author: McAlvay, C. J. Brooke, J. Moore, J. Ostrander, J.

text:
    ATTORNEY GENERAL, ex rel. BARBOUR, v. LINDSAY.
    1. Constitutional Law — Statutes — Preservation of Public Health, Peace, etc. — Time of Taking Effect — Judicial Review.
    The provisions of the State Constitution providing that acts of the legislature shall not take effect until 90 days from the end of the session at which they are passed, except that the legislature may give immediate effect to acts immediately necessary for the preservation of the public peace, health, or safety by a two-thirds vote of the members elected to each house, constitutes a definite limitation which the legislature cannot disregard by giving immediate effect to acts not within the class mentioned, and its action in so ordering a statute to have immediate effect is reviewable by the courts. Constitution, art. 5, § 21.
    Ostrander and Bird, JJ., dissenting.
    2. Same — Construction of Statutes.
    Every intendment should be taken in favor of the propriety of legislative action and in case of doubt the law will be held valid.
    3. Municipal Corporations.
    Under the provisions of the Constitution, Act No. 5, Pub. Acts 1913, known as the Verdier act, authorizing municipal corporations to amend their charters piecemeal, and givtag the law immediate effect, is not invalid; it cannot with sufficient certainty be said that the act is not immediately necessary for the preservation of the public peace, health or safety, to justify the court in declaring the statute unconstitutional.
    McAlvay, C. J., dissenting.
    4. Same — Bonded Indebtedness — Limitation.
    An amendment of the charter of the city of Detroit authorizing municipal ownership of the street railways, and providing for the issuance of mortgage bonds in excess of the eight per cent, limit of indebtedness fixed by the general incorporation statute, as amended by Act No. 5, Pub. Acts 1913, is not in conflict with the general law (section 4), nor is said amended statute unconstitutional, and a bill to enjoin a special election for the amendment of the charter should be dismissed.
    5. Same.
    In construing the statute, it is determined that a city may borrow not exceeding eight per cent, of its assessed valuation for general municipal purposes and may issue bonds for the purchase of public utilities not exceeding two per cent, additional. In no case may the total bonded debt exceed 10 per cent, of the assessed valuation.
    Bkooke, J., dissenting.
    Appeal from Wayne; Van Zile, Hosmer, Mandell, Codd, and Hally, JJ.
    Submitted October 17, 1913.
    (Docket No. 58.)
    Decided January 23, 1914.
    Bill by Grant Fellows, attorney general, on the relation of George H. Barbour, Fred T. Moran, and Charles A. Ducharme, against Richard Lindsay and others, board of election commissioners of the city of Detroit, and Oscar B. Marx, mayor, for an injunction. From a decree dismissing complainants’ bill, they appeal.
    Affirmed.

      A. C. Angelí and H. E. Spalding, for complainants.

      Richard I. Lawson and Allan H. Frazer, for defendants.
   McAlvay, C. J.

Upon relation of certain residents and taxpayers of the city of Detroit, the attorney general filed this information, to test the validity of what is known as the municipal ownership amendment to the charter of the city of Detroit, and also the constitutionality of the statute under which such charter amendment was submitted by reason of its having been given immediate effect. The statute referred to is called the “Verdier act,” passed by the legislature and approved March 11, 1913 (Act No. 5, Pub. Acts 1913), as an amendment to Act No. 279, Pub. Acts of 1909, and was given immediate effect.

The defendants are the board of election commissioners and the mayor of the city of Detroit. The information was filed before any proceedings were taken for the submission of the proposed amendment to the electors, and prayed that respondents be enjoined from preparing ballots and taking any proceedings for such submission, and, in case the amendment was submitted and carried, that the mayor should be enjoined from appointing the board of street railway commissioners contemplated by the amendment and from doing anything else pursuant to the terms of the amendment or exercising the powers which it conferred. This information was filed March 31, 1913, before the proposed election, and after argument of the case a temporary injunction was denied and the information dismissed without prejudice. The amendment was accordingly submitted and carried by a large majority. The case was heard before five judges of the Wayne circuit court, who later filed opinions, all concurring in the dismissal of the information.

The amendment of the charter of the city of Detroit, the validity of which is questioned in these proceedings, is of considerable length, consisting of 22 sections, and for the purposes of this opinion does not require to be quoted. Its purpose is sufficiently stated in its title, which reads as follows:

“A bill to amend the charter of the city of Detroit so as to provide for the municipal ownership, maintenance and operation of street railways beneath, upon and above the surface of the streets of the city of Detroit and within a distance of ten miles from any portion of its limits, and to issue bonds to defray the cost thereof, in accordance with Act No. 279 of the Public Acts of 1909, as amended.”

The amendment to the act above referred to, relied upon by respondents as authorizing the amendment to the charter of the city of Detroit, is Act No. 5 of the Public Acts of 1913, which was ordered by the legislature to take immediate effect, and was approved March 11, 1913. The validity of this amending act is challenged by the relator as contravening the provisions of section 21 of article 5 of the Constitution of this State, adopted in 1909, which provides as follows : ^

“No act shall take effect or be in force until the expiration of ninety days from the end of the session at which the same is passed, except that the legislature may give immediate effect to acts making appropriations and acts immediately necessary for the preservation of the public peace, health or safety by a two-thirds vote of the members elected to each house.” y

Other- questions are presented and discussed, but this is the most important question in the case, as it goes to the validity of both the amendment to the charter and the statute which authorized it. The contention of respondents upon this question, as stated in their brief, is as follows:

“We maintain that the power to give an act immediate effect under said section of the Constitution is to be exercised by the legislature, and the legislature alone; that the legislature is the sole judge of whether or not a law is immediately necessary for the preservation of the public peace, health, or safety; and that the courts have no power to interfere with such legislative discretion once it has been exercised, right or wrong.”

In other words, that this question is exclusively one for the legislature to determine. This, in effect, was the view taken by the trial court in disposing of the case. We must enter upon the consideration of the construction of this provision of the Constitution with the fundamental rule of construction constantly in mind that this construction contended for by respondents or any other construction cannot be accepted unless it can be found to be fairly within the meaning of the language of the provision itself. Cooley’s Constitutional Limitations (7th Ed.), pp. 89, 91.

The exact question in this State is one of first impression. The constitutional provision under consideration was embodied in the present Constitution by adding to it a section which is a combination of sections 20 and 25, art. 4, contained in the Constitution of 1850. Section 20 of that Constitution read:

“ * * * No public act shall take effect or be in force until the expiration of ninety days from the end of the session at which the same is passed, unless the legislature shall otherwise direct, by a two-thirds vote of the members elected to each house.”

The change made in this portion of section 21, art. 5, of the Constitution of 1909, under consideration, strikes out the clause “unless the legislature shall otherwise direct by a two-thirds vote of the members elected to each house,” and substituted the following:

“Except that the legislature may give immediate effect to acts making appropriations and acts immediately necessary for the preservation of the public peace, health or safety by a two-thirds vote of the members elected to each house.”

While the question is a new one in this jurisdiction and of great importance, it does not appear that the respondents, either in their brief or oral arguments, challenge the jurisdiction of this court to consider and decide it, nor do they in any way question the long line of authorities, both Federal and State, which have established in this country the principle that the Federal and State Constitutions, in their respective jurisdictions, are the fundamental law of the land, and that the courts within their several jurisdictions are empowered to finally determine, as a matter of law, the constitutionality of any legislative action. Under the former Constitution, any act passed by the legislature might be given immediate effect if it received a two-thirds vote of the members elected to each house. By the added provision in section 21, no acts may be given immediate effect by the legislature, except “acts making appropriations and acts immediately necessary for the preservation of the public peace, health or safety.” The change made, therefore, in this respect was restrictive upon the powers formerly granted the legislature.

So far in the consideration of this case we do not find any disagreement between the parties who have presented the matter for the consideration of this court. While not disputing the proposition that this provision was in its nature restrictive upon the legislature, the contention of the respondents is that this clause reposed in the legislature alone the power to determine whether an act passed by it was within the restriction fixed by the Constitution; that its determination, in the exercise of its legislative discretion, as to what acts shall take immediate effect is final and not subject to judicial review.

Before citing and discussing any authorities it will be well to consider the reason for placing in the new Constitution this restriction upon the powers of the legislature.

