author: Spear, J.

text:
    National Cash Register Company v. Cervone.

      Conditional sales — Vendor of property sold may retake only on repayment of portion of price paid — -Section 4155-3, Revised Statutes — Applies to mortgagee or purchaser from original vendee, when — Law of liens.

    X. The provisions of section 4155-3, as amended March 19, 1902, relating to conditional sales, are not confined to the original purchaser, but apply to a mortgagee or purchaser from such original vendee.
    2. Where there- has been paid on the contract of conditional sale an amount in excess of twenty-five per cent, of the purchase price, and the vendee has transferred his interest in the property by mortgage or sale, the vendor is not entitled to replevin the property so sold without first tendering to the mortgagee, or purchaser in possession, any amounts paid thereon less a reasonable compensation for the use of the property (not exceeding fifty per cent, of the amount so paid) and for any damage done to it while in possession of the vendee or his assigns.
    3. Where such property has been taken in replevin by the original . vendor without such tender the defendant is entitled to have adjudged to him as damages the amount which should have '.en tendered by the vendor.
    (No. 9839
    Decided February 26, 1907.)
    Error to the Circuit Court of Mahoning county.
    The controversy out of which this error proceeding arises was a replevin suit by the Cash Register Company to recover a cash register and damages for detention. It was begun in a justice’s court. A bond accompanied the affidavit in replevin, and the register was seized by the constable and delivered to the plaintiff. Judgment being rendered by the jus-_ tice, the cause was appealed to the common pleas.
    An answer having been interposed which put in issue the allegations of the petition in replevin, the cause was tried in the common pleas upon an agreed statement of facts which disclosed that, on April 4, 1902, one Willie Moore, a resident of Cleveland, by conditional sales contract, purchased of the Company a cash register at the price of one hundred dollars, payable twenty dollars on delivery and the balance in monthly installments of ten dollars each. The register was delivered to the purchaser at Cleveland, May 8, 1902, and a copy of the contract,with affidavit attached, filed with the recorder of Cuyahoga county. Subsequently divers payments were made by the purchaser amounting in. all to eighty-two dollars, after which, oh November 5, 1903, Moore, having removed to Youngstown, Ohio, gave a chattel mortgage on the register to one Huffman to secure payment of money loaned. Huffman took possession of the register, although he did not file the mortgage. January 24, 1904, the amount secured by the mortgage being unpaid, Huffman sold the register to Angelo Cervone, the defendant in error. Before suit the Company demanded of Cervone that he pay the eighteen dollars balance due or give up possession of the register. He refused to do either. No portion of the eighty-two dollars received by the Company from Moore was refunded or tendered by the Company to any one.
    Upon this state of facts the court found for the defendant, giving him a judgment for fifty-four dollars, the difference between that amount and eighty-two dollars, being found to be a reasonable compensation for damage and use, and this judgment was affirmed by the circuit court.' The Company brings error.

      Mr. William M. ■Zimmerman, for' plaintiff in error.

      In support of its contention, plaintiff in error seeks to establish the following points:
    1. Before the passage of the “conditional sales” statute the rule was, that the title to personal property sold “conditionally” remained absolutely and without restriction in the vendor, until fully paid for, and he could retake the property if unpaid for in whole or in part, either from the purchaser or from any other person having possession of it. This point is supported by the following authorities: Sage v. Sleutz, 23 Ohio St., 1; Sanders v. Keber, & Miller, 28 Ohio St., 630; Call v. Seymour, 40 Ohio St., 670; Case Manufacturing Co. v. Garven, 45 Ohio St., 289.
    2. The only inroad made on this firmly established rule is that made by the conditional sales statute. This point is conceded by every one.
    3. This inroad does not go to the extent of prohibiting a seller from taking the property, without making the 50 per cent, refunder from an assignee of the vendee.
    To establish this point calls for a full discussion of the “conditional sales” act and decisions thereunder. Section 4155-3, Section 2, Revised Statutes.
    The title of the act is as follows: “An act to regulate conditional sales.” Harris v. State, 57 Ohio St., 92; Burgunder et al. v. Weil et al., 60 Ohio St., 234.
    4 The title of an act, though no part of it, may be considered to explain its object and solve'what is doubtful; for, unlike acts of parliament, is it sanctioned by vote of the legislature. Lessee of Daniel Burgett v. Burgett, 1 Ohio, 469; Steamboat Monarch v. Finley, 10 Ohio, 384; Spiedel Grocery Co. v. Armstrong, Assignee, et al., 8 C. C., 489.

      As this is an act to regulate conditional sales, its provisions and benefits should be confined to those interested in the conditional sale; that is, to the original parties thereto, and not to third parties not contemplated in the original transaction. Its purpose is to impose restrictions and confer rights upon the parties to the sale, and not to create transferable rights to a succession of. outside parties.
    Being confined in its operation to the original contracting parties, can its provisions be extended by liberal construction to sub-purchasers ?
    It is apparent from decisions already cited that any rights of possession in a purchaser or his vendee, in case of breach of condition, are purely statutory and in derogation of the common law.
    Being therefore in derogation of the common law, how should the statute be construed; 26 Am. & Eng. Ency. Law, 2d Ed., 662; Felix v. Griffiths, 56 Ohio v. Griffiths, 56 Ohio St., 39. Established common law principles are not deemed abrogated in applying a statute unless clearly so intended. Krause et al. v. Morgan, 53 Ohio St., 26-42; State ex rel., v. Board of Education, 8 N. P., 186; P. C. C. & St. L. Ry. Co. v. Cox, 55 Ohio St., 497.
    Restrictions in an act in derogation of the common law are construed'against the right created by the act. P. C. C. & St. L. Ry. Co. v. Hine, Admx., 25 Ohio St., 629.
    Section 4155-4, Revised Statutes, makes the conditional sales statute a penal one, and it must, therefore, be strictly construed. Hall v. State, 20 Ohio, 7.
    If either Cervone or Huffman is to be put unde? the protection of the statute, it would be a plain “extension by implication,” because neither Cervone • (an assignee) nor Huffman (a mortgagee) is included in the statute. Speyer & Co, v. Baker. 59 Ohio St., 25.
    As intimated by the court, the statute is for the protection of the purchaser. The general restriction on the rights of the vendor should, therefore, be limited to the original purchaser. Goodall v. Gerke Brewing Co., 56 Ohio St., 257.
    The purpose of the statute being for the protection of the original purchaser, its provisions should not be applied to a possible succession of third interests, in which an attempt to make an “equitable adjustment” would be both absurd and impossible.
    A transferee of a. chattel does not (ipso facto) become clothed with the contractural rights of his assignor in regard to the thing transferred.
    This rule is elementary and applies to rights created by statute and read into the contract, as well as to stipulations of the parties, such as warranties, guarantees, etc.
    The goods may be assigned,, but the assignee takes them with full knowledge of the vendor’s rights under the contract, that is, to retake immer diately upon default. He runs his chance of having this right enforced against him, when he negotiates with the original purchaser for the goods.
    It will be. noted that the original statute did not include the assigns of the vendor, whereas the amended statute does include the assigns of the vendor. It will also be noted that the original statute did not include the assigns of the purchaser, neither does the amended statute include the assigns of the purchaser.
    In amending this statute, the legislature expressly added to the vendor the words “or his assigns.” The fact that they did not add these same words to the purchaser, clearly indicates that the legislature intended to exclude the assigns of the purchaser from the benefit of this statute. Moreover,, the amended statute adds the words “or any party re-receiving the same from .the vendor,” thus making it absolutely certain that the vendor need only tender the money to the original party (if the original party is in possession), whether he be known as purchaser, lessee, renter, hirer, or by any other name.
    It is only by force of the statute that the original vendee can claim a refunder. Before the statute and without it, even he could not claim any refunder. The vendee of the original purchaser or the assignee of the original purchaser, can not claim any refunder, because the statute does not include him.
    If this reasoning is sound, the National Cash Register Company was excused from making any tender to Cervone, who bought the register from Huffman, who got it on an unrecorded chattel mortgage from Moore. '
    It appears that Section. 4155-3, as originally passed, was meant for the protection of the original purchaser, and it is clear that neither Huffman nor Cervone have paid anything on the original contract to the Company. The Company has never received any money from Huffman nor from Cervone. Why should it “refund” any money to either one of them? Moreover, when both Cervone and Huffman acquired their interests in the property, they had notice from the filing of the contract, both in Cleveland and in Youngstown, that the property belonged to the National Cash Register Company.
    In Albright v. Meredith, 58 Ohio St., 194, thvendor sought, by levy, to take the register from the original vendee. Therefore the court held that the vendor should have made a refunder. In the case at bar the vendor is seeking to take the property from an assignee of a mortgagee of the vendee. There is therefore a wide difference between the cases. Moreover, in Albright v. Meredith, the vendor by its judgment and execution had “elected to treat the register as Morrow’s (the original vendee’s) property.”

