author: Sharpe, J.

text:
    DE VELIN v. WAYNE CIRCUIT JUDGE.
    1. Process — Motions—Abuse oe Process — Dilatory Plea.
    Where defendant appeared specially and filed a motion to set aside service of process on her on the ground that another defendant was joined for the sole purpose of permitting service to he made on defendant in another county, the motion should not be treated as a dilatory plea hut as a meritorious appeal to the court to protect its process from abuse.
    2. Same — Pleading—Jurisdiction.
    Under 3 Comp. Laws 1915, § 12456, the motion was properly and timely made, and, being supported by affidavits in" compliance with the requirements of Circuit Court Rule No. 15, challenged the jurisdiction of the court.
    3. Same — Issues Presented — Dismissal
    "Where said affidavits were uncontradicted, the court was justified in dismissing the proceedings.
    4. Same.
    No issue having been raised by counter affidavits, the court was required to determine the merits of the motion before any further proceedings were had.
    Mandamus by Jessie De Velin to compel Adolph Marschner, circuit judge of Wayne county, to vacate an order setting aside a service of summons.
    Submitted April 20, 1920.
    (Calendar No. 28,989.)
    Writ denied June 7, 1920.

      Walters & Hicks, for plaintiff.

      James O. Murfin and Martin J. Cavanaugh, for defendant.
   Sharpe, J.

The plaintiff brought suit by summons in the circuit court for the county of Wayne for the alienation of the affections of her husband against Ellen DeForest, a resident of that county, and Estelle Rust, a resident of Washtenaw county. The original summons was returned “not found” as to the defendant DeForest and “served” on the defendant Rust in Washtenaw county. This service was set aside on motion. An alias summons was then issued February 25, 1919, returnable May 23, 1919, which was served on Mrs. DeForest on- May 21st in Wayne county and return of service duly filed. On May 22d, service was made on Mrs. Rust at the city of Ann Arbor, in Washtenaw county, and return duly made and filed. On June 4th, defendant Estelle Rust, appearing specially, filed a motion to “set aside and - hold for naught the service of the summons made upon her.” A number of reasons were assigned therefor, among them being:

3. Ellen DeForest was joined as a defendant for the sole purpose of permitting service to be made on her (Estelle Rust) in Washtenaw county.

4. The service on her in Washtenaw county was an abuse of process and a fraud upon the court.

Affidavits of both defendants were filed in support of such motion. In that of Estelle Rust is set up a copy of the summons and the facts relating to service upon her (referring particularly to the other reasons assigned), and concludes by saying “that she is not guilty of any of the charges set forth in plaintiff’s declaration.” Ellen DeForest in her affidavit deposes:

“That she is upwards of seventy years of age, to wit, seventy-six years, and is in an Old Ladies’ home in the city of Detroit and that she has no means whatever, and that she has been informed of the charges preferred against her by the plaintiff in the above entitled cause, and that all of said charges alleged against her in the plaintiff’s declaration are untrue; that she knows nothing of said charges and is in no way responsible for any of the charges alleged in said declaration against this deponent, and that she believes she is made a defendant in this suit for the sole and only purpose of giving the circuit court of Wayne county jurisdiction over Estelle Rust, a resident of Washtenaw county.”

This motion came on to be heard before the defendant circuit judge on June 21st. An affidavit of the deputy sheriff of Washtenaw county as to the manner of service on Mrs. Rust was at that time filed. The defendant took the motion under advisement. An additional affidavit of Mrs. Rust was filed pending the decision. Counsel for plaintiff contend that this should not have been considered. On July 12th, the court entered an order “that said motion be and it hereby is granted.” On August 25th, plaintiff moved to set aside this order and filed several affidavits in support of such motion. This the circuit judge denied. Mandamus is now sought to compel such action on his part.

Strictly speaking, it does not involve the jurisdiction of the court, but rather an abuse of its process. Pleas of this nature were not treated as dilatory, but as meritorious appeals to the court to protect its process from abuse. They were not regarded with the same strictness, nor did they require that the averments be set forth with the same high degree of certainty. Campbell v. Hudson, 106 Mich. 523.

Section 4, chapter 14, of the judicature act (3 Comp. Laws 1915, § 12456), provides:

“Demurrers, pleas in abatement, and pleas to the jurisdiction, are abolished. All questions heretofore raised by such plea or demurrer, shall hereafter be raised by motion to dismiss, or in the answer or notice attached to the plea; and in case such questions 'are raised by answer, or by notice attached to the plea, the same may be brought up for determination by the court, in advance of the trial of said cause, upon four days’ notice by either party.” * * *

The motion was properly and timely made. It challenged the jurisdiction apparently secured over the person of Mrs. Rust by the service made on her as an abuse of the court’s process on the ground that Mrs. DeForest was not a necessary party to the suit and was served for the sole purpose of permitting service to be made on Mrs. Rust in Washtenaw county. It complied with the requirement of Circuit Court Rule No. 15 that such motions must set forth “briefly, but distinctly, the grounds up-on which the same are founded.” It was supported by affidavits as required by that rule. When brought on for hearing, counter affidavits might have been filed. Had such affidavits been filed, witnesses might have been called and examined in open court under the provisions of section 8 of chapter 18 of said act (3 Comp. Laws 1915, § 12580). No such affidavits were filed, nor were any witnesses examined. The court was thus called upon to determine whether the averments in the affidavits entitled the defendant Mrs. Rust to an order dismissing the proceedings as to her. We think the affidavits, first filed, uncontradicted as they were, justified the order made.

We infer from the memorandum brief filed by plaintiff on the hearing of the motion that her counsel claimed the question could not be decided on affidavits, but. that, having raised it, defendant’s rights were protected and she should have been required to plead over, allow the matter to proceed to trial, and the question would thus have been saved by her for review in this court. This practice was pursued in Matthews v. Mining Co., 183 Mich. 541, where the defendant pleaded in abatement that it. was a foreign corporation, not doing business within the State, and without any officer or agent within the State on whom process could be lawfully served.

In the brief filed by plaintiff in this court, counsel cite and rely upon Maxwell v. Speed, 60 Mich. 36, in which this court, in considering a somewhat similar motion, said:

“The plaintiff is entitled to have such an issue fairly presented and passed upon under such general or other plea as defendant shall legally resort to.”

In commenting on this decision, counsel say:

“We submit that under the judicature act, substituting motions for pleas, there has been no such change in the procedure as warrants a departure from the general rule laid down in that case.”

We are of the opinion that the trial court was required to determine the merits of the motion before any further proceedings were had. No counter affidavits having been filed, there was nothing concerning which an issue could be made. We feel constrained to hold that the order made setting aside the service ■on Estelle Rust in Washtenaw county was warranted. The writ is denied, with costs to defendant.

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


source: Caselaw Access Project

license: Public Domain

text:
    BOARD OF EDUCATION OF SAULT STE. MARIE v. CHAUSSEE.
    1. Principal and Surety — Building Contract — Alterations — Notice — Release oe Surety.
    In an action by a school board on a bond for the construction of a public school building, failure of plaintiff to comply with a provision requiring notice to the surety in case alterations should cost more than $8,000, notice being expressly waived in case the amount was less than $8,000, held, not to release the surety.
    2. Appeal and Error — Extension of Time.
    A finding by the trial judge that in the agreement extending the time for the completion of the contract nothing was said with reference to claims for damages for delay to the contractor, held, justified by the record.
    3. Damages — Liquidated Damages — Not to be Apportioned When Both Parties in Default.
    Where performance of a construction contract is prevented by the owner liquidated damages cannot be recovered, and where the delay is due to the fault of both parties the court will not attempt to apportion such damages.
    4. Same — When Owner Entitled to Liquidated Damages.
    Where the delay in the construction was not due to) the fault of either party, but to conditions arising during construction within the contemplation of the parties at the time the contract was entered into, and for which they made a reasonable extension of time, the owner was entitled to liquidated damages for delay thereafter due to the fault of the contractor.
    5. Same.
    The time for which liquidated damages was allowed, held, justified, although plaintiff had partial use of the building.
    6. Appeal and Error — Evidence—Sueeicienoy.
    A finding that the delay was not caused by the neglect of plaintiff to furnish a sewer, supported by evidence, will not be interfered with.
    7. Principal and Surety — Liquidated Damages — Estoppel.
    Where an arrangement whereby plaintiff took partial charge of the work was consented to by the surety, it cannot contend that it was thereby relieved from liability for liquidated damages.

