TEXAS SUPREME COURT. George SCHONFIELD et al., by Guardian | Rep. 140; May, Ins. § 112; Murphy v. Red, 64 ER (December 6, 1889.) RROR to the District Court of Rusk County to review a judgment in favor of plaintiff in an action to recover the amount due upon a mutual benefit certificate at the death of the member insured, to which the deceased member's heirs were made parties defendant. Reversed. · The case is fully stated in the opinion. Messrs. Rufus Price and F. B. Sexton for plaintiffs in error. Messrs. Booty & Young, J. H. Turner and Martin Casey, for defendant in error: When the person whose life is insured voluntarily, without the request or solicitation of the person to whom the policy is made payable, procures an insurance on his life, and then has the loss made payable even to one having no insurable interest in his life, the policy is valid. Every person has an insurable interest in his own life; and where any person procures a policy on his own life, and appoints another as his beneficiary, that beneficiary need not allege in his pleading an interest in the life of the insured. May, Ins. § 106, p. 110; Elkhart Mut. Aid B. & R. Asso. v. Houghton, 103 Ind. 256, 53 Am. Rep. 516, and authorities cited; Langdon V. Union Mut. L. Ins. Co. 14 Fed. Rep. 272; Bloomington Mut. B. Asso. v. Blue, 120 Ill. 121. The insurance of one's life by a party for the benefit of one not a relative is not void on the grounds of public policy, as tending to encourage the commission of crime. But if it were, no one but the insurer can raise the question; that cannot be urged by the heirs of the person insured. Johnson v. Van Epps, 110 Ill. 562. insurance to one who has no interest in the A sale and assignment of a policy of life life insured, made, not as a contrivance to circumvent the law, but as an honest and bona fide transaction, is valid. See Mutual L. Ins. Co. v. Allen, 138 Mass. 24, 52 Am. Rep. 245, 252 and cases there cited; Bursinger v. Bank of Watertown, 67 Wis. 75, 58 Am. Rep. 849, and authorities cited. When the person whose life is insured is himself the actor in the matter, the amount of temptation held out to others to take his life may be left to his discretion. Equitable L. Assur. Society v. Paterson, 41 Ga. 338, 5 Am. Rep. 535; Bloomington Mut. Ben. Asso. v. Blue and Bursinger v. Bank of Watertown, 'supra; Murphy v. Red, 64 Miss. 614; Lamont v. Hotel Men's Mut. Ben. Asso. 30 Fed. Rep. 817; Lamont v. Grand Lodge Iowa L. of H. 31 Fed. Rep. 177. See authorities cited to note in Currier v. NOTE.-Mutual benefit certificate; transfer of. There are some essential differences usually existing between the contracts evidenced by benefit certificates and the ordinary contract of life insurance. The certificate constitutes the contract and the holder thereof has power to change the beneficiary. Presbyterian Assur. Fund v. Allen, 4 West. Rep. 712, 106 Ind. 593; Elkhart Mut. Aid, Benev. & R. Asso. v. Houghton, 1 West. Rep. 284, 103 Ind. 286, 53 Am. Rep. 514; Bauer v. Samson Lodge, K. of P. 102 Ind. 262. ent at the time of his death does not invalidate the assignment where it is not shown that he was insolvent at the time he made the assignment. Ibil. A sale, for a valuable consideration, of mutual benefit certificates insuring a member's life, has been held void, not only by force of the society's regulations, where they prohibit such sales, but also as against public policy. Stoelker v. Thornton (Ala.) 6 L. R. A. 140. Mutual assessment societies. See Burdon v. Mass. Safety Fund Asso. 1 L. R. A. 146, 6 New Eng. Rep. 840, 147 Mass. 360. Remedy for refusal to levy assessment. Jackson v. Northwestern Mut. Relief Asso. 2 L. R. A. 786, 73 Wis. 507. Benefit societies, what are. See Rockhold v. Canton Mas. Mut. Benev. Asso. (Ill.) 2 L. R. A. 420; property rights: Merrill Lodge, I. O. G. T. v. Eils An assignment may be good between the parties, although the assent of the company is required by the terms of the contract and has not been obtained. Marcus v. St. Louis Mut. L. Ins. Co. 68 N. Y. 625; Lee v. Murrell, 9 Ky. L. Rep. (Ky. Superior Ct.) 104. Where a member of a mutual benefit society obtains the insurance himself and pays the premiums, the fact that his assignee of the certificate of mem-worth, 2 L. R. A. 841, 78 Cal. 166; dissolution: Chicago bership has no insurable interest in his life will not prevent such assignee from collecting the benefit. Milner v. Bowman, 5 L. R. A. 95, 119 Ind. 448. The fact that a member of a mutual benefit society who assigned the membership certificate was insolv Mut. I. Indemnity Asso. v. Hunt, 2 L. R. A. 549, 127 Ill. 257; power to make by-laws: Supreme Lodge, K. of P. v. Knight, 3 L. R. A. 409, 117 Ind. 489; enlarged powers conferred by statute: Marsh v. Supreme Council, A. L. of H. 4 L. R. A. 382, 149 Mass. 512. See also 9 L. R. A. 841; 11 L. R. A. 205; 15 L. R. A. 114; 24 L. R. A. 664. to furnish insurance upon the lives of the mem- | ond one, for the same amount, payable to T. P. bers of its subordinate lodges. In the year 1880 one David Schonfield became a member of the order. Among the objects of the corporation, its charter states one in the following language: "To promote benevolence and charity by