#### Schumacher *v.*McCallip et al.

*Trust companies—No legal capacity to act as administrators—Sections 3821c and 382if, Revised Statutes, are unconstitutional and void—Under section 26, article 2 of constitution—Common pleas court may review order of probate court, when—Court jurisdiction—Constitutional law.*

1. Trust companies are without capacity to receive and exercise appointments as administrators of the estates of deceased persons because the legislation evincing an intention to clothe them with such capacity (sections 3821c, 3821/, Revised Statutes) is void, being of a general nature and not of uniform operation throughout the state as is required by .section 26, article 2 of the constitution.

2. The court of common pleas has jurisdiction to review an order of the probate court denying the right to administer the estate of a deceased person which section 6005, Revised Statutes, confers upon the next of kin, if a suitable person.

(No. 8291

Decided February 2, 1904.)

Error to the Circuit Court of Franklin county.

*501The will of the late Cotton H. Allen having been admitted to probate in Franklin county, it became necessary for the probate court to appoint an administrator, with the will annexed, of his estate. Application for such appointment was made by Sarah C. McCallip, his sister, as next of kin. An application was also made by Mary M. Schumacher, plaintiff in error, for the appointment of the State Savings Bank & Trust Co. as administrator. The probate court, upon the evidence adduced, found that Mrs. McCallip is the next of kin, but that she was unsuitable for the discharge of the trust and, therefore, denied her application. It appointed the trust company to administer. A bill of exceptions was signed, showing the evidence upon which the court based its finding against Mrs. McCallip and a petition in error was filed by her in the common pleas court for the reversal of the order appointing the trust company, as well as of the order refusing her appointment. The court of common pleas reached the conclusion that the trust company was not entitled to administer, and that the probate court had erred upon the evidence submitted to it, in finding that Mrs. McCallip is not a suitable person to administer, and reversed both orders of the probate court. Upon a petition in error filed in the circuit court, that court affirmed the judgment of the court of common pleas in reversing the order appointing the trust company, and reversed the judgment of the court of common pleas in reversing the order refusing the appointment of Mrs. McCallip.

*Messrs. Bargar & Bargar,*for plaintiff in error, and *Messrs. Booth, Keating & Peters,*and *Mr. W. H. Jones,*for The State Savings Bank & Trust Co.

*502Sections 524 and 6005, which are general laws of the state, confer power upon probate courts to appoint trust companies as administrators, and upon such companies to accept such appointments, without regard to sections 3821d and 3821/.

Under the general laws of the state, without reference to any laws granting to trust companies the power to act as administrator, corporations, such as the defendant, are included as one of the classes of “persons” who may be appointed under section 6005.

Section 4947 expressly declares that in the interpretation of Part Third, Revised Statutes, the word “person” includes a private corporation. Section 6005 is included in Title II, Part Third, and the rule of construction declared in section 4947 applies to it. Therefore, by the express language of section 6005, all probate courts have had the power since 1854 to appoint corporations as administrators and executors. *Insurance Co.*v. *Hard,*59 Ohio St., 256; *Gas Light & Coke Co.*v. *Avondale,*43 Ohio St., 257; *Carder*v. *Commissioners,*16 Ohio St., 353; *Deringer’s Admr.*v. *Deringer’s Admr.,*5 Houst. (Del.), 416; *Minnesota Loan & Trust Co.*v. *Beebe,*40 Minn., 7; *Johnson*v. *Johnson,*88 Ky., 275.

It follows, even if sections 3821d and 3821/ be unconstitutional, that probate courts still have the power under sections 524 and 6005 to appoint trust companies administrators and such companies have the power to accept such appointments under the general laws applicable to corporations and the specific provisions of section 3821c.

But section 3821/ is not unconstitutional. It is a law regulating the jurisdiction of probate courts, and such jurisdiction may be conferred upon one probate court and not upon another, under and by virtue *503of the provisions of section 8, article 4, of our present constitution. Under the specific provisions of that section *the legislature has power to*confer. *jurisdietion upon any probate court in the state, whether the same jurisdiction be conferred upon probate courts in other counties or not.*Section 8, article 4, after specifying what jurisdiction every probate court in the state shall have, provides, “and such other jurisdiction, in any county or counties, as may be provided by law.” *Giesy*v. *Railway Co.,*4 Ohio St., 308; *Kelley*v. *State,*6 Ohio St., 269; *Railway Co.*v. *O’Harra,*48 Ohio St, 343; *Gill*V. *Sealbridge,*9 Circ. Dec., 554; 17 C. C. R., 390.

