ceeded upon that construction of the phrase “employment agency" in Pub. Acts 1917, c. 78, wherein it is stipulated that it shall be unlawful for any person conducting an "employment agency" to ship any number of employés to any point without the state without first advising the applicants as to the existence of strikes, etc. The phrase "employment agency" does not imply the placing of laborers and domestic servants in the borders of this state only. Had McMillan engaged in the hiring of laborers for out of state employment only, prior to 1917, without procuring a license under the act of 1915, we doubtless would have held him subject to punishment; and this seems to us to be the test whether the license he did procure covered such an act. Having then a license which on date of issue authorized him to engage in emigrant employment business and which had not expired when he was arrested in this proceeding, the question arises whether it lay in the power of the city under legislative authority to carve out of the broader privilege of conducting an employment agency, one of its elements, employment of emigrant labor, and impose an occupation tax on the conduct of it. It is observed that the attempt to create by subdivision a distinct privilege of conducting emigration agencies was the state's under its power; and that the city did not undertake without precedent and specific legislative power to make two privileges out of the business formerly conducted as an employment agency. As was said in Robbins v. Taxing District, 13 Lea (81 Tenn.) 303, 307: "The Legislature may divide merchants, or other dealers into classes for the purpose of separate taxation, and may authorize municipal corporations to make the same division. The Legislature, by the statute under consideration, has now done what the municipality could not itself previously do and created a privilege of a specified part of a general business, which might otherwise have been carried on under the usual occupation license, for purposes of taxation. This was, as we have repeatedly held, within the competency of the Legislature." Was it also competent for the Legislature to so change the privilege as to deny to McMillan the right to continue the emigrant feature of his business under his license until the date of its expiration? dealer in respect of the liquor feature of his business, the court saying: "It is insisted by the plaintiffs that they are protected by their license from the payment their license on the 1st of November, 1881. of any of these taxes until the expiration of But the license, as we have seen, is only to exercise the privilege of merchants for one year, 'subject to the laws of the state,' and the bond executed by the merchant is to pay the amount of state and county tax 'as prescribed by law.' Neither the license nor the bond limits the taxes which the merchant shall pay, to the taxes as they stood at the date of the bond. No part of the taxes for the year 1881 was then paid. The license was only a license, not a contract by the payment of a consideration. There was no estoppel on either party. The plaintiffs might have ceased to do business before the 1st of January, 1881, and the state had plenary power to change its rate of taxation at any time." This is in harmony with the general rule. In Cooley on Taxation (3d Ed.) 1150, it is said that a license to sell liquors is not a grant or contract, but a mere permit subject to be changed or even annulled whenever the public welfare demands it; and that its issuance does not preclude the licensee's being required to pay a different or a larger fee or tax for the unexpired term. In Hirn v. State, 1 Ohio St. 21, the plaintiff had been granted a license under the laws of that state to keep an inn, which permitted him to sell spirituous liquors for a certain period of time, and had paid therefore a substantial license fee. Before the expira. tion of that period the Legislature passed an act repealing the law under which the license was granted, and thereby revoked the license. The plaintiff contended that the Legislature had no power to pass such an act. But the court said they were not disposed to question the power of the Legislature in a matter of that kind, connected, as it was, with the public policy and domestic regulations of the state; that, upon the ground of protecting the health, morals, and good order of the community, they were not prepared to say that the Legislature did not possess the power to