author: Ostrander, J.

text:
    HUNT v. WAYNE CIRCUIT JUDGES.
    1. Infants — Wardship—Control by State.
    The State has power to define the status of infants requiring guardianship and to provide for their control and education.

    2. Same — Juvenile Court Act — Constitutionality — Circuit Court Commissioners.
    The juvenile court act of 1905 (Act No. 312) examined, and held, unconstitutional for attempting to extend the jurisdiction of circuit court commissioners of certain counties beyond the powers of a circuit judge at chambers, as limited by the Constitution (art. 6, § 16).

      3. Same — Statute—Partial Invalidity.
    Since the act indicates an intention to provide for a uniform administration of the law it cannot be held inoperative merely in those counties where jurisdiction is attempted to be conferred on circuit court commissioners and operative in others.
    Mandamus by Ormond F. Hunt, prosecuting attorney of Wayne county, to compel Flavius L. Brooke, Henry A. Mandell, Morse Rohnert, George S. Hosmer, and Joseph W. Donovan, circuit judges of Wayne county, to vacate an order denying a petition to establish a juvenile court under Act No. 312, Pub. Acts 1905.
    Submitted October 10, 1905.
    (Calendar No. 21,364.)
    Writ denied December 4, 1905.
    Relator, the prosecuting attorney of Wayne county, applied by petition to the circuit court for that county and to the judges thereof, and in his petition set out that the legislature of the State of Michigan, at its last session, passed an act known as Act No. 312, entitled “ An act to regulate the treatment and control of dependent, neglected and delinquent children,.and to establish juvenile courts,” which act went into effect September 18, 1905; that by the terms of the act' the circuit court, in counties having over 100,000 population, is given original jurisdiction of all cases coming within the terms of the act; that Wayne county is a county having a population of more than 100,-000; that in such counties a majority of the judges of the circuit court are by the terms of the act required to designate one or more of their members to hear cases coming under the act; that in the circuit court for the county of Wayne the judges thereof had not made such designation; that the police court of the city of Detroit, the justices of the peace of the county of Wayne, had ceased to exercise jurisdiction over dependent, neglected, and delinquent children, as defined by said act; and that, according to the information and belief of said petitioner, complaints against juvenile offenders were not to be entertained by any of said officers within the county of Wayne. Petitioner prayed that the court and the judges thereof would, upon proper order, designate one or more of their members to hear cases coming under ■ said act, would designate a -court-room to be known as a “ juvenile court-room ” for the hearing of such cases, and provide for a record to be known .as a “juvenile record.” Thereafter, the matter of said petition coming on to be heard in said court before the judges thereof, it was held and found that the act in question is unconstitutional and void for certain reasons set out in the opinion of the majority of said judges, and the ■said petition was dismissed. At the same time there was pending in said court an application, made on the relation •of John B. Whelan, the police commissioner of Detroit, .for a mandamus to compel Christopher E. Stein, one of the police justices, to entertain a complaint against two male offenders, under the age of 16 years, charged with a ■felony under the general criminal laws of the State. The writ was granted.
    Five of the judges of said court joined in making and :filing the following opinion:
    “This matter consists of two applications — one an application in the nature of a petition of the prosecuting •.attorney of the county requesting the court to designate •one or more of its judges to act as judges of the juvenile court sought to be established by Act No. 312 of the Public Acts of 1905; and the other an application, on the relation of the police commissioner of the city of Detroit, for a mandamus to compel one of the police justices of the city of Detroit to entertain a complaint against two male juvenile offenders, under the age of 16 years, charged with a felony under the general criminal laws of the State. As it appeared that a determination of both of these applications depended upon the validity of said act, for convenience they have been heard together. It is claimed that for various reasons said act is unconstitutional, inoperative, and void. In entering upon the consideration of these objections we are mindful of the fact that the purposes sought by this juvenile court act are most humanitarian and beneficent, and that no greater or more important duty can devolve upon a community, its courts and institutions, than the care, reclamation, and proper education of its neglected, dependent, and delinquent children. Nevertheless, the questions that are before us are strictly legal ones, and must be determined solely and strictly upon legal principles.
    “1. The general purpose of the act in question seems to be to establish throughout the State (with the exception of seven counties named in the act) a uniform system for the treatment of dependent, neglected and delinquent children under certain ages. Juvenile courts are, by the act, established for the various counties of .the State, and these courts are to be presided over by either circuit judges, circuit court commissioners, or judges of probate, according to the population of the various counties. The powers and jurisdiction of these various juvenile courts is the same, and each of these courts, whether presided over by a judge of a court of record or a circuit court commissioner, is given the same power in certain cases to punish for contempt. This seems to show that the purpose of the legislature was to establish a uniform system for the administration of the act. In our opinion, this purpose fails, for the reason that, in counties where the powers conferred by the act are to be administered by circuit court commissioners, the act confers upon such officers judicial powers and criminal jurisdiction beyond their powers under the Constitution, and the act is unconstitutional and void as to such counties. It seems to us that, where the act is rendered nugatory in a majority of the counties of the State, the whole scheme designed by the legislature fails, for it cannot be said that the legislature intended that if the act, which was designed for general application, could be sustained in counties of a population of upwards of 100,000, it should be enforced in such counties, even though it was rendered nugatory in all other counties.
    “2. It is claimed that the act is unconstitutional in its application to this county for the.reason that it is sought by the act to establish a new court to be designated the ‘juvenile court,’and that the act merely designates the officer who is to preside over the court. The wording of section 3 of the act would seem to establish this claim, were it not for the wording of section 2, wherein it is provided that the circuit court shall have jurisdiction over all cases arising under the act. With regard to the intent of the legislature in this regard, the act is vague and uncertain. If it was intended to establish a new court, then the act is in contravention of article 6, § 1, of the Constitution. If the court sought to be established is a part of the circuit court, and a court of record, then the provision that trials shall be had by-juries of six, when jury trials are had, is in contravention of article 6, § 27, of the Constitution.
    “3. We are of the opinion that that part of section 5 which provides for the arrest by warrant of the parent, guardian, or other person having the custody of any child described in the act, or with whom such child may be, is unconstitutional for the following reasons: First. This provision is not within the title of the act. Second. It is in contravention of article 6, § 26, of the Constitution, which provides that no warrant shall issue without probable cause. Third. It is not due process of law, within the meaning of article 6, § 32, of the Constitution.
    “4. There are other provisions of the act that are vague and not enforceable: The act provides for a fine in certain cases without limiting the amount of the fine. It provides that, when any child referred to in the act is adjudged to be * willfully wayward and unmanageable,’ such child may be sent to one of the industrial schools of the State, without designating or limiting the term of detention in such school. For the reasons above stated we think some of the provisions of the act are unconstitutional, and others so vague and contradictory as not tobe enforceable,. and we cannot say that the legislature intended the remaining provisions to be enforced standing by themselves. See Mulhern v. Kent Circuit Judge, 111 Mich. 528; People v. Mangold, 71 Mich. 335.
    “ It follows that the prayer of the petition of the prosecuting attorney must be denied, and that the mandamus will issue as prayed.”
    One of the judges of said court made and filed the following opinion:
    “In this matter two petitions have been filed — one asking the circuit judges to appoint one or more of their number to hold juvenile courts under the provisions of Act No. 312 of the Public Acts of 1905; and another for a mandamus to compel the police justice to proceed with the trial of two boys, under the age of 16 and over the age of 12, on a charge of burglary now pending before him. The only point presented to the court upon the argument of these two matters is on the question as to whether Act No. 312 was or was not constitutional.
    “The first point raised in regard to the constitutionality of the act was that under its provisions it established a new court, to be called a juvenile court, and that under the Constitution of this State the legislature bad no such power. It was also claimed that, if such a court could be established, provision should have been made in the act for the election of a judge to preside over such court, and that in the act no such provision was made. I am of the opinion that this objection to the law is not well taken. I think that all the law does is to impose upon the circuit judges additional duties, and that stating that the court shall be called a juvenile court is of no material consequence, as long as the duties of a circuit judge require him, under the law, to conduct that court.
    ‘ ‘ It was also claimed that no provision was made in the law for officers of the court. I am of the opinion that no such provision was essential. The law already provides who shall be officers of the circuit court, and any decree, judgment, or order made by a circuit judge presiding over the juvenile court would be enforced the same as any order made by him when sitting as circuit judge in any other capacity, when there was no other provision made in the law for the enforcement of these orders.
    “ It was also claimed upon the argument that the law was unconstitutional for the reason that it provided that in counties having a certain number of inhabitants this juvenile court should be presided over by the circuit court commissioner, and that no power existed in the legislature to confer such duty upon the circuit court commissioner; it being greater than a judge at chambers could exercise. While this may be true, I do not see that it is pertinent to the question before the court, for there is no application here to have circuit court commissioners perform this duty, and I see no reason why the law may not be held to be constitutional in regard to imposing these duties upon a circuit judge, while it may be unconstitutional in imposing them upon a circuit court commissioner.
    “ It is also claimed that the law is unconstitutional in depriving a person of the right of trial by a jury composed of 12 men; this law providing that in certain contingencies a jury may be called, composed of six men. The evident object of this law is to give the circuit court the control of children within certain ages, and it also seems to be its object to avoid, as far as possible, having these children charged with crime, and, in all cases where it is deemed proper by the presiding judge or other officers having the matter in charge, to seek to reform these children, rather than to convict them of crime, and thereby imperil their future. This is in no sense a criminal proceeding. It does not, in my opinion, rise even to the dignity of a quasi criminal proceeding. It is not a suit. It is simply an exercise of the power of the State over its youthful citizens for the purpose of looking after their good, bringing about a reformation, and leading them to follow a useful, instead of a criminal, life. In my opinion, this power exists in the State, and it may be exercised in such manner as the legislature shall direct, and it may be done either with or without the intervention of a jury; and if the orders and directions concerning these juvenile offenders are made by a court without a jury, or by a jury of six, it in no way, in my opinion, interferes with the constitutional right of a citizen to be tried for a •criminal offense by a jury of 12 men. I think that this question has been passed upon in other States, from the authorities that have been cited here, and no case was cited and no good argument presented, in my opinion, why the law in this respect would be invalid.
    “ Another proposition was presented under a provision ■of this law. In section 1 of the act in question the words ‘ delinquent child ’ are defined as follows:

      “ ‘ The words “ delinquent child” shall include any boy under sixteen years of age, or girl under seventeen years of age, who violates any law of this State, or any city or village ordinance, or who is incorrigible, or who knowingly associates with thieves, vicious or immoral persons, or who is growing up in idleness or crime, or who knowingly visits or enters a house of ill repute, or who knowingly patronizes or frequents any policy shop or place where any gaming device is or shall be operated; or who patronizes or frequents any saloon or place where intoxicating liquors are sold, or who frequents or patronizes any public pool room or bucket shop, or who wanders about the streets in the night-time without being on any lawful business or occupation, or who habitually wanders about any railroad yards or tracks, or jumps or hooks onto any moving train, or enters any car or engine without lawful authority, or who habitually uses vile, obscene, vulgar, profane, or indecent language, or is guilty of immoral conduct in any public place or about any schoolhouse; every child who does not attend school and who is vicious, incorrigible or immoral in conduct while attending school, or who is an habitual truant from school, or who habitually wanders about the streets and public places during school hours without any lawful occupation or employment. Any child committing any of the acts herein mentioned shall be deemed a juvenile delinquent person, and shall be proceeded against as such in the manner hereinafter provided.’
    “It was contended upon the argument that this law, defining, as above stated, who a delinquent child was, put it out of the power of the courts to deal with these children, provided they committed any crime. In other words, if it is a fact that a child who committed murder is just under the age of 16, or that such child committed rape, or robbery, or arson, he is the same as a boy who ran away from school or who wandered around the streets in the night-time, and that the language of this statute which says that delinquent children ‘ shall be proceeded against as such in the manner hereinafter provided ’ takes away from the courts the power to proceed against them in any other way, and that, too, for the reason that section 14 of this act says that ‘all acts or parts of acts inconsistent herewith are repealed.’ In other words, if this statute provides that delinquent children shall be punished in a certain manner, it repeals all laws prosecuting these children for other well-known criminal offenses. It seems to me that it is assuming a good deal to claim that all criminal laws of this State against boys under the age of 16 and girls under the age of 17 are- repealed by this statute. In no place does this statute say that they shall not be proceeded against in any other way. In no place does it say, nor can it be .implied, that the prosecution of criminals is inconsistent with the provisions of this act, and in all the cases cited, and in all the States where similar laws prevail, it never seems to have been decided that the law defining and taking care of delinquent children prevented the proper courts from proceeding against them when they had committed any criminal offense; and in a similar statute in the State of Jllinois it is expressly provided that the law shall in no way interfere with the courts proceeding against delinquent children as criminals, when they have committed crime. The fact that this provision is made in the law of Illinois in no way affects the question as to whether the law would not have been the same if no such provision had been expressly made.
    “Another objection made to the law is that it provides no punishment for juvenile delinquents, and that there is no way of enforcing the law. Section 5 of the act, among others, says:
    If it shall appear to the court or commissioner that the public interests and the interests of such child will be best subserved thereby, he may make an order for the return of such child to his ■or her parents or guardians or friends, or upon conviction may impose a fine, or suspend sentence for a definite or an indefinite period, and may place such child while so on suspended sentence, under charge of the county agent on probation under the provisions of Act 91 of the Public Acts of 1903 as amended.’
    “This provides for the care and custody of the child, including what is known as the ‘ probationary child; ’ and under the same section it provides:
    ‘“At any time during the probationary term of a child released on probation as aforesaid, the court or commissioner by whom the child was so released, when presided over by its judge, at the time of the hearing, or his successor in office, may in its discretion revoke or terminate such probation. If the child be found to be willfully wayward and unmanageable, the court or commissioner may cause him or her to be sent to the industrial school for boys at Lansing, or the industrial home for girls at Adrian, or to any State institution authorized by law to receive such boy or girl, subject to such conditions of sex and age as are provided by law for the reception of children in said school, home, or institution.’
    “It seems to me that the object of the law is simply that in all such cases the court may put the child upon probation, and if, at any time during such probation, or even at the time of trial, the court shall think that the child is willfully wayward or unmanageable, he may send him, as other children are sent, to the industrial school for boys at Lansing, or, if the child be a girl, to the industrial home for girls at Adrian, to be taken care of as now provided by law. It seems to me there is no uncertainty in this section, when' properly examined, as to the power of the court to provide for punishment of such children as it may deem deserving of punishment under this law.
    “ As to the proposition that the legislature has the power to say that a person within certain ages cannot commit crime, it strikes me that there is very good reason for doubting the' power of the legislature in this respect. Crimes of murder, rape, robbery, arson, burglary, and larceny are as old as the common law. The power to act and punish them is recognized in all civilized countries, and to say that under these conditions the legislature have power to arbitrarily say that persons within certain ages cannot commit these offenses seems to me to be extremely doubtful, and I have no question in my mind but what, if they have this power, it must be stated in such positive and unequivocal terms that their intention cannot be ■ doubted. No such provision or statement has been made in this law, and no attempt has been made to state it. ■ It might as well be argued with equal sense that a man who is charged with making a noise or rioting, or quarreling or fighting or making a disturbance, or frequenting gaming houses or houses of ill fame, and who is charged with disorderly conduct — with equal propriety it might be said that if, in the perpetration of this disorderly conduct, a murder or larceny or robbery is committed, he could not be punished for such offense, because the statute making these offenses disorderly conduct repeals the prosecution of these offenses by implication. It seems to me the idea %is ridiculous.
    “ It has been contended that section 14 of this act, which provides that this act shall not apply to the counties of Berrien, Jackson, Houghton, Mecosta, Barry, Ottawa, and Manistee, makes the whole act unconstitutional, because it is class legislation in not applying to all the territorial limits of the State of Michigan, and that the legislature had no power to make it apply to a part of the State and not to the whole. The decision of the Supreme Court of this State, cited on the argument, seems to put this question at rest. It was there held that class legislation did not consist in the fact that a law only applied to a certain part of the territory of the State, but that it was class legislation when it failed to apply to all alike, within the territory designated in the law. I think this matter is too well settled by the decisions of the Supreme Court of this State to require further comment.
    “When this matter was presented to the court, it occurred to me that we had under consideration one of the most important matters, if not the most important matter, that had ever been presented before me since I had been on the bench. ' It seems that this law is an effort on the part of well-meaning people to look after and care for the children of this country; that they have recognized the fact that the cities and villages of the land are full of uncared for and unprotected children. They ha.ve also realized the fact that it is within these tender ages, before the child arrives at maturity, that the future character and conduct of the child is moulded; that no matter how well-bred a child may be, or how moral or intelligent the parents may be, if the proper care or direction is not thrown around the child within these years of infancy and youth, the character of the man or woman will be moulded for ill. They have recognized the fact that in this age of graft, of the desire for wealth, of the desire for display, of the desire for pleasure, the care of the child is neglected, and that this neglect has a tendency to develop the worst characteristics of a person. Seeing that numbers of' the parents of the country are so careless of the welfare of their children, the strong arm of the government reaches out, as it ought to, to protect these.children against themselves and against the criminal of their parents. Children thus neglected grow willful, vicious, and depraved. Before it is fully recognized the child has developed such criminal tendencies that the prospects of reform are remote, and in many cases impossible. These facts being patent to all observing people, the power of the State is exercised for the purpose of remedying this evil, and taking away from the great army of criminals the daily recruits they are receiving from these neglected children, and all efforts in this direction should be encouraged; and while I am not in favor of undertaking to enforce a law that is unconstitutional, or to make a thing legal that is not legal, I do not believe that it is the duty of a court to be looking for reasons why such a beneficent law as this should be stricken from the statute.
    ‘ ‘ I have given as much attention as I can to the consideration of this matter, and I see no good- or valid reason why this law should not be enforced. Being of the opinion that the law is constitutional, I think an order should be entered that the circuit judges appoint one or more of their number to conduct this juvenile court. Being of the opinion that the law in no way interferes with the right of police magistrates to prosecute boys under the age of 16 and girls under the age of 17 for violation of the criminal law, I, therefore, think that the mandamus ought to be issued as prayed for in the petition, directing the police magistrate to proceed against boys before him charged with burglary.”
    The prosecuting attorney applied to this court for a writ of mandamus to compel the said circuit court for the county of Wayne, and the judges of said court, to enter the order prayed for.
    The act in question is as follows:
    “ An act to regulate the treatment and control of dependent, neglected, and delinquent children and to establish juvenile courts.
    “ The People of the State of Michigan enact:

