(316 Ill. 519, 147 N. E. 384.) to pass the ordinance on clause 66, the so-called "police power" clause; clause 75, the "nuisance clause;" and clause 78, the "health clause." These clauses, respectively, authorize appellant to regulate the police of the city and pass and enforce all necessary police ordinances; to declare what shall be a nuisance, and to abate the same; and to impose fines upon parties who may create, continue, or suffer nuisances to exist, and to do all acts and make all regulations which may be necessary or expedient for the promotion of health or the suppression of diseases. In Chicago v. M. & M. Hotel Co. supra, this court held that the general language of clause 66, to pass and enforce all necessary police ordinances, means that this power can only be exercised in reference to such subjects and occupations as are enumerated in the other specific clauses of § 1. It License-munic ipal corporations is clear that clause -power to li- furnishes no authority for the pas cense factories. sage of this ordinance, and it is equally clear that the other two clauses-the nuisance clause and the health clause-confer no such authority, and that there is no single clause, or any number of clauses combined, in § 1, that confers such authority on appellant. As suggested by the appellees, the terms "factory" and "workshop," as defined in this ordinance, would apply to the works of the Illinois Steel Company and of the International Harvester Company, and at the same time would apply to a shop for the repair of umbrellas, to a shop of a cobbler who resoles or patches shoes, to a carpenter shop, to a tailor shop, to a workroom of a milliner, and to other such shops or places where articles are repaired or made. Certainly no one would contend that all of the shops above enumerated, as well as many others that might be named, are nuisances per se. If the city has the power to pass this ordinance for the regulation of workshops and factories on the grounds presented in its argu38 A.L.R.-97. ments, there is not a single business in Chicago that could not be regulated, without reference to the fact whether or not it contituted a factory or workshop as defined in this ordinance. Section 1392 of the ordinance provides that, upon the receipt of an application from any person, firm, association, or corporation managing, conducting, operating, or carrying on a factory or workshop, or desiring so to do, the commissioner of health shall cause an investigation to be made of the premises named, for the purpose of determining the fitness and feasibility of such factory or workshop for the conduct and operation of the industry there to be conducted, from a sanitary standpoint, and to ascertain whether the applicant has complied with the state laws and the city ordinances regulating health, safety, and sanitation, so as to properly safeguard the lives and health of the employees engaged therein. It further provides that, upon the completion of such investigation, the commissioner of health shall transmit to the mayor such application, with his recommedation for or against the issuance of a license. If the mayor shall be satisfied that the applicant has complied with the state laws and city ordinances regulating health, safety, and sanitation, and that the place where it is proposed to operate such factory or workshop is fit and suitable for such purpose, he shall, upon payment of the license fee, issue or cause to be issued to the applicant a license to manage, conduct, operate, or carry on a factory or workshop in the premises. The city by this ordinance has arbitrarily assumed powers and duties without the authority of any law or of any clause found in the 100 clauses of § 1 before considered. That the general assembly never intended to authorize cities and villages to regulate factories indiscriminately and in the manner provided in this ordinance is further made manifest by the fact that the gen eral assembly thereafter specially conferred certain powers on the state by various acts which it has passed, notably the following: The Act of 1893 (Laws 1893, p. 99), regulating the manufacture of clothing and providing for the appointment of state inspectors; the Act of 1897 (Laws 1897, p. 90), as to the employment of children; the Act of 1897 (Laws 1897, p. 250), to compel the using of blowers upon metalpolishing machinery; the