author: Grant, J.

text:
    GOLDEN STAR LODGE NO. 1 v. WATTERSON.
    1. Insurance — Fraternal Beneficiary Associations — By-Laws —Revocation of Charter.
    The revocation of the charter of a subordinate lodge of a fraternal beneficiary association without giving an opportunity for a hearing, for the reason that the subordinate lodge failed to convict a member of embezzlement, is arbitrary and illegal.
    2. Same — Exhaustion of Remedies — Mandamus.
    Although a member of a beneficiary association is required to exhaust his remedies given by the rules of the society before resorting to the courts, a lodge whose charter has been' revoked is not bound by such requirement when no provision is made in the charter of the association for an appeal by a subordinate lodge, and the appeal of a member is not made final, and when admission of its members to other lodges is not a matter of right and involves the payment of additional fees.
    3. Same — Mandamus—Unincorporated Society.
    Mandamus lies to compel the officers of a benefit association, organized under 2 Comp. Laws, chap. 212, to vacate an order revoking the charter of a subordinate lodge without cause and without a hearing.
    4. Same — Equitable Remedy — Mandamus.
    In such case an injunction would not lie because the wrong had been accomplished.
    5. Same — Legal Remedy — Damages.
    The legal remedy for damages being uncertain, indefinite, and inadequate, mandamus is the only sufficient remedy.
    6. Fraternal Beneficiary Associations — Powers.
    Associations organized under 2 Comp. Laws, chap. 212, may sue and be sued. 3 Comp. Laws, § 10025; Act No. 175, Pub. Acts 1907.
    7. Mandamus — Nonresident Respondents — Domicile of Fraternal Beneficiary Association.
    Officers of a fraternal beneficiary association organized in Michigan, who claim to be nonresidents of the State but who submit by an appearance to the jurisdiction of the courts, may be required by mandamus to recognize the rights of a subordinate lodge.

      8. Same — Parties—Joinder.
    It is proper to join as defendants in mandamus the officers of such society who have duties to perform in maintaining the legal rights of the petitioner.
    Certiorari to St. Clair; Law, J.
    Submitted October 5, 1909.
    (Calendar No. 23,489.)
    Decided December 10, 1909.
    Mandamus by Golden Star Lodge, No. 1, of the Ladies’ Auxiliary to the Brotherhood of Railroad Trainmen and others to compel Ray N. Watterson, grand mistress, and Augusta M. Statzer, grand secretary and treasurer, to vacate an order revoking relator’s charter. An order granting the writ is reviewed by respondent on writ of certiorari.
    Affirmed.

      John B. Mollwain, for relators.

      Cady & Crandall, for respondents.
   Grant, J.

The Grand Lodge of the Ladies’ Auxiliary of the Brotherhood of Railroad Trainmen is a fraternal beneficiary society, organized under Act No. 119, Pub. Acts 1893. The relator in this case, Golden Star Lodge No. 1, was the first lodge organized under its charter. The grand lodge adopted a constitution of 50 sections, and adopted by-laws and general rules to the number of 80 sections. The organization extends into other States. Among its officers is the grand mistress, who, during the transactions covered by the record, held that office. Section 45 of the constitution provides: “The charter of any subordinate lodge may be suspended or revoked by the Grand Mistress for any of the following reasons ” — specifying the reasons; and among them is that of “improper conduct.” It is unnecessary to state the other reasons, as they have no bearing upon the controversy. The relator here is composed of 52 members, each of whom has a certificate of insurance to the amount of $500. The constitution provides also for a grand secretary and treasurer, and this office was held by the respondent Augusta M. Statzer. One Amy Downing, a member of the relator, had been, for several years, the grand secretary and treasurer of the grand lodge. No place is fixed by the constitution for the headquarters of the grand lodge, but the home of the grand lodge officers has been its customary headquarters. Prior to Mrs. Downing’s removal, the headquarters had been at Port Huron, where is located the relator.

Mrs. Downing was charged with the defalcation of funds intrusted to her to the amount of 13,242.23. An examination and an audit, by the grand executive board, of her accounts, showed a deficit of the above amount. This board reported that she either knowingly, negligently, or wilfully failed to account for the same. She was thereupon removed from office.

On November 17, 1908, one Minnie Stadtlander, mistress of Lodge No. 261, Aurora, 111., sent a communication to relator, charging Mrs. Downing with defrauding the grand lodge. As required by the rules of the order, relator appointed a committee of five to investigate the charge. The committee reported to the relator that they found no evidence of fraud on the part of Mrs. Downing, meaning, as they expressed it, that “she had no guilty intent.” Mrs. Downing was thereupon acquitted by a vote of the members of the relator. Upon the record of this meeting appears the following:

“Sister Rigney asked permission of the lodge to publish their findings in the case they had just tried. Moved by Sisters Gee and Sutherland that permission be granted. Carried. After some discussion it was decided to let it stand as it was, and not give anything for publication.”

This action of the relator was published in a newspaper at Port Huron. The action of the relator acquitting Mrs. Downing, with a clipping from the newspaper announcing the action, was sent to the respondent Mrs. Watterson.

On February 17, 1909, Mrs. Watterson sent a communication “to the officers and members of Golden Star Lodge No. 1,” notifying them that the charter of Golden Star Lodge No. 1 would be revoked for failure to convict Mrs. Downing, and for violating the rules of the order in publishing an account of her acquittal. . This communication further stated:

“ Golden Star Lodge No. 1 is hereby given opportunity, in. accordance with section 45, Constitution Grand Lodge, to answer the within charges before March 1, 1909.”

The relator answered this communication, alleging that the trial was in strict accord with the rules of the order, and that the finding was not published by its authority. On March 1, 1909, respondent Watterson, as grand mistress, sent a communication to the relator revoking its charter for failure to convict Mrs. Downing, and because it had failed to give excuse “ for publishing the report of the committee or proof that it was not published by the members of Golden Star Lodge No. 1.” Meanwhile the respondent the grand treasurer had refused to receive the relator’s dues, evidently for the reason that its charter had been revoked, and it was no longer a member of the order. Thereupon the relator filed its petition in the circuit court for the county of St. Clair to compel the re. spondent Watterson to set aside the order revoking its charter and compel the respondent Statzer to receive the assessments of its members, and that the relator be restored to its rights and benefits in the grand lodge. An order to show cause was issued, the respondent answered, issues were framed, testimony taken, and the writ issued, and the case is now before us for review upon certiorari.

Respondents object to the order of the court for the following reasons:

“ (1) Because the action of the Grand Mistress in revoking the charter of Golden Star Lodge No. 1 was in accordance with the constitution, laws, and rules governing the society.

“(3) Because the members of Golden Star Lodge No. 1 are required to exhaust their remedies within the order before appealing to the courts. This they have not done. They might have: (a) Appealed to the grand lodge. (5) Applied for a dispensation transferring them to a sister lodge.

“(3) Because a writ of mandamus will not issue against officers of an unincorporated society.

“ (4) Because a writ of mandamus will not issue out of our courts against citizens of another State.

“ (5) Because the order is erroneous, in that it authorizes the issuance of a writ of mandamus directing two separate and distinct officers to perform certain and distinct duties which are not joined in character.”

The failure of the relator to convict Mrs. Downing constitutes no ground for revoking the charter. This is conceded in respondents’ brief. The member convicted has an appeal to the grand lodge, but there is no provision for an appeal in case of acquittal. Rul® 2 of general rules governing subordinate lodges provides:

“ Secret work and all business of the lodge shall bo kept inviolate; and any member who shall reveal any of the secrets of this lodge shall, upon conviction thereof, be expelled, suspended, or reprimanded, as the lodge may determine.”

The learned circuit judge held that this rule had no relation to this issue. He furthermore found, as a matter of fact, that there is no testimony in the record to show that any particular member of the lodge thus violated this rule of secrecy. There was testimony upon the subject, and we will not review the finding of the fact made by the circuit judge. It follows that both reasons for revoking the charter have no foundation in fact. The proceeding on the part of the grand mistress was summary, and without any attempt at a hearing. It is true she accorded the relator the right to answer her letter of notification. She received the answer, which denied the charges made. Without giving a chance for argument, proofs, or hearing, she assumed authority to revoke the charter. The only defense to this action made by her attorneys is that the charter confers the right to this summary procedure. It is contrary to every principle of justice and fair play. Such authority would result in conferring upon the grand mistress the arbitrary power to revoke the charter of any subordinate lodge, without any good reason, and without a hearing.

