of any public officer, or increase or diminish his salary or emoluments, after his election or appointment."

"In view of this constitutional inhibition we are compelled to give the Act of 1893 such a construction and effect as will prevent it from increasing or lessening the fees of aldermen, justices of the peace and constables in office at the time of its passage. The act must be held to apply to and regulate the fees of all officers of the classes mentioned, elected after its passage, and also to every fee of every such official elected before the act was passed, where the amount thereof as fixed by the new act is neither greater nor less than that allowed by the statute or statutes previously in force; but where the Act of 1893 makes any fee of any officer elected before its passage more or less than was given by the old law for a similar service, the old law in such case still governs."

In Edwards vs. McLean, 23 Sup. Ct., 43, (1903), the Court, passing upon legislation affecting the compensation of constables for services rendered, held that the acts under which recovery was sought to be made were unconstitutional, and particularly held that constables were public officers within the meaning of the term so employed by the constitution. The lower courts of the state have passed upon the question and have uniformly held that constables were public officers, as a reference to the following decisions will disclose:

Commonwealth vs. Kromer, 4 Pa. County Ct. R., 241

(1887).

Rupert vs. Chester Co., 2 Dist. R., 688 (1893).
Evans vs. Lloyd, 12 Dist. R., 380 (1902).

Hulsizer vs. Northampton Co., 19 Pa. Co. Ct. R., 385.
Hancox vs. Vanango, 20 Pa. Co. Ct. R., 508.

Counsel for the plaintiff argued that the office of constable was a constitutional office and not a public office, and, therefore, the office would not fall within the provisions of Article 3, Section 13, of the Constitution. The answer to this proposition we find in an opinion by Mr. Justice Mestrazat, of the Supreme Court of Pennsylvania, in Commonwealth vs. Moffat, 238 Pa., 255 (1913), which holds:

"It is settled by many decisions of this Court that the prohibition against the extension of the term of a public officer or the increase or diminution of his salary

after his election or appointment, contained in Section 13, Article 3, is not limited to constitutional officers."

Having reached the conclusion that the office of constable is a public office, it naturally follows that it falls within Article 3, Section 13 of the Constitution of Pennsylvania, which provides:

"No law shall extend the term of any public officer or increase or diminish his salary or emoluments after his election or appointment."

The Act of May 14th, 1913, being in conflict with the above article and section of the Constitution, is, therefore, held unconstitutional.

Now October 26th, 1914, judgment is entered in favor of the defendant.

HOFFMAN vs. COUNTY OF LEHIGH

-

Constable-Fees-Aet of May 14, 1913, P. L. 203 – Constitution, Art. 3, Sec. 13.

A constable appointed, after the passage of the Act of May 14, 1913, P. L. 203, to fill a vacancy caused by the death of one elected prior thereto cannot receive the benefits of said Act, allowing a fee to visit, at least once in each month, all the places within his respective jurisdiction, where any liquors are sold or kept.

In the Court of Common Pleas of Lehigh County. No. 19 October Term, 1914. John A. Hoffman vs. County of Lehigh. Case Stated.

Warren K. Miller, for Plaintiff.

Max S. Erdman and Claude T. Reno, for Defendant.

Groman, P. J., October 26, 1914. The above case is on all fours with the case of Albert H. Gessner vs. County of Lehigh, No. 18 October Term, 1914, this day decided, differing only in that the plaintiff in this case was appointed to fill a vacancy caused by the death of Osbin Laub, constable of the Borough of Catasauqua, State of Pennsylvania, after the passage of the Act of May 14th, 1913. The question involved in. this proceeding is whether an appointee for the unexpired term of the office of constable is entitled to an increase of the emoluments of the office while serving the unexpired term thereof?

In No. 18 October Term, 1914, the court held that a constable was a public officer, and that the Act of May 14th, 1913, was unconstitutional. Is an appointee, appointed to fill a vacancy, in a better position in so far as an increase in emoluments is concerned than the original officer? We think not. The constitutional inhibition continues during the term of the office.

In Storke vs. Goux, 129 California, 526 (62 Pacific Reporter, Page 68), in passing upon a constitutional provision prohibiting an increase in salary "after his election or during his term of office," the Court held that an increase does not accrue in favor of one appointed to fill a vacancy in the unexpired term of an office, such increase does not commence to run until the expiration of the term for which the incumbent has been elected, and that this result cannot be evaded either by the original incumbent resigning and procuring himself to be re-appointed, or by resigning and allowing some other person to be appointed in his place.

