account of coverture, and that the common law limiting their estates is abrogated, giving them all the rights of feme sole, does not affect the estates of married women held at the time of its passage, since it does not purport on its face so to do, and a statute will not be construed to alter the common law further than it expressly declares or necessarily implies a change. [Ed. Note. For other cases, see Husband and Wife, Cent. Dig. § 394; Dec. Dig. 113.] Appeal from Chancery Court, Knox County; Will D. Wright, Chancellor. Action by J. C. Bennett and others against Jefferson Hutchens and another. From an order dismissing the bill, plaintiffs appeal. Affirmed. Noble Smithson, of Knoxville, for appelA. C. Grimm and W. F. Black, both of Knoxville, for appellees. BUCHANAN, J. The action is ejectment, brought by the collateral kindred and heirs at law of Darcus Hutchens. The land in suit was conveyed to her and her husband, Jefferson Hutchens, by deed dated September 22, 1897, filed for registration and registered June 24, 1899. The land conveyed by the deed was held by the husband and wife until her death intestate and without issue in September, 1914. It was thereafter held by Jefferson Hutchens until June 22, 1915, when he, by deed, conveyed it to R. L. Peters, his codefendant herein. Hutchens, we assume, was made a defendant in this suit upon the idea that, as the holder of a purchase-money lien, he was a necessary party. The defendants interposed a demurrer to the bill. The chancellor sustained the demurrer, dismissed the bill, and complainants appealed. The theory of the bill is that, upon the death of Mrs. Hutchens, complainants, as her heirs at law, became the owners of an undivided one-half interest in the land; or, in other words, the theory is that, at the time of the death of Mrs. Hutchens, she and her husband were tenants in common, each owning an undivided one-half interest in the prop erty. The defendants insist that, under the deed to Hutchens and wife, they were seised of an estate by the entireties, and therefore that no estate in the land passed to her heirs at law upon the death of Mrs. Hutchens. To support complainants' theory, the first insistence advanced is that the deed on its face did not purport, and did not convey, an estate by the entireties to the grantees. So far as the provisions of the deed need be noticed, they were as follows: "This indenture, made this 22d day of September, A. D. 1897, between Rufus M. Bennett, of Knox county, in the state of Tennessee, of the urst part, and Darcus Hutchens and Jefferson Hutchens, of the same county and state, of the second part, witnesseth." Then follows a recital that the parties of the first part, for and in consideration of the sum of $1 in hand paid by the parties of the second part, the receipt of which is acknowledged, have granted, bargained, sold, and conveyed, "and doth hereby grant, bargain, sell and convey unto the said parties of the second part the following described premises, to wit." * Here is recited a description of the land, and then: "With the hereditaments and appurtenances thereunto appertaining, * * thereunto except the said Darcus Hutchens and Jefferson Hutchens of the second part are to pay an annual rent of the sum of $25 to the said Rufus M. Bennett as long as he may live." Then follow the usual habendum clause and general covenants of warranty, the testimonium clause, the signature of the grantor, signature of a witness, certificates of acknowledgment, etc., all in proper form. The stipulation for an annual rental was part of the consideration for the deed. The bill avers that the grantees in the deed were husband and wife when it was made. [1] We think it is clear that this deed vested in Jefferson and Darcus Hutchens an estate by the entireties. tate by the entireties. Such a deed to perSons not husband and wife, considered under the common law, would have created in the grantees an estate in joint tenancy. Each of the grantees under such a deed would have taken as individuals, one and the same interest at one and the same time by one interest at one and the same time by one held the estate conveyed by one and the and the same deed, and they would have ties it is held that a deed to husband and same undivided possession. By the authoricreated in them an estate in joint tenancy, wife, which would at common law have had they not been married, does, by the fact of the marriage, create in the husband and This upon wife an estate by the entireties. the reasoning that in the eye of the law husband and wife are not separate indiv: luals, but one person, and the estate vests in them as an entirety. In legal contemplation, each of them is seised of the whole estate, and the death of one of them does not put an end to the seisin of the survivor, because