* (108 A.) art. 1, § 7, are to be presented to the burgess | powers existing in one department over the for approval or disapproval, and, if vetoed, other, as distinguished from such as are exwill not become effective unless again passed pressed in or reasonably to be implied from by a vote of "two-thirds of all the members such Constitution or laws, at once necessarily elected to said council," and are the "by-laws, ended, even if it properly existed under the rules, regulations and ordinances" which by English system of government. If this were chapter 7, art. 2, § 11, cl. 3, the burgess is not so, one of the co-ordinate branches of required "to sign after they shal. government could transcend the powers given have been correctly transcribed by the secre- to it by the instrument which created them tary"; in other words the clause relied on by both, the other would suffer an equivalent appellees refers only to the legislative "duty loss of power, and, instead of the two being of the council," and hence it also fails to co-ordinate, one would be dominant and the sustain the judgment below. other servient to the extent of the alleged incidental power. As it is, the people are entitled to the services of the officer during the entire term for which they elected him (Lloyd v. Smith, 176 Pa. 213, 35 Atl. 199), unless he be removed in the way prescribed by the Constitution, if the officer is a constitutional officer (Bowman's Case, 225 Pa. 364, 74 Atl. "An act of a municipal corporation, done in 203), or by the Legislature or under its auan attempt to exercise power not possessed by thority in the manner provided by Constituit, is void. There is no distinction in reason tion or statute, if the officer is not a constibetween the cases of entire absence of enact-tutional officer (Com. v. Weir, 165 Pa. 284, ment conferring power, and a prohibition of its 288, 30 Atl. 835). If no authority be given exercise beyond a certain limit. In one case to other agencies, the Legislature alone can it is not granted, in the other it is expressly withheld, and in each there is a total absence act, subject to constitutional limitations, if of authority." any, under its supreme power to pass laws not prohibited. Likins' Petition (No. 1) 223 Pa. 456, 72 Atl. 858. [3, 4] Nor is there any such incidental right in the borough itself. With us municipalities have no powers, save such as are expressly conferred by statute, or are reasonably to be implied from the powers actually granted. In Wimer v. Worth Township, 104 Pa. 317, 320, we said: In Commonwealth v. Moir, 199 Pa. 534, 541, 49 Atl. 351, 352 (53 L. R. A. 837, 85 Am. St. Rep. 801), we said: "Municipalities are agents of the state, invested with certain subordinate governmental functions for reasons of convenience and public policy. They are created, governed, and the extent of their powers determined by the Legislature, and subject to change, repeal, or total abolition at its will." A recognition of this fundamental distinction between the two systems of government, explains the fact that when this court (Spangler v. Commonwealth, 3 Bin. 533 et seq.), in compliance with the requirements of the act of April 7, 1807 (P. L. 163), reported to the Legislature the various British statutes in force in this commonwealth, none of those so reported had any relation to the In McCormick v. Hanover Township, 246 political subdivision of the state or to any of Pa. 169, 172, 92 Atl. 195, 196, we said: "It is an undisputed rule that municipalities, no matter how high their grade, can exercise no powers save those for which there is express statutory authority, or such as are necessary to the exercise of their corporate powers, and are therefore implied." the officers thereof; and this applies also to all the other British statutes, from time to time held applicable, notwithstanding the changed conditions arising out of our independence. And it explains, also, why a legislative power of amotion of the executive, though it may be incident in the English Hence, as appellees' claim of right to re-system of government, has never found place move the burgess is dependent upon an inference of the existence thereof in the borough itself, and admittedly none such has been conferred by Constitution or statute, for the judgment below is this in this commonwealth, save in the manner and to the extent constitutionally provided. [6] The municipalities of the state are not remediless, however, if important reasons exist why their executives should be removed, for by article 6, § 4, of the Constitution, it is provided as follows: "All