establishing a widows' and orphans' benefit fund, from which, on satisfactory evidence of the death of a member of the corporation who has complied with its lawful requirements, a sum, not exceeding five thousand dollars, shall be paid to his family, or as he may direct." The constitution of the corporation at the same date, among others, contained the following provisions: "Each applicant shall direct in his application to whom he desires his death benefit paid. The beneficiary may be changed as the member may thereafter direct, in accordance with the laws of this order, and such changes shall be entered in the benefit certificate. A member may at any time, while in good standing, surrender his certificate, which, together with a fee of fifty cents, shall be forwarded by the reporter of his lodge, under seal, to the supreme reporter, who shall thereupon cancel the old certificate, and issue a new one in lieu thereof to such member, payable as he shall have directed; said direction and surrender to be made on the back of the benefit certificate surrendered, signed by the member, and attested by the reporter, under scal of the lodge. In the event of the death of one or more of the beneficiaries designated by the member before the decease of such member, if he shall make no further disposition thereof, upon his death such benefit shall be paid in full to the surviving beneficiary or beneficiaries, each sharing pro rata as provided in the benefit certificate. In the event of the death of all the beneficiaries designated by the member before the decease of such member, if he shall make no other disposition thereof, the benefit shall be paid to the heirs of the deceased member, and, if no person or persons shall be entitled to receive such benefit by the laws of this order, it shall revert to the widows' and orphans' benefit fund." When Schonfield first became a member of a lodge, he received a "benefit certificate," issued under the above-quoted charter and constitutional regulation, binding the supreme lodge of the corporation to pay out of the widows' and orphans' benefit fund to one Friedlander the sum of $2,000, in accordance with and under the laws governing the order, upon satisfactory evidence of the death of said mem ber and the surrender of the certificate; provided that the certificate had not been surrendered by said member, or canceled at his request, and another certificate issued in accordance with the laws of the order. After paying his dues for several years, Schonfield's health failed him, and he seems to have become very poor, having neither the money necessary for his per sonal maintenance or to pay his dues to the lodge. In this condition of affairs the appellee, T. P. | Turner, furnished him $50, and took from him a transfer of his benefit certificate. The transfer was made by Schonfield, by filling up and signing a blank transfer on the back of the benefit certificate. Subsequently, on the 28th day of June, 1884, the Supreme Lodge, Knights of Honor, upon Schonfield's surrendering the first certificate, issued to him, in lieu thereof, a sec Turner, and similar in all respects to the first one. The laws of the order when the two certificates were issued, as well as the terms and conditions of the certificates themselves, were substantially the same, and so remained until the 1st day of July, 1884, when an amendment of the constitution of the order went into effect, whereby a clause of the constitution formerly reading that the insurance money be paid "to his [the member's] family, or as he may direct," was so changed as to read that it should be paid "to such member of his family, or person dependent on him, as he may direct, and may designate by name. After Turner purchased the certificate, he paid the required assessments and dues until Schonfield died, the whole amount paid out by him, including the $50, having been, according to his own testimony, "$75 or $80." It seems that it was not considered by any of the parties necessary to consult Friedlander about the transfer, or the surrender of the first certificate, and that in fact he did not participate in either act. David Schonfield, when he joined the order, had a wife and five minor children. He did not live with or provide for them, and it seems that none of the parties to the aforesaid transaction had any knowledge that he had a family, or that he had ever had a wife. Ie was divorced from his wife. He died on the 20th day of September, 1884. The corporation collected the money from its members; but, before it was paid to Turner, as the holder of the benefit certificate, the children of Echonfeld, and their mother, asserted a claim to it, upon which the corporation declined to pay it to either party. Turner sued the corporation to recover the money. The corporation answered, admitting that it held the money, and asking that the five children of David Schofield, who were all minors, and whose names were alleged in the answer to be, Emma, Bertie, George, Tibbie and Fred Schonfield, and their mother, Laura Schonfield Schuterlee, be made parties defendant. The defendant brought into court the amount of money in controversy, to be held by the clerk, and paid over