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man had no jurisdiction in the case, as the period of 60 days had elapsed after the commission of the alleged offense in the complaint." (5)

"7. The uncontradicted proof before the Alderman was that none of the physicians could say to a certainty that said patient, Alberta Kauffman, had the diphtheria or symptoms thereof at the time your petitioner attended said child, and your petitioner testified that it had not such symptoms." (6)

The Court below in their opinion said inter alia:


It was amended by the Act of April 22, 1903, P. L., 244, by adding: Provided, however, that all actions for the recovery of any fine or penalty, for the violation of any of the provisions of this Act, shall be commenced within sixty days from the commission of the offense, and not afterwards.' This proviso is omitted in the Act of 1909 and is no portion of that law, which is complete in itself. The point raised by the defendant's counsel that, under the Act of 1903, the proceedings, not having been commenced within sixty days, were too late, cannot for this reason be sustained." (7)

"In the interests of the public health, it seems to me that this law should be construed with strictness against all persons who, under it, have a duty to perform. I do not think that it is enough for the defendant to say, 'I did not know.' If a physician can evade all responsibility by not knowing, the Act of Assembly is practically negatived and its provisions. rendered futile. Therefore, under all the circumstances here presented, I am of the opinion that the defendant failed in this case to do his whole duty, as required by law, and, for this reason, I think his appeal ought not to be sustained. (11)

On appeal error was assigned [1-7 and II] as above and also the following:

EIGHTH. The Court below erred in affirming the judgment against the defendant as to the costs of the suit, no provision having been made in the Act. of Assembly for the imposition of costs.

NINTH. The sentence of the alder

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man which was affirmed by the Court below was illegal. It was as follows:

"And for the said offense, he is sentenced to pay a fine of fifty dolars and costs of twenty-eight dollars and ninety cents, and in default of the payment of said costs and fine, to be committed to the jail of Lancaster County for the period of ten days."

TENTH. The complaint of Jere G. Mumma, the Health Officer, upon which the suit was based, is defective in this: It alleges that the offense occurred on the 7th day of June, 1914, and for several days prior thereto, and the complaint itself was made August 19, 1914, more than sixty days thereafter, which offense was barred by the act of limitations.

B. F. Davis, for appellant.

The Board of Health did receive notice of the case from the physician who succeeded Dr. Evans. It therefore had no cause of complaint.

Meux v. Bell., 1 Hare 73 (23 Eng. Chan.).

Shultz v. Wall, 134 Pa., 262.

The action was barred by limitation, not having been brought within sixty days.

36 Cyc., 1096-7, 1152.

Endlich on Int. of Statutes, Sec. 85.
People v. Henwood, 82 N. W., 70.
Crosby v. Patch, 18 Cal., 438.
People v. Koenig, 21 N. Y. Sup., 283.
Com. v. Sifred, 104 Pa., 179.
Com. v. Vetterlin, 21 Sup., 587.
York Gazette Co. v. York Co., 25 Su-
perior, 517.

Com. v. De Camp, 177 Pa., 112.
Acts in pari materia must be construed


Appeal of Pittsburgh A. & M. P. Ry. Co., I Penny.. 449.

Daniels v. Com., 7 Pa., 371.
Com. v. Potts, 79 Pa., 164.

Section 21 of the acts of 1895 and 1903, being still in force, the act of 1909 can not take effect without the said section of the act of 1895 as amended.

State v. Leich, 78 Ñ. E. Rep., 189. Culver v. People, 43 N. E. Rep., 812. That there is no repeal by implication.

Re Contested Election of Barber, 86 | practising in this Commonwealth who Pa., 392. Opinion 400.

Kilgore v. Com., 94 Pa., 497.

Part of the sentence was the payment of the costs $28.90.

shall treat or examine any person for or afflicted with diphtheria to forthwith. make a report in writing to the health authorities of the township, city or bor

́ The act is silent as to costs and they ough giving in the report certain facts

cannot therefore be imposed.

Com. v. Barnhart, 22 Dist. Rep., 246.
Wadlinger on Costs, 236.
Brightly on Costs, 130-1.

