author: Summers, J.

text:
    Sanning v. City of Cincinnati.

      Chattel mortgage and salary loan brokers — May be licensed, when— Ordinance requires, detailed record of loans — Not violative of Section 14 of-Bill of Rights — Not unreasonable — Section 1536-100, Revised Statutes.

    1. The state may, in the exercise of the police power, license and regulate chattel mortgage and salary loan brokers; and it may-delegate authority to do so to municipal corporations.
    2. An ordinance under the power conferred by Section 1536-100, Revised Statutes, to regulate and license chattel mortgage and salary loan brokers, requiring every person engaged in such business to file with the auditor of the city, weekly, a detailed record of every loan made during the week preceding, to remain there as a permanent record open to the inspection of the • mayor and chief of police, is not violative of Section 14 of the Bill of Rights, which provides, “The right of the people to be secure in their persons, houses, papers, and possessions against unreasonable searches and seizures shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched and the person and things to be seized,” and is not unreasonable.
    (No. 11692
    Decided November 9, 1909.)
    Error to the Circuit Court of Hamilton county.
    The plaintiff in error, L. H. Sanning, was arrested in the city of Cincinnati under a warrant issued by the clerk of the police court, charging hipi with engaging in the business of salary loan broker and failing to file with the city auditor a record of each and every loan made during the week preceding, as required by Section 5 of an ordinance of the city. He filed a motion to quash the affidavit and warrant which was overruled, .and he then filed a demurrer, which was overruled, and on the trial at the close of the state’s evidence, he moved to discharge the defendant and dismiss the prosecution, which motion was overruled.
    On trial in the police court he was found guilty and fined twenty-five dollars and costs. He then filed a motion in arrest of judgment, and for a stay of execution, which motion was overruled, and he then filed a motion for a new trial, which motion was overruled, and upon his application he was then given ten days within which to present his bill of exceptions, and within that time a bill of exceptions was allowed and signed and ordered to be made part of the record.
    On leave, a petition in error was filed in the court of common pleas, and upon the hearing the judgment was affirmed. Error was then prosecuted in the circuit court where the judgment was again affirmed, and error is now prosecuted in this court.

      Messrs. Bates & Meyer, for plaintiff in error.
    As we paid our license and are simply refusing to make the daily reports of our customers .to the auditor, wé may not be in a position to attack the whole ordinance as void, or as a sham exercise of a taxing power, intended like many of our licenses to raise money for other purposes.
    The question in our .case is the right to compel us by Section 5 of the ordinance to divulge to the auditor transactions, as to which most borrowers are very sensitive, considering them almost as confidential and private as their testamentary dispositions ; and with the result, to us, of an immediate destruction of the business.

      Morton v. Macon, 111 Ga., 163, 36 S. E. Rep., 627, shows at length that a power to license is not a power to destroy. Dillon on Municipal Corporations, Section 357.
    While the police power of a city is of course only that which is granted, the police power whether of state or city is not arbitrary nor unlimited, but is confined to protecting or promoting the public health or safety and must be reasonably calculated to attain its ostensible purpose. Reduction Co. v. Reduction Works, 126 Fed. Rep., 29, 61 C. C. A., 91; Frorer v. People, 141 Ill., 171; Railway Co. v. Jacksonville, 67 Ill., 37; State v. Schmuck, 77 Ohio St., 438; Young v. Commonwealth, 101 Va., 853, 45 S. E. Rep., 327; State v. Vandersluis, 42 Minn., 129; Lappin v. District of Columbia, 22 App. D. C., 68; People v. Barrien Circuit Judge, 124 Mich., 664; People, ex rel., v. Warden, 157 N. Y., 116; In re Preston, 63 Ohio St., 428.
    No excuse for this ordinance can be legally'made on the ground that lenders of small sums on chattel security may often be usurers and that the ordinance is therefore in aid of the state laws. Cities are not authorized to go to the aid of state laws. Freund on Police Power, Section 142, p. 133. This principle is well set forth in the following case condemning an ordinance requiring a daily record and report of each transaction by dealers who buy and re-pack loose cotton, by reason of the frequent thefts of loose cotton (like our statute Section 4390 as to pawnbrokers). Long v. Taxing District, 7 Lea (75 Tenn.), 134.
    If a calling is legitimate, interferences with it, not required by the public health, morals or safety, are not authorized by the police power. State v. Gardner, 58 Ohio St., 599; Miller v. Crawford, 70 Ohio St., 207, nor merely because it may be thought undesirable or even in a way harmful. Chicago v. Netcher, 183 Ill., 104, 55 N. E. Rep., 707, 75 Am. St. Rep., 93, 48 L. R. A., 261; Young v. Commissioners, 101 Va., 853, 45 S. E. Rep.; 327; State v. Ramseyer, 75 N. H., 31, 58 Atl. Rep., 958; State v. Dodge, 76 Vt., 197, 56 Atl. Rep., 983; People v. Zimmerman, 102 App. Div., 103, 92 N. Y. Supp., 497; State v. Dalton, 22 R. I., 77, 46 Atl. Rep., 234, 84 Am. St. Rep., 818, 48 L. R. A., 775; Ex parte Hutchinson, 137 Fed. Rep., 950; Greensboro v. Ehrenreich, 80 Ala., 579; Fisher Co. v. Woods, 187 N. Y., 90; People v. Budd, 117 N. Y., 1.
    The business of lending money on furniture or salaries is as legitimate as any other. The only abuse to which it is liable is under the usury laws; and any supposed omission of the legislature to guard adequately against this does not authorize a city to repair the omission. Morton v. Macon, 111 Ga., 162, 36 S. E. Rep., 627; Hyland v. Sharp, 88 Miss., 567, 41 So. Rep., 264.
    The right of privacy has of date years grown out of the unredressed residue of the law into a recognized right. Pavesich v. Insurance Co., 122 Ga., 190, 50 S. E. Rep., 68.
    The ordinance in question in our case, in requiring so-called chattel and salary loan brokers to furnish daily reports to the police of each loan, with the names of the borrowers, relates to a matter in which the community has no legitimate interest and is therefore a most unwarranted assumption of municipal power having no reference to the public welfare, whose effect is to prohibit under the guise of regulation, and the ulterior' object of which, whateyer it may be, is not at all its ostensible purpose.
    The well settled right to require reports from pawnbrokers rests on wholly different grounds, for the pawnbroker (unlike Us) always receives possession of the chattel, hence his shop may be the resort of thieves and a hiding place for the fruits of crime; and even here a city could not require the reports without special legislative authority. Shuman v. Ft. Wayne, 127 Ind., 109, 26 N. E. Rep., 560, 11 L. R. A., 378; Long v. Taxing District, 7 Lea (75 Tenn.), 134.
    City ordinances which sought to compel dealers to make such reports have been annulled by the courts. City of Clinton v. Phillips, 58 Ill., 102, 11 Am. Rep., 52; Long v. Taxing District, 7 Lea, 134; State v. Itzcovitch, 49 La. An., 366, 21 So. Rep., 544, 62 Am. St. Rep., 648, 37 L. R. A., 673.

      Mr. Edward M. Ballard, city, solicitor, and Mr. 'Albert IT. Morrill, for defendant in error.
    When considering the limitations placed' upon the exercise by the state of its police power, it must be borne in mind that no one holds his property or his right to engage in a given occupation so - absolutely as to' be exempt from regulation which, considered from a reasonable viewpoint, tends to secure the equal rights of all and the general good of the public. People v. Budd, 117 N. Y., 1; Tiedeman on Limitation of Police Power, 194.

      ' We take it as well established that no court, appellate or otherwise, will or is called upon to profess ignorance of that which is well known, and nothing is more generally or better known than this, to-wit, that the business in which the plaintiff in error is engaged, commonly called that of a “salary loan shark,” is inherently oppressive, is fraught in its very nature with grave abuses, is the means of inflicting unnecessary misery and unhappiness, and leads, through the individual, to the members of society at large, producing in the latter a dangerous and unsound economic condition and this condition leads, in turn, to' added poverty and improvidence, entailing upon the state as a consequence, additional burdens of varied sorts. Rodge v. Kelly, 88 Miss., 209; Woodson v. Hopkins, 85 Miss., 171.
    We see, then, that without doubt both the supreme legislative and judicial authority of the state of Ohio has seen fit to class the business of this plaintiff in error with the business of pawnbrokers and other businesses, which are, or may become injurious to the public welfare and are therefore subject to regulation. Section 1536-100, Revised Statutes; Marmet v. State, 45 Ohio St., 63. This being the case, a judicial decision sustaining the validity of the regulation of the business of pawnbroker at once becomes in point and is valuable in construing a regulation governing the business of salary loan broking.
    The business of pawnbroking has from time immemorial been the subject of various and sundry regulations, many of them of exactly the same nature as the one to which the plaintiff in error takes exception in the present case. Launder v. Chicago, 111 Ill:, 291.
    We further find that the right to make such regulations as the one in question here, governing pawnbrokers, is universally conceded by the courts throughout the United States. Kansas City v. Garnier, 57 Kans., 412; Grand Rapids v. Brandy, 105 Mich., 670; St. Joseph v. Levin, 128 Mo., 588; Kuhn v. Chicago, 30 Ill. App., 203.
    While the right of the state to prohibit occupations is undoubtedly' limited to those which are actually harmful, yet the right of the state to require licenses and to regulate is not restricted to those occupations which are immoral, vexatious or injurious to society but it extends to all occupations of every kind, except where the power of the state to exact the license or to impose the regulation is expressly limited by the constitution of the United States or by the constitution of the state itself. Building & Loan Assn. v. Stewart, 109 Ga., 80; Braun v. Chicago, 110 Ill., 186; Price v. People, 193 Ill., 114; Slaughter-House Cases, 16 Wall., 36; State v. Tolman, 106 La., 666; State v. Knox, 52 Mo., 418; Morton v. Macon, 111 Ga., 162; Ex parte Mirande, 73 Cal., 365.
    In various other jurisdictions there is abundant authority for the regulation of businesses which in themselves are not harmful by the enactment of requirements more onerous than the one with which we are concerned in the present case. State v. Dubarry, 46 La. An., 36; Mayor v. Yuille, 3 Ala., 137; Municipality v. Dubois, 10 La. An., 56;
      Warren v. Geer, 117 Pa. St., 207; Buffalo v. Schleifer, 21 N. Y. Supp., 913; Rosenbaum v. Newbern, 32 L. R. A.; 123; Monroe v. Lawrence, 44 Kans., 607; Kiel v. Chicago, 69 Ill. App., 685; San Luois Opispo Co. v. Greenberg, 120 Cal., 300.
    There is nothing unreasonable in requiring persons engaged as pawnbrokers, junk and secondhand dealers and kindred occupations to keep a record of their purchases and sales and to furnish a statement thereof to the police department. Similar requirements have been sustained in Grand Rapids v. Braudy, 32 L. R. A., 116; Commonwealth v. Leonard, 140 Mass., 473.
   Summers, J.