      8. Damages — Supervision.
    An allowance for supervision, specifically provided for in the contract, was properly allowed.
    Error to Chippewa; Fead (Louis H.), J.
    Submitted April 21, 1920.
    (Docket No. 49.)
    Decided June 7, 1920.
    Assumpsit by the board of education of the city of Sault Ste. Marie against Louis E: Chaussee, principal, and the Chicago Bonding & Surety Company, surety, on a bond for the construction of a building. Judgment for plaintiff. Defendant company brings error.
    Affirmed.
    Flanders, Fawsett & Smart and M. M. Larmonth, for appellant.

      Warner & Sullivan, for appellee.
   Sharpe, J.

This case was tried by the circuit judge without a jury. We summarize the facts as found by him. The defendant Chaussee, on July 1, 1915, entered into a contract with plaintiff for the construetion of a high school building and boiler house. The defendant company is the surety upon his general construction bond. The contract price was $106,863. This price was modified by additions, changes and omissions so as to amount to $118,259.95. The total amount plaintiff was required to pay to secure the completion of the work was $119,599.33. In this suit, the plaintiff seeks to recover the overpayment of $1,-339.38.

The contract provided for completion of the work by June 10, 1916. On March 27, 1916, the date of completion was extended by written agreement to August 1, 1916. The work was not completed until after January 8, 1917, but on December 2, 1916, the plaintiff, under a written agreement with Chaussee, but without notice to the bonding company, took possession of the second and third floors of the building and occupied the same for school purposes. Each was to pay a part of the expense of heating. Plaintiff took full possession on January 8, 1917, although there was still some work to be done. The agreement provided that the contractor should pay as liquidated damages $25 per day for each day after June 10, 1916, until the completion of the work and delivery of the building to plaintiff.

The plaintiff expended $187.95 for the services of Architect Chubb in auditing the accounts of the contractor with subcontractors and others in order to determine the status of his account with plaintiff. This service was performed at the request of the bonding company. It also expended $754.91 for the services of one Koehl as supervisor of the work from August 1st to November 8, 1916, and from January 8th to March 19, 1917, under instructions and directions of the architect in charge. Both of these items were audited and certified by the architect.

There was a considerable delay, owing to the neeessity of changing the plans and specifications of the foundation, due to unexpected soil conditions. Such changes accounted largely for the increased cost.

The trial judge concluded, as matter of law, that the defendant company was liable to plaintiff in the following amounts:

For overpayments ........................... $1,339.38
For liquidated damages for delay............ 3,450.00
For Chubb's auditing ............. 187.95
For Koehl’s supervision ..................... 754.91

He allowed to defendant for damages caused by the delay in furnishing modified plans for the foundation $690, and awarded judgment to plaintiff for the difference. of $5,042.24 and interest thereon, in all $5,-541.45. The findings will be further alluded to in consideration of the questions presented. The defendant bonding company has appealed.

It appears from the findings that, owing to changes and modifications in the plans, the contract price was increased nearly $12,000. The last paragraph of the bond reads as follows:

“It is also understood and agreed, that the surety hereto expressly waives whatever right it may have to be notified of any * * * additions, * * * under the terms of this contract, and also waives whatever right it may have to be notified of or to consent to any extension of time, for the performance of said contract, * * * and acknowledges itself to be bound for all * * * additions * * * and extensions of time, as though proper notice thereof had been given to it provided no additions, omissions or changes shall be ordered which may cost to exceed the sum of eight thousand dollars ($8,000.00) over and above or below the net contract price of one hundred and six thousand eight hundred and sixty-three dollars ($106,868.00) as mentioned in said attached contract.”

The bonding company claims that the increase in the contract price of more than $8,000, without notice to it, was such a violation of this provision in the bond as discharged it from liability. The plaintiff contends that the effect of this condition was. simply to provide that, if such increase should exceed $8,000, notice must be given to the surety; notice, if the excess did not exceed $8,000, being expressly waived. No claim is made that the neglect to give such notice in itself relieved the surety.

The contract anticipated that changes and additions would probably be made. In the clause wherein the price is fixed, it is provided:

“The total amount of this contract, as above mentioned, is also subject to any and all further additions and omissions as before mentioned in this contract as may be so ordered by the owner or the architect during the progress of the work.”

The trial judge, while expressing the opinion “that the bond is fairly susceptible of either construction,” held that under the rule by which such instruments must be most strongly construed against the surety the construction given by plaintiff should apply.

The paragraph preceding the one in question ends with the usual concluding words in a bond: “Then this obligation to be void, otherwise to remain in full force.” After the bond was thus completéd in form, this paragraph was added. What was its purpose, and for whose benefit was it inserted? If the purpose was to release the surety in case the excess in the contract price should be more than $8,000, much simpler language would have sufficed and waiver of notice need not have been mentioned. But, if the plaintiff desired to obviate the necessity of giving notice of changes or additions which would exceed the contract price, its purpose is plain and easily understood. In it the surety waives the right to be notified of additions or extensions of time provided that such additions or changes shall not cost to exceed $8,000. Stripped of legal phraseology, it says that if the plaintiff shall make alterations in the plans to increase the cost by more than $8,000 it must notify the surety. Up to that amount, it waives all notice thereof.

Counsel for the surety company say:

“If plaintiff’s contention is correct, the clause permitting additions and alterations in the original contract would leave the whole matter open so that the architect and owner could call for additions without limit and impose any liability upon the surety that it chose. It cannot be reasonably assumed that a surety company would undertake such risks.”

Such reasoning but adds force to the suggestion already made that by a few apt words inserted in either the contract or bond the company could have limited its liability to the contract price unless it be given notice of and consent to changes which would cause any increase thereof. The absence of any such limitation in the contract or in the other parts of the bond but strengthens our conclusion that this paragraph was inserted for the benefit of the plaintiff and that defendant was not released by its violation. In view of the conclusion thus reached, we find it unnecessary to consider the authorities cited by counsel as to the rule of construction which should be followed.

It appears from the findings that soon after the work was begun it was discovered that, owing to the condition of the soil, wider footings would be required. This caused a delay of about two weeks. The 5th finding of fact, as amended, reads:

“5. On March 27, 1916, the claim of the contractor that he had been delayed in various ways were considered and a written extension of time to August 1, 1916, was given him to .complete the work. His request was for a month, whereas a month and twenty days were given him. In the discussion and consideration of the matter of an extension of time, nothing was said by the contractor, the plaintiff nor the architect with reference to claims for damages for delay to the contractor. No notice of the instrument extending the time was given to the defendant bonding company nor was its assent to the same ever secured.”

Counsel for the defendant company proposed the following in lieu of this finding:

“On March 27, 1916, the various claims of the contractor for delays were considered and an extension of time to August 1, 1916, given to him to complete the work. His request was for a month and a month and twenty days were given him. In consideration of this extension of time, Chaussee agreed to waive any and all claims which he might have against the plaintiff for delays in the work occasioned by the act of the plaintiff. No notice of this agreement or settlement was given to the defendant bonding company, or was their assent to the same ever secured.”

Its claim is thus stated by counsel:

“In the settlement of March 27, 1916, made without, the consent of the bonding company, Chaussee released all claims for damages on account of delay, and this-release operated to discharge the bonding company.”'

It is urged that the proofs show that the damages on account of the delay were compromised and settled between the plaintiff and Chaussee without the knowledge or consent of the surety, thereby releasing it.

The finding made by the trial'judge is supported by the testimony of both Chaussee and Architect Chubb. The letter of the architect to Chaussee of March 27, 1916, accepted by him, may be said to support the proposed amendment. After due consideration, we conclude that the record justifies the finding as made. See Hoffman v. Wilkie, etc., Co., 195 Mich. 487, and cases cited

Was the defendant company liable for liquidated damages for délay? The contract, as before stated, provides that—

“The contractor shall pay to the owner, as and for liquidated damages, the sum of twenty-five dollars ($25.00) for each and every day expiring after said June 10, 1916, and before the completion and delivery of said entire work as aforesaid.”

By agreement, the time for completion was extended to August 1, 1916. As to the cause of the delay the court found:

“Defendant Chaussee began work on the contract shortly after it was executed and finished excavating for the main building and put in some concrete forms, for the foundation about July 23d. The soil conditions were found to be too soft to support the building according to the original plans and the contractor was ordered to stop work. Further plans were prepared by the architect providing for wider footings.”

Counsel for the defendant claim that this delay was due to “the fault of the owner in furnishing plans for the new foundation,” and insist that “liquidated damages cannot be apportioned in a case where they are due in part to the fault of the owner.” There is nothing in the findings, nor in any proposed finding, to indicate that the delay was due to any fault or neglect on the part of the plaintiff. The contract apparently anticipated just such a condition as did arise and provided for completion “within the aforesaid time (June 10, 1916) unless the time shall be extended in writing by the owner or architect.” In the last paragraph of the bond, heretofore,quoted, the surety expressly “waives whatever right it may have to be notified of or to consent to any extension of time.”

