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way limits or qualifies the interest devised , specific disposal, as to admit of a possible to Marion. Indeed, we are of opinion that lapse thereof. We are of the opinion, ratha careful examination of the language of er, that the testator, having intended Marisaid paragraph will disclose to the mind con- on's remainder should vest upon his (testasiderations which negative rather than sus- tor's) death, must have further had in mind tain the conclusion to which the learned that, in case Marion leaving lawful issue trial judges were persuaded as to the inten- should precede both his wife and the testator tion of the testator with respect to the de- in death, the latter would still have the opvise to Marion. Said second paragraph of portunity and ability to make such disposithe fourth clause of the testament, it will tion of the interest he intended for Marion be remembered, reads: "If my son, Marion as would accord with his (testator's) wishes De Vries, should precede in death his wife, with respect to Minnie L. De Vries and such Minnie L. De Vries, and leave him no lawful issue. In any event, considering the fact issue surviving, and should such death of that the testator displayed an unquestioned my son, Marion De Vries, occur before the and unquestionable wish to provide for Minproperty herein devised and bequeathed to nie L. De Vries, in the event of the happen. him vests in him, then all the interest herein ing of the contingency upon which she was and hereby devised and bequeathed to said to take, we think it would be the more reaMarion De Vries shall pass to and vest in sonable vie to hol th he did not intend and become the property of said Minnie L. that any circumstances should arise, in the De Vries, my son, Marion's wife, absolutely testamentary disposition of bis estate, whereand forever."
by it could happen that the interest which It seems clear to our minds that the fourth is the subject of the devise to Marion De clause of the testament, read together, means Vries should go undisposed of by his last this: That the testator intended to and did will. devise to Marion De Vries a present interest
The second proposition plainly deducible in remainder in the property described in from the second paragraph of the fourth said clause; that, counting upon the certain clause and which, we think, clearly confirms ty of death, but the uncertainty as to the the position that the devise to Marion should time thereof, and therefore the possible con- operate as a vested remainder, arises from tingency of Marion preceding his wife in the language itself of said second paragraph. death, he desired and intended that in the Therein, as we have seen, the testator proevent that that contingency happened before vides that, upon the happening of the condi. the remainder to Marion vested in him—tion upon which Minnie L. De Vries shall that is, before the death of the testator-take, “then all the interest herein and hereby then the estate so limited to Marion should devised and bequeathed to said Marion De go to the latter's wife. In other words, the Vries shall pass to and vest in and become testator devised to Marion a vested future the property of said Minnie L. De Vries," interest and to his wife a contingent future etc. Thus it will be noted that the words of interest in the same property. We think, as action--"devise” and “bequeath," as used in previously suggested, that this construction the preceding paragraph of said clause--are is fully sustained by these considerations dé- used in the second paragraph in the past ducible from the second paragraph itself: tense; that is, as denoting action already (1) Assuming, as is the contention, that the taken. In other words, to paraphrase the interest to Marion was not intended to vest fourth clause in its entirety, the testator until the determination of the life estate, if has therein declared: “I devise and bequeath Marion should precede in death his wife, to Marion De Vries the property herein deleaving lawful issue, before the termination scribed, the possession, however, to take efof the life estate, the result in that case fect on the determination of the estate for would not only be that Minnie L. De Vries life in said property to my wife, Mary J. would and could take nothing under the con- De Vries. But should my son, Marion, die, tingent devise to her upon the death of the leaving no lawful issue, before the death of life tenant, but that devise of the testa- his wife, Minnie L. De Vries, and prior to the ment would absolutely fail and the interest vesting in him of the estate or interest so devised necessarily be remitted to administra- devised to him, then the property which I tion, for it will be noted that there is no have already devised and bequeathed to said provision as to whom the property devised Marion shall pass to and vest in and become to Marion should go in the event Marion the property of said Minnie L. De Vries," died, leaving issue, prior to the death of his etc. In short, it appears reasonably clear wife and before the remainder to him became to our minds that by the use of the language a vested interest. We cannot persuade our in the second paragraph “then all the interselves, in view of the evident care with which est herein and hereby devised and bequeaththe whole testament was prepared and ex-ed to said Marion De Vries,” etc., the testaecuted, disclosing a clear design to thus tor intended to emphasize his intention as specifically dispose of all interests in his clearly implied from the employment of property, that the testator would have so words of present devise in the first paragraph arranged his disposal of one part of his es- that the right of enjoyment of the interest tate, of which undoubtedly he sought to make | devised to Marion should take effect or vest upon and coincidently with the beginning of, to postpone or suspend the vesting until the the life estate, or in other words, at the determination of the life estate in those indeath of the testator.
