12 lice regulation, and in a proceeding under such ordinance it is not necessary to show that the cultivation of rice is injurious to health, since the power to declare what constituted a nuisance was conferred by the charter." The opinion in the last case is based upon the principle of Martin v. Mott,12 which is that where a statute gives a discretionary power to any person to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction that the statute constitutes him the sole and exclusive judge of the existence of these facts. So, where the legislature confers upon an incorporated town the power to declare what shall be a nuisance, an ordinance declaring that swine running at large within the town is a nuisance is valid.18 Likewise, an ordinance declaring that the selling of spirituous liquors within the corporate limits of a city is a nuisance.14 4. True Doctrine Stated-Illustrations.— The general rule of law is well established, and supported by authorities, that the power of a municipality to declare what shall be deemed a nuisance is not so absolute as to be beyond the cognizance of the courts to determine whether it has been reasonably exercised in a given case or not. Likewise, the general proposition is well supported that under a general grant of power over nuisances, municipal authorities have no power to pass an ordinance declaring a thing a nuisance which, in fact, is clearly not one. There are some things which, in their nature, are nuisances, and which the law recognizes as such. There are others which may or may not be so, their character, in this respect, depending on circumstances.17 16 13 Roberts v. Ogle, 30 Ill. 459; Crosby v. Warren, 1 Rich. (S. C.) Law, 385; Kennedy v. Snowden, 1 McMullen (S. C.), 323. 14 Goddard v. Jackson, 15 Ill. 588. 15 Yates v. Milwaukee, 10 Wall. 497; River Rendering Co. v. Behr, 77 Mo. 91, 98. 16 Evansville v. Miller (Sup. Ct. Ind.), 45 N. E. Rep. 1054. 17 Town of Lake View v. Letz, 44 Ill. 81. shown to be a nuisance, can, by its mere declaration that it is one, subject it to removal by any person supposed to be aggrieved, or can by the city itself. This would place every house, every business, and all property of the city at the uncontrolled will of the temporary local authorities.''18 In a recent case before the Supreme Court of Indiana, where it appeared that the city had the power to declare what shall constitute a nuisance conferred upon it by the State legislature, it was held that the city had no power to declare by ordinance that a partially burned building constituted a nuisance, irrespective of its actual condition as effecting private or public safety and health. 19 Likewise, it has been held in Illinois that public picnics and open air dances are not, in their nature, nuisances, and cannot be so declared by ordi nance, notwithstanding the power to declare and abate nuisances exists in the city by virtue of the State law. The nuisance must consist in the manner of conducting them which may be productive of annoyance and injury to the public, and this is a question of fact and not of law.? 20 The same rule has been declared in Colorado where the charter of the city of Denver conferred upon it the authority to declare what shall be a nuisance and to prevent and abate the same. Here it was held that this grant of power did not authorize the city to arbitrarily declare any particular thing a nuisance which had not theretofore been declared such by law, or so adjudged by judicial determination. The court said: "The proper construction of this language is that the city is clothed with the authority to declare, by general ordinance, what shall constitute a nuisance; that is to say, the city may by such ordinance, define, classify, and enact what things or classes of things, and under what conditions and circumstances such specified things are to constitute and be deemed nuisances."21 5. Courts are Reluctant to Interfere-Reasonableness.-Where a city possesses express authority to declare, prevent, and abate nuisances, the enactment of an ordinance of the character under consideration makes out a 18 Yates v. Milwaukee, 10 Wall. 497. 19 Evansville v. Miller (Sup. Ct. Ind.), 45 N. E. Rep. 1054. 20 Village of Des Plains v. Poyer, 123 Ill. 348. 21 City of Denver v. Mullens, 7 Colo. 345. 22 prima facie case that it is reasonable. It is generally held that municipal corporations are prima facie the sole judges of the necessity of ordinances of this character, and courts will not ordinarily review their reasonableness when passed in pursuance of an express grant of power.23 Hence, an ordinance declaring that the running of a rock crushing machine on a block or square, where there are three or more residences occupied, is a nuisance, is reasonable and constitutes such act a nuisance. A clear case should be made out to authorize a court to interfere with the powers of a city respecting the exercise of its police powers on the ground of unreasonableness.25 Where the question is Where the question is in doubt the action of the municipal corporation is conclusive. 