text:
    TRUSTS — WILLS.
    [Franklin (1st) Circuit Court,
    March, 1911.]
    Dustin, Allread and FernedSng, JJ.

      Worthington E. Babcock, Guard. v. William Monypeny, Exr.
    1. Spendthrift Trust Vests in Trustees at Death of Testator but Use to Cestui Que Trust Postponed to Conform to Purpose of Will.
    A spendthrift trust clause of a will, introduced as a “further trust” to “be raised” out of testator’s estate but not specifically fixing the time when the trust becomes effective, following a preceding clause directing the creation and fixing the time for the raising of a prior mentioned trust, and preceding a subsequent clause specifying the same date for general distribution under the will, vests the trust estate in the trustees thereof at testator’s death but postpones- the use and enjoyment by the beneficiary until the purposes of the will are developed and its assets ascertained for distribution, which is the time fixed in the* clauses preceding and following the trust clause.
    2. Spendthrift for Whose Benefit Trust is Created not Deemed to be Entitled to Greater Benefits than Heirs of Good Deportment.
    The beneficiary of a spendthrift trust, for whose benefit testator has devised the use of a full and equal share in his estate and certain annuities payable from the net income of the residuum of the estate, after division according to devises specifically directed, having been denied absolute rights in his share because “reckless in business and of dissolute habits,” will not be deemed entitled to greater benefits than heirs of good deportment and business application, especially since the provisions of the will manifest an idea of equality in final distribution.

      3. Order of Distribution of Estate of Spendthrift.
    A devise (1) by way of spendthrift trust to be raised out of testator’s estate, to be held and invested by executors for a son of testator and his heirs and assigns forever and, upon, the death of the spendthrift, of the “property” of the trust in. fee simple to his legitimate children, to be subject to advancement and conveyance absolutely to them upon the youngest child coming of age, and (2) bequest of a fixed annuity out of the net income of testator’s estate, and (3) pro rata share of the residuum after betterment and maintenance charges are paid, give the son an absolute estate in the (1) trust property subject to the rights of his children; an absolute estate In. the (2) annuities which cannot be withheld or accumulated for the benefit of the principal estate, to which the son’s executrix is entitled to an accounting and payment of any balance due at his death; and (31 the pro rata income of the residuum is payable to the son during his life from the time it becomes available and to his children after his death.
    4. Sinking Fund of Estate Applies to Accumulations from Reinvestments of Estate Property.
    An item of a will providing for a sinking fund for improvement and betterment of testator’s real estate applies to the accumulations of the principal of the estate to be derived from sales of personal and real property for purposes of reinvestment and not to accumulations from income to be used in discharge of indebtedness.
    Appeal from common pleas.

      Affirmed, no op., Babcock v. Monypeny, 86 O. S. 308, 365.

   ALLREAD, J.

This action involves a construction of the last will and testament of William Monypeny, deceased, and is brought here on appeal.

William Monypeny died September 12, 1899, leaving a will dated September 23, 1895, and a codicil dated September 7, 1899. Four children and a grandchild representing a deceased son survive the testator.

George B. Monypeny has since .deceased, leaving the plaintiff’s wards, his children, and Marie R. Monypeny, his widow.

Item 1 of the will of William Monypeny provides for the payment of debts; item 2, a specific bequest to his widow, and item 3, an absolute gift to a daughter.

The controverted questions of construction are involved largely in items 4 and 5 as amended by the codicil and relate -to the interests growing out of the share of George B. Monypeny,

Item 4 trustees the residuum of the estate for clistributory purposes, while item 5 provides for family annuities pending distribution of- the residuary or distributory trust.

Item 4, after creating the general trust, defines its purposes in three clauses. The first clause directs a trust to be raised out of his estate on or before November 18, 1902, for the benefit of the testator’s son Perin and granddaughter Maybelle as the representative of the deceased son, and to be charged against them in final distribution. This trust was to be carried forward and finally settled and paid to them November 18, 1912.

The second clause creates a spendthrift trust of the shares of William and George B., and its more important features may be quoted as follows:

“ (2) I hereby order and direct that a further trust shall be raised out of my estate and be held and invested by my executors * * * the two whole, full and equal shares and all and singular of the property thereof, and in amounts equal one with the othei’, of my entire estate, except and after deducting the special bequests and devises made to my wife and to my daughter in items second and third, respectively, of the will, for the use, benefit and behoof, after first charging them, respectively, with all advances theretofore had, of my two sons, "William Monypeny and George B. Monypeny, their heirs and .-assigns forever, and the property thereof to be given, transferred and conveyed in fee to their legitimate children at their death by right of representation on the youngest child of each attaining his or her majority, or becoming of age under the laws of the state of Ohio, except as hereinafter provided. The met income arising therefrom after the payment of all taxes, assessments, proper insurance and repair charges, shall be paid quarterly or at such convenient times as may, in the judgment of said trustees, be proper to the said William Monypeny or George B. Monypeny or to their heirs. * # * In the ■everfi that one or both of my sons, William and G^orve, die without issue of their body, or the issue of one or both dies or die without issue, said share or shares arising out of said trust shall be paid to my estate, except one equal distributive share thereof which shall go to and become a part and share of the trust hereof of the son or his issue then living. Should both of said sons and their issue all be dead before the execution and termination of this trust, then said fund thereof shall vest in and ascend to my children then living or to their issue by right of representation in equal distributive shares. The last two foregoing trusts are formed because my sons William and George have for years past been reckless in business affairs and of dissolute habits, thereby to a large degree disqualifying themselves from accumulating or taking care of property.”

The third clause of item 4 provides for a full distribution on November 18, 1902, of the remainder of his estate, equally, among the remaining children and the granddaughter as the representative of the deceased son. By the codicil the spendthrift trust as to William is annulled, and William is transferred to clause three, item 4, and thereby placed with the class entitled to receive their shares upon final distribution in their own right, with this statement:

“My reason for revocation of clause two of item 4, so far as the same affects my son William alone, is because in business and socially, he has conducted himself so well, that my confidence in him has been fully restored.”

The codicil further provides that the

“Trust to be raised for the use and benefit of my son George B. Monypeny shall remain undisturbed and unaffected.”

The codicil also amends clause three so as to make the distribution day November 18, 1912, and the 5th item as amended by the codicil provides that,

“During the continuance of said trust provided in item 4thr that is to be ended on the 18th day of November, 1912, I hereby order my executors hereinafter .named to pay to each of the following named persons either in money or such articles as his. or her comfortable maintenance may require, as the judgment of the executors may deem best, but not to charge them,, respectively, in the final distribution of my estate, to-witr * * * To William Monypeny $2,000 per annum to be paid quarterly. * * # To George B. Monypeny $2,000 per annum to be paid quarterly. * * * Said foregoing named amounts shall be paid from the net income from my estate * * * and in case the net income yearly of my estate shall amount to more or less then the aggregate annual amounts of the bequests above stated * * * then and in such event, said payment shall be made pro rata.”

The first and most important question represented is as to the time when the spendthrift trust in favor of George B. Monypeny vests and becomes effective.

Upon this issue the guardian of the children of George B. Monypeny and his widow and executrix are in accord. Their contention is in favor of an immediate or at least an early vesting of the trust estate and the realization and enjoyment of 1he net income; while the trustees of the residuary estate contend that the trust in favor of George B. Monypeny is not to be “raised” or enjoyed until final distribution on November 18, 1912.

Counsel for the George B. Monypeny interests insist upon a literal reading and interpretation of the devising clause creating • the spendthrift trust and of the direct reference thereto in other parts of the will. This contention, however, if accepted, does not settle the controversy, for even the literal reading of the devising clause does not fix or determine the time for the raising or creation of the trust estate. It is contended, however, in support of this theory that the court should apply the well-known rule of construction favoring the immediate vesting of estates. The foundation of this doctrine of construction is found in the second syllabus of Linton v. Laycock, 33 Ohio St. 128, and is as follows:

“The law favors the vesting of estates and in the construction of devises of real estate, the estate will be held to be vested in the devisee at the death of the testator, unless a condition precedent to such vesting is so clearly expressed that the estate cannot be regarded as so vested, without directly opposing the terms of the will.”

This ease follows and is in accordance with the principles •of the common law which required or at least favored the vesting of the legal title to real estate. In the present case the legal title became vested in the general trastees and is carried forward until final termination of the trust and then transferred to the ultimate beneficiaries. This vesting of the legal estate in the general trustees answers the common law requirement. But assuming that the doctrine favoring the vesting of estates applies to the equitable right of George B.'Monypeny to have the trust raised and the income applied to his benefit, it does not follow in the application of the rule that the present possession or enjoyment follows the vesting of the right. It often occurs in the construction of wills that the right to an estate vests although the enjoyment be postponed. Conceding, therefore, the vesting of the equitable right of George B. Monypeny to the benefit of the trust to be raised in his favor, the time when the trust is to be raised and the net income enjoyed must be determined, as any other question of intention, from the interpretation of the will.

It is evident from a reading-of the will that the distributory trust created in item 4 was to be carried forward over a period of time for the purposes of future distribution.

