use or purpose of the corporation without the consent of the owners, or until just compensation shall be made therefor, according to the laws of this Commonwealth. (2) Complaint may be made to the next Quarter Sessions of the proper county by any person by entering into recognizance with sufficient security, according to law, to prosecute the same with effect, and any grievance, in consequence of any ordinance, regulation or act done or purporting to be done in virtue of this Act, and the determination and order of the said Court thereon, shall be conclusive. The appellant did not adopt the action of trespass as a mode of redress, because of the delay necessarily attendant upon getting a trial in the Common Pleas. He therefore, on the 4th day of September, 1882, when the next Quarter Sessions, after the commission of the grievance, met, presented his petition under the general borough law at No. 84, September Session of that Court, showing to the Court below his case at large, as herein stated. From the decree dismissing his appeal, and from the maltreatment by the Court below of his case from the beginning, the petitioner appeals to this Court. P. S. Newman, for appellees. In this case the testimony clearly shows that the county road had been located for one hundred years, and had been under the control of Connellsville Borough for seven years. There remained nothing for the Court to do but dismiss the appeal under the Act of April 3, 1851. March 10, 1884. THE COURT. Upon the plaintiff's own showing he is not entitled to redress in this form of proceeding. His complaint, if true, discloses merely a trespass on the part of the borough authorities in taking his land without compensation. It requires no argument to show that the town council could not by a mere resolution take his land to widen a street or entitled under the Act of 1851 to an issue in the Quarter Sessions to assess the damages he has sustained. The remedy provided by the third paragraph of the said 27th section was intended only for persons "aggrieved by any regulation under the provisions of this Act in relation to the laying out, widening and straightening the roads, streets, lanes, alleys, courts, and common sewers," etc. The proceedings below, as set forth by plaintiff, were not under the provisions of this or any other Act of Assembly, and he must be remitted to his common law remedy. Judgment affirmed. July, '83, 230. H. P. February 6, 1884. Borough of Connellsville v. Gilmore. Municipal claim-Obstruction to highway— A municipal claim can only be stricken off for some defect apparent upon the face of the record. The default of the owner of the property to remove obstructions to the highway after notice served upon him by the borough authorities to have the same removed is a prerequisite to the filing of a municipal claim under the Act of April 3, 1851 (P. L. 320), for the removing of such obstruction. Such demand and refusal must be averred in the claim, together with a statement, clearly set out, that the alleged obstruction was within the lines of the borough street, otherwise the claim is defective and may be stricken off on motion. Appeal of the borough of Connellsville from a decree of the Common Pleas of Fayette County, striking off a municipal claim filed by the said borough against the property of one Isaac T. Gilmore. The following is a copy of the municipal claim filed. for any other purpose. Such a summary mode of proceeding has never yet been recognized by The borough of Connellsville, in the county of Fayette, either the Legislature or the Courts. And back hereby files its claim, and statement of demand for work of both lies the constitutional prohibition. The and labor done in removing obstructions, to wit, in tak27th section of the Borough Act of 1851 (P. L. Main Street, in said borough, along and in front of a cering down a fence from a pavement or sidewalk, on East 326), expressly provides: "That like proceed-tain lot of ground bounded and described as follows: ings shall be had for the opening, widening, and straightening of the roads, streets, lanes, courts, and alleys laid out and ordained in accordance with the provisions of this Act as are provided by law for the laying out and opening of public roads within this Commonwealth." No such proceedings having been taken in this case, it is plain that if, as the plaintiff alleges, his fence was not within the lines of a public borough street, the act of the defendants in removing it was a trespass. For such an injury he is not Fronting 162 and .6 feet, more or less, on East Main Street, and bounded on the southwest by Alfred C. Gilmore, on the west by heirs of David Walker, deceased, K. Brown, containing one acre, more or less, and this and others, and on the northeast by lots laid out by John claim is filed against the said described premises. The party claimant is the borough of Connellsville, in the county of Fayette. The name of