text:
    JOHNSON v. BURGHORN.
    1. Waters and Watercourses — Navigable Streams — Riparian Rights.
    The owner o£ lands bordering on a navigable stream owns the submerged lands to the thread of the stream, subject only to the easement of navigation which the public may have therein, and he also owns the ice covering the surface of the water over the submerged lands, and any interference with these rights constitutes a trespass.
    2. Same — Trapping a Property Interest.
    The right of trapping is a property interest.
    3. Same — Trapping — Injunction — Traps Attached to Submerged Lands ob Ice.
    The riparian owner of lands bordering on a navigable stream, having the exclusive right to trap thereon, is entitled to an injunction restraining trespassers from entering upon his lands and from attaching traps to the submerged lands or to the ice covering the same.

      For authorities passing upon the question of injunction against hunting or fishing on navigable waters, or against interference therewith, see notes in 17 L. R. A. (N. S.)' 1236, and 38 L. R. A. (N. S.) 286.

      Appeal from Ottawa; Cross (Grien S.), J.
    Submitted June 15, 1920.
    (Docket No. 91.)
    Decided September 30, 1920.
    Bill by Charles Johnson against James, Burghom to restrain the trapping of muskrats and other fur-bearing animals. From the decree rendered, plaintiff appeals.
    Enlarged, modified, and entered in this court.

      Daniel F. Pagelson (Gerrit J. Diekema and Charles E. Misner, of counsel), for plaintiff.

      Louis H. Osterhous, for defendant.
   Stone, J.

The bill of complaint herein was filed to restrain the defendant from trapping and otherwise taking muskrats and other fur-bearing animals from the property known as Eastman’s or Johnson’s Island, in Grand river, in the county of Ottawa. The appended map or plat, taken from the record, was, introduced and used in evidence upon the hearing of the case. It will aid in an understanding of the situation. We compile from the stipulated statement of facts the following:

That the plaintiff is the owner by grant and in actual possession of the lands described in the bill of complaint, and has been in such actual possession, and has occupied said lands for farming purposes for 25 years and upwards; that he obtained title to said premises by deed of conveyance, under date of December 28, 1892, from the owners of the land adjoining to and abutting upon Grand river; that said premises form an island in Grand river, between the village of Spring Lake and the city of Grand Haven, and were formerly a part of the submerged lands owned by the owners of the upland abutting upon Grand river, and are opposite to such lands; that said island is bounded along the northerly side by a channel or ditch dredged through the island as it originally existed many years ago, from the open water of Grand river at the westerly or down-river end to the up-water of Grand river at the easterly or up-river end, by the then owner of the island; and on the westerly, southerly and easterly sides by the waters of Grand river, and that the main channel of said Grand river is at the westerly and southerly boundaries of said land.

That in surveying sections 21 and 22, of which said island is a part, the United States government surveyed only such portions of said sections as were unsubmerged by the waters of Grand river; that it meandered the lines of Grand river upon both sides thereof and around the said island as a navigable stream, and did not survey the bed of said river or any part thereof; that said Grand river was and is recognized by the United States government and its surveyors as a navigable river, and is treated as such, and it has ever been and is now navigable in fact and within the meaning of the law; that the United States government never, by express grant, sold or conveyed to the State of Michigan^ or any one else, the bed of said river, or the soil of sections 21 and 22 submerged thereby, but conveyed, granted and sold only such fractional portions of said sections as were unsubmerged by the waters of the river.

That plaintiff claims ownership of the bed of the river and the soil submerged thereby adjacent to and adjoining his lands to the thread or middle of the stream. He does not take the same by express grant or patent or act of congress from the United States, or from the State of Michigan, but by virtue of his conveyance and as an incident to his ownership of a part of the surveyed fractional section to the center line or thread of the stream such ownership and title is conceded by the defendant.

That the plaintiff by virtue of his aforesaid ownership of, and title to, the bed of the stream adjacent to said lands to the thread of such stream, claims an exclusive right to trap for muskrats and other aquatic animals in and upon the waters of Grand river covering the soil submerged by the waters adjacent to his lands to the thread of said stream, and denies to the public any interests in or rights upon the said submerged lands and waters covering the same, other than the right of navigation.

That upon said island there is a bayou extending from the open water of Grand river at the westerly end of said island up approximately through the center of said island three-eighths of a mile long, and varying in width from 200 to 400 feet; that the center of the down-river end of the bayou at its opening into the main channel is from three to five feet deep, and slopes and shoals so that at the easterly end of the bayou it is not over six inches in depth. There may be places in the bayou where it is deeper, but in these it rarely exceeds three feet, and that the entire bayou is covered with grass and weeds during the greater portion of the year, but the same may at all times be navigated by small boats; that said plaintiff, about the middle of the month of December, 1919, placed and caused to be placed notices upon said premises informing the public and this defendant that no trapping or hunting was to be permitted thereon, in accordance with the statute in such case made and provided; that said defendant knew that said signs had been placed upon said premises and had been informed by the plaintiff that he must not trap upon said premises, and must not in any manner invade said premises; that said lands in the upland and said submerged lands are valuable for the taking of muskrats and other aquatic animals whose hides may be used for fur, and that this plaintiff has realized large sums of money from the taking of muskrats by means of traps from said premises to the extent of $1,000. That said defendant, after the notices were placed upon said premises, and after he had been notified by the plaintiff not so to do, did enter in and upon' said premises and did place traps upon said premises, and did take therefrom a large number of muskrats all of the value of to-wit, $500. That said defendant, even after he knew of the notices and after he had been notified by said plaintiff so to do, has refused to remove his traps from said premises, and continued to maintain traps thereon until he was enjoined by the order and injunction of the court, and that since said time he has removed his traps from said premises.

The defendant claims no right either in himself or in the public to trap in the waters of the channel or ditch forming the northerly boundary of said lands, which ditch was established by the act of a previous owner, and now forms the northerly boundary and a portion of said lands to which plaintiff has absolute title by grant and conveyance, and claims no right either in himself or in the public to trap upon any part of the premises described in the bill of complaint above the ordinary high-water mark of Grand river along the westerly, southerly and easterly sides thereof, and concedes plaintiff’s right to restrain him and any of the public from hunting or trapping thereon, without his consent. The defendant denies that the plaintiff has any exclusive right in, over and upon the water of Grand river along the westerly, southerly and easterly sides of said island, and claims that the public has a right to navigate the said waters, to fish therein, to shoot duck and other wild fowl and to otherwise hunt thereon, and to trap for muskrats and other fur-bearing aquatic animals therein, on all parts of the same between the ordinary high-water mark and the thread of the stream, either from boats during the open season of the year, or through the ice during the seasons when the river is frozen over; and claims that plaintiff’s; title of ownership of and control over the soil under the waters of said Grand river are subservient to the public right of navigation, fishing, hunting and trapping in and upon said waters, and over and upon such submerged soil either from boats in the open hunting and fishing season, or upon and through the ice in the winter season.

That the particular and only question involved in this case and to be determined herein and hereby is, as claimed by defendant, whether or not the public, against the objection of the riparian owner who by virtue of, and as incident to his ownership, grant and conveyance of land bordered by the navigable waters of Grand river, and similar navigable waters and rivers in this State, has title to the bed of the stream to the thread thereof, subject to the public rights in, over and upon such waters for the purpose of navigation, the right to fish and the right to hunt and trap in, over and upon such waters between the ordinary high-water mark thereof, and the thread of the strearp, as an incident to, or in addition to a right to navigate such waters; and in so fishing,.hunting and trapping, to anchor a boat to the bed of the stream, and to anchor or attach a trap to the submerged lands and to place a trap thereon for the purpose of securing aquatic animals therein, either by stakes to the bed of the stream, or to the ice formed thereon, to cut holes in the ice covering such submerged lands for the purpose of placing such traps, upon the submerged lands, contrary to the wishes and in direct opposition to notice given by the owner of the lands.

At the hearing, the learned circuit judge, after stating that it was admitted the defendant had no right to hunt or trap upon the uplands of plaintiff, but that he claimed the right to hunt, trap and fish upon the navigable waters of Grand river, even though plaintiff owns the land to the thread of the stream as an incident to his ownership of the land along the banks of said river, was of the opinion that the defendant and all other persons have the right to use the navigable waters of this State between ordinary' high-water marks, for boating, fishing, trapping and hunting purposes, “if access is gained to said waters without committing a trespass.” The trial court therefore ordered that a permanent injunction should issue restraining the defendant from hunting, fishing or trapping upon all of the lands of the plaintiff, as described in the bill of complaint, except over and upon the navigable waters of Grand river between ordinary high-water mark along the westerly, southerly and easterly sides of said land; and a decree was entered accordingly. From this decree the plaintiff has appealed.

It is practically admitted by the defendant that the plaintiff is the owner of, and in possession of, the lands described in the bill of complaint, and that the description covers the lands in question, where the defendant had set his traps; that the plaintiff is the absolute owner in fee of the upland and the submerged land covered by the waters of Grand river, subject only to the easement of navigation which the public may have therein.

