author: Hooker, J. Montgomery, J. Grant, C. J.

text:
    PINGREE v. AUDITOR GENERAL. TECUMSEH TELEPHONE CO. v. SAME.
    1. Taxation — Telegraph and Telephone Lines — Specific Tax.
    The tax provided for by Act No. 168, Pub. Acts 1881 (1 How. Stat. § 1237 et seq.), requiring telegraph and telephone companies to pay, in lieu of all other taxes, a tax levied upon an assessment of such lines at their true cash value, is an ad valorem, not a specific, tax.
    2. Same — Uniformity.
    The rate of taxation provided by the act — being the average rate of all general, municipal, and local taxes levied throughout the State during the previous year — is determined in a different way, and is different in amount, from that imposed upon other property bearing the same relation to the State, and the act is therefore obnoxious to article 14, § 11, of the Constitution, which requires uniformity in taxation.
    3. Constitutions — Practical Construction.
    The rule of construction by long and continued usage should be applied cautiously, and only in cases of doubt, to a provision of the Constitution.

      Mandamus by Hazen S. Pingree, governor, to compel Eoscoe D. Dix, auditor general, to transfer to the general fund, from the primary-school fund, certain moneys collected for taxes under Act No. 168, Pub. Acts 1881.

      Mandamus by the Tecumseh Telephone Company to compel the auditor general to cancel certain taxes assessed against it under the above-mentioned act.
    Submitted March 18, 1899.
    Writs granted April 26, 1899.

      Gliarles D. Joslyn (Benton Hanchett, G liarles Flowers, and Ashley Pond, of counsel), for relator Hazen S. Pingree.

      Carey W. Dunton ( Benton Hanchett, C liarles Flowers, and Ashley Pond, of counsel), for relator Tecumseh Telephone Co.

      Horace M. Oren, Attorney General (Alfred Bussell, Henry M. Gheever, and John J. Speed, of counsel), for respondent.
   Hooker, J.

In the year 1881 the legislature passed an act (No. 168, Pub. Acts 1881; 1 How. Stat. § 1237 et seq.) entitled “An act to provide for the assessment and taxation of telegraph and telephone lines within the State of Michigan.” Its provisions are, in substance, that the auditor general, state treasurer, and commissioner of the state land office shall assess telegraph and telephone lines at their true cash value, and levy a tax upon said assessment at a rate which shall equal the average rate of taxes (general, municipal, and local) levied throughout the State during the previous year, to be ascertained from the records and files of the auditor general’s office, which tax shall be in lieu of all other taxes. This tax has since been paid, and the auditor general has treated it as a specific tax, and credited the amounts collected to the educational fund, under the provisions of section Í of article 14 of the Constitution, which provides:

“All specific state taxes, except those received from the mining companies of the Upper Peninsula, shall be applied in paying the interest upon the primary-school, university, and other educational funds, and the interest and principal of the state debt, in the order herein recited, until the extinguishment of the state debt, other than the amounts due to educational funds, when such specific taxes shall be added to and constitute a part of the primary-school interest fund. The legislature shall provide for an annual tax, sufficient, with other resources, to pay the estimated expenses of the state government, the interest of the state debt, and such deficiency as may occur in the resources.”

The application of the governor is for a mandamus to compel the auditor general to transfer to the general fund, from the primary-school fund, the amount of moneys collected under the act mentioned, and now on hand, upon the ground that the tax provided in said act is not a specific tax. The Tecumseh Telephone Company’s application is based upon the same ground, and asks that the tax be canceled, upon the further contention that the tax, not being a specific tax, is not levied in conformity to other provisions of the Constitution, viz., sections 11 and 14 of article 14, which are as follows:

“Sec. 11. The legislature shall provide an uniform rule of taxation, except on property paying specific taxes, and taxes shall be levied on such property as shall be prescribed by law.”
“Sec. 14. Every law which imposes, continues, or revives a tax shall distinctly state the tax, and the object to which it is to be applied; and it shall not be sufficient to refer to any other law to fix such tax or object.”
The auditor general has answered both petitions; claiming that the tax is specific, and not a property tax, and that, if it be determined otherwise, the tax is valid.
In addition to the sections quoted, sections 10 and 12 of article 14 of the Constitution are as follows:
“Sec. 10. The State may continue to collect all specific taxes accruing to the treasury under existing laws. The legislature may provide for the collection of specific taxes from banking, railroad, plank-road, and other corporations hereafter created.”
“Sec. 12. All assessments hereafter authorized shall be on property at its cash value.”

The first question presented, then, is, Does Act No. 168 of the Public Acts of 1881 provide for a specific tax, within the meaning of the Constitution ? If it does, it disposes of the cases, and both applications should be denied.

Amasa Walker, in his Science of Wealth, at page 339, says that: “Duties are generally of two kinds, — specific and ad valorem. Specific duties are imposed by the pound, yard, gallon, etc.” The late Mr. Justice Cooley, in his work on Taxation (2d Ed., p. 238), uses a similar classification as to taxes, arid says of specific taxes that:

“Under this head may be classed those which impose a specific sum by the head or number, or by some standard of weight or measurement, and which require no assessment beyond a listing and- classification of the subjects to be taxed.”

He describes ad valorem taxes as follows:

“Ad Valorem Taxes. A large proportion of the duties on iriiports are of this description, and so, sometimes, are many of the taxes which make up the internal revenue. The statute laying them prescribes the rule, but requires the action of appraisers in apportioning them between individuals. By far the larger proportion of all state taxation is also upon property by a valuation, and effect can only be given to it by means of assessors, who value the property, and apportion the tax by their estimate.”

A similar description of specific taxes is found in 25 Am. & Eng. Enc. Law, 17, note 3.

In Colton’s Public Economy, at page 510, it is said:

“A specific duty is assessed by measure, — as so much per yard, per gallon, per cwt., per caldron, etc.; the instrument of measure being such as the nature of the article requires.”

Perry, in his Principles of Political Economy, at page 557, says:

“What is the difference between specific and ad valorem taxes, and why should the student take careful note of these, both singly and combined? These terms are used more particularly in relation to tariff taxes, but there is nothing in the distinction itself so to limit its application. A specific tax is a tax of so many cents or dollars on the pound, yard, gallon, or other quantity measurable. An ad valorem tax is a tax of so much per centum on the invoiced or appraised money value of the goods subject to the tax.”

Bouv. Diet, says:

“Ad Valorem.' (Lat.) According, to the valuation.. Duties may be specific or ad valorem. Ad valorem duties are always estimated at a certain per cent; on the valuation of the property.”

Black’s definition is:

“Ad Valorem. According to value. Duties are either ad valorem or specific, — the former when the duty is laid in the form of a percentage on the value of the property; the latter where it is imposed as a fixed sum on each article of a class, without regard to its value. The term ‘ ad valorem tax ’ is as well defined and fixed as any other used in political economy or legislation, and simply means a tax or duty upon the value of the article or thing-■subject to taxation.”

Black, Tax Titles, § 83, says upon the subject that;

Difference between Specific and Ad Valorem Taxes. In regard to specific taxes, no other apportionment is requisite than that necessarily prescribed by the statute which lays the tax. The share of each taxpayer is completely determined by his condition with reference to the number of the given articles in his possession, or their weight or measurement, or with reference to the fact of his pursuing the particular avocation taxed, or enjoying the particular franchise, or otherwise, as the case may be. But the case is different with respect to ad valorem taxes. Here the intervention of ministerial officers is necessary to effect the apportionment between individuals. Assessors are called upon to estimate the value of the property to be taxed, and apportion the shares according to their valuation.” .

This distinction has been recognized as applied to duties for many years. Benton’s Thirty Years in Congress says of the customs act of 1833:

“Specific duties had been the rule, ad valorem the exception; from the beginning of the collection of the custom-house revenue. The specific duty was a question in the exact sciences, depending upon a mathematical solution by weight, count, or measure.”

In Gibbons v. Ogden, 9 Wheat. 188, Chief Justice Marshall said:

“The framers of the Constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said.”

Quoting this language, Judge Cooley, in his Constitutional Limitations, said at page ?3 (6th Ed.):

“This is but saying that no forced or unnatural construction is to be put upon their language, and it seems so obvious a truism that one expects to see it universally accepted without question; but. the attempt is made so often, by interested subtlety and ingenious refinement,- to induce the courts to force from these instruments a meaning'which their framers never held, that it frequently becomes necessary to re-declare this fundamental maxim.”

