right of respondents to bring an action to foreclose their mortgage upon the property.

RUDKIN, FULLERTON, CROW, and DUNBAR, JJ., concur. HADLEY, C. J., and MOUNT, J., took no part.

In

employment through such office, or to wil-
fully deceive any person seeking employment
through such office, and take a fee for such
employment." Defendant was convicted be-
fore the police magistrate of the city, where-
upon he appealed to the superior court.
that court he demurred to the complaint, up-
on the ground that it did not state facts
sufficient to constitute a cause of action. The
demurrer was sustained, the defendant dis-
charged, and, from a judgment of dismissal,

CITY OF SPOKANE v. MACHO. (Supreme Court of Washington. Jan. 4, 1909.) 1. MUNICIPAL CORPORATIONS (§ 111*)-ORDI-the city has appealed. NANCES-VALIDITY.

A city ordinance must be fair in its terms, impartial in operation, and general in application.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 245-256; Dec. Dig. § 111.*]

The charter provisions relied upon to sustain this prosecution are as follows:

"Sec. 53. To regulate or prohibit the carrying on within the corporate limits of the city of occupations which are of such nature as to affect the public health or good order of

2. LICENSES (8 52*)-ORDINANCES-REGULA- the city or to disturb the public peace, and TION OF EMPLOYMENT AGENCIES.

A city under the police power may license and regulate employment agencies.

[Ed. Note. For other cases, see Licenses, Dec. Dig. 52.*]

3. MUNICIPAL CORPORATIONS (§ 111*)-REGULATION OF BUSINESS-CLASSIFICATION.

which are not prohibited by law, and to provide for the punishment," etc.

"Sec. 55. To provide for the punishment of all disorderly conduct and of all practices dangerous to the public safety or health, and to make all regulations necessary for the preservation of public morality, health, peace, and good order," etc.

*

While a city under the police power may by ordinance classify a business for purposes of revenue, and all necessary and proper penalties may be provided to insure its due enforce- While no account of it was taken in the ment, yet, where the object is regulation, no court below, subdivision 5, § 59, "to license, classification can be made which will render an act criminal when done by a person in one oc- tax, regulate, and control hawkers, peddlers, cupation and innocent when done by one in an* and all other classes of business not other pursuit. but the ordinance must treat otherwise in this charter provided for," is alike all of the class to which it applies, and must include all who are similarly situated, now urged as sufficient in itself, or, when and an ordinance making it unlawful for a per- taken in connection with the others, to warson keeping an employment office to make a will- rant a conviction and sentence. Assuming ful misrepresentation to a person seeking em- that it is within the police power of the city ployment through the office, and take a fee for such employment, is invalid, since it makes the to enact an ordinance to protect the citizen obtaining of money by willful misrepresentation from frauds, impositions, willful misreprewhich may be done in any business criminal sentations, and deceits, section 7 of the oronly when done by one conducting an employ-dinance in question cannot be sustained. It

ment office.

CHADWICK, J. Defendant was arrested and charged with the violation of an ordinance of the city of Spokane, Wash., entitled: "An ordinance licensing and regulating the keepers of employment offices and the business of employment agencies in the city of Spokane, providing a penalty for the violation thereof," etc. Among other matters covered by the ordinance, it is provided: "Sec. 7. It shall be unlawful for any person keeping an employment office to make any wilful misrepresentation to any person seeking

is a fundamental proposition that an ordinance must be fair in its terms, impartial in its operation, and general in its application. Dillon, Mun. Corp. 322; McQuillan, Mun. Ord. 193. The ordinance before us assumes to license and regulate the business of employment agencies. This has been held to be a proper exercise of the police power of the state. Price v. People, 193 Ill. 114, 61 N. E. 844, 55 L. R. A. 588, 86 Am. St. Rep. 306.