It is the claim of the plaintiff that the defendant placed traps upon the lands of said plaintiff, as described in the bill of complaint, and also placed them on the shores of said land in the waters of Grand river where said waters were from two to six inches deep; that he placed such traps in the so-called cut or ditch on the northerly side of said island, along the shores of said bayou extending within said island, and on the eastérly end of said island; that the waters of Grand river, the main channel thereof, flow along the westerly, southerly and easterly sides of said island, and a portion of such waters form a shallow bayou extending some three-eighths of a mile into this island, and that this bayou, in the summer time, is filled with weeds and grass, and that the entire island is surrounded with weeds and grass extending from its shores.

Defendant admits that he has no right to place his traps in the ditch, drain or channel on the northerly side of said island, nor in the non-navigable waters about said island; but claims a right to place his traps on the submerged lands of the river, and to anchor a boat to the bed of the stream in the submerged lands, and in the ice covering such submerged lands in the winter time, for the' purpose of trapping for such animals in the navigable portions of Grand river.

It will be observed on an examination of the record that by the answer and statement of facts, together with the findings and decree of the court below, it is sought to inject into the case the questions of hunting and fishing. Under the bill of complaint and facts, as agreed upon, there is no question before this court regarding hunting and fishing, and the only question for this court to decide is in regard to trapping, and we shall confine ourselves to that question.

As we understand the case, there are two propositions for this court to pass upon:

(1) Who is the owner of the submerged lands bordering on navigable waters such as Grand river?

(2) Who has the exclusive right to trap and take the fur-bearing animals in such waters?

We have spent much time in examining the numerous decisions of this court upon the questions here involved, and kindred questions:

1. As has been stated, it is conceded in the answer and in the statement of facts that the plaintiff is the owner of the lands described in the bill of complaint, and that said description covers all of the property shown in the map or plat hereto attached. The owner of the shore lands owns the submerged lands connected therewith to the thread of the stream. Lorman v. Benson, 8 Mich. 18 (77 Am. Dec. 435); Clark v. Campau, 19 Mich. 325; Bay City Gas Light Co. v. Industrial Works, 28 Mich. 182; Fletcher v. Boom Co., 51 Mich. 277; Sterling v. Jackson, 69 Mich. 488 (18 Am. St. Rep. 405); Campau Realty Co. v. City of Detroit, 162 Mich. 243.

The owner of the land not only owns the submerged lands to the thread of the stream, but also owns the ice covering the surface of the water over the submerged lands, subject to such rights, if any, that other riparian owners may have, and any interference with these rights constitutes a trespass. Lorman v. Benson, supra; People’s Ice Co. v. Steamer Excelsior, 44 Mich. 229 (38 Am. Rep. 246); Bigelow v. Shaw, 65 Mich. 341; Hoag v. Place, 93 Mich. 450 (18 L. R. A. 39); Grand Rapids Ice & Coal Co. v. South Grand Rapids Ice & Coal Co., 102 Mich. 227 (25 L. R. A. 815, 47 Am. St. Rep. 516).

It also has been held by this court that the gravel in the bed of a navigable stream, as between private parties, is owned by the abutting property owner, to the thread of the stream. This also has been the holding of the United States Supreme Court. McMorran Milling Co. v. Little Co., 201 Mich. 301, 317; Archer v. Gravel Co., 233 U. S. 60 (34 Sup. Ct. 567); Wear v. Kansas, 245 U. S. 154 (38 Sup. Ct. 55, Ann. Cas. 1918B, 586).

2. Counsel have discussed the question: Who has the exclusive right to trap and take fur-bearing animals in these waters? The industry of counsel and our own examination have failed to find much direct authority upon the subject of trapping on submerged lands. It is virtually conceded in this case that in order to trap upon these submerged lands it is necessary to anchor the traps by stakes, or otherwise to the submerged lands if the waters are not frozen over, and to cut holes in the ice covering such submerged lands for the purpose of placing such traps in the winter season.

It is claimed by plaintiff that this court has held that the riparian owner has the exclusive right of - hunting upon the submerged lands covered by navigable streams, and a clear distinction is made between lands bordering on navigable streams and lands bordering on the Great Lakes. Ainsworth v. Hunting & Fishing Club, 153 Mich. 185 (17 L. R. A. [N. S.] 1236, 126 Am. St. Rep. 474, 15 Ann. Cas. 706); Same v. Same, 159 Mich. 61. In the last cited case as re- , ported in 159 Michigan, this court, speaking through Justice Grant, said:

“The sole question now before us is whether Munoskong Bay is included in the waters of Lake Huron, or whether it borders on the river. If the former, thp defendant has no exclusive rights of hunting and fishing, and the decree of the court is right. If the latter, then the defendant owns the subaqueous land to the middle thread of the river, and the decree is wrong.”

See, also, Hall v. Alvord, 114 Mich. 165 (38 L. R. A. 205); Sterling v. Jackson, supra.

It is the contention of plaintiff, and in this we think he is correct, that the defendant had no right to anchor his traps in the submerged lands, or to cut holes in the ice and fix stakes thereto, holding traps. That the party whose private possession has been thus interfered with has a right of action for the protection of his property has, we think, been passed upon and sustained by this court. Giddings v. Rogalewski, 192 Mich. 319, at p. 326; Winans v. Willetts, 197 Mich. 512, 518; Marsh v. Colby, 39 Mich. 626 (33 Am. Rep. 439); Burroughs v. Whitwam, 59 Mich. 279.

We think the right of trapping is a property interest. St. Helen Shooting Club v. Barber, 150 Mich. 571.

That plaintiff has suffered such an irreparable injury as invokes the aid of a court of equity is, we rtfi-nkj clear. Ainsworth v. Hunting & Fishing Club, 153 Mich. 185, 190; 22 Cyc., pp. 763, 764.

The learned trial judge, in his findings and decree, held that,

“the defendant and all other persons have the right to • use the navigable' waters of this State between ordinary high-water marks for boating, fishing, trapping and hunting purposes, if access is gained without committing a trespass.”

Just what the learned trial judge meant by the expression “without committing a trespass” it is difficult to understand, for it seems, to be conceded that in order for the defendant to successfully trap for muskrats upon the property in question, he must fasten his traps by means of stakes or otherwise to the submerged lands, or to the ice covering the same. This would constitute a trespass by “invading the close” of the plaintiff.

In Sterling v. Jackson, supra, Justice Champian, in the prevailing opinion, said:

“The defendant claims, that he had the right to shoot the wild fowl from his boat, because, as the waters were navigable where he was, he had the right to be there; that, there being no property in wild fowl until captured, if he committed no trespass, in being where he was, no action will lie against him for being there ■and shooting the wild duck. There is a plausibility in the position which, considered in the abstract, is quite forcible, and, if applied to waters where there is no private ownership of the soil thereunder, would be unanswerable. But, so far as the plaintiff is concerned, defendant had no right, to be where he was, except for the purpose of pursuing the implied license held out to the public of navigating the waters, over his land. So long as that license continued, he could navigate the water with his vessel, .and do all things incident to such navigation. He could seek the shelter of the bay in a storm, and cast his anchor therein; but he had no right’to construct a ‘hide/ nor to anchor his decoys, for the purpose of attracting ducks within reach of his shotgun. Such acts are not incident to navigation, and in doing them, defendant was not exercising the implied license to navigate the waters of the bay, but they were an abuse of such license.”

In our opinion the decree of the court below should be enlarged and modified, and one entered here restraining the defendant from entering upon the lands of the plaintiff, and from attaching his traps to the submerged lands, or to the ice covering the same, upon the premises described in the bill of complaint, giving the plaintiff the exclusive right to trap thereon.

We refrain upon this record from passing upon the questions of shooting and fishing as not being involved in this case, and as presenting a moot question.

The decree will therefore be enlarged and modified, and one entered here in accordance with this opinion, with costs to the plaintiff.

Moore, C. J., and Steere, Brooke, Fellows, Clark, Bird, and Sharpe, JJ., concurred.


source: Caselaw Access Project

author:
      Moore, C. J. Sharpe, J.
     Fellows, J.

license: Public Domain

text:
    HAMILTON v. SECRETARY OF STATE.
    1. Constitutional Law — Initiative—Petition tor Submission oe Amendment — Ministerial Duty.
    Where a petition to the secretary of State to submit to vote of the people a proposed amendment to the State Constitution under .section 2, Art. 17, is conceded to be proper in form and to contain the required number of signatures, it is his duty to place said proposed amendment upon the ballot at the forthcoming election, and he may not question the constitutionality of said amendment or refuse to submit it because in his judgment it may be in conflict with the Federal Constitution; his duties in connection therewith being ministerial and not judicial.

      On mandamus to compel delivery of copy or to require promulgation of act passed by the legislature, see note in 22 L. R. A. (N. S.) 1089.