Now, October 26th, 1914, judgment entered for the defendant.

BOROUGH OF BETHLEHEM ET AL. vs. L. & N. E. R. R. CO. ET AL.

Railroads Siding Across Street-Borough's Consent.

The defendant railroad company, being the successor of a railroad incorporated under the Special Act of May 1, 1861, P. L. 586, has the right to construct a siding across the streets of the plaintiff borough without first securing the consent of the borough authorities.

In the Court of Common Pleas of Lehigh County. No. 1, April Term, 1914. In Equity.

George R. Booth, for Plaintiffs.

Butz & Rupp, for Lehigh & New England R. R. Co.
Allen W. Hagenbach, for James A. Ebert.

Groman, P. J., October 15, 1914.

FINDING OF FACTS.

First: The Borough of Bethlehem is a duly incorporated borough under the laws of the State of Pennsyl

vania, and now includes what was formerly the Borough of West Bethlehem, County of Lehigh, and also what was formerly the Borough of Bethlehem, County of Northampton, State of Pennsylvania.

Second: The Lehigh and New England Railroad Company is a railroad corporation duly incorporated under the laws of the State of Pennsylvania, under the provisions of an Act entitled, "An Act to authorize the formation and regulation of railroad corporations," approved April 4th, 1868, P. L. 62.

Third: Conestoga street, over which the defendant railroad company laid a railroad crossing or siding, is about twenty-five feet in width, and is a street in the aforesaid borough running in a northerly and southerly direction, the width of the street at the point of crossing by the railroad company being twenty feet, this also being the width in actual use. The street is unimproved, with four buildings abutting thereon; no sidewalks; is not in general public use, and is largely given over to heavy traffic.

Fourth: The siding in question branches off from the main line of the railroad; was laid by the defendant on December 18th, 1913; is so constructed as to offer an easy grade with the least possible obstruction to the public highway; and is adapted for its purposes.

Fifth: The siding branches out in a southerly direction across lot of Oscar H. Rausch, one of the plaintiffs herein; thence in the same general direction to lot of James A. Eberts, one of the defendants; thence on said lot to a chemical plant located thereon.

Sixth: Oscar H. Rausch, one of the plaintiffs, granted to the defendant company the right, liberty and privilege of constructing, maintaining and operating the siding over his lot, and that grant was secured without fraud or misrepresentation. The siding is necessary for the use of the manufacturing plant now located on the lot owned by James A. Eberts.

Seventh: The Bethlehem Railroad Company was incorporated under special act of the General Assembly of Pennsylvania, approved May 1st, 1861, P. L. 1862, page 586, and by special act of the General Assembly, approved April 8th, 1864, P. L. 360, was authorized to change its name to Lehigh and Lackawanna Railroad Company.

Eighth: The Lehigh and Delaware Railroad Company, a Pennsylvania corporation, succeeded to all the rights, privileges, property and franchises of the Lehigh and Lackawanna Railroad Company by virtue of a judicial sale of the rights, property, franchises and interests of the Lehigh and Lackawanna Railroad Company.

Ninth: The Lehigh and Delaware Railroad Company, on October 14th, 1904, was merged and consolidated with the Lehigh and New England Railroad Company, as authorized by the laws of the State of Pennsylvania.

Tenth: The siding now in question is along the main line of what is now the Lehigh and New England Railroad Company, but was formerly a part of the Bethlehem Railroad Company.

Eleventh: The special act of the legislature under which the Bethlehem Railroad Company was incorporated, contains the following provisions:

"Section 3. And the said company may build lateral roads not exceeding three miles in length, provided said lateral roads shall only be used for the purpose of bringing material to the main line."

Section 8, inter alia, contains the following pro

vision:

"That upon completion of the said road or any portion thereof, or the lateral roads, the same shall be esteemed a public highway for the conveyance of passengers and transportation of freight, subject to such rules and regulations in relation to the same as the president and directors may prescribe and direct."

CONCLUSIONS OF LAW.

The only question involved is-Has the defendant railroad company the right to construct a siding across the streets of the plaintiff borough without first securing the consent of the borough authorities? Upon a reference to early railroad legislation in the State of Pennsylvania the following facts appear:

The first general act passed by the legislature of the State of Pennsylvania, relating to the incorporation and regulation of railroad companies. was entitled, "An Act to regulate railroad companies," and was approved on the 19th day of February, A. D. 1849, P. L. 1849, Page 79.