Auctioneers

Wherefore, we are of the opinion that the affidavit of defense is insufficient, and accordingly direct judgment to be entered in favor of the plaintiff and against the defendants for the sum of one hundred fifty dollars, with interest from August 8, 1917, the amount to be liquidated by the Prothonotary.

Auctioneers

Auctioneers-Commission-Act of April 9, 1859.

The Act of June 26, 1873, P. L. 332, repealed the Act of April 9, 1859, P. L. 435, in so far as the latter act authorized the Governor to issue commissions to auctioneers.

Attorney General's Department. Opinion to William C. Sproul, Governor of the Commonwealth.

Hargest, Deputy Attorney General, December 10, 1919.

We have before us the request of Robert E. Irwin, Attorneyat-Law, Philadelphia, asking that the Governor issue a commission as auctioneer of the fourth class, to Henry Brouse, Joseph McConnell and Daniel Neely, doing business as partners, pursuant to the Act of April 9, 1859, P. L. 435, upon the payment of five hundred dollars into the State Treasury, and giving security in the sum of two thousand dollars.

This is an unusual application. I am advised by the Secretary of the Commonwealth that there has not been a commission issued by the Governor under this Act of Assembly for forty years. In an opinion given to the Secretary of the Commonwealth, dated May 19, 1874, by Honorable Samuel E. Dimmick, Attorney General, he held that the Act of June 26, 1873, P. L. 332, repealed the Act of 1859, and that "henceforth auctioneers will not be commissioned by the Governor, but will receive a license or commission to transact business from the treasurers of their respective counties."

The Honorable Lyman D. Gilbert, Deputy Attorney General, advised the Secretary of the Commonwealth, on October 17, 1876, that "the purpose of the Act of Assembly of 26 of June, 1873, was, in my judgment, to introduce a uniform rule throughout the Commonwealth upon the subject of the commission or license fee to be paid by auctioneers, and its passage prevents the Governor from issuing commissions to auctioneers, even where earlier local laws had authorized him to do so."

It seems, however, that Attorney General Henry W. Palmer disagreed with this conclusion and with the opinion of Attorney General Dimmick, and held that the Act of 1873 did

Motor Vehicles

not repeal a local Act of March 19, 1869, authorizing the Governor to appoint an auctioneer for the borough of Chambersburg. However, since 1879 no requests for such appointments have been made.

In the case of Commonwealth ex rel. Luden vs Kutz, County Treasurer, 6 Dist. Rep. 571, which was a mandamus to require the County Treasurer to issue to the relator an auctioneer's license, Judge Endlich, after examining the local laws on this subject in Berks County under which auctioneers were commissioned by the Governor, held that the Act of 1873 repealed all previous legislation, including local laws, as to the amount and manner of payment to be exacted for the privilege of engaging in the auctioneering business, and that thereafter licenses to auctioneers must be issued by the County Treasurer and not by the Governor.

It is apparent that, notwithstanding there was a conflict of opinion between Attorney General Palmer and Attorney General Dimmick and Deputy Attorney General Gilbert, the opinions of the latter have been acquiesced in and are consistent with the decision of Judge Endlich above referred to. We also acquiesce in the opinion of Attorney General Dimmick and the decision of Judge Endlich, and advise you that the Act of 1873 repealed the Act of April 9, 1859, in so far as the latter Act authorized the Governor to issue commissions to auctioneers.

Motor Vehicles

Motor Vehicles-License

A license to operate a motor vehicle on the highways of the commonwealth may be issued to a person who has lost his arm, or any part thereof, provided such person has satisfied the State Highway Commissioner of the propriety of granting him a license.

Attorney General's Department. Opinion to Benjamin G. Eynon, Registrar of Motor Vehicles.

Gawthrop, Deputy Attorney General, December 18, 1919.

I have your letter of the seventeenth instant asking to be advised whether or not under Section 10 of Act No. 283, approved June 30, 1919, a person with but one arm is construed to be physically incapacitated or whether he can obtain a special license provided for by the said Section.

This Section of the Act referred to provides that certain. persons shall not operate any motor vehicle upon any public highway in this Commonwealth. Among the persons so pro

Motor Vehicles

hibited are those "physically incapacitated as defined in this Act:" The same Section provides further that "any person who has lost the use of one hand or both *** shall be considered physically incapacitated." If the provisions of the Act relative to this character of physical incapacity had ended at this point, persons who had lost an arm might not operate motor vehicles upon the public highways of the Commonwealth. There is in the same section of the Act, however, a saving clause which is as follows:

"Provided, That the State Highway Commissioner may, at his discretion, issue a special license or permit to a person who has lost the use of one hand only, upon the receipt of such evidence or demonstration as shall satisfy him that such person has had sufficient experience in the operation of a motor vehicle to enable him to do so without endangering the safety of the public."

There arises therefore your inquiry whether a special license or permit may be issued to a person who has lost the use of his arm as well as the use of his hand.