      Mr. W. J. Williams, for defendant in error.
    There are only two questions to be determined in this case.
    First. Aré the provisions of Section 4155-3 restricted to the original vendee under a contract of conditional sale, or do they also apply to an assignee or vendee of the original vendee ?
    ' Second. Should the amount to which a vendee is entitled under said Section 4155-3 be awarded to him as damages when the property is taken in replevin at the suit of the vendor without the vendor having tendered back any part of the purchase price ?
    There is no dispute as to the common law rights of vendor and vendee under a contract of “conditional sale” before the enactment of Sections 4155-2 and 4155-3. There was then no question as to the right of the vendor upon default in payment of the purchase price under a contract . of “conditional sale” to retake the chattel either from the original vendee or from a bona fide purchaser from the original vendee; and until the enactment of said statutes the vendee under such a contract acquired no title which he could either sell or mortgage; but since the enactment of said statutes this court has decided the case of Albright v. Meredith, 58 Ohio St., 194. In that case the contract involved contained exactly the same conditions as the one in this case, and it necessarily follows that if the • vendee acquires an interest which he can mortgage, that interest he can also sell, and on this question we think no further authority is needed than the case cited above. If by our “conditional sales” statutes, no one other than the original vendee can acquire any title to property sold under a contract of “conditional sale,” then the rights of third parties are no greater than they were before the enactment of these statutes, but this can not be true under the holding in Albright v. Meredith, cited above, or else no mortgagee of the original vendee could acquire an interest in property so sold, and therefore the original vendee could have no right or interest in the property which he could mortgage.
    The second question has been decided by this court in Speyer & Co. v. Baker, 59 Ohio St., 11.
    By these two decisions the law of this case has been estabished in Ohio, and in them the court has rendered effective the provisions of the statute, not as an “inroad upon the rights” of any one as suggested by counsel of plaintiff in error, but rather as a wall built broad and high across the well-beaten path to legal robbery long traveled with impunity by the “installment” companies of this state; a protection to all who enjoy the privilege of paying two prices for property by the “installment” plan, whether the unfortunate original purchaser, or the third party to whom necessity may have compelled him to sell 'before the entire purchase price has been paid. Of course it is conceded that the reputation and methods of doing business of the plaintiff in error as compared with the average “installment” company are as an “Angel of Light” to the “Prince of Darkness,” yet it is a well known fact that their goods sell on the installment plan for almost double what they will sell for cash.
   Spear, J.

We are of opinion that the judgments of the lower courts are right and will endeavor briefly to state the ground for this conclusion.

Prior to the passage of the conditional sales statute of May 4, 1885 (82 Ohio Laws, 238), the title to property so conditionally sold remained absolute in the vendor until the purchase price should be fully paid; and he. might retake the property if any part of the purchase money remained due and unpaid either from the purchaser or any person having possession of it. That act (incorporated in Bates’ Annotated Statutes as Section 4T55-3) provided that it should be unlawful for the vendor or his agent, etc., to take possession of the property without tendering or refunding to the purchaser, or party receiving the same, the sums so paid after deducting a reasonable compensation, not exceeding fifty per cent, of the amount paid, unless the property had been broken or damaged, and in such case a reasonable compensation for such damage to be allowed. It further provided, in a separate section, that any violation should be deemed a misdemeanor punishable by fine. Section 4155-3 was amended March 19, 1902 (95 Ohio Laws, 6a), and reads as follows:

Section 4155-3. ' “(Vendpr of property conditionally sold may not retake possession without repaying certain part of price paid; exception.)

“Whenever such property, except machinery equipment and supplies for railroads and contractors, and for manufacturing brick, cement and tiling, and for quarrying and mining purposes, is. sold or leased, rented, hired or delivered, it shall be unlawful for the persons who so sold, leased, rented, hired, delivered, or his assigns or the agent or servant of either their agent or servant to take possession of said property, without tendering or .refunding to the purchaser, lessee, renter, or hirer thereof or any party receiving the same from the vendor, the sum or sums of money so paid after deducting therefrom a reasonable compensation for the use of such property, which shall in no case exceed 50 per cent, of the amount so paid, anything in the contract to the contrary notwithstanding, and whether such condition be expressed in such contract or not, unless such property has been broken, or actually damaged, and then a reasonable compensation for such breakage or damages shall be allowed. Provided, that the vendor shall not be required to tender or refund any part of the amount so paid unless said amount so paid to the vendor exceeds 25 per cent, of the contract price of the property.”

The noticeable changes effected by the amendment are the provision that “machinery, equipment and supplies for railroads and contractors, and for manufacturing brick, cement and tiling, and for quarrying and mining purposes,” are excepted from the operation of the statute; also that the words “or his assigns” follow the words descriptive of the vendor in the original section; also that the words “from the vendor” are incorporated as new matter after the words “receiving the samé” in the original section. The proviso with which the section concludes is not of importance in this inquiry.

It does not seem to be contended by counsel for plaintiff in error that under the statute as it existed prior to the amendment the position assumed by him here could be maintained, but it is contended that the changes in the statute above referred to,' and which are given in italics, show that the legislative purpose’was not to change the common law rule to the extent of requiring the vendor to make the refunder specified in the statute where the property had been sold or assigned by the original purchaser to another, but in such case he may retake the property without condition so long as anything remains due on the original purchase. In other words the contention is that the tender of money need only be made, to the original purchaser, if in possession, and need not be made to any subsequent purchaser, although in possession. Counsel invoke the well-known rule of construction that statutes in derogation of the common law are to be strictly construed, and should not be extended beyond the plain import of the words used. This plain import, say the counsel, is that the provisions and benefits of the act should be confined to those interested in the conditional sale, and not to third parties not connected with the original transaction, the purpose being to impose restrictions and confer rights upon the original parties to the sale, and not to create transferable rights to a succession of outside parties.

There is plausibility in these propositi.ons standing alone. But, without' here entering upon a discussion as to their soundness, we are of opinion that they lose sight of and override the effect of that rule of the common law, as well established as any other, that in the absence of valid contract obligation or plain statutory provision to the contrary, ownership of property, whether it be absolute or qualified, carries with it the power of disposition, 'and this necessarily implies the acquisition by the purchaser by virtue of the sale of all the rights of the vendor. Otherwise the ownership of property is shorn of one of its most essential and valuable qualities. Effect can not be given to the proposition of counsel without impinging upon, indeed denying, this valuable property right, and the purpose of a statute to accomplish this result should not be presumed unless such purpose is clearly expressed in the statute itself. We look in vain in the language of the section under review as amended for the plain expression of any such purpose. Of course the exception incorporated in the amended section served no other purpose bearing on intent than to indicate that'the general assembly regarded that exception as affording one sufficient reason for some amendment. The same may be said of the proviso. The incorporation of the words “or his assigns” gives no right to the vendor that the common law rule would not afford, and the omission of like words applicable to the' purchaser does not deprive him of any right which the same rule of the common law would bestowj while the words “from the vendor” are at most equivocal and do not appear to be conclusive of an intent to require that the reception of the property referred to should be directly from the vendor rather than through another. Albright v. Meredith, 58 Ohio St., 194, is authority for the proposition that “one in possession of chattel property under a contract of conditional sale, who has paid a part of the purchase money, has acquired an interest in the property which may be mortgaged,” and in the opinion it is held that the “mortgage was good as to all the world save the vendor, and good against it save only when it asserted its right in accordance with law.” The cases of Standard Steam Laundry v. Dole, 61 Pac. Rep., 1103 (Utah); Myres v. Yaple, 60 Mich., 339; Barton v. Groseclose, 81 Pac. Rep., 623 (Idaho); Kimball Company v. Mellon, 80 Wis., 133, and Ross-Mehan Brake Shoe Foundry Company v. Pascagoula Ice Company, 72 Miss., 609, although relating to the rights of the vendor rather than those of the vendee, are consistent with the ruling in the Al-bright case and in reasoning support it, it being held in the last above-cited case that “the reservation of the title is but as.security for the purchase price, and if the property is recovered by the seller, he must deal with it as security, and with reference to the equitable rights of the purchaser. Being but a security for the payment of money, the benefit thereof, follows the debt when assigned, as an incident thereof.”