    “ Section 1. This act shall apply only to minors. For the purpose of this act the words ‘ dependent child ’ and ‘ neglected child ’ shall mean any child who for any reason is destitute or homeless or abandoned or dependent upon the public for support or who has not proper parental care or guardianship or who habitually begs or receives 'alms or who is found living in any house of ill fame or with any vicious or disreputable person or whose home by reason of neglect, cruelty or depravity, on the part of its parents, guardian, or other person in whose care it may be, is an unfit place for such child; any child under the age of ten years who is found begging, peddling, or selling any article, or singing or playing any musical instrument upon the street as a business, or giving any public entertainment or who accompanies or is used in the aid of any person so doing. The words ‘ delinquent child ’ shall include any boy under sixteen years of age, or girl under seventeen years of age, who violates any law of this State or any city or village ordinance, or who is incorrigible, or who knowingly associates with thieves, vicious or immoral persons, or who is growing up in idleness or crime, or who knowingly visits or enters a house of ill repute, or who knowingly patronizes or frequents any policy shop or place where any gaming device is or shall be operated; or who patronizes or frequents any saloon or place where intoxicating liquors are sold, or who frequents or patronizes any public pool room or bucket shop, or who wanders about the streets in the night-time without being on any lawful business or occupation, or who habitually wanders about any railroad yard or tracks, or jumps or hooks on to any moving train, or enters any car or engine without lawful authority, or who habitually uses vile, obscene, vulgar, profane, or indecent language, or is guilty of immoral conduct in any public place or about any schoolhouse; every child who does not attend school and who is vicious, incorrigible, or immoral in conduct while attending school, or who is an habitual truant from school, or who habitually wanders about the streets and public places during school hours without any lawful occupation or employment. Any child committing any of the acts herein mentioned shall be deemed a juvenile delinquent person and shall be proceeded against as such in the manner hereinafter provided. A disposition of any child under this act, or any evidence given in such cause, shall not in any civil, criminal, or other cause or proceeding whatever in any court, be lawful or proper evidence against such child for any purpose whatever excepting in subsequent cases against the same child under this act.
    “ Sec. 2. In counties in this State having over one hundred thousand population, the circuit court of the said counties shall have original jurisdiction in all cases coming within the terms of this act. In counties in this State having less than one hundred thousand population and more than twenty-five thousand population, the circuit court commissioner, or in case there are more than one circuit court commissioner, either of them shall have original jurisdiction in all cases coming within the terms of this act. In counties having twenty-five thousand population or less, the probate court shall have original jurisdiction in all cases coming within the terms of this act. In all trials under this act, any person interested therein may demand a jury of six, or the judge or commissioner of his own motion may order a jury of the same number to try the case. The jury so ordered shall be summoned and impaneled in accordance with the law relating to juries in courts held by justices of the peace.
    “Sec. 3. In counties having over one hundred thous- and population, a majority of the judges of the circuit court shall designate one or more of their members whose duty it shall be to hear all cases coming under this act. A court-room to be designated as a ‘ Juvenile Court Room ’ shall be provided for the hearing of such cases, and the findings of the court shall be entered in a book or books to be kept for that purpose and known as the ‘Juvenile Record;’ and these courts shall be called the ‘Juvenile Courts.’
    “ Sec. 4. The governor may appoint in each county of this State an agent of the State board of corrections and charities, for the care and protection of ill-treated, dependent, and delinquent children, who' shall hold his office «during the pleasure of the governor and shall be known as the * County Agent ’ for the county for which he is appointed. Before entering upon the duties of his office and within thirty days after receiving notice of his appointment, the said agent shall take and file with the county clerk of the county for which he was appointed, the oath of office prescribed by the Constitution of this State; and upon such qualification, it shall be the duty of the county clerk to immediately transmit notice thereof to the judge of the juvenile court and circuit court commissioners and to the superintendents of all State and incorporated institutions authorized to receive or place out on contract, indenture, or adoption, any child. The said agent shall receive as compensation for his services under this act his. necessary official expenses together with the sum of three dollars in full for each day ordered by the court, the superintendent of any State institution, or the State board of corrections and charities, but not exceeding three dollars, for any one day’s service; which shall be audited by the board of State auditors and paid from the general fund;. and when such services and expenses relate to the indenture, adoption, or visiting of children placed in families by State institutions, the amounts therefor shall be' certified by the superintendent of the institution to which the child may belong; and when such services shall be ordered by the court or commissioner the amounts therefor shall be certified by the court or commissioner so ordering such service. Such bills shall specify time spent, miles traveled, manner of travel, and each item of the expense incurred.
    “ Sec. 5. Any reputable citizen being a resident in th& county having a knowledge of a child in his county who. appears to be either neglected, dependent, or delinquent, may file with the court or commissioner having jurisdiction in the matter, a petition in writing, setting forth such fact or facts duly verified by affidavit, and it shall be-sufficient that such affidavit shall be upon information and belief. Whenever such petition is filed, it shall be-the duty of such court or commissioner, and before any further proceeding is had in the case, to give notice in writing of pendency to said agent, if there be one in said county, who shall have opportunity allowed him to investigate the facts and circumstances surrounding the case, and, upon receiving such notice, the agent shall immediately proceed to inquire into and make a full examination of the parentage and surroundings of the child and all the facts and circumstances of the case, and report the same to the said court or commissioner who shall advise and counsel with the agent; and if, upon such consultation, and after full investigation, it shall appear to the court or commissioner that the public interest and the interest of the child will be best subserved thereby, a summons shall issue requiring the person or persons having custody or control of the child' or with whom the child may be, to appear with the child at a place and time which shall be stated in the summons; and if such person is other than the parent or guardian of such child, then said parent or guardian shall be notified of the pendency of the case: Provided, That when said parents or guardians are nonresidents or cannot be found, then such notice shall not be required. If persons so summoned as herein provided shall fail without reasonable cause to appear with the child and abide the order of the court, he may be proceeded against for contempt of court under and in accordance with the provisions of chapters thirty-eight and three hundred one of the Compiled Laws of 1897. In case the summons cannot be served, or parties fail to- obey the summons, and in any case when it shall appear to the court or commissioner that such summons will be ineffectual, upon complaint on oath and in writing, a warrant may issue either against the parent or guardian or other person having custody of the child or with whom the child may be or against the child itself and said child may be committed to the care of any person or association pending the final disposition of the case: Provided, That when a warrant is so issued, the prosecuting attorney of the county shall be notified and shall appear in the case for the people, if such appearance does not result in an undue delay in the disposition of the case. On return of the summons or warrant, or as soon thereafter as may be, the court or commissioner shall proceed to hear and dispose of the case, and if it shall appear to the court or commissioner that the public interests and the interests of such child will be best subserved thereby, he may make an order for the return of such child to his or her parents or guardians or friends; or upon conviction may impose a fine, or suspend sentence for a definite or an indefinite period, and may place such child while so on suspended sentence, under charge of the county agent on probation under the provisions of Act 91 of the .Public Acts of 1903 as amended: Provided, The court or commissioner may in its discretion appoint one or more discreet persons of good character other than the county agent to act as probation officers and to have said child in charge. Such probation officers shall report to the State board of corrections and charities on ' all cases referred to them: And provided further, That the person so appointed other than the county agent shall receive no compensation from the public treasury for the duties performed under such appointment. The child may thus be placed for such time and upon such condition as the court or commissioner may determine, and such child so released shall be furnished with a written statement of the terms and conditions of their release. At any time during the probationary term of a child released on probation as aforesaid, the court or commissioner, by whom the child was so released, when presided over by its judge at the time of the hearing, or his successor in office, may, in its discretion, revoke or terminate such probation. If the child be found to be willfully wayward and unmanageable, the court or commissioner may cause him or her to be sent to the industrial school for boys at Lansing, or the industrial home for girls at Adrian, or to any State institution authorized by law to receive such boy or girl subject to such conditions of sex and age as are provided by law for the reception of children in said school, home, or institution, and in such case, the report of the county agent shall be attached to the mittimus and the child shall be placed in the charge of the county agent or some person designated by him to be conveyed under his direction to the institution, for which service the same fees shall be allowed as are paid sheriffs in like cases: Provided, That when a girl is to be conveyed to any institution a suitable female shall be such officer so conveying such girl.
    ‘ ‘ Sec. 6. When any boy under the age of sixteen years, or girl under the age of seventeen years, shall be found to be a dependent or neglected child, within the meaning of this act, the court or commissioner may make an order committing the child to the care of some suitable State institution, or to the care of some reputable citizen of good moral character, or to the care of some training school, or industrial school as such provided by law, to the care of some association willing to receive it, embracing in its objects the purpose of caring for or obtaining homes for dependent or neglected children, which association shall have been approved by the State board of corrections and charities. The court, or commissioner may, when 'the health or condition of a child shall require, cause the child to be placed in a public hospital or an institution for treatment or special care, or in a private hospital or institution which will receive it for like purposes without charge.
    “ Sec. 7. No person shall commit a child under twelve years of age to any jail or police station, but it may be committed to the care and custody of the county agent or duly appointed probation officer who shall keep such child in some suitable place provided by the city or county outside of the enclosure of any jail or police station. When any child shall be confined in any institution, it shall be unlawful to confine such child in the same building with an adult or adults, or confine such child in the same yard or enclosure with an adult or adults, or to bring such child into any yard or building or in any Conveyance in which an adult or adults charged with crime may be present.
    “Sec. 8. In any case in which the court, or commissioner shall find a child neglected, dependent, or delinquent, it may in the same or subsequent proceedings, upon the parents of said child or either of them being duly summoned or voluntarily appearing, proceed to inquire into the ability of such parent or parents to support the child or contribute to its support, and if the court, or commissioner shall find such parent or parents able to support or contribute thereto, the court, or commissioner may enter such order or decree as shall be according to equity in the premises and may enforce the same by execution, or, in any way in which a court of equity may enforce its orders or decree.
    “Sec. 9. The judge of the probate courts and the circuit court commissioners coming within this act shall receive for all cases tried by them under this act fees equal to tljose heretofore received by justices of the peace for such cases in addition to their regular salary, and shall have power to draw orders upon the general fund of the county treasury for witness and jury fees and also for compensation to guardians ad litem appointed by court.
    “ Sec. 10. All children shall be at all times in the care and custody of the county agent while under orders of the court. Whenever any inmate of any juvenile institution shall be required as a witness, they shall be conveyed to and from the institution of which they are inmates by the county agent or under his orders and be at all times, while absent from said institution, in the care and custody of said agent: Provided, That when such inmate is a girl, such inmate shall be so conveyed by and shall be in the care and custody of a female duly authorized. The county agent may appoint some responsible and reliable person or persons subject to the approval of said court or commissioner to act as his deputy and the said agent shall be responsible for the acts of any deputy appointed by him. The agent shall receive for the care and custody of such dependent, neglected and delinquent children, under order of the court or commissioner, the same compensation and fees as is allowed sheriffs for like services and paid by the county treasurer on approval by the court or commissioner ordering such services, in like manner as juror and witness fees.
    “ Sec. 11. In no case shall any minor child be indentured, apprenticed, adopted, or otherwise disposed of by any person by either of the methods herein named or under any laws of the State, except on the written approval of the person or persons taking such child, by the county agent of the State board of corrections and charities of the county in which the person applying for the child resides or by a superintendent of the poor of the county where there is no such agent except by the father or mother residing in this State, and if either be dead or of legal incapacity, then by the guardian of the child, resident of this State and duly appointed under the laws thereof.
    “Sec. 12. In and for the county of Wayne, there shall be an officer to be known as deputy county agent, who shall have all the rights, powers and privileges conferred by this act upon county agents, and who shall be empowered to perform any work or discharge any duty herein authorized or directed to be performed or discharged by any county agent. Said deputy county agent shall be a male resident of the city of Detroit, and shall be appointed by the county agent for Wayne county in the following manner: Within thirty days after this act shall go into effect, the said county agent shall appoint a suitable male resident of the city of Detroit as such deputy, subject to the approval, however, of the circuit judges, or a majority of them, of the third judicial circuit. Said circuit judges shall be notified in writing by said county agent to said appointment, and within fourteen days after the ■receipt of said notification, shall in writing, by majority action, either approve or disapprove said appointment. In the event of disapproval the said county agent shall forthwith make a new appointment, subject to approval or disapproval in like manner as above provided, and shall continue to make an appointment until said approval be so made. Upon such written approval being so made, the county agent shall be notified thereof by the said circuit judges and due notice of such approval shall also be given by the said circuit judges to the person so appointed as deputy. Before entering upon the duties of his office-as deputy, and within ten days after receiving notice of his appointment, the said deputy agent shall take and file with the county clerk of Wayne county the oath of office prescribed by the Constitution-of this State. Upon such qualification it shall be the duty of the county clerk immediately to transmit notice thereof to the superintendents of all State and incorporated institutions authorized to receive or place out any child on contract, indenture or adoption. For any work •done or expenses incurred by the Said deputy county agent under the terms of this act, he shall receive the same compensation and the same fees, and they shall be paid him, in the same manner, as is herein provided for compensation and fees for county agents for like work done or expenses incurred. The said deputy county agent shall hold office at the pleasure of the county agent. Any vacancy in the office of said deputy county agent shall be filled in the manner herein provided for the appointment of the deputy to be first appointed under this act. The said deputy shall, whenever so required by the State board of corrections and charities, make a full report of his acts and conduct.
    “ Sec. 13. The attorney general shall prepare a uniform system of blanks which shall be furnished by the county to carry out the provisions of this act.
    “Sec. 14. All acts or parts of acts inconsistent herewith are repealed: Provided, That nothing in this act shall be construed to repeal any portion of the acts covering the State public school: Provided further, That this act shall be of no effect as to any proceeding or proceedings, pending at the time this act takes effect: And provided further, That the provisions of this act shall not apply to the counties of Berrien, Jackson, Houghton, Mecosta, Barry, Ottawa and Manistee. And as to those ■counties the present law is not repealed.”

      We have had the benefit of able briefs and of oral arguments, and among the contentions most strongly presented are:
    1. That the act attempts to establish a separate, independent court of original and exclusive jurisdiction and a court of record.
    2. That general judicial powers are attempted to be conferred upon circuit court commissioners.
    3. That, if construed as creating a court of record, it is not competent for the legislature to provide for trial by a jury of six.
    4. That the jurisdiction of the courts named in the act would not be uniform in all the counties of the State.
    5. That section 5 of the act is not within the title of the act, and contravenes sections 26 and 32 of article 6 of the Constitution.
    6. That the provisions of the act are. vicious, inconsistent with each other, and cannot be given effect.
    It is further contended that the act may be given effect at least in counties having a population of 100,000, in which counties the jurisdiction is conferred upon the circuit courts.

      Ormond F. Hunt, in pro. per.

      Fred H. Warren, for respondents.

      John E. Bird, Attorney General, Henry E. Chase, Deputy Attorney General, and Thomas Ambrose Lawler, Assistant Attorney General, amici curise.

      As to State guardianship of children generally, see note to Whalen v. Olmstead (Conn.), 15 L. R. A. 593.

   Ostrander, J.

(after stating the facts). It will be perceived that the questions presented to this court in this matter do not arise upon an attempted enforcement of legislation. The record before us and the record in the matter of Hooper v. McKenzie, post, 120, evidence the fact that responsible officers of the State, gentlemen whose opinions are entitled to the greatest respect, decline to undertake, at all, the enforcement of this statute. The differences of opinion of these gentlemen, the range, scope, and specifications of the attack upon, and the arguments and reasoning in support of, the legislation, indicate the importance of the questions presented. Legislation is rarely in advance of, most often follows at a conservative distance after, the community conviction of the desirability or necessity for legislation, and it maybe assumed that the statute in question here is a reflection of sentiment amounting to a demand for legislation of such character. It is matter of common knowledge that legislation of similar character has been recently enacted in many of the States. Indeed, comparisons indicate that this statute is made up of fragments of other like statutes. The facts and even the vagaries of physiology and psychology, the age, sex, and mental and physical health of the individual members of the community, are factors in any system of jurisprudence. That the State should be, and is, profoundly interested in the moral and physical conditions of infant citizens, goes without saying. The law recognizes, as the physical and the social senses recognize, the requirements of nurture and of education, mental and moral. Infancy imports wardship. It' implies control, direction, restraint, supervision.- Depending, as it may and does, upon the natural and usual sentiments attending parentage and family, society is conscious, and has from earliest times been conscious, of the fact that conditions may be such that these dependencies are without support, and that the State itself must in some cases be parent to children of the State. From the earliest times the law, while regarding the natural rights of parents and deciding between estranged parents with equal natural rights, according to rules more or less certain, has always, in the last analysis of the particular case, set the welfare of the child, and the interest of the community in the welfare of the child, above every other consideration. In England the court of chancery, originally the keeper of the king’s conscience in his paternal relations to all his subjects, has uniformly assumed to place the interest of the child above the natural rights of parents and the legal rights of guardians, and in this country the same coui’ts have exercised the same jurisdiction, basing such jurisdiction equally upon the inherent power of the court and upon statutory authority. See In re Stittgen, 110 Wis. 625. Including in its exercise the removal of the child from a bad to a better environment, and restraint corresponding with the necessity for restraint, it is not doubted, and has been rarely questioned, that this power may be exploited by the legislatures of the various States.

The legislature of this State has heretofore established a house of correction for juvenile offenders, the statute name for which is “ The Industrial School for Boys” (1 Comp. Laws, §§ 2196-2207), andan “IndustrialHome for Girls” (1 Comp. Laws,§§ 2209-2221), commitment to either of which involves conviction for an offense punishable by law, by fine or imprisonment or both, excepting, however, convictions punishable by law by imprisonment for life. There is, also, a “ State Public' School” at Cold-water (1 Comp. Laws, §§ 2021-2035) which may receive children over 2 and under 12 years of age, sound in mind and body, dependent on the public for support, and having no parents who can be compelled to support them or indemnify the public for support. Commitment to this school is upon the order of the probate judge of the proper county. The custody of children received at this school is intended to be temporary, and children are kept until they can be placed in family homes. The board of control is made guardian of all children admitted to the school, such guardianship to continue during the minority of the child. The House of the Good Shepherd, at Detroit, is made a place of legal detention of such girls as are convicted in the county of Wayne of an offense for which they might be sent to the home at Adrian. 1 Comp. Laws, § 2222. While criminal conduct, charged and determined according to the criminal code, or actual dependency upon the public for support, are by this legislation made the grounds and reasons for public interference, that interference is not limited, in point of time, by either a sentence as for crime committed, or the continuance of the status of dependency. If the legislature may properly make State wardship contingent upon. conviction for crime or actual demands upon the public treasury, may it not, also, otherwise define the status of infants requiring guardianship, and enforce State control and education of infants coming within the class ? This question has been many times, and must now be, answered affirmatively. The questions from time to time presented in the cases •cited are determined, as one would suppose, sometimes in support, and sometimes in defeat, of the particular legislation which is considered. The tests applied are various; •constitutional limitations upon the exercise of legislative powers and constitutional determination of the repose of judicial powers not being the same in all of the States. Putting aside'for the present all questions concerning the conclusive character and effect of proceedings employed to determine the status of the child, either upon the parents •or the child, the power of the legislature to determine, by rules and definitions, the class or classes of children requiring it, and to impose State supervision, is no longer open to question. Jarrard v. State, 116 Ind. 98; Board of Children's Guardians v. Shutter, 139 Ind. 268 (31 L. R. A. 740); State v. Kilvington, 100 Tenn. 227 (41 L. R. A. 284); Ex parte Nichols, 110 Cal. 651; Ex parte Liddell, 93 Cal. 633; Farnham v. Pierce, 141 Mass. 203; Matter of Wares, 161 Mass. 70; Matter of Kelley, 152 Mass. 432; State v. Brown, 50 Minn. 353 (16 L. R. A. 691); Matter of Ferrier, 103 Ill. 367; County of McLean v. Humphreys, 104 Ill. 378; Ex parte Crouse, 4 Whart. (Pa.) 9; Milwaukee Industrial School v. Supervisors of Milwaukee County, 40 Wis. 328; Wisconsin Industrial School for Girls v. Clark County, 103 Wis. 651; Hibbard v. Bridges, 76 Me. 324; Mansfield's Case, 22 Pa. Super. Ct. 224; Cincinnati House of Refuge v. Ryan, 37 Ohio St. 197; Prescott v. State, 19 Ohio St. 184; Roth v. House of Refuge, 31 Md. 329; Ex parte Loving, 178 Mo. 194; People v. Catholic Protectory, 101 N. Y. 195; Com. v. Fisher, 213 Pa. 48; People, ex rel. Ivis, v. Amigh (Cir. Ct. Cook County, Ill.), 38 Chi. Leg. N. 20, Sept. 2, 1905; State v. Home Society, 10 N. Dak. 493; Scott v. Flowers, 60 Neb. 675, 61 Neb. 620.

From the point of view indicated, keeping in mind, also, the fact that infant citizens and their parents and guardians have rights which must be considered, it remains for us to examine the Objections made to this statute, not disposed of by what has been already said. Legislation of like character in other States is so recent that in but few of them has the law received consideration in the courts of last resort. In none of them is it possible to urge, against the validity of the law, one objection which is strongly urged here. In all of the statutes which have been examined jurisdiction is vested in an established constitutional court, of more or less dignity. In the case of Commonwealth v. Fisher, 213 Pa. 48, the statute under consideration was the act of April 23, 1903 (Act No. 205, Laws of 1903), by the terms of which the court of quarter sessions of the peace was designated as a juvenile court. Appellant had been committed by that court to the House of Refuge. It was urged that the tribunal was an unconstitutional body and without jurisdiction. The act was entitled—

“An act defining the powers of the several courts of quarter sessions of the peace, within this commonwealth, with reference to the care, treatment and control of dependent, neglected, incorrigible and delinquent children, under the age of sixteen years’ and providing for the means in which such power may be exercised.”

It was said by the court that:

“The court of quarter sessions is not simply a criminal court. The constitution recognizes it, but says nothing as to its jurisdiction. Its existence antedates our colonial times and by the common law and statutes, both here and in England, it has for generations been a court of broad general police powers in no way connected with its criminal jurisdiction. * * * With its jurisdiction unrestricted by the constitution, it is for the legislature to declare what shall be exercised by it as a general police court, and, instead of creating a distinctively new court, the act ■of 1903 does nothing more than confer additional powers upon the old court and clearly define them. * * * It is a mere convenient designation of the court of quarter sessions to call it, when caring for children, a juvenile court, but no such court, as an independent tribunal, is created. It is still the court of quarter sessions before which the proceedings are conducted, and though that court, in so conducting them, is to be known as the juvenile court, the records are still those of the court of quarter sessions.”

By the Constitution of Michigan, art. 6, § 1, the judicial power is vested in one Supreme Court, in circuit courts, in probate courts, and in justices of the peace. “Municipal courts of civil and criminal jurisdiction may he established by the legislature in cities. ” There is the further constitutional provision that “the legislature may provide by law for the election of one or more persons in each organized county, yjho may be vested with judicial powers not exceeding those of a judge of the circuit court at chambers.” Const, of Mich. art. 6, § 16. Under the authority of this provision, the legislature has provided, for the election in each county of officers called “circuit court commissioners.” If the act which we are considering were to be given effect, jurisdiction under it would vest, in two counties in circuit courts, in 44 counties in probate courts, and in 30 counties in circuit court commissioners. The constitutional jurisdiction of circuit courts is—

“Original jurisdiction in all matters civil and criminal not excepted in this Constitution and not prohibited by law, and appellate jurisdiction from all inferior courts and tribunals and a supervisory control of the same. They shall also have power to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari, and other writs necessary to carry into effect their orders, judgments and decrees, and give them general control over inferior courts and tribunals within their respective jurisdictions, and in all such other cases and matters as the Supreme Court shall by rule prescribe.” Const. of Mich. art. 6, § 8.

The probate courts have such jurisdiction, powers, and duties as shall be prescribed by law. The objection made is that the legislature may not confer upon circuit court commissioners the powers required by the act to be exercised, and that, this being so, the act must be held to be entirely invalid and inoperative. As to the first proposition, namely, that circuit court commissioners may not be vested with the powers of this act, there seems to be little or no contention. If it is held, as it may be, that the act should be construed as one not intending to create a new court or new courts, but as vesting further or new jurisdiction in existing courts, we escape serious objections, leveled at the idea that the statute creates a new court; but in so holding we make no headway against the contention that the Constitution does not permit circuit court commissioners to be clothed with these new judicial powers. If we go further and hold that the proceedings contemplated are not criminal proceedings, but are special, statutory inquiries, that the right of trial by jury is not invaded, that the commitment provided for is not imprisonment, for all of which rulings support is to be found in cases already cited, we are still confronted with the alleged purpose of the legislation to establish juvenile courts, and to confer upon them powers beyond those which a circuit court commissioner may exercise. It was suggested at the hearing that, as the legislature had made definitions, the determination of a particular case involved only an inquiry into the surroundings and conduct of a child, and, as the determination required to be made in no case resulted in punishment, the proceedings were at most quasi judicial in character, and might be conducted as well by a circuit court commissioner as by a circuit court. It was further suggested that if it is found that the act in terms confers powers beyond those just stated, and beyond those which a circuit court commissioner may exercise, the provisions of the act open to objection should be disregarded, and the act for the general purpose intended be held to be operative.

It is clear that the act provides for tribunals in which. the facts stated in the petition which is filed may be traversed, and in which the issues presented may be determined. It is clear that, when it is possible, the parents of the child are to be notified, and may appear and be heard. There are the provisions giving power to punish, as for contempt, contumacious parents, in accordance with the provisions of designated statutes, which in terms apply to courts of record only. The power to issue summonses and warrants, “or upon conviction” to impose a fine, to suspend sentence, to place the child upon probation and revoke and terminate such probation, to inquire into the ability of parents to support or to contribute to the support of children in the custody of the State and to enter and enforce decrees to that end — all of these provisions are indicative of the purpose to provide for, not only judicial, but court, proceedings. Satisfied of the legislative intent and purpose, can it be held that it may be disregarded, the provisions evidencing this intent eliminated, and the statute held to be for any purpose generally operative ? It seems to me that every consideration forbids such a ruling. Unless the act can be held to be inoperative in counties where jurisdiction is given to circuit court commissioners, and operative, if other objections to the act are overruled, in counties where the jurisdiction is given to .probate courts and to circuit courts, it is unnecessary to discuss further the questions presented. We are obliged to say that the language of the act indicates, not only the purpose to provide for a uniform administration of the law, but for its general application in all territory not expressly excepted from its operation. Judicial power does not extend to the mutilation or amendment of the act necessary to give it any effect in any county.

For the reasons given, the act must be held to be invalid. The order of the circuit court for Wayne county was right, and the writ of mandamus is denied. No costs are awarded.

Moore, C. J., and McAlvay, Grant, and Blair, JJ., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    HOOPER v. McKENZIE.
    Infants — Wardship—Control by State.
    This case involves a construction of the same statute considered in Hunt v. Wayne Circuit Judges, ante, 93, which it follows.
    Certiorari to Calhoun; Hopkins, J.
    Submitted October 13, 1905.
    (Calendar No. 21,377.)
    Decided December 4, 1905.
    Mandamus by Joseph L. Hooper, prosecuting attorney of Calhoun county, to compel Charles F. McKenzie, circuit court commissioner, to hear a petition under Act No. 312, Pub. Acts 1905. There was an order denying the writ, and relator brings certiorari.
    Affirmed.

      Joseph L. Hooper, in pro. per.

      Charles F. McKenzie, in pro. per.

      John E. Bird, Attorney General, Henry E. Chase, Deputy Attorney General, and Thomas Ambrose Lawler, Assistant Attorney General, amici curise.
   Ostrander, J.

The plaintiff in certiorari is prosecuting attorney for the county of Calhoun. The respondent is one of the circuit court commissioners for said county. On the 22d day of September, 1905, a petition was presented to said respondent at the city of Battle Creek subscribed and verified by the petitioner, and addressed to the respondent as judge of the juvenile court, setting out, upon the information and belief of the petitioner, that a certain child, named therein, living in the city of Battle Creek, was a delinquent child, within the meaning of Act No. 312 of the Public Acts of 1905, and respondent was requested to file said petition and give notice to the county agent of said county, as required by the terms of said act. ^Respondent declined to receive and file the petition and to give the notice for the reason that, in his judgment, the act in question was in violation of the Constitution of the State. Thereupon the relator applied to the circuit court for the county of Calhoun, setting out the facts above stated, and also that the infant named in said petition to said circuit court commissioner did, on September 18, 1905, commit the offense of larceny, and he asked that a writ of mandamus issue to the respondent circuit court commissioner, requiring him to receive and file the petition, and to proceed under the provisions of said act with respect to the said alleged delinquent child. An order to show cause was issued, return was made, and after a hearing the circuit court made an order refusing the writ of mandamus prayed for. Thereupon a writ of certiorari was issued out of this court to review the action of said circuit court.

The judgment and determination of the circuit court for •the county of Calhoun, upon the authority of Hunt v. Wayne Circuit Judges, ante, 93, is affirmed. No costs are awarded.

Moore, C. J., and McAlvay, Grant, and Hooker, JJ., concurred.


author: Moore, C. J.

text:
    BULLOCK v. AUDITOR GENERAL.
    1. Taxation — Sales of Land — Certificate—Withholding Conveyance.
    The mere possession of a certificate of the county treasurer that no taxes remain unpaid against certain land will not entitle its owner to redeem from a tax sale under section 98 of the general tax law (Act No. 154, Pub. Acts 1895), where the certificate was not presented to the auditor general and no application such as the statute contemplates was ever made to him.
    2. Same — Setting Aside Sale — Tender op Payment.
    Under section 70 of the general tax law (Act No. 154, Pub. Acts. 1895), an honest effort in good faith to pay his taxes is necessary to relieve a landowner from the burden of a sale of his land for a delinquent tax; misinformation by the county treasurer in regard to the existence of the tax when information is sought for the purpose of bringing proceedings to avoid the tax will not have that effect. ■
    Appeal from Monroe; Lockwood, J.
    Submitted October 10, 1905.
    (Docket No. 30.)
    Decided December 4, 1905.
    Petition, by Mary R. Bullock and B. Ellis Bullock against James B. Bradley, auditor general, and Archie T. Miller to set aside a sale of land for taxes. From the decree rendered, petitioners and respondent Miller appeal..
    Reyersed, and petition dismissed.

      Willis Baldwin, John O. Zabel, and B. J. Corbin,. for petitioners.

      Brown & Farley, for- respondent Miller.
   Moore, C. J.

Mr. Miller, one of the respondents,, purchased, August 20, 1904, of the auditor general, theE. £ of N. W. fractional quarter of section 18, township 8 S., range 7 E., containing 96 acres, and received a deed therefor, and as a condition of purchase paid to the auditor general $505.48, and upon the same date purchased and procured deed for the S. W. i of N. W. fractional quartet of section 18, township 8 S-, range 7 E., containing 48 acres, paying as a condition of purchase $251.46; both of said descriptions of land being sold to the State under a decree for the taxes delinquent for the year 1889,. and the sale being made in May, 1892. The petitioners asked leave by petition to open the decree for the sale of said lands. Upon, hearing the petition, the trial court made an order setting aside the sale and the deed of respondent Miller, and as a condition ordered that the petitioners pay to the register of said court, or Mr. Miller,, the sum of $360.01; the decree being based upon the contention that statements were made to the solicitor of the petitioners by the county treasurer, when proceedings were contemplated by them to set aside the tax, that there were no taxes remaining unpaid against said lands, and also upon certificates made by the county treasurer during and at the time when said tax had been returned to the State and was on the State tax land list subject to purchase from the State. Both parties appeal; the petitioners claiming the entire tax should be set aside, while the respondents claim the petition should be dismissed, or in any event that a return in full of the money paid by Mr. Miller should be required.

The circuit judge was of the opinion that, while the regularity of the tax could not be inquired into, the conversation between the attorney for the petitioners and the county treasurer followed by the tax certificates would amount to a payment in its effect upon the rights of the State to enforce a lien or sell the title to the premises. The petitioners were the owners of the land heretofore described. An application was made in June, 1888, for the construction of a drain across their and other lands, which application they signed. The record is meager as to what was done in relation to this drain. It is clear, however, that petitioners’ lands were assessed in 1889 and the tax extended against their lands. They paid all the other taxes, but declined to pay the drain tax. They testified .they employed a lawyer to take proceedings to set aside the tax. His testimony is not very clear, but it is to the effect that he examined the records with a view of commencing a chancery proceeding, and had a talk with the county treasurer. Of this conversation he testified:

“ I was employed in reference to this tax for the Bullock drain some time in 1893, I think. Mr. Bullock, one of the petitioners, employed me to look it up for himself and wife; .1 went to the treasurer’s office and made inquiry. I got the amount returned against the land. I do not remember whether the treasurer gave it to me or whether I looked it up on the records. I prepared a bill to file to set aside the drain tax. I do not remember what time in 1893 I first went there. I got the bill nearly completed. There was some details I wanted to get. I guess the last time I had any talk with the treasurer about it he said, ‘ there is no use doing anything about that ditch. That tax has been rejected; that is the end of it.’ To make sure I wrote to the auditor general at Lansing.”

The attorney described land in the wrong township in his letter. The auditor general replied that, as to the lands inquired about, they were not returned delinquent for the taxes of 1889 and 1890. On the cross-examination the attorney testified:

“This was in 1893 that I went to the county treasurer’s office, and I found at that time the drain tax was unpaid. It remained a lien on the land. How much of the record I examined I do not know. I got the data and the amount of the tax that was returned. Whether the treasurer gave me the data I do not know. I don’t know whether he gave me the amount from the books, or whether I went to the roll myself. The. reason I wrote to the auditor general was I wanted to be sure that the treasurer’s information to me was correct. He told me it had been rejected.
Q. You had prepared a bill to set aside the sale. From that you were aware that the tax had been returned to the county treasurer ?
“A. I undoubtedly understood at that time that the town treasurer had returned this tax. I knew he had returned it. It was in 1892 that I prepared a bill. The bill was for the purpose of setting aside the tax. By reason of the county treasurer’s information, which was clinched by the auditor general’s' information, I did not start the suit.”

Petitioners offered in evidence a certificate attached to a quitclaim deed from Judson and others to petitioner Bullock, conveying the land in question, which was objected to by the respondents, for the reason that the county treasurer was not the proper officer to make the certificate. A certificate was introduced which read as follows:

“ State of Michigan, \ .
County of Monroe. )
“Treasurer’s Office,
“ Monroe County, Michigan,
“December 1st, 1893.
“ I, Luke Dunn, county treasurer of said county, do hereby certify that I have examined the tax records in my office and find that the taxes assessed upon the lands described in the annexed deed have been paid for the five years preceding this date and that it does not appear from said records that either the State of Michigan or any individual hold any tax deed or lien upon said premises.
“Luke Dunn,
“ County Treasurer.”

A like certificate was introduced bearing date November 20, 1901.

Did the trial judge reach a right conclusion as tp the effect of these certificates, and what occurred between the attorney and the county treasurer ? It will be remembered the decree was entered in 1892. The petitioners were nonresidents of the State. There was no personal service, but the usual newspaper publication was had. The petition avers the petitioners did .not know of the sale of the land for the taxes until a short time before filing the petition. Section 70 of the general tax law (Act No. 206, Pub. Acts 1893) provides:

“ That no sale shall be set aside after confirmation except in cases where the taxes were paid or the property was exempt from taxation.”

In which case the owner might move the court to set aside the sale, if the motion was made within a year after notice of the sale came to him. Section 98 of the general tax law (Act No. 154, Pub. Acts 1895) contains provisions for making corrections by the auditor general. The ■only one of the last-named provisions which could affect the situation here is the fourth one, reading:

“ That a certificate that no taxes were charged against .said lands has been given by the proper officer within the time limited by law for the payment or redemption thereof.”

