Allen County.

vendor which he might thus assert. It would seem that nothing could more completely define an interest of the husband which would bear the dower right of a wife or widow than these facts describe.

So therefore we find no error in the judgment of the common pleas: that the widow is dowable in the whole proceeds of the real estate subject to the rights of the vendor, but superior to the rights of the heirs and general creditors of the husband, and that the value of her dower is payable out of the residue of said proceeds after discharging the vendor's claim. We deem this in trend with the holdings of our Supreme Court upon question of dower and right of dower. And I will still continue to believe until from the perfect wisdom and sinless calm of that august Tribunal, a voice speaks to the contrary.

We are of opinion that the facts appearing in this record do not warrant the remedy sought by the defendant in the second cause of action made in her amended answer and cross petition. There is no evidence that she gave or loaned the money to her husband intending or expecting it to be paid on the mortgage, or on any particular indebtedness of the husband and we see no room for subrogating her to the rights of the mortgagor.

Finding no error in the record as claimed by the petition in error or in the cross petition in error, the judgment is affirmed. The costs incident to the petition in error are adjudged against the plaintiff in error. The costs incident to the cross petition in error are adjudged against the defendant in error. Execution is awarded and the case is remanded to the court of common pleas for execution.

Day and Mooney, JJ., concur.

CONSTITUTIONAL LAW-COURTS-DETACHING LANDS. [Paulding (3rd) Circuit Court, March Term, 1905.]

Norris, Vollrath and Hurin, JJ.

*GROVER HILL (VIL.) V. GEORGE A, MCCLURE.

ACT OF APRIL 23, 1902 IS NOT UNCONSTITUTIONAL.

The act of April 23, 1902 (95 O. L. 259; Lan. R. L. 3082; B. 1536-60), providing for detaching unplatted farm lands from cities and incorporated villages, and for attaching the same to adjacent townships, is not in conflict with any provisions of the constitution of the state of Ohio. Said act does not confer legislative powers upon the judiciary, nor does it impair the system of local self-government guaranteed by the constitution. The phrase, "in his discretion," contained in said act, refers to the judicial discretion of the court and not to the legislative discretion.

ERROR to Paulding common pleas court

Shook & Wilcox, for plaintiff in error.

Snook & Savage, for defendant in error.

*Affirmed, Grover Hill (Vil.) v. McClure, 50 Bull. 203.

Grover Hill v. McClure.

HURIN, J.

The petition in each of these cases, Grover Hill (Vil.) v. George A. McClure and Grover Hill (Vil.) v. William H. Eaton, alleges that the plaintiff is the owner and in actual possession of certain lands in Paulding county, Ohio, which are unplatted farm lands, wholly within the limits of the incorporated village of Grover Hill, and that they may be detached therefrom without materially affecting the good government of the adjacent territory within the limits of said village of Grover Hill.

Both petitions pray that said lands be detached and annexed to, and become a part of, the adjacent township, to wit, Latty township, and for all proper relief.

The amended answers allege that this action is brought under, and by virtue of, an act of the general assembly passed on April 23, 1902, entitled, "An act to provide for detaching unplatted farm lands, from cities and incorporated villages, and for attaching the same to adjacent townships," which said act is in conflict with the provisions of the constitution of the state of Ohio, and especially with Sec. 1, Art. 2, Secs. 1 and 4, Art. 4 and Sec. 20, Art. 1 of said constitution; that said act is not a valid exercise of legislative authority for the reason that it impairs the system of local self-government existing under the general laws of the state of Ohio, at the adoption of the constitution; that said act is contrary to public policy, and is void.

These answers were demurred to on the ground that they did not state facts sufficient to constitute a defense. The court sustained the demurrer and found from the evidence that the lands described in the petition are farm lands and may be detached without materially affecting the good government of any territory in the village, adjacent to said land. It is therefore ordered and decreed by the court that said lands be detached from Grover Hill and attached to Latty township.

The sole question raised in each of these cases, is that of the validity and constitutionality of the act of April 23, 1902 (95 O. L. 259), now designated as Lan. R. L. 3082 (B. 1536-60).

It is claimed by plaintiff in error that this law is unconstitutional as conferring legislative power upon the judiciary, as contrary to public policy and as impairing the system of local self-government existing prior and subsequent to the adoption of the constitution. Section 1 of that act provides that:

"The owner or owners of unplatted farm lands lying within the corporate limits of any city or village may file a petition in the court of common pleas of the county in which such lands are situate, in which

Paulding County.

such owner or owners shall be named as plaintiffs, and such city or village shall be the defendant, setting forth the reasons why such lands should be detached, and the relief prayed for. On such petition a summons shall issue as in other actions, and such cause proceed as in other causes."

Section 2 provides that:

"On the hearing of such cause if the court shall find that said lands are farm lands and that the same may be detached without materially affecting the good government of adjacent territory within such city or village limits, an order and decree may be made by the court in his discretion and entered on the record, that such lands be detached from such city or village and may be attached to the most convenient adjacent township in the same county, and thereafter such land shall not be a part of said city or village, and shall be a part of the township to which the same has been so attached, and the costs taxed as to the court may seem right."