We are in accord with the rule of law as stated by counsel that, when performance is prevented by the owner, liquidated damages cannot be recovered, and, where the delay is due to the fault of both parties, the court will not attempt to apportion such damages. Early v. Tussing, 182 Mich. 314; Maurer v. School District, 186 Mich. 223; Malcomson-Houghten Co. v. Building Co., 191 Mich. 678; 17 C. J. pp. 964, 965.

We conclude, however, that the delay in the foundation work was not due to the fault of either party, but to conditions arising during construction within the contemplation of the parties at the time the contract was entered into, and for which they made provision by agreement that an extension of time should be granted. Such extension was granted in writing. As said in 17 C. J., supra:

“Although delay in completion of a contract has been caused by plaintiff through a requirement of extra work, a provision for liquidated damages may be enforced where a reasonable time has elapsed for defendant to complete the increased work, and by its own default it has failed to do so.”

A reasonable extension of time was agreed upon. It is apparent that the delay beyond that time was due solely to the conduct and neglect of the contractor. As the contract provides that “said entire work shall be completed and delivered up to the owner in perfect condition and completion” and the written extension continued the liability for liquidated damages after August 1, 1916, and until “the final completion and delivery of said entire work,” we think the time for which such damages was allowed was fully justified, notwithstanding plaintiff had the partial use of the building after December 2d.

Complaint is made of the finding that the delay was not caused by the neglect of the plaintiff to furnish a sewer to take care of the water. There was evidence to support this finding, and we do not feel called upon to interfere with it.

.5. It is urged that an arrangement made about August 1, 1916, whereby the plaintiff took partial charge of the work, relieved the surety from liquidated damages. This arrangement was consented to by' the surety, if not suggested by it, and it cannot be permitted to claim an advantage on account of it.

The allowance for supervision was but that provided for by the express language of the contract. It had nothing whatever to do with the provision relating to liquidated damages. It was an actual expense incurred by the board, specifically provided for, and we find no error in its allowance.

After a careful consideration of the questions presented and discussed by counsel, we feel constrained to hold that the findings of fact made and the conclusions of law reached by the trial judge were justified by the record.

The judgment is affirmed.

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


author: Moore, C. J.

text:
    PEOPLE v. PIZZURA.
    1. Rape — Husband and Wife.
    A man cannot be guilty of an actual rape upon his wife.
    2. Mabbiage — Common-Law Mabbiage Valid.
    A common-law marriage in Michigan is valid and binding upon the parties.
    3. Same — :Mabeiage a Contract — Consent Essential.
    Under 3 Comp. Laws 1915, § 11363, marriage, so far as its validity in law is .concerned, is a civil contract, to which the consent of parties capable in law of contracting is essential.
    4. Same — Binding Upon Paety Capable of Consenting.
    While 3 Comp. Laws 1915, § 11362, fixes the age of consent of both parties, a marriage is binding upon one capable of contracting marriage, although the other party is under the age fixed in the statute.
    5. Rape — Statutory Rape — Husband and Wife — Common-Law Mabbiage a Defense.
    A common-law marriage between a man over the age of consent and a woman under the age, although voidable at her instance, where she has not repudiated the marriage, heW, valid, so that intercourse between the parties would not sustain a charge of statutory rape against the husband, under 3 Comp. Laws 1915, § 15211.
    Exceptions before judgment from recorder’s court of Detroit; Jeffries (Edward J.), J.
    Submitted April 16, 1920.
    (Docket No. 120.)
    Decided June 18, 1920.
    Francisco Pizzura was convicted of statutory rape. Reversed, and defendant discharged.
    On validity of marriage of persons of nonage, see notes in 22 L. R. A. (N. S.) 1202 and L. R. A. 1916C, 740.
    On effect of statute fixing age of consent in defining statutory rape as determining age of consent for marriage, see note in 21 L. R. A. (N. S.) 847.
    (71)

      Cosimo M. Minardo (J. Shurly Kennary, of counsel), for appellant.

      Matthew H. Bishop, Prosecuting Attorney, and Van H. Ring, Assistant Prosecuting Attorney, for the people.
   Moore, C. J.

From a conviction of the defendant of the offense of statutory rape the case is brought here upon exceptions before sentence. There is very little dispute as to the facts: The defendant and Anna Pizza became acquainted in the city of Detroit some time during the month of June, 1918. Within a short time thereafter she and the defendant, Francisco Pizzura, eloped and began to live together. Shortly thereafter the parents of the girl went to the home of the defendant and induced them to return to the house of the parents of the girl in the city of Detroit, where the young people continued to live together with the knowledge and consent of the parents, from that time until the defendant was inducted into the military service. On November 28, 1918, while the defendant was in the army at Camp Custer, he returned to Detroit on a furlough and went to the Pizza home, remaining there with Anna Pizza all night with the knowledge and consent of her parents, and had intercourse with her at that time. The charge laid in the information is that the intercourse complained of was committed on the 28th day of November, 1918. The testimony shows that Anna Pizza and the defendant represented themselves as husband and wife among their neighbors and acquaintances.

The statute under which the complaint is made is section 15211, 3 Comp. Laws 1915.

The trial judge charged the jury in part as follows:

“Inasmuch as the age of consent to marriage, and the age of the complainant being less or under the full age -of sixteen, I charge you, gentlemen of the jury, that this complaining witness in this case was unable to enter into the contract of marriage, either a common-law marriage or a ceremonial marriage under the proper authorities of the State.”

Section 15211, 3 Comp. Laws 1915, reads:

“If any person shall ravish and carnally know any female of the age of sixteen years, or more, by force and against her will, or shall unlawfully and carnally know and abuse any female under the full age of sixteen years, he shall be punished by imprisonment in the State prison for life, or for any such period as the court in its discretion shall direct, and such carnal knowledge shall be deemed complete upon proof of penetration only.”

The question naturally arises, Did the defendant “unlawfully and carnally know and abuse” Miss Pizza.

In 22 R. C. L. at page 1175, it is said:

“A man cannot himself be guilty of an actual rape upon his wife. One of the main reasons for this is the matrimonial consent which she gives when she assumes the marriage relation, and which the law will not permit her to retract in order to charge her husband with the offense.” Citing many cases which support the text.

Section 11363, 3 Comp. Laws 1915, reads:

“Marriage, so far as its validity in law is concerned, is a civil contract, to which the consent of parties capable in law of contracting, is essential.”

It has been repeatedly held in this State that a ceremonial marriage is not essential to its validity, and that a common-law marriage, when shown, binds the parties to it.

In Hutchins v. Kimmell, 31 Mich. 126 (18 Am. Rep. 164), Justice Cooley, speaking for the court, in discussing the subject of a common-law marriage, said in part:

“But had the supposed marriage taken place in this State, evidence that a ceremony was. performed ostensibly in celebration of it, with the apparent consent and co-operation of the parties, would have been evidence of a marriage, even though it had fallen short’ of showing that the statutory regulations had been complied with, or had affirmatively shown that they were not. Whatever the form of ceremony, or even if all ceremony was dispensed with, if the parties agreed presently to take each other for husband and wife, and from that time lived together professedly in that relation, proof of these facts would be sufficient to constitute proof of a maxriage binding upon the parties, and which would subject them and others to legal penalties for a disregard of its obligation. This has become the settled doctrine of the American courts; the few cases of dissent or apparent dissent being borne down by a great weight of authority in favor of the rule as we have stated it. Fenton v. Reed, 4 Johns. 52 (4 Am. Dec. 244); Jackson v. Winne, 7 Wend. 47 (22 Am. Dec. 563); Starr v. Peck, 1 Hill, 270; Rose v. Clark, 8 Paige, 574; In re Taylor, 9 Paige, 611; Clayton v. Wardell, 4 N. Y. 230; Cheney v. Arnold, 15 N. Y. 345 (69 Am. Dec. 609); O’Gara v. Eisenlohr, 38 N. Y. 296; Pearson v. Howey, 11 N. J. Law, 12; Hantz v. Sealy, 6 Bin. 405; Commonwealth v. Stump, 53 Pa. St. 132 (91 Am. Dec. 198); Newbury v. Brunswick, 2 Vt. 151 (19 Am. Dec. 703); State v. Rood, 12 Vt. 396; Northfield v. Vershire, 33 Vt. 110; Duncan v. Duncan, 10 Ohio St. 181; Carmichael v. State, 12 Ohio St. 553; State v. Patterson, 2 Ired. 346 (38 Am. Dec. 699); Londonderry v. Chester, 2 N. H. 268 (9 Am. Dec. 61); Keyes v. Keyes, 2 Fost. (N. H.) 553; Bashaw v. State, 1 Yerg. 177; Grisham v. State, 2 Yerg. 589; Cheseldine’s Lessee v. Brewer, 1 H. & McH. 152; State v. Murphy, 6 Ala. 765 (41 Am. Dec. 79); Potier v. Barclay, 15 Ala. 439; Dumaresly v. Fishly, 3 A. K. Marsh, 368; Graham v. Bennet, 2 Cal. 503; Case v. Case, 17 Cal. 598; Patton v. Philadelphia, 1 La. Ann. 98; Holmes v. Holmes, 6 La. 463; Hallett v. Collins, 10 How. 174.”