Clause one provides for a special advancement to the minor son and granddaughter and was directed to be raised on or before November 18, 1902. Clause two directs that,

“A further trust shall be raised out of my estate and be held and invested by my executors,” ete.
“A further trust” indicates" an intention, to be considered along with that arising from the consecutive order, that the trust created by clause two is to be raised after that created by clause one. The phrase “raised out of my estate” alludes evidently to the act of separating the proportion or share therein specified from the body of the estate, giving it a separate existence. It is clear from a broader view of the entire 4th item that clause two- is distributary in its general character and deals with certain shares of the estate. The idea of equality of the final distribution of the residuum is clearly manifest. The language of clause two is unmistakable that subject only to certain deductions, the testator’s “entire estate” is to be divided into “equal” shares and that “two whole, full and equal shares * * * and in amounts equal one with the other, of my entire estate” are, according to the original will, to be raised and held for the benefit of William and George. This idea of equality is emphasized in the reason given in the will for the creation of the spendthrift trust as to the shares of William and George and by that given in the codicil for releasing William’s share from the trust and placing him with those who receive their shares absolutely.

The contention of those representing the share of George B. Monypeny in favor of an early vesting of the estate carries also as a necessary inference the immediate enjoyment of the net proceeds of the share. The effect of this contention is to give to William and George under the original will the income of their full share and also the annuity under item 5 payable out of the remaining shares. This contention is out of harmony with the general scope of the will and in conflict with the reasons expressly stated for the creation of the spendthrift trust and the releasing of William’s share therefrom.

It would require clear and unambiguous language to exemplify an intention of rewarding the spendthrift sons with a double portion of the income at the expense of the others whose character and business capacity is not questioned. And it would be the very acme of absurdity to resolve doubtful language so as to effectuate an intention to take William’s share from a favored clause and reduce his income and estate upon the sole ground of reformation and restoration to the testator’s full confidence. The contention so made in favor of the George B. Monypeny interests comes in direct conflict with the manifest scope and express provisions of item 5, which provides for family annuities of certain amounts, including $2,000'each to William and George. These annuities are required to be paid out. of “the net income of my estate” and to be proportionately reduced or increased according to the amount of the income. It is further provided that these amounts are not to be charged against the respective parties “in the final distribution of my estate. ’ ’

Counsel for the George B. Monypeny share contend that the phrase used in item 5, “net income of my estate” should be read “net income of the portion of my estate represented by clause three, item 4.” In our opinion, it is more reasonable to harmonize items 4 and 5 and avoid conflict by reading item 5 as written, and reading into clause two of item 4 an apparent omission of the date of raising the spendthrift trust. This construction harmonizes all the items and clauses of the will and does violence to none.

The phrase “except and after deducting the special bequests,” etc., expresses the quantity of the estate to be divided rather than the time of division. The expression “as though said trust did not exist” in clause three of item 4 is designed to release from the trust of that clause the portion due a child whose share fails for want of issue, and to permit such share to remain in or become a part of the general estate for distribution the same as if the trust provided for in clause three did not exist as to such child. The condition in clause two, item 4, providing for the lapsing of the devise to one or both of the sons in case of death and failure of issue, speaks as of the day of final distribution, and of an event which had then occurred, or might thereafter occur, and is, therefore, in the language used, consistent with the construction that the raising of the fund in favor of George and his children is to be substantially concurrent with the final distribution expressly fixed in clause three.

The fact that a portion of the estate of William Monypeny, deceased, consists of real estate located in the state of New York does not in our opinion, affect the true construction of the will. There is nothing in the case{ or in the will to justify us in assuming that the testator knew of the statute laws of New York and acted with reference thereto or had specially in mind the laws of the state of New York affecting the distribution of his estate. Whether under the construction of the will given in this state the devise or any portion of it is void as to the real estate situated in New York is naturally a subject of determination by the New York courts.

Tt, therefore, follows under a true construction of the will the trust created, by clause two, item 4, of the share of George B. Monypeny should be raised on or immediately prior to November 18, 1912.

The next question is as to the quantity of the estate taken by George B. Monypeny.

The guardian on behalf of his wards claims that the interest of George B. Monypeny, both in the principal and income, is limited to his life, and that upon his death all interest in the devise, both as to income and principal, becomes vested in his children.

On behalf of the widow and executrix of George B. Monypeny, it is contended first, that George B. Monypeny took a fee simple estate in the whole devise, and second, at least, in the full income provided for in the devise.

Upon the first question, we think it clear that while the first sentence in item 4, clause two, grants the use and benefit of the trust therein created to George B. Monypeny and his heirs and assigns forever, yet this apparently absolute estate is reduced by a subsequent grant equally distinct and clear of the “property” of the trust upon the death of George B. Monypeny in fee simple to his legitimate children to be subject to advancement and conveyance absolutely to them upon the youngest child becoming of age.

The net income under clause two of item 4 is payable to George B. Monypeny or his heirs. The disjunctive connection is intended to harmonize with the condition previously stipulated granting the estate to George B. Monypeny for life and upon his death to his children. The income is, therefore, payable to George during life and his children after his death, agreeably to the previous devise conferring the estate.

The amount payable to George B. Monypeny under item 5 becomes upon his death by virtue of item 7 payable to his children or their guardian.

The 10th item provides for a sinking fund from which improvements and betterments of the real estate may be made. The term “sinking fund” is ordinarily applied to accumulations from income to be used in the discharge of indebtedness. But in the manner in which it is employed in item 10, we think it refers to accumulations of the principal of the estate to be derived from the sales of personal or real property for the purposes of reinvestment. This construction is necessary to harmonize with item 5, which fully provides for the distribution of the net income, deducting the expenses including necessary repairs to the real estate. The income of the estate is, therefore, in our opinion, fully provided for in item 5.

The discretion given to the executors in item 5 relates to the question of payment in money or articles for comfortable maintenance. The provision for payment of the annuities pro rata according to the income of the estate, either in money or articles of property, is absolute and cannot be withheld and accumulated under the 10th item. George B. Monypeny was, therefore, entitled to the full pro rata share of the income of the estate under item 5 according to his annuity of $2,000 per year, and his executrix is entitled to an accounting and the payment of any balance due. The annuity or pro rata share from the time of the death of George is payable to his children under item 7. Likewise, the net income of the share of George B. Monypeny under clause two, item 4, from the time it becomes available is payable to the children of George B. Monypeny and subject to advancements provided for in clause two, item 4, subject to the discretion of the trustees.

Dustin and Ferneding, JJ., concur.


source: Caselaw Access Project

author: POLLOCK, J.

license: Public Domain

text:
    INSURANCE.
    [Mahoning (7th) Court of Appeals,
    October Term, 1913.]
    Metcalfe, Norris and Pollock, JJ.
    Leah M. McKelvey, et al. v. Eureka Fire and Marine Ins. Co. and Security Fire Ins. Co.
    Agent's Delivering Policy and Collecting Premium for Insurance, Attaching Slip Permitting Other Insurance Estops Company froth Defense of Other Insurance Contrary to Terms of Policy.
    If an agent of a fire insurance company, who has authority to write insurance, deliver the policy and collect the premium, and who has been correctly informed of other insurance on the property attaches a slip containing the following: “Other insurance permitted to the amount of $-,” to a policy which provides that it shall be void if the insured has other insurance on the property, unless the agreement is endorsed on or added thereto, that no officer, agent or other representative of the company shall have power to waive any of the provisions or conditions of the policy, delivers the policy and collects the premium, he complies with the provisions permitting concurrent insurance, and the company is estopped from defending because of other insurance known to the agent at the inception of the contract.
    [Syllabus by the court.]
    Error to common pleas court.

      Sine, Kennedy <& Manchester, for plaintiffs in error.

      J. W. Mooney, for defendants in error.
   POLLOCK, J.

The plaintiffs in error held a policy of fire insurance issued by the defendants in error, insuring a dwelling house to the amount of $500, and a barn to the amount of $1,000. During the life of the policy the barn was totally destroyed by fire.

The plaintiffs brought an action in the court of common pleas of this county against the defendants to recover the amount of insurance on the bam.

The insurance companies filed an answer containing several defenses, a jury was waived and the action submitted to the court, which resulted in a judgment in favor of the defendants. To reverse that judgment this action is prosecuted.

The only defense in the action below, that is now under consideration, is that the policy was void for the reason that at the time it was issued the plaintiffs had other insurance on these buildings.

The finding of facts made by the court below sets out that, the policy contained the following provision:

“This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto * * * shall be void if the insured now has or shall hereafter procure any other contract of insurance, whether valid or not, on the property covered in whole or in part by this policy.

This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements or conditions as may be endorsed hereon or added hereto, and no officer, agent or other representative of this company shall have power to waive any provision or condition of this policy, except such as by the terms of this policy may be the subject of agreement endorsed hereon or added hereto, and as to such provisions and conditions, no officer, agent or representative shall have such power or be deemed or held to have waived such provision or condition unless such waiver, if any, shall be written upon or attached to, or shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured, unless so written or attached. ’ ’

That at the time this policy was issued these buildings were insured by two other policies in other insurance companies, to the amount of $1750; that no written application was made by plaintiffs for this insurance, but at the time this policy was verbally applied, for, the soliciting agent of the defendants was informed that these buildings were then covered by other insurance. The defendant had supplied the soliciting agent with blank policies and authorized him to write insurance, deliver the policy and collect the premium.

The agent, before he delivered the policy, attached to it a slip containing among other things, the amount of insurance on each building, and also the following: “Other concurrent insurance permitted to the amount of $-■ — .”

It is urged that the insurance company is now estopped from defending on the provision of the policy quoted above, by reason of the knowledge that its agent had of the concurrent insurance on the property at the time he issued this policy, that under policies containing similar provisions the/ Supreme Court of this state has held that the insurance company does not waive these provisions simply because the agent had notice or knowledge of the condition which rendered the policy void, and received the premium.