There is no provision in the charter of this society for an appeal by a subordinate lodge. The only appeal provided is by an aggrieved member; and, even in that ease, the charter does not make the determination of the appellate tribunal final. Consequently Fillmore v. Knights of Maccabees, 103 Mich. 437 (61 N. W. 785), and like cases have no application to the facts of this case. It is, however, insisted that it was the duty of the members of the relator to apply for admission to some other subordinate lodge; but such applicant cannot become a member of some other lodge as a matter of right. Four black balls will defeat her election; and, besides, she is required to pay a fee of 50 cents as a condition to admission. The law will not leave property rights of members to such an uncertain remedy. The 52 members composing the relator are one body of individuals, just as much as are the stockholders of a corporation. Their organized body is authorized to represent them in controversies which involve the rights of all. In these controversies they have chosen certain officers to speak for them and to protect their rights. One suit can settle the rights of all; but respondents’ contention would leave each member to fight her own battle. I find no authority sustaining this contention.

It is next insisted that the writ of mandamus will not issue against officers of an unincorporated society. The grand lodge and the relator are organized under the laws of this State, above cited. The grand lodge insures its members by and under the authority of the State, and by no other right. It cannot organize under the laws of the State, and then deny to its members the right of the State, by its proper officers and tribunals, to compel those incorporated under it to perform the duties imposed upon them by law, and to restrain their illegal action. The act (section 1) declares that fraternal benefit associations organized under it are corporations, societies, or voluntary associations organized and carried on for the sole benefit of their members and their beneficiaries, and not for profit. To deny the wronged members of this association the remedy by mandamus would in effect deprive them of any remedy. The relator cannot proceed by injunction, for the wrong has been accomplished. Neither the relator nor its members can proceed in an action at law for damages, because the organization provides no funds for the payment of such damages, and the damages are too indefinite to be estimated. Lavalle v. Société St. Jean Baptiste de Woonsocket, 17 R. I. 680 (24 Atl. 467, 16 L. R. A. 392). The only remedy left is the restorative remedy by writ of mandamus, which reinstates the member and does justice to all concerned. Lavalle v. Société St. Jean Baptiste de Woonsocket, supra; Allnutt v. Subsidiary High Court A. O. F., 62 Mich. 110 (28 N. W. 802); Attorney General v. Express Co., 118 Mich. 682 (77 N. W. 317). Such organizations are endowed by the law with a legal entity, and may sue or be sued. Section 10025, 3 Comp. Laws; Act No. 175, Pub. Acts 1907.

Important and tangible property rights are involved. By the act of" the grand mistress the entire membership, comprising the" relator, is deprived of $26,000 of insurance, unless by grace its members may be admitted into other lodges. In Burt v. Grand Lodge F. & A. M., 66 Mich. 85 (33 N. W. 13), no property rights were involved, and the court found that the relator, Burt, was not, and never had been, a member of the grand lodge, or of the lodge that- originally undertook to expel him. Such cases do not affect the question in the instant case.

Respondents are citizens of another State, and it is urged that the writ of mandamus will not issue against them. Migratory headquarters of an association like this, organized under the law of Michigan, cannot control the jurisdiction of the courts when the rights of the citizens of Michigan are involved. The domicile of the association, not the domicile of its officers, controls the jurisdiction of the courts. Under the respondents’ contention, an aggrieved subordinate lodge in Michigan, the home of the association, or one of its members, would be compelled to resort to the courts of California of Tesas if the grand mistress of the order should be located and have her home in either of those States. It appears that the grand lodge had made no provision for a State agent upon whom service could be made. Service of the order to show cause was therefore made, under a proper showing, upon another subordinate lodge located in St. Clair county. The validity of this service is not contested. The respondents, it appears, were notified of such service and voluntarily appeared and answered. They, therefore, submitted to the-jurisdiction of the court. Further discussion is unnecessary.

The last contention is that the respondents were improperly joined in this proceeding, and therefore the suit must fail. It is claimed that the respondents were acting in unison, and if they were, they were properly joined. Undoubtedly the action of the grand treasurer was based upon the order of the grand mistress in revoking the charter. Each had a duty to perform. The action of the grand mistress being illegal, it was the duty of the grand treasurer to receive the assessments which relator was legally obligated to pay. The obj ection is purely technical, and does not affect the substantial rights of the parties. It was entirely proper to make all the officers of the defendant parties who had a duty to perform in maintaining the legal rights of the relator.

The learned circuit judge wrote an elaborate opinion, setting forth in full the correspondence between the parties, the facts found, and his legal conclusions. Without publishing it, we refer to it, as those who have similar questions will find it a valuable opinion.

The judgment is affirmed.

Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.

       The following portions of the opinion of the circuit judge above referred to are inserted for reference. — Reporter.
      “ ** * * The first legal question arising from this record is as follows:
      “Was the action of the grand mistress in attempting to revoke the charter of Golden Star Lodge No. 1, and the action of the grand secretary and treasurer in refusing the money sent to pay assessment No. 105, in accordance with the constitution, laws, and rules governing the society?
      “ Should this question properly be answered in the affirmative, it follows that relator’s petition must be dismissed; if in the negative, it will then be necessary to decide whether relief can be granted in this mandamus proceeding.
      “From the letter of respondents to Golden Star Lodge No. 1, of February 17th, and from the testimony taken in this court, it appears that respondents attempted to revoke the charter of Golden Star Lodge No. 1 for the following reasons:
      “ (1) Because the committee appointed to try Amy A. Downing failed to find her guilty of the charge made against her by Minnie • Stadtlander.
      “ (2) Because the lodge concurred in the decision of the committee.
      “ (3) Because the lodge acted on and passed a resolution authorizing the publication of the decision of the committee, resulting in its publication in the Daily Herald on January 8, 1909.
      “It has been held that a grand lodge of a mutual benefit society ■ can only enforce a forfeiture of the rights of a subordinate lodge and its members by a strict compliance with the laws of the order. Grand Lodge United Brothers of Friendship v. Williams (Tex. Civ. App.), 108 S. W. 195. This seems to be a principle of law founded on equity and justice. It follows, of course, that the officers of a grand lodge must be bound by the same strict rules as the body itself. I have not been able to find any law or rule of the grand lodge of this association that gives its grand mistress power to revoke the charter of a subordinate lodge because a committee fails to convict a member against whom charges have been made, or because the subordinate lodge concurs in such action of the committee. Where the by-laws of a society provide that an accused member shall be tried before a jury chosen from the members of the local assembly, but give no power to the superior body to direct a local assembly to expel one of its members, the superior body cannot expel a local assembly for refusing to expel one of its members. Holomany v. National Slavonic Society, 39 App. Div. 573 (57 N. Y. Supp. 720).
      “ In revoking the charter of the subordinate lodge the respondent grand mistress claims to have acted under section 45 of the constitution of the grand lodge. This section confers no such power. The respondent grand mistress also claims that the subordinate lodge violated rule 2 governing subordinate lodges. Said rule provides that all business and secret work of a lodge shall be kept inviolate, and provides that any member who reveals any of the secrets of the lodge shall, upon conviction thereof, be expelled, suspended, or reprimanded, as the lodge may determine. This rule has no relation to the issues here involved; and, if it had, there is no testimony in this record tending to show that any particular member, or that the lodge itself, is guilty of the violation of any rule prohibiting the disclosure of the business or secrets of the lodge. In fact, the grand mistress had the evidence before her that the lodge had informally decided not to permit the publication of the decision acquitting Mrs. Downing.

