text:
    STEPHENSON v. PURCHASE.
    1. Execution — Discharge of Debtor Under Poor Debtors’ Act-Effect on Judgment.
    On a bill to reach assets in the hands of defendant which are claimed to legally and equitably belong to the estate of her. deceased husband, against whom a decree had been rendered and a cos. m issued to satisfy said decree, and who was discharged from custody under the poor debtors’ act, such discharge held, to have been by operation of law and not by the consent of plaintiff, and not to operate as a satisfaction of the judgment, and although the debtor could not again have been imprisoned on the same judgment, all the remedies against his property were open to plaintiff.
    2. Same — Common Law — Statutes—Construction—Status of Debtor After Discharge.
    Section 12843, 3 Comp. Laws 1915, providing that when the body of the debtor shall have been taken on an execution no other execution may be issued against him or his property except in eases especially provided for by law, is but declaratory of the common law, and section 13628, 3 Comp. Laws 1915, fixing the status of the debtor with reference to his indebtedness after receiving his discharge under the poor debtors’ act is also only declaratory of the common law, and does not create any exemption of the goods and chattels of the debtor.
    Appeal from Wayne; Goff (John H.), J.
    Submitted April 9, 1920.
    (Docket No. 39.)
    Decided April 8, 1921.
    Bill by Eugene J. Stephenson, receiver, against Marie C. Purchase to reach certain trust funds. From a decree dismissing the bill, plaintiff appeals.
    Reversed and remanded.

      Rood & Visscher, for plaintiff.

      Lodge & Brown, for defendant.
   Bird, J.

In the chancery case of Mast v. Purchase, 163 Mich. 35, which was a bill of complaint charging misappropriation of trust funds, a decree was entered against George H. Purchase, the husband of defendant, for the sum of $11,092.31. Purchase having since died, leaving no visible estate, this bill was filed to reach assets in the hands of defendant, which it is claimed legally and equitably belong to her husband’s estate. The case came on for hearing, and it being disclosed by a stipulation of facts that George H. Purchase was arrested and imprisoned on a capias ad satisfaciendum to satisfy said decree, and was subsequently discharged from custody upon his application under the provisions of the poor debtors’ act, the chancellor, upon motion, dismissed plaintiff’s bill, holding that the discharge of Purchase under the poor debtors’ act operated as a satisfaction of the decree. Plaintiff appeals, raising several questions, chief of which 'is, whether the discharge of an execution debtor under the provisions of our statute for the relief of poor debtors is a satisfaction of the debt.

It is undoubtedly true, as contended by defendant, that there are many statements in the books to the effect that at common law the taking of the body of the debtor in execution is a satisfaction of the debt. This statement of the rule is a general one and may be technically correct. It certainly is correct while the debtor is in prison, because during that period no other process can issue to enforce the judgment. But this general rule has its exceptions. The cardinal exception being when the debtor is released or dischargecL without the consent of the plaintiff it is no satisfaction of the debt. If the debtor escapes, dies in prison, or is discharged by operation of law, it is adjudged to be without the consent of plaintiff and, therefore, no satisfaction of the debt. On the other hand, if it can be shown that the escape or release had the consent of plaintiff, then the debt is adjudged to be satisfied. It is not improbable that the failure to note the; exceptions, when stating the general rule, is responsible for much of the apparent variance among the cases. In most of them the general rule and the exceptions are stated together,. hut in some of them the general rule is stated and no mention is made of the exceptions.

One of the clearest and most comprehensive statements of the rule which has come under our observation is made in State v. Simpson, 46 N. C. 82. It is there said:

“It is well settled, that where a defendant is arrested, upon a ca. sa. in a civil suit, and is discharged, by the direction, or consent, of the plaintiff, it is in law a discharge of the debt, but where he is discharged by operation of law, as by an insolvent act or act of bankruptcy, or where he dies in prison, or escapes, it is not a discharge of the debt.”

An examination of the numerous cases cited by counsel will disclose that most of- them will square with the rule as above stated.

In reviewing the> law relative to writs of capias ad satisfaciendum the American & English Encyclopedia has this to say upon the question:

“The rule is laid down in some of - the cases that at common law the taking of the body of a defendant in execution amounts to a satisfaction of the judgment. According to the weight of authority, however, imprisonment on a body execution does not absolutely extinguish the judgment, but operates as a satisfaction thereof so long as the imprisonment continues, and suspends for the time being all other remedies of the creditor against the debtor.” 16 Am. & Eng. Enc. Law (2d Ed.), p. 49.