This certificate was not presented to the auditor general, .and no application contemplated by the statute was made to him. The provisions of sections 70 and 98 have been repeatedly construed. In Hand v. Auditor General, 112 Mich. 597; Kneeland v. Wood, 117 Mich. 174, and Kneeland v. Hyman, 118 Mich. 56, it was held substantially that where one made an honest effort, acting in good faith, to pay his taxes, that he was protected by the sections of the law from which we have quoted. It is very clear in this case that the attorney for the petitioners was not seeking information from the county treasurer with a view of paying petitioners’ taxes. On the contrary, it appears that his inquiries were made for the purpose of avoiding the payment of the taxes. His testimony indicates he did not put much reliance upon what he was told by the county treasurer, but wrote to the auditor general, making inquiries of him. In his letter he inquired about land in another township, and was truly informed in relation to the land about which he inquired. This court has not held, and it ought not to hold, that an effort to obtain information for the purpose of avoiding a tax, is the equivalent of an honest effort to pay the tax. See Spaulding v. O’Connor, 119 Mich. 45; Berkey v. Burchard, 119 Mich. 101; Burns v. Ford, 124 Mich. 274; Blondin v. Griffin, 133 Mich. 647; Rumsey v. Griffin, 138 Mich. 413; Smith v. Auditor General, 138 Mich. 582.

The decree of the court below is reversed. The petition is dismissed, with costs of both courts.

McAlvay, Grant, Blair, and Ostrander, JJ., concurred.


author: McAlvay, J.

text:
    WALSH v. TAITT.
    1. Fraud — Evidence—Chattel Mortgage.
    A chattel mortgage on a stock of goods belonging to a partnership seemed, besides the mortgagee’s claim, the claim of a milling company which had, been assigned to the mortgagee. Defendant, one of the partners, claimed that the mortgage was secured from his partner fraudulently, without his knowledge, and was a part of the mortgagee’s scheme to drive him out of business. Held, that evidence that the partnership had a valid defense to the milling company’s claim, consisting of a breach of a valuable contract due to the mortgagee’s interference, and that the assignment was made for the purpose of defeating that claim, was admissible on the issue of fraud.
    3. Same.
    It being shown that the mortgagee had agreed to carry the mortgagor’s indebtedness if reduced to a certain amount within a certain time, and that the stipulated reduction had been nearly accomplished, evidence that, if the mortgage had not been taken and immediately foreclosed, the agreed amount would have been paid, was admissible.
    3. Same — Trial—Instructions.
    Where fraud is relied upon as a defense to a chattel mortgage, defendant is entitled to have his theory of the case, including the facts and circumstances in evidence, which he claims, constitute the fraud, specifically submitted to the jury; a general charge referring to the arguments for the constituent elements of fraud is not sufficient.
    4. Same.
    An instruction that fraud must be proved by “ clear” and satisfactory evidence requires too high a degree of proof.
    Error to Bay; Shepard, J.
    Submitted October 10, 1905.
    (Docket No. 25.)
    Decided December 4, 1905.
    Replevin by Thomas Walsh and John Walsh against George R. Taitt. There was judgment for plaintiffs, and defendant brings error.
    Reversed.

      Pierce & Kinnane (John L. Stoddard, of counsel), for appellant.

      T. A. E. & J. G. Weadock, for appellees.
   McAlvay, J.

Defendant and James Gilmore, copartners, were engaged in the grocery business in Bay City. This firm became a customer of the National Grocer Company (Gustin, Cook & Buckley Branch), changing to them from another concern upon an agreement that credit to the amount of $1,000 would be extended. In November, 1902, their indebtedness was about $1,500. Buckley, the manager of the creditor company, requested that this account be reduced to $1,000 by December 1st following. This was agreed to, and payments aggregating $380 made, and moneys were accumulating to pay the balance agreed upon. Defendant, Taitt, the business manager of his firm, had no knowledge that the creditor company was dissatisfied. A few days before November 28th, Buckley requested a chattel mortgage of Gilmore upon the Taitt & Gilmore stock. Several interviews were had without the knowledge of Taitt, the last one on the evening of November 28th, at which were present Buckley and Phipps of the National Grocer Company, their attorney, Mr. Weadock, Gilmore and Mr. Court-right, his personal attorney. There is a dispute as to what occurred at these interviews; Gilmore claiming that he refused to give a mortgage and was selling his interest, and the other side claiming the contrary. At this last, meeting, after a protracted discussion, it was agreed to pay Gilmore $800, and he signed a mortgage to the National Grocer Company for the amount of the balance of their account, $1,159.75, with this $800 added, including an account of another creditor of $574.25, making a total of $2,534. That night a memorandum check for $800 was given by Buckley payable to Gilmore’s attorney, because the company’s blank was not at hand, with the understanding that another check would be substituted in the morning. The check given in the morning was payable to Taitt & Gilmore. Gilmore hesitated about accepting it because it was not payable to him, but finally indorsed it and received the cash, as he explains, because they had the mortgage. This mortgage was immediately recorded. It covered all the stock, property, book accounts, lease, and effects of Taitt & Gilmore, provided for foreclosure when the mortgagee deemed itself insecure, and either public or private sale. Under it the property was seized early the next morning soon after Taitt opened the store. When Taitt went to consult his attorney he was locked out. All that day and the Sunday following an inventory was taken by the mortgagee, and early on Monday morning the sale was made to plaintiffs. Defendant, Taitt, was the lessee of the premises and occupied with his family all but the store in which the firm business was carried on. On Monday Taitt refused to deliver the wagons, harness, etc., to Walsh on Buckley’s demand, and that night, entering the store through a door not locked, from the part occupied by him, took possession. Finding defendant in possession, plaintiff John Walsh at once went to Buckley. As to that interview and its results he testified as follows:

“ After the unpleasantness' I went to Mr. Buckley and said: ‘ Frank, I am dissatisfied with this sale, and I want my money back. You agreed to give us a lease, and you haven’t done so. The store has been broken into, and you agreed to give us possession, and we certainly have no possession, and we are disgusted with this, and I want my money back.’ He said: ‘ John, it would look bad on the face of it for us to pay you just at this time. It would look as though we were in league in some way or other, and to take the goods and then simply have us take them off your hands. Now I will compensate you for them so I will see that you lose nothing.’ Andthathedid, Ithink, on the 10th day of the month. He paid me back all but the money I had possession of; in other words, he made good to me the amount I had paid upon the purchase. I gave him credit for the cash I had received. I have not been paid one cent for my time and trouble.”

Relying entirely upon the question of the'fraudulent conduct of the National Grocer Company in this transaction, defendant withdrew all question as to the regularity of the foreclosure from consideration by the jury. Defendant, in questioning the good faith of the National Grocer Company and as among other things tending to show fraud on its part in obtaining the mortgage, claimed and offered to show that the firm of Taitt & Gilmore was not indebted to the Humbolt Milling Company, whose claim of $574 was included in the mortgage, which fact Manager Buckley knew; that Buckley, acting for his company, had forced the milling company to break a certain valuable contract of agency with defendant’s firm and taken the agency to his concern, whereby defendant’s firm had suffered great damage, and Buckley had been told by defendant the details of the defense to said milling company account by reason of breach of said contract; that Buckley’s concern was undertaking to drive them out of business. As tending to support this theory, certain letters in connection with the milling company account were offered in evidence. They were not admitted, nor was defendant permitted to show said transaction.

We think under the offer made the evidence should have been admitted. The obtaining of this mortgage from Gilmore, without the knowledge or consent of his partner, and at the same time paying him $800 for executing the same and other matters connected with it, all tended to support defendant’s theory of fraud on the part of the mortgagee. A large part of the consideration for this mortgage'was the milling company’s claim, concerning which the mortgagee had full knowledge. Defendant was entitled to go into this transaction and the whole •of it as bearing upon the question of fraud.

It was admitted in the case that the grocer company had requested Taitt & Gilmore to reduce their account to $1,000 by December 1st, and it was claimed that the account would be carried for that amount, and cash was to be paid for subsequent purchases. Under this claimed arrangement the account was reduced $380 and cash paid for a number of small orders. Defendant offered to show that if he had been given until December 1st, he could have paid the $171.25 balance. Defendant excepted to the ruling excluding such testimony. Defendant claimed that he was manager of the firm and as such had made this arrangement about which there is little dispute. It is : admitted that care was used by these parties to keep the matter of the attempt to get this mortgage from the knowledge of defendant, Taitt. This evidence was offered for the purpose of showing the fraudulent conduct of the mortgagee. The court should have allowed the evidence. If defendant’s testimony is believed, his firm had until December 1st to reduce the claim! His first knowledge of any dissatisfaction or different arrangement was on the morning after the mortgage was given. This evidence tended to show that defendant was in good faith fulfilling his agreement, and to show the fraudulent conduct of the grocer company, all of which defendant was entitled to place before the jury to be considered in determining the question of fraud in the case.