This court will take judicial notice of the history and course of legislation in this State. Under the Constitution of 1850 it was possible and was the practice at any time during a session of the legislature, and particularly in its last days, to pass and give immediate effect by a two-thirds vote any acts within its pleasure, thereby not giving sufficient notice to the public and those persons immediately interested and affected by the passage of such legislation which was necessarily enacted without proper discussion and consideration. That the intent of this constitutional provision was to prevent such action is clearly indicated by the wording of the restriction itself. The necessity for this restriction upon the former power of the legislature to give all laws immediate effect by a two-thirds vote is therefore obvious. This constitutional provision relates only to the passage of certain acts by the legislature and as to when they take effect. When passed, all legislative acts are beyond its power and control, and, except where the exercise of a delegated power is specifically made final, are all subject to construction by the courts, and it is for the courts to determine whether legislative discretion is final. Courts, both Federal and State, have been vested by the several Constitutions with this authority of which they cannot be divested by the legislature. In our opinion this proposition is supported by the overwhelming weight of the authorities. Judge Cooley, after discussing certain specific cases where- the action of a legislature or other body or person is necessarily final, has said:

“But setting aside now those cases to which we have referred, where from the nature of things, and perhaps from explicit terms of the Constitution, the judgment of the department or officer acting must be final, we shall find the general rule to be, that whenever action is taken which may become the subject of a suit or proceeding in court, any question of constitutional power or right that was involved in such action will be open for consideration in such suit or proceeding, and that as the courts must finally settle the particular controversy, so also will they finally determine the question of constitutional law.” Cooley’s Constitutional Limitations (7th Ed.), p. 76.

We find in the instant case that this action taken by the legislature has become the subject of a legal controversy, wherein the question of individual rights and constitutional power is involved, which question must be finally determined by the courts. Cooley’s Constitutional Limitations, supra; Same, pp. 77, 78. The power delegated to the legislature must be found in the terms of this new constitutional provision, construed in connection with the intent of the people in incorporating such a provision in this Constitution.

Courts have never refused to review acts of the legislature in the exercise of a discretion, unless it explicitly appears that the grant of such discretion was exclusive, and the right to determine, in such a case, the question as to whether the exercise of such discretion by the legislature has been a proper one is inherent in the court as the final arbiter of constitutional and statutory construction. This case is no other or different from any other case which involves constitutional construction, and it must be decided upon well-known principles of law and the application' of the ordinary rules of such construction.

As already stated, this section, without dispute, was intended to be a restriction upon legislative action and confined the legislative power and discretion to give immediate effect only to the classes of legislation designated. The logical conclusion of the contention of respondents (admitted by them upon the argument) that the legislature may determine that any act passed by it may be given immediate effect, and that such determination is final, wipes out and makes of no effect the restriction intended by the people in adopting the new Constitution. ■ No ambiguity appears in the wording of this section, and none is claimed by respondents. No words are used from which any implication arises that it was the intention to grant a specific delegation of power, the exercise of which would be final. In constitutional construction the rule always obtains that the intent of the people is the intent to be ascertained and upheld. It is for the courts to determine this intent, as expressed in the Constitution, and to construe acts of the legislature with reference to it. The construction urged by respondents is not in harmony with the obvious intent of the people to restrict the power of the legislature in the matter of giving immediate effect to its acts, and therefore cannot be accepted.

Respondents, in support of their contention that the act of the legislature, in determining legislation which may be given immediate effect under this constitutional provision, is final and not reviewable by the courts, cite and rely upon the following cases: Kadderly v. City of Portland, 44 Or. 118 (74 Pac. 710, 75 Pac. 222); Bennett Trust Co. v. Sengstacken, 58 Or. 333 (113 Pac. 863); Biggs v. McBride, 17 Or. 640 (21 Pac. 878, 5 L. R. A. 115); State, ex rel. Lavin, v. Bacon, 14 S. D. 394 (85 N. W. 605); Oklahoma City v. Shields, 22 Okl. 265 (100 Pac. 559, 574); In re Menefee, 22 Okl. 365 (97 Pac. 1014, 1018).

The constitutional provisions in the States of Oregon, Oklahoma, and South Dakota all have practically the same provision, which reads as follows :

“No act shall take effect until ninety days from the end of the session at which the same shall have been passed, except in case of emergency; which emergency shall be declared in the preamble or in the body of the law.”

See Lord’s Oregon Laws, vol. 1, pp. 89, 100; Gen. Stat. Okla. of 1908, p. 95; Ann. S. D. Stat. of 1901, p. 6.

The first clause of this provision just quoted is exactly similar to that in the Constitution of this State now under consideration. The wide difference in the provisions appears in the excepting clause, which, in our Constitution, reads as follows:

“Except that the legislature may give immediate effect to acts making appropriations and acts immediately necessary for the preservation of the public peace, health or safety by a two-thirds vote of the members elected to each house.”

In Oregon and the other States mentioned, in case of any “emergency” to be declared in the preamble or body of the act, the legislature by a majority vote determines the question of immediate effect. In Michigan only two classes of legislation may be given immediate effect by a two-thirds vote of all members elected, and no authority is given to declare an emergency.

These cases relied upon by respondents, with practical unanimity, base their decisions upon this specific provision that an emergency was to be determined by the legislature and declared in the act. The construction of their constitutions in this respect by the courts of these States may be a proper construction, bringing the provision within the exceptions to the general rule recognized by Judge Cooley, as above quoted, and other authorities.

The declaration by our legislature (not required by our Constitution), in the body of the act under consideration, that it was “immediately necessary for the preservation of the public peace, health or safety” gives it no added weight, for the reason that, if it was in fact within the excepting clause, the constitutional requirement of a two-thirds vote is all that is necessary to give it immediate effect. A reasonable inference which might be drawn from such superfluous declaration is that there existed a doubt in the legislative mind as to whether in fact this act would come within the classification of this provision.

In further support of their contention, respondents assert the fact that under section 30 of this same article the passage of a local act is prohibited in cases where a general act can be made applicable, and providing “whether a general act can be made applicable shall be a judicial question,” is conclusive that in the provision under consideration the determination relative to giving acts immediate effect was left exclusively and finally to the legislature. This provision is a new one in our Constitution and was adopted from other constitutions where the question had already been determined. In those States the courts have uniformly held that whether a general act can be made applicable was a legislative and not a judicial question. This, under our Constitution, has been reserved as a judicial question, doubtless in view of such constructions in those States, and is a clear indication that the people did not intend to curtail the jurisdiction of the courts to determine finally questions arising under this Constitution. Having determined that by this provision of the Constitution the exercise of the power thereby delegated to the legislature was not final, it logically follows that, in any case where the action of the legislature under this provision becomes the subject of a legal controversy, it is reviewable by the courts. This we are satisfied is supported by the weight of the authorities. This court will therefore exercise its constitutional authority to review all questions necessarily involved in this legal controversy, which includes the question involving the action of the legislature in giving immediate effect to the act under consideration. Such review necessarily carries with it the right to finally determine the constitutionality of such action. The legislature under this constitutional provision is given power to give immediate effect to acts passed by it, but its exercise of discretion by virtue of that power, as we have determined, is not final. If the courts are to uphold the legislative determination, laws passed by it and given immediate effect under this constitutional provision must in fact be appropriation acts or acts which manifestly concern the public peace, health, or safety. This conclusion, we are satisfied, is founded upon reason and is supported by the authorities.

In Mugler v. Kansas, 123 U. S. 623, 661 (8 Sup. Ct. 273, 297), the court said:

“The courts are not bound by mere forms, nor are they to be misled by mere pretenses. They are at liberty — indeed, are under a solemn duty — to look at the substance of things, whenever they enter upon-the inquiry whether the legislature has transcended the limits of its authority. If, therefore, a statute purporting to have been adopted to promote the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.”

This was the statement of that court in discussing and defining the limitations of the police power, and in stating the fundamental principles of law which governed the case then under consideration, and is an accepted exposition of the law applicable to such cases.

In Re Jacobs, 98 N. Y. 98, at page 110 (50 Am. Rep. 636), the court says:

“Generally it is for the legislature to determine what laws and regulations are needed to protect the public health and secure the public comfort and safety, and while its measures are calculated, intended, convenient, and appropriate to accomplish these ends, the exercise of its discretion is not subject to review by the courts. But they must have some relation to these ends. Under the mere guise of police regulations, personal rights and private property cannot be arbitrarily invaded, and the determination of the legislature is not final or conclusive. If it passes an act ostensibly for the public health,' and thereby destroys or takes away the property of a citizen, or interferes with his personal liberty, then it is for the courts to scrutinize the act and see whether it really relates to and is convenient and appropriate to promote the public health. It matters not that the legislature may in the title to the act, or in its body, declare that it is intended for the improvement of the public health. Such a declaration does not conclude the courts, and they must yet determine the fact declared and enforce the supreme law. * * * In Town of Lake View v. Rose Hill Co., 70 Ill. 191 [22 Am. Rep. 71], the court, speaking of the police power, says:
“ ‘As a general proposition, it may he stated that it is in the province of the lawmaking power to determine whether the exigencies exist calling into exercise this power. What are the subjects of its exercise is clearly a judicial question.’ ”

The direct result of the action of the legislature in the instant case is to permit an amendment of its charter to increase the bonded indebtedness of the city of Detroit 2 per cent, upon all of its taxable property, which these appellants insist is manifestly to their injury, and under this law cannot be legally accomplished. The classification provided under the last clause of the provision under which the act in question was given immediate effect reads:

“And acts immediately necessary for the preservation of the public peace, health or safety.”

Every one of these objects here expressed are those which call for the exercise of the police power of the State for their preservation. Therefore every act which may be given immediate effect by the legislature under this constitutional provision must be a police act.