his or her original seisin was of the whole, and not of part, of the estate. [2] It is immaterial that the deed in the present case did not on its face name the grantees as husband and wife; nor is it material that we find in the deed no words used to indicate a purpose in the grantor to create an estate by the entireties; nor a purpose in the grantees that such an estate should be conferred upon them. The estate, by the entireties, upon the execution of the deed, depended on the unity of the husband and wife, under the common law. "If an estate be given to a man and his wife they are neither properly joint tenants nor tenants in common; for husband and wife being considered as one person in law, they cannot take the estate by moieties but both are seized of the entirety, per tout, et non per my; the consequence of which is that neither the husband nor the wife can dispose of any part without the as sent of the other, but the whole must remain to the survivor." 2 Bla. Com. 182. "The authorities agree that the same words of conveyance which would make two other persons joint tenants will make a husband and wife tenants of the entirety, so that neither can sever the jointure, but the whole must accrue to the survivor."" Cole Manufacturing Co. v. Collier, 95 Tenn. (11 Pick.) 116, 117, 31 S. W. 1000, 30 L. R. A. 315, 49 Ám. St. Rep. 921. "The properties of a joint estate are derived from its unity, which is fourfold-the unity of interest, the unity of title, the unity of time, and the unity of possession; or, in other words, joint tenants have one and the same interest, accruing by one and the same conveyance, commencing at one and the same time, and held by one and the same undivided possession." 2 Bla. Com. 180. [4] The final insistence offered by complainants is that the effect of chapter 26 of the published Acts of 1913 was to abrogate the fundamental principles of the common law under which, by virtue of the marriage, husband and wife became a legal unity, and their argument is that, such being the effect of the act, the result was to destroy all existing estates by entireties, including that held by Hutchens and wife in the land sued for herein. The bill avers that the wife, Mrs. Hutchens, died after the act took effect. We have had occasion, during the present term, to consider this act in the case of Sarah Lillienkamp v. W. T. Rippetoe, 179 S. W. 628, Knox Law, and an opinion for publication was handed down. The conclusion we reached in that case was not in accord with the present insistence of the complainants. Generally, on the same subject, see the following of our cases: Taul v. Campbell, 15 Tenn. (7 Yerg.) 319, 27 Am. Dec. 508; Ames v. Norman, 36 Tenn. (4 Sneed) 683, 70 Am. Dec. 269; Johnson v. Lusk, 46 Tenn. (6 Cold.) 114, 98 Am. Dec. 445; Berrigan v. Fleming, 70 Tenn. (2 Lea) 271; Shields v. Netherland, 73 Tenn. (5 Lea) 193; McRoberts v. Copeland, 85 Tenn. (1 Pick.) 211, 2 S. W. 33; Jackson, Orr & Co. v. Shelton, 89 Tenn. (5 Pick.) 82, 16 S. W. 142, 12 L. R. A. 514; Hopson v. Fowlkes, 92 Tenn. (8 Pick.) 697, 23 S. W. 55, 23 L. R. A. 805, 36 Am. St. Rep. 120; Chambers v. Chambers, 92 Tenn. (8 Pick.) 707, 23 S. W. 67; Walker v. Bobbitt, 114 Tenn. (6 Cates) 700, 88 S. W. 327; Beddingfield v. Estill & Newman, 118 Tenn. (10 Cates) 39, 100 S. W. 108, 9 L. R. A. (N. S.) 640, 11 Ann. Cas. 904. For general authority to the same effect, see Hiles v. Fisher, 144 N. Y. 306, 39 N. E. 337, 30 L. R. A. 305, and note, 43 Am. St. Rep. 762; Jordan v. Reynolds, 105 Md. 288, 66 Atl. 37, 9 L. R. A. (N. S.) 1026, and note, 121 Am. St. Rep. 578, 12 Ann. Cas. 51; Pegg v. Pegg, 165 Mich. 228, 130 N. W. 617, 33 L. R. A. (N. S.) 166, and note, Ann. Cas. 1912C, 925; In re Meyer, 232 Pa. 89, 81 Atl. 145, 36 L. R. A. (N. S.) 205, and note, Ann. Cas. 1912C, 1240; Wilson v. Frost, 186 Mo. 311, 85 S. W. 375, 105 Am. St. Rep. 619, 22 Ann. Cas. 557, and note. Ann. Cas. 557, and note. [3] Complainants' second insistence is that estates by the entirety were abolished by our Acts 1784, c. 22, § 6. See section 2010, Code 1858, and section 3677, Shannon's Code, which legislation is as follows: "In all estates, real and personal, held in joint tenancy, the part or share of any joint tenant dying shall not descend or go to the surviving tenant or tenants, but shall descend or be vested in the heirs, executors, or administrators, respectively, of the tenant so dying, in the same manner as estates held by tenancy in common." The view now insisted on by complainants as the effect of the above legislation was put forward, but rejected, by our court in Taul v. Campbell, supra, and other of our cases heretofore cited. We are urged to overrule those cases, but we decline to do so, both upon the ground that upon them now depend well-settled rules of property, and because in our