stances where words of present devise are That the testator had a clear conception used but where he did not intend the creaof the legal significance of words of present tion of vested interests. It is, therefore, devise, unqualified by other language or ex- very plain to our minds that the testator empressions, is indubitably shown, it appears ployed words of present gift in the devise to us, by the language of the devise to his to Marion advisedly and with the express son, Lee De Vries. Therein he likewise uses purpose of creating the nature of the interwords of present devise, but qualifies the est, as to the time of the vesting of the right same with, “To have and to hold the same thereto, which those words naturally im(the property) for and during all his natural port; that, had he intended that the interlife only, and thereafter to vest as herein- est so devised should constitute a contingent after stated, or to be taken by him absolute- remainder or vest only at the conclusion of ly, dependent upon the following events and the life estate by the death of the life tenconditions." Then follows a provision that ant, he would then, as in the case of the should Lee De Vries “die before I die, and devise to Lee, have so declared in express leave him lawful issue surviving, then and language or by words so clear and apposite upon the termination of the life estate here- as to have left no om for doubt upon that in created in my wife, if such lawful issue proposition. shall survive my said wife, then the said de-  It may be remarked that it is extrascribed real property hereby devised to my judicially declared in the brief of appellant said son, Lee De Vries, shall vest absolutely that it was held by the court below that the in fee simple in such lawful issue of my said provision of the testator's will for his son, son, Lee De Vries.” It is then provided that William G. De Vries, vests his remainder in if the wife of Lee De Vries die before him, him on the death of the testator. In other and Lee De Vries should “survive me and words, the court below, as we understand my wife, then and in that event, and upon the counsel for appellant, has construed the determination of the life estate hereby creat- | vise to William G. to create a vested future ed in my wife, all of the said real property interest. The devise to said son reads: hereby devised to my son, said Lee De Vries, “Unto my son, William Garland De Vries, shall absolutely vest in my son, said 'Lee De upon the termination of said life estate, I Vries, unaffected by any life estate therein." give, devise and bequeath all those certain It will be noticed that the initial language lots,” etc. There is no other provision, conof the devise to Lee De Vries, like the devise ditional or otherwise, contained in the testo Marion, contains words of present devise; tament with respect to the interest thus debut the testator later qualifies or limits the vised to William G. De Vries, and clearly effect of those words by annexing to said the court was right in holding that the indevise certain conditions upon which the interest so devised was a vested remainder. terest therein created is to vest. Indeed, by And, with the exception of the contingent express language the testator suspends the provision for Marion's wife, there is, in pracvesting of the fee in the interest devised to tical effect, no ground of distinction between Lee De Vries, for he specifically provides as the devise to Marion and the devise to Wil. a condition upon which such interest to Lee liam G. The only difference, as will readily shall vest that the latter must survive, not be observed, consists in the transposition of only the testator, but the life tenant. It will the words with which the two interests are likewise be noticed that in providing for an devised. Manifestly, therefore, if the devise interest in the issue of Lee De Vries, the to William G. creates a vested interest, it testator postpones, by express words, the must be true that the devise to Marion vesting of said interest in such issue until creates a like interest, unless it may be held the termination of the life estate; that is, that the contingent provision for Marion's the provision is that the issue of 'Lee must wife exercises some such influence on or consurvive the life tenant before the interest trol of the language in which the devise to so devised shall vest in them. It will fur- Marion is expressed as to make the interest ther be observed that in all the instances of so devised a contingent remainder, and this the postponement of the vesting of the in- we have shown cannot reasonably be held to terest devised to Lee De Vries apt words of be the effect of that provision. While this suspension, such as “then," "then and there- part of the discussion is merely argumentum upon,” “then and in that event,” immediate ad hominem, we notice the proposition that ly vest,” and “absolutely vest” are used as calls it forth because we have, after a careindicative of an intention to suspend the ful examination of the principal question prevesting.