revoke such license. [8] The privilege tax involved in this case was levied not merely for revenue, but with regulation as an incidental purpose; and we hold that when such is the case, the state and city are not estopped or precluded as claimed. The licensee was bound to know that the license or permit was held subject to the modification or repeal of the law under which change, if the public welfare which it was issued, from the making of would suffer could stay the hand of the state. quired it, no incidental inconvenience he Moore v. Indianapolis, 120 Ind. 484, 22 N. E. 424; Fell v. State, 42 Md. 71, 20 Am. Rep. re This depends upon the nature of the right conferred by that license. In Kelly v. Dwyer, 7 Lea (75 Tenn.) 180, it appeared that a general grocery merchant, who kept spirituous liquors as a part of his stock, took out license issuable to a merchant of his class, protecting him in the sale of the liquors; but during 83; Beer Co. v. Massachusetts, 97 U. S. 25, the running of the license period the Legis- 24 L. Ed. 989; Plow Co. v. Hays, 125 Tenn. lature passed an act declaring the business 148, 154, 140 S. W. 1068, and cases there of a liquor dealer to be a privilege, not to be exercised without a license and the payment of a special privilege tax. It was held that cited. that it partakes of both the character of a reg"It is not a valid objection to the ordinance ulation and also that of an excise or privilege the operation of the power to regulate, where T. G. Ewing, of Nashville, for Hattie Parks. a license is imposed for following the same, H. A. Luck, McCarley & Stephenson, and Jorwhile the revenue obtained on account of the license is none the less legal because the ordi dan Stokes, Sr., all of Nashville, opposed. WILLIAMS, J. The question for decision nance which authorized it fulfills the two functions, one a regulating and the other a revenue function. So long as the state law authorizes is whether the petition for certiorari to reboth regulation and taxation, it is enough, and the enforcement of the ordinance violates no provision of the federal Constitution." Gundling v. Chicago, 177 U. S. 183, 20 Sup. Ct. 633, 44 L. Ed. 725. [9-11] A further attempt is made to impeach the constitutionality of the privilege or occupation tax, assessed by the city on emigration agencies under the authority of chapter 70 of Pub. Acts of 1917, for unconstitutionality. In several states taxes have been imposed upon persons engaged in the business of hiring laborers in the state to emigrate and take employment out of the state. The tax is held to be neither a restriction upon interstate commerce nor an interference with the freedom of contract; nor does it deny the equal protection of the laws, because the business of hiring persons to labor within the state is not subjected to a like tax. Perhaps the leading case is Williams v. Fear, 110 Ga. 584, 35 S. E. 699, 50 L. R. A. 685, affirmed 179 U. S. 276, 21 Sup. Ct. 128, 45 L. Ed. 186; and in accord are Kendrick v. State, 142 Ala. 43, 39 South. 203; State v. Hunt, 129 N. C. 686, 40 S. E. 216, 85 Am. St. Rep. 758; People v. Warden, etc., 183 N. Y. 223, 76 N. E. 11, 2 L. R. A. (N. S.) 859, 5 Ann. Cas. 325, and note. We, therefore, hold that said act is not unconstitutional in these respects. We are thus brought to the conclusion that appellant was liable for the $500 tax, and that the judgment of the court below must be affirmed. So ordered. STATE BANK & TRUST CO. v. NASH- (Supreme Court of Tennessee. March 30, 1918.) Under Thompson's Shannon's Code, § 6321a2, providing that certiorari to review judgment of the Court of Civil Appeals shall not be issued after 90 days from final judgment of such court, the statutory period runs from the date of the denial of the first petition for rehearing. 2. CERTIORARI 40-TIME FOR PETITION. Since a second petition for rehearing by the same party is not recognized by the rules of the appellate courts, such petition, when denied, cannot be availed of to extend the 90-day period within which writ of certiorari to review the judgment must be applied for. Certiorari to Court of Civil Appeals. Suit between the State Bank & Trust Company, administrator, and the Nashville Trust Company, guardian. On petition for certiorari to review judgment of the Court of Civil Appeals adverse to petitioner. Writ denied. view the judgment of the Court of Civil Appeals adverse to petitioner was filed within the period of 90 days allowed by statute for such filing. By Thomp.