timber for pit posts, and Hammer to pay for making them. Under this contract a mine was opened and Hammer from time to time took out and sold approximately 61⁄2 acres of coal, the greater part of which was taken out more than six years ago, and the total amount mined aggregated about 625,000 bushels. Such timber as was required for pit posts in the mine was cut on the farm, the amount taken aggregating about five acres, worth $60 per acre."

"(7) Charles Mehaffey built and constructed at the mouth of the pit a platform and weigh-shanty, and Hammer constructed a tipple. These buildings have been reconstructed from time to time, and remain upon the property.

or remove any of the Mehaffey coal, nor has any of it been mined since that time by any other person.

"(10) In 1901 Hammer purchased the Hickman coal, which adjoins the Mehaffey coal, and thereupon began mining and removing the same through the entry of the Mehaffey mine, and continued to do so until the bill in this case was filed, whereupon he ceased to use the Mehaffey entry and opened another entry through which he removed the Hickman coal without entering upon the Mehaffey coal or using the entry through it. The Hickman coal was an abandoned mine at the time at which Hammer purchased it. After obtaining the coal, Hammer made several openings connecting the Mehaffey mine with "(8) The mining of the coal and cutting of the Hickman mine. The Hickman coal lay timber was done openly, and, so far as Ham-higher than the Mehaffey coal, which caused mer was concerned, was done in good faith water gathered in the Hickman mine to perwithout knowledge on his part that Charles colate through the coal in place on the diMehaffey did not own the farm and coal, and viding line between the two farms, into the he accounted to Mehaffey for all coal mined Mehaffey mine. To avoid such accumulation and paid him therefor, and has not made any of water and prevent it flowing into the Mepayment on account of mining such coal to haffey mine, Hammer at an expense of $400 either the trustee or any of the remainder- constructed an outlet by tunneling from a men. The fact that coal was being mined water course into which the Mehaffey mine from the farm was known to James Evans, drained, thus providing a drain through which trustee, who made no objection. The mining the water of both mines was carried off. was also known to the children of Charles The roofs of two of the rooms of the MehafMehaffey, all of whom, with the exception of fey mine from which the coal has been reJames Mehaffey and Sarah Taylor, worked moved have fallen in, rendering access to in the mine and cut timber from the farm for these rooms impossible except to a short disuse in the mine. No objection was made by tance. With this exception, the mine is in any one to the coal being mined and sold, nor fairly good condition, and could be made fit was any demand made upon Hammer for for working within a few days by the exan accounting, until November 27, 1905, when penditure of a very small sum of money. the following notice was served on him: 'McKeesport, Pa., November 23, 1905. Mr. H. W. Hammer, North Versailles Township, Pa. -Sir: You are hereby notified and required to at once cease further operations in the sale and mining of coal in, under and upon the premises lately owned by Alexander Mehaffey, deceased; and also to account within ten days from date hereof, to the Safe Deposit & Trust Company of Pittsburg, Pa., Trustee, for all coal mined by you upon the Easterly side of the Township Road of such tract, otherwise we will proceed against you according to law. John Mehaffey, Joseph Mehaffey, Charles E. Mehaffey, remaindermen.'

"(11) The testimony of plaintiff indicated that there were depressions upon the surface of the Mehaffey farm at certain points where the coal had been removed; that at the time the bill in this case was filed the wall of the barn had fallen down in part, and the barn had moved a few inches on its foundation, and also that the fences upon the farm were not in good condition; and that fences separating fields had been removed. As respects the depression, they showed themselves on the surface a number of years ago during the lifetime of Charles Mehaffey. The surface on and over all of the depressions, with one exception, is susceptible to cultivation "(9) On February 6, 1905, Hammer pur- and had been cultivated. With respect to chased from Charles Mehaffey about 24 the depression not cultivated, the testimony acres of the Mehaffey coal lying west of the showed that it could be plowed over at any center line of the township road for the con- time and made tillable. The break in the sideration of $1,200 and received a deed wall of the barn has been properly repaired therefor, made by Mehaffey and his wife, by Elizabeth Mehaffey, the life tenant, and Elizabeth, dated February 6, 1905, and re- the barn straightened, so that it is at the corded May 10, 1905; the consideration be- present time in good condition. The fencing ing paid to Charles Mehaffey in full by Ham- at the present time is also in good condimer. Subsequently Hammer took out from tion. While it is true one or two fences septhis tract 27 wagon loads of coal, and on re- arating fields have been removed, such receipt of the notice of November 23, 1905, im- moval became necessary in the working of mediately ceased operations in any of the the farm, and cannot be considered waste; Mehaffey coal, and consulted his attorney the testimony indicating that the change in who advised him not to mine further. From the lines of fields was for the advantage of the date of that notice Hammer did not mine the farm. The present condition of the farm

