author: Hooker, J. McGrath, O. J.

text:
    WILKINSON v. BOARD OF POLICE COMMISSIONERS OF CITY OF SAGINAW.

    Public Officers — Dismissal of Policeman — Reinstatement— Mandamus.
    A board of police commissioners, authorized by charter to remove policemen summarily or on conviction of misconduct, cannot, upon acquitting an officer of specific charges preferred against him, adjudge him guilty of another offense not specified, and order his dismissal; and in such case mandamus will lie to compel the officer’s reinstatement.
    Hooker and Grant, JJ., dissent, being of opinion that action so taken is sustainable under the power of summary removal, and that, in any event, since the writ would be ineffectual, it ought not to issue.

      Oertiorm'i to Saginaw; McKnight, J..
    Submitted October 22, 1895.
    Decided December 17, 1895.
    John C. Wilkinson applied to the circuit court for mandamus to compel the board of police commissioners of the city of Saginaw to reinstate him as a member of the police force of said city. From an order denying the writ, relator brings certiorari.

    Reversed, and writ issued.

      Swarthout é O’Keefe, for relator.

      William G. Gage, City Attorney, for respondent.

       Rehearing denied March 3, 1896.

   Hooker, J.

Relator was a member of the police force at Saginaw, having been appointed to the position of patrolman on June 21, 1893, by the board of police commissioners. The appointment fixed no term, and we are not informed that it was for a definite period. Charges were preferred against him, and a hearing was had before the board, who made an order dismissing him from the service. The circuit court refused a writ of man- damns to compel the board to reinstate him, and he has brought the proceedings here by certiorari.

The charges were, in substance, that on the night of November 1,1894, he, with other officers, was intoxicated, and acted in a disgraceful manner in a certain house on South Tilden street, and that he threatened to arrest the inmates if they informed his superiors. Testimony was taken, including the statement of the officer, and the record of the board states that “the board discarded the evidence of the witnesses for the prosecution, but, on the evidence of the accused himself, the board found respondent guilty of conduct unbecoming an officer, and of the violation of rule 76, and on motion he was dismissed from the force” by a unanimous vote, taken by “ayes and nays.” Subsequently demand was made that the board reinstate respondent.

The grounds for relief set forth in relator’s petition to the circuit court are:

1. That, being charged with a specific act, of which the board found him not guilty, he could not be dismissed under the general finding that he was guilty of conduct unbecoming an officer, without finding him guilty of other specific charges, after an opportunity to be heard.

2. That the board had no authority to dismiss him for violating rule 76, without having first served upon him a written copy of the charges to be tried.

3. That the board had no authority to dismiss him from said force without at least having the charges against him reduced to writing and read to him.

4. That the board had no authority to dismiss him, as aforesaid, without giving him an opportunity to be heard in his own defense.

Sections 1, 3, and 4 of title 11 of the charter (Local Acts 1889, No. 455) are as follows:

“Section 1. Said board, or a majority of them, shall have full power to try and determine all complaints against the marshal or any policeman or watchman of the city, and to remove them, or any of them, summarily, or on conviction for insubordination, neglect of duty, or violation of any of the ordinances or rules and regulations, or violation of any law of the city or State, made, or hereafter to be made, for the government of the police department of the city of Saginaw. * * *
“Sec. 3. The said board of police commissioners shall have power to appoint a marshal and a captain of police and other officers, and such number of policemen with pay, and such number of watchmen without pay, as said board shall deem expedient. * * *
“Sec. 4. Said board shall assume and exercise the entire control of the police force of said city, and shall possess full power and authority over the police organization, government, appointment, and discipline within said city.”

Apparently the board has adopted rules for its own government and that of its subordinates. We are not furnished with a copy of these rules, but from the briefs we conclude that those involved in this proceeding 'are as follows: “Rule 104 of the board of police commissioners of the city of Saginaw provides that, when complaint shall have been made of any member of the force, the chief of police ‘shall cause the charges to be reduced to ' writing, and transmit a copy thereof to the board of commissioners without delay, thus securing a speedy trial of the accused,’ and the accused shall be cited to appear before the board at its next regular meeting or special meeting.” Relator’s brief states that rule 105 provides the “mode of procedure,” and rule 106 the “manner of trial.” Rule 108 provides for a newr trial when applied for within 20 days after the decision of the board. Rule 76 is as follows: “All members of the police force will be deemed to be always on duty, subject to such relief therefrom as shall be allowed by proper authority; and the same responsibility as to suppression of disturbances and the arrest of the offenders rests upon them when not in uniform as when on post duty.”

Ordinarily, when appointing power is confided to an officer or board, the power of removal at will accompanies the power of appointment, when no fixed term is provided by law, unless excluded by express words or necessary implication. See Throop, Pub. Off. § 354, and cases cited; Fuller v. Attorney General, 98 Mich. 101; Attorney General v. Jochim, 99 Mich. 367. The power of appointment is lodged in the board (section 3), and the act is silent as to the term for which the appointment shall be made. Section 4 seems to confide to the board explicitly full power over the police organization, government, appointment, and discipline within the city. This section cannot be said to limit the power of removal, if it does not emphasize it. If there is any provision that indicates a limitation of the power of removal, it is section 1, which gives the power to the board to try and determine complaints against the subordinate officers, and to remove summarily or on conviction. The least that can be said about this provision is that it indicates an intention to permit removals, upon complaints, without the formality of notice and a trial.

We think that it was not designed to cut off the general power of removal at pleasure, for that would leave the tenure of office co-extensive with life and good behavior, unless terminated by abolition of the office, which would hardly be consistent with the economical and efficient management of the police department. It is significant that the word “or” was introduced into the law governing the city of Saginaw by Act No. 455, Local Acts 1889. Previously the charter read, “summarily on conviction.” We are therefore of the opinion that by the change it was intended to set at rest any question that might arise as to the want of power to remove without a trial, after complaint made, and to make it plain that the power to remove at pleasure was not cut off by this section, and that it not only existed, but extended to cases where complaint had been made against an offending policeman, as well as to cases where the good management of the department required it, although no misbehavior was involved. There would seem to be no good reason why an offender should not be summarily removed, as well as an obedient officer, if the good of the department demanded it. To say that complaint bars a summary removal is to put a premium upon complaints, made collusively or otherwise.