Act of 1907 (Laws 1907, p. 310), providing for the establishment of a department of factory inspection; the Act of 1907 (Laws 1907, p. 312), providing for the protection of persons in and about the construction of structural work; the Act of 1907 (Laws 1907, p. 308), providing for the publishing of information concerning accidents to employees; the Act of 1909 (Laws 1909, p. 212), as to the hours of employment of females; the Act of 1911 (Laws 1911, p. 330), providing for the protection of employees against occupa tional diseases; the Act of 1913 (Laws 1913, p. 359), providing for washrooms in certain employments; the Act of 1915 (Laws 1915, p. 431), providing for protection to employees from poisonous fumes or dust; the Act of 1915 (Laws 1915, p. 418), providing for the health, safety, and comfort of employees in factories, mills, and workshops; and the Act of 1917 (Laws 1917, p. 511), regulating child labor. raise revenue. The city has no power to impose a license fee of the character aforesaid for the purpose -municipal of raising revenue. corporationsThe only power that license fee to the city has to license is incident to its power to regulate. Herb Bros. v. Alton, 264 III. 628, 106 N. E. 434; Chicago V. O'Brien, 268 Ill. 228, 109 N. E. 10; Condon v. Forest Park. 278 Ill. 218, L.R.A.1917E, 314, 115 N. E. 825. The ordinance being void for want of power in the city to enact it, the decree of the Circuit Court is affirmed. ANNOTATION. Power to require license to operate factory or workshop. The power to require a license for the operation of a factory or workshop is inherent in a state, in the absence of any conflict or interference with a Federal right. American Mfg. Co. v. St. Louis (1919) 250 U. S. 459, 63 L. ed. 1084, 39 Sup. Ct. Rep. 522. And if a state by a constitutional provision exempts all or certain classes of manufacturers from the payment of a license tax, or, in a statute imposing license taxes, omits certain classes of manufacturers, it cannot require a license for the operation of a factory from a member of a class so exempted or omitted. Dumas v. State (1920) 17 Ala. App. 492, 86 So. 162; Union Oil Co. v. Marrero (1899) 52 La. Ann. 357, 26 So. 766. Dumas v. State (Ala.) supra, was an action by the state against the defendant for operating a mill without a license, under a statute which required a license from a person operat ing a seed-oil mill, cotton mill, or cotton factory. It was held that the defendant's mill did not fall in any of the above classifications, and therefore no license could be required of him. In Union Oil Co. v. Marrero (La.) supra, it appeared that the Louisiana Constitution exempted from the imposition of license taxes all manufacturers except manufacturers of liquor, cigars, and cotton seed oil. It was held that a license could not be required of the Union Oil Company for the manufacturing of cotton seed meal, cotton seed cake, and soap, since the legislature had no power, under the Constitution, to require a license for the operation of a factory other than those not expressly exempted. The power of a municipality to require a license for the operation of a factory or workshop is derived from the state, and is limited by the terms of the grant from the state. Joplin v. Leckie (1899) 78 Mo. App. 8; American Mfg. Co. v. St. Louis (1917) 270 Mo. 40, 192 S. W. 402, affirmed in (1917) Mo., 198 S. W. 1183, which is affirmed in (1919) 250 U. S. 459, 63 L. ed. 1084, 39 Sup. Ct. Rep. 522; F. S. Royster Guano Co. v. Tarboro (1900) 126 N. C. 68, 35 S. E. 231; Washington v. Eureka Lumber Co. (1907) 145 N. C. 13, 58 S. E. 436; State ex rel. Zielonka v. Carrel (1919) 99 Ohio St. 220, 124 N. E. 134. And see the reported case (BARNARD & MILLER v. CHICAGO, ante, 1533). In the reported case (BARNARD & MILLER V. CHICAGO) it is held that, in the absence of an express grant by the legislature, a city cannot require a license for the operation of a factory or workshop. In that case it developed that the statute under which the city claimed its power was invalid, so that there was no ground for its imposition of the occupational tax, the city's police power not being a sufficient basis for imposing it. In F. S. Royster Guano Co. v. Tarboro (1900) 126 N. C. 68, 35 S. E. 231, a manufacturer of fertilizer protested a license tax imposed by the town of Tarboro, on the ground that a state statute