26 "In determining whether it is reasonable the court should not substitute its discretion for that of the municipal legislature." Ordinarily, whether or not an ordinance is reasonable is a question for the court and not the jury.28 The presumption is that an ordinance duly passed by virtue of the power conferred by the charter is reasonable, and the burden is upon the party who denies the validity of the ordinance. "Before a by-law can be set aside on this ground, its unreasonableness must be shown demonstrably. There should be no equipoise or vacillation in the beam, the scale containing the proofs should instantly descend and hold the counter-proofs in steady suspension." "The authorities of a city are invested with a large discretion in determining the necessity or expediency of the ordinances they shall adopt; and when the powers are exercised within the bounds of 29 30 22 Morse v. West Point, 110 Mo. 502; Fisher v. Harnesberg, 2 Grant (Pa.), 292; The Commonwealth v. Robertson, 5 Cush. 438. 23 Hannibal v. Telegraph Co., 31 Mo. App. 23; St. Louis v. Green, 7 Mo. App. 468. 24 Kansas City v. McAleer, 31 Mo. App. 433. 25 St. Louis v. Weber, 44 Mo. 547; State v. Pond, 93 Mo. 606; Plattsburg v. Riley, 42 Mo. App. 18; St. Louis v. Speigel, 8 Mo. App. 478. 26 Railroad v. Lake View, 105 Ill. 207; St. Louis v. Griswold, 58 Mo. 192; State v. Able, 65 Mo. 357. 27 Kansas City v. McAleer, 31 Mo. App. 436. 28 Commonwealth v. Worcester, 3 Pick. 462; State v. Overton, 4 Zab. (N. J.) 435; 1 Dillon Munic. Cor. sec. 327; Angel & Ames Cor. sec. 357; Boston v. Shaw, 1 Met. (Mass.) 130; Commonwealth v. Stodder, 2 Cush. (Mass.) 562. 29 State v. Trenton, 53 N. J. L. 132, 20 Atl. Rep. 1076. 30 Paxon v. Sweet, 13 N. J. L. 196. reason and apparent necessity, they should not be held null by the courts." 931 In as suming of the right to judge of the reasonableness of the exercise of corporate powers, courts will not look closely into mere matters of judgment where there may be a reasonable difference of opinion. It is not to be expected that every power will always be exer cised with the highest discretion, and when it is plainly granted a clear case should be made to authorize an interference on the ground of unreasonableness." Where it is conceded that a municipal corporation has the power to pass an ordinance, "the mere passage of the ordinance makes out a prima facie case for the validity of the ordinance, so far as it concerns any question of reasonableness; the presumtion is in favor of the exercise of the power of the city authorities as being a reasonable and legitimate exercise of such power. When the courts are called upon to exercise the judicial powers in de claring a municipal ordinance unreasonable, they will make such a declaration only when the prima facie case made by the passage of the ordinance is overcome in the most satis factory manner.33 - 6. Doubt as to Nuisance. "In doubtful cases," says the Supreme Court of Illinois, "where a thing may or not be a nuisance, depending upon a variety of circumstances, requiring judgment or discretion on the part of the town authorities in exercising their legislative functions, under a general delega tion of power like the one we are considering, their action, under such circumstances, will be conclusive of the question. There are many innoxious useful things which the mo nicipal authorities of a town or city could not lawfully, under a general grant of power, like the one in question, declare a nuisance -such, for instance, as the exercise of cer tain trades and callings, as that of a physi cian, druggist and the like. In all such cases as these, courts, acting upon their own experience and knowledge of human affairs. would say, as matter of law, the exercise of these trades or callings, or things of like character, are not nuisances, and that saf 31 Morse v. West Point, 110 Mo. 502, 508; City of Tarkio v. Cook, 120 Mo. 1,9; Maggard v. Pond, 77 Ma 117; State v. Burgdoerfer, 107 Mo. 1, 84; State Kingsley, 108 Mo. 135, 139. 32 Per Bliss, J., in St. Louis v. Weber, 44 Mo. 58 33 Morse v. West Point, 110 Mo. 502, 508, 509. attempt to so declare them by the municipal | authorities would be an unwarranted abuse of their power. On the other hand, there are many things which courts, without proof, will, on the same principle, declare nuisances. Such, for instance, would be the digging of a pit, or the erection of a house, or other obstruction, in a public highway; and an ordinance passed by a town or city having, as in the present case, a general power over the subject, declaring such obstruction nuisances, would be valid on its face, and a conviction might properly be had under it, without any extrinsic proof to show the act complained of was in fact a nuisance. In all such cases it is sufficient to show the existence of the fact constituting the nuisance." Accordingly, in this case, it was held that the use of steam as motive power in operating trains along and over one of the public streets of the town, contrary to an ordinance, was per se a public nuisance.34 a WILKES, J.: This is a contest between brother and sister over the proceeds of a benefit certificate in the order of Knights of Honor upon the life of their father. The father, William Fischer, had been a member of the order for quite a number of years, and carrying insurance in it upon his life. The original certificate was for $2,000, and was payable to his wife. She died in 1889, and the certificate, in May, 1895, was surrendered, and a second certificate was issued instead, for a like amount, but payable $800 to John A. Fischer, $800 to Harriet B. Fischer, and the remaining $400 to three other children. On the 23d of December, 1895, this second certificate was surrendered to the lodge, and in its stead a third