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grade of any street or alley in the city, such grade shall not be changed until the dam. ages occasioned by such change shall have been assessed and tendered to the parties injured or affected by such change, and such damages shall be collected by the city from the party or parties asking such change of grade in the manner provided for the collection of street improve

ments." Rev. St. 1881, § 3073. The cities of the state consequently have not now, and since the enactinent of this provision have not had, the lawful right to change the grade of a street or alley which has once been regularly established, without first having the damages which will result to adjacent property holders assessed and tendered. City of Logansport v. Pollard, 50 Ind. 151; City of Kokomo v. Mahan, 100 Ind. 242; Mattingly v. City of Plym. outh, Id. 545. It follows that the hange of the established grade of a street or alley by a city, without first having the prospective damages assessed and tendered, has become an unlawful act, an affirmative wrong or misfeasance, for which damages may be recovered by any party whose property may thereby be injured. The case of Noyes v. Mason City, 53 Iowa, 418, 5 N. W. Rep. 593, is a strong one in this direction. It reads: "The remaining grounds of demurrer in various forms present the question whether this action can be maintained, there being, as claimed by the appellee, a statutory remedy which should have been followed. If this last proposition is true, that is, if there is a statutory remedy, it will be conceded this action cannot be maintained. Public corporations being creatures of the statute, and having no powers except such as are expressly granted, or necessarily and fairly implied in or incident to the powers granted, (1 Dill. Mun. Corp. § 55,) it follows that it would be competent for the general assembly to provide in terms that a city or town should not have the power to establish.or grade the streets. This being true, it further follows that such power, if granted, must be exercised in the manner provided by the charter. The power to establish and grade streets in the first instance is conferred in express terms, and without qualification or limitation. Code, § 465. If there were no other statute defining and limiting such power, it would be conceded that the defendant was not limited to the establishment of a single grade, but that it could alter or change the same, and the plaintiff would have no redress, however much he may have been damaged by the change, unless the work was doue negligently, and because of such negligence the damages were sustained. But the statute or charter does not stop there. The power to alter and establish a grade is expressly granted. The petition states the grade was unlawfully changed. Is this true? Section 469 of the Code provides: First, that the city or town may alter the established grade; second, if any property owner has built in accordance with such grade, and is damaged by the alteration, the city or tow shall pay said damages, which shall be assessed by three appraisers, one of whom shall be

selected by the city or town and one by the property owner, and if they disagree they shall select a third appraiser; third, if the owner fails to appoint an appraiser in ten days after receiving notice to do so, the city or town shall select all the appraisers; fourth, the appraisement, when completed, shall be returned to the city or town; and, fifth, the city or town author ities may confirm or annul the appraisement; if annulled, all the proceedings shall be void; if confirmed, the property owner may appeal to the circuit court. Under this statute the city or town may change the established grade, and may proceed to the extent of passing the required ordinance and making the necessary surveys, but if the change will damage private property the city or town cannot excavate or fill up the streets so as to conform them to such changed grade until the damages are assessed in the manner provided. The city or town is required to serve a notice on the owner of the property affected to choose an appraiser. This was not done, nor were any appraisers appointed, nor were the damages assessed or tendered to the plaintiff in the case at bar. Without taking any of the steps required by the statute, the grade was changed, and the defendant proceeded to excavate the streets, and remove earth therefrom, thus causing the damages sought to be recovered. This was an unlawful act, because the granted power was not exercised in a lawful manner. This being so, an action lies. Hempstead v. Des Moines, 52 Iowa, 303, 3 N. W. Rep. 123; Dore v. City of Milwaukee, 42 Wis. 108. If this be not true, then the plaintiff has no remedy, although the statute in terms declares he is entitled to damages if his property has been injured by the change of grade. It is intimated he should have invoked the aid of a court of chancery, and enjoined the defendant, or by mandainus compelled it to appoint appraisers. Possibly either or both of these remedies could have been adopted, but we do not think they were the only ones open to him. Ordinarily, at least, mandamus will not lie where there is a plain, speedy. and adequate remedy in the ordinary course of law. Code, § 3376. And this is true as to an injunction unless the injury is irreparable and the party sought to be enjoined is insolvent. The argument that either of these remedies should have been adopted proves too. much; for neither of them is contemplated by the statute which creates the right, and is said to have provided an exclusive remedy by appeal for the enforcement of such right. Suppose the appraisement was regularly made as provided by statute, and annulled by the defendant, as it had an undoubted right to do, the property owner cannot take any appeal in such case. Suppose the defendant had done so, and afterwards proceeded to excavate the streets, and the plaintiff's property was thereby injured, no appeal would lie in such case. Is he without any remedy? If not, what is it? In our opinion he at least has the one adopted in this If a city or town desires to confine the property owner to the statutory remedy of appeal, they must proceed as the

