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said trustee shall convey, transfer, and deliver to said Charles Joel his said share when said trustee shall be satisfied that said Charles Joel is competent to take care of the same, and not before, unless Joel C. Walter, father of said Charles Joel, shall direct said trustee so to do; and said Charles Joel is to have no power to control, dispose of, or incumber such share by any act done or suffered by him until same shall have been actually conveyed to him by said trustee. In case of death of said Charles Joel before property covered by this item is turned over to him by said trustee, legal title shall vest in his heirs. I nominate and appoint Alonzo J. Willard to be trustee under this item with respect to share allotted to said Charles Joel. In case of his death or refusal to accept, then, in default of further appointment by me, the executors and trustees under will of his father, Joel C. Walter, or such other person or persons as said Joel C. shall by will or deed appoint, shall be such trustee."

Alonzo J. Willard accepted the trust, and acted as trustee until the year 1886. The property devised was wholly in real estate, and was of considerable extent and value,situated in Cook county, Ill., and Walworth county, Wis. During the incumbency of Willard as trustee, he conveyed to Charles Joel Walter at various times, by the direction of Joel C. Walter, as provided in the will, all of the real estate, except an interest in a lot in Chicago. The property so conveyed to Charles Joel Walter by the trustee was the greater part of the valuable estate, and he disposed of the whole of it. The remainder of the estate was ultimately turned into money, and the proceeds invested in securities. In 1886 Alonzo J. Willard filed his bill in the superior court of Cook county, asking to be relieved of the trust, and made Charles Joel Walter, and his father, Joel C. Walter, who had the power of appointment of the successor, defendants to the bill. Joel C. Walter entered his appearance, and was defaulted for want of an answer. Charles Joel Walter appeared by Anson B. Jenks, his solicitor, and answered the bill. By consent of Charles Joel Walter a decree was entered appointing said Anson B. Jenks as trustee under the provisions of the will, and vesting him with title to the trust property, with as great powers as Willard would have had if he had continued to act. Joel C. Walter made no appointment of a successor to Willard, and Anson B. Jenks accepted the trust, received the property, and acted as trustee. Joel C. Walter died in 1891, and neither in his lifetime, by deed, nor at his death, by will, did he appoint any trustee. By his last will and testament he appointed as executors and trustees thereof Edward C. Rogers, Alonzo J. Willard, Mary E. Walter, Philip Edward Walter, and William E. Walter. In disposing of his own estate, by the will he directed his trustees to pay Charles Joel Walter $600 per annum, in quarterly installments, during his life, and

at his death to pay his widow $5,000, or, in the event he should leave a child or children and no widow, then to pay the $5,000 to the child or children. In 1896 Anson B. Jenks, the trustee, and Charles Joel Walter, the cestui que trust, filed their bill in the circuit court of Cook county for a partition of the remaining real estate, and their suit resulted in a sale of the property, and the trustee received the proceeds. In 1899 Anson B. Jenks filed his bill in the superior court of Cook county against Charles Joel Walter, asking to be relieved of his duties as trustee. Charles Joel Walter appeared in person and by W. J. Lavery, his solicitor, and in his answer he admitted the allegations of the bill, stated that he was willing that Jenks should be discharged, and requested the court to appoint the Northern Trust Company as trustee. In pursuance of the bill, answer, and proofs, and by consent of Charles Joel Walter, a decree was entered by which the court discharged Anson B. Jenks as trustee, and appointed the Northern Trust Company in his place, with the same powers, duties, and obligations as the trustee originally named in the will. The Northern Trust Company accepted the trust, and entered upon its duties as trustee. Anson B. Jenks paid over the fund of $48,000 to it, and the fund is now held by it as such trustee.

Appellants contend that, inasmuch as the will of Jerusha Maxwell provides for the method of succession in the trusteeship, such succession can only be effected in the manner directed by the will. The provisions of the will are somewhat peculiar. Joel C. Walter is first named as a general trustee of the whole estate, to whom all the property is devised, to pass upon his death to the executors and trustees of his will. Then separate trusts are created for the different shares of the estate,-one for the share of Ida Ophelia Walter, and a second one for the share of Charles Joel Walter. Alonzo J. Willard is appointed trustee for the share of Charles Joel Walter, subject to the supervisory power of the general trustee to direct a conveyance or transfer of the trust estate, and with a power in the general trustee to appoint a successor by deed or will, and in default of appointment his executors and trustees are to act as trustees. The author of a trust has the right to say in what manner vacancies shall be filled, and if he exercises that right they cannot be filled in any other way, unless there is a failure or refusal to fill them as directed, or the trustee fails or refuses to act, in which case chancery will interpose to preserve the trust. Golder v. Bressler, 105 Ill. 419. In this case Joel C. Walter did not exercise his power to appoint a successor to Willard. He was a defendant to the bill filed when Willard gave up the trust, and was defaulted, and for five years thereafter, up to his decease, did not attempt to exercise the power given him. He did not name a trustee by his will, and his ex