        “ In the mandate revoking the charter of Golden Star Lodge No. 1, it is provided that:
      “ ‘ No. 1 is hereby given opportunity in accordance with section 45, Constitution Grand Lodge, to answer the within charges before March 1, 1909.’
      “No day or place is fixed for a hearing. This is no more than saying to the subordinate lodge:
      “ ‘ If you have any defense to make, you may send me your documents. I have already revoked the charter of your lodge, but if you have anything to say about my official action already taken, I will hear you.’
      “This record shows that any answer to the charges made by the grand mistress would have been without any effect, and any appeal to her by any member of Golden Star Lodge No. 1 a vain and useless proceeding. On March 4th, or about that time, we find both respondents refusing to receive any communication through the mail from the subordinate lodge. The opportunity given the lodge to answer the charges by the grand mistress is not in accordance with section 45 of the constitution of the grand lodge. After receiving the order of February 17th from the grand mistress, the officers of Golden Star Lodge No. 1 sent her a full copy of the records of the meeting at which she claimed the lodge authorized the report of the committee to be published; this was accompanied with a denial that the charge was true. The grand mistress made no reply to this communication.
      “No other conclusion can be reached than that the action of the grand mistress in revoking the charter of the subordinate lodge is not authorized by the laws of the society. It was not a mere erroneous proceeding on the part of that official, but an arbitrary usurpation of power, which should not be allowed to affect the legal status of Golden Star Lodge No. 1, or deprive any of its members of their property rights in their benefit certificates. While the prior relations between the respondent grand mistress and some of the members of the lodge, particularly Amy A. Downing, may not have been pleasant, and may have been of such a nature as to arouse resentment in her, still she had no right to permit a spirit of violent prejudice to control her official action and to result in a ruling that is illegal as well as oppressive. The action of the grand mistress in revoking the charter of the subordinate lodge, prior to a hearing, the action of the grand secretary and treasurer m refusing to receive assessment No. 105, and the action of both in refusing to receive, open, and consider communications from the treasurer of the subordinate lodge, were contrary to natural justice, in violation of the rules and laws of the society, and done in bad faith.
      “ Is the remedy by mandamus sought by relators in this court an appropriate remedy ? The rule is well established that courts will not interfere with the action of an incorporated or unincorporated benefit society in enforcing its discipline, unless such action is contrary to natural justice, or in violation of the laws and rules of the society, or done mala jides, and then only after the party complaining has gone as far as he can go, and done as much as can be done to obtain the relief sought within the society. It has been found that the action of the respondent grand officers in the premises was contrary to natural justice, contrary to the laws and rules of the society, and mala Jides. Have the relators done all they could do within the society to obtain the relief which they here seek ?
      “What relief is given them by the laws and rules of the society ? Section 67 of the constitution of the subordinate lodge reads as follows:
      “ ‘ Any officer or member feeling that an injustice has been done her in a trial by this lodge may appeal to the grand mistress, provided such appeal is made in writing, and within thirty days from date of verdict rendered. A copy of such appeal shall be furnished the secretary of the lodge and by her entered in the records of the trial. The appeal, together with a copy of the charges preferred, testimony offered, and verdict rendered, shall be forwarded to the grand mistress under lodge seal. If the sister considers that the grand mistress’ decision is unjust she may appeal from that decision to the grand lodge, whose decision is final. In case of appeal from decision of grand mistress, by a lodge or member, notice of same shall be given that officer within thirty days from the date of decision rendered, and a certified copy of proceedings must be forwarded under seal of lodge to grand secretary, who will present the same to the next meeting of the grand lodge.’
      “ Section 67 of the constitution of the subordinate lodge does not provide for an appeal in a case like the present in any very clear or plain terms. The part relating to an appeal to the grand mistress is preceded by the words ‘ any officer or member feeling that an injustice has been done her in a trial by this [subordinate] lodge, may appeal to the grand mistress.’ No one is complaining to which this language can apply. Further along in this section the following language is found: ‘ In case of appeal from decision of grand mistress by a lodge or member, notice of same’ shall be given, etc. If the right last set forth means an appeal from the ruling of the grand mistress, after an appeal to such officer by ‘ any officer or member feeling that an injustice has been done her,’ this section would give no right of appeal in this case. If the last part of the section quoted is intended to give a lodge or a member thereof a general right of appeal from any ruling of the grand mistress, then it would apply after an appeal had been first taken to the grand mistress. If this section is applicable, as respondents contend it is, notice of appeal should have been given to the grand mistress within 30 days from the date of the decision appealed from, and a certified copy of the proceedings should have been forwarded to the grand secretary.
      “The date of the decision of the grand mistress was February 17th. Within less than 30 days both respondents refused to open any communication from the officers of Golden Star Lodge No. 1. Soon after this Mary Harris, the treasurer of the subordinate lodge, wrote both respondents, asking for an explanation of such action, but received no reply. By the action of the respondents they rendered it impossible for relators to comply with section 67 in taking an appeal, for they refused to the subordinate lodge the benefit of any communication whatever with them as officers of the grand lodge, and rendered it impossible to file with them any appeal papers.
      “No appeal is required if it appears such appeal would be useless. Schrempp v. Grand Lodge A. O. U. W., 70 Mo. App. 456; Harris v. Wilson, 86 Mo. App. 406; Schou v. Sotoyome Tribe No. 12, 140 Cal. 257 (73 Pac. 996).
      “ If an appeal is defeated by the nonaction of an officer of the supreme body in failing to give the notice of a decision, as required by the laws of the order, the complaining member is entitled to seek relief in the courts. Steiner v. Supreme Court I. O. F., 149 Mich. 567 (113 N. W. 15); Supreme Council Order of Chosen

        Friends v. Forsinger, 125 Ind. 58 (25 N. E. 129, 9 L. R. A. 501, 21 Am. St. Rep. 196).
      “ It is argued that every member of Golden Star Lodge No. 1 has an opportunity to save her property interests in her benefit certificates by seeking a dispensation to join some other lodge, under section 47 of the constitution of the grand lodge, which reads as follows:

        ‘“A member of a defunct lodge maybe granted a dispensation to join some other lodge upon application to the grand secretary and treasurer. Such dispensation shall be treated the same as a card of withdrawal, when presented to a lodge for admission.’
      “It appears by this section that the granting of the dispensation is discretionary with the grand mistress. It also appears in the testimony that four adverse votes only are necessary to exclude an applicant for membership in a subordinate lodge. It also appears that under the rules of the society a person has to be a member of a subordinate lodge, or her rights under a benefit certificate are entirely canceled. Individual members of Golden Star Lodge No. 1 cannot become members of- other subordinate lodges as a matter of right, and hence are not barred from seeking relief in the courts by reason of any rights that might possibly be granted them under said section 47. Holomany v. National Slavonic Society, 39 App. Div. 573 (57 N. Y. Supp. 720).
      “There is no law or rule of the Ladies’ Auxiliary to the Brotherhood of Railroad Trainmen which attempts to prohibit recourse to courts of law. The prohibition of such a right cannot rest on custom or the good faith of any of the parties. Wuerthner v. Benevolent Society, 121 Mich. 90 (79 N. W. 921, 80 Am. St. Rep. 484).
      “ A distinction is made in many courts between a mandatory and a permissive right of appeal in mutual benefit insurance cases. In this case the right of appeal, if it exists at all, is only permissive. Bauer v. Knights of Pythias, 102 Ind. 262 (1 N. E. 571); Wuerthner v. Benevolent Society, supra.

        “ The grand lodge of this order, as well as Golden Star Lodge No. 1, is a voluntary association. It is argued by relators that a writ is not sought against a voluntary association, but against two officers, and hence the rule established in many jurisdictions, to the effect that courts will not control the action of a voluntary association by mandamus, has no application. However, to control the action of officers of an association, whether incorporated or voluntary, is in effect to control the action of the association itself. I do not think there is much force in this argument of relators. Were the grand lodge and the subordinate lodge incorporated bodies, there would be no doubt of the right of relators to the relief asked.
      “In Weidenfeld v. Keppler, 84 App. Div. 235 (82 N. Y. Supp. 634), it is said:

        “ ‘With the exception, of California, no case is cited which will support the contention that a writ of mandamus has ever been allowed as against a voluntary incorporated association to restore rights of membership.’
      “In many jurisdictions the writ of mandamus has been allowed to issue to restore rights of membership in incorporated associations where property rights are involved, and I think such is the rule in this State.
      “In Lavalle v. Société St. Jean Baptiste de Woonsocket, 17 R. I. 680 (24 Atl. 467, 16 L. R. A. 392), a Rhode Island case, it was held to be the proper remedy, and a demurrer to a declaration, in a suit for damages for unlawful and wrongful expulsion, was sustained.
      “ The principal legal question in this case is whether mandamus is an available remedy by means of which relators can compel a restoration to their rights, of which they have been wrongfully deprived. This question involves a consideration of the nature of mandamus, the proposed remedy, as well as the legal status in Michigan of an unincorporated mutual benefit society. In this State mandamus is a civil action. It is no longer regarded as a mere prerogative writ, and is considered as an ordinary process in cases to which it is applicable. Woodworth v. National Bank, 144 Mich. 338 (107 N. W. 905).
      “A fraternal benefit society, incorporated or unincorporated, issuing policies of insurance on the lives of its members in favor of beneficiaries named in such policies, can no longer be considered as a private institution, or the contracts of insurance made by it as mere private contracts. The business of life insurance is a public one, which affects the welfare of millions of our people. The fund accumulated by regular contributions of the members of benefit societies is a trust fund, in which every one who has paid into it has a vested property interest. The right under one of these polioies is a valuable property right. The member acquires a status. His relation to the association is something more than that created by an ordinary contract. The enforcement of the right of membership, the right of the members of a subordinate lodge to maintain its existence against the wrongful act of a grand lodge or its officers, is not comparable to the enforcement of the obligation of private corporations, as this right is defined in the recent case of Booker v. Medical College, 156 Mich. 95 (120 N. W. 589).
      ‘ ‘ The legislature of this State has enacted statutes which provide under what conditions a benefit society can transact business. The Ladies’ Auxiliary to the Brotherhood of Railroad Trainmen is organized under, and dependent upon, Act No. 119 of the Public Acts of 1893, as amended. Section 1 of this act as it now stands declares a fraternal beneficiary association to be a corporation, society, or voluntary association having a lodge system, with ritualistic form of work and a representative form of government, formed or organized and carried on for the sole benefit of its members and their beneficiaries, and not for profit. This section provides as to the insurance associations under it may transact, how funds shall be raised, to whom benefits may be paid, and that such association shall be exempt from the insurance laws of this State, except as provided in the act, and that death claims shall be invalid. Section 3 relates to the number of persons required to form an association under the act. Section 3 states that all associations organized under the act shall comply with the provisions of the act regulating annual reports and designating the commissioner of insurance as the person upon whom process may be served; provides where and how suits may be brought against such association, and how service may be made upon them, and when costs may be awarded against them. Section 4 relates to the methods by which similar associations organized in foreign jurisdictions may be permitted to do business within this State. Section 5 provides for annual reports to the commissioner of insurance; for the issuance each year of a license to such associations to continue business, without which license the association has no authority to do business within the State; for the method and manner of making of the reports; as to just what they shall contain, and that they shall, in substance, be published in the annual report to the commissioner of insurance. Section 6 provides that any such association, not having its principal office within the State, shall appoint the commissioner of insurance as its attorney upon whom process may be served. Section 7 provides that such official shall issue a permit to any association which has complied with the law. Sections 8, 9, and 10 provide for the incorporation of such associations as desire to become incorporated. Sections 11, 13, 13, and 14 provide a method by which subordinate lodges may become incorporated. Section 15 exempts any money to be paid by any association organized under the aot from attachment or garnishment for any liability of the certificate holder of beneficiary. Section 16 provides for the criminal punishment of any person who shall wilfully make false or fraudulent statements relating to matters therein described. The remaining sections of the act relate to matters which show that the State has taken complete jurisdiction and control over associations organized under the act, whether incorporated or unincorporated.
      “ While the grand lodge of this order is not incorporated, it has been brought completely under the control of this State by the statutes mentioned. It not only ‘ enjoys privileges and exercises powers expressly granted by the State,’ but its duties are public ones, the performance of which the State has commanded, the omission to perform which the State has prohibited. Positive law should govern the relation of this association to its members as well as to the State. The association is made ‘ a distinct legal entity.’ It possesses attributes of perpetual succession, and the capacity ‘ of suing and being sued.’ Of what use would all these statutory provisions be, governing the relation of the society to the State, if the society is permitted, not only to break an existing contract, but to wholly destroy the existing status of the members of the subordinate lodge ?
      “ I think the restorative remedy here asked for is the only adequate óne, and the mandamus prayed for should issue.”


source: Caselaw Access Project

license: Public Domain

text:
    ARMOUR & CO. v. STATE DAIRY AND FOOD COMMISSIONER.
    1. Food — Adulteration—Statutes—Sausage.
    The sale by retailers to consumers of sausage made with the addition of cereal, and not labeled so that the public may know of the combination, although the product is properly labeled in the original package purchased at wholesale, is illegal under Act No. 193, Pub. Acts 1895, 3 Comp. Laws, § 5010 et seq., being an adulteration within the prohibition of the act.
    3. Same — Sausage—Words and Phrases — Pure Food Laws.
    Sausage made of chopped pork, beef and veal with a filler of cereal, seasoned with salt and spices, and mixed with pure water, is not unwholesome or injurious to the health, and may be sold as a mixture or compound within the meaning of the statute, when labeled in such a manner as to show the consumer that it contains cereal.
    3. Same — Sausage—Words and Phrases.
    Sausage is an article of food composed of meat, salt, and spices.
    4. Statutory Construction — Statutes — Ordinary and Trade Meanings.
    In construing such statute the court will adopt the meaning of the word sausage"Vhich is generally understood and intended, not a meaning peculiar to the trade or to certain manufacturers.
    Appeal from Ingham; Wiest, J.
    Submitted October 7, 1909.
    (Docket No. 20.)
    Decided December 10, 1909.
    Bill by Armour & Company against Arthur C. Bird, • State dairy and food commissioner, and others, to restrain defendants from interfering in the sale of sausage in the State. From a decree dismissing the bill, complainant appeals.
    Modified.

      Gore & Harvey (Thomas, Cummins & Nichols, Ralph W. Shauman, and A. R. Ur ion, of counsel), for complainant.

      John E. Bird, Attorney General (Charles W. McGill and George 8. Law, of counsel), for defendants.
    Complainant is a corporation organized under the laws of the State of New Jersey, with headquarters in Chicago, Ill. It is, and has been for many years, engaged in the manufacture and sale of fresh and cured meats and sausage and other meat products. Its sale of these products, including sausage, extended over the entire State of Michigan.. In the year of 1906 the defendant the dairy and food commissioner caused chemical examination to be made of the various brands of sausage sold within the State, including that of the complainant, and found that many of them contained cereals and a percentage of water greater than that found in meat alone. On January 16, 1907, he issued the following circular:
    “ Gentlemen: A growing tendency on the part of manufacturers of sausage, bolognas, and similar'meat products; to use various preparations and substances foreign to the legitimate ingredients necessary to the manufacture of these articles of food, the said preparations being commonly known and designated as fillers, binder, etc., has prompted this department to make a thorough investigation into such sausages. This has been done for the purpose of ascertaining the true reasons for the widespread practice of using the preparations mentioned.
    “The results obtained from the investigation as carried on in the department laboratory lead to but one conclusion, viz., that the addition of so-called binders and fillers to meat products is primarily for the purpose of substituting in part an inferior or cheaper substance for a legitimate ingredient, thereby lessening the cost of manufacture.

      “The first and second subdivisions of section 5012 of the Compiled Laws provide that an article shall be deemed to be adulterated within the meaning of the act — first, if any substance or substances have been mixed with it so as to lower or depreciate or injuriously affect its quality, strength or purity; second, if any inferior or cheaper substance or substances have been substituted wholly or in part for it.
    “Basing its ruling on the subdivisions of section 5012 above cited, this department holds that the addition of the so-called binders and fillers mentioned to meat products is contrary to law. From and after this day manufacturers and dealers will be held to a strict account for each and every violation.. Provided, however, that dealers within the State are given until January 25, 1907, to dispose of stocks on hand. “ Yours very truly,
    “A. C. Bird,
    “State Dairy and Food Commissioner.”
    This circular was sent to all the meat dealers of the State, and a copy sent to the complainant at Chicago. Those employed under the direction of the defendant food commissioner also verbally informed the retail dealers of the State that they would be prosecuted if they did not comply with the above order.
    The trade of the complainant in Michigan was very large, and the effect of this circular, and the threats of prosecution verbally made, naturally tended to decrease very largely the complainant’s sales in this State, and to cause it considerable loss. Therefore, on November 18, 1907, complainant filed its bill of complaint in this cause, setting forth the above circular and threats on the part of the defendants, the injury to its business, that defendants were acting illegally in their conduct, and praying that they be restrained from—
    “Declaring in any manner, orally or in writing, to the customers and patrons of your orator, or to the people of the State of Michigan, that the sausages and other meat products of your orator containing cereal manufactured and sold, and offered for sale in the State of Michigan, are sold and offered, for sale in violation of any statute of the State of Michigan.”