Paragraph 30 of Section 1536-100, Revised Statutes of Ohio, provides as follows: “All municipal corporations shall have the power to regulate and license * * * chattel mortgage and salary loan brokers. * * * In the granting of any license a municipal corporation may exact and receive such sums of money as the council shall deem proper and expedient.

“In the trial of any action brought under the power of licensing herein given, the fact that any party to such action represented himself or herself as engaged in any business or occupation, for the transaction of which a license may be required or as the keeper, proprietor or manager of the thing for which a license may be exacted, or that such party exhibit a sign indicating such business or calling, or such proprietorship or management, shall be conclusive evidence of the liability of such party to pay the license therefor.”

The ordinance is as follows:

“(No. 1671. Passed December 3, 1906.)

“To Regulate and License Chattel Mortgage and Salary Loan Brokers.

“Be it ordained by the Council of the City of Cincinnati, State of Ohio.

“Sec. 1. No person, firm or corporation shall within the city of Cincinnati, engage in the business of a chattel mortgage loan or salary loan broker, or engage in the business of loaning money secured by mortgage, bills of sale or other contracts involving' as security the forfeiture of rights in personal property, or upon assignments, bills of sale or other conveyance of salary or wages, without first having obtained a license from the auditor of said city so to do.

“Sec. 2. The auditor of said city shall issue to any person, firm or corporation a license as provided for in Section 1 for the period of one year, upon payment to the city of Cincinnati of the sum of two hundred and fifty dollars ($250.00) upon condition that the books and accounts of such licensee shall be open at any time to inspection by said auditor; provided, however, that said license shall expire on the 31st of December of the year in which issued, but said auditor may issue a license to any such person, firm or corporation who engages in business after the first of January for a period less than a year, upon payment of a proportionate amount of said sum.

“It shall be the duty of the auditor to examine the books and accounts of such licensees at least once every year.

“Sec. 3. Every such person, firm or corporation so licensed shall give to each pledgor, mortgagor or assignor, a card upon which shall be written in ink, typewritten or printed the name of the person, firm or corporation making said loan, the name of the pledgor, mortgagor or assignor, the article or articles pledged, mortgaged or assigned, unless there be more than fifteen of said articles, in which case a general description thereof shall be sufficient ; the amount of the loan, the amount of interest charged, the amount of expense charged exclusive of interest and the time for which each of said charges are made; the date when the loan is made and the date when payable, and shall also give the pledgor, mortgagor or assignor, a receipt for each payment of principal, interest or any other charge made on said loan and shall also give the pledgor, mortgagor or assignor, and if any payment shall consist of principal and interest, or any other charge, said receipt shall specify the amount of each.

“Sec. 4. No such person, firm or corporation so licensed shall receive as security for any indebtedness any chattel mortgage, bill of sale or assignment, or any other conveyance of any personal property, salary, or wages, signed in blank, but all blank spaces shall be filled in with ink, or typewritten, with the proper words and figures; and if said conveyance shall be for salary or wages, the name of the person, firm or corporation by whom the person making the conveyance is employed shall also appear on said paper.

“Sec. 5. Every such person, firm or corporation shall, on or before ten o’clock a. m. on each and every Wednesday, file with the auditor of the city of Cincinnati a true record of each and every loan made during the calendar week immediately preceding. Said record shall be made upon cards or blanks furnished by said auditor, and shall consist of the name of the person, firm or corporation making the loan, the name of the pledgor, mortgagor, or assignor, a specific description of the article or articles pledged, mortgaged or assigned, the amount loaned, the rate of interest, the amount charged for interest and the time for which said interest charge is made, the amount of expense charges, exclusive of interest, and the time for which said expense charge is made, and the date when said loan is payable. Such record so filed with the auditor of the city shall remain in the office of said auditor as a permanent record, open to the inspection of the mayor or the chief of police of said city.

“Sec. 6. No such person, firm or corporation shall make a loan to a married man upon the security set forth in Section 1 unless the application for said loan and the conveyance of the chattels or salary shall be signed by the wife of said applicant.

“Sec. 7. Any person or persons, either as principal agent, officer or employe of any other person, or any firm or corporation who violates any of the provisions of this ordinance, or any person or persons, firm or corporation who shall carry on the business of a chattel mortgage or salary loan broker, or loan money as set forth in Section 1 without first obtaining a license as provided therein, shall, for the first offense, be fined not less than twenty-five dollars ($25.00) nor more than two hundred dollars ($200.00) and the costs of prosecution, and for the second and any subsequent offense shall be fined not less than, one hundred ($100.00) nor more than five hundred dollars ($500.00), and it shall be the duty of the auditor, upon the second conviction of any such person, firm or corporation holding a license issued under this ordinance to forthwith revoke said license.”

The principal question is, whether the business of a chattel mortgage broker, or salary loan broker, is one that may be subjected to license and regulation by the state in the exercise of police power, and, if so, whether the power to license and regulate the business may be delegated by the state to municipal corporations, and whether Section 5 of the ordinance prescribes reasonable regulations.

The term police power has been much employed in recent years, and many attempts have been made to define it, but it is said to be incapable of definition. The term is not used in the constitution. The police power is included in the legislative power, but there are in the constitution express limitations upon some of the powers comprised in the legislative power, and the term police power is used to designate that power from others and is helpful in ascertaining its scope and the limitations upon it.

All of the legislative power of the state is vested in .the general assembly. Baker v. Cincinnati, 11 Ohio St., 534, 542. State v. Frame, 39 Ohio St., 399, 407. But it is a delegated power and is limited by the scope of the purposes for which it was granted, as well as by the express limitations of the constitution. The Cincinnati, W. & Z. Railroad Co. v. The Commissioners of Clinton County, 1 Ohio St., 77, 84, 86. The purpose for which it was granted is indicated by the opening declaration, “We, the people of the State of Ohio, grateful to Almighty God, for our freedom, to secure its blessings and promote our common welfare, do establish this 'Constitution.” And Section 20 provides, “This enumeration of rights shall not be construed to impair or deny others retained by the people; and all powers, not herein delegated, remain with the people.”

Chief Justice Shaw said, in Commonzvealth v. Alger, 7 Cush., 53, “Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law as the legislature, under the governing and controlling power vested in them by the constitution, may think necessary and expedient.”

In Chicago, B. & Q. Ry. Co. v. Drainage Commissioners, 200 U. S., 561-592, Mr. Justice Harlan says: “We hold that the police power of the state embraces regulations designed to promote the public convenience or the general prosperity, as well as regulations designed to promote the public health, the public morals or the public safety.” And in Frisbie v. United States, 157 U. S., 160, Mir. Justice Brewer says: “While it may be conceded that, generally speaking, among the inalienable rights of a citizen is that of the liberty of contract, yet such liberty is not absolute and universal. It is within the admitted power of government to restrain some individuals from all contracts, as well as all individuals from some contracts. It may deny to all the right to contract for the sale of lottery tickets; to the minor the right to assume any obligations, except for the necessaries of existence, to the common carrier the power to make any contract, relieving himself from negligence; and, indeed, may restrain all engaged in any employment from any contract in the course of that employment which is against public policy. The possession of this power by government in no manner conflicts with the proposition that, generally speaking, every citizen has a right freely to contract for the price of his labor, services or property.” In Phillips v. State of Ohio, 77 Ohio St., 214-216, where the constitutionality of .statutes regulating junk dealers and dealers in secondhand articles is considered, Davis, J., says: “It is almost an axiom that anything which is reasonable and necessary to secure the peace, safety, morals and best interests of the commonwealth may' be done under the police power; and this implies that private rights exist subject to the public welfare.” And again, “the general power of the legislature to determine what is necessary for the protection of the public interests béing clear, judicial inquiry is necessarily limited to determining whether a particular regulation is reasonable, impartial and within the limitations of the constitution. The legislature is the judge of the mischief and the remedy, and of what shall be state policy, subject to the restrictions just mentioned.”