-Shan. Code, § 6321a2, it is provided that such certiorari shall not be issued after the lapse of 90 days from the final decree or judgment of the Court of Civil Appeals. The Court of Civil Appeals dismissed the appeal and affirmed the judgment of the circuit court on October 18, 1917. A petition to rehear was filed, and denied on November 5, 1917. A second petition to rehear was filed in that court on November 5, 1917, and denied by minute entry of date January 22, 1918. The insistence of the petitioner is that the last-mentioned entry constituted the final judgment of the Court of Civil Appeals, and that the 90 days began to run from that date. [1] (a) We hold that the statutory period ran from the date of the denial of the first The petition to rehear-November 5, 1917. petition for certiorari was not presented to this court until March 13, 1918, and it came too late. [2] (b) A second petition to rehear, denied by the court, cannot be availed of to extend the 90-day period. If so a third and fourth petition could be resorted to, resulting in indefinite delays. A second petition to rehear by the same party is not recognized by the rules of the appellate courts. We do not mean to indicate that, should the Court of Civil Appeals grant a petition to rehear and rehear the cause, its disposition thereof might not be the final disposition or judgment, within the meaning of the statute. We do not pass on the further question as to the running of the statutory limitation against a party adversely affected by a ruling on a petition to rehear where the court reverses its former ruling and grants relief as prayed in the petition to rehear. The petition of such other party might be treated as his first petition to rehear under (a) above Writ denied. JERNIGAN BROS. et al. v. HART. Where an attorney, otherwise entitled to a charging lien on a judgment recovered, takes an assignment to himself of the entire judgment, he abandons or waives his right to enforce the lien; the claim to a lien being merged in the specific assignment of the whole judgment. L Certiorari to Court of Civil Appeals. Action between Jernigan Bros. and others and Len K. Hart, administrator. On application for certiorari to the Court of Civil Appeals. Writ granted, and judgment reversed. Worth Bryant, Algood & Finley, O. K. Holladay, and B. G. Adcock, all of Cookeville, for plaintiffs. Nathan Cohn, of Nashville, and Frank Boyd, of Waynesboro, for defendant. FENTRESS, J. The plaintiff, through his father as next friend, brought this suit to recover damages for alleged personal injuries sustained while in the employment of the defendant. The trial judge sustained a demurrer to the declaration, and the Court of Civil Appeals affirmed his judgment. The petition for certiorari was granted by this court, and the case has been argued here. The action is based on section 1, c. 57, of the Acts of 1911, Thomp. Shan. Code, § 4342a other-44, the applicable portion of which is as WILLIAMS, J. Where an attorney, wise entitled to a charging lien on a judgment recovered, takes an assignment to himself of the entire judgment, is his right to enforce the lien abandoned or waived? Yes. Principle: Where the assignment is not of a part or certain amount of the judgment, representing and securing his lien claim, and is not one of the entire judgment as security merely for the payment of his fees, the assignment, transferring absolute ownership of the judgment, operates as a waiver of equities he might have been entitled to by way of the declaration of an attorney's lien. lesser claim to a lien on the judgment for services is merged in the specific contract The assigning the whole judgment. There cannot exist a lien in favor of a person against property title to which is vested in himself. Precedent: It was so held in Dodd v. Brott, 1 Minn. 270 (Gil. 205) 66 Am. Dec. 541; Fulton v. Harrington, 7 Houst. (Del.) 182, 30 Atl. 856; McDonogh v. Sherman, 138 App. Div. 291, 122 N. Y. Supp. 1033; Whitehead v. Jessup, 7 Colo. App. 460, 43 Pac. 1042; 2 R. C. L. p. 1064. Writ of certiorari is granted, and the ruling of the Court of Civil Appeals on this point is reversed, and the decree of the chancellor affirmed in all respects. HARRISON v. RASCOE. (Supreme Court of Tennessee. March 23, 1918.) MASTER AND SERVANT 95 UNLAWFUL EMPLOYMENT-SUIT FOR INJURIES. Plaintiff, a minor 11 years old, employed by defendant to distribute meats to customers, injured while feeding a sausage mill in defendant's