Commonwealth v. Cutsavage.

ferences; and until he has obtained such jurisdiction, none can be acquired by us through his return. It is held in Com. v. Young, 20 Dist. R. 191, that the transcript or return of a justice of the peace must show compliance with the 3rd section of the Act of 1909 before a hearing has been entered into, and that it must also show that the evidence satisfies the justice that the prosecutrix's danger of being hurt in body or estate is actual and that the threats were made by the defendant maliciously and with intent to do harm, as stated in the act, and we are inclined to approve such a practice. Our experience is that by far the major portion of surety cases hitherto returned to this court should have been disposed of by the respective justices of the peace returning the same to court, for the evidence has rarely made out a case of surety of the peace as contemplated by the statute law of this state.

The return is quashed.

WHETSTONE V. WILLIAMS ET AL.

School Code of 1911-Ouster of school board-Threats.

When ouster proceedings under the School Code of May 18, 1911, P. L. 309, appear to have been instituted in pursuance of a threat to do so if a certain teacher was not appointed, the proceedings will be dismissed.

Rule to remove directors. C. P. Schuylkill Co., Nov. T., 1918, No. 12.

J. O. Ulrich, for rule.

R. J. Graeff, contra.

BERGER, J.-This is a petition filed by ten resident taxpayers of the School District of Rahn Township for the removal of O. B. Williams, John Stapleton, Herman Fenstermacher, Stewart Kemp and Archibald McMichael, the school directors of the said dictrict, for their neglect to perform certain duties imposed upon them by the provisions of the School Code of May 18, 1911, P, L. 309. It is alleged that there was paid to O. B. Williams, the treasurer of the school district, $100 for his services for the year 1917, which is $24.36 in excess of the amount he was legally entitled to receive. This excessive amount paid to the said O. B. Williams was refunded by him to the school district on Aug. 28, 1918, upon the discovery of the error which was the basis of the payment to him, before this petition was filed.

It is further alleged upon information and belief that, in violation of section 403 of the of the School Code, the above named directors appointed a treasurer, teachers, janitors, a truant officer and an enrollment officer, and elected a secretary and treasurer, fixed the salary of teachers and the length of the school term, without an entry upon the minutes of the school board showing the affirmative vote of the majority of the members of said board in favor of such action by recording their names upon the minutes. These allegations are established by the evidence. The minutes merely show that action upon the above stated matters was taken by the board, and that the motions relating thereto were carried, without stating that action on said motions was unanimous, and wihout recording the names of those directors voting either in the affirmative or in the negative. It does not appear, however, from the evidence that in the said matters any members of the school board that were present voted in the negative.

When the case came on for hearing, none of the petitioners appeared, and their counsel established his case by the minutes of the

Whetstone v. Williams et al.

school district. The respondents proved that Clarence E. Whetstone, one of the petitioners, had threatened them with proceedings for their removal of they failed to elect a school teacher whose election he urged upon them. The teacher was not elected, and this proceeding followed. After the respondents had closed their case, the said Clarence E. Whetstone appeared in court with several others of the petitioners, and, upon his application, was heard in rebuttal. He admitted that he had threatened the respondents with proceedings for their removal if the teacher whom he favored was not elected by them, and failing to secure her election, he became the actor in filing this petition. The evidence establishes that he is the enrollment officer of this school district, and that he was chosen by this school board without a proper record of their votes having been made of his election upon the minutes as is required by the Code.

This proceeding is commenced under the provisions of section 217 of the School Code, under which our power of removal is discretionary: Summit Hill School Directors, 258 Pa., 575, 578. We are of the opinion that this proceeding was not instituted for the promotion of the public good, but for the gratification of private malice. It has been held in quo warranto proceedings for the ouster of public officers that the motive of the relator may be considered by the court in exercising its discretion as to the issuance of the writ: Com, ex rel., v. Luker, 258 Pa., 602, 607.

It is also alleged that during the years 1917 and 1918 Herman Fenstermacher, one of the respondents, was a stockholder in the Hadesty Hardware Company of Tamaqua, Pa., and employed by it, and that during the said years while he was a school director, the said company furnished supplies to the school district, which were paid for to the said Hadesty Hardware Company by orders drawn upon the treasurer of the said school district. This allegation is admitted, but the question thus raised is not properly before us for our disposition in this case. For the reasons above stated, in the exercise of our discretion, the rule will be discharged. It is important that school directors should comply in every respect with the provisions of the School Code in the transaction of their business. In order to discourage the loose practice established by the evidence in this case, we consider it proper to visit the costs upon these respondents.