In the case at bar, as in the Albright case, a mortgage was executed by the original purchaser, though in this case with possession. It being thus shown that Moore acquired an interest which might be mortgaged, it would follow that, in the absence of a plain provision of statute to the contrary, the mortgagee would acquire the property rights of the mortgagor, and such rights he might sell, which he did in this case. Authorities are abundant, if any are needed, that statutes regulating or restraining the disposition of private property are in derogation of common right, and must be construed strictly. 26 Am. & Eng. Ency. of Law, 662, and authorities cited.

In this condition of legislation it will conduce to an understanding of the proper result to consider the general intent and purpose of the statute. This is declared in Speyer & Co. v. Baker, 59 Ohio St., 11, opinion by Williams, J., thus: “Purchasers on this plan are usually persons of small means, and unable to pay except in installments; and such sales are, partly on that account, made at prices in excess of those charged in other cases. Payment of part of the installments may amount to more than the actual worth of the property; and, on account of the unconscionable advantage which the vendor would otherwise have, by taking the property and retaining the money paid, the legislature deemed it proper to adopt the equitable rule of adjustment prescribed by the statute.” The statute referred to is the section as it stood before the amendment of March 19, 1902, and the holding as to the point here in consideration is this: “Where a purchaser at such sale has made payments on the property, he is entitled to its possession, though in default as to other installments, until there shall be refunded or tendered back the amount so paid, less a reasonable compensation for the use of the property and for any damage done to it while in his possession; and the amount which he is so entitled to have refunded should be awarded him as damages when the property is taken in replevin at the suit of the vendor.”

Inasmuch, however, as we have found that the amendment makes no material change respecting the point at issue, we see no reason why the above holding, in connection with the Albright case, does not practically dispose of the controversy in the case at bar. . •

The judgments of the courts below will be

Affirmed.

Price, Crew and Summers, JJ., concur.


source: Caselaw Access Project

author: Summers, J.

license: Public Domain

text:
    No. 10126.
    No. 10127.
    Friend v. Levy. Bing v. Bing.

      Law requiring equal operation to be constitutional — Cannot be given unequal operation by an amendment — Or by an exception in repealing statutes — When act of legislature is repealed without saving clause — Stands as though it had never existed — Except as to transactions past and closed — Section 79, Revised Statutes — Effect of amendments and repealing statutes — Interpretation of statutes — Conflict of laws.

    1. A law that must have an equal operation to be constitutional cannot be given an unequal operation by an amendment or by an. exception in a repealing statute; either the subsequent statute or so much of it as would have that effect is void.
    2. A general rule of interpretation of statutes is, that when an act of the legislature is repealed without a saving clause, it is considered, except as to transactions past and closed, as though it never had existed. This rule is largely superseded by Section 79, Revised Statutes, which provides that: “Whenever a statute is repealed, or amended, such repeal or amendment shall in no manner affect pending actions, prosecutions, or proceedings civil or criminal, and when the repeal or amendment relates to the remedy, it shall not affect pending actions, prosecutions, or proceedings, unless so expressed; nor shall any repeal or amendment affect causes of such action, prosecution or proceeding, existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act,” but one legislature cannot prescribe binding rules for the interpretation of the statutes passed by a subsequent legislature and while in the absence of anything in a statute indicating a different intent the legal presumption is that the legislature intended the statutory rule to apply, yet when it clearly manifests a different intention the statutory rule does not apply.
    3. The exception, as to estates in which the inventory had already been filed, in the act of April 2, 1906, 98 Ohio Laws, 229, repealing the inheritance tax law, would give the law an unequal operation and is therefore void.
    4. It clearly appears that Section 79, Revised Statutes, was not intended to apply to the repealing act and the right to collect such taxes terminated when that act took effect.
    (No. 10126
    Decided February 26, 1907.)
    (No. 10127
    Decided February 26, 1907.)
    Error to the Circuit Court of Hamilton County.
    These suits were instituted to obtain a construction of the act repealing what is known as the inheritance tax law. In the first case the decedent died testate, October 8, 1905. On November 7, 1905, an inventory and appraisement that had been made as provided by Section 6023, et seq., Revised Statutes, relating to executors and administrators, was filed in the probate court, November 17, 1905, the executors made application to the probate court as provided in the inheritance tax law, for the appointment of appraisers to make an inventory and appraisement of all the property of the decedent, including the real estate. The appraisers were appointed and returned an inventory and appraisement to the probate court on November 25, 1905, and the probate judge reported the same to the auditor of state. The petition, after reciting the above facts, avers that the probate court has not determined the value of said property or that it is subject to the inheritance tax, but that the probate judge, the auditor of state, and the executors claim that it is subject to such tax, and that unless restrained the probate judge will proceed to fix the amount of the tax, and that the executors will pay it to the auditor of state, notwithstanding the repeal of the statute.
    In the second case, the decedent died testate, November 14, 1905. On December 22, 1905, the will was duly probated, and the executors qualified. Prior to May 8, 1906, no inventory or appraisement was made or filed in the probate court, but on that day one was filed as provided by Section 6023, et seq., Revised Statutes. The petition then avers, substantially as in the first case, that the claim is 'made that the property is subject to the inheritance tax, and an injunction is prayed for.
    In each case a general demurrer was filed, sustained, and the petition dismissed, and on error in the circuit court the judgment was affirmed.
    (No. 10126.) Messrs. Burch & Johnson; Mr. David Davis; Mr. W. W. Boynton and Mr. James 0. Troup, for plaintiff in error.
    (No. 10127.) Messrs. Burch & Johnson; Mr. David Davis; Mr. W. W. Boynton; Mr. R. B. Murray and Mr. James O. Troup, for plaintiff in error.

      Mr. Wade H. Ellis, attorney-general, and Mr. Roscoe J. Mauck, for defendants in error in both cases.
    Brief of Mr. Troup.

    The controversy in each case grows out of the statute repealing the inheritance tax law of 1904. The repealing act was passed April 2, 1906.

      The exact questions in dispute are:
    1. Does the repeal relieve from the tax any estates in which the decedent died prior to its passage?
    2. If so, does the relief extend as well to estates in which an inventory was filed before the repeal as to those in which an inventory was not so filed ?
    If the first question shall be answered in the negative, the second becomes of no consequence. If answered in the affirmative, the second question becomes vital in the Friend case, unless the last clause of the repealing act shall be held invalid.
    In the able brief of the attorney-general he states as his first proposition that “the act either repeals the law, or is unconstitutional.” He refers, of course, to the act of April 2. We can not believe that his meaning is as broad as his statement. He must mean that the last clause only is unconstitutional. Otherwise he does violence to-the very common doctrine that part of a statute may be constitutional, and the remainder unconstitutional, and if the parts can be separated without destroying the efficacy of the part which is not obnoxious to the constitution, that part will stand.
    In our view of the case it is immaterial whether the last clause of the repealing act is or is not obnoxious to the constitution. The legislature could repeal the inheritance tax law, and has repealed it, whether the last clause of the repealing act is valid or invalid. If it is unconstitutional, we have, in what precedes it, an unqualified repeal of the inheritance tax law, unless it be qualified by the last clause of Section 79, Revised Statutes. The attorney-general concedes that if it were not for Section 79 an •unqualified repeal of the inheritance tax law, including the remedies which it prescribed, would cut off the right and power of the state to collect any taxes under it. The contention is that all right and power of the state to collect the tax ceased on the passage of the repealing act.
    In so stating the proposition, we, of course, assume the last clause'of the act to be invalid.
    Section 79 saves three things from the operation of unqualified .repealing acts. They are:
    1. Pending actions.
    2. Remedies in so far as they relate to pending actions.
    3. “Causes of such action * * * existing at the time of the repeal.”
    To avoid confusion of thought, let us inquire first what a cause of action is, and, second, when it accrued under the inheritance tax law. A cause of action is more than an obligation, however strong the obligation may be. A cause of action always implies an obligation, but an obligation does not necessarily imply a cause of action. 5 Am. & Eng. Ency. Law, 2d Ed., 776; Bouvier’s Law Dictionary, Vol. 1, 247.
    Under none of the definitions cited by the foregoing authorities had a cause of action accrued under the inheritance tax law, at the date of its repeal, against either the Bing estate or the Friend estate. True, the first section of that'law declared that, “Such taxes shall become due and payable immediately upon the death of the decedent, and shall at once become a lien upon said property.” But it does not follow that the lien could be immediately enforced or the tax at once collected. A promissory note payable on or before one year from date and secured by mortgage is payable at any time, and the debt is a lien on the mortgaged property, but it will not be claimed that a cause of action oh either note or mortgage exists until a year from their date.
    In fact, the second section of the inheritance tax law precluded any right of action to enforce payment of the tax under eighteen months from the date of the death of the decedent.
    From the language of said Section 2 it' clearly appears that before an action could be brought, that is to say, before a cause of action accrued, eighteen months must have elapsed after the death of the decedent, the auditor of state must have notified the attorney-general in writing and the latter must have issued his instructions to the prosecuting attorney of the proper county. All these and one other thing preceding all of them must have occurred before a cause of action for the enforcement of the tax: could exist. There must have been an appraisement of the estate. Otherwise it was impossible to determine whether there was even an obligation on the part of any person to pay an inheritance tax, much less a present right in the state to enforce collection, The right to succeed to, or inherit property under three thousand dollars in value was exempt from taxation. Only an appraisement of the estate could determine either-the existence of an obligation to pay, or the amount of the obligation if it existed. The appraisement could be had in either of two ways, by the inventory under Section 6023, Revised Statutes, or by the method prescribed in Section 9' of the inheritance tax law.