the owner, or reputed owner and occupier, is Isaac T. Gilmore. four cents for work and labor done as aforesaid, within The amount claimed to be due, is four dollars and fortythirty days last past, and percentage added in pursuance of law, the particulars, items, amounts, dates, and charac ter of work done and obstructions removed, being speci- | the statement in the body of the claim that the fically set forth in the bill hereunto annexed and made demand was " for work and labor done in removpart of the claim. To this was annexed the itemized bill referred to in the claim dated August 5, 1882. The defendant moved to strike off said claim, and on February 24, 1883, after the case had been several times argued, the Court ordered that the motion to strike off said claim be sustained and allowed. Whereupon the plaintiff took this appeal, assigning for error the action of the Court in sustaining and allowing the motion to strike off the lien. P. S. Newmyer, for appellant. March 10, 1884. THE COURT. The amount involved in this case is $4.44. It is our duty to consider it with as much care as if it involved as many thousands. The maxim de minimis non curat lex does not appear to prevail in this State. On August 18, 1882, the plaintiff filed a claim against the defendant, ast owner or reputed owner, for the cost of removing an obstruction on one of the streets of the borough. The obstruction consisted of a fence owned and main ing obstructions, to wit, in taking down a fence from a pavement or side-walk on East Main Street, in said borough." This description does not necessarily locate the alleged obstruction within the lines of a public street, and in a statutory proceeding of this nature no intendment will be made against the defendant. Every requisite to sustain the claim must appear upon its face. We find no error in this record. Judgment affirmed. Opinion by PAXSON, J. Common Pleas-Law. November 22, 1884. Nevins v. Manufacturing Co. Ejectment-Addition of terre-tenant as defendant under Act 13 April, 1807—Practice. Rule by terre-tenant to strike off judgment by default for want of appearance. tained by the defendant. The plaintiff con- C. P. No. 2. error. It is familiar law that a municipal claim can only be stricken off for some defect apparent upon the face of the record. If it is in proper form, and filed within the requisite time, mere matters of defence must be taken at the trial. A municipal claim, being the creature of statute, and unknown to the common law, must conform to the law of its creation. This claim is radically defective. The Act of 1851 only empowers the borough to file such a claim after the default of the owner or occupier to remove the obstruction after a demand upon him by the borough authorities to do so. Such demand being a pre-requisite, should have been averred in the claim. Again, there is no clear statement that the alleged obstruction was within the lines of a borough street. In the bill annexed to the claim, and which is made part thereof, it is stated to be for "removing obstructions from his (defendant's) side-walk, in taking down fence on East Main Street, in said borough." This leaves us in doubt whether it was the defendant's side-walk or the borough street that was obstructed. Nor is this obscurity aided by Rule by plaintiff to add the name of terretentant as a party defendant in an action of eject ment. The summons in ejectment had been issued against the Southwark Manufacturing Co., limited, defendant, and the sheriff had returned the writ under the Act of April 13, 1807. § 2 (Purdon's Digest, p. 533*), as served upon William Griffiths, tenant in possession, and nihil habet as to defendant. In pursuance of the provisions "Where any writ of ejectment shall be issued, and on the service thereof it shall appear to the sheriff that other persons not named in the writ are in possession of the premises, or part thereof, such sheriff shall add the name of such person or persons to such writ and serve the same, and on return thereof the prothonotary shall enter such additional defendant to the action, and they shall be parties thereto; and in case of any of the defendants not appearing, on motion to the Court, and on affidavit of the sheriff or other officer having served the said writ, stating the manner in which said service was made, and on the same being deemed by the Court a service agreeably to law, judgment may be enacted by default for such parts as he is possessed of; and a writ of possession may issue upon such judgment, and the action may proceed to trial for the residue against the other defendant or defendants. And the return by the sheriff of having served any such writ on the defendants marked served by him shall be evidence of such defendant or defendants being in actual possession of the premises or part thereof." of the same Act he had indorsed upon the writ the words: "William Griffith, 525 Wharton Street, August 4, 1884, tenant