There are cases which seem to imply that an officer charged with misconduct has a right to be convicted or vindicated by a decision; and while we think that an officer cannot be removed except upon a conviction of misconduct, where the law forbids removal at pleasure, we see no reason for holding that the board must do more upon a complaint than to determine the necessity of removal, or, at all events, that they shall do more than to acquit the alleged offender before exercising the power of removal, in cases where the board has a general power of removal at will. We find from the record that the only specific charges made were not established. This is the only inference that we can draw from the decision. It is the only inference that the relator cares to have us draw, for the only alternative would be to conclude that he was found guilty, in which case it would also be necessary to conclude that the removal was lawful. If acquitted, the power of the board to remove summarily is not affected, and it might be exercised the next year, month, or day. Why not the same day, and, if the same day, why not immediately? The only possible opportunity for criticism of their act is that they stated that they found him guilty of conduct unbecoming an officer, and of a violation of rule 76. ' These rules appear to be made by the board for the government of the force and department. They are within the power of a majority of the board, and we are not informed that they possess any extraordinary force, or have any special significance in this case. The finding, under the circumstances, amounted to no more than a reason given by the board for their action. They need not have given it; but they did, and why was it not proper that they should? No intimation is given of the nature of the officer’s unbecoming conduct, and it does not appear what particular infraction of rule 76 was in the minds of the members of the board. Apparently they found that he disregarded his official duty at some place or at some time.

The case, then, comes down to the proposition that a board which has power to remove summarily at will must not announce the reason upon which it bases its action. If it does, it invalidates its order, unless based upon a formal complaint, notice, and conviction. We think this is not the law. The alleged right to vindication cuts no such figure. As well might it be said that one charged with felony might insist upon a trial and acquittal, when the prosecuting attorney offers to nolle pros, the case before trial. It may be said that such right would exist after the trial had begun, but this is not strictly tpue, for the question is ordinarily raised in a new proceeding, on a plea of former acquittal; and it is doubtful if mandamus would be issued to compel a formal acquittal, when the discharge on nolle pros, would necessarily be held equivalent thereto. The public was only interested in the question of the relator’s removal, and cannot be compelled to reinstate him to vindicate his reputation. He must seek some other remedy. It is only where he has a clear legal right to be reinstated that it should be required, and, as already shown, he has not that. If he had, it is doubtful if the writ should issue, as he might be removed immediately at the pleasure of the board. Mandamus will not be issued unless it will be efficacious. See Merrill, Mand. § 149.

The order of the circuit judge should be affirmed.

Grant, J., concurred with Hooker, J.

McGrath, O. J.

Unquestionably the charter of the city of Saginaw empowers the board to appoint and summarily dismiss a policeman, but it does not authorize the board to prefer charges against a policeman for one offense, specifying it, and find him guilty of another, not specified. The general charge made was that he was guilty of conduct unbecoming an officer, and in what respect was particularly specified. Had no specification been made, he would have been entitled to have the same appended before proceeding to trial. It was appended. He was thereby notified of what the alleged misconduct consisted. The board found that he was not guilty of the misconduct charged, but that he was guilty under the general charge, — of what, may well be asked. Wellman v. Board of Police, 84 Mich. 558, seems to me to rule the present case. We are not dealing with a summary removal, without charges and without conviction, but we are dealing with a conviction after charges made, and a dismissal based upon that conviction. The question here is not whether petitioner shall or shall not remain on the force, but whether an improper conviction, and a removal based thereupon, shall stand against the relator.

The writ must issue.

Long and Montgomery, JJ., concurred with McGrath, 0. J.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    BROWN v. MYNARD.
    1. Chattel Mortgage — Irregular Foreclosure — Conversion by Mortgagee — Rights oe Attaching Creditor.
    The right of a mortgagor of chattels to treat an irregular sale on foreclosure as a conversion by the mortgagee, and a payment of the debt to the extent of the value of the goods, is not available to a creditor of the mortgagor under an attachment on other property, for the purpose of defeating or reducing the claim of the mortgagee as against the attached property, in the absence of an assignment of such right from the mortgagor.
    2. Same.
    An invalid attempt to foreclose a chattel mortgage does not constitute a conversion, where the property is bid in by the mortgagee and remains in his possession.
    3. Bill oe Sale — Description oe Property — Sufficiency.
    A bill of sale of a particular number of broom handles of a specific grade, readily distinguishable from other grades included within the general mass, is not void for uncertainty.

      Be Graff v. Byles, 63 Mich. 31, followed.
    Error to Emmet; Adams, J.
    Submitted November 19, 1895.
    Decided December 17, 1895.
    Trover by Frank E. Brown and another against Jefferson P. Mynard. From a judgment for defendant, plaintiffs bring error.
    Reversed.

      Wolcott & Ward, for appellants.

      Pmlthorp & McCabe and P>. T. Halstead, for appellee.
   Hooker, J.

Burdick & Obringer, copartners, being indebted to the plaintiffs for machinery, gave them at different times two chattel mortgages, covering separate and distinct property, and covering distinct and different debts. On February 10, 1894, to further secure these debts, Burdick gave a bill of sale on 50,000 broom handles, situate at his mill, he having in the meantime succeeded to the partnership property and assumed its indebtedness. On April 28th, he executed another bill of sale to secure the same indebtedness, upon 75,000 more handles. These bills of sale were duly and promptly' filed. June 16th the defendant, a sheriff, levied upon and took possession of the handles by attachment in an action brought by a Mr. Clark against Burdick & Obringer, and, after inventory made, refused to surrender the possession to the plaintiffs, who, on June 30th, having posted notices of sale, sold what property they could find under the chattel mortgages, which was bid in by their agent for $600; some of the property not being in view, and all being sold in one parcel. On July 13th this action was brought for the conversion of the handles, and subsequently judgment was taken in the attachment case, and the handles were levied upon and sold by virtue of an execution issued to the plaintiff in that case.

The important question in the case is, was plaintiffs’ debt, and, therefore, their interest in the handles, extinguished by reason of alleged irregularities in the mortgage sale? The circuit judge charged the jury that the sale was invalid (1) because distinct and different articles, covered respectively by different mortgages, were offered together, and sold in a lump; (2) because the property was not all present, in view, at the sale. He instructed the jury, further, that the effect was that the plaintiffs converted the property to their own use by this invalid sale, and were, therefore, chargeable with the amount of its value in reduction of their debt. He left to the jury the question of value and extinguishment of plaintiffs’ claim. He directed them that, the sale being to the plaintiffs, the bid was no evidence of value; and that, if they were unable to determine whether anything was due to the plaintiffs or not, their verdict should be for the defendant. A verdict of no cause of action was returned.

The most that can he contended upon the part of the defendant is that he has the same rights that the judgment debtor, Burdick, would have, for his levy could give him nothing greater. Tootle v. Taylor, 64 Iowa, 629. Had the defendant’s principal seen fit to levy upon all of this property subject to the mortgages, he would have stood in the mortgagor’s shoes, with all of the rights that hé would have otherwise had to insist on strict compliance with the law and the terms of the mortgages. Until he did levy on the mortgaged property, there was no impediment to Bur-dick’s dealing with it as he chose. He might lawfully sell it to the plaintiffs in discharge or part payment of his debt, and he might consent to their sale and purchase by proceedings in the nature of a foreclosure, though not in strict conformity to the power of sale. He might waive any real or supposed obligation to sell in parcels or to have the property on the spot, and might consent to the property covered by the two mortgages being sold together. He was present at the sale, and might reasonably be said to be estopped from questioning it. And in such case an estoppel would be as effective to prevent the defendant from raising the question of irregularity as an express sale to plaintiffs by Burdick of the property would be. His levy upon the handles did not give him the legal right to question the conduct of plaintiffs and Burdick in their dealings with other property. His claim here is, in substance, that the debt was paid by the other property. The complete answer is that Burdick and the plaintiffs may have agreed otherwise, and that is a question of fact. If they did not choose to treat that transaction as a full payment, he cannot; and it is evident that they did not. It can only be upon the theory that Burdick did not consent, and that the defendant has succeeded to his right to treat the sale as a conversion, and the conversion as a payment to the extent of the Aralue of the goods, that defendant can maintain his claim. Nothing of the kind appears. Burdick is not shown to have assigned any right of this kind. His interest in the property sold has not been levied upon, and, for aught that appears, he may yet ratify the sale, if he did not consent to it expressly, or through his presence.