The several errors assigned upon refusal to give certain requests of defendant, and to portions of the charge of the •court as given, may he considered together, as all bear upon the question as to whether the claimed fraud in this case as presented by defendant was properly submitted to the jury. The defendant was entitled to have his theory of the case, including the facts and circumstances in evidence which he claimed constituted fraud, specifically submitted to the jury. This was not done. The charge in this respect was too general. The jury were referred to the arguments of counsel as to what they assumed constituted the elements of fraud in the case, and the court gave no specific charge as to what in this case would constitute fraud and vitiate the chattel mortgage. Wisner v. Davenport, 5 Mich. 504; Comstock v. Norton, 36 Mich. 279; Wilson v. Bowen, 64 Mich. 139; 2 Thompson on Trials, § 2324. .

Error is assigned to the instruction to the jury as to the proof required to show fraud. The court charged:

“Fraud can seldom be proved by direct evidence, and direct evidence is not always required of fraud. But fraud may be inferred from circumstances. While it may be inferred or deduced from circumstances, it ought not to be lightly inferred, nor inferred from slight circumstances, but the circumstances ought to be such that satisfy you that it exists. Fraud must be proved by clear and satisfactory evidence.”

All but the last sentence of this charge is correct. We think the use of the word “clear ” is erroneous and within the following decisions: Watkins v. Wallace, 19 Mich. 77; McNaughton v. Smith, 136 Mich. 368; Ferris v. McQueen, 94 Mich. 367; Gumberg v. Treusch, 103 Mich. 555.

Other assignments of error need not be considered.

Judgment is reversed, and a new trial ordered.

Moore, O. J., and Grant, Blair, and Ostrander, JJ., concurred,


text:
    SCHMELZER v. BARTLETT ILLUMINATING CO.
    Appeal and Error — Appealable Decisions — Final Orders — N uis ance — Abatement.
    Where, in a suit for the abatement of an alleged nuisance and for damages, the court, on application for a preliminary injunction, directs that proofs be taken in open court and finds on conflicting evidence that a nuisance exists, and that complainant is entitled to an abatement, an order then made, directing such abatement and the issuance of an injunction unless abatement is had within 60 days, is á final appealable order.
    Bill by John Schmelzer against the Bartlett Illuminating Company and the Saginaw Yalley Traction Company to abate a nuisance. From an order granting the prayer of the bill, defendants appeal: On motion to dismiss.
    Submitted October 10, 1905.
    (Calendar No. 21,329.)
    Denied December 4, 1905.
    Weadock, Purcell & Weadock, for the motion.

      Humphrey, Grant & Smith, contra.
   Moore, C. J.

This is an application to dismiss an appeal from an order made by the circuit judge in the case of Schmelzer v. Bartlett Illuminating Company and Saginaw Valley Traction Company. The complainant in his bill of complaint avers that he is the owner of a residence, used by himself and family, costing $20,000, and the furnishing of which cost as much more. He claims •that defendants afterwards erected their plant and by its operation are' maintaining a nuisance which does him great injury. He prays, among other things, first, for a decree perpetually abating the nuisance; second, for an injunction, both preliminary and perpetual, restraining defendants from using their plant; third, for the damages he has sustained.

Defendants filed answers in which they admit the ownership and operation of their plant, but deny the averments of complainant’s bill. They also contend that, if he is injured, he has an adequate remedy at law, and that the equity court should not take jurisdiction.

Complainant sought to have a preliminary' injunction issue. Before issuing it the circuit judge suggested that proofs be taken in open court. Defendants objected to this course until there could be a hearing on the merits, and stated they were not ready to make their defense. The judge overruled their objection and the inquiry was entered upon. Counsel for complainant say in their brief that 26 witnesses were sworn for complainant, photographs and plats were offered in his behalf, and that defendants swore one witness and offered affidavits and photographs in support of their answer. Arguments at length were made by counsel. The learned judge filed an elaborate opinion, in which he reviewed "the authorities and reached the conclusion that the case made was a proper one for the exercise of equity jurisdiction. In the opinion he uses the following language:

“ It seems clear to me from these authorities that the complainant has a perfect right to file a bill as he did and be heard prior to commencing a suit at law. How is it possible for a jury to estimate in dollars and cents the damage which a person might suffer by reason of noxious odors and gases being driven into his house, the discomfort that a person is placed to by a nuisance being committed continually ? The complainant shows that he has built a costly residence, costing the sum of $20,000, he has furnished and equipped it at a cost of about $20,000, his residence was built and home established prior to the building of the power plant in question, and the defendants knew it when they started to build the plant. Can it be said that because the defendant has built a plant costing $150,000, and it is the only place in the city where electric current can be supplied to the many customers and for the convenience of those who ride upon the cars operated in this city and between Saginaw and Bay City, that the complainant is to be deprived of, and driven out of, his home ? If this is true, I have been unable to find any-authority holding such a doctrine, and none was shown me. This plant could be located in any part of the city, and the claim made, that its plant was built at great expense to them, and if they were compelled to shut down the city would be in darkness and the cars could not be operated, this would be a misfortune, but who has caused it? Surely the complainant did not; he did not invite or encourage it. The only one to blame is the defendant. Many adventures have been a failure, and the one to blame is the person who started the venture. The plant itself is not a nuisance, it is the way it is operated, and the old maxim of law is: ‘So use your own that you do not materially injure your neighbor.’ This is not a new question, it has been passed by the English courts and nearly every court in the land, and the authorities are nearly uniform. * * *
“I have been unable to find a single case, where the facts are as in this case, but what a person has a right in equity to restrain the continuance of a nuisance. The testimony in this case satisfies me that the facts alleged in the complainant’s' bill in reference to. the nuisance, are true, and all of the allegations have been sustained, and if the plant is continued to be run as it is at present time, the home of the complainant will be ruined. Testimony was introduced to show that a smoke consumer could be placed under these boilers which would do away with the smoke. In this city, there are underfeed stokers in the plants of Mitts & Merrill, the Lufkin Rule Company, and that one was being installed at Seeman & Peters’ plant during the time of the trial of this case. Tlocyznski was an expert witness placed upon the stand by complainant, who showed, that there are a great many of the underfeed stokers in use. One is used in St. Louis, Mo., by the St. Louis Suburban Railway; also one at Dayton, Ohio, at the city waterworks; also they are in use in Tennessee, Pennsylvania, Minnesota, and several at Detroit and in Grand Rapids. And he further testified that one could be put in the plant, of the defendants at a cost of $1,000 for each furnace.
“It was further claimed upon the argument in this case that the court had no right at this time to make an order or issue an injunction, but only could do so after the final hearing, which would be next term of court. Testimony has been taken in this case, the case was fully argued by 'Counsel for complainant and defendant after the testimony was all submitted, and after a full hearing I am fully advised and convinced that the Bartlett Illuminating Company is maintaining and carrying on a nuisance, and is injuring the complainant, as claimed by him in his bill of complaint, and also that his damages are irreparable and he has not. a plain, adequate, and complete remedy at law, and he is entitled to have the nuisance abated. At this time I cannot give the complainant damages, but can restrain the operation of the plant by injunction, if the defendant the Bartlett Illuminating Company fails to discontinue the nuisance. An order may be entered that the company be given 60 days from this date in which to provide some means and appliances to take care of the smoke, soot, gases, and cinders that escape through the smokestack and go upon the property of the complainant, and, on their failure to suppress the nuisance in that time, an injunction may he issued restraining them from operating their plant, unless the company can make a satisfactory showing before me that 60 days is not sufficient time in which they are able to install such smoke consumer so as to prevent the nuisance complained of, and at such showing satisfy me that they have taken proper steps and that the work has progressed as fast as reasonably could be; otherwise injunction will issue at the expiration of 60 days from this date.”

He made an order in accordance with his opinion. It is from that order the appeal is taken. Is the order appealable ? Counsel for complainant say not, because it is not final, citing Wing v. Warner, 2 Doug.(Mich.) 288; U. S. Heater Co. v. Molders' Union, 129 Mich. 361; 2 High on Injunctions (3d Ed.), § 1693; 2 Cyc. p. 587. Without stopping to analyze these authorities, it may be said of them they are quite unlike the case at bar.

The question which arises at the very threshold in this litigation is, Were the defendants maintaining a nuisance ? Upon the answer to that question hinges all subsequent action of the circuit judge. If they were not maintaining a nuisance the bill should be dismissed. If they were, adequate relief ought to be granted to complainant. The complainant insisted upon an affirmative answer to the question; the defendant, upon a negative answer. Testimon.y was offered tending to support each of these contentions. The circuit judge, after hearing the testimony and the arguments of counsel,- decided this pivotal question in favor of the complainant, and made an order, in effect, requiring the n uisance to be abated within 60 days, or, in case of failure to do so, granting an injunction. It is true this order does not dispose of all the questions involved in the litigation, but it is equally true that it disposes of the basic one. Without going into detail, we, think it may be said that the following authorities show the order is final in the sense that it is appealable: Tawas, etc., R. Co. v. Iosco Circuit Judge, 44 Mich. 479, and the cases cited therein; Witbeck v. Chittenden, 50 Mich. 426; Candler v. Stange, 53 Mich. 479; Ladd v. Flynn, 90 Mich. 181; Hake v. Coach, 105 Mich. 425, and the cases there cited.

The motion to dismiss the appeal is denied.

McAlvay, Grant, Blair, and Ostrander, JJ., concurred.