Section 3821c has a uniform operation throughout the state, and, therefore, does not contravene section 26, article 2, of the constitution. Section 3821<2 does not dispense with the giving of bond by trust companies. Cla*rk’s Estate,*195 Pa. St., 520; *Bank & Trust Co.*v. *Wright,*58 S. W. Rep., 755.

Section *3821d*does not grant special privileges or immunities to trust companies as distinguished from individuals. *State*v. *Woodmansee,*46 N. W. Rep., 970; Cooley’s Const. Lim., p. 486.

The *amendatory*provisions of the act of April 12, 1900, do not contravene section 26, articlé 2, of the constitution. It should constantly be borne in mind that the provisions of section *3821d*added by the act of April 12,1900, do not *confer power*on the company to accept, but *prescribe the conditions*under which that power may be exercised.

The state has the right, in the exercise of its police power, to regulate the business of banks and trust companies for the protection of the public. This power ought to be, and is, unrestricted and in its exercise the state may prescribe conditions for doing business *504which may amount to an interference with the right, of such a company to carry on its business and may go even so far as to exclude it altogether.

We submit that the inherent police power of the state is broad enough to permit the legislature to classify corporations engaged in such business as it sees fit, either by location or volume of business, for the purpose of requiring them to give security for the faithful performance of their obligations. The validity of such classification has long been sustained in this state. *State*v. *Brewster,*39 Ohio St., 653; *McGill v*. *State,*34 Ohio St., 228; *State*v. *Powers,*38 Ohio St, 54; *Bronson*v. *Oberlin,*41 Ohio St., 476; *State*v. *Toledo,*48 Ohio St., 112; *State*v. *Jones,*11 Circ. Dec., 497; *Street Ry. Co.*V. *Street Ry. Co.,*3 Circ. Dec., 493; 6 C. C. R., 362.

It is not material in this case whether the so-called local provisions of section *3821d*are constitutional or not. *Bank*v. *Hines,*3 Ohio St., 1, 35; *Gibbons*v. *Catholic Inst.,*34 Ohio St., 289; *Railroad*v. *Commissioners,*31 Ohio St., 338.

*Messrs. Arnold, Morton & Irvine*and *Mr. B.*W. *McCoy,*for The Ohio Trust Co.

Section 3821f of the Revised Statutes, in that it limits the powers conferred by section 3821c to safe deposit and trust companies in certain counties, is in conflict with article 2, section 26, of the constitution, ^requiring all laws of a general nature to have a uniform operation throughout the state. *Hixson*v. *Burson,*54 Ohio St., 470; *Kelley*v. *State,*6 Ohio St., 269; *McGill*v. *State,*34 Ohio St., 245; *Cincinnati*v. *Steinkamp,*54 Ohio St., 284; *Platt*v. *Craig*and *Jones*v. *State ex rel.,*66 Ohio St., 75.

Section 3821c, as enacted May 16, 1894 (91 O. L.,, *505255), is complete in itself, separable from section 3821/, as amended April 12, 1900 (94 O. L., 133), and its validity is unimpaired by the unconstitutionality of section 3821/.

If the invalid and unconstitutional part of a statute may be separated from the valid and constitutional enactment and leave a complete statute in itself, and if it may be concluded that the constitutional and unconstitutional provisions are not so inseparably connected in subject-matter and so related to each other as to give rise to the presumption that the legislature would not have enacted one without the other, the-.courts will hold void that provision which violates the constitution, and sustain the remainder of the statute. Cooley’s Const. Lim., p. 178; *Railroad Co.*v. *Commissioners,*31 Ohio St., 338; *State*v. *Dombaugh,*20 Ohio St., 167; *Bowles*v. *State,*37 Ohio St., 35; *Gibbons*v. *Catholic Institute,*34 Ohio St., 289; *Treasurer*v. *Bank,*47 Ohio St, 503; *Piqua*v. *Zimmerlin,*35 Ohio St., 507; *Gager*v. *Prout,*48 Ohio St., 89; Black’s Interp. of Law, p. 96.

*Mr. Edward L. Taylor; Mr. J. W. Mooney*and Mr. *Edmund Smith,*for Mrs. McCallip.

