placed upon the right. There is abundant authority holding in effect that such classification may not, on the one hand, be purely arbitrary, and, on the other, that the same, to be sustained, must rest upon some substantial ground and sound reason, having regard to the character of the legislation; and it is the province of the judiciary to determine whether the legislature, in a given enactment, has overstepped its authority in attempting to classify for purposes of legislation.

In an early case this court had occasion to consider the question we are here discussing, and did so with reference to the constitutional prohibition against special or local legislation in the matter of "locating or changing county seats." See Edmonds v. Herbrandson, 2 N. D. 270, 50 N. W. Rep. 970, 14 L. R. A. 725. In the opinion filed in that case, formulated by Corliss, C. J., the entire subject was reviewed and carefully considered in the light of both reason and authority, and many of the leading adjudications upon the subject were cited in that case. In disposing of the case at bar we deem it unnecessary to go beyond the authority of that case, and those upon which it rests for support. Nor does it appear to be necessary, in deciding the case at bar, to quote at great length or to recast the language employed by this court in deciding that case. The governing rule stated and reiterated in the authorities is well settled, and the rule is variously stated in the cases from other states which are cited in the Edmonds Case. This court gave expression to the rule as follows: "But it is our opinion that every law is special which does not embrace every class of objects or persons within the reach of statutory law, with the single exception that the legislature may exclude from the provisions of a statute such classes of objects or persons as are not similarly situated with those included therein in respect to the nature of the legislation. The classification must be natural, not artificial. It must stand upon some reason, having regard to the character of the legislation." In State v. Pugh, 43 Ohio St. 98, IN. E. Rep. 439, the court said: "It is not the form a statute is made to assume, but its operation and effect, which is to determine its constitutionality." In Lodi Tp. v. State, 51 N. J. Law, 402, 18 Atl. Rep. 749, 6 L. R. A. 56, the following language was used: "The rule is that, in any classification for the purposes of a general law, all must be included and made subject to it, and none omitted that stand upon the same footing regarding the subject of legislation."

Applying the tests as laid down in the cases cited, we are to inquire whether, in dividing the counties of the state for the purposes of collecting taxes upon designated classes of real estate, the legislative assembly in the act of 1901 has exceeded its authority. We think it has done so. The act authorizes the officials of the counties within a class, which class it creates and defines, to institute judicial proceedings for the collection of unpaid taxes upon certain real estate, viz., real estate upon which taxes of 1896 and prior years are

unpaid. The right of any county to enjoy the privileges of the act of 1901 depends upon an event, i. e., whether the county has or has not had the benefit of chapter 67 of the Laws of 1897. If it has, it is excluded. If it has not, it is brought within the class, and may proceed to institute judicial proceedings for the collection of taxes as prescribed in chapter 161. The act of 1897 applied to the whole state, and under it judicial proceedings could have been instituted to collect real estate taxes which became delinquent in 1895 and prior years. We are bound to presume that in passing the law of 1901 the legislative assembly became aware of the important fact (one of common knowledge) that many counties of the state, for one cause or another, had failed to take the benefit of the act of 1897, and that the law of 1901, as clearly expressed on its face, was enacted for the benefit of such counties only as had omitted to proceed under the earlier law. To our minds, there was presented in this a valid and substantial reason for enacting a law for the benefit of the counties which for any cause had failed to obtain the benefits of the law of 1897; and hence it would have been proper to classify such counties, and pass an act adapted to the conditions of the counties within the class, and thereby place all the counties of the state upon a common footing with regard to the taxes which might have been collected under the act of 1897. Had the law of 1901 simply met the exigency, and stopped there, we can see no reason why it should not have been a proper classification of counties for purposes of legislation. But the legislature, by charter 161, has gone much further than this, and has attempted to confer especial privileges upon the officials of the counties within the class, by giving this privileged class of officials power and authority in the way of enforcing the payment of taxes upon real estate which are denied to all county officials who are not embraced within the classification made by the act. Acting under chapter 161, the favored county officers may proceed (those in Cass county have proceeded) to institute judicial proceedings for the collection of taxes on lands within their counties for the years 1895 and 1896 and subsequent years, none of which taxes could have been collected under the law of 1897. Other county officials of the state (those not within the class) are debarred from resorting to the remedies provided in the act of 1901 for the collection of unpaid taxes on land for the same years. In this we discover a classification which, in our opinion, is purely arbitrary, and one for which no sound reason has been suggested by counsel; and, in our opinion, none can be suggested. The result of this legislation would be, if permitted to stand, that taxpayers owning lands in counties within the privileged class, and others owning lands outside of such counties would not be amenable to the same law, and burdens would be placed upon some taxpayers which others do not bear; both classes being delinquent for nonpayment of taxes upon these lands for the same year or years. Such legislation we hold to be nothing less than special legislation for the collection of taxes,