in possession." The name of William Griffith did not appear as a defendant in the docket in the prothonotary's office, nor was his name added by the prothonotary as a defendant as provided by the Act. Judgment was entered against William Griffith for want of an appearance which he now moved to strike off, and thereupon the plaintiff took the other rule to add Griffith's name on the record. W. W. Wiltbank, for the rule to add the name on the record. This question arises under the provisions of the Act of April 13, 1807, § 2, and is almost unknown in the practice of this county. The sheriff has returned under oath that he has made a service of the writ of summons on William Griffith, and has written his name as tenant in possession on the back of the writ. The difficulty seems to be how the sheriff can properly add the name of William Griffith as defendant to the writ so that the prothonotary may have authority to add his name in the appearance docket. It certainly would not be proper for the sheriff to write anything in the body of the writ over the seal of the Court. Ruddiman, contra. Rink v. The City of Philadelphia. Magistrate de jure-Right to salary from date of election-Salary prior to qualification-Contested election-Certificate by board of return judges to magistrate de facto and payment to him-Effect of such certificate and payment upon right of magistrate de jure—Vigorous and timely assertion of right-Public policy. Rule for judgment non obstante veredicto on points reserved. Debt to recover salary alleged to be due to plaintiff as magistrate of Court No. 20. The jury found the following facts: The judges designated to compute the returns of an election for magistrate of the city of Philadelphia, held February 17, 1880, certified that Robert J. Barr had received 29,912 votes, and that John Rink had received 29,897 votes, showing a majority of fifteen votes for Barr; whereupon the certificate of election was issued to Barr. March 17, 1880, a petition was filed contesting the election. January 17, 1883, the following decree was made in said proceeding by the Court: "And now, January 17, 1883, we decree and declare Griffith is no party on the record, and yet that at an election held in the city of Philadelthere is a judgment against him. THE COURT. There is no established practice, but the statute would be most conveniently complied with by the sheriff stating in his return his whole action, including the fact of his having found a person not named in the writ, in possession, and that thereupon he had added the name of such person to the writ, and served the same upon him. This return would then be sufficient authority under the statute for the prothonotary to add the name of such person on the docket, and for the Court thereafter to treat him as a defendant duly served. phia on the third Tuesday of February, A. D. 1880, John Rink received the highest number of votes, and was duly and legally elected a magistrate in and for said city." January 17, 1883, a certiorari was taken to the Supreme Court. April 9, 1883, the Supreme Court affirmed the judgment of the Court below. April 13, 1883, John Rink was duly commissioned by the Governor "to be a magistrate of Court No. 20, in and for the said city, hereby giving and granting unto you full right and title to have and to execute all and singular the powers, jurisdictions, and authorities, and to receive and enjoy all and singular the emoluments to a magisIn accordance with the opinion of the Court trate lawfully belonging, or in anywise apperthe sheriff amended his return, and the prothono-taining, by virtue of the Constitution and laws tary added the name of Griffith on the docket, of this Commonwealth. To have and to hold and thereupon the Court struck off the judgment this commission and the office hereby granted. by default, and allowed Griffith to enter his appearance. T. B. S. unto you for the term of five years, to be computed from the first Monday of April, 1880." Robert J. Barr took the oath of office and gave bond, as provided in the 7th section of the Act of February 5, 1875, on the 13th day of March, 1880. John Rink took the oath of office and gave bond, as provided in the 7th section of the Act of February 5, 1875, on the 14th of April, 1883. Robert J. Barr was commissioned by the Governor March 16, 1880; acted as magistrate from the first Monday of April, 1880, to April 17, the plaintiff at the election held in pursuance of law, he became legally and fully entitled to the office, the title was as complete then as it ever was, and no subsequent act lent the least force to the right to the place." 