certificate was issued for the same aggregate amount, payable $200 to John A. Fischer, $1,400 to Harriet B. Fischer, and the remaining $400 to the three children, as provided in the previous certificate. On the 8th of January 1896, the father died. On the 4th of February, 1896, the complainant, John A. Fischer, filed this bill against his sister Harriet and the Supreme Lodge Knights of Honor to compel the payment of the $2,000 into court, and its apportionment according to the second certificate, so as to give him $800 of the fund, as provided by that certificate. The chancellor granted the relief prayed, and directed that the daughter be refunded one-half the amounts she had paid out in nursing and caring for her father in his last illness, in his burial expenses, and for a lot in the cemetery, and divided the costs. The defendant by appeal, and the complainant by writ of error, brought the case to this court, and it has been heard by the court of chancery appeals. That court reversed the holding of the chancellor, and directed the fund to be paid out as provided by the last certificate, that the son be not required to repay to his sister anything on account of nursing expenses of last sickness after the removal to the hospital or burial of the father, and directed that defendant Harriet pay one-half the costs in the court below and the complainant the other half and all the costs of the appeal, and remanded the cause to the court below for the execution of the decree. The complainant, John A. Fischer, appealed to this court, and has assigned errors. The Supreme Lodge Knights of Honor has been permitted to pay the fund into court, and has no further interest in the controversy. The questions presented for the consideration of this court by the assignment of errors are: (1) Whether the parties to whom the second certificate was issued were thereby clothed with a vested right which the member could not afterwards change or defeat without the consent of the beneficiaries in the certificate. (2) Whether the complainant, John A. Fischer, if he had a vested right under the second certificate, forfeited his rights thereunder by abandoning or failing to comply with certain agreements made by him as to the maintenance of his father, which formed the consideration for the provisions in his favor in that certificate. The facts, so far as necessary to be stated, are that the second certificate was issued upon an agreement, entered into between the father, son, and daughter, that the brother would furnish the father with a home and maintenance, and pay half his dues to the order, and the daughter would pay the other half of dues, and furnish him all necessary clothing, and they would each, in consideration therefor, have $800 of the proceeds of the insurance. The court of chancery appeals find that, in accordance with this mutual agreement, the father did live with the son for several months. He was then stricken with partial paralysis, and after about two months was removed to a hospital, where he became helpless, and required much care and constant attention. The son was a poor man, working for daily wages, and his wife was out at service for a great part of the time, so that proper care and attention could not be given at the son's house. That court finds that the son was willing to do all he could, but recognized the fact that his circumstances were such as to prevent him from giving the constant attention and care required. By mutual consent, and on the advice of friends, he was taken to a hospital, where he could be better cared for. Up to this time the agreement had been carried out so far as practicable by the son and daughter, the latter contributing something more than the son towards the payment of assessments. The court of chancery appeals conclude that when the son agreed to the removal of his father to the hospital, to be kept and cared for, he abandoned his agreement to furnish him a home and maintenance, and thereby surrendered all contractual rights in the certificate, if he had any; and that the father had the right to change the beneficiartes, surrender the certificate, and take out a new one; and that the son had no vested right or interest in the proceeds of the second certificate that could defeat this right. The court of chancery appeals find that when the father took out the third or last certificate he was mentally capable of transacting such business, and did understand what he was doing, and the nature and effect of his act; that he made the change in certificates of his own volition, and his daughter was guilty of no fraud in relation thereto. The son did not know of the change in certificate until after it was accomplished, but before the death of the father; but there does not appear to have been any intentional concealment from him or bad faith towards him in the matter. The first question presented is whether the son had any vested interest or right in the proceeds of the insurance upon the life of the father which would prevent the father from canceling the second and taking out the last certificate, thus changing the son's beneficial interest in the proceeds. Under the constitution and general laws of the Knights of Honor (article 9, § 4) it is provided that: "A member desiring to change his beneficiary may at any time, while in good standing, surrender to his lodge his benefit certificate, which shall be sent to the supreme reporter," etc. "And he shall thereupon cancel the old certificate, and issue a new one in lieu thereof to such member, payable as he shall have directed, within the limitations prescribed by the laws of the order; said surrender and direction to be made on the back of the benefit certificate surrendered, signed by the member, and attested by the reporter under the seal of the lodge." The provisions of this section were strictly followed in surrendering the second and issuing the third, or last, certificate. It is held in a number of cases, principally in New York and California, following the New York cases, that the beneficiary who pays assessments does acquire an interest which cannot be devested without his consent, when there is a special agreement to that effect, or that no substitution shall be made. See the cases cited in 3 Am. & Eng. Enc. Law (2d Ed.), 993, and note 4. But these cases are not in accord with the current weight of authority. Id. 990, and notes. The rule approved in the majority of cases is based upon the provisions and reservations contained in the charter and by-laws of the society, and this furnishes the distinction between ordinary life and mutual benefit insurance policies. Id. 991. This rule adopted in the majority of cases is in accord with the objects and purposes of beneficial orders in which the benevolent feature prevails largely. It is the policy of the law to discourage agreements by which a certificate in such order may be transferred to a third person, and be held and used by him as a speculation or business venture, and hence no restrictions will be thrown around the right of the member to change his certificate and beneficiaries if he so desire. Quinn v. Supreme Council (Tenn. Sup.), 41 S. W. Rep. 843; Sofge v. Supreme Lodge (Tenn. Sup.), 39 S. W. Rep. 853. The laws, articles of association, and certificates of membership of the order determine the rights of the members, and these laws, articles, and provisions of membership will be respected and enforced by the courts. Association v. Jones (Pa. Sup.), 26 Atl. Rep. 253; Chartrand v. Brace (Colo. Sup.), 26 Pac. Rep. 152; Association v. Stapp (Tex. Sup.), 14 S. W. Rep. 168; Otto v. Tailors' Union (Cal.), 17 Pac. Rep. 217; Sabin v. Phinney (N. Y. App.), 31 N. E. Rep. 1087; Niblack, Ben. Soc. & Acc. Ins. § 166; May. Ins. § 552; Bliss, Ins. § 426; Association v. Montgomery (Mich.), 38 N. W. Rep. 588; Martin v. Stubbings (Ill. Sup.), 18 N. E. Rep. 657. The vital point and determining facts as to the rights of the holder and beneficiary are to be found in the laws of the order, by virtue of which the cer tificate of a member is within his power, control. and disposition, so long as he lives; and no interest does or can vest in a beneficiary so as to defeat this right. Catholic Knights v. Kuhn, 1 Tenn. 241, 18 S. W. Rep. 385; Handwerker v. Diermeyer, 96 Tenn. 619, 36 S. W. Rep. 869; Sofge v. Supreme Lodge (Tenn. Sup.), 39 S. W. Rep. 853; Association v. Winn, 96 Tenn. 224, 33 S. W. Rep. 1045. The beneficiary during the life of the member can have no more than a mere expectancy, resting entirely upon the volition of the member; and this cannot, during the member life, rise to the dignity of a vested property right It is no more than the mere expectancy of s legatee or devisee, which, although it may be recognized by one will, may be defeated and extinguished by the execution of a subsequent will. The final power of disposition rests in the testator or member so long as he lives. The laws and regulations of the order enter into and become a part of every certificate issued to a member. Nor can it alter the rule that the expectant beneficiary has paid assessments or incurred expense upon the faith of the provisions in his behalf in a cer tificate which is afterwards canceled and changed. What the rights of such expectant beneficiary may be against the member personally, growing out of such payments made and expenses curred, we need not consider as that question is not before us. But under the prevailing rule as laid down and recognized by the current of authority and by our own cases, the member's right to dispose of the insurance exists, notwithstanding the beneficiary originally named has paid assessments or incurred expense. Fisk v. Union (Pa. Sup.), 11 Atl. Rep. 84; Byrne v. Casey, 70 Tex. 247, 8 S. W. Rep. 38; Association v. Bunch, 109 Mo. 560, 19 S. W. Rep. 25; 3 Am. & Eng. Enc. Law (2d Ed.), 992, note 3; Quinn v. Supreme Council (Tenn. Sup.), 41 S. W. Rep. 843. But it is insisted that, if all this be conceded, there is still an equity existing between the brother and sister arising out of their agreement, which, while it cannot be enforced against the order, and contrary to the terms of the certificate, still should be recognized as between the brother and sister, and enforced against the proceeds, after they have been paid into court by the order. In other words, the order having paid the fund into court, to be distributed as the court may deem proper, and thus discharged its liability under the terms of the certificate, the court will distribute the fund between the son and daughter according to their agreement and the terms of the second certificate, and without regard to the terms of the last certificate, which was taken out without the son's consent or knowledge. It is not intended to hold that a case may not be presented that will call for such action, and where the