to the party adjudged to be entitled to it. The record does not show that process was issued or served as prayed for by defendant, but Laura Schonfield Schuterlee, Emma Schonfield, Bertie Schonfield, Fred Schonfield and Tibbie Schonfield appeared by attorney and answered, alleging that they had been cited to answer. wards an order was entered appointing a guardian ad liten for Emma Schonfield, Bertie Schonfield, George Schonfield, Fred Schonfield and Tibbie Schonfield. The record does not show that the minor George Schonfield was ever cited, or that any answer for him was ever filed. There was a suggestion of the marriage of Laura Schonfield Schuteriee, but her husband was never made a party, and never appeared or pleaded. A judgment was rendered, on the verdict of a jury, in favor of plaintiff. The minors, Emma Schonfield, Bertie Schonfield, George Schonfield, Fred Schonfield and Tibbie Schonfield, by their guardian el litem, prosecute this writ of error to reverse the judgment. After Turner was not related by blood or otherwise to David Schonfield. He was not his it. The rule and the practice that permitted the member, and him alone, to dispose of the insurance at his own pleasure, without regard to any right or claim of any person to whom it had been issued or transferred, is utterly incon any person other than the member himself. That mode of dealing with it is consistent only with the proposition that the party in whose name it was, whether originally or by transfer, held it merely as a trustee, for the use and benefit of the member. Upon the death of the member the beneficial interest vested in his heirs. When the person designated to receive the insurance is held by the law incapable of taking it for his own use, on grounds of public policy, it will be entirely consistent with the manifest purposes of the order to make the same disposition of the money that would bave been made if he had been dead. As we have seen, the laws of the order direct it to be paid, in that contingency, to the heirs of the member; not to the heirs of the holder or transferee of the benefit certificate. Such holder of the certificate may, no doubt, collect the money for the use of the heirs, and enforce such proper claims of his own against the fund as the law recognizes. creditor, and consequently had no insurable | Schonfield died without otherwise disposing of interest in his life. It is contrary to public policy to allow anyone not owning such insur able interest to become the owner, by assignment or otherwise, of insurance upon the life of a human being. A creditor of the assured may lawfully become the owner of such insur-sistent with the idea of a beneficial interest in ance to an extent requisite to protect him from ultimate loss of his demand; and a purchaser or assignee of it will be recognized as having an interest in it sufficient to repay him the purchase or other money invested in it by him, including advancements, in the nature of dues, assessments and premiums, to preserve and keep the insurance in force, with lawful interest thereon. What amount a creditor, as such, may procure insurance for, and the rules regulating his collection of it, depend upon contingencies not necessary to discuss in this case. What the policy of the law forbids to be done must be treated by courts, when administering the law, as never having been done. The undisputed evidence is that Turner's first claim of ownership of the insurance was through an assignment to him of the Friedlander benefit certificate. The case, in this respect, comes directly within the decision of this court in the case of Price v. Knights of Honor, 68 Tex. 361, in which it is held that such a transfer is pro hibited by law. The fact that subsequently Schönfield surrendered the transferred certificate to the lodge, and procured another one, payable directly to Turner, does not change the principle, or affect the result. The public policy that forbids such transactions is entirely independent of the consent or control of the insurer or the insured. After allowing to appellee the $50 originally paid, and amount subsequently paid by him for dues and assessments, with interest thereon at the rate of 8 per cent per annum, the remainder of the money belongs to the heirs of David Schonfield, as they existed at the date of his death. If his wife had then been divorced, she was not one or them, and is not in any capacity entitled to a share of the money. On another trial the exception to the pleading of plaintiff charging that she was divorced, instead of being sustained, ought to be overruled. The judgment is reversed, and the cause is re We think it clear that the laws of the order at the dates of the transactions in question rec. ognized David Schonfield as the only beneficial owner of the insurance, and that the person named in the certificate, whether it was Friedlander or Turner, was only an appointee to col-manded. lect and receive the money, in the event that Statutes giving mechanics' liens are remedial, and must be liberally construed. White Lake Lumber Co. v. Russell, 22 Neb. 126; Montandon v. Deas, 14 Ala. 33; Brown v. Pendergast, 7 Allen, 427. The court should not narrow the