The right to labor, to contract, to do business or to engage in any of the common occupations of life is one of the inalienable rights of the citizen, (Butchers Union Slaughter-House and Live-Stock Landing Company v. Crescent City L.-S. L. & S.-H. Company, 111 U. S., 746, Mr. Justice Bradley, 762, M1* Justice Field, 756) and may be regulated, therefore, by the state only to promote the public welfare, and this brings us to the question, what possible public good can be subserved by regulating brokers in chattel mortgages and in salary loans, and if the business is subject to regulation under the police power, are the provisions of the ordinance unreasonable?

Usury laws are of ancient origin, and while the utility of such legislation is still open to question, such laws are in force in this state, and in a majority of the states, and we think it too late to question the power of the state to enact them. One of the ways in. which such laws are circumvented "is by a commission to a broker. The class that obtain such loans comprises the most needy and improvident, and consequently the most susceptible to fraud and extortion, and surelv legislation to prevent such evasions, or fraud and extortion, may rest upon the same grounds as usury laws. And it would not be profitable to consume space by setting forth the almost numberless instances of laws imposing restraints upon the right to contract or regulations of occupations, or of the conduct of business that have been upheld by the courts.

The legislature may delegate to municipal corporations the right to exercise the police power to effect the purposes of its organization, but the extent of the grant and the reasonableness of its exercise are questions for the courts.

In Stoutenburgh v. Hennick, 129 U. S., 141, 147, Chief Justice Fuller says: “It is a cardinal principle of our system of government,' that local affairs shall be managed by local authorities, and general affairs by the central authority; and hence while the rule is also' fundamental that the power to make laws cannot be delegated, the creation of municipalities exercising local self government has never been held to trench upon that rule. Such legislation is not regarded as a transfer of general legislative power, but rather as the grant of the authority to prescribe local regulations, according to immemorial practice, subject of course to the interposition of the superior in cases of necessity.” In the present case the grant is in general terms, so that the question arises as to the reasonableness of the regulations prescribed by Section 5 of the ordinance. The authority given is to regulate and license chattel mortgage and salary loan brokers. The ordinance is so entitled, but its provisions are more comprehensive and embrace persons engaged in the business of loaning money upon chattel mortgages, or other personal property as security, and most of the regulations prescribed relate to such transactions rather -than to those of brokers. But we do not think it necessary, in the present case, to consider the validity or the invalidity of the ordinance in these respects for' the plaintiff in error obtained a license and objects only to the requirements of the fifth section. His objections to these requirements are that compliance would destroy his business, because borrowers of this class are so sensitive in respect to publicity that they will forego a loan rather' than expose their necessities to , the public; and that it invades the right of privacy. The requirements of the fifth section are not much more exacting, and will not give as much publicity as do most registration acts, and compliance with them will not destroy the business if it is legitimate. Publicity is recognized as one of the most effective preventatives of many harmful practices. If some such ordinance had been in force in Venice, Shy lock never would have stipulated for the pound of flesh. We do not think the requirements are unreasonable.

The only provision of the constitution that occurs to us upon which is based the contention that the ordinance invades the right of property, is Section 14 of the Bill of Rights, which provides: “The right of the people to be secure in their persons, houses, papers and possessions, against unreasonable searches and seizures shall not be violated; .and no warrant shall issue, but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched and the person and things to be seized.” The search or seizure there referred to, is' a search or seizure under authority of law. The ordinance in question makes no provision for a warrant nor does it prescribe anything within the spirit of that declaration and inhibition historically considered. In Marmet v. State, 45 Ohio State, 63-69, where the constitutionality of a license law was under consideration, Spear, J., said of a similar objection, that if it made the law void then a like infirmity attached to many other laws then in force.

Objection was made to a similar requirement respecting pawnbrokers, in St. Joseph v. Levin, 128 Mo., 588, and it was held that the ordinance did not violate a similar requirement of the constitution of that state, or the fifth amendment to the Constitution of the United States. And in Launder v. Chicago, 111 Ill., 291, a similar requirement respecting pawnbrokers was held not unreasonable.

Having found the power to exist in the state, its delegation to the municipality, and the objectionable regulation, prescribed by the ordinance, not unreasonable, the judgment is

Affirmed.

Crew, C. J., Spear, Davis, and Price, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    French v. City of Toledo. Beck v. City of Toledo.

      Power of municipal corporations to license — Business of loaning on chattel mortgages — Section 1536-100, Revised Statutes, construed.

    Section 1536-100, Revised Statutes, authorizing municipal corporations to license and regulate chattel mortgage and salary loan brokers, does not authorize the exaction of a license from persons engaged, otherwise than as brokers, in the business of loaning money upon loans secured by mortgages on personal property.
    (Nos. 11721-11722
    Decided November 9, 1909.)
    Error to the Circuit Court of Lucas county.
    The plaintiffs in error, Elenry E. French and Frank Beck, were convicted of violations of an ordinance of the city of Toledo entitled, “An ordinance to regulate and license chattel mortgage and salary loan brokers.” The ordinance was passed September 25, 1905, and is substantially the saíne as the ordinance set out in the next preceding case, Sanning v. The City of Cincinnati, excepting that the license fee is only fifty dollars. On error the judgments were affirmed in the court of common pleas and in the circuit court.

      Mr. Curtis T. Johnson, for plaintiff in error, in both cases.
    The powers of a municipality in Ohio are those conferred by the statute. The municipal corporations' have no other powers than those expressly granted. The grant of power is strictly construed and limited to the express terms of the act. Townsend v. Circleville, 78 Ohio St., 122; Bloom v. Xenia, 32 Ohio St., 461; Ravenna v. The Pennsylvania Co., 45 Ohio St., 118.
    This being the established law, the conclusion follows that the city of Toledo could, by ordinance, license and regulate chattel mortgage and salary loan brokers and nothing more. Brokers, as an entire class, are not within the regulating and licensing power of the city. The business of money lending is not within the regulating power granted to the city.
    One who does not make bargains for . others but buys and sells on his own account, with his own funds or on an accouñt with the funds of his principal, is not a broker. City of Portland v. .O’Neil, 1 Ore., 218.
    The act of the legislature empowers the city to license and regulate “chattel' mortgage and salary loan brokers.” The ordinance of the city of Toledo passes beyond the statutory terms, and adding new elements to the legislative scheme, attempts an enactment regulating all persons whether brokers or not, who engage in the business of loaning money upon certain classes of security.
    This clearly transcends the power granted.
    A broker is an agent employed to effect bargains and 'contracts, as a middle man, between pther persons for a compensation called brokerage. He takes no possession, as broker, of the subject-matter of the negotiations. Webster’s International Dictionary; Rapalje & Lawrence’s Law Dictionary; Bouvier Law Dictionary; 4 Am. & Eng.. Ency. Law (2e<±), 960; Words & Phrases, “broker.
    Insofar as the statute undertakes to give conclusive effect to certain evidence, it is obnoxious to Section 1, Article XIY, Constitution of the United States and Article I, Section X, Constitution of the State of Ohio.
    The ordinance is invalid because it denies to citizens equal protection of the laws and is an unjustifiable and unreasonable interference with the rights to liberty and of property. State v. Felton, 77 Ohio St., 554; Railway Co. v. Ellis, 165 U. S., 150; Miller v. Crawford, 70 Ohio St., 207; State v. Gardner, 58 Ohio St., 599; Cramer v. Trust Co., 72 Ohio St., 395; State v. Robins, 71 Ohio St., 273; Harmon v. State, 66 Ohio St., 249; Cleveland v. Construction Co., 67 Ohio St., 197; State v. Gravett, 65 Ohio St., 289; Williams v. Donough, 65 Ohio St., 499; Palmer v. Tingle, 55 Ohio St., 423; Fisher Co. v. Woods, 187 N. Y., 91.
    This precise question has been passed upon by the supreme court of Mississippi. Rodge v. Kelly, 88 Miss., 209; Hyland v. Sharp, 88 Miss., 567; Connolly v. Sewer Pipe Co., 184 U. S., 564, 22 U. S. Sup. Ct. Rep., 440; Ex parte Sohncke, 148 Cal., 262; Bailey v. People, 190 Ill., 28, 83 Am. St. Rep., 116.
    The statute of April 20, 1904, provides:
    “In the trial of any action'the fact that such party exhibit a sign indicating such business or calling, or such proprietorship or management, shall be conclusive evidence of the liability of such party to pay the license therefor.”
    The statute does not raise a mere presumption but under the construction adopted the facts mentioned are allowed conclusive force. This we submit is contrary to law.
    This court has passed upon a similar enactment contained in the Valentine Law. Hammond v. State, 78 Ohio St., 15.

      Mr. Charles S. Northup, city solicitor, and Mr. Ralph Emery, for defendant in error.
    The phrase “chattel mortgage and salary loan brokers” in the statute follows immediately after the term “pawnbrokers” so that even upon a strict technical construction of the statute the word broker would have the same meaning in both cases according to the rule of interpretation announced in the case of Raymond v. Cleveland, 42 Ohio St., 529; Rhodes v. Weldy, 46 Ohio St., 234.
    The term pawnbroker, occurring in the same statute as stated, has a well settled meaning and is defined as one who makes a business -of loaning money on the security of personal property pledged or deposited in his keeping. Webster’s International Dictionary; Section 4387, Revised Statutes.
    It appears, therefore, that as a pawnbroker is one who loans money upon the security of personal property deposited in his keeping to be forfeited in case of non-payment of the loan, a chattel mortgage and salary loan broker is-one who loans money upon the security of personal property transferred to him by mortgage, bill of sale or other contract involving the forfeiture of such property for non-payment of the loan or upon assignment, bill of sale or other conveyance of salary or wages, and the municipality has the power to regulate both classes of business.
    In support of the validity of the ordinance and particularly of the provisions of Section 598, wp submit the decision of this court in Marmet v. State, 45 Ohio St., 63.
   Summers, J.