Sections 524-6005 do not confer power upon probate courts to appoint trust companies administrators, and upon such companies to accept such appointments. *Straus et al.*v. *Eagle Ins. Co.,*5 Ohio St., 60.

Section 3821/, as enacted on the twelfth day of April, 1900 (94 O. L., 133), deprived the probate court of Franklin county of the power to appoint trust companies to administer estates. *Forest City Land Co.*v. *Gallagher et al.,*25 Ohio St., 208; *Slingluff et al.*v. *Weaver et al.,*66 Ohio St., 621.

Sections 3821c, *3821d,*3821f contravene section 26,, *506article 2, of this state. *State ex rel.*v. *Buckley,*60 Ohio St., 273; *State*v. *Nelson,*52 Ohio St., 88; *Cass*v. *Dillon, 2*Ohio St., 607; *Lehman*v. *McBride,*15 Ohio St., 573; *Ex parte Falk,*42 Ohio St., 638; *State*v. *Bargus,*53 Ohio St., 94; *State ex rel.*v. *Brown,*60 Ohio St., 462; *Cincinnati*v. *Steinkamp,*54 Ohio St., 295; *State ex rel.*v. *Ellet;*47 Ohio St., 94; *Hixson*v. *Burson,*54 Ohio St., 482; *Kelley*v. *State,*6 Ohio St., 269; *Ohio ex rel.*v. *Covington,*29 Ohio St., 102.

Sections.3821c, 3821d, 3821c and 3821/ are invalid on account of the illegal classification of municipalities. Classification by the legislature of cities by means of population is not authorized by the constitution. This court is familiar with its recent decisions. *State ex rel.*v. *Jones,*66 Ohio St., *453; State ex rel.*v. *Beacom,*66 Ohio St., 491.

The power of certain probate courts to appoint and the power of trust companies to accept the appointment of executor or administrator in certain counties is by section 3821/ to depend upon the classification of cities by population. If the statutes creating the classification of cities by population are illegal, then there is no means left by which to determine which probate courts of the state shall have power to appoint trust companies to administer estates.

In the consideration of these questions we are not unmindful of the rule that statutes are not to be set aside on mere doubts as to their constitutionality. However, in this connection it is proper that we should note the language of the court in the case of *State*v. *Davis,*55 Ohio St., 22.

Section 3821d dispenses with the giving of bond by trust companies and grants special privileges or immunities to trust companies as distinguished from individuals. It has never, in the history of this court *507as shown by the reported cases, been held, that a judgment and order of a probate court like the one in question in the case at bar, arising under the statutory rights given to the next of kin to administer estates by section 6005, Eevised Statutes of Ohio, could not be reviewed on error by the common pleas court. *Todhunter*v. *Stewart,*39 Ohio St., 181.

The Todhunter case has never been overruled either (directly or impliedly, nor modified nor doubted, nor disapproved, nor abrogated by legislative enactment. Therefore, the order' of the probate court refusing to appoint Sarah 0. McCallip administratrix *de bonis non*of the estate of her brother, Cotton H. Allen, is *re-viewable on error.*Section 6707, Eev. Stat.; Mis*sionary Society*v. *Ely,*56 Ohio St., 405; 19 Ency. Pl. & Pr., 832.

The order made in this case refusing to appoint Sarah C. McCallip is about as *-final an order*as can well be conceived of, so far as her rights are concerned.

Surely the right of the defendant in error to administer the estate of her deceased brother is a specific legal right given her by section 6005, Eevised Statutes, as next of kin of the deceased. It is manifestly such a right as may be enforced and protected by law, being such, it is a *substantial right,*as designated by section 6707, of the statutes. *Armstrong*v. *Brewing Co.,*53 Ohio St., 467; *Railway Co.*v. *Sloan,*31 Ohio St., 1.

The circuit court of Franklin county, in this same case, in a former order made by the probate court, *affirmed*the finding of the common pleas court by Williams, J., in which it reviewed and reversed an order of the probate court refusing to appoint Sarah C. McCallip, administratrix *de bonis non*of the estate *508of Cotton H. Allen, deceased. *In re Estate of F. Ulhorn,*4 Circ. Dec., 526; 12 C. C. R., 765.