See Peet v. Peet, 52 Mich. 464; Supreme Tent K. O. T. M. v. McAllister, 132 Mich. 69; Reaves v. Reaves, 2 L. R. A. (N. S.) 353 (15 Okla. 240, 92 Pac. 490).

The defendant was sworn in his own behalf. He testified:

“My name is Frank Pizzura. I have lived in America nine years. Before I went to the army I worked at the Cadillac about a year and a half. I have never been arrested and convicted before. I am 28 years old. Anna Pizza, the complaining witness in this case, is my wife. I lived with her at my father-in-law and mother-in-law's residence. My father-in-law and mother-in-law 'went with me to the county building to get a license. The priest on Fort street has the license how. I lived with Ann until I was sent to the army. When I came back on Thanksgiving day I went to the home of my wife, her mother was home and told me to remain there. I lived with Anna Pizza as ■husband and wife and I am willing to marry her.”

Cross-examination, by Mr. Ring:

“On the 28th day of November I came to Detroit from Camp Custer and went to the home of Anna Pizza. I had intercourse with her that night.”

Anna Pizza and her father and mother were all witnesses and swore to a state of facts which would establish beyond peradventure a common-law marriage if both of the young people had been of the age of consent.

As one of the parties was under the age of consent, Was the marriage void as to both of them or only voidable as to the one who was under the age of consent? Section 11362, 3 Comp. Laws 1915, reads: ■

“Every male who shall have attained the age of eighteen years, and every female who shall have attained the full age of sixteen years, shall be capable in law of contracting marriage, if otherwise competent.”

Should this language be so interpreted as to hold that-a marriage ceremony does not have any effect upon the one who is capable of making the contract? Section 11367 3 Comp. Laws 1915, reads in part as follows:

“No insane person, idiot or person who has been afflicted with syphilis or gonorrhoea and has not been cured of the same, shall be capable of contracting marriage.”

The section is a long one and we shall not quote the rest of it, but it nowhere states that a male person under the age of 18 years and a female person under the age of 16 years shall be incapable of marriage.

In Meister v. Moore, 96 U. S. 78, it is said:

“Marriage is everywhere regarded as a civil contract. Statutes in many of the States, it is true, regulate the mode of entering into the contract, but they do not confer the right. Hence they are not within the principle that, where a statute creates a right and provides a remedy for its enforcement, the remedy is exclusive. No doubt, a statute may take away a common-law right; but there is always a presumption that the legislature has no such intention, unless it be plainly expressed. A statute may declare that no marriages shall be valid unless they are solemnized in a prescribed manner; but such an enactment is a very different thing from a law requiring all marriages to be entered into in the presence of a magistrate or a clergyman or that it be preceded by a license, or publication of banns, or be attested by witnesses. Such formal provisions may foe construed as merely directory, instead of being treated as destructive of a common-law right to form the marriage relation by words of present assent. And such, we think, has been the rule generally adopted in construing statutes regulating marriage. Whatever directions they may give respecting its formation or solemnization, courts have usually held a marriage good at common-law to be good notwithstanding the statutes, unless they contain express words of nullity.”

In Parton v. Hervey, 1 Gray, 119, the court construing the Massachusetts statute said in part:

“In the absence of any provision declaring marriages not celebrated in a prescribed manner, or between parties of certain ages, absolutely void, it is held that all marriages regularly made according to the common law are valid and binding although had in violation of the specific regulations imposed by statute.”

See Glenn v. Hollopeter, 21 L. R. A. (N. S.) 847 (52 Wash. 41, 100 Pac. 159), and Hunt v. Hunt, 22 L. R. A. (N. S.) 1202 (23 Okla. 490, 100 Pac. 541).

The question, however, is not a new one in this State. In People v. Slack, 15 Mich. 193, the court after referring to the then existing statutes which correspond with sections 11362 and 11393, 3 Comp. Laws 1915, used the following language:

“It is insisted by the defendant that, under the statute quoted, either party is at liberty to annul the marriage at any time before the one under the age of legal consent shall attain it, and that either is then at liberty to marry again. I do not think this is the law under our statute.
“At the^ common law, it was undoubtedly the rule that the right to annul the marriage continued with one party as long as it did with the other. Reeves Dom. Reí. p. 200. But as this subject is fully covered •by statutory provisions in this State, we have only to see whether those provisions have introduced any change in this particular. That they were intended, to do so, seems to me very clear.
“If we look no further than the statute above quoted, it is difficult, I think, to avoid the conclusion that the separation spoken of is something other than the abandonment by the party over age of the person who is within the age of consent, and who will usually be induced _ to enter into the marriage by the arts and solicitations of the other. There are so "many and so powerful reasons against a rule which leaves females who have reached the age of puberty, but are not yet sixteen, at the mercy of the wiles of designing men:, who after enticing them into a marriage with all the solemnities of the law, may then desert and abandon them with impunity, that we are not disposed lightly to conclude that it was designed to adopt it as a statutory rule. And I do not think apt words are employed for the purpose, if such was. the intent. Where a man competent to contract marriage enters into the relation with one who lacks the capacity to give binding assent, and after a brief cohabitation, against her will abandons her, the act is not properly a separation, but a desertion; and the latter is'the proper term to apply to it. And as such a desertion would commonly be a great wrong to the female, and shock the moral sense of the community, we should naturally look in the statute for penal provisions, rather than for those which would not only exempt the wrongdoer from any punishment, but allow him with like impunity to repeat the process elsewhere so often as he may find a confiding female who will yield to the proposals he makes, accompanied as they are with all the appearance and form of honesty and honor. For the marriage being only voidable, and not absolutely void, all the consequences of a legal marriage flow from it until it is avoided; it could not be punished as seduction, nor has any statute in any way attempted to make it criminal: I do not think this section can fairly be held to protect such a desertion; but on the contrary, that it refers only to the separations which are brought about by the mutual consent of both, or by the refusal of the party, under legal age to assent to further cohabitation.”

At this time it may be well to ask a few questions. Suppose without any decree of divorce and with Miss Pizza still desiring to hold the defendant as her husband, he should go through the form of a ceremonial marriage with a female person of the age of consent, could he not be convicted of the offense of bigamy? The case of People v. Slack, supra, answers the question in the affirmative. Suppose Miss Pizza, instead of being under the age of 15 years, had been only two days under the age of consent when she began her relations with defendant and they continued to regard each other as husband and wife, could the husband have been convicted of statutory rape for the act of intercourse which occurred two days before his wife was 16 years old; or could he in the last supposed case though she desired to continue as his wife repudiate the role of husband and say to her: “You are no wife of mine.” To answer these two supposed cases in the affirmative shocks one’s sense of justice and right. When the defendant began and continued his relations with Miss Pizza he was of consenting marriageable age and as to him the marriage was valid. Their relations were voidable only at the option of Miss Pizza. She has not desired to repudiate the marriage contract, but, on the contrary, she desires, so far as the record shows, to hold the defendant to it.

We think the court erred in his charge to the jury and that the conviction should be reversed. As there is no dispute as to the facts, we think the defendant should be discharged.

Steere, Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


author: Per Curiam.

text:
    BISHOP, ex rel. DURFEE, v. LINDSAY.
    Elections — Re-registeation — Statutes — Amendments — Absurdity — CONSTEUCTION OF STATUTES,
    Where an amendment to Act No. 126, Pub. Acts 1917, by Act No. 413, Pub. Acts 1919, provides that notice shall be given in August for a re-registration to be held in June, July, and August, a manifest absurdity, the amendatory act is held, without force and effect, and the original act in force.
    Certiorari to Wayne; Marschner (Adolph F.), J.
    Submitted June 10, 1920.
    (Calendar No. 29,288.)
    Decided June 18, 1920.

