
    SHAINLINE’S APPEAL.
    Where a canse is submitted to a referes, and the parties reserve the right to dile exceptions, an appeal or writ of error to the Supreme Court does not lie.
    Laborers in a stone quarry, are entitled to a preference for wages, under the Act of June 13,18S3.
    Appeal from the Common Pleas of Montgomery County. No. 60, Jan. Term, 1885.
    This cause was an amicable action against the Sheriff of Montgomery County, and was submitted to a referee in the following .agreement:
    And now, to wit, November 23, 1883, it is agreed that an Amicable Action in the above form be entered in the Court aforesaid, and be deemed to be depending in like manner as if a summons had been regularly • issued, been served, and so returned.
    And it is further agreed that under an execution issued out of ■said Court, and a landlord’s Warrant of distress, the said defendant sold certain personal property as belonging to Jefferson J. Navis and now has in his hands as proceeds thereof the sum of four hundred eighteen and thirty-seven one-hundredth dollars •($418.37),being the amount realized by such sale less costs. Now, for the purpose of determining the right of said several parties plaintiff to the moneys, or any part thereof, so as aforesaid in the hands of the said defendant, it is hereby agreed that all matters concerning the distribution thereof be referred to Henry B. Garber, Esq., who shall hear the said parties, their proofs and .allegations, and award the said moneys to such of the said parties and in such proportions as he shall find them, or either of them, or any of them, to be entitled (first deducting his compensation at the rate allowed auditors in similar cases and the costs of this suit). Upon the completion of his duties the said Henry B. Garber, Esq., shall give notice of the completion of his report, to the counsel for the parties hereto, and if no exception be filed with him within ten days from the time of service of such notice, said report shall be final and conclusive upon all parties hereto, and the defendant shall immediately thereafter pay out in accordance therewith; the payment made in accordance thereto to be a full, complete and absolute acquittance and discharge of all of said parties plaintiff' to any and all of tlie proceeds of the sale so as aforesaid made by said defendant. If any party hereto be dissatisfied with the report, he shall file exceptions 'with the said Ilenry B. Garber, within ten ■ days as aforesaid, and this agreement, the report, evidence and all exceptions shall be then filed in the Prothonotary’s office of said County, and be heard and determined by the said Court upon the evidence taken before the referee in like manner as if the same was the report of an auditor distrib uting money paid into Court, as per agreement, together with report of referee. Evidence and exceptions attached to said agreement filed December 27, 1883.
    The referee made a report and exceptions were filed thereto, and were sustained by the Court in the following opinion, per
    Boxer, P. J.
    Jefferson J. Davis was the lessee of a stone quarry from J. M.. Shainline, and carried on the business of quarrying stone for-building purposes. A warrant to distrain for rent in arrear was issued by the landlord, and also executions by judgment, creditors, under which certain personal property, consisting of cars, carts, stone truck, sledges, drills, et cetera, used in carrying on the quarry were seized and sold by the Sheriff as the property of Jefferson J. Davis. The sale realized the sum of $418.37 after payment of costs. In the distribution of the fund in the . Sheriff’s hands, the landlord claims a preference for rent; and twenty-six quarrymen, whose aggregate claims amount to more than the entire fund, claim a preference for arrears of wages.. (Bobert McClellan also claims -the fund as the owner of the. goods sold ; but it is manifest that he has no standing here, the-property having been levied upon and sold as the property of Jefferson J. Davis.) The parties entered into an amicable agreement of reference, reserving the right to file exceptions to the report of the referee upon the distribution of the fund by him,, as if to the report of the auditor appointed by the Court.
    The referee awarded to the landlord, J. M. Shainline, a prefer- ' ence covering the amount of rent in arrear, viz: The sum of $248.50, and the balance, over the cost of the reference, he awards pro rata to the laborers for the wages due them, which reaches. but 10J per cent, of their respective claims. "Was this distribution in accord with the true intent and meaning of the Act of April 9,1872, P. L. 47, allowing a preference for wages, and its several supplements ?
    If these claimants for wages belong to a class of laborers, which are to be preferred at all under the Acts referred to, they are entitled to a preference before the landlord, by the supplement to the Act of 1872, approved 12 June, 1878, P.. L. 207; which expressly so declares. As the Act of 1872 originally stood, and as it was repeatedly' construed by the Courts, the wages of labor preferred were only those due to the beneficiaries named in the Act from persons, or chartered companies, who employed miners, mechanics or clerks ; and unless due from some person or chartered company in whose business miners, mechanics or clerks were employed, laborers were excluded from any preference under the Act. This construction resulted inevitably from the strict grammatical reading of the Act; although it is hard to understand how the added employment of a mechanic, miner or clerk by the debtor, could enlarge the merit of the laborer. But the law was so written, and so interpreted. So in Sullivan’s Appeal, 27 P. F. S., 107 (1874), a cook in a hotel was excluded. In Allen’s Appeal, 32 P. F. S., 302 (1875), the clerk of a hotel was excluded along with the other hotel employees ; although “clerks” were seemingly named in the Acts as if protected themselves and intended to protect others by their presence.
    But the Supreme Court held that the words '■'■other business,” used in the Act, must refer to some business “ejusdum generis with those named, to wit: “works, mine or manufactory.” And Pardee’s Appeal, 4 Outerbridge, 408 (1882), followed, confining the protection of the Act to the limitations mentioned in Allen’s Appeal, supra.
    
