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Appeal from Court of Common Pleas, Lack license, and providing that registration under awanna County.

Act June 8, 1881 (P. L. 72), in order to be Action by the commonwealth, on the re

sufficient warrant to practice medicine, shall

be made prior to March 1, 1894, registration as lation of I. F. Price, against M. J. Garvey. a physician after March 1st was no defense. Judgment for defendant, and plaintiff ap 2. SAME-CONSTITUTIONAL LAW. peals. Affirmed.

Act May 18, 1893 (P. L. 94), providing for

the licensing of physicians and surgeons, vioArgued before FELL, BROWN, MESTRE

lates neither the federal nor the state ConstituZAT, POTTER, and STEWART, JJ.

tions. A. A. Vosburg and C. W. Dawson, for ap [Ed. Note.--For cases in point, see Cent. Dig. pellant. John H. Bonner, for appellee.

vol. 39, Physicians and Surgeons, $ 2.]

Appeal from Court of Quarter Sessions, PER CURIAM. This case was tried in the Lackawanna County. common pleas with the case of another Joseph C. Densten was convicted of pracclaimant to the office of treasurer of the ticing medicine without a license, and, from borough of Moosic. In the opinion filed in a judgment of the Superior Court affirming that case, but covering both cases, it was said à conviction, he appeals. Affirmed. in relation to the relator in this: "As far

The following is the opinion of Orlady, as Mr. Price's claim is concerned, it is suffi

J., in the court below: “The defendant was cient to say that he never was elected by tried and convicted of 'entering upon the either a de jure or a de facto borough coun

practice of medicine and surgery and praccil. He does not claim by virtue of his elec

tice of the same without having obtained tion at the meeting of the so-called Price coun

from the medical council of Pennsylvania a cil held on March 5, 1906, but claims under an

license to practice medicine and surgery,' in election held on July 2, 1906. As we have stat.

violation of the requirements of Act May 18, ed in our seventh finding of fact, there was no

1893 (P. L. 94). The facts were undisputed valid meeting held on that date at which he

and the court assumed the duty of instructing was elected. Only four members of the coun.

the jury that the defendant should be found cil participated in any degree in any pro

guilty on the second count in the indictment, ceedings of the meeting in which he was

and not guilty on the first and third ones. chosen, viz., Anthony, Woodbine, Broadhead,

The whole question was reviewed on a motion and Scznyter. Sheeban, Moran, Cotter, and

in arrest of judgment, which was refused, Decker, the other four legal members of the

and on a rule for a new trial, which was discouncil, took no part in it whatever. They charged. The defendant admitted that he were not even present at the meeting, legally

was engaged in the practice of medicine, as speaking, but were merely physically present charged, and did not pretend to have ever obin the same room while part of it was being

tained any certificate or license to do so from held. They were, under the uncontradicted

the state authorities; his sole defense being evidence, engaged in bolding a council meet

that he was within the exceptions enumerating with Sanderson and one Martin present

ed in the act of 1893, in that he had registerand participating when the other four coun

ed under the provisions of the act of June 8, cilmen came into the ball and attempted to

1881, at Montrose, Susquehanna county, Pa., take charge and effect an organization, by

on September 24, 1897, and that he had been counting them as present, and thus getting a

continuously practicing medicine since 1869, quorum. They immediately adjourned and

under a certificate of sufficiency given to him left the ball when the members of the Price

by his preceptor which qualified him, under council began to hold a meeting. The situa the law as it was then declared, to engage tion of affairs during the first few moments

in the practice of that profession. It was was that both parties were trying to do busi.

contended that being thus qualified the subness at the same time. Under such cir

sequent legislation on the subject by Acts cumstances, there was no warrant or au

March 24, 1877 (P. L. 42), the registration act t'iority of law to note the presence of Shee

of June 8, 1881 (P. L. 72), and the registration han and his associates at the alleged meet

and license or certificate provisions of the act ing of council which elected Mr. Price as

of 1893 did not apply to him. The registratreasurer. It was an undignified scramble

tion in Susquehanna county in 1897 was of to effect an organization, but it was not suc

no avail, inasmuch as the act of 1893 specialcessful."

