(118 Me. 248) BERMAN v. BEAUDRY et al. Except for the provision that three years' premiums and interest shall be deducted, the right of a solvent testator to dispose by will (Supreme Judicial Court of Maine. Sept. 10, of life insurance payable to himself is un 1919.) 1. WILLS 6-DISPOSITION OF LIFE INSURANCE "PERSONAL ESTATE." Rev. St. c. 80, § 21, empowering solvent persons to dispose of certain life insurance funds by will, is not limited by section 14, which gives a husband not mentioned in his wife's will certain statutory rights in her "personal estate," since the quoted words do not include life insurance proceeds. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Personal Estate.] qualified. "It [money received for life insurance, less three years' premiums and interest] may be disposed of by will." R. S. c. 80, § 21. No part of section 21, other than the sentence above quoted, applies in this case, except that the pronoun "it" necessarily looks back to the preceding sentence for its antecedent. All of the section preceding the above-quoted sentence refers to intestate es tates. The estate involved in this case is testate. All that follows refers to insolvent es2. WILLS 6-DISPOSITION OF LIFE INSUR- tates. Anaise Beaudry's estate is solvent. ANCE. [1] But the defendant Beaudry contends Under Rev. St. c. 80, § 21, only that por- that the provision of section 21, "It may be tion of the insurance remaining after deduct-disposed of by will," is qualified by section 14 ing three years' premiums, with interest, is subject to disposal by will. Exceptions from Supreme Judicial Court, Androscoggin County, in Equity. of the same chapter. Section 14, omitting parts here immaterial, without indicating the omitted parts by blanks, or otherwise, is as follows: "When no provision is made for her widowin the will of a testatrix such widower shall have and receive the same distributive share of the personal estate of such testatrix as is provided by law in intestate estates: Provided such widower shall, within six months after the probate of such will, file in the registry of probate written notice that he claims such share of the personal estate of such testatrix." Bill by Benjamin L. Berman, as executor of Anaise L. Beaudry, against Fred E. Beau-er dry and Frank Chesnel. A decree by the judge of probate in favor of the first-named defendant was reversed by a single justice, sitting as the court of probate, and such firstnamed defendant excepts. Exceptions sustained, with directions to modify decree. Argued before CORNISH, C. J., and HANSON, PHILBROOK, DUNN, MORRILL, and DEASY, JJ. Benjamin L. Berman, of Lewiston, pro se. Edgar M. Briggs, of Lewiston, for defendant Beaudry. No provision was made in the will of Anaise L. Beaudry for the defendant Fred E. Beaudry, her husband. He seasonably filed the notice of claim provided for by section 14. If money received from an insurance policy on the life of the testatrix were Geo. S. McCarty, of Lewiston, for defend- "personal estate of such testatrix," within ant Chesnel. DEASY, J. Anaise L. Beaudry died in 1916, childless, testate, and solvent. The complainant, executor of her will, has a sum of money collected from an insurance policy upon her life. To the defendant Chesnel, her brother, the testatrix bequeathed the life insurance. For the defendant Beaudry, her husband, she made no testamentary provision. the meaning of the statute, then the defendant Beaudry would be, notwithstanding the will, entitled to his distributive share of it under Revised Statutes, c. 80, § 20. But money so received is not "personal estate of the testatrix," within the purview of the act. This is so determined by Justice Strout's opinion in Golder v. Chandler, 87 Me. 69, 32 Atl. 784. Judge Strout's definition of the phrase “personal estate of such testatrix" is so completely adequate and the reasoning of the opinion is so convincing that no other authority need be cited. Neither is it necessary to expand this opinion by any extended quotation from it. The brother and husband both claim the insurance; the former under the will, and the latter under Revised Statutes, c. 80, § 14. The executor brought a bill in equity in the probate court for Androscoggin county, The other authorities cited are not in praying for a construction of the will, and point. Hathaway v. Sherman, 61 Me. 466, reespecially for a determination of the owner- lates to insolvent estates. Blouin v. Phaneuf, ship of the insurance fund. The decree of S1 Me. 180, 16 Atl. 540, holds that insurance the judge of probate was in favor of the hus- can be by will diverted from a widow and band. The brother appealed. The single children only if such intention be "well deJudge, sitting as the court of probate, revers-clared" in the will. Hamilton v. McQuillan, ed the decree. The husband, Beaudry, ex- 82 Me. 204, 19 Atl. 167, decides that a solcepts to this ruling. vent testator may bequeath insurance money (107 A.) The effect | power; so that, the preamble of Pub. Laws the case. 1919, c. 112, merely