There is another reason why this sale, if irregular, cannot be treated as a payment. The property was in the hands of the plaintiffs, or, rather, Burdick, with whom it was left pending this litigation. It has never been converted by the plaintiffs. If their sale was invalid, it is still in their possession. Under such circumstances, the most that justice demands is that the mortgagor, or the defendant, if he can show any right to subrogation, offer to pay the debt and take the property. In Powell v. Gagnon, 52 Minn. 232, the supreme court of Minnesota, speaking through Mr. Justice Gilfillan, held that “a void attempt to foreclose a chattel mortgage, in which the mortgagee bids in and retains the property, is not a conversion.” And see the following cases cited in the opinion: Fletcher v. Neudeck, 30 Minn. 125; Cushing v. Seymour, Sabin & Co., 30 Minn. 301. If the attempted sale was no sale, the property is still lawfully in the possession of the plaintiffs, subject to the mortgagor’s right to redeem.

We think that the bill of sale was not invalid by reason of uncertainty. It falls within the rule laid down in De Graff v. Byles, 63 Mich. 31. These handles were readily distinguishable from the other grades, and could have been separated from the general mass without difficulty.-

The judgment is reversed, and a new trial directed.

McGrath, C. J., Long and Grant, JJ., concurred with Hooker, J. Montgomery, J., concurred in the result.


author: McGrath, C. J.

text:
    AUDITOR GENERAL v. KEWEENAW ASSOCIATION.
    1. Taxes — Validity—Law of 1891 — Curative Provisions.
    Under the liberal curative provisions of the tax law of 1891, any irregularity or omission in the proceedings to levy or collect a tax, which is not jurisdictional, and does not prejudice the rights of the property owner, will not render the tax invalid.
    2. Same — Return of Delinquent Taxes — Neglect of County Treasurer.
    The failure of the county treasurer to enter the lists of delinquent tax lands returned by the several township treasurers on books in his office provided for that purpose, as required by section 46 of Act No. 200, Pub. Acts 1891, does not invalidate the taxes on such lands, where the original lists are put into permanent form and preserved in his office.
    3. Same — Transcript of Delinquent Tax Lands — Omission op Certificate of County Clerk.
    The tax law of 1891 did not require the transcript of delinquent tax lands made by the county treasurer to be forwarded to the auditor general, or contemplate that it should serve as a basis for further proceedings; and, therefore, the failure of the county clerk to certify to the correctness of such transcript, as required by section 46 of the act, did not avoid the tax.
    4. Same — Real Property — Manner of Assessment.
    A tax against lands is not invalid because they are assessed in the name of one other than the owner, or because no entry whatever appears upon the roll under the heading, “ Name of Owner or Occupant,” in the absence of a showing of prejudice.
    5. Same — Variance Between Assessment and Tax Rolls.
    The failure to insert the name of the township and county in the blanks provided for that purpose at the top of each page of the tax roll does not render the roll so variant from the original assessment roll as to invalidate the tax, where the roll is otherwise sufficiently identified.
    Appeal from Houghton; Hubbell, J.
    Submitted November 19, 1895.
    Decided December 17, 1895.
    Petition by Stanley W. Turner, Auditor General, for the sale of certain lands delinquent for the taxes of 1892. From a decree setting aside certain taxes upon objections filed by tbe Keweenaw Association, Limited, petitioner appeals.
    Reversed.

      Dunstan & HmdheUe, for petitioner.

      Irving D. IIam.scorn, for defendant.
   McGrath, C. J.

This case comes here on appeal from a decree adjudging certain taxes assessed upon defendant’s lands for the year 1892 to be void. The objections raised are:

1. That the county treasurer did not enter the delinquent lists furnished by the several township treasurers on the books in his office provided for that purpose, as required by section 46, Act No. 200, Rub. Acts 1891.

2. That the county clerk failed to add to the transcript the certificate of correctness required by said section 46.

3. That the assessment roll made by the supervisor was not made according to law, for the reason that certain of the property was not assessed in the name of the owner, or as unknown.

4. That the tax roll was not a copy of the assessment roll.

The curative provision of the act of 1891 (section 86) is very broad. It provides that no tax shall be void on account of real property having been assessed without the name of the owner, or in the name of any person other than the owner, or on account of any irregularity, informality, or omission, or want of any matter of form -or substance, in any proceeding, that does not prejudice the rights of the person whose property is taxed; that the absence of any record of any proceeding, or the omission of any mention in any record of any proceeding that should appear, shall not invalidate the proceeding, if the fact that such proceeding was had is shown by any other record, statement, or certificate made evidence by the terms of the act; that no tax shall be invalidated by ■ showing that any record, statement, certificate, affidavit, paper, or return cannot be found in the proper office, and, unless the contrary is affirmatively shown, the presumption shall be that such record was made, and such certificate, statement, affidavit, paper, or return was duly made and filed.

The object of the provision requiring the county treasurer to enter the list of the delinquent tax lands on the books of his office would seem to be to serve the convenience of the office, and to put the list of delinquent taxes into permanent form. In the present case it seems that the county treasurer furnished to the supervisor ■for each township a blank book, upon which the copy of the township assessment roll was entered for the township treasurer, and that these books were surrendered to the county treasurer with the returns. While the statute contemplates a return of the roll, and a separate statement of delinquent tax lands, and an entry of the same upon books provided for that purpose, it cannot be insisted that, although the purpose of the statute has been subserved, — the original put into permanent form, preserved in the office, and made the basis of subsequent proceedings, — the tax has been invalidated because of a failure to comply strictly with the provisions of the statute. The tranécript which is to be made and forwarded to the auditor general is not necessarily a transcript of the county treasurer’s books, but “of all the descriptions of land returned as delinquent for unpaid taxes.”

