author: Brooke, J.

text:
    BERSTON v. CITY OF FLINT.
    1. Drains — Municipal Corporations — Flint Charter — Sewer— Trunk Line Intercepting Sewer.
    Within, the meaning of the charter of the city of Flint, as amended, a storm drain, including a district of some 200 acres, in which from a fifth to a sixth of the population of the city lived, and which was constructed deep enough to connect with lateral sewers and branches in the district, intended by the municipal authorities to form part of a system and provide an outlet for surface water which tended to accumulate in the area drained, was a “trunk line intercepting sewer,” defined in the charter as a sewer of which the principal object should be the general benefit of the health of the city, or which should be constructed to relieve the river of sewage, etc.
    2. ■ Municipal Corporations — Drains.
    Under provisions of the city charter of Flint granting to the common council the power to determine what part of the expense of constructing trunk line sewers should be borne by the municipality, and limiting the amount to such part as primarily benefits the health of the entire city, a determination that the city should pay for 25 per cent, of the cost of a storm drain or sewer, in the absence of evidence of fraud or good faith, was conclusive.
    3. Taxation — Special Assessments — Right op Wat — Corporations — Compromise.
    In preparing to construct a sewer and to levy a special assessment to pay for the same, the common council of the city of Flint acted without legal authority, where, Instead of proceeding in the regular way to obtain a right of way for the sewer, the city made a special arrangement with one of the manufacturing corporations within the district to allow a stated sum for the right of way through its lands and to limit the assessment of the corporation to $500, thereby paying more than the easement was worth and adding to the burden of the others assessed.
    Appeal from Genesee; Smith, J., presiding.
    Submitted April 28, 1913.
    (Docket No. 46.)
    Decided July 9, 1913.
    Bill by Neil J. Berston and another against the city of Flint for an injunction. From a decree for complainants, defendant appeals.
    Affirmed.

      Black & Roberts, for complainants.

      Homer J. McBride, for defendant.
   Brooke, J.

Complainants seek in this action to enjoin the defendant city from confirming an assessment roll, and from entering into a contract for the construction of a certain sewer. The sewer in question is known as “Parkland stormwater sewer.” It commences at the intersection of Leith street and Industrial avenue, running thence easterly to State street, thence on State street to Flint river. As designed, it is 3,185 feet long, 54 inches in diameter, and the estimated cost thereof is $25,386. At the present westerly terminus of the proposed sewer, at the intersection of Leith street and Industrial avenue, the ground is much lower than it is north and west of that point, in which directions complainants’ property is situated. There seems to have been a natural waterway running from Industrial avenue in an easterly direction to the river, which in recent years has been obstructed by improvements made by the General Motors Company or by its predecessor in title. This natural way having been filled with earth, the General Motors Company placed a 30-inch sewer under Industrial avenue and across its property to take care of the surface water from the north and west which had formerly reached the river through the natural way. In times of heavy precipitation this 30-inch sewer was found to be inadequate, and a considerable area in the vicinity of Leith and Industrial avenues was flooded. The immediate purpose of the contemplated work is to take care of the surface water accumulating at this point. The ultimate purpose of the city, as disclosed by its consulting engineer, is to extend this sewer by building branches north and south' on Industrial avenue and thence west, thus making of the section now contemplated a main or trunk line sewer into which would be delivered the surface waters collected in the branches and laterals ultimately to be constructed when the plan is fully carried out. The area to be thus served is about 200 acres in extent.

The defendant, assuming to act under its charter powers, determined that 25 per cent, of the cost of construction should be borne by the city at large and 75 per cent, by those owning property in a duly defined special assessment district. The sewer is designed as a stormwater sewer only; the purpose of the city being to construct a separate drainage system for sanitary sewage.

Section 1 of Act No. 554 of the Local Acts of 1907, being amendatory of “An act to incorporate the city of Flint,” provides:

“The common .council shall have power to cause the expense of máking, paving, grading and opening of streets, lanes, alleys, sidewalks, parks, public grounds, sewers and other local improvements to be assessed in whole or in part against the owners or occupants of property to be especially benefited thereby, or by general tax in whole or in part, as it shall deem just and proper: Provided, that hereafter, when any trunk line intercepting sewer or sewers shall be constructed, the cost and expense of such part thereof as shall be designed primarily for the benefit of the health of the whole city, shall be assessed against the city at large; trunk line intercepting sewers shall be taken and understood to mean any sewer or sewers, the principal object and purpose of which shall be a general benefit to the health of the city, or which shall be constructed primarily for the purpose of protecting and preserving the salubrity of the waters of the Flint river, and particularly any sewer or sewers which shall parallel the river for the purpose of receiving the sewage of other sewers theretofore or thereafter constructed which would otherwise be emptied into and pollute the water of said river.”

Section 2 (Act No. 346, Local Acts 1901, chap. 20)| provides:

“Whenever the common council shall determine that the whole or any part of the expenses of any public improvement shall be defrayed by an assessment against the owners or occupants of houses or lands to be especially benefited thereby, they shall ascertain as they may think proper the estimated or actual expense of such improvement made or to be made, and shall declare by resolution, to be entered in their records, whether the whole, or what portion thereof, shall be assessed against such owners or occupants, specifying the sum to be assessed and the portion of the city which they deem will be specially benefited by such improvement; and the costs and expenses of making the plans, estimates and assessments incidental thereto shall be included in the estimated expenses of such improvement.”