ly provides, in the fifteenth section, that such For the reasons stated in the opinion of the

registration under the acts of 1881, to be a learned judge of the common pleas, the de

sufficient warrant to practice medicine and cree is affirmed, at the cost of the appellant.

surgery, shall be made prior to March 1, 1894. Registration after that date was outside the

limitation of the act, and was fruitless as a (217 Pa. 423)

defense. The propriety as well as the necesCOMMONWEALTH v. DENSTEN.

sity for such restrictive legislation has been (Supreme Court of Pennsylvania. April 1, 1907.) | fully considered by our courts. In regard to 1. PHYSICIANS SURGEONS-PRACTICING

this particular act, in Re Registration of WITHOUT LICENSE. Under Act May 18, 1893 (P. L. 94), pro

Campbell, 197 Pa. 581, 47 Atl. 860, it is said: hibiting the practice of medicine without a "The act of May 18, 1893 (P. L 94), is a valid

AND

and constitutional exercise of the police pow. are Potter, Walnut, Chestnut, Fourteenth er of the state upon a subject plainly within street, and Melrose avenue. Potter is an that power and urgently in need of control opened and paved street. Walnut is an openby it.' So far as any federal question is sup ed and paved street. Chestnut is an opened posed to be involved, it is set at rest by Dent street not paved. Ridley is not an opened v. West Virginia, 129 U. S. 114, 9 Sup. Ct. street. Fourteenth street is an opened and 231, 32 L. Ed. 623, in which the Supreme | paved street. Melrose avenue is an opened Court of the United States pronounced an al street not paved. The defendant, in pursumost identical statute of West Virginia to be ance of a general plan, began the elevation free from repugnancy to the Constitution of of its tracks at the crossings of the abovethe United States or the fourteenth amend named streets, on some of them above the ment. In regard to the questions raised un official grade, and on some above the existder the Constitution of Pennsylvania, it would ing physical grade, and in such way as be sufficient to refer to Com. v. Finn, 11 Pa. necessitated a change in all the street grades, Super. Ct. 620. The present Chief Justice re except Ridley, from a few inches to three or views the previous legislation on the subject four feet, respectively. To prevent this the and conclusively settles the necessity for a city filed the present bill. A preliminary inproper registration by all who ask the protec- junction was granted restraining the detion of our laws in the practice of medicine fendant from elerating its tracks at all the and surgery in this state. See, also, Com. v. abovenamed streets, except Ridley. The Campbell, 22 Pa. Super. Ct. 98; State v. Cur court entered a decree continuing the pre rens, 111 Wis. 431, 87 N. W. 561, 56 L, R. A. liminary injunction.” 252, Not having complied with the require Argued before MITCHELL C. J., and ments of any of our laws regulating the prac

FELL, MESTREZAT, POTTER, and ELtice of medicine and surgery, there can be no KIN, JJ. question of his being guilty on the second W. B. Broomall, for appellants. A. A. count in manner and form as he was indicted. Cochran, for appellee. The judgment is affirmed.”

Argued before FELL, BROWN, MESTRE POTTER, J. The appellant here comZAT, POTTER, and STEWART, JJ.

plains of the court below thąt it has, by · A. A. Vosburg, Charles W. Dawson, and means of a preliminary injunction, prevented James Mahon, for appellant. Joseph O'Bri

the defendant company from elevating its en, Dist. Atty., and W. S. Diehl, for appellee. tracks at the crossings of several streets

without the consent of the municipal authorPER CURIAM. This judgment is affirm

ities of the city of Chester. The action of ed on the opinion of the Superior Court.

the court below in this matter was fully justified by the principles laid down in Pitts

burg v. Pittsburg, etc., Railroad Company, (217 Pa, 402)

205 Pa. 13, 54 Atl. 468, holding that in this CITY OF CHESTER V. BALTIMORE & commonwealth a railroad company has no O. R. CO. et al.

