er could be written or printed, if the Governor had approved the act it would have been to that extent a repeal of the provisions of the general laws prohibiting writing the voter's choice on the ballot to be provided at the next November election, and I can see no reason why it would then have invalidated a ballot to have thus written the voter's choice on the question. But in order to do that it required legislation-the action of the Legislature and Governor-and that is precisely what this part of section 2 of this bill was apparently intended to be when it was pass

ed.

The majority of the court eliminate the words "written or," as, indeed, they were required to do in order to place the interpretation on the bill given it by them. Of course, after that is done, the words "as the voters shall elect" can well be confined to the "For" or "Against"; but if the words used by the General Assembly-"written or printed"-are given any consideration, the voter not only had the right to elect which he would vote for, but also which of the two ways he would vote, as the General Assembly had authorized him to do. The form of this bill, especially when taken in connection with the universal practice of submitting bills proposing amendments to the Governor, which had prevailed since the adoption of the present Constitution, makes it reasonably certain that it was intended to submit this to the Governor when it was introduced and when it was passed; and although I agree with the rest of the court that it was not necessary to do that in order to submit the proposed amendment to the people, still when it was determined not to send the bill to the Governor it should have been put in such shape as the two houses of the General Assembly were authorized to adopt. The public roads amendment was so drawn as to have it submitted under the general laws, and if such was the intention of the General Assembly this bill could likewise have been so submitted; but they did not follow that plan. Of course, none of us supposed that the use of the article "the" ("For the Constitutional Amendment," etc.) could affect the question, but I am not prepared to agree with the majority when they say "or" means "and" in the connection in which it is used, although I do not deem it necessary to say more on that subject.

It was argued with great force by the attorneys for the appellee that, inasmuch as the Constitution provides that a proposed amendment is to be submitted "in a form to be prescribed by the General Assembly," the same body which can propose amendments can also prescribe the "form." The majority opinion does not base its conclusions on that ground, and it seems to me that it is clear that this bill cannot be sustained on that theory; for, conceding that to be authorized by the Constitution, still if the

General Assembly adopts a "form" which cannot be used on the ballots provided for under the general laws without repealing the provisions of those laws applicable to those ballots, there must be legislation to enable that to be done. Under the existing general laws, as we have seen, there can be no writing on the ballot excepting such as we have indicated, and if any voter does put any other writing on his ballot it would invalidate the whole ballot. Surely the framers of the Constitution never intended to give the two houses of the General Assembly such power as that. The officers of election appointed under the general laws are sworn to support those laws, and could not count a ballot which had any writing on it not authorized by law. When I speak of repealing the provisions of the general laws, I do not mean to repeal them absolutely, so that they can no longer be of effect, but only in so far as necessary to make the changes on the ballot to be used at the elec tion at which such amendment is to be submitted.

If it be conceded that the provision of the Constitution above mentioned would authorize the General Assembly to provide that the amendment be submitted on separate ballots, that would not meet the difficulty, for no machinery has been provided for such submission; neither ballots, ballot boxes, nor officers of election are provided for at the election to be held in November next, excepting such as the general laws authorize, and, of course, the ballots and the ballot boxes must be such as those laws authorize, and the election of officers appointed under those laws must be governed by them, and not by a bill in conflict with them which did not become a law. Or if it be conceded that section 2 might have been omitted altogether (which would be going quite far), and that the general laws would then determine the method of submitting the proposed amendment, the simple answer to that is that the General Assembly did not see proper to adopt that plan, but, on the contrary, did include section 2, and did undertake to prescribe a different form in which this amendment should be submitted. And having passed section 2 with section 1, I cannot understand how this court can reject that, or, as suggested in the majority opinion, strike it out, with any more propriety than it could section 1. As the Constitution provides that the proposed amendment shall be submitted "in a form to be prescribed by the General Assembly," and as the General Assembly did attempt to prescribe the form, it does seem to me that this court is getting on dangerous ground when it says, as it in effect does by the decision in this case, that, although the Constitution says that the General Assembly (not the court) shall prescribe the form, still as it has prescribed one which cannot be carried out under existing laws this

Amendment can be submitted in a form different from that the General Assembly prescribed. With great respect for the opinion of those that differ with me, it does seem to me that such course results in not only submitting a proposed amendment without the action of the Governor, but in so far as the method of submitting it, without the authority of the General Assembly; or, to speak more accurately, contrary to its intention, plainly expressed.