The opinion of the learned circuit judge was, in part, as follows:

“I take up first the question of necessity. As the situation now exists I find there is a necessity for additional stormwater facilities in that part of the city. The public health demands it. A witness gave the number of employees that work in the various factories in that part of the city at 5,000. He was not accurate. Counsel stated in open court the number to be from 5,000 to 8,000. All this great number of employees work in the factories located in that part of the city. It is one-fifth or one-sixth of the entire population of the city of Flint. Some of them live in the district involved in the proposed system of sewers. Many of them are living, scattered about at night in all parts of the city. It is in my opinion such a large and important part of the city of Flint that it may be fairly and accurately said to be for the general benefit of the health of the whole city. The next question considered is this: Is it a trunk line intercepting sewer within the meaning of section 1 of Act No. 554, Local Acts of 1907? I quote the definition given by Prof. Hoad of Ann Arbor, the principal .witness on behalf of the city:
‘Q. Now, what would be a trunk line sewer, Professor?
“ ‘A. A “trunk line sewer,” the term is a little indefinite, but engineers understand it is a main sewer which furnishes a common outlet for a number of district mains.
“‘Q. What would you say about an “intercepting sewer;” is that a technical term?
“‘A. Yes, sir.
‘Q. What is that, Professor?
“‘A. An “intercepting sewer” would be one that has a more definite meaning. It is one that traverses a water front at an elevation somewhat lower than the outlets of numerous sewers coming down and discharging water, and which intercepts the flow of sewage from these various sewers and carried it clear down perhaps below the city, at least to some lower point.
“ ‘Q. That is the civil engineer’s definition of it, is it?
“‘A, Yes, sir.’
“I believe it to be a trunk line intercepting sewer within the meaning of this act, and that the injunction must issue as asked because it is a charge under this statute against the city at large. I also believe the extension westerly of this particular portion involved in this case, if the system is extended, will be a trunk line intercepting sewer also. It will receive the water from a considerable number of lateral district sewers.”

We find no difficulty in agreeing with him that the sewer in question, so far as presently designed, is a “trunk line intercepting sewer” within the meaning of the act. We are also of opinion that it may fairly be said that the sewer is (in some measure, perhaps largely) for the general benefit of the health of the whole city. But .from these facts it does not in our opinion necessarily follow that the city is precluded from assessing any portion of the cost of the improvement upon a district specially benefited thereby. The language of the charter is peculiar.

The entire cost and expense of constructing sewers of this class is not to be borne absolutely by the city, but only the cost “of such part thereof as shall be designed primarily for the benefit of the health of the whole city.” That the common council is vested with a discretion to determine what part thereof is so designed we think is clear. It has exercised that discretion in this instance, and its action (in the absence of fraud or bad faith) cannot be reviewed. Putnam v. City of Grand Rapids, 58 Mich. 416 (25 N. W. 330). And in determining the district benefited by the public improvement and making the assessment thereon it will be presumed to have acted in good faith where mistake or abuse of discretion is not manifest or demonstrable. Powers v. City of Grand Rapids, 98 Mich. 393 (57 N. W. 250). See, also, Davies v. City of Saginaw, 87 Mich. 439 (49 N. W. 667); Roberts v. City of Sandusky, 158 Mich. 521 (123 N. W. 39).

The next question requiring attention is that growing out of the dealings of defendant with the General Motors Company with reference to the sewer in question. It appears that a committee of the common council negotiated with the general manager of said company for a right of way across its lands on the line of Leith street, extended. On July 16, 1912, they reported an arrangement by the terms of which the General Motors Company was to contribute $500 to the cost of construction, and give a deed to the city of a 10-foot right of way, in consideration of which the company was to be exempted from paying any tax to be levied for said construction. On the same day the common council by resolution adopted the report and instructed its sewer committee to secure the deed for the right of way and the $500 from the General Motors Company. On August 5, 1912, a resolution was adopted providing for the construction of the sewer at an estimated cost of $23,356, providing for the creation of a special assessment district and the appointment of commissioners to make the assessment which was fixed at 75 per cent, for the district and 25 per cent, upon the city at large. The mayor and city clerk were likewise by resolution authorized to enter into the contract for the construction with one William Finlay. On August 17th a resolution was adopted rescinding the action taken on August 5th, and on August 19th a new resolution was passed in effect the same as that of August 5th, except that the estimated cost, “including the right of way across the lands of the General Motors Company, was fixed at $25,386. We gather from the record that a new arrangement had been made with the General Motors Company by the terms of which it was to be paid the sum of $2,000 for the right of way, and a portion of its real estate was included in the special assessment district.

While the special assessment district is not shown upon any map returned with the record, the evidence shows that no portion of the holdings of the General Motors Company lying south of Leith street extended and contiguous to the proposed sewer was included. Upon this subject the learned circuit judge said:

“I take up next the alleged agreement with the General Motors Company. Although not necessary to consider this branch of the case in order to dispose of it, I think it wise to do so because if, as I suppose, the case finds its way to the appellate court, it will be wise to settle this point also. So, for the purpose of this record, I hold that the agreement not to collect but $500 from the General Motors Company plus a right of way existed originally; that later $2,000 or more was added to the estimated cost of the sewer and $2,000 or more was technically allowed for the right of way crossing the company’s ground opened apparently as part of Leith street. I find the right of way is not in fact worth $2,000, but only a nominal sum when the sewer is completed; that the General Motors Company does in fact receive a benefit because it will relieve the surface water accumulating at times at the 30-inch sewer; in fact, if I understand the proofs, it is proposed to connect the 30-inch sewer with the 54-inch one. It amounts to a subterfuge by which the city shall carry out its former agreement to charge the company but $500. It would appear the General Motors Company refused to pay more than the $500 plus the right of way. Now, it may be true that the Buick and the General Motors Company, its successor and its plants, have so benefited the city of Flint that it can well and profitably be exempted from its share of the cost of this improvement. I express no opinion upon that. But, when its legal share is transferred to these complainants and to the other persons assessed, it renders the assessment roll illegal. The injunction would also be granted for this reason, if necessary.”

The amended special assessment district contained some portion of the lands of the General Motors Company upon which the commissioners appointed by the council assessed the sum of $3,600. This sum will apparently be decreased by $2,000, the amount allowed for the right of way, in the second resolution, although the record does not disclose any contract between the defendant and the company excepting the one exempting it from taxation in consideration of the right of way and $500. Defendant undoubtedly has power to purchase and hold real estate for its proper municipal needs. This power is not only implied or inherent, but is specifically granted in its charter (section 2, chap. 1, Act No. 346, Local Acts 1901). We are, however, disposed to agree with the conclusion of the learned circuit judge that defendant’s acts in the premises are open to grave criticism. It is clear that the situation which compels the construction of this large sewer' for stormwater only was created in part (perhaps very largely) by the act of the General Motors Company or its predecessor in title in filling in the natural waterway and failing to provide an adequate sewer under its property to take the place of the interrupted ancient watercourse.