It is urged that the framers of the Constitution used the term “specific tax” in a different and broader sense, and that, in contradistinction to the uniform tax contemplated by section 11, it should be construed to mean any tax on property not conforming to such uniform rule. We have only to examine the statutes in force at the time the Constitution was adopted, to see that the term “specific tax” was known and applied in this State previous to the meeting of the constitutional convention. Title 5 of the Revised Statutes of 1846 is divided into chapters 20 and 21. The former treats of the “Assessment and Collection of Taxes;” the latter, of “Specific State Taxes and Duties,” —thus indicating that specific taxes and duties embraced taxes other and different from those ordinary taxes which were provided for in chapter 20, and which were assessed and collected locally. An examination of chapter 21 will show that the term”“specific taxes” was used in conformity to the definitions above given. Thus banks were taxed a specified per centum upon the amount of capital stock paid in. A similar tax was imposed upon railroad, canal, and turnpike companies. These taxes were payable to the state treasurer. It will be. noticed that they were not based upon the actual value of the real and personal property in possession of the companies at the time, but upon the amount of capital that had been previously invested in their business. The interposition of no assessing officer was required to value the property. Reports to the state treasurer were required (see Rev. Stat. 1846, tit. 10, chap. 55, § 24); and presumably he was to determine the amount, and collect the tax, after making a deduction from the amount of capital stock equal in amount to such property, real and personal, of the banks, as was locally assessed and taxed. The legislatures of 1846 to 1849, inclusive, passed many acts- — -some general and some special — imposing taxes of this kind upon corporations created by them, such as railroads, plank roads, and mining companies. The briefs of counsel refer to them, and we will not repeat the citations. Without exception, they provide for reports from which the amount of taxes was computed. Other recognized specific taxes, such as taxes upon brokers, peddlers, etc., were included in chapter 21 of the Revised Statutes. It even seems to have been thought advisable tp distinguish duties from them. Accordingly the title mentions them, and the chapter (21) imposes ad valorem duties upon property sold at auction, and spirituous liquors. In view of -these laws, some .of which continued in force after the adoption of the Constitution, we are satisfied that the convention understood the meaning of the term “specific taxes,” and used it in no other than the common and well-settled sense of the term, which they understood to imply a tax which was made specific in rate and arbitrary in its standard, requiring no assessment beyond a mathematical computation. Of such taxes, Mr. Cooley says:

“License taxes, and other taxes on business or occupations, stamp taxes, taxes on franchises and privileges, are usually specific, as are also other excise and customs taxes. As regards all such taxes, the law by which they are laid is of itself a complete apportionment. Ministerial officers have nothing to do but to list the subjects of taxation; classify them, where that is necessary; ascertain the number, weight, measurement, etc., when taxation depends upon it; and collect the sum which the law has definitely fixed. If the taxes are stamp or license taxes, even the listing may not be required, but the individual who is to pay them will purchase his stamp or his license, and thus make voluntary payment, as he may have occasion.” Cooley, Tax’n (2d Ed.), 238.

If the tax in this case is clearly an ad valorem tax, if it is a tax on property, — and this cannot be questioned, because the title and the act both call it a tax on telegraph lines, which are property,- — -there is nothing in the law to indicate that an occupation tax or tax upon business was intended, even were we to hold that its ad valorem feature would not necessarily preclude its being denominated a specific tax.

It follows that the auditor general should not treat this as a specific tax, by crediting it to the educational fund.

It remains to inquire whether this tax can be sustained as an ad valorem tax. We have seen that the Constitution requires uniformity in taxation, except as to property specifically taxed. Not being a specific tax, this must comply with this requirement, which it can hardly be said to do. It is to be assessed according to cash value, which is a compliance with section 12; but if assessment as a whole, and not locally, and by a state board, and not by a local board, as in ordinary cases, can be said to be permissible, — which we do not decide, — -the fact remains that the rate is determined in a different way, and is different in amount, from taxes imposed upon other property which contributes to state taxes. We must infer that this is a state tax, for it is payable to the state treasurer, and the law does not provide for its application to local purposes. The taxes generally assessed for the State bear a proportion to the amount to be raised, and all taxable property, except that paying specific taxes, is charged with a given and equal per centum upon its assessed value. That cannot be said of this property, for the rate is to be the average of all taxes raised for all purposes,- — -local as well as state. It is not a specific tax, and it is not within the uniform rule of taxation' prescribed for other property, and the law providing for it must therefore be held void.

Counsel urge that this statute has been a law since 1879 (Act No. 77, Pub. Acts 1879), recognized by the departments as valid, and acquiesced in by the corporations taxed under it, and by the public, and ask us to apply to this case the doctrine that “long and continued usage furnishes a contemporaneous construction which must prevail over the more technical import of words.” This principle should be applied more cautiously to constitutions than to laws. The inference that the public is satisfied with a construction of a law giving it an effect which the legislature might have lawfully provided, and which would not be disputed had its. language shown an intent to do so, is much greater than in the case of a constitutional provision, where the question arises, not in regard to legislative intention, but to legislative power. And, if we could eliminate this distinction, the ability to easily change the law by legislative action would give more force to a construction in conformity to usage than would be justified in the case of .a constitutional provision, which^cannot be so readily altered. It is a rule which should not be applied except in cases of doubt. Mr. Cooley, in his Constitutional Limitations (6th Ed., p. 85), says:

“Acquiescence for no length of time can legalize a clear usurpation of power, where the people have plainly ex-' pressed their will in the constitution, and appointed judicial tribunals to enforce it. A power is frequently yielded to merely because it is claimed, and it may be exercised for a long period, in violation of the constitutional prohibition, without the mischief which the constitution was designed to guard against appearing, or^ without any one being sufficiently interested in the subject ’ to raise the question; but these circumstances cannot be allowed to sanction a clear infraction of the constitution. We think we allow to contemporary and practical construction its full legitimate force when we suffer it, where it is clear and uniform, to solve in its own favor the doubts which arise on reading the instrument to be construed.”

The rule of contemporaneous construction was applied in the case of McPherson v. Blacker, 92 Mich. 377 (16 L. R. A. 475, 31 Am. St. Rep. 587), where the question was what was meant by the language of the Federal Constitution which provides that—

“Each State shall appoint, in such manner as the legislature thereof may direct, a number of electors equal to the whole number of senators and representatives to which the State may be entitled in the congress.”

The opinion in that case, and in the case of City of Detroit v. Chapin, 108 Mich. 136 (37 L. R. A. 391), review the' authorities sustaining that rule. In the latter case it was held that the question must be a doubtful one, to permit contemporaneous construction to have weight.

Again, this usage has not the force that it would otherwise have, because the law was not passed until nearly 30 years after the adoption of the Constitution. To apply this principle would be to hold, in substance, that the practical construction of a department, acquiesced in by those affected by the law, possibly satisfied with it because of the favorable consideration that it gives them, has made necessary or proper a construction of the Constitution, upon a most important subject, which, in the absence of the practice under it, would not be indulged.

The applications must be granted, — that of the telephone company, as prayed; that of the-governor, to the extent of requiring the amount collected under the law, and now in the hands of the treasurer, to be credited to the general fund. Costs will not follow.

The other Justices concurred.

Montgomery, J.

I concur in the opinion of Mr. Justice Hooker. I think it cannot be maintained that a tax on property based on assessment is a specific tax. The definition of “specific tax” stated by Judge Cooley is a tax which “imposes a specific sum by the head or number, or by some standard of weight or measurement, and which requires no assessment beyond a listing and classification of the subjects to be taxed.” Cooley, Tax’n (2d Ed.), 238. It is true, the capital stock of a corporation may be made the basis of the levy of a specific tax or franchise tax, but this is a method of measuring the tax without resort to assessment. In Burroughs, Tax’n, 168, referring to the federal decisions on the subject, the author states:

“When the rax is on the nominal capital of a bank, without regárd to the value of the property of which it is composed, such a tax is annexed to the franchise as a royalty for the grant, and is a tax on the franchise, and not on the property.”

But the Supreme Court of the United States, in Adams. Express Co. v. Ohio State Auditor, 165 U. S. 195, 226, in speaking of a tax imposed under the Nichols law of Ohio, which is, in this respect, similar to the statute involved in this case, say, “The taxation is essentially a property tax.” So, in State v. Jones, 51 Ohio St. 492, the court labored to show that the tax under the Nichols law was a property tax; i. e., that the good will enhanced the value of the taxable property, and might be considered, in assessing the value of the property, as property. It was said:

“ If, by reason of the good will of the concern, or the skill, experience, and energy with which its business is conducted, the market value of the capital stock is largely increased, whereby the value of the tangible property of the corporation, considered as an entire plant, acquires a greater market value than it otherwise would have had, it cannot properly be said not to be its true value in money, within the meaning of the constitution, because good will and other elements indirectly entered into its value.”

The authoritative decisions under the Nichols law (i. e., that of the Ohio supreme court and that of the federal supreme court) both rest upon the ground that the tax imposed was a tax on property, and not a tax on fran: chise or privilege.

The distinction between a franchise tax and a tax on property is well illustrated by two decisions of the federal supreme court. In People of New York v. Commissioners of Taxes, 2 Black, 620, it was held that, as a tax on the national securities cannot be levied by a state or local municipality, the same result could not be reached by taxing the value of the stock of a bank which was wholly invested in such securities. But in the case of Provident Institution v. Massachusetts, 6 Wall. 611, the court had under consideration the statute of Massachusetts which provides for a 'tax on the average amount of deposits standing on the books of the institution. The court held this a tax on the franchise, and not a property tax. Referring to the case of People of New York v. Commissioners of Taxes, the court said:

‘ ‘ The statement of that case shows that the assessment was made under a then recent law of the State, which required the tax to be imposed upon a valuation of the stock, like the property of individual citizens, and not, as formerly, on the amount of the nominal capital, without regard to the depreciation. The prior system of taxation in that State was different, and this court admits that, according to that system, it was immaterial as to the character or description of the property which constituted the capital, as the tax was one annexed to the franchise as a royalty for the grant, .and was imposed wholly irrespective of the character of the property.”