And now, Jan. 6, 1919, rule discharged. The respondents, O. B. Williams, John Stapleton, Herman Fenstermacher, Stewart Kemp and Archibald McMichael, are directed to pay the costs of this proceeding.

CITY OF ERIE V. FREUND.

Third class cities-Eminent domain-Security for damages to be tendered before taking-Act of June 1, 1907, P. L. 378—Act of June 27, 1913, P. L. 611-Article 1, Section 10, Constitution of Pennsylvania.

A municipal corporation of the third class, when building a public improvement for the preservation of the health and in the interest and welfare of the inhabitants thereof, where it is necessary to enter upon and to use and occupy private property, before such taking, use or occupation, is required by Section 10 of Article 1 of the Constitution of Pennsylvania and Section 5 of Article 14 of the Act of June 27, 1913, (P. L. 611) to tender sufficient security to the parties claiming or entitled to damages, and in the absence of such a tender by the City, an injunction restraining the owners of the private property from interfering with the City and its contractors will be dissolved.

Motion to dissolve preliminary injunction, No. 17 September, 1919. C. P. Erie County. In Equity.

S. L. GILSON, Esq., City Solicitor, and F. B. HOSBACH, Esq., Assistant City Solicitor, for plaintiff.

S. Y. ROSSITER, Esq., and A. P. HOWARD, Esq., for defendants.

WHITTELSEY, J., October 9, 1919.-This is a motion to dissolve a preliminary injunction. No answer has been filed by the respondent, or testimony taken in regard to the subject matter of the controversy. The motion is therefore in effect a demurrer to the plaintiff's bill. For the purpose of this inquiry the statement of facts alleged in the bill must be taken to be true.

The bill alleges inter alia that the plaintiff is a municipal corporation of the third class of Pennsylvania; that defendants are residents of the City of Erie and reside at No. 2963 Glenwood Park Avenue, and are owners of the premises where they reside; that the City of Erie on June 23, 1919, entered into a contract with the Erie Concrete & Steel Company for the construction of Section 5 of the Millcreek Improvement Project; that the said Millcreek Improvement Project is a public improvement, involving the changing of the watercourses of Mill Creek in the City of Erie, and the confining, paving and completely enclosing the said Mill Creek for the preservation of the health and in the interest and welfare of the inhabitants of the City of Erie.

That for the construction of the said improvement it is necessary for the City of Erie by its contractor, the Erie Concrete &

City of Erie v. Freund.

Steel Company to enter upon and to use and occupy the defendant's land; that defendants have forbidden the City of Erie by its contractor to enter on their lands and, by force and otherwise interfering with the City of Erie and its contractor from entering on the lands of the defendants for the purpose of completing the construction of Section 5 of the Mill Creek Improvement.

That in entering upon the lands of the defendants, the City of Erie is proceeding in a lawful manner, and in accordance with the right vested in the City of Erie by the State of Pennsylvania, and is in no way injuring the lands or prorerty of the defendants, and in no way injuring the lands or property of the defendants, and completion of the said improvement, the defendants have a complete and just remedy for any injury that may result.

Upon the filing of the bill in this case, a preliminary injunction was granted restraining defendants from interfering, hindering and preventing the City of Erie or its contractor and agent, the Erie Concrete & Steel Company, from entering upon the lands of the defendants with their materials, equipment and supplies, and from doing any act or in any way interfering with the said City of Erie, or its contractor and agent from entering upon the lands of the defendants for the purpose of completing the construction of Section 5 of the Mill Creek Improvement as above mentioned. No answer has been filed to this bill, and the defendants have made a motion to dissolve this injunction.

It is conceded that the plaintiff, being a municipal corporation, has the right of eminent domain and can lawfully enter upon and take the property of the defendants for public use; and that the Mill Creek Improvement Project is a public improvement, and is for the preservation of the health and in the interest and for the benefit of the City of Erie and its inhabitants.

The plaintiff claims the right under the Act of June 1, 1907 (Sect. 1, P. L. 378, 6 Purdon 6944), to enter upon and take the lands of the defendants for the purpose aforesaid; and claims under the second section of that Act they are not required to secure the defendants for payment of any damages that they may sustain by reason of the occupation of their lands prior to the entry thereon, as it is provided that such damages are not to be assessed until the work is completed as provided in said Act of Assembly.

The defendants claim the improvement in question is being made under the provisions of Article 14 of the Act of June 27, 1913, entitled "An Act for the incorporation, regulation and government of cities of the third class; regulating nominations and election of municipal officers therein; and repealing, consolidating and extending the laws in relation thereto. (P. L. 611)." Article 14 of