The affidavit upon which the prosecution of French was based, is as follows:

“affidavit for city warrant.
“The State of Ohio, Lucas County, City of Toledo, ss.:
“Before me, Frampton Price, Deputy Clerk of the Police Court of the City of Toledo, Lucas County, Ohio, personally appeared Charles S. Northup who being duly sworn according to law, on his oath deposes and says, that on the 27th day of November A. D. 1906, at the city of Toledo, county of Lucas and state of Ohio, one Flenry E. French was unlawfully engaged, under the name of Union Loan Company, in the business of loaning money upon loans secured by mortgages on personal property, without first having obtained a license from the mayor of said city so to do; contrary to- the form of the ordinance in such cases made and provided.
“(Affiant) Charles. S. Northup.
“Sworn to and subscribed before me, this 20th day of December A. D. 1906.
“(Seal) Frampton Price,
“Deputy Police Clerk.”

The affidavit, upon which the prosecution of Beck was based is as follows:

“affidavit for city warrant.
“(Filed February 4, 1907.)
“Before me, Louis E. Krieger, Clerk of the Police Court of the City of Toledo, personally appeared Frank A. Boyer who being duly sworn according to law, on his oath deposes and says that from, to-wit: the 1st day of January, 1907, to the 25th day of January, 1907, at the city of Toledo, Lucas county, state of Ohio, one Frank Beck, being then and there in the employ of FI. Lillie Mackey and Frank J. Máckey, co-partners doing business under the firm name and style of the Ohio Mortgage & Loan Company, which said co-partnership was at the city aforesaid and at the time aforesaid unlawfully engaged in the business of loaning money upon loans secured by mortgage on personal property, without first having obtained from the mayor of said city a license so to do, was then and there engaged, as such employe, in the business of loaning money upon loans secured by mortgages on personal property without said Beck first having obtained a license from the mayor of said city so to do, contrary to the form of the ordinance of said city in such case made and provided:
“(Affiant) Frank A. Boyer.
“Sworn to and subscribed before me, this 4th day of February A. D. 1907.
“(Seal) Louis E. Krieger,
"Police Clerk.”

The statute, paragraph 30 of Section 1536-100, Revised Statutes, authorizes municipal corporations. to regulate and license “chattel mortgage and salary loan brokers." The affidavit in the French case does not charge that he, as a broker, either chattel mortgage or salary, engaged in that business, or that as such broker, he transacted such business without having obtained a license. The affidavit charges that he engaged in the business of loaning money upon loans secured by a mortgage on personal property without first having obtained a license. . The statute does not authorize municipalities to require a license to transact such business, or to regulate it. No general authority is referred to, under which, in the absence of the specific provision, the ordinance may be upheld. And if there was a general welfare clause, this special provision would be construed to contain all the power in that respect granted and to exclude any such power under the general grant. “When there are both special and general provisions, the power to pass by-laws under the special or express grant can only be exercised in the cases and to the extent, as respects those matters, allowed by the charter or incorporating act; and the power to pass bylaws under the general clause does not enlarge or annul the power conferred by the special provisions in relation to their various subject-matters, but gives authority to pass by-laws, reasonable in ' their character, upon all other matters within the scope of their municipal authority.” 1 Dillon on Municipal Corporations, (4 ed.), Section 316. People, ex rel. Goldberg, v. Busse, Mayor, et al., 240 Ill., 338.

“A broker is an agent employed to effect bargains and contracts as a middleman between other persons for a compensation called brokerage. He takes no possession, as broker, of the subject-matter of the negotiations.” Webster’s International Dictionary. “Brokers are those who are engaged for others in the negotiations of contracts relating to property with the custody of which they have no concern.” Bouvier’s Law Dictionary. City of Portland v. O'Neil, 1 Ore., 218. If the word “broker” is used in this sense in the statute then clearly the affidavit does not charge the defendant with the doing of anything for which the statute authorizes the municipality to exact a license.

Counsel for the city contends that to give the words “chattel mortgage and salary loan broker” the technical meaning of the word “broker” contended for by counsel for plaintiff in error, would render the statute utterly futile, for the reason that there is no such business as that of an agent to procure chattel mortgage loans and that there is no class of persons that would come within its terms. “But there is a well known class of persons carrying on a well known business and the term chattel mortgage and salary loan brokers is the most apt and practically the only apt phrase that can be applied to them and when applied it does not mean agént or middleman, but one who loans money on such security as household goods and assignments of wages.” He also points out that Webster’s Dictionary defines a broker as “A dealer in money, notes, bills of exchange, etc.,” and he refers to Section 3821-20, Revised Statutes, relating to banks and banking, which provides that all persons dealing in exchange, or who keep an office for the loaning of money shall be deemed and taken as brokers within the meaning of that chapter. He also points out that Webster defines a pawnbroker as “One who makes a business of loaning money on the security of personal property pledged or deposited in his keeping.” And also to the following language of Section 4387, Revised Statutes, “Whoever loans money on deposited pledges or personal property or who purchases personal property or choses in action, on condition of selling the same back again at a stipulated .price, is hereby defined and' declared to be a pawnbroker.” He further contends: “It appears, therefore, that as a pawnbroker is one who loans money upon the security of personal property deposited in his keeping to be forfeited in case of non-payment of the loan, a chattel mortgage and salary loan broker is one who loans money upon the security of personal property transferred to him by mortgage, bill of sale or other contract involving the forfeiture of such property for non-payment of the loan or upon assignment, bill of sale or other conveyance of salary or wages, and the municipality has the power to regulate both classes of business.”

It is true that under the statutory definition of a pawnbroker, the business is not limited to a middleman, but the necessity that exists in such case for regulating the business and requiring reports is that he takes possession of the security, and that there would be no record or evidence of the transaction, whereas, in the case of loans upon chattel mortgage, possession of the property is not given and in order that the security may be made effectual it is necessary that the instrument be filed with some public officer, thereby disclosing the nature of the transaction and preventing abuse.

The same reasons exist for licensing and regulating dealers or persons who engage in the business of purchasing, or loaning upon, salaries as for licensing pawnbrokers, and it may be that respecting them the term broker would not be limited to 'a middleman, but we do not think the legislature intended to authorize the exaction of a license to engage in the business of loaning money upon loans secured by mortgage on personal property, and the necessity for and reasonableness of such a requirement would be questionable. No one will contend that the public welfare requires that such loans shall be inhibited, or that a license should be required of an individual desiring to make such a loan; and how many loans could an individual make before being held to be engaged in it as a business, and was it intended that a bank must obtain a license? The affidavit does not charge the defendant with the doing of any act for which the state authorizes the city to exact a license. Other objections are made to the ordinance, and objection is made to that provision of the statute making the exhibition of a sign indicating such business conclusive evidence of the liability to obtain a license, but having found the affidavit insufficient it'is not thought necessary to consider them, or the question whether the ordinance as enacted can be upheld even as to chattel mortgage or salary loan brokers.

In the Beck case it is not charged that Beck was engaged in business on his own account, but that he engaged in the business as an employe. The statute does not provide that a license may be required of an employe, but that “In the trial of any action brought under the power of licensing herein given, the fact that any party to such action represented himself or herself as engaged in any business or occupation, for the transaction of which a license may be required or as the keeper, proprietor or manager of the thing for which a license may be exacted * * * shall be conclusive evidence of the liability of such party to pay the license therefor.” The affidavit is insufficient in the same respects as the affidavit in the French case.

The judgments are reversed and the defendants discharged.

Reversed.

• Crew, C. J., Spear, Davis, Shauck and Price, JJ., concur.


author: Crew, C. J.

text:
    Buckman, Auditor, v. The State, ex rel. Board of Education.

      Village school district — Vote of electors not necessary to create, when — Section 3888, Revised StaUites, amended — Act of April 2, 1906.

    By force of the provisions of Section 3888, Revised Statutes, as amended April 2, 1906, and in effect April 16, 1906 (98 O. L., 217), each incorporated village then existing — April 16, 1906— or since created, “together with the territory attached to it for school purposes, and excluding the territory within its corporate limits detached for school purposes, and having in the district thus formed a total tax valuation of not less than one hundred thousand dollars,” constitutes and is a village school district, no vote of the electors of such village being necessary to the creation or establishment of such district.
    (No. 11865
    Decided November 9, 1909.)
    Error to the Circuit Court of Summit county.
    On April 5, 1909, the board of education of Coventry township, Summit county, Ohio, filed its petition in the circuit court of Summit county against Mark D. Buckman, auditor of said county, praying that a writ of mandamus issue against said Mark D. Buckman commanding him to apportion to said board of education for its use, the sum of $2,060.66 of the school funds of said county. On the filing of said petition an alternative writ of mandamus was allowed by the circuit court, and was made returnable on the 12th dev of April, 1909, at 10 o’clock A. m. On April 8, 1909, the defendant, Mark D. Buckman. bv way of showing cause why he had not complied with the command of said alternative' writ, filed in said cause the following answer:
    “The defendant for answer to the alternative writ issued in this cause, says: that plaintiff ought not to have his • writ of peremptory mandamus; because he says:
    “1. Certain described territory within Coventry township in said county, and embracing territory constituting, until December 28, 1907, sub-school district No. 11 and portions of sub-school districts Nos. 4 and 12 in Coventry township in said county, was, by proceedings duly had under the provisions of Sections 1561 a-b-c of the Revised Statutes of Ohio,' on the 28th day of December, 1907, created a village, named Kenmore.
    “2. That the taxable valuation of the property of said village in the spring of 1908 was $588,790.00.
    “3. That by the creation of said territory into a village, said village of Kenmore thereby became and ever since has been and still is a village school district, invested with all the legal rights, duties and privileges of a village school district.
    “4. That on the 28th day of February, 1908, the electors of said village school district duly elected as provided by law, a board of education for said district, which board was duly qualified, organized and entered upon the discharge of its duties as such board of education for said village school district, and is still so acting.
    “5. On the 1st day of June, 1908, said board of education duly fixed the rate of taxation necessary to be levied and assessed for all school purposes, after the state funds were exhausted, at 6y2 mills, and on the 6th day of June, 1908, certified in writing to this defendant the amount of levy so fixed.

