1. In an action for tort, where the alleged wrongful act does not in itself imply malice, the plaintiff must, if he intends to claim exemplary damages, allege in his complaint facts entitling him thereto.

2. Neither the complaint nor the evidence in this action made a case for exemplary damages.

(Syllabus by the Court.)

Appeal from district court, Polk county; William Watts, Judge.

Action by Charles T. Vine against Charles Casmey and others. Verdict for plaintiff, and from an order denying a new trial defendant Casmey appeals. Reversed.

L. E. Gossman, for appellant. Holston & Hagen, for respondent.

START, C. J. The complaint herein, so far as here material, is in these words: "The plaintiff, for cause of action, alleges: That on the 15th day of October, 1900, he was the owner and in the lawful possession of sixty tons of hay on section thirty-four in the town of Belgium, Polk county, Minne sota, of the value of six hundred dollars; that on said day the defendants herein unlawfully and wrongfully took, carried away, and converted to their own use the said hay, whereby plaintiff was damaged in the sum of six hundred dollars; wherefore plaintiff demands judgment against the defendant for the sum of six hundred dollars, with interest." The separate answer of the defendant Charles J. Casmey denied the allegations of the complaint, except that it admitted that the defendant took and carried away, at the time alleged, from section 34, five tons of hay, of the value of $5 per ton, and affirmatively alleged that he was then the owner, and entitled to the possession, thereof. The defendant Jennie Casmey also interposed a separate answer; but, as the action was afterwards dismissed as to her, its allegations are not here material. On the trial, the plaintiff offered evidence tending to establish the fact that he was the owner of the hay, and that the defendant converted it to his own use. The defendant attempted to show that he was the owner of the hay in question by purchase from the agent of a certain land company; but his evidence was stricken from the record, for the reason that there was no evidence given or offered to show that the land company owned either the hay or the land upon which it grew. The record at the close of the evidence contains no suggestion that the plaintiff did or would claim exemplary damages. The trial court, however, instructed the jury that the plaintiff, in case he had established his ownership to the hay taken away by the defendant, was entitled to recover the value thereof, and added: "And if you find that the taking and

conversion by defendant was willful and malicious on the part of the defendant, you may, in assessing damages, give, in addition, punitive damages for the purpose of preventing the defendant and others from doing such things." The defendant excepted to the portion of the charge which we have italicized. The jury returned a verdict for the plaintiff for the sum of $230, and the defendant appealed from an order denying his motion for a new trial.

The decisive question on this appeal is this: Did the trial court err in submitting to the jury the question of exemplary damages? It is the contention of the defendant that it did, for the reason that neither the complaint nor the evidence warranted the instruction. This presents the question whether, in an action for tort, when the alleged wrongful act does not in itself imply malice, the plaintiff must, if he intends to claim exemplary damages, allege in his complaint facts entitling him to such damages. The question has never been directly passed upon by this court, but in Carli v. Transfer Co., 32 Minn. 101, 20 N. W. 89, it was impliedly assumed that in such actions the complaint must allege that the acts of the defendant were wanton, or willful, or malicious, if exemplary damages were claimed. The mere fact that a party has committed a wrongful and unlawful act affecting the person or property of another does not justify the imposition of exemplary damages in an action to redress the wrong. To justify such damages the tort must have been committed wantonly or maliciously, or with such insult, cruelty, oppression, or gross negligence, or such other aggravating circumstances, as to establish malice in fact. Seeman v. Feeney, 19 Minn. 79 (Gil. 54); Carli v. Transfer Co., 32 Minn. 101, 20 N. W. 89; Hoffman v. Railroad Co., 45 Minn. 53, 47 N. W. 312. This being the basis for the recovery of exemplary damages, it would seem that, in an action where the alleged wrongful act does not in itself imply malice, the plaintiff ought, in fairness, if he seeks to recover more than actual damages, to advise the defendant of his purpose, by alleging in his complaint a case justifying the punishment of the defendant by an award of exemplary damages. It is not necessary in such cases for the plaintiff in his complaint to specifically claim exemplary damages, nor to plead the evidence necessary to establish such a claim, but we do hold that he must allege, as an ultimate fact, the intent or purpose of the defendant in doing the alleged wrongful act; that is, that it was wantonly or maliciously done, or with the purpose of oppressing or insulting the plaintiff, or that the defendant was wantonly negligent. Tested by this rule, it is too obvious to admit of any extended discussion that the complaint in this action does not make a case entitling the plaintiff to exemplary damages. It simply alleges that the defendant's act was wrong