The circuit judge found, though upon meager testimony, that the value of the proposed right of way is much less than the $2,000 proposed to be paid therefor. With such light as the record affords we are disposed to agree with him. The defendant should proceed in a proper and legal manner to acquire the right of way at its true value, and all lands of the General Motors Company which will be especially benefited by the improvement should be included in the special assessment district and made to bear a proportional share of the burden. While no fraud is shown on the part of the council in determining that the private owners of property in the special assessment district should bear 75 per cent, of the cost, it is significant that the commissioners appointed by that body to make the assessment recommended that 50 per cent, only be so apportioned, the balance to be paid out of the general fund. Acting in good faith and without fraud, the final determination of the common council upon this question is controlling upon complainants, and may not be reviewed.

The decree is affirmed, with costs.

Steere, C. J., and Moore, McAlvay, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


source: Caselaw Access Project

author: BROOKE, J.

license: Public Domain

text:
    LANNING v. STILES.
    . 1. Interpleader — Equity—Contracts.
    The remedy of interpleader is available only if defendants claim the same debt or thing, and if all adverse claims depend on or were derived from a common source, and if the complainant has no interest in or claim upon the subject-matter, and complainant must have incurred no independent liability to any of the claimants.
    2. Same — Brokers—Commissions.
    Brokers claiming commissions under separate contracts, executed on different dates, covering the same property but different amounts of land, and possibly providing for different commissions, cannot be compelled to interplead although, complainant admits that she owes either one or the other defendant compensation: the contracts were distinct and the claims depend on different sources; complainant also may have incurred an independent liability to both brokers.
    Appeal from Van Burén; Des Voignes, J.
    Submitted April 21, 1913.
    (Docket No. 96.)
    Decided July 9, 1913.
    Bill by Nettie Lanning against A. E. Stiles and Albert A. Abbott for a decree of interpleader. From a decree for complainant, defendant Stiles appeals.
    Reversed.

      Thomas J. Cavanaugh, for complainant.

      David Anderson, for defendants.
    The bill of complaint was filed in this cause for the purpose of enjoining the prosecution of a suit at law, brought by defendant Stiles against complainant, and for the further purpose of compelling the two defendants to interplead and determine which of them was entitled to a real estate commission of $140, which complainant admits she owes to one or other of said defendants, and which she has paid into court. To this bill defendant Stiles demurred, and, the demurrer being overruled, he then answered, denying complainant’s right to enjoin him from proceeding with his suit at law and to compel him to interplead with defendant Abbott. From a decree of interpleader,- defendant Stiles appeals.
   BROOKE, J.

(after stating the facts). The record in this case shows that complainant made two separate and distinct contracts, one with each of the defendants. They were different in date, different in the number of acres to be sold, and perhaps different as to the commission to be paid. The primary question involved, therefore, is not which of the defendants is entitled to a specific “fund” (the commission), but whether defendant Stiles can be enjoined from prosecuting a suit at law upon his individual contract, claiming to have performed the same.

To entitle a complainant to file a bill of interpleader the following essential facts must appear: (1) The same thing, debt, or duty must be claimed by both or all the parties against whom the relief is demanded; (2) all adverse claims or titles must be dependent or ■derived from a common source; (3) the complainant must not have nor claim any interest in the subject-matter; (4) complainant must have incurred no independent liability to either of the claimants. 1 Pomeroy’s Equitable Remedies, § 43 et seq.; 23 Cyc. pp. 7, 11, and cases cited in notes.

We are of opinion that complainant has not in her bill averred, or by her proofs established, facts sufficient to entitle her to the remedy sought. The defendants are not claiming the same “thing, debt, or duty.” Defendant Stiles is claiming compensation for services alleged to have been performed under his individual contract, and Abbott is demanding compensation under a separate contract, the terms of which were unknown to Stiles and with which Stiles had nothing to do. The conflicting claims of the two defendants are obviously not dependent upon each other, or derived from a common source. The claim of each is based upon his own contract and is wholly independent of that of his codefendant. Complainant has, or may have, incurred an independent liability to both defendants. She testifies that she made a contract with each, and if each has fulfilled the terms thereof, each is entitled to a right of action thereunder. The principle involved has been discussed in several Michigan cases. Michigan & Ohio Plaster Co. v. White, 44 Mich. 25 (5 N. W. 1086); Moore v. Barnheisel, 45 Mich. 500 (8 N. W. 531); Wallace v. Sortor, 52 Mich. 159 (17 N. W. 794); Vogle v. Insurance Co., 147 Mich. 333 (110 N. W. 1067); Detroit Trust Co. v. Hunrath, 168 Mich. 180 (131 N. W. 147).

The decree is reversed, and the bill of complaint dismissed, with costs of both courts.

Steere, C. J., and Moore, McAlvay, Kuhn, Stone, Ostrander, and Bird,. JJ., concurred.


text:
    SPENCER v. JOHNSON.
    1. Intoxicating Liquors — Evidence—Damages—Pain and Suffering.
    Evidence of pain arid suffering experienced by plaintiff’s husband was inadmissible for the purpose of showing his condition and inability to work, in an action brought by the wife against certain liquor dealers for unlawful sales resulting in injury and disability to such husband.
    2. Same — Support—Evidence
    And it was erroneous to admit evidence that he had sold his cow, horse, and farm to support his family during his disability.
    3. Same.
    Testimony that he had borrowed money for their support was competent, but its effect should be limited to the question of the length of time during which lack of support might be expected to continue.
    4. Same — Husband and Wife — Services of Married Woman.
    It was proper, also, to admit evidence of the value of the wife’s services in nursing him during his illness.

      5. Same — Indebtedness.
    Indebtedness of plaintiff’s husband for borrowed money and medical attention should be taken into consideration only for the purpose of determining the length of the period during which plaintiff would probably be deprived of her customary support;
    6. Same — Future Damages — Evidence.
    Although the mortality tables were not introduced in evidence, there was no error in leaving to the jury the question of plaintiff’s future damages, the husband’s injuries not being permanent; the testimony as to his age, physical condition, habits, etc., and plaintiff’s age anfl appearance, constituted a sufficient basis for the finding.
    7. Same — Damages—Exemplary Damages.
    Nor did the court err in reading to the jury the statute on which plaintiff’s action was based, where he did not leave the question of exemplary damages to the jury in his charge.
    8. Trial — Argument—Absence of Court.
    While it may not constitute reversible error for the trial' judge to absent himself from the bench during argument of counsel, the practice is not commendable.
    Error to Montcalm; Davis, J.
    Submitted April 10, 1913.
    (Docket No. 27.)
    Decided July 9, 1913.
    Case by Myrtle Spencer against Peter Johnson and others for unlawful sales of intoxicating liquor to plaintiffs husband. Judgment for plaintiff. Defendants bring error.
    Beversed.