As to the second objection, the tax was assessed in 1892. The act of 1893 did not take effect until June 12, 1893. The act of 1891 did not require the transcript to be forwarded to the auditor general. As to the taxes of 1891 and 1892, the transcript so certified is not necessarily the basis for further proceedings. Section 123 of the act of 1893 (No. 206) provides generally for a transcript to be made by the county treasurer as to delinquent taxes for those years. The office of this transcript, under the act of 1891, is not apparent. It is not again referred to in the act. Section 46 of that act was taken from former acts, but tbe provision, appearing in sucb former acts, requiring tbe forwarding of sucb transcript to tbe auditor general, was omitted. Tax sales under the act of .1891 were not predicated upon this transcript, but tbe county, treasurer proceeded upon original papers appearing in bis office, without reference to this transcript.

As to tbe third objection, it is not shown that defendant bad any personal property in tbe township, or that its rights have been in any respect prejudiced by tbe omission to use tbe word “unknown” in tbe assessment roll.

As to tbe fourth objection, it appears that, in tbe beading of each page of the book in which tbe supervisor entered tbe copy of bis roll for tbe use of tbe township treasurer, tbe blanks provided for tbe name of tbe township and county were not filled, but there appeared printed on the outside of each book an'indorsement, sucb as “Hancock Township Assessment Roll of 1892,” and attached was tbe warrant of tbe supervisor, directed to “Charles Linder, township treasurer of tbe township of Hancock, in tbe county of Houghton.” We think that the roll was sufficiently identified. A failure to repeat tbe name of tbe township and county upon each page is not sucb a variance from the original as affects tbe roll. The utter carelessness of tbe officers intrusted with this important governmental function is lamentable, and deserves rebuke; but, on the other band, owners of property cannot- escape tbe payment of taxes properly levied where tbe defect complained of is not jurisdictional, and their rights have not been prejudiced by tbe omission.

Tbe decree of tbe court below is reversed, and a decree directed for petitioner, and tbe record remanded.

The other Justices concurred.


author: Grant, J.

text:
    TOWNSHIP OF GRANT v. TOWNSHIP OF RENO.
    1.Division of Township — Apportionment of Bonded Indebtedness-Statute of Limitations.
    Where territory is detached from one township and organized into another, the statute of limitations does not begin to run against the right of the old township to enforce the proportionate liability of the new upon bonds issued by the former township prior to the division, which are valid in the hands of bona fide holders only, until the liability of the old township thereon has been established by judgment.
    2. Same — Suit for Contribution — Defenses.
    It is no defense to a suit by the old township to compel the new to pay its proportion of a judgment so rendered, that the latter has not had its day in court upon the question of the validity of the bonds, since there is no method other than that pursued whereby such right could be afforded.
    3. Same — Right to Maintain Suit.
    Such suit is maintainable, under the statute, upon the refusal of the new township to carry out an agreement whereby each township assumed its proportionate share of the bonded indebtedness of the original township.
    4.Same — Conclusiveness of Judgment — Conflict of Laws.
    A valid judgment rendered by a federal court against- the old township is conclusive upon the new township, if obtained without collusion or fraud, and the State courts will compel an apportionment of the liability thereunder, although such courts would not have rendered judgment upon the bonds in the first instance, because of the unconstitutionality of the statute authorizing their execution.
    Appeal from Iosco; Simpson, J.
    Submitted December 4, 1895.
    Decided December 17, 1895.
    Bill by tbe township of Grant against the township of Reno to compel the payment by the defendant of its proportion of a judgment rendered against complainant upon certain bonds issued prior to the creation of the defendant township from territory of complainant. From ,a decree dismissing the bill on demurrer, complainant appeals.
    Reversed.
    The material facts set forth in the bill are that in 1885 the township of Reno was organized out of $147,425 .(about two-thirds) in value of the territory of the township' of Grant, valued at $227,885, as ascertained by the last assessment roll preceding the division; that upon such organization the township boards of the two townships met and mutually agreed that each of the townships should pay its share of the bonded indebtedness of the original township according to said assessed valuation ; that by reason of said agreement the township of Reno became liable to pay its share; that at this joint meeting the two township clerks were appointed to ascertain the amount of such bonded indebtedness each township should so pay; that the clerks have since neglected or failed to act in the matter; that the joint meeting was adjourned sine die without ascertaining such amounts; that the township board of the township of Reno has ever since neglected and refused to meet with the township board of the township of Grant for the purpose of apportioning between said townships the said bonded indebtedness in the manner provided by law, or for the purpose of arriving at a settlement of the matters in difference, and that the same remain unsettled; that the township of Reno has never paid any part of said indebtedness, and has refused so to do, or to provide for the payment of the same or any part thereof; that, at the time of the division, the bonds, of which the township of Reno so agreed to pay its share, constituted an existing legal obligation of the original township; that the bonds and interest coupons thereto attached, of which copies are annexed to and made part of the bill, were issued by the township of Grant, under date of January 15, 1869, with a blank space for the insertion, by the owner or holder thereof, of his name as payee; that the said bonds and interest coupons were at various times owned and sold by various holders thereof, until they finally came into the hands of one Hauman G. Haugan, who, as owner thereof, caused his name to be inserted therein as payee; that said Haugan, on December 26, 1889, commenced suit in the United States circuit court for the Eastern district of Michigan, against the complainant township, on said bonds and interest coupons, and that, upon due service of process, complainant township, with the knowledge and approval of the defendant township, through its proper officers, appeared and defended such suit, but unsuccessfully, so that on October 30, 1891, judgment was rendered therein upon said bonds and interest coupons against complainant for $5,428.92 and costs, $58.37; that complainant paid on said judgment November 8,1892, $500, and May 7, 1894, $500; that the balance of said judgment is due and unpaid, and said Haugan threatens to apply to said court for a writ of ■mandamus to compel complainant to pay said balance; that said Haugan was a bona fide holder of said bonds and interest coupons, for a valuable consideration, and a citizen of Wisconsin, and entitled to bring said suit in the said United States circuit court; that, according to the decisions of the Supreme Court of this State, the act under which said bonds and interest coupons were issued is unconstitutional, and said bonds and interest coupons are invalid, but according to the decisions of the Federal Courts said act is constitutional, and said bonds and interest coupons are valid; that complainant’s liability, and the consequent liability of defendant to pay its share of said bonded indebtedness, according to its agreement, was contingent upon the fact of the bonds being held by one who, by reason of his adverse citizenship, was entitled to bring suit thereon in said United States circuit court; that, prior to the commencement of said suit by Haugan, complainant, with the knowledge and approval of defendant, through its proper officers, made various and unsuccessful attempts to ascertain who was the owner of said bonds, and whether complainant was liable to pay the same; that, until the time of commencement of said suit by said Haugan, neither complainant nor defendant could ascertain who was the owner of said bonds, nor until judgment therein, whether said Haugan was a bona -fide holder of said bonds for a valuable consideration, and a citizen of Wisconsin, so as to give said United States circuit court jurisdiction-.
    The defendant interposed a demurrer, a plea, and answer. The grounds of the demurrer are:
    (1) That the bonds are void under the decisions of this court, and that this court will not lend its aid to the enforcement of a demand which is in violation of the fundamental law of the State.
    (2) That the defendant has not had its day in court as to said bonds or other claim mentioned in the bill.
    (3) That it does not appear by the bill that the complainant has taken any of the steps required by law to authorize complainant to maintain this suit.
    The plea sets up the statute of limitations. The answer admits the organization of the defendant out of the territory of the township of Grant, and, as to the other allegations, leaves complainant to its proof. The demurrer was sustained, and bill dismissed.