      Brief of Messrs. Burch & Johnson.

      ° It is conceded that the Inheritance Act of 1904 has been absolutely repealed, but it is insisted that Section 79, Revised Statutes, is to be read into and considered a part of the act repealed.
    Section 79, Revised Statutes', is by its terms made applicable to the state of Ohio only in criminal prosecutions. There are no other supposable instances in which the state could be affected by so general a statute.
    There is no express language of Section 79, Revised Statutes, making the same applicable to any pending actions or proceedings of the state. There are no remedial statutes by which the state is bound, apart from criminal statutes, nor are there any causes of such action existing either in favor of or against the state.
    Section 13, Revised Statutes of the United States, by apt language, preserves to the government all penalties, forfeitures and liabilities incurred by others to the government under any statute which imposes them in favor of the government, notwithstanding the repeal thereof. It required such direct provisions to preserve governmental rights, which would otherwise have been lost. Their absence in the statute under consideration is conclusive that such rights were not intended to be preserved thereby.
    Had the repealing act in question contained the proviso, “That such repeal shall in no manner affect the collection of taxes by the state from all estates in the process of administration at the time of such repeal,” it might be conceded (but only for the present argument) that the repealed law would still be in operation for the collection of all taxes theretofore fixed and determined by the court as due thereunder. It is sought to give a like effect to the act of April 2, 1906, by incorporating therein the provisions of Section 79, Revised Statutes.
    Counsel then cite and comment upon: Commonwealth v. Desmond, 123 Mass., 407; Tobin & Neary v. Hartshorn, 69 Ia., 648; State v. Water-ville Savings Bank, 68 Me., 515; Clapp v. Mason, 94 U. S., 589; Bruce, Treas., v. Cook et al., 136 Ind., 214; State v. Barlow, 70 Ohio St., 363; State v. Cincinnati Tin & Japan Co., 66 Ohio St., 182; Desty on Taxation, Vol. 1, Sec. 6, p. 9; Mitchell v. Board of Trustees, 71 N. C., 400; McQuilkin v. Doe, 8 Blackford, 581; Rinard v. Nordyke, Treas., 76 Ind., 130; Gorley v. Sewell, 77 Ind., 316; Flanigan v. Sierra County, 196 U. S., 553; Blackwell on Tax Titles, Sec. 1048; Lewis’ Southerland Statutory Construction, Sec. 282; Gull River Lumber Co. v. Lee et al., 7 N. Da., 135.

      Mr. Davis cited and commented upon the following authorities:

      State, ex rel., v. Trustees of Crane Township, 71 Ohio St., 496; Lewis v. Eutsler et al., 4 Ohio St., 354; Act of April 2, 1906, 98 O. L., 229; Section 79, Revised Statutes.
    Brief of Mr. Boynton.

    We claim that the Act of April 2, 1906, repealing the direct inheritance tax law, passed April 25, 1904 (97 O. L., 398), relieves existing estates, legacies and devises from the payment of the inheritance tax in all cases where the inventory of the estate had not been filed at the date of the passage of the repealing act, and where eighteen months from the death of the decedent had not elapsd at the date of its passage. The repealing act provides, “That the act entitled ‘An act to impose a tax upon the right to succeed to, or inherit property,’ passed April 25th, 1904 (97 Ohio Laws, 398-400), be and the same are hereby repealed, except as to estates' in which the inventory has already been filed at the date of the passage of this act.” Passed April 2, 1906 (98 O. L., 229). This language exempts from the tax all estates except those enumerated unless the exemption is defeated by Section 79, Revised Statutes. ’ The claim that Section 79, Revised Statutes, defeats the exemption, utterly ignores the plain meaning and intendment of the clause “except-as to the estates in which the inventory has already been filed at the date of the passage of this act,” and, besides, gives án effect to Section 79 wholly unauthorized by its language. The first and second clauses of this section have no bearing on the question under discussion because they relate wholly to “pending actions, prosecutions and proceedings.” , An action to collect the tax would not, ordinarily, at least, be pending except in, a.case where the inventory had been filed, and an action brought to collect the,tax; and the right to the tax where the inventory has been filed is expressly reserved to the state by the repealing statute, and is also saved to the state if an action was pending for the collection at the date of the repealing act. The question therefore resolves itself into the inquiry whether the last clause of Section 79 saves the tax to the state in cases where the inventory of the estate was not filed in the probate court prior to the passage of the repealing act.

      We respectfully submit that this inquiry must be answered in the negative. The clause, “Nor shall any repeal affect causes of such action, prosecution, or proceeding existing at the time of such repeal unless otherwise expressly provided in the repealing act,” applies only to cases where the right of cause 'of action is.mature, and where suit may be at once brought for its enforcement. “The cause of action, prosecution, or proceeding” does not exist until the point of time when the action, prosecution or proceeding may be commenced and an action brought upon the claim sought to be enforced. “An action is the process by which a right is enforced” (Sander’s Justinian, 48), and a cause of action can not exist until the right to such process may be resorted to. A demurrer certainly would lie to a petition that sought to recover a judgment upon a promissory note not yet due upon the ground that the petition did not state facts sufficient to constitute a cause of action; and the ground of the demurrer would be that it appeared from the face of the petition that the note was not due. A cause of action, ex vi termini, implies a cause upon which action may be taken or suit brought in a court having jurisdiction to give judgment upon it. An unmatured claim is not a cause of action. It ripens into one, when, and not until, the time arrives at which an action may be brought to collect or enforce it. This proposition ought not to require more than a mere statement to secure an acceptance of its correctness. The inheritance tax law, 97 O. L., 399, Section 2, expressly extends the time for the payment of the inheritance tax until the expiration of eighteen months “after' the death of the decedent,” requiring the executor, administrator or trustee charged with the payment of the tax, to pay interest on the tax at the rate of six per cent, after the expiration of twelve months from the death of the decedent. Hence there can be no cause of action until eighteen months have elapsed. It is true that Section 1 of the inheritance tax law declares “that such taxes shall become due and payable immediately upon the death of the decedent, and shall at once become a lien upon said property.” This language, considered in connection with the subsequent sections of the act, was clearly not intended to give a right of action for its collection, at once, but to authorize the executor, administrator or trustee to pay the tax and sa\re the discount of one per cent, per month provided by the last clause of Section 2, when payment is made prior to the expiration of one year from the death of the decedent. To say because of the language that “such taxes shall become due and payable immediately” that a cause of action exists for their collection, is to hold the subsequent provisions extending the time for the commencement of the action until eighteen months have expired nugatory and inoperative. The statute expressly námes the time at which an action may be brought for the recovery of the taxes, and definitely extends it for the period of eighteen months, charging interest for the last six months. Consequently there is no condition or state of circumstances for Section 79 to act upon, as there is no “pending action, prosecution or proceeding,” nor any cause of action, prosecution, or proceeding until after the expiration of eighteen months from the death of the decedent, whose estate is being administered.

      Brief of Mr. Murray.

    This court has determined that the General Assembly has power to impose an inheritance tax, in State, ex rel., v. Ferris, 53 Ohio, St., 314, and has substantially determined by a majority opinion that the direct inheritance tax provided for by Sections 2731-18, et seq. (97 O. L., 398) is not'inhibited by the Constitution. See State, ex rel., v. Guilbert, Auditor, 70 Ohio St., 229.' We will not enter into discussion in this case of the binding force and validity of the Act of 1904, but confine ourselves to the effect of the repealing Act of 1906.
    It appears that the filing of the “inventory” provided by the general administration statutes is the initial step which brings the state within the remedial features of the statute.
    The inventory and appraisement is that from which the probate court and the auditor of state learns as to what property of the estate has descended by the death of the decedent, either by will or the law of descent, and the copy thereof transmitted to the auditor of state as the beginning point of his jurisdiction to collect any tax upon the right to succeed to it.
    In the repealing act the word “inventory” is used and refers to the inventory mentioned in the general administration acts and which is the same inventory mentioned in Section 6 of the Act of 1904.
    In considering the effect of the exception in the repealing statute we will be aided by the rule ex-pressio unius est exclusio alterius. This rule is No. 64. Black on Interpretation of Laws, 146; Endlich on Interpretation of Statutes, Sec. 399.