      2. Same — Constitutionality of Proposed Amendment Not Before Court.
    Said amendment not having yet been voted upon by the people, the question of its constitutionality is not before the court, and will not be passed upon until it is properly presented.
    3. Same — Judicial Yeto.
    To exercise the power of judicial veto against the consti- . tutionality of an amendment before its adoption, or a law before its enactment, finds no justification in necessity, and is an unwarranted assumption by the courts of the power reserved to the people in the Constitution or conferred by it on the legislature.
    4. Mandamus'— Constitutional Amendment — Discretion of Court to Compel Submission.
    In mandamus proceedings to compel the secretary of State to place a constitutional amendment upon the ballot, the Supreme Court has no discretion to refuse the writ, the duty of said officer, when the petition is in proper form and sufficient, to submit said amendment being plainly prescribed by law, and in such case mandamus is no more matter of discretion than any other remedy.
    Brooke, Fellows, and Clark, JJ., dissenting.
    Mandamus by James Hamilton to compel Coleman C. Vaughan, secretary of State,' to submit a proposed amendment to the Constitution.
    Submitted October 1, 1920.
    (Calendar No. 29,334.)
    Writ granted October 1, 1920.

      Moore & Moore, for plaintiff.

      Alex. J. Groesbeck, Attorney General, and Clare Retan, Assistant Attorney General (H. E. Spalding, of counsel), for defendant.

      Dielcema, Rollen & Ten Cate and J. C. Lehr, amici curiae.

   Moore, C. J.

This is a proceeding instituted by plaintiff to compel defendant to submit to the electors at the general November election a proposed amendment to the Constitution of this State. Pursuant to the provisions of the State Constitution initiatory petitions, signed by plaintiff and others, were filed in the office of defendant proposing an amendment to the Constitution of this State, which amendment reads as follows:

“Section 16. All residents of the State of Michigan, between the ages of five years and sixteen years, shall attend the public school in their respective districts until they have graduated from the eighth grade:. Provided, That in districts where the grades do not reach the eighth, then all persons herein described in such district shall complete the course taught therein.
“Sec. 17. The legislature shall enact all necessary legislation to render section sixteen effective.”

The defendant being advised by the attorney general that the proposed amendment was in conflict with the Constitution of the United States, and should not be submitted to the electors at the general November election, notified plaintiff that he would not submit the same, whereupon plaintiff made application to this court for a writ of mandamus to compel defendant to place the proposed amendment upon the ballot at the November election.

It is contended on the part of the defendant that the proposed amendment is invalid for the following reasons :

“(1) It is in conflict with the 14th Amendment to the Constitution of the United States, in that it abridges the privileges and immunities of citizens of the United States.
“(21) It violates, the 14th Amendment to the Constitution of the United States, in that it deprives persons of their liberty and property without due process of law.
“(3)i It violates section 4 of article 5 of the Constitution of the United States, which guarantees to every State in the Union a republican form of government.
“ (4) In addition to the foregoing, another proposition is herein involved, viz., the duty of the secretary of State to submit the proposed amendment to the electors, although the same is in conflict with the Constitution of the United States.”

Each of the above propositions is argued at length and with great ability. We are of the opinion that it is not our duty at this time to determine these questions.

It is conceded that a petition with the proper number of signatures was in February, 1920, filed with the defendant to make it his duty to submit the proposed constitutional amendment to the people at the November election, if the proposed amendment is not in conflict with the Federal Constitution. No one knows to any certainty whether if the amendment is submitted to the legal electors it will receive a sufficient number of votes to carry it./ If it does not receive such a number of votes no one is harmed.

If the defendant in this case may decide whether the proposed amendment is constitutional and thus refuse to submit it, May he not in any case in which it is his judgment that the proposed amendment is unconstitutional, decline to submit it? If he may exercise this power, Is not he going much farther than his duties as a ministerial officer authorize him to go? If the proposed amendment should receive a majority of the legal votes cast, there will then be time enough to inquire whether any provision of the Federal Constitution has been violated. ■ Until that time comes we must decline to express any opinion as to the unconstitutionality of the proposed amendment.

It is claimed on the part of the defendant that the question is foreclosed by Scott v. Secretary of State, 202 Mich. 629; Hamilton, v. Secretary of State, 204 Mich. 439; Hamilton v. Secretary of State, 206 Mich. 371; and Decher v. Secretary of State, 209 Mich. 565.

Without discussing those cases in detail, we think a reading of the opinions therein will show them to be easily distinguished from the instant case and that they are not inconsistent with this opinion.

We think it the duty of the defendant to submit the proposed amendment, and it is so ordered. Other opinions may be filed later.

Steere, Stone, Bird, and Sharpe, JJ., concurred with Moore, C. J.

Sharpe, J.

I concur in the opinion of the Chief Justice, holding that the constitutionality of the proposed amendment is not before us for decision. While the conclusion reached by him is tersely stated, the time permitted • in its preparation prevented any lengthy discussion of the question presented. Its importance prompts me to express at greater length my views on the subject.

The provision as to amendments to the Constitution (Art. 17) by the initiative and referendum reads as follows:

“Sec. 2. Amendments may also be proposed to this Constitution by petition of the qualified voters of this State. Every such petition shall include the full text of the amendment so proposed, and be signed by not less than ten per cent, of the legal voters of the State. Initiative petitions proposing an amendment to this Constitution shall be filed with the secretary of State at least four months before the election at which-such proposed amendment is to be voted upon. Upon receipt of such petition by the secretary of State he shall canvass the same to ascertain if such petition has been signed by the requisite number of qualified electors, and if the same has been so signed, the proposed amendment shall be submitted to the electors at the next regular election at which any State officer is to be elected. Any constitutional amendment initiated by the people as herein provided shall take effect and become a part of the Constitution if the same shall be approved by a majority of the electors voting thereon and not otherwise. Every amendment shall take effect thirty days after the election at which it is approved. The total number, of votes cast for governor at the regular election last preceding the filing of any petition proposing an amendment to the Constitution, shall be the basis upon which the number of legal voters necessary to sign such a petition shall be computed. The secretary of State shall submit all proposed amendments to the Constitution initiated by the people for adoption or refection in compliance herewith. The petition shall consist of sheets in such form and having printed or written at the top thereof "such heading as shall be designated or prescribed by the secretary of State. Such petition shall be signed by qualified voters in person only with the residence address of such persons and the date of signing the same. To each of such petitions, which may consist of one or more sheets, shall be attached the affidavit of the elector circulating the same, stating that each signature thereto is the genuine signature of the person signing the same, and that to the best knowledge and belief of the affiant each person signing the petition was at the time of signing a qualified elector. Such petition so verified shall be prima facie evidence that the signatures thereon are genuine, and that the persons signing the same are qualified electors. The text of all amendments to be submitted shall be published aa constitutional amendments are now required to be published.”

The only ground suggested for denying the writ is the unconstitutionality of the proposed amendments ’To that end this court is asked to determine an issue ■upon an abstract legal question not based upon or arising out of any existing law or fact — in effect to halt proposed legislation pending its adoption and to exercise its exceptional power of judicial veto against an amendment of our Constitution which has not been adopted and never may be. In Richardson v. McChesney, 218 U. S. 487 (31 Sup. Ct. 43), it is said:

“The duty of the court is limited to the decision of actual pending controversies and it should not pronounce judgment upon abstract questions, however such opinion might influence future action in like circumstances.”

Many other utterances to the same effect by courts of last resort, both State and Federal, will be found marshaled in the prevailing opinion in Anmay v. Railway Co., 211 Mich. 592, handed down September 30, 1920, in which this court held that the legislature had no power or authority under our Constitution to require courts to hear controversies and render advisory judgments or decrees declaratory of the rights of parties, unless the court in such a proceeding may enforce such judgment or decree by mandatory process or execution.

The rule stated in the McChesney Case is particularly applicable to the proposition here presented. The power of judicial veto is based upon no constitutional provision directly conferring it, but arises only from the impelling logic of our system of government providing for a distinctively judicial department as one of its three co-ordinate branches, created for the exclusive exercise of judicial functions. The authorized powers and duties of its courts are to hear and determine legal controversies as presented, and in that connection to construe, interpret and administer the law. When in the exercise of its judicial functions and required to decide a controversy in conformity with existing law, the court, as sometimes occurs, may find itself confronted with the necessity of choosing between two applicable but conflicting laws, one a constitutional provision adopted by the people, in whom rests the sovereign power, and the other an enactment of the legislative body which owes its existence to the Constitution, one must be set aside. Such a situation necessitates, and authorizes, the court to reject the secondary law emanating from the legislature if in conflict with limitations imposed by the Constitution adopted by the people. No such condition or necessity confronts the court in this proceeding. To exercise the power of judicial veto against the constitutionality of an amendment before its adoption or a law before its enactment finds no justification in necessity, ánd is an unwarranted assumption by the courts of the power reserved to the people in the Constitution or conferred by it on the legislature.

The duty of the secretary of State is plainly prescribed. He “shall submit all proposed amendments * * * initiated by the people for adoption or rejection in compliance herewith.” Upon the filing of the petition, the duty devolves on him to ascertain whether it' complies with the constitutional requirements. He must canvass the same and determine whether it has been signed by the requisite number of qualified voters and also whether it is in the form prescribed and is properly verified. There is no provision that he shall determine whether the amendment contravenes any provision of the Federal Constitution, nor is he required or directed to submit such question to the attorney general for decision. The duty imposed is purely a ministerial one and his performance of it is made mandatory by the express language of the provision which is italicized.