meaning of the term "protection." Even if the expression special, but the reason general, the expression be deemed general. A lien for the price of lubricating oil furnished for use on machinery in a mill is not given is by a statute giving a lien for any materials fur-will nished for the protection of any building or any machinery which becomes a part of the freehold. (January 28, 1890.) APPEAL by plaintiff from a judgment of the Circuit Court for Bayfield County denying its claim to a lien upon certain premises for the price of lubricating oil furnished for use upon machinery situated thereon. Affirmed. The case sufficiently appears in the opinion. Messrs. Lamoreux & Gleason, for appellant: Brown v. Pendergast, supra. Courts universally give a broad and liberal construction to the language of lien statutes. Hazard Powder Co. v. Byrnes, 12 Abb. Pr. 469; Dixon v. La Farge, 1 E. D. Smith, 722; Keystone Min. Co. v. Gallagher, 5 Colo. 23. Messrs. Miles & Shea, for respondents: In determining the question whether a lien attaches, the Massachusetts court construes a lien statute strictly because it is in derogation of the common law. Trask v. Searle, 121 Mass. 229. In this respect Illinois is in harmony with Massachusetts. Stephens v. Holmes, 64 Пl. 336; Canisius v. Merrill, 65 Ill. 67, 2 Jones, Liens, § 1554. The materialman's lien always goes on the theory that the material has become a fixture, part and parcel of the realty, or that it was purchased with that intention and understand ing. Spruhen v. Stout, 52 Wis. 517; Dimmick v. Cook, 7 Cent. Rep. 191, 115 Pa. 573; Pond Mach. Tool Co. v. Robinson, 38 Minn. 272. Cole, Ch. J., delivered the opinion of the -court: We think the decision of the court below, holding that the plaintiff was not entitled to a lien for its debt, was correct and must be affirmed. Its claim was for lubricating oil sold, to be used, and actually used, on the machinery in the mill situated on the premises described in the complaint. There is no dispute about the facts of the case. The only question is, Does the Statute give a lien for the claim for oil furnished for such purpose? It is contended on the part of the plaintiff that it does, because, it is said, the oil was necessary to protect the machinery against the effects of friction while it was in motion, and to prevent it from wearing out. The solution of the question involved depends entirely upon the construction of the Statute giving mechanics' liens. The Statute provides, in effect, that every person who, as principal contractor, architect, etc., performs any work or furnishes any materials in or about the erection, construction, protection or removal of any dwelling-house or other building, or any machinery erected or constructed so as to be or become a part of a freehold upon which it is to be situated, shall have a lien for such labor and materials. § 3314, as amended. See 2 Sanb. & B. Ann. Stat. 1841. Lubricating oil sold to be used, and actually used, in operating the mill machinery, may protect such machinery against the effects of 7 L. R. A. friction, and thus preserve it from injury. But is it the in ent of the Statute to give a lien for everything used on machinery which may protect it, and preserve it or keep it from wearing out? The Statute seems to go on the principle that materials used and labor performed on machinery which enhance its value, and become a part of such machinery, should be entitled to a lien. This appears to be the object of the Statute. It is clear that it is not everything used in operating machinery, and which tends to preserve it, that is embraced within the meaning of the Statute. Many things may serve to preserve machinery, and make it operate more efficiently and easily, which do not protect it in the sense of the Statute. Illustrations of this view were given on the argument, and others might be suggested. It will be noticed that the word "protection" is used in connection with "erection, construction and repairs," as well as "removal." And while the word "protect" often means to cover, shield or defend from injury, barm or danger of any kind, the word imports in the Statute something used or furnished for the machinery which not only preserves it from injury, but becomes a part of the machinery itself. The statutes of the different States giving mechanics' liens are so dissimilar that we derive but little aid from the decisions under them. The question is new in this State, and we are not prepared to say that lubricating oils used upon the machinery of a mill, though they may preserve and keep it from wearing out, are "material," within the meaning of the Statute. While this court has been disposed to give the Statute a liberal construction, so as to include all claims coming fairly within its provisions, yet it seems to us that the contention of the plain iff can only be sustained by a forced and unnatural interpretation of the language used by the Legislature. The judgment of the Circuit Court is affirmed 1. The classification of cities for the pur-(Clark and McCollum, JJ., dissent from the last pose of facilitating the convenient exproposition.) ercise of corporate powers necessary for judgment.) (February 17, 