officers shall hold their offices on the condition that they behave themselves well while in office, and shall be removed, on conviction of misbehavior in office, or of any infamous crime. Appointed officers, other than judges of the courts of record, and the superintendent of pleasure of the power by which they shall public instruction, may be removed, at the have been appointed. All officers elected by the people, except Governor, Lieutenant Governor, members of the General Assembly, and judges of the courts of record, learned in the law, ᄀ shall be removed by the Governor, for reason- | appraisement in the event of disagreement as vided, until and unless the Legislature, in its wisdom, shall add thereto. [7, 8] The only case in this state which seems to antagonize the views above expressed, is Evans v. Phila. Club, 50 Pa. 107, 117, where it is said: "The power of amotion for adequate cause is an inherent incident of all corporations, whether municipal or private, except, perhaps, such as are literary or eleemosynary.' 99 Inasmuch, however, as the question then before the court related solely to the expulsion of a member of a private corporation, the statement is obiter dictum, so far as it relates to the amotion of officers of municipal corporatiors; and as the decision at nisi prius was affirmed by an equally divided court, in any event it "is not a decree or judgment of this court, in support of which the rule of stare decisis can be successfully invoked." Griel's Estate, 171 Pa. 412, 416, 33 Atl. 375, 377. The judgment of the court below is reversed, and the record is remitted to the court below, with directions to enter judgment for plaintiffs and to issue a writ of peremptory mandamus as prayed for. (42 R. I. 460) 668(14)—WHETHER INSURED AFTER FAILURE OF APPRAISERS TO AGREE SEA- Where insurance appraisers could not agree upon an umpire, and plaintiff brought suit and thereafter asked a new appraisement, it was a question for the jury whether he seasonably followed up his rights under the policy, and an instruction to find for defendant if no request for a new appraiser was made until a date when the action was pending was properly refused. 4. INSURANCE 505- FAILURE TO PROTECT PROPERTY AFTER FIRE MERELY REDUCED DAM- Under a policy requiring insured in the event of a fire to protect the property from further damage and put it in the best possible order, the failure to do so did not prevent a recovery except for such of the property as could have been saved by the use of reasonable means at his command. 5. INSURANCE 568-INSTRUCTION THAT IT WAS AS MUCH THE DUTY OF INSURER AS OF INSURED TO SEEK NEW APPRAISAL APPROVED. An instruction that it was as much the duty of the insurer as of insured to seek a new appraisal where the appraisers could not agree on an umpire was proper where the court was not considering the question of appraisal as a condition precedent to suit, but the question of plaintiff's diligence in seeking a new appraisal. 6. INSURANCE 648(1), 664- EVIDENCE OF NEGOTIATIONS CONCERNING LOSS WAS ADMISSIBLE ON QUESTION OF WAIVER AND DILIGENCE. Evidence of negotiations between an insurMESSLER v. WILLIAMSBURG CITY FIRE ance company and the insured concerning a loss INS. CO. (No. 5251.) (Supreme Court of Rhode Island. Jan. 31, 1920. On Motions for Reargument, March 26, 1920.) 1. INSURANCE ~622(4)—ACTION NOT BARRED BY POLICY LIMITATION IF PLAINTIFF CANNOT COMPLY WITH PROVISION. Though a policy bars actions unless commenced within 12 months after the fire, where it also gives insured 60 days to file proofs of loss and the insurer 60 days to examine them, authorizes it to require further data and information, and provides for an appraisal and prohibits actions until full compliance with all requirements, including the provision for appraisement, suit is not barred in 12 months if insured, acting diligently and in good faith, is unable, to bring suit within that time. 2. INSURANCE 621-WHEN PLAINTIFF MAY SUE IF LOSS AGREED UPON OR NOTICE OF DISAGREEMENT IS NOT GIVEN. Under a policy making the loss payable 60 days after notice, ascertainment, and satisfactory proof of the loss, and providing for an (108 A.) relevant and prejudicial answer where he does | fendant was entitled to an instruction that the not except to the refusal to strike out the an- jury must find defendant's appraiser was comswer, if there was such refusal, or move to petent, disinterested, and duly qualified, as othtake the case from the jury. erwise the jury might conclude that his com364(2) LETTER SET OUT IN petency and disinterestedness were in issue. Stearns, J., dissenting. 