Ohio Farmers’ Ins. Co. v. Titus, 82 Ohio St. 161 [92 N. E. Rep. 161]; Union Cent. Ins. Co. v. Cook, 62 Ohio St. 256 [56 N. E. Rep. 906]; Travelers’ Ins. Co. v. Meyers, 62 Ohio St. 529 [57 N. E. Rep. 458; 49 L. R. A. 760].

It will be noticed that in the two cases last cited the condition which it is claimed waived the provision of the policy, occurred after its delivery. In the ease of Ohio Farmers’ Ins. Co. v. Titus, supra, the mortgage incumbrance which rendered the policy void was placed on the property after the insurance had been issued, except the additional insurance of $200.

The Supreme Court does not in any of these cases distinguish' between conditions which were prohibited by the policy which existed and were known to the soliciting agent at the time the policy was delivered, and those which arose and came to the agent’s knowledge after its delivery.

The holding of the Supreme Court above referred to seems to be against the weight of authorities when the condition which avoided the policy existed at the time of its inception, and the agent of the defendants had knowledge of these 'conditions at the time he wrote and delivered the policy and accepted the premium. The weight of authorities appears to be that where the agent who has authority to write insurance, deliver the policy and receive the premium was informed of other insurance by the insured and then delivered the policy ¿nd received the premium, without making the endorsement, the company is estopped from defending a claim for loss under the policy by reason of concurrent insurance existing at the inception of defendant’s policy.

1 Clement Fire Insurance 418, and cases cited; 2 Clement Fire Insurance 106, and cases cited; Ostrander Fire Insurance See. 243; Cooley, Insurance Secs. 2479 and 2482; Staats v. Insurance Assn. 55 Wash. 51 [104 Pac. Rep. 185]; Spalding v. Insurance Co. 71 N. H. 441 [52 Atl. Rep. 858].

Our attention has been called to the case of the Northern Ins. Co. v. Building Assn. 183 U. S. 308 [22 Sup. Ct. Rep. 133; 46 L. Ed. 213], cited in the case of Ohio Farmers’ Ins. Co. v. Titus, supra. The great weight that should ordinarily be given to a decision of the Supreme Court of the United States is weakened in this case by the fact that three of the justices of that court dissented, and for this reason, the decision has not been generally followed by the state courts. Vance, Fire Insurance page 366, refers to this case and points out the reasons for not following it as authority.

We refer to the fact that the greater weight of authority seems to be against the rule announced by our Supreme Court, only for the purposes of showing that the rule should not be applied to cases in which there are other facts in addition to those in the cases before the Supreme Court.

In this case the agent of the insurance company was informed by the insured at the time the application was made, of the prior insurance and he then attached to the policy the slip containing the following: “Other insurance permitted to the amount of $----.” We have here the two facts combined, that the agent of the insurance company when he wrote the policy knew of the insurance, and attached to this policy a consent for other insurance, complete in every respect, except that the amouut permitted was left blank.

To carry into effect the intention of the parties at the time it was entered into should be the governing principle in the construction of a contract. The Supreme Court says, in the case of Mintier v. Mintier, 28 Ohio St. 307:

“In giving construction to a contract, the intention of the parties will govern; and words which, in their strict legal import, are at variance with that intention, will be rejected, or construed so as to comport therewith.”

And also further says, in the case of Mosier v. Parry, 60 Ohio St. 388 [54 N. E. Rep. 364]:

“Where the language of a contract is of doubtful import, it is proper to ascertain the circumstances which surrounded the parties at the time it was made, the object intended to be accomplished, and the construction which the acts 'of the parties show they gave to their agreement, in order to give proper construction to the words they have used in the instrument, and to determine its legal effect.”

At the time this contract of insurance was entered into both the insurer and the insured knew that the buildings covered by their policy were covered by other insurance, and that this policy was intended to be additional insurance on the property.

“The words used in a policy of insurance should be interpreted most strongly against the insurer where the policy is r:o framed as to leave room for two constru'dions. ”

Liverpool & L. & G. Ins. Co. v. Kearney, 180 U. S. 132 [21 Sup. Ct. Rep. 326; 45 L. Ed. 460], And in the opinion in this case, on page 186, Justice Harlan says:

“This exception rests upon the ground that the company’s agents, officers or attorneys prepare the policy, and it is its language that must be construed. ’ ’

In the case we are considering it was the insurance company’s agent that attached the slip containing this consent for other insurance, and following the rule above stated the doubt as to the construction that should be given this by reason of the words and character, ‘ ‘ Other insurance permitted to the amount of $-, ’ ’ should be interpreted most strongly against the insurance company.

The Supreme Court of this state has said:

“Provisions for forfeiture are to receive, when the intent is doubtful, a strict construction against those for whose benefit they are introduced.
.“If it be left in doubt, in view of the terms of the instrument and the relations of the contracting parties, whether the given words were used in an enlarged or a restricted sense, other things being equal, that construction .will be adopted which is most beneficial to the promisee.”

Webster v. Insurance Co. 53 Ohio St. 558 [42 N. E. Rep. 546; 30 L. R. A. 719; 53 Am. St. Rep. 658]. In the opinion in this case, on page 563, Justice Spear says:

“Perhaps, technically speaking the claim is not one of forfeiture, for forfeiture is a deprivation or destruction of a right in consequence of the nonperformance of some obligation or condition, and we are not accustomed to associate the idea of forfeiture with a contract which has not existed, but manifestly the law as to forfeiture will furnish a guide to the proper disposition of the question.”

This language of Spear, Justice, is applicable to the. case at bar. To adopt the construction-claimed, by the defendants in error that this policy should be read as though the word “none” was written in the blank after the dollar mark, would be permitting the defendants to receive premium on a contract of insurance which never had any existence; where the agent that had authority to write insurance knew of the existence of the condition that made the contract void at the time he delivered the policy and received the premium. This should not be done unless the clear construction of the policy required it. Following the above rules, what was the intention of the parties to this contract, gather from a construction of the policy, the condition of the property, with reference to other insurance, the knowledge that the parties had, at the time the contract was entered into, of the other insurance, and the object intended to be accorriplished. The better and sounder reasoning is that the insurer intended, by attaching this slip containing the provision permitting other insurance, the same to be a compliance with the other provisions of the policy requiring that the agreement to permit other insurance be endorsed on the policy, and that the insured accepted it in that belief. The insured, when he agreed to purchase this insurance, intended it to be an addition to the amount of insurance that was then upon this property. He knew that the agent, when he delivered the policy, had knowledge of the other insurance, and seeing this slip attached to the policy, would place no other interpretation upon it than that it was a permission for other insurance.

A construction should not be given to an insurance policy that is opposed to the intention of the parties, gathered from the policy and known circumstances at the time the contract was made.

Our attention has been called by the defendants to four cases, where slips were attached to the policies, containing permission for concurrent insurance with a blank as to the amount permitted, similar to the one in the policy in suit, in which it has been held that a slip containing such a blank did not authorize concurrent insurance.

The first case is Labell v. Insurance Co. 28 S. W. Rep. 133 (Tex.). In this case the additional insurance was placed on the property after the policy in suit has been issued, and neither the company nor its agent had any knowledge of the additional insurance until after the property had been destroyed by fire.

In the cases of Philadelphia Underwriters’ Ins. Co. v. Bigelow, 48 Fla. 105 [37 So. Rep. 210]; Miller v. Insurance Co. 26 S. D. 454 [128 N. W. Rep. 609]; and Fountain v. Insurance Co. 155 Iowa 96 [134 N. W. Rep. 1090], while the other insurance was on the property at the time the policies were issued, yet the agent of the company issuing these policies had no knowledge of the existence of the concurrent insurance at the time the policies were issued.

We think these cases are distinguishable from the case at bar, where the agent was notified by the insured at the time he made the application that there was other insurance on the property, and after receiving this notice he attaches the slip containing permission for concurrent insurance, with blank amount, and delivers the policy.

The judgment of the court below is reversed, and judgment for the plaintiffs.

Metcalfe and Norris, JJ., concur.


author: YOORHEES, J.

text:
    WILLS.
    [Richland (5th) Court of Appeals,
    March 22, 1913.]
    Yoorhees, Shields and Marriott, JJ.
    Ida C. Zackman, et al. v. James M. Dick.
    1. Scrivener’s -Testimony as to Testator’s Instruction Incompetent to Show Intention in Disposition by Will.
    In construing a clause in a will testimony by the scrivener as to instructions given him by the testator at the time the will was written, or as to what the testator said at that time regarding his intention in the disposition of his property, is wholly incompetent.
    2. Title under Devise to Devisee and Heirs not Reduced to Life Estate by Construction Showing Children not Heirs Intended.
    Where an absolute estate in land has been conveyed to Z and her “heirs,” it can not be reduced to a life estate by a construction of a subsequent clause which would mate the word “heirs” read “children,” unless the clause placing a limitation on the estate is as clear and unequivocal as the clause making the grant of a fee simple title.
    [Syllabus by the court.]
    ■Specific Performance.

      Skiles, Green c& Skiles, for plaintiffs.