ful and unlawful, but this is not the equivalent of an allegation that the act was wantonly and maliciously done. If the property converted by the defendant belonged to the plaintiff, the former's act was unlawful, and, of course, wrongful, although he may have had good reason to believe, and did honestly believe, that it was his own, and that he was justified in taking it away. Again, the complaint alleges the actual value of the property converted to be $600, which is the exact amount of his alleged damages. The plaintiff, however, claims that the question of exemplary damages was litigated by consent of the parties, and that the evidence clearly made a case for exemplary damages. The record does not justify this claim. It follows that the trial court erred in submitting to the jury the question of punitive damages.

Order reversed, and new trial granted.

HENDRI v. SABIN. (Supreme Court of Minnesota. May 2, 1902.) GUARDIAN-ACCOUNTING.

The evidence sustains the findings and conclusions of law of the trial court herein as to the guardian's account.

(Syllabus by the Court.)

Appeal from district court, Washington county; W. C. Williston, Judge.

Action by Flora Hendri, minor, against D. M. Sabin, guardian, for an accounting. From an order denying a new trial, defendant appeals. Affirmed.

Davis, Kellogg & Severance, for appellant. J. N. Searles, for respondent.

START, C. J. The appellant, D. M. Sabin, on May 18, 1876, was appointed by the probate court of the county of Washington guardian of the respondent, Flora Hendri, then a minor. On May 23, 1877, that court made its order settling the guardian's account for the previous year, whereby it was adjudged that certain real estate, which was described in the order, and also money and notes amounting to the sum of $4,709.18, then in the hands of the guardian, be assigned to the ward, subject to the right of dower of the ward's mother in and to the real and personal property described in the order. On June 12, 1877, the court made a further order in the matter of such guardianship directing the guardian to pay to the mother annually $157, as dower, and $200 annually for the support of the ward, such payments to be made from the interest realized from the $4,709.18, so in the hands of the guardian. The ward became of age June 22, 1889. In June, 1900, she instituted proceedings in the probate court for an accounting by her

former guardian, and that court, April 6, 1901, made its order, whereby it was adjudged that her guardian was indebted to her in the sum of $5,200. The guardian appealed from that order to the district court. The trial of the matter in the district court resulted in findings of fact and conclusions of law to the effect that the guardian was indebted to his ward in the sum of $4,497.88, and from an order denying his motion for a new trial he appeals to this court.

The

The first three assignments of error raise the question that the trial court erred in disallowing three credit items in the guardian's account of $400 and $100 and $50, respectively. We have examined the evidence as to these items, and find that it is insufficient to warrant the allowance of any of them. The most that can be claimed for the evidence is that the payments were made, after the ward became of age, to the stepfather of the ward; but, taking the most favorable and equitable view of it permissible for the appellant, it does not justify the conclusion that they were made or used for the benefit of the ward, or directly or indirectly authorized or ratified by her. only other assignment of error meriting consideration is that the court erred in holding the appellant accountable to his ward for the total sum which came to his hands, without making any allowance for the dower interest of her mother therein; that the court should have ascertained the value of the mother's interest therein, and deducted it from such total sum, and charged to the guardian only the balance. The effect of the orders of the probate court of May 23 and June 12, 1877, was to assign to the ward the whole fund, charged with a life annuity of $157, payable to her mother. The guardian held this entire fund for the ward until she became of age, and for her it was his duty to pay the $157 each year to her mother until his ward reached her majority; then to promptly settle his account, and turn over the balance of the fund to her. It was only as her guardian and as her representative that he received and held the fund, and only in such representative capacity was he chargeable with the payment of the annuity. He was credited in his account with all payments made to her mother pursuant to the order. His authority to longer hold the fund having been terminated, he is bound to turn it over, with the net accumulations, to his principal, his former ward. When she receives the fund, she will hold it subject to all the rights and equities of her mother therein, which are to be enforced and conserved by the mother, and not by him. The court did not err in not crediting the guardian with the interest of the mother in the fund.

Order affirmed.

STATE ex rel. NICHOLS et al. v. KIEWELL et al.

(Supreme Court of Minnesota. May 2, 1902.) MUNICIPALITIES-NEW CHARTER-SUBMISSION-CONSTITUTIONAL LAW.

