It is our judgment that the court erred in sustaining the plaintiff's motion to the second defense, and that the error was continued in striking it from the answer, for which error the judgments of the circuit court and the court of common pleas are reversed, and the case is remanded for new trial. Judgment reversed.

WILLIAMS, C. J., and BURKET, SPEAR, DAVIS, and SHAUCK, JJ., concur.

(66 Ohio St. 249)

HARMON v. STATE.

(Supreme Court of Ohio. April 22, 1902.) CONSTITUTIONAL LAW-INCOMPETENT ENGINEERS-PRIVILEGES AND IMMUNITIES.

The act of March 1, 1900 (94 Ohio Laws, p. 33), entitled "An act for the better protection of life and property against injury or damage, resulting from the operation of steam engines and boilers by incompetent engineers and others, and to repeal an act therein named," known as the "Roberts Law," is in conflict with the common welfare clause of the constitution. and also in conflict with section 2 of the bill of rights, and section 1 of article 2, and is therefore unconstitutional and void. (Syllabus by the Court.)

Error to circuit court, Butler county.

E. H. Harmon, plaintiff in error, having been appointed and qualified district examiner under the act of March 1, 1900 (94 Ohio Laws, p. 33), known as the "Roberts Law," entitled "An act for the better protection of life and property against injury or damage, resulting from the operation of steam engines and boilers by incompetent engineers and others, and to repeal an act therein named," the prosecuting attorney of Butler county filed his petition in the circuit court of that county, in quo warranto, to oust said Harmon from said office, claiming said act to be unconstitutional. The circuit court held the act to be unconstitutional, and rendered judgment of ouster; and thereupon Mr. Harmon filed his petition in error in this court, seeking to reverse the judgment of the court below. Affirmed.

J. M. Sheets, Atty. Gen., S. W. Bennett, and J. E. Todd, for plaintiff in error. Warren

PER CURIAM. The only question involved in this case is the constitutionality of what is known as the "Roberts Law." The act provides for the appointment of a chief examiner by the governor, with the advice and consent of the senate, and said chief examiner, with the approval of the governor, to appoint six district examiners, each to serve in a district to be formed by the chief examiner. Section 6 of the act is as follows: "Any person who desires to act as steam engineer, shall make application to any district examiner of steam engineers for a license so to act, upon a blank furnished by the engineer, and if, upon examination, the applicant is found trustworthy and competent, a license shall be granted him, to have charge of, or to operate any steam plant. Such license shall continue in force for one year, unless after proper hearing it is revoked for intoxication or other sufficient cause, the said license to be renewed yearly." 94 Ohio Laws, p. 35. By this section the examiner is made the exclusive judge as to whether an applicant is trustworthy and competent. No standard is furnished by the general assembly as to qualification, and no specifications as to wherein the applicant shall be trustworthy and competent, but all is left to the opinion, finding, and caprice of the examiner. He is the autocrat, with unlimited discretion, without rules prescribing the qualifications of applicants for license, only so that he finds them trustworthy and competent. There being six districts and six examiners, each may have his own notions as to what shall constitute an applicant trustworthy and competent, and so there may be in the first instance as many different standards in the state as there are examiners, whereas the standard should be uniform throughout the state. True, by section 9 an appeal is given to the chief examiner from the action of refusing or revoking a license, but here, again, the power of the chief examiner is supreme, and without having rules for his guidance prescribed by the general assembly; the only provision being that if, upon investigation, he finds that the district examiner was justified in refusing or revoking such license, he shall sustain him, but otherwise he shall order such license to be given. Thus allowing the examiner of a district to, in effect, make the law for his district, limited only by his will as to what shall constitute the standard of the qualification of engineers, is granting legislative power to such examiner, and the appeal to the chief examiner does not change the matter. By section 1 of article 2 of the constitution, all legislative power is vested in the general assembly, and this power cannot be delegated to individuals or officers. Matthews v. Murphy (Ky.) 63 S. W. 785, 54 L. R. A. 415. Said section 6 of the Roberts law is therefore

in conflict with said section 1 of article 2 of the constitution, and is void.

It is urged that this is not legislative, but administrative, power; but this cannot avail. The constitution does not recognize such a power as administrative power. The constitution provides only for legislative, executive, and judicial powers; and what is denominated in some other states as "administrative power" falls in this state within one of the three great powers recognized by our constitution,→ legislative, executive, and judicial. This court has in several opinions spoken of certain powers as being administrative, but no warrant is found therefor in the constitution, and no necessity exists for such a power, as all powers are included in the legislative, executive, and judicial.