place of business, was within the protection of Thomp. Shan. Code, § 4342a-44 (Acts 1911, c. 57. §1), making it unlawful to employ any child less than 14 years old "in the distribution or transportation of merchandise." Certiorari to Court of Civil Appeals. Suit by J. W. Harrison, by next friend, against Tyler Rascoe. A decision sustaining demurrer to the declaration was affirmed by Court of Civil Appeals, and plaintiff brings certiorari. Judgment of Court of Civil Appeals reversed, and case remanded. follows: "It shall be unlawful for any proprietor, foreman, owner, or other person to employ, permit, or suffer to work any child less than fourteen years of age in, about, or in connection with any mill, factory, workshop, laundry, telegraph or telephone office, or in the distribution or transmission of merchandise or messages." The declaration avers that plaintiff, while defendant in his place of business, where he a minor 11 years of age, was employed by the ed and sold sausage, and, furthermore, that sold fresh meats and fish, and manufacturplaintiff was employed in the distribution of meats, etc., to defendant's customers. It is alleged that while feeding a sausage mill, which was propelled by electricity, plaintiff's right hand was caught in the knives, inflicting wounds which necessitated the amputation of three of his fingers. fendant conducted a retail butcher shop, Counsel stated in the argument that deand that the duties of the boy were to deliver meat and, while not so engaged, to work in the shop. The Court of Civil Appeals was of the opinion that the case did not come within the purview of the act. such a business may come within the meanWhile we express no opinion as to whether ing of the words "mill, factory, or workshop," as used in the statute, we think the plaintiff was employed in the distribution of merchandise, and therefore was within the protection of the statute. In Queen v. Dayton Coal & Iron Co., 95 Tenn. 458, 32 S. W. 460, 30 L. R. A. 82, 49 Am. St. Rep. 935, this court held that the employment of a boy under 12 years of age in a mine, in violation of chapter 170 of the Acts of 1881, rendered the employer liable for any injury that might be sustained by the boy in the course of his employment. In Iron & Wire Co. v. Green, 108 Tenn. 161, 65 S. W. 399, it was held that the employment of an infant, less than 12 years of age, in a factory, in violation of Acts 1893, c. 159, rendered the employer liable for all injuries sustained by the infant, even though the child was injured while not actually performing any duty for which he was employ Faw & Crockett, of Franklin, for Harri-ed. son. Henderson & Courtney, of Franklin, and Geo. H. Armstead, Jr., of Nashville, for Rascoe. In that case, according to the defendant's view of the facts, the boy was employed to work in the factory, and voluntarily left his work, and, as he passed through the Brown, Spurlock & Brown, of Chattanooga, for Chattanooga Ry. & Light Co. Henry A. Blackwell, of Chattanooga, for K. H. Bettis. factory yard, turned aside to play with some [ of Civil Appeals, and defendant brings cerpanels stacked against a post, causing them tiorari. Affirmed. to fall and injure him. The court held that, notwithstanding the boy's negligence, there was a causal connection between the wrongful employment and the injury, and therefore the master was liable. In speaking of that act, which has been amplified in the present act and impliedly repealed by the latter, this court said: "The statute in question, like that involved in Queen v. Dayton Coal & Iron Company, was wisely adopted by the Legislature with the view of keeping children out of employment where the services incident thereto were likely to be too heavy a task for their immature strength, or might be rendered in places and about machinery, which, because of their inexperience and thoughtlessness, would be constantly fraught with danger to them." GREEN, J. In this case there was a judgment below for the value of a pig killed by a street car belonging to the plaintiff in error. This judgment was affirmed by the Court of Civil Appeals, and the case has been brought before us by petition for certiorari. It is not denied in this court that there was some evidence of negligence on the part of the motorman in charge of the street car. Plaintiff in error, however, insists that the owner of the pig cannot recover, inasmuch as it was at large at the time it was killed, in violation of a stock law said to