I cannot be influenced by the argument that the form used in this bill is the same as that generally heretofore adopted in submitting proposed amendments to the Constitution-even since the present election laws have been in force. For, as I have already said, every one of them had the signature of the Governor attached, and thereby removed all question as to whether the bills proposing those amendments embraced legislation; for, if they did, they were adopted in accordance with the constitutional provisions which must be followed in order to enact laws. They could therefore be construed to authorize the change of the general laws to the extent necessary to place such form on the ballot prepared under the general laws. But beyond that no question was raised in the courts as to them, and the question was therefore never passed on. If some voter had written "For" or "Against the Constitutional Amendment," as he elected, on the ballot, and the question had been raised whether that was valid, or whether it invalidated his ballot, the courts could have been called on to determine it; but as no such question was ever raised, so far as I am aware, it has never been heretofore decided.

At

The form used in this and other bills seems to have been taken from the provision in the Constitution of 1867, submitting it to the people. It was there said, "At the said election the vote shall be by ballot, and upon each ballot there shall be written or printed the words 'For the Constitution' or 'Against the Constitution,' as the voter may elect." that time, and for over 20 years afterwards, there was no official ballot provided, and the voter could cast a ballot upon which there was either written or printed his choice as to candidates and questions submitted. No one can doubt that the framers of the Constitution meant what they said when they provided that when the Constitution was voted on there should be written or printed the words "For the Constitution' or 'Against the Constitution,' as the voter may elect," and when the General Assemby said in this bill "written or printed," why should we say they only meant "printed"? Surely we are not authorized to reach that conclusion merely because they have not provided the means for using the "written"-especially as it is perfectly manifest that when they passed the bill they expected to submit it to

the Governor, and thus authorize the choice of the voter to be either written or printed.

It is scarcely necessary to add that the action of the General Assembly is not selfexecuting. The case of Munroe v. Wells, 83 Md. 505, 35 Atl. 142, would seem to settle that question. There the election of clerk of the circuit court was contested, and decided against Dr. Wells by the House of Delegates, which, under section 12 of article 4 of the Constitution, heard the contest, and, having determined it against him, ordered a new election within 30 days, as required by that section. But inasmuch as the new election law had repealed the former one in such way as to make it "absolutely inoperative for any purposes whatever," and as the former election officers did not hold over, and the new officers did not go into office until after the time fixed for the special election, there was no machinery by which it could be held, and we said "that the order of the House of Delegates, although in accordance with the Constitution, was not self-executing, but required affirmative legislation in order to be carried out, since the special election could not be held without registration, supervisors, judges, or ballot boxes provided for by a statute in force." The result was there could be no special election as required by the Constitution, because the machinery for holding it had not been provided. So in this case, as the General Assembly has attempted to submit this amendment in a way that, in my opinion, could not be done under our existing election laws, and did not provide the machinery for submitting it in the form prescribed by them, I thought it could not be submitted. For these reasons I was unable to agree with the majority of the court as to the effect of section 2 of this bill.

I am authorized to say that Judges

PEARCE and SCHMUCKER concur in this opinion.

1. A municipal ordinance provided that on the execution of a contract with the city 10 per cent. of the amount of the contract should be deposited with the treasurer to secure the contract, the deposit to be returned on its fulfillment if there was no default. The contract provided that the order for the surrender of such 10 per cent. should be given if the contract was completed to the satisfaction of the director of public works. The contractor accepted a receipt providing that such deposit was made with the understanding that, if he failed to perform the contract in accordance with his specifications, and the director of public works should do such neglected work, he could charge the expense thereof, and draw from the treasurer to

an amount not exceeding such 10 per cent., and that, if the contract was properly completed, such 10 per cent., or any part thereof, remaining, should be surrendered to the contractor. General regulations required the contractor, in addition to the deposit, to give a bond, and also that the director, on default, might have the work properly done, and pay for the same out of the contractor's deposit. During the performance of the contract the director made deductions, and, when the contract had expired, refused to give an order for the deposit on the ground that the work had not been properly done. Held, that the deposit was an additional and cumulative security in addition to the bond for the performance of the contract.