      N. O. Griswold, Charles L. Rarden, and A. F. Bunting, for appellants.

      R. A. Hawley, for appellee.
   Brooke, J.

This is an action for damages brought by the wife of an alleged habitual drunkard against four saloon keepers and the surety upon their several bonds.

As a result of the alleged illegal sales, John M. Spencer, the husband, became intoxicated, and while in that condition attempted to board a moving train in the city of Greenville, Montcalm county. Through some misadventure, not clearly shown in the record, he was drawn under or partially under the train, and suffered physical injuries of a more or less serious character, including a very severe scalp wound and a possible fracture of the skull. As a result Spencer was confined in a hospital for 39 days, and it is claimed that his physical ability to labor and earn money for the support of the plaintiff has become seriously impaired, though there is no evidence that such impairment is permanent in character. The record shows, however, that from the date of the accident to the date of the trial, a period of more than one year, Spencer was unable to perform any hard labor, but was forced to confine himself to the performance of chores and work of a light or occasional character. He had been, according to his own testimony, a heavy drinker of intoxicating liquors for more than 15 years, getting drunk as often as once a week usually, and always as often as opportunity afforded and he had money with which to purchase liquor to gratify his appetite. He testified that on the day of his injury, March 9, 1910, he purchased from each of the defendant saloon keepers one or more drinks of whisky. Each defendant by himself or his bartender denied that any intoxicating liquor was sold to Spencer on the day in question. The jury, however, to whom this question was fairly submitted, brought in a verdict against all defendants in the sum of $2,550.

Many errors are assigned by defendants, which may be grouped under two heads: (1) In the admission of certain testimony; (2) in erroneously charging the jury.

The court permitted Spencer, over objection, to give evidence at length of the pain and suffering he had endured as a result of the injury. In the charge the court attempted to limit the effect of this testimony by the following instruction:

“Some testimony has been received here in regard to the pain he has suffered, the suffering he has experienced. She is not to be remunerated for that, but it was received for the purpose of bearing upon his earning ability or power to work and bearing upon his condition. What has been his condition since the injury? What is his condition now? What is the probability about its continuing? So that his condition, suffering, pain, and weakness has been laid before you for the purpose of aiding you in determining the extent of his injury, the extent to which she has been deprived of her support, the extent to which she has suffered any loss of property that would otherwise belong to her and be retained by her had it not been for the sacrifice she would have to make owing to this injury received by her husband.”

We are satisfied that the admission of this testimony was prejudicial error. The question of Spencer’s physical condition after the injury as bearing upon his ability to perform labor was one entirely proper for inquiry, but it could, and should, have been ascertained without a history of his pain and suffering which afforded no basis for plaintiff’s recovery, and which could scarcely fail to influence the verdict of the jury.

Evidence was admitted that Spencer, after the injury, had sold his cow, horse, and his equity in a 10-acre farm, had borrowed several hundred dollars, and had used this money, together with the avails of his sales, toward the support of his family, including plaintiff. Evidence also was admitted that the doctor’s bill, amounting to $484, was unpaid. It is strenuously urged upon the part of defendants that all this testimony was inadmissible. We think the testimony relative to the sale of his property was erroneously admitted. We cannot say that evidence relative to his indebtedness had no legitimate bearing upon the issue, but its effect upon the deliberations of the jury should have been carefully guarded. Plaintiff has a right in this action to recover damages for injury to her “person or property or means of support or otherwise.” She gave testimony tending to show that prior to Spencer’s injury she had been accustomed to receive support from him of the annual value of $200, which since the injury had been withdrawn. This evidence (if believed) afforded a legal basis to the jury for the computation of their verdict; the only other element necessary being the length of time during which such failure to support would continue. While the plaintiff was not entitled to recover any of the sums of money represented by her husband’s debts as a substantive part of her verdict, the fact that he was indebted at the time of the trial as a result of his injury was pertinent as bearing upon the length of time during which the alleged accustomed support would probably be withdrawn from plaintiff.

Evidence was admitted of the value of plaintiff’s services in assisting to nurse Spencer while he was in the hospital. This testimony was admissible under the authority of Thomas v. Dansby, 74 Mich. 398 (41 N. W. 1088). Upon the question of the measure of damages the court charged:

“Sixth. In arriving at your verdict as to the amount of plaintiff’s damages, in case you find she is entitled to recover, it is your duty to take into consideration the amount of money which the said Spencer is shown to have been able to earn prior to March 9, .1910, and the amount of money which he is shown to have contributed prior to that date for the support and maintenance of said plaintiff, and the amount which he has been able to contribute since that time for her support and maintenance; also the amount of the charges of the physician for his services in the care and treatment of said Spencer and the expense of nursing said Spencer, including the extra services required of said plaintiff in caring for and nursing him at the hospital, also .the hospital bill and charges for supplies in his treatment; also the property that has been sold and the proceeds thereof used in the support of the plaintiff and family since that injury and the amounts of money borrowed by said plaintiff and said Spencer, and which is still owing and unpaid, not as fixing absolutely the amount which she has already been damaged, but as bearing upon the question as to the amount that she has been injured in her property and in her support up to the present time. Also you have the right, and it is your duty, to ascertain and determine how much damage she will suffer in the future by reason of injury to her property and means of support by reason of any effects of said injury to said Spencer that you may find was occasioned by his said intoxication and for such time in the future as you may determine that he will suffer from and be disabled by such injury.”

That portion of the foregoing excerpt beginning with the words “also the amount,” etc., and ending with “up to the present time” is in our opinion subject to just criticism. The value of plaintiff’s services in nursing her husband was a proper element to be considered by the jury.

As the evidence of the sale of his property by Spencer and the use of the money thus obtained to support his family was improperly admitted, it follows that the jury should not have been permitted to consider those facts. And consideration of the fact that he was indebted to the doctor and for borrowed money should have been permitted only so far as it bore upon the length of time plaintiff would probably be deprived of her support.