placed a license on the operation of a fertilizer factory, and provided that, if it were paid, no city could impose an additional license tax. It was held, however, that the tax imposed by the town of Tarboro was a tax on goods, and not on the privilege of operating a fertilizer plant, and was therefore valid. In American Mfg. Co. v. St. Louis (1917) 270 Mo. 40, 192 S. W. 402, affirmed in (1917) Mo. 198 S. W. 1183, it appeared that the plaintiff, a foreign corporation, was engaged in the manufacture of jute bagging in the city of St. Louis, which bagging was warehoused and sold outside the state of Missouri. The city required a license for the operation of the factory, computing the price of the license by the amount of goods sold. The plaintiff, in bringing an action to recover the license money paid to the city under protest, contended that the license was not one for the privilege of operating a factory, but a tax on property outside the state, and so not within the jurisdiction of the state or its agencies. The court held that, under its charter, the city of St. Louis. had the power to license and tax manufacturers, and that, having the power to require a license, it could make it a condition to the granting of one that the manufacturer pay a tax on the goods manufactured. And in American Mfg. Co. v. St. Louis (1919) 250 U. S. 459, 63 L. ed. 1084, 39 Sup. Ct. Rep. 522, which affirmed the foregoing case, it was said: "There is no doubt of the power of the state, or of the city acting under its authority, to impose a license tax in the nature of an excise upon the conduct of a manufacturing business in the city. Unless particular interference with Federal right be shown, the states are free to lay privilege and occupation taxes." In Washington v. Eureka Lumber Co. (1907) 145 N. C. 13, 58 S. E. 436, it appeared that a city ordinance imposed a license tax on the operation of band sawmills and box and roller factories. The defendant operated a bank sawmill and a box and roller factory, and protested the requirement of a license for operating both. The court held that the city was authorized by law to impose such taxes, and the fact that both the mill and the factory were operated by the same company did not exempt one of them from being operated without a license. In Joplin v. Leckie (1899) 78 Mo. App. 8, it appeared that the defendant operated a foundry in the city of Joplin, without paying an occupation tax imposed by the city. The court pointed out that the charter of a city of the third class, to which the city of Joplin belonged, gave it the power to require a license from "manufacturing and other corporations or institutions," and, in holding that the defendant could not be required to pay an occupation tax, said: "It seems clear to us that the words of the grant do not authorize a city of the third class to levy a tax on natural persons engaged in the manufacturing busi ness. They only authorize the imposition of such tax on corporate entities engaged in manufacturing. No good reason is seen for this discrimination, yet we are justified by the expression of the legislature in concluding that it was so intended. . We therefore conclude from the foregoing considerations, that the act of the plaintiff city in passing the ordinance levying an occupation tax on natural persons engaged in the manufacturing business was without the power conferred by its charter, and that therefore the conviction of the defendant for the violation of such ordinance cannot be upheld." In State ex rel. Zielonka v. Carrel (1919) 99 Ohio St. 220, 124 N. E. 134, it appeared that the city of Cincinnati imposed a license tax on the manufacturers of bottles and glassware in order to test the right of a municipality to impose occupation taxes generally. It was held that the state, through the agency of the legislature, could constitutionally impose such a tax, the court saying: "Reverting to the question of the power of Cincinnati to levy occupational taxes, it is our conclusion that an ordinance of that character is a valid exercise of its legislative power, and unless and until the state itself invades the field, or expressly interdicts the exercise of the power, the authority of the city of Cincinnati to utilize such subjects of taxation must be upheld." In New Orleans v. McCann (187780) Man. Unrep. Cas. (La.) 386, it was held that an exemption from a license tax of a manufacturer, by legislative act, was not retroactive so as to apply to a license tax imposed by a city. W. Q. F. ARTHUR H. LAMBORN et al., Copartners Doing Business under the Firm Name and Style of Lamborn & Company, Appts., Sale, § 46 delivery to carrier excess quantity. 