tion of the power of a public utility commission or other administrative body having similar functions-to compel a railroad company to grant privileges on its right of way has been passed upon. The Supreme Court of the United States in Missouri P. R. Co. v. Nebraska (1896) 164 U. S. 403, 41 L. ed. 489, 17 Sup. Ct. Rep. 130, has held that an order of a state board of transportation requiring a railroad company to grant to a shipper the privilege of erecting a grain elevator on its right of way was a taking of private property for a private use in violation of the 14th Amendment to the Constitution. The court said: "To require the railroad company to grant to the petitioners a location on its right of way, for the erection of an elevator for the specified purpose of storing from time to time the grain of the petitioners and of neighboring farmers, is to compel the railroad company, against its will, to transfer an estate, in part, of the land which it owns and holds under its charter, as its private property and for a public use, to an association of private individuals for the purpose of erecting and maintaining a building thereon for storing grain for their own benefit, without reserving any control of the use of such land, or of the building to be erected thereon, to the railroad company for the accommodation of its own business, or for the convenience of the public. This court, confining itself to what is necessary for the decision of the case before it, is unanimously of opinion that the order in question, so far as it required the rail road corporation to surrender a part of its land to the petitioners for the purpose of building and maintaining their elevator upon it, was, in essence and effect, a taking of private property of the railroad corporation, for the private use of the petitioners. The taking by a state of the private property of one person or corporation, without the owner's consent, for the private use of another, is not due process of law, and is a violation of the 14th article of Amendment of the Constitution of the United States." In Ferguson v. Illinois C. R. Co. (1926) — Iowa, —, A.L.R. 210 N. W. 604, it was held that an order of the board of railroad commissioners of Iowa requiring a railroad company to lease to an individual a site on its right of way for the purpose of erecting and maintaining a coal shed to be used for private gain, and fixing the rental therefor, would result, if carried out, in taking the private property of the railroad company for other than a public use, in violation of its constitutional rights, and was therefore invalid-citing Missouri P. R. Co. v. Nebraska (U. S.) supra. Under the decision of the Supreme Court in the Nebraska Case, which is followed in the reported case (ST. LOUIS-SAN FRANCISCO R. Co. v. STATE, ante, 106), the question under annotation would seem to be settled. On the general subject of discrimination by a carrier between shippers as to use of right of way or wharf, see annotation in 44 A.L.R. 1526 [Carriers, § 677]. P. U. G. IVA HART ESTEB, Exrx., etc., of H. L. Esteb, Deceased, Appt., V. MAY B. ESTEB, Respt. Washington Supreme Court (In Banc) - March 25, 1926. (138 Wash. 174, 244 Pac. 264.) Divorce, § 121 amount allowed for education of child. 1. Sixty dollars per month to be allowed for an eighteen-year-old daughter living in the home of her mother and attending college, after divorce (138 Wash, 174, 244 Pac. 264.) of the parents, is reasonable, where the financial situation of the father demonstrates that the payments can be met without difficulty. [See annotation on this question beginning on page 118.] 2. The duty of a father to provide for his minor child which is in another's custody is restricted to necessa ries. (See 9 R. C. L. 480. See also annotation in 32 A.L.R. 1466.] 808.] Infants, § 11 who determines what education a child shall have. 4. Although the law presumes that a father will provide for his child, of which he has custody, education in that vocation for which it is best fit Infants, § 11-duty to provide college ted, if the child has been placed in education. 3. The father may be required to provide his minor child with a college custody of the mother in a divorce proceeding, the mother should determine what education the child should have. (Parker, J., dissents in part.) APPEAL by defendant from a judgment of the Superior Court for Pierce County, (Card, J.) in plaintiff's favor in an action brought to modify a decree of divorce. Affirmed. The facts are stated in the opinion of the court. ant: A reasonable education in accordance with the station in life of the parties may be required, but in no case loes it extend to requiring the furnishing of a college education against the will of the parent, as that is not regarded as a necessary. Streitwolf v. Streitwolf, 58 N. J. Eq. 570, 45 L.R.A. 842, 43 Atl. 904; Ziesel V. Ziesel, 93 N. J. Eq. 153, 18 A.L.R. $96, 115 Atl. 435; Blandford v. Blandford, L. R. [1892] Prob. 148; 14 R. C. L. p. 258; International Text Book Co. v. Connelly, 206 N. Y. 188, 42 L.R.A. N.S.) 1115, 99 N. E. 722; International Text Book Co. v. Doran, 80 Conn. 307, 68 Atl. 255; Gayle v. Hayes, 79 Va. 542; Middlebury College v. Chandier, 16 Vt. 683, 42 Am. Dec. 537; Turner v. Gaither, 83 N. C. 357, 35 Am. Rep. 74; Bouchell v. Clary, 5 S. C. L. (3 Brev.) 194; Finch v. Finch, 22 Conn. 11; Nielson v. International Book Co. 106 Me. 104, 75 Atl. 330, 20 Ann. Cas. 591; Price v. Sanders, 60 ind. 310; Schouler, Dom. Rel. § 774; Hector v. Hector, 51 Wash. 434, 99 Pac. 13. Text While the statute gives the trial ourt authority to make provisions touching the minor children, it does not follow that, in the absence of incapacity or physical defects in such children, the father should be compelled to support his child until it becomes twenty-one years of age. Blandford v. Blandford, L. R. [1892] Prob. 148; Schouler, Dom. Rel. § 780; Plaster v. Plaster, 47 Ill. 290; Graham v. Graham, 38 Colo. 453, 8 L.R.A. (N.S.) 1270, 88 Pac. 852, 12 Ann. Cas. 137; Pretzinger v. Pretzinger, 45 Ohio St. 452, 4 Am. St. Rep. 542, 15 N. E. 471; Gibson v. Gibson, 18 Wash. 489, 40 L.R.A. 587, 51 Pac. 