In 4 Comyn’s Digest of the Laws of England, p. 241, it is stated under the heading “When execution may be after a former execution:”

“So, by the st. 21 Jac. 24. If a man dies in execution, it may afterwards be sued of his lands or goods.
“So, before that statute: For the body was not a satisfaction, but a pledge only for the debt, R. 5 Co. 87. R. cont. Cro. El. 850. 2 Cro. 136, 143. R. cont. per 3 J. Hob. 60. Mo. 858. 1 Rol. 903. 1. 40.
“So, since that statute, shall it be without question.
“So, if one of the defendants escapes, the plaintiff may afterwards sue execution against the other, though he has a remedy against the sheriff. R. 5 Co. 86 b. Cro. El. 555, 573. Cont. Mo. 459. R. acc. 2 Cro. 532. R. Cro. Car. 75. Vide Escape (E).
“So, if the conusor upon a statute of recognizance escapes, the conusee shall have execution against his lands and goods. R. 5 Co. 86 b. 87 b.”

Blumfield’s Case, 3 Coke, 174, is one of the early English authorities on the question. It is there said, in part:

“So, if the conusor be taken, and dies in execution, the conusee shall have execution of his goods and lands. And it was adjudged Pasch, 24 Eliz. in the common pleas between Jones and Williams, that where two men were condemned in debt, and one was taken and died m execution, yet the taking of the other was lawful. And then it was resolved by the whole court, that if the defendant in debt dies in execution the plaintiff may have a new execution by elegit, or fieri facias, for divers reasons.
“1. Because the plaintiff shall not be prejudiced, nor the defendant benefited by the act and wrong of the defendant, in nonpayment of his debt, when no default is in the plaintiff, he having pursued the due and ordinary course of law.
“2. The. execution of the body is no satisfaction (as appears in 4 H. 7, 8, & 33 H. 6 (f) 47. Hillary’s Case adjudged but a gage for the debt; as. where a man has returned irreplevisable awarded, as it is said in 33 H. 6, 46, and therefore after his death he shall resort to a new execution. * * * So that his body is taken to the intent that he shall satisfy and when the defendant pays the money, he shall be discharged out of prison.
“3. The death of the defendant is the act of God, which shall not turn to the prejudice of the plaintiff, as it is said that in Trewinyard’s Case, 38 H. 8, Dy. 60, the plaintiff shall not be prejudiced of his execution by act of law, which doth not wrong to anyone.
“4. It would be mischievous to the plaintiff to lose his debt without any default in him, and no mischief if a new execution should be done, for nothing would be liable to his new execution, but the lands and goods of the defendant, which in law and all equity ought to be subject to the payment of his debts.’’

In Nadin v. Battie & Wardle, 5 East, 147, the defendants were arrested and imprisoned on a ca. sa.. Wardle was subsequently discharged under an insolvent debtors’ act. Battie then moved for his discharge on the ground that his co-defendant had been released. The court said: |

“The discharge cannot be said to have been with plaintiff’s assent, because he did not choose to detain the party in prison at his own expense. Nor can the law, which works detriment to no. man, in consequence of having! directed the discharge of one defendant, so far implicate the plaintiff’s consent, against the fact, as to operate as a- discharge of the other.”

Blackstone, in treating of the writ, recognizes the right of the plaintiff to have execution against the debtor’s goods and chattels if he is discharged without his consent as by operation of law:

“But, by statute, 32 Geo. II., chap. 28, if a defendant, charged in execution for any debt not exceeding 100£ will surrender all his effects; to his creditors (except his apparel, bedding, and tools of his trade, not amounting in the whole to the value of 10£) and will make oath of his punctual compliance with the statute, the prisoner may be discharged, unless the creditor insists on detaining him; in which case he shall allow him 2s. 4d. per week, to be paid on the first day of every week, and on failure of regular payment the prisoner shall be discharged. Yet the creditor may at any future time have execution against the lands and goods of such defendant, though never more against his person." 2 Cooley’s Blackstone (4th Ed.), p. 416.

See, also, 11 Viner’s Abridgement, 28; Hillary’s Case (1460), Y. B. Hen. VI. 47; Thompson v. Parish (1859), 5 C. B. (N. S.) 685; Linacre v. Rhode (1589), 2 Leonard, 96.

