author: Shauck, J. Davis, C. J.

text:
    Allen v. Tressenrider et al.

      Widow elects whether to accept dower of lands — Or provisions of husband’s will in lieu thereof — Property specifically devised to be taken for payment of testator’s debts — Widow should be advised of result of election — Section 5968, Revised Statutes — If widow takes in lieu of dower, must contribute to debts of testator — Section 5978, Revised Statutes.

    1. When, a widow is cited to appear in the probate court and elect whether she will be endowed of the lands of her deceased husband or accept the provisions of his will in lieu thereof, and it appears that property specifically devised must be taken for the payment of the testator’s debts, she is entitled, by favor of section 5963, Revised Statutes, to be judicially advised whether, if she accepts the provisions of the will, she will be obliged to contribute her proportion of the loss to the person from whom the property so devised is taken.
    2. If, in such case, she elects to accept the devise in lieu of dower, the obligation to contribute is imposed upon her by the comprehensive terms of section 5973, Revised Statutes: “When any estate, real or personal, that is devised shall be taken from the devisee for the payment of the debts of the testator, all other devisees and legatees shall contribute their respective proportions of the loss to the person from whom such estate is taken.”
    (No. 9166
    Decided February 28, 1905.)
    Error to the Circuit Court of Franklin county.
    The plaintiff, Annie J. Allen, filed a petition in the court of common pleas praying for a construction of the will of her late husband, Boutelle E. Allen, joining as defendants the executor thereof and the devisees and legatees therein named, the judgment here to be reviewed as rendered in said cause by the circuit court on appeal. From the petition and the undisputed evidence in the case it appears that Boutelle E. Allen died testate, that his will had been admitted to probate in Franklin county, that the plaintiff had been cited by the probate court to ap'pear therein and elect whether she would take under the provisions of the will or be endowed of the lands of her deceased husband and take her distributive share of his personal estate as required by law and the time within which she was required by law to make her election had not expired. In the will the testator had devised and bequeathed to her in fee simple the homestead in which they lived together with all the testator’s household effects except certain enumerated articles and also gave to her until the settlement of the estate should be completed the sum of $75.00 per month. It also appears from the will that other parcels of real estate were by the testator devised to other devisees named as defendants. It also appears that the testator, while directing the payment of his debts generally, made a special provision for that purpose which proved to be inadequate, making it necessary to sell some of the real estate devised specifically by the will. Upon this state of facts and with a view to enabling her to determine whether she should accept the provisions of the will or be endowed with the testator’s lands and take her distributive share of his personal estate she prayed for a judicial construction of the will and especially that the court should inform her whether “if she should elect to take under the provisions of said will and the executor of said estate should be required to sell any part of the real estate specifically devised, would the plaintiff be required to contribute with the other devisees and legatees to such devisee or devisees from whom such lands should be taken as to make the loss fall equally upon all devisees and legatees according to the value of the property so taken to pay debts.”
    The circuit court construing the will and the pertinent provisions of the statute adjudged that in case of her election to accept under the provisions of the will she would be charged with the obligation to contribute.

      Messrs. Kmhead, Merwine & Schumacher, attorneys for plaintiff in error.
    It is a well-known rule that, in considering and determining the meaning of statutes which embody common law doctrines, we may look to the common law, compare it with the provisions of the statute, and ascertain whether or not it was the intention to incorporate into the statute the common law rules.
    It has always been a rule in the practice in the courts of chancery in England, without any statute in aid thereof, that whenever any provision is made in a will for a widow, and provision is also made for other devisees and legatees in the same will, and .there are not sufficient assets to pay all in full, the widow, by reason of the fact that she is the widow, and by electing to take under the will she yields an absolute right and is therefore entitled to receive her devise or legacy in full.
    The same principle applies when it is necessary to take property specifically devised, to pay debts of the testator. In such case the widow has the right to hold the devise to herself, free from the payment of debts, and is not compelled to contribute to the losses sustained by another devisee whose “specific devise” is taken to pay debts. Davenhill v. Fletcher, 1 Ambl., 245.