equities of the parties inter sese may not be adjusted in the proceeds without regard to the terms of the certificate under which the money is paid into court. But under the findings of the court of chancery appeals such a case is not presented in this controversy. That court finds that the son was unable to carry out his agreement to maintain his father, and that he abandoned the attempt, not from a desire so to do, but from necessity. It finds also that the sister attempted to exercise no improper influence over the father, and that he made the change in his certificate of his own volition, and she was guilty of no fraud in relation to it, and that the father comprehended the nature and purport of his action in changing the certificate. This state of facts does not raise any equity upon the part of the brother to have the fund distributed upon any different basis or in any manner different from that provided in the final certificate. The decree of the court of chancery appeals is affirmed, and the cause remanded as directed by that court. NOTE.-Recent Decisions on Change of Beneficia. ries in Mutual Benefit Insurance.-The holder of a certificate in a mutual relief association applied for "change of beneficiary," stating that the former certificate was thereby returned, and surrendered for the purpose of the application, and that the association should forward a new certificate, payable to such persons as he might name in his will. The certificate was issued accordingly, but no beneficiaries were ever designated, by will or otherwise. Held, that no change of the beneficiaries took place. Grace v. Northwestern Mut. Relief Assn. (Wis.), 58 N. W. Rep. 1041. Where the beneficiary in a policy is changed on the application of the insured, who asks that the change be made, "provided” the original beneficiary "does not claim," such change is subject to the rights of the original beneficiary, and, unless he is dead, or his claim has been released or barred by limitation, the new beneficiary cannot recover on the policy. Helfrich v. John Hancock Mut. Life Ins. Co, 28 N. Y. S. 535, 8 Misc. Rep. 320. Where a person became fa member of a mutual benefit association under an agreement with the person designated in the certificate as beneficiary that the beneficiary should pay all the assessments, and they were so paid, the beneficiary acquired a vested interest in the certificate, and the member could not afterwards make another designation. Maynard v. Vanderwerker (Sup.), 24 N. Y. S. 932, 30 Abb. N. C. 134. The rules of a benefit association provided that a change of beneficiary could be made only by indorsing the desire for change on the back of the certificate, and paying a recording fee. Deceased took out a policy in favor of his wife, and, after divorce from her, made a sworn statement to the company that he desired a change of beneficiary, and could not obtain possession of the certifi cate from his former wife. On the company's disapproval of the application, he disposed by will of the proceeds to become due on the policy. Held, that such disposition created a valid change of beneficiary. Grand Lodge of the Ancient Order of United Work. men v. Kohler (Mich.), 63 N. W. Rep. 897. The laws of a benefit association provided the manner in which a member could change the beneficiaries in his policy, subject to the provisions that care must be taken to see that the persons of a member's family legally dependent on him should receive the money. The association refused to approve a change giving to the member's married daughters a larger share than was given them in the original policy, his wife's share being diminished, and no new policy was issued. Held, that the association had no discretion in approving changes, and therefore the beneficiaries were entitled to share in the proceeds of the policy as if the change had been made. Scholl v. Sadoury (Pa. Com. Pl.), 25 Pittsb. Leg. J. (N. S.) 43. If sound equities exist in favor of the original beneficiary of an insurance certificate, the insured is estopped to substitute a second beneficiary, whose status is purely that of a volunteer. Jory v. Supreme Council, American Legion of Honor, 38 Pac. Rep. 524, 105 Cal. 20. Under Laws 1892, ch. 690, sec. 238, providing that a change of beneficiaries shall be made on the consent of the society in the manner prescribed by its by-laws, an indorsement on the certificate of membership directing payment to a person not named in the certificate is not a valid transfer of the insurance, without the consent of the society. Armstrong v. Warren, 31 N. Y. S. 665, 83 Hun, 217. Where the class of beneficiaries prescribed by the charter of a benevolent society is the "family, orphans, and dependents" of the members, and a member originally designated his wife as the beneficiary, an attempted substitution of a beneficiary not of that class is ineffectual to annul the designation of the wife. Di Messiah v. Gern, 30 N. Y. S. 824, 10 Misc. Rep. 30. Where the by-laws of a mutual benefit association provide that, to change the beneficiary in a policy, the policy shall be surrendered, the beneficiary named in the policy is entitled to the money, though the insured, who married after taking out the policy, intended to make his wife the beneficiary, and a few days before his death handed the policy to his brother, who promised to have the wife made the beneficiary, but failed to do so. McLaughlin v. Mc |