In Hamilton Manfg. Co. v. Massachusetts, 6 Wall. 632, the court went still further. There the tax was assessed upon the excess of the market value of the capital stock over the assessed value of the real estate and machinery of the corporation. The court held this to be a tax on franchise, and not on property. So, in the same case, the supreme judicial court of Massachusetts had reached the same result. The reasoning by which the result was reached is shown by reference to the opinion of the court in Com. v. Hamilton Manfg. Co., 12 Allen, 302. The court say:

“The statute does not require that there should be any return made of the personal property held by corporations to the board of commissioners who are to fix the amount on which the assessment is to be reckoned; nor is there any valuation or estimate of such property to be made in order to arrive at the amount of the excise or duty. ”

In the same opinion the court say:

“It certainly cannot be contended that the legislature can legitimately impose a tax on property in the name or under the guise of levying an excise or duty. Such legislation would be a palpable evasion of a distinct and clearly-defined constitutional restriction, and would substitute an unequal and arbitrary system of taxation upon property for one which was intended by the constitution to be equal and proportional.”

In no case to which my attention has been called has a tax imposed on the property of a corporation at a valuation fixed by assessors been treated as a tax on a franchise, as distinguished from a tax on property. The case last cited comes the nearest to so holding of any, and ■ this makes the market value of the shares the basis, and distinctly negatives the right to so treat a valuation fixed by assessment. The case of Bailey v. Fuqua, 24 Miss. 497, distinguishes between a specific and an ad valorem tax. The test adopted is whether the tax is assessed on value, and, as the. statute under consideration so provided by clear implication, it was held not to provide a specific tax. See, also, City of Brookfield v. Tooey, 141 Mo. 619.

It is contended, however, that the specific taxes provided for in our Constitution may be taxes on property, and that this implies that they may be assessed upon value. I do not think the latter proposition is necessarily a sound deduction from the former. The exception from the rule of uniformity provided by section 11, of property paying specific taxes, does necessarily imply that specific taxes may, in one sense, be laid upon property. In one sense, specific taxes are laid on property when the capital stock of the corporation, or its gross earnings, is made the basis for a levy; and yet, as we have seen, taxes so levied are specific taxes, or taxeá on the franchise, within accepted definitions.

The argument made that the statutes in force when the Constitution was adopted, and which were continued in force, provided for taxes on property which were by the Constitution treated as specific taxes, is sufficiently answered by my Brother Hooker. As pointed out by him, none of these acts provided for an assessment on the property • according to value, but the rate was fixed and calculated on the basis of capital invested, without regard to depreciation.

Is the tax imposed uniform with that imposed,upon other property bearing the same relation to the State ? Treating the tax imposed as one on property, based on valuation, and not as a specific tax, the corporations and associations mentioned in this act can no more be discriminated against, as to the assessments madé or taxes exacted, than can merchants, manufacturers, or farmers. The tax levied in this act is the average rate of all taxes levied by the State, counties, and municipalities throughout the State. A telephone company in Tecumseh, where the local taxation added to the state tax may not exceed l£ per cent., may, under this act, be required to pay 2£ per cent. Under the Atkinson bill, a railroad in the Northern Peninsula is required to pay the same rate as one having a terminus in Detroit, and extending through territory in which local improvements are expensive, and schools are maintained at great cost.

Grant, C. J., Moore and Long, JJ., concurred with Montgomery, J.

Grant, C. J.

I concur in the opinions of my Brothers Hooker and Montgomery, but desire to express my views somewhat more fully. Our Constitution authorizes only two kinds of taxes, — one, specific, imposed without regard to the value of the thing taxed; the other, general, based upon assessed cash value, and'requiring uniformity. The principal question for determination is, Is the tax imposed by this act a specific tax ? If it is a specific tax, the act is valid; if it is not a specific tax, it is void, for noncompliance with section 14, art. 14, of the Constitution, which provides that “every law which imposes, continues, or revives a tax shall distinctly state the tax, and the object to which it is to be applied; and it shall not be sufficient to refer to any other law to fix such tax or object.” This law does not provide the object to which the tax is to be applied. This is so obvious that'I spend no time in discussing it. When a tax is specific, the Constitution fixes the object to which it is to be applied.

It appears to me impossible to read the definitions of the lexicographers and the decisions of the courts without reaching the conclusion that the terms “ specific ,tax ” and “ ad valorem tax” have a well-defined meaning; and in the Constitution of this State, as well as in the statutes and decisions, these definitions are clearly recognized. Concise definitions are given in 25 Am. & Eng. Enc. Law, 17, notes 2, 3, and Cooley, Tax’n (2d Ed.), 238. As these are found in the opinions of my brothers, I will not restate them. These two definitions are, in substance, the same as given by other authorities, both legal and lay. A tax based upon the assessed cash value of the property assessed is not a specific tax. It is an ad valorem tax, and any enactment by a legislature that it is a specific tax does not make it so; otherwise, the legislature could determine what was meant by the use of terms in the Constitution which have a well-defined meaning. The fact that, in imposing a specific tax, the value of the thing taxed is taken into consideration in determining the amount of it, does not change the nature of the tax. A tax upon the capital stock of a corporation, paid or unpaid, or upon its bonds issued or money borrowed, is just as' much a specific tax as is so much per article upon the thing produced. The real value of the capital stock is not its par value. It would probably be safe to say that there is not a corporation in this State whose stock, paid or unpaid, at its par value, is its real value, or whose indebtedness in money borrowed represents its value. It is a well-known. fact that the actual value of many of our mining corporations is manji- times greater than the par value of the stock, while that of others is many times less than the par value. So a tax upon the bonds or upon the borrowed money of a corporation is not a tax upon the value of the corporation. The next day the money borrowed may be put into improvements which will increase the real value of the property much greater than the amount borrowed, while in other instances it will be a loss. All such taxes are not taxes upon value, but upon the specific thing, regardless of its real value.

It is undoubtedly true, as argued by the learned counsel for the respondent, that value enters into every specific tax. The people do not tax, specifically or otherwise, worthless property. Probably the specific tax on a ton of copper or silver would be placed at a much higher sum than a tax upon a ton of iron; but this fact does not change the nature of the tax. I speak of this because it is argued that when the framers of the Constitution, in section 10 of article 14, provided: “The State may continue to collect all specific taxes accruing to the treasury under existing laws. The legislature may provide for the collection of specific taxes from banking, railroad, plank-road, and other corporations hereafter created,”' — they used the term “specific” with reference to its meaning in the laws as they then existed. This is conceded to be correct; and Messrs. Hanchett and Pond,-who, at the request of the governor, have appeared as counsel for the relators, also argued that the term was so used in all laws prior to the adoption of the Constitution of 1850, where a tax upon value was understood to be a specific tax. We have examined all the laws referred to, and we do not find that in any single act passed prior to 1850 is there any language to justify the conclusion that the term “specific tax ” was used to apply to an ad valorem tax, as in the' act under discussion. In all these acts, — and there were many,— the only thing to be done was for the ministerial officer to list the property, and the law stepped in and determined the tax. There was no officer of the State appointed to assess the value. The real value was wholly immaterial, and not to be considered. The money borrowed might be invested profitably or unprofitably. The tax was on the specific thing, and not upon value. This is the criterion to determine whether the tax is specific or ad valorem. There is nothing, therefore, in these acts, to show that the legislature had ever intended to impose a specific tax upon an ad valorem assessment. On the contrary, we think the plain conclusion is that the framers of the Constitution used these terms within the definitions above given.

In Bailey v. Fuqua, 24 Miss. 497, the court say:

“The term ad valorem tax’ is as well defined and fixed as any other used in political economy or legislation, and simply means a tax or duty upon the value of the article or thing subject to taxation.”

It 'is stated by one of the learned counsel for the relators, in his brief, that the specific taxes levied prior to the adoption of the present Constitution were not, with possibly one exception, levied upon an assessed value. That exception, I suppose, was under the law approved April 25, 1846; being an act declaratory of the interests of the State of Michigan in mines and minerals. Section 4 of that act (being section 2557 of the Compiled Laws of 1857) provided for a “specific tax of 4 per cent., to be in lieu of all other state taxes, * * * to be assessed thereon upon the average yield and value of such ores.” This is called a specific tax in the law, and is a specific tax, being a tax upon the specific article produced, and recognizes a proper principle in specific taxation, viz., that of considering value an element in fixing the amount. But there was no attempt to assess and tax the entire property of the company. A specific tax may be so much per pound, or so much per dollar upon the value, .of the article produced. In neither case is any attempt made to assess and tax all the property of the corporation.

In Walcott v. People, 17 Mich. 68, at page 90, Justice Campbell, in a dissenting opinion, after referring to sections 11 and 12 of article 14, says:

“Taking these sections together, and reading them according to their natural construction, the conclusion seems unavoidable that taxation by an assessed valuation of property must be the rule, and specific taxation the exception.”