declaring an emergency, but not stating the facts constituting it, the act cannot, as provided therein, take immediate effect. to a person other than his widow. When, by chapter 74 of the Public Laws of 1905, the Legislature amended chapter 80, section 21 (then chapter 77, section 19, Rev. St. 1903), it did not make a corresponding change in R. S. 1916, c. 68, § 50. Whatever the reason for or effect of this omission may have been, it does not affect our conclusion in this case. Argued before CORNISH, C. J., and HANSON, PHILBROOK, DUNN, MORRILL, and The insurance fund should be paid to DEASY, JJ. Frank Chesnel, the legatee. [2] But from it should be first deducted three years' premiums, with interest. This is required by section 21. The clause requiring this deduction qualifies, not the sentence merely, but the section in which it is contained. The antecedent of the pronoun "it," beginning the second sentence of section 21, is "money received for insurance [after] deducting," etc. Moreover, the Legislature cannot be presumed to have intended to discriminate against dependents and in favor of legatees, by providing for a deduction from the former and not from the latter. The single justice decreed that the entire insurance fund should be paid to the legatee, without deduction. We hold that the executor should first deduct from the fund an amount equal to three years' premiums, with interest, and administer the same as a part of the estate. The balance should be paid to Frank Chesnel, the legatee. The justice was in error in not providing for the deduction. For this reason the exceptions must be sustained. John J. Devine and Samuel L. Bates, both of Portland, for petitioner. Carroll L. Beedy and Clement F. Robinson, both of Portland, for respondent. DEASY, J. In May, 1919, Vera Payne was indicted and convicted in the superior court, Cumberland county, for violation of chapter 112 of the Public Laws of 1919, which act, approved March 27, 1919, makes more stringent the provisions of statute for the prevention and punishment of sexual crimes. She presents her petition for writ of habeas corpus, upon the ground that at the time of her indictment and conviction chapter 112 had not become effective as law. Section 7 of the act is as follows: amble this act shall take effect when approved." "In view of the emergency cited in the pre But the petitioner says that chapter 112, notwithstanding this legislative pronouncement, is not an emergency act, and that it did not take effect until 90 days after the recess of the Legislature, which period expired Exceptions sustained. Decree to be modi- after her conviction. fied in accordance with this opinion. (118 Me. 251) PAYNE v. GRAHAM. The amended Constitution of Maine, article 4, part third, section 16, is as follows: "No act or joint resolution of the Legislature, except such orders or resolutions as pertain solely to facilitating the performance of the business of the Legislature, of either branch, or of any committee or officer thereof, or ap (Supreme Judicial Court of Maine. Sept. 10, propriate money therefor or for the payment 1919.) of salaries fixed by law, shall take effect until 2. STATUTES 251-TIME OF TAKING EFFECT not include (1) an infringement of the right -EMERGENCY CLAUSE. of home rule for municipalities, (2) a franAmended Const. art. 4, pt. 3, § 16, providing chise or a license to a corporation or an inthat no act, except of certain classes, shall take dividual to extend longer than one year, or effect until 90 days after recess, unless in case (3) provision for the sale or purchase or rentof emergency, which with the facts consti- ing for more than five years of real estate." tuting the emergency shall be expressed in the preamble, the Legislature shall otherwise The petitioner contends that the act in direct, creates a limitation on the legislative question is not immediately necessary for For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the preservation of the public peace, health,, touched upon in any of the above-cited cases, or safety, and that the court should so de- we hold that chapter 112 did not take imclare. mediate effect as an emergency act. But the state maintains that the question presented is one for final legislative determination. The leading case touching this matter is Kadderly v. City of Portland, 44 Or. 120, 74 Pac. 721, 75 Pac. 222. The opinion in this case sustains the state's contention. See, also, to same effect Hanson v. Hodges, 109 Ark. 479, 160 S. W. 392; Oklahoma City v. Shields, 22 Okl. 265, 100 Pac. 559; In re Menefee, 22 Okl. 365, 97 Pac. 1014; In re Senate Resolutions, 54 Colo. 269, 130 Pac. 336; Bennett Trust Co. v. Sengstacken, 58 Or. 333, 113 Pac. 863. But in the case of State v. Meath, 84 Wash. 302, 147 Pac. 11, the doctrine of the Oregon court is by a majority opinion denied, and its conclusions rejected. Other cases also hold that the question is one for court review. State v. Whisman, 36 S. D. 260, 154 N. W. 711, L. R. A. 1917B, 1; Miami County v. City of Dayton, 