Section 7 of the act is as follows: "Any engineer who has been employed continuously as a steam engineer in the state of Ohio for a period of three years next prior to the passage of this act, and who files with his application a certificate of such fact under oath, accompanied by a certificate from his employer or employers verifying the same, or who holds a license issued to him under any ordinance of a municipal corporation of this state, shall be entitled to a license without further examination. Any person to whom a license is issued under the provisions of this act shall at the expiration of one year from the date thereof be entitled to a renewal thereof for one year, unless, in the opinion of the district examiner, of his district, such renewal should be refused, in which event such person shall have the right to appeal to the chief examiner provided for in section 9." 94 Ohio Laws, p. 35. To escape an examination, and yet obtain a license under this section, the applicant must have been a steam engineer in the state of Ohio for three years next prior to the passage of the act, or hold a license under an ordinance of a municipality in this state. This section confers the privilege of obtaining a license without examination on all engineers who were continuously employed as such for three years next prior to the passage of the act, no matter how incompetent they may have become by reason of age, habits, or other causes. And no matter how competent an engineer may be by reason of long service, if he has not been employed continuously for three years before the passage of the act,-if he is short a month or more in the three years,-he is denied the privilege of obtaining a license without examination. This three-year provision is clearly arbitrary and without reason. It is arbitrarily forming a favored class, and is in conflict with section 2 of the bill of rights, which guaranties equal protection and benefit; and it is also in conflict with the purpose for which the constitution was established, which was to promote our common welfare. This section of the act is to promote the welfare of a particular three-year class, instead of the common welfare of all. The

section is therefore unconstitutional, and the two sections (6 and 7) are so interwoven with the whole act as to be inseparable, and therefore the whole act is unconstitutional. Judgment affirmed.

BURKET, SPEAR, and DAVIS, JJ., con

cur.

(66 Ohio St. 242) BRENZINGER et al. v. AMERICAN EXCH. BANK.

(Supreme Court of Ohio. April 22, 1902.) NEW TRIAL-CONDITIONS-BOND-ESTOPPEL TO DENY VALIDITY.

When the trial court is of the opinion that a party is not in strict right entitled to a new trial, but grants to such party a new trial on condition that he give bond to pay any judgment which might be recovered on such new trial, and he complies with the condition, and has the benefit of the new trial, the parties to such bond are estopped from claiming that such bond is invalid.1

(Syllabus by the Court.)

Error to circuit court, Lucas county.

Action by the American Exchange Bank against William F. Brenzinger and others. Judgment for plaintiff, and defendants bring error. Affirmed.

PER CURIAM. In an action by the defendant in error against the plaintiff in error, William F. Brenzinger, a verdict was rendered for the bank. Brenzinger made a motion for a new trial. The journal entry as to the motion is as follows: "This cause coming on for hearing on the motion of the defendant for a new trial, the court, on consideration thereof, ordered that said motion be overruled unless said defendant give bond to the plaintiff in the sum of five hundred dollars ($500), with sufficient surety, to the approval of the court, conditioned that said defendant will pay and satisfy any judgment which said plaintiff may against said defendant in said action." The bond was given,-Carrie K. Brenzinger being security thereon,-and a new trial was thereupon awarded. On the new trial the bank recovered a judgment against Brenzinger, and, being unable to collect the same from him, brought suit on the bond. Both defendants demurred to the petition on the ground that it did not state a cause of action. The demurrer was overruled, and judgment was rendered by the court of common pleas for the plaintiff, which was affirmed by the circuit court.

recover

It does not appear in this case that William F. Brenzinger was entitled to a new trial in the original action. On the contrary, it appears that the court overruled his mo

1 See Estoppel, vol. 19, Cent. Dig. § 262 [b, oo,. uu, z).

tion for a new trial, and that he did not predicate error upon that judgment, but allowed it to stand. The court, however, gave him the opportunity to have a new trial on condition that he would give bond for the payment of such judgment as might be obtained against him on such new trial. He did not complain of this, gave the bond, and had his opportunity under the new trial, and, having had the fruits of his acceptance of the condition, now seeks to repudiate his bond. We think that the plaintiffs in error are not only bound by their agreement, under the circumstances, but that the court, having found that Brenzinger was not in strict right entitled to a new trial, might, in its discretion, allow a new trial upon the reasonable condition named, at least if the other party did not object.