But section 7 goes further. It defines a common-law crime, and provides a penalty for its infraction—not for all who may be guilty of a like offense, but the employment agent who shall by willful misrepresentation or deceit obtain the money of another. It cannot be denied that the business of the employment agent is a legitimate business, as much so as is that of the banker, broker, or merchant; and, under the methods prevailing in the modern business world, it may be said to be a necessary adjunct in the prosecution of business enterprises. The vice of the section under discussion lies in this: That it makes an act criminal in one who may be engaged in a lawful business, while the act

756

The judgment of the lower court is af|firmed.

FULLERTON, MOUNT, and DUNBAR, JJ., concur. HADLEY, C. J., and CROW, J., did not sit.

MAXWELL et al. v. HARPER et ux. (Supreme Court of Washington. Jan. 5, 1909.) 1. DEEDS (8 56*)—Validity-Delivery-Suf

committed under like circumstances by an- | while the same act committed by another in other may not be so. A business may be a different business may go unchallenged by classified by ordinance under the police pow- the city. If the respondent is guilty, those er of a state if the object of the legislation is aggrieved must resort to the general law of revenue, and all necessary and proper penal- the state for a remedy. Subdivision 5 of secties may be provided to insure its due en- tion 59 can have no application here. The forcement. But, if the object is regulation only question open under section 7 is whethmerely, such classification will not be tolerat-er, in the exercise of its authority, the city ed. In re Camp, 38 Wash. 393, 80 Pac. 547. has gone beyond the reasonable and constituWe deIt was frankly admitted in the argument of tional limit of police regulation. this case that section 7 was enacted for the cide that it has done so. purpose of regulating the business of employment agencies. When exercising its power to regulate a business, the municipality may classify subjects of legislation, but the law must treat alike all of a class to which it applies, and must bring within its classification all who are similarly situated or under the same condition. From the very nature of things, there can be no dissimilarity of condition or situation between the employment agent who indulges in a false pretense and any other person who resorts to deceit or fraudulent representations to accomplish a wayward purpose. "The classification must be based on some reason suggested by a difference in the situation and circumstances of the subjects treated, and no arbitrary distinction between different kinds or classes of business can be sustained, the conditions being otherwise similar." State ex rel. v. Ramsey, 48 Minn. 236, 51 N. W. 112, 31 Am. St. Rep. 650. Under the rule just quoted, those engaged in a business lawful and orderly in itself, although subject to license and regulation, cannot be made a class upon which a penal statute shall operate to the exclusion of others, for the crime defined is not peculiar to the business of employment agencies, but common to all, and, to be sustained, must include within its terms all who may be likewise guilty. It has been held that "an ordinance which would make the act done by one penal and impose no penalty for the same act done under like circumstances by another could not be sanctioned or sustained

because it would be unjust and unlawful."
Tugman v. Chicago, 78 Ill. 405; Chicago v.
Rumpff, 45 Ill. 90, 92 Am. Dec. 196; May v.
People, 1 Colo. App. 157, 27 Pac. 1010; Mc-
Quillan, Mun. Ord. 193. While the cases
cited were all upon a different state of facts,
in that they sought to exempt a class within
a class, yet the principle applies with un-
diminished force to the case at bar. This is
apparent when it is remembered that it is
the act with which the law is concerned,
rather than the business in which one may be
engaged when he commits it. It is the law
that stands at the bar of this court for judg-
ment; not the respondent. To sustain sec-
tion 7, it must be measured by the general
welfare clauses of the charter hereinbefore
quoted, and, when so graduated, it cannot
It makes the act of one en-
meet the test.
gaged in a particular business criminal,

FICIENCY.