Chas. W. Eaby, Asst. Dist. Atty.,
John M. Groff, District Attorney, and
Coyle & Keller, for appellee.

The appeal brings up nothing but the


Com. v. Layton, 45 Super., 582. Peet v. City of Pittsburgh, 96 Pa., 218. The unrepealed sections of the Act of 1895 as amended by the Act of 1903 have nothing to do with the failure of a physician to report a contagious disease and the limitation therein does not extend to the Act of 1909 which is complete in itself.

The question of costs can not now be


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Thompson v. Preston, 5 Super., 154.
Com. v. Menjou, 174 Pa., 25.
It was not a case of Not guilty."
Crawford Co. v. Barr, 92 Pa., 360.
Com. v. Moore, 22 C. C. Reps., 321.
The costs incident to the proceeding
follow as a part of the sentence imposed

on the convicted defendant.

Northampton v. West, 28 Pa., 173. Lancaster Co. v. Brinthall, 29 Pa., 38. Gannon v. Gamble, 10 Watts, 382. South Bethlehem V. Connolly, 3 Montg., 142.

In any event the Superior Court, under Section 8 of the Act of June 24, 1895, P. L., 212, has power over costs. Lyons. Means, 1 Super Ct., 608, p. 613.

in regard to the case. The defendant was convicted before the Alderman and having obtained the proper allocatur appealed the case to the Court of Quarter Sessions, which, after hearing without a jury sustained the conviciton.

Two facts appear in the testimony. The case treated was diphtheria and the doctor failed to report the case. The two elements essential to conviction were present. The defendant interposed the defense that he did not know the disease was present. Whether his explanation was credible was to be determined by the justice and the court respectively and both came to the conclusion that the defendant was guilty. We are satisfied that upon the merits, the conviction of the defendant was just. However, the consideration of the testimony is unnecsary on our part. The proceeding being a summary conviction and not according to the course of the common law, the case comes before us as if on certiorari: Ruhlman v. Commonwealth, 5 Binney, 24; Diamond Street, Pittsburgh, 196 Pa., 254; Venango Co. Licenses, 58 Pa. Superior Ct., 277, and Commonwealth v. Layton, 45 Pa. Superior Ct., 582. We

are therefore not concerned as to the limited as to the regularity of the protestimony in the case, but our inquiry is ceedings. In this view of the case there are but two matters left for us to consider.

The first is the claim of the statute of limitations. The Act of June 18, 1895, P. L., 205, is an act "to provide for the more efficient protection of the public health in the several municipalities of

May 14, 1915. Opinion by TREX- this commonwealth," and as amended by LER, J.

The defendant is a practising physician and as such was charged with failing to make report of a case of diphtheria which he treated. Section of the act of May 14, 1909, P. L., 855, makes it the duty of every physician

the Act of April 22, 1903, P. L., 244, provides that suit for the recovery of the fine for violation of the act must be commenced within sixty days from the commission of the offense and not afterwards. The Act of May 14, 1909, P. L., 855, under which the defendant was convicted is an act, "to safeguard human

life and health throughout the commonwealth, by providing regulations for the control of certain communicable diseases and the prevention of infection therefrom, and prescribing penalties for the violation of said regulations." The latter act specifically repeals various sections of the Act of 1895, leaving but the title, the' enacting clause and sections 12, 20 and 21. Section 12 requires principals of schools to refuse admission of children, except upon certificate of a physician. Section 20 relates to members of boards of health and section 21 provides a penalty for the violation of the provisions of the act and as amended by the Act of 1905, P. L., 244, requires prosecutions to be brought within sixty days after the offense has been committed. It is argued that these two acts being in pari materia the limitation of sixty days within which suit must be brought applies to the latter act. To this we cannot assent. The Act of 1909 does not purport to be an amendment of the Act of 1895. It provides a complete system in itself, places new penalties upon its violation and repeals practically the entire Act of 1895 except as above noted. The Act of 1895 is therefore left with its unrepealed sections and the penalty for its violation can still be invoked as against those who offend against the sections which still remain. We know of no rule or construction which would take a provision of the penalty clause, which as we have stated can still be invoked under what remains of the old act and incorporate it into the Act of 1909. There is certainly nothing to indicate that the legislative mind contemplated any such result.