      The statute as to contribution is in the nature of a limitation upon the power of a testator to dispose of his property by will. The effect of the statute is to prescribe a different mode of disposition and adjustment of his property among the beneficiaries named by him, than is prescribed by the will itself. Without the statute, if the property specifically devised to one is taken for the payment of debts, such person must alone sustain such loss. This would be the usual course under the English law without such statutes.
    Eeason and justice, and the principles of the common law, in the absence of any statute at all, places the widow in a different category from all other beneficiaries of a testator. As is well known, the rights which she, as a widow, has, are absolute and cannot be taken away, no matter what a testator provides in his will.
    The doctrine of “average” of legacies for want of assets, and the doctrine of contribution between devisees for the payment of debts insofar as it applies to a widow, are the same.
    In the light of the common law (or more appropriately, chancery law), as to the rights of a widow, it would seem that the provisions off section 5973 were such as to require devisees, other than widow devisees, to contribute for the payment of debts, and that section 5973 cannot be held to apply to a widow, for whom provision is made in a will in lieu of dower, because of the fact that another rule steps in and determines her rights independently of any statute that does not in strict terms provide that she shall be compelled to contribute the same as any other devisee. But even a statute that would so provide could hardly he considered valid in view of the doctrines of equity governing her rights as widow.
    The proposition which we desire earnestly to urge upon the court is, that when the testator made provision for his widow in his will, which was to he in lieu of dower, that in looking to such provision in the will, and construing the will and its terms insofar as it changes her rights from those which she had under the law, it must be held, that the devise which was made to her was to be paid to her in full without regard to the other devises, and without regard to the question of the payment of the debts, unless it should become necessary to take any part of that devise to her to pay them.
    We may compare provisions of statutes in different states, and constructions thereof by courts of such states, in order to arrive at a construction of the statutes of a particular state. But the inferential argument of opposing counsel for the classification of statutory enactments with reference to this subject, is certainly not well taken.
    We are to determine this question by looking to our own statutes alone, and by applying to the will the common law doctrines which we have shown, and which we will hereafter show, have been adopted in some of the states of this country. Because the states of Connecticut and Rhode. Island have provided in their statutes with reference to contribution that “all the other devisees, legatees and heirs, excepting the widow when the devise or bequest is made in lieu of dower, shall contribute,” etc., is no reason why we should conclude in Ohio, that because this exception is not contained in our statute, that it was not intended to exempt the widow from contribution. On tbe contrary, we contend, inasmuch as there is no statute in Ohio which, in terms, applies to a widow to whom a devise is made in lieu of dower, that we are to determine what her rights are, by looking to the will and the common law.
    Counsel on the other side have found no cases in America supporting their contention; hence they were driven to-this illogical course of argument by inference from other statutes, which shows how they overlooked the historical development of this question.
    We furnish the court the following American authorities, viz.: Lord v. Lord, 23 Conn., 327; Stuart v. Carson, 1 Desaus. Eq., 500.
    The strongest reason that may be urged in favor of a construction of the will in this case, that the widow should not be required to contribute to the son and daughter, in case any of all specific devise to them should be taken by the executor to pay debts, is the following:
    The reason and principle involved in the construction is, that'the relinquishment of a dower right furnishes a valuable consideration of the bequest or legacy in the will. The son and his family, and the daughter, at the time of the making of. the will in controversy had no claim upon the testator which could not have been defeated by his will had he desired to do so.
    If the widow should now elect to take under the will, there is, in law, a valuable consideration in this election which will defeat the right of contribution mentioned in the statute.
    The text writers and all the decisions support this doctrine. We call the court’s attention to the fol-. lowing authorities upon the question: Page on Wills, secs. 771 and 776; Burridge v. Bradyl, 1 Peere Wms., 129; Blower v. Morret, 2 Ves. Sen., 420; Davenhill v. Fletcher, Ambl., 244; Norcott v. Gordon, 14 Sim., 258; Warren v. Morris, 4 Del. Ch., 289; Moore v. Alden, 60 Me., 301; Hastings v. Clifford, 32 Me., 132; Towle v. Swasey, 106 Mass., 100; Farnum v. Bascom, 122 Mass., 282; Taylor’s Estate, 175 Pa. St., 60; Brown v. Brown, 79 Va., 648; Hubbard et al. v. Hubbard et al., 6 Metc., 50; Justice v. Justice, 18 Atl. Rep., 675; 1 Underhill on the Law of Wills, see. 392; Beach on the Law of Wills, sec. 144; Duncan v. Franklin Township, 43 N. J. Eq., 143; In re Brook’s Estate, 10 N. Y. S., 20.

      Messrs. Booth, Keating & Peters and Mr. E. E. Tanner, attorneys for defendants in error.
    The action was brought under section 5963, Revised Statutes, which provides that a widow or widower may, at any time before the period for her or his election under a will has expired, file a petition in the court of common pleas, “asking a construction of the provisions of said will in her or his favor. ’ ’
    The purpose of such an action is to obtain a judicial interpretation of one or more provisions of a will. The reason for seeking such an interpretation may be due to the latent ambiguity of one or more provisions touching the •persons to whom property is devised or bequeathed, the property affected by the will, or some other ambiguity in the terms of the will itself on account of which the testator’s intention is not clear.
    If his intention is clear no judicial interpretation is required, and an action brought to secure such an interpretation must fail.

      "Where it is manifest that there is no such -uncertainty or ambiguity a general demurrer to the petition should be sustained. While there may be no reported ease arising under section 5963, in which such a demurrer has been sustained, it has been held that where an action has been brought under an analogous section (section 6202), such a demurrer will lie where there is no ambiguous provision of the will to construe. Hollister, Trustee, v. Howe, 6 Dec., 157; 4 N. P., 168.
    In the case at bar the plaintiff sought to have the court place an interpretation upon two sections of the Revised Statutes. She did not ask the court to state, or to adjudge, what the testator meant, but to state, or adjudge, what the legislature meant.

    Where an action is prematurely brought, asking for a construction of a will under section 602, it has been held that it should be dismissed. Serrick v. Serrick, 1 O. S. C. D., 244; 32 W. L. B., 393.
    By analogy the same rule should be applied to actions prematurely commenced under section 5963.
    There was no reason for calling upon the court of common pleas to pass upon some question which might, or might not, arise in the probate court in the administration of the testator’s estate. Upon the facts shown in the court of common pleas and the circuit court, neither of those courts could render any judgment, which would be binding upon the parties to the action, with reference to the-indebtedness of the estate, and much less could they determine the aggregate amount which will be realised from the sale of property not specifically devised. Until those facts are determined by the probate court, the question submitted to the court of common pleas and subsequently, on appeal, to the circuit court was merely a moot question, calling for a judicial guess upon questions which might or might, not arise in the probate court. For this reason the petition should have been dismissed.
    With reference to the liability of a widow to contribute in such eases, the statutes of the several states may be divided into three classes, viz.: First, those in which there is no express statutory requirement for contribution between the devisees of specific real estate or the legatees of specific personal property; second, those in which there is an express requirement that such devisees and legatees contribute, without exempting the widow from the operation of the statute; third, those in which there is such a requirement, from the operation of which, however, the widow is expressly exempted.