The points in that case upon which the court disagreed were (1) whether the power given by the Constitution to continue specific taxes, and to impose specific taxes on corporations thereafter created, limited the right of specific taxation to such cases, or left the legislature at liberty to apply it to other branches of business; (2) whether it was repugnant to that clause of the Federal .Constitution which gives congress the power to regulate commerce among the several States. That case was referred to in Kitson v. Mayor, etc., of Ann Arbor, 26 Mich. 325, which again recognizes the two classes of taxation permissible under our Constitution, — the one, an assessment upon the property at its cash value; and the other, specific taxes not based upon value.

Both an ad valorem and a specific tax may be imposed. State v. North, 27 Mo. 464, upheld an ad valorem tax oh the goods of merchants, and also a tax on their occupation, to be collected in the form of a license.

In City of Brookfield v. Tooey, 141 Mo. 619, an ordinance of the city levied a license tax of 1 per cent, per annum upon the cash value of the stocks of merchants. The court held that this was a property tax, pure and simple, and that to call it a tax upon occupation was a misnomer. It was held to be void because not uniform upon all the personal property of the city, in that it levied $1 upon every $100 of assessable personal property belonging to a merchant, and exempted all personal property not belonging to merchants from such tax. So, in State v. Switzler, 143 Mo. 287 ( 65 Am. St. Rep. 653), a succession tax levied upon the appraised value of the whole estate left by the deceased, to be paid by the personal representatives, was held to differ in no particular from a general tax upon property, and to be void because it violated the constitutional requirement of uniformity. In Maine v. Grand Trunk R. Co., 142 U. S. 217, the statute required every railroad in the State to pay to the State an annual excise tax for the privilege of exercising its franchises in the State; the amount to be determined, by the gross transportation receipts of each corporation, person, or association. No question of specific or ad valorem taxes was involved. The constitution of Ohio (article 12, § 2) required that laws should be passed taxing by a uniform rule all moneys, credits, investments in bonds, stocks, joint-stock companies, or otherwise, and also all real or personal property, according to its true value in money. It also provided (article 12, § 3) that the general assembly should “provide by law for taxing the notes and bills discounted or purchased, moneys loaned,'and all other property, effects, or dues of every description (without deduction), of all banks now existing or hereafter created, and of all bankers, so that all property employed in banking shall always bear a burden of taxation equal to that imposed on the property of individuals.” The legislature provided for different modes and agencies to determine the true value of property liable to assessment. This law came before the supreme court of Ohio in Wagoner v. Loomis, 37 Ohio St. 571. The result of the law was an unjust discrimination against banking companies, but this was held to be the fault of the assessing officers, and not of the law. If the officers had performed their duty, the assessment would have been as nearly equal as human judgment could make it.

A statute of the State of Maine provided that every telegraph corporation, company, or person should annually pay into the state treasury a tax of 2-J- per cent, on the value of any telegraph line owned by said corporation, company, or person within the limits of the State, including all poles, wires, insulators, office furniture, batteries, and instruments, and any circumstances or conditions which affected the value of the property. The second seetion of the act provided for a return to the secretary of state, to be made under the oath of the superintendent of the company. The governor and council were then required to determine the valuation and assess the tax. The telegraph company claimed that the act was void, under article 9, § 8, of the constitution of Maine, which is as follows: “All taxes upon real and personal estate assessed by authority of this State shall be apportioned a,nd assessed equally, according to the just value thereof.” The opinion concedes that, if the act imposed a tax upon property, it was void, and then proceeds to demonstrate that it imposed a “tax or excise upon a specific use of the property, and therefore was not within the limitation of the constitution.” The opinion states that the law does not cover all the property of the company, and concludes that the purpose was to levy a tax upon the use or business of the company, and that in reality such was the tax imposed. State v. Telegraph Co., 73 Me. 518. I do not wish to be considered as assenting to the reasoning of that case. It seems to me a fair deduction from reading the act, which is given in full in the opinion, that the intention was to cover all the property of the company, and put a tax upon the valuation of all its property; but the court held otherwise, and that is the distinguishing feature of the case. In determining the character of this tax, the court say:

“The name is not material. It is the nature of the tax imposed which settles the question as to its validity. If the tax is upon the property as such, it is illegal, by whatever name we may christen it. If upon the franchise, it is clearly within legislative power, though the name be omitted, and thougli the value of the franchise may be ascertained by an estimate of certain property.”

The title of the act here in question is, “An act to provide for the' assessment and taxation of telegraph and telephone lines within the State of Michigan,” etc. Section 3 of the act requires the board to assess “said telegraph and telephone lines at the true cash value thereof.” If our statute includes all the property of the company, and imposes an ad valorem tax upon it, then the Maine case supports the contention of those attacking the validity of the act.

The evident design was to place this property upon an equality, so far as possible, with other property of the State, to make it bear its fair share of the public burdens. The act has none of the features of a specific tax. We are not now concerned with the question whether the appointment of a board to assess the property of these corporations is valid. Some of the authorities already cited support it. So, also, do Central Iowa R. Co. v. Board of Sup'rs, 67 Iowa, 199; County of Franklin v. Railway Co., 12 Lea, 521. I see no objection to this mode of assessment, when the design and effect of the law are to place the property of these corporations upon the same basis as other property of the State.


source: Caselaw Access Project

author: Grant, C. J. Moore, J.

license: Public Domain

text:
    LAU v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO.

    Railroad Crossings —Accident to Bicyclist — Contributory Negligence.
    A bicyclist wlio, upon approaching a railroad crossing with which he is familiar, finds that the first two of the three tracks, which lie eight feet apart, are occupied by lines of freight cars, completely obstructing, in one direction, a view of the third and main track, and who, without dismounting to look and listen, proceeds at a slow rate of speed, and collides with an engine upon the main track, moving, without signals, from the direction in which the view is obstructed, is guilty, as matter of law, of such contributory negligence as will preclude a recovery for the injuries received.
    Moore and Montgomery, JJ., dissenting.

      Error to Wayne; Hosmer, J.
    Submitted October 4, 1898.
    Decided May 9, 1899.
    Case by Oliver H. Lau against the Lake Shore & Michigan Southern Railway Company for personal injuries. From a judgment for defendant, on verdict directed by the court, plaintiff brings error.
    Affirmed.
    Plaintiff, a physician 42 years of age, residing in Detroit, at about 8 o’clock in the evening of September 21, 1896, was traveling on his .bicycle to visit a patient. He crossed Hastings street, and, on nearing the tracks of the defendant company, left the street, which was unpaved and somewhat rough, and went upon the sidewalk, on the east side. There were three tracks, one main line and two side tracks, the main track being the northerly one. The south rail of the main track is eight feet from the north rail of the nearest side track. Two lines of box cars were standing upon the two side tracks, east of the sidewalk. The car standing upon the middle track, which was next to the main track, stood within three or four feet of the east line of the sidewalk. By an actual measurement made the next morning by one of plaintiff’s witnesses, the exact distance was four feet. The side of a box car extends about two feet over the rail, and the side of an engine about the- same distance. Plaintiff was perfectly familiar with the crossing, and knew that a train of cars was liable to approach at any moment. The night was cloudy and still. He saw the cars standing to the east, and testified that he went on across the sidewalk, and slowed his bicycle to a gait that he could just keep on it nicely. He further testified that, immediately on passing by the end of the freight car, he was struck by the engine. Upon this point, on direct examination, he testified:
    “ Q. Were you struck by the pilot of the train, or did you run into the train ?

      “A. I was run into. * * *

      “ Q. How far did you have to run from the instant you saw the light before you could get on the ground, — get off your wheel ?
    A. It was almost instantaneously; it was like a shot,— instantly. I don’t know how far I did go.”
    On cross-examination he testified:

      “Q. N.ow, if I understood you correctly yesterday, as you got up about on the track that the cars were standing on, so that you could readily see by the cars, you saw the locomotive passing towards Hastings street, on the main track ?

      “A. Yes; when I saw it at all, the first I saw it was coming there.
    “Q. And you saw it as soon as you could fairly see by the end of this car ?

      “A. Yes, sir.

      “Q. And, when you saw it, it seemed to be almost in front of you, as it were ?

      ‘‘A. Yes, sir.
    “Q. Now, at that instant, you undertook to back pedal, did you not ?

      “A. To prevent myself from going forward, you mean? Yes, sir.
    You threw your weight on the pedal that was coming up, to endeavor to stop the machine ?

      “A. Yes, sir.

      “Q. That is what I meant by back pedaling. Now, it seemed to you almost instantaneous, did it, from the moment you saw the engine that you were in contact with something ?

      “A. .Yes, sir.”
    On redirect examination he testified:

      “Q. Are you prepared now to tell the court and jury— are you prepared positively to tell them under oath — that you did not strike that train between the tender and the first car with your wheel?

      '“A. My impression is-that I did not.

      “Q. I understand that your impression-is that you did not, but I ask you if you are willing-to positively testify now that you did not.

      “A. Well, I only want to testify what my impression about the matter is, and that is that I don’t know about that part. I don’t think I did. * * *

      “Q. Are you able to give tbe fact or an impression of the length of the interval between the time when that light flashed in your face and when you were among the wheel and machinery of the locomotive ?

      “A. It was instantly.

      “Q. There was no interval ?