Should he determine that the requirements for submission as contained in this section have not been complied with, he may refuse to submit it. If it is claimed that he is in error in the determination thus reached, his action may be reviewed in this court.

The cases relied on by counsel for the defendant: Scott v. Secretary of State, 202 Mich. 629; Hamilton v. Secretary of State, 204 Mich. 439; and Hamilton v. Secretary of State, 206 Mich. 371, illustrate the questions which can be thus raised. In the Scott Case, the question presented was whether the proposed amendment was sufficient in form, it being the claim of the defendant that the full text of the proposed amendment was not contained in the petition. This court held that such infirmity existed, that it did not comply with the constitutional requirement that “Every such petition shall include the full text of the amendment so proposed.” The question of the validity of the proposed amendment was not discussed or passed upon by the court. The ministerial duty of the secretary of State in relation to such petitions and the limits of the court’s jurisdiction in the premises are stated in. a carefully considered opinion by Chief Justice Ostrander as follows:

“Of the right of qualified voters of the State to propose amendments to the Constitution by petition it may be said, generally, that it can be interfered with neither by the legislature, the courts, nor the officers charged with any duty in the premises. But the right is to be exercised in a certain way and according to certain conditions, the limitations upon its exercise, like the reservation of the right itself, being found in the Constitution.”

He then quotes that part of section 2 which prescribes the duty of the secretary of State when the petition is received by him, and adds:

"Such Petition. A petition including the full text of the amendment so proposed, signed by not less than ten per cent, of the legal voters of the State. The ascertainment of these facts which are to appear before he is charged with the performance of further duties involves the exercise of no discretion, the performance of none but a'ministerial duty. The performance of a purely ministerial duty may inVolve something more than doing a prescribed thing in a prescribed way. Knowledge of the correlation of facts, the exercise of reason, the application of established principles and rules may be required before performance of a duty is indicated, before the fact upon the existence of which the duty arises can be said to be established. One must appreciate the meaning and effect of what appears upon the face of a petition before he can determine whether, upon its face, it imports one thing or another. As he might be compelled by mandamus to receive a proper petition, so by mandamus he may be compelled to refuse to receive an improper petition, since it is his duty to reject, at least to refuse to take further action concerning, petitions not conforming to the constitutional mandate. The jurisdiction of the court in the premises cannot be doubted, exercised within the limits herein indicated. Rich v. Board of State Canvassers, 100 Mich. 453; Livingstone v. Wayne Election Commissioners, 174 Mich. 485; Thompson v. Secretary of State, 192 Mich. 512, 521, 522.”

In the first Hamilton Case the secretary of State had refused to submit the proposed amendment for the reason that his canvass determined that a sufficient number of names of qualified voters was not signed to the petition. The real question presented was whether the names of the signers who were women should be counted. This depended upon when the suffrage amendment became effective, on November 5, 1918, or thirty days thereafter. While the determination of this question was a matter of law, its decision in no way affected the validity of the legislation proposed but was necessary to ascertain a fact, to-wit, whether the necessary number of names of qualified voters was signed to the petition.

In the second Hamilton Case it appeared that after the decision in the first case additional petitions were filed with the secretary of State. These he refused to consider, and in this he was sustained by this court, it holding that the petition could not afterwards be supplemented, that it had “performed its office and as a petition, in view of the law, is dead.”

In none of these cases do we find even a suggestion that in the performance of the ministerial duty imposed on him by the Constitution the defendant may decide a constitutional question. In determining whether the petition is sufficient in form and in ascertaining whether the names of a sufficient number of voters are signed thereto, he may be required to interpret the language of the constitutional provision, but it is a novel proposition in the science of jurisprudence to say that he may pass upon the constitutionality of the amendment proposed.

The views herein expressed find support in the following cases: State, ex rel. Bullard, v. Osborn, 10 Ariz. 247 (143 Pac. 117); Pfeifer v. Graves, 88 Ohio St. 473 (104 N. E. 529); State, ex rel. Griffiths, v. Superior Court, 92 Wash. 44 (159 Pac. 101, 162 Pac. 360); Capito v. Topping, 65 W. Va. 587 (64 S. E. 845, 22 L. R. A. [N. S.] 1089); Treadgill v. Cross, 26 Okla. 403 (109 Pac. 558, 138 Am. St. Rep. 964). In the last of these it is said:

“The people of the State in the exercise of their legislative power to amend the Constitution have not yet expressed their opinion of the proposed amendment. They will do that at the election to be held thereon. If in the exercise of their legislative discretion they conclude that the proposed amendment violates any valid compact with the Federal government or any provision of the Federal Constitution, they will no doubt in the observance of the duties of good citizenship, for that reason alone, reject the measure. If, on the other hand, they determine it to be a valid measure and adopt it, then, and not until then, will the judicial and executive departments have the power and duty devolving upon them to determine its validity and enforce its provisions.”

Counsel further claim that the jurisdictional question herein involved is controlled by the case of Decher v. Secretary of State, 209 Mich. 565. It is perhaps a sufficient answer to say that the jurisdiction of the court to hear and determine was not questioned, considered or passed upon in that case. But, assuming it to have been the duty of the court to raise it, we are of the opinion that it is in no way controlling. In that case this court held that the right of review reserved by the referendum in our Constitution did not apply to the action of the legislature in ratifying the 18th Amendment to the Federal Constitution, first, because such action on the part of the legislature fully satisfied the requirement of the Constitution and was final, and, second, because the adoption of the resolution of ratification was not ah “act” of the legislature within the scope of the referendum provision of our State Constitution. The validity of proposed legislation was in no way involved.

It is urged on behalf of the defendant that the granting of the writ of mandamus is discretionary and that in the exercise of its discretion this court, if of the opinion that the proposed legislation is unconstitutional, should not require its submission to the electors. It might well be said in answer that the jurisdiction of the court should be determined before considering the question presented. But this court has said in no uncertain- terms that it has no discretion when called upon to compel a public officer to perform a duty imposed on him by law.

“A mandamus in a case where the duty of a public officer is absolute and specific * * * is no more matter of discretion than any other remedy.” Auditor General v. County Treasurer, 73 Mich. 28, 32.

This court has no express or implied power by judicial veto to nullify in futuro a prospective law foreshadowed by a properly introduced bill before the legislature, nor, by analogy, a proposed amendment of the Constitution properly presented by petition for the electors to pass upon. In our opinion it is neither,, the duty nor the right of this court in this proceeding to pass upon the constitutionality of this amendment which has not been, is not now, and never may become a part of our Constitution.

Moore, C. J., and Steere, Stone, and Bird, JJ., concurred with Sharpe, J.

Fellows, J.

(dissenting). I entertain no doubt that the proposed amendment is in conflict with the 14th Amendment to the Constitution of the United States, which provides:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

By this amendment to the Federal Constitution the States of the Union did not surrender their police power; that was still retained by the State; but in my judgment this proposed amendment is beyond the police power thus reserved. While a hard and fast definition of the police power, inclusive and exclusive, has not been generally attempted by the courts, it is universally understood and held that the measure sought to be sustained under the police power must bear some reasonable relation, at least in some degree, to the public good, or the public health, or the public morals, or the public safety, or the public welfare. If it bears no such relation it is beyond such power, and if it abridges the privileges or immunities of the citizen or deprives him of life, liberty or property without due process of law it must fall before the superior mandate of the Federal Constitution whether it be a State statute or a provision of a State Constitution.

While the proposed amendment is very carefully worded to attract votes, it takes from the parents the privilege of educating their children in parochial or private schools; indeed, it takes from them the right to exercise any control over the education of their own offspring and gives such right to the State. It prohibits the conduct of the business of educating children by private parties, denominations and corporations organized for that purpose under our laws, and takes from them without compensation the right to use for educational purposes property owned by them and devoted to that use admitted to be worth seventy millions of dollars.

Some 120,000 children between the ages of 5 and 16 years are now being educated in the parochial schools of the State. The instructions cover the usual branches taught in the public schools and in addition there is moral training and the doctrine of the Christian religion is inculcated in these youthful minds. That these schools may be regulated by the State is admitted on all hands, but that their existence may be prohibited by State mandate is an entirely different proposition. Before the business of educating the young in the same courses taught by the public schools, before the business of educating the young in the Christian religion, before the business of conducting these parochial schools can be outlawed and prohibited, their prohibition must bear some reasonable relation to the public good, or the public health, or the public morals, or the public safety, or the public welfare. The right to regulate I concede; the right to prohibit I deny. That the right of the State to regulate a business under its police power does not carry with it the right to destroy, the right to prohibit, is illustrated by two cases decided by the court of last resort of the Nation. The first of these cases arose in this State. By Act No. 301, Public Acts 1913, the State regulated the business of conducting an employment agency. Its validity was sustained by this court in People v. Brazee, 183 Midi. 259. That case was reviewed in the Supreme Court of the United States in Brazee v. Michigan, 241 U. S. 340 (36 Sup. Ct. 561), and the right of the State to regulate the business was upheld. But in the later case of Adams v. Tanner, 244 U. S. 590 (37 Sup. Ct. 662, L. R. A. 1917F, 1163, Ann. Cas. 1917D, 973), that court had before it a statute of the State of Washington which was so worded as to prohibit the carrying on of the business of an employment agency and the right to prohibit such business was denied. I quote the syllabus:

“The business of securing honest work for the unemployed in return for an agreed consideration is a useful and legitimate business which, though subject to regulation under the State police power, cannot be forbidden by an act of a State without violating the guaranty of liberty secured by the 14th Amendment.”