    New Tort and some other states may serve as examples of the first class. Ohio, Indiana, Kansas and some others fall within the second class. Connecticut, Rhode Island and perhaps some others fall within the third class.
    Section 5974, as quoted, can not aid the court in construing section 5973, or in determining the rights of the plaintiff in this case, because section 5973 must be applied to each and every ease which falls within its apparent terms, unless some provision in the will itself clearly indicates that the testator intended to make an appropriation of his estate, for the payment of his debts, “different from that prescribed in the preceding section.” There is no provision in Mr. Allen’s will which justifies the inference that he intended to prevent the operation of section 5973.in its application to the distribution. of the property devised by him and the payment of his debts.
    Section 308, General Statutes of Connecticut (1902), corresponds with section 5973 of the Ohio Revised Statutes, save as to the widow.
    This section appears to have been originally enacted in 1821, as shown by the statutes of that year, page 206, section 28. It was re-enacted, with the saving clause as to the widow, as early as the year 1885, as shown by the statutes of that year, page 502, section 146. How much longer, if at all, it has been in force it is difficult to determine from the Connecticut statutes to which we have access.
    Section 25, at page 667, of the General Laws of Rhode Island, 1896, corresponds with the Connecticut statute. The next section of the Rhode Island statute, section 26, corresponds with section 5974 of the Revised Statutes of Ohio.
    Section 2738 and 2739 (former sections 2568 and 2569) of the Revised Statutes of Indiana, 1901, and sections 7995 and 7996 of the Revised Statutes of Kansas, 1901, correspond very closely with the Ohio sections 5973 and 5974, so closely in fact that it is apparent that the Indiana and Kansas sections are copies of the Ohio sections. Similar provisions, at least so far as Ohio section 5973 is concerned, are found in the statutes of some of the other western states, which do not make any exception in favor of the widow.

    Does our section 5973 have the same meaning, so far as widows are concerned, as section 308 of the Connecticut statutes, and section 25 of the Rhode Island statutes, above quoted?

      There is nothing in the language employed in our section 5973 to indicate any intention on the part of the general assembly to exempt widows from its operation whether the devise to them he in lieu of dower or not, while the Connecticut and Rhode Island statutes show conclusively that the law makers of those states did intend to exempt widows from the liability to contribute under, such circumstances. If we give to the language of our section 5973 its ■natural meaning, which is, therefore, its obvious meaning, there is no such exemption under our statute as there is under the Connecticut and Rhode Island statutes, and perhaps also the statutes of some other states. The mere fact that, in the absence of any statute on the subject,, the courts of some states hold under the common law rule that widows are not required to contribute out of -property devised to them in lieu of dower, does not justify the claim'that we should attempt to read into section 5973 an exception not stated therein, hut, on the contrary, excluded by the explicit terms of the statute itself. '
   Shauck, J.

Mrs. Allen having failed in the -courts below to obtain such construction of the will of her late husband as she desired, and having prosecuted her petition in error here to obtain a reversal -of the judgment of the circuit court in that respect, it is now insisted by counsel for the defendants not only that the courts below correctly construed the will in the respect indicated, hut further that she is not now entitled to have it judicially construed. Her action is brought under favor of section 5963, Revised Statutes, whose pertinent - provisions are as follows: ....

* * * “Such widow or widower may, at any time before the period of such election has expired, file her petition in the court of common pleas for the proper county, making all persons interested in said will defendants to such petition, asking a construction of the provisions of said will in her or his favor, and to have the advice of said court, or of the proper appellate court on appeal thereof. ” * * *

The conceded facts that she has been cited by the probate court to appear therein and elect whether she would take under the provisions of said will or be endowed of the lands of her deceased husband, and that the time for making said election had not expired, seem to bring her action within the express terms of the section., Nor do we think it should be said that no substantial question is involved in the inquiry which she propounds, viz.:

Whether, if she elects to take under the will, she will be required to contribute to another devisee from whom lands devised may be taken for the payment of the debts of the testator. It is entirely clear that the testator might, by the terms of the devise to her, charge her with, or exempt her from, the obligation to contribute in such case. This would result from the general rule that the intention of the testator must control. It is also made clear by the provisions of section 5974, Revised Statutes, that the question with respect to which she especially desired the opinion of the court must be determined from a consideration of the provisions of the will in connection .with those of the statute.

Did the circuit court err in the conclusion that her election to take under the provisions of the will obliges her to contribute on account of the taking of other specifically devised lands for the payment of the debts of the testator? In that inquiry two sections of the statute are.material:

‘ ‘ Section 5973. When any estate, real or personal, that is devised shall be taken from the devisee for the payment of the debts of the testator, all the other devisees and legatees shall contribute their respective proportions of the loss to the person from whom the estate is taken, so as to make the loss fall equally on all the devisees and legatees, according to the value of the property received by each of them, excepting as provided in the following section.”

‘ ‘ Section 5974. If, in such case, the testator shall, by making a specific devise or bequest, have virtually exempted any devisee or legatee from his liability to contribute, with the others, for the payment of the debts, or if he shall, by any other provision in the will, have prescribed any appropriation of his estate, for the payment of his debts, different from that prescribed in the preceding section, the estate shall be appropriated and applied in conformity with the provisions of the will.”

Since not only the lands devised to Mrs. Allen, but also those which must be taken for the payment of the debts of the testator are the subjects of specific devises, the first clause of the latter section affords no aid in the inquiry presented. Nor do we find that the testator has, by any other provision of his will, prescribed such appropriation of his estate for the payment of his debts as would relieve the devise to Mrs. Allen from the obligation imposed by section 5973, if it is within the terms of that section. The section comprehensively imposes the duty to contribute upon “all the other devisees and legatees.” The insistence of the plaintiff’s counsel is that we should regard the section as containing an unexpressed exception in favor of the widow of the testator; and that would be, not to interpret the statute, but to amend it. The proposition urged in support of the view of plaintiff’s counsel is that a widow entitled to dower, when taking a devise in lieu of dower, takes, not as a devisee, but as a purchaser. We are not now concerned with the views taken of the subject by courts 'when applying the equitable doctrines respecting contribution to cases which were not affected by any statutory provision. We shall not go astray if we ascertain and follow the intention of the testator in making this will and of the general assembly in enacting this section of the statute. Is it supposable that the testator, when conferring upon the plaintiff the right to accept this devise in lieu of dower, intended to afford her an opportunity to purchase the lands which were the subject of the devise; or that the general assembly regarded the relation of widow as incompatible with that of devisee? It is said that this section of the statute is in derogation of the common law. If the proposition is granted, nothing follows except that the statute must not, by construction, be given any effect which its terms do not justify. The function of legislation to change the rules of the law remains. An unambiguous statute is to be applied, not interpreted. Extensive amplification of that observation would be easy and unprofitable. The dictionaries justify the conclusion that one who takes by devise is a devisee.