is good and equal to the general condition | laches of plaintiff, and also the relations exof farms of like character in that neighbor-isting between the parties at the time will hood.

"(12) None of the defendants had anything to do with, or are liable for, the cutting of timber from the farm, or the mining of coal from it, or the depressions resulting therefrom, except Harry W. Hammer. Nor did any of them, except Elizabeth Mehaffey, have anything to do with the permissive waste.

have a great if not a controlling bearing upon the controversy. As we view the case, there is very little equity in favor of plaintiff. Hammer, the real defendant, acted in good faith in making the contract with his stepfather for taking out the coal, and in preparing to do so he was assisted if not controlled by his stepfather. And after the mine was open he gave employment from "(13) In 1891 Harry W. Hammer was 27 time to time to all his stepbrothers, the reyears of age, and John Mehaffey, Charles Me- maindermen, except one, and he paid to his haffey, and Joseph Mehaffey, three of the re-stepfather a fair and reasonable price for maindermen, were all minors, their ages being respectively, 14, 12, and 9 years.

"Conclusions of Law.

"The bill asks that defendants be restrained from further operating the mine on the Mehaffey farm and mining coal therefrom, and also asks that they be compelled to account for the coal taken therefrom under the

verbal contract with Charles Mehaffey, the life tenant. There seems to be no necessity for an injunction, as the bill shows that no mining has been done on the premises since November 23, 1905, and the answer and testi

every ton of coal mined. The trustee and several of the remaindermen, who have been of age for many years, stood by and without objection permitted defendant to take out the coal and make payments to Charles Mehaffey during his lifetime, and now that the life vened since the waste complained of was tenant is dead and many years have intercommitted, if there is any advantage to defendant by a proceeding at law, he is entitled

to that benefit.

that the bill might be dismissed without detWhile we are of opinion leave to plaintiff to move for an injunction riment to plaintiff, we will retain it, with mony show that none will be done in the fu- their avowed intentions not to further mine should defendants at any time disregard ture. Under these facts, a case for equitable coal from the premises. The prayer for an relief is not made out in this respect. As to accounting is refused, without prejudice, howplaintiffs' right to an accounting in this proceeding, we are of opinion they have not ever, to plaintiff to institute and prosecute shown such conditions as to entitle them to any proceedings at law they may deem neceshave the amount, if any, due them ascertain-sary to recover any sum or sums that may be due them on account of the injury complained of in the bill."

ed here.
That matter seems to us to be
clearly a matter for determination in an ac-
tion at law. The account is a mere matter of
charge with no entries on the other side, at
least none shown by the testimony now be
fore us. Under these circumstances, defend-
ants are, in our opinion, entitled to have that
matter settled according to the rules of law,
and especially is such the case under the cir-
cumstances here, where the death of Charles
Mehaffey, the statute of limitations, the

Argued before FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

G. W. Williams, Patterson, Sterrett & Acheson, and W. S. Woods, for appellant. W. B. Rodgers and G. A. Johnson, for appellees.

PER CURIAM. The decree is affirmed on the opinion of the learned president judge of the common pleas.