      Barbour & Rexford, for complainant.

      O. E. M’Gutcheon, for defendant.

       See 1 How. Stat. § 795; 3 How. Stat. § 31097i.

   Grant, J.

{after stating the facts). 1. The claim of the complainant is not barred, either by laches or the statute of limitations. These bonds were issued in January, 1869, before the decision was rendered in People v. Tp. Board of Salem, 20 Mich. 452, May 26, 1870. Under that decision these bonds were void, and their payment could not be enforced in the courts of this State, unless they showed upon their face the authority of the township to issue them, and were in the hands of a bona fide holder without notice. The bonds were payable 15 years from date. The township of Grant was, therefore, not liable until its liability was established by the judgment of a court of competent jurisdiction. Presumably, the officers and people of both these townships so understood the situation. There was, therefore, no necessity for proceeding or right to proceed to ascertain the amount of the bonds chargeable to each township until the liability of the township of Grant therefor was established by the judgment of such court. If the township of Grant had commenced suit against the township of Reno for its proportion of these bonds, according to the agreement of the two boards, it would have been a sufficient answer that the bonds were void under the decision in the Salem case, and there was no certainty that the former would or could be held liable for them. According to the allegations of the bill, its liability was established in October, 1891, and within three years after that this suit was commenced.

2. It is urged that this suit cannot be maintained because the judgment in the United States court is not conclusive, and the defendant has not had its day in court upon the question of the validity of these bonds. The obvious reply to this is that the only method provided by law whereby the defendant could have its day in court is the one here pursued. The bondholder could not sue the township of Reno, but only the township of Grant, his promisor. The effect of this judgment will, hereinafter be considered.

3. We think the steps taken by the complainant afford sufficient basis for the maintenance of the suit. The boards of the two townships had met and settled all their claims and rights of property, each against the other, and solemnly agreed upon the proper division of these bonds, and provided for an accounting. The agreement was binding upon the two townships, and either could enforce it in the courts upon the refusal of the other to carry it out.

4. The principal question in the case is whether the defendant can he held liable at all, for the reason that such bonds have been held void under the decisions of this court. The United States courts held that the decision in the Salem case was not binding upon them in cases where such bonds were issued and received in good faith prior to that decision. Township. of Pine Grove v. Talcott, 19 Wall. 666; Taylor v. Ypsilanti, 105 U. S. 60. Where, however, such bonds show upon their face lack of authority to issue them, or refer to ordinances or charters as the foundation thereof, the owners cannot be protected on the ground of their bona fides, but take at their risk, Risley v. Village of Howell, 57 Fed. 544; Bogart v. Township of Lamotte, 79 Mich. 294. Where such bonds show a prima facie authority upon their face, they are good in the hands of a bona fide purchaser without notice of the real object for which they were issued. Common Council of Cedar Springs v. Schlich, 81 Mich. 405. The case of Haugan v. Township of Grant does not appear to be reported, and we are, therefore, not informed of the basis of the judgment. For the purposes of this suit, however, we must assume, under the allegations of the bill, that it is a valid judgment, conclusive upon the township of Grant. Is it, if valid, conclusive upon the township of Reno? At the time the bonds were issued the two townships were one. The people acted upon the faith of the validity of an act of the legislature. The people of both townships were equally responsible for the issue of the bonds. The defendant is not in a position to throw stones at the complainant. Both occupy the same glass house, erected by their joint action. If the complainant can upon any legal grounds be held liable in a court of competent jurisdiction, there is certainly no justice or equity in permitting the defendant to escape its fair share of the burden. Especially is this so if the allegations of the bill are true that the defendant was notified of the pendency of that suit, and it was-defended with its knowledge and assent.

Defendant’s, counsel relies upon Township of Pierson v. Township of Reynolds, 49 Mich. 224, and Hale v. Township Board of Baldwin, 49 Mich. 270. Township of Pierson v. Township of Reynolds was decided, apparently, upon the ground that the transaction upon which the court rendered judgment as a binding agreement was subsequent in date to the organization of the defendant township,, and, even if valid, could not bind the latter township. The township of Pierson asked for the writ of mandamus' —a discretionary writ — to compel the two townships to-apportion the liability. In Hale v. Township Board of Baldwin the same writ was invoked for a like purpose. The court held that, upon the face of the petition, it appeared that the bonds were not negotiated and held by bona fide holders, and the court therefore refused the-discretionary writ of mandamus to compel an apportionment.

These cases are not similar in their facts, nor conclusive in the present case. The defendant may be able,, upon a hearing, to show some grounds for attacking that judgment, or to show why it is not bound by it. The-fact that the courts of this State would not have rendered judgment against the complainant is no reason; why they will not compel an apportionment of the judgment in another court of competent jurisdiction. In* the case of City of Port Huron v. McCall, 46 Mich. 565,. this court refused to hold void bonds which were issued) to pay judgments against the city in both the State and! Federal courts upon similar void bonds. If the judgment was valid, and was not obtained by collusion or fraud, we see no reason, in justice and in equity, why the defendant, equally responsible with complainant, should not be held to pay its share of the burden, and why that judgment is not conclusive upon it. We think the bill of complaint presents a prima facie case for hearing upon pleadings and proofs.

The decree will therefore he reversed, with costs of both courts, and the case remanded for further proceedings in accordance with this decision.

The other Justices concurred.


author: McGrath, O. J.

text:
    CASE v. SMITH.
    1. Seduction — Action for Damages — Promissory Note —Consideration.
    An affianced husband has no right of action for the seduction or the alienation of the affections of his betrothed, and, therefore, a promissory note given to him because of- such misconduct is void for want of consideration.'

      3. Promissory Note — Consideration—Public Policy.
    A note the consideration for which consists in part of an agreement to conceal from the public and from the maker’s wife the fact that he has been guilty of adultery is void as against public policy.
    Error to Genesee; Moore, J., presiding.
    Submitted November 22, 1895.
    Decided December 17, 1895.

      Assumpsit by Edgar D. Case against Eli T. Smith upon a promissory note. From a judgment for defendant on demurrer, plaintiff brings error.
    Affirmed.

      Tinker & Eraekelton, for appellant.

      Ed. 8. Lee (Durand & Oarton, of counsel), for appellee.
   McGrath, O. J.

Suit is brought upon a non-negotiable promissory note, which omitted the “ for value received ” clause. Plaintiff declared on the common counts, and in four special counts sets up—

1. That plaintiff had been for some time engaged to be married to a widow named D.; that November 10, 1892, he visited D., and found defendant concealed in the house; that defendant was at the house for the purpose of having carnal intercourse with said D., and in consequence plaintiff: suffered great mental and physical anguish. 1

2. Thift prior to that time defendant had betrayed, seduced, and debauched said D., with full knowledge that she was the betrothed wife of plaintiff, to plaintiff’» damage.