Concerning the numerous cases cited by counsel for the plaintiff in error, it is sufficient to say that in general they deal with the doctrine of contribution as applied to cases of the abatement of legacies because of a deficiency of assets, as that doctrine was applied to such cases in the absence of statutory provisions affecting the subject. It may be assumed that they establish the doctrine contended for and justify a discrimination among devisees if no statute subjects all devisees to the same- rule. But from this general statement Lord et al. v. Lord et al., 23 Conn., 327, should be regarded as a notable exception. Section 45, title Estates, of the statutes of Connecticut, does not seem to differ in any substantial respect from section 5973, Revised Statutes of this state. In' the opinion of the majority of the court in the ease cited no attention whatever is paid to the statute, but proceeding upon the general principles stated in other cases the conclusion is reached that the testamentary provision in favor of the wife was not subject to abatement for the payment of debts. The only consideration given to the statute is in the dissenting opinion where it is interpreted in accordance with the views herein expressed.

Judgment affirmed.

Crew, Summers and Spear, JJ., concur. ,

Davis, C. J.

(dissenting). I regret that I am unable to concur with the majority, either in their theory of this case or in the judgment. I do not think that section 5973, Revised Statutes of Ohio, controls this case; because I do not think that a testator’s provision for his widow, in lieu of dower, if accepted by her, constitutes her a “devisee or legatee.” That a widow in such case is not a volunteer, but a purchaser for a valuable consideration, has long ago been settled and generally understood. Heath v. Dendy, 1 Russ. Ch. Rep., 543; Isenthart v. Brown, 1 Edwards (N. Y.) Ch. Rep., 411; Wood v. Vandenburgh, 6 Paige, 277; Security Co. v. Bryant, 52 Conn., 311; Hubbard v. Hubbard, 6 Metc. (Mass.), 50; Pollard v. Pollard, 1 Allen (Mass.), 490; Borden v. Jenks, 140 Mass., 562; Thomas v. Harrison’s Exr., 1 Md., 296; Reed v. Reed, 9 Watts (Pa.), 263, are precisely in point, and many other cases cited for plaintiff in error recognize the same principle. See also 2 Williams on Executors (7 Am. ed.), *1217-1218; Page on Wills, sec. 776; and Beach on Wills, sec. 144. “When particular words and phrases have in law acquired a fixed legal signification, and are thus incorporated into a statute the legal presumption is that the legislature meant to use them in this legal sense.” Turney v. Yeoman, 14 Ohio, 207; Gray v. Askew, 3 Ohio, 466; Grogan v. Garrison, 27 Ohio St., 50, 63; Palmer, v. Barby, 64 Ohio St., 520, 529. See also 2 Lewis’ Sutherland on Statutes (2 ed.), sec. 398; 26 Am. & Eng. Ency. Law (2 ed.), 607: Thus a widow when a Jevise is made to her in lieu of dower would be excluded from the operation of the statute. In my opinion it does not answer this view of the case to say that the legislature may have had this state of the law in mind and intended to provide that all persons taking under a will should contribute to the payment of the testator’s debts; for Lord et al. v. Lord et al., 23 Conn.,. 327, cited in the majority opinion, was decided upon a statute substantially like our section 5973 (see p. 338), and as the court was not unanimous the statute seems to have been afterwards amended to avoid the construction of the majority of the. court, inserting the words, £ except the widow where the devise is made in lieu of dower.” Besides, this view imputes to the legislature the deliberate intention of working the rank injustice of subjecting the widow’s portion to the payment of the husband’s debts in cases where, through had advice or ignorance, she releases her dower and accepts in lieu of it the provision in the will, which may leave her without a dollar in lieu of her dower. In other words under such a construction of the statute, the husband’s creditors, who could not subject the widow’s dower, may take every dollar of that which she may he led to accept in lieu of it. That never was the law before the statute and I would not impute such an unrighteous intention to the legislature in the enactment of it.

Price, J., concurs in the dissenting opinion.


source: Caselaw Access Project

author: Davis, C. J.

license: Public Domain

text:
    Cincinnati Street Railway Company v. Horstman.

      Street railway company — Power to lease or purchase — Consolidation of companies — Sections 2505a and 2505b, Revised Statutes — Acts of May 1, 1891, and April 22, 1896, are valid— Laws of a general or special nature — Law of corporations— Constitutional law.

      1. The act of the general assembly entitled “An act to amend and supplement sections 2505a and 25056 of the Revised Statutes of Ohio, as enacted May 1, 1891, and amended April 18, 1892,” passed April 22, 1896 (92 O. L., 277), is constitutional, it being a law of a general nature which operates uniformly throughout the state and upon every individual corporation of the classes therein defined.