ELECTIONS ( 145*)-NOMINATIONS-"CERTIFI-
CATES OF NOMINATION"-"NOMINATION PA-
PERS."

or and members of the city council of the city of Cranston, under this act, shall be held on the 19th day of April, A. D. 1910, and shall be called and warned by the town clerk of the town of Cranston in the manner prescribed by law for the calling of town meetings. The town council of said town shall designate one or more voting places within each voting district of said town for said first election, and at least five days prior to the date of such election shall appoint a warden and clerk for each of such voting places, to serve at such election, who shall be engaged to the faithful performance of their duties as prescribed by law. At said first election the voters of said town qualified

The act incorporating the city of Cranston, providing for caucuses for the selection of candidates to be voted for at the first election, and that all "certificates of nomination" of candidates shall be filed at least nine days before the first election, merely provides for the filing of certificates of nomination at caucuses; and Gen. Laws 1909, c. 11, § 18, providing for the filing of "certificates of nomination" and "nomination papers," governs as to the filing of nomination papers, since the statutes by long usage make certificates of nomination refer to nomi- to vote for general officers shall give in their nations by caucuses, while nomination papers relate to nominations by individual voters. [Ed. Note.-For other cases, see Elections,

Dec. Dig. 145.*]

Sweetland and Johnson, JJ., dissenting.

Mandamus by William B. Greenough, Attorney General, at the relation of Edward M. Sullivan, for himself and others, against Daniel D. Waterman, Town' Clerk, to compel respondent to place on the official ballot names of candidates. Petition dismissed.

votes for a mayor of the city of Cranston, and the voters of said town qualified to vote for the imposition of a tax or the expenditure of money, and residing within the boundary of a ward of the city of Cranston as such ward is herein before described, shall give in their votes for four members of the city council to represent such ward in the city council of the city of Cranston, and four members of said city council shall be elected from each of such wards. The chairman of the town committee of any political party which shall have, at the election for general

Edward M. Sullivan and Joseph McDonald, for petitioner. Benjamin W. Grim, for re-officers next preceding such first election spondent.

polled at least two per cent. of the total votes cast for the candidates for governor, and DUBOIS, C. J. This is a petition for a which desires to hold caucuses for the purwrit of mandamus, brought by the Attorney pose of selecting candidates to be voted for General, at the relation of Edward M. Sulli- at said first election, shall at least two days van, for himself and other citizens, to compel before any such caucus appoint a caucus the respondent, as town clerk of the town of chairman and a caucus clerk for each ward Cranston, to place upon the official ballot to caucus, which said caucus chairman and be used in the election to be held in said clerk shall be qualified electors residing Cranston on the 19th day of April, 1910, the within the boundaries of the ward in which names of said Sullivan and the other candi- they are to serve, and members of such podates for office named in the "Independent litical party: Provided, however, that such Citizens" nomination papers. The said nom-chairman shall have given to the town clerk ination papers were filed in the town clerk's of said town ten days' notice, in writing, of office with the respondent on the 6th day of the date selected for such caucuses. It shall April. The respondent based his refusal up-be the duty of the town clerk of said town, on the ground that said nomination papers should have been filed on or before April 4, 1910, under the provisions of Gen. Laws 1909, c. 11, § 18, which reads as follows: "Certificates of nomination and nomination papers for officers referred to in section 1 of this chapter shall be filed at least twenty days, and such certificates and papers for of ficers referred to in sections 2 and 3 of this chapter shall be filed at least fifteen days, previous to the day of the election for which the candidates are nominated, and may be filed by any person lawfully in possession of the same for that purpose." The petitioner claims that the provisions of section 33 of "An act incorporating the city of Cranston" control the present election.

Section 33 reads as follows: "The first meeting of electors for the election of a may

in and at the expense of said town, to provide meeting places within the boundaries of each ward, for such caucuses, and to notify, in writing, such chairman, as to the places so provided, at least five days prior to the date selected for holding such caucuses; but no such caucus shall be held within two days, exclusive of Sundays, of the last day for filing the certificates of nomination for said first election. All certificates of nomination of candidates to be voted for at said first election shall be filed with the town clerk at least nine days before said first election. Within twenty-four hours, exclusive of Sunday, after the filing of any such certificate, every person so nominated for any office shall file with the said town clerk his acceptance of such nomination, signed by him, and in making up the ballot to be used

For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

75 A.-55

at said first election said town clerk shall not place thereon the name of any person who has failed to so signify his acceptance of such nomination.".