      Mandamus by Matthew H. Bishop, prosecuting attorney of Wayne county, on the relation of Edgar O. Durfee, to compel Richard Lindsay, city clerk of Detroit, to give the statutory notice of re-registration of electors. From an order denying the writ, plaintiff brings certiorari.
    Reversed, and writ issued.

      Matthew H. Bishop, in pro. per

      Vincent M. Brennan, for defendant.
   Per Curiam.

In the year 1917 the legislature by Act No. 126 provided generally for the registration of electors. Chapter 4 of said act provides for reregistration, and. is as follows:

“SECTION 1. In every year in which presidential electors are to be chosen, there shall be a re-registration of the qualified electors of each township and city of this State having a population of ten thousand or more, as shown by the last preceding Federal census.
“Sec. 2. If, in any township or city having a population of less than ten thousand, as shown by the last preceding-Federal census, the township board or legislative body may, in its discretion, declare, by resolution passed not later than the fifteenth day of August of any year in which presidential electors are to be chosen,^, by a majority vote of the members-elect of such township board or legislative body, that it is desirable to have a re-registration of the qualified electors of such township' or city, then in such case there shall be in said year a re-registration of the qualified electors of such township or city.
“Sec. 3. A re-registration of qualified electors, in accordance with the provisions of this chapter, shall be had in the months of September and October, and shall be completed on the third Saturday before the next general November election. All the provisions of this act relative to the registration of qualified electors shall apply with like force and effect to any such re-registration.
“Sec. 4. Whenever a re-registration is to be had in any township or city, the clerk thereof, shall provide, at the expense of the township or city, as the case may be, a new registration book for each election precinct in such township or city. Such registration book shall be opened for re-registration on the first secular day of September, and such re-registration shall be completed on the third Saturday before the next general November election. When such re-registration shall be completed, the former registration books in such township or city shall thenceforth be deemed invalid and shall not be used in any subsequent election; and no person shall vote at any election or official primary election in any such township or city, after such re-registration, whose name shall not have been registered anew under the provisions of this act relative to re-registration, or be afterwards, entered, in accordance with this act, on such new registration book for the election precinct in which he resides.
“Sec. 5. In every township or city in which a reregistration of the qualified electors is to be had, the township or city clerk, as the ease may be, shall give public notice that there will be a re-registration of the qualified electors of such township- or city in the months of September and October, that all qualified electors must re-register in order to be entitled to vote at subsequent elections, and that the third Saturday preceding the following general November election will be-the last .day on which applications for registration will be received. Such notice shall also name the place or places where, and the hours during which, applications for registration may be made. Such public notice^ shall be given, in the month of August of the year in which such re-registration is to be had, by posting written or printed notices in at least five of ■the most conspicuous places in each voting precinct, and by publishing such notice in some newspaper or newspapers published in such township or city, if any newspapér be published therein, if in the discretion of the township board or legislative body of said city publication shall be considered advisable and necessary in addition to the written or printed notices posted as aforesaid, at least once in each week for two successive weeks next preceding the first day of September of the year in which such re-registration is to be had.”

In 1919 the legislature passed Act No. 413, which in terms amends sections 2 and 3 of chapter 4 of Act No. 126 of the Public Acts of 1917. The amendatory sections follow:

“Section 2. In any township or city having a population of less than ten thousand, as shown by the last preceding Federal census, the township board or legislative body may, in its discretion, declare, by resolution passed not later than the fifteenth day of May of any year in which presidential electors are to be chosen, by a majority vote of the members-elect of such township board or legislative body, that it is desirable to have a re-registration of the qualified electors of such township or city, then in such case there shall be in said year a re-registration of the qualified electors of such township or city.
“Sec. 3. A re-registration of qualified electors, in accordance with the provisions of this chapter, shall be had in the months of June, July and August, and shall be completed on the third Saturday before the next general primary election. All the provisions of this act relative to the registration of qualified electors shall apply with like force and effect to any such reregistration.”

Confusión having arisen in carrying out an endeavor to effect a re-registration in this, a presidential year, under the act of 1917, as amended by the act of 1919, the prosecuting attorney of Wayne county, on the relation of Edgar O. Durfee, filed a petition in the circuit court for the county of Wayne praying for a writ of mandamus directed to Richard Lindsay, city clerk of the city of Detroit, defendant—

“commanding him to give public notice that there will be a re-registration by said boards of registration of the qualified electors of said city of Detroit on October 16, 1920, and on such other days in the months of September and October, 1920, prior to said October 16, 1920, as shall be designated by the common council of the city of Detroit, not exceeding five days in all, and further commanding said Richard Lindsay to have said registration books open for re-registration on the first secular day of September, 1920, and not prior thereto; and further restrain said Richard Lindsay from delivering said registration books- to said boards of registration for re-registration on said 12th, 13th and 14th days of August, 1920; and that he may have such other and further relief in the premises as shall be agreeable to equity and good conscience.”

The learned circuit judge before whom the case was argued, after setting forth the provisions of the .1917 act and the amendatory sections of the 1919 act, denied the writ of mandamus, saying in part:

“We hence have the absurd result, if we read the exact text of the 1917 act as amended by the 1919 act, that the legislature has provided for a re-registration in the months of June, July and August, requiring that the registration books for such re-registration should be opened on the first day of September, and that the notice for such re-registration should be given in the month of August of the same year and that such notice should apprise the electors that such reregistration would be held in the months of September and October.
“It is apparent that the provisions of the act as amended'cannot be literally carried out. The court, it would seem, is bound to choose between giving literal effect to obviously inconsistent and contradictory language on the one hand and to seek to apply, upon the other, the well known principle that an act of the legislature should be upheld if there is any rational way of so doing. The court is of the opinion in this instance that it should give workable effect to the obvious purpose of the legislature in enacting the 1919 act, even if such course results, in a straining of the literal text of the statutes. It may be objected that this is judicial legislation and that the remedy should be left to the legislature to work out. It is the opinion of the court that the provisions contained in sections 4 and 5 of chapter 4 of the 1917 act are purely directory, pertaining as they do to matters of detail. The 1919 act should be given effect and the provisions of section 4 relative to opening the registration books, giving the notice, etc., should be complied with in substance by taking these steps a corresponding period of time in advance of the August re-registration which the respondent in this case intends to hold. There is no reason why a full, public and adequate notice of re-registration in the months of June, July and August cannot be given. If it is given and the public are extended a free and unhindered opportunity to re-register during a period of months preceding the primary election, it would seem that the rights of qualified electors are sufficiently protected even though the contradictory language of the statutes., is overridden. The city clerk should proceed, as he intends, to do, to hold the re-registration in the summer months .and give the notice, open the books, etc., at times, corresponding as closely as possible to the times when such step would be taken if the re-registration were to be held in September and October. If this is done, no one’s substantive rights will be infringed and no one can object that the re-registration is invalid.”

We find ourselves unable to agree with the conclusions reached by the learned circuit judge. Taking the act as amended, we find this.anomalous situation: In section 5 it is provided that notice shall be given in the month of August for a re-registration which is to také place in September and October, and by the amendment of section 3 it is provided that said reregistration shall take place in the months of June, July and August. We have, therefore,, considering the whole act as amended, an act providing for a reregistration in June, July and August, notice of which is to be given in August. This, of course, is a manifest absurdity.

We are constrained to hold that the amendatory act (Act No. 413 of the Public Acts of 1919) is without force and effect, and that the re-registration this year must be had under the provisions of the 1917 act. We are not unmindful of the fact that much confusion would be avoided if the re-registration could be completed before the primary day in presidential years. No doubt the legislature, when it again convenes, will enact a proper amendment to that end.

The writ must issue as prayed.


author: Clark, J.

text:
    PUBLIC SCHOOLS OF THE CITY OF MUSKEGON v. VANDER LAAN.
    Schools and School Districts — Bonds—Validity or Proposal Involving Three Schools Submitted as Entirety.
    A proposition for bonding the school district of the city of Muskegon, organized, under Act No. 281, Local Acts 1899, was not open to the objection that It was invalid because it submitted to-the electors the question of authorizing the erection of three school buildings as an entirety when three separate independent propositions were involved, since under the general school law (2 Comp. Laws 1915, chap. 107) it was the duty of the board of education to provide such sites and school houses as might be necessary, and the proposal voted upon involved a comprehensive plan for the educational needs of the city which the board had the right to have passed upon by the electors in its entirety.
    Certiorari to Muskegon; Vanderwerp (John), J.
    Submitted June 29, 1920.
    (Calendar No. 29,301.)
    Decided July 15, 1920.
    Mandamus by the public schools of the city of Muskegon to compel John Vander Laan, president of the board of education of Muskegon, to sign certain bonds. From an order granting the writ, defendant brings certiorari.
    Affirmed.