ecutors and trustees never accepted the trust under the will of Jerusha Maxwell. All of them either declined to act as executors or trustees of his will or resigned, and two of them have died. There is no one acting in the capacity of executor or trustee of the will of Joel C. Walter, and there is no person in existence with power to appoint a successor in trust under the will of Jerusha Maxwell. A court of equity. will not permit a trust to fail for want of a trustee, and since the power of appointment was not exercised. and the executors and trustees of Joel C. Walter failed to act, the court had power to make the appointment. It must be held that the Northern Trust Company was properly appointed at the request of Charles Joel Walter.

It is next contended by appellants that the power conferred upon the trustee to convey, transfer, and deliver to Charles Joel Walter the estate when the trustee should be satisfied that said Charles Joel Walter was competent to take care of the same, and not before, and to thereby put an end to the trust, was one of personal confidence, which did not pass to successors in trust with the estate. As a general rule, where a power is discretionary, and of a kind that indicates personal confidence in the one selected to exercise it, a court of equity will not assume to exercise the discretion, and the power will not pass to a successor appointed by the court, in the absence of express words to that effect in the instrument creating the trust. The court cannot invest a trustee of its creation with powers which are to be exercised, or not, in the personal judgment and discretion of the one appointed in the creation of the trust, in whom personal confidence is reposed. If the power is ministerial, or given for the purpose of executing a declared trust which the court can enforce, although there may be some measure of discretion involved, the court will compel the performance of the power, or execute it in the place of the trustee. If the purposes of a will require the exercise of a power, the duty may be enforced in order that the wishes of the testator may be carried out. In this case the trustee is required by the will-First, to see that Charles Joel Walter is properly maintained and comfortably provided for out of the property held by the trustee, he using such amount for that purpose as, in his discretion, shall seem best; second, to convey, transfer, and deliver to Charles Joel Walter the estate when the trustee shall be satisfied that said Charles Joel Walter is competent to take care of the same, and not before. The provision that the trustee shall see that Charles Joel Walter is properly maintained and comfortably provided for is declared to be discretionary as to the amount used for that purpose, but the intention of the testatrix that he shall be properly maintained and comfortably provided for is clearly declared. The trustee is required to properly maintain and

comfortably provide him, and to use what may be necessary to accomplish that object, and the will in that respect creates an enforceable trust. The trustee would not have a mere discretionary power, but a power coupled with a trust, which could be enforced or executed by the court. Ingraham v. Ingraham, 169 Ill. 432, 48 N. E. 561, 49 N. E. 320. The other provision creates a discretionary power. It confers a discretion as to whether the conveyance shall be made or not, and the power is to be exercised only when the trustee shall be satisfied of the competency of Charles Joel Walter to take care of the estate, or when Joel C. Walter shall direct a conveyance. The whole power in that respect is founded-First, on the personal judgment and discretion of the trustee; and, second, upon the supervisory judgment and discretion of the father, Joel C. Walter. The court could exercise no control over Joel C. Walter to require him to exercise his arbitrary power and give the direction, nor over the trustee, acting in good faith, to require him to be satisfied of the competency of Charles Joel Walter, as a condition precedent to the termination of the trust. Admitting the argument of counsel for appellants that the discretionary power to determine the question of competency and make the conveyance did not pass, by virtue of the will, to the trustees appointed by the court, it results that, so far as the will is concerned, the discretionary power is absolutely gone.

The position of counsel for appellants, however, on that question, is that the trust has come to an end because the discretionary power has ceased. They say that the intention of the testatrix was that the estate should be vested in Charles Joel Walter during his lifetime, provided he should be sane; that the trust was only to exist until that time, and he being sane, and there being no one to exercise the discretion and determine that question, he is entitled to the estate. We are unable to reach that conclusion. The evident purpose of the testatrix was to create a trust for the lifetime of Charles Joel Walter, and to provide for a discontinuance of it upon certain conditions specified in the will. The trust was for his maintenance and comfortable support, and was to continue for his life, unless the estate should be turned over to him by the trustee in accordance with the provisions of the will; and at his death, if it had not been so turned over to him, the legal title was to vest in his heirs. The plain intent was that the trust should continue for his life unless his father, in the exercise of the arbitrary and discretionary power given him, should direct a conveyance to him, or the trustee, in the exercise of his personal judgment and discretion, should become satisfied that he was competent to take care of the estate; and a conveyance before that time is expressly prohibited. It was not intended by the testatrix that the power should be exercised, except in the discretion of the trus

tees empowered by the will to exercise it. We cannot assent to the proposition that the fact of there being no one who can exercise the personal discretion has the same effect as though there was a person capable of exercising it, and as though it was exercised in such a way as to authorize the conveyance. Nor do we think that the power was to be exercised upon the mere determination that Charles Joel Walter was sane. The trustee was to be satisfied that he was competent to take care of the estate, which means much more than mere sanity. It is true that the testatrix gave as a reason for creating the trust that Charles Joel Walter had shown indications of not being in his right mind, but her reason cannot control the plain language of the will as to the condition upon which the conveyance was to be made. She did not declare him insane, and the provision that he was to have no power to dispose of or incumber the share until actually conveyed to him would indicate that she did not refer to actual insanity. If he was insane, he could not dispose of or incumber the estate. The direction of Joel C. Walter, or the determination by the trustee, was made a condition precedent to the conveyance to Charles Joel Walter, and until that condition was complied with he would not be entitled to the estate. Markham v. Hufford (Mich.) 82 N. W. 222, 48 L. R. A. 580, 81 Am. St. Rep. 222. There was no allegation that he was competent to take care of the estate, and, in any view of the nature of the power, the court was right in sustaining the demurrer and dismissing the bill for want of such an allegation.

None of the cases cited by counsel sustain their claim. There have been cases where a will has given property to a class, with a power of appointment in what shares and in what manner the members of the class should take, and it was held that the gift would be distributed among all the class in default of appointment. Cole v. Wade, 16 Ves. 27, is a case of that kind, and others to the same effect are cited. The case of Security Co. v. Snow, 70 Conn. 288, 39 Atl. 153, 66 Am. St. Rep. 107, is relied upon; but in that case there was a direct gift by will, and by a codicil it was made subject to a trust during the life of a trustee with discretionary power. The trust terminated at the death of the trustee, and the discretionary power could not be exercised by a successor. The beneficiary was the owner of the property, and was entitled to the absolute control of it on the termination of the trust.

The fact that Willard, while acting as trustee, turned over a large part of the estate to the beneficiary by the direction of his father, does not justify turning over the balance and terminating the trust. A large amount of property was turned over by the trustee, and disposed of by the beneficiary. The will directed that he should be properly maintained and comfortably provided for, and created an enforceable trust for that purpose. He was

fully provided for, and was also given an annual income under his father's will; and yet there is a judgment against him of $9,336.44, and he has no property out of which it can be made. What remains of the estate is subject to the trust declared by the will, and is to be governed by its provisions.

Charles Joel Walter was a party to the proceedings in court on each occasion when a trustee was appointed. He requested the appointment of the present trustee, and consented that it should have the same powers, duties, and obligations as the first trustee under the will. Whether his consent had the effect to vest in the trustee the discretion conferred by the will or not, the decision was correct. Neither he nor his creditor could compel a conveyance of the estate.

The judgment of the appellate court is affirmed. Judgment affirmed.

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1.92 Ohio Laws, p. 683, providing for the pensioning of school-teachers in school districts in cities of the third grade of the first class, is in violation of Const. art. 2, § 26, providing that laws of a general nature shall have a uniform operation throughout the state, such act at the time of its passage and taking effect being applicable only to the city of Toledo, and containing a provision in section 2 requiring the board of education to select three members of a pension committee at its first regular meeting within 30 days after the law went into effect, and making no provision in such regard for cities which might thereafter come into the class.

2. The act for pensioning school-teachers in school districts in cities of the third grade of the first class (92 Ohio Laws, p. 683) violates Const. art. 12, § 2, providing for uniform taxation of property, in that it provides that 1 per cent. of the salaries paid to teachers shall be deducted therefrom and applied to create a school-teachers' pension fund.

3. The act for pensioning school-teachers (92 Ohio Laws, p. 683) is unconstitutional as a taking of private property from one citizen for the benefit of another, without his consent and against his will.

Error to circuit court, Lucas county.

Application by the state, on the relation of John I. Ward, for writ of mandamus against Franklin Hibbard and others. Writ Afgranted, and defendants bring error. firmed.