its direction, even to the fixing of the time within which certificates should be filed with the town clerk. It would have been competent for the Legislature to have added the words "and nomination papers" after the word "nomination," so that the clause would have read, "All certificates of nomination and nomination papers of candidates to be voted for at said first election shall be filed with the town clerk at least nine days before said first election." But they did not. They could have fixed different times, if they had seen fit, with equal propriety; it being a question of expediency, and consequently purely legislative. But this they did not do. They merely provided for the certificates, and left the nomination papers to be filed under the provisions of Gen. Laws 1909, c. 11, § 18. Individual voters have not been deprived of the privilege of making their nominations as usual, and no complaint is made that the time was too brief in which to obtain nominations on nomination papers for filing 15 days before election. On the contrary, it was stated that the petitioners were caution

The contention of the petitioner is that the words "all certificates of nomination of candidates to be voted for at said first election shall be filed with the town clerk at least nine days before said first election" are sufficiently broad to include nomination papers as well as certificates of nomination. It is provided by section 31 of said act that: "At all elections held under the provisions of this act the polls shall be opened at six o'clock in the morning and shall remain open until seven o'clock in the evening, and no longer; and at all such elections the provisions of chapter 11 of the General Laws, 1909, entitled 'Of Elections by Secret Ballot,' and of all acts in amendment thereof and in addition thereto, shall be observed, in so far as the same are not inconsistent with the requirements of this act." Gen. Laws 1909, c. 11, provides for "nomination of candidates in convention or caucus" (sections 4 to 7, both inclusive), and for "nomination of candi-ed to return such nomination papers under dates by individual voters" (sections 8 to 15, both inclusive). The nominations in convention or caucus are evidenced by "certificates of nomination," while the nomination by individual voters is contained in the "nomination papers" signed by the voters. While both of said papers, without violence to the language, could easily have been regarded as "certificates of nomination," the Legislature did not see fit to so combine them, or to consider them as synonymous terms, but for many years has seen fit to classify them as separate and distinct. In the face of such consistent usage, continued for so long a time, without exception, so far as we know, can we say that it was clearly the legislative intent, in section 33 of the act incorporating the city of Cranston, to disregard their previous classification, continued through various revisions of the statutes, and to combine "certificates of nomination" and "nomination papers" in the same class?

the provisions of Gen. Laws 1909, c. 11, § 18, but did not see fit to do so. In these circumstances we cannot say that the Legislature intended to have the word "certificates" include nomination papers.

The petition is therefore denied and dismissed.

BLODGETT and PARKHURST, JJ., con

cur.

SWEETLAND, J. (dissenting). In the act creating the city of Cranston there appears to be no reason for the discrimination, and I am of the opinion that it was not the intention of the Legislature to make an unjust distinction, between those candidates, to be voted for at the first election in said city, who are nominated at party caucuses and those who are nominated by individual voters upon nomination papers. Under the provisions of section 31 of said act it is clearly intended that candidates to be voted for at said first election may have their names printed upon the official ballot when nominated by individual voters upon nomination papers. The only provision in said act for bringing nominations to the knowledge of the town clerk, in order that said clerk may place a nomination upon the official ballot, is contained in section 33 of said act, and is as follows: "All certificates of nomination of candidates to be voted for at said first election shall be filed with the town clerk at least

We think not. An examination of said section 33 discloses the fact that caucuses are therein provided for, "caucuses for the purpose of selecting candidates to be voted for at said first election"; that "no such caucus shall be held within two days, exclusive of Sundays, of the last day for filing the certificates of nomination for said first election"; and that "all certificates of nomination of candidates to be voted for at said first election shall be filed with the town clerk at least nine days before said first election." | nine days before said first election." The exThe town of Cranston had no caucus law pression "certificates of nomination," as used before this, and this caucus law is limited to in that section, may well be construed to inthe first election to be held thereunder. As clude nomination papers, and should be so this was a new provision concerning the town construed if such construction will best exand city of Cranston, and confined to one press what must have been the intention of election, it was proper to direct what steps | the General Assembly in enacting a law deal

class of electors in said city. The word "cer- | decision sustaining the sale, is extended from tificate" in its broad signification is "a veri- the rendering of final judgment. fication," and a nomination paper, signed by the requisite number of voters, is in fact a verification and a certificate that the voters signing said paper have nominated the person named therein as a candidate for the office named therein. This construction of the word "certificates," as used in said section, is supported by the broad language of the provisions of the act above quoted.

*For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes