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certain of them (appellees here) answered, de- I that a construction of the will was necessary, nying that appellant, Hally Haight, Jr., had and to the allowance of a solicitor's fee to be any rights in the estate of said Adela Hob- paid from the estate and making the same a son, averring that the devises, bequests, and lien upon the real estate of the estate. legacies of said will had all lapsed because of the death of all the legatees and devisees prior to the death of Adela Hobson, and that the property should descend as intestate estate to the heirs at law, and asking that a decree be entered in their favor. The other defendants were defaulted. Replications were filed to the answers and the case was heard upon the issues as joined.

It appears that Adela Hobson died November 19, 1912, leaving said will and codicil, which were probated. She was never married, had no children, and left her surviving, as her only heirs and next of kin, two sisters and the descendants of certain deceased brothers and sisters. Hally Haight, named in said will, died testate May 3, 1911, and his will was duly probated. He left him surviving a son, Hally Haight, Jr., the appellant. Charlotte Haight, named in the will, died February 4, 1911. Elizabeth Haight, also named in the will, died June 21, 1904.

The court by its decree found, in accordance with the foregoing facts, that:

"All of the legatees and devisees mentioned by name in the will of Adela Hobson, deceased, died prior to the death of said Adela Hobson, and that the said Adela Hobson did not leave any child or children or descendants of any child or children her surviving, and that the said last will and testament, and codicil thereto, of the said Adela Hobson, deceased, made no provision for the distribution of the property of said testatrix in the event of the death of any or all of said legatees or devisees."

The court decreed that said will and codicil were inoperative to pass any right, title, interest, or estate in the property of Adela Hobson; that, because of the death of all the devisees and legatees prior to her death, all devises and bequests contained in said will and the codicil thereto lapsed and nothing passed under the residuary clause; that all of the property of Adela Hobson descends to her heirs at law under the laws of descent, and none of her property can be construed to have passed under the will and codicil and that none did so pass. The court also decreed the payment of $500 from the estate as complainant's solicitor's fees, and made the same a lien upon the real estate of said estate. The complainant prayed and was allowed an appeal, and has assigned as error that the decree does not construe the will in accordance with the law; that the decree erroneously found that all of the legacies and devises provided for in the will of Adela Hobson lapsed and her estate descended to her heirs at law as intestate estate; that the court should have held that the will passed the title to the real and personal property of the testatrix to Hally Haight, Jr., by executory devise, and the decree should have so found. Appellee Elvira Haight has assigned

It is the contention of appellant that the property devised by the testatrix to her nephew, Hally Haight, in the second, third, fourth, and fifth clauses of the original will and the third clause of the codicil would not have the effect of vesting in him an indefeasible estate in fee simple in said property, but a base or determinable fee; that by the sixth and ninth clauses of the will trusts were created, the effect of which was that Hally Haight could not alienate any portion of the property devised or bequeathed to him during the lifetime of Charlotte Haight; and that he took, not only a base or determinable fee, but also a conditional fee, conditioned upon the carrying out of the alleged trusts. It is also contended that by the third paragraph of the codicil there is shown the intention of the testatrix, by the use of the words "to my nephew, Hally Haight, and to his heirs, in fee simple and forever," to designate a class who should take her estate in case of the death of both Charlotte and Hally; that the words "and to his heirs" are in the nature of an executory devise to appellant, Hally Haight, Jr., who stands as the representative of the class designated as heirs.

[1-6] To arrive at the proper construction of the will it is necessary to consider all of its parts somewhat in detail. The devises to Hally Haight under the second, third, fourth, and fifth clauses of the will, if the testatrix had stopped there, are clearly devises in fee simple. The words "in fee simple" are used by the testatrix in the second, third, and fourth clauses to denote the character of the estate devised, and even if they had not been used Hally Haight would have taken under such clauses a devise of a fee-simple estate of inheritance under section 13 of the Conveyance Act (Hurd's Stat. 1913, p. 531. It is true that the sixth clause imposes a condition upon the property so devised and bequeathed, to the effect that the devisee shall pay to Charlotte Haight, a sister of the testatrix, one-half of the rents and profits annually derived from the property so devised and bequeathed to him. A trust is not created by the sixth clause. The devise is still to Hally Haight in fee simple, but subject to a rent or income charge, which Charlotte Haight, the beneficiary, could enforce in a court of equity and compel the payment of the amount of such charge to her in money. Gallaher v. Herbert, 117 Ill. 160, 7 N. E. 511.

If Hally Haight and Charlotte had both survived the testatrix, the property described in the first four clauses of the will would vest in Hally Haight on the death of the testatrix, subject to the right of Charlotte Haight to compel the payment to her of one-half the rents or income from said property, as provided by the sixth clause, in

voluntarily make such payment. A devise of | by counsel for the appellant that under the land on the condition that the devisee pay other children of the testatrix certain sums of money vests the title in such land in the devisee. Spangler v. Newman, 239 Ill. 616, 88 N. E. 202, and cases cited. If Hally Haight had survived the testatrix, and had taken under the will, and had made such payments and voluntarily carried out the conditions named, or if he had been compelled by legal proceedings to carry them out, then the fee-simple title that was vested in him would never be divested, even though it were cut down to a base or determinable fee by reason of the seventh clause of the will, which is good as an executory devise. Smith v. Kimbell, 153 Ill. 368, 38 N. E. 1029; Strain v. Sweeny, 163 Ill. 603, 45 N. E. 201. Nor does the ninth clause have the effect of creating a trust. It is true that no particular form of words is necessary to create a trust, but as said in Randall v. Randall, 135 Ill. 398, on page 400 of the opinion, 25 N. E. 780, 25 Am. St. Rep. 373:

"No trust can be implied merely from the words indicating the motives which induced the gift. Bryan v. Howland, 98 Ill. 630; Giles v. Anslow, 128 Ill. 196 [21 N. E. 225]; Perry on Trusts, § 119. And the rule is, wherever the prior disposition of the property imports absolute and uncontrolled ownership, and also, wherever a clear discretion and choice to act or not to act is given, equity will not construe a trust from the language employed. 2 Story's Eq. 1070; Hill on Trustees (4th Am. Ed.) 119, 74; Mills v. Newberry, 112 Ill. 135 [1 N. E. 156, 54 Am. Rep. 213]."

It will be noted that the beneficiaries of the alleged trust are not named and are uncertain, and also that a discretion is given to the alleged trustees, Hally and Charlotte Haight, to determine whether or not, and to whom, assistance is to be given, and also to what extent. Precatory words do not always or necessarily create a trust. The question is one of intention, and the real question is whether the direction is imperative, and if the matter is left to the decision

of the donee such words would not create a trust.

[7, 8] As to the legal effect of the language used in the third clause of the codicil, we have been referred to no case, and are aware of none arising in a state whose system of laws is based upon the common law, in which similar words have been given the effect of an executory devise. On the contrary, in Deemer v. Kessinger, 206 Ill. 57, 69 N. E. 28, a devise of land to the son of the testator and to his lawful heirs was held to be a devise in fee under the rule in Shelley's Case. This was also the holding in Silva v. Hopkinson, 158 Ill. 386, 41 N. E. 1013, Winter v. Dibble, 251 Ill. 200, 95 N. E. 1093, Crabtree v. Dwyer, 257 Ill. 101, 100 N. E. 510, and Rissman v. Wierth, 220 Ill. 181, 77 N. E. 108, 110 Am. St. Rep. 243. The fifth clause of the original will is in the nature of a residuary clause. The third clause of the codicil is also a residuary clause. It is conceded

second, third, fourth, and fifth clauses of the original will, standing alone and without the rest of the will, Hally Haight, the nephew of the testatrix, would take an estate in fee simple in the property mentioned, and that such devises would lapse if he died prior to the testatrix. The language used in the third clause of the codicil brings the devise made in that clause squarely within the rule in Shelley's Case. Such words have a definite and unchangeable meaning in law, which must control, even if it be against the testator's manifest intention. Lord v. Comstock, 240 Ill. 492, 88 N. E. 1012; Ward v. Butler, 239 Ill. 462, 88 N. E. 189, 29 L. R. A. (N. S.) 942. We do not think there is to be gathered from this clause, or from any part of the will, any intention of the testatrix, as contended by appellant, to devise the property to the children or heirs at law of Hally Haight if he should not be living at the testatrix's death. The language in clause 7 is exactly contrary to such intention, and there is no reason why the language used by the testatrix in clause 3 should not be taken in its generally accepted legal sense and meaning. The word "heirs" will be presumed to have been used with knowledge of its meaning. Fowler v. Black, 136 Ill. 363, 26 N. E. 596, 11 L. R. A. 670. In the case of Rissman v. Wierth, supra, the language of the will was as follows:

"I give, devise and bequeath all the rest, residue and remainder of my estate, both real and personal, to my beloved wife, Sibila Barbara Rupprecht, to hold and to have to her, my said wife, and to her heirs and assigns forever."