Defendants urge that the last paragraph of the instruction quoted supra is erroneous because of the fact that the mortality tables were not introduced, and therefore there was no evidence in the case from which the jury could determine the amount of future damages. The mortality tables are not conclusive' evidence upon 'the question of the duration of life. Without them the jury still have other facts in the' case. They have the age both of the plaintiff and her husband. They have a history of the husband’s physical condition and habits, and they have the benefit of an actual observation of both the plaintiff and her husband. Upon these facts and this observation the jury may base their finding. 4 Elliott on Railroads,. § 1813, and cases cited.

It is urged that the court erroneously submitted the' question of exemplary damages to the jury. It is true' that in delivering his charge the court read the statute which provides for the recovery of such damages. When instructing the jury upon the measure of damages, however, no mention was made of “exemplary” damages. It .is, we think, clear that such damages were not allowed by the jury.

Much argument is devoted by counsel for defendants to the question of alleged improper comment to the jury on the part of plaintiff’s counsel in his closing argument. It appears that the argument was made in the absence of the court and stenographer, and therefore no ruling or exception thereon is included in the record. Of course, we can pay no attention to the point except again to emphasize what we have so frequently reiterated — that counsel should present their claims to juries fairly and .without appeals to passion or prejudice. This record, however, presents a situation which we believe calls for comment. Without determining that it is reversible error for the presiding judge to absent himself from the bench during argument of counsel, we have no hesitation in saying that the propriety of such a course is questioned, and its practice not to be commended.

The judgment is reversed, and a new trial ordered.

Moore, McAlvay, Stone, and Ostrander, JJ., concurred with Brooke, J. Steere, C. J., and Kuhn and Bird, JJ., concurred in the result.


text:
    WHEELER v. COLEMAN.
    Elections — Quo Warranto — Canvass—Recount—Opening Box.
    In quo warranto proceedings, evidence that the board of election inspectors announced the result of the count to be favorable to relator but did not prepare a statement of the result, and, on the following day, at the request of respondent, who did not file a petition and pay a fee as required by law, caused the box to be opened and the ballots recounted, relator being absent, that as a result of the new proceedings respondent was declared elected to the office, held, insufficient to support respondent’s title to the office of township treasurer because of the neglect to observe statutory requirements for recounting the ballots; and although relator was notified and appeared at the second recount, which was commenced later in the day, his presence without protest was not conclusive against him. 1 Comp. Laws, §§ 3638-3648 (1 How. Stat. [2d Ed.] §§238-248).
    Error to Van Burén; Des Voignes, J.
    Submitted April 22, 1913.
    (Docket No. 110.)
    Decided July 9, 1913.
    Quo warranto by Oscar Wheeler against Arthur Coleman to determine title to the office of township treasurer. Judgment for relator. Respondent brings error.
    Affirmed.

      W. J. Barnard, for appellant.

      Glenn E. Warner and Thomas J. Cavanaugh, for appellee.
    In this case relator and respondent were rival candidates for the office of treasurer for the township of Antwerp. The election was held April 1, 1912. At the close of the polls on election day the vote was canvassed by the members of the board, and it was publicly announced by the chairman thereof that relator had received 213 votes and respondent 209 votes. At the conclusion of the canvass, and after the announcement of the result, the ballots were returned to the box, the box was locked and sealed, though not in accordance with the statute. 1 Comp. Laws, §§3638, 3647 (1 How. Stat. [2d Ed.] §§238, 247). During the canvass the unused ballots were passed around among those present to keep tally upon, and were not returned to the township clerk, as provided by 1 Comp. Laws, § 3645 (1 How. Stat. [2d Ed.] §245). The inspectors of election did not, on the night of election, prepare a statement of the result and certify it in duplicate, as required by 1 Comp. Laws, §3648 (1 How. Stat. [2d Ed.] §248), but returned upon the following morning for that purpose, having left' the ballot box, locked and in a manner sealed, unguarded in the town hall during the night. On that morning the respondent appeared before the board and asked for a recount. Respondent did not comply with the law (1 Comp. Laws, § 3725, 1 How. Stat. [2d Ed.] § 322) in that his petition was not in writing, he made no deposit, and served no notice upon relator, the opposing candidate. Nevertheless the inspectors opened the box in the absence of relator, and proceeded to recount the ballots; respondent and his brother handling and advising upon the same. About 11 o’clock a. m. a member of the board telephoned to relator, who went to the town hall in the afternoon, when the ballots were again recounted. As a result of this recount the board found, announced, and certified that respondent had received 212 votes and relator had received 210. This action of the board purported to give respondent title to the office. Whereupon, and on April 15, 1912, relator filed his petition for leave to file an information in the nature of a quo warranto for the purpose of determining his rights to said office. Upon the trial of the issue the court directed a verdict in favor of relator. Judgment was entered thereon, and relator assumed the office. At the time the case was presented in this court relator had completed his duties, as the term had expired.
   Brooke, J.

(after stating the facts). It is the contention of respondent: (1) That the court erred in directing a verdict for relator; (2) that the court erred in not directing a verdict for respondent; (3) that the court erred in not admitting in evidence the ballots said to have been cast at the election, and in not submitting the question to the jury. We deem it unnecessary to follow respondent’s counsel in his legal argument. The undisputed facts in the case fully warranted the action taken by the court below.

Assuming that the ballot box was properly locked, sealed, and cared for on the night of April 1st, and that it was found by the board on the morning of the 2d in the same condition in which they had left it, the board yet had no legal right to open the box and proceed to a recount of the ballots in the absence of relator and without compliance, on the part of respondent, with the statutory requirements relative to recounts. The fact that relator appeared in the afternoon and participated in a second recount without protest is not material. May v. Board of Canvassers, 94 Mich. 505, at page 512 (54 N. W. 377). The box had been opened several hours earlier, and the ballots had been handled by at least one person not a member of the board (respondent’s brother); and, while the evidence tends to negative any fraud or wrongdoing on the part of any one engaged in the first recount, we are of opinion that what was done was so clearly illegal and an invasion of relator’s rights as to warrant the court in holding that the result as announced by the board upon the night of the 1st was the true result and binding upon all parties. The proceedings for a recount are purely statutory, and the statutory requirements must be observed. Andrews v. Otsego Probate Judge, 74 Mich. 278 (41 N. W. 923); Miner v. Beurmann, 165 Mich. 672 (131 N. W. 388). See, also, Ritze v. Board of Canvassers, 172 Mich. 423 (137 N. W. 964); 15 Cyc. pp. 429, 430.