case.

the abutting owner of his right to the damages done his property. The statute. was passed for the benefit of the city, the operative machinery of the law was given into the custody of the city the better to enable it to accomplish the purposes of the statute, and the city authorities cannot openly omit to do the things required of them, and then be protected against all claims for damages that arise out of their own neglect of duty.

We think this action is properly brought and can be successfully maintained. This decides the main controversy in the case; the principal complaint being that the demurrer of the city to the petition was overruled. The instructions of the court with reference to the measure of damages are objected to. The city did not request any instruction as to the measure of damages. The court gave these two paragraphs: "That if, in consequence of such change, the owner suffered loss or damage to his buildings, he is entitled to recover, in an action like this, the amount of such damage;" and "in such cases the damage the plaintiff is entitled to recover, if any, is such damage as result to the plaintiff's property from the change of grade, if it was damaged." The evidence produced consisted of Sells' declarations that the buildings were worth $10,000 before the change of grade and $5,000 after the change, and the other witnesses on behalf of the plaintiff were experts, who testified to the cost of lowering the floors and ad

statute directs. Having done so, and
confirmed the appraisement, it may be
that an appeal is the only remedy the
owner has, if he is unwilling to accept the
appraisement." The case of Wright v.
Corporation, 4 Cranch, C. C. 534, holds that
a party whose property is injured by grad-
ing a street and raising the earth so as to
obstruct the entrance to his dwelling-
house can maintain a special action upon
the case, notwithstanding the city at-
tempted to appraise and ascertain the
damages; the appraisement, however, be-
ing informal and void. The cases of Hemp-
stead v. Des Moines, 52 Iowa, 303, 3 N. W.
Rep. 123, and Benton v. Milwaukee, 50
Wis. 368, 7 N. W. Rep. 241, are directly in
point. These cases are supported by a
number of others that hold that where a
railroad company was authorized to lay
tracks along the streets of a city, paying
abutting Owners damages occasioned
thereby, the amount to be ascertained in
a certain manner, and the railroad com-
pany omitted to perform the duty imposed
on it in this respect, a common-law action
can be maintained against the railroad
company. Notably among these cases
that we have examined are the following:
Dickson v. Railroad Co., 3 MacArthur, 362;
Mulholland v. Railroad Co., 60 Iowa, 740,
13 N. W. Rep. 726; Wilson v. Railroad Co.,
67 Iowa, 509, 25 N. W. Rep. 754. Separate
and apart from these adjudicated cases, it
seems on principles of abstract justice that
this action ought to be maintained; that
when a city is charged with the ascertain-justing the buildings to the change of
ing and tendering or paying of all damages
to private property occasioned by the
change of an established grade of a street,
and a plain path of procedure is marked
out for them to tread by legislative au-
thority, and they entirely disregard the
requirements of the law, and act in such
a manner that the property owner is mis-
led, and the city authorities themselves
are mistaken in the practical effect of their
proceedings, or are so bewildered by doubt
that they finally resort to arbitrary ac
tion to accomplish that which they not
only failed to do by their proceedings,
but neglected to give notice to the prop-
erty owners to be affected thereby.-
this legal remedy can be followed. If this
be not so, then we will have to permit the
abutting property owners to submit,
notwithstanding the fact that the declared
policy of the state, as embodied in this
statute, is that they shall be allowed all
damages that they may sustain by reason
of the change of an established grade.
The statute confers a positive right to
such damages. The power of the city to
change the grade is dependent on the con-
dition that all just damages be first paid
or tendered. It is the primary duty of the
city to set on foot and pursue the mode
prescribed by the statute in the ascertain-
ment of such damages. In pursuing these
steps they give a notice that not only mis-
leads a property owner, but one that they
themselves grossly violate and depart
from, and then, when the property owner
awakes to the fact that his property is in-
jured by the change of grade, the depart-
ure of the city from the terms of its own
notice is made a pretext for a denial to
v.29p.no.9-39