      “6. On the - day of June, 1908, J. W. Horner as clerk of the board of education of said Kenmore village school district duly certified to the defendant the number of persons of school age in said district to be 230, and on the-day of June, 1908, S. P. Marsh, clerk of the board of education of said Coventry township, certified to the defendant the number of persons of school age in Coventry township school district to be 488. None of the youth of school age residing in the territory embraced in said village of Kenmore being included in said number.

      “7. There having been some question raised as to the existence of said Kenmore village school district this defendant assessed upon all the taxable property in said district six mills per dollar valuation for school purposes; said rate being the same as that fixed and certified by the board of education of Coventry township school district for school purposes.
    “8. In February last this defendant made an apportionment of the money collected by the said-county treasurer and levied and assessed on the property of said Coventry township school district, outside of said village, and on the basis of the taxable property assessed in said village of. Kenmore school district, respectively, and including the amount received from the state fund and Western Reserve fund, so called. And the amount so apportioned to said Kenmore village school district was $2,060.66, and the sum so apportioned to said Coventry township school district was $3,451.49. ”

      “9. Having been informed by F. J. Rockwell, the prosecuting attorney of said county, that the court of common pleas of said county had decided that the said village of Kenmore was by its creation legally constituted a village school district, and being advised by said prosecuting attorney that it was lawful so to do, defendant notified both of said boards of education to come to the defendant’s office and receive the money so apportioned to them, which they did, and on the 5 th day of March, 1909, C. E. Thornton as treasurer of the board of education of said Coventry township school district received and receipted for said sum of $3,451.49 so as aforesaid apportioned to said district, making no claim for any further sum, either then or since that time, and on the 9th day of March, 1909, B. W. Swigert as treasurer of the board of education of said Kenmore village school district received and receipted for said sum of $2,060.66 so as aforesaid apportioned to that district.
    “This defendant claims that all his acts as aforesaid set forth have been done in conformity to law and that the relator is not entitled to the relief prayed for.
    “Wherefore he asks that said petition be dismissed.”
    To this answer the plaintiff demurred, assigning as ground of demurrer that said answer “does not allege facts sufficient in law to constitute a defense to the said petition.” This demurrer was sustained by the circuit court, and the defendant not desiring to plead further the court allowed and caused to be issued a peremptory writ of mandamus against said Mark D. Buckman commanding him to apportion to said plaintiff, the board of education of Coventry township, said sum of $2,060.66 as prayed for in its petition. To obtain a reversal of this judgment of the circuit court Mark D. Buckman prosecutes the present proceeding in error.

      Mr. F. J. Rockwell, prosecuting attorney; Mr. H. C. Spicer, and Messrs. Stuart & Stuart, for plaintiff in error.

      Messrs. Grant, Sieber & Mather, for defendant in error.
   Crew, C. J.

The record in this case presents but a single question, which is: did the village of Kenmore by its creation as an incorporated village, thereby and by that act, become a village school district? It being admitted on the record that the tax valuation of the property within said village at the time of its incorporation was largely in excess of one hundred thousand dollars, this question becomes one merely of construction, to be determined by the proper interpretation of the provisions of Section 3888, Revised Statutes, as amended April 2, 1906 (98 O. L., 217), which amended section reads as follows: “Each incorporated village now existing or hereafter created, together with the territory attached to it for school purposes, and excluding the territory within its corporate limits detached for school purposes, and having in the district thus formed a total tax valuation of not less than one hundred thousand dollars shall constitute a village school district, provided that each incorporated village now existing or hereafter created, together with the territory attached to it for school purposes and excluding the territory within its corporate limits detached for school purposes, with a tax valuation of less than one hundred thousand dollars, shall not constitute a village school district; provided at any general election the proposition to dissolve or organize such village school district be submitted by the board of education to the electors of such village and be so determined by a majority vote of such electors.” It is the contention of counsel for defendant in error that the village of Kenmore upon its incorporation did not thereby, by force of the provisions of the above 'statute, become at once, or at all, a village school district, but that in order to create or establish such district, of the territory within the municipality, it is necessary that the proposition to organize such village school district be first submitted to the electors of the village and be favorably determined by a majority vote of such electors. We are of opinion that neither the grammatical construction, nor proper interpretation of the language employed in the above statute, leads to the conclusion for which counsel for defendant in error contend. A consideration of the history and previous legislation upon the subject of the reorganization and maintenance of our common schools, discloses that from 1880 to 1906 it was the policy of the state, so declared to be by express statutory enactment, that every incorporated village within the state, together with the. territory thereto attached for school purposes, should constitute a village school district, without regard to the'tax valuation of the property within the district so formed, and without submitting to a vote of the electors of such village the question of establishing such village district. Hence in the interpretation of the statute here involved, it must be presumed that the legislature did not intend by its enactment, to modify or change the prior law and this settled policy, except in so far as it has therein declared such intention either in express terms or by unmistakable implication. While Section 3888, Revised Statutes, as amended April 2, 1906, is clumsily worded, and in consequence its meaning somewhat involved and obscure, nevertheless, when we consider the provisions of the statute sought to be amended and the character of the amendment actually made, we must conclude that the purpose of the legislature in adopting and passing said amendment was to classify and divide village school districts into two classes, the one to be composed of incorporated villages having within the district formed a total tax valuation of not less than one hundred thousand dollars, the other to be composed of incorporated villages having within the district a tax valuation of less than one hundred thousand dollars, and to provide that villages of the first class above named, either then existing or thereafter created, should each constitute and be a village school district, no voté of the electors of such village being required or permitted on the question of the organization or establishment of said district. It doubtless being within the contemplation of the law making body that an incorporated village with a tax duplicate of not less than one hundred thousand dollars, could well provide for the proper support and maintenance of its schools and should therefore, in every instance constitute and be a village school district, and having made and adopted such classification it intended, we think, to therein and thereby further provide and enact that incorporated villages of the second class with a tax duplicate of less than one hundred thousand dollars should not thereafter become, or if then existing be compelled to remain village school districts, unless so determined by a majority vote of the electors of such village district. If this be not the proper interpretation of this statute then the classification therein made by the legislature is a vain and useless thing, for what could it avail to make a classification based upon the tax valuation of the property within the incorporated village and the territory attached thereto for school purposes, if in all cases and in every instance, without regard to such classification, an election is required to determine whether said district shall constitute or be a village school district, yet such result must necessarily follow if we adopt the construction of this statute claimed for it by counsel for defendant in error. The object of judicial investigation in the construction of a statute is to ascertain and give effect to the intent of the law making body which enacted it, and the mere literal construction of a statute ought not to prevail, if apparently opposed to the intention of the legislature enacting it, unless the language employed therein is so plain and unambiguous as to imperatively require it. In Lewis’ Sutherland Statutory Construction, Section 376, the rule is stated as follows: “While the intention of the legislature must be ascertained from the words used to express it, the manifest reason and the obvious purpose of the law should not be sacrificed to a literal interpretation of such words. Words or clauses may be enlarged or restricted to effectuate the intention or to harmonize them with other expressed provisions. Where general language construed in a broad sense would lead to absurdity it may be restrained. The particular inquiry is not what is the abstract force of the words or what they may comprehend, but in what sense they were intended to be used as they are found in the act. The sense in which they were intended to be used furnishes the rule of interpretation, and this is to be collected from the context; and a narrower or more extended meaning is to be given according to the intention thus indicated.” It is the claim of counsel for defendant in error in the present case, that the last proviso found in'Section 3888, Revised Statutes, to-wit: “provided at any general election the proposition to dissolve or organize such village school district be submitted by the board of education to the electors of such village and be so determined by a majority vote of such electors” extends and applies to the whole section, and is not to be limited or confined to the paragraph "or clause that immediately precedes it, which provides, “that each incorporated village now existing or hereafter created together with the territory attached to it for school purposes, and excluding the territory within its corporate limits detached for school purposes, with a tax valuation of less than one hundred thousand dollars, shall not constitute a village school district.” To this claim of counsel we cannot assent, but on the contrary are clearly of opinion that the position of this proviso aiid the language therein employed sufficiently denote that it was the purpose, meaning and intent of the legislature that such proviso should apply only to the villages mentioned in the paragraph immediately preceding it, namely, “incorporated villages having a tax valuation of less than one hundred thousand dollars.” As a general rule, unless the contrary intention plainly appears, a proviso is to be construed with reference to the immediately preceding paragraph to which it is attached, and qualifies or limits only the part or paragraph to which it is appended. We think the proviso in question here must be thus construed and limited, apd that the words “such village school district,” found therein, should be construed and held to apply only to village districts having a tax valuation of less than one hundred thousand dollars. This construction recognizes the classification of village districts made by the general assembly and harmonizes and gives effect to each and all of the provisions of the statute without doing violence to any of its terms' such therefore, we think, should be held to be its proper construction.

Judgment reversed.

Summers, Spear and Shauck, JJ., concur.


author: By the Court.

text:
    Hibbard, County Surveyor, v. Biddle et al.