The judgment is affirmed.

Steere, C. J., and Moore, McAlvay, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


author: Stone, J.

text:
    HARTINGH v. BAY CIRCUIT JUDGE.
    1. Injunction — Pleading—Equity—Affidavits.
    In equity, it is a general rule that an injunction will not issue on a hill verified upon information and belief, unless it is supported by affidavits of persons who have knowledge of the facts: the pleading may be sworn to by complainant if he knows a part of the material facts and states the remainder on information and belief; and it is proper to support the same by affidavits of those who know the matters not positively averred.
    2. Same — Answer—Dissolution.
    The equity of the bill was not fully met so as to require the dissolution of an injunction restraining a village council from granting licenses to more retail liquor dealers than the statute authorized, where complainant charged that defendant board of trustees of the village threatened to grant more retail liquor licenses than the law warranted, and set up facts showing the applications made and the purpose of a majority of the trustees to issue the licenses, and where defendant’s answer merely negatived any threat to grant the applications as alleged but did not deny the other material averments.
    3. Intoxicating Liquors — Saloons—Death of Licensee.
    Under the provisions of the Warner-Cramton act (Act No. 291, Pub. Acts 1909, 2 How. Stat. [2d Ed.] § 5055 et seq.), the death of a saloon keeper terminates his license, and it is treated as a surrender, reducing the number of saloons that may be lawfully licensed in a community that had more than one saloon to 500 inhabitants at the time the law went into effect.
    4. Same — License—Villages—Estates of Decedents.
    The right to carry on the business of selling intoxicating liquors at retail is in the nature of a personal license, and does not pass to the personal representatives of a deceased licensee.
    5. Same — Statutes—Estates of Decedents.
    The amendment of 1911, Act No. 170 (2 How. Stat. [2d Ed.] §§ 5056, 5062 et seq.), does not apply to licensees who died before the act took effect: it recognizes, however, that a license is surrendered on the death of a licensee and adds a period of grace on the filing of a new bond by the administrator. At the end of the year for which the license was granted all rights thereunder end and no authority to apply for a renewal vests in the personal representative.
    6. Same — Voluntary Surrender.
    The decease of a licensed saloon keeper works a voluntary surrender within the meaning of the statute.
    7. Same — Equity—Injunction—Parties.
    The attorney general is a proper party complainant in equity to prevent the violation of law by village trustees by the unlawful issuance of licenses to retail liquor dealers.
    Mandamus by George Hartingh and others, as trustees of the village of Pinconning, against Chester L. Collins, one of the circuit judges for the county of Bay, to compel respondent to vacate a preliminary injunction issued in a suit in which the attorney general is complainant and relators are defendants.
    Submitted May 1, 1913.
    (Calendar No. 25,683.)
    Writ denied July 9, 1913.

      Joslyn & Houghton and W. A. Collins, for relators.

      W. B. Henry and G. A. Higgs, for respondent.
   Stone, J.

In this proceeding relators, who are members of the council of the village of Pinconning, Bay county, pray for a writ of mandamus directing the respondent to vacate an order made by him on April 23, 1913, denying a motion ,to dissolve a preliminary injunction, and to dissolve said injunction. It appears that on April 14, 1913, the attorney general, on relation of John W. Kinsey, Albert Butler, and John C. Salmon, three residents and property owners of said village, filed an injunction bill in the Bay circuit court, in chancery, and on application to respondent a temporary injunction was issued and served on relators. Said bill sets forth that relators were the trustees, president, and clerk of the village; that the last United States census showed the population of said village to be 750; that in April, 1909, there were six licensed saloons in said village; that subsequent to said date, and prior to May 1,1911, two of said saloon keepers had died during the time their licenses were in force; that by reason thereof the number of saloons legally authorized in said village was reduced from six to four, but that during 1912 six saloons were licensed and did business in said village. The foregoing statements are set forth as positive averments of fact. The remainder of the bill states upon information and belief that the six persons conducting saloons in said village in 1912 have already made, or will make, application to said village for permission to renew their licenses; that said trustees will be asked to approve six applications to conduct saloons in said village, and that said trustees threaten to approve six applications to conduct saloons in said village, and that unless restrained by the court will approve six applications to conduct saloons therein. Complainants allege in their bill that they based their conclusion upon certain statements made by a majority of the members of the village council, and claimed that the proposed action would be a violation of Act No. 291 of the Public Acts of 1909 (2 How. Stat. [2d Ed.] § 5055 et seq.). The bill was verified in the usual form by Albert Butler, and there accompanied the bill the affidavits of Albert Butler and three other persons, setting forth statements made to or in the hearing of affiants, by four members of the council, to the effect that the council would accept and approve six applications for liquor licenses in said village.

The answer of the defendants (relators here) admitted that six persons had made applications for liquor licenses for the year 1913, but denied that trustees and members of said council threatened to approve of six; they denied that complainants had any information upon which to base the statement, made on information and belief, “that unless restrained by order of the court said trustees will approve six applications to conduct liquor business;” they denied that complainants had information upon which to base a statement as to what action would be taken by the village council; denied that the allegations set forth were supported by the affidavits referred to; denied that the allegations in said affidavits or the statements therein made, if true, supported the allegations of the bill, and denied that the approving of six applications and bonds to conduct retail liquor business in said village for 1913 would be a violation of the laws of this State, particularly the so-called “Warner-Cramton Law,” and denied that such licenses, if granted, would be illegal, and that the place where the sale of liquor would be had would be a nuisance and work an “irremediable” injury as claimed in the bill. A motion to dissolve the preliminary injunction was thereupon made and denied by the respondent.

Relators say in their brief that the questions involved in this issue are:

(1) May a temporary injunction issue on a petition verified only upon information and belief?

(2) Does the death of a saloon keeper constitute a voluntary surrender of his license pursuant to section 39, Act No. 291, Public Acts of 1909?

(3) There is no equity in the injunction bill.