grade; and this course is approved by this
court in the case of City of Topeka v.
Martineau, 42 Kan. 387, 22 Pac. Rep. 419.
Each one of these witnesses made the cost
of adjusting the building to the change of
grade greater than the verdict of the jury
by several hundred dollars. The city
offered no evidence as to damage or value,
so that it is doubtful that the instruction,
if erroneous, was prejudicial. In this
feature this case is very similar to Doug-
las v. Geiler, 32 Kan. 499, 4 Pac. Rep. 1039. .
The city can urge that the instruction
given was a misstatement of the law as
applicable to the facts developed on the
trial, but, not having requested a differ-
ent instruction, they cannot be allowed
to claim here that the neglect or omission
to give a particular instruction not re-
quested is reversible error. The instruc-
tion was not as definite and precise as it
ought to have been, but there is sufficient
in the record to demonstrate that the
evidence was proper and the case tried on
the right theory as to the measure of
damages, and the failure of the trial court
to give the precise rule in the language of
the books did not prejudice the city.

Complaint is made that evidence was allowed to go to the jury relative to the cost and value of the broken stone and asphalt sidewalk. The street commissioner testified that he "cut away the old walk; we cut it down to grade. In other words, a valuable sidewalk was entirely destroyed by the officers of the city, and Sells was compelled to construct a new one. The court gave no instructions on the question, and the jury returned a lump sum. We assume that the jury considered

the sidewalk item in connection with the other elements of damage, and, as sidewalks are built at the cost of the abutting property, we do not think this was error. This covers all the questions raised or discussed by the city that are important, and we recommend that the judg ment be affirmed.

PER CURIAM. It is so ordered; all the justices concurring.

(22 Or. 271)

WIST V. GRAND LODGE A. O. U. W. (Supreme Court of Oregon. April 18, 1892.) MUTUAL BENEFIT INSURANCE-BENEFICIARIES-BYLAWS AMENDMENT-RETROACTIVE EFFECT.

1. An application for admission to membership in a mutual benefit association provided that compliance by the applicant with all existing regulations of the order, and such as it should thereafter adopt, should be the condition upon which he should be entitled to benefits of the order. Held, that a subsequent amendment of the laws of the society, to the effect that each member "shall designate" the person to whom the beneficiary fund due at his death "shall be paid," who "shall in every instance" be a member of his family, a blood relation, or a person dependent upon him, was not retroactive in its effect, and did not require the substitution of such relation or dependent person for one who had been previously designated as beneficiary.

2. If retroactive, such amendment did not apply to a member who had no family, blood relations, or persons dependent upon him, and his previously designated beneficiary was entitled to the fund.

Appeal from circuit court, Multnomah county; E. D. SHATTUCK, Judge.

Action by Philip Wist against the Grand Lodge of the Ancient Order of United Workmen of Oregon and Washington. From a judgment for plaintiff, defendant appeals. Affirmed.

