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by him, and (2) a statute against false advertising should be general in its character, and cannot be sustained where it is confined to one particular business, to the exclusion of all others. Ware v. Ammon (1925) 212 Ky. 152, 278 S. W. 593.

Such statutory provision cannot be sustained, as to such person, as a police measure, but is unreasonable and void as applied to him and others similarly situated, because bearing no relation to public health, morals, safety, or welfare. Ibid. In this case, it was insisted that the provision in question was essential to the enforcement of the act, the validity of whose several other provisions was not disputed. As to this the court said: "It is true that, if all persons who advertise as dry cleaners and dyers pay the inspection fee, the fire marshal will have before him a list of those engaged in the business, and the task of inspection will be rendered less difficult. It must not be overlooked, however, that the act is confined to cities of the first and second class. Necessarily, the number of those engaged in the business is limited, and the very fact that they advertise will afford the fire marshal and his assistants a ready means of determining whether or not they are conducting their business in violation of the statute. In the light of these facts, it is at once apparent that the requirement in question is not reasonably appropriate or necessary for the enforcement of the act, and equally apparent that the exaction of an inspection fee of $25 merely for advertising one's business, coupled with the severe penalties that follow its nonpayment, is too burdensome a contribution to require of one whose business is not dangerous, in order that the act may be enforced as to others who come within its provisions." (In this case, it is to be noted, no other provision of the act, which is very comprehensive and elaborate, was attacked, and the provision in question only in so far as it applied to one who conducted no dry cleaning or dyeing establishment himself, but did the work through another to whom the clothing was transmitted, after

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wards receiving the clothing back for delivery to his customers. While the question was not discussed, the case may be taken as recognizing the business of dry cleaning and dyeing as proper subject for regulation under the police power, in the interest of public safety, etc., provided, of course, such regulation is not unduly oppressive.)

Provision of ordinance requiring that every building in which dry cleaning is carried on shall be detached at least 50 feet from any other building is unreasonable, as being, in effect, prohibitive against maintaining the business in the city. KLEVER SHAMPAY KARPET KLEANERS V. CHICAGO (reported herewith) ante, 103, affirming (1925) 238 Ill. App. 291, supra, in which the court declared the provision unconstitutional, as depriving the owner of property without due process of law and without compensation.

Under ordinance providing that no dry cleaning business shall be installed or maintained within the city except under permit of the city council, and that plans and specifications, giving full details as to location, construction, and operation thereof, must be filed with the city council, together with an application to conduct such business, and further providing that if the plans and specifications submitted comply with the rules of the ordinance, "then the city council shall approve them and issue the necessary permit," the issuance of a permit to applicant whose plans and specifications, filed in accordance with the requirements of the ordinance, comply with the rules of the ordinance, is not discretionary with the city council, but mandatory, especially where other sections of the ordinance (as those requiring the building to be of noncombustible material, regulating the height of the building, its distance from other buildings, the protection of the steam or hot water pipes, the location of vent openings and flues, the installation of machinery, the operation of the plant, etc., and other minute regulations calculated to prevent danger to surrounding buildings

and annoyance to their occupants; providing for a substantial penalty in case of violation of detailed statement or specifications or plans submitted and approved, together with correction thereof within a reasonable time; and further providing for the revocation of permits) amply protect the public. Colorado Springs v. Street (1927) Colo., 254 Pac. 440. Said the court: "The plaintiff contends that § 783 is mandatory, and that the council had no discretionary power to refuse to approve the plans and specifications and issue the permit. The defendants, on the other hand, contend that the word 'shall' in that section, should be construed as 'may,' and that the council had a right to refuse the permit, if in the opinion of the council, reasonably exercised, the conduct of the business in the proposed location would be detrimental to the public health, safety, and welfare. The defendants further contend that, because of the fact that the location of the proposed business adjoins a thickly populated residential district, the conduct of such business would be detrimental to the public health, safety, and welfare. . . The presumption is that the word 'shall,' in a statute or ordinance, is mandatory, but where it is necessary, in order to give effect to the legislative intent, to construe the word as 'may,' such construction is adopted. . . No such legislative intent appears in the present case. Section 783 provides that under the circumstances stated the city council shall issue the permit. Other sections amply protect the public."

Under above ordinance, issuance of permit, upon compliance with conditions stated, is mandatory upon city council, notwithstanding subsequent section of ordinance authorizing council, in its discretion, to grant a permit, without regard to the provisions or regulations of any other section of the ordinance, whenever in the opinion of the council such permit may be safely granted. Ibid. (The remainder of the opinion in this case is concerned with the right of applicant to recover, in mandamus proceeding, damages suffered by reason of the

city council's wrongful refusal to issue permit, including burden of proof, measure of damages, recovery of costs, etc.-all questions with which the present annotation is not concerned.)