      Duties of county commissioners — As to plans, etc. — For road improvements — Section 1166, Revised Statutes.

    Section 1166, Revised Statutes, does not require the county commissioners to cause plans, specifications and details to be made in all cases of road improvement.
    (No. 11111
    Decided October 9, 1909.)
    Error to the Circuit Court of Athens county.
    The plaintiff, Hibbard, as surveyor, brought suit against the defendants, Biddle, Wolf and Hill, as members of the board of commissioners of Athens county and as members of the board ' of turnpike directors of Athens county, and against Downey and Angel as partners, to enjoin the execution of a contract to be made by said commissioners and ‘ directors with said Downey and Angel for the improvement of a turnpike, and to enjoin the expenditure of money in pursuance of such contract. The substantial allegations of the petition were, that the plaintiff was the duly elected and qualified surveyor of Athens county; that the three first named defendants were its commissioners, and acting as the board of turnpike directors for the county, and that they had agreed with Downey and Angel for the repair of a road in said county by adding lime and sandstone to said road, and to drain the same in a workmanlike manner in consideration of prices agreed upon by them; that this was done without any plans, specifications, details, estimates of costs or form of contract, and that the said defendants had not requested the plaintiff to prepare such plans, specifications, details, etc., and that they had refused to allow or approve any claim which he might make for services if he should prepare such plans, specifications and estimates. The circuit court sustained a demurrer to this petition and dismissed the petition, adjudging the costs of the suit against the plaintiff.

      Messrs. Lewis & Sayre, for plaintiff in error.

      Mr. Wade H. Ellis, attorney general; Mr. W. H. Miller; Mr. I. M. Foster, and Mr. Clarence D. Laylin, for defendants in error.
   By the Court.

Counsel for the plaintiff rely upon Section 1166, Revised Statutes, as giving the right of action upon the facts alleged in their petition. The material provisions' of that section are as follows: “The county surveyor shall perform all duties for such county as are now or may hereafter be authorized or declared by law to be done by any civil engineer or surveyor. He shall prepare all plans, specifications, details, estimates of cost, and submit forms of contracts, for the construction or repair of all bridges, culverts, roads, drains, ditches and other public improvements (except buildings) which may be constructed under the authority of any board within and for such county. * * * He shall make all surveys required by law to be made, and perform all necessary services to be performed by a surveyor or civil engineer in connection with the construction, repair or opening of all county roads, turnpikes, and ditches constructed under the authority of the board of county commissioners, and shall perform such other duties as said board may from time to time require.”

Manifestly the section contains no express provision that plans, specifications, details, estimates of costs shall be prepared by any one for all highway repairs. The proposition of counsel for the plaintiff is, that that requirement is implied in the general provisions of the section when considered in connection with numerous other provisions of the statute requiring them to be made for buildings and other improvements. The better view seems to be, that the omission of the requirement in this case indicates that the subject is to be left to the large discretion which the statutes generally confer upon the board of county” commissioners, and that is especially true in view of the obvious fact that in many repairs of roads, such plans, specifications, et cetera, would not be necessary or even practicable. Whether in a given case they are practicable and necessary, is left to the discretion of the county commission euy. the effect of the amended section in that regard being, that if they deem them necessary they shall be prepared by the County surveyor.

Judgment affirmed.

___ Crew, C. J., Summers, Spear, Davis, Shauck and Price, JJ., concur.


author: Price, J.

text:
    Doyle, Admx., v. The Baltimore & Ohio Railroad Co.

      Suit by administratrix of deceased — For latter’s wrongful death— Deceased left no heirs but widow and her mother — Widow dies pending suit for damages — Proceedings revived by administrator de bonis non — According to Section 6135, Revised Statutes —There remained no statutory beneficiary — Not error to dismiss suit.

    On the 12th day of April, 1890, Mary Doyle as administratrix of the estate of John H. Doyle, deceased, brought suit against the railroad company to recover damages for wrongfully and negligently causing his death, and alleged that he left no children, but that she, Mary Doyle, became his widow, and was his only heir and next of kin. The cause was tried in the court of common pleas and the administratrix recovered a judgment. On proceedings in error, the circuit court reversed said judgment and remanded the case to the court of common pleas for further proceedings. Thereupon the administratrix prosecuted error in fhis court to reverse the judgment of the circuit court, and while the proceeding was pending in this court, said widow, administratrix, died. An administrator de bonis non was appointed and the proceedings were revived in his favor. On hearing, this court affirmed the judgment of the circuit court, and the cause was remanded to the court of common pleas for further proceedings, where the railroad company filed a supplemental answer and to which the plaintiff made reply.
    These pleadings show that the deceased widow, at the death of her husband, John IT. Doyle, was his sole heir and next of kin; that he left no children, or parents or their next of kin, but that he had some collateral heirs, and that the mother of said widow survived her.
    Field:That, according to the provisions of Section 6135, Revised Statutes, after the death of said widow, there remained no statutory beneficiary for whose behoof the action could b& maintained, and it was not error to dismiss the same for that réason.
    (No. 11567
    Decided November 30, 1909.)
    Error to the Circuit Court of Franklin county.

      On or about the 8th day of November, 1888, John H. Doyle, an engineer in the employ of The Baltimore & Ohio Railroad Company, was' killed in a collision. His widow, Mary Doyle, was appointed administratrix of his estate and she brought suit against said company to recover damages for wrongfully causing the death, of Doyle. His sole heir was the widow, Mary Doyle, they having no children.
    The case was tried in the court of common pleas and the administratrix recovered. The railroad company prosecuted error to the circuit court, and that court reversed the judgment of the court of common pleas on the ground that the verdict was not sustained by, but was manifestly against the weight of the evidence; the court holding that the negligence which caused the death of Doyle was that of a telegraph operator who was a fellow-servant of Doyle.
    To this .judgment of reversal, the administratrix prosecuted error in this court, to obtain reversal of the judgment of the circuit court and an affirmance of that of the court of common pleas.
    The petition in error was filed in this court on the 6th day of April, 1896, and while the case was pending here, Mary Doyle, widow and admin7 istratrix, died, and on motion of counsel, this court entered an order of revivor of the action in favor of James M. Ottinger, as administrator de bonis non of John H. Doyle, deceased. This order of revivor seems to have been formally made, but without contest, on June 22, 1897.
    Thereafter the cause was heard in this court on the petition ,in error, and the judgment of the circuit court was affirmed, and the case was remanded to the court of common pleas for further proceedings according to law. After the case again reached the court of common pleas, the railroad company obtained leave to file a supplemental answer, which was done, and that answer is:
    “The defendant, The Baltimore & Ohio Railroad Company, by way of supplemental answer to the original answer filed herein, avers that since the reversal of the judgment in favor of the plaintiff herein, heretofore réndered by this court, and while there was no judgment in favor of the plaintiff herein, the said Mary Doyle, who was the widow and sole heir at law and sole next of kin of the said John H. Doyle, deceased, died, leaving no heirs or next of kin entitled to any benefits of this action, and that there is now no statutory beneficiary entitled to receive any of the proceeds of this action. Wherefore this defendant asks that this cause may be dismissed and that it may go hence without day and recover its costs herein.”
    To this supplemental answer the following reply was filed: “The plaintiff, for reply to the supplemental answer of.the defendant, admits that since the reversal of the judgment in favor of the plaintiff herein, and while there was no judgment in fkvor of the plaintiff, the said Mary Doyle, who was the widow of the said intestate, died, but the plaintiff denies all and singular the other allegations of said supplemental answer. The predicate of this denial is the fact, that there was left surviving said Mary Doyle, her mother, her sole heir and next of kin, who is still living, and several collateral heirs and next of kin of said John H. Doyle, who are still living. Wherefore plaintiff asks judgment as in the petition.”
    To this reply the railroad company demurred and the court of common pleas sustained the demurrer. The plaintiff below not desiring to further plead, final judgment was rendered in favor of the defendant. On error, this judgment was affirmed by the circuit court.
    Error is prosecuted in this court to reverse both judgments.

      Mr. T. E. Powell and Mr. Selwyn N. Owen, for plaintiff in error, cited and commented upon the following authorities:

      Russell v. Sunbury, 37 Ohio St., 273; Coal Co. v. Smith, Admr., 53 Ohio St., 313; Coffman, Admr., v. Finney, Admr., 65 Ohio St., 61; Railway Co. v. Brooks, 81 Ill., 245; Thompson on Negligence, Section 7020; Sanders’ Admx. v. Railroad Co., 111 Fed. Rep., 708; Railroad Co. v. Bean, 94 Tenn., 388; Boyd v. Cambridge, 4 C. C., 519; Waldo v. Goodsell, 33 Conn., 432; Sections 4975, 5144 and 6135, Revised Statutes.

      Messrs. Booth, Keating, Peters & Pomerene; Mr. F. A. Durban and Mr. R. J. King, for defendant in error, cited and commented upon the following authorities:

      Railway Co. v. Van Alstine, 77 Ohio St., 395; Steel v. Kurtz, 28 Ohio St., 191; Davis v. Justice, 31 Ohio St., 359; Weidner v. Rankin, 26 Ohio St., 523; Russell v. Sunbury, 37 Ohio St., 372; Railway Co. v. Brooks, 81 Ill., 245; Conant v. Griffin, 48 Ill., 410; Railroad Co. v. Bean, 94 Tenn., 388, 29 S. W. Rep., 370; Railway Co. v. Lilly, 90 Term., 565, 18 S. W. Rep., 243; Loague v. Railroad Co., 91 Tenn., 458, 19 S. W. Rep., 430; Dillier v. Railway Co., 72 N. E. Rep., 271; Waldo v. Goodsell, 33 Conn., 432; Goodsell, Exr., v. Railroad Co., 33 Conn., 51; Sanders’ Admx. v. Railroad Co., 111 Fed. Rep., 708; Section 29, Thornton’s Annotated Civil Code of Indiana; Sections 283 and 284, Burns’ Annotated Indiana Statutes; Section 4569, Shannon’s Annotated Code of Tennessee; Sections 4975, 5144, 6134 and 6135, Revised Statutes.
   Price, J.