W. D. Hare, George H. Durham, and H. G. Platt, for appellant. Ronald & Piles and W. S. Relfe, for respondent.

LORD, J. This is an appeal from a judgment of the circuit court for Multnomah county in favor of the plaintiff, in an ac tion brought to recover the sum of $2,000, the amount alleged to be due on a benefit certificate which had been issued by the defendant society to Frederick Freeman, for the benefit of the plaintiff. The cause was tried by stipulation before the court, without the intervention of a jury. The facts found, in substance, show that at different times during his membership in the association Frederick Freeman held two of its benefit certificates. In the first certificate which was issued to him he had designated his wife, Anna Freeman, as his beneficiary, but when she ceased to be his wife he surrendered that certificate, and took a second certificate, in which he designated the plaintiff, Philip Wist, as his beneficiary. His application, upon which the certificate was issued, expressly provided that "compliance on his part with all the laws, regulations, and requirements which are or may hereafter be enacted by said order is the express condition upon which I am entitled to participate in the beneficiary fund, and have and enjoy all the other benefits and privileges

of said order." In July, 1888, the society changed its law relating to the classes of persons who might be designated as beneficiaries to read as follows: "Each member shall designate the person or persons to whom the beneficiary fund due at his death shall be paid, who shall in every instance be one or more members of his family, or some one related to him by blood, or who shall be dependent upon him." A circular letter of the grand recorder, issued in 1889, and a few mouths before Freeman's death, notified the members of his jurisdiction of the change in the law relative to beneficiaries. Shortly thereafter Freeman died in good standing, with all dues and assessments required of him fully paid and discharged. The plaintiff, Philip Wist, was not a member of his family, nor related to him by blood, nor dependent upon him. Freeman never changed his last beneficiary certificate after it was issued to him. There is no claim that he did not comply with all the laws of the order, except that he did not change his beneficiary certificate by designating some one of the specified classes, which the circular letter undertook to declare that members holding such certificates must do; otherwise that they were worthless. At the date the certificate was issued to Freeman in which he had designated the plaintiff as his beneficiary, and continuously up to the date of his death, Freeman had no family, nor any one related to him by blood, or dependent upon him. The plaintiff was, at the time he was designated as beneficiary in the certificate, and now is, a member of the order, and Freeman, when he died, was indebted to the plaintiff in the sum of $650. The law of the order in force long prior to the death of Freeman, as well as at present, provides: “In the portion of this fund, namely, two thousand dollars, to which the beneficiaries of a deceased member are entitled, the members themselves have no individual property right; it does not constitute a part of their estate to be administered, nor have they any right or control over the same, except the power to designate the person or persons to whom, as beneficiaries, the same shall be paid at the death of the member. The beneficiaries thus designated bave no vested right in said sum until the death of the member gives such right, and the designation may be changed by the member, in the method prescribed by the laws of the order, at any time before his death." This declaration of the law of the order, in respect to the rights of beneficiaries in the fund to be accumulated as not being a vested right, is in accord with the general principles of the law, as declared by the courts, applicable to benefit or charitable associations. Except as restricted by the constitution and by laws of the order, a member may exercise his power of appointment without other limit; he may designate as his beneficiary whomsoever he may choose, or he may change such beneficiary, by designating another at his pleasure. The only limitation on the exercise of this valuable and important power is the organic law of the society, or the rules and regulations adopted in

courts will at all times recognize and protect, although, strictly speaking, such member has no property interest in the benefit paid, or subject of the power. The membership, which includes the right to pay the agreed consideration and to appoint a person to take the benefit, must be regarded as a species of property, and is to be distinguished from the benefit or sum paid itself, in which the member has no property." Bac. Ben. Soc. § 237.