The judgments of the circuit court and of the court of common pleas are affirmed.

WILLIAMS, C. J., and BURKET, SPEAR, DAVIS, SHAUCK, and PRICE, JJ., concur.

(66 Ohio St. 276)

BALTIMORE & O. S. W. RY. CO. v. COX. (Supreme Court of Ohio. May 13, 1902.) RAILROADS LICENSEE ON FREIGHT TRAINLIABILITY FOR INJURIES.

1. An action to recover for an injury occasioned by negligence, the element of willfulness being absent, will not lie unless there exists between the defendant and the person injured a relation out of which there arises a duty of the former to exercise care toward the latter.

2. A conductor in charge of a train designed exclusively for the carriage of freight, and operating under rules which forbid the carriage of passengers thereon, cannot, by consenting that a person may ride on such train, impose upon the company the duty of exercising toward him the care which it owes to a passenger.

(Syllabus by the Court.)

Error to circuit court, Ross county.

Action by Mrs. Cox, administratrix, against the Baltimore & Ohio Southwestern Railway Company. Judgment for defendant was reversed in the circuit court, and the defendant brings error. Judgment of the circuit court reversed, and that of the common pleas affirmed.

Mrs. Cox, as administratrix, brought suit in the court of common pleas to recover from the railway company damages for the death of her intestate, which was alleged to have been caused by the negligence of the company. In her petition she alleged that on January 4, 1896, her intestate was employed by the company as a locomotive fireman, and was riding by its order on one of its freight trains from Mineral City, where he had been employed prior to that time, to Chillicothe; that the train, having reached Schooley's station, stopped on the siding to permit the passage in the opposite direction of a passenger train, when he left the caboose in which he had been riding, and went

forward to the engine to talk to the engineer about the employment of the decedent, and, at the request of the engineer, climbed upon the engine; that while he was so upon the engine, engaged in conversation with the engineer, the said passenger train, approaching at a high rate of speed, was, by the negligence of the company, run upon said siding, colliding with said engine, and causing the instant death of said John H. Cox. The petition also set out the names of the next of kin of said Cox for whose benefit the recovery was sought. In its answer the company admitted that the deceased was killed while upon its locomotive which was standing upon a side track at Schooley's, by a collision with a passenger train which was run upon the siding in consequence of the fact that one of its employés, a brakeman who was acting as a switchman, had failed to disconnect the side track on which said freight train stood from the main track on which said passenger train was approaching, of which neglect the company had no knowledge. It denied all other allegations of the petition, and alleged that decedent was upon said freight train and the locomotive connected therewith without the knowledge or permission of the company, and was not there upon any business of or connected with it, and was wholly without right to be there. Upon the trial the plaintiff, while introducing a mass of evidence having no relation to any issue in the case, also introduced evidence tending to establish the following facts: The accident was due to the negligence of a brakeman who opened the switch to permit an engine to pass from the siding onto the main track, and did not close it. The decedent had been occasionally employ. ed by the company as a fireman for several years, but had not been in its service after the 27th day of the month preceding the accident. In the meantime he had been visiting friends at Mineral City, and on the day of the accident he boarded the freight train, whose conductor was his friend, his purpose being to ride to Chillicothe to look for further employment with the company; and that was the purpose of his interview with the engineer. He had no pass, did not pay fare, and did not intend to. The rules of the company were introduced, showing that freight trains, unless running as accommodation trains, were not permitted to carry passengers except upon special order. This train was not running as an accommodation train, and there was no special order. Another rule forbade engineers to permit any but employés to ride on their locomotives. The train on which the decedent was riding was composed wholly of freight cars, with a caboose attached. At the conclusion of the plaintiff's evidence the trial judge directed a verdict for the company. In the circuit court a judgment which had been rendered in the common pleas upon the verdict so directed was reversed, and the cause was re

ecuted her last will and testament, of which the following is a copy:

I

"In the name of the Benevolent Father of all, I, Caroline Lushey, wife of George Lushey, of the city of Cincinnati, county of Hamilton, and state of Ohio, do make and publish this, my last will and testament. give and devise to my beloved husband, George Lushey, all of my estate, real and personal, of which I may die seised and possessed, to have and to hold the same to myself, his heirs and assigns, forever. Should any child or children (we now having only one, George Gabriel) be born to me hereafter, it shall in no wise alter or revoke this will and testament. Should my husband George Lushey's decease precede my own, it is my will that Julius Beckenstein shall act as trustee of my estate, real and personal, and guardian of my child or children, and I ask the probate court to ratify this appointment. Said trustee shall manage said estate as to him may seem advisable for the best interest of my child or children, and shall have full power to sell or convey any portion or all of said estate, real or personal, and shall render an account of his doings as such trustee when the youngest of my children shall come of age, and shall then pay or turn over said estate, and the proceeds of the balance thereof, to my said child or children. Said trustee shall, before entering upon the discharge of said trust, file his bond, with two good and sufficient sureties, in the probate court of Hamilton county, Ohio, conditioned for the faithful performance of his duties as said trustee, in double the appraised value of my estate, real and personal. In such event no executor or administrator shall be appointed, but said trustee shall pay all of the indebtedness of my estate out of the same. I desire that no appraisement shall be maue should my husband, George Lushey, survive me, and in that event the said George Lushey shall act as executor of my last will and testament, without any bond being required of him; and the said probate court of Hamilton county, Ohio, is requested to ratify said appointment, and to direct the omission of any such bond. In testimony whereof, I have hereunto signed my name this 11th day of June, A. D. 1872, at Cincinnati, Ohio. Carrie Lushey.

"Attested and subscribed by us as witnesses in presence of Caroline Lushey and of each other, we having seen her subscribe her name to and heard her acknowledge the above as her last will and testament. Goss. Gabriel Beckenstein.'

L. W.

"That on the 8th day of March, 1879, the said will was duly admitted to probate, and no proceedings were instituted to set aside the said will, and said will is in full force and effect. At the time said Caroline Lushey executed her said last will and testament, she was the wife of the defendant George Lushey, and one child, named George Gabriel Lushey, had been born to said Caroline

Lushey and George Lushey, and was living at the time said will was executed. After executing said will, another child, the defendant Harry W. Lushey, was born to the said Caroline and George Lushey. The said Caroline Lushey died in June, 1878, seised in fee simple of the premises described in the petition, and leaving the defendant Harry W. Lushey and his brother, George Gabriel Lushey, her only children and sole heirs at law, and also leaving the defendant George Lushey, her husband, surviving her. That on the 30th day of September, 1892, George Lushey, being in possession of the premises described in the petition, executed and delivered to the plaintiff, the German Mutual Insurance Company, a corporation duly organized under the laws of the state of Ohio, for a valuable consideration, his promissory note of that date, whereby he promised to pay the German Mutual Insurance Company or order the sum of ten thousand dollars in one year after date, at six per cent. interest, interest payable semiannually. That the interest on said note has been paid up to March 30, 1897. That said note is due, and that no payment has been made thereon. That in order to secure the payment of said note, said George Lushey, at the time of the execution of said note, executed and delivered to the German Mutual Insurance Company his certain mortgage deed, and thereby conveyed to the said German Mutual Insurance Company the premises set out in the petition. That said mortgage deed was on the 30th day of September, 1892, duly recorded in Book 652, page 40, of the Mortgage Records of Hamilton County, Ohio. That on or about the 1st day of February, 1898, the said George Lushey, in consideration of one dollar, executed and delivered his certain deed of general warranty, conveying to his son Harry W. Lushey, among other property, the real estate described in the petition, which deed was recorded February 3, 1898.

"The court finds as conclusions of law that the said Caroline Lushey, by her said will, intended to disinherit the said Harry W. Lushey, but that such intention was contrary to the provisions of section 5961, Rev. St., which section provided, in terms, that where a party has one child then living, and executes a will, and afterwards a child is born to such person, such after-born child shall have his share, the same as if the testator had died intestate. Under this construction, it gives to the after-born child his share in his mother's estate, and the child then living receives nothing, the father receiving the other portion."

The court rendered a judgment on the findings against George Lushey, the mortgagor, for the amount of the note and interest, and ordered his undivided half of the premises to be sold, and quieted the title of Harry W. Lushey to the other half. The motion of the insurance company for a new trial was overruled, and it prosecuted error in the circuit