favoritism or ignorance, or access to whom on account of their absence or other cause might be impossible. And the grant would in any case be made or withheld, not by the mayor and council, but by some one or more of the property owners. But it is urged that whether or not the proposed work or any like structure would be a nuisance in any particular neighborhood or district of the city would be dependent upon its immediate surroundings and the purposes for which property in the vicinity should be in use, and that it would be reasonable to permit the property owners to determine whether, or to what extent, they would submit to annoyances and to danger to their health and persons, that is, whether they would waive objection to a public nuisance for the sake of promoting or permitting an enterprise otherwise beneficial and desirable. This argument we think proves too much. The whole theory of police regulation is that people in their individual or private capacities 37 cannot be, and ought not to be, intrusted with the guardianship of their own health, safety and social well-being. Men, women or children are not permitted, even voluntarily, to expose themselves to needless perils, nor are property owners, merely because they are such, intrusted with the power to expose others to danger. It is clearly the duty of the mayor and the council to devise, and to prescribe by ordinance, general rules by which it may be determined, by inspection of a given district or neighborhood, whether it is one within which a proposed structure or business may lawfully be erected or maintained. Such rules are necessary, equally for the protection of those who are, or are contemplating becoming, inhabitants of a given locality, or are engaged in business therein, as for persons seeking to enter upon dangerous or annoying enterprises, and for women and children, lessees and employés, and other classes of the community, as for owners of real estate. Under the ordinance in question it, indeed, might well happen that the ultimate decision would be made by one residing at the antipodes, and not a citizen of the city or even of the nation. Whether or not it is competent for the mayor and council absolutely to prohibit the maintenance of gasworks within the city limits, it is not necessary and it is not intended now to decide; but what we do say is that they cannot shift their responsibility, either of prohibition or of regulation, upon any class or classes of the community, or, as it might happen, upon nonresidents, and it is this latter proposition that the argument of counsel controverts.

We are not without judicial precedent of the highest character for our conclusion, and it has been held not only that the governing body cannot commit the exercise of its legislative discretion to property owners or other private persons, but that it cannot intrust it to the caprice of any of the officers of the city, and even that it cannot reserve to itself, in its administrative rather than its legislative capacity, an absolute and despotic power to grant or refuse permits of the character in question, 38 in particular cases and in the absence of, or without reference to, prescribed and duly enacted rules and regulations. Thus, in Mayor and City Council of Baltimore v. Radecke, 49 Md. 217, 33 Am. Rep. 239, an ordinance which provided that no steam sawmill or machinery, or any steam engine for any purpose, should be erected in the city without first obtaining the consent of the mayor and council was for the reason stated void. And in City of Sioux Falls v. Kirby, 6 S. D. 62, 60 N. W. 156, 25 L. R. A. 621, an attempted delegation of power to a building inspector to grant or refuse permits to erect, alter or repair buildings accordingly as he should be "satisfied" that the proposed structure would or would not be in compliance with the requirements of a certain regulatory ordinance was held to be void, the court saying that "the right of a person to use and improve his property as he may deem proper, consistent with law, is a constitutional right, of which he cannot be deprived at the mere will and pleasure of a city council, or of any officer appointed by it." In Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. Rep. 1064, 30 L. ed. 220, an ordinance purporting to make unlawful the "carrying on a laundry within the corporate limits of the city and county of San Francisco without first having obtained the consent of the board of supervisors, except the same be located in a building constructed either of brick or stone," was held to be violative of the constitution of the United States and void. Mr. Justice Matthews, speaking for the court, in the opinion, said: "The very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself." And in City of St. Louis v. Russell, 116 Mo. 248, 22 S. W. 470, 20 L. R. A. 721, an ordinance providing that no livery-stable should be located in any block of ground in the city without the written consent of the owners of one-half the ground of said block was held to be void. In Ex parte Sing Lee, 96 Cal. 35, 31 Am. St.

39

Rep. 218, 31 Pac. 245, 24 L. R. A. 195, an ordinance providing that a license to carry on a laundry business in certain blocks should not be granted without the written permission. of the village board of trustees, and permission should not be given without the written consent of the owners of certain property, was held to be void, the court saying: "It is very clear to us that the right of an owner to use his property in the prosecution of a lawful business, and one that is recognized as necessary in all civilized communities, cannot be thus made to rest upon the caprice of a majority, or any number, of those owning property surrounding that which he desires to use. A great number of other decisions of like import might be cited, but we forbear. The city attorney cites and quotes at length from a single authority to the contrary effect, to wit: City of Chicago v. Stratton, 162 Ill. 494, 52 Am. St. Rep. 325, 44 N. E. 853, 35 L. R. A. 84, in which an ordinance is upheld that prohibits the maintenance of a livery-stable in any block in which two-thirds of the buildings are devoted exclusively to residence purposes without the written consent of the owners of a majority of the lots in such block. We are unable to reconcile this decision with principle or with other decisions by the same court, or with City of St. Louis v. Russell, 116 Mo. 248, 22 S. W. 470, 20 L. R. A. 721, which the opinion cites and approves. But the decision does not now call for careful criticism, because the distinction which it makes, whether valid or not, is fatal to the ordinance in controversy in this action. The latter is infected with the identical virus which the Illinois as well as the Missouri court found in the St. Louis ordinance, and it is immaterial whether the same or an equally fatal malady also afflicted the Chicago enactment.