The other matter is the question of costs. The justice of the peace who sentenced the defendant imposed the costs upon him although the Act of 1909 supra under which he was sentenced provides merely for the imposition of a fine, and imprisonment in default of payment and says nothing as to costs. The defendant argues that as no costs are mentioned in this act none can be imposed. We think, however, that in our state, the rule prevails that the conviction of the defendant renders him liable

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At common

to the payment of costs. The costs follow the judgment, and are incident to it. None of the penalties mentioned in our Criminal Code, 31 Mar., 1860, P. L., 404, specifically include costs. law the defendant was liable for costs after indictment found, whether he was convicted or acquitted on the trial and it was not until the Acts of 22 September, 1791, 3 Sm. Laws, 37, and of 20 March, 1797, 3 Sm. Laws, 281, were passed, that the defendant when acquitted was relieved of this duty. The preamble of the Act of 1797 recites that the defendant when acquitted is "equally liable to costs of prosecution as if he were convicted." This was the case as to defendants charged with crime before a justice of the peace and acquitted, and the 13th section of the Act of 1791, supra (still in force, Lehigh Co. Schock, 113 Pa., 373), was passed to cure this evil. These acts left the defendant upon conviction still liable for costs. We think this rule applies to defendants whether convicted of crimes which are indictable or of offenses which are tried in summary manner without a jury.

Furthermore by a general law, the Act of 17 April, 1876, P. L., 29, the legislature has given the court jurisdiction of the costs in summary convictions. That act provides "that upon the allowance of an appeal in cases of summary conviction the appeal shall be upon such terms as to payment of costs and entering bail as the court allowing the appeal shall direct." The general practice in such cases is to require the defendant to enter bail for the costs which have accrued and which may accure to be paid if the conviction is sustained. It would be an anomaly to hold that a defendant who does not appeal need pay no costs, and one who appeals and is convicted must pay them. We conclude that the defendant having been convicted is liable for the costs.

All the assignments of error are overruled and the order of the Court is affirmed. Appellant for costs.

LAW REVIEW. finds the following facts and conclusions

VOL. XXXII.] FRIDAY, JUNE 4, 1915. [No. 31


The Lady Franklin Council No. 85 of Pennsylvania Daughters of Liberty

Common Pleas--Equity. is a beneficial society, located and hav

Ida Neff v. Chas. V. Schied, et al., Members and Officers of Lady Franklin Council, No. 85, of Pennsylvania Daughters of Liberty. Beneficial societies-Rights of members -By-laws and rules-Unbecoming conduct-Refusal to attend tribunals of society-Jurisdiction of equityMandamus-Waiver of notice.

One who becomes a member of a beneficial society accepts and is bound by the rules adopted for its government, whether they be called a constitution or by-laws, provided they are not in contravention of the laws of the Commonwealth.

ing its lodge room in the City of Lancaster. It has a large membership, the exact number of which cannot now be stated. Among its members are Jeff Snyder, George Staines, John D. Ruth, Ida E. Remley, and Mary C. Kauffman, all of whom were, at the time of the filing of the answer, members of the Council of said organization. The plainFranklin Council on June 28, 1905, and tiff became a member of said Lady

she continued to be a member thereof until June 16, 1909, when she received a notice from Albert McCutcheon, the Recording secretary of said Lodge, that she had been expelled from the Order. It appears that, on May 5, 1909, John Such member is bound to resort to the tri-C. Reese, who was also a member of this bunals of his order, and their judgments are Order, preferred the following charges final and conclusive. Their jurisdiction is not to be transferred to courts of law because of against her: an adverse decision.

Laws and rules of a beneficial society in accordance with which a member was expelled for contempt for refusing to plead and stand

trial when accused of "unbecoming conduct" and "using improper language" for calling a fellow-member a liar, are valid and binding on such member, and the court will not set aside such proceedings and reinstate the member expelled.