1. While the bill or information itself states many of the material matters on information and belief, it is. supported by affidavits setting forth* matters which show statements made by a majority of the council relative to the intention of such members to approve the applications and bonds in question. This bill was verified by one of the persons upon whose relation it was filed in accordance with Chancery Buie 2. It was proper practice to support the bill by accompanying affidavits of persons having knowledge of the facts. This court said in Manistique Lumbering Co. v. Lovejoy, 55 Mich., at page 193 (20 N. W. 900):

“It is a cardinal rule in equity that a preliminary injunction should never be granted without the oath of some one, from his own knowledge, of such facts as will justify it.”

We are of opinion that the practice followed in this case satisfies that rule. In Allen v. Wayne Circuit Judge, 159 Mich. 612 (124 N. W. 581), it was said:

. “As the same (the bill) was based upon information and belief, it alone would not have justified the allowance of the writ.”

This clearly recognizes the practice that the bill may be supported by other proof.

Counsel for relators urge that the answer denied the material allegations of the bill, and for that reason the injunction should have been dissolved. The answer does not fully and frankly deny the material allegations of the bill. It is true it denies that the defendants “threatened” to approve of six applications to conduct retail liquor business in said village, but it nowhere states that they do not intend to do so, but proceeds to state that such course would not be a violation of the statute.

It is well-settled equity practice that if, after the answer comes in, there remains a reasonable doubt as to whether the equity of the bill is sufficiently negatived, the court may continue the injunction to the hearing. In continuing and dissolving injunctions, the. relative inconvenience to be suffered by the parties may be of controlling weight. For instance, although the answer denies all the equity of the bill, yet the injunction will be continued in case its dissolution might thwart the object of the litigation and render a subsequent victory by the complainant of no avail. 22 Cyc. p. 978, and cases cited; Attorney General v. Oakland County Bank, Walk. Ch. (Mich.) 90; Chicago, etc., R. Co. v. Kalamazoo Circuit Judge, 138 Mich. 246 (101 N. W. 525).

2. Upon.the main question involved, the learned circuit judge, in an opinion filed denying the motion to dissolve the injunction, has so clearly and fully stated the law of the case that we insert the same here:

“The attorney general, on the 14th day of this ■ month, filed in this court an information asking for a permanent injunction against the village trustees of the township of Pinconning, restraining them from approving the bonds of more than four retail liquor dealers in the village of Pinconning for the year commencing May 1, 1913, and asking a temporary injunction to issue pending the final hearing in the case, or until the further orders of the court. On the 21st day of this month the defendants filed an answer to said information, and made a motion for the dissolution of said temporary injunction. This motion has been fully argued by opposing counsel.
“The Warner-Cramton liquor act took effect in September, 1909. It provided for a reduction in the number of saloons until the number was fixed at one for each 500 inhabitants of the city, township, or village in which the dealer was situated. It fixed as the number from which the reduction should be started the number of retail liquor dealers in business in the designated municipality in April, 1909. In April, 1909, the number of retail liquor dealers in the village of Pinconning was six, and by the census of 1910 the population of the village of Pinconning did not exceed 750. Between May 1, 1909, and May 1, 1910, Mr. Smith, one of the retail liquor dealers in Pinconning, to whom a license was issued, died, and between May 1, 1910, and May 1, 1911, Mr. Green-leaf, another of said licensed retail liquor dealers, died.
“By the act of 1911 amending the Warner-Cramton law these two elements were incorporated into the liquor law; first, the approving council or board of trustees or township board was authorized without assigning any cause, to reject any offered bond; second, in case of the death of a licensee his administrator or executor was personally, as such, permitted to carry on the business for the remainder of the licensee’s year; no other privilege as to time or succession, however, being granted. In April, 1910, the trustees of Pinconning approved six liquor bonds for the ensuing year, and in April or May, 1911, the same board approved six liquor bonds for the year commencing May 1st, and in April or May of 1912, the same council approved six liquor bonds. * * *
“It clearly appears, from the information and answer, as matter of fact, that a majority of the members of the board of trustees of the village of Pinconning firmly believe that they have the legal right under the existing conditions to approve six retail liquor bonds, that notwithstanding the facts in this opinion enumerated, the trustees have for three years, since the Warner-Cramton act took effect, approved that number of such bonds each year, and that unless restrained by the temporary injunction of this court, they will approve all six retail liquor dealers’ bonds for the year commencing May 1, 1913. This situation presents for the consideration and decision of this court the question as to whether or not by reason of the death of Mr. Smith and Mr. Greenleaf the number of bonds which the village trustees may approve is reduced from six to four.
“Under the Warner-Cramton act a license issued to a retail liquor dealer is not property, and does not confer any property right; it is not assignable, and prior to the act of 1911 did not confer any right or privilege to an executor or administrator of a deceased licensee; such license in law is a mere permit, protecting its holder against legal attack for acts which, without the sanction of the license, would be illegal and punishable. 23 Cyc. pp. 110, 111, 155; People v. Schafran, 168 Mich. 324, 334 [134 N. W. 29]. Under these authorities the death of Mr. Smith terminated his license, and the death of Mr. Green-leaf terminated his license.
“It is the settled law of this State that the primary object of the Warner-Cramton act is to work a gradual reduction of saloons until that number shall not exceed one to each 500 inhabitants of the municipality in which the saloons are situate.- Rhode v. Wayne Circuit Judge, 168 Mich. 683 [131 N. W. 523, 135 N. W. 457]; Ploof v. Bangor Township, 168 Mich. 697 [134 N. W. 3, 135 N. W. 273].
“It is also a well-settled principle of statutory construction in this State that where a given act, or series of acts, show a primary object to be carried out thereby, the general intention of the legislature will be carried out, regardless of the circumstances that the correct rules of grammatical construction of the act, and the recognized general rules of statutory construction as applied to the act, and the standard rules of definition of words in the act might singly or together lead to a different conclusion. This principle is illustrated by the case of Drake v. Industrial Works, 174 Mich. 622 (140 N. W. 933), and Ploof v. Bangor Township.
“Considering that the death of Mr. Smith and of Mr. Greenleaf terminated and canceled two licenses, and left no power or authority in any one to apply for a license in place of either, the quoted rules would seem to force the conclusion that not more than four bonds could be approved in Pinconning for the year commencing May 1, 1913. But this question is most conclusively determined by the decision in Ploof v. Bangor Township, and the statements of the court in. that case herein-below quoted. The facts in issue in that case, and the question of statutory construction involved therein, and the decision reached and language below quoted, settle the question in this case, and require a decision of this court sustaining the temporary injunction. The court says (168 Mich, page 699 [134 N. W. 4]):
“ ‘It Is urged that a license can only be surrendered by the holder thereof discontinuing the sale of liquor at retail thereunder while it is still in force, and that the mere failure of the holder (or another) to apply for a renewal thereof at the expiration of the term does not amount to a “voluntary surrender.” We are unable to agree with this contention. A careful reading of the whole act (No. 291, Pub. Acts 1909), and particularly section 89 thereof, convinces us that the primary object of the legislature was to work a gradual reduction in the number of saloons until that number should not exceed one to each 500 inhabitants. * * * We have no hesitation in holding that where a license expires by limitation, and neither the holder thereof nor any other duly qualified persons make application therefor before the beginning of the ensuing license year, that license must be held to have been voluntarily surrendered within the meaning of the act, and it cannot thereafter be renewed until, under the provisions of the law, the population of the municipality has grown sufficiently to warrant its issuance.’