It will be observed that this act provides for the filing of the petition in the court of common pleas, naming the defendant, and the issuing of a summons thereon, and that the cause shall proceed as in other causes. It further provides for a hearing by the court, a finding by the court on the facts presented and that if the court shall find, first, that said lands are farm lands, and second, that the same may be detached without materially affecting the good government of adjacent territory within such city or village limits, then the court may make an order and decree, etc. So far all the procedure is in judicial form, and apparently within judicial powers, but it is claimed that the phrase, "in its discretion," which is applied to the decree of the court by the statute, discloses an intention to confer legislative powers on the court; that the discretion is a legislative discretion and not a judicial discretion, for the reason that the whole subject of the creation of municipal corporations and their increase or decrease by attaching or detaching territory, is strictly within legislative powers, and not within the judicial powers conferred by the constitution.

In the case of Forsyth v. Hammond (City), 71 Fed. Rep. 443, 446 [18 C. C. A. 175; 34 U. S. App. 552], it is said that, "The power to establish municipal corporations, and to enlarge or contract their boundaries, is legislative;" and being a legislative power, it cannot be conferred on, or exercised by, a court whose functions are judicial. See also Dillon, Munic. Corp. Secs. 9 and 54; Cooley, Const. Lim. (7 ed.) Sec. 266; Laramie Co. (Comrs.) v. Albany Co. (Comrs.), 92 U. S. 307 [23 L. Ed. 552].

H

Grover Hill v. McClure.

In the case of Forsyth v. Hammond (City), supra, the court, after discussing the difference between legislative and judicial powers, say, on page 449:

"But insofar as the board, in any such case, determines questions of fact which are essential either to the jurisdiction of the board in the proceeding or to the right of annexation, as, for instance, the fact and sufficiency of notice, contiguity and ownership of lands, or whether the lands had been platted, its action is of a judicial character, and may properly be made subject to review on appeal.”

In State v. Simons, 21 N. W. Rep. 750, 751 [32 Minn. 540], a statute of Minnesota is declared unconstitutional because it delegated legislative powers to the district court. In that case the court say:

"It will also be observed that the duty of the court is not simply to inquire and ascertain whether certain specified facts exist, or whether certain specified conditions have been complied with, but to proceed and determine whether the interests of the inhabitants will be promoted by the incorporation of the village, and, if so, what land ought in justice to be included within its limits. In short, it is left to the court to decide whether public interests will be subserved by creating a municipal corporation, and the determination of this question is left wholly to his views of expediency and public policy. That the determination of such question involves the exercise of purely and exclusively legislative power seems to us too clear to admit of argument.'

In the statute involved in the case at bar, no question of expediency or public policy is submitted to the court. Its conclusions as in any other judicial proceedings are based on its findings as to the facts, on evidence submitted. Why, then, should the "discretion" of the court be construed to mean other than the judicial discretion upon which all courts are compelled to rely after hearing evidence and arguments. Every order made by any court is an exercise of discretion, but it is a judicial discretion, and without such discretion, any court would be useless.

The same distinction appears to have been made in the case of Hutchinson v. Leimbach, 63 L. R. A. 630 (Kan.), and Wahoo (City) v. Dickinson, 23 Neb. 426 [36 N. W. Rep. 813].

In all of these cases, there is a clear distinction drawn between decrees of courts based on facts found, and those decrees, when based on expediency, public policy and considerations of abstract justice; in other words, a purely judicial discretion is incidental to all courts, and does not include or imply a legislative discretion.

But even if the use of the word "discretion' were not susceptible of the interpretation we have given it, i. e., judicial discretion, and if

Paulding County.

the use of that term would, by itself, necessarily imply the granting of an unconstitutional power, yet if the remainder of the statute, taken by itself, would be constitutional, and that word "discretion" is not essential to the sense of the statute, that word may be eliminated and the remainder of the statute upheld.

This principle is thoroughly established in this state. See State v. Dombaugh, 20 Ohio St. 167 and Gager v. Prout, 48 Ohio St. 89 and 109 [26 N. E. Rep. 1013].

In this latter case the court say, on page 108:

"By this rule a statute may be invalid in part, by reason of some provision being repugnant to the constitution, and valid as to the residue, where it appears that the invalid part is an independent provision, not in its nature and connection essential to the other parts of the statute, nor so related to the general purpose of the statute as to warrant the conclusion that the legislature would have refused to adopt it with the invalid part stricken out."

In the case at bar, the statute, eliminating the phrase "in his discretion," is complete in itself, and calls for a judicial order or decree. The phrase "in his discretion" is unnecessary to a completed meaning, and may, under the above decision, be eliminated.

In State v. Sinks, 42 Ohio St. 345, 346, it is said by the court, that where it appears improbable and unreasonable that the legislature would have passed a law without a certain provision which was included in it, and where that provision is unconstitutional, the whole act must be declared unconstitutional.

But this presumption does not arise in this case, for the statute is, as we have seen, complete without the phrase "in his discretion," and the word itself is fully capable of the meaning, "judicial discretion," which is in harmony with the constitutional powers of courts, so that on either supposition, the objection fails.

But it is claimed that, aside from this, this act involves a delegation of legislative powers to the court, because the power to establish municipal corporations and to enlarge or contract their boundaries is a legislative power.

"The legislature cannot delegate its power to make a law; but it can make a law to delegate power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend." Locke's Appeal, 72 Pa. St. 491 [13 Am. Rep. 716], cited by Minshall, J., in State v. Messenger, 63 Ohio St. 398, 402 [59 N. E. Rep. 105].

In the case of Zanesville v. Telegraph & Tel. Co. 64 Ohio St. 67 [59 N. E. Rep. 781; 52 L. R. A. 150; 83 Am. St. Rep. 725], reversing