Mr. Justice McReynolds, who wrote the prevailing opinion, said:

“Because abuses may, and probably do, grow up in connection with this business, is adequate reason for hedging it about by proper regulations. But this is; not enough to justify destruction of one’s right to follow a distinctly useful calling in an upright way. Certainly, there is no profession, possibly no business, which does not offer peculiar opportunities for reprehensible practices; and as to every one of them, no doubt, some can. be found quite ready earnestly to maintain that its suppression would be in the public interest. Skilfully directed agitation might also bring about apparent condemnation of any one of them by the public. Happily for all, the fundamental guaranties of the Constitution cannot be freely submerged if and whenever some ostensible justification is advanced and the police power invoked.”

Chief Justice Baker of the court of last resort of Kentucky so clearly and forcefully demonstrates that such arbitrary power as is here sought to be conferred upon and exercised by the State through this proposed amendment is beyond the police power reserved in the State that I quote quite liberally from what was said by him speaking for the court in Columbia Trust Co. v. Lincoln Institute, 138 Ky. 804 (129 S. W. 113, 29 L. R. A. [N. S.] 53), where the right of the State to prohibit the business of conducting a private school was involved and where such right of the State was denied. He said:

“If the teaching of the young to be useful, upright, Christian citizens is not inimical to the public safety, public morals, or the public health, then it must follow that an act whch seeks either to prohibit it altogether, or to authorize others to prohibit it, must be invalid. It is difficult to find language to make plainer that which is so obvious as is the proposition before us. The purposes of the institution under discussion include the whole circle of the solid virtues with which youth may be endowed. Undoubtedly, it is a substantial good to educate the youth of the State; and such is the declared policy of the Constitution. Section 183 provides: ‘The general assembly shall, by appropriate legislation, provide for an efficient system of common schools throughout the State.’ It cannot, then, be in any way injurious to the public to aid in forwarding the great educational policy which the people themselves have declared in their fundamental law, — the giving of every young man and woman in the commonwealth a sound education. And when academic education is supplemented by religious training and special instruction in the agricultural and mechanical arts and sciences, it seems to us. that it is contrary to the most obvious public policy that an institution which .affords such an education should be in any way blocked or impeded. What good reason can be given for prohibiting the exercise of such a charity as that which we have under discussion, unless it can be shown that education, supplemented by religious training, may be in some way an evil to society? Does not the mind of every virtuous and right-thinking person at once admit that the contrary is true? Do we not know that religious educational training has a tendency to make men more industrious, more virtuous and better, generally, morally and physically? In other words, better, wiser, and more useful citizens. What would be thought of an act which prohibited the farmer from cultivating a piece of land of greater extent than 75 acres, without the permission of his neighbors? By what argument could an act be supported which prohibited a manufacturer from.working more than a given number of artisans? And yet it is seriously contended that a school which seeks to make religious, upright, educated citizens may be prevented under the police power of the State as a public nuisance.
“Education strengthens the mind, purifies the heart, and widens the horizon of thought. It magnifies the domain of hope, multiplies the chances of success in life, and opens wide the door of opportunity to the poor as well as to the rich. It makes men better husbands, better fathers, and better citizens.”

Should this court by the extraordinary writ of mandamus compel the secretary of State to submit this amendment notwithstanding its invalidity? I think not. Courts do not do idle .things and the writ, of mandamus is a discretionary writ as the universal holdings of this court demonstrate. Not only- must there be a clear legal duty upon the part of the defendant but there must also be a clear legal right in the plaintiff to have that duty discharged. Auditor General v. County Treasurer, 73 Mich. 28; Webster v. Newell, 66 Mich. 503; Taylor v. Isabella Circuit Judge, 209 Mich. 97. Has the plaintiff a clear legal right to have submitted to the electorate of the State an amendment to the State Constitution which is in conflict with the supreme law of the land — the Constitution of the United States? Has he the clear legal right by this discretionary writ to compel the secretary of State to perform certain acts, every one of which is a nullity, with a result that is but “sounding brass and tinkling cymbals?” I think to ask these questions is to answer them. But the question is not without authority in this State. In Maynard v. Board of Can vassers, 84 Mich. 228 (11 L. R. A. 332), the plaintiff had under the cumulative voting* system provided for by an act of the legislature received more votes than, any of the other candidates for the office of member of the legislature. Manifestly the defendant was a ministerial body, not clothed with the judicial power of determining the validity of the act. This court there said, speaking through Chief Justice Champlin :

“While we adhere to the doctrine laid down in several of our previous decisions, that the duty of a canvassing board is purely ministerial, yet, feeling as we do, that the law is unconstitutional, under which the relator claims to have been elected, we should stultify ourselves to command even a ministerial board to observe it. * * * We have also a precedent from Ohio, where the duty of a canvassing board is ministerial, but who refused a certificate of election to an office claimed to be vacant, but which they deemed not vacant. The supreme court held that although the duties of the canvassing board were ministerial, and they had no right to consider the question of vacancy, yet the court would consider it and not compel the performance of an act that was useless.” State v. McGregor, 44 Ohio St. 628 (10 N. E. 66).

The recent case of Decher v. Secretary of State, 209 Mich. 565, followed parallel lines with the instant case, and I think in its underlying principle is controlling here upon the question now being considered. In proper form and in sufficient number of signers petitions were filed with the secretary of State asking a referendum to the electorate on the legislative action adopting the 18th Amendment to the Federal Constitution. Upon the advice of the attorney general that such referendum would be invalid under both the Federal and State Constitutions, the secretary of State refused to submit the question to the people. This court not only on the ground that such action was in conflict with the provisions of our own Constitution, but also on the grounds that such action was in conflict with, the Federal Constitution, refused to compel the secretary of State to submit the question to the electorate. There, as here, the action of the electorate would be a nullity and we did not there postpone saying so. I see no reasonable distinction between that case and this one upon the question now being discussed. I cannot bring myself to feel that this court should by the discretionary writ of mandamus compel the secretary of State to submit this amendment to the people, thus, precipitating a bitter religious warfare in this Commonwealth in .which neighbor will be arrayed against neighbor, church against church, Protestants against Catholics; yes, Protestants against Protestants, and where the net result can be but a nullity.

The writ should be denied.

Brooke and Clark, JJ., concurred with Fellows, J.

      Filed October 15, 1920.


author: Clark, J.

text:
    HINES v. HINES.
    Equity — Fraud—Life Insurance — Beneficiary.
    Where insured husband, on separating from his wife, agreed with her in writing to carry §1,000 of insurance for the benefit of an adopted daughter, in consideration of his release from all further claims for their support and maintenance, which he did for some time, but later lost his property and his health and was financially unable to pay the premiums, which the wife and adopted daughter were also unable to pay, and the insurance would have lapsed but for the fact that defendant, insured’s daughter, on being made the beneficiary, paid the past due and all subsequent assessments till the death of insured, said adopted daughter has no equitable claim to said insurance fund, defendant having been guilty of no fraud.
    í Appeal from Ionia; Davis (Frank D. M.), J.
    Submitted June 10, 192Ó.
    (Docket No. 29.)
    Decided October 7, 1920.
    Bill by Mildred Hines, an infant, by her next friend, against Alvin Hines and Grace Connelly for the specific performance of a contract. From a decree for plaintiff, defendant Connelly appeals.
    Reversed and bill dismissed.

      Watt & Colwell, for plaintiff.

      Ellis & Ellis and Thomas Johnson, for appellant.
   Clark, J.

In 1904, Alvin Hines, a widower and father of Grace Hines, now Grace Connelly, married Nettie Hines. In 1911, Mildred Hines, the plaintiff, became a legally adopted child of Alvin Hines and Nettie Hines. In 1915, this husband, 52 years of age, and wife separated and, for the purpose of settling their property matters and rights and providing for the support, maintenance and education of plaintiff, then 5 years of age, entered into a written agreement that Alvin Hines should pay Nettie Hines $400 and should take out and carry with some reputable insurance company a life insurance policy in the sum of $1,000, payable to the said plaintiff Mildred Hines as beneficiary, and in consideration of these undertakings on the part of the husband the wife agreed to release him from all further claims for support and maintenance of herself and said Mildred Hines. The sum of $400 was paid as agreed. At the time of the said marriage Alvin Hines was the holder of a benefit certificate in the sum of $1,500 issued to him by the Modern Woodmen of America, a fraternal society, each of whose members, on paying each month a .certain amount of dues or assessments as fixed by the society, is entitled to have paid at his death to his beneficiary the amount of insurance named in the certificate.