      R. F-. Long and Chas H. Huston, for defendant:
    Y\7here real estate is given absolutely in fee simple to a person, and where language entirely different is used in the devise of other real estate, the presumption at law is that an inferior estate was given in the last mentioned devise. Kimball v. Kim-ball, 13 Dec. 556; Smith v. Bell, 31 IT. S. (6 Pet.) 68 [8 L. Ed. 322] ; Schouler, "Wills See. 492, p. 524; Rhodes v. Weldy, 46 Ohio St. 234 [20 N. E. Rep. 461; 15 Am. St. Rep. 584],
    The wnrds “heirs” as used in the will should be construed so as to effect the intention of the testator. Ober v. Hickox, 10 Cire. Dee. 128 (19 R. 42) ; Weston v. Weston, 38 Ohio St. 478; Kiersted v. Smith, 10 Dee. 279 (8 N. P. 378) ; Murphy v. Carlin, 113 Mo. 112 [20 S. W. Rep. 786; 35 Am. St. Rep. 699],
    Extrinsic evidence is admissible for the purpose of clearing up doubtful expressions in the will and to that end conversations, we claim, in the presence of the testator occurring even at the time of the drafting of the will, are admissible. 29 Am. & Eng. Ene. Law (2 ed.) 340; Patterson v. Wilson, 101 N. C. 594 [8 S. E. Rep. 341] ; Winkley v. Kaime, 32 N. H. 268; Allen v. Lyons, 2 Wash. C. C. 475; Cotton v. Smithwick, 66 Me. 360; Clark v. Hardicick Seminary (Tr.), 2 Cire. Dee. 87 (3 R. 152) ; Chappell v. Missionary Soc. 3 Ind. App. 356 [29 N. E. Rep. 924; 50 Am. St. Rep. 276] ; Whitcomb v. Rodman, 156 111. 116 [40 N. E. Rep. 553; 28 L. R. A. 349; 47 Am. St. Rep. 181] ; Bing el v. Volz, 142 111. 214 [31 N. E. Rep. 13; 16 L. R. A. 321; 34 Am. St. Rep. 64] ; Thompson v. Ish, 99 Mo. 160 [12 S. W. Rep. 510; 17 Am. St. Rep. 552] ; Griscom v. Evens, 40 hi. J. Law 402 [29 Am. Rep. 251]; Tuxbury v. French, 41 Mich. 7; Patch v. White, 117 U. S. 210 [6 Supp. Ct. Rep. 617; 29 L. Ed. 860] ; Warner v. Miltenberger, 21 Md. 264 [83 Am. Dec. 573] ; Heidenheimer v. Bauman, 84 Tex. 174 [19 S. W. Rep. 382; 31 Am. St. Rep. 29] ; Coulam v. Doull, 133 U. S. 216 [10 Sup. Ct. Eep. 253; 33 L. Ed. 596] ; Kurtz v. Hibner, 55 111. 514 [8 Am. Eep. 669] ; Sturgis v. Work, 122 Ind. 134 [22 N. .E. Eep. 996; 17 Am. St. Eep. 349] ; Eatherly v. Eatherly, 41 Term. (1 Cold.) 461 [78 Am. Dee. 499] ; Gilmore’s Estate, 154 Pa. St. 523 [26 Atl. Eep. 614; 35 Am. St. Eep. 855] ; Barnard v. Barlow, 50 N. J. Eq. 131 [24 Atl. Rep, 912] ; White v. Holland, 92 Ga. 216 [18 S. E. Rep. 17; 44 Am. St. Rep. 87]; Henry v. Henry, 81 Ky. 342; Waldron v. Waldron, 45 Mich. 350 [7 N. W. Rep. 894] ; Succession of Ehrenberg, 21 La. Ann. 280 [99 Am. Dee. 729] ; Eberts v. Eberts, 42 Mich. 404 [4 N. W. Rep. 172] ; Schlottman y. Hoffman, 73 Miss. 188 [18 So. Rep. 541; 55 Am. St. Rep. 527].
    A court will not compel the specific performance of real ■estate where the purchaser will have an imperfect title, or in cases where there is a chance of litigation; or, in other words, he is entitled to hold real estate free from worry and doubt. I7ought v. Williams, 120 N. Y. 253 [24 N. E. Rep. 195; 8 L. R. A. 591; 17 Am. St. Rep. 634] ; Kellerman v. Loan & Bldg. Go. 7 Dec. 408; Dobbs v. Norcross, 24 N. J. Eq. 327; Tillotson v. Gesner, 33 N. J. Eq. (6 Stew.) 313; 3 Parsons, Contracts (6.ed.) ’•380; Watterman, Spec. Perf. See. 414; Tiffin v. Shawhan, 43 Ohio St. 178 [1 N. E. Rep. 178] ;.Pope Mfg. Co. v. Gormully, 144 U. S. 224 [12 Sup. Ct. Rep, 632; 36 L. Ed. 414]; New Orleans v. Railway, 44 La. Ann. 64 [10 So. Rep. 401] ; Kelsey y. Crowther, 7 Utah 519 [27 Pac. Rep. 695]; America/n Box Mach. Co. v. Crosman, 57 Fed. Rep. 1021; East .St- Louis Conceding By. v. East St. Louis, 81 111. App. 109, affirmed, East St. Louis Connecting By. v. East St. Louis, 182 111. 433 [55 N. E. Eep. 533].
   YOORHEES, J.

The plaintiffs’ action was brought in the court of common pleas of this county to enforce the specific performance of a contract in writing for the sale of real estate, wherein the plaintiffs, Ida C. Zaekman and J. B. Zaekman, entered into a written contract with the defendant, James M. Dick, to sell to said James M. Dick eighty acres of land in Franklin township, Rich-land county, Ohio, which land had come to her as one of the heirs of John Crum, deceased. This contract was entered into between said Ida C. Zackman and James M. Dick on tbe second day of February, 1911. The substance of the contract was that said Dick should pay for said land the sum of $7,000; $100 to-be paid cash in hand and the balance, $6,900, on or before April 1, 1911.

Under and by virtue of said contract, defendant Dick agreed to pay said balance o£ the purchase money, to wit, $6,900, on or before April 1, 1911, and upon the payment of the same the plaintiffs agreed to deliver unto the said James M. Dick or to his heirs or assigns a general warranty deed and abstract ■ of title of the real estate so sold with covenants and warranties against all dower rights and other incumbrances, said deed to-be delivered on or before April 1, 1911.

Defendant James M. Dick paid of said consideration the-sum of $100; but neglected and refused to pay the balance of' said purchase money. On said April 1, 1911, the plaintiffs tendered to defendant a general warranty deed and abstract of' title of the real estate so sold with covenants and warranties, against all dower rights and other incumbrances, but the defendant refused to pay the purchase money so agreed upon by him to be paid in said contract and to perform the terms and. stipulations of said contract upon his part to be performed.

The plaintiffs performed all the conditions of said contract to be performed by them prior to April 1, 1911, but the defendant failed and refused to carry out said contract upon his part. The plaintiffs executed and tendered to the defendant a deed and abstract of title according to said contract and demanded the payment of the purchase money with interest.

The object and -purpose of said- action brought by said plaintiffs was to enforce the specific performance on the part of said defendant of said contract and the payment- of the consideration agreed upon therein, and that the defendant be required to pay interest on the balance of said consideration from the-first day of April, 1911.

The defendant, James M. Dick, filed an amended answer to-said petition, wherein -he admits that upon the second day of February, 1911, he signed a paper writing according to the-terms of which he agreed to purchase the premises described in. plaintiffs’ petition from the said plaintiffs; that by the terms of said paper writing plaintiffs agreed to convey said premises in fee simple by deed of general warranty in consideration of the sum of $7,000, of which $100 was to be paid in cash and the balance on or before April 1, 1911; that on the day of the signing of the said paper writing he paid the plaintiffs the sum of $100 as part payment of the consideration of said premises; defendant further admits that by the terms of said paper writing plaintiffs were to deliver to him, on of before April 1, 1911, a general warranty deed and abstract of title of the real estate aforesaid, with covenants and warranties against all dower rights and other incumbrances. He denies each and every oilier allegation,contained in plaintiffs’ petition not therein expressly admitted to be true.

By way of cross petition he avers that he signed the paper writing set forth in plaintiff's’ petition upon the representations of the plaintiffs that they were the owners in fee simple of the premises described in the petition, and that they agreed in said paper writing to convey to him a fee simple title for the premises described in the petition^ He avers that at the time he executed said paper writing he paid to the plaintiffs the sum of $100, part consideration of the premises, but that at the time of said payment said Ida C. Zackman was not the owner in fee simple of the premises described in the petition, which fact was unknown to the defendant at that time. The plaintiffs, on the first day of April, 1911, and at all times prior thereto and since, have been unable to comply with the terms of said paper writing, not being the owners of said premises in fee simple, and are now unable to convey a fee simple title to the defendant. He further avers that the interest of plaintiffs in the premises described in the petition, were encumbered on November 17, 1910, by a certain lease executed by said plaintiffs to the Ohio Fuel & Supply Company for the period of twenty years,, said lease being of record, volume 7, page 250, lease record of Rich-land county; that said lease is still in full force.

The consideration, $7,000, was based upon the marketable fee simple title which plaintiffs are unable to deliver to the defendant. He further avers that no deed was delivered to him on April 1, 1911, as was required by the terms of said paper writing. He therefore prays that tbe plaintiffs’ petition be dismissed and. that his judgment for $100 be rendered against the plaintiffs with interest from February 2, 1911, and for costs.

To this amended answer and cross petition the plaintiffs filed their reply; and say, in substance, that the paper writing executed between themselves and the defendant was signed by said Ida C. Zackman and Jacob Zackman and that the signature of said Ida C. Zackman was her signature and was authorized by her. By way of further answer to the cross petition, plaintiffs admit that the $100 was paid as part consideration at the time of the execution of the contract. They admit that they represented themselves as being the owners of the premises described in the petition as set forth in said written contract. They further admit that an oil and gas lease was executed by them to the Ohio Fuel & Supply Company, which lease was afterwards recorded in the lease record of Kichland county, Ohio, but said lease was not made of record until some time in May, 1911, and that the same was shortly thereafter released of record, and is not nowr of record in said county, and they deny each and every other allegation or part of allegation in said cross petition not therein admitted to be true.