The words "and to" were used in the same manner as in the third clause of the codicil of the will in question. The court held that the rule in Shelley's Case applied, and on page 185 of the opinion (77 N. E. 109 [110 Am. St. Rep. 243]) said:

"The word 'heirs,' being used in the general legal sense, is, under the rule, one of limitation. and no intention of the testator, however clearly expressed, can change it into a word of purchase."

The reason for the rule and its application are very aptly explained in the case of Winter v. Dibble, supra, in which it is said, on page 221 of the opinion (95 N. E. 1100):

"The ordinary form of a conveyance of a fee at common law was to the grantee and his heirs. A conveyance to the grantee alone gave heirs,' indicated a fee simple. The word 'heirs' a life estate, only. The added words, 'and his was not used to describe the persons who were to take the estate after the grantee's death, but fee. The estate granted was not different if givthe quality of the estate granted, which was a en to the grantee for life with remainder to his heirs. The addition to the ordinary formula for granting a fee, of the words 'for life,' was grantee's enjoyment of the fee granted to him regarded merely as an effort to restrict the by restraining his power of alienation, and the law would not permit this to be done. The word 'heirs' had therefore, long before Shelley's Case arose, been regarded as a word descriptive of the estate and not of the person, and the rule called by Shelley's name was merely the an

1

nouncement of a legal principle which had then
been applied by the courts for more than two
hundred years. The rule as stated by Coke (vol.
1, 104a) is that 'when the ancestor by any gift
or conveyance takes an estate of freehold, and
in the same gift or conveyance an estate is lim-
ited, either mediately or immediately, to his
heirs in fee or in tail, that always in such cases
"the heirs" are words of limitation of the estate
and not words of purchase.' This is a rule of
law and not of construction, and the use of
the word 'heirs,' unless it clearly appears from
the instrument to have been used in a sense dif-
ferent from its strict legal meaning, is conclu-
sive of the intention."

[9] It follows that the devise to Hally
Haight, so far as the third clause of the
codicil is concerned, was a devise of the re-
siduum in fee simple, and whatever estate
he would have taken under the will had he
survived the testatrix, whether a base fee
or a fee simple absolute, he having died prior
to the death of the testatrix and not being a
child or grandchild of the testatrix (in which
cases an exception is made by section 11 of
the chapter on descent (Hurd's Stat. 1913, p.
909), the devises to him lapsed and passed to
the heirs at law of the testatrix as intestate
estate. This is also true of the devises to
Charlotte Haight and Elizabeth Haight.
Dorsey v. Dodson, 203 Ill. 32, 67 N. E. 395;
Magnuson v. Magnuson, 197 Ill. 496, 64 N.
E. 371; Schumaker v. Grammer, 200 Ill. 48,
65 N. E. 722.

the will in order to determine which of two or more adverse claims to the same fund or property is valid, the costs of litigation should be borne by the fund' or property in question. Ingraham v. Ingraham, 169 Ill. 432, 48 N. E. 561, 49 N. E. 320; Kendall v. Taylor, 245 Ill. 617, 92 N. E. 562, 37 L. R. A. (N. S.) 164. The allowance of solicitors' fees in such cases is largely within the discretion of the chancellor.

trix.

[12] The court found that the construction of the will and codicil was essential to the proper settlement of the estate of the testaWhile attorney's fees should not be charged against the entire estate in every case, as, for instance, in the case of a bill to construe a will the provisions of which are so plain that there could be no question of its meaning, we are not prepared to say in this case that the bill was wholly unnecessary, and was filed for fanciful reasons or that the court committed error in holding that a construction of the will was neces

There was a question as to whether trusts were involved and a question as to the ultimate disposition of the property, and these questions arose on account of the language used by the testatrix as well as because of the deaths of the respective

beneficiaries named. As will be seen from the cases cited-and there are many otherssimilar questions have been deemed worthy of consideration by this court, and for many reasons no two cases which involve the construction of wills are alike.

Perceiving no error sufficient to justify a reversal, the decree of the circuit court will

be affirmed.

Decree affirmed.

STROM. (No. 10770.)

(274 III. 62)

(Supreme Court of Illinois. June 22, 1916.) 1. STATUTES 123(4) - VALIDITY - SUBJECT AND TITLE.

[10] We do not deem it necessary to consider all of the arguments advanced in support of the contentions of the various parties as to the construction and meaning of the will in question. We think that no trust was created by either the sixth or ninth clause of the original will. We are also of the opinion that by the second, third, fourth, and fifth clauses of the original will Hally Haight was devised an estate in fee simple, subject to the executory devise to Charlotte Haight in case he survived the testatrix and PEOPLE ex rel. CITY OF MOLINE v. BRUNtook under the will but died before Charlotte Haight, as provided in the seventh clause of the will. By reason of the executory devise his estate was reduced to a base or determinable fee, which estate he would have taken had both he and Charlotte Haight survived the testatrix, and which estate would have determined in case of his death after the death of the testatrix, but before the death of Charlotte Haight. The devise to him was also subject to the charge in the sixth clause of the will that he pay one-half of the income to Charlotte Haight during her lifetime. But it is not necessary to consider these provisions further as both he and Charlotte Haight died before the testatrix, and consequently neither of them took any thing under the will or could take.

[11] On the question of solicitors' fees, the general rule is that when the testator has expressed his intention so ambiguously as to make it necessary or advisable to go into a court of chancery to obtain a construction of

amended by Laws 1915, p. 726 (Hurd's Rev. St. Township Organization Law, art. 4, § 3, as 1915-16, c. 139, § 40), entitled "An act to revise the law in relation to township organization, and by adding thereto a subdivision designated as subdivision 16," providing that towns wholly within a corporate city or village may transfer any money in the treasury of the town to the treasury of the city for the purpose of travention of Const. art. 4, § 13, providing that constructing road and bridges, is not in conno act shall embrace more than one subject, and that subject expressed in the title, since the act of highways within the town and consequent amended refers to the improvement and control expenditure of funds, and the amendment deals directly with the same matter.

[Ed. Note.-For other cases, see Statutes, Cent. Dig. §§ 178, 179; Dec. Dig.

123(4).j

2. STATUTES 73(2)-SPECIAL LAWS-CONSTITUTIONAL PROVISIONS.

Township Organization Law, art. 4, § 3, as amended by Laws 1915, p. 726, is not unconstitutional as a special act not general in its

terms or uniform in its operation, since it ap- [ of Moline is a municipal corporation organplies to all villages, cities, and towns similar- ized under the City and Village Act, approvly situated, and to all towns in the state which are situated wholly within the limits of cities ed April 10, 1872, and is also under the comand incorporated villages. mission form of municipal government, as [Ed. Note.-For other cases, see Statutes, provided by the act approved March 9, 1910. Cent. Dig. §§ 74, 75; Dec. Dig. 73(2).] That there is included within the corporate 3. TOWNS ISLATIVE POWERS.

60-FUNDS-DISPOSITION-LEG- limits of the city of Moline all of the town of Moline and a portion, but not all, of the Township Organization Law, art. 4, § 3, as amended by Laws 1915, p. 736, is not un- town of South Moline, the same being the constitutional because the General Assembly town lying immediately to the south and takes from the treasury of a town funds belong-east of and adjoining the town of Moline. ing to the town and transfers them to the treas- The petition also avers that the General Asury of a city, since the Legislature has the power to direct the application of revenues of sembly of the state of Illinois, by an act appublic corporations. proved June 23, 1915, in force July 1, 1915, [Ed. Note.-For other cases, see Towns, Cent. amended section 3 of article 4 of an act enDig. § 103; Dec. Dig. 60.] titled "An act to revise the law in relation 4. STATUTES 138(1)-AMENDMENTS-REFER- to township organization," by adding thereENCE TO ACT AMENDED CONSTITUTIONAL to a subdivision designated as subdivision PROVISIONS. 16, wherein it is provided as follows:

Township Organization Law, art. 4, § 3, as amended by Laws 1915, p. 726, is not unconstitutional in that it merely amends section 3 of the act of 1874, without reference to amendments made to said act, since it appears there is no change in article 4, § 3, of the act since it was incorporated into the revision of the Statutes of 1874, and the title of the act is not to revise the law in regard to township organization, but is an amendment only of article 4, § 3, of the Township Organization Law. [Ed. Note.-For other cases, see Statutes, Cent. Dig. § 205; Dec. Dig. 138(1).] 5. STATUTES

ING ACT.