9. PLEADING DECLARATION RELEVANT ONLY TO SHOW DE- . In an action on a policy under which appraisers were appointed who could not agree on an umpire, where plaintiff alleged the appointment by each party of a competent and disinterested appraiser, a letter set out in the declaration demanding a new appraisement and intimating that defendant's appraiser was not competent and disinterested was relevant only to show the demand for a new appraiser, and much of it might have been stricken as irrelevant and incompetent. 10. INSURANCE 662(2)-LETTER DEMANDING NEW APPRAISER ON FAILURE OF APPRAISERS TO AGREE IS ADMISSIBLE. In an action on a policy under which appraisers were appointed who could not agree on an umpire, a letter demanding a new appraisal was admissible to prove such demand. 11. PLEADING 36(2)-PLAINTIFF ALLEGING APPOINTMENT OF COMPETENT AND DISINTERESTED APPRAISERS COULD NOT PROVE THAT DEFENDANT'S APPRAISER WAS INCOMPETENT OR INTERESTED. In an action on a policy under which appraisers were appointed who could not agree on an umpire, where plaintiff alleged the appointment by each party of a competent and disinterested appraiser, he should not have been permitted to prove that defendant's appraiser was incompetent or interested. 12. INSURANCE 645(1) - PLEADINGS MADE ISSUE AS TO FAILURE OF APPRAISAL THROUGH DEFENDANT'S FAULT. In an action on an insurance policy, the declaration, pleas, and plaintiff's traverse of the pleas held to make an issue as to whether there was a failure of an appraisal through defendant's fault. Exceptions from Superior Court, Providence and Bristol Counties; John Doran, Judge. Action by Arnold C. Messler against the Williamsburg City Fire Insurance Company. Judgment for plaintiff, and defendant brings exceptions. Defendant's seventy-fourth exception sustained, but all other exceptions overruled, and case remitted. See, also, 95 Atl. 601. Waterman & Greenlaw, Lewis A. Waterman, Ralph M. Greenlaw and Charles E. Tilley, all of Providence, for plaintiff. and Brown & Caine, of Boston, Mass. (E. Huddy, Emerson & Moulton, of Providence, and Brown & Caine, of Boston, Mass. (E. Butler Moulton, of Providence, and Frederick W. Brown, of Boston, Mass., of counsel), for defendant. RATHBUN, J. This is an action of assumpsit on two fire insurance policies. Heard on defendant's exceptions after verdict for the plaintiff in the superior court for $634.66. The policies were of the standard form prescribed by chapter 222, Gen. Laws 1909. On June 21, 1912, a fire caused considerable damage to a portion of the plaintiff's property covered by these policies. The defendant company was promptly notified, and on the following day its agents visited the scene of the fire. Proofs of loss were duly delivered to the defendant. The parties, being unable to agree as to the amount of the loss, entered into a stipulation September 11, 1912, for the appointment of appraisers. The insurer and the insured each appointed an appraiser, but the two apprais 13. TRIAL 207-LETTER SHOULD HAVE BEEN LIMITED TO PURPOSE FOR WHICH IT WAS AD-ers were unable to agree upon an umpire. MISSIBLE. Where plaintiff, suing on a policy, alleged the appointment by each party of a competent and disinterested appraiser, a letter received in evidence demanding a new appraisal and intimating that defendant's appraiser was incompetent and interested should have been limited to showing the demand, though it was set out in plaintiff's declaration, and no motion to strike it out was made. On May 11, 1913, after considerable fruitless correspondence between the two appraisers, and also between the parties, the plaintiff commenced suit on the policies. Said suit failed on demurrer to the declaration for the reason that the declaration did not allege either an award by arbitration or facts which rendered it unnecessary as a condition precedent to a right of action to first ascertain the amount of loss by appraisal. See Messler v. Insurance Co., 94 Atl. 875. This court sustained the demurrer July 9, 1915. In November, 1913, plaintiff wrote the defendant requesting a new Where plaintiff, suing on a policy, alleged appraisal "without admitting the necessity the appointment by each party of a competent for the same." Defendant refused to conand disinterested appraiser, but introduced a letter in which he insinuated that defendant's sider this request. On February 16, 1916, appraiser was not competent and disinterested, the plaintiff demanded a new appraisal. The and that he and the insurer were responsible demand was refused, and the present suit for the failure of the appraisers to agree, de- was commenced April 20, 1916. 