92 Ohio St. 215, 110 N. E. 728; Attorney General v. Lindsay, 178 Mich. 542, 145 N. W. 98. Obviously the test is the extent to which legislative power is limited by the Constitution. Constitutional limitations are subjects of judicial interpretation and effectuation. Questions of public policy, such as the justice, expediency, necessity, or urgency (immediate necessity) of laws are for fina. legislative determination. But the contrci ly the Legislature of even these questions may be qualified by express constitutional lim itation. Of the states that have provided for giving emergency acts immediate effect, generally in connection with the initiative and referendum, the Constitutions of nearly all provide in effect that emergency legislation shall include only such measures as are immediately necessary for the preservation of the public health, peace, or safety. But our Constitution goes further and requires that the emergency "with the facts constituting the emergency shall be expressed in the preamble of the act." The only state Constitutions containing similar language are those of California, article 4, § 1; Ohio, article 2, § 1d; North Dakota, article 2, § 67; Mississippi, amendment of 1914 (see Laws 1914, c. 520); Massachusetts, amendment of 1918. In neither of these is the language precisely like that of the Maine Constitution, but all require that the facts constituting, or reasons for, an emergency be expressed or set forth in the preamble or some part of the act. Our investigation does not disclose that in either of these states such constitutional provisions have been judicially interpreted. The case of City of Roanoke v. Elliott (Va.) 96 S. E. 821, construes that clause of the Virginia Constitution reading: "The emergency shall be expressed in the body of the bill" (Const. § 53). The Virginia Constitution does not require the facts or reasons to be expressed, and it is held that in the absence of an explicit constitutional mandate the facts need not be set forth. We think it clear that the above-quoted limitation upon legislative power, and that language of the Maine Constitution creates a without conforming to it no act can be made an emergency act, and as such be given immediate effect. The preamble of chapter 112, under consideration, is as follows: "Whereas, owing to the necessity of preserving the public health in general, the enactment of more stringent laws prohibiting prostitution, lewdness and assignation and providing punishment therefor, is an emergency measure immediately necessary for the preservation of the public peace, health or safety." The only Maine case touching the subject is Lemaire v. Crockett, 116 Me. 267, 101 Atl. 302. This case is not directly in point, because it involves one of the express limitations of the Constitution. Though it may deem an act which is an "infringement of the right of home rule for municipalities" to be immediately necessary, the Legislature is forbidden by the positive mandate of the Constitution to give it immmediate effect. Whether a given act is such an infringement is a judicial question. The case of Lemaire v. Crockett does not reach the question concerning which courts differ so radically; i. e., whether the words, "An emergency bill shall This preamble contains an assumption that include only such measures as are immediate there is "a necessity of preserving the public ly necessary for the preservation of the pub-health in general," and a conclusion that "the lic peace, health or safety," or other similar enactment of more stringent laws language, creates a limitation upon legislative power which the courts have jurisdiction to interpret and give effect to. [1, 2] We are mindful of the long-established rule that questions of constitutional law should not be passed upon, unless strictly necessary to a decision of the cause under consideration. We therefore defer expressing a final opinion upon the question concerning which, as appears above, courts are is an emergency measure." It contains no statement of facts, as required by the Constitution, and no facts that are even suggestive of an emergency. In argument, indeed, facts are presented which give the act an emergent character. In argument it is said that a great World War had been raging; that, while an armistice had been declared, large bodies of troops were still assembled; that for preventing the (107 A.) orders, destructive of military efficiency, existing laws were inadequate; and that the federal authorities had requested the cooperation of the state in meeting these conditions. But these facts are not, as the Constitution requires, expressed in the preamble. The facts constituting the emergency are expressed in the briefs of counsel, instead of in the preamble of the act. Chapter 112 is therefore not an emergency act as defined by the Constitution. It did not take effect until after the petitioner's indictment and convic tion. Her detention is therefore not war- Writ of habeas corpus to issue. (264 Pa. 304) DIAMOND ALKALI CO. v. ÆTNA