      “A. No; it was just like a flash, — instantly.”
    The forward wheel of his bicycle was broken,' and the fork was run over by a car wheel. The rear wheel and frame were intact, and ‘the bicycle was found after the accident about eight feet north of the track, while plaintiff lay on the south side. No one of the crew saw the accident. There was testimony that there was no watchman or gate, and that no bell was rung. The train was a freight, and was making a flying switch. The train had been broken in two, and the engine, with some cars attached, was going west. Steam had been shut off. Plaintiff was very seriously injured. The negligence charged is the failure to ring the bell and an unjustifiable rate of speed. After plaintiff had rested, the court directed a verdict for the defendant, but for what reason the record does not show, but counsel state that it was on the ground of contributory negligence on the part of the plaintiff. In order that the situation may be clearly understood, we insert the plat showing the situation.

      Wisner & Harvey, for appellant.
    Wells, Angell, Boynton & McMillan, for appellee.

       Rehearing denied July 11, 1899.

   Grant, C. J.

(after stating the facts). The'rights and duties of a traveler upon a bicycle, when approaching a railroad crossing, are before this court for the first time. These rights and duties must be determined without reference to the distressing result of this accident to the plaintiff. The learned counsel for plaintiff, in his argument, conceded that it was the duty of the plaintiff to exercise a high degree of care. Manifestly, this was his duty because of the danger to which he was exposed. Did he, under the circumstances, exercise that degree of care which the law requires ? Had he been on foot and been

injured, he could not recover. Gardner v. Railroad Co., 97 Mich. 240; Brandy v. Railway Co., 107 Mich. 100.

Had plaintiff the right to ride his bicycle past the obstruction to his sight at such a rate of speed that he could neither control it nor dismount after passing the obstruction, before running in front of or against the engine ? He knew the distance between the tracks, and must be held to know that, when his body passed the obstruction, his front wheel would be very near a moving train on the main track. There would have been no substantial delay to him if he had dismounted and walked past the obstruction. He could have dismounted when he was eight feet from the track. Had he done this, the danger would have been avoided.' He was experienced in bicycle riding, and whether he could have ridden slowly enough to avoid the danger we need not determine. A bicycle is almost noiseless, and it seems almost incredible that, had he listened, in the stillness of the night, he could not have heard the approaching train. It seems equally incredible that he could not have seen the light of the headlamp of the engine shining upon the sidewalk ahead of him, even if it did not shine on the rails of the track over which the engine was approaching. There was a slight curve in the track east of the crossing, and it is urged that for this reason the headlight did not shine upon the track. There is no testimony in the case to show whether this was so.

We are cited to but one case involving the duty of the bicyclist in crossing a railroad upon the public highway. Robertson v. Railroad Co., 180 Pa. St. 43 (57 Am. St. Rep. 620). In that case the bicyclist, instead of dismounting, rode around in a circle in the street, waiting for a train to pass. In endeavoring to cross, he was struck by a train upon another track and killed. In that case the obstruction was a tool-house standing seven feet from the track. The court said :

“ The law requires a full stop, not only for the sake of time and opportunity for observation, but to secure undivided attention, and the substantial, and not mere perfunctory, performance of the duty to look and listen. Riding round and round in large circles or small circles, waiting for a chance to shoot across, is not a stop at all, either in form or substance. Considering the ease of dismounting and the control of the rider over his instrument, a bicycler must, under all ordinary circumstances, be treated as subject to the same rules as a pedestrian.”

If a person is required to stop his team and listen in cases where he cannot see, why should not the bicyclist, when his view is obstructed to within a few feet of the track,' be required to dismount and ascertain the situation ? It is no more trouble for him to dismount than it is for the driver to stop his team and listen. The delay is no longer; the trouble is no greater. In some States the question of contributory negligence is eliminated by statute, and the railroad made liable for damages in every case where it fails to give the statutory signals; but that is not the law in this State. If the plaintiff was going, as he testified, “at a gait that I could just keep on it nicely, so that I could see or hear if anything was in the way of my crossing there in the shape of trains,” it is difficult to understand how the flash of the headlight and the collision occurred the instant he came in sight of the train. It is further more difficult to understand how, if he struck the side of the engine, his bicycle was found upon one side of the track and he upon the other. This condition can he accounted for upon no other theory than that he was in front of the engine when he was struck. Cars cannot stop instantly. Engineers and firemen do not always perform the duties imposed upon them in giving the signals. While the presumption may be that they do, human nature is not yet so perfect that every one performs his duty. To sustain the plaintiff’s right of action would be to hold that he has the right to rely absolutely upon the performance of this duty by the trainmen, and that he may ride along regardless of consequences, and rely upon the absolute performance of this statutory duty. Ordinarily, this train could be heard when coming a long distance away. Ordinarily, the light from the headlight would be seen shining upon bodies in front of it within the plaintiff’s vision. Yet, in the face of the danger, we are asked to say that he was in the exercise of ordinary care, although, without any inconvenience, delay, or trouble to himself, he might have avoided the accident. The attention of the bicyclist must be more or less diverted by the control and management of his wheel, and this is especially true when he is trying to ride so slowly that he can just keep his balance. It is common knowledge that a good rider can ride as slowly as the average walk and keep his balance. But, if this were not so, it would be an additional reason why he should dismount. So, too, if there was any wind from the southeast,, which would prevent his hearing the noise of the train, all the more the necessity for him to take this precaution to protect himself.

No one will contest the proposition that a traveler, in the exercise of due care, is entitled to rely on the statutory warnings. But the troublesome.question always is, Was the traveler exercising such care? When the'facts are undisputed, and are such that different conclusions cannot reasonably be drawn, the question is one of law for the court. It seems to us only common sense that he, in crossing a place the very existence of which is notice of danger, should stand in no better position than a pedestrian. In a second he can become a pedestrian, and in a second or two more place himself in position to know whether there is danger. If there is no danger, he can mount, and proceed with the delay of only a few seconds. If there is danger, he can avoid it. We think the law requires that he should take this precaution, and does not permit him to rely solely upon his sense of hearing and the performance of duties imposed upon others. Is it not common prudence for one, in entering a dangerous place, to take that course which involves no inconvenience, delay, or trouble to himself, and which will, if followed, insure his own safety as well as that of others ? If it is, the law requires him to take it.

The plaintiff in this case was in a better position to protect himself than was the plaintiff in Phillips v. Railway Co., 111 Mich. 274 (66 Am. St. Rep. 392). Mr. Phillips was quite deaf. He was riding in a single carriage, with the top up and curtains off. He could not see the train while sitting in his carriage, because a pile of railroad ties obstructed his view, but could have seen it if he had stopped, stood upright in his carriage, and looked. This court, in a unanimous opinion written by Chief Justice Long, held that it was negligence in Mr. Phillips not to take this precaution, and that it barred his right of recovery.

We are of the opinion that the circuit judge was right in directing a verdict.

Judgment affirmed.

Hooker and Long, JJ., concurred with Grant, C. J.

Moore, J.

(dissenting). I cannot agree with the conclusion reached by the Chief Justice. I do not think Gardner v. Railroad Co., 97 Mich. 240, and Brandy v. Railway Co., 107 Mich. 100, apply to this case. The plaintiff in each of those cases was upon foot, and in each instance, if he had looked, would have had abundant opportunity to see the danger when he was yet in a place of safety. Not only have pedestrians the right to pass in the public highway, but persons, riding in carriages and wagons and upon bicycles. What would be reasonable care in a prudent person riding in a wagon might not be reasonable care in a prudent person riding upon a bicycle. What would be reasonable care in the case of a prudent bicycler might not be reasonable care in a foot passenger. It is true a railroad crossing is a place of danger, and one may not cross it recklessly or negligently. He must, if he would be protected, exercise such reasonable care as an ordinarily prudent man would exercise under like circumstances. In the case of a foot passenger, the courts say, if he has an opportunity to look and listen after passing the obstruction, and while in a place of safety, he is guilty of contributory negligence if he fails to do so. The courts also hold that one riding in a wagon is bound to stop and listen, if there are obstructions in the way of vision, because it is well understood that the noise accompanying locomotion by animals and a wagon might prevent one from hearing the approach of the train a view of which was obstructed, and, under such circumstances, to fail to stop is not the exercise of the reasonable care of a prudent man. All of us who know anything about the use of a bicycle know there is no appreciable noise in its use. The noise of an approaching train would not be drowned in any degree by the noise of the wheel. It is also true that, while the machine is under much better control than a carriage propelled by horses, it cannot be stopped as quickly as a pedestrian may stop.

In the case at bar the record shows Dr. Lau approached the crossing appreciating it was a place of danger. He ran his wheel as slowly as possible and have it stand' up. He looked and listened. There was a curve in the track. His line of vision after passing the obstruction, one witness states, would not reach more than 25 feet down the track. The night was still. What little wind there was came from the southeast. Dr. Lau was going north. He listened, and heard nothing. The record discloses testimony tending to show the train was coming from the east at the rate of 12 miles an hour, making a flying switch. The steam was shut off from the engine; no bell was rung; no whistle blown; no warning given; no watchman, gate, or lights at the crossing. It was very quiet. As Dr. Lau passed the obstruction to his line of vision, he was instantly struck, receiving injuries resulting in the amputation of one of his feet, and other permanent disabilities. 3 How. Stat. § 3375, requires a bell and a steam whistle upon each locomotive engine, and that the bell shall be rung continuously, and the whistle twice sharply sounded, at least 40 rods before the crossing is reached, and makes the company liable for all damages which shall be sustained by any person by reason of such neglect. The testimony of the plaintiff is to the effect that the bell was not rung and the whistle not blown.