2. Where money is deposited to secure the performance of a city contract to the satisfaction of the director of public works, the question of satisfactory performance was one involving the discretion of such director, and mandamus would not lie to compel the return of the deposit on the ground that the work had been satisfactorily done.

[Ed. Note. For cases in point, see vol. 11, Cent. Dig. Contracts, §§ 1309, 1310; vol. 33, Cent. Dig. Mandamus, §§ 181, 189; vol. 36, Cent. Dig. Municipal Corporations, § 890.]

Appeal from Court of Common Pleas, Philadelphia County.

Petition by the commonwealth, on the relation of James Curran, for writ of mandamus to the city of Philadelphia and others. Upon an order refusing the writ, relator appeals. Affirmed.

It appeared that on January 2, 1904, the petitioner requested the director of the department of public works to deliver to him an order on the city treasurer to enable him to obtain the return of the 10 per cent. which he had deposited in accordance with the terms of the ordinance and contract. The director refused to deliver the order. A petition was filed, setting forth the facts, and praying for an alternative mandamus requiring the execution and delivery of the order by the director and payment by the city treasurer to the petitioner of this sum of $17,200. An alternative writ having been allowed and duly served, a return thereto was made, in which it was averred that the contract was not fulfilled or performed to the satisfaction of the director of the department of public works, and that default was made and the work neglected and imperfectly performed; that streets were not adequately or properly kept clean; and that, in addition to the specific neglect, omissions, and defects for which fines and penalties were imposed in accordance with the specifications, default was made in the performance of the contract, and the streets were not properly cleaned as stipulated by its terms. The relator filed a demurrer, alleging the return was defective, both in form and substance. The court overruled the demurrer and made an order refusing the mandamus.

Argued before MITCHELL, C. J., and DEAN, FELL, BROWN, MESTREZAT, POTTER, and ELKIN, JJ.

Alex. Simpson, Jr., Samuel Goodman, Jr., and William Findley Brown, for appellant. Ernest Lowengrund, Asst. City Sol., and John L. Kinsey, City Sol., for appellees.

MITCHELL, C. J. The relator, Curran, entered into a contract with the city of Philadelphia to clean certain streets during the year 1903 for the sum of $172,000, and in compliance with the requirements of his contract and the ordinance of December 24, 1881, he deposited 10 per cent. of the contract amount, to wit, $17,200, in cash with the city treasurer. He also gave bond, with security, under other ordinances, for the performance of his contract. At the close of the year 1903 he demanded of the director of public works an order on the city treasurer for the return of his deposit of $17,200, and, this being refused, he brought this suit.

The first question is whether mandamus will lie. That depends on the terms of the deposit and the nature of the duty to return it. The claim of appellant is that the deposit is not a general security for due performance of the contract, that being provided by the bond with surety, but is a special and limited security to enable the director of public works to have done promptly any work which the contractor has neglected, and to pay for the same by drawing on such special fund. At the end of the year, if the fund has not been drawn upon for that purpose, the contention is that the function of the fund has ended, and the duty of returning it is absolute and ministerial, and the facts not being disputed, the duty may therefore be enforced by mandamus. In support of this view it is urged that the general regulations for proposals subject to which the contract was made provided, inter alia, that: "(1) Contractors shall, within ten days after the award of the contract, deposit with the city treasurer ten per cent. of the amount of each contract awarded, in cash, and also enter into bond, as provided by ordinance, to be approved by the city solicitor, in one half the amount of such contract. A penal bond in proportionate amount of contract is also required." And further: "(9) Failure to comply with any part of the contract, or of these specifications shall be cause for the director of the department of public works, without notice to the contractor, to employ sufficient force to have the work contracted for properly done, and to pay for the same out of the fund deposited as a security by the contractor." The contract itself provides: "And if, upon the 31st day of December, 1903, the said contract be completed to the satisfaction of the said director, then the said party of the second part shall be given an order upon the said city treasurer for the surrender of the ten per centum deposited as a guarantee for the faithful performance of the same." Then, as bearing on the general security for performance, it

is pointed out that the contractor gave a bond with surety in the sum of $86,000, which is available to secure the city for any loss by the contractor's default; and the city has further protected itself by the terms and mode of payment for the work admittedly done. By the contract it was provided that: "Payments will be made in equal monthly installments, except for the months of January, February and March. During the said months, one half the regular monthly installments shall be paid, less deductions for noncompliance with this contract, and if on or before the first day of April, the whole district shall be cleaned to the satisfaction of the said director, then any balance of the amount so retained shall be paid to the said party of the second part. Should the streets not be so cleaned by the said first day of April, then the amount retained shall remain the property of the said city of Philadel phia." The contract further gave the director of public works final and exclusive authority to make such deductions for noncompliance, and the relator's petition avers, and the director's answer does not deny, that the director did in fact make deductions from month to month, thus leaving in the city treasury a large part of the contract price besides the cash deposit of $17,200, none of which had been used to pay for work done by order of the director to make good the contractor's default.