“On the rehearing (168 Mich, page 701 [135 N. W. 273]):

“ ‘Under the situation actually presented, we must decide whether a new applicant is entitled to take the place of the holder of a license, when the old holder declines, for any reason, to ask for a renewal thereof, where the ratio of saloons to population is greater than one to 500. * * * We are of the opinion that the total number of licenses to be granted must be held to have been diminished by one on account of the failure of an old holder to apply for a renewal; that as to that license it must be held to have been voluntarily surrendered, within the meaning of the act. We are led to this conclusion by a consideration of the evident purpose of the legislature, as evidenced by the whole act, which was to gradually work a reduction of the number of saloons until they reached the ratio fixed by the statute, and to effect this end without undue hardship to those already engaged in the business, It is, we think, clear that, but for this latter consideration, the legislature would have at once fixed the number of licenses to be granted at the statutory ratio.
“ ‘These conclusions do not necessarily mean that the legislature sought to, or did in fact, create a property right in the holder of a license to a renewal thereof. It means only that, so long as the holder of a license is able to meet the requirements of the licensing body, and move it to exercise its discretionary power of selection in his behalf, he shall be permitted to remain in the business, even though by so doing the number of saloons continues to be higher than the ratio fixed by tbe statute. Wbeu be fails to apply for a renewal, tben tbe number to be granted is reduced by one, if tbe number in force is greater than tbe statutory ratio. Any other construction would clearly prevent any sensible reduction in tbe number of saloons, to effect wbicb was, as we bave seen, tbe cardinal object of tbe legislation.’
“It follows from what has been said that the motion to dissolve the temporary injunction must be denied.”

That the death of a saloonkeeper constitutes a surrender of his license within the meaning of the Warner-Cramton act is in our opinion the proper construction of that act.

In the absence of legislation to the contrary, upon the death of the licensee, the privileges conferred by the license do not pass to or vest in his personal representatives, nor are they authorized to continue the business at retail. The right to carry on the business is in the nature of a personal license to the party who complies with the statute, and it cannot be said to pass over to the administrator at the death of the party holding it. 23 Cyc. p. 155; People v. Sykes, 96 Mich. 452-454 (56 N. W. 12); Fuchs v. Grass Lake Common Council, 166 Mich. 569 (132 N. W. 96).

By the provisions of Act No. 170, Public Acts of 1911 (2 How. Stat. [2d Ed.] § 5094) (which, however, does not apply to this case because it did not take effect until after the two deaths here involved), the administrator of a deceased licensee was “privileged to continue in the business under the license of the deceased licensee for the remainder of the year, upon filing a new bond.” In our opinion this amendment establishes two things: First, it recognizes that prior to its adoption a license was surrendered by the death of a licensee; second, it adds a period of grace to the life of the license, upon certain conditions. At the end of the year for which the license was granted, however, the license expires, and no authority is vested in the administrator to apply for a renewal of the license. There being no one in a position to apply for and receive a renewal of the license as a representative of the deceased. licensee, that license- must therefore be considered as surrendered, or given up.

Under the statute then in force (act of 1909), the death of Mr. Smith and Mr. Greenleaf terminated their licenses. These were not involuntary surrenders in the sense that the licenses were taken away upon convictions of violations of the liquor law, but were voluntary surrenders within the meaning of the Warner-Cramton act, in that the licensees failed to apply for and were unable to accept renewals.

What is the meaning of the phrase “voluntary surrender” as used in this act? Does it mean that the holder of a license must voluntarily come forward and by an expression of his will let the licensing authorities know that he no longer intends to act under the license? Or does it mean that, unless the licensee does actually come forward, and is in a position to claim and hold a license for the ensuing year, he will be considered, in the eye of the law, to have voluntarily surrendered his license? A reference to Webster’s and the Century Dictionary shows that the word “voluntary” means “produced in or by an act of choice,” and it also means “acting of itself,” or “spontaneous.” Taking into consideration the object of the act, as heretofore construed by us, it should be held that the surrenders here involved, occurred “acting of themselves,” or “spontaneously,” when certain conditions existed, or certain events occurred, or failed to occur. This construction is not only consistent with the language of the act, but is in accord with the purpose of the act.

3. That the attorney general is a proper party to proceedings to prevent the violation of a law, by public officers, and to institute proceedings of this nature,' see Attorney General v. City of Detroit, 26 Mich. 263; Attorney General v. City of Detroit, 71 Mich. 92 (38 N. W. 714); Attorney General v. Board of Auditors of Wayne County, 73 Mich. 53 (40 N. W. 852); McMullen v. Ingham Circuit Judge, 102 Mich. 608 (61 N. W. 260); Village of Wolverine v. Cheboygan Circuit Judge, 162 Mich. 713 (127 N. W. 744).

We think that the bill stated a case for equitable relief. We find no occasion to interfere with the action of the circuit judge, and the writ of mandamus is denied, with costs to respondent.

Steere, C. J., and Moore, McAlvay Brooke, Kuhn, and Ostrander, JJ., concurred with Stone, J. Bird, J., concurred in the result.