sented here, been curious yet unable to perFrom the foregoing considerations, it is ceive the method of reasoning by which the very manifest, we think, that the testator, learned court below has discerned the slightin preparing and executing the testament be est distinction between the devise to Marion fore us, fully appreciated the necessity for and that to William G. De Vries. the use of express language by which to But we have pursued the discussion suffi. make clear and unquestionable his intention ciently. As stated, the only contingency
wbatever that we have been able to find in / at certain points as may be ordered by the Cor: the fourth clause of the testament relates poration Commission, and empowering saiz? solely to the provision for Minnie L. De to require surh companies to make such phys
commission, on complaint or on its own motion. Vries. As to the devise to Marion, we find ical connections and establish and maintain un. here "the existence in an ascertained person ion depots, etc.
, as the public interest may reof a present fixed right" of future enjoy-quire, is a valid exercise of legislative power.
And where it appears that appellant was in. ment. In other words, we can here “point corporated and under the laws of this state, and to a person who, if the life estate should thus acquired its right of way and station çease, would eo instante et ipso facto have grounds at D., that the effect of the order would an immediate right of possession,” and this, tions attached to a bonus of $10,000 to be used
be to compel it to fail to comply with the condi. as the Court of Appeals of New York says, in the construction of a depot upon said grounds in Moore v. Littel, 41 N. Y. 80, "is a vested and abandon its right of way, and, in order to remainder, and, by necessary consequence, extend its tracks to the union depot ordered all the contingencies which may operate to and run through two elevators, grade an ad
operated at D., to deflect its main line of road defeat the right of possession are to operate, ditional roadbed, and curve its track so acutely and only to operate, as conditions subse as to cause delay in handling its trains, all quent."
at a cost of about $50,000, held, notwithstandWe are satisfied for the reasons herein der' are valid either as a proper exercise of the
ing, that the act and the proceedings thereungiven that the testator intended a vested in- police power of the state or as a reasonable terest in his son, Marion De Vries, and the exercise of the right reserved to the Legislature order or decree appealed from is, therefore,
to amend, alter, or repeal the charter of ap
(Ed. Note. For other cases, see Railroads,
Cent. Dig. 88 130–136; Dec. Dig. 8 58.*] We concur: CHIPMAN, P. J.; BUR
4. STATUTES (185*)_IMPLIED POWERS. NETT, J.
Where a power is given by statute, there is carried with it power to do everything reason
ably necessary to make it effective. (29 Okl. 640)
(Ed. Note.-For other cases, see Statutes, MISSOURI, O. & G. RY. CO. et al. v. Cent. Dig. § 264; Dec. Dig. § 185.*] STATE.
Appeal from the Corporation Commission. (Supreme Court of Oklahoma. Feb. 9, 1911.)
Proceedings by the State against the Mis(Syllabus by the Court.)
souri, Oklahoma & Gulf Railway Company 1. RAILROADS ($ 6*)-REGULATION BY CORPO- and others to compel operation of a joint
COMMISSION – STATUTORY PROVI- depot. From an order of the Corporation SIONS.