opinion their reasoning is sound. The act does not, by its terms, purport to abrogate estates held by entireties at the time of its passage, and created by contract antedating its passage. If the Legislature had intended the act to have such effect, we must assume that it would either in plain terms have so declared, or that it would have employed terms from the use of which such efIn the abfect would necessarily result. sence of such declaration or clear implication that the act should have such effect, we are not called upon to express any opinion based on the hypothesis of the presence of such a legislative purpose; nor do we express any opinion as to what the effect of the act would be on the estate conveyed to husband and wife by deed executed after the act became effective. The rule in this state is: the common law further than the act expressly "That a statute will not be construed to alter declares, or than is necessarily implied from the fact that it covers the whole subject-matter." State v. Cooper, 120 Tenn. (12 Cates) 549, 113 S. W. 1048, 15 Ann. Cas. 1116 and authorities cited; Sarah Lillienkamp v. W. T. Rippetoe, supra, and cases cited; Wilson v. Frost, 186 Mo. 311, 85 S. W. 375, 105 Am. St. Rep. 619, Examination of the cases cited in the note last above will disclose the weight of authority to be in support of our view of the effect of the act of 1913. The three questions we have discussed dispose of all of the assignments of error made by complainants, and it results that the decree of the chancellor will be affirmed, at the complainants' cost. CITY OF MEMPHIS et al. v. STATE ex rel. (Supreme Court of Tennessee. Oct. 23, 1915.) TION. Under Const. U. S., Amend. 14, prohibiting the denial to any person of the equal protection iting the imprisonment or execution of any perof the law, and Const. Tenn. art. 1. § 8, prohibson, or depriving him of life, liberty, or property, except by judgment of his peers or the law of the land, and article 11, § 8, forbidding class legisla- | places, may prescribe the conditions with which tion, the same rules will be applied to classifica- jitneys, being common carriers, must comply in tions therein as to the classifications made in order to operate. legislative enactments, so that the basis for a [Ed. Note.-For other cases, see Municipal classification must be natural, and not arbitrary Corporations, Cent. Dig. §§ 1509-1513; Dec. or capricious, and must rest on some substantial Dig. 703.] difference; but the classification is not invalid merely because it does not depend on scientific or marked differences. Appeal from Circuit Court, Shelby Coun [Ed. Note.-For other cases, see Constitution- ty; A. B. Pittman, Judge. al Law, Cent. Dig. § 678; Dec. Dig. 211.] 2. CARRIERS 2-CONSTITUTIONAL LAW 208, 241-CLASS LEGISLATION-REGULATION OF JITNEYS-PRIVATE CONVEYANCES. Habeas corpus by the State of Tennessee, on the relation of S. B. Ryals, against the City of Memphis and others. From an order releasing the relator, defendants appeal. Reversed and remanded. C. M. Bryan and Leo Goodman, both of Memphis, and Chas. T. Cates, of Maryville, for appellants. Caruthers Ewing, of Mem Acts 1915, c. 60, regulating jitneys as common carriers, and prohibiting their operation, except upon prescribed conditions, does not make an arbitrary classification between jitneys and privately owned automobiles, since the uses and character of operation of the two classes are distinct. [Ed. Note. For other cases, see Carriers, phis, for appellee. Cent. Dig. §§ 4, 5; Dec. Dig. 2; Constitutional Law, Cent. Dig. §§ 649-677, 700, 701; Dec. Dig. 208, 241.] 3. CONSTITUTIONAL LAW 208, 241-CLASS 4. CONSTITUTIONAL LAW 208, 241-CLASS WILLIAMS, J. Ryals, as relator, sued out a writ of habeas corpus to effect his release from the custody of the chief of police of the city of Memphis; he having been arrested for a violation of Acts 1915, c. 60. The circuit judge released the relator, holding that act void, because violative of the constitutional provisions that inhibit arbitrary class legislation. Const. Tenn. art. 1, § 8, and article 11, § 8; fourteenth amendment of the Constitution of the United States. · The act thus attacked was evidently passed for the regulation of a class of motor vehicles recently brought into service in the principal cities of the state, commonly known as "jitneys." Acts 1915, c. 60, regulating jitneys as common carriers, and prohibiting their operation, ex- By section 1 of the act it is provided that cept upon described conditions, does not make an arbitrary classification between jitneys and any person, firm, or corporation operating taxicabs, since taxicabs are for hire at a fare for hire any public conveyance propelled by proportioned to the length of the trips of the steam, gasoline, or other power, "for the purseveral passengers, without regard to route, pose of affording a means of street transwhile the jitney carries passengers upon a desig-portation similar to that ordinarily affordnated route, and the investments in the two classes of machines are widely different. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 649-677, 700, 701; Dec. Dig. 208, 241.] 5. CARRIERS 4- CARRIERS OF PERSONS "JITNEYS." A "jitney" is a self-propelled vehicle, other than a street car, traversing the public streets between certain definite points or termini, and, as a common carrier, conveying passengers at a five-cent or some small fare, between such termini and intermediate points, and so held out, advertised, or announced. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1, 462-478; Dec. Dig. 4.] 6. CONSTITUTIONAL LAW 208-CLASS LEGISLATION-ARBITRARY CLASSIFICATION. Under the provisions of the Constitution prohibiting class legislation, it is not sufficient to invalidate a statute merely to show points of similarity in the thing classified, and the thing excluded from the classification; but it must be shown that the classification is unreasonable and impracticable. ed by street railways (but not operated upon fixed tracks) by indiscriminately accepting and discharging such persons as may offer themselves for transportation," is declared a common carrier, and the business of all such carriers is declared to be a privilege. Section 2 of the act makes unlawful the use and occupation of any street or alley or other public place in any incorporated city or town without first obtaining from such city or town a permit or license by ordinance giving the right to so use or occupy such street, alley or other public place-the permit or license to embody "such routes, terms and conditions as such city or town may elect to impose: Provided, however, that no such permit or license shall be granted which does not require the execution and filing of a bond," as provided by section 3. Section 3 provides that before such common carrier may conduct his business he [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 649-677; Dec. Dig. 208.] must execute a bond, with good and sufficient surety or sureties, in no case to ex7. MUNICIPAL CORPORATIONS 703-STREETS ceed $5,000 for each car operated, condiThe Legislature, being endowed with police tioned that such common carrier will pay power to regulate the use of streets in public any damage that may be adjudged finally -LEGISLATIVE CONTROL-JITNEYS. against such carrier as compensation for loss of life or injury to person or property inflicted by such carrier or caused by his negligence. Section 4 makes it unlawful for such com mon carrier to use or occupy any street or alley or other public place without the per mit or license aforesaid or without first ex ecuting and filing the bond as required by section 3. ry." Motlow v. State, 125 Tenn. 547, 145 S. Having these principles in mind for guidance, we may conceive that, from the experiautomobiles at the time of the enactment of ence developed by the operation of jitney the regulatory statute, the Legislature deemed the provision for a bond to be necessary be The subsequent sections need not be out-cause it realized that by reason of the small lined, since the provision requiring the execution of a bond is the only one inveighed against by relator, charged as he was with the operation of a jitney automobile without having executed such bond. The circuit judge, after calling attention in his opinion to the fact that the act does not limit the condition of the bond to a protection of the passengers of such a common carrier, but includes the payment of damages by reason of negligence resulting in injury to pedestrians or to property generally, expressed the view that the provision of the statute might be upheld if the bond required had to do only with the protection of passengers, and further said: "This act imposes upon the carrier burdens not only in his character of common carrier, but also burdens in his capacity of an ordinary user of the streets. Using the same kind of vehicle, with the same motor power, in identically the same manner as private operators of automobiles, he is required to give a bond to protect other users of the streets against his negligence. No such requirement is made of any other person using similar vehicles." The act was therefore held invalid, with result that the city has appealed to this court. [1] Under the provisions of the state and [1] Under the provisions of the state and national Constitutions, above referred to, the same rules are applied as to the validity of classifications made in legislative enactments. When an effort is thus made to distinguish and classify as between citizens, the basis therefor must be natural, and not arbitrary or