      The converse of the above rule is also well established, and is stated in 26 Am. & Eng. Ency. Law, 605.
    Thus the exclusion or exception from the operative effect of the repeal .of all estates having filed an inventory, pperates to include within the effect of the repeal'all estates not having filed an inventory.
    As to effect of repeal, Endlich on Interpretation of Statutes, Section 478, lays down the rule.
    And we are not unmindful, in calling attention to ' the above rule, of the provisions of Section 79, Revised Statutes, of which we shall speak hereafter, as to its bearing, if any, upon the questions in this case.
    Another matter to be kept constantly in view in the consideration of the questions involved in this case is that it has reference to. the, imposition of a tax in favor of the state which, under the law, is the real party to this case, through the auditor of state. And the state is acting for itself in the passage of the- law in reference thereto, and it is un1 der the Act of 1904, the beneficiary; and under the Act of 1906 repealing the the Act of 1904, it is ácting in its sovereign capachy with reference to its own rights. For what the legislature does within its constitutional limitations, the state does, and when it repeals acts relating to taxes it is the state acting with regard to the same, and no refinement of words or circumlocution can make it otherwise.
    The state, through its legislature had the right to excuse its-citizens from the payment of any tax, which it had a right to collect. It had the right to remit in whole or in part any tax. It had the right to say, We will not take this tax upon the right to inherit property any longer. Such taxes as have not been paid are no longer required to be paid. Such taxes, the amount thereof that has not been determined, no proceedings shall be taken to determine the same, and all proceedings relative to the determination of the same shall be repealed. The state had the right through its legislature to prohibit the collection of any vested interest that may have accrued under any statute. -In this repealing statute we have the party to be beneficially interested by the provisions of the statute saying that it will not accept the benefits provided by the statute from any estate in any situation it may provide for. We have the state of Ohio passing a law with reference to its conduct toward its own citizens, evidencing thereby its intention not to accept or require the payment of the inheritance tax from any estate that has not already filed an inventory.
    . The sovereign state of Ohio, over and above and beyond its citizens and subjects has said thus far and thus far only will I insist upon any rights which I might have had under the previous statute; and I will proclaim it to them in a statute, and in that statute it proclaimed that it would no longer burden any class of citizens named in it with the' tax imposed by the Act of 1904, and I will stop it here, to-wit: All estates that have not filed an inventory in accordance with the previous statute shall forever be absolved from any obligation under that statute.
    The question may be asked, What is your answer to that portion of Section 79, Revised Statutes, which says:
    “Nor shall any repeal or amendment effect (affect) causes of such actions, prosecution, or proceeding, except at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act.”
    Grant for the sake of the argument, that there is a cause of action or proceeding existing at the time of such repeal in favor of the state, it is expressly provided by the repealing statutes, what causes of action or proceeding shall survive the statute; for it expressly provides that such causes of action or proceeding shall survive the repeal, as existed against such estates as have filed an inventory. There ar'e only two classes of estates, one in which an inventory has been filed, and one in which an inventory has not been filed. The statute says the repeal shall affect all causes of action or proceeding, except against such estates as have filed an inventory. .Is it not “otherwise expressly provided in the repealing act, what causes of action or proceeding shall be reserved from its provision,” and having expressed what shall survive, it is an expression that causes of action or proceeding against those estates in the other class shall not survive; and if there ever was an instance where the rule expressio unius exclusio alterius applies, it is this case. State, ex rel., v. Board of Public Works, 36 Ohio St., 414; Trustees v. Campbell et al., 16 Ohio St., 11; State, ex rel., v. Railway Co., 37 Ohio St., 176; State, ex rel., v. Cappellar, 39 Ohio St., 207; State v. Barlow, 70 Ohio St., 363.
    Therefore, we contend that the provisions of Section 79, Revised Statutes, has no bearing upon statutes of the kind in controversy. The fact of the state moving in regard to its own interest as against its own citizens and prescribing a rule to govern itself, carries it beyond all question that so far as the state is concerned its right of action or proceeding has been expressly repealed or amended.
    It may be claimed that the repealing Act of 1906, if given the foregoing construction is retroactive, but this court has decided in Kumler v. Silsbee, 38 Ohio St., 445, that it is the design of Article 2, Section 28 of the Constitution, prohibiting the legislature from passing retroactive laws to prevent retrospective legislation injuriously affecting individuals and thus protect vested rights. State, ex rel., v. Peters, 43 Ohio St., 651; Lewis v. Eutsler et al., 4 Ohio St., 354.
    Brief of Mr. Ellis, attorney-general, and Mr. Mauck.

    Plaintiffs in error contend that' the effect of the passage of the foregoing act was to absolutely and unqualifiedly repeal the direct inheritance tax law of 1904. We are, inclined to believe that this proposition is sound. Either the qualification in the repealing act is to be given no force or effect, or the act is unconstitutional.
    If the words “except as to estates in which the inventory has already been filed at the date of the passage of this act” express an intent which the General Assembly was qualified to express, that intent was to cover in part the ground more fully and completely covered by Section 79, Revised Statutes, and hence may be ignored. But if the intent of the General Assembly was to release a part and part only of the taxes to which the state had become entitled under the law, then such excepting clause violates both the bill of rights and the uniformity clause of the Constitution.
    It is not disputed that by virtue of the direct inheritance tax law the state became entitled to taxes upon all successions to property, subject only to an exemption of three thousand dollars upon each inheritance. The General Assembly in passing the law of 1904 could not have provided that all estates,, in which an inventory is filed- prior to April 16, 1906, should be subject to the tax. It is the duty of the personal representatives of all estates to file an inventory (Sec. 6023, Revised Statutes), arid the General Assembly is without power to levy a tax upon estates complying with that section and exempting those being administered in violation thereof. This court has already determined that.a tax less invidious in its discrimination than this clause is violates the Constitution. State, ex rel., v. Ferris, 53 Ohio St., 314.
    If it were not competent for the General Assembly to have provided originally for so flagrant a discrimination, it is difficult to see how it could do so indirectly by accomplishing the same end in a repealing act. If so, a biennial repeal followed by an immediate re-enactment of the original governing statute could accomplish what would be denied the General Assembly if done directly.
    At, the time of the repeal the taxes from many inheritances remained unpaid. The law in force-at the time of the death of the decedent governs the imposition of the tax. 27 Am. & Eng. Ency. Law (2d Ed.), 341, and cases cited.
    The status of - all estates having been fixed while the taxing law was in force it was not competent for the General Assembly to make an arbitrary classification of debtors and forgive one and not the other, arid if the excepting clause is found to attempt- such a course, and the General Assembly would not have repealed the law without such exception, then the whole repealing act must fail as violating in its essential terms the Constitution of Ohio. For these reasons only we agree with counsel for plaintiffs in error, that this repealing act is an absolute, unqualified repeal, if it is anything.
    Plaintiffs in error contend that the effect of an absolute, unqualified repeal is to destroy all further power to proceed thereunder, and in support thereof quote from Dos Passos on Inheritance Tax Law.
    The author of this work is a member of the bar of the state of New York, and his book relates, in the main, to the New York Statute, and the chief authorities upon which the author seems to rely are those of the state of New York. The book was written in 1890, and at that time the above doubtless fairly expressed the law of that-state, for it does not appear that the statutes of the state of New York provided any sufficient saving of remedies for a right of action arising under a repealed statute, until a codification of the laws of New York in 1892. Revised Statutes of N. Y. (1889), Chapter 21; General Laws of N. Y. (1904), p. 3838-.
    Since the codification in 1892 it is hardly to be presumed that the author quoted would contend that the repeal of a tax law destroys the power to collect the tax where an ample saving clause for the protection of accrued rights is in force.
    Plaintiffs in error also rely upon Cooley on Taxation, 3d-Ed., 21.