The question of delivery or nondelivery of a deed is one that is governed by the grantor's intent as gathered from the terms of the deed itself, if it can be consistently done.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. § 118; Dec. Dig. § 56.*]

2. DEEDS (§ 90*) - CONSTRUCTION-GENERAL RULES-STRICT CONSTRUCTION.

A deed which admits of more than one construction must be construed most strongly against the grantor.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. § 235; Dec. Dig. § 90.*]

3. DEEDS (§ 100*) - CONSTRUCTION-GENERAL RULES-EXTRINSIC CIRCUMSTANCES.

If a deed upon its face appears to be uncertain or ambiguous, it may be construed in the light of the surrounding circumstances; evidence of such circumstances being admitted to aid the court in construing its language and ascertaining the grantor's intent.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. § 239; Dec. Dig. § 100.*]

4. DEEDS (§ 61*)-DELIVERY-DEPOSIT for De-
LIVERY ON GRANTOR'S DEATH.
A grantor's deposit of his deed with a third
party to be held by the depositary until the
grantor's death and then delivered to the gran-
tee, the grantor reserving no control over the
deed, constitutes a valid delivery.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. 88 140, 141; Dec. Dig. § 61.*]

5. DEEDS (§ 133*)-CONSTRUCTION AND OPERA

TION-GENERAL RULES-ESTATES CREATED.

A grantor's deposit of his deed with a third party, to be held by the depositary until the grantor's death, and then delivered to the grantee, the grantor reserving no control over the deed, constitutes a valid delivery; and the deed vests an immediate estate in the grantee subject to a life estate in the grantor. Dig. § 368; Dec. Dig. § 133.*]

[Ed. Note.-For other cases, see Deeds, Cent.

6. PRINCIPAL AND AGENT (§ 43*)-TERMINA TION BY DEATH.

An agency is terminated by the death of the principal.

[Ed. Note. For other cases, see Principal and Agent, Cent. Dig. § 67; Dec. Dig. § 43.*]

GENERAL Cain & Hurspool, for appellants. M. M. Godman and Will H. Fouts, for respondents.

From a careful examination of the evidence and the entire record, we are compelled to conclude that the trial judge erred in making the above findings, and in his conclusions of law thereon. The question of the delivery or nondelivery of a deed is one that must be governed by the intent of the grantor. Matson v. Johnson, 48 Wash. 256, 93 Pac. 324. Such intent must be gathered from the terms of the deed itself, if it can be consistently done. If the language used is susceptible of more than one construction, that one must be adopted which militates most strongly against the interests of the grantor. Devlin on Deeds, § 848. If the deed upon its face appears to be uncertain or ambiguous, it may then be construed in the light of all the surrounding circumstances; evidence of such circumstances being admitted not to change, modify, or add to the terms of the written instrument, but to aid the court in arriving at a correct interpretation of its language. and ascertaining the true intent of the grantor. 1 Elliott on Evidence, § 584; Carr v. Jones, 29 Wash. 78, 69 Pac. 646; Muir v. Westcott, 34 Wash. 463, 75 Pac. 1107; Citizens' Bank of Emporia v. Brigham, 61 Kan. 727, 60 Pac. 754; Brannan v. Mesick, 10 Cal. 95.