The liability of the railroad company attached unless the plaintiff was guilty of such a degree of negligence as to relieve it. Sanborn v. Railroad Co., 91 Mich. 538 (16 L. R. A. 119). In that case it was said by Justice' Long :

" The law is therefore well settled that a traveler upon the highway has a right to assume that a railway company will thus perform its statutory duty, and one on a highway, when he approaches a railroad crossing, and can neither see nor hear any indications of a moving train, is not chargeable with negligence for assuming that there is no train sufficiently near to make the crossing dangerous. One in such a position has a right to assume that a railroad company, in handling its cars, will act with appropriate care, and that the usual signals of approach will be reasonably given.”

In the opinion written by Justice Montgomery it is said:

“The statute imposes a positive duty upon the railroad company to sound its whistle and to ring its bell at a certain point. It is a well-known fact that not only those about to cross the railroad track, but those in the immediate vicinity, lawfully there, are frequently induced to rely upon the performance of this statutory duty. If they do so, and without fault of their own suffer an injury, we see no reason why the statute should not be so construed as to protect them.”

See, also, Guggenheim v. Railway Co., 66 Mich. 150; Richmond v. Railway Co., 87 Mich. 380; Van Auken v. Railway Co., 96 Mich. 307 (22 L. R. A. 33).

The case of Robertson v. Railroad Co., 180 Pa. St. 43 (57 Am. St. Rep. 620), is cited as supporting the disposition made of the case by the circuit judge. This court has not been inclined to follow the Pennsylvania courts in negligence cases, but, if it were so inclined, the facts in the Pennsylvania case are so different from the case at bar that its decision is not controlling. The deceased in that case was traveling upon a highway which- crossed four railroad tracks. As he approached the crossing, a freight train was passing upon one of the tracks nearest to him. He did not dismount, but rode his wheel in circles in the highway. As soon as the freight passed the highway, without ascertaining whether the other tracks were free, he started to cross them, and was struck by a train coming from the direction in which the freight train was going. Under such circumstances, it might well be said his want of care caused the injury.

Men and women riding bicycles have the same right to use the highways which is accorded to pedestrians and to persons riding in carriages. It is their duty to recognize that railroad crossings are places of danger, and must be approached with care. They have a right to expect the employés of the railroad company will comply with the provisions of the statute, but this right of reliance will not excuse them if they are heedless and negligent. It is their duty to exercise such reasonable care as an ordinarily prudent person would use under like circumstances. •If, when they are doing this, they are injured, because of the failure of the railroad company to ring the bell and blow the whistle, the railroad company is liable for the damage done to them. Whether in this case the plaintiff approached the crossing in the exercise of such reasonable care as a person of ordinary prudence would use under like circumstances was, we think, a question which should have been submitted, to the jury. Carver v. Plank-Road Co., 61 Mich. 584; Little v. Railway Co., 78 Mich. 205; Breckenfelder v. Railway Co., 79 Mich. 560; Richmond v. Railway Co., 87 Mich. 374; Rascher v. Railway Co., 90 Mich. 413 (30 Am. St. Rep. 447); Ashman v. Railroad Co., 90 Mich. 567.

Judgment should be reversed, and a new trial ordered.

Montgomery, J., concurred with Moore, J.


author: Grant, C. J. Montgomery, J.

text:
    MOTT v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO
    1. Railroad Grossings — Collision with Hand-Car — Negligence —Question for Jury.
    Plaintiff, in attempting, on a foggy night, to drive across a railroad track, was struck hy a hand-car, and injured. Inanaction against the company, he claimed that he stopped his horse, and looked and listened, before passing upon the track, but that no signals were given to indicate the approach of the car. Considerable noise proceeded from an electric powerhouse near by. Under the rules of the company, the use of hand-cars at night and in foggy weather was forbidden, except in urgent cases. On the night in question, the section men had been detained in moving a track. The men claimed that warning signals were given, and that they ran the car at a rate of speed not exceeding five miles an hour, and did not see plaintiff until they collided with his vehicle. Held, proper to submit to the jury the questions of negligence and contributory negligence.
    2. Same — Contributory Negligence.
    One struck by a hand-car while crossing the main line of a railroad at night, when hand-cars are prohibited by a regulation of the company from being on its main line except in cases of urgent necessity, is not chargeable with contributory negligence because he failed to look' out especially for hand-cars, where he exercised the degree of care required in looking out for trains.
    3. Witnesses — Speed of Cars — Competency.
    Evidence that a witness has often observed bodies in motion, and has seen horses trot and run, does not render him competent to express an opinion as to the speed of a hand-car seen by him immediately before it struck a vehicle upon a crossing.
    4. Same — Examination—Impeachment.
    Asking plaintiff’s witness in an action for personal injuries, for the purpose of laying a foundation for her impeachment, if, in a conversation with defendant’s employé, she did not make a specific statement in conflict with her testimony, does not entitle plaintiff to place before the jury the whole of the conversation referred to, including claimed admissions of negligence on the part of the employé, prejudicial to the defendant.
    5. Railroad Companies — Negligence—Declarations of Employé —Admissibility.
    The foreman of a. railroad section crew, whose hand-oar collided with a vehicle in which plaintiff was riding, and injured him, cannot bind the company by subsequent admissions of negligence.
    6. Personal Injuries — Exclamations of Suffering.
    In an action for personal injuries, exclamations of present - suffering by the person injured are admissible, though made by one of mature years to personal friends after commencement of suit, if not made in contemplation of such persons’ becoming witnesses at the trial. Grant, C. J., dissenting.
    7. Same — Argument of Counsel — Intemperate Language.
    In an action against a railroad company for personal injuries, plaintiff’s counsel, in his argument to the jury, alluded to reputable physicians, who had testified in defendant’s behalf, as “hired servants of masters, engaged to do this kind of work,” and stated that “they are paid from their treasury, and go with a pass in their pockets.” One of them, named Arnold, was-denominated “Benedict” Arnold. Held, error.
    8. Same — Requests to Charge — Erroneous Modification.
    In an action for injuries received in a collision with a handcar, it is error for the court to modify a requested instruction ' that ‘ ‘ if plaintiff saw the hand-car before he reached the track, and urged his horse across the track in front of the car, then he would be guilty ot' contributory negligence,” by inserting the word “negligently” before “urged.”
    9. Same — Permanency—Mortality Tables — Admissibility.
    In an action for personal injuries, mortality tables, showing plaintiff’s expectancy of life, are inadmissible, where there is no showing that the injuries are permanent.
    Error to Shiawassee; Smith, J.
    Submitted January 3, 1899.
    Decided May 9, 1899.
    Case by Daniel Mott against the Detroit, Grand Haven & Milwaukee Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      About 7:15 on the evening of October 1, 1897, plaintiff, with his horse and buggy, was driving-across the defendant’s track, in the city of Owosso, on Smith avenue. A section crew, consisting of- five men, was coming from the east on a hand-car. It was dark and somewhat smoky and foggy. The section crew had been detained at the Corunna coal mines, in moving some tracks, and were later than usual in going home. The hand-car struck the rear wheel of the buggy, overturning it and throwing the plaintiff out. He did not see the hand-car, nor did those upon the hand-car see plaintiff’s horse and buggy, until just about as the collision occurred. The forward wheels of the hand-car were derailed. Plaintiff was found upon the ground-, and was taken into the power-house of an electric lighting plant near by. A physician was called to see him, examined him, and found him somewhat bruised, and his shoulder somewhat injured and partially dislocated. The physician put his arm in a sling, and plaintiff went to the home of Dr. Arnold, the local physician of the defendant. The doctor evidently did not consider it necessary to make an examination that night, and told him to come in the morning. Plaintiff started for Dr. Arnold’s office in the morning, but, after going a part of the distance, returned to his house; feeling, as he testified, unable to proceed farther.
    The doors of the power-house were open, and the witnesses all agree that the noise therefrom prevented one, to some extent, at least, from hearing the approach of the hand-car. Plaintiff testified that, when within about two rods of the track, he stopped a second or two, and looked and listened; that, neither seeing nor hearing anything, he proceeded, still looking up and down the track, and, just as his horse was upon the track, he saw the hand-car approach. The charge of negligence is the unreasonable speed of the hand-car, and the absence of any warning or signal of its approach. The testimony on the part of the defendant is that the speed of the car was four to five miles an hour, and that a signal was given by the foreman as they came through the fence of the cattle-guard. The testimony on the part of the plaintiff is that the speed was much greater, and that no signal was given until just about as the accident occurred, when the foreman cried, “Look out!” Plaintiff recovered verdict and judgment for $2,000. A motion for a new trial was made, —urging, among other things, that the verdict was excessive. A new trial was denied, to which defendant took exceptions.
    At the request of the defendant, the court instructed the jury as follows:
    “(1) A person about to cross a railroad track is bound to recognize the danger, and to make use of the sense of hearing and of sight to ascertain, before attempting to cross, whether a hand-car is in dangerous proximity. If he ventures upon the track without doing this, it must be at his own risk; and, if he sustains injury thereby, he cannot recover, because of his contributory negligence.
    “(2) A person familiar with a railroad crossing, having been frequently over it, and knowing its location, when approaching the same, is under the highest possible obligation to observe such precautions as are needful to avoid collision; and failure to do so would be contributory negligence, which would prevent a recovery for damages if an injury resulted.
    “(3) One approaching a railroad track, if the view is unobstructed, must look, and, if the view is obstructed, he must stop, look, and listen; and it will be presumed that he actually saw what he could have seen if he had looked, and that he heard what he could have heard if he had listened. * * *
    “(6) If the jury find the plaintiff could have heard the approaching hand-car by stopping his horse and listening before reaching the railroad track, and that he failed to stop and listen, and if you find that this failure to stop and listen was the cause of his not hearing the hand-car approaching, then he would be guilty of contributory negligence, and could not recover.
    “(7) If the jury find from the evidence in this case that the plaintiff could have discovered the hand-car, if he had stopped, looked, and listened for it, before he attempted to go on the track, then it was his duty to have done so; and, if you find that he failed to do so, he was guilty of contributory negligence, and cannot recover.
    “(9) You are instructed that it was the duty of the plaintiff, before attempting to cross the railroad track, if it was so dark that he could not see a hand-car that might be approaching, to stop and listen; and, if you find his failure to stop and listen was the cause of his failing to discover that a hand-car was approaching, then he would be guilty of contributory negligence, and could not recover.”