Section 4, c. 351, Laws 1899, as amended by Laws 1901, c. 323, providing for the submission of a proposed new charter of a municipality to the voters thereof for ratification at a general or special election, is constitutional.

(Syllabus by the Court.)

Quo warranto by the state, on the relation of J. A. Nichols and others, against George H. Kiewell and others. Writ quashed.

W. B. Douglas, Atty. Gen., and F. A. Lindbergh, for relators. E. F. Shaw and Lindbergh & Blanchard, for respondents.

START, C. J. This is a proceeding in the nature of quo warranto, on the relation of the attorney general, to oust the respective respondents from the exercise of certain claimed corporate franchises under the provisions of an alleged new charter of the city of Little Falls. The admitted facts are these: The city of Little Falls was, and still is, incorporated by virtue of Sp. Laws 1889, c. 8, unless proceedings taken under the provisions of Laws 1899, c. 351, as amended by Laws 1901, c. 323, to frame and adopt such new charter, are valid. In November, 1901, the judges of the judicial district in which the city is situated, upon a proper petition, duly appointed a board of 15 freeholders to adopt a proposed charter for the city. The board duly discharged that duty, and returned such charter to the mayor of the city. Thereupon a special election was called, and the charter was submitted to, and ratified by, the qualified voters of the city, by the required majority. It is by virtue of this new charter that the respondents are exercising the franchise in question. It is the contention of the relator that this charter was never legally ratified, because so much of chapter 351, Laws 1899, as provides for the submission of the charter to the voters at a special election to be called for that purpose as therein provided, is unconstitutional. This is the sole question in this case. Section 36 of article 4 of the state constitution, known as the "Home Rule Amendment," authorizes any city or village of this state to frame a charter for its own government, which shall be submitted to the qualified voters of such municipality "at the next election thereafter"; that is, after it is returned by the board appointed to draft it to the chief magistrate of the municipality. The contention of the relator is that the words of the constitution which we have italicized mean the next regular municipal

election, and that the words cannot be given any broader construction, so as to include special elections appointed, as provided by statute, for the purpose of voting upon a proposed charter. This constitutional amendment requires the legislature to provide the necessary machinery for carrying its provisions into effect. It is not self-executing. In the discharge of this duty, Laws 1899, c. 351, was enacted; and by section 4 thereof, as amended, the legislature provided that such proposed charters might be submitted at either a general or special election. This was necessarily a legislative construction of the words of the constitution, "at the next election," and it appears from the records in the office of the secretary of state that 11 municipalities of the state have ratified new charters, or amendments to existing ones, at special elections. If it were absolutely clear that this legislative construction and municipal action were wrong, for the reason that the constitution requires all proposed charters to be submitted for ratification by the voters at the next regular municipal election after the return thereof to the chief magistrate of the municipality, it would be our duty to so declare, no matter what the results to public and private interests might be. But such interests do demand that we proceed with great caution, and sustain the statute unless completely satisfied that it violates the constitution. The question is not free from doubt, but we are of the opinion that the constitutional mandate in question was intended, not to limit the power of the legislature to regulate the manner of submitting the charter, but to speed its submission; hence the provision that it must be submitted at the first election held after it is returned to such chief magistrate. If it had been the intention of the framers of this constitutional amendment to forbid the submission of a proposed charter at a special election, it is reasonable to assume that the intention would have been clearly expressed by using the words "at the next general municipal election thereafter," or some similar phrase. It is a significant fact in this connection that the provision of the constitution relating to the submission to the electors of the state of a proposition for a constitutional convention expressly provides that it must be submitted at the next election for members of the legislature, and that, as to all other propositions which may be submitted to the electors, there is no constitutional requirement that they must be submitted at a general election. Const. art. 4, § 32a; Id. art. 14, §§ 1, 2. Our conclusion is that Laws 1899, c. 351, § 4, as amended by Laws 1901, c. 323, is constitutional, and that the charter here in question was legally ratified. Writ quashed.

STATE V. JOHNSON. (Supreme Court of Minnesota. May 2, 1902.) INTOXICATING LIQUORS-LICENSE-CONSTITUTIONAL LAW-EVIDENCE-INDICTMENT.

The defendant was convicted of the offense of selling intoxicating liquors in a village, after the people thereof had voted against issuance of license for such sales, contrary to Held, the provisions of Laws 1895, c. 259. the statute is not void as unauthorized class legislation, and is constitutional, the indictment states facts constituting a public offense, the evidence sustains the judgment, and the trial court did not err in its instructions to the jury.