The act to which the Verdier act, under consideration, was an amendment, being Act No. 279 of the Public Acts of 1909, entitled “An act to provide for the incorporation of cities and for changing their boundaries,” was construed by this court not to authorize the piecemeal amendment of charters of cities already incorporated. For the purpose of making provision for the amendment of city charters without revision, the Verdier act was passed by the legislature of 1913 and is purely an amendment of the title and certain sections of the original act referred to, as appears from its entitling. The only material change made in the original law by this amendatory act was to provide a method by which an existing city charter might be amended piecemeal, which was made possible by an amendment to section 21 of article 8, of the Constitution, adopted November 5, 1912. There is nothing contained in the title or body of this amendatory act which indicates, or by implication can be made to indicate, that it is a police act immediately necessary for the preservation of the public peace, health, or safety. An examination of the legislative journals does not disclose any suggestion during its passage through both houses, where it was subjected to numerous amendments, that in either house it was argued that the act was of such character, nor at the time it was given immediate effect by a two-thirds vote. The record of this case does not show that any reason of any kind was advanced in favor of giving immediate effect to this act, which simply permits an amendment to an existing city charter.

The original act which provided for the incorporation of cities and revision of their charters, under the Constitution of 1909, was approved June 2, 1909, and was an act of great importance, but at the time of its passage it did not appeal to the legislature as being an act immediately necessary for the preservation of the public peacé, health, or safety. It was not given immediate effect. Counsel for respondents in their brief make no such claim, and their argument, and the argument of those agreeing with them, is based upon the proposition—

“That the courts or no other, body or tribunal but the legislature is concerned or has power to interfere with such legislative discretion once it has been exercised, right or wrong, no matter how others may view it.”

A suggestion was made by one of them upon the argument that the legislature may have considered it as immediately necessary for the preservation of the public health. In the brief for relator it is charged that no such argument was advanced upon the hearing in the court below, and this is not denied. Such suggestion in effect is an abandonment of the basic argument upon which they plant their case. The original act had been in force four years, and no action was taken during that time looking toward any attempt to revise the charter to relieve the suggested inadequacy of the water supply of that city. It would appear to the ordinary mind that during this period no immediate necessity suggested itself to those now claiming such necessity. As already stated, nothing appears from the record to show that this act was given immediate effect because immediately necessary for the preservation of the public health, and the suggestion relative to the public health is evidently an afterthought and might as well have been advanced in regard to the public peace or safety.

It further appears that, immediately upon the passage of the Yerdier act, proceedings were taken under it to amend the charter of the city of Detroit. An examination of this amendment, which was formulated by the common council of the city, submitted to the electors and adopted by the people, shows that it relates solely to the municipal ownership of street railways by the city of Detroit, making provision for the increase of the bonded indebtedness of the city 2 per cent, upon all its taxable property. We find in this action, taken by the municipality at the earliest opportunity, after the passage of this act, no attempt made to provide for an increased water supply and no indication on the part of the officials or the people that such a provision was an immediate necessity for the preservation of the public health. Our conclusion is that this amendatory act, providing only for the amendment of existing city charters piecemeal, is in no sense a police act “immediately necessary for the preservation of the public peace, health or safety.” The determination of the legislature by giving it immediate effect is not conclusive upon the courts, and they must decide, as a matter of law, whether the act so declared is a police act, within this constitutional provision. This is clearly a judicial question. This act was not within the classification fixed by this constitutional provision, and the act of the legislature in so determining was invalid. These proceedings under it were therefore void and of no effect. As we cannot presume that any portion of this statute would have been enacted by the legislature without having been given immediate effect, it follows that the entire act must be held invalid. This conclusion makes it unnecessary to discuss any other questions presented.

The decree of the circuit court should be reversed and set aside, and a decree should be entered in this court in accordance with this opinion.

Brooke, J.

I agree with my Brother McAlvay that the constitutional provision in question imposes a definite limitation upon legislative action, and that the legislature cannot, with impunity, disregard that limitation and give immediate effect to acts clearly not immediately necessary for the preservation of the public peace, health, and safety. I further agree with him in holding that where rights are affected by the improper or illegal action of the legislature in giving immediate effect to an act not within the class fixed by the Constitution, and the injured party has recourse to the courts, the question whether the legislature has acted within or without the bounds of its constitutional powers is one for judicial determination. In such a case the courts are bound to exercise their constitutional functions, primary among which is the duty to determine whether the legislative action questioned is or is not constitutional.

It is true that the Constitution does not in terms place this duty upon the courts (as to the provision under consideration), but it is equally true that there is the same lack of definite instruction regarding other provisions. An act may embrace but one subject which shall be expressed in its title. No one would claim that a question arising under this provision of the Constitution should not be determined judicially, and yet the basic law is silent upon the point. In acting under the section in question, the legislature is not above and beyond the law. It is as certainly bound by the limitations fixed as by any others contained in the instrument. When the question is presented to the courts, as in the instant case, it must be met and determined the same as any other constitutional question. Had those who framed and adopted our recent Constitution intended otherwise, they easily could and wisely should, in the light of a century of judicial interpretation of constitutional limitations, have made their intention clear and put all misgivings at rest by simply declaring that this should be a legislative, and not a judicial, question.

In reaching a determination, however, I am of opinion that every intendment should be taken in favor of the propriety of legislative action. In cases of doubt, the courts should never interfere to thwart the legislative will, but, where the action constitutes a clear violation of the limitation imposed, it should unhesitatingly be held to be invalid.

With this view of the duty of the courts in mind, how should the action of the legislature, with reference to the so-called Verdier act, be regarded? The act is general in its scope and affects or may affect the charters of all cities within the State. Under our scheme of government, municipalities have control of agencies for the supply of water, the preservation of health, and for police protection. I do not think it can be said with certainty that the act in question was not immediately necessary for the preservation of the public peace, health, and safety, and the courts should interfere only where that conclusion is inevitable.

It is clear that in any event the act (if otherwise unobjectionable) would become a valid enactment after the expiration of 90 days from the date of adjournment. In the case at bar it is contended that the act itself is unconstitutional for certain enumerated reasons, and it is particularly urged that the action taken thereunder by the city of Detroit is, in part at least, invalid.

The portion of the act questioned is as follows:

“Sec. 4. Each city may in its charter provide: íjí
“(b) For borrowing money on the credit of the city in a sum not to exceed eight per centum of the assessed value of all real and personal property in the city: Provided, that in cities where the amount of money which may be borrowed is now limited by law, such limit shall continue until it shall be raised or lowered by a three-fifths vote of the electors voting on the question at a general or special election, and in such cities, bonds issued for public improvements in connection with which a special assessment district is made to pay therefor, and which are a charge upon such district, shall not be included unless the contrary is provided by the charter, and the resources of the sinking fund shall be deducted in determining the amount of such indebtedness. No single increase shall exceed two per centum of the assessed value of the real and personal property in the city. When a city is authorized to acquire or operate any public utility, it may for the purpose of acquiring the same borrow money on the credit of the city in a sum not to exceed two per centum of the assessed^ value of all the real and personal property of the city, and the city may also, for the purpose of acquiring such public utility, issue 'mortgage bonds therefor beyond the general limit of bonded indebtedness prescribed by law: Provided, that such mortgage bonds issued beyond the general limits of bonded indebtedness prescribed by law shall not impose any liability upon such city, but shall be secured only upon the property and revenues of such public utility, including a franchise stating the terms upon which, in case of foreclosure, the purchaser may operate the same, which franchise shall in no case extend for a longer period than twenty years from the date of the sale of such utility and franchise on foreclosure: And provided further, that the charter shall provide for the creation of a sinking fund by setting aside such percentage of the gross or net earnings of the public utility as may be deemed sufficient for the payment of the mortgage bonds at maturity. In case of fire, flood or other calamity the legislative body may borrow for the relief of the inhabitants of the city and for the preservation of municipal property, a sum not to exceed one-fourth of one per centum of the assessed value of all real and personal property in the city, due in not more than three years, even if such loan would cause the indebtedness of the city to exceed the limit fixed in the charter.^ No city shall have power to incur indebtedness or issue bonds of any kind except for emergency purposes as above stated, and bonds secured only by mortgage on the property and franchise of a public utility which shall exceed , in the aggregate ten per centum of the assessed value of all the real and personal property in the city.”