If the contention of appellant, thus set forth, is sound, that the deposit was not a part of the general security for the city, but an additional, special, and limited security only to furnish an available fund to enable the city to have omitted work done promptly, and, the contract time having expired without any of it being so used, then it is quite clear that the purpose of the deposit was ended, and the duty to return it was absolute and ministerial. In such case mandamus to the official would lie. On the parts of the contract thus far mentioned appellant's case makes a strong presentation. But other parts do not look the same way, especially when viewed in connection with the acts of the parties. Thus, when appellant paid in the deposit to the city treasurer, he accepted a receipt for it in the following form: "Said amount being deposited with the city treasurer as a guarantee of the performance of the said contract and with this distinct understanding and agreement, to wit: That if said James Curran shall fail to comply with all the terms of said contract, and to do all work coming within the limits of the specifications thereto attached, and the director of the department of public works shall do such neglected work, then the said director may charge the expense thereof, and the penalty incurred by such noncompliance against said James Curran, and may draw from the city treasurer to an amount not exceeding the ten per centum as herein set forth. Should the said

contract be completed to the satisfaction of the said director, the said ten per centum, or any part thereof remaining, shall be surrendered to the said James Curran." Further, the contract itself, as already quoted, provides that the order for the surrender of the 10 per centum deposited as a guaranty for the faithful performance of the same shall be given if "the said contract" shall be completed "to the satisfaction of the director." Both parties thus seem to have assumed at the time that the satisfaction of the director with the completion of the whole contract was a factor in regard to the return of this deposit, as well as in regard to the general security under the bonds. And when we turn to the ordinance requiring the de posit we find that that is apparently the intent of the requirement. Its language is, "Cotemporaneous with the execution of the contract, 10 per cent. of the amount of the contract shall be deposited with the treasurer to secure the fulfillment of said contract, said deposit to be returned at the end of the contract if there be no default." As this is the law under which the contract was entered into, and everything in connection with it was done, its provisions are decisive, and must govern the interpretation. We are brought, therefore, to the conclusion that the 10 per cent. deposit was not merely to furnish a quick and convenient special remedy, but was an additional and cumulative security for the performance of the whole contract. This being so, the question of satisfactory performance is one involving the discretion of the director of public works, and therefore mandamus will not lie. Judgment affirmed.

(211 Pa. 51)

COMMONWEALTH v. REAL ESTATE TRUST CO. OF PHILADELPHIA. (Supreme Court of Pennsylvania. March 6, 1905.)

REAL ESTATE BROKERS-LICENSE TAX-TRUST COMPANY.

A trust company incorporated under Act April 29, 1874 (P. L. 73), and the supplements thereto, and authorized to buy and sell real estate, is not liable, as a real estate broker, for the license tax imposed on "any individual or corporation" by Act May 27, 1841 (P. L. 396), as amended by Acts April 10, 1849 (P. L. 570), May 15, 1850 (P. L. 772), and May 2, 1899 (P. L. 184).

Appeal from Court of Common Pleas, Philadelphia County.

Action by the commonwealth against the Real Estate Trust Company of Philadelphia. From a judgment of the superior court re versing a judgment overruling defendant's demurrer, the commonwealth appeals. Affirmed.