Upon the issues thus made in the pleadings the cause was tried in the court of common pleas, resulting in a decree in favor of the defendant, in which the court held that the plaintiffs had no cause of action as claimed in the petition and that the petition be dismissed. The court further found upon the counterclaim that said plaintiffs were indebted to the defendant in the sum of $100 and that the defendant recover from the plaintiffs the said sum of $100 with interest and his costs therein expended. The cause was appealed to this court and has been submitted to the court upon the pleadings and the record in the court below and an agreed statement of facts which are submitted to the court in connection with certain testimony embraced in depositions taken in said cause.

The main contention in this case arises upon the construction to be given to the last will and testament of John Crum, deceased, and especially the fifth item thereof, namely: what is the nature of the estate and the extent thereof given to the. plaintiff, Ida C. Zackman?

Although the action is a -suit for the specific performance of a written contract, the principal question involved is as to the nature of the title that Ida C. Zackman got by the will of' her father, John Crum, which will was executed on the third day of February, 1897. Said will was duly probated and a. copy thereof is introduced in evidence and its true construction will determine the issue in this case.

There is a preliminary question that we will here notice, before attempting to give a construction of the will or the fifth item thereof, which is the item giving to Mrs. Zackman the land in question. That preliminary question is as to the competency of certain testimony offered in evidence embraced in the deposition of Austin J. Fiekes. The deposition was received under objection, which objection the court sustains, with exceptions. The objection to the testimony 'of Fiekes is on the ground that he can not testify as to the instructions given him at the time, the will was written or as to conversations as to the intention of the testator. If the controversy here was a suit to contest the will of John Crum there would be more reason for.the admission of such testimony, but upon the construction of the will we hold that such evidence is wholly incompetent, as the. will must speak for itself.

In the construction of wills there are certain well settled rules to be observed. These rules are used in ascertaining the-meaning of the testator when it is doubtful, but are never invoked to defeat his intention when it is clear. The primary-rule of construction is:

'“In the construction of wills, the great object is always to-ascertain the intention of the testator. That intention is made known by language. It may be awkward, obscure and ungrammatical, but it must be language; and one of the important, rules for the construction of wills, is that its language must be. interpreted according to its proper acceptation.” Painter v. Painter, 18 Ohio 265.

The determination of this intention does not give a court, the right to conjecture or correct or redraft a will in which the. testator has clearly expressed his intention, for “the true inquiry is not what the testator meant to express, but what the words used do express.” Page, Wills Sec. 460, and authorities therein cited.

“Parole testimony can not be admitted to contradict or explain the contents of a will.” Painter v. Painter, supra.

Now, what is the clear meaning of the devise in the fifth-item of the will under consideration? The language of that item is:

“I hereby give and devise to my daughter, Ida Catherine Zackman, and her heirs the west half of the southeast quarter of section ten, consisting of 80 acres in Franklin township, Rich-land county, Ohio.”

It is conceded by counsel for the defendant that if this-item stood alone it would convey a fee simple estate, but it is sought to reduce the estate given in this item by comparing the language used in item five with language used in other items of the will. By statute, in a will the word “heirs” is no longer necessary to the creation of a fee simple estate in Ohio, and therefore, unless there is something in the will to show that, the testator’s intention was not to give a fee simple estate tolda O. Zackman, the language used “to her and her heirs” would surely convey a fee simple estate. It would be sufficient to convey a fee simple estate if it were a deed and it certainly,, by being used in a will where the word “heirs” is not necessary, can not have the effect of reducing the estate from what it. would be if it had been a conveyance by deed.

“It is not necessary to the creation of a fee in a will to> use the word ‘heirs’ but where the term is used it does not indicate a purpose not to grant a fee.” Gannon v. Albrightr 183 Mo. 265 [81 S. W. Rep. 1162]; Webbe v. Webbe, 234 Ill. 442 [84 N. E. Rep. 1054; 17 L. R. A. (N. S.) 1079].
“Where an estate is conveyed by one part of a will, it can not be cut down by raising a mist or doubt from another part.” Martin v. Martin, 52 W. Va. 387 [44 S. E. Rep. 198]; Gaskins v. Hunton, 92 Va. 528 [23 S. E. Rep. 885].

We think that the doctrine laid down in the case of Halley v. Hengstler, 13-23 O. C. C. 504 (3 N. S. 161), affirmed, no op., Halley v. Hengstler, 70 Ohio St. 452, is decisive of this case.

The contention of the defendant is based on the theory 'that the word “heirs” is used in the sense of children in the fifth item of the will here in question. No authority is cited that would support this position. There is no provision of the will nor any circumstances shown by the record to justify a departure from the settled rule of construction; there is no distinction legal or grammatic between the words “after him” or “after his death or after his decease”; the use of the words “after him” must be construed to mean the same as though the provision of the will read “after his death or after his decease.” In a legal sense the devisee could have no heirs while he lived; they become his heirs after him, that is, after his decease.

There is nothing in the veil in question in this ease to enforce the construction contended for by defendant that the word “heirs” used in item five of the will, refers to the children of the devisee and, therefore, the contention is, that Ida C. Zackman only got a life estate in the property devised to her in item five of the will of John Crum. We can not agree with this contention.

Looking at the will “from its four comers” is there anything found to change or alter the plain meaning of the language used in item five'? Does a consideration of the other items justify a different conclusion?

Where the words used grant an estate in fee it can only be cut down to a lesser estate by words as clear and decisive as those by which the estate in fee was granted in the first instance.

“When the absolute estate has been conveyed in one clause of the will, it will not be cut down or limited by subsequent or prior words, except such as indicate as clear an intention as would the words used in creating the estate. Words which merely raise a doubt or suggest an inference will not effect the estate thus conveyed, and any doubt which may be suggested by reason of such subsequent or prior words must be resolved in favor of the estate first conveyed.” Granniss, In re, 142 Cal. 1 [75 Pac. Rep. 324].

So upon a true' and reasonable construction of said item five, following the authorities above cited, we hold that the only view a court can take of said will in question is, that under it an estate in fee simple was created and vested in Ida C. Zackman, in the real estate described in the petition.

Our conclusion is that item five in this will gives a fee-simple to Ida C. Zackman, and that there is no ambiguity or doubt as to the nature of the title devised by the terms of this null; and there being no doubt as to the title, there can be no reason why the plaintiffs are not entitled to a specific performance of the contract.

The court finds that the lien mentioned in the defendant's cross petition was not a. lien on the premises of plaintiffs at the time the contract of sale was made or when the deed was tendered to defendant, that said lien had been canceled of record as averred in plaintiffs’ reply to said cross petition.

¥e are of the opinion that the defendant’s objection to the title to this property is not valid, and is no excuse for his failing1 to comply with his contract, and, being of this opinion, we hold that the plaintiffs are entitled to the relief prayed for in their petition, and that a decree be entered for a specific performance of the contract, and that judgment be entered in favor of the plaintiffs for the balance due on said contract, with interest as prayed for in the petition; that the defendant' pay the cost of this action. Motion for new trial filed and overruled; exceptions.

Shields and Marriott, JJ., concur.


author: SAYRE, J.

text:
    INJUNCTION — TAXATION.
    [Lawrence (4th) Court, of Appeals,
    December 12, 1913.]
    Walters, Sayre and Jones, JJ.
    Fearon Lumber & Veneer Co. v. Arno C. Robinson, Aud.
    1. Taxpayer not Required to Appeal to State, Tax Commission before Suit to Enjoin Arbitrary Addition to Tax Return by City Board of Review.
    When a taxpayer claims that a city board of review has made; an addition to his tax return arbitrarily and without evidence, it is not necessary to appeal to the tax commission of Ohio before plaintiff can bring suit to enjoin the levy of such, addition.
    2. Auditor Placing Tax Addition on Treasurer's Duplicate but not on Original Tax List Enjoinable.-
    When the county auditor has placed such addition on the treasurer’s duplicate but not on the original tax list provided for by Sec. 2583, G. C., the levy is not complete and the auditor' may be enjoined.
    3. Essentials to Adding Taxes to Corporation Returns.
    The language “any list returned under oath” as used in Sec.. 5592, G. C., comprises the return of corporations as well a» individuals, and before adding to the tax return of a corporation the board of review must comply with the provisions of such section.
    4. Insufficient Statement on Journal as to Additions to Corporate Property.
    A statement on the journal of the board of review in these words: “The board devoted the day to reviewing the personal returns of the various lumber companies and made additions as shown, the Fearon' Lumber Company on own statement and information, add item 12a $24,647.00” — is not such a statement as required by Sec. 5592, G. C.
    [Syllabus by the court.]
    Appeal from common x>leas court.
    September 29, 1911, the plaintiff, an Ohio corporation,, brought suit against the auditor of Lawrence county to enjoin him from adding $24,647 to the personal property return of the plaintiff made by it to such auditor Mhy 27, 1911, and from entering said sum against it on the tax list and duplicate of said county. Plaintiff avers that it made a true-and correct return, under oath, of all its property which could be legally ■charged against it under item 12b — “Average value of all articles on hand during the year or part thereof, previous to the first of April, 1911, which have been by me manufactured ■or changed in any way, either by combination, rectifying, refining or adding thereto * * * ” in' the sum of $34,104; that the board of review of the city of Ironton, Ohio, without •any notice to the plaintiff to show cause why the valuation of its property should not be increased or without making any ■statement of the facts upon which such addition was made and without evidence, except the tax statement of the plaintiff, added to the return of plaintiff, under item 12b, $24,647; that the ¡said addition was made arbitrarily and illegally.
    It appears from the evidence that the suit was brought before the addition was placed upon the tax list but after it had been placed upon the treasurer’s copy.