1890.) ERTIORARI to the Court of Quarter Ses the proper regulation of municipal affairs is not (Parson, Ch. J., and Mitchell, J., dissent from the prohibited by the Constitution; and as the several cities have different needs growing out of the differences in their size and situation, it may be upheld as a necessary means for enabling the Legislature to make provisions adapted to secure to each class of cities the corporate powers and the number, character, powers and duties of officers best adapted to its needs, without an infraction of the constitutional prohibition against local legislation. CERT sions for Philadelphia County to review a judgment quashing proceedings to ascertain and award the damages caused to abutting property owners by the change of grade of Washington Street, in the 21st Ward of the City of Philadelphia. Affirmed. In 1873 an ordinance of councils of the City of Philadelphia changed the grade of Washington Street. On March 29, 1887, an ordinance directed the paving of a portion of this Street. The work was done in the latter part of the 2. The legislation for the several classes into which cities are divided, which is authorized by the power of classification, must relate to the exercise of the corporate powers possessed by cities of the particular class to which the legislation relates or to the number, character, powers or duties of the officers employed in their management; all other legislation is unauthor-year 1887, and in laying the pavement the con NOTE.-Statute, classification of cities by, constitu tional. Under the Constitution it is intended that the Legislature should by general laws provide for the incorporation of cities, towns and villages, or for change or amendment of their charters; and it was not designed to repeal or change charters in force at the adoption of the Constitution. Guild v. Chicago, 82 Ill. 472. So, under the Territorial Organic Law, the Legislature has power to establish municipal corporations. Deitz v. Central City, 1 Colo. 323. The Pennsylvania Statute, designed to establish a uniform and general system of government for all the cities of the Commonwealth, does not apply to cities then organized under existing charters until they have accepted its provisions or suffered a repeal of their charters. Re Henry Street, 123 Pa. 346. The Legislature may classify cities according to their population. Kilgore v. Magee, 85 Pa. 401; Wheeler v. Philadelphia, 77 Pa. 338. But designating counties as a class according to a minimum population which makes it certain that but one county can avail of the benefits of the law is an evasion of the constitutional provision. Devine v. Cook Co. 84 Ill. 590. It may delegate authority incident to municipal governments to cities, but only by general law; and ordinances adopted in different municipalities may be variant in their terms as public policy may require. Covington v. East St. Louis, 78 Ill. 548. Under the constitutional provision against local and special legislation, the classification of cities with a view of legislating for each class separately is unconstitutional unless necessity therefor exists. Ayars' App. 2 L. R. A. 577, 122 Pa. 266. 7 L. R. A. tractor filled up the Street to the grade line established in 1873, to the injury of certain property owners. They thereupon filed a petition under the Act of May 6, 1887 (Pub. Laws 1887) in the court of quarter sessions to recover damages for the injuries thus occasioned. In pur A statute dividing cities into classes cannot go into effect until the terms of all the members of a council in office at the time of its approval have expired. Ibid. The Missouri Constitution, providing for four classes only of cities, does not prevent the application of general laws to cities having special charters. Rutherford v. Hamilton, 97 Mo. 543. Population may be made the basis of classification in statutes relating to municipal bodies and their police powers, but such a classification cannot be made the means of evading the constitutional interdict of local or special laws, where the classification is plainly illusory. State v. Hoagland, 51 N. J. L. 62. The office of the Classification Act, dividing cities into classes on the basis of population, is to provide a classification as a rule of construction for the convenience of municipal legislation. Ibid. In order to observe the uniformity required by Nev. Const., art. 4, § 25, classification of counties must be based upon reasonable and actual differences: the legislation must be appropriate to the classification, and embrace all within the class. State v. Boyd, 19 Nev. 43. The requirement that the system of county gov ernment shall be uniform is not considered to import universality in the operation of the law. Such construction would defeat much useful legislation. Ibid. A statute giving towns containing one or more unincorporated villages of 1,000 inhabitants each certain enlarged powers does not violate the constitutional provision that "the Legislature shall establish but one system of town and county government." Land, Log & Lumber Co. v. Brown 8 L. R. A. 472, 73 Wis. 294. 13 See also 14 L. R. A. 725; 15 L. R. A. 42; 19 L. R. A. 584; 23 L. R. A. 525; |