      Geer & Williams (JE. W. Meddaugh, of counsel), for appellant.

      Watson & Chapman, for appellee.
   Grant, C. J.

(after stating the facts). 1. Error is assigned upon the refusal of the court to direct a verdict for the defendant. We think the case was a proper one for the determination of a jury, both as to the negligence of defendant and contributory negligence on the part of the plaintiff. The rules of the corporation provide that ‘ ‘ hand-cars * * * must not be on the main line during a fog or snowstorm, or at night, except in -urgent cases, and then only when ordered by the road-master.” It was not customary for hand-cars to be run at night. It was not, therefore, the duty of the plaintiff to be on the lookout for them. When he had exercised that degree of care required of him in looking out for trains, he had complied with the law. If it be conceded that there was no negligence in running the hand-car in the night, common prudence required those in charge to run it over the street at a very moderate rate of speed, especially in view of the darkness, and the noise made by the electric lighting plant. We are not prepared to say that it would not be negligence to run it, even at the rate of speed testified to by the witnesses for the defendant, without any warning. The weight of the car, the tools, and the men upon it, was nearly 3,000 pounds. The momentum of such a weight at five miles an hour would demolish any ordinary vehicle. The instructions quoted above were sufficiently favorable to the defendant.

2. One George Jackson was walking on the west side of the avenue, going south. As he reached the track he turned to the east side of the avenue, and then stepped off the track on the sidewalk to the south. As he was walking he neither saw nor heard anything coming on the track from the east. On his direct testimony he said:

“I don’t think I was 10feet from the hand-car when I first saw it. It had not come through the fence. I did not hear it before I saw it. I turned to see whether they would run into these people. I saw it strike the buggy on defendant’s track. As I saw one I saw the other, right at the same instant, as they struck the buggy.”

He further testified that he had observed bodies move and in motion a good many times, and had seen horses trot and run. Under objection and exception, he testified that in his- judgment the car was going at léast 12 or 15 miles an hour. On cross-examination he testified:

“ I was not to exceed six feet south of the track when I heard a noise just behind me, a little to the left. I turned to the right, and saw the collision. That is all the opportunity I had to see the car. It ran from the east side of the street, where the cattle-guards are, over to the buggy, while I was turning to the right; and the first I saw of the horse and buggy was when it collided with the car. I could not tell how fast the horse was going. I knew it would be upon & trot, but at what rate of speed I couldn’t say. It happened so quick I could not designate the speed they were going.”

On redirect examination he testified:

“I should say the horse was going just a fair road gait, — perhaps three or four miles an hour; not running.”

He further testified on recross-examination:

“I had a better chance to tell the speed of the hand-car going by me, because I could hear that. My back was towards it. The first thing I saw was when they came together. I must have discovered the speed of the horse and the car at the same time.”

There was no other evidence on the speed of the car, except circumstances and results. The judge, in his charge, gave prominence to the rate of speed; referring to it as being 14 or 15 miles an hour. Under his instruction the jury must have found that the car was running at that speed, for this is the sole reference he makes to it, and he charged that such a rate of speed would be negligence. The witness was not shown to have had sufficient experience to give his opinion as to the rate of speed, under the rule laid down in Grand Rapids, etc., R. Co. v. Huntley, 38 Mich. 537 (31 Am. Rep. 321). Neither was his observation sufficient to enable him to form an opinion. This evidence was inadmissible, and the court should have excluded it.

3. One Blanche Walton, a witness for the plaintiff, stood upon the sidewalk near the track at the time of the accident. On cross-examination she testified that Mr. Hughes, the section foreman in charge of the hand-car, came to see her the next morning, and that she had a conversation with him. She was then asked, “Didn’t you state to him that you heard him make the outcry, ‘ Look out, there! ’ 'just as he was coming through the cattle-guard?” This she denied. Several questions of this character were put to the witness, but she denied having made any such statement. On redirect examination the witness was permitted, under objection and exception, to state all the conversation she had with Mr. Hughes at that time, and testified to damaging admissions made by him, the general effect of which was that he was in fault. Counsel seek to defend the admission of this testimony upon the ground that defendant’s counsel had brought out a part of the conversation, and that the plaintiff was therefore entitled to the whole of it. The case is not within the rule claimed by the plaintiff. The question was asked if she did not make a specific statement, evidently for the purpose of laying the foundation for impeaching her. Mr. Hughes is not the defendant, and was in no position to make admissions binding upon the defendant, under the well-settled rule Andrews v. Mining Co., 114 Mich. 375, and cases there cited. The matters testified' to on this redirect examination had no bearing whatever upon the matters inquired into upon the cross-examination. This testimony was very damaging, and was used in the argument of counsel to attack Mr. Hughes before the jury.

4. On the morning after the accident, plaintiff sent for one of the attorneys in this case and a physician; and suit was commenced on that day by the issuing of summons, and notice served by the attorneys upon the agent of the defendant of the assignment of the claim to them, to protect their fees. The testimony of several of plaintiff’s witnesses, who were his particular friends, to exclamations of pain, extending over a considerable period after suit was begun, was admitted, under objection. This question received a very careful consideration in Grand Rapids, etc., R. Co. v. Huntley, supra, where Chief Justice Campbell said:

“The general rule is that they [these statements] must have been made ante litem motam, which is interpreted to mean, not merely before suit brought, but before the controversy exists upon the facts.”

It is evident, upon this record, that plaintiff immediately contemplated a lawsuit. He sent for a physician and a lawyer at the same time, and the suit was commenced. It was tried first in the January following, the jury disagreeing, while the second trial was in March. Under these circumstances, I think his exclamations should have been excluded. All the physicians (both his own and the defendant’s) testify that, applying all the customary tests, they found no evidence of any spinal trouble or permanent injury. Moreover, his own physician testified that he remained in bed when he saw no reason why he should not get up. It is certainly a wholesome rule which excludes such statements when a suit is pending, and the temptation to make testimony is strong. It is suggested that this testimony was admissible under Strudgeon v. Village of Sand Beach, 107 Mich. 496. I think not. In that case the plaintiff was an infant of tender years. It was there said: ,

“ The exclamations were made by a child of tender-years, in his own home, and not'in the presence of any medical attendant, and under circumstances which indicated that they were natural and ordinary exclamations of pain, called out by the suffering of the plaintiff, and not by any motive of making testimony for himself.”

This case is rather within the decision of Laughlin v. Railway Co., 80 Mich. 154. In that case the expressions were excluded because made “ after suit was commenced, and about the time it was expected to come on for trial.” So in this case the suit was pending, was being pushed as rapidly as possible, and was tried shortly after the expressions were made. Plaintiff was a man of .mature years, and, aside from his expressions, there was no evidence of any serious injury.

5. Counsel for the plaintiff, in his argument to the jury, called the two physicians who testified in behalf of the defendant “hirelings;” denouncing one of them, by the name of Arnold, as “Benedict” Arnold. One of these had been a practicing physician for 37 years, and was a graduate of the University of Michigan and of the College of Physicians & Surgeons in New York city. Among other things, counsel said:

“In the first place, we start out with these doctors,— hired servants of masters. They are engaged by this defendant, and to do this kind of work for them. They are paid from their treasury, and they go with a pass in their pockets.”

We think the counsel went too far in denouncing these witnesses, within the following decisions: Rutter v. Collins, 96 Mich. 510; Anderson v. Railroad Co., 107 Mich. 591; Britton v. Railroad Co., 118 Mich. 491; Geist v. Detroit City Railway, 91 Mich. 446.

6. The defendant requested the court to instruct the jury as follows:

“If the jury find that the plaintiff saw the hand-car before he reached the track, and urged his horse across the track in front of the hand-car, then he would De guilty of contributory negligence, and your verdict'will be for the defendant, — ‘no cause of action.’”