      Jed B. Bibbea, for plaintiff:
    Cited and commented upon by the following authorities: Britton v. Baker, 12 Dec. 107; Davies v. Investment Co. 76 Ohio 'St. 407 [81 N. E. Rep. 755] ; Fratz v. Mueller, 35 Ohio St. 397; Kayes v. Yost, 24 O. C. C. 18 .(4 N. S. 455); Batterman v. Niehaus, 2 Cire. Dec. 673 (4 R. 502) ; Boivland v. Shoe- Co. 21 Dee. 211 (10 N. S. 243) ; 37 Cye. 1100, 1101; Jones v. Davis, 35 Ohio St. 474; Euclid Ave. Sav. & Bank. Co. v. Hubbard, 12 Cire. Dee. 279 (22 R. 20) ; Black v. Hagerty, 60 Ohio St. 551 [54 N. E. Rep. 527] ; Standarl Oil Co. v. Hopkins, 34 O. C. C. 170.

      Timothy S. Hogan, Atty. Gen., Clarence C. Laylin, Arno C. Robinson, L. K. Cooper, for defendant.
   SAYRE, J.

The questions for determination arise upon the following propositions contended for by counsel for the defendant:

(a) The tax commission of Ohio had power and authority to afford plaintiff complete relief, and without appealing to said commission the taxpayer has no standing in a court of ■equity;

(b) The addition in this ease having been made and entered on the duplicate of the county treasurer, the auditor can not be enjoined in this action;

(c) That the board of review is not required to comply with See. 5592, G. C., in adding to the return of a corporation;

(d) That the statement made by the board of review was sufficient if compliance with See. 5592 is necessary.

As to the first contention, the decision of the court of appeals of the first district in the case of Standard Oil Co. v. Hopkins, 34 O. C. C. 170, is approved and followed in the case under consideration.

The syllabus in that case is:

“Injunction against collection of taxes is the proper and only remedy to review a board of review’s action in ‘arbitrarily and capriciously’ and without evidence or information adding to tax returns; act 102 O. L. 224 makes no provisions for review by the state tax commission by error or appeal.”

Can the auditor be enjoined, it appearing that the addition made by the board of review was placed on the tax duplicate of the treasurer but not on the original tax list before the suit was brought and the preliminary injunction secured?

Section 2583, G. 0., provides that:

“The county auditor shall make in a book prepared for that purpose in such manner as the state auditor prescribes a complete list or schedule of all the taxable property in the county * * * .”

Section 2584, G. C., provides:

“In making the original tax list, the county auditor may place * * * .”

Section 2588, G. C., reads, in part, thus:

“From time to time the county auditor shall correct all errors which he discovers in the tax list and duplicate * # * . If the correction is made after the duplicate is delivered to the treasurer, it shall be made on the margin of such list and duplicate without changing any name, * * * in the duplicate as delivered, or in the original tax list, which shall always correspond exactly with each other.”

Section 2589, G. C., provides-.

“After having delivered the duplicate to the county treasurer for collection, etc.”

From these sections it will be seen that the original is the tax list prepared by the auditor and kept in his office. The duplicate is the copy thereof delivered to the treasurer. These two words, “tax list” and “duplicate” are used interchangeably.

Whatever may be the practice of county auditors in making up these books, it seems to us that the levy is not made until the addition is placed on the tax list. The statute provides that the tax list and duplicate shall always correspond exactly with each other. Since the addition made by the board of review has not been carried on the auditor’s tax list the levy is incomplete. Something remains to be done by the auditor, which the law requires, before the duplicate is turned over to the treasurer. Since something remains to be done by the auditor, which he must do, an injunction will lie.

This holding is not in conflict with Jones v. Davis, 35 Ohio St. 474, as in that case the word “duplicate” was used, as it often is, to exclude “tax list” as well.

Is it necessary for the board of review or the board of equalization, in increasing the value of the property of a corporation, to comply with Sec. 5592, G. C. ?

It is the contention of council for defendant that the language of Sec. 5592, G. C., “any list returned under oath,” means a return by an individual and does not include the return of corporations; and as reflecting on this matter the language, “whether the return is made upon oath of each person or upon the valuation of the assessor or county auditor,” found in the last clause of See. 5591, G. C., shows that returns or valuations are limited to those under oath (individuals), those by the assessor (in case of refusal, neglect, etc.), and those by the county auditor (corporations) because of the last amendment to Sec. 5405, G. C., authorizing the auditor to ascertain and determine the valuation of the tax returns of corporations.

An examination of the history of Sec. 5592, 5591, 5375, 5391, 5404 and 5405, will aid in arriving at a correct understanding of the language now found therein.

"Each person required by this act to list property shall make out and deliver to the assessor, when required, or within ten days thereafter, a statement verified by his oath or affirmation, of all the personal property * * in his possession * * * .” S. & C. 1442, Sec. 4, now See. 5375 G. C.

The return of corporations for taxes was made to the •county auditor and it was required that the president, secretary •or principal accounting officer should list for taxation all the personal property of the corporation "verified by oath or affirmation of the person so listing.” S. & C. 1446, Sec. 16, now Secs. 5404 and 5405, G. G.

In the case of refusal or neglect, absence or sickness of any person to list personal property the assessor was to ascertain the value of the personal property of such persons and return the same to the county auditor. S. & C. 1447, See. 18, now Secs. 5391 and 5392, G. C.

The annual county board of equalization, composed of the ■county commissioners and county auditor "shall have power =» * * to equalize the valuation of all real and personal property, moneys and credits within the county * * * .” S. & C. 1456, See. 44, now Sec. 5580 G. C.

"And said board shall have power to add to or deduct from the value of the personal property * * * of any person returned by the assessors or which may have been omitted by him * * * or to add other .items upon such evidence as shall be satisfactory to the said board, whether such return be made upon oath of such person or upon valuation of the assess- or; but when any addition shall be ordered to be made to any list returned under oath a statement of the facts on which said addition was made shall be entered on the journal of the board * * * S. & C. 1457, Sec. 45, now Secs. 5591 and 5592, g: c.

It might be concluded from a reading of the language last above quoted that the annual board of equalization could only add to or deduct from the valuation of personal property returned by the assessors and had no authority to change the valuation of the property of a corporation returned to the auditor. But the language of S. & C. 1456, Sec. 44, that the board “shall have power to equalize the valuation of all real or personal property, moneys and credits within the county,” which must be construed with the language of Sec. 45, makes it clear that the board had authority to add to or deduct from the return of a corporation, despite the language “returned by the assessors,” as found in Sec. 45.

It will be seen, therefore, from the language above quoted (S. & C. Sec. 4, p. 1442, and Sec. 16, p. 1446) that individuals and corporations both made returns under oath, although one return was made to the assessor and the other to the county auditor, and one kind of return was made by the assessor (Sec. 18, p". 1147) in case of refusal, neglect, absence or sickness.

There were, therefore, two classes of personal property valuations to be added to or deducted from by the board of equalization: one, in which the return was made under oath, and this included both individuals and incorporated companies; and the other, upon the valuation of the assessor in case -of refusal, neglect, absence or sickness.

The language above quoted from S. & C., p. 1457, Sec. 45, became part of See. 2807 of the Revised Statutes and was amended March 19, 1880 (77 O. L. 76), to read, in part, as follows:

“And they shall have power to add to or deduct from the valuation of the personal property * * * of any person, firm, or corporation, returned by the assessor, * * * upon such evidence as shall be satisfactory to the said board, whether said return be made upon oath of such person, or upon the valuation of the assessor; * *• * but when any addition' shall be ordered to be made, * * * whether to a list returned under oath, or upon an original assessment, a statement of the facts on which such addition was made shall be entered on the journal * * * ; and when any reduction shall be ordered to be made in the amount of personal property * * * of any person, firm, or corporation, a statement of the facts on which such reduction was made shall be entered on the journal of the board.”

It will be observed that the legislature here authorized two returns of valuation, one under oath and the valuation of the assessor. s

Section 2807 was again amended April 13, 1880 (77 O. L. 191.)

It there became part of an act to amend Secs. 2766, 2806 and 2807, R. S. In that act, by See. 2766 the auditor was authorized “to fix the total value of shares of” certain banks. By Sec. 2806 the auditor was directed to lay before the board of equalization “copies of all reports made by cashiers of banks * * # together wfith the value of the shares of such banks as fixed by the auditor and the returns of the assessor for the current year. * * * . ”

Section 2807, R. S., was amended to read, in part, as follows :

“The said board shall hear complaints and equalize the assessment of all personal property * •* * returned for the current year by the township assessors and the shares of the several banks as fixed by the auditor; and they shall have power to add to or deduct from the value of the shares of such banks as fixed by the auditor or of the personal property * * * of any person returned by the assessor * * * upon such evidence as shall be satisfactory to said board, whether said return be made upon the oath of such person or upon the valuation of the assessor or upon the valuation of the auditor; but when any addition shall be ordered to be made to any list returned under oath a statement of the facts upon which such addition was made shall be entered on the journal, and when any reduction shall be ordered to be made in the personal property # * * or the shares in any bank, whether said return be made by such person or by the assessor or by the auditor, a statement of the facts upon which such reduction wras made shall be entered on the journal of the board.”

The amendment just referred to authorizes the auditor to fix the valuation of shares of banks, and the statute, as so amended, provides for three valuations, three returns: valuations or returns under oath, by the assessor, and by the auditor. The valuations made under oath included all valuations except those made by the assessor or auditor.