Sharpe v. Speckenagle, 3 Serg. & R. (Pa.) 463, is an early American case and involves the liability of a ¡surety for a debtor who was imprisoned and subsequently discharged under the insolvent laws. The court said:

“It is not pretended, that the insolvent act discharged Oellers from the debt; it only discharged him from imprisonment. But the counsel for the defendant contends, that the arrest of Oellers on the capias ad satisfaciendum was, in itself, a satisfaction of the debt, and therefore it amounted to a discharge of the recognizance. That the arrest on a capias ad satisfaciendum is, in itself, a satisfaction of the debt, is a position not to be maintained, unless the plaintiff consented to the discharge; then indeed the debt is gone.”

The Federal Supreme Court considered the question in the case of Tayloe v. Thomson, 5 Pet. 358. In disposing of contentions similar to those made in the instant case, it was said:

“If the defendant escape, or is discharged by operation of law, the judgment retains its lien, and may be enforced on his property. The creditor may retake him, or sue the sheriff for the escape. A judgment against him does not amount to a satisfaction of the original debt, but it retains its lien until the plaintiff has done or consented to some act, which amounts in law to payment; as the discharge of defendant from custody, or, in some cases, a levy on personal property. But we know of no rule of law which deprives a plaintiff ^ a judgment of one remedy by the pursuit of another, or of all which the law gives him. The doctrine of election, contended for by the plaintiff in error (i±J it exists in any case of a creditor, unless under the statutes of bankruptcy), has never been applied to a case of a defendant in execution discharged under an insolvent act, by operation of law; a contrary principle is recognized, as well settled, in 5 East, 147.
«The greatest effect which the law gives to a commitment on a ca. sa. is a suspension of the other remedies on the judgment during its continuance; whenever it terminates without the consent of the creditor, the plaintiff is restored to them all as fully as if he had never made use of any.”

It is said in Bannister v. Miller, 54 N. J. Eq. 126 (32 Atl. 1066), that:

“The defendants claim immunity from liability upon another ground. This matter of defense rests upon the following facts appearing in the case. It appears that the actions brought by the complainants, in which the judgments already mentioned were recovered, were commenced by capias ad resporod&ndvm, and after the return of execution capias ad satisfaciendum were issued, upon which the sheriff took the bodies of the two Millers into custody. They were discharged from arrest, pursuant to the provisions of the insolvent debtors’ act, having made and delivered an inventory of their property and given bond.
“The defendants insist that the complainants, having elected to proceed against the bodies of the Millers, are barred from proceeding in any other method, and that as to the complainants, their debts must be regarded as satisfied.
“There is no substance in this contention. The fact of a discharge under the insolvent act, by the express terms of section 28, is to relieve the debtor’s person from liability to imprisonment for any provable debts against him at the time of the assignment made by him under the act, subject to this restriction only — the creditor is free to pursue his remedy against the discharged debtor or his property for any .debt.”

The question came before the Kentucky court in Scott v. Colmesnil, 30 Ky. 417, and it was observed that:

“The imprisonment of Lee,. which seems to have been intended as the gravamen, could not, of itself, and alone, bar the action. The mere caption and imprisonment of Lee, did not satisfy or release the judgment, and could not, therefore, have operated either as an actual or legal exoneration of himself, or of his co-obligor. Nothing but actual satisfaction, or a liberation of Lee by the plaintiffs, or a release to him in fact, or in law, could have exonerated the defendant from any joint liability which pre-existed. Cro. El. 573; 5 Co. 86; Gow on Part. 257, Mar. pa. If Lee had escaped, or had been discharged, the defendant’s liability would not have been thereby destroyed, or impaired. Gro. El. 479, 555, 573; 5 Co. supra.

Trustees of the Poor v. Pratt, 10 Md. 5, is in accord with the foregoing authorities.

“It is contended, in the first place, by the appellee’s counsel, that the arrest of the defendant in the judgment, under a ca. sa. issued thereon, prior to the marriage, either amounted, in law, to a satisfaction of the judgment, or waived or suspended the lien thereof, so as to allow the dower to attach upon the lands. The contrary principle has been adopted in this State, as well as by the Supreme Court of the United States, in the case of Tayloe v. Thomson, 5 Pet. 358. In that case the court says:
“ ‘The greatest effect, which the law gives’ to a commitment on a ca. sa., is a suspension of other remedies on the judgment during its continuance.’
“It is not said that the lien is suspended, but on the- contrary, the court expressly say that the plaintiff’s ‘remedies are cumulative and successive, which he may pursue until he reaches that point at which the law declares his debt satisfied. A ca. sa. executed does not extinguish it. If the defendant escape or is discharged by operation of law, the judgment retains its lien and may be enforced on his property;’ again, ‘it. retains its lien until the plaintiff has done or consented to some act which amounts in law to payment.’ * * *
“We are therefore of the opinion, that the proceedings upon the ca. sa. neither suspended the lien of the judgment so as to allow the dower to attach, nor does it afford a legal presumption of the satisfaction of the judgment.”