power to enter upon, occupy, or cross the (Supreme Court of Pennsylvania. April 1,

streets of a municipality without the consent 1907.)

of the municipality. If a railroad cannot 1. RAILROADS_USE OF CITY STREETS.

be originally constructed upon or across a A railroad company has no power to enter city street without municipal consent, it upon, occupy, or cross the streets of a munici

necessarily follows that, after it has once pality without its consent.

been constructed, in a form and manner ap[Ed, Note.-For eases in point, see Cent. Dig. vol. 41, Railroads, § 185.)

proved by the municipal authorities, before 2. SAME-ALTERATION OF TRACKS IN CITY.

any material change can be made in the conA railroad company, under Act May 31, struction of the road, the municipal consent 1887 (P. L. 275), cannot elevate or depress its must be obtained for the desired change. tracks within the limits of a city without the

An elevation of the grade would certainly consent of said city.

be a material change. The conclusion that [Ed. Note.-For cases in point, see Cent. Dig. vo). 41, Railroads, $8 195–203.)

municipal consent must be obtained before

making any such change is not only reason. Appeal from Court of Common Pleas, Del

able in itself, but it has legislative sanction. aware County.

The act of May 31, 1887 (P. L. 275), provides Action by the city of Chester against the

that railroad companies whose route extends Baltimore & Ohio Railroad Company and the

through or into any city of this commonBaltimore & Philadelphia Railroad Company.

wealth may elevate or depress their tracks From a decree granting a preliminary in

within the limits of such city, provided that junction, defendants appeal. Affirmed.

the consent of said city, through councils, The following is the opinion of John to such elevation or depression, be first had son, P. J., in the court below: “The plain or obtained. There is no merit in the contiff is a city of the third class. The de tention of appellant. tendant is a railroad company. Its line runs The assignment of error is overruled, and through the city of Chester, crossing the this appeal is dismissed, at the cost of ap wtreets at grade, except Ridley. Among them pellant.

(217 Pa. 404)

five years outside of what the record shows HEBLICH v. SLATER.

of actual trial and bearings in court. Q. (Supreme Court of Pennsylvania. April 1,

You place a great deal of emphasis on the 1907.)

words, at least. State whether or not you

do not consider that would be a small compen1. EVIDENCE-SIMILAR SERVICES_VALUE-ATTORNEY AND CLIENT-COMPENSATION.

sation for Mr. Heblich ? A. Moderate.” In an action to recover for legal services Defendant presented these points: "(2) rendered, evidence of the amount paid another Evidence of what services were rendered and attorney for services in the same case is in

fees charged by other attorneys employed admissible.

upon the same side with the plaintiff is ir. [Ed. Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, 422.)

relevant and incompetent. Therefore the ju2. ATTORNEY AND CLIENT - COMPENSATION

ry should disregard all testimony in the case VALUE OF SERVICES-EVIDENCE.

relative to the services rendered or charges In an action to recover for legal services made by other counsel in the litigation known rendered, evidence of the importance of the con. as the Slater Will Case. Answer: We introversy, the results which depended upon it, and how it was affected by other serious matters

struct you, as we have instructed you in our was proper on the question of value.

general charge, that we did not admit the (Ed. Note.-For cases in point, see Cent. Dig.

testimony of Mr. Whalen's compensation as vol. 5, Attorney and Client, § 370.]

a criterion to base the charges upon or as evi

dence of what Mr. Heblich's services were Appeal from Court of Common Pleas,

worth. We only admitted it as some eviSchuylkill County.

dence to be taken by the jury, along with all Action by Rosa Heblich, executrix of N.

the other evidence in the case, in arriving at Heblich, against Harry P. Slater. Judgment

a conclusion of what Mr. Heblich's services for plaintiff, and defendant appeals.