and, as such, null and void, under the constitutional prohibition against such legislation. See subdivision 23, § 69, supra, and Trust Co. v. Whithed, 2 N. D. 82, 49 N. W. Rep. 318.

But counsel for the respondents contend that, at the least, the law of 1901 should be upheld in so far as it provides for the collection of taxes on land for the year 1894 and prior years, and this contention is placed upon the rule that a statute which is unconstitutional in one or more of its features may be upheld in all other respects. The rule invoked by counsel is well established, and has been applied in numerous cases, but we are very clear that it is inapplicable to the act of 1901. This rule, as stated by Mr. Justice Matthews in Poindexter v. Greenhow, 114 U. S. 270, 5 Sup. Ct. Rep. 903, 962, 29 L. Ed. 185, is as follows: "It is undoubtedly true that there may be cases where one part of a statute may be enforced as constitutional, and another be declared inoperative and void because unconstitutional; but these are cases where the parts are so distinctly separable that each can stand alone, and where the court is able to see and to declare that the intention of the legislature was that the part pronounced valid should be enforceable, even though the other part should fail. To hold otherwise would be to substitute for the law intended by the legislature one they may never have been willing by itself to enact." In McDermont v. Dinnie, 6 N. D. 278, 69 N. W. Rep. 294, Bartholomew, J., speaking for this court, stated the rule as follows: "In many cases statutes have been thus destroyed in part and upheld in part. But that can only be done where the statute remaining after the elimination of the unconstitutional portion is in itself a complete law, capable of enforcement, and such a one as it is presumed the legislature would have passed without the rejected portions. If the different portions of the statute are so interwoven and interdependent that the rejected portion furnishes to an appreciable extent the consideration or inducement for the passage of the act, then the entire enactment must be rejected." Applying the rule as thus expounded to the act of 1901, it is manifest that the same cannot be upheld even in part. It appears from examination of the title and the various provisions found in the body of the statute that all parts of the enactment are interdependent. The act as written would certainly become nonenforceable if all parts of the same relating to unpaid taxes of 1895 and 1896 and subsequent years should be eliminated by construction. See the title and sections I and 2. To trim down the statute so that it would include only unpaid taxes for the year 1894 and prior years, it would become necessary to eliminate from its title and from its body numerous substantial provisions, and to insert in lieu thereof certain other provisions which this court could suggest as being proper to insert, in order to render the statute free from objection on constitutional grounds. For example, in the title this court would have to substitute the phrase "for the year 1894" in lieu of the words "for the year 1896," which are actually found in the title as enacted. In making the list which the