(Syllabus by the Court.)

Appeal from district court, Mower county;

Nathan Kingsley, Judge.

Chris. Johnson was convicted of selling liquor illegally, and appeals. Affirmed.

START, C. J. The defendant was convicted in the district court of the county of Mower of the offense of selling intoxicating liquors in a village after the people thereof had voted against the issuance of license for such sales. He appealed from the judgment to this court. The defendant's assignments of error raise four general questions. They are: (a) Is the statute upon which the indictment is based constitutional? (b) Does the indictment state facts constituting a public offense? (c) Is the judgment sustained by the evidence? (d) Did the trial court err in its instructions to the jury?

1. The defendant urges that the statute (Laws 1895, c. 259) is unconstitutional, because it is arbitrary class legislation. Its here material provisions are these: "Whenever the people of any village or municipal township shall have voted against the issuance of license for the sale of intoxicating liquors therein, it shall thereafter be unlawful for any person or corporation to sell, barter or give away the same therein at retail or wholesale in any quantity whatever; provided that nothing in this act shall be construed to prevent or forbid any manufacturer of intoxicating liquor in any village or township from selling his product to be consumed outside of said village or township." The purpose of this statute is manifest. It is to prevent the sale of intoxicating liquors in any quantity or in any form in towns and villages voting against the issuance of license for the sale of such liquors. Prior to the enactment of this statute such liquors could be lawfully sold in such towns and villages in quantities of not less than five gallons, although the people thereof had voted against license. State v. Schroeder, 43 Minn. 231, 45 N. W. 149; Id., 45 Minn. 44, 47 N. W. 308. This permitted manufacturers of beer and other intoxicating liquors and wholesale dealers therein to es90 N.W.-11

tablish warehouses in municipalities voting no license, and legally sell such liquors at wholesale therein. Now, when the statute here in question is read and construed with reference to the law when it was adopted, it is manifest that its purpose was to give absolute effect, as far as possible, to local option, by forbidding all sales of intoxicating liquors, without reference to the quantity thereof, in all villages and townships voting no license. But to prevent a practical confiscation of brewing plants or other plants for the manufacturing of intoxicating liquors located in the prohibition districts, the proviso was added to the statute which, in

legal effect, permits any manufacturer of in

toxicating liquor within any such village or township to sell therein the product of his plant to be consumed outside of such village or township. It is the contention of the defendant that this privilege to the local manufacturer, which is denied to all manufacturers not having their plants in the prohibition district, is an unjust and arbitrary classification, because it gives the right to sell intoxicating liquors to one class, and forbids such right to others equally entitled thereto. This claim rests upon a misconception of the proviso, which was not intended to arbitrarily grant rights and special privileges to a favored class. On the contrary, its purpose was to place all manufacturers of intoxicating liquors on a basis of equality, for without the proviso the market outside of the prohibition district would be open to all manufacturers whose plants were not therein, but would be closed to the local manufacturers having their plants within the district. The statute, including the proviso, prohibits all manufacturers from selling for consumption within the district,-all are on an equality in this respect,-and permits the local manufacturer to sell at his plant for consumption in the outside market on the same terms enjoyed by other manufacturers. The placing of local manufacturers in a class by themselves as to sales within the prohibited district for consumption outside thereof, in order to give them access to such markets, and place them on an equality in this respect with all other manufacturers, was justified by substantial differences in the situation and necessities of such local manufacturers and the plainest principles of justice. Nichols v. Walter, 37 Minn. 264, 33 N. W. 800; State v. Cooley, 56 Minn. 540, 58 N. W. 150. The case of State v. Wagener, 69 Minn. 206, 72 N. W. 67, 38 L. R. A. 677, 65 Am. St. Rep. 565, relied upon by defendant, is not here in point. In that case the validity of Laws 1897, c. 107, relating to peddlers, which allowed the manufacturer of goods or his servant to peddle without a license the wares of his own manufacture, but exacted such license from other peddlers, was involved. It was held that such classification was invalid. The reason for this conclusion was tersely expressed in the opinion by Mr. Justice Can