    But now we have a new Act upon the subject, that of June 13,1883, P. L. 117, which necessitates a new reading. . It declares in effect, that the Act of 1872 shall be no longer restricted as it once was ; but shall embrace a large number of additional bene- ' ficiaries, such as “servant girls at hotels, boarding houses, restaurants, or in private families, or other servants and helpers, in and about houses of entertainment and private houses, porters, hostlers, all persons employed in and about livery stables, laundrymen and washerwomen, seamsters and seamstresses employed by merchant tailors, milliners, dressmakers, clothiers, shirt manufacturers, and clerks employed in stores* hands, printers and apprentices hired for wages or salary.” An analysis of the new Act will make it evident that some of the same phrases which occur in the original Act, and are repeated in the supplement, but with different context, require a new rendering. It is more than any Court, however learned, can accomplish, to interpret the Act of 1883 in strict accordance with good grammar and good sense, and at the same time in conformity to the construction which some of the same phraseology in the Act of 1872 has already received. Can it in the light of the last Act, any longer be, that the employer of the preferred laborer must likewise be the operator of a mine or manufactory, or works ejusdem generis? Could it have been intended by the Legislature that the wages of the servant girls, washerwomen, sewing women, porters and hostlers, mentioned in the Act, shall be preferred only due by persons likewise employing “clerks, miners or mechanics ?” The title of the last Act itself excludes such a conclusion; for it declares its object to be to amend the Act of 1872 “so that wages of servant girls, washerwomen, clerks and others shall be preferred and first paid out of the proceeds of the sale of the property of insolvent debtors owing wages to such servants or employees.” It will be observed that the declared intention of the Act is general, that these preferred wages “shall be first paid out of the proceeds of the sale of the property of. insolvent debtors,” without reference to the descriptions of their operations in business.
    TIow, then (keeping this in view), can the Act of 1883 be best made to read in accordance with the consistent use of the People's English ? I answer by simply referring the troublesome clause restricting the class of employers to where it seems most reasonably to belong; namely to chartered, companies. This can be accomplished by the judicious use of two semi-colons; so that the Act would read, thus — “due ***** from any pei’son or persons; or chartered company employing clerks, miners, mechanics or laborers, either as owners, lessees, contractors, or under owners of any works, mines, manufactory, or other business where clerks, miners or mechanics are employed ; whether at so much per diem or otherwise,” &c. According to this reading the preferred wages might be due from any person or persons ; but if due from a “chartered company,” then the restriction still remains which limits the preference to business carried on by the company where “clerks, miners or mechanics are employed,” but eliminated from the remainder of the sentence.
    I cannot say that this rendering frees the language of the Act from all just criticism ; but it accomplishes the important object of removing the absurdity inseparable from any other reading. In the construction of statutes any liberty may be taken with the punctuation which will aid us in arriving at a reasonable interpretation. Common sense should prevail over strict grammatical rules, and punctuation should not control. Gyger’s Estate, 65 Pa. St. 311; Cushing vs. Warwick, 9 Gray 382; Hamilton vs. Steamboat Hamilton, 16 Ohio, N. S. 432; Sedgwick on construction of Statutory law, 225, note.
    It is easy to apply to any other reading of the Act of 1883 than here indicated the redtieiio ad absurdam. Eor example, how would it sound, by a slight pharaphrase, to say that wages due or hereafter to become due for labor and services rendered by any servant girls at hotels, boarding houses, restaurants, or in private families, or to other servants and helpers in and about said houses of entertainment, and private houses, shall be preferred: Provided, however, the employer shall in each case also operate a mine, manufactory some or similar establishment where clerks, miners or mechanics are employed ? Such reading would be quite as strange when applied to some of the other protected classes mentioned in the Act, such as hostlers, porters and washerwomen. It cannot be supposed that the Legislature could have intended a distinction so absurd, if by any reasonable construction of its language the Act can be made to read otherwise. Under the rendering here suggested, and adopted, the claimants of wages earned by their labor in the quarry are clearly entitled to be preferred.
    