14. TRIAL 207-DEFENDANT INSURER ENTITLED TO INSTRUCTION THAT UNDER PLEADINGS APPRAISER APPOINTED BY IT MUST BE DEEMED COMPETENT AND DISINTERESTED. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [1, 2] Defendant's seventy-third exception, If the parties agree as to the amount of loss is to the refusal of the court to charge the jury in accordance with its seventh request, as follows: or if the insurer fails for 60 days after receiving proof of loss to notify the insured that the insurer objects to the amount demanded in the proof of loss, the insured may bring suit immediately after the expiration of 60 days after making the proof. De Paola v. Insurance Co., 38 R. I. 126, 94 Atl. 700. No appraisal is necessary or can be had unless there is a disagreement as to the amount of the loss. If the insurer on the sixtieth day objects to the loss, as stated in the proof of loss he may still require the plaintiff to furnish much and varied data and information, and if an appraisal is demanded immediately, and all parties act in good faith and with reasonable expedition, it may not be possible to obtain an 'award within 12 months next after the fire. The policy provides that the loss shall not become payable when an appraisal has been required until 60 days after the award; of course, By dissecting the policy we readily find suit should not be brought until the loss the language: "No suit or action on this policy for the recovery of any claim shall be sustainable*** unless commenced within 12 months next after the fire." But, if we are to ascertain the intention of the parties as expressed in their contract, it is necessary to read this language in connection with other provisions of the policy which provide that "In the event of disagreement as to the amount of loss the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and the two so chosen shall first select a competent and disinterested umpire; the appraisers together shall then estimate and appraise the loss." The policy also provides that "The loss shall not become payable until 60 days after the notice, ascertainment, estimate, and satisfactory proof of the loss herein required have been received by this company, including an award by appraisers when appraisal has been required." The policy further provides that— "No suit or action on this policy, for the recovery of any claim, shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements [which includes the provision as to appraisement and award] nor unless commenced within twelve months next after the fire." The policy requires the insured to file proof of loss within 60 days after the fire. The insurer, after receiving the proof of loss, may take 60 days to examine the same. The insured, after taking a reasonable time, not exceeding 60 days, to file his proof of loss, may be compelled to await 60 days before he knows whether or not there is to be becomes payable. It is manifest that it may become impossible for an insured acting diligently and in good faith to comply with all of the provisions of the policy with sufficient dispatch to enable him to bring suit within 12 months next after the fire. Suppose the award was made 11 months after the fire; what must the insured do? If he brings suit within 12 months after the fire, he is met by the objection that the loss was not payable when the suit was commenced. If he waits until 60 days have elapsed after the award, he has not commenced his suit within 12 months next after the fire. What was the intention of the parties as expressed in their written agreement? It is certain that the parties did not intend to agree that the insured, after suffering a loss covered by the policy, should lose his rights under the policy by not commencing suit within 12 months after the fire in the event that it should become impossible for him, without fault on his part, to perform all of the conditions precedent to the right to bring suit within 12 months next after the fire. The parties in their agreement did not specifically provide for the contingency which has arisen. A reasonable construction must be given to the somewhat inconsistent provisions of the policy. When conflict has arisen between the dif ferent provisions of the policy in the limitation clause, the courts have reached different conclusions. Some jurisdictions hold that the 12 months do not begin to run until after "full compliance by the insured with all the foregoing requirements," including an appraisal and award even when the language of the limitation is