ty in these words: "For the purpose of a law to prevent peddling from becoming a nuisance, we cannot, on any proper basis of classification, distinguish between the peddling of goods by the manufacturer and his servant, and the peddling of the same goods by the purchaser from the manufacturer." The distinction between that case and this is obvious. It is further urged that the statute here in question is limited in its operation to villages and townships of the state voting no license, and that it is also unconstitutional for this reason. If it be conceded that cities are excluded from the purview of the statute, the classification is nevertheless a valid one. It is the same classification which is the basis of the general laws, which only confer upon the people of the villages and municipal townships of the state the right to local option as to the liquor traffic. Gen. St. 1894, §§ 1266, 1990. The same right is conferred upon a few of the cities of the state by their special charters. This classification as to such local option has never been questioned in this state, and it is undoubtedly within the power of the legislature to do so in the exercise of the police power of the state as to the sale of intoxicating liquors. It was just as competent for the legislature to absolutely prohibit the sale of intoxicating liquors, whether at wholesale or retail, in villages and townships voting no license, without extending such prohibition to cities voting no license, as it was to give to such villages and townships the exclusive right of local option, or to establish prohibition in one part of a city and provide for license in the balance of its territory. We hold the statute here in question constitutional.

2. The indictment alleged in apt terms that the people of the village of Lyle, in the county of Mower, duly voted against the issuance of license for the sale of intoxicating liquors therein; that the defendant thereafter did within such village unlawfully sell to G. W. Ritter intoxicating liquor, to wit, 24 quarts of beer, he not then being a manufacturer of intoxicating liquor within such village. The defendant's objection to the indictment is that it fails to allege that the beer was sold for consumption within the village. The objection is without merit, for the defendant was not a manufacturer of intoxicating liquors within the village; hence he had no right to sell therein such liquors, whether they were to be consumed in or outside of the village.

3. The evidence on the trial showed that on the day named in the indictment the defendant, at the village of Lyle, received a written order from G. W. Ritter of West Mitchell, in the state of Iowa, for one case of beer, and with the order a money order for the purchase price therefor. The defendant accepted the order, and on the same day took from a warehouse in his charge within the village of Lyle a case of beer, and deliv

ered it to an express company in such village for shipment to G. W. Ritter at West Mitchell, Iowa. This was sufficient evidence of

an unlawful sale within the village. Bollinger v. Wilson, 76 Minn. 262, 79 N. W. 109, 77 Am. St. Rep. 646. The interstate commerce clause of the federal constitution has no application to such a sale. In re Rahrer, 140 U. S. 545, 11 Sup. Ct. 865, 35 L. Ed. 572. The judgment is sustained by the evidence.

4. The trial court in effect instructed the jury that if they found that the defendant received a written order for the beer at the village of Lyle, accompanied with a money order for the price thereof, and sent the beer. pursuant to the order, to the party in Iowa sending the order, this would constitute a sale at Lyle, this state, in violation of the statute, and the defendant would be guilty of the charge contained in the indictment. The giving of this instruction is assigned as error because it was an invasion of the province of the jury as the sole judges as to the facts. It is not open to this criticism, for it correctly stated the law of the case, and left the jury to determine the facts. But, were it otherwise, the instruction would not have been prejudicial, for there was no substantial dispute as to the facts, and the question whether there was a sale in the village of Lyle was one of law.

We find no substantial or prejudicial error in the record. Judgment affirmed.

In re McKUNE'S WILL. WIESMANN v. DANIELS. (Supreme Court of Wisconsin. April 22, 1902.)

ESTATES-ADMINISTRATION-APPLICATIONCREDITORS-PARTIES-INTEREST.

1. Where an attorney performed services for an administrator who has been discharged without payment for such services, such attorney's claim for compensation is against such administrator personally; and he cannot apply for an administrator de bonis non to pay such claim and other claims, under Rev. St. 1898, §§ 3807, 3808, providing that creditors of an estate may apply for administration thereof.

2. Where an application for the appointment of an administrator of an estate shows that a certain person is in possession, under circumstances indicating a claim of right, of certain of the property, which is sought to be sold to pay debts, such person has such an interest in the matter as entitles him to appear and oppose the application.

Appeal from circuit court, Kenosha county; Frank M. Fish, Judge.

Application by Henry Wiesmann for the issuance of letters of administration de bonis non of the estate of Cornelius McKune, deceased. From an order sustaining the demurrer of Jacob Daniels, and judgment dismissing the petition, the petitioner appeals. Affirmed.

On April 10, 1901, Henry Wiesmann filed in the county court of Kenosha county, Wis., a verified petition praying for the issuance of letters of administration de bonis non, with