      The case of Montague v. State, 54 Md., 481, cited in support of the position of plaintiffs in error, does not seem to sustain that position.
    In brief, the Court of Appeals of Maryland held that, notwithstanding the tax had accrued, the General Assembly might by express provision forgive the payment of all taxes of that class remaining unpaid. That is not the case now under consideration. In the case at bar the state does not dispute the power of the General Assembly to surrender the. right to collect all taxes,. but insists that the act under consideration has no such effect and discloses no such purpose.
    We do not deny the general rule that where both a right and remedy are dependent upon a statute no recovery can be had after the repeal .of the statute creating the right and providing the remedy. This became so generally recognized as the rule many years ago that many of thé states of the Union and the federal government have adopted by general statute such saving clauses as are necessary to defeat the rule. In obedience to the generally recognized demand for such remedial legislation, Ohio provided for saving rights accruing under repealed statutes by the enactment of Section 79 of the Revised Statutes, and the state relies upon that section for the recovery of taxes owing by virtue of the now repealed direct inheritance tax law.
    . It has been repeatedly held in jurisdictions having a general saving statute of this nature that such section is to be read into and considered a part of every act repealed. Lewis’ Sutherland Statutory Const. (2d. Ed.), Section 287; Commonwealth v. Desmond, 123 Mass., 407; Section 13, Revised Statutes of United States; United States v. Reisinger, 128 U. S., 398.

      In Iowa, under a section very similar to Section 79, Revised Statutes of Ohio, in the case of Tobin & Neary v. Hartshorn, 69 Ia., 648, it was expressly held that where a tax had been levied, but not collected before the repeal of the governing statute, the right to realize upon such levy was preserved. Arnaud’s Heirs v. Executor, 3 La. Rep., 336; Quessart’s Heirs v. Canonge, 3 La. Rep., 560; State v. Waterville Bank, 68 Me., 515; Mason v. Clapp, Holmes, 417.
    Plaintiffs in error argue that Section 79 can not be invoked by the state on the ground that said section preserves only the right of private litigants. In support of this position here are cited: State, ex rel., v. Board of Public Works, 36 Ohio St., 409; State, ex rel., v. Cincinnati Central Railway Co., 37 Ohio St., 157; State, ex rel., v. Cappellar, 39 Ohio St., 207.
    In none of these cases, however, was it held that the state could not be a beneficiary of its own general statutes. The point decided in each case was that:
    “The state is not bound by the terms of a general statute, unless it be so expressly enacted.”
    The court thus held that the state was not bound to pay interest upon a past due claim, notwithstanding a general statute applying to debtors; nor could it be held liable for certain costs in the absence of a statute particularly applicable to the state; nor could it in any way be divested by general statute of any of its prerogatives or interest unless the statute particularly subjected the state to the provisions of such statute.

      Section 79, however, does not come within the language of the cases cited nor within the spirit controlling them. Its application to the case at bar is not for the purpose of divesting the state of any of its rights, but of preserving them.- The statute by its terms must relate to the state because it especially applies to criminal proceedings in which the state is necessarily a party. Chinn v. State, 47 Ohio St., 575; Bergin v. State, 31 Ohio St., 111.
    If the General Statutes, preserving rights to litigants, do not apply to the state, it is difficult to see why any general statute granting a right of providing a remedy should be deemed applicable to the state. If such a rule of construction should obtain the state could not claim interest upon past due obligations; it could not invoke the statute of limitations; it would have no power to review judgments in civil cases in reviewing courts; and perhaps no power to commence any but a certain few civil actions especially provided for. To say that the state can not have the advantage of its own general legislation is to assert a new doctrine which we believe is without the 'support of any of the authorities. ■
    It must be borne in mind, as has already been determined by this court, that the direct inheritance tax is levied upon the succession to property. The right of the successor inures upon the death of the ancestor. Executors of Eury v. State, 72 Ohio St., 448.
    The succession being upon the death of the ancestor and the tax being upon the succession, it must follow that the tax attaches upon the death of the owner.
    It seems manifest therefore that upon the death of the owner of the property the tax upon the succession-attaches and immediately becomes due and payable. If the tax is due and payable and unpaid the -relations of the state and the parties in interest would seem to create a cause of action within every definition of “cause of action” ever given. Unquestionably upon the death of the owner of the property a right is created in favor of the state. To enforce these rights the state certainly has ample remedy through causes of proceeding. To be sure, the state can-not immediately collect a certain determined amount of money because the amount “due and payable” is riot yet ascertained, and can not be ascertained until the probate court has acquired jurisdiction over the property. The first cause of proceeding existing in favor of the state therefore arises upon the death of the owner, and that is the right of the state to compel administration. After this' the state has a cause of proceeding to compel the making of the special inventory required by Section 9 of the direct inheritance tax law. It’has a further cause of proceeding-in its power to compel the probate court to determine the amount of the tax owed. These various causes of proceeding are not only sufficient to determine the amount owing-the state, but are sufficient to compel the payment of the tax to the state. It is made the duty of the administrator or executor to pay the tax, and upon his refusal to perforin that duty, he may be removed frorn his trust and a new administrator may be appointed to perform the duties required by law. Section 6017, Revised Statutes.
    And when the funds are in the hands of the administrator he is subject, to the order of the court which may at any time require him by motion to pay out, such funds in satisfaction of preferred claims. The direct inheritance tax is a preferred claim. Section 1, Direct Inheritance Tax Law.
    The error in the position of those opposing the right of the state to collect accrued taxes lies in their failure to observe, that other ample remedies than that provided by Section 2 of the act itself are available to the state. The view of the defendants in error is that Section 2 merely imposes a new duty upon prosecuting attorneys and that any remedy afforded by that section is cumulative and not exclusive. This view seems to be justified by the fact that during the existence of the law the remedy provided by Section 2 has never been availed of by the state.
    Inasmuch as the tax is due and payable upon the death of the decedent, and an additional charge is levied upon the succession each month thereafter, it is difficult to see why both causes of action and causes of proceeding in favor of the state do not arise instanter upon the death of the decedent. Nor does any reason appear why such causes of action and causes of proceeding are not saved to the state by Section 79, Revised Statutes.
   Summers, J.

The question presented is the effect of the repeal of the inheritance tax law. The repealing, statute is as follows' (98 O. L., 229) “That the act entitled ‘An act to impose a tax upon the right to succeed to, or inherit property,’ passed April 25, 1904, 97 Ohio Laws, 398-400, be and the same are hereby repealed, except as to estates in which the inventory has already been filed at the date of the passage of this act.

“C. A. Thompson,
“Speaker of the House of Representatives.
“James H. Williams, “President pro tern, of the Senate.
“Passed April 2 ,1906.
“This bill was presented to the governor, April 3, 1906, and was not signed or returned to the house wheréin it originated within ten days after being so presented, exclusive of Sundays and the day said bill was presented, and was filed in the office of the secretary of state, April 16, 1906.
“Lewis B. Houck,
“Secretary to the Governor.”

Counsel agree that the exception is invalid, but from different motives. On the part of counsel for the plaintiffs it is contended that the exception being invalid, the right to the tax expired with the repeal, while on the part of the defendants the contention is that the exception being unconstitutional, the whole act is void, and the inheritance law is still in force, or, if only the exception is void, that a retrospective operation by the statute is saved by Section 79, Revised Statutes, which is to the effect that a repeal shall not affect causes of action, prosecutions or proceedings, existing at the time of such repeal, unless otherwise expressly provided in the repealing act.

In State of Ohio, ex rel., v. Ferris, 53 Ohio St., 314, the first inheritance tax law of this state was held'unconstitutional on the ground of inequality in its exemptions and in the rate of the tax. If there must be equality in the law imposing the tax, upon what ground can it be given an unequal operation by an amendment or by an exception in a repealing statute. The constitutionality of a statute depends upon its operation and effect, and not upon the form it may be made to assume. State v. Hipp, 38 Ohio St., 199.

. The exception being void, the question arises whether the whole act must be declared unconstitutional. The rule of construction is that “where the void parts of a statute were evidently designed as a compensation for, or inducement to, the valid portions thereof, so that the whole' taken together warrants the belief that the legislature would not have passed the valid portions alone, the whole statute should be held inoperative.” State, ex rel., Walsh, and Walsh v. Dousman, 28 Wis., 541. The title of th'e act does not leave room for even suspicion that the exception was an inducement to the repeal.