164-CONSTRUCTION-AMEND

Laws 1915, p. 726, amending Township Organization Law, art. 4, § 3, is not a repeal of section 3, as it existed prior to the amendment, so as to necessarily repeal article 4, § 4, since, Hurd's Rev. St. 1913, c. 131, § 2, provides that the provisions of any statute, so far as they are the same as those of a prior statute, shall be construed as a continuance of such prior pro

visions, and not as a new enactment; the amendment of section 3 being made by re-enacting all of the provisions and by adding another ing all of the provisions and by adding another subdivision.

[Ed. Note.-For other cases, see Statutes, Cent. Dig. § 239; Dec. Dig. 164.]

"In towns wholly within the limits of an incorporated city or village, the electors shall have power to transfer any money in the treasury of the town to the treasury of such city or village, to be used by said city or village in its corporate capacity for the purpose of constructing or repairing roads, bridges, approaches or causeways, over which it has control, supervision and jurisdiction, and to give full power and authority to expend any money in the treasury which it has to the credit of the township for the purposes herein designated, as may be decided by the electors or by its said board" -which law is now in force. That at a town

meeting of the electors of the town of Moline
duly held on the first Tuesday of April, 1916,
a resolution was duly passed and adopted as
follows:

of Moline, Illinois, is hereby instructed to trans-
"Be it resolved that the supervisor of the town
fer the sum of twelve thousand ($12,000) dol-
Illinois, to the treasury of the city of Moline
lars from the treasury of the town of Moline,
for the purpose of constructing or repairing
within the town of Moline.
roads, bridges, approaches, or causeways entirely

"Be it further resolved that the commissioner 6. TOWNS 47-FUNDS-DISPOSITION-CON- of accounts and finances of the city of Moline STRUCTION OF STATUTES.

Township Organization Law, art. 4, § 3, as amended by Laws 1915, p. 736, expressly provides for the case of towns which are situated wholly within the limits of the city, and cannot be construed as only applying in cases where the limits of the town are coextensive with the limits

of the city.

[Ed. Note. For other cases, see Towns, Cent. Dig. §§ 81-84; Dec. Dig. 47.]

Mandamus by the People, on the relation of the City of Moline, against Charles Brun

strom. Writ awarded.

James M. Johnston and Andrew Olson, both of Moline, for petitioner. Shallberg & Harper, of Moline, for respondent.

CRAIG, C. J. Pursuant to leave granted, this petition for mandamus was filed in this court on the relation of the city of Moline. Respondent entered his appearance and demurred to the petition, and by stipulation the cause was submitted for final decision on the demurrer.

be required to file a sworn statement showing disbursements of the said sum of twelve thousand ($12,000) dollars at the next town meeting."

It is further averred that the respondent the supervisor of the town of Moline, has in his possession, as such supervisor, the funds of the said town, amounting to more than $16,000, and that no part of the $12,000 is or may be required by the town board of the town of Moline for the payment of any indebtedness for town purposes, that demand was made by the proper officers of the city of Moline upon the respondent to transfer said sum of $12,000 to the treasury of the city of Moline, and that he has refused, and still refuses, to comply with said demand.

The respondent contends that section 3 of article 4, c. 139, as amended by the General Assembly in the manner above set out, is unconstitutional and void for the following reasons: That subdivision 16 of section 3 as amended is not germane to said section 3, is not pertinent to the matters contained It is averred in the petition: That the city therein, and does not tend to promote the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*

be amended to read as follows." Then follows section 3 as originally enacted, with the new subdivision, numbered 16, added. The subject of the act need not be specifically and exactly expressed in the title. People v. Commercial Life Ins. Co., 247 Ill. 92, 93 N. E. 90. The title need not be a detailed statement, abstract, or index of the contents of the act. People v. Hazelwood, 116 Ill. 319, 6 N. E. 480; Commissioners of Lincoln Park v. Fahrney, 250 Ill. 256, 95 N. E. 194.