compliance therewith. During the lifetime of the member his beneficiary has no vested interest in the fund to be accumulated and paid at his death, which would prevent him from changing such beneficiary without his consent, or which would prevent the society from changing its rules and permitting changes of beneficiaries. The laws of the society in respect to the change of beneficiaries are for the protection of its own interests and welfare, and as against such laws the beneficiaries have no such vested rights or interest in the fund, during the life of the member, as will prevent the society from determining the course of such fund. In consequence of this right of a change of beneficiary by the member, all that the beneficiary can have during his life is a mere expectancy, dependent upon the will of the holder of the certificate. It is these considerations that constitute the distinction between benevolent organizations and the regular life insurance companies. This distinction has been thus expressed by MITCHELL, J.: "The essential difference between a certificate of membership in a beneficiary association and an ordinary life policy is that in the latter the rights of the beneficiary are fixed by the terms of the policy, while in the former they depend upon the certificate and the rights of the members under the constitution and by-laws of the society. In the one case the rights of the beneficiary are fixed and vested from the moment the policy takes effect. In the other they are subject to such changes as the law of the association authorizes the member to make. All that a beneficiary has during the life of the member, owing to his right of revocation, is a mere expectancy, dependent upon the will and pleasure of the holder, of the certificate. This expectancy is not property." Society v. Burkhart, 110 Ind. 192, 10 N. E. Rep. 79 and 11 N. E. Rep. 449. So that it appears that the designation of beneficiaries by members of such associations takes effect only upon the death of such members, and that the certificate only confers upon the beneficiary a contingent expectation, liable to be divested either by the death of the beneficiary before the member, or by a revocation of the appointment and a naming of another beneficiary. Upon the death of the member the certificate takes effect, so far as to vest in the beneficiary an absolute right to the benefit money. Bac. Ben. Soc. § 255. Nor have the members of such societies, as such, any interest or property in the benefit fund, but simply the power to appoint some one to receive it. while it is true that the rights of the members of benefit societies in the sums agreed to be paid at death is simply the power to appoint a beneficiary, and that the constitution or charter and the by-laws are the foundation and source of such power, yet, as Mr. Bacon says, "the cases must not be understood to hold that the member of a benefit society has not a property right in the contract of membership, under which he has the power to designate a recipient of the benefit to be paid, because of such membership and under the contract. The right of the member in this contract is a valuable one, which the

But

At the time when Freeman designated the plaintiff as his beneficiary, and the society issued to him a certificate accordingly, it was a valid exercise of his power of appointment. There was at that date no rule or regulation of the society in conflict with his right to make such designation of his friend and fellow member bis beneficiary; and if Freeman had died without revoking his appointment of the plaintiff before the society had enacted the law in question, limiting the appointment of beneficiaries to a certain specified class, there is no doubt or dispute as to its liability. The general rule undoubtedly is that a designation of a beneficiary, valid at its inception, remains so; and as Freeman never revoked the appointment of the plaintiff as his beneficiary, unless the after enacted law required Freeman to change his beneficiary so as to conform to the classes specified, and become a part of his contract, and the law is valid in so far as it affected his contract, the appointment of the plaintiff as his beneficiary is still valid, and the certificate took effect upon the death of Freeman, and vested in the plaintiff an absolute right to the benefit money. The contention for the defendant is that the law enacted by the society subsequently to the issuance of Freeman's benefit certificate, relating to the person whom a member is entitled to designate as his beneficiary, became a part of his contract, and required him to make a designation of a beneficiary in conformity therewith, and that on his failure to do so before his death, without leaving any one capable of taking such benefit certificate, it reverted to the beneficiary fund of the supreme lodge. This contention is founded on the assumption that the law in question was retroactive, and intended to annul the appointment of beneficiaries theretofore made by members which did not belong to the classes specified in such law. The benefit certificate which was issued to Freeman was based upon his written application. By his application he agreed to comply with "all laws, regulations, and requirements which are or hereafter may be enacted;" and in consideration of this, among other things, the defendant issued to him a beneficiary certificate. Reading the two together, as constituting his contract, Freeman agreed with the society, as a part thereof, that he would comply with, or be bound by, its laws of future enactment as if they were already existing. But it is apprehended that contracts of this kind differ but little, if any, from contracts in other such societies, where the power is reserved to alter or amend, enact or repeal, its laws. A person who becomes a member of such an association is