In People ex rel. Wohl v. Leo (1919) 109 Misc. 448, 178 N. Y. Supp. 851, affirmed without opinion in (1922) 201 App. Div. 857, 192 N. Y. Supp. 945, it was held that a two-story structure planned and constructed throughout for a dyeing and cleaning establishment, but the second floor of which had been used as a dwelling by setting up partitions therein of a temporary character, may be used in its entirety -the second floor as well as the first, to which the business of dyeing and cleaning had been confined-for dyeing and cleaning purposes, under city zoning resolution permitting not only the continuance of any "use" existing in any building at the time of the passage of the resolution, but also the change or extension of such "use" to any part of the building, provided no structural alterations should be made in the building, etc. Said the court: "The meaning of the word 'use' is not confined to describing the act of using, but may also be employed to describe that property of a thing which renders it suitable for a purpose. It seems to me that it is in this latter meaning that the word 'use' is employed in § 6 of the resolution. The use of a building designed and constructed for business is for business, and its use for business exists, where the plan of the building is not structurally changed, although it may be actually occupied as a dwelling. such a case the building remains available for business, notwithstanding its temporary use for a purpose for which it was not designed. The plaster-board partitioning of the second floor of relator's building was temporary in its character, and it was constructed so as to admit of its easy removal. The inherent plan and structure of the second floor was not altered, and its availability for business remained. The floor could be readily rendered available for business purposes without structural changes in the building, by simply knocking down the light partitions." L. S. E.


(121 Kan. 520, 247 Pac. 433.)




Kansas Supreme Court - July 10, 1926.

(121 Kan. 520, 247 Pac. 433.)

Husband and wife, § 96 postnuptial agreement

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A postnuptial agreement, reciting that the husband and wife had both been married; that each had children by a former marriage, and that at the time of their marriage each held and possessed real estate and personal property not in any manner obtained from or through the other; that each had children from such former marriage living; and that, in consideration of the premises, promises, and covenants of each, it was agreed that, upon the death of either of them, the survivor should not be entitled to receive or claim any portion or interest in the separate property of the deceased owner at the time of the marriage, or acquired by either of them since their marriage to each other, was valid and binding on the surviving spouse.

[See annotation on this question beginning on page 116.]

Headnote by HOPKINS, J.

APPEAL by plaintiff from a judgment of the District Court for Ellis County (Ruppenthal, J.) in favor of defendants in an action brought to hold a postnuptial agreement invalid. Affirmed. The facts are stated in the opinion of the court. Messrs. David Ritchie and Omer D. Smith for appellant.

Messrs. J. E. Driscoll and Guy L. Hursh for appellees.

Hopkins, J., delivered the opinion of the court:

This controversy involves the validity of a postnuptial agreement. The husband died, and the wife sought to avoid its terms. The court held it valid, and plaintiff appeals.

The agreement recited that each of the parties had previously been married; that each had children by a former marriage, and that at the time of their marriage each held and possessed real estate and personal property not in any manner acquired or obtained from or through the other; that each had children from such former marriage living; and that, in consideration of the premises, promises, and covenants of each, it was agreed that upon the death of either of them the survivor should not be entitled

49 A.L.R.-8.

to receive or claim any portion or interest in the separate property of the deceased owner at the time of the marriage, or acquired by either of them since their marriage to each other.

The plaintiff contends that the contract is not a conveyance; that it did not divest her of her right of inheritance in her husband's property; that the statute concerning descents and distributions (Rev. Stat. § 22-108) gives to the wife one-half of all the real estate which may have been owned by her deceased husband during the marriage, and which has not been sold on execution or other judicial sale, and not necessary for the payment of debts, and of which the wife has made no conveyance; that the land involved had not been sold on execution or other judicial sale, and is not necessary for the payment of debts, so that under the plain mandate of the statute, one-half of this land, upon

the death of her husband, must vest in her, unless she had made a conveyance thereof. She argues that, under the statute, to which reference is made, the methods prescribed by which she could bar herself, or could be barred of the right to inherit the real estate of her deceased husband, is exclusive; that is to say, if the land had been sold on judicial sale, and is not necessary for the payment of debts, then and in that event the only manner in which the wife could deprive herself of this inheritable interest would be by conveyance. Various authorities are cited in support of her contention which are not controlling here. Other theories are

Husband and wife-postnuptial agreement -validity.

advanced to support the plaintiff's contentions which need not be discussed. This court has on other occasions had the same or similar question under consideration and decided adversely to the contention of the plaintiff.

In King v. Mollohan, 61 Kan. 683, 60 Pac. 731, it was said:

"Marriage settlements controlling the division and affecting the descent of property, freely and intelligently made, and which are just and equitable in their provisions, are not invalid."