1041; State v. Langford, 90 Or. 251, 176 Pac. 197; Porter v. Powell, 79 Iowa, 151, 7 L.R.A. 176, 18 Am. St. Rep. 353, 44 N. W. 295; 9 R. C. L. 481; Hunt v. Monroe, 32 Utah, 428, 11 L.R.A. (N.S.) 249, 91 Pac. 269. Messrs. Hayden, Langhorne, & Metzger, for respondent: A court of equity always retains jurisdiction in divorce cases, where there are minor children and where the decree for alimony is for their benefit, to modify the original decree with reference to the amount awarded, so long as the minors are under the protection of the court. Ruge v. Ruge, 97 Wash. 55, L.R.A. 1917F, 721, 165 Pac. 1063; Harris v. Harris, 71 Wash. 307, 128 Pac. 673; 19 C. J. p. 358, § 819B; Connett v. Connett, 81 Neb. 777, 116 N. W. 658; Poland v. Poland, 63 Wash. 597, 116 Pac. 2. The father, after the marital relation has been dissolved, is compelled, where his ability is apparent, to contribute to the education of the children. Hilliard v. Anderson, 197 Ill. 549, 64 N. E. 326. The determination of the question whether the father shall pay for the expenses incident to the education of his child is, in the absence of any showing of an abuse of discretion on the part of the court, final and conclusive. p. 626. 20 R. C. L. Askren, J., delivered the opinion of the court: This is an action to modify a decree of divorce to provide for the support of a minor child. From an order modifying the decree, the husband has appealed. Since the hearing in this court the husband died and the executrix of his estate has been substituted as appellant. The facts follow: In 1915, respondent secured a divorce from the decedent. She was granted the custody of their two minor children, Esther and Carmelita, and provision was made for their support. Thereafter, under appropriate proceedings, the divorced wife was granted a certain amount of community property in settlement of the marriage relation. The older daughter, Esther, has since become of age. The younger, Carmelita, became eighteen years of age in July, 1925. The decree originally provided for a certain sum per month for her support until she reached the age of eighteen years, which was the legal age of majority at that time. In 1923, the legislature, by chapter 72, Laws of 1923, placed the age of majority for females at twenty-one years. In January, 1925, the respondent brought this action to modify the decree and to require the decedent to contribute to the support of Carmelita the sum of $60 per month. The record shows that the daughter Esther is employed as a stenographer earning approximately $110 per month; that she boards with her mother and pays $40 per month therefor. The mother has no finan cial means, and her health is such that she is unable to perform any labor other than ordinary household duties. The daughter Carmelita, in February, 1925, began to attend the College of Puget Sound, located in Tacoma, where she is majoring in English with the intention of becoming a teacher thereof, and the record shows that she is especially adapted for this sort of work. She attempted to take a typewriting course, but was advised by her teacher that she was too nervous to follow that line. In her desire to secure an education quickly, she went to summer school two years, and was enabled to finish the regular four-year course in two and onehalf years. The record shows, also, her special aptitude for the class of work she is taking, it appearing that owing to her excellent grades in Latin she was permitted by the Foreign Language Department of the Lincoln High School to take Greek as a freshman; this being, according to the testimony of one witness, the only instance of its kind in the history of the school. While attending the College of Puget Sound she resides at the home of respondent. Decedent, after his divorce, remarried twice; the first marriage lasting approximately ninety days, and the second taking place in February, 1923. He had living with him at the time of the trial his wife, and two of her sons by a former marriage, one being eleven and the other about eighteen, both of whom are attending school, the older being in high school. Decedent was employed as a pilot conductor by the Chicago, Milwaukee, & St. Paul Railway Company, in whose employ he had been almost continuously since 1900. Aside from severe nervous trouble which required him to be under restraint for a short period in 1912, and again in 1920, he had been continuously employed. Owing to his nervous condition, and to eye trouble, the position which he then occupied, which was described by one witness as a sort of "third (138 Wash. 174, 244 Pac. 264.) conductor on the train" was the only available work that he was capable of performing. During the During the past three years his wages averaged something over $3,000 per year. He lived in his own home on a piece of rented ground near Cedar Falls, and in a portion of the Seattle watershed district. He was, at the time of the hearing, fifty-two years of age. He had on hand securities the amount of which he placed at between $9,000 and $11,000, and which drew interest at from 4 per cent to 7 per cent, averaging, according to his testimony, approximately 5 per cent. The trial court, after hearing the evidence, concluded that Carmelita needed and required the education which she is receiving at the college, modified the previous decree, and placed the amount for her support at $60 per month until she became of age, twenty-one years. The court did not expressly provide that the money should be used to send her to college, but placed it upon the ground that it was necessary for her support. It is quite evident, however, from reading the court's oral decision, that it was intended and expected that this support money should be used for that purpose. Many questions are raised by appellant, but we think they may be combined under two assignments of error: (1) Was this provision of $60 per month, though nominally for the support of the minor daughter, in reality an additional award to the mother? At the trial of the cause there crept into the record some testimony regarding the previous troubles of decedent and respondent, especially with reference to the community funds which decedent had on hand at the time of the divorce, and which he had secreted. It is unnecessary here to detail the lawsuits which followed, including applications to the court for a division of the secreted funds after their whereabouts were ascertained. It is sufficient to say that the record discloses 47 A.L.R.