The following is the opinion of the circuit court (Hull, J.):

"This is an action for a writ of mandamus. The relator, John I. Ward, was an employé of the board of education of the city of Toledo, as a teacher in the district schools, at a salary of $1,200 per year, and as a teacher in the night school at a salary of $3 per week, during the period in question, teaching two nights in a week, making $12 for the

four weeks, or a month, of service in the night schools. He brings his action in mandamus to compel Mr. Hibbard, the business manager and clerk of the board of education, and John W. Dowd, president of the board, to sign and issue to him a warrant upon the treasurer for the salary coming to him, viz., $24, he having demanded a warrant for this amount, and it being refused, upon the ground that under the school pension law, as it is called, they were authorized and required to deduct from that amount 1 per cent. thereof, to wit, 24 cents, for the pension fund, and a warrant for the balance was tendered to Ward, which he refused, and he brings this action for a writ of mandamus to compel the warrant to be issued to him for the full amount. The amount involved in this action is very small, but the action involves the validity of the pension statute, the relator claiming that it is unconstitutional and void, the defendants insisting that it is a valid and constitutional act, and, further, that the defendant, in any event, has acquiesced therein and agreed thereto, and to the provisions thereof, and acted in such a way that he is estopped from denying its validity.

"The constitutionality of the act is attacked upon the ground that it is in conflict with section 26, art. 2, of the constitution, providing that all laws of a general nature shall have a uniform operation throughout the state, and on the ground that it is in conflict with the provisions of the bill of rights of the state, in that it takes private property from its owner without just compensation and without due process of law. The act is found in 92 Ohio Laws, p. 683. and it provides, in the first section, 'that in order to create a fund to be known as the teachers' pension fund, one per cent. of the salaries paid to all teachers of city districts of the third grade of the first class, shall be deducted by the proper officers and paid into the city treasury to the credit of said fund, to be used exclusively for pensions for teachers as hereinafter provided. | All moneys received from donations, legacies, gifts, bequests or from any other source shall also be paid into said fund, but no taxes shall be levied or any public moneys be appropriated for said fund except as herein provided.' And the next section of the act provides for the selection of a board, by the board of education, to be known as the trustees of the schoolteachers' fund, which the act provides shall be composed of seven members, three to be elected by the board of education, three to be elected by the teachers of the public schools, and the superintendent of schools, who, the act provides, shall be ex officio a member of said board. The section further provides that 'the board of education of said city district shall, at its first regular meeting after this act goes into effect, elect three of its members for one year, one for

two years, and one for three years, and thereafter annually elect one of its members for three years, who shall serve as members of said board.' The act provides, as to the pensioning of teachers, that after a teacher, either male or female, shall have taught for a period aggregating 20 years, he or she may be retired and put upon the pension list by the board of education, on account of physical or mental disabilities; and provides that any female teacher shall have the right to retire after she shall have taught for a period aggregating 30 years, whether before or after, or partly before or after, the passage of this act; and any male teacher shall have a right to retire and become a beneficiary under this act who shall have taught for a period aggregating 35 years, whether before or after, or partly before or after, the passage of this act, provided that three-fifths of said term of service shall have been rendered in the public schools of said city or district, or in the public schools of the county in which said district is located. The act further provides that 'each teacher so retired shall be entitled during the remainder of his natural life to receive as pension an amount equal to one-half of the annual salary paid to such teacher at the date of his or her retirement, said pension to be paid monthly during the school year, but in no event shall such pension paid to any teacher exceed the sum of six hundred dollars in any one year.' It also provides for a pro rata division of the pension fund should there not he sufficient at any time to pay all of the pensions that are due. The last section provides for sick benefits, or the pensioning of teachers for a period not to exceed 10 months, who have been temporarily disabled by accident or sickness, provided that they have taught 10 years in the schools of the city district. This section reads as follows: "The death, resignation or removal of any teacher for cause, as aforesaid, shall terminate all interest of said teacher in said fund, but it shall be optional with the board or trustees of said pension fund to appropriate monthly to any teacher who has become disabled by accident or sickness to such an extent as to be incapacitated for teaching, a sum not to exceed one-half of said teacher's regular monthly salary, provided that said teacher shall have taught at least ten years in the public schools of a city district of the third grade of the first class, and providing that such monthly appropriation shall not continue for a longer period than ten months or one school year.'