3. That defendant had also endeavored to alienate the affections of said D. from plaintiff.

4. That, after the discovery of defendant’s intimacy with said D., defendant came to plaintiff, and requested plaintiff to keep the matter quiet, and agreed that if plaintiff would continue to keep company with said D., and wrould refrain from telling the people of that locality of the intimacy existing or that had existed between defendant and said D., viz., the seduction, debauching, and sexual intercourse aforesaid, defendant would recompense him well for the same; that, in consideration of plaintiffs agreeing so to do, defendant executed and delivered to plaintiff the note in question; that plaintiff did as he agreed, and publicly kept company with said D., and did refrain from informing the public of the intimacy that had existed between defendant and said I).; that said note was expressly given, and accepted with the agreement that defendant was to pay the same in consideration of plaintiff’s keeping company with said D.,. and refraining from exposing to said defendant’s wife the criminal proceedings and actions aforesaid; that plaintiff has performed the agreement on his part, but defendant has failed so to do.

A bill of particulars was demanded under the common counts, and furnished, which contained the following items:

“ For damages in alienating the affections of Mary B. Davison from plaintiff, $5,000.
“ For damages in seducing, debauching, and having carnal intercourse with Mary B. Davison, the betrothed wife of plaintiff, $5,000.
“ For failure of defendant to keep his agreement with plaintiff, and in failing to pay the note set forth in plaintiff’s declaration, $5,000.”

The case comes here on appeal from an order sustaining a demurrer to said declaration, and judgment accordingly.

A civil action for the alleged seduction of D. could only be brought by the woman herself, or by her father, guardian, or some relative. A betrothed person has no right of action for the seduction or the alienation of the affections of his affianced. Cooley, Torts, p. 236. In Swanson v. Griffin, 68 Miss. 319, cited by appellant, defendant had seduced plaintiff’s infant unmarried daughter, and she had given birth to a child. In Brannum v. O’Connor, 77 Iowa, 632, also cited by appellant, plaintiff had married defendant’s foster daughter, and afterwards learned that she was pregnant at the time of the marriage, by her foster father. Plaintiff agreed to continue to live with the woman and maintain the child. The court held that, under the Code, the pregnancy of the woman at the time of her marriage was a cause for divorce, and that plaintiff was under no obligation to live with the woman or maintain the child. In Loomis v. Cline, 4 Barb. 453, the maker of the note had assaulted plaintiff’s daughter, with intent to commit a rape. The court held that, from his paternal relation alone, plaintiff had no authority to commence an action for his daughter; that he could not release or compronjise such claim, and, if she had a right of action, it remained unaffected by that agreement; and that the note was without consideration; citing Fonda v. Van Horne, 15 Wend. 631; Hunter v. Westbrook, 2 Carr. & P. 578; Macph. Inf. 352 (41 Law Lib. 228). Defendant was not liable to respond in damages to jdaintiff by reason of the matters set forth in the first three special counts of the declaration, or the first two items of plaintiff’s bill of particulars, and, in the absence of such liability, there was no consideration for the note.

As to the contract set up in the fourth count, plaintiff’s agreement was in part to conceal from the public and from defendant’s wife the fact that defendant had been guilty of a crime. It is well settled that any contract, the consideration of which is to conceal a crime or stifle a prosecution, is necessarily repugnant to public policy, and that a contract whose consideration is contrary to public policy is void. 2 Kent, Comm. 466; 2 Starkie, Ev. 49; Roll v. Raguet, 4 Ohio, 400; Clark v. Richer, 14 N. H. 44; Treat v. Jones, 28 Conn. 334. It is equally true that if any part of .an indivisible promise, or any part of an indivisible consideration for a promise, is illegal, the whole is void, and no Action can be maintained thereon. Snyder v. Willey, 33 Mich. 483, and cases cited at page 495.

The judgment is affirmed.

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


author: McGrath, G. J.

text:
    HAMILTON & MERRYMAN CO. v. TOWNSHIP OF L'ANSE.
    1. Highway Taxes — Overseer’s Return — Authority op Supervisor.
    Under 3 How. Stat. §§ 1416, 1423, a verified return of delinquent labor taxes by the overseer of highways is essential to confer jurisdiction upon the supervisor to spread the tax upon the township assessment roll.
    2. Same — Curative Provision op Statute.
    An omission in this particular, being jurisdictional, is not cured by the provision of section 1424 that “no error or omission of duty on the part of the overseer of highways shall invalidate the highway tax assessed by the supervisor.”

      3, Taxes — Cloud Upon Title — Conditions to Belief.
    Where a tax has been legally assessed, but there are fatal defects in the proceedings for its collection, the levy will be set aside as a cloud upon title only on condition of the payment of the amount of the tax.
    Appeal from Baraga; Haire, J., presiding.
    Submitted November 21, 1895.
    Decided December 17, 1895.
    Bill by the Hamilton & Merryman Company and others against the township of L’Anse to remove a cloud from the title to lands, arising from an illegal tax levy. From a decree for complainants, defendant appeals.
    Decree modified.

      Irving D. Scmscom, for complainants.

      Philip B. MeKernan (Ohadbourne & Bees, of counsel), for defendant.
   McGrath, G. J.

This is a bill filed to remove a cloud from the title to lands, arising from a highway tax levied thereon, which it is alleged was without authority of law.

The highway tax assessed for the year 1893 consisted entirely of a labor tax. Under the statute, the commissioner apportions the, highway labor to the several road districts, and lists the same; the township clerk makes duplicate lists, and retains one copy in his office; and the commissioner delivers the others, with his warrant commanding, etc., to the several overseers. 3 How. Stat. §§ 1331, 1332. By section 1423, every overseer is required to render to the commissioner an account in writing, verified by oath, setting forth, among other things, a list of all nonresident lands upon which labor has been performed or commuted for; a separate list of all such lands on which the labor assessed has not been paid, and the amount unpaid; and a list of all lands and personal property assessed as resident, for which the owner or occupant shall not have commuted, or shall have refused or neglected to work, after being duly notified. The return is to contain the further statement that the overseer has given the notice required by the act, and that the labor assessed upon the property so returned has not been performed and remains unpaid. Section 1416 requires the commissioner to deposit the return so made with the supervisor, whose duty it is to cause the amount of all arrearages of labor to be levied on the property returned, to be collected in the same manner that the contingent charges of the township are collected, and credited to the district in which the same accrued.

The overseers seem to have' simply returned to the commissioner the-lists as originally received by them from the commissioner, except that opposite certain of the descriptions there had been entered the letters “Pd.” or “Paid” in red ink. The returns were not verified or even signed by the overseer. These returns are in the nature of delinquent tax returns, and are made the basis of the levy by the supervisor. They are the source of the supervisor’s authority, and the defect is jurisdictional. Hogelskamp v. Weeks, 37 Mich. 422; Upton v. Kennedy, 36 Mich. 215; Seymour v. Peters, 67 Mich. 415; Newlcirlc v. Fisher, 72 Mich. 113; Township of Caledonia v. Rose, 94 Mich. 216.