      The bill alleges that the sausage manufactured and sold by the complainant bear labels showing their respective ingredients in accordance with the standard fixed by the laws of the United States and the regulations of the department of agriculture thereunder; a sample of said labels being set forth in the bill and reading as follows:
    ARMOUR’S
    “DEVONSHIRE”
    Farm Style
    SAUSAGE MEAT.
    Made from the Meat of Hams and Selected Young Pork. Prepared with Choicest spices and cereals.
    Armour & Company.
    U. S. Inspected and passed under the Act of Congress of June 30, 1906.
    Establishment 2 A.
    An answer was duly filed denying that the sausage manufactured and sold by the complainant in this State containing cereals and water is a wholesome product, or that it is manufactured in accordance with Act Cong. June 30, 1906, chap. 3915, 34 Stat. 768 (U. S. Comp. Stat. Supp. 1909, p. 1187), and the regulations of the United States department of agriculture, or that it is a compound or mixture within the meaning of the proviso of section 3, Act No. 193, Pub. Acts 1895, as amended. The answer admits that the sausage of the complainant is shipped into this State in packages, or boxes, labeled with the trade-name of the sausage, and the words “with cereal,” but alleges that the consumer or purchaser of the retail dealer is in no way advised, when he purchases, that the sausage contains cereal, or cereal and added water, unless such purchaser purchased the entire package shipped to the dealer, and that even then he was not informed that the product contains added water.
    Both the bill and answer contain other allegations which we deem it unnecessary to state. Issue was joined, proofs taken in open court and by deposition, and, after a full hearing, decree was entered dismissing the bill. The statute (2 Comp Laws, § 5012) under which defendants claim to justify their action is as follows:
    “An article shall be deemed to be adulterated within the meaning of this act: First, if any substance or substances have been mixed with it, so as to lower or depreciate or injuriously affect its quality, strength or purity; second, if any inferior or cheaper substance or substances have been substituted wholly or in part for it; third, if any valuable or necessary constituent or ingredient has been wholly or in part abstracted from it; fourth, if it is an imitation of, or is sold under the name of another article ; fifth, if it consists wholly or in part of a diseased, decomposed, putrid, infected, tainted or rotten animal or vegetable substance or article, whether manufactured or not, or, in the case of milk, if it is the product of a diseased animal; sixth, if it is colored, coated, polished, or powdered whereby damage or inferiority is concealed or if by any means it is made to appear better or of greater value than it really is; seventh, if it contains any added substance or ingredient which is poisonous or injurious to health: Provided, That nothing in this act shall prevent the coloring of pure butter: And provided further, That the provisions of this act shall not apply to mixtures or compounds recognized as ordinary articles or ingredients of articles of food, if each and every package sold or offered for sale bear the name and address of the 'manufacturer and be distinctly labeled under its own distinctive name, and in a manner so as to plainly and correctly show that it is a mixture or compound, and is not in violation with definitions fourth and seventh of this section.”
   Grant, J.

(after stating the facts). The following facts are admitted or established beyond controversy:

(а) The sausage manufactured by the complainant is a wholesome article of food. It contains nothing deleterious to health.
(б) It is a mixture or compound within the meaning of the proviso in the statute above quoted, being composed of meat, cereal, salt, and spices.
(c) It is made in accordance with the act of congress and directions prescribed thereunder by the commissioner of agriculture, and under the inspection of the United States inspectors.
(d) Sausage is made of different kinds of meat, viz., pork, beef, and veal. Whether manufactured for interstate commerce or domestic use within the State, it is sometimes made with cereal, and sometimes without it. Cereal is not a necessary ingredient to its manufacture, although it has been used by most manufacturers for many years.
(e) Water is an essential ingredient in the manufacture of sausage, whether made with or without cereal.

This is shown by the evidence of the defendants. One of their witnesses, with an experience of 35 years, testified:

“In the manufacture of pork sausage we use pork, and, if the pork is a little too fat, we put in some veal or beef. * * * It is necessary to have a little water added, a quart and a half to 100 pounds. It is pretty hard to make them without. We use a little more water than would be found in the meat when freshly killed.”

Another, who has been engaged in the manufacture of sausage since 1864, testified:

“ I put a little water in pork sausage. I use from 5 to 10 pounds of water to 100 pounds of meat. Enough to make it pliable, that is all. I use from 8 to 10 pounds of water in making beef sausage. I presume you could make sausage without water, but you could not stuff it very well.”

Another, who learned to make sausage in Germany, testified:

“I have always used water, and still use water in the manufacture of sausage. Water is necessary. They use water in making sausage in Germany. So far as I know, every one used it.”

The United States regulations require that the water used shall be pure.

(f) It is not in violation of definitions 4 and 7 of the . act.

It does not violate definition 7 because it contains no substance or ingredient poisonous or injurious to health. It does not violate definition 4 because meat is the basis and principal ingredient of the article. As manufactured by complainant, it contains from 2 to 10 per cent, of cereal. It is and has been for more than 40 years recognized in the trade as sausage. When sold as sausage with cereal added, it deceives no one, is not an imitation, and manufacturers are entitled to manufacture and label it as sausage with cereal. It is not contended that manufacturers have not the right to use the name “ sausage” when sold with a proper label.

The Federal statute is practically identical with that of Michigan, and contains a proviso reading:

“ That an article of food which does not contain any added poisonous or deleterious ingredients shall not be deemed to be adulterated or misbranded in the following cases: First. In the case of mixtures or compounds which may be now or from time to time hereafter known as articles of food under their own distinctive names, and not an imitation of or offered for sale under the distinctive name of another article, if the name be accompanied on the same label or brand with a statement of the place where said article has been manufactured or produced.” 34 U. S. Stat. p. 771, § 8, subd. 4 (U. S. Comp. Stat. [Supp. 1907], chap. 3915, § 8, subd. 4).

Acting under this law, the department of agriculture, on September 12, 1906, adopted the following regulation:

“ Sausages and Chopped Meats. The word ‘sausage’ without a prefix indicating the species of animal is considered to be a mixture of minced or chopped meats with or without spices. If any species of animal is indicated as pork sausage, the sausage must be wholly made from the meat of that species. If any flour or other cereal is used the label must so state. If any other meat product is added, the label must so state.”
To this regulation the department added “ manufacturers are warned that the above rulings do not exempt them from the enforcement of State laws.” The learned circuit judge in his opinion found that sausage manufactured as is that of the complainant “is probably as healthy as pure sausage such as was known to the fathers.”

Briefly stated, then, the case is this: Complainant, a resident of another State, is manufacturing and shipping into this State a wholesome article of interstate commerce in strict accord with the law and regulations of the Federal government. State law cannot interfere with this interstate traffic. The law here involved does not attempt to interfere with it, or to deny to the complainant the right to sell and ship its goods to retail dealers in this State. There are, therefore, but two questions material to the determination of this controversy, viz.:

(1) May the State through its legislature enact laws regulating the domestic sales of this product to consumers within the State ?
(2) Does the statute above cited include the product made by the complainant ?

It is not contended that the State is not clothed with the power to regulate the domestic sale of such products after their shipment into the State. Intoxicating liquor, which is a subject of interstate commerce, may be shipped into this State in original packages, but it cannot be sold within the State in violation of the State laws regulating or prohibiting its sale. No contention is made that the State statute in question is not constitutional and reasonable. Pure food laws have been enacted probably in all the States, and have been universally held valid when reasonable. The sole question, therefore, left to determine, is whether the statute includes sales to consumers in small quantities taken from the original packages. If the domestic dealer were to sell an original package labeled as above to the consumer, such sale would be valid, because the label complies with the law and notifies the purchaser that the article is not a sausage of meat alone, but a sausage composed of meat and cereal. It is not contended that manufacturers of sausage have not the right to label their product “sausage” with the statement added that it is mixed with other products, specifying them.

If we understood the position of counsel for complainant correctly, it is that in construing this statute courts should be governed, not by the popular and common understanding of the meaning of the word “sausage,” but by its trade and commercial meaning; that is, its meaning as understood between the manufacturers and their customers to whom they sell for retail to consumers. They say:

“Ibis unmistakable that the legislature understood it was enacting a law with reference to an article of food which was then a subject of trade and commerce among the people. There were at times scores of different kinds of ‘sausage’ upon the market; that is, sausage made in different ways, a difference in the ingredients used in the various kinds, and a variance in the proportions used; and different manufacturers and dealers made and dealt in different kinds, and each knew that all this variety of meat food products were included in the term ‘ sausage,* and the legislature is charged with knowledge of that fact, and must be presumed to have used the term ‘food ’ accordingly.”

In support of this, they cite several cases from the Federal courts construing the tariff or duty acts, in which it has been held that the laws of congress imposing duties upon imported goods must be construed with reference to the trade or commercial meaning of the articles mentioned in the law. Among the cases cited are Two Hundred Chests of Tea, 9 Wheat. (U. S.) 430; Cadwalader v. Zeh, 151 U. S. 171 (14 Sup. Ct. 288); McCoy v. Hedden, 38 Fed. 89.

In Two Hundred Chests of Tea it was held that “bohea tea ” was used in the duty act in its known commercial sense, viz., “that article which in the known usage of the trade acquired that distinctive appellation.”