The pertinent provisions of the Constitution are:

Section 20 of article 8:

“The legislature shall provide by a general law for the incorporation of cities, and by a general law for the incorporation of villages; such general laws shall limit the rate of taxation for municipal purposes and restrict their powers of borrowing money and contracting debts.”
Section 21: “Under such general laws, the electors of each city and village shall have power and authority to frame, adopt and amend its charter, * * * and through its regularly constituted authority, to S'pass all laws and ordinances relating to its municipal concerns, and subject to the Constitution and general laws of this State.”
Section 23.: “Subject to the provisions of this Constitution, any city or village may acquire, own, and operate, either within or without its corporate limits, public utilities for supplying water, light, heat, power and transportation to the municipality and the inhabitants thereof, and may also sell and deliver water, heat, power and light without its corporate limits to an amount not to exceed twenty-five per cent, of that furnished by it within the corporate limits; and may operate transportation lines without the municipality within such limits as may be prescribed by law: Provided, that the right to own or operate transportation facilities shall not extend to any city or village of less than 25;000 inhabitants.”
Section 24: “When a city or village is authorized to acquire or operate any public utility, it may issue mortgage bonds therefor beyond the general limit of bonded indebtedness prescribed by law: Provided, that such mortgage bonds issued beyond the general limit of bonded indebtedness prescribed by law shall not impose any liability upon such city or village, but shall be secured only upon the property and revenues of such public utility, including a franchise, stating the terms upon which, in case of foreclosure, the purchaser may operate the same, which franchise shall in no case extend for a longer period than twenty years from the date of the sale of such utility and franchise on foreclosure.”

Section 4b of the act provides:

First. A restriction upon cities limiting their debt-contracting power to 8 per cent, of the assessed value of all property. This legislative action is mandatory under section 20, art. 8, of the Constitution.
Second. A method of raising or lowering a bond limit already fixed. Of course this power must be exercised by the city within the limitation of the general restriction contained in the earlier part of the section.
Third. An inhibition which prevents an increase of the bond limit of any city greater than 2 per cent, upon any single occasion.

So far, I can discern nothing in this section which does not fall fairly within the field of legislative activity under the Constitution. All three of these provisions are clearly “restrictions” on the powers of cities to borrow money and contract debts. Then comes the following provision:

“When a city is authorized to acquire or operate any public utility, it may for the purpose of acquiring the same borrow the money on the credit of the city in a sum not to exceed two per cent, of the assessed value of all the real and personal property of the city, and the city may also, for the purpose of acquiring such public utility, issue mortgage bonds therefor beyond the general limit of bonded indebtedness prescribed by law,” etc.

If this provision was intended to confer upon cities the right to issue bonds to the extent of 2 per cent, of the assessed valuation in excess of the general bond limit, it is clearly invalid, if said bonds are to be considered as a debt of the city. There can be but one universal bond limit. Considered as a restriction upon the borrowing power within the limitation, how should this provision be regarded? I am clearly of the opinion that it is invalid. The legislature is required to fix a general limitation upon the debt creating right of cities, but it cannot parcel out the borrowing power among various municipal purposes. Within the general limitation, the municipality is clothed with power to determine for itself, according to the exigencies presented, how much it will expend upon each of its municipal activities. Does the invalidity of this provision affect the entire act? I think not. There still remains an entirely valid restriction upon the debt-creating power, both as to amount and as to the method of increase.

At the municipal election held on April 7, 1913, four several charter amendments were voted upon and carried by large majorities.

First. Increasing the bond limit from 2 to 4 per cent, of the assessed value of all property in the city. (In this increase is to be included all bonds issued by the board of water commissioners.)
Second. Increasing the water board bonded debt.
Third. Affecting civil service.
Fourth. Providing for the municipal ownership and operation of street railways.

With reference to the first two of these amendments, I am of opinion that their legality cannot be questioned. They constitute lawful municipal action under valid provisions of the so-called Verdier act. Whether the amendments Nos. 3 and 4 contravene any constitutional provisions is not determined. That question was distinctly reserved by the Wayne circuit court, and I am of opinion that it should rest in abeyance until, in proper proceeding, it is there determined.

It is contended on behalf of complainant that the bill in question was not printed as required by section 22, art. 5, of the Constitution. I have examined this question and am of opinion that the unanimous conclusion of the circuit judges upon this point is correct. Reference is had to the opinion of Judge Hally, which will be found printed at large in the record.

The decree dismissing the bill of complaint is affirmed.

Moore, J.

I agree in the main with what is said by . Justice Brooke, but I do not agree with his conclusion as to the effect of the 2 per cent, proviso. I think it clear that the limitation of 8 per cent, is for general municipal purposes. If a city acquires a public utility, or acquires, public utilities, it may, for that purpose, issue bonds not exceeding in amount 2 per cent, of the assessed valuation of the city. It may not issue bonds exceeding in amount 2 per cent, of the assessed valuation of the city to acquire any or all public utilities. Its power in this direction is limited to an issue of bonds not exceeding 2 per cent, of the assessed valuation. The total bonded debt for which the city is liable can in no case exceed 10 per cent, of the assessed valuation of the city. This, in my judgment, is the meaning of the law, and, with this meaning, the law is valid. The legislature has power to restrict the limit of bonded indebtedness incurred in acquiring or in creating public utilities.

Steere, and Stone, JJ., concurred with Moore, J.

Ostrander, J.

Whether an act of the legislature is one immediately necessary for the preservation of the public peace, health, or safety is a question to be finally determined by the legislature. Three-fifths of the members of each house having given the opinion that the act in question is one immediately necessary for the preservation of the public peace, health, or safety, no court may review or set aside such determination. This conclusion is based upon the language employed in the Constitution as well as upon the fact that whether an act is immediately necessary for the preservation of the public peace, health, or safety is a proposition involving, in each case in which it is presented, a question of public policy.

In the construction of the act, I agree with Mr. Justice Moore upon the questions of the limitation of the bonded indebtedness of the city and the force and effect of the 2 per cent, clause. Such construction, such interpretation, gives effect to all provisions of the law, and no other reasonable meaning can be gathered from the entire act. That, when compared with the maximum restriction upon the power to create a bonded debt, the restriction upon the issue of bonds to acquire public utilities seems inadequate is a consideration which has not been overlooked. The legislature has not expressed its will with desirable precision and certainty; but it is not the province of the court to amend the language or to supply omissions, if any have been made. The legislature may be relied upon to make certain an intention other than the one I find expressed in the act.

Bird, J., concurred with Ostrander, J.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    MEEK v. CARPENTER.
    Schools and School Districts — Meeting—Rescinding Action — ■ Discontinuing School.
    Voters of a school district who hava determined, under Act No. 230, Pub. Acts 1913, to discontinue school in the district and send the school children in attendance to school in an adjoining district, at an annual or special meeting of the district, cannot rescind the action at a subsequent meeting and reopen the school for the ensuing period.
    Appeal from Kent; Perkins, J.
    Submitted January 6, 1914.
    (Docket No. 172.)
    Decided January 30, 1914.
    Bill by James Meek against Eugene E. Carpenter and another, director and treasurer of school district No. 5 of the townships of Plain well and Algoma in the county of Kent, to restrain defendants from employing a teacher and continuing school. From a decree for defendants, complainant appeals.
    Reversed.

      Hatch, McAllister & Raymond, for complainant.

      Louis T. Herman, for defendants.
   Moore, J.

The facts in this case are stipulated as follows:

“(1) That at the adjourned annual meeting of School District No. 5, fractional, of the townships of Plainfield and Algoma, in the county of Kent and State of Michigan, held on July 28, 1913, it was decided by the voters of said district by a vote taken pursuant to Act No. 83 of the Public Acts of 1909, to discontinue the school in said district for the ensuing year, and that the children resident in said district should be sent to the village school of the village of Rockford in said county, and that sufficient money should be voted by the school board of said district to pay the tuition and transportation necessary to enable said children to attend said Rockford school.
“(2) That thereafter, and oh the 2d day of September, 1913, a legally called special meeting was held in said district at which time a vote was taken and carried by a majority vote at said special meeting that the action taken at the annual meeting of said district as aforesaid be rescinded, such special meeting having been called for that purpose.
“(3) That on the 3d day of September, 1913, the school board of said district held a legally called meeting at which it was voted to employ Louise Binder as teacher of said school for a term of three months, said contract providing that said Louise Binder was to continue to teach for the remainder of the school year, six months more, if her services were satisfactory. At said school board meeting a motion was made and carried to hire a teacher for three- months with the privilege of nine if satisfaction was given.
“(4) That before said special meeting a number of the families in said district made arrangements to have their children attend the Rockford school, and said children are now in attendance upon said school, and it is the claim of these persons that they have a right to recover from said district the cost of tuition and transportation for their children at said Rockford school, it being claimed by them that the action of said special meeting was unauthorized and void.
“(5) On November 21, 1913, complainant herein, a taxpayer of said district having a large amount of property assessed for school taxes, filed a bill of complaint herein setting forth the foregoing facts and the further fact that the contract with said teacher was about to expire, and that two of the officers of said school district were about to enter upon a further contract with said teacher for the remainder of said year, and further alleging that complainant and other taxpayers in said district are liable to be put to large expense in the matter of paying the necessary running expenses of said school, including the wages of said teacher, and will also be put to large additional expense for the payment of tuition and transportation of pupils to the said school in the village of Rockford, and prayed for the issuance of a temporary injunction restraining defendants, who are the director and treasurer of said school district, respectively, from entering into a contract on behalf of said school district with the teacher now employed, or with any other teacher, and that they be restrained from continuing said school during the remainder of the school year, and praying that said injunction be made permanent. That a temporary injunction was issued on the filing of said bill, and is now in force.
“(6) It is further stipulated and agreed that the above stipulation may be forthwith submitted to the circuit court for the county of Kent in chancery, for determination at the present term of the said circuit court without further proofs, both parties hereto hereby waiving all further pleadings in said cause, service of notice of hearing, filing of note of issue, and all other steps necessary to bring said cause to issue for hearing before said court.
“(7) It is further stipulated and agreed by and between the parties hereto, by their respective solicitors, that upon the foregoing facts the said circuit court, in chancery, shall proceed to determine the question of difference between the parties hereto, and shall render a decree herein according as the rights of the parties hereto may appear, and in the same manner as if proofs of the foregoing facts had been taken in open court.”