      2. A temporary act may be either general or special; and an act of a general nature which operates uniformly throughout the state and upon every individual corporation of the classes therein, defined, but which is by its terms limited in operation to a specified period of time, is a temporary general statute.
    (No. 9017
    Decided February 28, 1905.)
    Error to the Superior Court of Cincinnati in general term.
    The plaintiff below, defendant in error here, as a taxpayer, 'filed his original petition in behalf of the city of Cincinnati, under sections 1777 and 1778, Revised Statutes, against The Cincinnati Street Railway Company, on the twenty-first day of January,. 1901, alleging in substance that the city of Cincinnati,, on the thirteenth of August, 1896, entered into a contract with The Cincinnati Street Railway Company for an extension of the time, of the grants it held, for the various lines of road it owned and brought under its control and ownership by uniting its lines of road with the lines of the Mt. Adams & Eden Park Inclined Railway Company and the Mt. Auburn Cable Railway Company, under the provisions of the act of the general assembly of Ohio, passed April 22, 1896, commonly known as the Rogers law (92 O. L., 277).
    The petition charged that the contract was invalid because the act of the general assembly, under which it was made, was as alleged an unconstitutional law-And the defendant in error (plaintiff below) prayed that the defendant might he enjoined from operating its cars over the route known as the John street route, as provided for in said contract.
    The street railway company defended on the following grounds: First, That the act of April 22, 1896, known as “the Rogers law” is constitutional. Second, That.the city of Cincinnati, and the plaintiff suing in i ts behalf, are estopped from alleging the unconstitutionality of that act. Third, That section 31 of the act of October 22,1902 (96 O. L., 32), under the facts of this case, operated as a direct and independent grant by the general assembly to the street railway company in accordance with the terms and conditions of the grant to it under the resolutions of the board of administration passed August 13, 1896; and Fourth, That this action, not having been brought within one year from the date of the contract to be enjoined, is barred by the limitation of section 137 of the act of October 22, 1902 (96 O. L., 65).
    The cause came on for final hearing in the general term, at the May term, 1904,' upon the pleadings and bill of evidence, and the court entered its final decree therein, finding that the resolutions of August 13, 1896, were invalid, by reason of the.unconstitiitionality of the act of the general assembly of April 22, 1896, under which said resolutions were passed, and upon the further ground that the provisions of sections 31 and 137 of the act of 1902 were also unconstitutional, and that the defendant had no right to operate the John street route under said resolutions of August 13, 1896, but that the right of the defendant, by reason of grants made prior to the resolutions of August 13,1896, should not in any way be affected by the decree. The defendant was enjoined from operating the John street route under the resolutions of August 13,1896, and was adjudged to pay the costs of the case.
    This petition in error is prosecuted to reverse that decree.

      Mr. E. W. Kittredge; Mr. J. W. Warrington; Mr. W. M. Ampt and Mr. J. B. Foraker, attorneys for plaintiff in error.
    The act of April 22, 1896, called the Rogers law, violates no provision of the constitution.
    The only standard recognized in Ohio for testing the validity of an act of the legislature is the constitution. Probasco v. Paine, 50 Ohio St., 378.
    Every act of the general assembly is supported by a strong presumption of validity. No statute, whose subject-matter is of a legislative character, can he judicially declared invalid, unless it clearly and incontestably violates some express or necessarily implied provision of the constitution. Any doubt of invalidity is the certain. sign of validity. McCormick v. Alexander, 2 Ohio, 65; Lewis v. McElvain, 16 Ohio, 347; Railway Co. v. Clinton County, 1 Ohio St., 77; Lehman v. McBride, 15 Ohio St., 573; Walker v. Cincinnati, 21 Ohio St., 14; State v. Kendle, 52 Ohio St., 346; State ex rel. v. Baker, 55 Ohio St., 1.
    As to the constitutionality of the act of April 22, 1896: Vought v. Railroad Co., 58 Ohio St., 123; New York Elevated Railroad Co., In re., 70 N. Y., 327; State v. Nelson, 52 Ohio St., 88; Kittinger v. Buffalo Traction Co., 160 N. Y., 377; Adler v. Whitbeck, 44 Ohio St., 574; Senior v. Ratterman, 44 Ohio St., 661; Miller v. State, 3 Ohio St., 475; State v. Turnpike Co., 37 Ohio St., 481; Railway Co. v. Cox, 102 Fed. Rep., 825; Point Breeze Ferry Co. v. Railroad Co., 53 N. J. Law, 108; Shields v. State, 26 Ohio St., 86 (affirmed, 4 O. F. D., 471; 95 U. S., 319); State v. McDaniel, 22 Ohio St., 354; Dutoit v. Doyle, 16 Ohio St., 400; State v. Sherman, 22 Ohio St., 412; Cmcin

      nati v. Taft, 63 Ohio St., 141; State ex rel. Knisely v. Jones, 66 Ohio St., 453; State v. Baker, 55 Ohio St., 1; Platt v. Craig, 66 Ohio St., 75; Shoemaker v. Cincinnati, 68 Ohio St., 603; Baker v. Cincinnati, 11 Ohio St., 542; State v. Covington, 29 Ohio St., 113; Southern Gum Co. v. Laylin, 66 Ohio St., 578; Sutherland on Stat. Const., see. 107; People ex rel. v. Salomon, 51 Ill., 37; Blanding v. Burr, 13 Cal., 343; Plummer v. Jones, 84 Me., 58; Hobart v. Supervisors Butte Co., 17 Cal., 24; Parkinson v. State, 14 Md., 184; 1 Kent Com. (14 ed.), *455 and *458; Smets v. Wethersbee, R. M. Charlt. (Ga.), 537; Matthews v. Zane, 7 Wheat., 164; The Brig Ann, 1 Gall. (U. S.), 62; People ex rel. v. Clark, 1 Cal., 406; In re Welman, 20 Vt., 653; People v. Wright, 70 Ill., 388; Welker v. Potter, 18 Ohio St., 85; People ex rel. v. Gaslight & Coke Co., 68 N. E. Rep., 953; Hazelett v. Butler University, 84 Ind., 230; Berks Co. v. Railway, 167 Pa. St., 102; People v. Henshaw, 76 Cal., 436; Falke ex parte, 42 Ohio St., 641.

      Mr. Theodore Horstman, attorney for defendant in .error.
    The language of the “Rogers law” is so involved, that, in order to clearly present the points we wish to present, we submit the following substantial copy ef said law, the surplus language being eliminated from the full text thereof':
    “Section 2505a. Any street railway company may lease or purchase any street railroads operated by electric, cable or other rapid transit motive poioer, constructed and held by any other company or companies, the latter being vested with corresponding power to let or sell upon such terms as may "be agreed upon between the companies.