In Cadwalader v. Zeh the question was whether under the duty act earthenware consisting of small cups, saucers, mugs, etc., having on them pictures of animals and other objects, and letters of the alphabet, should have been assessed as toys with 35 per cent, ad valorem, or as china, etc., with 60 per cent, ad valorem. The case was held to depend upon the commerial meaning of the word “toys.”

In McCoy v. Hedden the question was whether currycombs were dutiable, under a provision imposing a duty upon combs of all kinds. If they were not known to the trade among merchants as combs, they were held not dutiable as such. These and other similar cases arose between the United States and importers of foreign goods, and do not apply to cases arising under the pure food laws of State governments. Courts will take cognizance of the well-known fact that farmers, laboring men, and consumers are not generally familiar with the customs of trade and commerce in importing goods, or of understandings of the trade between manufacturers and merchants who buy those products for retail trade. Such construction would emasculate the pure food laws, and deprive the people of the protection which the legislature wisely intended to give them.

“Sausage” is defined by all the lexicographers as an article of food composed of meat, salt, and spices. See Worcester’s and Century Dictionaries. The people generally so understand it. The writer of this opinion would be compelled to admit that until very recently he had no knowledge that cereal was used in the manufacture of sausage. It is too manifest for further argument that the legislature in enacting the law was not providing for the regulation of sales between manufacturers and merchants, but between retail dealers and consumers. They enacted the law solely for the protection of consumers — the people who buy and eat the products. The consumer who prefers sausage made of meat alone is entitled to be informed that he is buying such an article. The consumer who prefers sausage mixed with cereal is entitled to know that he is purchasing that article. The contention of the complainant, if sustained, would deprive the consumer of this right which the statute plainly gives him. We cannot follow State v. Neslund, 141 Iowa, 461 (120 N. W. 107), wherein it is held that sales in small quantities from original packages are not within the statute. In that case a pound of lard was sold from a 50 pound package properly labeled with its constituent parts, but it was held that the retail dealer was not required to label the small packages sold. That opinion is based upon the well-known rule that penal statutes must be strictly construed. The statute of Michigan expressly provides that these mixtures must be labeled showing the different kinds of ingredients contained in them. Section 2 of Act No. 193, Pub. Acts 1895, is as follows:

“ The term food, as used herein, shall include all articles used for food or drink, or intended to be eaten or drank by man, whether simple, mixed, or compound.”

This is a general statute covering all food products not otherwise specifically provided for. We consider its provisions perfectly plain, and not subject to any misunderstanding or uncertainty. To hold otherwise would substantially exclude all the benefits and protection to the people of the State which the statute was clearly designed to grant. We therefore hold that retail packages of small amounts taken from the original package of the manufacturer, and sold to the consumer, must be properly labeled as the law directs.

The court below dismissed the complainant’s bill, thereby granting it no relief whatever. In view of the position taken by the food commissioner in his circulars and answer herein filed, and in view of the importance to the complainant, and to the people of the State to know under what conditions a wholesome article of interstate commerce may be sold in this State, we think the learned circuit judge should have entered a decree defining the rights and determining under what conditions complainant, as well as other manufacturers, may have their valuable and wholesome products sold by the retail dealers, and to restrain the defendants from interfering with such legitimate sales.

The food commissioner, as above stated, denied in his answer that the sausage made by the complainant was a wholesome product, or that it was a mixture or compound within the meaning of the act, and insisted that it was an adulteration. His attitude is further shown by his reply to complainant’s letter of January 17, 1907, asking “if there would be any objection to using cereal if such fact is stated on label same as provided by National law.” He denied this permission, which was not only a compliance with the Federal law, but a compliance with the State law.

The use of cereal in the manufacture of sausage has been very general. The State food and dairy commissioner of Iowa, who at the time of the hearing below had held office for five years, testified to its general use in that State, stating that “the ingredients used by the Iowa manufacturers in making sausage are chopped meats, salt, spices, flour and sufficient water.” In July, 1907, he issued a bulletin stating:

“The commissioner has no authority to establish standards for the information of the public. It is here stated that this department will not interfere with the sale of sausage because of the presence of wholesome flour, provided that an analysis does not show more than five per cent, of such flour.”

It appears to be established by the evidence that sausage made with cereal is sold cheaper than that made of meats alone. If so, the people desiring to buy and eat the cheaper product should have the privilege of doing so, and such product should not by any decision of the court be prohibited from sale.

The opinion of the circuit judge does not prohibit its sale when properly labeled. He held that the trouble was not with the use of cereal, but in permitting the product to be sold at the retail counter without informing the customer that cereal is a part of it. Counsel for respondents conceded in the oral argument in this court that it was a wholesome food and was entitled to sale in this State when sold under a proper label informing customers of what it is composed.

It is conceded that the use of cereal requires more water than does sausage made with meat alone. Anyone of intelligence would, upon reflection, know this to be the fact. The only doubt I entertain in the case is whether the label should, in addition to the words “ with cereal,” contain also "and water.” In view of the fact that water is generally used in the manufacture of all sausage, and that no law or regulation of the food department has fixed the amount of water that may be used, it would seem like judicial legislation for the court to require the label to show that water is used in the manufacture. The statute does not require the label to state the proportion of the ingredients composing the mixture, but only the names of the ingredients. The statute makes special provision for butter, cheese, lard, canned fruits and vegetables, coffee, and molasses. There are other statutes governing the manufacture and sale of specific products requiring the proportions of the ingredients to be placed upon the labels, such as Act No. 123, Pub. Acts 1903. People v. Harris, 135 Mich. 136 (97 N. W. 402). It is within the power of the legislature to pass an act specifically providing for the manufacture and sale of sausage, and that the labels should state the proportions of the ingredients used. We hold a label "sausage with cereal” upon packages sold to consumers is a compliance with the statute in labeling the mixture, and a decree should be entered so stating.

The decree will be modified and a decree entered in this court in accordance with the above opinion. No costs will be allowed.

Blair, C. J., and Montgomery, Ostrander, and Hooker, JJ., concurred.


text:
    WEBER v. CITY OF DETROIT.
    1. Adverse Possession — Statute oe Limitations — Streets and Alleys — Permissive User.
    Occupancy of an alley by a lumber dealer who piled his lumber, which was continually being changed or removed, partly in the alley and partly on his own land, both being portions, of a common at the time of purchase, constitutes a permissive user of the unused public way and not adverse possession, in the absence of a claim or color of title.
    2. Same.
    To transform a permissive use into an adverse one there must be a distinct and positive assertion of a right hostile to the rights of the owner, and such assertion must be brought to. his attention.
    3. Same.

      No rights are acquired by the public in land owned by a complainant who built a fence to keep people out of his lumber yard, not on the line of the alley but within the boundary of his own property, and without any reference thereto.
    Appeal from Wayne; Murphy, J.
    Submitted October 14, 1909.
    (Docket No. 84.)
    Decided December 10, 1909.
    Bill by Joseph F. Weber against the city of Detroit and others to quiet title to land. From a decree for complainant, defendants appeal.
    Reversed.

      Jasper G. Gates, for complainant.

      Walter Barlow (-P. J. M. Hally, of counsel), for defendants.
    The public alley in which is situated the pieces of land now in controversy is in a block of the city of Detroit bounded on the north by Gratiot avenue and Maple street, on the east by Rivard street, on the south by Sherman street, and on the west by Hastings street. The alley extends from Sherman street in a northwesterly direction to near the middle of the block parallel to Gratiot avenue, from which point it extends east to Rivard street. Complainant owns the east half of lot 190, the entire of lots 191, 192, 193, and 194; the first four lots fronting on Gratiot avenue, while lot 194 fronts on Maple street. He also owns lots 183, 184, and 185, fronting on Sherman street. These lots are situated to the south of the alley, while the lots first named are to the north of the alley.
    This is a public alley, and the defendant city entered into a contract for paving it. The contract covered land as platted, but to which the complainant claims title by adverse possession. Four pieces or strips of land are in-volved, two upon the north of the alley and two upon the south. Counsel for defendants concede that complainant has obtained title by adverse possession to the strips north of the alley, which have been for more than twenty years, occupied by his buildings.
    Complainant purchased lots 183, 184, and 185 in 1869. The entire land there then was an open common. There were no stakes or other monuments locating the alley. Complainant used lots 184 and 185 as a lumber yard. He made no attempt to find the south boundary of this alley, or to locate the lumber piles with any reference thereto, but, it being an open common, located them at his pleasure. These lumber piles encroached upon the alley. His occupancy is solely that of the lumber piles piled upon pieces of timber laid on the ground. These piles were constantly changing as they were sold and repiled with other lumber. At the extreme western end of lot 185 he located four: posts, which, it appears, have been there many years.. One of these posts was in the southern line of the alley and on the south line of Sherman street. The other three, were located in the alley at irregular distances from the, south line of the alley as platted. This alley has been in daily use by the public and the complainant. Complainant describes his occupancy as follows:

      “Q. These irregulár lines on this Exhibit 2, marked * post and lumber piles,’ these are movable ?