The court, after a hearing, was of the opinion that the action taken at the special meeting was valid, and dismissed the bill of complaint. The case is brought here by appeal.

The solicitors are agreed that—

“The sole question in this case is, Had the voters of a school district at a special meeting the power ‘to reopen the school’ after having once voted at an annual meeting ‘to close the school’?”

The authority possessed by the voters of a school district in that regard is found in subdivision 11 of section 20, Act No. 230 of the Public Acts of 1913, which reads:

“At the first and annual meeting only to determine the length of time a school shall be taught in their district during the ensuing year, which shall not be less than nine months in all districts having four hundred or more children of school age, and in all districts having over thirty children and less than four hundred children,, not less than eight months, and not less than five months in all other districts on the pain of forfeiture of their share of the primary school interest fund; but in case the people do not determine the length of the school year, then the district board shall determine same, and in case the board or the district fix the length of the school year, and later in the year it is found desirable to increase the length of said school year, such action may be taken at a properly called special school meeting, or the board may take such action on petition of a majority of the resident qualified voters: Provided, That each school district may at an annual or special meeting vote to discontinue school in the district for the ensuing year and determine that the children resident therein shall be sent to another school or schools, and when such action has been taken the school board shall have authority to use any funds, except library funds, in the hands of the treasurer to pay the tuition and transportation of all such children, and if necessary vote a tax for such purpose.”

The only change made in this subdivision from the way it read in 1909 is the addition of the words “or special” in the proviso following the word “annual” and. preceding the word “meeting.” Before this change was made the school district could discontinue the school only at the annual meeting. The effect of the change was to permit its discontinuance at a special meeting as well, but it did not change the law, as is contended here, so as to permit the school district, when it had decided at either an annual or special meeting to discontinue the school for the ensuing year, to undo that action. If it is desirable, as counsel argue, that the school district shall possess that power, the argument should be addressed to the legislature instead of being read into the law by the court. If the legislature had intended to confer that power at a special meeting, it would have been easy for it to have added to the words “to discontinue” in the proviso the words “or reopen.” Until this or similar legislation is enacted we think the school district is without the power. It follows from what we have said that the decree of the court below must be reversed, and one may be entered here in accordance with this opinion.

The question is a public one, and no costs will be allowed.

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


author: Bird, J.

text:
    CARROLL v. OWEN.
    1. Libel and Slander — Evidence—Malice.
    Upon testimony tending to prove that defendant, who had discharged plaintiff from her employ as a house servant, told a tenant, who was going to occupy the same house after defendant’s departure, that plaintiff was not clean about her house work, that she drank, and her work would not be satisfactory, and afterwards, learning that plaintiff had been employed, wrote giving additional reasons why the plaintiff should not be retained, and offering to disclose further facts, the questions of good faith, malice, and privilege were for the jury.
    2. Same — Privileged Communications — Master and Servant.
    One who rents a house for the season, to a person who proposes to retain a part of defendant’s servants, is entitled, in good faith, to advise the tenant as to their qualifications, habits, and morals.
    Error to Wayne; Van Zile, J.
    Submitted June 18, 1913.
    (Docket No. 6.)
    Decided March 26, 1914.
    Case by Delia Carroll against Blanche Owen for libel. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Reversed.

      McHugh, Gallagher, O’Neil & McGann, for appellant.

      Gray & Gray (Cornelius & Ring, of counsel), for appellee.
   Bird, J.

This is a suit begun against the defendant for both libel and slander. A verdict was directed for the defendant, and the plaintiff has brought error.

It appears that on May 24, 1911, the plaintiff became a servant in defendant’s home in the city of Detroit, and continued in such employment until September 24th of the same year, when she was informed by the defendant that her services would be no longer needed, because her son was going away to school, and her daughter was going to Europe. Before leaving, defendant gave her a recommendation. On October 21st plaintiff, through an employment agency, secured a position with a Mrs. Lancashire, of Alma. When she arrived there she learned that at the end of three weeks Mrs. Lancashire was going to take the ■defendant’s house in Detroit for the winter season, and she engaged her to go with her. Within a week thereafter, Mrs.- Lancashire informed plaintiff that she would not need her after she came to Detroit, whereupon plaintiff left her employ. After returning to Detroit plaintiff learned that defendant, in discussing the servants in her employ with Mrs. Lancashire, had said to her that plaintiff was not clean with her work; that she drank; that she did not think Mrs. Lancashire would care for plaintiff’s work, nor be pleased with her, nor care to keep her. Later, when defendant learned that plaintiff had gone to Alma to work for Mrs. Lancashire, she addressed a letter to Mrs. Lancashire in the folio-wing words:

“I was surprised when Delia come in Sunday evening and said she was going to you. I did not think you would take her on account of what I told you. If she had told me the truth I would not think so much about it. She is not quite right. Her own friends say so too. The day she came into the house she took a violent dislike to my waitress, which she never got over to the day she left. She got on somewhat better with the cook as they were both Catholics. I warn you not to believe one word she says about my waitress. If I could meet you down town I would tell you more. Mr. Owen did not think it would be right of me to know all this and not tell you.”

Upon receiving this information, the plaintiff commenced this suit for libel and slander against defendant. At the trial of the cause, after plaintiff had made her case, the trial court directed a verdict in behalf of the defendant, on the ground that the communications were privileged, and because there was no evidence of malice on the part of the defendant, and hence no question for the jury. There is no controversy between counsel about the facts, neither is there any material variance between them as to the law. Both admit that the communications were qualifiedly privileged, and both agree that the burden is upon the plaintiff to show malice on the part of the defendant. The question as to whether the évidence is sufficient to submit to the jury on the question of malice is the sole question about which they disagree.

Mrs. Lancashire having rented defendant’s house for the winter season, and wishing to retain some or all of the servants» it was defendant’s right to inform her as to their qualifications, morals, and habits, if she did so in good faith. This she did on the 21st day of October. At that time she disclosed enough to Mrs. Lancashire to indicate that plaintiff was an undesirable servant. Had the matter ended there, I think the record would be barren of any evidence of malice on the part of the defendant. But later, when she learns that plaintiff has gone to Alma to work for Mrs. Lancashire, she writes her a letter, calling her attention to what she had already told her in conversation, and giving additional reasons why plaintiff should not be retained by her. In doing this, defendant may have been actuated by the best of motives, but the fact that she writes a letter, in which she refers to what she has previously told her concerning plaintiff, the fact that she furnishes additional reasons to show that plaintiff is an undesirable servant, the fact that she sends the communication without request, and offers to communicate more when she sees her “down town” opens the way for an inference to be drawn therefrom that she was going beyond the limits of good faith in making communications to Mrs. Lancashire concerning plaintiff. This view' is further strengthened by one of the opening sentences of her letter:

“I did not think you would take her on account of what I told you.”

This statement is open to the inference that defendant was rather more concerned about plaintiffs retention than she was about communicating to Mrs. Lancashire the real facts and allowing her to act her own pleasure in the matter.

We do not feel that we can say that there is no evidence in the record from which an inference of malice might be drawn. We are therefore of the opinion that the question was one for the determination of a jury.

The judgment is reversed, and a new trial granted.

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


text:
    McKINLEY v. SMALL.
    I.1 Bills and Notes — Joint Obligation — Judgment.
    At common law the owner of a joint and several obligation might elect to proceed against all the obligors jointly or against each severally.
    2. Same — Estates of Decedents.
    Whether proceeding under the common law or under the statute authorizing the obligee to begin proceedings against all or any number of the joint makers of a note (3 Comp. Laws, § 10055, 5 How. Stat. [2d Ed.] § 12705), a plaintiff will be bound by the election that he makes.
    3. Same — Executors and Administrators — Joint Note.
    Subsequently to commencing an action on a negotiable instrument, having filed a claim against the estate of a deceased joint maker, and secured the allowance of a proportionate share of the total sum due upon a promissory note, the obligee did not bar or merge his claim against the remaining obligors; where a joint suit is impossible the plaintiff does not waive the obligation of others who are jointly liable by beginning a separate proceeding against a joint obligor who has deceased.
    4. Same — Recoupment — Set-Oee— Estates oe Decedents — Evidence.
    But evidence of the allowance of plaintiff’s claim filed against the estate of the joint maker should have been received in evidence as a set-off, where the amount of such judgment has been paid or satisfied.
    5. Sales — Breach op Warranty.
    Where defendants gave their joint promissory notes for the purchase price of a stallion which plaintiff warranted to be a reasonably sure foal getter, and there was evidence that the horse showed indications of impotency soon after the purchase, later being taken sick and becoming impotent, it was a question of fact whether the defect existed before the sickness or was caused by it, or by lack of proper care, etc.
    6. Same — Rescission oe Contract — -Remedies.
    In case of a breach of warranty that a stallion was a sure foal getter, the purchaser might rescind by redelivering the horse to the seller: and where the buyers took the horse to the barn of the seller, and left him, and it appeared that the seller sold the horse for his keep, and that the barn was the one in which he had been kept before the sale, although the seller lived in another county, the delivery was sufficiently established.
    Error to Newaygo; Barton, J.
    Submitted January 16, 1913.
    (Docket No. 140.)
    Decided March 26, 1914.
    Assumpsit by John McKinley against Fred L. Small and others on promissory notes of defendants. Judgment for plaintiff, and defendants bring error.
    Reversed.