      “Section 25055. Whenever the lines of any street railroad companies meet or intersect or whenever any snch line and that of any railroad operated by electric or other means of rapid transit may be conveniently connected, snch companies whose road or roads have been made or are in process of construction are authorized to consolidate.
    ‘ ‘ Section 2505A Whenever it is proposed to bring any two or more lines of road within the ownership of one company under sections 2505a and 2505b,. which roads are held under grants providing different terms, the board of administration in any city of the first grade of the first class may agree with the company so acquiring ownership that such terms, shall remain unchanged on condition that the company provide a system of transfers of passengers, provided that for a continuous ride in the same general direction within a municipal corporation the-fare shall not exceed five cents.
    “And in lieu of the foregoing the board of administration may extend the time of each of said grants or franchises for such period as together with the unexpired term of such existing grant the franchises shall not exceed the period of fifty years from and after the passage of this act (April 22, 1896); provided the company agree to such changes in the-existing terms and conditions; and provided further, that no increase of fares shall be allowed in any case and no decrease shall be allowed in any case of car-license fees or percentage tax on gross earnings notv required to be paid. And provided that the municipal corporation may at the end of twenty years from-the passage of this act (April 22, 1896) and every fifteen years thereafter fix the rates of fare, car license fees, percentage, tax on gross earnings, transfers and all other terms and conditions on which such railroad is operated in said city. The said terms shall he fixed by the board of administration if there be such board, otherwise by the legislative body of the municipal corporation and must be approved in the manner which at the time may be required for other acts of such municipal corporation. The terms there fixed shall be equitable according to the then cost of carrying passengers. Should the parties not agree as to whether said terms are equitable the same may be submitted to the adjudication of a court of competent jurisdiction in a suit brought by the company to enjoin the municipal corporation from enforcing such terms.”
    We here substitute for the greater part of our own argument in the courts below as to the unconstitutionality of the “Rogers law” a full reprint of the opinion of the general term, excepting that portion of the opinion which discusses the defense of estoppel, which portion of the opinion will be found reprinted in this brief under the “Estoppel” proposition.
    [As- the question of estoppel is not considered in the opinion of the court herewith published, that part of Mr, Horstman’s brief is here omitted. The argument to which Mr. Horstman alludes will be found in the citation immediately following.— Reporter.]

      Theodore Horstman, on behalf of The City of Cincinnati v. Cincinnati Street Railway Company, 12 Dec., 756.
    Concerning the argument as to the unconstitutionality of the “Rogers law” we desire to say:

      Section 2505d excludes from its operation street railway companies which have acquired two or more lines of road prior to the passage of the act, even though acquired by lease, purchase or consolidation.
    We also call attention to the fact that section 2505d provides as follows: “And provided further that the municipal corporation in which such street railway is 'situated shall have the power at the end of twenty years from the passage of this act and every fifteen years thereafter, to fix the rates of fare, car license fees,” etc., and if the council and company cannot agree they may apply to the court. Even though a grant was made on the first day of the fifty-year period, nevertheless after the first twenty years, it would leave only one fifteen-year period within the fifty years for the fixing of rates, etc. The use of the language “every fifteen years thereafter,” shows that even after the fifty-year grants have expired, in case of any renewal of grant, such renewal would be subject to those provisions as to how rates of fare, terms and conditions, should periodically be fixed, as to these particular corporations, thus forming an arbitrary class of corporations with extraordinary perpetual powers. After the fifty year period even those companies thereafter purchasing, leasing or consolidating would be excluded from availing themselves of the provisions of 2505i.
    Counsel for the company referred to the “little word ‘now’ ” in the act. The little word “yes,” and the little word “no” have often decided the destinies of men and nations. And the word “heretofore,” which has a somewhat analogous meaning to that of “now,” has been the cause of a number of statutes being held to be unconstitutional. The claim that section 3239 confers all corporate powers on street railroads, and that all other sections only limit snch powers, is novel. Section 3239 creates the corporations so that they may receive powers, which are conferred by many varying sections.
    The limitation of the operation of this law in part to fifty years, is virtually a. provision for a'repeal of the statute within the enacting statute. It will be observed, however, that as to the refixing of rates of fare, and the right of appeal to the courts, the statu,te makes a perpetual provision, applicable at least for so long a time as the grants may be renewed.
    This act is a special act conferring corporate power.
    It will be observed that section 2505a gives power to lease or purchase only street railroads operated by certam motive powers. What is to be embraced under the description “rapid transit” is very uncertain. It is certain, however, that street railroads not operated by electric, cable or other rapid transit motive power are not provided for by said section. How rapid the transit must be to entitle the company to the benefits of said section cannot be determined. Presumably it was intended to discriminate against the old-fashioned mule cars. The language of the section seems to havé reference to the present tense, or to existing railroads, only. The limitation of the act to roads operated by certain hinds of motive power is an arbitrary classification without reference to the purposes sought to be accomplished by the consolidations authorized by said sections.
    Section 2505d limits the right to receive grants for fifty years to companies in existence, and leased, purchased or consolidated prior to April 22, 1946, because it provides that the extension of grants thereunder shall not exceed fifty years from the passage of the act. It also limits the operation of said act and the right to receive grants for fifty years to corporations which have brought two or more lines of road within their control or ownership by lease or sale or consolidation, so that any street railway, even though in all other physical respects it be like the former road which has leased, purchased or consolidated, cannot receive a fifty-year franchise nor avail itself of any other provision of said act. This also is an arbitrary discrimination and classification, having no appropriate reference to the subject-matter or purposes of the enactment.
    The language of section 2505d throughout also incates that it has reference to existing companies, or a present tense, as is shown by the language “fifty years from and after the passage of this act,” and the language “percentage tax on gross earnings now required to be paid” and the language “shall have the power at the end of twenty years from the passage of this act.”
    Section 2505d applies only to roads brought within the control of one company under sections 2505a and 2505b, which roads are held and operated under grants providing different terms, and does not apply to roads brought under one control if the original grants provide the same terms and conditions. This also is an arbitrary classification and discrimination.
    An act which is not general is special. That is to say, the fact that an act applies to more than one or even a hundred corporations, does not prevent its being special. In order to not be special it must apply to all corporations of its class, and the class distinctions must not be arbitrary. State v. Cincinnati, 20 Ohio St., 18; State v. Cincinnati, 23 Ohio St., 445; State v. Mitchell, 31 Ohio St., 592; State v. Pugh, 43 Ohio St., 112; Pittsburg, Ft. Wayne & Chicago Railway Co. v. Martin, 53 Ohio St., 386; State v. Smith, 48 Ohio St., 211; Bronson v. Oberlin, 41 Ohio St., 476; Kenton v. State, 32 W. L. B., 394; Kenton v. State, 52 Ohio St., 59; Merrill v. Toledo, 3 Circ. Dec., 524; 6 C. C. R., 430 (affirmed by Supreme Court, 29 W. L. R., 220); State v. Baker, 55 Ohio St., 10; Costello v. Wyoming, 49 Ohio St., 202; State ex rel. v. Anderson, 44 Ohio St., 247; Coal Co. v. Rosser, 53 Ohio St., 12; Cincinnati v. Steinkamp, 54 Ohio St., 284; State v. Gardner, 58 Ohio St., 599; State v. Davis, 55 Ohio St., 15; Gaylord v. Hibbard, 56 Ohio St., 25; Emery v. Coles, 7 Dec., 414; 5 N. P., 199; Hall v. Kleeman, 6 Dec., 323; 4 N. P., 201; Hubbard v. Fitzsimmons, 57 Ohio St., 436; Silberman v. Hay, 59 Ohio St., 582; State v. Buckley, 60 Ohio St., 273; Diemer v. Hudson, 9 Circ. Dec., 858; 18 C. C. R., 890; Hixson v. Burson, 54 Ohio St., 470; State v. Bader, 5 Circ. Dec., 703; 12 C. C. R., 659; Sullivan v. Williams, 5 Dec., 577; 7 N. P., 562; Mott v. Hubbard, 59 Ohio St., 199.
   Davis, C. J.