      Bunker, Rogoski & Dunn, for appellant.

      Carpenter & Jackson, for appellee.
   Clark, J.

The board of education of the public schools of the city of Muskegon, a school district organized under Act No. 281, Local Acts 1899, asked the electors of the district to authorize the erection within the district of three new school buildings.

Section 19 of the local act provides:

, “That said board shall not have the authority to erect any school building, the expense of which shall exceed fifteen thousand dollars, until the question of the propriety of the erection of such building shall have first been submitted to the electors of said district and by them authorized at an annual or special district election.” * * *

The question of erecting the buildings was submitted to the electors of the district who favored it decidedly. The question was submitted in this form:

“Shall the board of education be authorized to erect the following school buildings:
“1. A new high school on block 422 of the city of Muskegon, according to the revised plat approved April 9, 1903, commonly known as Deer Park, at an expense of more than fifteen thousand dollars.
“2. A new grade school building on lots 1 to 8, inclusive, and lots 23 to 30 inclusive of block No. 2 of Horace L. Delano, trustee’s addition, according to the recorded plat thereof, and situate within the district commonly known as the Pairview district, at an expense of more than fifteen thousand dollars.
“3. A school building as an addition to Bunker school building on block 645 of the city of Muskegon, according to the revised plat, approved April 9, 1903, at an expense of more than fifteen thousand dollars.
“YES ( )
“NO ( )”

The board of education for the district entered into a contract for the erection of one of the school buildings which is now partially constructed, and to provide funds, determined to borrow money and issue bonds of the district therefor. A contract for the sale of the.bonds was made. The defendant, president of said board, refused to sign the bonds, giving as his reason that the bonds if issued would be void because the board of education submitted to the electors of the school district the question of authorizing the erection of three school buildings as an entirety, when three separate independent propositions were involved. No other irregularity is claimed. See Public Schools of Muskegon v. Smith, 173 Mich. 570, and Board of Education v. Smith, 183 Mich. 428.

Application was then made by the board of education to the circuit court of Muskegon county for a writ of mandamus to compel the defendant, president of the board, to sign the bonds. After answer and hearing it was ordered that the writ issue as prayed. Defendant has removed the proceedings to this court for -review on certiorari to mandamus. The only question here raised for consideration is: May the board submit to the electors of the district the question of authorizing the erection of the three school buildings as a single proposition?

The general school' law (2 Comp. Laws 1915, chap. 107) made it the duty of the board to provide school sites and by building or otherwise, to provide such school houses as may be necessary when lawfully directed by the qualified voters, and, by said local act it was the duty of the board to provide sites and erect and maintain school houses and buildings for the use of the public schools subject to the limitation of section 19 of the local act above quoted.

Section 16 of the local act in part provides:

“Said board shall also have all the powers and privileges conferred upon school boards and upon qualified voters of school districts at any annual or special district meeting by the general school laws of this State not inconsistent with this act.”

Our attention is called to no statute prescribing precisely the form and method, of submitting these questions to the electors. Separate subjects, separate purposes, or independent propositions should not be combined so that one may gather votes for the other. It has been held that the questions of bonding for water works and for a sewerage system should be submitted separately. Johnson v. Roddey, 83 S. C. 462 (65 S. E. 626). Likewise where eleven purposes were combined into one proposition. City of Denver v. Hayes, 28 Colo. 110 (63 Pac. 311). See City of Joplin v. Wilder, 217 Mo. 261 (116 S. W. 1087).

In the case at bar we think that the proposition submitted to the electors did not constitute three independent questions or embrace three separate purposes. It was characterized by one common purpose, to provide the district necessary school buildings. It was more than a mere proposal to construct three school houses. It involved a comprehensive plan on the part of the board for the educational needs, of the city and the board had the right to have the matter in the entirety passed upon by the electors.

A similar case cited by counsel is Howard v. School District, 17 Idaho, 537 (106 Pac. 692), where the purpose of the bonding was to purchase three tracts of land in different sections of the school district for school grounds and to erect and furnish three school buildings thereon. The question of bonding was submitted as one proposition and it was there contended that it should have been submitted as three separate and independent propositions, and the court held the submission and election valid and said:

“All of those things constitute one common purpose. * * * All of these objects, however, are but parts of a common purpose. Our view of this statute seems to be supported by the following authorities: Hubbard v. Woodsum, 87 Me. 88 (32 Atl. 802); Hamilton v. Village of Detroit, 83 Minn. 119 (85 N. W. 933); Rock v. Rinehart, 88 Iowa, 37 (55 N. W. 21); Gifford v. Transportation Co., 10 N. J. Eq. 177.”

Under a power to issue bonds for construction or purchase of needful buildings for the city, there was submitted to the electors this question:

“Shall the bonds of the city in the sum of $60,000 be issued for the purpose of paying the cost of constructing fire engine houses * * * such * * * to be in the locality and at the estimated and approximate cost as follows: North 50 feet of lot 13, Armstrong’s First Addition, estimated cost $30,000. For the purchase of site and the erection of a fire engine house thereon in the district lying north of Willis avenue, * * * estimated cost of $30,000. Held, to contain but one proposition — to procure engine houses.” Linn v. City of Omaha, 76 Neb. 552 (107 N. W. 983).
“St. 1901, p. 27, c 32, authorizing cities to acquire land for parks, and providing a proposition to incur debt therefor shall be submitted to the voters, does not contemplate that each piece of land desired for a park should be voted upon separately, where there is a single scheme of park improvement, including several parcels of land widely separated, to be converted into separate parks.” City of Oakland v. Thompson, 151 Cal. 572 (91 Pac. 387).

There was a like holding where the scheme to construct several wharves was submitted as an entirety at a municipal election. Clark v. City of Manhattan Beach, 175 Cal. 637 (166 Pac. 806). See, also, Chandler v. City of Seattle, 80 Wash. 154 (141 Pac. 331); Board of Education v. Straub, 182 Mich. 665.

The trial court reached the right conclusion. The judgment is affirmed without costs to either party.

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


author: Stone, J.

text:
    DAVIDOW v. WADSWORTH MANFG. CO.
    1. Statutes — Construction—Penalty Cannot be Implied.
    A penalty for the violation of a statute must be expressly created and imposed by the statute and cannot be raised or extended by implication.
    2. Damages — Liquidated Damages — Penalty—Distinction.
    A penalty, in contradistinction to liquidated damages, is a ' sum inserted in a contract, not as a measure of compensation for its breach, but rather as a punishment for default, or by way of security for actual damages' which may be sustained by reason of nonperformance, and involves the idea of punishment.
    8. Same — Damages in Excess oe Lawful Interest Usury.
    Where liquidated damages are claimed for the nonpayment of a sum of money, and such damages exceed the lawful rate of interest, they aré necessarily in violation of the law of usury, and will not be allowed.

      4. Statutes —■. Construction — Technical Construction to be Avoided.
    Statutes, as well as constitutions, being made for the government and guidance of the “plain, common people,” should not be subjected to such technical construction as to do away with their plain provisions.
    5. Constitutional Law — Statutes—Class Legislation — Master and Servant.
    Act No. 59, Pub, Acts 1913 (2 Comp. Laws 1915, §§ 5583-5586), regulating the time of payment of wages to employees of certain classified employers, and providing a penalty for violation thereof, held,- objectionable as class legislation in that the classification under the act is arbitrary and oppressive and without any valid reason for its basis, also in that it seeks, under the guise of liquidated damages, to impose a penalty for the benefit of the employee, not provided for in the act, which is confiscatory and unreasonable.
    Case-made from Wayne; Jayne (Ira W.), J.
    Sub mitted April 21, 1920.
    (Docket No. 15.)
    Decided July 20, 1920.
    Assumpsit in justice’s court by Lazarus D. Davidow against the Wadsworth Manufacturing Company for wages due for labor performed, and for the penalty provided under section 5385, 2 Comp. Laws 1915. There was judgment for plaintiff and defendant appealed to the circuit court. Judgment for plaintiff. Defendant appeals.
    Reversed, and judgment entered.

      Blwin & Martz, for appellant.

      Joseph B. Beckenstein, for appellee.
   Stone, J.