      But their case might, even under the acts of 1872 aud 1878, have been rested on the ground that they were employed in a business of a permanent nature carried on exteusively by as many as twenty-six laborers, aiid that they were actually “miners,” if the most extensive application of that term be adopted, as in such case it may be deemed proper. Webster defines a miner to be “one who mines ; a digger for metals and other minerals.” Aud to mine, he says, is “to dig a mine or pit in the earth ; ta dig in the earth for minerals.” Building stones are minerals,, though not metals; and excavations for building stone are generally distinguished from metallic mines by being called quarries. Still they are a species of mine, and it is no abuse or perversion of language to include them in that designation in the construction of such a statute. The business carried on in this instance was extensive enough to require the keeping of books of account. There does not appear to have been a clerk employed by that name ; but the foreman kept books, in which he kept accounts of the men’s time. This was a clerical act, by whomsoever pelformed. The books containing the accounts of the shipments of stone,seem not to have 'been offered in evidence, and are not, considered.
    And now, April 7,1884, the report is referred back to the referee with instructions to state a distribution in accordance with this opinion.
    The referee then made a second report, in conformity with the order of Court. The second report was confirmed, and John, athan M. Shaiuline, the landlord, then took an appeal, complaining of the action of the Court.
    
      J. P. H. Jenkins, Esq.,
    
    cited Sullivan’s Appeal, 77 Penna. 107; Allen’s Appeal, 32 Smith, 302; Jacobs vs. Woods, 14 W. N. C. 237; Pardee’s Appeal, 4 Out. 408.
    
      I. P. Wagner and W. S. Jennings, Esqs.,
    
    argued that the submission in this case does not authorize an appc al to the Supreme Court; Fuller vs Trevor, 8 S. & R. 529; Wilson vs. Commonwealth, 3 P. & W. 531; Hughes vs. Peaslee, 50 Penna. 257. Second, the cases cited' by appellant arose from business of a different description and character, than that in this case.
   The Supreme Court quashed the appeal on the 11th May, 1885, in the following opinion:

Per Curiam.

This arose on an agreement of submission to a referee, without reserving the right to a writ of error .or appeal to this Court. It is very clear then this appeal does not lie. The right to file ' exceptions in the Court below, gives no right to bring the case here on appeal from its decision.

Appeal quashed.  