"As I have said, the act is attacked upon the ground, first, that it violates a provision of section 26, art. 2, of the constitution, which is in this language: 'All laws of a general nature shall have a uniform operation throughout the state.' This provision of the constitution has been before the supreme court a great many times, and it will not be neces

sary in deciding this case to review all of the decisions that have been rendered upon it by the court, nor any great part of them. Was this law one of a general nature? It is a law which relates to the common schools, that are recognized and provided for in the constitution of the state, and constitute an institution in which every community and every citizen is interested, one of the public institutions of the state, and whether a law is or is not one of a general nature, as the supreme court has said, is to be determined by the subject-matter of the law. In Kelley v. State, 6 Ohio St. 269, 271, the supreme court say: 'We have, then, in the constitution, first, a general, unqualified, and positive prohibition or limitation of legislative power, forbidding the giving of a partial operation to any law of a general nature, or, in its own affirmative terms, requiring that a uniform operation throughout the state shall be given to all laws of a general nature. Without undertaking to discriminate nicely or define with precision, it may be said that the character of a law as general or local depends on the character of its subject-matter. If that be of a general nature, existing throughout the state, in every county, a subject-matter in which all the citizens have a common interest,-if it be a court organized under the constitution and laws within and for every county of the state, and possessing a legitimate jurisdiction over every citizen,-then the laws which relate to and regulate it are laws of a general nature, and, by virtue of the prohibition referred to, must have a uniform operation throughout the state.' A law relating to the public schools, an institution in which every citizen of the state is entitled to participate and enjoy, is a law of a general nature under this definition of the supreme court, and therefore the act under consideration is one of a general nature. The question, then, is whether the act by its terms comes within the prohibition of the constitution, or of the requirement of the constitution, that all laws of a general nature shall have a uniform operation throughout the state.

"The language of the act is a little obscure; the language in the first section referring to the salaries of teachers 'paid to all teachers of city districts of the third grade of the first class,' etc. We hold that that should be construed to mean and should read 'school districts in cities of the third grade of the first class,' following the decision of this court in State v. Board of Elections of City of Toledo, 16 Ohio Cir. Ct. R. 1, where the same or similar language was construed by the court. Putting that construction upon it, the act then was intended to apply only to school districts in cities of the third grade of the first class. While at that time there was only one city, viz., the city of Toledo, that fell under that description, yet other cities might in time, by change in population and proper municipal action, have come into

this class, and, so far as this description was concerned, would and might have been subject to the provisions of this law. The supreme court in many cases has discussed the classification of cities, and many laws that appeared to be special in their character, so far as they confer power, have been sustained by the supreme court upon this doctrine and theory of the classification of cities, and they have been held to have, under this doctrine, a uniform operation throughout the state, in that they applied to all cities, present and future, of the grade and class mentioned in the act. The trend of the recent decisions of the supreme court seems to be to hold rather more strictly to an "enforcement," if that be the proper word to use, of this provision of the constitution prohibiting legislation of this kind. In Commissioners v. Rosche, 50 Ohio St. 103, 33 N. E. 408, 19 L. R. A. 584, 40 Am. St. Rep. 653, in discussing an act to provide for the refunding of taxes erroneously paid and affecting in its terms only the county of Hamilton, the supreme court says in the second paragraph of the syllabus: "The subject of the act is in no respect local, but is of a general interest to all the inhabitants of this state, and special legislation thereon is prohibited by section 26, art. 2, of the constitution of this state, which requires all laws of a general nature to have a uniform operation throughout the state.' And on page 113, 50 Ohio St., page 410, 33 N. E., page 584, 19 L. R. A., and page 653, 40 Am. St. Rep., the court says in the opinion: "The subject of the statute under consideration is the right of the taxpayer, who has paid taxes upon property exempt from taxation, to recover from the public the money thus paid, and its object is to ameliorate the supposed harshness of the existing law in this particular. The rights of the taxpayer in this respect should be uniform throughout the state, which result can be attained only by a statute designed to operate impartially upon every person who may bring himself within its beneficent provisions.' And at the bottom of page 114, 50 Ohio St., page 410, 33 N. E., page 584, 19 L. R. A., and page 653, 40 Am. St. Rep.: 'And whatever amelioration of the hardships of the existing law in this respect, that the legislature in its wisdom deemed just and right, should have been extended to the whole people of the state without regard to the county boundaries. Otherwise there might be as many different laws on the subject as there are counties within the state, and an action to recover taxes paid in one county could be maintained upon a state of facts that in an adjoining county would be wholly inadequate for that purpose. This want of uniformity in the laws prescribing the rights and obligations of the inhabitants of the state was the very mischief that section 26, art. 2, was designed to prevent.' I call attention to a few of these recent cases for the purpose of showing what seems to be the disposition of the supreme court at

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