This case originated in justice’s court in the city of Detroit. Action was brought for wages due from defendant. The plea was the general issue. Defendant appealed from a judgment against it to the circuit court. The defendant, a Michigan corporation, is a manufacturing corporation, engaged in the business of manufacturing Ford sedan automobile bodies. Plaintiff had worked as a stenographer in the employ of the defendant from April 20, 1917, to August 11, 1917, at which time he was discharged. There was due to him at that time wages for four days, amounting to $12.32. No proper tender of this amount was ever made to the plaintiff by the defendant, and no check for the amount due was sent to him as contemplated by sections 5583-5586, 2 Comp. Laws 1915. There was a jury trial. At the close of plaintiff’s testimony the defendant moved the court to direct a verdict for the plaintiff for $12.32 and interest at 5 per cent, per annum from August 13, 1917, on the ground that the statute above referred to was unconstitutional and therefore that plaintiff was not entitled to 10 per cent, per day provided for in said statute; and that the measure of plaintiff’s damages was interest at 5 per cent, per annum. The motion was denied by the court, it holding that the statute was constitutional.

At the close of the case, the plaintiff moved the court to direct a verdict for the plaintiff for the sum of $500, comprising the amount due the plaintiff for wages at the time of his discharge, and 10 per cent, per day thereon, as provided by the said statute. As the wages due and the claimed 10 per cent, per day penalty thereon which had accrued under the statute, exceeded the limit of the jurisdiction of the Detroit justice’s court- of $500, plaintiff asked for a verdict in that sum. The court, holding that said statute was constitutional, and that plaintiff was entitled to the penalty therein provided, granted the motion and directed the jury to find for the plaintiff in the sum of $500, and verdict and judgment were entered for that sum.

The evidence showed that if the above statute is constitutional, plaintiff is entitled to a judgment of $500 damages; if unconstitutional, he is entitled to a judgment of $12.32 and interest at 5 per cent, per annum. The case has been brought here by defendant by case-made after judgment.

The third assignment of error is to the effect that the court erred in holding that said statute was constitutional, for the reason that said statute violates the 14th amendment to the Constitution of the United States because the same constitutes “class legislation,” and for the reason that the same violates section 18, article 2, of the Constitution of this State, which provides that no person shall be deprived of property without due process of law. The statute here involved is Act No. 59, Public Acts of 1913, entitled:

“An act regulating the time of payment of wages to employees of all manufacturing, mercantile, street railway, telegraph, telephone, railroad, express, mining, electric light, gas and water companies or corporations, doing business in this. State, and employees of every contractor, person or copartnership in this State engaged in any manufacturing business, in any of the building trades, in operating quarries, in and upon public works, in the construction or repair of railroads, street railways, roads, bridges or sewers; and providing a penalty for a violation thereof.”

The third section of the act follows:

“Sec. 3. Any employer mentioned in section one of this act, who, unless prevented by act of God, proceedings in bankruptcy or orders or process of any court of competent jurisdiction, or circumstances over which such employer has no control, shall fail to make payment of the wages due to any such employee, as provided in section one of this act, shall, as liquidated damages for such failure, pay to such employee for each day that the amount due him remains unpaid, ten per cent, of the amount due him in addition thereto, and said damages may be recovered in any court having jurisdiction of the suit to recover the amount due to such employee.”

It will be observed that by the title of the act the purpose of the legislation is to regulate the time of payment of wages to employees of manufacturing, mercantile, etc., companies or corporations. The title contains no hint even that failure to comply with the terms of the statute will render the employer liable to pay more than the amount of wages due the employee by way of liquidated damages. The subject of liquidated damages is not mentioned in the title. It is stated in the title that the act provides a penalty for a violation thereof. But there is a marked difference between a penalty and liquidated damages. Section 21 of article 5 of the Constitution of this State provides that: “No law shall embrace more than one object, which shall be expressed in its title.” Should the subject of liquidated damages have been named or expressed in the title? While it was not designed to require the body of the act to be a mere repetition of the title, yet it might well be urged that so vital a matter as the addition of 10 per cent, of the amount due for each day that the amount remains unpaid should have been indicated in the title. But as that subject has not been briefed or discussed by counsel, we pass it without decision.

But the, question whether the burden imposed by this statute, upon the defaulting employer is in any sense liquidated damages may well be considered. Were we dealing with a contract between private parties where similar language was used, we would not hesitate to hold that the sum here imposed was a penalty and not liquidated damages. Jacquith v. Hudson, 5 Mich. 123; Daily v. Litchfield, 10 Mich. 29; Davis v. Freeman, 10 Mich. 188; Calbeck v. Ford, 140 Mich. 48; Decker v. Pierce, 191 Mich. 64, 70; 8 R. C. L. title “Damages,” § 110 et seq., pp. 116-120.

In Jacquith v. Hudson, supra, this court, speaking through Justice Christiancy, said:

“The real question in this class of cases will be found to be, not what the parties intended, but whether the sum is, in fact, in the nature of a penalty; and this is to be determined by the magnitude of the sum, in connection with- the subject-matter, and not at all by the words or the understanding of the parties.”

If it appear, by reference to the subject-matter, that the parties have made the stipulation without reference to the principle of just compensation, and so excessive as to be out of all proportion to the actual damages, it should be held that they could not have intended it as stipulated damages, though they have so expressly declared. Here there is no penalty provided for in the act. A penalty must be expressly created and imposed by statute, and cannot be raised or extended by implication. 13 Am. & Eng. Enc. Law (2d Ed.), p. 55 and cases cited. A penalty, in contradistinction to liquidated damages, is a sum inserted in a contract, not as the measure of compensation for its breach, but rather as a punishment for default, or by way of security for actual damages which may be sustained by reason of nonperformance, and involves the idea of punishment. It has been held that where liquidated damages are claimed for the nonpayment of a sum of money, and such damages exceed the lawful rate of interest, they are necessarily in violation of the law of usury, and will not be allowed. See 13 Cyc. p. 101, note 56. Here by the terms of this anomalous statute there is no attempt to impose a penalty, but the term “liquidated damages for such failure,” is used.

It is urged by appellant that the statute here involved makes arbitrary classifications which are not based on any public necessity, and do not serve any public purpose for the common good; fails to include into classes persons of like kind, subject to common risks and having like peculiarities; imposes heavy burdens on one portion of a natural class, from which the other is immune; grants a privilege to a portion of a natural class which it denies to the other, and makes unreasonable sub-classification both in the class the act seeks to benefit and in the class upon which the burden is imposed. That it results in an arbitrary differentiation between different kinds of employees, and also employers engaged in like work. That those affected by this act, as the class on which is imposed a burden, are manufacturing and mercantile organizations, and a few specially named industries, enterprises and utilities, and the class granted a special privilege comprises the employees of those industries. It is urged that for the purpose of construing the act . the ordinary definitions of such words as “manufacture” and “mercantile” must control as to «the legislative intent; that those included in a class by the act on whom to impose its burdens are as follows: Manufacturing, mercantile, street railway/ telegraph, telephone, railroad, express, mining, electric light, gas and water companies or corporations, and, in addition, those engaged in building trades, operating quarries, public works, construction or repair of railroads, street railways, roads, bridges and sewers. That in the light of the above definitions a great list of business enterprises and operations to which the act does not apply, may be named the following: Banks, trust companies, surety companies, insurance companies, the professions, steamship companies, engineering organizations, taxicab companies,' printers, hotels, barbers, laundries, storage companies, publishers, garages, theatres, newspapers, elevators and trucking companies. The question is asked, On what reasonable basis of public necessity or of risks, hardships or peculiarities inherent in the business, can those enumerated in the act be differentiated for the purpose of the act, as a class of unlike kind from those not enumerated, and which have been named? Wherein, it is asked, is a railroad or a gas company so unlike a steamship company or a bank, that a public need exists which makes reasonable and justifiable a law which provides that on failure after discharge to pay on demand the wages of a janitor who sweeps the floor of a railroad station, or a gas company’s office, the measure of liquidated damages of 10 per cent, per day, or 3,650 per cent, per annum, and allows a janitor who sweeps the floor of a steamship waiting-room or of a bank to collect in a like case only 5 per centum? The following Michigan cases are cited by appellant: Haynes v. Lapeer Circuit Judge, 201 Mich. 138, 141 (L. R. A. 1918D, 233); O’Connell v. Lumber Co., 113 Mich. 124; Wilder v. Railway Co., 70 Mich. 382; Schut v. Railway Co., 70 Mich. 433; Grand, Rapids Chair Co. v. Runnels, 77 Mich. 104, and many cases from other jurisdictions.