1883, and was paid the salary of magistrate of as soon as a majority of the votes were cast for the city of Philadelphia from the first Monday of April, 1880, to the first Monday of January, 1883. For the quarter commencing the first Monday of January, 1883, and ending the first Monday of April, 1883, the city of Philadelphia retained and still retains the salary, to wit, the sum of seven hundred and fifty dollars. Mayfield v. Moore, Brightly's Election Cases, 608 (53 Ill. 428). Magee v. Supervisors, 10 California, 376. and its emoluments could in no way be affected It follows therefore, that his right to the office The Court then, upon the above stated facts, directed the jury to find a verdict for the plaintiff for the salary of a magistrate for the entire period between the first Monday of April, 1880, by anything done by the election officers or the and the first Monday of April, 1883, with in-after the polls had been closed. If they erred or Board of Return Judges, in computing the vote terest, amounting to $10,297.50, subject to the opinion of the Court upon the following points reserved : (1) If the Court should be of opinion that upon the above stated facts the plaintiff is entitled to recover the salary of a magistrate for the whole period elapsed between the first Monday of April, 1880, and the first Monday of April, 1883, then judgment to be entered for the plaintiff for the whole amount mentioned in the verdict, to wit, $10,297.50. (2) If the Court should be of opinion that upon the above stated facts the plaintiff is entitled to recover the salary of a magistrate for the quarter commencing on the first Monday of January, 1883, and ending on the first Monday of April, 1883, and no more, then judgment to be entered for the plaintiff for the sum of $750, with interest from the first Monday of April, 1883. (3) If the Court should be of opinion that upon the above stated facts the plaintiff is not entitled to recover the salary of a magistrate for any part of the period elapsed between the first Monday of April, 1880, and the first Monday of April, 1883, then judgment to be entered for the defendant non obstante veredicto. R. Alexander, Assistant City Solicitor, for the rule. The plaintiff is precluded from recovery because he had not, during the period for which salary is claimed, qualified to act. He had not taken the oath of office, nor entered security as required by Act of Assembly. Riddle v. The County of Bedford, 7 S. & R. 386. Com. z. Slifer, 1 C. 23. Dilton v. Myers, Brightly's Rep. 426. City of Philadelphia v. Given, 10 Smith, 136. Charles Henry Jones, contra. their act could confer no title upon any one else were misled, or deceived in their computation, cate of election. Such certificate could confer to whom they might erroneously issue a certifino right, and a commission issued in pursuance thereof would be void. Ewing v. Filley, 7 Wright, 389. People v. Potter, 15 Reporter, 646. The legal right to the office having, therefore, been in Rink only ab initio, he was the de jure officer, and was entitled to the salary of the office from the beginning of the term. McCrary on Elections, 308. Barr, never having had any right to the office, was only a de facto officer, subject to no liabilities, entitled to no pay. McCrary on Elections, & 210. County of Luzerne v. Trimmer, 14 Norris, 97. "The fees and emoluments are incident to and as clearly connected with the office as are rents and profits to real estate, or interest to bonds and such like securities.' "Actual They are incident to the legal title and not to the colorable possession of the office. incumbency merely gives no right to the salary or compensation. McCrary on Elections, section 308. People ex rel. Morton v. Tieman, 30 Barbour, 193. December 1, 1884. THE COURT. Three points were reserved at the trial of this cause. The facts of this case are clear, and we are brought at once to the consideration of the law The right of Rink to the office and its salary which must be applied to the facts as found by was complete when the polls closed. The long the jury. Rink contested the right of Barr to proceedings which followed delayed the ascer- the office of magistrate in the county of Philatainment of his title, but did not otherwise affect delphia, and the result of that contest was to the right itself. The decree declaring Rink determine that Barr was a usurper, though a de elected related back, by its own terms, to the facto officer, that he never had any title to the day of the election, and the Governor commis-office, and that this plaintiff was the de jure sioned him magistrate for five years from the officer, whose title dated back to the time when first Monday of April, 1880. "Under the law, he and not Barr was elected. It is well settled in Pennsylvania that none | refuse to aid him in compelling payment for but a de jure officer can claim compensation for services thus rendered against its directions.' official services. (Riddle v. Bedford Co., 7 S. & R. 387.) This decision has remained unshaken. As late as Luzerne Co. v. Trimmer (14 N. 97), the same principle is decided, and Trimmer, who, under the law, was to a specified period, although a contest was pending, the de jure officer, received a judgment