Plaintiff brought suit in assumpsit against defendant to recover $73.70 for a license tax assessed by the appraisers of mercantile taxes against defendant as a real estate

broker in the city and county of Philadelphia during the year 1901; averring in the statement of claim that defendant's sales amounted to $2,300 for the year 1901, upon which the tax was 3 per cent., or $69, the fee for the city $1.25, and the penalty $3.45. In response to defendant's rule for a more specific statement of claim, plaintiff further averred that defendant was liable to the payment of such tax by virtue of the acts of Pennsylvania of May 27, 1841 (P. L. 396), as subsequently amended by the acts of April 10, 1849 (P. L. 570), May 15, 1850 (P. L. 772), and May 2, 1899 (P. L. 184). Defendant demurred to plaintiff's statement assigning as reasons for demurrer: (1) That the acts of Assembly of May 27, 1841, April 10, 1849, May 15, 1850, and May 2, 1899, did not authorize the assessment of such tax against defendant; (2) that there was no act of Assembly or other authority authorizing the assessment of such tax; (3) that the defendant was not a real estate broker, within the meaning of said acts of assembly. The court overruled defendant's demurrer and entered judgment for plaintiff, under which damages were assessed at $77.15. The defendant appealed to the Superior Court, which reversed the judgment of the lower court, and entered judgment for defendant.

Following is the opinion of the court below (Porter, J.):

"The appellant was duly incorporated as a trust company under the act of 1874 (P. L. 73) and the supplement thereto, including the act of May 9, 1889 (P. L. 159); and it is authorized, among other things, to transact the business of buying and selling real estate. The commonwealth brought this action to recover the amount alleged to be due from the defendant for license tax as a real estate broker, and filed a statement averring the liability of the defendant under the provisions of the acts of May 27, 1841 (P. L. 396), April 10, 1849 (P. L. 570), May 15, 1850 (P. L. 772), and the Act of May 2, 1899 (P. L. 184). The appellant demurred to the statement, and the court below entered judgment in favor of the plaintiff, from which judgment we have this appeal. Do the statutes upon which the commonwealth relies authorize the imposition of the tax in question upon this defendant?

"Statutory authority for the imposition of the tax in question must be shown. If there is no act of Assembly conferring the power to impose the tax or license fee sued for in this case, the plaintiff is not entitled to recover. It is conceded that, if authority for the tax is not found in one of the acts of Assembly above referred to, it does not exist. The act of May 2, 1899 (P. L. 184), is entitled 'An act to provide revenue by imposing a mercantile license tax on vendors of or dealers in goods, wares and merchandise, and providing for the collection of said tax.' There is nothing in the provisions of

that statute which would warrant the imposition of any tax or license fee upon real estate brokers, and it can have no bearing upon the consideration of the question raised by this record. The act of May 27, 1841 (P. L. 396), is the foundation of the system for the taxation of stock and exchange brokers. Section one enacts 'that from and after the first day of July, one thousand eight hundred and forty-one, when any individual or copartnership residing in the city or county of Philadelphia shall have paid one hundred dollars [here follow provisions regulating the amount of tax in other portions of the state] into the treasury of the county in which he or she or they shall respectively reside, for the use of the commonwealth, with a view to the use and exercise of the business or occupation of a stockbroker, the treasurer of the proper county shall thereupon grant to such individual or copartnership, a commission in legal form, under the seal of the county, authorizing him, her, or them to purchase and sell as agents, or for the use and benefit of others in the city or county to be designated in said commission, for such brokerage, commission or other compensation as may be agreed upon between the parties, any public loan or stock,' etc., 'for the term of one year from the date of such commission.' The second section authorizes the issuing of a commission, upon compliance with similar conditions, to any individual or copartnership, authorizing him, her, or them in like manner to exercise the business and occupation of an exchange broker. The third section authorizes the commission, upon like terms, of any individual or copartnership to exercise the business of a billbroker. The fourth section provides for the issuing of new commissions for each and every succeeding year during which any individual or copartnership shall continue to use or exercise the business or occupation either of stock broker, exchange broker or bill broker.' This sec

tion also provides that in case either of the parties commissioned shall die, or shall remove from and cease to exercise the business or occupation of a broker, before the expiration of the term in the commission specified, the benefit of said commission for the unexpired term shall inure to, and be continued in, his, her, or their legal representative or assignee. Section 5 provides that 'no individual or copartnership, other than those duly commissioned under the provisions of this act, shall use or exercise the business or occupation of a stock broker and exchange broker, or a bill broker, under a penalty of five hundred dollars for each and every offense.' Section 6 merely imposes a limitation upon the power to make contracts for the future delivery of stocks, etc., while section 7 regulates the manner in which the county treasurer shall make settlement with the Auditor General. Neither of these sections have any bearing upon the question of the power to tax. This statute dealt only