It will be further observed by this last amendment that only when an addition is to be made to a list returned under oath is the board required to enter a statement of facts on the journal. The language “or upon an original assessment,” found in the amendment of March 19, 1880 (77 O. L. 76), is taken out.

The three Secs. 2766, 2806 and 2807, were again amended by the act of March 9, 1883 (80 O. L. 54), and Sec. 2807 was amended so as to read as it does at the present time with the exception of the language requiring the notice to the taxpayer and the hearing by the board of equalization.

Section 2766, TL S., became Sec. 5412, G. C., and the auditor transmits-to the tax commission of Ohio the report of the banks (Sec. 5603), and that commission examines the valuation of the auditor (Sec. 5604) and may increase or decrease the value of the shares (Sec. 5605).

However, since the act approved April 12, 1911 (102 O. L. 60), amending Secs. 5404 and 5405, the auditor of the county, by the provisions of Sec. 5405, determines the valuations of all incorporated companies except those specially provided for, and thus there are still valuations by the county auditor.

But the language of the last part of Sec. 5591, referring to the valuation of the county auditor, was not placed there because of the amendment of April, 1911 (102 O. L. 60), for that language has been in the statute, just as it is now, since April 13, 1880. So if that language meant what we construe it to mean before the passage of the act of April, 1911, it certainly did not change its meaning when that act was passed.

Ever since the enactment of the act of May 11,-1878 (75 O. L. 438, See. 1, now Sec. 5320, G. C.), the word “person,” as used in the taxing laws, including Secs. 5591 and 5592, G. C., is held to include firms, companies, associations and corporations.

So it is necessary, since 3878, to read into the statute law which is now Secs. 5591 and 5592 the words “firms, companies, associations and corporations” after the word “person” where the same is found in said statutes.

If so read the pertinent parts of the two sections would ■•appear as follows:

Section 5591. “ * * * It may add to or deduct from the valuation of personal property .or moneys or credits of any person (firm, company, association and corporation) returned by the assessor or county auditor, or which may have been omitted by them, or add other items upon such evidence as is satisfactory to the boards, whether the return is made upon oath ■of each person (firm, company, association and corporation) or upon the valuation of the assessor or county auditor.”

Section 5592. “"When an addition is ordered to be made to any list returned under oath a statement of the facts upon which such addition was made shall be entered on the journal of the board. No such addition shall be made to such list returned under oath without the board having first given reasonable notice to the person or persons (firm, company, association and corporation), if their residence is within the county * * *. When a reduction is ordered to be made in the amount of personal property or moneys or credits of any person (firm, company, association and corporation), whether such return is made by such person (firm, company, association and corporation) or by the assessor or county auditor, a statement of the facts on wliich such reduction was made shall be entered on the journal of the board.”

It is therefore clear that the language “any list returned under oath” found in Sec. 5592, comprises lists returned by corporations as well as individuals.

It is, therefore, necessary wrhen the board of review or equalization orders an addition to the return, either of an individual or firm, company, association or corporation, to cause a statement of the facts upon which such addition was made to be entered upon the journal and to give notice of the time and place to be fixed by the board when the taxpayer may show cause why such- addition should not be made.

Was a statement of the facts, as required by Sec. 5592, made by the board of review on its journal in this case?

A compliance with this statute is mandatory and an addition without such compliance would be void. Ratterman v. Niehaus, 2 Circ. Dec. 673 (4 R. 502); Hayes v. Yost, 24 O. C. C. 18 (4 N. S. 455).

The entry on the journal is as follows:

“The board devoted the day to reviewing the personal returns of the various lumber companies and made additions as shown, — the Fearon Lumber company on own statement and information, add item 12a $24,647.”

In the case of Fratz v. Mueller, 35 Ohio St. 397, the entry on the journal was:

‘ ‘ On motion, the amount, set opposite the names of the following persons was added to their personal returns, for the reason that-the amount returned by the parties respectively was, in view of the facts, considered insufficient and below the actual value of the property owned or held by the parties: Ward 19, John W. Mueller, 425 Front Street, Item 10, $1,000.”

The Supreme Court held that this entry was sufficient. That the monthly average was insufficient and below the actual value, was the statement of an ultimate fact on which the addition was made, and this was all that was required.

When the words are transposed and it is made as readable as possible, the statement in the case under consideration would be about this: “The board made an addition in the1 sum of $24,647 to item 12a of the return of the Fearon Lumber company on its own statement and information.” Reduced to a simple and exact expression the statement is, that the addition was made on the evidence received by the board. What fact, if any, appeared from the evidence which led the board to make the addition is not stated. There is no statement of any ultimate fact. There is no reason assigned or given for the increase in the valuation of the property returned, if the valuation was increased; nor is there a statement of the addition of property not returned, if such property was added by the board. It is too plain for further discussion that there was here no statement of the facts as' required by the statute. Ratterman v. Niehaus, and Hayes v. Yost, supra.

There will be a decree as prayed for, the defendant to pay the costs.

Walters and Jones, JJ., concur.


author: ALLREAD, J.

text:
    AUTOMOBILES.
    [Franklin (2nd) Court of Appeals,
    February 17, 1914.]
    Allread, Ferneding and Kunkle, JJ.
    Charles H. Graves v. Charles C. Janes and Ohio Automobile Assn.
    1. Automobile Law of 1913 Invalid Because Act is a Revenue Producing Measure.
    Section 3609 (6309) G. C. as amended 103 O. L. 765, disposing of the revenues for registration of automobiles, one-third to the repair, maintenance, protection, policing and patrolling of roads, leaving the balance in the general revenue fund of the state treasury, evinces an intention on the part of the, legislature, in view of the operation and revenue producing tendencies of former laws, to raise the larger part of the license fund for general revenue purposes and to that, extent is unconstitutional and void.
    2. Failure to Include Other Vehicles Does not Render Law Discriminatory.
    Section 6293 G. C. et seq., 103 O. L. 763, in that it fails to include horse-drawn vehicles, especially of the heavier type, is not discriminatory, the wear and tear upon highways and streets from the greater speed of the motor driven vehicles being considered and the necessity of police regulation being greater because not confined to the limited mileage. Nor is the act discriminatory because of the exemption in favor of fire and police apparatus, road rollers and traction engines.

      3. Schedule of Fees for Registration Based on Horse Power Ratings not Discriminatory.
    A classification of motor vehicles according to horse power ratings, prescribed by Sec. 6294 G. C., is not invalid on account of uncertainty and inaccuracy of the basis of such ratings; the distinction between gasoline and electric driven automobiles, prescribing a flat rate for the latter as distinguished from the former ratings does not render the statute unconstitutional because of the lighter weight and necessarily local operation of the electrics.
    4. Repealing Clause of 1913 Automobile Law Invalid, not being Separable.
    Act 103 O. L. 763, amending Secs. 6294 et seq., imposing a graduated license tax on automobile owners and users and disposing of the revenues thereof, being unconstitutional as a general revenue measure, and the unconstitutional or revenue features not being separable, the entire act is vitiated; Sec. 2 of act 103 O. L. 766, repealing clause, is also void and the corresponding sections repealed are revived.
    Error to common pleas court.

      T. 8. Kogan, Atty. Gen., for plaintiff in error.

      R. K. Lee, G. D. Saviers, K. L. Gordon, for defendants in error.
   ALLREAD, J.

This action involves the constitutionality of the Automobile License act of 1913 (103 O. L. 763), providing for a system of identification and registry of motor vehicles and the annual payment of eerain graded license fees.

The act under consideration is an amendment to an act upon the same subject passed in 1908, amended in 1909 and embodied in the General Code as Secs. 6290 to 6310 inclusive.

The main features of the act of 1913 are to bring in motor-bicycles and motorcycles, increase the license upon gasoline and steam cars according to horse power, increase the flat rate upon electrics and upon manufacturers, dealers and chauffeurs; and to leave substantially two-thirds of the total receipts in the general revenue fund of the state.

The constitutionality of the act under consideration is challenged chiefly upon the following grounds:

(1) Want of legislative power upon the general subject matter.

(2) Unlawful discrimination, and

(3) Illegality and unreasonableness in tbe amount and the purpose of the fee exacted.

We think the power of the General Assembly to prescribe a license fee for vehicles using the highways of the state or those whose use thereof creates a special burden, is clearly supported by reason and authority.

From the foundation of our state the public highways have been largely maintained by general taxation. The general principle underlying this system of road improvement was the general public welfare and the approximate equality of the benefits as represented by the taxable property of individuals. The condition in the earlier history of the state especially exemplifies the appropriateness of that form of taxation. In the ■ development of the state a more expensive system of roads was demanded in the populous centers and the necessity or at least advisability of imposing a portion of the expense of maintaining the highways of the larger municipalities upon the owners of vehicles whose use of such highways was specially burdensome. The constitutionality of laws enacted for the purpose indicated was challenged and the power of the legislature to enact such laws was sustained in the leading ease of Marmet v. State, 45 Ohio St. 63 [12 N. E. Rep. 463].

In recent years new problems of road building and repair have arisen by the prevalent use of motor vehicles and this problem has been increased by the skill of the inventor and the manufacturer in building practical cars of high power and speed. The state is, therefore, confronted with the necessity or expediency of building better roads for the accommodation of this new method of travel and of providing for the increased expenses of repairs upon highways by reason of this new use, and to preserve the highways in repair for all kinds of travel.