Herman on Executions, pp. 573, 574, disposes of the point in this wise:

“It was formerly held that if a person taken on a ca. sa. died in execution, the plaintiff had no further remedy; because he determined the choice of this kind of execution, which, affecting a man’s liberty, is esteemed the highest and most rigid in law. But if he die while so charged, or escape, be rescued or be discharged under any insolvent law discharging his person, new execution may be issued against his body if he escape or be rescued, or against his property if he die or be discharged, in the same manner as if he had never been charged in execution. The body is merely regarded as a pledge for the debt; it is taken not in satisfaction, but ad satisfaciendum. The presumption is that the debtor is solvent, but is coerced of his liberty until he makes payment. His imprisonment is not a punishment, but merely a means of getting at that property which he is supposed to possess and fraudulently withholds.”

Other American cases in accord with the foregoing are: Leake v. Ferguson, 2 Grat. (Va.) 419; Atwell v. Towles, 1 Munf. (Va.) 175; Tappan v. Evans, 11 N. H. 311; Prentiss v. Hinton, 6 Blackf. (Ind.) 35; Sheldon v. Kibbe, 3 Conn. 214; Pettus v. Smith, 4 Rich. Eq. (S. C.) 197; Murray v. Shearer, 7 Cush. (Mass.) 333; Strode v. Broadwell, 36 Ill. 419; 3 Freeman on Executions (3d Ed.), § 462.

The following cases will be found directly in point, because the debtor in each of them was discharged by an insolvent act the same as in the present case: Nadin v. Battie & Wardle, supra; Sharpe v. Speckenagle, supra; Bannister v. Miller, supra; Tayloe v. Thomson, supra; Miller v. Miller, 25 Me. 110; Payne v. Dudley (1793), 1 Wash. (Va.) 196, 198; Hamilton v. Bredeman, 12 Rich. Law (S. C.), 464; Strode v. Broadwell, supra; Douglas v. Wallace, 11 Ohio, 42.

The last case cited is illustrative of the holding in each. The court said, in part:

“Two questions seem to be presented to the court for consideration in this case:
“First: As to the effect of an arrest on ca. sa., where the arrest is discharged by the surrender of property; and,
“Second: Whether, in a case like the present, a court of chancery can furnish relief.
“As to the first question. We are aware that, by the principles of the common law, if a judgment debtor is arrested on a ca. sa., such arrest will be considered equivalent to a satisfaction of a judgment. In fact, it is said to be the highest satisfaction known to the law. But there are, and must necessarily be, exceptions to this rule. If the creditor is not permitted to retain his debtor in custody, it would hardly do to say, that, by the arrest, his debt was discharged. As if, for instance, a judgment debtor, arrested, is discharged under the insolvent laws, there can be no pretense that the judgment is satisfied. If, at any subsequent period, the debtor shall accumulate property, the judgment can be enforced against that property, although it cannot be enforced by a second arrest of the body.”

Counsel has cited the following English cases as sustaining the contention of the defendant: Burnaby’s Case (K. B.), 1 Strange, 653; Foster v. Jackson, Hobart, 124; Vigers v. Aldrich (1769), 4 Bur. (K. B.) 2482; Jaques v. Withy (1787), 1 Term Rep. 557; Clarke v. Clement & English (1796), 6 Term Rep. 525; Tanner v. Hague (1797), 7 Term Rep. 420; Bassett v. Salter (1677), 2 Mod. 136; Blackburn v. Stupart (1802), 2 East, 243.

Foster v. Jackson is an authority for defendant’s contention, but the rule announced in that case was soon afterwards reversed by act of parliament. (21 Jac. 1, chap. 24.)

In Burnaby’s Case the subsequent relief sought was denied because the debtor was at the moment in custody, thereby following the rule that while the debtor is in custody no other process to enforce the judgment will issue.

The question litigated in Bassett v. Salter was the propriety of. the remedy in case of an escape. In the remaining cases relief was denied because plaintiff had consented to the release of the debtor.