It is urged, however, that the omission is cured by the last clause of section 1424, which is as follows: “But no error or omission of duty on the part of the overseer of highways shall invalidate the highway tax assessed by the supervisor on the township assessment roll.” It was held in Lake Superior, etc., Iron Co. v. Township of Thompson, 56 Mich. 493, that formerly the overseer’s return was the necessary foundation for any authority in the supervisor to place a labor tax on the roll for collection in money, but that under Act No. 10 of 1882 the tax was to go upon the roll in the first instance, and was to be marked off on presentation of receipts showing payment in labor, and hence the failure of the overseers to make the return was not a jurisdictional defect. It was held in Michigan Land & Iron Co. v. Township of L’Anse, 63 Mich. 700, that the act of 1882 authorized the supervisor to spread upon the town tax roll, in money, the labor tax as assessed by the commissioner. Section 4 of chapter 2 of the act of 1882 has, however, been since amended, and section 14 of chapter 12 of the same act has been repealed, and the authority t'o place the unpaid labor tax upon the roll is now derived from 3 How. Stat. § 1416, on the coming in of the overseer’s return aforesaid.

The defect here complained of, however, is one arising in the course of the enforcement of the collection of the tax, rather than in the original assessment thereof. The tax was assessed by the commissioner. There is no complaint against that assessment. The ta.x was a valid claim against complainants. The relief which they pray should at least be conditioned upon payment by them of the amount of the tax.

The decree will be modified accordingly, with costs of this court to defendant.

The other Justices concurred.


author: Montgomery, J.

text:
    PEOPLE v. GAY.

    1- CoNSTITUTIONAL Law — Insurance—Eight to Do Business — Unlawful Discrimination.
    The State has the power to prescribe the conditions upon which individuals shall have the right to transact the business of insurance within its borders, so long as it does not violate the provisions of the Federal Constitution by discriminating against the citizens of other States.
    2. Same.
    Hence, the general insurance laws of this State containing no such discrimination, Act No. 74, Pub. Acts 1893, prohibiting the solicitation of insurance for any nonresident person, etc., without first obtaining the prescribed certificate of authority from the commissioner of insurance, is valid.

      Exceptions before judgment from Kalamazoo; Buck, J.
    Submitted November 21, 1895.
    Decided December 17, 1895.
    Edward 0. Gay was convicted of unlawfully soliciting insurance.
    Affirmed.

      Frank F. Knappen and Myron H. Beach, for appellant.

      Alfred 8. Frost, Prosecuting Attorney (F. M. Irish, of counsel), for the people.
   Montgomery, J.

By act No. 74 of the Session Laws of 1893, it was enacted— ‘

“ That it shall be unlawful for any person or persons,, as agent, solicitor, surveyor, broker, or in any other' capacity, to transact, or to aid in any manner, directly or-indirectly, in transacting or soliciting, within this State,, any insurance business for any person, persons, firm, or copartnership who are nonresidents of this State, or for any fire or inland navigation insurance company or association not incorporated by the laws of this State, or to act for or in behalf of any person or persons, firm or corporation, as agent or broker, or in any other capacity, to procure or assist to procure a fire or inland marine policy or policies of insurance on property situated in this State, for [from] any nonresident person, persons, firm, or copartnership, or in any company or association without this State, whether incorporated or not, without procuring or receiving from the commissioner of insurance the certificate of authority provided for in section 23 of an act entitled An act relative to the organization of fire and marine insurance companies transacting business within this State,’ approved April 3, 1869, as amended. Such certificate of authority shall state the name or names of the person, persons, firm, or copartnership, or the location of the company or association, as the case may be, and that the party named in the certificate has complied with the laws of this State regulating fire, marine, and inland navigation insurance, and the name of the duly-appointed attorney in this State on whom process may be served.”

By section 5 of the act of which the above is amendatory, it is provided:

“ In suits brought under this act it shall not be necessary to prove the legal incorporation or association of any corporation or association of individuals, the policies of which have been solicited or issued contrary to the 'provisions of this act. It shall be sufficient to show that a policy of insurance has been solicited or issued, directly or indirectly, by or through the defendant, in a company or association not authorized to do business in this State.” 1 How. Stat. § 4358.

Respondent was charged and convicted in the Kalamazoo circuit court of a violation of this act. He has brought the record here for review on exceptions before sentence.

While the record contains numerous assignments of error, we have not been favored with any brief on behalf of the respondent. We have, however, looked through the record, and discovered no error. The only question meriting discussion is whether the law in question is unconstitutional. ' It appears from the respondent’s requests that it was contended below that the statute contained an unwarranted discrimination against the citizens of other States.

It has been repeatedly held that it is within the power of the State to exclude corporations of other States from doing business in this State, except on such terms as the legislature may see fit to prescribe for the protection of its citizens. Hartford Fire Ins. Co. v. Raymond, 70 Mich. 485; Doyle v. Insurance Co., 94 U. S. 535. This naturally carries with it the right to prohibit individuals within this State from acting for such inhibited corporations. People v. Howard, 50 Mich. 239; Paul v. Virginia, 8 Wall. 168. But it appears to have been insisted below that, while it may be competent to prohibit corporations from doing business within this State, the legislature cannot deny the right to individuals. But an answer to this is that there is no discrimination against individuals of other states under the insurance laws of this State. See State v. Ackerman, 51 Ohio St. 163; State v. Stone, 118 Mo. 388.

Conviction affirmed, and the court is instructed to proceed to sentence.

The other Justices concurred.


author: Long, J.

text:
    PEOPLE v. VAN DAM.
    1. Identification of Stolen Property — Evidence.
    Articles remaining in a store after it had been burglarized are admissible to identify similar articles found in the possession of the party charged with the crime, by showing that all bear like evidences of shop wear or exposure.

      2. Statutory Burglary — Inclosure not Adjoining Dwelling.
    A store located upon the ground floor of a building, and having no indoor communication with the rooms above, which are occupied as a residence by a clerk of the proprietor, is not, as a matter of law, “ adjoining to or occupied with a dwelling house,” so as to prevent a breaking and entering thereof from constituting a statutory burglary.
    3. Criminal Law — Evidence of Good Character — Instructions.
    An instruction limiting the effect of proof of good character to cases where there is an even, or nearly an even, conflict of evidence as to the guilt of the respondent, is erroneous.
    Exceptions before judgment from superior court of Grand Rapids; Burlingame, J.
    Submitted November 21, 1895.
    Decided December 17, 1895.
    Zack VanDam was convicted of statutory burglary.
    Reversed.

      Nathm P. Allen, for appellant.

      Alfred Wolcott, Prosecuting Attorney, for the people.
   Long, J.