have been in force in Hamilton county. In Finley v. Furniture Co., 119 Tenn. 701, 109 S. W. 504, in speaking of a declaration in a suit in which a boy sued for damages for personal injuries sustained while employed in a factory, it was held the declara- The plaintiff in error relies on chapter 23 tion "would have supported the action, with- of the Acts of 1899, which made it unlawful out more, had it proved to be a fact that he to permit stock to run at large in Hamilton was in the service of this corporation, hurt county and other large counties of the in that service, and under 14 years of age." | state. The judgment of the Court of Civil Appeals is reversed, and the case will be remanded. [1] The lower courts were of opinion that the said act was repealed by implication by chapter 269 of the Acts of 1911, which undertook to provide for lawful fences in Hamilton county. Plaintiff in error insists CHATTANOOGA RY. & LIGHT CO. v. BET-that the Act of 1911 is unconstitutional, in 2. ANIMALS 49 STOCK LAWS-STATUTES. 98(2) — INJURIES TO ANIMALS-CONTRIBUTORY NEGLIGENCE. Defendant railroad company was sued for negligently killing plaintiff's pig, and interposed a defense of contributory negligence, based upon plaintiff's violation of Acts 1899, c. 23, making it unlawful to permit stock to run at large. Held, that such act, not being passed for the protection of defendant railroad company, it could not predicate a defense of contributory negligence thereon. 4. ACTION 3-OPERATION-VIOLATION. One not the beneficiary of a statute may neither base an action nor defense on a violation thereof. Certiorari to Court of Civil Appeals. Action by K. H. Bettis against the Chattanooga Railway & Light Company. Judg ment for plaintiff was affirmed by the Court asmuch as it purports on its face to be an act which repeals a former act of the Legislature without reciting the title or substance of said former act, as section 17 of article 2 of the Constitution requires. We do not think the act of 1911 is unconstitutional. While it does not sufficiently refer to the title of the act it undertakes to repeal, it does make adequate reference to the substance of the former act, and this is sufficient. State v. Runnels, 92 Tenn. 320, 21 S. W. 665; Ransome v. State, 91 Tenn. 716, 20 S. W. 310; State ex rel. v. Gaines, 69 Tenn. (1 Lea) 734. [2] We do not agree with the lower courts that the act of 1911 worked a repeal by implication of the act of 1899. The act of 1899 applies to all of Hamilton county and to the other larger counties of the state. The act of 1911 only applies to the rural districts of Hamilton county, the incorporated towns in that county being excepted from its provisions; so that the two statutes do not cover the same field. Just how far the earlier act is modified by the later one we do not feel called upon to determine in this case. For the purposes of this opinion we may concede that the act of 1899 is in force in Hamilton county, and that the pig killed was at large in violation of said statute. Nevertheless we think that the owner is still entitled to recover for its value, it not being controverted that the ev idence showed some negligence on the part [4] By a parity of reasoning, in order to of the motorman in charge of the car which justify a defendant in pleading the breach by killed it. plaintiff of a statute as a bar to a suit founded on defendant's negligence, it should appear that the statute was intended to prevent such accidents as that for which redress is sought. In other words, it should appear that the defendant, in the prosecution of the activity which resulted in the injury, was under the protection of the statute, or that the scene of defendant's activity was SO protected. We think that one not a beneficiary of a statute may neither base an action nor a defense on a violation thereof. Unless an individual be within the province [3] We are aware that it has been held in several jurisdictions that an owner of animals allowing them to be at large in violation of stock laws is guilty of such contributory negligence as to bar his recovery for the negligent injuring of the animals by another. To this effect seem to be Central Branch R. Co. v. Lea, 20 Kan. 353; Kansas City, etc., R. Co. v. McHenry, 24 Kan. 501; Railroad Co. v. Cocke, 64 Tex. 151; Locke V. Railway, 15 Minn. 350 (Gil. 283), and perhaps other cases. We are not able, however, to follow these of a statute, its violation is no breach of authorities. duty to him. This