Commission, requiring such a depot, the The act of May 20, 1908 (Laws 1908, c. 18), does not extend the jurisdiction of the
mentioned defendant appeals. Affirmed. Corporation Commission beyond the metes and Alexander New, E. R. Jones, and Arthur bounds fixed by article 9, $ 18, of the Consti- Miller, for appellant. Chas. West, Atty. Gen., tution, nor alter, amend, revise, or repeal sections of the Constitution from 18 to 34, inclu- and E. G. Spilman, Asst. Atty. Gen., for the sive, but is auxiliary and supplemental to said State. section 18, and provides a remedy for the enforcement and protection of certain rights thereby secured, and by legislative construction de
TURNER, C. J. At the conclusion of the fines those rights so that their exact limits may testimony taken on the hearing of the petibe known.
tion of several residents of Durant, a city (Ed. Note.-For other cases, see Railroads, of 5,300 inbabitants, theretofore filed before Dec. Dig. $ 6.*)
it, wherein they complain of the St. Louis 2. CONSTITUTIONAL LAW (20*)-CONSTRUC- & San Francisco Railroad Company, the Mis
- LEGISLATIVE CONSTRUCTION—“PUBLIC FACILITIES''-"PUBLIC CONVENIENCES.
souri, Kansas & Texas Railway Company, A clause in the Constitution and act pass- and the Missouri, Oklahoma & Gulf Railway ed by the first Legislature after the adoption Company, defendants, the Corporation Comof the Constitution, relating to the same subject, like statutes in pari materia, are to be mission on August 10, 1910, found: “It is construed together. And where such act im- shown from the evidence that the Missouri, pliedly construes “public facilities” or “public Kansas & Texas Railway and the Arkansas conveniences," as used in article 9, § 18, to in- & Choctaw branch of the Frisco intersect at clude a union passenger depot, such contemporary interpretation is entitled to great weight. the town of Durant, and that said railway and in this instance, being correct, will not be companies maintain a joint depot; that the disturbed.
Missouri, Oklahoma & Gulf has secured [Ed. Note.-For other cases, see Constitution right of way through the town of Durant ; al Law, Cent. Dig. $$ 14, 15: Dec. Dig. $ 20.* that said right of way crosses the Missouri,
For other definitions, see Words and Phrases, vol. 6. p. 5780; vol. 2, pp. 1556-1558; vol. 3, Kansas & Texas Railway in the north part p. 2637.)
of the town and parallels the said railway 3. RAILROADS (8 58*) — REGULATION - UNION from said crossing to the Arkansas & ChocSTATIONS.
taw branch of the Frisco, 470 feet east of The act of May 20, 1908 (Laws 1908. c. the Missouri, Kansas & Texas and Frisco 18), requiring every railroad company operating a railroad in this state to make such physical crossing; that the proposed site of the Misconnections, transfer, and switching facilities / souri, Oklahoma & Gulf depot is south and •For othor cases 50. samo topic and section NUMBER in Dec. Dig. & Am. Die Key No. Series & Rep'r Indexes
east of the main street in the town of Du- | Kansas & Texas Railway Companies in said rant and 400 feet east of the north end of town, suitable for the accommodation of the the joint depot used by the Missouri, Kansas passenger traffic into and out of said town, & Texas and Frisco; that the Missouri, and that said depot shall be used jointly by Kansas & Texas Railway has a double track | said companies on and after the 1st day or through the town of Durant; that east of December, 1909, and maintained for such said track it has a switch track and also a joint use until further orders of this commerchandise track east of the main line, mission." From which said order the Misleading to grain elevators; that there is a souri, Oklahoma & Gulf Railway Company, great deal of switching done on those tracks alone appeals. by the Missouri, Kansas & Texas; that pas- Assailing the order, appellant contends: sengers arriving over the Missouri, Kansas That the commission was without jurisdic& Texas and Frisco, desiring to take a Mis- tion to make it, because the same was based souri, Oklahoma & Gulf train, would have on the act of May 20, 1908, which, it is urgto cross these two tracks in order to get to ed, extends that jurisdiction beyond the the proposed site of the Missouri, Oklahoma metes and bounds fixed by article 9, § 18, & Gulf depot, thereby incurring additional Const., which reads: "The commission shall expense in transferring baggage, and making have the power and authority and be chargit very inconvenient and dangerous for the ed with the duty of supervising, regulating, traveling public in crossing from one depot and controlling all transportation and transto another. It is further shown that the pres- mission companies doing business in this ent depot of the Missouri, Kansas & Texas state, in all matters relating to the performRailway and Frisco Railroad is very con- ance of their public duties and their charges venient to the business part of the town, be- therefor, and of correcting abuses and preing located one block off the main street ; venting unjust discrimination and extortion that this depot is equipped with ample facil- by such companies; and to that end the comities to take care of the business of the three mission shall, from time to time, prescribe roads in the town of Durant at the present and enforce against such companies, in the time; that a union depot can be maintained manner hereinafter authorized, such rates, at much less expense to the railroads than charges, classifications of traffic, and rules separate depots. It appears from the testi- and regulations, and shall require them to mony of the engineer of the Missouri, Okla- establish and maintain all such public serv. homa & Gulf Railway that it would be very ice, facuities, and conveniences as may be expensive for said railway to secure right reasonable and just.