bound to take notice of its laws, and especially those which affect his rights and interests. These laws are elements of his contract, and determine the extent of his duties, rights, and liabilities. The right of Buch societies to alter, amend, or repeal laws, or to enact others consistent with the purpose for which they are organized, is well recognized. The power is essential to their continued existence and well-being, and except as restrained by the fundamental law of their organizations, may be exercised at all regular meetings. This power to amend laws, or to repeal them, is inherent and continuous for all proper objects. No member has a right to presume that the laws of his order will remain unchanged, when the promotion of its interests and welfare may require a change. "The power of the society to enact its laws," says Mr. Niblack, "is continuous, residing in all regular meetings of the society as long as it exists. Any meeting can, by a majority vote, modify or repeal the law of a previous meeting, and no meeting can bind a subsequent one by irrepealable acts or rules of procedure. Nibl. Mut. Ben. Soc. § 124. So that it may be said that the power to alter or amend laws, or to repeal them, when exercised in a proper way, and for the wel fare of the society, is an incident of its existence, and that when so exercised such laws are binding on its members, except when forbidden by the organic act of the society or contrary to the laws of the land. AS ELLIOTT, C. J., said: "We do not affirm that a benefit society may, by a change in its by laws, arbitrarily repudiate an obligation created by a policy of insurance; but we do affirm, where a change is regularly made in it by its by laws, and the motive which influences the change is an honest one, to promote the welfare of the society, and the members are all given an opportunity to avail themselves of the change, no actionable wrong is done the members or their beneficiaries. Supreme Lodge v. Knight, (Ind. Sup.) 20 N. E. Rep. 479. There is no power in the society to amend or enact laws which shall work any repudiation of its obligation. It resides in the society for the purposes of carrying out the objects for which it was formed, and when the power is expressly reserved in the charter it is not construed as intended to reserve the power to avoid its contracts, or work the destruction of vested rights. So that a party's contract of insurance may be modified or varied by a subsequent law, and he be bound by it, either through the reserved power in the society to amend or enact such law, or by his contract with reference to future enactments, when it does not operate as a repudiation of its contracts, or a complete deprivation of the member's rights.

As the rights of the plaintiff are derived from the contract of Freeman with the society, and as his benefit certificate, des ignating the plaintiff as his beneficiary, was issued before the enactment of the law limiting the persons whom a member is entitled to designate as his beneficiary, it now becomes necessary to examine this subsequent law, and ascertain whether

it is applicable to benefit certificates of members which were issued before its en. actment, and, if so, to what extent. That law provides: "Each member shall designate the person or persons to whom the beneficiary fund due at his death shall be paid, who shall, in every instance, be one or more members of his family, or some one related to him by blood, or who shall be dependent upon him." This language is wholly prospective in its operation. It is only intended to affect the power to appoint beneficiaries, and limit its exercise, after the law passed. "Each member shall designate" refers not to a past but a future act to be performed by him; that is, whenever a member shall exercise his power of appointment under this law, he "shall designate" a beneficiary of the classes enumerated. It applies as well to old members, revoking a former appointment, and naming another as his beneficiary, as to new or old members who have never exercised their power to appoint a beneficiary. The law does not undertake by its terms to disturb what has been done; it does not nullify previous appointments; it only undertakes to limit to the classes specified the power to designate beneficiaries, whenever it shall be exercised by a member. It is a settled rule of construction that laws will not be interpreted to be retrospective unless by their terms it is clearly intended to be so. They are construed as operating only on cases or facts which come into existence after the laws were passed. "Every statute," it has been said, "which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect of transactions or considerations already passed, must be presumed, out of respect to the legisla ture, to be intended not to have a retroactive operation." End. Interp. St. § 273. Rights will not be interfered with unless there are express words to that effect. It is not enough that upon some principles of interpretation a retroactive construetion could be given to the law, but the intent to make it retroactive must be so plain and demonstrable as to exclude its prospective operation. "It is not enough that general terms are employed, broad enough to cover past transactions," for laws "are to be construed as prospective only," if possible. Sedgw. St. & Const. Law, 161. In fact, so great is the disfavor in which such laws are held, and so generally are they condemned by the courts, that they will not construe any law, no matter how positive in its terms, as intended to interfere with existing contracts or vested rights, unless the intention that it shall so operate is expressly declared or is to be necessarily implied. As the law of the society is prospective in its operation, it did not affect Freeman's contract with the defendant. It did not by its terms nor by implication require him to change his policy. It would only have affected his contract in the event he should have revoked the appointment of the plaintiff as his beneficiary, and then only to the extent of requiring him to appoint a beneficiary that should belong to the

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