The American cases cited by defendant are: Yates v. VanRensselaer (1810), 5 Johns. (N. Y.) 364; Cooper v. Bigalow, 1 Cow. (N. Y.) 56; Lathrop v. Briggs, 8 Cow. (N. Y.) 171; Ransom v. Keyes, 9 Cow. (N. Y.) 128; Ammidon v. Smith, 1 Wheat. (U. S.) 447; Stillwell v. VanEpps, 1 Paige Ch. (N. Y.) 615; Strawsine v. Salsbury, 75 Mich. 542.

In the cases of Cooper v. Bigalow and Stillwell v. VanEpps, the defendants were in custody and relief was denied for this reason. In Ammidon v. Smith, suit was brought on the bond which defendant gave to be admitted to the prison yard. Subsequently he was discharged under the insolvent laws and it was held no recovery could be had against the sureties on the bond because the condition of the bond was not violated. In the remaining cases the court found that the plaintiffs had consented to the release of the defendants, which, under the rule, satisfied the judgment. Relief was denied upon this ground.

Strawsine v. Salsbury is a Michigan case. In that case it was stated that:

“It is well settled at the common law that the detaining of the body in execution is a satisfaction of the debt, and you cannot afterwards take the goods.” Citing Cooper v. Bigalow, 1 Cow. (N. Y.) 56; Lathrop v. Briggs, 8 Cow. (N. Y.) 171; Ransom v. Keyes, 9 Cow, (N. Y.) 128.

This holding is similar to many other holdings in cases where plaintiffs have consented to a release of the debtor. An analysis of the case will show that the conclusion therein reached was because the defendant was released by the implied consent of the plaintiff. This is shown by the following reasons:

(а) It was made to appear by defendant that the debtor was released because the plaintiff refused to pay the statutory, fees for his keeping. Plaintiff denied this and the issue, which was passed upon by the jury, was whether plaintiff was in such default. The jury found this fact in favor of defendant. This finding was equivalent to a finding that plaintiff had impliedly consented to the debtor’s release by his refusal to pay the statutory fee. In re Lauer’s Estate, 184 Mich. 503.

(б) The authorities cited by Mr. Justice Long are not in point unless this theory of the opinion is accepted.

(c) The jury were charged in substance that, if they found that the plaintiff refused to pay the jail fees, the sheriff was justified in releasing him. And they were further charged that if the sheriff released the defendant without the knowledge or consent .of the plaintiff, the plaintiff would be entitled to recover.

The attitude of the trial court is plainly indicated by this instruction. Had the question of veracity between the sheriff and plaintiff been decided in favor of the plaintiff, a judgment for him would have followed notwithstanding the fact that the defendant’s body had been in execution on the judgment. These considerations are persuasive that by the language used in the opinion it was not intended to hold that the mere imprisonment of the debtor would satisfy the judgment. If it were so intended the language is obiter dictum and would not be controlling. This case must be classed among those in which the plaintiff consented to the discharge of the debtor.

After an exhaustive examination- of the authorities we are not persuaded that the taking of a debtor’s body in execution is a satisfaction of the judgment. It may have been true in the early history of the rule because then there was no way in which the debtor could be released except by payment of the debt or by the consent of the plaintiff, but, since debtors have been released under the insolvent laws against the consent of the plaintiff, there is no basis for holding that the debt is satisfied if the debtor has been in execution and released by operation of law. The overwhelming weight of authority is that the judgment is not satisfied if the debtor is released by the insolvent laws. Our opinion, therefore, is that when the husband of defendant was released under the provisions of the poor debtors’ act the judgment was not satisfied. That while the debtor could not have been imprisoned again on the same judgment, all the remedies against his property were open to plaintiff.

The question as to the effect of our statutes on the controversy is much discussed by counsel. The chancellor was impressed that the statutes should control the question and accordingly he placed his decision upon that ground. An examination of the statutes which have been called to our attention discloses that most of the provisions are merely, declaratory of the common law. In re Lauer’s Estate, 184 Mich. 497. Special stress, however, is laid upon section 12843, 3 Comp. Laws 1915:

“When the body of a party shall have been taken on an execution issued for that purpose, no other execution can be issued against him or his property, except in cases especially provided for by law.”

This section in no way changes the common law, but is declaratory of it. The rule of the common law is that when the plaintiff has the body of his debtor in execution, his right to pursue other remedies against him are suspended. LaBranch v. Herbst, 192 Mich. 129; Grosslight v. Wayne Circuit Judge, 127 Mich. 414; 16 Am. & Eng. Enc. Law (2d Ed.), p. 49.

The words of the statute “except in cases especially provided for by law” mean by statute or common law. Fuller v. Bowker, 11 Mich. 204.