EXPLO SIVES CO., Inc. The court's second conclusion of law was as follows: "Plaintiff is entitled to an accounting for all soda ash delivered to it by defendant in excess of requirements for manufacturing explosives and for profits realized from sale or other disposition thereof." The court entered a decree requiring defendant to account to plaintiff for profits realized from sale of all soda ash received from the plaintiff, in excess of defendant's requirements in the manufacture of explosives. The defendant appealed. Argued before BROWN, C. J., and STEWART, FRAZER, WALLING, SIMPSON, and KEPHART, JJ. B. J. Jarrett and McCook & Jarrett, all of Pittsburgh, for appellant. Edwin W. Smith and William M. Robinson, both of Pittsburgh, for appellee. BROWN, C. J. The decree brought up on this appeal is that the appellant, the defend (Supreme Court of Pennsylvania. April 14, ant below, account to the appellee for profits 1919.) SALES 71(4) RESALE BY BUYER-AC COUNTING. Under contract for sale of soda ash at fixed price to extent of "buyer's entire requirements during 1916, minimum quantity 180 tons per month and maximum 250 tons monthly," without other agreement as to contract or subjectmatter, the buyer, a manufacturing company, was entitled to receive amount stipulated in contract, whether required in its business or not, and was not accountable to seller for profits on resales of soda ash delivered to it. Appeal from Court of Common Pleas, gheny County. which it realized on the sales of soda ash delivered to it by the appellee in pursuance of a written contract between them, dated October 15, 1915. It is as follows: "The Diamond Alkali Company (seller) hereby agrees to manufacture for and sell to Etna Explosives Company, New York, N. Y. (buyer), and buyer hereby agrees to buy from seller: Quantity: Buyer's entire requirements during 1916; minimum quantity 180 tons per month and maximum 250 tons monthly. Also 230 tons for shipment in equal monthly quantities during November and December, 1915. Kind: 58% light soda ash. Shipment: In carload lots. Alle-packed in bags. If shipped in bulk, 7c. per Price: $1.00 per hundred pounds, basis 58%, cwt. to be deducted from above price. Deliveries: F. o. b. Painesville, Ohio. Terms: Cash Pittsburgh exchange. Each shipment to conin 10 days, less 1%. Payable in New York or stitute a separate sale, but failure of buyer to fulfill terms of payment or to accept any shipment tendered in accordance herewith shall, at receive any and all further shipments. Buyers seller's option, operate as an express refusal to must give sellers at least 30 days' notice of their requirements for each ensuing month. Claims for errors, deficiencies or imperfections must be made in writing by buyer to seller within ten days after receipt of goods. Serious fires, strikes, differences with workmen, accidents to machinery, shortage of cars, or any other causes unavoidable or beyond seller's rea Bill in equity for an accounting by the Diamond Alkali Company against the Etna Explosives Company, Incorporated. From a decree ordering an accounting, defendant appeals. Reversed, and bill dismissed. The defendant's third and fourth requests for conclusions of law and the answers of the court were as follows: "Third. There is no evidence that the defendant ordered more soda ash than it had a right to order under the contract. "Refused." "Fourth. Under the contract, the plaintiff was bound to deliver to the defendant and the defendant was bound to accept at least the mini-sonable control, shall excuse any delay in shipmum amount of soda ash called for in the contract, namely, 180 tons per month, during the year 1916, and to this extent the contract was definite and certain as to the quantity of soda ash contracted for. "Answer. Defendant had the legal right to call for 180 to 250 tons monthly, provided it needed that quantity in its business as a manufacturer. Plaintiff was not bound to deliver any soda ash not ordered by defendant." ments caused thereby. There are no understandings or agreements relative to this contract or its subject-matter that are not fully expressed herein." The case was disposed of below on bill and answer, from which the learned chancellor found six facts; the third and fifth being the only ones material in considering the question before us. They are: For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes "Third. The shipments of soda ash, pursuant to orders from defendant, were less than the minimum specified in the agreement." "Fifth. Defendant purchased and plaintiff delivered soda ash, which defendant did not use in its business as a manufacturer of explosives, and the excess quantity so obtained was sold by defendant at a profit." and obligations under the contract are alone involved, and they are that for one year the appellee was to be prepared to deliver, and the appellant to take, not less than 180 tons of soda ash per month, with the right to demand 70 more each month. The right of each party to the contract is to enforce it against