The court gave this instruction, except that he inserted the word “negligently” before “urged.” This left the question to the jury to determine whether such an act was negligent or not. There being no dispute about it, and no two inferences to be drawn from it, the question became one of law. The court should have instructed the jury that such an act would be negligence per se, and bar the right of recovery.

7. Plaintiff was allowed to introduce the mortality tables, which showed that plaintiff’s expectancy of life was about 40 years. These tables are only admissible in a case of permanent injury, or where the suit is brought by the representatives of a deceased person. Plaintiff offered no testimony to show any permanent injury. All the physicians found no evidence of any, and he himself, upon the trial, said that he was not as bad as he used to be. This testimony should have been excluded.

It is strenuously urged by counsel that the defendant was entitled to a new trial upon the ground that the verdict was excessive. Since we have reversed the judgment on other grounds, we do not deem it necessary to discuss this one.

Many other errors are assigned upon the admission and rejection of testimony. They have all received our consideration, and we do not find any error in them.

Judgment reversed, and new trial ordered.

Montgomery, J.

We concur in the opinion of the Chief Justice, with the exception of what is said under the 4th heading. We think it settled by our decisions that exclamations of present suffering are admissible unless made to one in contemplation of his becoming a witness. Will v. Village of Mendon, 108 Mich. 251; Strudgeon v. Village of Sand Beach, 107 Mich. 496.

Moore and Long, JJ.', concurred with Montgomery, J. Hooker, J., did not sit.


author: Montgomery, J.

text:
    CROSS v. DETROIT CITIZENS’ STREET RAILWAY CO.
    Street Railways — Eight on Car — Protection of Passenger-Negligence — Question for Jury.
    An electric car in which plaintiff was the only passenger was boarded while in motion by three disorderly persons, who continued a fight begun on the street. Plaintiff screamed to the conductor to stop the car, and ran to the rear platf orm, where she fell and was injured. In an action against the company, plaintiff testified that the conductor stood at the front of the car, and paid no attention to her request. A. third person who claimed to have observed the scene from without, testified that the conductor’s positiob was as stated by plaintiff. Defendant introduced testimony tending to show that the conductor was engaged at the time in an attempt to disarm one of the combatants, and that he called to the motorman to stop the car, but the latter was forcibly prevented from doing so. Held, that the testimony was in conflict as to whether defendant’s employes used reasonable efforts to protect the plaintiff, and that the question was for the jury.
    Error to Wayne; Hosmer, J.
    Submitted January 4, 1899.
    Decided May 9, 1899.
    Case by Cora E. Cross against the Detroit Citizens’ Street Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Brennan, Donnelly & Van De Mark, for appellant.

      Thomas Hislop, for appellee.
   Montgomery, J.

The plaintiff recovered a verdict in an action for negligence, and injuries received in falling from defendant’s car while a passenger. The negligence imputed to the defendant by the declaration is the failure to prevent certain rough characters boarding the car in which plaintiff was a passenger, and the failure to stop the car to permit plaintiff to alight when the persons who had been admitted to the car engaged in a fight. The testimony on the part of the plaintiff tended to show: That she boarded a Jefferson-avenue car late in the evening, intending to alight at Townsend street, a few blocks east of Field avenue. She .was the only passenger in the car. That after leaving Field avenue, and while the car was in motion, a man boarded the car, pursued by two others. That the man who first entered was knocked down by the two others, and a fight ensued in the middle of the car. The plaintiff screamed, frantically, “Let me off! ” That she got up from her seat and went to the rear platform, and that this is the last she knew, until she was thrown from the car, and received the injuries complained of.

The circuit judge charged the jury:

“It is contended on behalf of the plaintiff that, after leaving Field avenue (and there is no question about that fact), disorderly persons got upon the car, and that at that juncture (I will not pretend to say the exact place) she called upon the conductor in charge of the car to stop the car, so that she might alight. Indeed, she desired, the testimony shows, to get off at Townsend avenue. Her testimony is that no attention was paid to her request. Her testimony is that the conductor stood in the front part of the car, and that no effort was made to stop the car. Now, gentlemen of the jury, all I may say is— I can say, in that regard, if that is true, — if you-find from the testimony which has been adduced before you that the conductor was guilty of negligence in failing to stop the car,— then, unless you find that the plaintiff in this case was by her own conduct guilty of contributory negligence, then, and under those circumstances, the plaintiff would be entitled to recover such damages as would compensate her for the injuries she has sustained. * * *
“ On the part of the defendant it is contended that the conductor was endeavoring to suppress the disorder that then existed in the car. It is contended on the part of the defendant that, both from the testimony of the motorman and the testimony of the conductor, that he heard her request or cry, whatever it may have been, to stop the car, and that he called to the motorman, who heard him, to stop the car. Well, obviously, gentleman, if this is so, there is no negligence in this regard; that is, on the part of the conductor. Now, you have heard the testimony of the motorman. The motorman has testified in this case that he heard the call of the conductor to stop the car, and proceeded to do so, but that he was actually prevented, I think, by application of some force— I think it was a bar placed in such a manner, as he says, between his legs (the switch bar), that, while he turned off the controller, he was unable to apply the brake. Well, now, gentlemen, as I have said in the argument (I think, in reply to some question of the counsel, or some argument of the counsel; I do not exactly recall the juncture now), obviously a street-car railway company is not an insurer of the safety of its passengers; and if you find that, by reason of disorderly proceedings in the car, the motorman was unable to apply the brake, then, under those circumstances, having heard the call of the conductor, I charge you that the company is not at fault, because, as I said before, the company is not an insurer of the safety of the passenger, and all that can be expected of the company in that regard is that they shall use due diligence in the conduct of their cars to protect their passengers, but they are not liable for any assault of disorderly persons or any other public enemies. * * *
“ I am asked to charge you at this time that if you find the conductor did not promptly try to stop the car, but only did so after he had been engaged in the effort to obtain the revolver, — that, if he acted promptly, the motorman could have stopped it at the time, but could not have done so later on,' — the defendant was guilty of negligence in this respect. Well, gentlemen, I decline to give that request. As I say, it depends upon whether you believe the testimony adduced by the plaintiff, or believe the testimony adduced by the defendant. If you believe the testimony adduced by the plaintiff, there was no effort made to stop the car at the time she cried. If you believe the testimony adduced by the defendant, there was that effort, but it was ineffectual, simply and solely by reason of the inability of the motorman to operate the brake. I am not prepared, in this case, to lay down the abstract proposition that it might have been stopped, considering the exceedingly limited space of time in which necessarily this took place, — that it might have been stopped, — or that it was the duty of the conductor, instantly on the appearance of these parties, to stop the car prior to the cry. In fact, gentlemen of the jury, I am not prepared to say but that it may have been simultaneous, dr practically simultaneous. As I said before, you have heard the testimony. I have pointed out what negligence there is in that regard, if there be negligence in the matter, but that is a question for you, and not for me; and I think I have covered all that it is necessary for me to say.”

It is contended by defendant’s counsel that these instructions were erroneous, for the reason that the evidence, without any substantial dispute, shows that the conductor and motorman did all in their power to stop the car after being called on to do so.

It is not disputed that it was the duty of deféndant’s servants to use reasonable efforts to'protect the plaintiff from injury by the lawless ruffians who had boarded the car; nor do we understand that any contention is made that the conductor was not in fault, if he failed to attend to plaintiff’s demand to be let off, if he was in position to comply with that request. But it is insisted that the evidence shows that the conductor was engaged in trying to disarm one of the men, who had drawn a revolver, and that, when the plaintiff demanded to be let off, he (the conductor) called to the motorman to stop the car, that the motorman attempted to do so, and that he was prevented from doing it by some one who boarded the car in front, getting in his way so that he could not apply the brake. If these facts were undisputed, as contended by defendant’s counsel, there would certainly be much force in the contention that the conductor was performing his duty as he saw it, with coolness and bravery. W,e are not, however, able to say that this testimony is undisputed. Mrs. Emma Bates testified that she lived at 1497 Jefferson avenue, the second door east of Sheridan avenue, which is the first street east of Field avenue, and saw the car pass her place; saw the three men struggling in the middle of the car, and saw the conductor standing at the front end of the car, at the vestibule door, right in the doorway; that she saw him still in this position after they had passed Townsend street, the street next east of Sheridan avenue. The plaintiff testified that the conductor stood at the front of the car, just at the door in the vestibule, — just within the door on the left-hand side of the doorway as the car was going. She further testified: “He did not say anything to me when I screamed and wanted to be let off, — never moved.” Defendant’s counsel quote this last statement, and insist that it does not contradict the conductor’s testimony that he called out to the motorman to stop the car and let the lady off. But the conductor’s testimony is that he was not occupying this position at all, but struggling with the desperadoes in the middle of the car, at the time he called to the motorman. But a more complete answer to the contention is that the plaintiff further testified that, when she screamed to be let off, the conductor paid no attention. _ This was certainly untrue, if he responded to her request by ordering the motorman to stop the car. We think there was testimony to support plaintiff’s case, and that the charge fairly presented the correct theory of the case to the jury.

The other questions presented are sufficiently answered by the above discussion.

The judgment is affirmed.

Grant, C. J., Moore and Long, JJ., concurred. Hooker, J., did not sit.