      A. G. Day and D. G. F. Warner, for appellants.

      George Luton and David E. Burns (J. B. Judkins, of counsel), for appellee.
   Bird, J.

This suit was begun to recover the amount due upon two promissory notes, which had been given to plaintiff for a Percheron stallion. When the suit was commenced, Ernest L. Brown, one of the 11 defendants named in the declaration, was deceased; the other 10 were personally served. While this suit was pending in the circuit court, plaintiff filed a claim for the amount of the notes with the commissioners of the estate of Ernest L. Brown, and it was allowed by them at the sum of $122.15, or at one-eleventh of the amount due thereon. No appeal was taken from this allowance, but whether this allowance was ever paid it does not appear. The proceedings before the commissioners were offered in evidence, but the court refused to receive them on the ground that they were no bar to the pending suit. The defendants claim this was error. They insist that the allowance of the claim by the commissioners was a bar to the present suit.

The rule of the common law was that the owner of a joint and several obligation might elect to proceed against all the obligors jointly, or against each severally. Fay & Co. v. Jenks & Co., 78 Mich. 312 (44 N. W. 380). Our statute authorizes proceedings against all or any of them. '3 Comp. Laws, § 10055 (5 How. Stat. [2d Ed.] § 12705). Whether under the common law or under the statute, after the plaintiff has made his election he will be bound by it, and must accept the consequences which come with his election. Bonesteel v. Todd, 9 Mich. 371 (80 Am. Dec. 90).

There was, however, an exception to this rule which the common law recognized: Where one of the obligors was an infant, or where one of them had been discharged in bankruptcy (Fay & Co. v. Jenks & Co., supra), or was beyond the jurisdiction of the court (Bonesteel v. Todd, supra) or, where one of them had died before the suit was commenced (24 Am. & Eng. Enc. Law [2d Ed.], p. 760). In short, where a joint suit was impossible, the holder of the obligation did not waive his claim against a joint obligor by reason of a separate suit against other joint obligors. Id. In the casé before us, the plaintiff exercised his election to commence his action against all of the obligors, but was prevented from making it effective against Brown, because he was at the time deceased. In view of this situation, we think the case comes within the exception to the general rule, and that the claim was not so merged in the allowance made by the commissioners as to estop the plaintiff from concluding his suit against the other obligors. It would follow from this that the trial court was not in error in refusing to receive the testimony of these proceedings upon the ground that they were a bar to the pending proceeding.

But the admissibility of the proceedings was urged upon the further ground that they should be admitted and used as a set-off to any amount which the jury might find against the other defendants. We think there is force in this contention. If it should turn out on a retrial of this case that the allowance made by the commissioners had been paid, the proceedings will be admitted for this purpose, as it would not be just to permit a judgment to be rendered for the whole amount against the other defendants if one-eleventh of it has been paid.

A further defense was made that the horse did not fulfill the written guaranty which was given with him. This guaranty provided that:

“We guarantee the above horse to be a reasonably sure foal-getter and transmitter of sixty per cent, of good producing mares owned by the above-named stockholders, provided he shall have plenty of exercise and proper feeding and grooming, care and handling, and in case he should not prove so, we agree to replace him with another of the same breed and price, upon the delivery to us of the above-named horse in as sound and good condition as he is at present.”

The defendants gave testimony tending to show that the horse was delivered to them on May 2, 1908, and that he was well cared for and properly fed while in their possession, but that within a month after he was delivered to them, he showed some signs of impotency as a breeder; that in June, 1908, he was sick for a time, and that following this sickness his impotency. increased, and that finally he refused to serve mares; that plaintiff was notified of this fact soon after in the summer of 1908, and later several letters were addressed to him advising him that the horse had failed to meet the guaranty, and urging him to replace the horse with another in accordance with the guaranty. There seems to be little question that the horse was impotent, and did not measure up to the guaranty, but the question as to whether this impotency was caused in whole or in part by the sickness of the horse we think under all the proof was a question of fact for the jury. If the impotency was caused by the sickness of the horse, or was due to a lack of proper care or feeding of the horse, the plaintiff would not be liable under his guaranty for the defect complained of; on the other hand, if the jury should find under the testimony that the horse was so affected at the time of the sale, then the defendants would be justified in refusing to keep the horse. We think the trial court was in error in taking this question away from the jury.

The question as to whether the horse was ever redelivered to the plaintiff by the defendants was a question much discussed during the trial. The record shows that in the spring of 1909, the horse was taken to defendant Small’s barn, and was kept and later sold by him for his keeping. It is the claim of the defendants that this was a redelivery of the horse to the plaintiff, because it was at this particular barn the horse was being kept at the time they purchased him, and from which he was delivered to them, although the plaintiff lived in another county. We are of the opinion that a delivery of the horse at the barn of Mr. Small, where he was. at the time they purchased him, and where he was delivered to them, was a delivery which satisfied their agreement. For cases bearing upon the question of delivery under such circumstances, see J. I. Case Threshing Machine Co. v. Huber, 160 Mich. 92 (125 N. W. 66, 32 L. R. A. [N. S.] 212); Lyon v. Lindblad, 145 Mich. 588 (108 N. W. 969); Westinghouse Co. v. Gainor, 130 Mich. 393 (90 N. W. 52).

For the errors pointed out, the judgment will be reversed, and a new trial granted.

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


text:
    HARTZ v. KALES REALTY CO.
    1. Deeds — Building Restrictions — Equity.
    Where the owner of a subdivision on which building restrictions had been created, conveyed a ten-foot strip to an adjoining proprietor and in the deed, as part of the consideration, it was provided that "no buildings except dwellings should be erected on the adjacent parcel owned by the grantee, although the grantee never signed the deed of conveyance, his acceptance of the grant bound him, in equity, to observe the restrictive covenants.
    2. Same — Frauds, Statute oe — Estoppel.
    The purchasers of lands which were subject to building restrictions, known to them at the time of purchase, having notice, also, that the grantor had observed the conditions, were estopped to invoke the statute of frauds as a ground for evading the restrictions.

      3. Same — Parties—Equity.
    Subsequent holders of title to other property within the restricted district were proper parties to a bill of complaint, to enjoin the owner of premises brought within the restrictions by special agreement with a mutual grantor, from erecting a garage in violation of the terms of the agreement.

    Appeal from Wayne; Mandell, J.
    Submitted January 31, 1913.
    (Docket No. 33.)
    .Decided March 26, 1914.
    Bill by Gertrude B. Hartz and others against the Kales Realty Company for an injunction. From a decree for complainants, denying a part of the relief desired, both parties appeal.
    Modified and affirmed.

      Stevenson, Carpenter & Butzel, for complainants.

      human W. Goodenough and Irvin hong, for defendant.

       The question who may enforce restrictive covenant or agreement as to use of property is treated in a note in 37 L. R. A. (N. S.) 12.

   Bird, J.

The several complainants herein, who are owners of property on Woodward Avenue Terrace subdivision, have joined in filing the bill in this case, to restrain the defendant from erecting a garage on a portion of lot 20 included, in that subdivision. In 1887 this subdivision was owned by Robert Stead. In July, 1887, Stead conveyed to Reynolds what is now known as the south 72 feet of said lot 20. Later, and in July, 1891, Stead contracted to convey to Laura B. Van Leuven all the land on said subdivision, less what he had sold to Reynolds in 1887. This contract contained a building restriction in the following form:

“The parties of the second part .further agree that said property shall not be used by them or sold to purchasers for any other than residence purposes; that is to say, for houses and for residences and appropriate out buildings.”