In the January term of this court, 1900, the case of *Monger*v. *Jeffries,*62 Ohio St., 149, was decided, and it was on the authority of that case that the circuit court decided the case at bar. But the Monger case in no sense reverses the rule laid down in the Tod-hunter case, and is not decisive of the question here involved. In that case the court had under review, the discretion vested in the probate court by section 6017, Revised Statutes, in removing administrators and trustees for *unfaithful administration.*The rule governing section 6005 was established twenty years ago by the Todhunter case, and has stood up like a stone wall all that time and still stands; while the rule laid down in the Monger case, stood for only two years, for it has now been abrogated by statute. So also has the rule in the case of *Ebersole*v. *Schillerf Admr.,*50 Ohio St., 701.

Shauck, J.

The plaintiff in error and the State Savings Bank & Trust Co. insist that the probate court had authority to appoint the trust company as administrator, and that the court of common pleas and circuit court erred in adjudging that its appointment was void. In support of that view it is said that the authority is derived from sections 524 and 6005, Revised Statutes, which are of uniform operation. The former of these sections, following the provisions' of the constitution, vests in the probate court exclusive jurisdiction to grant and revoke letters of administration and to control the conduct, and settle the accounts, of executors and administrators. It does not attempt to define the qualifications of administrators. The two sections, being *in pari ma**509*teria,*should obviously be construed together. The latter section prescribes the order in which competent persons are entitled to administer: First, husband or widow of the deceased; second, the next of kin of the deceased; third, a creditor of the deceased; and, fourth, an appointment from the other classes failing, “such other person as it shall think fit; provided, however, that letters of administration shall not be issued upon the estate of an intestate until the person to be appointed has made and filed an affidavit that there is not, to his knowledge, any last will and testament of the alleged intestate.” Not only does the latter section confer no authority for the appointment •of the trust company, but, by prescribing an indispensable condition, with which a corporation can not comply, it forbids the conclusion that such authority is conferred by either section. Apart from this consideration, the view suggested conflicts with the •established and very familiar doctrine that corporations have only such authority as is vested in them by the law of their creation.

Another consideration urged in favor of the validity of the appointment of the trust company is, that it is justified by sections 3821c, 3821d and 3821/, Revised Statutes, subsequently enacted for the purpose of authorizing such corporations, among other things, to exercise the functions of administrators and other trustees. The pertinent provisions are found in the first and last of the three sections cited. The general grant of authority contained in section 3821c is, “to accept and execute all such trusts of every description as may be committed to such company by any person or persons, or any corporation, by grant, assignment, devise, or bequest, or which may be committed or transferred to, or vested in said company, whether *510the same be to act as executor, administrator, assignee, guardian, receiver or trustee, or in any other trust capacity, by order of any court of record or probate court, in the county in which such company is located, and its principal business is transacted.”

Section 3821/ is as follows: “The provisions of sections 3821c, 3821d and 3821e relating to the power of the probate judge to appoint any such company to act as executor, administrator, assignee, guardian,, receiver or trustee, shall apply to probate courts in all counties containing a city of the first class, and to all probate courts in counties containing a city of the second class, containing by the last preceding-federal census a population of less than 33,000.” The constitutional validity of this legislation is denied because, being upon a subject of a general nature, it is not of uniform operation throughout the state,,' as is required by section 26, article 2, of the constitution. In support of the validity of the legislation,, it is contended that its object is to grant jurisdiction; to the probate court, and that being within the provisions of section 8, article 4 of the constitution, which, in defining the jurisdiction of that court, provides for “such other jurisdiction, in any county, or-counties, as may be provided by law,” the subject is; released from the operation of section 26 of article 2. But it is obvious that the purpose of this legislation was not to confer upon the probate court jurisdiction to appoint administrators, for that had been conferred upon it by the constitution of 1851, and the laws which were at once enacted pursuant to it, and it has been in that court continuously until the present time. The obvious purpose of the legislation is to-confer upon the corporations named authority to receive and exercise the appointments therein men*511tioned, including that of administrator. The qualifications of administrators, being as universal as the administration of estates, should be admitted to be a subject of a general nature. It does not seem necessary to repeat what has been said upon that subject in recent decisions. It is further urged that section 3821/ gives to these provisions a uniform operation throughout the state, because it extends them to every county which contains a city of the first class or a. city of the second class having a population less than 33,000. Of this section nothing need be said except that it is the perversion of a classification which is. void, even for the purposes for which it was contrived. Its value is that of a counterfeit bill purporting to. have been issued by an insolvent bank.