      “A. Yes, sir. North of lots 185 and 184 these are movable lumber piles and piles of posts. They comprise part of our stock in trade there. They are merchandise. I don’t suppose the identical posts and piles of lumber that the map shows were there 40 years ago. It is likely some of the foundations went down in the ground, maybe. The material itself that is above the surface is all the time changing. Sometimes there is more and sometimes less there. Whenever we bring in new material there, we pile it up there, and, whenever we sell it, we take it from those piles. * * *
    * ‘ Q. But that stuff there now is all merchantable stuff ?

      “A. Yes, sir. I don’t think there would be any lumber there that was there 15 years ago, but I would not be so sure about the house blocks in the bottom there. There might be some of those there. * * *

      “Q. But, as a usual thing, they are not there but a few months ?
    ‘ ‘ A. Oh, yes; longer than a few months. Sometimes they would be moved two and three times a year. Sometimes they wouldn’t be. It would depend upon the use and sale of the particular kinds of lumber. That is the way that has been occupied for 40 years north of that line of fence in the rear of lots 184 and 185. It has not been occupied in any other way by me, except in that particular way.”
    When the city was preparing to pave this alley, it claimed that the space occupied by the complainant’s lumber piles was in the alley. Complainant thereupon filed this bill to quiet title. The court entered a decree for complainant.
    The irregularity of the northerly boundary of the strip claimed appears from the description found in the decree, as follows:
    “Beginning at the southwest corner of lot 185, of the plat of the subdivision of the Louis Moran farm, between Eort and Elizabeth streets; thence south 60 deg. 00' west along the northerly line of Sherman street 1.20 feet; thence north 60 deg. 14' west, 4.00 feet, to a post standing in the ground; thence north 10 deg. 30' east, 9.53 feet, to a post; thence north 45 deg. 02' east, 7.26 feet; thence
      north 3 deg. 55' west, 3.60 feet; thence north 47 deg. 25' east, 19.41 feet; thence north 53 deg. 07' west, 4.03 feet; thence north 46 deg. 28' east, 10.44 feet; thence north 60 deg. 14' west, 1.00 foot; thence north 30 deg. 37' east, 40.00 feet; thence north 29 deg. 46'east, 14.6 feet; thence south 60 deg. 14' east, 3.36 feet, to the northwesterly line of said lot 185; thence north 29 deg. 46' east, along the last said line, 20.4 feet; thence north 60 deg. 14' west, 3.40 feet; thence north 29-deg. 46' east, 17.75 feet; thence north 50 deg.14' west, 1.00 foot; thence north 29 deg. 46' east, 17.75 feet; thence south 60 deg. 14' east, 4.40 feet, to the northwesterly line of said lot 185; thence south 29 deg. 46' west, along the last said line, to point of beginning.”
   Grant, J.

(after stating the facts). Counsel for complainant cites and relies upon the following authorities: Gregory v. Knight, 50 Mich. 61, 63, 64 (14 N. W. 700); Village of Essexville v. Emery, 90 Mich. 183, 185, 186 (51 N. W. 204); Flynn v. City of Detroit, 93 Mich. 590 (53 N. W. 815); Leonard v. City of Detroit, 108 Mich. 600, 601, 602 (66 N. W. 488); Vier v. City of Detroit, 111 Mich. 646, 647, 648 (70 N. W. 139). In Gregory v. Knight the land was occupied by a “rail fence, stone-row, rail piles, hay barn, and sheds.” In Flynn v. City of Detroit a house was standing about one foot upon the land in controversy, and the balance of the strip was inclosed by a picket fence completely inclosing it with no opening from the street into it. In Vincent v. City of Kalamazoo, 111 Mich. 230 (69 N. W. 501), the strip of land involved had been covered by a building for 30 years. In Vier v. City of Detroit the opinion states that the case possesses the essential features of Vincent v. City of Kalamazoo, supra.

Referring to that case, it will appear that the ground in controversy had been covered with buildings for about 30 years. In this case there are no buildings or permanent improvements. The ground was occupied exclusively by personal property which complainant placed there for his own convenience for sale, and which was constantly changing. The merchandise thus placed was changed from three to four times a year. As soon as one pile was sold, it was replaced with other lumber. There was nothing in appearance to indicate a permanent, hostile, or adverse possession. It is common knowledge that merchants are permitted, without objection by the public, to occupy parts of streets and sidewalks in front of their stores to exhibit goods for sale. It has never been held that by so doing they could acquire title by adverse possession. They occupy these portions of the public thoroughfares by permission, and not in hostility to the public. The ground when the plaintiff purchased it was an open common. He did not know where the line was. He purchased his lots by number, and therefore with reference to the plat, which showed that they were bounded on the south by Sherman street and on the north by the alley. He took no pains, however, to ascertain that line or to pile his lumber in accordance with any straight line. Some piles extended into the alley farther than others. That he supposed, when he began to pile his lumber, that he was occupying his own land upon the south side of the alley, is absurd. As shown in the description of the land in the decree, the northern boundary of the strip is a zigzag line extending from the west corner of lot 185 through the alley to a point at or near the northeast corner of said lot, while the southern boundary of the strip is the lot line as platted. He could not have believed that he was occupying land to which he had any title. The apparent fact is that he entered upon this land, then an open common, without any view of his own lot line. No one was interested to complain. He notified no one that he occupied this land with his lumber piles under claim or color of title. He had no claim or color of title. The presence of this movable personal property, placed there for his own convenience in selling and moving, is no notice of any claim or title, or of a possession hostile to the rights of the public. His statement that he claimed title is of no consequence. Title to lands cannot be maintained by an unexpressed claim existing in the mind of the claimant. His adverse possession could only commence when he had in some manner notified the public of his adverse claim. City of St. Joseph v. Seel, 122 Mich. 70, 74 (80 N. W. 987).

“The occupancy must be exclusive, known to, and against the will and consent of, those interested, and whose right it is to contest.” Marble v. Price, 54 Mich. 466 (20 N. W. 531).

We said in Fuller v. City of Grand Rapids, 105 Mich. 529 (63 N. W. 530):

“ Owners of adjacent lands acquire no permanent rights in the public streets by the erection of structures for their own use and benefit. So long as the space so occupied is not required for public use, they are usually permitted, but, when the public demands it for the use for which it has been condemned or dedicated, the private use must go, and the structures be removed. The opportunity to remove them is all the right the law gives the owners.”

The language there used is, of course, subject to acquiring title by adverse possession under the authorities above cited.

Under complainant’s contention, every occupancy by an adjoining owner of the unused portion of a public highway or street along its sides for the storage or display of merchandise would result in depriving the municipalities of a portion of their streets if such occupancy were continued for the statutory period. . Such holding is not in accord with authority or sound reason.

“To transform a permissive use into an adverse one there must be a distinct and positive assertion of a right hostile to the rights of the owner and such assertion must be brought to his attention.” 14 Cyc. p. 1152.

It follows that the complainant has not title by adverse possession, but had only a permissive occupancy which ceased when the public demanded the use of the entire alley.

It appears from the record that complainant built a fence which is, according to his evidence, south of the south boundary line of the alley, as platted, and on his own ground. He testified that this fence was not constructed with any reference to the boundary line, but for the purpose of keeping people out of his yard, particularly boys who were accustomed to go to a pile of gravel, pick up stones, and throw them at the windows of his buildings. The city contends that this fence should constitute the boundary line. Probably this fence, like the piles of lumber, was not located with any reference to the boundary line. Complainant has obtained no rights upon the city’s highway. Neither has the city obtained any rights to complainant’s land by reason of the fence. The boundary line as established by the plat is the boundary line between the alley and complainant’s lots, 184 and 185.

The decree will be reversed, with costs of this court, and entered in accordance with this opinion.

Blair, C. J., and Moore, McAlvat, and Brooke, JJ., concurred.