1. A delivery by a seller to a carrier for the purpose of transmission to the buyer, of a quantity greater than the amount called for by the contract, does not constitute an appropriation of goods to the buyer's contract which constitutes a delivery to the buyer sufficient to pass title to any of the goods. [See note on this question beginning on page 1544.] (240 N. Y. 118, 147 N. E. 607.) taining a larger mass, does not pass title to him, so as to charge him with loss en route, or vest in him a beneficial interest as tenant in common in a claim for damages, where his contract calls for shipment "order, notify," and no shipping document was ever obtained under which he was entitled to notice of arrival. Sale, § 144 right to return of con 5. One paying a consideration for transfer to him of title to a quantity of fruit is entitled to a return of the consideration when transfer of title becomes impossible. [24 R. C. L. 65; 3 R. C. L. Supp. 1357; 4 R. C. L. Supp. 1527.] APPEAL by plaintiffs from a judgment of the Appellate Division of the Supreme Court, First Department, affirming a judgment of a Trial Term for New York County in favor of defendant in an action brought to recover the purchase price of certain boxes of evaporated apples paid to it by plaintiffs. Reversed. The facts are stated in the opinion of the court. Under the contract between the parties, the respondent was obliged to cause shipment of 1,200 boxes of dried apples to be made and to obtain therefor a clean railroad bill of lading. The respondent never made that shipment or procured such a bill of lading. Miller v. Harvey, 221 N. Y. 54, L.R.A.1917F, 559, 116 N. E. 781. There was never either actual or constructive delivery to plaintiffs of 1,200 boxes of dried apples, nor did the property in such goods ever pass to them. Rosenberg Bros. & Co. v. F. S. Buffum Co. 234 N. Y. 338, 137 N. E. 609; Bruce v. Pearson, 3 Johns. 534; Lopez v. Isaacs, 210 App. Div. 601, 206 N. Y. Supp. 405; Healy v. Howlett [1917] 1 K. B. 337; Smiley Steel Co. v. Schmoll, 200 App. Div. 655, 193 N. Y. Supp. 522, affirmed in 235 N. Y. 520, 139 N. E. 718; Procter & G. Co. v. Peters, W. & Co. 233 N. Y. 97, 134 N. E. 849. The present action for money had and received will lie to recover the purchase price paid by plaintiffs to defendant, for which plaintiffs received nothing. Lopez v. Isaacs, 210 App. Div. 601, 206 N. Y. Supp. 405; Bier v. Bash, 107 App. Div. 429, 95 N. Y. Supp. 281, affirmed in 186 N. Y. 565, 79 N. E. 1101; Addington v. Forsyth Metal Goods Co. 234 N. Y. 93, 136 N. E. 305. Mr. Benno Lewinson for respondent. Lehman, J., delivered the opinion of the court: On or about July 30, 1919, the plaintiffs and defendant entered in to a written contract upon a form which is apparently generally known as the "California Dried Fruit Contract." In that contract it was provided that the plaintiffs bought and the defendant sold "1,200/50 lb. boxes Calif. Evap. apples -Extra Choice Quality-1919 crop." Shipment was to be made in September or October. The price was 22 cents per pound "f. o. b. Pacific Coast rail shipping point. Payment to be made against draft with documents attached." There was a special provision typewritten in the contract: "It is understood and agreed that Seggerman Bros. are reselling a specific car of apples covered by an original contract No. 4750 dated July 11th, with Rosenberg Bros. & Co., San Francisco, Calif., and that Seggerman Bros. liability is limited to the terms and conditions of the original contract and delivery of actual goods received by them under same. course, if any, for the account of Lamborn & Co." Re "Contract No. 4750, dated July 11th," between the defendant and Rosenberg Brothers, referred to in defendant's contract with the plaintiffs, was also upon the "California Dried Fruit Contract" form. It called for shipment in September or October of "1200/50 lb. boxes Ex. Ch. apples (California apples, 1919 crop)." On October 30, 1919, the Southern Pacific Company issued a bill of lading to the order of Rosenberg Brothers & Company, "notify |