capricious. The classification must rest on some substantial difference between the situation of the class created and other persons to whom it does not apply. State ex rel. v. Schlitz Brewing Co., 104 Tenn. 730, 59 S. W. 1033, 78 Am. St. Rep. 941, and cases cited. However, classification for such purposes is not invalid because not depending on scientific or marked differences in things and persons, or in their relations. It suffices if it is practical, and it is not reviewable un less palpably arbitrary. Orient Ins. Co. V. Daggs, 172 U. S. 562, 19 Sup. Ct. 281, 43 L. Ed. 552, cited with approval in State ex rel. v. Schlitz Brewing Co., supra. fare charged by such operators the tendency would be for them to invest in cheap or secondhand machines, oftentimes fragile in character; that frequently the vehicle would not be owned outright, but only subject to a lien or by way of lease; that, by reason of the limited size and carrying capacity of the conveyances, an increased congestion of the streets and public places would follow, as well as an overtaxing of the capacity of the given conveyance; that they would have no fixed track upon which to run, moving at will over the entire street surface, and in their crossing over and stopping along the curb between crossings, or at street crossings, danger to persons and property would be augmented; that, by reason of the competition of the many engaged in the business, frequent contests between the operators for points of vantage in the streets would follow; that there was a tendency fraught with danger in the many so engaged seeking the streets of heaviest travel for passengers, thus leading to congestion, as well as in hasty efforts made to head off and divert those wait ing on the curb as offerers for passage on street railways; that the desire and necessity to collect many small fares would tempt operators to indulge in swift and careless running; that by reason of receiving and intervals, there would be an interruption of discharging passengers at short, unscheduled traffic and an endangering of other vehicles in the streets; that by reason of the small investment required many who are financially irresponsible would embark in the business; that the collection of damages from the operators would be difficult, and in many instances impossible. [2] We come now to the test of the law made by the circuit judge, and which led him to denounce the classification-the inclusion of jitney automobiles and the exclusion of automobiles privately owned and used. We think that such a classification is easily sustainable by reason of the applicability of many of the considerations above enumerated. The privately owned vehicle ordinarily has but a single destination, at which it comes to rest. Its use is not urged to or "When the classification in such a law is call- towards the limit in order to the reaping of ed in question, if any state of facts reasonably profits. We are unable to see merit in the can be conceived that would sustain it, the ex- distinction taken by the circuit judge, when istence of that state of facts at the time the law he intimated the opinion that a classificawas enacted must be assumed. One who as- tion of the jitney from privately used autosails the classification in such a law must carry the burden of showing that it does not rest upon mobiles might be sustained only so far as was concerned. Most of the dangers that surround such passengers in a substantial sense beset also the users of the street. [3] Contrasting the jitney with street railway cars, to ascertain whether there be arbitrary classification: The street railway, by reason of its having tracks at definite places assigned it by municipal authority, on which tracks its traffic must move, is less liable to cause injury; and the substantial nature of it cars, and particularly the fixity, permanency, and great cost of its roadbed, afford an anchored indemnity in respect of its liability for negligence. Other marks for differentiation, appearing in the above outline of considerations imputable to the legislative mind, need not be reiterated. [4] Assuming for test purposes (without meaning to decide or to intimate a decision) that taxicabs are common carriers, and that they are not included within the terms of the statute, does their exclusion operate to make the classification unreasonable and arbitrary? justice of the law might be demonstrated; but something more must be considered. Not only the final purpose of the law must be considered, but the means of its administration-the ways it may be defeated. Legislation, to be practical and efficient, must regard this special purpose New York, 201 U. S. 633, 26 Sup. Ct. 554, 50 as well as the ultimate purpose.' St. John v. L. Ed. 896, 5 Ann. Cas. 909, affirming 178 N. Y. 617, 70 N. E. 