Where a member appears at a hearing of charges made within the lodge, this constitutes a waiver of any irregularities in the notice


In such case a bill for reinstatement by mandamus would be the proper remedy.

Bill in equity to reinstate plaintiff to membership in defendant society. C. P. of Lancaster County, Equity Docket No. 6, page 1.

B. F. Davis, for plaintiff.

H. Frank Eshleman, for defendant. March 27, 1915. Opinion by LANDIS, P. J.

[recital of pleadings].

The case was then duly heard at the regular term of Court, and from the testimony there presented, the Court now!

"Conduct unbecoming a Daughter of Liberty.

66 Ist. That the above named sister, Ida Neff, did, on Wednesday, March 31st, A. D. 1909, at a stated session held on the date just mentioned, in the presence of a large number of members present, under the head of suggestions for the Good of the Order, and during an argument, the said sister, Ida Neff, did, then and there, deliberately use very ugly language to Brother J. C. Reese and others, also members of the Council just mentioned.

"2nd. That upon circumstantial evidence, the said Ida Neff did, upon different occasions, publish and reveal to and in the presence of people who were not members of the Daughters of Liberty, as to the business that was conducted during the session of Lady Franklin Council, No. 85, Daughters of Liberty.

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sembled, and the charges being read to Mrs. Neff, who was present, she was requested to plead guilty or not guilty. She refused to do so, and the trial committee thereupon heard three witnesses, and decided to adjourn until later, and then prepare a report. On June 1, 1909, the committee reported to the Council as follows:

"Lancaster, Pa., June 1st, 1909. "To Lady Franklin Council, No. 85, Daughters of Liberty.

"The undersigned committee, appointed to investigate the charges preferred by Bro. John C. Reese against Sister Ida Neff, respectfully report as follows:

"The committee met on Wednesday evening, May 26th, 1909, at half-past seven, for the purpose of hearing the case, and, after having heard three (3) witnesses for the prosecution, Sister Ida Neff said she had no business there, and she had business in the Council room, and immediately left the room. We therefore, consider her guilty of contempt, according to Law 13, Sec. 9, General Laws, and recommend that Sister Ida Neff be expelled from the Council. The minutes of the committee, a copy of the evidence taken, and all the papers pertaining to the trial, as required by Rule 6, Sec. 1, are herewith placed in the custody of the Council.

"Fraternally submitted, (Seal of Council)

"Jeff Snyder, Chairman,
"George Staines, Sec'y,
"John D. Ruth,


Ida E. Remley,
"Mary C. Kauffman,

On June 16, 1909, the report of the committee was read, and the following action, as appears by the Minutes of the Council, was taken: "On motion of Brother Scheid, the report of the committee was received and a ballot was taken in which there were 32 black balls out of 33 members to expel Sister Neff. The Councilor expelled her from this Council." Following this appears the additional entry: "On motion of Brother Long, the Recording Secretary was instructed to notify Sister Ida Neff that

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she is expelled from this Council. Also notify Pride of Conestoga Council and Sylvania Council of the expulsion of Sister Neff."

When the charges were presented, the Secretary took a copy of them to the plaintiff's home, but she was not there. He then sent them by special delivery, but his letter was returned, "Refused." After the report of the committee was made to the Council, namely, on June 9, 1909, he gave her a notice to be present two weeks later, by placing the same under the door of her residence, she being absent. This was the notice of the contempt proceedings. After the Council acted, he gave her notice of her expulsion, and she, on July 2, 1909, appealed to the Appeal Committee of the State Council. The following is a copy of her appeal:

"The undersigned, a member of Lady Franklin Council No. 85, respectfully appeals to your committee from the action of said Council in expelling the undersigned, Ida Neff, from said Lady Franklin Council, No. 85, D. of L., for contempt to the committee in the charges preferred against her by Bro. John C. Reese, when she did not stay to hear the evidence. The words in question being copies from notice received by appellant, June 22nd, 1909, from Albert McCutcheon, Rec. Sec. of Lady Franklin Council, No. 85, D. of L., of Lancaster Pa., of which said Council appellant was, and is, a member in good standing. a copy of said notice being attached here

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