We are of opinion that the ninety-seventh section of the Omaha ordinance, in so far as it requires the written consent of the property owners, is void, and recommend that the judgment of the district court be reversed.

40

Oldham and Epperson, CC., concur.

By the COURT. For the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be reversed and the cause remanded for further proceedings in accordance with this opinion.

Municipal Corporation has No Power to Make the Right of a Person to Follow His Business at any place he may select dependent upon the will of any number of citizens or property owners within its limits.

This doctrine has been applied in the case of a laundry business: Ex parte Sing Lee, 96 Cal. 354, 31 Am. St. Rep. 218; and also in the case of a slaughter-house: St. Louis v. Howard, 119 Mo. 41, 41 Am. St. Rep. 630. In Chicago v. Stratton, 162 Ill. 494, 53 Am. St. Rep. 325, however, it is held that an ordinance of a city, which has statutory power to regulate the location of livery-stables in its midst, making it unlawful to locate, build, or keep a livery-stable in any block in which two-thirds of the buildings are residences, unless the owners of a majority of the lots consent in writing, is not a delegation of legislative power to the property owners of such block, but is simply a prohibition against the location of such stables, which is avoided by the happening of the contingency provided for, to wit, the consent of a majority of the lot owners in the block: See to like effect, Spokane v. Camp, 50 Wash. 554, post, p. 913.

FIRST NATIONAL BANK v. PILGER.

[78 Neb. 168, 110 N. W. 704.]

REMAINDERMEN-Right to Maintain Action to Quiet Title.An action to quiet title may be maintained by a remainderman during the continuance of the particular estate. (p. 594.)

REMAINDERMEN-Right to Maintain Action to Quiet Title -Limitations of Actions.--In an action to quiet title, by a remainderman during the continuance of the particular estate, the statute of limitations commences to run at the time the adverse claim arises and attaches. (p. 594.)

R. J. Nightingale, for the appellant.

J. C. Broady, Giddings & Winegar and T. S. Nightingale, for the appellee.

169 JACKSON, C. On July 17, 1889, Abel Gates died intestate in Sherman county, leaving a widow, Jane A. Gates, and five children, four of whom were adults. The widow and five children were his sole heirs. At the time of his death he owned and occupied with his wife, as a family homestead, one hundred and sixty acres of land. On February 8, 1890, letters of administration were issued by the county court of Sherman county for the purpose of administering the estate of the deceased, and on that day the county judge commissioned the county treasurer, county clerk, and another freeholder of the county to appraise the homestead. On the 14th of the same month the appraisers reported, finding the value of the homestead to be nine hundred dollars. The encumbrance consisted of a mortgage to the Lombard Investment Company of six hundred dollars. Jane A. Gates, the widow, on the day the report was made, filed a written acceptance of

the homestead, subject to the encumbrance. The estate appears to have been administered on the theory that the widow took absolute title to the homestead under the provisions of chapter 57, Laws of 1889. On September 5, 1891, the widow conveyed the premises by warranty deed to M. D. Green, and through mesne conveyances by warranty deed the title finally vested in John Horn on May 15, 1894, who gave a purchase price mortgage to his grantor. The conveyances were all recorded at about the date of their execution. The Lombard Investment Company mortgage was paid and released as a result of the transaction with Horn. On October 30, 1899, Horn and wife conveyed the premises by warranty deed to Theodore L. Pilger and John 170 Kahl, subject to the Horn mortgage, which had been assigned to the plaintiff herein. On April 16, 1902, the Horn mortgage being unpaid, plaintiff proceeded in the district court to foreclose the same, and such proceedings were had as resulted in a decree and sale of the premises to the plaintiff under the decree, confirmation of the sale, and the execution and delivery of a sheriff's deed. Thereafter Augusta E. Pilger, wife of Theodore L. Pilger, procured from each of the five children of Abel Gates, all of whom were then of age, quitclaim deeds, paying each the sum of ten dollars as a consideration for the conveyance. These deeds were placed of record, and thereupon, on January 3, 1905, the plaintiff, being in possession, commenced this action in the district court to quiet its title as against these conveyances. The defendant filed a cross-bill asking similar relief. In the trial court the finding was for the plaintiff as to an undivided four-fifths interest in the land, and for the defendant as to the remainder; the finding being that the plaintiff had acquired title to four-fifths interest by adverse possession; that by reason of the fact that one of the heirs of Abel Gates was a minor the statute had not run as against his share, and the title to the four-fifths interest was quieted in the plaintiff, and the remainder in the defendant, Augusta Pilger. The defendant appeals.

The questions presented by the appeal are the rights of the plaintiff under the provisions of chapter 57, Laws of 1889, as affected by the legalizing act found in chapter 32, Laws of 1895; and, second, whether the statute of limitations has run against the cross-bill of the defendant. Jane A. Gates, the widow, died only a few months prior to the commencement of the foreclosure proceedings under which the plaintiff acquired title to the land, and the appellee, claiming title. through the remaindermen, the children of Abel Gates, insists Am. St. Rep., Vol. 126-38