Re

were worth. (3) The testimony as to the versed.

compensation charged by John F. Whalen, At the trial the court admitted, under ob Esq., one of the defendant's counsel in the jection and exception, testimony to the effect litigation known as the Slater Will Case, is that John F. Whalen, Esq., an attorney incompetent and immaterial for the purpose at law, charged and received a fee of $4,000 of fixing the value of the services of N. Hebin the will contest in which plaintiff's dece lich, Esq., the decedent, and the jury should dent was engaged as an attorney. When A. not consider it. Answer: We refer to our W. Schalck, a witness for plaintiff, was called answer to the second point for an answer he was asked this question: "Q. You know to this. (4) Under the evidence in this case the labor performed by Mr. Heblich in the Anna S. Slater, the mother of the defendhearings before the register, the hearings in ant, Harry P. Slater, and testatrix in the the orphans' court, and also know the fact wills in controversy framed by direction of that Mr. Whalen was employed to take Mr. the orphans' court, did not die seised of the Ryon's place after the case had gotten real estate known as the 'Centennial Hall through the orphans' court and into the com and the homestead known as the 'Slater mon pleas, and the fact that Mr. Whalen home'; she having conveyed the said real had charge of the paper book and argued the estate to her son, the defendant in this case, case in the Supreme Court after Mr. Heb by deeds executed, delivered, and duly recordlich's death. Having knowledge of those ed, bearing dates, respectively, May 9 and facts, and knowing that Mr. Whalen charged July 9, 1894, and therefore the title to the and received as his compensation $4,000 for said Centennial Hall and homestead was the value of his services that he rendered, not directly or indirectly involved in the conwhat would you say the value of the services test concerning said wills. Answer: We say rendered by Mr. Heblich were? Mr. Roads: to you in answer to this point, under the evi. Objected to as not a proper way of establish dence in this case, Anna S. Slater, the mother ing the value of the services of the plaintiff of the defendant, Harry P. Slater, and tesin this case by Mr. Heblich. The Court: tatrix in the wills in controversy framed Overrule the objection. (Defendant excepts. by direction of the orphans' court, did not

to die say, that Mr. Heblich rendered services con "Centennial Hall and the homestead known tinuously for five years, and his services were as the 'Slater home'; she having conveyed not limited to the trial of the case in court, the said real estate to her son, the defendbut during that time we had various motions, ant in this case, by deeds executed, delivered, rules, arguments of various kinds, while we and duly recorded, bearing dates, respective. were pending in the orphans' court and while ly, May 9 and July 9, 1894, and therefore we were pending in the common pleas, which the title to the said Centennial Hall and had to be argued and disposed of, and the homestead was not directly involved in the papers are on the record. Considering not contest concerning said wills, but, as we have only the days actually spent in the trial of explained to you in our general charge, that the case, but the amount of labor that was property was indirectly concerned in this required in the preparation of those papers contest." and of the arguments and all briefs, there Verdict and judgment for plaintiff for was quite a number of them during those | $3,013.43 Defendant appealed.

Argued before MITCHELL C. J., and to discharging the duties of what is ordiFELL, BROWN, POTTER, and STEW narily known as a trial lawyer. The services ART, JJ.

of one seem to have been contined to prepara. J. W. Moyer and Geo. M. Roads, for appel

tion for and attendance upon the bearings in lant. H. O. Bechtel and W. L. Kramer, for

the lower courts, while the other was reappellee.

sponsible for the preparation and conduct of the case also in the appellate court. Not on.

ly did the nature of the services rendered POTTER, J. This was an action of as

seem to differ, but the professional ability sumpsit brought by Rosa Heblich, execu and standing of the two men were not shown trix of N. Heblich, deceased, against Har to be the same. What would be a reasonable ry P. Slater, to recover for professional serv

fee for one might be wholly inadequate for ices rendered in his lifetime by Mr. Heblich, the other. who was a member of the Schuylkill county

In Playford v. Hutchinson, 135 Pa. 426, 19 bar, to the defendant. There was no dispute