the appellant Laura Harper, who caused it | entirely abandoned on the trial, no evidence to be recorded. The evidence further shows: being introduced to support the same, and That at or about the time W. A. Maxwell ex- the controlling question now before us is ecuted the deed he also indorsed certain cer- whether the deed was void for want of detificates of mining stock and bank stock to livery. The trial court found that W. A. Laura Harper, and delivered them to McMas- Maxwell did not intend to vest in Laura Harters, the indorsement on the bank stock read- per a present interest or estate; that he did ing as follows: "For value received I here- not intend to, nor did he, part with dominion by sell and transfer unto Laura Harper six or control over the deed; and that he was shares of the capital stock represented by the the owner of the land at the time of his within certificate, and do hereby irrevocably death. constitute and appoint the cashier of said bank to deliver said stock to her upon my death; to transfer the said stock on the books of the within named corporation, with full power of substitution in the premises. Dated October 22nd, 1906." That afterwards the Columbia National Bank of Dayton took over and succeeded to the business of the Dayton National Bank, and it then became necessary to transfer the bank stock above mentioned. That thereupon Jackson, the cashier, conferred with Maxwell in regard to such transfer, and was directed by him to erase the name of Laura Harper and insert that of another assignee. That this was done, the stock being sold and the proceeds placed to the credit of Maxwell in his bank account. That on September 28, 1907, Maxwell executed a lease of the land for two years to one Simmerman, who was then his tenant. That in April, 1907, he mortgaged the land to Baker & Baker for $5,000, and used the proceeds of the loan, but the evidence fails to show that Baker & Baker had any knowledge or notice of the execution and delivery of the deed, or that the appellant Laura Harper knew of or consented to the execution of the mortgage. About September 1, 1907, after the sale of the bank stock and the execution of the mortgage, and while the A grantor's deposit of his deed with a deed remained in the bank, Maxwell had a third party, to be held by such third party conversation with Hardy E. Hamm, then his until the grantor's death, and then deliverattorney, now his executor, to which con- ed to the grantee therein named, the granversation Mr. Hamm testified, and in which tor reserving no dominion or control over Maxwell stated that, owing to the change in the deed during his lifetime, constitutes a the bank, he did not know whether the Co- valid delivery, and vests an immediate eslumbia National Bank had authority to hold tate in the grantee, subject to a life estate the deed, and then requested Mr. Hamm to in the grantor. Grilley v. Atkins, 72 Conn. investigate and attend to the matter so that 380, 62 Atl. 337, 4 L. R. A. (N. S.) 816, 112 the deed might be held, kept for, and deliv-Am. St. Rep. 152; Ball v. Foreman, 37 Ohio ered to Mrs. Harper upon his death. The St. 132; Owen v. Williams, 114 Ind. 179, 15 deed was never in the possession of Maxwell N. E. 678; Stout v. Rayl, 146 Ind. 379, 45 after the date of its original execution, nor N. E. 515; Meech v. Wilder, 130 Mich. 29, 89 was it out of the custody of the bank until N. W. 556; Ruiz v. Dow, 113 Cal. 490, 45 it was delivered to Mrs. Harper. Maxwell Pac. 867; Kirkwood v. Smith, 212 III, 395, died testate, and the plaintiffs Frank A. 72 N. E. 427; Wilson v. Carrico, 140 Ind. Maxwell and Richard E. Maxwell, Friend 533, 40 N. E. 50, 49 Am. St. Rep. 213. From Isaac Maxwell, and Mary A. Simmerman, his a careful examination of all the evidence, we brothers and sister, being his legatees, and conclude that such a delivery was made by Hardy E. Hamm as his executor, instituted W. A. Maxwell; that it was his intention this action to set aside the deed and quiet to place the deed beyond his dominion and their title. They alleged (1) fraud and undue control; that he did so by depositing it influence on the part of the appellants in pro- with the bank to be held until his death, and curing the execution of the deed; and (2) then delivered to the appellant Laura Harthat the deed was void for want of delivery. per; that he only retained the possession,

time; and that the appellant Laura Harper, upon such delivery to the bank, became immediately vested with the fee-simple title, subject only to Maxwell's life estate.

The evidence of Hardy Hamm, to which the respondents objected, was properly admitted, as the conversation to which he testified tended to show an intentional delivery by Maxwell, and was not such a confidential communication between attorney and client as to be privileged and inadmissible. Rosseau v. Bleau, 131 N. Y. 177, 30 N. E. 52, 27 Am. St. Rep. 578.

