

Henry, P. J., 52nd Judicial District, Specially Presiding, April 17, 1920.

The only evidence submitted was that to sustain the fourth paragraph of the objecting petition, in which it is alleged that the residence given by said Daniel Sweeney at 401 Penn Avenue, Pittsburgh, Pa., is not the residence of said Daniel Sweeney. The Act of 1913 does not require a candidate for a party office to set forth his residence, and whether the residence given by the said Daniel Sweeney in his affidavit and

Salary of Judges.

petition is correct or not is immaterial, and the error if existing is not one material to the nominating petition.

And now, April 17, 1920, the objections filed to the nominating petition of Daniel Sweeney are overruled and dismissed, at the cost of the objecting petitioners. This order is to be certified to the Secretary of the Commonwealth by the Prothonotary.

Salary of Judges.

Salary of judges-Increase of by increase of population as shown by census of 1920.

The increase in the salary of judges, due to increase in the population of their districts, as shown by the census of 1920, becomes effective as of the date of the legal ascertainment and official announcement of such increase of population and not as of January 1, 1920.

Attorney General's Department. Opinion to Charles A. Snyder, Auditor General.

Hargest, Deputy Attorney General, March 17, 1920.

This Department is in receipt of your request concerning the compensation of Judges, as affected by the decennial

census.

The Act of Congress, approved March 3, 1919, (Public— No. 325-65th Congress) providing for the fourteenth decennial census, requires the information to be obtained "as of the date of January first in the year in which the enumeration shall be made."

Necessarily the official announcement of the census will be somewhat delayed.

Under the Act of July 1, 1919, P. L. 708, the salaries of Judges of the Courts of Common Pleas are graded from $7,000 in districts having a population of less than 65,000 to $10,000 in districts having a population of 100,000 but less than 500,000, and the Judges of the Orphans' Courts receive the same salaries as Judges of the Courts of Common Pleas.

I understand when the census is declared some of the judicial districts will have a population which will put them in a different classification so as to increase the salaries of the judges, and your precise inquiry is whether such judges are entitled to that increased salary from the first day of January, 1920, the time fixed for the enumeration, or from the date when the census is declared.

Salary of Judges.

The Act of Assembly fixing the salaries of the judges does not say how the population of the judicial districts is to be ascertained.

In Luzerne County vs. Glennon, 109 Pa., 564, the Court held:

"For the purpose of classification of Counties under the Salary Acts the United States decennial census is the sole test of population. The population at an intermediate time. cannot be proved as a fact, but each county must remain in the class in which the last census found it until it is transferred to another class by a subsequent census."

In Culdin vs. Schuylkill County, 149 Pa., 210, a case in which the question was whether the population under the census of 1890 put the coroner in a different classification from that under the census of 1880, the Supreme Court said:

"In the absence of any legislative provision for otherwise ascertaining the fact, the population of a county is to be determined by the last Federal census."

It, therefore, is apparent that the salaries of the judges are to be determined by the decennial census.

It has been settled that the salaries of judges may be increased during their terms

Commonwealth vs. Mathues, 210 Pa., 372.

The case of Lewis vs. Lackawanna County, 200 Pa., 590 is decisive of the question which you ask. In that case the District Attorney was elected November 6, 1900 and entered upon the duties of his office July 7, 1901. The census was announced in the press bulletin November 19, 1900, after the election. The question was whether the District Attorney was entitled to the fees applicable to the County of the population as shown by the census of 1890, or whether he was entitled to a salary as shown by the census of June 1, 1900, but announced in the press bulletin of November 19, 1900.

The Superior Court, 17 Superior Court, 25, reversing the Court below, held that while the census was not declared until the press bulletin of November 19, 1900, yet, under the Act of Congress, the enumeration having been made as of the first of June, when the declaration was made, it related back to the first of June and did not relate to the date on which the announcement was made.

The Supreme Court, reversing the Superior Court, in an opinion by Mr. Justice Mitchell said in part:

"Before the fact can become a part of the State law and be made the basis of action, it must be established by competent

Haldeman, et al. vs McGraw, et al.

evidence. It follows, therefore, that it is not the mere existence of the fact that must govern its application, but its legal and official ascertainment.'

"But it is argued that as the census was taken as of June 1, 1900, the fact must be taken to be established as of that date without regard as to when the result is made known. This will not help the difficulty. There is no retrospective force in the census act, nor was any such effect intended. A date certain was necessary to insure correctness, uniformity, the avoidance of duplication, etc., and that is all that was intended. * * * * * The only escape from such intolerable inconvenience and confusion is by adherence to the logical principles of the law that the fact becomes applicable, only from its legal ascertainment."

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I, therefore, advise you that the additional salaries of any judges whose salaries are increased by the population of the judicial district as shown by the decennial census will not take effect as of January 1, 1920, but as of the date of the legal ascertainment and official announcement of the fact by the Director of the Census.

Richard C. Haldeman and DeWitt A. Fry, et al., Plaintiffs, vs James McGraw Company, and the Philadelphia & Reading Railway Company, Defendants.

Streets-Right of abutting property owner to use and occupation for building purposes-Equity-Preliminary injunction

The right of an abutting owner to use a portion of a city street arises from common law custom and is not dependent upon Municipal authorization. It would seem that the city could not prevent the exercise of this right and that its authority would be restricted to imposing reasonable restrictions in the exercise of police power and the imposition of a reasonable license fee to cover inspection and supervision.

A railway company and its contractor, under license granted by a city, have the right to the use and occupation of a reasonable portion of a street adjoining the railway company's right of way, for the purpose of reconstructing a bridge forming part of the railway company's system.

The office of a preliminary injunction is to preserve the status quo, and to invoke its aid there must be a clear invasion of plaintiff's right, there must be no adequate remedy at law, immediate and irreparable injury must be impending, and the threatened injury must not be speculative.

Motion to continue preliminary injunction. C. P. Dauphin County, No. 655, Equity Docket.

Wm. M. Hain and Wm. M. Hargest for plaintiffs.