We are also asked to adopt the view that the power in question is conferred upon trust companies by section 3821c, and that that section is of uniform operation throughout the state, and that we may give it effect by wholly rejecting section 3821/. Manifestly that would be to legislate by judicial interpretation by giving to an act of the general assembly an operation which the legislative department had never intended. A brief has been filed in the present case on behalf of the Ohio Trust Co., which desires to exercise powers of this character. It presents the view that section 3821/, in its present form, is a later enactment than the preceding sections and since it is-void for repugnancy to section 26 of article 2, the repealing section annexed to it is not effective to repeal former legislation. That the repeal of a valid act in a void act intended to supersede it may itself' be void, is familiar doctrine. But in order that it may be effective for one who invokes it, it is indispensable that the authority or right which , he claims. *512must have been given by the former valid act. In recognition of this requirement, counsel cite the. act of April 17, 1882 (79 O. L., 101), which contained no ¡section equivalent to section 3821/. The obvious purpose of that act was to enlarge the powers of such corporations as these but it contained no terms suggestive of the legislative intention to endow them with capacity to administer the estates of deceased persons. ,Such capacity can not be inferred from authority to ¡act as testamentary trustee in “the care and management of property” and to act as depositaries for administrators and others occupying positions of trust. The next act cited as meeting the requirements of this doctrine is that of April 28, 1891 (88 O. L., 407). •Conceding that this act contains terms appropriate to confer upon these corporations the capacity now •claimed, its operation was defined and limited by section 3821/ then enacted as a part of the same statute, the section then giving to the act even a more restricted operation than does the section in its present form. An analysis of all the legislation upon the subject leads to two conclusions, either of them fatal to the claim that the trust company has capacity to administer: 1, the legislature has never attempted to clothe corporations with capacity to act as administrators in Franklin county; 2, it has not, by a valid ■act, authorized them to act in that capacity anywhere. We do not follow counsel to the 'consideration of the ■alleged benefits to result from clothing corporations with such powers. Such considerations are, in the ■first instance at least, for the general assembly. Until it shall attempt to exercise such power by enacting a ■statute which affects every constituency, and thus «engages the attention and interest of every senator *513and member, the judicial consideration of its power will be premature.

By a cross-petition in error, Mrs. McCallip seeks the reversal of the judgment of the circuit court against her. The probate court had found upon the evidence that she is the next of kin of the decedent, but that she is not a suitable person to administer the estate. On her petition in error, presenting the evidence upon which the probate court had reached the conclusion that she is not a suitable person to act as administrator, the court of common pleas found that the conclusion was not justified by the evidence, and reversed the order of the probate court in that regard. The circuit. court reversed the judgment of the court, of common pleas in favor of Mrs. McCallip,, and proceeding to render the judgment which it thought the court of common pleas should have rendered, it dismissed the petition in error which she had filed' in the court of common pleas. This, of course, implies the opinion of the circuit court that the court of common pleas was without jurisdiction to review the order of the probate court denying the right which the statute confers upon the next of kin, if a suitable person. The conclusion of the circuit court is said to be authorized by *Monger*v. *Jeffries,*62 Ohio St., 149, and the cases which are there cited. But that case, and two of those which it cites, related to the conclusiveness of an order of the probate court removing an' administrator previously appointed. The third case cited related to the conclusiveness of. an order ■ of the probate court respecting the appointment of a trustee in insolvency. None of them involved . the effect of statutory prpvisions conferring the right to administer, such as is conferred upon the next of kin by section 6005, Eevised Statutes. The ' *514effect of that section upon tbe conclusiveness of an order of tbe probate court denying tbe right to administer, wbicb it confers, was tbe precise subject of consideration in *Todhunter*v. *Stewart,*39 Ohio St., 181, where it was held that an appeal from such order might be taken to tbe court of common pleas. Tbe case is authority for tbe conclusion that an order of tbe probate court, denying tbe right of administration wbicb the statute confers upon tbe next of. kin, is reviewable.

Tbe judgment of tbe circuit court affirming tbe judgment of tbe court of common pleas against the right of tbe trust company to administer should be affirmed, and its judgment reversing tbe judgment of the court of common pleas in favor of Mrs. McCallip should be reversed.

*Judgment accordingly.*

Spear, Davis, Price and Crew, JJ., concur.