in his favor. And this decision is cited by SHARSWOOD, J., in City v. Given (10 P. F. S. 136). If the first cited case is carefully examined, it will be found that the incumbent had neglected to do that which the law declared must be done, not that he was unable by legal impediment to perform a duty. And in the last cause cited the Court declares, If the city had refused to pay the de facto"Conceding, for the sake of argument, that preincumbent, it is too clear for argument that after ouster he could not successfully maintain an action. The Constitution declares, Art. V., Sec. 12, that magistrates "shall be compensated only by fixed salaries," and subsequent legislation settled the amount. (See Act of February 5, 1875, § 8, P. L. 56.) Some one had a constitutional right to this salary, which was as of high a nature as that of any other right guaranteed by the organic law, and when the question is asked, to whom does this salary belong, the answer must be, to the person who was elected a magistrate at the proper election, whose title was then perfect, although subsequently maintained and declared perfect, and who has done all in his power to assert and sustain rights which became vested the moment the election closed. That the position assumed may clearly appear to be the law, we remark :: First. The salary is annexed to the office of a magistrate, and to the person who holds the title, and not to a mere incumbent, who has been legally declared to have been an intruder, and therefore only a de facto officer. This principle was decided in Dorsey v. Smyth (28 California 21), and in Douglas v. The State (31 Indiana, 429). When the Governor very properly commissioned Magistrate Rink "to have and to hold this commission, and the office hereby granted unto you for the term of five years from the first Monday of April, 1880," he conferred by a constitutional right a title which carried with it "the emoluments to a magistrate lawfully belonging, or in any wise appertaining by virtue of the Constitution and laws of this Commonwealth." Second. While it was not seriously argued that Rink was not the de jure magistrate, and that his title was not perfect, it was contended that because he had not taken the oath of office and entered the necessary security, he was not duly qualified, and therefore could not recover in this suit. To sustain this proposition our attention was called to the authorities which were supposed to rule this point. In Commonwealth v. Slifer (1 C. 23), LEWIS, C. J., did say, "The performance of the duties of the officer before giving security was prohibited by law. The law must therefore vention would be equivalent to performance, do the facts make out such a case?" The italics are my own. The Chief Justice, in a concurring opinion, sustains the action of the Court upon principles which are undoubted. Both of these cases may stand for the principles asserted, and they do not conflict with our views of the law of this case. If ever there was a cause in which "prevention is equivalent to performance," this is that case. What step did Magistrate Rink omit to take which he he ought to have taken? From the day upon which Barr received his certificate of election, until the final decree of the Supreme Court, the contestant, in season and out of season, and in every possible legal way, waged an incessant war upon the intruder, until his efforts were crowned with success. No one step which could have been taken was omitted. To say to an elected officer, you have a constitutional title to an office, and you must maintain it in one way, and yet you shall be deprived of that to which the law gives you a vested right, is to assert a principle which we think even the legislative department of the government could not do, and which the judiciary will never maintain, so long as it protects the right of a citizen to his own property, prevents one man from taking the property of another, and affords a remedy for every wrong, even when inflicted under the forms of law. Something was said in this case about public policy, and we were cautioned not to introduce a principle which might endanger public interests. Our reflections upon this branch of the cause lead us to the conclusion, first, that with twenty-three magistrates commissioned in this county there is no danger of the failure of the administration of public justice because de facto officers will cease to act, and de jure officers will be discouraged; and, second, the decision of this cause may have a tendency to put an end to frauds at election; for the city, if we are right in our judgment, will hereafter cease to pay de facto officers, and thus at last only remunerate the de jure officer, who, by the Constitution and the law, is entitled to the salary. Judgment is now entered on the reserved points for plaintiff, for the sum of $10,297.50, with interest thereon from April 15, 1884. Opinion by LUDLOW, P. J. A. B. W. |