[1, 2] The act is not in contravention of section 13 of article 4 of the Constitution. There can be no question that it applies to all cities, villages, and towns similarly situated, and to all towns in the state which are situated wholly within the limits of cities and incorporated villages, so it is not class legislation.

object and purpose of said section 3 or of The title of the act in full is "An act to said act to which it belongs; that the amend- amend section 3 of article 4 of an act enment to said act in question contravenes titled 'An act to revise the law in relation section 13 of article 4 of the Constitution; to township organization,' approved and in that the title of the act is "An act to revise force March 4, 1874." Section 1 of the new the law in relation to township organization," act provides "that section 3 of article 4 of and this amendment, by adding subdivision an act entitled, 'An act to revise the law,' 16 to section 3 of said act, refers to the * transfer of funds, and is not germane to or included in the title of said act; that the act is a special act, and is not general in its terms or uniform in its operation. It is also contended that the act is unconstitutional because the General Assembly has no power to take from the treasury of a town funds belonging to said town and transfer the same to the treasury of a city, and because it merely amends section 3 of article 4 of an act entitled "An act to revise the law in relation to township organization," approved and in force March 4, 1874, by adding thereto subdivision 16, without also referring to the amendments made to said act; that the law, by amending section 3 so as to read as therein set forth, repeals section 3 as it existed before the date of the new law, and therefore section 4 of article 4 of said act is necessarily repealed in so far as it excepts certain subdivisions of section 3, as said section 3 has been repealed, and therefore all the duties imposed on township organizations under section 3 now apply to the town of Moline; that the Legislature has prescribed certain duties to be performed by the town of Moline, and at the same time has taken away its funds wherewith to perform these legal duties, and by said act has rendered the town powerless to perform its functions as a township. It is further contended that, if the court should hold the act to be constitutional, yet it does not apply to the town of Moline, because the act expressly provides for "towns wholly within the limits of an incorporated city or village," and within the limits of the city of Moline are embraced the whole of the town of Moline and a portion, but not the whole, of the town of South Moline; that the Legislature did not intend that this act should apply in any case except where the boundaries of the town or towns are coextensive with the boundaries of a city or village.

As to the first series of objections to the act, a reading of the entire section 3 of article 4 as it was prior to the amendment in question of 1915 will show that it provides what shall be done by the electors present at the annual town meeting, and names 15 different subjects, numbered from 1 to 15, on which they have power to act. Certain of these directly refer to the improvement and control of the highways within the town and the consequent expenditure of the funds of the town thereon, and the amendment in question deals directly with the same matters as the other provisions of that section, is pertinent thereto, and is in line with the

[3] As to the other constitutional objections, it has been held that the Legislature has the power to direct the application of revenues of public corporations. People v. Power, 25 Ill. 187. The decision in that case was followed in Board of Supervisors v. City of Lincoln, 81 Ill. 156, and was cited with approval in Heffner v. Cass and Morgan Counties, 193 Ill. 439, 452, 62 N. E. 201, 206, (58 L. R. A. 353), which case involved questions similar in principle, and in which it was held that it was within the power of the Legislature to authorize drainage commissioners to remove bridges from public roads, when necessary for the construction of ditches, without payment of damages to the county which constructed the bridges, and that it was not in violation of article 9, §§ 9 and 10, of the Constitution to require the cost of a new bridge to be paid from the public revenues of the county. As was said in the opinion in that case:

"Public highways, and bridges on them do not belong to the counties or towns which construct them, but are held by them in trust for the entire public. Elliott on Roads and Streets, 34. Public corporations, like counties and towns, being subdivisions of the state for governmental purposes, are really a part of the state governtain duties, which may be changed, enlarged, ment, and their authorities are charged with ceror diminished by the General Assembly by general law, subject, of course, to any restriction imposed by the Constitution."

To the same effect is City of Chicago v. Knobel, 232 Ill. 112, and cases cited on page 117 of the opinion, 83 N. E. 459.

[4] It is also claimed that the law as amended is unconstitutional because it merely amends section 3 of the act of 1874 without referring to the amendments made to said act. It appears that there has been no

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