Soon after the marriage Nettie Hines, the wife, and Dorothy Connelly, a granddaughter, were designated in said certificate as the beneficiaries, the wife in the sum of $1,000 and the granddaughter in the sum of $500. Following the agreement aforesaid and in May, 1915, Mildred Hines was made beneficiary in said certificate in the sum of $1,000 and Dorothy Connelly was again made a beneficiary in the sum of $500. Mr. Hines paid the dues and assessments required by the society until April, 1917, when the defendant Grace Connelly was designated the beneficiary of the entire amount of the certificate, $1,500.

At the time of the last change in the beneficiary Mr. Hines was in arrears as to assessments, of which the clerk of the local camp of the society testified:

“I had refused to carry this assessment further because I felt it would develop I would have to pay it, so I wrote to his sister and told her the condition. Soon I got a letter from Grace Connelly in Dakota and she asked me to send a statement of what he owed and she would send me check. I done so. I got a return letter with a check in it. Since that time she has been paying these assessments and dues.”

Grace Connelly did not know of the agreement respecting Mildred Hines.

Of Mr. Hines’ financial condition in the following September, Mrs. Hines testified:

“After he left he lost his property somehow. I know through hearsay where it went. I know he certainly lost his property. He was without a cent, without a penny when he was there; 45 cents in money and a ticket to Lansing, he said was all he had. I know he finally went to live with some relatives in Lake Odessa, and went from there to the county farm.”

Later, being insane, he became an inmate of the Traverse City State Hospital.

The. infant plaintiff Mildred Hines has been supported by Mrs. Hines since the said separation. Learning of the last change in beneficiary Mildred Hines, plaintiff, by Nettie Hines as next friend, in March, 1918, caused the bill of complaint ttí be filed in which it is prayed that Alvin Hines may be required specifically to perform the said agreement with Nettie Hines and that he may be required by the order and decree of the court to change the beneficiary in said certificate so that plaintiff Mildred Hines will be named as beneficiary therein and will be entitled to receive $1,000 of the insurance in case of the death of Alvin Hines, and that Alvin Hines be required to pay all dues and assessments, and that respecting the plaintiff he be enjoined from further changing the beneficiary in said certificate.

These allegations of the bill are not denied.

“Your oratrix further shows unto the court that the said Alvin Hines is broken in health, and is insolvent and uncollectible at law, and that it would be impossible for him to take out and carry any additional life insurance in any reputable life insurance company or in said Modern Woodmen of America,” * * *

And

“Your oratrix further shows unto the court that the said Nettie Hines has no property (except a small home) and no income except the small amount that she is able to earn by her labor, and that neither your oratrix or the said Nettie Hines is able to pay the monthly assessments and dues on said $1,000 insurance, which at the date hereof amounts to the sum of $1.35 per month, and unless the defendant Alvin Hines is required by said court to pay said assessments and dues on said $1,000 of insurance the same will lapse and become null and void,” * * *

Defendants Grace Connelly and Alvin Hines by his guardian ad litem answered. Alvin Hines died at Traverse City January 9, 1919. His death was suggested and it was ordered that the cause proceed against the defendant Grace Connelly, and it was also ordered, upon petition of plaintiff, that the society, Modern Woodmen of America, be restrained from making settlement with Grace Connelly or any other person respecting $1,000 of said insurance until the further order of the court. Upon hearing decree was entered awarding to plaintiff Mildred Hines $1,000 of said insurance subject to a lien in favor of Grace Connelly for the amount of assessments paid by her, and the society was enjoined from paying the sum of $1,000 of said insurance except as provided by the decree. Defendant Grace Connelly has appealed.

In disposing of the case we shall refer to but one of the contentions of defendant: that as against the defendant, plaintiff's claim is not equitable. This contention is so fully sustained in the similar case of Knights of the Modern Maccabees v. Sharp, 163 Mich., at page 457. (33 L. R. A. [N. S.] 780), that the opinion in that case should be read in connection herewith.

The insured, an inmate of a county house and then of an asylum for the insane, was unable to pay assessments due the society. The plaintiff and her next friend likewise were unable to pay them. Nearly two years before the death of the insured, defendant Grace Connelly saved the insurance by paying past due assessments which had been carried by the clerk of a local camp> of the society and said defendant paid all subsequent assessments, in fact, paid the assessments for nearly a .year after this suit was commenced against her. She is free from fraud. As against the defendant, this child has no claim to equitable consideration.

It follows that the decree of the lower court is reversed and one will be entered dismissing the bill of complaint, defendant Grace Connelly to recover costs of this court.

Moore, C. J., and Steere, Brooke, Fellows, Stone, Bird, and Sharpe, JJ., concurred.


author: Steere, J.

text:
    REPUBLIC MOTOR TRUCK CO. v. THE BUDA CO.
    1. Courts — Removal to Federal Court — Foreign Corporations — ■ Estoppel.
    Although plaintiff, a foreign corporation, successfully invoked the well-known general rule that corporations have no residence beyond the limits of the sovereignty or State by which they are created in opposition to the removal of an action at law by it against another foreign corporation from the State courts to the Federal courts, it would not thereby be estopped from claiming the right of residence in Michigan under the State statute authorizing it to do business in this State, since the Federal authorities govern the question of said removal.
    2. Foreign Corporations — Domestication — Courts — Jurisdiction.
    As dealing with a State law relating to the jurisdiction of its State courts, a State may by legislation domesticate foreign corporations in respect to and for the particular purpose of jurisdiction over them within the State, imposing upon and granting to those desiring to do business within the State the rights, duties, and obligations of domestic corporations.
    3. Same.
    Where plaintiff, a foreign corporation,, located its corporate residence in Michigan in the city of Alma, Gratiot county, by complying both with all statutory requirements for localization and in local existence by'building its manufacturing plant there and conducting its principal business in said city, under the judicature act (3 Comp. Laws 1915, § 12340 et seq.) as a plaintiff it could commence an action in Gratiot county against a corporation not organized under the laws of this State.
    On the question of acquiring jurisdiction over foreign corporations, see note in 70 L. R. A. 530.
    Certiorari to Gratiot; Lamb (Fred S.), J., presiding'.
    Submitted April 22, 1920.
    (Docket No. 16.)
    Decided October 13, 1920.

      Assumpsit by the Republic Motor Truck Company against The Buda Company for breach of a contract for the manufacture of certain motors. From an order denying a motion to dismiss for want of jurisdiction, defendant brings certiorari.
    Affirmed.

      John T. Mathews and Warren, Cady, Ladd & Hill {Dent, Dobyns & Freeman, of counsel), for appellant.

      Searl & Securl, for appellee.
   Steere, J.

The purpose of this proceeding is to test the jurisdiction of the court in which the above case was commenced. It comes here on writ of certiorari to the circuit court of Gratiot county obtained by defendant to review an order of said court denying application to dismiss said action for want of jurisdiction. The Republic Motor Truck Company is a corporation organized under the laws of the State of New York and authorized to transact business in this State under the terms of our statute upon that subject. It owns and operates a manufacturing plant at Alma, Michigan. The Buda Company is a corporation organized under the laws of the State of Illinois, owning and operating a manufacturing, plant at the city of Harvey in that State.

Plaintiff began this suit on December 30, 1918, by summons served on an officer of defendant company who was, when served, in Gratiot county, Michigan. On January 13, 1919, defendant made a motion in said court, supported by affidavit and accompanied by a bond, to remove the case to the district court of the United States for the eastern district of Michigan, northern division, plaintiff at the time filing an affidavit in opposition thereto made by one of its attorneys stating in part:

* * * “that said plaintiff was, prior to the time of the commencement of said action, a corporation duly authorized and existing under the laws of the State of New York, and has. continuously since said time remained and is now organized as such corporation under the laws of said State of New York, and during all of said time has continuously been and is now a resident and citizen of said State of New York, and during all of said time said plaintiff has not been, and is not now either a resident or a citizen of said State of Michigan.” * * *

Said motion was heard and denied by the court on that date, January 13, 1919. Plaintiff then, on the same date, filed its declaration. On January 14, 1919, defendant by its counsel filed and served notice of its general appearance in said cause, and on January 27, 1919, plaintiff served a copy of its declaration on defendant’s attorney. On January 31, 1919, defendant by its counsel filed and served upon plaintiff’s counsel demand for a bill of particulars. On February 17, 1919, plaintiff filed a lengthy amended declaration, comprising some 60 pages of the printed record, stating its cause of action more fully with certain written contracts, between the parties for breach of which damages are claimed set out at length in the first two special counts, supplemented by the common counts.

Briefly stated, these contracts provided for the manufacture by defendant at its plant in Harvey, 111., to be there delivered to plaintiff free on board, certain models and quantities of motors for use by said plaintiff in its motor trucks which it was engaged in manufacturing and assembling in Alma, Michigan. Said undertaking expressly reserved the right to plaintiff of inspecting said motors at Harvey, 111., before shipment, the same to be paid for in cash, terms of payment “fifteen days net,” the purchaser to assume all transportation charges of every nature and all loss or damage “that may accrue to engines or parts thereof while in transit to or from the purchaser.” Plaintiff’s declaration alleges that its cause of action, based on breach of those contracts, “accrued to plaintiff within said county of Gratiot.” For defendant it is asserted that the contracts provide by their terms for performance by it at Harvey, 111., and not elsewhere, which by reason of a qualified guarantee of material and workmanship plaintiff denies. In its demand for a bill of particulars defendant especially requested amplification of plaintiff’s allegations respecting the place of accrual of the cause of action, and a bill of particulars was filed and served by plaintiff on December 17,1919.