The statute means the same as the common law does and should receive the same construction. The opinion of Mr. Justice Montgomery in Grosslight v. Wayne Circuit Judge, supra, indicates this is the view heretofore entertained by this court. In the course of that opinion it was said:

“In general, the taking a party in, execution is deemed as satisfaction of the judgment, so that no other writ can be sued) out by the plaintiff upon the judgment while the defendant remains in custody. Burrill, N. Y. Prac. p. 314.”

Reference is also made to the following section:

“The debtor, after being so discharged, shall be forever exempted from arrest or imprisonment, for the same debt, unless he shall be convicted of having sworn falsely upon his examination before the officer, or in taking the oath before prescribed.” 3 Comp. Laws 1915, § 13628.

This statute is also declaratory of the common law. Under the common law when the debtor was once in execution he could not be again imprisoned on the same judgment unless he had escaped or was rescued. This section undertakes to and does fix the status of the debtor with reference to his indebtedness after receiving his discharge under the poor debtors’ act. It provides that after being discharged he may not again be imprisoned for the same debt. It makes no reference to his goods and chattels and-creates no exemption in their behalf. Prior to the legislative session of 1877 this section read as follows:

“The debtor, after being so discharged, shall be forever exempted from arrest or imprisonment for the same debt, and shall be discharged from such debt, unless he shall be convicted of having sworn falsely upon his examination before the officer, or in taking the oath before prescribed.” 2 Comp. Laws 1871, § 7333.

At that session the section was amended and the words “and shall be discharged from such debt” were eliminated, leaving the section to stand in its present form. Act No. 99 of the Public Acts of 1877. Had it been the intention of the legislature to protect the debtor’s property from execution after being discharged, it is hardly conceivable that it would have eliminated those words from the statute. The fact that it did so indicates clearly a contrary intention. We do not think our statutes in their present form create any exemption in favor of the goods and chattels of a discharged debtor under the poor debtors’ act.

This view of the main question makes it unnecessary to pass upon some of the other questions raised. The question whether the books and papers belonging to the deceased were properly identified and proven was not passed upon by the chancellor because he was of the opinion that the bill should be dismissed upon the main question. The decree dismissing the bill must be reversed and the records and files must be remitted to the trial court for such further proofs as the parties may decide to introduce, subject, however, to the rules of law and practice of the court. The plaintiff will recover costs of both courts.

Fellows, Stone, Clarke, and Sharpe, JJ., concurred with Bird, J. Steere, C. J., and Moore, J., concurred in the result.

The late Justice Brooke took no part in this decision.


source: Caselaw Access Project

author: Bird, J. Sharpe, J.

license: Public Domain

text:
    PEOPLE, ex rel. RILEY, v. CRANKSHAW.
    Schools and School Districts — Township Unit System: — Elections — Electors in Fractional Districts Entitled to Vote.
    In an election to determine whether a township school district shall be organized into a single school district under Act No. 117, Pub. Acts 1909, as amended by Act No. 143, Pub. Acts 1911 (2 Comp. Laws 1915, § 5909 e§ seq.), those resident school electors of said township in fractional school districts whose schoolhouse is outside of the boundaries of the township are 'entitled to vote. Fellows and Sharpe, JJ., dissenting.
    Error to Lapeer; Williams (William B.), J.
    Submitted January 21, 1921.
    (Docket No. 52.)
    Decided April 8, 1921.

      Quo warranto by the people of the State of Michigan, by Albert H. Perkins, prosecuting attorney, on the relation of Charles S. Riley and others, against Duane W. Crankshaw and others to try the title to the office of trustees of the school board for the township of Hadley. Judgment of ouster. Defendants bring error.
    Affirmed.

      William E. Brown and Monaghan, Crowley, Reilly & Kellogg, for appellants.

      B. F. Reed and Theo. D. Halpin, for appellees.
   Bird, J.

The prosecuting attorney of Lapeer county filed an information in the nature of a quo warranto, questioning the validity of defendants’ election as trustees of the school board for the township of Hadley, in Lapeer county. The interveners question the validity of their election on the ground that the township school district was not legally organized. The matters were tried out and the trial court held the organization of the township school district was illegal and a judgment of ouster followed.

In the latter days of May, 1920, a petition was presented to the township board of Hadley township by certain school electors praying for an election to determine whether the school electors of the township desired a township school district. The petition was acted upon favorably and an election was called and held on June 28, 1920. The votes cast'in favor of the proposition were 202. Those against 175. It is claimed by the interveners that the election was not legally called and that the election itself was illegal because certain resident school electors of the township of Hadley were prevented from voting.