Atl. 1019, this court held that in an action by as to the employment of Heblich by defendant or the services rendered. The single ques. services, rendered in the preparation and tri

an attorney at law to recover for professional tion tried was the value of the services. Five

al of a cause, evidence of what services were of the assignments of error raise the ques

rendered, and fees charged by other attorneys tion whether in a suit by an attorney at

employed upon the same side with plaintiff, law to recover for services rendered evidence

is irrelevant and incompetent. In that case is admissible of the amount paid to another

the testimony was offered to show that the attorney, who rendered service in the same

claim was for more than the services were case.

reasonably worth. But, if such testimony is The cause in which the services were ren

inadmissible as against the attorney, it must dered, for which recovery was sought, was

also be excluded when it is in bis favor. The the contest of the will of Mrs. Anna Slater,

true ground upon which its exclusion is based mother of the defendant, dated May 22, 1894,

is that it would raise collateral issues. In by which she had devised and bequeathed her entire estate to defendant. Certain benefici.

Calvert v. Coxe, 1 Gill (Md.) 95, this question

arose, and the court held "that what was aries under a prior will, dated March 23, 1894, filed a caveat to the will on the ground

paid to or demanded by one attorney was not

evidence in the cause. We cannot judicially of want of testamentary capacity by the tes

know the standing of any one member of the tatrix, and undue influence. The contest was

bar, or the circumstances under which he carried into the orphans' court, where an issue devistavit vel non was awarded. That

was paid, or demanded, a given sum for his

services. Wat is the usual and customary issue was tried in the common pleas court, resulting in a verdict for the will, and judg.

compensation for services of a like kind is ment thereon was affirmed by this court.

admissible testimony, but what was paid to Slater v. Slater, 209 Pa. 194, 58 Atl. 267.

any particular individual, standing per se, Mr. Heblich took part in the litigation from

is in our opinion inadmissible." Under the the outset until his death, which occurred

authorities the professional standing of an after the trial, and before the appeal was ar

attorney seems to be a proper element to be gued in the Supreme Court. In the early

taken into account as affecting the value of stages of the litigation Jobn W. Ryon was as

his services. If this be so, how could the sociated with him as counsel for defendant.

amount paid to one attorney be evidence of Mr. Ryon died before the issue in the com

the value of the services of another? In cermon pleas came to trial, and John F. Whalen

tain routine matters one competent lawyer was then associated with Heblich in Ryon's

may serve as well as another. But in other place. Mr. Whalen remained counsel up to

phases of litigation requiring the exercise of the time of Heblich's death, and afterwards keen judgment and delicate perception there until the final decision by the Supreme Court. may be no comparison between the relative He testified that be charged and received abilities of two men. It has been held that, from defendant $4,000 as fees for his ser in an action by an attorney to recover for vices. Other witnesses were permitted professional services, it is incompetent to take this fact into consideration in fixing the prove the value of his services in another value of Heblich's services, and the jury were suit. Hart v. Vidal, 6 Cal. 56. To deterinstructed that they might consider it in ar mine the value of the testimony as to the riving at their verdict. We think this evi compensation paid to Mr. Whalen would relence should have been excluded. The value quire a comparison of the nature of the servof Mr. Heblich's services was in issue; and ice he rendered with that bestowed by Mr. not that of the witness. It was apparent Heblich, and their relative professional standthat they were not each performing the same ing and ability; and also an inquiry into the class of service. One was largely engaged in reasonableness of the charge made by Mr. preparing the case for trial, in searching for, Whalen. This would raise collateral matevidence, and in producing it, and the au ters, and involve issues not concerned in this thorities for use during the trial. The other case. The first, second, third, fourth and seems to have confined bis efforts principally. fifth assignments of error are sustained.

fending a practically impregnable position is not so difficult as the leading of a forlorn hope. The burden in the litigation concerned was decidedly upon the other side, wbo sought to invalidate the will. The attack had so little apparent justification that the suggestion that the title to valuable real estate was indirectly involved in this case was of doubtful propriety.

We do not feel, however, that the qualification of defendant's fourth point for charge, or the answer to plaintiff's fifth point, present sufficient cause for reversal.