And which of way and run a track to connect with the said act having been passed prior to the joint depot of the Missouri, Kansas & Texas time fixed in section 35 of the same article, and Frisco; that the Missouri, Kansas & which reads, "After the second Monday in Texas and Missouri, Oklahoma & Gulf are January, nineteen hundred and nine, the competitive roads, and that the passenger Legislature may, by law, from time to time, traffic would be greatly decreased over the alter, amend, revise, or repeal sections from Missouri, Oklahoma & Gulf owing to the eighteen to thirty-four inclusive, of this arfact that the agent would be employed by ticle, or any of them, or any amendments the Missouri, Kansas & Texas and would thereof: Provided, that no amendment made invariably send passengers over the Missouri, under authority of this section shall contraKansas & Texas, instead of sending them vene the provisions of any part of this conover the Missouri, Oklahoma & Gulf. After stitution other than the said sections last a thorough investigation and careful consid-above referred to or any such amendinents eration of the evidence, the commission is of thereof,” is unconstitutional and void, and the opinion that the greater number of citi- for that reason the order must fall. On the zens of Durant and the traveling public other band, it is contended, in effect, that would be better accommodated by the main said act neither altered, amended, revised, tenance of a union passenger depot than by nor repealed sections from 18 to 34, inclusive, separate depots in the town of Durant; that but is ancillary and supplementary to said it would be dangerous for passengers trans- section 18 and provides a remedy for the enferring from one depot to another; and that forcement and protection of certain rights the proper safety and accommodations of thereby secured, and by legislative constructhe traveling public and the people of the tion in a measure defines those rights so that town of Durant require a passenger depot their exact limits might be known. This latused jointly by the Frisco, Missouri, Kansas ter contention is correct. Whether that part & Texas, and Missouri, Oklahoma & Gulf of said section authorizing the commission to Railways in the said town." And ordered: require all transportation companies doing
That the St. Louis & San Fran- business in the state to establish and maincisco Railroad Company, the Missouri, Kan- tain all such public service facilities, and sas & Texas Railway Company, and the Mis- conveniences as may be reasonable and just souri, Oklahoma & Gulf Railway operate a is self-executing or not, it was proper for the joint passenger depot in the town of Durant Legislature acting subordinate to said prori. at the present site of the depot used by the sion, and in furtherance thereof, as it did, St. Louis & San Francisco and Missouri, / to pass the act complained of. A constitu
tional provision rot self-executing is said to transfers, depots, and switching facilities at exist by Mr. Cooley in his work on Con. Lim., all such points, and thereupon, or upon its p. 221, "where it merely indicates principles own motion, to require such companies to without laying down rules by means of make such physical connection or to establish which those principles may be given the and maintain union depots, transfer and force of law." Speaking of when the pow- switching facilities as the public interest may er thus given is self-executing, on the next require, provided, etc. Section 3 provides: page, he says: "Perhaps even in such cas- "The expense incurred in the construction es legislation may be desirable by way of and maintenance of tbe physical connections, providing convenient remedies for the pro- union depots, transfer and switching facilitection of the right secured, or of regulating ties mentioned in the preceding sections of the claim of the right so that its exact lim- this act shall be borne by the companies opits may be known and understood; but all erating the different lines of railroad as such legislation must be subordinate to the such companies may agrer and in case of constitutional provision, and in furtherance disagreement the Corporation Commission of its purpose, and must not in any particu- shall determine the expense to be borne by lar attempt to narrow or embarrassit." | each, from which order the railroad comQuoting approvingly from Reeves v. Ander- pany or companies may appeal, as in other son et al., 13 Wash. 17, 42 Pac. 625, Mr. Jus- cases provided." Wich the legislative contice Williams, speaking for the court in struction contained in the act that a union State ex rel. Reardon, etc., v. Scales, Mayor, depot is a “public facility" or a “public conet al., 21 Okl. 683, 97 Pac. 584, said: "In venience" within the purview of that part our opinion it was competent for the Legis- of said section of the Constitution we have lature to supplement the constitutional pro- no quarrel. 32 Cyc. 748, says: “The word vision by pointing out the manner in which 'public' has two proper meanings. A thing the right conferred by the Constitution might may be said to be public when owned by the be exercised, and by prescribing rules for the public, and also when its uses are public. guidance of the city council in relation there- 27 Minn. 460." As to "facilities," 19 Cyc. to."