In the case of Cincinnati v. Bryson, 15 Ohio 625, 644 [45 Am. Dec. 593], where the right of the state to authorize cities to charge a license fee upon the use of drays, hacks, omnibuses and other heavy vehicles was involved, Birchard, J., says:

“It is manifest to every one, that, in a large city, vehicles of this description cause great destruction to the public ways, far greater than the usual ordinary travel of citizens otherwise employed. There is, therefore, no injustice in exacting a reasonable portion of the expenses which such special occupations cause to the community; and those who enjoy the special privilege, can refuse to bear a reasonable portion of the burden but with an ill grace.”

In the case of Marmet v. State, supra, the general legislative authority in respect to vehicle license tax is defined as follows:

“The General Assembly has power * * * to regulate occupations by license, and to compel, by imposition of a fine, payment of a reasonable fee, where a special benefit is conferred by the public upon those who follow an occupation, or where the occupation imposes special burdens on the public, or where it is injurious to or dangerous to the public. ’ ’

While there is an intimation of doubt expressed by Price, J., in the ease of Pegg v. Columbus, 80 Ohio St. 383 [88 N. E. Rep. 14; 23 L. R. A. (N. S.) 453], yet, we think the right to enact a license law including a reasonable charge as a privilege tax is clearly established in this state.

It is also claimed that the act is discriminatory and in violation of the uniformity clause of the constitution. This contention is founded upon the general exemption of horse drawn vehicles and certain motor vehicles.

The uniformity clause of the constitution does not prevent reasonable classification of the subjects of legislation. Motor vehicles are a just subject of classification in respect to the use of public highways as distinguished from horse drawn vehicles. No better statement of this proposition can be made than that found in the opinion of Spear, J., in the ease of Allen v. Smith, 84 Ohio St. 283 [95 N. E. Rep. 829; 24 Ann. Cas. 611], as follows:

“Doesn’t everybody know that the automobile is a new machine of travel; its use a new use of the highways; that it is dangerous to other travelers; that its power, its capacity for speed, the temptation it affords the reckless driver to operate it at a dangerous rate and in a careless manner, all distinguish the automobile from all other vehicles. Surely it can not be necessary to further elaborate this fact so patent to every observing and reading person. The automobile is, therefore, a class by itself, the users of such machines a class by themselves, and legislation in recognition of this condition is based-upon solid, easily recognized distinctions. ’ ’

This classification deals more especially with the necessity of police regulation. The burden of highway maintenance as between motor vehicles and horse drawn vehicles is as clearly pronounced.

Reference is made in the briefs to the burden of the heavier of the horse drawn vehicles as compared with automobiles. Even this comparison does not eliminate a reasonable foundation for distinction. Horse drawn vehicles move slowly and are necessarily confined to a limited mileage, so that the total of the wear upon the highways by horse drawn vehicles is considerably less than that of motor vehicles and the necessity for police regulation of horse drawn vehicles is materially less than that of motor vehicles. It is, however, contended that there is unjust and unfair discrimination, in the special exemptions of certain motor vehicles. The exemption in favor of fire engines, fire trucks and police patrol wagons which are governmental agencies maintained by general taxation is manifest. Road rollers which are used largely by public authorities for road purposes, may be exempted for the same reason.Public ambulances may include those owned by public authorities as well as -those privately owned, but may legitimately be excepted because of the public welfare involved in their use. It would be strange, indeed, if not an anomaly in the administration of government if a tax was imposed upon vehicles so used.

The' exemption of traction engines is particularly complained of. The court will take judicial notice that these engines are generally used for power purposes in threshing grain and the like and that their use of the highways is merely incidental. Their speed is low and the total mileage of travel small. A touring ear will travel almost as many miles of highway in a single day as the traction engine will travel in the course of an entire season. Besides the very useful purpose of the traction engine and its relation to the production of food supplies for the citizens of the state may of itself furnish grounds for legislative classification. This feature is fully discussed by Spear, J., in the case of Marmet v. State, supra.

Street cars and vehicles upon fixed trades are already specially taxed and may therefore be exempted from this act.

There is complaint of the uncertainty and inaccuracy of the basis of horse power rating established in the act in respect to steam and gasoline cars. "While this is a subject .for judicial notice, yet the court has been favored with evidence bearing upon this feature. From the evidence we are advised that the same basis of horse power rating adopted by the act is well recognized and has been employed by leading manufacturers, and while in the recent development of engine making there may be some inaccuracy, still we think this basis is sufficiently definite to justify legislative adoption. There is also sufficient reason for the flat rate charges upon electrics. The electrics in general use are comparative slow moving and of low horse power. "While it may be true that electrics of high speed have been constructed, yet it is equally true that they are not in general use. Should they become so, it will be ample time for the legislature to act.

This brings us to a consideration of the amount and legality of the license charge. This feature is the most difficult of solution. The identification and registry of motor vehicles has a legitimate purpose, but it is clear that the charge provided for in the act under consideration goes far beyond this purpose. The act clearly contemplates other purposes and such purposes must be ascertained and their legality determined by constitutional limitations. It is apparent from the entire act that in addition to identification and registry, that the privilege of the use of the roads by motor vehicles and of police regulation thereon is contemplated. The imposition of a reasonable charge, for reimbursement for road maintenance and repair and for policing the road in view of the special uses contemplated by the act is warranted by the general grant of legislative power. This is not a property tax but a privilege tax. The reasonableness of a privilege tax is confided largely to the discretion of the general assembly, but for the abuse of such legislative power, a final review is in the courts.

• The opinion of the court in reviewing the power to levy excise taxes in the case of Southern Gum Co. v. Laylin, 66 Ohio St. 578 [64 N. E. Rep. 564], is illustrative. But the case of Pegg v. Columbus, supra, where the whole scope of the reasonableness of the act then under consideration was reviewed is analogous and directly in point. The right of the use of the .public ways of the state is in a measure inherent in every citizen, but clearly that right may be regulated to subserve the interests of the public welfare. When, therefore, the legislature clearly exceeds the limit of reasonable taxation for the privilege conferred or the burden imposed or when the charge imposed is clearly founded upon an improper basis or for an unwarranted purpose, it is the duty of the courts to declare the act invalid.

Section 3609 (6309) requires the revenue derived from registration fees to be applied to the expenses of the registry department and the surplus paid into the state treasury. The act provides that one-third of the revenue paid into the state-treasury :

“Shall be used for the repair, maintenance, protection, policing and patrolling of the public roads and highways of this, state under the direction,. supervision- and control of the State Highway Department.”

No special provision having been made for the other two-thirds of this revenue, it remains in the general revenue fund. It is true that the general revenue fund is subject to special appropriation for any lawful purpose. But we can not escape the conclusion that the manifest purpose of the géneral assembly in appropriating expressly for highway purposes, including both maintenance and policing but one-third of such revenue and leaving the other two-thirds in the general revenue fund of the-state clearly discloses an intention upon the part of the general assembly to raise the larger portion of this fund for general revenue purposes. The act is therefore, to that extent a general revenue measure.

What further special burden or benefit than that provided for in the special appropriation for road purposes is involved in the use of highways by motor vehicles upon which to found a legitimate right to tax them for general revenue? Increased litigation in the criminal and civil courts would probably support an allotment of some share to the general revenue fund. But that consideration would not of itself justify the large portion- of this tax devoted to general revenue. Nor, can we conceive of any other reason justifying it.

The eases of State v. Ferris, 53 Ohio St. 314 [41 N. E. Rep. 579; 30 L. R. A. 218], and Ashley v. Ryan, 49 Ohio St. 504 [31 N. E. Rep. 721], are cited to support the contention that the power to levy an excise tax involves by implication the right to appropriate the tax to the general revenue fund.

The vehicle tax involved in the act under consideration does not rest upon the same basis as the excise tax involved in the Oases cited.

The authorities in this state do not attempt to classify vehicle tax as an excise tax, but it is rather considered to be a special privilege tax imposed as compensation for .special burdens and inconveniences.

In all eases involving vehicle license taxes brought before the Supreme Court the revenues were appropriated to highway uses and this case brings up for the first time, so far as we are advised before the courts of this state the question of the right to impose a vehicle tax wholly or partly for general revenue.

We are, therefore, forced to the conclusion that the act under consideration so far as it applies to. the owners and users of motor vehicles is, in large part, a general revenue measure and to that extent is unconstitutional and void. The unconstitutional or revenue features of the act not being separable, vitiates the entire provision of the act in respect to owners and users.

In view of our finding as to the unconstitutionality of the act, we do not feel justified in.expressing an opinion as to whether the schedule of fees therein provided is so clearly excessive as to warrant a court in declaring the same invalid, if the legislature had expressly declared it necessary to raise such entire fund for the purpose of maintaining, repairing and policing the public highways and had appropriated the entire amount so raised less the cost of maintaining the department to such uses.

The main and controlling object of the amendment of 1913, being void, the repealing act to that extent is void and the corresponding sections of the former act are revived. All the main features of the present act except the general revenue feature are involved in the former act. Having that in view, we have discussed the general features applicable to the former act and find no constitutional infirmity. The section of the former act defining motor vehicles includes among the exceptions motor bicycles and motorcycles in addition to those of the present act. That motorcycles and motor bicycles may be separately classified, we think is apparent.

Section 6302 of the act of 1913, in respect to license for chauffeurs is clearly constitutional.

Section 6301 of the act of 1913, imposes a flat rate upon manufacturers and dealers in motor vehicles. This rate is not apparently excessive and no particular argument has been made against it. It is also more in the nature of an occupation tax and we, therefore, sustain that section, notwithstanding the provision as to the application of the fund.

The injunction allowed in the court of common pleas should be modified and limited so as to conform to this opinion and as so modified will be affirmed.

Ferneding and Kunkle, JJ., concur.