The original action in the court of common pleas was brought under favor of Sections 6134 and 6135, Revised Statutes. The ^ former section gives a right of action to the personal representative of a person whose death has been caused by the wrongful act, neglect or default of another, and the latter section prescribes for whose benefit the action may be brought and maintained, in the following terms: “Every such action shall be for the exclusive benefit of the wife, or husband and children, and if there be neither of them, then of the parents and next of kin of the person whose death shall be so caused; and it shall be brought in the name of the personal representative of the deceased person; and in every action the jury'may give such damages, not exceeding in any' case, ten thousand dollars, as they may think proportioned to the pecuniary injury resulting from such death, to the persons respectively for whose benefit such action shall be brought.”

Doyle, whose death was caused, left as his widow Mary Doyle, who became administratrix of his estate and as such brought the suit, but he left no children, and the action was for the sole and exclusive benefit of the widow, and there was a recovery in the court of common pleas. The circuit court reversed the judgment of the court of common pleas. The plaintiff brought error in this court and prayed for a reversal of the judgment of the circuit court and an affirmance of that of the court of common pleas. While the case was pending in this court, the plaintiff in error, Mary Doyle, the widow and administratrix, died, and the action was revived in the name of James M. Ottinger as the administrator de bonis non of estate of John H. Doyle, deceased, and on hearing in this court the judgment of the circuit court was affirmed, and the cause remanded to the court of common pleas for further proceedings. When the- case again reached that court, the railroad company, on leave given for that purpose, filed a supplemental answer, which appears in the statement preceding this opinion, to which a reply was filed, which also appears in said statement.

By these two pleadings, a new and important issue is made, not. so much an issue of facts as of law, for the demurrer to the reply challenges the right to further maintain the original action. The supplemental answer discloses the fact occurring in the history of the litigation, that after the judgment in the court of common pleas had been reversed and while there was no judgment in her favor, Mary Doyle, the widow, for whose exclusive benefit the suit was brought, died. In the absence of children, she, at the death of her husband, became his sole next of kin. This supplemental answer proceeds to say that aside from said widow, the husband left “no heirs or next of kin entitled to any of the benefits of the action, and that there is now no statutory beneficiary entitled to receive any of the proceeds of this action.” On this ground the railroad company asks that the action be dismissed and that it be allowed to go hence.

The reply admits the death of the widow while there was no judgment in her favor, but denies all the other allegations of the new answer. But the reply says, "The predicate of this denial is the fact that there was left surviving the said Mary Doyle, her mother, her sole heir and next of kin, who is still living, and several collateral heirs and next of kin of said John H. Doyle, who are still living. Wherefore plaintiff asks judgment as in the petition.” It is not alleged that John H. Doyle left either parents or their next of kin.

The lower courts held this reply bad on demurrer and we concur in the holding. We must not lose sight of the status of the case made in the original petition — that the action was for .the exclusive benefit of Mary Doyle, the widow. There were no children. If she had maintained the judgment she once recovered, and afterwards died before its collection, a very different question might appear. It might then be, as it is now claimed by plaintiff in error, on the present issue, that such judgment being valid in all respects, “is property,” and might for that reason pass to the mother or next of kin of the widow. But there was no judgment in her favor when she died, for the reversal of her judgment by the circuit court left her a mere right of action to be again prosecuted, and that is all she possessed respecting the action at the time of her decease. It is not such species of property as will, J under the provisions of the statute above quoted, ; pass to her heirs or next of kin — in this case to ) her mother. The mother of Mrs. Doyle, at one time was the mother-in-law of John H. Doyle, between whom there was no tie of consanguinity. It was a relationship by marriage with the daughter, and that only, and we cannot think that she has any legal connection with the cause of action created by the statute, or the right of action to enforce it. Until she realized on a judgment against the railroad company, Mrs. Doyle had nothing in the case -she could confer upon her mother or anyone else. The right of action in her favor must follow the statute, and we do not find her mother, or the collateral heirs of the deceased husband, mentioned in the statute as even possible J beneficiaries, on the facts conceded in the pleadings. Section 6135, supra, provides that where there is no wife or husband, and no children, the action shall be for the benefit (exclusive) of “the parents and next of kin of the person whose death shall he so caused.In this case, there was a widow but no children, so that the clause relating to the jight of “parents and next of kin” of the deceased husband has had no field for operation. The case was not brought for their benefit, and it cannot now be ^distorted into one in their favor. The “parents” spoken of are the “parents” of the person whose death shall be so caused, and not the “parents” of the widow of the one whose death is caused. This view of the case is advanced by a. later clause of the section as to the rule of damages, to-wit: “and in every action the jury may give such damages, not exceeding in any case ten thousand dollars, as they may think proportionéd to the pecuniary injury resulting from such death, to ‘the persons respectively for whose benefit such action shall be brought.”

We see in this that the legislature has circumscribed the right of action and fixed the bene•ficiaries as those who suffer pecuniary injury resulting from such death. The cause of action for the wrongful death of John IT. Doyle commenced to run at the time of his death, and the liability of the railroad company was to respond in damages for the exclusive benefit of Mary Doyle, widow, and the jury would be governed by the rule of the statute, and give her such • damages, not exceeding ten thousand dollars, as they should think proportioned to the pecuniary injury resulting from the death. There was but one cause of action in this case, and that is contained in the petition. The plaintiff has set up no new cause of action, and perhaps could not and be within the facts. So the plaintiff’s case is still one for the exclusive benefit of Mary Doyle, and she is now deceased. There is no surviving statutory beneficiary, and that is the meat of the proposition made by the supplemental answer. The reply to that proposition lifts the case above the level of doubt by pointing out the persons who, after the death of the widow and before judgment, would receive her mantle and claim to be afflicted with.some injury resulting from the wrongful death. Unfortunately there is no provision of the statute, that upon the death of Mary Doyle, the exclusive beneficiary in the suit, the right of action shall vest in some other next of kin of John 'Doyle, who at the time the cause of action herein accrued, had no interest in it.

Counsel for plaintiff in error would use the latter part of Section 6135, supra, as an argument supporting their contention. It authorizes the administrator appointed in this state to obtain the approval of the appointing court and settle with defendant before or after commencement of suit, as to the amount to be paid, and that the amount received by such personal representative, whether by settlement or otherwise, shall be apportioned among the beneficiaries, unless adjusted between themselves, by the court making the appointment in such manner.as shall be fair and equitable having reference to the age and condition of such beneficiaries, and the laws of descent and distribution of personal estates left by persons dying intestate.

Here the legislature is dealing with a bird in the hand and not one in the bush — in the hand, because what comes into the hands of the administrator is, by settlement or otherwise, the fruits of a final disposition of the cause of action, and in disposing of what has been received on settlement or recovery, the legislature. has vested large discretion in the court that made the appointment. But this clause of the section giving such discretion does not enlarge on the persons for whose benefit the action for causing death may be brought and maintained.

Another position has been taken and advocated for the plaintiff in error, in which-he claims that the plea made in the supplemental answer should have been made when the motion to revive the action was made and heard; and that inasmuch as no such plea was then made and no contest waged as to the right of revivor, it is now too late to make it. In the words of counsel the question is res judicata. We cannot subscribe to this view of what was involved in and determined by the order of revivor. Mrs. Doyle, administratrix, died after the circuit court reversed the judgment in her favor and while her petition in error was pending in this court. On suggestion of the death of the plaintiff in error, and nothing more, the proceeding here was revived in the name of an administrator de bonis non. That was all that was done or adjudicated. It was proper and necessary to further proceedings that another be made plaintiff in error, or rather that another personal representative of the deceased husband be substituted, in order that a proper disposition could be made of the case in this court. The substituting of this new party determined nothing as to the merits of the case.

Counsel for plaintiff in error seem to construe the supplemental answer as a demand for the abatement of the action because of the death of the original plaintiff in the action, and they cite Section 5144, Revised Statutes, to answer that demand. That section'reads: “Except as otherwise provided, no action or proceeding pending in any court shall abate by the death of either or both of the parties thereto, except an action for libel, slander, malicious prosecution, for a nuisance, or against a justice of the peace for misconduct in office, which shall abate by the death of either party.” It is urged that as this case does not fall in the class of cases “otherwise provided,” there can be no abatement in present action.

On the contrary counsel for defendant in error say: “We are not contending that the death of the plaintiff abated this action. We are not disputing the proposition that the death of a party does not abate a pending suit, except those referred to in Section 5144, and we do not claim this case is one of those special ones.” They rely, and so state, on the ground that there is no living statutory beneficiary since the death of Mary Doyle, widow, and that when there is no longer a statutory beneficiary, the action should not be further maintained and prosecuted. We think this is the correct interpretation of the supplemental answer, for if there is no longer a beneficiary, the suit is aimless and should for that reason abate. The matter pleaded is defensive rather than in abatement of the action or proceeding.

It would seem from the consideration of the entire record, that the statute having given the right of action in this case for the exclusive benefit of the widow, that right in her could neither ascend to her mother, or cross over, to the collateral heirs of her deceased husband, unless the statute so provides; and it does not so provide.