-8. a situation which put decedent in an embarrassing position as to his action in regard to the amount due his divorced wife, although it may be admitted that legally the matter had been disposed of and that respondent was in no position, in this action, to urge decedent's previous delinquency. Appellant argues from this that, since Carmelita is living at home with her mother, the payment of this $60 per month for her support was really intended to punish decedent for his previous misconduct, by allowing respondent to receive the $60 for the purpose of maintaining her home. But while the court may have adverted in its oral opinion to the past conduct of decedent, and to the present financial and physical condition of respondent, we think a fair inference from its decision is that those things were taken into consideration solely for the purpose of determining the condition of respondent, and whether she was able, therefore, to assist her daughter in securing her education, and as to what amount would be required therefor. (2) The main and serious question in this case is this: Has the court the legal right to compel a divorced father to provide funds for a college education for his minor child whose custody has been given to the mother? Infants-ex tent of duty to provide for child. We have never been called upon to decide this precise question before. If the court has this legal right, it must be upon the ground that the same is necessary, for the duty of a father to provide for his minor child, when the custody be in another, is restricted to necessaries. From the earliest times the question of what is a necessary has frequently perplexed the courts. der practically all the authorities, those things are necessary which include shelter, food, clothing, and medical attendance, together with an education. As to what kind of food, clothing, shelter, etc., is necessary, has usually been left to a jury Un to decide, taking into consideration the minor's position in life, station in society, and the fortune of the child or its parents. As to the amount of education that should be considered necessary, courts have never laid down a hard and fast rule. The rule is stated in 14 R. C. L. p. 258, as follows: "Some kind of education has been included from early times within the class of necessaries for which an infant may contract. The early cases, however, seem to have confined this to elementary or vocational education, and even in the later cases a college, university or professional education has generally been excluded, though it has been judicially suggested that it might be allowed in a case where the infant's ability and prospects justified it." Probably the earliest reported case in this country involving the question as to whether a college education is a necessity is Middlebury College v. Chandler, 16 Vt. 683, 42 Am. Dec. 537, where a suit was brought to recover from the father tuition and other bills which represented a charge for his minor son as a student at the college. This case appears to be authority and is referred to by nearly all text-writers upon the question. The court there refused to hold that a college education was a necessary, but the court's reasoning for its holding is very interesting: "The practical meaning of the term [necessaries] has always been in some measure relative, having reference as well to what may be called the conventional necessities of others in the same walks of life with the infant as to his own pecuniary condition and other circumstances. Hence a good, common school education, at the least, is now fully recognized as one of the necessaries for an infant. Without it he would lack an acquisition which acquisition which would be common among his associates; he would suffer in his subsequent influence and usefulness in society, and would ever be liable to suffer in his transactions of busi ness. Such an education is, moreover, essential to the intelligent discharge of civil, political, and religious duties. "But it is obvious that the more extensive attainments in literature and science must be viewed in a light somewhat different. Though they tend greatly to elevate and adorn personal character, are a source of much private enjoyment, and may justly be expected to prove of public utility, yet in reference to men in general they are far from being necessary in a legal sense. The mass of of our citizens pass through life without them. I would not be understood as making any allusion to professional studies, or to the education and training which is requisite to the knowledge and practice of mechanic arts. These partake of the nature of apprenticeships, and stand on peculiar grounds of reason and policy. I speak only of the regular and full course of collegiate study, for such was the course upon which the defendant professedly entered. Now it does not appear that extraneous circumstances existed in the defendant's case, such as wealth, or station in society, or that he exhibited peculiar indications of genius or talent, which would suggest the fitness and expediency of a college education for him, more than for the generality of youth in the community." It will be noted that this decision was in 1844. This appears to be the only reported case where the court has held that a college education is not a necessary, although in Turner v. Gaither, 83 N. C. 357, 35 Am. Rep. 574, it was held that the incapacity imposed upon an infant extended to expenses incurred in acquiring a professional education, and especially as to money loaned for that purpose. It was also held in Streitwolf v. Streitwolf, 58 N. J. Eq. 570, 45 L.R.A. 842, 43 Atl. 904, where a boy nineteen years of age desired to become a lawyer, that the father could not be required to pay such expenses. However, the decision in that case was based primari |