In Eberhart v. Rath, 89 Kan. 329, 131 Pac. 604, Ann. Cas. 1915A, 268, it was said: "A widow residing and owning lands in this state married a man residing and owning property in Nebraska. As part of the marriage contract, it was orally agreed that he should receive nothing of her estate in case she died first, and that she should receive the sum of $1,000 only of his estate in case he died first. After the marriage in After the marriage in Kansas, the parties established their home in Nebraska, where they resided for 17 years, when she died, leaving children by a former marriage and a son by her last mar.riage. Soon after the marriage, the husband and wife entered into a written contract, in view of the oral agreement, and of the same

purport. In this action for partition, brought by the children of the former marriage, the surviving husband claims one-half of the land in this state owned by his wife at the time of the marriage and at her death. It is held that the written contract is valid and effectual, although it does not recite or refer to the previous oral agreement." Syllabus.

And in the opinion is this language: "There is no statute in this state that makes a postnuptial contract of this nature void. Apart from the previous agreement, it is true that the written instrument was not made upon consideration of marriage, for that had already occurred, but a reciprocal relinquishment by each in the property of the other is sufficient. Reciprocal agreements varying marital property rights are referred to as among the considerations for antenuptial agreements in Hafer v. Hafer, 33 Kan. 449, 460, 6 Pac. 537. Mr. Bishop says: 'For the principle is well settled that, though parties marrying must take the status of marriage as the law has established it, and cannot vary it by antenuptial contract, yet, within certain legal limits, and proceeding by legal rule, they may by such contract vary any or all of those property rights which the status superinduces.' 1 Bishop, Married Women, § 427. While these citations refer to antenuptial agreements, the principle applies to those made after marriage, unless the marriage disqualifies the parties from contracting with each other. The instrument would also have been valid had no prior agreement been made." Page 333.

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In Bradley v. Burgess, 109 Kan. 347, 198 Pac. 967, it was said: "A contract by an old and infirm couple, husband and wife, for the division of their property, in which they agreed to separate because they could no longer continue to live together in comfort by reason of their infirmities and circumstances, and in which it was agreed that the husband, who was ill, should go to the

(121 Kan. 520, 247 Pac. 433.)

home of a son by a former marriage, where he would receive proper attention, and the wife be relieved of the burden of attempting to look after him, is held under all the circumstances a valid contract, and not open to the objection that it violates public policy."

A similar question was considered in Marty v. Marty, 111 Kan. 120, 206 Pac. 324, where the court said: "An agreement was made between a husband and wife shortly after marriage in these words: "The undersigned, Jacob J. Marti and Caroline Marti, his wife, both of Grantfork, Madison Co., Illinois, hereby mutually agree that the property both real and personal owned at the present time by each of us, remain intact for the benefit of each one [one's] children. That neither party desires to disturb the property rights as existing at the present time.' Subsequently the husband made a will devising all of his property to his to his children. After his death, the widow claimed a share of the property, and elected to take under the statute of descents and distributions. Held, that under the agreement each party relinquished the right of inheritance in the property of the other."

In the contract under consideration there is no uncertainty. It specifically provides that upon the death of either of them the survivor shall not be entitled to receive or claim any portion of or interest in the separate property of the deceased owner at the time of the marriage or acquired since the marriage, but that all of such property shall go and belong to the children of the deceased by the prior marriage or persons who would have been entitled thereto if they had never been married to each other.

The contract was made March 21, 1914. The parties were married in 1908. The plaintiff contends that the word "since" made the contract applicable only down to the date of

the contract and not as to any subsequently acquired property. The defendants contend that the term was used in the sense of "after," and applied to all property acquired after the marriage. The word "since" is frequently construed to mean "after." In State v. Mathews, 68 W. Va. 89, 69 S. E. 644, it was said: "The word 'since' is not always limited in meaning to the time. between the present and a certain past event, or to a space of time between two certain past events; it sometimes reaches beyond the present, and ent, and embraces future time. When used as a preposition" it may mean "during or within the time. after; ever after, or at a time after; from and after the time, occurrence, or existence of.""

See also Jones v. First Nat. Bank, 79 Me. 191, 9 Atl. 22.

The facts and circumstances surrounding the execution of the contract disclose that the construction which the parties put upon the term "since" was that it meant "after," and that by the terms of their agreement they were directing the disposition of any property either of them might have at the time of death. At the time of the execution of the contract under consideration, the plaintiff executed an exhibit, attached thereto, agreeing and consenting that her husband could will

and devise more than half of his real and personal estate owned at the time of his demise. It appears that no will was made, but the exhibit signed by the plaintiff at the time of the execution of the contract in question is expressive of the intention of the parties. The contract in the instant case, in our opinion, shows that the parties used the word "since" in the sense of "after," and that it was their intention that any property of which either spouse died seized should go to the children of that party, as provided by the terms of the contract.

The judgment is affirmed.

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