the same as in the case at bar, viz. "12 months next after the fire." McConnell v. Iowa Mut. Aid Ass'n, 79 Iowa, 757, 43 N. W. 188; Insurance Co. v. (108 A.) v. Phenix Ins. Co., 51 Fed. 715, 2 C. C. A. trators and the award received by the defendant. It is true that, when no time is specified for notice of loss and for proofs of loss, a reasonable time is meant. But what period constitutes a of the particular case; in other words, circumreasonable time depends upon the circumstances stances may prolong or shorten the period which would be denominated a reasonable time. "In the matter of proofs of loss but one party, the insured, can act. It is an undertaking to be performed by him alone. In an arbitration under this policy either can set it on foot, and both must take part in it. Though it be true that the insured, in bringing suit, thereby holdhimself entitled to sue, must act if the other ing the affirmative and the onus of showing does not, yet the company may very well, if it so desires, take the initiative, on a difference arising, and demand an arbitration. If the company, knowing there is a disagreement as to the amount of the loss and of its right to have an arbitration, omits to call for such arbitration, it ought not to be heard to complain of plaintiff's mere delay in making the offer. Of course, since, in the event of the parties disagreeing, plaintiff's cause of action depends on an arbitration for support, he takes upon himself the chance or peril which may happen from In Dwelling House Ins. Co. v. Trust Co., the delay. If a demand for appraisal should 5 Kan. App. 137, 48 Pac. 891, the policy on be made by the insured so late that the defendwhich suit was brought contained a provi- ant should refuse it, then, if he could show by sion that suit should be brought within six answer and proof that it refused for the reason months, and also a provision that as to that plaintiff had so delayed that it was impossible or impractical to arbitrate, it would mortgagee the primary security must be ex-deprive plaintiff of the benefit of the arbitration. N. H. 245. hausted before suit. The court held, as Our attention has not been called to any authority which holds that, when without fault on the part of the insured there has not been an ascertainment of loss within a year after the fire and an ascertainment is required, suit could not be brought more than 12 months after the fire. In McNees v. Insurance Co., 69 Mo. App. 232, it appeared that a former action had been brought which failed because there had been no appraisal. The policy contained the same limitation provision as to the policies in the case at bar. The court said (page 244): "After the cause was determined here as we have stated, plaintiff, near two years after the loss, demanded an arbitration, and defendant refused, principally on the ground that the demand was too late. The policy does not prescribe a time within which arbitration shall be had, but, in this respect, only provides that the sum due plaintiff shall not be payable until 60 days after it shall have been fixed by the arbi "These views prevent the possibility of any injustice to the parties and are in harmony with that rule of law which disfavors forfeitures except when clearly demanded by the stipulation of the parties. We shall therefore hold the plaintiff's offer of arbitration not too late." See, also, Gragg & Gragg v. Ins. Co., 132 Mo. App. 405, 111 S. W. 1184. No error was committed in denying the defendant's seventh request to charge and granting plaintiff's second request. Defendant's seventy-third and seventy-seventh exceptions are overruled. [3] Defendant's seventy-first exception is to the refusal of the court to grant defendant's fifth request to charge, as follows: "If the evidence shows that, on or before January 9, 1913, the appraisal failed through no fault of the defendant, and if the evidence shows that no request was made by Mr. Messler to the defendant company for a new appraisal until November 18, 1913, at which time an action at law upon the policy was pending, the jury must return a verdict for the defendant in the present action." The request was properly refused. The court properly submitted this issue to the jury by the following charge, to which de fendant's eighty-first exception applies: "Now as to the question of liability, gentle men, it is for you to say whether this plaintiff, after the failure of the appraisers to do the first act that they were called on to do, did seasonably follow up his rights according to the terms of the policy, I mean, to have an appraisal, or |