In Black v. State, 113 Wis. 205 (89 N. W. 522), Winslow, J., speaking for the court upon the subject of classification, at page 527, said:

“Passing then to the question of classification, we reach really the crucial point of the case. We have endeavored to give this subject the most careful thought and investigation, but we have been unable to convince ourselves that the attempted classification in this law answers the requirements of legal and constitutional classification. It is a trite expression that classification, in order to be legal, must be rational; it must be founded upon real differences of situation or condition, which bear a just and proper relation to the attempted classification, and reasonably justify a difference of rule. * * * If persons under the same circumstances and conditions, are treated differently, there is arbitrary discrimination, and not classification.”

In Johnson v. Railroad Co., 43 Minn. 222 (45 N. W. 156, 8 L. R. A. 419), Mitchell, J., used the following language:

“It has been sometimes loosely stated that special legislation is not class ‘if all persons brought under its influence are treated alike under the same conditions/ But this is only half the truth. Not only must it treat alike, under the same conditions, all who are brought ‘within its influence,’ but in its classification it must bring within its influence all who are under the same conditions. Therefore, if a distinction is to be made between railway corporations and other employers as respects their liability to their employees, it must be based upon some difference in the nature of the employment, and can only extend to cases where such difference exists.”

We have examined, but shall not discuss at length, the authorities in other jurisdictions, as we think our own decisions control the question.

On behalf of the plaintiff it is urged that the construction given to the words “manufacturing” and “mercantile” by defendant’s counsel is too narrow, and that those words were intended by the legislature to cover all corporations engaged in a commercial capacity, eliminating only those engaged in religious, educational, charitable, fraternal, and other pursuits in which the prime purpose is not the procuring of pecuniary profit. But we should bear in mind that statutes, as well as constitutions, are made for the government and guidance of the “plain, common people,” and they should not be subjected to such technical construction as to do away with their plain provisions.

The statutes of the different States are discussed by counsel for the plaintiff, together with the decisions of the courts of the different States in construing such statutes. At the argument of this case we gathered from the position taken by plaintiff's counsel that statutes similar to ours existed in many other States, which were named by them. We have examined the statutes, and find no instance where our statute, in substance even, exists in other States. We here refer to the statutes of the following States to which our attention has been called by counsel for the plaintiff, and we reiterate that our statute is an anomalous one. It will be observed that most of the statutes referred to contain penalties and forfeitures for violations of the statutes involved, as note the following:

Kentucky. Wage-earners — Penalty for not paying in money. Provides that any corporation, or person or persons having the ownership or control of any factory, mine or workshop in this commonwealth who shall violate the provisions of section 244 of the constitution reading'as follows: “All wage .earners in this State employed in factories, mines, workshops, or by corporations shall be paid for their labor in lawful money,” shall be guilty of a misdemeanor, and on trial and conviction had in any court of competent jurisdiction shall be fined not exceeding $500 for each violation thereof. .

Arkansas. An act to provide for the protection of servants and employees of railroads. The act provides that whenever any railroad company, or any person or corporation engaged in the business of operating or constructing any railroad or railroad bridge shall discharge, with or without cause, or refuse to further employ any servant thereof, the unpaid wages of any such servant or employee earned at the contract rate without any abatement or reduction shall be and become due and payable on the day of such discharge or refusal to longer employ. And if the same be not paid on. such day, then, as a penalty for such nonpayment, the wages of such servant or employee shall continue at the same rate until paid, provided such wages shall not continue more than sixty days unless an action therefor shall be commenced within that time.

Maryland. The law of Maryland provides that every association or corporation doing business in that State employing wage workers, whether skilled or ordinary laborers, engaged in manual or clerical work in the business of mining, manufacturing, operating a steam or electric railroad, street railway, telegraph, telephone or express company, shall make payment in lawful money of the United States, semi-monthly to. said employees, laborers and wage workers at their respective places of employment at intervals of not more than 16 days. If in any case any such association or corporation shall refuse to make payment at the time above set forth to their wage workers, laborers or other employees the wages due them, or any of them, said association, corporation or officer so refusing shall be guilty of a misdemeanor and be liable to indictment therefor, and upon conviction shall be fined a sum not exceeding $200 for each offense.

New York. The New York statute makes provision for the cash payment of wages, and prohibits the payment of employees in scrip, commonly known as “store money orders.” Provides that any person, firm or corporation violating its provisions shall be guilty of a misdemeanor; and provides that it shall forfeit to the people of the State the sum of $50 for each such failure, to be recovered by the commissioner of labor in his name of office in a civil action.

Vermont. Corporations, manufacturing and mercantile, shall pay each week in lawful money such employee engaged in the business to a day not more than six days prior to the date of such payment. Provided, that if at any time of payment an employee is absent from his regular place of labor he shall be entitled to such payment upon demand. Payment, in scrip, etc., is prohibited. No such corporation shall pay its employes in scrip, vouchers, due bills or store orders except it be a co-operative corporation in which such employee is a stockholder. Penalty. Such corporation that fails to pay wages of an employee, as provided by the second and third sections of the statute, shall forfeit to the State $50 for each such failure, to be recovered in an action on the statute by the State attorney of the county in which such violation occurs, and in his name of office; but an action shall not be maintained therefor until the State’s attorney has given the employer 10 days’ notice in writing that such action will be brought for the wages not paid, as provided in such sections.

Washington. An act to provide for the payment of wages and labor in lawful money of the United States, and to punish violations of the same. When any laborer performing work shall cease, whether by discharge or by voluntary withdrawal, the wages due ishall be paid forthwith, either by cash or by order redeemable in cash at its face value on presentment at bank. It otherwise provides that any firm, person or corporation, on failure to comply, shall be guilty of a misdemeanor, and on conviction thereof shall be fined in any sum not exceeding $300. And provides, in case the employee is obliged to sue for a recovery, for an attorney fee of not less than $10 nor more than. $25 to be taxed.

We shall not here discuss the numerous decisions cited by counsel for the plaintiff, for the reason that they refer to statutes so different from ours that their applicability may well be doubted. We have examined the cases, and it may be said that there is an irreconcilable conflict in the decisions in different jurisdictions as to the validity of legislation fixing the time for payment of wages of those who work for corporations. In some jurisdictions such a statute is held to be valid as being a proper exercise of the reserved power of the State to amend corporate charters, or of the police power of the State, and is regarded as not depriving the corporations affected thereby of either property or liberty of contract without due process of law, and as not denying to them the equal protection of the laws. In other jurisdictions, however, statutes regulating the time of payment of wages are held to be invalid. We call attention to the case of Cleveland, etc., R. Co. v. Schuler (decided in 1914), 182 Ind. 57 (105 N. E. 567, L. R. A. 1915A, 884), the headnote of which reads as follows:

“While railroads may be placed in a class by themselves for some legislative purposes, such classification, to be valid, must be for purposes that have to do with duties peculiar to them as.carriers, or with dangers peculiar to their operation.”

It was there held that a statute requiring railroad companies to pay any employee in full within 72 hours after he had been discharged, or had voluntarily quit the service, and providing certain penalties, was unjustly discriminatory and in violation of the State constitution, since the classification made was arbitrary and without any valid reason for its basis. The court there said:

“It is true, as appellant concedes, that railroads may| be placed in a class by themselves for some legislative purposes, but only for such purposes as have to do with duties peculiar to them as carriers or with dangers peculiar to their operation. The rule is thus stated in Bedford Quarries Co. v. Bough (1907), 168 Ind. 671, 674 (80 N. E. 529, 14 L. R. A. [N. S.] 418):
“ ‘The legislature may make a classification for legislative purposes, but it must have some reasonable basis upon which to stand. It is evident that differences which would serve for a classification for some purposes would furnish no reason for a classification for legislative purposes. Such legislation must not only .operate equally upon all within the class, but the classification must furnish a reason for, and justify the making of the class; that is, the reason for the classification must inhere in the subject-matter, and rest upon some reason which is natural and substantial, and not artificial. Not only must the classification treat all brought under its influence alike, under the same conditions, but it must embrace all within the class to which it is naturally related. Neither mere isolation nor arbitrary selections is a proper classification.’ ”

We call special attention to the further reasoning of the court in this case.

• We are of the opinion that the statute under consideration constitutes class legislation of the most objectionable kind. The classification is arbitrary and oppressive and without any valid reason for its basis. It seeks, under the guise of liquidated damages, to impose a penalty for the benefit of the employee, not provided for in the act, ,which is confiscatory and unreasonable.

The judgment of the court below will be reversed; and, as the case is here upon case-made, judgment may be entered in this court for the plaintiff for the sum of $12.32 with interest thereon from August 13, 1917, with costs to appellant.

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