the other. The learned chancellor below, however, was of opinion: "If 250 tons monthly was the quantity required to meet defendant's needs, it could have called for delivery of that quantity; but if 50 The decree was made on this last finding; the court below sustaining the chancellor's construction of the contract, that under it the appellant could order only such quantities of soda ash between the minimum and maxi-tons were sufficient, it could not demand more." mum limits as were required in its manufacture of explosives. There is not a doubtful or ambiguous word in the contract, and its concluding clause is: "There are no understandings or agreements relative to this contract or its subject-matter that are not fully expressed herein." Notwithstanding this explicit declaration by the parties, the court below read into the contract: "Buyer's entire requirements in its business as a manufacture in 1916." er. The complaint of the appellee, sustained by the court below, is that the appellant perverted the contract in reselling what it was bound to take from the appellee. What terms in the contract did it pervert? What did it do that it was forbidden to do? To find the appellant guilty of "perversion" of the contract, as styled by the court below, words must be written into it, in the face of the clearly expressed intention of the parties to it that there were to be "no understandings or agreements relative to this contract or its subject-matter that are not fully expressed herein." Reading of words into a contract was attempted in Highlands Chem contract provided that the plaintiff should supply the defendant with oil of vitrol for one year, "total amount to be called for during that time to be not more than ten thousand (10,000) or less than seven thousand the maximum quantity, which the plaintiff failed to deliver. In a suit to recover for what had been delivered, the defendant claimed as a set-off the difference between the market price and the contract price of what had not been delivered to him. The plaintiff thereupon attempted to import into the contract words to the effect that the acid was to be used in the defendant's busi demand more than was required for that purpose. In holding that the contract could not be so construed, the court of appeals said: What the appellant's business was at the time the contract was entered into cannot be gathered from it. As a matter of fact itical Co. v. Matthews, 76 N. Y. 145, where the was a manufacturing concern, and the requirements of its business as a manufacturer during 1916 may not have been 180 tons of soda ash a month; but, whether they were or not, it was bound by the terms of its contract to take that quantity from the plaintiff. | (7,000) carboys." The defendant called for The latter furnished it less. The minimum and maximum quantities fixed in the contract were not merely probable estimates of the quantities which the appellant was to take, as was the case in Marx v. American Malting Co., 169 Fed. 582, 95 C. C. A. 80, one of the authorities relied upon by learned counsel for appellee, but were definitely fixed quantities, which the appellant could demand and the appellee was required to deliv-ness, and that he had therefore no right to The latter was bound to hold itself in readiness to make shipments ordered by the appellant under the contract, and it, in turn, was bound to receive from the appellee the minimum quantity contracted for. Dimmick v. Banning, Cooper & Co., 256 Pa. 295, 100 Atl. 871. Though the appellant was so bound, it could not, under the lower court's construction of the contract, resell any portion of the minimum quantity which it was required to take, if it found that the entire quantity was not actually required in its business. There is no averment in the bill that it had acted in bad faith, or even knew that its orders, when given, were in excess of its require- In the present case the parties to the conments. The mere averment is that it had tract fixed definitely the quantity of soda ash ordered soda ash in excess of its requirements the appellant was obliged to receive and the in its business of manufacturing explosives, appellee was obliged to deliver. It was thereand had resold the same. The question of fore no concern of the latter what the forbad faith on its part towards the appellee mer may have done with what it was bound is not to be regarded as involved in this con- to receive. If the price of the material had troversy between them. Their mutual rights | fallen, it would have been compelled to bear "The defendant was bound to take the minimum amount, whether he needed or desired it for the purposes of his business or not; and the correlative obligation rested upon the plaintiff to deliver any amount within the maximum fixed by the contract, if called for by the defendant. The contract of the plaintiff is not to supply an amount within the limits named, if needed by the defendant in his business. To introduce this qualification would be adding a new term to the contract." |