auditor is required to make, other changes in the language would become necessary. It would would be necessary, as to section 2, to strike out the year 1896 and insert the year 1894, and the following language would have to be expunged, and no similar language inserted in its place: "If any piece or parcel aforesaid shall have been sold to the county at the sale for taxes of 1895 or 1896 the list shall also include each year's taxes for the years subsequent to 1896, with penalty and interest added, down to, but exclusive of, the year in which the list is filed." Again, the law as written authorizes the clerk of the district court to prepare for publication a certain notice of the pendency of the proceeding, but such notice cannot be framed or published until the particular list prescribed in section 2 of the law has been filed in the clerk's office, and the judgment cannot be entered unless it rests upon the proceedings laid down in the statute which leads up to the entry of judgment. It is therefore apparent that all the machinery for entering judgment against any land for taxes, as found in this statute, is interwoven in such a way that no judgment can be entered which does not include as a basis the aggregate taxes of 1895 and 1896, as well as those for 1894 and prior years. Hence it appears that, to limit this statute by construction so that it would operate only upon taxes in 1894 and prior years, it would become necessary to strike from the law as enacted many of its most vital provisions. To do this, in our judgment, would be to overstep the province of a court, and involve, in its most offensive form, an act of judicial legislation. Moreover, we think that the very terms of the act in question show unmistakably that the collection of the taxes of 1895 and 1896 and those of subsequent years was a consideration which operated in no small degree as an inducement leading to the passage of the act. For this reason, also, we find that no part of the law can be sustained under the authorities above cited.

Our conclusions in this case are based upon the language of the law itself, and upon such facts as are of common knowledge in this state; and we find it unnecessary, in deciding the case, to consider certain facts set out in the last paragraph of the complaint, and to which we have made no reference in this opinion. But we do not wish to be understood as intimating that in deciding a constitutional question, such as is presented in this record, it would be improper, under the authorities, to consider extraneous facts, such as are embodied in the complaint and admitted by the demurrer, and which were expressly conceded to exist by defendants' counsel in his oral argument in this court, viz., the fact that some counties in the state did avail themselves of the act of 1897, and that others did not do so. Upon this feature of the case we shall content ourselves with a citation of certain cases which are cited by appellant's counsel in their brief, and which have a bearing upon this feature of the case. See State v.

N. D. R.-18

Bargus, 53 Ohio St. 94, 41 N. E. Rep. 245, 53 Am. St. Rep. 628; Wagner v. Milwaukee Co., (Wis.) 88 N. W. Rep. 577; City of Hopkins v. Kansas City, St. J. & C. B. R. Co., 79 Mo. 98.

Our conclusion is that chapter 161, Laws 1901, embraces special legislation which is unconstitutional and void, in this: that the same violates subdivision 23 of section 69 of the state constitution.

The judgment of the trial court will be reversed, and that court directed to enter judgment for the plaintiff for the relief demanded in the complaint, together with the costs and disbursements of both courts. All the judges concurring.

(91 N. W. Rep. 72.)

MAY V. THOMPSON VS. TRAVELERS' INSURANCE COMPANY.

Life Insurance Policy-Forfeiture.

A life insurance policy contained the following provision: "This policy shall not take effect unless the first premium is actually paid while the insured is in good health." The policy was issued on September 4, 1900, upon an application dated August 23d. The policy was delivered to a third party on September 15th, for delivery to the insured, at the request of the insured, said third party having paid the premium at the request of the insured. On September 28th the insured died from a sickness claimed to have existed before September 15th. The premium paid on September 15th to the agent was received at the main office on October 12th. The company had no notice until about October 15th, and after insured's death, of any change in insured's health since he made his application for insurance. Held, that the company is entitled to interpose such defense without a tender or payment back of the premium.

Waiver.

Held, further, that receipt and retention of premiums with knowledge of forfeiture of policy or of defenses against an action on the same is ordinarily a waiver of such forfeiture or defense.

Return of Benefits.

Held, also, that the rule in equity actions to cancel or annul contracts, that the party moving must return everything of value received pursuant to the contract, is not applicable to the facts of this case.

Evidence-Error.

On the trial an answer was allowed to the following question, duly objected to: "Did the defendant corporation, * * * ог any one of them, pay back to you the $53.24?" Held prejudicial error for which a new trial will be granted.

Appeal from District Court, Barnes County; Glaspell, J.