The controlling question in this case is whether “An act to amend and supplement sections 2505a and 25056 of the Revised Statutes of Ohio, as enacted May 1,1891, and amended April 18, 1892” (92 O. L., 277), is constitutional or not.

The defendant in error maintains that the act is unconstitutional and it was so held by the court below. The theory upon which this contention is based is that the act is special and that it confers corporate powers, thus infringing section 1 of article 13 of the constitution; and also that it is a law of a general nature which does not operate uniformly throughout the state, violating section 26 of article 2 of the constitution.

Section 2505d contains the legislation which is especially assailed here, and it does not require a critical reading to disclose the fact that it operates throughout the state upon every municipal corporation therein, and upon every street railway corporation or company of the class defined in that section. If it be true, as argued by the defendant in error and as held by the court below, that it is possible that some street railway companies may be excluded from the class, section 26 of article 2 of the constitution would not thereby be violated. This was the precise point decided in State v. Nelson, 52 Ohio St., 88. In that case it was remarked in the opinion: “Of late years an effort has frequently been made to claim for this section of t the constitution a wider scope than to guard against the evils resulting from legislation of the character mentioned by Thurman, J., in Cass v. Dillon; Scott, J., in Lehman v. McBride; Boynton, J., in McGill v. State, and Okey, J., in Falh, Ex parte, but such efforts have uniformly failed. The only statutes which have been declared in conflict with this section of the constitution, are statutes making different classes of different parts of the territory of the state, such as cities, villages,” etc. That remark is just as true now as it was when it was made, a little more than ten years ago.

The proposition that because some individuals were not included in a class defined in a law of a general nature, the law was for that reason repugnant to section 26 of article 2 of the constitution, was distinctly advanced in Senior v. Ratterman, 44 Ohio St., 661, 665, and was denied by the court, both in the syllabus and at length in the opinion by Spear, J. It was there held that the constitutional rule of uniformity of operation throughout the state' was not violated, notwithstanding the contention of counsel that “the uniformity of operation required applies as well to individuals and occupations as to geographical limits.” The law then under consideration was of a general nature, but it did not operate alike on all liquor dealers. The court said: “The principle of uniform operation requires simply that the law shall bear equally in its burden upon persons standing in the same category. * * * We are not prepared to say that the classification is not warranted.” It was truly and forcibly said by Burket, J., in State ex rel. v. Spellmire et al., 67 Ohio St., 77, that “when a law is available in every part of the state as to all persons and things in the same condition or category, it is of uniform operation throughout the state.” See also Platt v. Craig et al., 66 Ohio St., 75, at page 79. This, act, as we have already said, operates throughout the state upon every municipal corporation therein, and upon every street railway corporation or company of the class defined; and therefore it is not in conflict with section 26 of article 2 of the constitution.

■ But it is insisted that the act in question is not only a special act, but that it confers corporate powers, - in violation of section 1 of article 13 of the constitution. If it shall appear that the act is not special, bnt on the contrary is a general law, it will not be necessary to determine whether it confers corporate powers either upon municipal corporations or street railway corporations, or both, or whether it does not do so. Adopting the language of the superior court, it is argued on behalf of the defendant in error, that corporate power is conferred in this act “not generally but specially according to the particular circumstances of each particular case;” and that “the law is therefore a special law conferring corporate power.” This conclusion is reached through the following propositions: First, That the classification of street railways in section 2505d is arbitrarily and unreasonably limited to such railroad companies as come into the control of the different lines by lease or purchase from other railroad companies or by the consolidation of different companies into a single company; and that it excludes from the enjoyment of the powers therein granted street railroad companies which may have come into the control of the lines by original or renewed grants from the municipal corporation itself. Second, That section 2505d does not confer equal powers upon all the municipal or private corporations within the classes respectively described, in that municipal corporations immediately exercising the power of extending the unexpired grants, or franchises to fifty years from the passage of the act have a different power as to time from that of a municipal corporation exercising the power twenty years later, and conversely there is an unequal power to receive grants on the part of the street railroad companies, and so likewise as to the readjustment of rates, etc., at the end of twenty years and every fifteen years thereafter; and Third, That section 2505d does not grant the same powers to all corporations which act under the law at the same time.