The trial court took the view that the election called for the purpose of determining whether the unit system should prevail was illegal because no notice of the election was posted as the statute requires in the fractional school districts whose schoolhouses were situate outside of the boundaries of the township, and because school electors residing in such fractional districts were excluded from voting. These questions depend, upon a construction of the statute which was passed for the organization of township school districts. The attorneys for the trustees insist it was not contemplated by the statute that school electors residing in fractional districts whose schoolhouses are located outside of the boundaries of the township should have the right to vote. This is based upon the following proviso of the law:

“Provided, That if in such township, or as a part of such township, there are fractional school districts already organized, the schoolhouse of which is within the boundaries of the township, such fractional districts shall be considered a part of the township for school purposes, and qualified school electors residing anywhere in such fractional school district shall be qualified to sign the petition for or vote upon the question of the organization of the township district.” 2 Comp. Laws 1915, § 5909.

It is argued from this proviso that in fractional districts where the schoolhouse is outside of the boundaries, school electors in the township of Hadley were not entitled to vote; that those electors will have an opportunity of voting when the township in which the other part of the district is situate votes on the same question. The point is made that if this is not the proper construction of the statute then those electors residing in the township of Hadley in a fractional district where the schoolhouse is outside of the boundaries will get two votes. They will have a right to vote in the township of Hadley and then again in the township in which the other part of the district is situate when it votes upon the same question. It is answered by the attorneys for the interveners that these electors would not get two votes on the same question, that they are voting upon different questions. It is argued by the interveners that if you hold the school electors in such districts to be excluded from voting they may be forced into a township school system without having any voice as to whether or no they will go, and they cite the following proviso:

“Provided further, That in any case where a fractional district has been organized^ heretofore, such territory may be divided so that the township school district boundary lines shall conform to the township boundary lines, such division being made in their discretion by the township boards of the township in which the territory may be located, said boards meeting in joint session for such purpose.” 2 Comp. Laws 1915, § 5910.

It is said that by virtue of this'-proviso after the election is passed and carried the township boards of the townships in which the fractional district is situate may get together and place the voters of the district living in Hadley township within the township school system and the voters have nothing to say about it. Opposing counsel say the legislature has the right to consolidate school districts without asking the voter and that it is not an inherent right of the voter to have a voice in the formation of the district.

The statute for the creation of township school districts is Act No. 117, Pub. Acts 1909. A slight amendment was added by Act No. 143, Pub. Acts 1911. The enacting clause provides in part that:

“Whenever a majority of the' qualified school electors in any organized township votes in favor of organizing such township into a single school district, such township shall, after the second Monday in July thereafter, be a single school district and shall be governed by the provisions of this act. * * * The question of changing any organized township info a single school district to be governed by the provisions of this act, shall not be submitted to the qualified school electors of said township until a petition therefor, signed by one-fourth of the qualified school electors of said township, requesting the submission of such proposition, shall be filed in- the office of the township clerk.” Act No. 148, Pub. Acts 1911, § 1 (2 Comp. Laws 1915, § 5909).

There is no express provision in the act prohibiting the school electors residing in fractional districts in which the schoolhouse is outside of the boundaries of the township from voting. That idea is born of inference from the affirmative language of the proviso making the school electors in fractional districts where the schoolhouse is situated within the township participants in the election.

The trial court was of the opinion that the proviso was inserted for the purpose of enlarging the class that could vote and not for the purpose of limiting the class that the enacting clause declares may vote. It is not at all clear just what the legislature meant by these provisions, but I am impressed that the trial court’s solution of the admixture is as reasonable a solution as can be suggested.

The enacting clause provides:

“Whenever a majority of the qualified school electors in any organized township votes in favor,” etc., and
“The question of changing any organized township into a single school district to be governed by the provisions of this act shall not be submitted to the qualified school electors of said township until a petition therefor, signed by one-fourth of the qualified school electors of said township, requesting the submission of such proposition, shall be filed in the office of the township clerk.”