The remaining question is as to the effect of Section 79, Revised Statutes. The general rule is that when an act of the legislature is repealed without a saving clause, it is considered, except as to transaction past and closed, as though it had never existed (Lewis’-. Sutherland on Statutory Construe-' tion, Section 282), and in Surtees and Another, Assignee, v. Ellison, 9 B. & C., 750, Lord Tenterden, C. J., says -that it must not be destroyed by indulging in conjectures as to the intention of the legislature. The rule is áncient and is grounded upon the presumed intention of the legislature, however, in nearly every state the rule has become largely inoperative because of general saving statutes, like our Section 79. Such statutes are to be given the same effect as a saving clause in the repealing statute unless a different intention is clearly apparent. Of course one legislature has no authority to make rules that are binding upon its successor, but the statutory rule evidently was suggested by experience, and from the generality of its adoption undoubtedly it is important, and in the absence in the repealing statute of any manifestation of a different intention perhaps a legal presumption arises that the legislature intended it to apply, but if a different intent appears in the repealing statute effect must be given to that intent notwithstanding the statutory rule. That the legislature intended that no inheritance tax should be collected after the repeal is necessarily implied by the exception and so Section 79 does not apply. It follows that the demurrers should have been overruled and the judgments are

Reversed.

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


author: Crew, J.

text:
    Appel, Administrator, etc., v. Cooper Insurance Company.

      Contract of insurance may limit time for suit thereon — Provision in policy against action for recovery until compliance with certain requirements — Is unambiguous, when — Provision that suit must be commenced within'six months after the fire — Period of limitation runs from date of fire — Interpretation of contract— Fire insurance policy.

    1. The parties ,to a contract of insurance may, by a provision inserted in the policy, lawfully limit the time within which suit may be brought thereon, provided the period of limitation fixed be not unreasonable.
    2. A provision in a policy of fire insurance that, i‘no suit or' action on this policy, for the recovery of any claim, shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within six months next after the fire,” is unambiguous, and in a suit on the policy commenced more than six months after the date of the fire, will be enforced in accordance with the plain meaning of its terms, where no extrinsic facts are alleged excusing delay in bringing the suit.
    3. Where a policy of fire insurance contains the provision, that no suit or action shall be sustained thereon unless commenced' within six months next after the fire, the period of limitation begins to run from the date of the fire,, notwithstanding the policy also contains the provision “that the loss shall not be payable until sixty days after proofs of loss have been received by the company.”
    (No. 10015
    Decided February 26,' 1907.)
    Error to the Superior Court of Cincinnati.
    On the 19th day of June', 1901, the Cooper Insurance Company"'of Dayton, Ohio, issued a policy of insurance to Emily Appel, whereby it insured her against all direct loss or damage by fire to an amount not exceeding fifteen hundred dollars, for the period of one year from the 19th day of June, 1901, to the 19th day of June, 1902, at noon, upon certain property described and located as follows: “On merchandise, principally millinery goods, manufactured and in process, and materials used in manufacturing same, owned or held in trust or on commission, or sold but not removed, while contained in the brick, metal-roof building occupied by assured as a manufacturer and wholesale and retail milliner, at No. 312 on the north side of Fourth street between Plum street and Central-avenue, Cincinnati, Ohio.” It was by said policy of insurance among other things provided:
    “That if a fire occur the insured shall give immediate notice of the loss; separate the damaged and undamaged personal property; make an inventory of the same; and within sixty days after the fire make proof of loss. And further in the event of disagreement as to the amount of loss the same shall be ascertained by two competent and disinterested appraisers, the insured and said company each selecting one appraiser, and the two so chosen shall select a competent and disinterested umpire; the said appraisers together shall estimate and appraise the loss stating separately sound value and damage, and, failing to agree, shall submit their differences to the umpire; and the award in writing of any two shall be binding upon both parties as to the amount of such loss, and further that the loss shall not become payable until sixty days after the proof of loss has been received'by the company, including an award by appraisers when appraisal has been required.” Said policy contained the further provision that: “No suit or action on this policy for the recovery of any claim, shall be sustained in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within six months next after the fire.” The property insured was damaged by fire which occurred about nine o’clock A. M. on September 9th, 1901. There being a disagreement as to the amount of the loss, the same was, under the terms and provisions of said policy submitted to appraisers on September 18th, 1901, which appraisers duly selected an umpire. Thereafter, a report or award signed by one appraiser and the umpire was made and' returned on October 9th, 1901. The proof of loss was filed with the Insurance Company on October 10th, 1901, and thereupon, by the terms of said policy, the amount of said loss became due and payable on December 10th, 1901. Suit was not commenced against the Cooper Insurance Company to recover said loss until June 4th, 1902. After the issues in the case were made up, the cause, by consent of parties, was, by the superior court in special term, referred to Rufus B. Smith, for trial of the issues both of law and fact arising therein, and said referee was ordered to report his findings and decision to said court without unnecessary delay. Thereafter, a separate finding of law and fact having been requested, said referee on July 29, 1905, made his report to said superior court stating therein separately, his findings of fact and his conclusions of law. One of the facts found by the referee was: “That there was due and owing to the plaintiff from the said defendant by reason of the premises the sum of $833.58, with interest from the tenth day of December, 1901.” But said referee as a conclusion of law found and decided: “That the plaintiff is not entitled to recover from the said defendant the sum of $833.58, with interest from December tenth, 1901, or any other sum, for the reason that plaintiff did not file his petition on or before six months from the ninth day of September, 1901.” Upon the report of the referee being, filed in the superior court, the plaintiff in error, Harry Appel, as administrator, etc., moved the court to render judgment for plaintiff against the Insurance Company for the sum of $833.58, with interest as claimed in the petition, on the conclusions of fact found by the referee; or in the alternative, to set aside the report of the referee and grant a new trial for error of law in the finding of the referee that the plaintiff Harry Appel, as administrator, etc., was not entitled to recover from the defendant. This motion was overruled by the superior court in special term and judgment was entered for the Cooper Insurance Company. The case was taken on error to the superior court in general term, which affirmed the judgment of the court in special term. Plaintiff in error now asks that the judgments of the superior court, both in general and special term, be reversed, and that a judgment be entered by this court in favor of the plaintiff in error and against the Cooper Insurance Company, for $833.58, with interest from December 10th, 1901.

      Mr. Frank Seinsheimer and Mr. John R. Sayler, for plaintiff in error,
    cited and commented upon the following authorities:

      Travelers’ Ins. Co. v. California Ins. Co., 1 N. Da., 151; Metropolitan Life Ins. Co. v. Gierl, 16 C. C., 294; 57 Ohio St., 671; Daly v. Concordia Fire Ins. Co., 65 Pac. Rep., 416, Insurance Co. v. Scales, 101 Tenn., 628; German Ins. Co. v. Davis, 40 Neb., 700; Sample v. London & L. Fire Ins. Co., 46 S. Car., 491; Read & Traversy et al., v. State Ins. Co., 103 Ia., 307; 4 Cooley on Insurance, 3972; Kirk & Co. v. The Ohio Valley Ins. Co., 6 W. L. B., 200; Steel v. Phoenix Ins. Co., 51 Fed. Rep., 715; Fidelity & Casualty Co. v. Love, 111 Fed. Rep., 775; Kettenring v. N. W. Masonic Aid Assn., 96 Fed. Rep., 177; Portage County M. F. Ins. Co. v. West et al., 6 Ohio St., 599; Hogg v. Beerman, 41 Ohio St., 81; Section 5213, Revised Statutes.

      Messrs. Cabell & Kohl, for defendant in error,
    cited. and commented upon the following authorities :

      Kettenring v. N. W. Masonic Aid Assn., 96 Fed. Rep., 177; Steel v. Phoenix Ins. Co., 51 Fed. Rep., 715; Williams, Receiver, v. German Ins. Co., 90 App. Div., 413; Allen v. Dutchess, etc., Ins. Co., 95 App. Div., 86; King v. Watertown Fire Ins. Co., 47 Hun, 1; Daly v. Concordia Fire Ins. Co., 16 Col. App., 349; Hart v. Citizens Ins. Co., 86 Wis., 77; Riddlesbarger v. Hartford Ins. Co., 7 Wallace, 386; Thompson, Receiver, v. Phoenix Ins. Co., 25 Fed. Rep., 286; State Ins. Co. v. Meesman, 2 Washington, 459; Kirk & Co. v. Ohio Valley Ins. Co., 6 W. L. B., 200; Meyer v. Metropolitan Life Ins. Co., 9 Ohio Dec., 596; Corn City Mutl. Ins. Co. v. Schwan, Assignee, 1 O. C. D., 105; Coldham v. Pac. Mutl. Life Ins. Co., 2 Ohio Dec., 305, 57 Ohio St., 657; Metropolitan Life Ins. Co. v. Gierl, 16 C. C. 295.
   Crew, J.