The physical incapacities defined in the Act are in relation to "hands," "feet," "eyesight" and "hearing." The use of these members or senses is made necessary to qualify one to operate a motor vehicle. It is a matter of common knowledge however, that some persons who have lost the use of an arm are competent operators of motor vehicles. The evident intention of the Legislature was to make it possible for such persons to continue to operate automobiles on the highways of the Commonwealth, and to that end that body lodged in the State Highway Commissioner the discretion of granting a special license or permit to such persons after he has received satisfactory evidence that such persons can operate a motor vehicle without endangering the safety of the public. In referring to this character of incapacity, the Act uses the words "lost the use of one hand" and the word "arm" is nowhere used. There is sound reason for this because the loss of the use of an arm includes the loss of the use of a hand; and if the Act had used the words "loss of the use of an arm," the loss of a hand only would not render one incapacitated. The hand is the important part of the arm in the operation of a motor vehicle. When its use is lost, the use of the arm is substantially destroyed. With this in mind, the Legislature used the word "hand" as including the word "arm" and not as distinguished from it. A construction of this Section of the Act which distinguished between the loss of the use of a hand and the loss of the use of an arm would be narrow and

Public School Employes' Retirement

unreasonable and contrary to the intent and spirit thereof. It would be sticking in the bark to hold that the proviso above quoted authorizes the State Highway Commissioner to issue a special license or permit to one who has lost his hand at the wrist, but does not permit him to issue such license or permit to one who has lost his arm at the elbow.

You are advised, therefor, that a license to operate a motor vehicle on the highways of the Commonwealth may be issued. to a person who has lost his arm or any part thereof, provided such person has satisfied the State Highway Commissioner of the propriety of granting him a license.

Public School Employes' Retirement

Public School Employes-Retirement-Act of July 18, 1917 Public School employes, who were such at the date of the passage of the Act of July 18, 1917, P. L. 1043, were required by that Act to make application for membership in Employes' Retirement Association, prior to June 30, 1919. Applications made subsequent to that date cannot be accepted.

Attorney General's Department. Opinion to H. H. Baish, Secretary, Public School Employes' Retirement Board.

Collins, Deputy Attorney General, December 17, 1919. This Department is in receipt of your communication of the 1st inst. asking to be advised whether applications by school employes for membership in the Retirement Association established by the Act of July 18, 1917, P. L. 1043, can be accepted after June 30, 1919. This request evidently relates to what are known as present employes under the Act. Paragraph 8 of Section 1 of the Act defines a "present employe" to mean

66* * * Any employe, as defined in paragraph seven of this section, employed in any capacity in connection with the public schools at the time this bill becomes a law, and any employe who was employed prior to such time and who shall become a contributor within three years from the date of expiration of such employment."

Section 3 provides, inter alia, as follows:

"An employe's retirement association is hereby organized, the membership of which shall consist of the following:

"1. All present employes, except those specifically excluded. by paragraph three of this section, who by written application to the Superintendent of Public Instruction shall elect, before

Public School Employes' Retirement

the first day of July, nineteen hundred nineteen, to be covered by the retirement system.'

In an opinion delivered by First Deputy Attorney General Keller, under date of March 28, 1918, you were advised that the date distinguishing a "present employe" from a "new entrant" was that of the approval of the Act, July 18, 1917.

On April 30, 1918, in answer to your inquiry of April 29, 1918, whether the Retirement Board "can accept an application for membership in the Retirement Association from a present employe after July 1, 1919," First Deputy Attorney General Keller, after first quoting the above quoted portion of Section 3 of the Act, said:

"This distinctly provides that all present employes, except those specifically excluded by paragraph three of the same section, in order to become members of the Retirement Association, must elect in writing before July 1, 1919, to be covered by the retirement system. The language admits of no misunderstanding and excludes present employes from membership in the Retirement Association unless they elect to make written application to the Superintendent of Public Instruction before July 1, 1919, to be covered by the retirement system."

While this latter ruling was not in the form of a formal opinion it had a like effect as though couched in such form. Its meaning is clear and gives to the provision of Paragraph 1, Section 3, its literal effect, namely, that every "present employe" except those excluded by Paragraph 3, was required to make the prescribed election within the prescribed time in order to become a member of the Association, and, as I understand it, your Board has so understood it.

It is now urged, as appears by the communication accompanying your request, that this ruling or the interpretation thereof to the effect that every "present employe," "except those specifically excluded by paragraph three" of Section 3, was required to file his election to be covered by the retirement system before July 1, 1919, in order to become a member of the Association, should be modified as to that class of present employes embraced within the second part of the definition of the term "present employe," as above quoted and italicized, so as to allow them to file such application later than July 1, 1919, at any time within three years from the expiration of their prior employment.

The difficulty with this proposition is in overlooking that while this provision in this definition of a present employe permits those who had been in the service prior to the passage