On ‘March 3, 1919, defendant filed its plea of the general issue with notice in part as follows:

“Now comes the above named defendant, and demands a trial of the matters set forth in the plaintiff’s declaration; subject to and limited by all the provisions of, and notices under section 4, chapter 14, and section 12, chapter 14, of the judicature act of Michigan for 1915. * * *
“Please be advised that independent of and antecedent to an issue upon the merits herein, to be raised fey the general issue above, tendered, the defendant comes and
“First. Denies the allegation in the declaration and amended declaration, to the effect that ‘the causes of action asserted herein “occurred” to plaintiff within said county of Gratiot’ and ‘the causes of action asserted herein accrued to plaintiff within, said county of Gratiot.’ And the defendant hereby raises an issue upon such quéstion of fact so denied as a preliminary question to be tried herein.
“And the defendant gives notice that, upon the coming in of a finding that the said cause of action' asserted by plaintiff did not accrue to the plaintiff in the county of Gratiot, and based upon the other facts stated in said declaration and files and records herein, defendant will move the court to dismiss said suit on the ground that this court has no jurisdiction of the parties and subject-matter hereof.
“This issue will be supported by the files, records and proceedings herein, and upon proofs to be tendered upon notice hereunder.
“Second. The defendant comes and denies that the plaintiff has made or stated such a cause of action in its declaration herein as entitles it to be heard upon the merits thereof; for the following reasons:” * * *

The jurisdictional question was on due notice heard by the court October 24, 1919, somewhat as a motion to dismiss for want of jurisdiction based on the files and records of the case, the formal order of the court reciting, however, that the matter came oh to be heard

“upon the notice for hearing and trial of the jurisdictional issue raised by. the notice under the plea of the general issue, as to the place where the cause of action herein accrued, and the court having had before it the proofs and allegations' of the respective parties, * * * here finds:

“First. That the cause of action asserted in the plaintiff’s declaration accrued within the county of Gratiot, and
“Second. The said defendant by its actions and proceedings in this cause has submitted its person to the jurisdiction of this court. ,
“Therefore, the said motion of the said defendant is hereby denied, with costs to plaintiff.”

In support of the second finding of the court it is contended for plaintiff that not only did defendant submit itself to the jurisdiction of the court by appearing generally and pleading issuably, but under our practice the interlocutory order of the court in question is not subject to review by certiorari, and much space in the briefs of counsel is devoted to a discussion of those questions with citation and review of authorities urged as applicable. It is the consensus of opinion in this court, however, that the trial court rightly disposed of the preliminary question of jurisdiction within the principles of the first ground stated, and we therefore deem it unnecessary to review the arguments of counsel on other issues raised.

This is a transitory action founded upon contract. For the purposes of litigation a transitory cause of action may be said to accrue, in the sense of arising or becoming enforceable, in any county or jurisdiction when the statutory requirements for the place in which such action can be commenced are met. Chapter 10 of the judicature act (3 Comp. Laws 1915, § 12340 et seq.) deals, as its title states, with “Place for the Commencement of Actions and Change of Venue.” So far as material here it provides in mandatory terms as follows:

“Section 1. Actions shall be commenced and tried in the proper county as follows: * * *
“2. All actions founded upon wrongs, and contracts, except as herein otherwise provided, shall be commenced and tried in the county where one’ of the parties shall reside at the time of commencing such action; * * *
“5. In cases where the plaintiff is a resident of the State of Michigan, suits may be commenced in any county where the plaintiff resides, against any corporation not organized under the laws of this State; and where the plaintiff is a non-resident of the State of Michigan, where the causes of action accrued within the State of Michigan, such plaintiff may bring action in the county where the cause of action accrued.” * * *

Both plaintiff and defendant are concededly foreign corporations not organized under the laws of this State. If, as defendant urges, plaintiff is not in contemplation of our domestication law “a resident of the State of Michigan,” and the cause of action did not therefore accrue in Gratiot county, that county was not “the proper county” for this action to be “commenced and tried” in.

Plaintiff’s counsel urge that under our statute admitting foreign corporations who comply with its requirements to do business within the State* it is as applied to the commencement and defense of actions on a par with domestic corporations, vested in that particular with the same attributes of legal residence and same corporate rights of domicile, while defendant quite naturally stresses the fact that in opposing its application to remove this case to the: Federal court plaintiff made positive and successful denial of its residence in this State, supported by affidavit as quoted, and urges that under the undisputed facts here its contention finds support in decisions of the State of plaintiff’s incorporation, as elsewhere, quoting from Shepard & Morse Lumber Co. v. Burleigh, 27 App. Div. 99 (50 N. Y. Supp. 136), wherein it is said:

“A foreign corporation cannot be a resident of this State. It has but one domicile, namely, in the sovereignty that incorporated it; and while a State may authorize a foreign corporation to do business within its boundaries, such a corporation does not thereby become a resident of that State.”

It may be conceded, as urged by defendant, that plaintiff’s present attitude seems to present a prompt change of front according to the exigencies of the matter in hand, viewed according to the popular understanding of citizenship and residence; but a corporation is an artificial, intangible personality created by law, incapable of being a citizen of any State in the sense in which the word “citizen” is used in the United States Constitution. It is made by law a fictitious or artificial citizen only for the purposes of its creation and is—

“to be deemed a ‘resident’ or a ‘non-resident* of a particular State, county or district within the meaning of a statute, if it is within the purpose and intent of the statute, as in the case of statutes defining the jurisdiction of the courts, or relating to venue, taxation,” etc. 14 Corpus Juris, p. 66.

The strength of plaintiff’s opposition to the motion for removal was the well-recognized general rule that corporations have no residence beyond the limits of the sovereignty or State by which they are created, to the exclusion of their thereafter changing the so acquired corporate citizenship or residence, but as the question then arose we do not find plaintiff estopped from claiming right of residence under our statute by its interlocutory opposition to defendant’s application for removal of the cause to the Federal court which, if appealed to, is the final arbiter on that issue regardless of what the State courts may hold. It stood undisputed that plaintiff was originally incorporated in the State of New York. It would seem that its attorney’s affidavit could have served it no useful purpose, since the Federal authorities govern the question of removal and the Federal courts hold on such applications that corporations are conclusively presumed to be residents of the State in which they are created, and domestication elsewhere under laws there so authorizing is apparently not recognized as changing their residence for purposes of litigation. (Amsden v. Insurance Co., 44 Fed. 515.) If it were, an affidavit would not furnish the test.

We are here dealing with a State law relating to the jurisdiction of our State courts. Aside from that general rule the States may by legislation for themselves and within their limits domesticate foreign corporations quoad hoc, in respect to and for the particular purpose of jurisdiction over them within the State, imposing upon and granting to those desiring to conduct their business within the State the rights, duties and obligations of domestic corporations, so that they shall be for all jurisdictional purposes, when having a situs and so operating within the State limits, in legal status and effect domestic corporations.

It is undisputed that plaintiff is a manufacturing corporation with its plant, office and principal place of business located at the city of Alma, Gratiot county, Michigan, there engaged in the manufacture, assem-' bling and sale of motor trucks, parts and repairs, duly authorized so to do by full compliance with the numerous requirements of chapter 177, 2 Comp. Laws 1915 (§ 9063 et seq.), which include the payment of a franchise fee, filing with the secretary of State a certified copy of its charter or articles, of incorporation, the appointment of an agent within the State to accept service for the corporation, and a sworn statement by two of its principal officers in form satisfactory to the secretary-of State containing the following facts:

“First, The location of its principal office and its principal place or places of business, and the names' and addresses of its principal officers;
“Second, The location of its principal office and the principal place of business in Michigan, and the names and addresses of the officers or agent of the company in charge of its business in, Michigan;
“Third, The total value of the property owned and used by the company in its business, giving its location and general character and stating separately the value of its tangible property, of its cash and credits, its franchises, patents, trade marks, formulas, good-will;
“Fourth,. The value of the property owned and used in Michigan and where situated;
“Fifth, The total amount of business transacted during the preceding year and the amount of business, if any, transacted in Michigan;
“Sixth, Such other facts bearing on the matter as the secretary of State may require, .including a statement of the particular purpose, or the particular kind of business for which the company desires admission to this State.”

Provision is made for a hearing before the secretary of State relative to said application and section 9066 provides that when such corporation has fully complied with the provisions of the act the secretary of State may issue it a certificate of authority to carry on its business in the State, provided it is incorporated for a purpose for which a corporation may be formed under the laws of Michigan, and,—

“The secretary of State shall in the certificate which he issues state under what act such corporation is_ to carry on business in this State, and such corporation shall have all powers, rights and privileges and be subject to all the restrictions, requirements and duties granted to or imposed upon such corporations organized under such act.”