Assuming that the two cashiers, McMasters and Jackson, did in fact regard the deed as being in the custody of the bank subject to the dominion and control of W. A. Maxwell, and that they would have returned it to him had he so requested, such a mistaken view entertained by them as to their duty in the premises would not avoid the deed or its delivery. White v. Watts, 118 Iowa, 549, 92 N. W. 660. While it is true that Mr. Maxwell afterwards leased and mortgaged the land, we do not think he thereby depriv

from the entire instrument and the surrounding circumstances should control the use of technical terms. The trial court evidently considered that the use of the word "agent" The respondents, however, contend that rendered the deed somewhat ambiguous, and the deed itself indicates that Maxwell did therefore admitted evidence of all the cirnot intend it to pass from his dominion or cumstances surrounding its execution and decontrol during his lifetime; that, its lan- posit. To this evidence the respondents obguage being clear and certain, no parol evi- jected, and they now insist that it was indence showing the surrounding circumstances competent and should not be considered. We should have been admitted to add to, modi- think it was properly admitted to aid the fy or change its terms; that the evidence of court in arriving at a correct interpretation Hardy E. Hamm stating the conversation be- of the language used, and that it clearly tween himself and Maxwell was inadmissi- shows the intention to make a present deble, such conversation being a privileged com-livery such as would place the deed beyond munication between himself as attorney and the grantor's dominion and control, Maxwell as client; that McMasters and Jackson, the respective cashiers, both understood the bank was holding the deed as agent for Maxwell and subject to his control; that they would have returned it to him had he so requested; that Maxwell himself, by his subsequent acts in selling the bank stock and in leasing and mortgaging the land, evidenced the fact that it was not his intention to permit the possession of the deed or the title to the land to pass from him; and that the deed was absolutely void for want of delivery. The respondents' contention that the deed itself shows no intention to deliver during the lifetime of Maxwell is based upon the scrivener's use of the word "agent" in the clause above quoted. They insist that this word shows an intention on the part of the grantor to make the bank his agent; that it was not the agent of the grantee; that upon his death its agency ceased; and that, as it had then made no de-ed the appellant Laura Harper of her vested livery, none could be thereafter made. It is true that the word "agent" has a technical meaning, and that the relation of principal and agent is terminated by the death of the principal. It should be noted, however, that the grantor intended the deed to serve some lawful purpose, and did not understand himself to be performing an idle act in executing and depositing it with the bank. In construing the deed, elementary rules require us to adopt such an interpretation as will give it force, rather than one that will make it of no effect. Pennsylvania Mtg. & Inv. Co. v. Simms, 16 Wash. 243, 47 Pac. 441. In Jackson v. Myers, 3 Johns. (N. Y.) 388, 395, 3 Am. Dec. 504, Chancellor Kent said: "The intent, when apparent and not repugnant to any rule of law, will control technical terms; for the intent, and not the words, is the essence of every agreement. In the exposition of deeds, the construction must be upon the view and comparison of the whole instru- Our conclusion from the evidence is that ment, and with an endeavor to give every W. A. Maxwell intended to deliver the deed, part of it meaning and effect." Applying that it is not void for want of delivery, and this rule, we do not think we are compelled that the trial court erred in vacating and to so construe the use of the word "agent" setting it aside. The judgment is reversed as to hold that the bank was only the agent and the cause remanded, with instructions to of the grantor and that it could not deliver enter a decree in favor of the appellant, the deed to Mrs. Harper after his death. quieting her title to the land as against the

title. The vital question here is not what intention he may have afterwards formed, but what was his intention at the time the deed was executed and deposited with the bank. If his intention was such as to make the delivery complete and valid in the first instance, he had no right thereafter to change such intention, and withdraw the deed or mortgage the land without the consent of his grantee. Bury v. Young, 98 Cal. 446, 33 Pac. 338, 35 Am. St. Rep. 186; Kirkwood v. Smith, 212 Ill. 395, 72 N. E. 427; Albright v. Albright, 70 Wis. 528, 36 N. W. 254; Grilley v. Atkins, supra. The mortgagees will doubtless be protected in their lien if they acquired it without notice of the existence of the unrecorded deed, or of the title of the appellant Laura Harper, but that fact cannot affect her right to retain her title to the land as against the legatees and executor of Maxwell.