"Applied to railroads it means Such was all that was done or intended by everything necessary for the convenience of the act of May 20, 1908 (Laws 1908, p. 226, c. passengers and the safety and prompt trans18). Indicating what was meant in said seco portation of freight.” Or, as stated by this tion 18 by "public facilities” and “public con- court in the syllabus in C., R. I. & P. Ry. veniences," the Legislature passed said act Co. v. State, 23 Okl. 94, 99 Pac. 901: “The entitled, “An act to extend the jurisdiction phrase, 'such public service facilities and of the Corporation Commission over all mat- conveniences as may be reasonable and just,' ters of pbysical connection, union depots, as used in section 18, art. 9, of the Constituand sufficient transfer and switching facili- tion (Bunn's Ed. $ 222) means everything inties of the different railroads in the state of cident to the general, prompt, safe, and imOklahoma, and requiring all railroad com- partial performance of the duties to the pubpanies to make and maintain physical con- lic at large imposed by the state, in the propnections, transfers, switching facilities, and er exercise of its police power, upon transunion depots in the state of Oklahoma,” portation or transmission companies." And thereby impliedly declaring that it was the so, said act eliminated, we would have problegislative construction of that part of sec- ably so held, and that a depot of that kind tion 18 that physical connections, transfers, is such a “public facility” or “convenience," switching facilities, and union depots were as the commission was authorized by said included in the terms “public facilities" and section alone to require appellant to estab "public conveniences," and then proceeded in lish and maintain jointly with the other two the act to provide a remedy for the enforce- railroads in interest. Speaking to a simiment and protection of those rights secured lar situation, the court in Cooper Mfg. Co., by that part of section 18 of the Constitu- etc., v. Ferguson et al., 113 U. S. 727, 5 Sup. tion under consideration. Section 1 of said Ct. 739, 28 L. Ed. 1137, said: "As the clause act provides, in effect, that every railroad in the Constitution and the act of the Legiscompany operating a railroad in this state lature relate to the same subject, like statshall make such physical connections, trans- utes in pari materia, they are to be confers, and switching facilities at all junction strued together. Eskridge v. State, 25 Ala. points and all incorporated towns where 30. The act was passed by the first Legislamore than one railroad enters as may be or- ture that assembled after the adoption of dered by the Corporation Commission, and the Constitution, and has been allowed to rethat, when the interests of the public can be main upon the statute book to the present promoted, said commission is authorized to time. It must therefore be considered as a require physical connections between two or contemporary interpretation, entitled to much more lines of railway where practicable, re-weight. Stuart v. Laird, 1 Cranch, 299 (2 gardless of whether the roads cross one an- L. Ed. 115); Martin v. Hunter, 1 Wheat. other or not. Section 2 makes it the duty 304 [4 L Ed. 97]; Cohens v. Virginia, 6 of said commission to „nvestigate all com- Wheat. 264 [5 L. Ed. 257]; Adams v. Storey, plaints in reference to physical connections, l 1 Paine, 90 (Fed. Cas. No. 66)." We are