In November, 1891, Laura B. Van Leuven and Stead executed a plat of the Woodward Avenue Terrace subdivision, and the same was duly recorded in May, 1892. Reynolds did not join in this plat. While the ownerships in the Terrace stood in this wise, and in October, 1893, Stead,. Van Leuven, and Reynolds executed a plat of the addition to Woodward Avenue Terrace subdivision, which included the whole of lot 20, and two additional lots which were numbered 21 and 22. Subsequently, and in January, 1894, Laura B. Van Leuven conveyed the north 10 feet of lot 20 to Stead, and Stead in turn conveyed it to. Reynolds, thereby making Reynolds the owner of the entire lot 20. The consideration stated was “the sum of $1,000 and the agreement regarding building line and occupancy hereinafter recited.” Following the description, a building restriction was inserted, which provided :

“The agreement and part consideration above mentioned is that no building shall be placed nearer than 15 feet to the lot line of the addition to the Woodward Avenue Terrace subdivision, and no building shall be erected on said lot for other than dwelling purposes. This agreement to be binding upon the heirs and assigns of said William F. Reynolds.”

The defendant now . owns lot 20, which' was formerly owned by Reynolds, also lots 21 and 22 contained in the addition to the Woodward Avenue Terrace subdivision. He began the construction on a part of said lot 20 of an automobile garage, intending to use the 10 feet on the north, which his grantor, Reynolds, last purchased from Stead, for a driveway in getting to and from the garage.

It is claimed upon the part of the complainants, who have observed the building restrictions upon their own lots, that lot 20 is subject to the same building restrictions, and consequently they have asked the court to restrain the construction of the garage; it not being a dwelling or an outbuilding. The contention of the defendant is that the building restrictions which apply to the Woodward Avenue Terrace subdivision do not and never have applied to lot 20; that it was never included within the general scheme of that subdivision, because it was sold to Reynolds several years before that subdivision was created. The chancellor was of the opinion that complainants were not entitled equitably to have the restriction enforced as to the south 72 feet of lot 20, but that they were entitled to relief as to the north 10 feet thereof because that part of the lot was within the restricted district when they purchased their property. While the south 72 feet of lot 20 was not originally included within the district which was subject to the building restrictions, we think it was subsequently brought within that district by the conveyance by Stead to Reynolds of the north 10 feet of lot 20, in January, 1894. Stead and Van Leuven owned and promoted the subdivision. They were desirous of having all the property in that subdivision subject to the building restrictions. At the time of the conveyance they were both interested in certain property in the subdivision, and were interested in its success. Reynolds was desirous of adding the north 10 feet to the remainder of the lot which he owned. The 10 feet which he was desirous of acquiring was subject to the restrictions. They did not, however, apply to the 72 feet. As a condition, and as a part of the consideration for the conveyance expressed in the deed, it was provided that the south 72 feet should also be brought within the zone of the building restrictions. The deed thereto, with these considerations expressed therein, was accepted by defendant’s grantor and the restrictions have been observed during the intervening years. It is true the deed was not signed by Reynolds, but he accepted it on condition that the restrictions should be in force against the south 72 feet, and he accepted the benefits accruing from the restricted zone. The agreement was binding upon Reynolds, and it would have been contrary to equity and fair dealing for him to have violated the agreement under which he acquired a portion of the lot.

But it is argued that, while it might have been binding upon Reynolds, it was a collateral covenant and is not binding upon Reynolds’ grantees. The defendant had notice of the agreement under which its grantor, Reynolds, acquired the title thereto. It further had notice that the agreement had been kept by its grantor and partially performed. It was further informed by the deed that the agreement was binding upon the heirs and assigns of Reynolds, and we think that defendant should now be estopped from invoking the statute of frauds to enable it to do what it knew, before it purchased, its grantor promised he would not do. 2 Pomeroy’s Equity Jurisprudence, §689.

This agreement, by which the south 72 feet of this lot was brought within the zone of the building restrictions, was made for the benefit of the property owners of the Woodward Avenue Terrace subdivision. It was made in the interest of the common grantor and in the interest of those who might own property upon that subdivision. It being shown that these complainants are so interested, we think they are proper parties to raise this question. 3 Pomeroy’s Equity Jurisprudence, § 1295.

The decree of the trial court will be modified in accordance herewith, and affirmed. Complainants will recover their costs in this court.

McAlvay, C. J., and Brooke, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred. Ostrander, J., did not sit.


text:
    ARONSON v. BALDWIN.
    1. Amendment — Libel and Slander — Declaration.
    On the trial of an action for libel, for the publication of an article charging defendant, a sheriff, with drunkenness, dereliction of duty and making an arrest improperly, the court might properly allow plaintiff to amend his declaration by striking out certain of the charges, and basing his action on the remainder, notwithstanding that the defense was prepared to justify as to all the charges; and it was not erroneous to permit the case to proceed .after amending the declaration accordingly and after plaintiff’s counsel had read the entire statement or libel as published to the jury.
    2. Libel and Slander — Drunkenness—Words Slanderous Per Se.
    It was libelous per se to charge in a printed article that a county sheriff was drunk while he was performing official duties; if the statement was true the sheriff might be subject to arrest and would be liable to experience public contempt or ridicule.
    3. Same — Retraction—Notice—Damages.
    Although plaintiff’s amended declaration counted on certain parts of the libelous publication only, a notice to retract the entire article was properly received in evidence over the objection of the defendant, as the demand for retraction was not invalidated by including portions of the article that plaintiff did not rely upon.
    4. Witnesses — Trial — Drunkenness—Evidence—Cross-Examination.
    On the trial of a libel suit, the court committed error in refusing to require the plaintiff, a sheriff, to answer the interrogation of defendant’s attorney whether plaintiff had not frequented a certain saloon and drank there at unlawful times, where the libel had charged plaintiff with drunkenness and dereliction of duty. The defense was entitled to discredit plaintiff by showing his character and antecedents.
    Error to Delta; Flannigan, J.
    Submitted January 8, 1913.
    (Docket No. 23.)
    Decided March 26, 1913.

      Case by Frank W. Aronson against Francis L. Baldwin for libel. Judgment for plaintiff. Defendant brings error.
    Reversed.

      A. H. Ryall (C. R. Brown and II. J. Rushton, of counsel), for appellant.

      John Power and Cummiskey & Spencer, for appellee.
   Bird, J.

Plaintiff, the sheriff of Delta county, brought this libel suit against the defendant, the editor of the Escanaba Journal, for the publication of the following article on the 3d day of September, 1909:

“Sheriff Aronson was on a Drunk.
“Delta County Officer Celebrated Fair by Spreeing and Having Boy Arrested for Speeding Automobile.
“Frank W. Aronson, Sheriff of Delta County, ivas drunk last Thursday evening; just a plain common D-r-u-n-k. He was in splendid condition to see things. And he saw, or claims he saw, Willie Richer, son of Thomas Richer, proprietor of City Livery, running his automobile, in which the editor of the Journal was a passenger, faster than the peace, dignity and safety of the public will justify. Aronson was down at Jake Miller’s when he saw things. Jake is another of the city beauts. He violates the law seven days in the week and unnumbered times every day. But Sheriff Aronson never sees this. He has a decidedly friendly feeling for Jake and others of the same stripes. But he saw Willie Richer speeding the automobile. And Baldwin was in the car. Good chance. The sidewalk is pretty wide, but it was none too wide for Aronson as he hurried down to Mr. Richer’s barn to tell him that he was going to arrest the boy. The arrest was made and Mr. Richer paid $9.25 fine and costs. And, why did he pay this fine and costs? Just because the automobile was going faster than it should have gone? No. It was because Baldwin was in the car. The public undoubtedly knows that Aronson doesn’t love the writer. We have had too much to say about the disgraceful manner in which he performs, or rather, fails to perform, his official duties.
“Aronson hangs around saloons after hours and on Sundays: He gambles in them; drinks in them. He has been in places which are not mentioned in polite society, and when he wasn’t on official business, either.
“If the Journal should attempt to lay bare the record of this man Aronson since he became sheriff of Delta county, this paper would be refused admission to the mails.
“And that is the kind of a man who punishes a boy because he chances to have the editor of the Journal as a passenger!
“And there isn’t a day goes by that nearly every car driver in the city could not be arrested for speeding!
“But the circumstances under which Willie Richer was running the automobile makes the arrest all the more reprehensible. The car had six or seven minutes to run from the Ludington hotel to the Northwestern passenger depot, where the writer was to meet some of the speakers and special guests of the city. No one was on lower Ludington street, and when the car got farther up the street it was run very slow. The driver was exceedingly careful.
“But he has to be punished, not for fast running, but because he had the editor of the Journal as a passenger.
“And his arrest was caused by a drunken sheriff.
“What do you think about it, people of Delta county?
“We do not wish to be understood as upholding fast running of automobiles. If Sheriff Aronson will begin an honest and impartial crusade against fast auto driving, he will have done a commendable thing. The Journal has said before, and it repeats, someone will pay the penalty with his life for the reckless manner in which autos are driven about the city.
“The Journal believes in the enforcement of all law.
“But we don’t believe in punishing a boy because he is so unfortunate as to be seen with the writer.”

Upon the trial, after the plaintiff had offered the article and it had been received in evidence and read to the jury, he asked and received permission of the court to amend his declaration by striking out all of the article save those portions which appear in italics. The defendant made vigorous objection to this on the ground that he had pleaded justification and was prepared to justify as to the entire article which had been counted on in the declaration, and he argued that inasmuch as plaintiff had received the benefit of the article before the jury he ought to be allowed to justify the article in its entirety.