1104. The same court upheld a classification of vehicles (in respect of their respective owners' rights to use the streets) by which advertising wagons or busses were excluded, while ordinary business wagons, when engaged in the usual business of the owner, and not used merely or mainly for advertising, were permitted to use the streets while exhibiting business notices. Fifth Ave. Coach Co. v. New York, 221 U. S. 467, 31 Sup. Ct. 709, 55 L. Ed. 816, affirming 194 N. Y. 19, 86 N. E. 824, 21 L. R. A. (N. S.) 744, 16 Ann. Cas. 695. See, also, Provident Institution v. Malone, 221 U. S. 660, 31 Sup. Ct. 661, 55 L. Ed. 899, 34 L. R. A. (N. S.) 1129. [5] The word "jitney" we think may be defined to be a self-propelled vehicle, other than a street car, traversing the public streets between certain definite points or termini, and as a common carrier conveying passengers at a five-cent or some small fare, between such termini and intermediate points, and so held out, advertised, or announced. The word "taxicab" is one of recent coinage, to describe a motor-driven conveyance that performs a service similar to the cab or hackney carriage, held for hire at designated places at a fare proportioned to the length of the trips of the several passengers, who are taken to be carried to destinations without regard to any route adopted or uniformly conformed to by the operator. The jitney holds itself out to accommodate persons who In the case of Ex parte Cardinal (Cal.) purpose traveling along a distinct route chos- 150 Pac. 348, where was involved an ordien by the operator. Operators of taxicabs nance substantially so defining a jitney, and have not the temptation or necessity, we may requiring the owner, before operating such assume, of choosing the most traveled streets, machine, to obtain a permit, and to give a since those less traveled afford them better bond or provide a policy of insurance to proopportunities to serve the object their own-tect those injured, the court upheld the orers have in view. It may be that a larger dinance as not creating an arbitrary class, investment is ordinarily required to enter the and said: taxicab business than the other, and that the conveyances would be less in number on this account, as well as because of the greater fare charged, not to mention other differences to be drawn from the above summary. In New York an ordinance regulating the conduct of the business of public hackmen has been held not to be discriminatory, because it applied only to those engaged in transporting passengers for hire who solicit business on the streets, or because taximeters are required to be attached to motor-driven vehicles only. The Taxicab Cases, 82 Misc. Rep. 94, 143 N. Y. Supp. 279, affirmed under style Yellow Taxicab Co. v. Gaynor, 159 App. Div. 893, 144 N. Y. Supp. 299. "It is manifest that as to automobiles there may be circumstances existing, by reason of the manner and character of their use on the streets, that will warrant, in the interest of the safety for a particular purpose and in a particular way. of the public, special regulations as to those used * * We entertain no doubt whatever as to the power of the board of supervisors of the city and county of San Francisco to make special such vehicles as are described in section 1 of the regulations relating to the use on the streets of ordinance, and therein termed jitney busses. It is argued that the charge of ten cents or less for passage is no proper criterion by which to nance. It may well be, however, that the special classify for such a purpose as that of this ordidanger to the public sought to be guarded against is confined to just the class of vehicles described, viz., automobiles used on the public streets for the carriage of passengers at a very small charge. *** It is the 'low fare' automobile for the carriage of passengers on the streets of San Francisco that the ordinance is designed to reguwhether there is sufficient distinction between say-late. The real question in this connection is the operation on the public streets of these 'low charge' automobiles for the carriage of passengers and the operation of self-propelled motor cars on which a much higher charge is made, to warrant the imposition of the special regulations made by this ordinance. It is a matter of common knowledge on the part of those familiar The Supreme Court of the United States has held that the inclusion of producing, and the exclusion of nonproducing, venders of milk in legislation was valid, the court saying: "A picture is exhibited of producing and nonproducing venders [of milk] selling milk side by side; the latter, it may be, a purchaser from the former; the act of one permitted, the act of the other prohibited or penalized. If we could look no farther than the mere act of selling, the in |