This case is one of a series of cases brought into this court by proceedings in error from the Superior Court of Cincinnati, and the question involved is, as to the liability of the defendant company for its proportionate amount of the loss and damage occasioned by fire to a certain stock of millinery goods the property of one Emily Appel, which stock, at the time of the fire, was insured in the defendant company. The facts of this case are hot different from those presented and decided by this court in the cases of the Fire Association of Philadelphia, and the several other insurance companies holding concurrent risks upon said property at the time of the fire, — which cases are reported in this volume at page ' 568; except, that the policy of insurance in the present case, issued by the defendant in error the Cooper Insurance Company, differs from the policies issued by the other companies, in that, it provides that no suit or action shall be brought thereon “unless commenced within six months next after the fire,”— whereas the limitation provided in each of the other policies is twelve months. All the questions raised or suggested in the present case were decided and disposed of in the cases above referred to, excepting only that of the construction and effect proper to be given to the clause of the policy herein sued on which provides that “No suit or action on this policy, for the recovery of any claim,, shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing months next after the fire.” We need, therefore, in the present case consider only this one question. No claim is made in this case either in the pleadings, in the briefs of counsel, or in oral argument, that the six-months limitation prescribed by the above clause of the policy in suit, is an unreasonable limitation. It would seem to be conceded by counsel for plaintiff in error that such limitation is valid and binding, but, they -contend that the time as limited by this clause of the policy commences to run, not from the date of the fire, but'from the time when, under other provisions and stipulations of the policy, the loss becomes due and payable. In other words it is their contention that this clause construed and considered in connection with the other provisions of the policy, especially the provisions requiring proof of loss, submission to arbitration, and the provision that the loss shall not become due and payable until sixty days after proof thereof has been furnished to the company, — contemplates a suspension of the limitation during the time required for the performance of these conditions, and shows it .to have been the intention to allow the assured six full months from and after the accrual of his cause of action within which to bring his suit. It must be admitted that the authorities are in sharp conflict upon this question and that cases are not wanting which support the claim made by counsel for plaintiff in error, that under a limitation clause such as that contained in the policy here in suit, the time of limitation within which the assured must bring his action does not commence to run from the date of the fire, although in terms so expressly stipulated in the policy, — but that such limitation commences to run only from the time the loss becomes due and payable. While the courts which have adopted this rule of computation are not in every instance agreed upon the reasons for so deciding, they have generally placed their decisions upon the ground that there exists such apparent inconsistency and conflict between the provision in the policy postponing the right of the assured to bring suit thereon' until sixty days after the proof of loss has been furnished tó the insurance company, and the provision limiting the time within which the assured may commence his action, as to render the latter clause ambiguous and uncertain and to require that these alleged conflicting stipulations be harmonized by judicial construction. And proceeding to construe said provisions, they hold, that the words “within six months next after the fire,” found in said limitation clause," must, in order to give effect to the intention of the parties, yield to other stipulations of the policy, not more certain in terms, and said limitation clause therefore be construed as giving to the assured six full months in which to bring his suit, exclusive of the time, when' under other provisions of the policy suit could not be brought. We can not assent to the doctrine of these cases, which has for its support no other predicate than that of the claimed necessity for harmonizing these alleged conflicting provisions. The conflict claimed to exist between these provisions, would seem to us to be rather imaginary than real. The two provisions, while separate and distinct in office and purpose, are nevertheless entirely compatible, and they need no interpretation in language other than their own, which would seem to be so plain and unambiguous, as to be susceptible of but one meaning. By the one provision it is stipulated that the assured may not sue before a certain time, and by the other that he shall not sue after a certain time. The language of the policy is not, as assumed, that the assured shall have full six months in which to bring suit after certain things therein specified are done by him; but that he shall have six months within which to do and perform the things required, and to bring suit; so that, unless we are to ignore the plain language of the contract, and.by construction, hold that it means one thing, when it clearly and plainly says a different thing, we must conclude that the obvious meaning of the contract is, that no action shall be brought by the assured against the company until performance by him of those things required to be performed as conditions precedent tó his right to sue, and in no event after the expiration of six months. To hold otherwise is, it seems to us, to substitute by construction another and essentially different contract for the one made and entered into by the parties themselves. But it is argued, that if this construction of the contract is to obtain, that because of the provisions of the policy requiring proofs of loss,— the production of books and papers, and the submission to appraisers of the question of the amount of loss, etc., etc., — all of which will necessarily consume time, that cases may arise in which the time when suit must be brought will have elapsed, and the action be barred, before the right to sue has accrued. The answer to this is obvious. A provision by way of limitation in a contract of insurance which does not leave to the assured a reasonable time in which to bring suit after his cause of action accrues is void and of no effect, and, if acting in good faith, and with proper diligence, it happens in a particular case that other provisions of the policy required to be complied with by the assured as a condition precedent to his right to sue, can not be performed by him and leave a reasonable time thereafter in which to-bring suit, the limitation will be held unreasonable and inoperative. Or, if in any case such provisions should be used and employed by the insurer, for the sole purpose of delay, they would be held to be suspended or waived. Thus the insured is fully protected under his contract as written, when construed according to its plain terms, by merely applying thereto well known and well established'principles of construction. The contract of insurance is a voluntary contract, and the insurer has a right to designate and prescribe the terms and conditions upon wliich it will consent to become liable in case of loss, and stipulations in policies of insurance that give to the insurer a certain time after proofs of loss are made in which to pay, and provisions limiting the time within which suit shall be brought, are universally sustained by the courts with the qualification only that such provisions and limitations must be reasonable. In the present case the rpcord discloses that the fire which occasioned the loss occurred September 9, 1901. The proofs of loss were filed with the company October 10, 1901.' The loss became due and payable, under the provisions of the policy, bn December 10, 1901. There yet remained, therefore, to the assured, after full compliance with all the requirements of the policy, three of the six months, within which to bring his suit. But no suit was commenced on said, policy until June 4, 1902, nearly nine months from the time of the fire. The claim is made here that the insurance company waived the six months limitation of the policy, by entering into the negotiations for the amicable adjustment and settlement of this loss. As to this we think it sufficient to say, that not only was this claim found against the assured by the referee, and by both the courts below, but so far as the record discloses' there was nothing at any time pending these negotiations to prevent the assured from bringing suit if he had seen proper to do so. Furthermore, it is admitted that all negotiations were fully concluded, as early as February 1, 1902, still leaving forty days of the six months next after the fire, within which suit could have been brought, yet no excuse is made, or explanation attempted, as to why suit was not then instituted, but was delayed until June 4, 1902, which was five months and twenty-four days, after the cause of action had accrued, and the right to sue had become perfect, and almost nine months after the date of the fire. No suit having been brought on this policy within six months next after the fire, and no facts appearing in this case which justify or excuse the delay in bringing the same, it must be held, that at the tipie of the commencement of this action, on June 4, 1902, the plaintiff’s right to maintain a suit on this policy was barred by his contract. Prior to the present, time the only expression by this court in any manner bearing upon the particular question here involved, was in Portage County M. F. Ins. Co. v. West et al., 6 Ohio St., 600, which would seem to sustain the view now taken by us, if the same rule of construction may be applied to a contract that is applied to a statute. That the rule of construction is the same as to each, will not, we think, be questioned. The conclusion reached by us that the limitation clause in this policy means exactly what it says, and that the limitation begins to run from the date of the fire, finds direct support in the following well con-, sidered cases:

Egan v. Ins. Co., 29 Ore., 403; Hart v. Ins. Co., 86 Wis., 77; King v. Ins. Co., 47 Hun, 1; Chichester, Admr., v. Ins. Co., 74 Conn., 510; McFarland v. Accident Assn., 5 Wyoming, 126; Rottier v. Ins. Co., 84 Minn., 116; The State Ins. Co. v. Stoffels, 48 Kan., 205; Ins. Co. v. Meesman, 2 Wash., 459; Fullam v. Ins. Co., 7 Gray, 61; Wilhelmi v. Ins. Co., 103 Iowa, 532; Travelers Ins. Co. v. California Ins. Co., 1 North Dakota, 151; Glass v. Walker, Assignee, 66 Mo., 32; Johnson et al. v. Ins. Co., 91 Ill., 92; Daly v. Ins. Co., 16 Col., 349; Ins. Co. v. Little et al., 20 Ill. App., 431.

Plaintiff in error having permitted the* six months next after the fire to elapse without bringing suit, there remained thereafter no legal liability on the part of the Cooper Insurance Company to respond in damages for the loss sustained, and the judgments of the courts below must be

Affirmed.

Shauck, C. J., Summers and Davis, JJ„ concur.