Gregg Township v. Jamison

• Decision Date: 03 July 1867
• Citation: 55 Pa. 468
• Court: Pennsylvania Supreme Court
• Parties: Gregg Township <I>versus</I> Jamison.

55 Pa. 468

Gregg Township versus Jamison.

Supreme Court of Pennsylvania.

May 27, 1867.

July 3, 1867.

May 27th 1867.

Before THOMPSON, READ and AGNEW, JJ. WOODWARD, C. J., and STRONG, J., absent

Error to the Court of Common Pleas of Centre county.

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A. Hoy, J. H. Orris and C. T. Alexander, for plaintiffs in error, cited Stockton v. Demuth, 7 Watts 39; Brice v. Clark, 8 Barr 301; Cooper v. Lampeter, 8 Watts 125; Batteu v. The Township of Brandywine, 5 P. L. J. 546; Dull v. Ridgeway, 9 Barr 272; Riddle v. Bedford Co., 7 S. & R. 392; Keyser v. McKissan, 2 Rawle 139; Neal v. Overseers, 5 Watts 538; Sharpless v. The Mayor of Philadelphia, 9 Harris 147; Speer et al. v. The School Directors of Blairsville, 14 Wright 150; Norman v. Heist, 5 W. & S. 171; Tyson v. School Directors of Halifax Township, 1 P. F. Smith 9.

McAllister & Beaver, for defendant in error, cited Wertz v. May, 9 Harris 279; Acts of 25th August 1864, § 3, Pamph. L. 986; of 15th March 1865, § 1, Pamph. L. 24; Riddle v. The County of Bedford, 7 S. & R. 392; Keyser v. McKissan, 2 Rawle 139; Neale v. The Overseers, 5 Watts 528; Margill v. The Hazleton Coal Co., 4 W. & S. 424; Brunott v. McKee, 6 Id. 514.

The opinion of the court was delivered, July 3d 1867, by AGNEW, J.

John B. Ream, one of the supervisors of Gregg township, was called for the defence to testify that he had not consented to the payment of bounties, and being asked on cross-examination whether he had not stated he had assented, in presence of Neese and others, replied that he did not remember. Neese was called to prove the conversation, and the defence objected to the evidence as incompetent to contradict Ream, and as immaterial and irrelevant. It was not immaterial or irrelevant, for it went directly to the vital question whether the supervisors had officially offered a bounty to those who would put in substitutes. Being material, the right exerted on part of the plaintiff to contradict Ream by his own statements made at other times and places, referred to in his cross-examination: 1 Stark. Ev. 183; 1 Greenl. Ev. § 462 (3.) It is supposed the case is changed by the answer of the witness that he did not remember, and Stockton v. Demuth, 7 Watts 39, and Brice v. Clark, 8 Barr 301, are cited. Neither of these cases supports the position. In the latter, though not stated, it is manifest from the judge's mode of disposing of the exception, the inquiries must have related to immaterial matters. But here the witness was called to deny his personal participation in a matter positively proved by the opposite side, and vital to the issue, and had followed up his denial by stating a want of recollection of his own statements to the contrary of his testimony. Certainly a witness who is afforded an opportunity of explanation cannot escape from the contradiction of his former statements, in relation to the same matter, by his want of recollection of them; otherwise it would lie in his power always to turn aside the means of contradicting him by merely alleging a want of memory. The less credible he is, the more likely would he be to forget everything likely to impeach his veracity or his memory. It is not reasonable to suffer a convenient forgetfulness to shelter a witness from contradiction, and I think the weight of authority is against it: 1 Greenl. Ev. note 1 to § 462.

The next important question is, whether the supervisors could bind the township by their offer of a bounty? This offer was made within one month after their election, but before they had taken the oath of office, and given the security required by law. The court below held them to be officers de facto, and capable of binding the township. Under the Act of 15th April 1834, § 81, supervisors are elected "to serve three years." No provision is made for holding over until successors are duly qualified, That none was intended is manifest from the provision for the township treasurer and clerk in the same section. The supervisor is in office by the election to fill it, but before he enters upon the duties he must take an oath of office: sec. 86. The Act of 16th March 1860, requiring bond and surety, treats the supervisor as in office, for his office is to be declared vacant and the court to appoint another to fill it if he fail to give the security in one month after his election. If any one qualifies he can act for the other till the court appoints, and if none qualify, the former supervisors can act till appointment. Until the month has elapsed, it is manifest therefore they are supervisors de facto.

"An officer de facto, says Justice Sergeant, in McGargell v. Hazelton Coal Co., 4 W. & S. 424, seems to be a person who is such by color of election, though inelegible, or though the office was not vacant. Lord Ellenborough defines an officer de facto to be one who has the reputation of being the officer he assumes to be, and yet is not a good officer in point of law. And Mr. Justice Story, in The Bank of the U. S. v. Dandridge, says, persons acting publicly as officers of a corporation are to be presumed rightfully in office." Lewis, C. J., in Commonwealth ex rel. Bowman v. Slifer, 1 Casey 30, a case in point in this respect, said: "But for the period during which he (Genl. Bowman) performed the duties of the office without having given the required security, he was not an officer de jure. He was merely an officer de facto. His acts were good so far as others are concerned." In Brunott v. McKee, 6 W. & S. 513, it is said that the 86th section of the act of 1834, relating to the oath of office, is only directory, as it does not say that the acts of the officer shall be void for want of compliance with it. See also Kingsbury v. Ledyard, 2 W. & S. 37. Heckman and Ream being supervisors de facto, by election and by the expiration of the term of office of the late supervisors, their acts were binding on the township. There is abundant authority for this: Commonwealth v. Slifer, supra; Clark v. Commonwealth, 5 Casey 137; McGargell v. Hazelton Coal Co., 4 W. & S. 424; York Co. v. Small, 1 W. & S. 315; Neale v. Overseers, 5 Watts 538; Keyser v. McKissan, 2 Rawle 139; Riddle v. County of Bedford, 7 S. & R. 386.

Another question in the court below arose upon the 3d section of the Act of 25th August, 1864. That section allows a bounty to "any person liable to draft in any ward,...