It will be noticed that throughout the entire act it speaks of the school electors of the township and in no place does it restrict the right of any class residing within the township to vote. The idea back of the act is to change from the smaller to the larger unit — to the township unit. In view of this, Can the courts inject a prohibition into the act which would.deny to a large class of voters, residing in the township the right to vote at such an election? Counsel argue that the legislature has the right to change the boundaries of a district without the consent of those affected. This is quite likely true, but here is an act, the whole purpose of which is to give the voter — the person who will be affected — a voice in the proceedings. It would not only be at variance with the terms of the act but with the spirit of it to deny tliem that right. It is quite true, as counsel say, that one may, under the construction contended for by defendants, become a member of a district without having any voice in the matter. It is quite evident that_the legislature never intended any such result. Such a result is possible only because the law was very carelessly prepared. The question of construction is a very difficult one. Both constructions are open to criticism, but this does not authorize the court to legislate or to disfranchise voters in the township where there is nothing in the act to justify it. To give the act the construction contended for by defendants would compel, us to read into the act an amendment disfranchising a certain per cent, of the voters of nearly every towniship in the State. This we have no right to do whether the law is workable or not. For these reasons I am in favor of affirming the judgment of the trial court. It being a public question no costs will be allo'wed either party.

Steere, C. J., and Stone and Clark, JJ., concurred with Bird, J. Moore and Brooke, JJ., did not sit.

Sharpe, J.

(dissenting). I cannot agree with Mr. Justice Bird in his construction of -this statute. In my opinion, it gives only the qualified school electors of the township who will be affected by the change the right to petition therefor and vote thereon.

All fractional districts of which any part of the township may form a part, if the schoolhouse of the district be situate in the township, are considered as a part of the township for school purposes, and the qualified voters of such district, though residing outside the limits of the township, are qualified school electors of the township. The property of such voters: will, if the change into a single district be made, be brought into it and‘be subject to any taxes levied therein. In other words, the location of the schoolhouse in a fractional district determines whether or not the voters in such district are qualified school electors of the township and entitled to vote on the question presented. Voters) who live in the township, but on lands included in a fractional district, the schoolhouse of which is in another township, are in. no way affected by the proposed change.

The purpose sought to be accomplished by the election held was to bring all the territory which under the law forms a part of the township for school purposes into a single school district. Such territory includes that lying in an adjoining township belonging to a fractional district in which the schoolhouse is located Within the township, and excludes the territory of the township belonging to a fractional district in which the schoolhouse is located without the township. I think that, under a fair interpretation of the language of the statute taken as a whole, only those who would be affected by such change were entitled to vote at such election. As it does not appear that any voter was deprived of his right to vote by the claimed irregularity in calling the election, in my opinion the action taken should be sustained and the information dismissed without costs.

Fellows, J., concurred with Sharpe, J.


author: Moore, J.

text:
    CITY OF LANSING v. EATON CIRCUIT JUDGE.
    Nuisance — Contemplated. Nuisance — Piggery—Injunction—Premature Suit.
    An injunction, at the instance of residents of a township, restraining the city of Lansing; from, establishing and operating a piggery on a farm in said township, on the claim that the same will constitute a nuisance, as against the city’s denial, was improvidently issued, since the question as to whether said piggery, as operated, will constitute a nuisance, can be determined only after the same is in operation.
    For annotation on the question of keeping of pigs as a nuisance, see note in L. R. A. 1917C, 212.
    Mandamus by the city of Lansing against 'Willis B. Perkins, presiding circuit judge of Eaton county, to vacate an order denying a motion to dismiss an injunction.
    Submitted April 5, 1921.
    (Calendar No. 29,654.)
    Writ granted April 20, 1921.

      D. G. F. Warner and Allan R. Black, for plaintiff.

      Rosslyn L. Sowers (Samuel H. Rhoads, of counsel), for defendant.
   Moore, J.

This is an injunction bill. It is alleged in the bill of complaint and admitted in the answer that the city of Lansing has purchased a farm in Delta township for the purpose of establishing thereon a piggery, where hogs will be kept and fed on the garbage collected from the city of Lansing. The plaintiffs live in the neighborhood of said farm. It is alleged in the bill of complaint that said garbage and its disposal will create a nuisance, endangering the lives and health of the plaintiffs, and destroy the enjoyment of their homes and greatly depreciate the value of their property. The defendants deny that the conditions which will exist under their method of disposing of the garbage will create a nuisance or cause discomfort to the plaintiffs. An injunction was issued on an ex parte application.' A motion was made to dissolve the injunction. This motion was overruled. This is a proceeding to review that action.

The pleadings and the affidavits accompanying the same show a pressing necessity to have the question of whether the injunction was improvidently issued speedily determined. A similar question in the legal principles involved to the one here was presented in Wolfschlager v. Applebaum, 213 Mich. 180. We think that case is controlling of the instant case. We shall not quote therefrom but content ourselves with referring to the case.

The bill of complaint was prematurely filed and the injunction is dissolved without prejudice, with costs to the city.

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