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    MENTER v. FIRST BAPTIST CHURCH OF EATON RAPIDS.
    1. Easements— Adverse Possession— Permissive User— Color of Title.
    An infrequent user for occasional convenience of adjoining premises by one having ample means of access to his own premises is a permissive user.
    2. Same — Notice.
    An easement by prescription depends on a user under such circumstances that the owner of the servient estate acquired actual notice of the adverse claim.
    3. Same — Prescriptive Right of Way — Evidence.
    The character of such use or occupancy under an adverse and hostile claim of right may be evidence of actual notice, but it must be so open, notorious and hostile as to leave no doubt in the mind of the owner that his rights are invaded.
    4. Same — Permissive User.
    A permissive user can never ripen into title by prescription.
    5. Same — Evidence of Permission — Enclosure.
    Passing over uncultivated land which is not inclosed by fences is not inconsistent with the use which the owners make of the land.
    6. Same — Churches and Cemeteries — Gates—Fences—Public Grounds.
    An adjoining proprietor cannot obtain title to a right of way over the grounds of a church, schoolhouse or other quasi public institution by occasionally passing through the gates over the inclosed lands to his own premises.
    Appeal from Eaton; Smith, J.
    Submitted October 12, 1909.
    (Docket No. 57.)
    Decided December 10, 1909.
    Bill by Melissa C. Menter against the First Baptist Church of Eaton Rapids to establish an easement by prescription. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Horace S. Maynard (John M. G. Smith, of counsel), for complainant.

      Elmer N. Peters (Joseph B. Hendee, of counsel), for defendant.

      The object of the bill of complaint in this case is to establish an easement, a private right of way, over the land of the defendant to the adjoining land of the complainant. The case was heard upon pleadings and proofs taken in open court. The judge viewed the premises and dismissed the bill.
    Complainant owns lot 4 of the village of Eaton Rapids, extending from Dexter Road upon the south to Division street upon the north. West of her lot is located the church property of the defendant. Her house fronts on Dexter Road. Between the west side of her house and the adjoining lot upon the west is a passageway 9 feet wide in front and 10 feet in the rear. There is also a narrow passageway between the west line of her house and the east line of defendant’s land. Three outbuildings were located on the north of her lot, on Division street. The building on the northeast corner was a carriage house, with doors in front and rear sufficiently wide for teams to drive through to the central part of her lot. The next building to it was an icehouse. On the northwest corner of her lot was a barn. The width of the space between the icehouse and the barn is not stated in the record. Ten years before the case was heard, the carriage house and icehouse had been removed. There was a fence, composed partly of boards and partly of pickets, on the west side of complainant’s lot. She claims that there was a gateway located about the middle of the fence when she purchased the land in 1883, and that she had obtained a prescriptive right of way over defendant’s land through said gateway. The principal, if not the sole, use she made of this alleged right of way was in having wood, coal, and occasionally provisions drawn over defendant’s land through this gateway to the rear of her house. She used about four tons of coal a year, and what wood was necessary to supply her household fires.
    One Dr. Wilkins was her grantor, and had occupied the premises for a number of years. In none of the mesne conveyances, from the original owner to her, was any reference made to such right of way. The defendant gave evidence tending to show: That originally the church property was inclosed by fences; that upon the north there was a row of horse sheds, extending from the barn on complainant’s lot to the west along Division street; that upon the Dexter Road were two large gates for the passage of teams, one upon the east and the other upon the west sides of the church; that there was a row of hitching posts on the east side near complainant’s lot line, extending from a point near the Dexter Road to the sheds upon the north, these posts being connected by rails with.narrow spaces left at convenient distances for parties hitching to pass in front of their teams. One Brown built these sheds, which had eight stalls, and kept for his own use the one next to complainant’s barn, which was on the boundary line. For his own convenience, he put doors in his stall at the end of the shed so that he might open them and drive through onto Division street, as it was at times difficult to back out of the shed. Mr. Brown used this shed from 1875 to 1882. Parties would sometimes open these doors and drive through. Seventeen or eighteen years before the hearing, these sheds were removed to the west side of the church, the hitching posts on the west side were' taken away, and the ground graded and seeded up to complainant’s lot line. Complainant testified that, after the shed was taken away:

      “We drove anywheres, the same as the rest of them. The Baptists had their track that we followed.”
    She also testified:
    “ I don’t think there is any mark of travel between my property and the church, or that there is any track noticeable on my property. I don’t drive in often enough. I did not drive in enough to have a beaten road at all.”
    Complainant sought to show that her grantor, Dr. Wilkins, made use of this alleged right of way under a claim of right. The evidence very clearly establishes the fact that Dr. Wilkins drove in and out over his own land on the east of his house, where there was a gate constructed for the passage of teams and vehicles, and through his carriage house or shed upon the north. His supplies of wood, coal, and provisions were drawn to the rear of the house through these two ways. There is also evidence that he protested to parties from whom he had bought wood against their driving over the church lot alongside his fence, and throwing the wood over the fence. The preponderance of evidence is against complainant in the use of this alleged way by Dr. Wilkins, and it is clear that she did not purchase her land with any view to an existing easement over defendant’s land.
   Grant, J.

(after stating the facts). The judge filed a written opinion holding that whatever use was made of defendant’s land by Dr. Wilkins or complainant was a permissive one. He also found that “there is not the least proof that it was founded, or ever has been, on any claim of right to so use it.” Passing over this land to complainant’s lot was very infrequent, and was not by her, but by those from whom she occasionally bought merchandise for her own use. Such driving over the carriageway made and used by defendant did not tend to show an exclusive claim or right in her. The most that can be claimed is that defendant permitted complainant and others to drive through its property for their convenience. Complainant had ample means of access to her house over her own lands. One having ample means of access to his own premises, over his own land, cannot acquire a prescriptive right of way over adjoining lands without asserting his right thereto in some way more hostile and notorious than its occasional use for his own convenience. The law under which such an easement is obtained is not in doubt. It has been stated in a multitude of cases. The question which the courts have had to decide is whether the facts in the particular case are sufficient to establish the easement. We said in Ann Arbor Fruit & Vinegar Co. v. Railroad Co., 136 Mich. 599, 608 (99 N. W. 869, 872, 66 L. R. A. 431):

“We concede that evidence of a notoriously hostile claim and hostile possession is admissible to prove, and that such evidence may in some cases justify the finding of, a -prescriptive right. But this finding rests, in our judgment, upon the assumption that the owner of the servient tenement acquired actual notice of the adverse holding. ”

See, also, Andries v. Railway Co., 105 Mich 557 (63 N. W. 526); Dummer v. Gypsum Co., 153 Mich. 622 (117 N. W. 317); Burnham v. McQuesten, 48 N. H. 446; Chicago, etc., R. Co. v. Johnson, 205 Ill. 598 (68 N. E. 1112). Such actual notice may be determined by the character of the use and occupancy. Such use' and occupancy, however, must be so open, notorious, and hostile as to leave no doubt in the mind of the owner of the land that his rights are invaded in a hostile manner. Permissive use can never ripen into title by prescription. 22 Am. & Eng. Enc. Law (2d Ed.), p. 1202.

The defendant’s church buildings and grounds were occupied upon Sundays, and were generally unoccupied on week days. They were originally surrounded by fences with gates, and also with an entrance through the shed above mentioned. Whether these fences were retained, when the church was remodeled and the grounds graded and seeded, the record does not show. The church authorities had no notice, or reason to believe, that complainant claimed a prescriptive right of way over its property until shortly before this suit was commenced. Such passing over it was not an assertion of a hostile claim, or frequent enough to become notorious. The parties delivering goods to her entered at the same place the worshipers and attendants upon the church entered, and what little passing was done into her lot made no perceptible impression upon the ground. If there were no fences, complainant could not acquire a right of way, granting all the evidence given in her behalf to be true. Kilburn v. Adams, 7 Metc. (Mass.) 33 (39 Am. Dec. 754). Chief Justice Shaw said in that case:

“Such a use [passing over the land by an adjoining proprietor] is not inconsistent with the only use which the proprietors think fit to make of it; and therefore, until they think proper to inclose it, such use is not adverse, and Will not- preclude them from inclosing it, when other views of the interests of the proprietors render it proper to do so.”

If the proprietors of churches, schoolhouses, and other quasi public buildings inclose their grounds and provide unlocked gates for passage, an adjoining proprietor cannot obtain title to a right of way by occasionally passing through the gates and over the inclosed land to his own premises. The same rule applies to grounds thus inclosed as applies to those uninclosed.

On many of the material facts in this case there was a sharp conflict of evidence. The circuit judge saw the witnesses, and they were many. He viewed the premises, and, we think, arrived at the correct conclusion.

The decree is affirmed, with costs.

Blair, O. J., and Moore, McAlvay, and Brooke, JJ., concurred.