court has declared that: "Generally speaking, the violation of a rule of the common law, a statute, or an ordinance of a municipality, or failure to discharge and perform a duty so imposed in the interest of the public, is actionable negligence, and any one coming within the protection of the law, or intended to be benefited by it, who suffers an injury peculiar to himself, the proximate cause of which is the violation or nonperformance of the law, may maintain an action against the offender for the injuries sustained by him." Adams v. Inn Co., 117 Tenn. 470, 101 S. W. 428. This principle has also been declared in Queen v. Dayton Coal & Iron Co., 95 Tenn. 458, 32 S. W. 460, 30 L. R. A. 82, 49 Am. St. Rep. 935; Weeks v. McNulty, 101 Tenn. 495, 48 S. W. 809, 43 L. R. A. 185, 70 Am. St. Rep. 693; Iron & Wire Co. v. Green, 108 Tenn. 161, 65 S. W. 399; Railway v. Haynes, 112 Tenn. 712, 81 S. W. 374. It has been argued that the violation of a statute constituted merely a breach of duty to the state, and that the only remedy was the public remedy or a prosecution by the authorities of the state. In Pauley v. Steam Gauge, etc., Co., 131 N. Y. 90, 29 N. E. 999, 15 L. R. A. 194, upon which our pioneer case of Queen v. Dayton Coal & Iron Co., supra, was based, the New York Court of Appeals rejected the argument just referred to, and said: "The rule applies that when a statute commands or prohibits a thing for the benefit of a person he shall have a remedy upon the same statute for the thing enacted for his advantage or for a wrong done to him contrary to its terms." Pauley v. Steam Gauge, etc., Co., supra, following Willey v. Mulledy, 78 N. Y. 310, 34 Am. Rep. 536. In order to found an action on the violation of a statute, or ordinance, these cases make it plain that the person suing must be such a person as is within the protection of the law and intended to be benefited thereby. "And it may be stated as a general proposition, though there may be difficulty in some cases in applying it, that the violation of a statute or municipal ordinance is not of itself a cause of action grounded upon negligence in favor of an individual, unless the statute or ordinance was designed to prevent such injuries as were suffered by the individual claiming the damages, and often not then, the question depending upon judicial theories and surmises." Thompson on This conclusion is well supported by authority. The Supreme Court of Illinois has held that a railroad company could not make a defense of contributory negligence on the fact that the plaintiff when injured was engaged in hauling lumber to stack it in violation of an ordinance passed to guard against the destruction of property by fire. Pennsylvania Co. v. Frana, 112 Ill. 398. In Massachusetts, it has been held that keeping a livery stable without license in violation of law was not a bar to the liveryman's action for a nuisance to his real estate. Sherman v. Fall River, etc., Co., 5 Allen (Mass.) 213. The Supreme Court of Alabama, in considering a stock law case, where the railroad company relied on a violation of the law as by the owner, for the negligent injury of his contributory negligence, barring a recovery animals, observed that the statute was "con fined to the protection of growing crops, and had no reference to the liability of railroad For this and other reasons, companies." the court rejected the contention of the cometc., Co., 71 Ala. 545. pany. Alabama G. S. R. Co. v. McAlpine, The same question has been presented in many cases where the injured plaintiff was working on Sunday in violation of law, and this fact has been set up as a defense. In such a case the Supreme Court of Georgia has said: A "The statute denouncing as penal the followdefines and declares a duty to the state. ing of one's ordinary calling on the Lord's day breach of duty to the state does not necessarily involve a breach of duty to the defendant in such cases; and, when it does not, it is simply an irrelevant fact, unless the law gives it relevancy in some express form." Hughes v. Atlanta Steel Co., 136 Ga. 511, 71 S. E. 728. 36 L. R. A. (N. S.) 547, Ann. Cas. 1912C, 394. The case just mentioned is annotated in Ann. Cas. 1912C, 397, and in 36 L. R. A. (N. S.) 547, where many cases in accord are collected, and some to the contrary. The substance of the cases is thus stated in the Cyclopedia of Law and Procedure: "As in the case of the violation of a statute or ordinance by a defendant, it is necessary that |