But, by reason of the errors set forth in the first, second, third, fourth, and fifth specifications, the judgment is reversed with a venire facias de novo.

AND

Another question is raised by the sixth and seventh assignments. Subsequently to making her will, which was the subject of the litigation, defendant's mother conveyed to him by deeds dated May 9 and July 9, 1894, certain valuable real estate for a consideration of $1 and natural love and affection. This fact appeared in evidence, and the court instructed the jury that the property thus conveyed was indirectly concerned in the will contest, which settled all dispute as to its title. In his general charge, the trial judge said: “Had the other side won, in all human probability, as testified to by counsel, who represented that side, they would have brought another suit to set aside those deeds that have been offered in evidence, so that indirectly as a matter of law the real estate was indirectly involved in this transaction. As you have heard from the testimony in the case, the value of that real estate was any. where from fifty to seventy thousand dollars." The question raised by these assignments was whetber the court erred in instructing the jury that the title to the property so conveyed was indirectly settled by the trial of the issue d. v. n. and in allowing them to take that fact into consideration in fixing the amount of their verdict,

As a general principle, the magnitude of the interests involved and the responsibility assumed are properly to be taken into consideration in fixing compensation, "Evidence to show the nature and importance of the controversy in which the services were rendered, what results depended upon it in other matters, and how other matters affected it and increased its gravity is proper upon the question of the value of the services." Weeks on Attorneys at Law (2d Ed. 1892) 681. And yet, in the present case, the attack which the counsel for defendants in the will case were called upon to meet does not seem to have been very formidable. It can hardly be said to have been at any time a doubtful case. As this court said before: "The burden of appellant's contest against the will was that it was procured by undue influence, and a number of matters were presented in evidence which might have tended to corroborate the inference had there been any basis of fact to corroborate. But there was not a scintilla of evidence that tended directly and explicitly to establish the fundamental fact." Slater V. Slater, 209 Pa. 194, 58 Atl. 267.

It is possible that the decision of the issue on the will, in favor of defendant, prevented additional litigation, and that aspect might perhaps be presented to the jury as something to be considered in fixing the value of the service. But, if this was done, the jury should at the same time have been cautioned against attaching much weight to this feature, because, as the result showed, there never was any material fact upon which to base the attack made upon the will. De

66 A.-42

(217 Pa. 435) COMMONWEALTH ex rel. LEWIS, Dist.

Atty., v. PARSONS. (Supreme Court of Pennsylvania. April 1,

1907.) SCHOOLS

SCHOOL DISTRICTS - SCHOOL CONTROLLER_VALIDITY OF ELECTION.

Where there was no ward in a city which a person claiming to be a school controller could represent, and there was no election district in which votes could be cast for him for the office, a judgment of ouster against him was properly rendered.

Appeal from Court of Common Pleas, Lackawanna County.

Quo warranto to the commonwealth, on the relation of W. R. Lewis, district attorney, against William Parsons. From the judgment, defendant appeals. Affirmed.

The following is the opinion of Edwards, P. J., in the court below:

"Did the councils have the right to designate the annexed territory as the TwentySecond Ward? This is a question somewhat difficult of solution. The city of Scranton became a second-class city in 1901. At that time it had 21 wards. As a third-class city it could not have more wards under any circumstances. Counsel for relator claims that this limitation as to the number of wards is still the law for Scranton, and that Scranton as a city of the second class can never have more wards, however much it might grow in size and population, unless by means of some legislation not yet enacted when the decree of annexation was made in this case, or when the councils undertook to create the Twenty-Second Ward. I Incline to the other view. I think the limitation to 21 wards disappeared, in a legislative sense, when Scranton became a city of the second class. It therefore seems that there may be a TwentySecond Ward if created by the proper authority. This leads to the next question.

"If Scranton can have more than 21 wards, how can a new ward be created? The relator contends that there is only one way, to wit, by the method pointed out by Act May 23, 1874 (P. L. 230), 8 2. This sertion applies

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