We do not accept without qualification the postulate of the court below, that ‘‘ Classification cannot be made arbitrarily by the general assembly by seizing upon any incident or characteristic that may-suit its purpose.” The legislative authority of this state is vested in the general assembly in the broadest terms, by section 1 of article 1 of the constitution, subject only to the limitations elsewhere found in the constitution. It is therefore not within the province of any court to declare void, and annul, a statute by reason of a supposed violation of the principles of justice and common reason, if it be within the bounds of constitutional power. The courts have nothing whatever to do with the policy, the justice, or the wisdom óf a statute so long as it cannot be said that it contravenes some constitutional provision. It is true enough that many courts, including this court, have said that classification must be fair, that it must be just, that it must be reasonable, that it must not be arbitrary, that it must not be a sham; but such expressions have ' uniformly been used in cases where the plainly evinced legislative purpose has been defeated or prevented from reaching all of its objects by an imperfect classification, or more frequently, where a false and unnatural classification has been resorted to for the purpose of giving a special law the appearance of a general law, to evade some constitutional limitation. Accordingly this court said in a recent case: ‘ Classification is' often proper and sometimes necessary in legislation, in order to define the objects on which a general law is. to take effect and in order to effectuate the purposes of the legislation; but when classification is unnecessary, arbitrary, fictitious or otherwise faultily made, and is used to evade the constitutional limitations, under the form of general legislation, such legislation in relation to a class may be both special and unconstitutional.” Gentsch et al. v. State ex rel., 71 Ohio St., 151. Now, putting aside the utter improbability of a case arising in which a company had' accepted and had been granted by the same municipal corporation different franchises, all differing in time, rates of fare and other terms or conditions (for it is not pretended that such a case now exists), what, constitutional limitation is violated? The defendant, in error answers: “The general assembly shall pass no special act conferring corporate powers.” But the conferring of corporate powers does not render1 the act invalid if it be not a special act. The act operates over the whole territory of the state and it does not exclude any individual corporation of the1 class defined. How can the non-inclusion of an individual corporation which is not of the class defined, render the act special in its nature? The opinion of a court that the legislation is unwise or unjust cannot be the criterion. The legislative purpose very plainly was to secure to the public continuous passage over all routes in any municipality, uniformity and reduction of fares, and uniformity in the expiration of franchises. The legislature sought to accomplish that purpose in general terms, by a definite classification which does not contain within itself •even a hint of a purely special application. We have no right to attempt to defeat that purpose by extraneous considerations which do not amount to an infraction of any constitutional limitation of the general power conferred upon the general assembly. No street railway company of the class claimed to be •excluded by this statute, has yet appeared to complain about it; and it does not seem to us to lie in the mouth of a taxpayer, speaking for a municipal corporation, to make the claim for an imaginary corporation of such description. For the reasons stated we approve as the fair result of all the cases the statement of the law which is made in State ex rel. v. Parsons et al., 40 N. J. Law, 123, as follows: “A law framed in general terms, restricted to no locality, and operating equally upon all of a group of objects, which, having regard to the purposes of the legislation, are distinguished by characteristics sufficiently marked and important to make them a class by themselves, is not a special or local law, but a general law. ’ ’

If the law was imperfect in its operation, or if the classification should be broadened, the remedy, as suggested by Burket, J., in State v. Nelson, supra, should be sought through the general assembly. The Chicago, Burlington & Quincy Railroad Co. v. Iowa, 94 U. S., 155, was a case which involved the question whether an act of the general assembly of Iowa was an act of a general nature having a uni- ' form operation, and also whether the act was in conflict with the provision of the constitution of the state of Iowa that “the general assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens; ’ ’ and tbe following extract from tbe opinion, which was delivered by Chief Justice Waite, is pertinent here. “The statute divides the railroads of the state into classes, according to business, and establishes a maximum of rates for each of the classes. It operates uniformly on each class, and this is all that the constitution requires. * * * This act does not grant to any railroad company privileges or immunities which,, upon the same terms, do not equally belong to every other railroad company. Whenever a company comes into any class, it has all the ‘ privileges and immunities ’ that have been granted by the statute to any other company in that class. ’ ’

“It is very clear that a uniform rate of charges for all the railroads in the state might operate unjustly upon some. It was proper, therefore, to provide in some way for an adaptation of the rates to the circumstances of the different roads; and the general assembly in the exercise of its legislative discretion, has seen fit to do this by a system of classification. Whether this was the best that could have been done is not for us to decide. Our province is only'to determine whether it could be done at all, and under any circumstances. If it could, the legislature must decide for itself, subject to no control from us, whether the common good requires that it should be done. ’ ’

It is also argued that the operation of this act is limited to fifty years from the date of its passage, that it is therefore a temporary act, and that being-such it is necessarily also a special act; and the court below has gone to the extent of asserting that this court has so decided State v. Hoffman, 35 Ohio St., 435, 443, and in Platt v. Craig, 66 Ohio St., 75, 79. This point was not made, considered, or decided in either of the cases cited, and the language of the judges delivering the opinions in those cases is that where the subject-matter and operation of an act is local and temporary, it may be a special act, and valid if it does not confer corporate powers. Here the question is, pure and simple, whether the limitation as to the time of operation stamps this statute as special; for this act, so far as appears from the act itself, is not restricted to any locality nor to any individual corporation. This question was before the supreme court of Illinois in People ex rel. v. Wright, 70 Ill., 388, and the court said: “The distinction then, seems plain — ’a local or special statute is limited in the objects to which it applies; a temporary statute is limited merely in its duration, and, necessarily, a local or special law may be perpetual, or a general law may be temporary. This, therefore, is a temporary general law, and not within the prohibition of the section referred to. ’ ’ This is likewise our conclusion in this case.

Having, therefore, arrived at the conclusion that the act in question, which is commonly known as “the Rogers law,” is constitutional, it is unnecessary to determine the other questions which have been so ably and interestingly presented.

The judgment of the superior court in general term is

Reversed and the petition is dismissed.

Shauck, Price, Crew, Summers and Spear, JJ,, concur.