In the certificate issued to plaintiff by the secretary of State plaintiff was certified as admitted to engage in its business of manufacturing, assembling, selling, etc., of trucks, parts and repairs, “with all the rights and privileges but subject to all the restrictions, requirements and liabilities of a corporation organized under the provisions of Act No. 232, Pub. Acts 1903,” etc. Said Act No. 232 is chap. 175, 2, Comp. Laws 1915 (§ 9017 et seq.), entitled “Manufacturing and Mercantile Corporations.” Section 13 of that act (§ 9029) provides:

“Every corporation organized or existing under this act shall have power to have succession by its corporate name for the period limited in its charter, or by this act; to sue and be sued in any court of law or equity, with the same rights and obligations as a natural person; to make and use a common seal and alter the same at pleasure”; etc.

Section 2 of article 12 of our Constitution provides:

“All corporations shall have a right to sue and be subject to be sued in all courts in like cases as a natural person.”

In Showen v. J. L. Owens Co., 158 Mich. 321, where the status of a foreign corporation which had complied with the statute and was domiciled in a business sense within the State was under consideration, section 13 of said Act No. 232 is quoted and it is said:

“The effect of the statutes regulating the transaction of local business, in this State by foreign corporations is to make such corporations, as. to such business, domestic corporations organized under the act specifled in the certificate of the secretary of State, entitled to and subject to the same remedies as such corporations in the courts of this State.”

Under the act specified in the certificate plaintiff on domestication had the power within this State “to sue and be sued in any court of law or equity, with the same rights and obligations as a natural person.” As a domesticated corporation for jurisdictional purposes its local existence, situs or domicile in a business and corporate sense is where its office is located and its principal business carried on.

“A corporation must have a local habitation.” Detroit Transportation Co. v. Board of Assessors, 91 Mich. 382.
“Its residence depends not on the habitation of the stockholders in interest, but on the official exhibition of legal and local existence.” Ang. & Ames on Corporations, § 107.

Under that test plaintiff plainly located its corporate residence in Michigan, in the city of Alma, Gratiotcounty, by complying both with all statutory requirements for localization and in local existence by building its manufacturing plant there and conducting its principal business in said city. Under the judicature act, as a plaintiff there residing it could commence an action in Gratiot county against a corporation not organized under the laws of this State.

For the foregoing reasons the order denying dismissal for want of jurisdiction is affirmed.

Moore, C. J., and Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


author: Brooke, J.

text:
    HARNAU v. HAIGHT.
    1. Judgment — Courts.
    Courts speak not through their opinions, but through their judgments and decrees.
    2. Fraudulent Conveyances — Judgment—Decree of Supreme Court Effective.
    Y/here by the decree of the court below certain stock and other assets of a corporation were impounded, and by decree of the Supreme Court on appeal, said stock was ordered transferred to defendant on the books of said company and an alias execution directed to issue in favor of plaintiff, but after the opinion was filed and pending settlement of the decree in this court said stock was restored to defendant and sold to satisfy the judgment of another creditor, said sale will be set aside and the decree of this court given effect.
    Bill by Peter Harnau against Louis P. Haight and others in the nature of'a judgment creditor’s bill. A decree was entered in the Supreme Court for plaintiff. On motion to set aside a sale of corporate stock in violation of said decree.
    Submitted October 5, 1920.
    (Calendar No. 28,939.)
    Motion granted October 15, 1920.
    Rehearing denied December 21, 1920.

      Turner & Turner, for plaintiff.

      Carpenter & Jackson, for defendants.
   Brooke, J.

By the decree of the court below in this case a receiver was appointed to take over the property of the defendant corporation, the Muskegon. Knitting Mills, and to make use of the receipts and assets thereof for the following purposes, and in the order given:

“1. To take care of the running expenses of the plant.
“2. To pay all legitimate expenses of the receivership.
“3. To pay all claims and accounts secured and unsecured which have accrued subsequently to the incorporation of the Muskegon Knitting Mills, and now held by persons or parties who are not now, nor ever have been holders of any of the capital stock of the Muskegon Knitting Mills, either common or preferred and who are strangers to this suit.
“4. To- pay the claims of the plaintiff in this case, with interest and costs of suit to be taxed.”

On appeal to this court (209 Mich. 604), that decree was set aside, but other relief was given to the plaintiff. In an opinion filed on the 10th day of April, 1920, it is stated:

“The transfer of all the common stock is set aside and the stock will be returned to Mr. Haight and will be placed in the name of Louis P. Haight upon the books of the corporation. Upon that being done an alias execution may be issued upon plaintiff’s judgment and levied upon such.stock' in accordance with, the statute.”

Shortly after the filing of said opinion a motion for rehearing was made, which was denied on or about the 18th day of June. No decree in this court was entered until August 6, 1920. Paragraph 3 of the decree is as follows:

“That a transfer of all the common stock of the defendant corporation, The Muskegon Knitting Mills, namely: $48,000 be returned to the defendant Louis P. Haight and that the same be placed on the books of the defendant corporation, The Muskegon Knitting Mills, in the name of the defendant Louis P. Haight, and that an alias execution issue in favor of the plaintiff Peter Hamau for the amount of his judgment rendered by the circuit court of the county of Muskegon on the 16th day of February, A. D. 1916, against the defendant Louis P. Haight for the sum of $3,956.47, damages and costs of $60.80, making in all, damages and costs, the sum of $4,017.27, at the date of the judgment; which sum with interest thereon from that time to this date (a period of four years, two months and twenty-four days), with interest at the rate of 5% per annum, now amounts to the sum of $4,867.47, may issue out of and under the seal of the circuit court for the county of Muskegon, on said judgment and be levied on said stock in accordance with the statute in such case, to enable the plaintiff to obtain satisfaction of his said judgment, with interest thereon, until the same shall be satisfied.”

Prior to the settlement of said decree, counsel for defendant proposed certain amendments thereto, to be considered by this court on August 2d. A part of the second amendment proposed follows:

“* * * (that said stock) be transferred to the defendant Louis P. Haight on thé books of the corporation as subject to levy in behalf of his creditors.”

This amendment was declined by the court and the decree entered as above indicated.

In the meantime, and on the 22d day of June, 1920 (four days after the denial of the motion for rehearing) , it appears that Mr. Carpenter, attorney for the defendants, caused said stock to be placed in the name of the defendant Louis P. Haight on the books of the corporation; and on that day a levy was made upon said stock under a judgment in which William VanSluyter was plaintiff and Louis P. Haight the defendant, the amount of said judgment with costs being $1,868.77. Mr. R. J. Cleland, an attorney of Grand Rapids, was acting for that judgment creditor. On July 7,1920, a sale of said stock was made under said levy in the sheriff’s office, at which sale said attorney bought in said stock for the amount of the judgment and immediately turned the sum over to defendant Grace C. Haight, accepting from her a promissory note for the.payment of the amount of the judgment and holding the stock himself as collateral to said note.

Plaintiff now moves this eourt for an order setting aside said pretended sale and for a mandate of this court, commanding said Carpenter to cause said stock to again be placed upon the books of the defendant company, the Muskegon Knitting Mills, there to be levied upon by an alias execution in favor of plaintiff, as commanded by the decree entered in this court herein. We are of the opinion that the prayer of this petition should be granted. We are advised by the answer of Mr. Cleland that he acted in the matter in good faith and without knowledge of any facts which should prevent him from endeavoring to collect the amount of his client’s judgment. We accept Mr. Cleland’s statements at their face value and acquit him of any intention of wrongdoing in the premises.

At the time (June 22, 1920) when Mr. Carpenter caused the stock to be transferred on the books of the corporation and permitted it to be levied upon to satisfy the VanSluyter judgment, no decree had been rendered in this court. The decree of the circuit court was yet in full force and effect and the entire assets of the corporation were impounded by the terms of that decree for the purposes mentioned therein. Courts speak not through their opinions, but through their judgments and decrees. 29 Cyc., p. 1499, and cases there cited. See, also, Steele v. Bliss, 170 Mich. 175; Newbould v. Stewart, 15 Mich. 155; Bancroft v. Board of Regents, 192 Mich. 168. The entire history of this litigation indicates a studied effort on the part of the defendant Haight to defeat plaintiff’s claim, and we are of the opinion that the levy of June 22, 1920, and the pretended sale of July 7, 1920, thereunder, was but a continuance of that policy. If was asserted by Mr. Carpenter in open court that he had no intention of disregarding the orders of this court; but it is difficult to understand how he could on August 2d participate in the settlement of a decree providing for the levy upon this stock in favor of this plaintiff when he himself had procured a levy on the stock in favor of another creditor on June 22d.

The sale of July 7, 1920, of said stock under the VanSluyter judgment will be set aside and held for naught, the stock will be retransferred upon the books of the defendant Muskegon Knitting Mills to the name of defendant Louis P. Haight, to be levied upon under an alias execution in favor of plaintiff in accordance with the terms of the decree. The note given by Grace C. Haight to Attorney Cleland and the stock held by him as security therefor will be returned to Mr. Carpenter. The VanSluyter judgment may be reinstated upon proper application to that end being made. Plaintiff will recover costs against defendant Louis P. Haight on this motion in the sum of $50.

Moore, C. J., and Steere, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.