The judgment of the circuit court is

Affirmed.

Crew, C. J., Summers, Spear, Davis and Si-iaucic, JJ., concur.


author: Shauck, . J.

text:
    Bebout v. Quick et al.

      Donee amenable to doctrine of election — Claiming both under and against will — Does not make nor waive election, when — Lands rejected by donee under will — Still pass to his benefit, when.

    1. A donee amenable to the equitable doctrine of election, who in his pleading claims both under and against the instrument of donation, does not thereby either make the .election which the doctrine requires of-him, or waive his right to make it.
    2. When the proposed benefit rejected by a refractory donee is a devise of lands, they do not by his election to insist upon his proprietary right, become intestate property, but by operation of the equitable principle they pass under the will to the disappointed donee to the extent that may be necessary for his compensation.
    (No. 11284
    Decided November 30, 1909.)
    Error to the Circuit Court of Knox county.
    The record to be reviewed was made in the circuit court to which the cause had been appealed from the court of common pleas. Franklin Quick brought suit for. the partition of three tracts of land lying in Knox county, one of forty-one acres, one of twenty-five acres and one of fifteen acres. The parties were the five children and heirs at law of James and Lucina Quick, and the devisees of said Luc-ina. James had died intestate before the death of his wife, and at the time of his death he was seized in fee of the forty-one acre tract and the undivided one-half of the other tracts. Later Lucina had died testate and seized of the remaining half of the twenty-five acre tract and the fifteen acre tract. By her will she devised the twenty-five acre tract to her daughter Caroline Bebout "for life, with remainder in fee to the children of Caroline, and the terms of the devise embraced the undivided half of said tract which the testatrix did not, as well as that which she did, own. By the residuary clause she devised her half of the fifteen acre tract to -her four remaining children, not describing the tract, but devising it as “the rest of my real estate,” the devisees thereof being her children, Benjamin, James, Frank and Sarah. In the original petition it was claimed on behalf of the four children named in the residuary clause, that they were entitled each to one-fifth of the forty-one acre tract, and of the undivided half of the twenty-five acre tract which had descended to them on the death of their father, notwithstanding their mother’s attempt to devise it to Caroline, and also that they were each entitled to one-fourth' of their mother’s half of the fifteen acre tract which, by the residuary clause, she had devised to them excluding Caroline. Afterwards the four residuary devisees' in open court repudiated the will and disclaimed all interest in- the estate of Lucina as • legatees or devisees, but claimed that by that act of repudiation, their mother’s half of the fifteen acre tract became intestate property, and that they became entitled, under the laws of descent, each to one-fifth thereof as heirs at law of the testatrix; and, by leave of pourt, an amended petition was filed in accordance with that view. The plaintiff in error, Caroline, claimed an estate in fee in one-fifth of the forty-one acre tract and in one-tenth each of the twenty-five and fifteen acre tracts. She also claimed a life estate, under the will of her mother, in one-half of the twenty-five acre tract, and one-half of the fifteen acre tract. Upon this state of facts conclusively established by the record, the circuit court decreed to Caroline in fee one-fifth of the forty-one acre tract and one-fifth of the fifteen acre tract, and an estate for life, with the remainder in fee to her children, in one-half of the twenty-five acre tract. It also decreed to each of the residuary devisees in fee one-fifth of the forty-one acre tract, one-tenth of the twenty-five acre tract and one-fifth of the fifteen acre tract. The remaining one-tenth of the twenty-five acre tract does not seem to be included in the decree..

      Messrs. Waight & Moore, for plaintiff in error.

      Messrs. Owen & Carr, for defendant in error.
   Shauck, . J.

In the progress of the trial in' the circuit court, the principal defendants in error, who are the devisees named in the residuary clause of the will of Lucina ' Quick, became aware that they were not entitled to claim both under and against that instrument. The attempt of the testatrix by her will to give to Caroline, in fee, and to her children in remainder, the estate in the one-half of the twenty-five acre tract which the defendants in error had derived by descent from their father, and which was, therefore, beyond her power of disposition, in connection with the devise by her to them in the residuary clause of the same instrument of the undivided one-half of the fifteen acre tract which the testatrix did own, brings them within the equitable doctrine which requires them to elect between their rights in the twenty-five acre tract as established by the laws of descent and the donation in the fifteen acre tract which the will proposed to them. A familiar and apt statement of the doctrine to which they are amenable is: The owner of an estate having, in an instrument of donation, applied to the property of another expressions which, were that property his own, would amount to an effectual disposition of it to a third person, and having by the same instrument disposed of a portion of his own estate in favor of the proprietor whose rights he assumed, equity imposes upon that proprietor the duty of electing, either to relinquish the benefit conferred upon him by the instrument, if he asserts his own inconsistent proprietary right, or if he accepts that benefit, .to complete the intended disposition by conveying in conformity to it, that portion of his own property which it purports to affect.

The foundation of the doctrine is the intention of the author of the instrument. The intention extends to the entire disposition, for the attempt to dispose of the property of another, though ineffectual as a disposition, is clearly indicative of that intention. It is to prevent the frustration of that intention by the failure of any of its parts that in cases of this character the donee is required either to make good the attempted disposition of his property, or to relinquish the benefit proposed by the instrument. The doctrine has been repeatedly stated and illustrated in the decisions of this court. Huston v. Cone, 24 Ohio St., 11; Hibbs, Admr., v. Insurance Company, 40 Ohio St., 543; Corry v. Lamb, 45 Ohio St., 203. Brief consideration of the effect. of this doctrine when applied to the present case will answer the propositions submitted by counsel of the adverse parties. On behalf of the plaintiff in error it is said, that since the original petition proceeded upon the theory that the four residuary devisees were entitled each to one-fourth of the one-half of the fifteen acre tract which .the testatrix actually owned, and which she'devised by that clause, they became estopped to claim thereafter the interest in the twenty-five acre tract which they had previously derived by descent from their father. Bht by parity of reasoning it might be said that they thereby became estopped to claim under the residuary clause since in the original petition they insisted upon their right to' retain the interest in the twenty-five acre tract which they had derived from their father, notwithstanding their mother’s attempt'to devise it to Caroline and her children. What this doctrine required of them, is an election. By urging two inconsistent demands they did not waive either of them. Essential elements of estoppel are wanting. The pertinent doctrine is that of election which requires them to choose between the inconsistent rights. An estoppel might follow, but it cannot precede an election in such case. No election was made in the present case until the residuary devisees upon the trial disclaimed all interests and rights as devisees and legatees under the will of their mother. By that disclaimer they gave conclusive effect to their insistence upon their right to retain their interests in the twenty-five acre tract which had descended to them from their father, notwithstanding their mother’s attempt to devise it to Caroline and her children.

On behalf of the residuary devisees it is urged that since they have renounced all the provisions made for them in the will of their mother, the one-half of the fifteen acre tract of which she was seized in fee descended as intestate property, that is, one-fifth to each of them and one-fifth in fee to Caroline. This view appears to have been approved by the circuit court; at least, no other suggested view' would lead to the judgment under review. Conceding that, lands which are the subject of a devise, if it be rejected, will pass as intestate property when rights of - other beneficiaries under the will have not intervened, the equitable doctrine will not permit that result in the present case. The election is required, not for the benefit of the heirs at law, but for the beneficiaries of the donees of the property which the testatrix attempted, without right, to devise to them. By insisting upon retaining their interest in the twenty-five acre tract, the residuary legatees have become refractory, and the benefits offered them by-the will and rejected by them now pass by operation of the equitable principle referred to under the will to the disappointed devisees, Caroline and her children, to the extent that may be necessary to compensate them on account of the disappointment resulting from that insistence. What that extent is in the present case is admitted of record, since by their renunciation the residuary devisees and legatees have made the admission of record that all the benefits offered them by the will of their mother will not exceed the requirements of such compensation. The doctrine which appears to have been applied in the circuit court ignores the rights of those for whose benefit the election is required, and it would afford an easy method of defeating the doctrine.

In the further consideration of the case, it becomes evident that Caroline is herself amenable to the doctrine of election in favor of her children with respect to the one-tenth of the twenty-five acre tract which descended to her in fee upon the death of her father. It was in her an estate in fee, but the terms of her mother’s will limited it to a life estate in her with the remainder in fee to her children, and by the same instrument the mother gave to Caroline a life estate in the one-half of the tract which she did own. Under the rule already stated, her election to take under the will of her mother was a ratification of the mother’s attempted disposition to her children of an estate in remainder after the termination of Caroline’s life estate in the same tract. Therefore, by operation of this doctrine that interest of Caroline is limited to a life estate in her with the remainder in fee to her children. These observations, however, do not apply to the fifteen acre tract, for Lucira did not devise any interest in that tract, except by the terms of her residuary clause “all the rest of my real estate” which could include only the one-half of the fifteen acre tract which she did own.

Applying these views to the case, there is vested in Caroline an estate in fee in one-fifth of the forty-one acre tract, and one-tenth of the fifteen acre tract. There is also vested in her an estate for life, with remainder in fee to her children, in six-tenths of the twenty-five acre tract, and one-half of the fifteen acre tract. There is also vested in each of the four residuary devisees an estate in fee in one-fifth of the forty-one acre tract, and in one-tenth of the twenty-five acre and the fifteen acre tracts.

The judgment of the circuit court will be reversed, and the cause will be remanded to that court with instruction to enter a decree in accordance with this opinion.

Judgment reversed.

Crew, C. J., Summers, Davis and Price, JJ., concur.