The plaintiff was charged in the article with several distinct offenses and had he, in the first instance, selected the charges embraced within the italics and based his libel suit thereon no reasonable objection could have been urged against it. If such a course would have been proper at the outset, it follows that it was proper to bring the pleadings to that position by amendment. Indeed, if this were not the rule, one might combine a false charge with a truthful one and afterwards show the truthful one in justification of the false one. The case of Bathrick v. Tribune Co., 50 Mich. 629 (16 N. W. 172, 45 Am. Rep. 63), is cited in support of defendant’s contention that the amendment was improper. In that case an attempt was made to restrict the justification by the innuendo, while in this case the scope of the justification was narrowed by means of an amendment to the declaration. The course pursued by plaintiff in this case seems to be approved in that opinion wherein it says,

“That if he proposed to narrow the controversy to a single charge he should have complained only of that portion of the article which made it, instead of putting the whole before the jury and counting upon the whole as damaging.”

We are of the opinion that the trial court committed no error in allowing the amendment, but we are in serious doubt of the propriety of allowing the case to proceed after the entire article had been read to the jury. The trial court attempted to remove from their minds any bias by instructing them to forget the portions of the article which the amendment had eliminated, but when the severity of the charges is considered, such an instruction would be of little value. Inasmuch, however, as defendant made no request for a postponement of the trial as a condition for allowing the amendment, no error should be predicated thereon.

It is further insisted by the defendant that the language relied upon, which appears in italics, is not libelous per se. The language used charges plaintiff with being drunk in a public place while attending to his official duties. This charge, if true, would have made him liable to arrest and would have exposed him to the ridicule and contempt of the people of his county. Such a charge is clearly libelous per se. 25 Cyc. p. 346.

Before suit defendant was served with a notice to retract the article. This he refused to do. After the amendment was made, eliminating portions of the article, it was contended by defendant that the notice to retract was inadmissible because it demanded a retraction of the whole article. The trial court overruled the objection and properly so. If a demand was made to retract the entire article, it must have included the portions finally relied upon. The fact that plaintiff demanded a retraction of more than he was entitled to would not invalidate the notice as to portions to which he was entitled.

The plaintiff was asked upon cross-examination' the following question:

“Did you during the year 1908 and up to May, 1909, stay in Jake Miller’s saloon frequently, once or twice or more a week, until one or two o’clock in the morning, and drinking in there?”

Several questions of like character were asked and all of them excluded on the ground that they were incompetent. In this ruling we think the trial court was in error. The plaintiff offered himself as a witness and it was the right of defendant on cross-examination to show the kind of a man he was. If he could show by plantiff himself that he was in saloons frequently after the statutory hours, drinking, it would certainly have a tendency to discredit him with the .jury. The extent of the right of cross-examination of a plaintiff in a slander case was raised in Ritchie v. Stenius, 73 Mich. 563 (41 N. W. 687), and it was there said:

“The jury had a right to be informed of the character and antecedents of the witness, whose testimony they were called upon to weigh. While it is true the rule does not allow an attack upon character in this class of cases by specific acts, yet, when the party is called as a witness in his own behalf, he stands to the case like any other witness, and subject to the same rules of cross-examination as any other witness, and this was a proper subject of cross-examination. Whatever his answers may have been to these inquiries, the defendant would undoubtedly have been bound by them, but as a matter of cross-examination it was proper.”

See Georgia v. Bond, 114 Mich. 196 (72 N. W. 232).

The deprivation of this right of cross-examination was evidently harmful to defendant’s case, and for this reason the judgment must be reversed and a new trial granted.

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


text:
    MILLER v. MAHER.
    1. Costs — Appeal Bond — Recovery—Surety.
    In an action on an appeal bond given in divorce proceedings the surety could not raise the objection that certain items of cost taxed were improper or excessive; if the objection was well founded it should have been made at the time the clerk taxed the costs, or on motion to retax.
    2. Parties — Actions—Bond eor Costs — Nonjoinder. ,
    Although both obligees in a joint bond should be joined as plaintiffs in an action on the obligation, one may sue alone, if the other assigns his interest to the plaintiff, or if he refuses to become a party to the proceeding at the request of the plaintiff.
    3. Same — Appeal and Error.
    Upon a record not disclosing whether there was evidence in the lower court to excuse the nonjoinder of a party, it will be assumed that the judgment was warranted by testimony not contained in the record which did not purport to contain all the evidence.
    Error to Kent; Wolcott, J.
    Submitted April 22, 1913.
    (Docket No. 118.)
    Decided March 26, 1914.
    Assumpsit in justice’s court by Frederick C. Miller against Edgar A- Maher, Lant K. Salsbury and Eleanor C. Reeves on a bond for costs. Plaintiff appealed to the circuit court. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      E. A. Maher, for appellants.

      A. C. Hindman, for appellee.
   Bird, J.

The plaintiff sued the defendants in justice’s court to recover on a chancery appeal bond. He was not successful in that court, and he appealed therefrom to the circuit court, where he had judgment on written findings found by the trial court.

It appears from the findings that Eleanor C. Reeves, having a decree for alimony against her husband, George R. Reeves, instituted proceedings under the statute to subject certain property standing in the name of Frederick C. Miller to the payment of her decree, and making both Reeves and Miller defendants. This proceeding resulted in an order being made subjecting the property to the payment of her alimony. From this order, defendant Miller alone appealed. Later Mrs. Reeves filed a claim of appeal and a bond running to both Reeves and Miller as appellees, with defendants Maher and Salsbury as sureties. The order of the circuit court was reversed by the Supreme Court and costs were awarded to Frederick C. Miller, the plaintiff herein. His costs therein were subsequently taxed at the sum of $112.91. For the failure of Mrs. Reeves to pay these costs, this suit was begun to enforce the payment thereof. On the trial in the circuit court, the taxed bill of costs in the chancery case was offered and received in evidence over the objection of the defendants. The admission of this paper is assigned as error, for the reason that it included items expended by Miller about his appeal before Mrs. Reeves filed her appeal and bond, and because it included items which were incurred in his own appeal, and not in hers, and it is argued that the effect of this evidence was to extend the liability of the sureties beyond that which they had agreed to assume.

This assignment of error raises the question as to whether a judgment for costs against the principal is conclusive against the sureties. The undertaking of the principal as shown by the bond was “to perform and satisfy the decree and final order of the Supreme Court and pay all the costs of the appellees in the matter of said appeal.” The obligation of the defendant sureties was to make payment in case of her default. The Supreme Court subsequently reversed the order made by the trial court, and ordered and decreed that defendant Miller should recover costs of both courts to be taxed, and that he should have execution thereof. [Reeves v. Miller] 121 Mich. 311 (80 N. W. 19). In pursuance of this decree, Miller’s costs were taxed. When the principal made default, and the sureties were asked to pay these costs, they were asked to do just what they had promised in the bond that they would do. If there were any objections to the amount proposed to be taxed, or if the tax bill included items which were improperly included, they should have appeared before the taxing officer and opposed the taxation of the same, or, failing in this, they should have made a motion in that case for a retaxation of the costs. Not having done so, it is now too late for them to question the judgment. The only question which was open in this case was the question of the jurisdiction of the court which rendered the judgment. As no question of jurisdiction was raised, the judgment for costs against the principal is conclusive against the defendant sureties. Clinton v. Laning, 73 Mich. 284 (41 N. W. 424); Clinton v. Rice, 79 Mich. 354 (44 N. W. 790); Gill v. Backus, 108 Mich. 417 (66 N. W. 347); Dudley v. Conely, 125 Mich. 300 (84 N. W. 286). See, also, valuable note in 132 Am. St. Rep. 759, to the case of Commonwealth v. Fidelity & Deposit Co., 224 Pa. 95 (73 Atl. 327).

The further error is assigned that the bond was inadmissible in evidence because of the nonjoinder of Reeves as a party plaintiff in this suit; the argument being that, as the promise in the bond was made to both, both should be made plaintiffs. By the strict rule of common-law pleading, the point appears to be well taken, and this would be true even though Reeves had no interest in the costs, which were sought to be recovered. 15 Enc. PL and Prac. p. 528. There are, however, some exceptions to that rule, for example, where one obligee assigns to his co-obligee, or where one obligee requests his co-obligee to join in the suit and he refuses, suit can then be maintained by one of the obligees in his own name. Id. p. 532. The objection was duly made when the bond was offered, but the objection was overruled and findings were made and judgment rendered thereon. If we may presume that there was nothing in the testimony which justified the finding of the court, it is clear that' he was in error in rendering judgment for the plaintiff. The record is very meager, and does not purport to contain all of the evidence. The pleadings in justice’s court were oral and very brief. If there was a showing made which brought the case within either of the exceptions referred to, the judgment should be sustained. We cannot presume, in the absence of a complete record, that there was no such showing. McGraw v. Insurance Co., 54 Mich. 145 (19 N. W. 927).

The judgment of the trial court is affirmed.

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