The information contains two counts, — one for breaking and entering the store of Hiram G. Luce in the night-time, with intent to commit the crime of larceny, said store not adjoining to or occupied with a dwelling house; and the other for the larceny of goods of more than |25 in value. Respondent was convicted under the first count, and the case comes to this court on exceptions before sentence.

The store burglarized is situated on the corner of East street and Fifth avenue, in the city of Grand Rapids,, and is a two-story structure, consisting of two stores. A flight of stairs leads up from the street in front, and between the two stores, and a flight leads downward between the stores at the rear. Over the store rooms are fitted up, in which Norton E. Briggs, the clerk of Mr. Luce, lives with his family. There are five rooms, and they are entered from the two stairways. From the record, there seems to be no entrance from the store to these rooms, and the only means of getting from the store to the rooms is to pass out, either upon the street or into the back yard, and thence up one of the stairways.

The respondent resided some three-quarters of a mile from these stores. He was employed in a furniture factory, and had been so employed for a number of years; was a married man, having a wife and three children, and lived in his own house. The burglary was committed on the night of October 7,1894. On the 2d of November, following, some suspicion having attached to him, a warrant was taken out and placed in the hands of detectives, who went to his house to make a search for the goods taken. Arriving there, they found the respondent was not at home, and told his wife of their desire to make the search, and were permitted to do so. The house below consisted of a front room, a dining room, kitchen, pantry, and bed room. A stairway led from the front room up stairs, where there were two rooms and a closet. The upper rooms were plastered, but contained nothing but a work beucli and carvers’ tools, saws, chisels, etc. The respondent is a carver. The officers then entered the closet over the stairs, and found two boards that had beeu saAved. Taking these off, they found many articles stored away under the floor of the closet, and on top of the lath and plastering of the rooms below. They found some 30 or 35 pounds of coffee, tobacco, canned goods, tea, cigars, pipes, and essence of peppermint. Other tobaccos, marked “Spearhead” and “Tiger,” were found. The articles were put into two different bags. The officers testified that, soon after discovering these-articles, the respondent came home and wanted to know-what they were doing there. They told him they were searching for stolen goods. He told them that he had none there, and that they could search his house. They then told him that they had searched the house and found the goods, and brought out the bags and showed them to, him, and told him his wife had said that he brought them home. Respondent then asserted that two men had rented these rooms up stairs. They told him that his wife had said she asked him Avho helped him to get these goods, and he stated to her that if he told her she would not know who it was. The officers took the respondent into custody, and, upon arriving at police headquarters, searched him, and found in his pockets a half package of Tiger tobacco, like that found in the closet, whereupon he said that he had permission to get some every time, he wanted to use it. The goods found under the closet, floor were identified by Mr. Luce and Mr. Briggs as the. property of Mr. Luce, taken from the store. The officers testified, further, that, in the search for these goods, they found a secret staircase from the closet, which could only be found by pulling off the boards.

1. On the trial the people offered in evidence the. articles which Luce and Briggs had identified, and also, the half package of tobacco found upon the respondent;when arrested; also, the two bottles of peppermint essence which were left in the store. The .testimony tended to show that these bottles of essence were of like character and in like condition as .those found concealed at respondent’s house. This was objected to and admitted, and upon this is based the first assignment of error. We think this was competent evidence. Mr. Luce testified that the peppermint essence had been in his store three or four years; that that found at respondent’s house had been taken from his store. The bottles were offered in evidence for the purpose of identifying those foufid with respondent, and all of them appear to have been upon the shelves for a length of time, having some marks upon them, and being covered with flyspecks. We think the testimony does not bear out the ■statement that they were offered for the purpose of comparing the figures upon the bottles, as each bottle contained the figures “10.” The court properly permitted the people to put the two bottles in evidence for the purpose of showing their general appearance.

2. It is contended that the store was adjoining to or occupied with a dwelling house. We think the testimony fails to show that fact, within the meaning of section 9134, 2 How. Stat. People v. Nolan, 22 Mich. 229.

3. The principal questions raised relate to the charge of the court. We need discuss but one, as we think the •other objections are devoid of merit. The court charged the jury as follows:

“Now, there has been considerable testimony put into this case as to the good character of this young man. Every man who comes before you to be tried is presumed to have a good character, without any evidence whatever in the case; and it is for you to say how much that presumption of good character has been strengthened, if strengthened at all, by some 9 or 10 witnesses who have been put upon the stand before you. Evidence of good -character is, in some cases, an important factor, — that is, that which amounts to evidence of good character. If a man residing in a community has always borne the-reputation of being a good man, and good, respectable citizens — well-known citizens 'whom you know to be respectable — come in and swear that he has always held a good character, and when, in regard to the offense charged, there seems to be an even, or nearly an even, conflict as to whether he is or whether he is not guilty, then that good character, put into the balance, ought to-have a great deal of weight in such a case. Oftentimes it would be conclusive.”

This charge was erroneous and misleading. Proof of good character is to have greater weight than suggested by this charge. It is applicable in all cases where crime is charged. It is not to be limited to cases where there is an even conflict as to whether the respondent is or is not guilty. As was said by this court in People v. Jassino, 100 Mich. 530: “Evidence of good character is admissible, not only in a case where doubt otherwise exists, but may be offered for the purpose of creating a doubt.” People v. Laird, 102 Mich. 135; People v. Garbutt, 17 Mich. 9; Hamilton v. People, 29 Mich. 195.

The conviction must be set aside, and a new trial granted.

The other Justices concurred.


text:
    PEOPLE v. BENNETT.
    1. Criminal Law — Offense not Triable by Justice — Jurisdiction to Issue Warrant.
    The complaint and examination provided for by the statute prior to the issuance of a warrant of arrest for an offense not triable by a justice of the peace need not be reduced to writing, and, therefore, where a warrant issues, it will be presumed, unless the contrary appears, that there was sufficient evidence before the magistrate to justify him in assuming jurisdiction.
    3.Same — Complaint.
    In such case, the mere fact that a written complaint was taken, which was insufficient to authorize the issuing of the warrant, does not preclude the inference that a valid oral complaint was made.
    3. Same — Sufficiency of Warrant.
    It is not necessary that the warrant should recite the evidence adduced before the magistrate, or name the witnesses examined; and the fact that it does recite the making of complaint in writing, and the examination of the complainant on oath, will not exclude the presumption that other evidence was taken, if necessary to support the jurisdiction of the justice.
    4. Same — Local Option Law.
    Thus, a warrant for a violation of the local option law, containing such a recital, is not open to the objection that it not only fails to show, but negatives the fact, that the justice had ■legal evidence before him (1) that the law was in force within the county, and (3) that the respondent was not within the exception relating to druggists and registered pharmacists.
    5. Same — Sufficiency of Evidence.
    Whether it is competent for the circuit court, in any case, to review the evidence taken by a justice, to ascertain whether it was legally sufficient to establish the commission of the offense for which the warrant issued, — qucere.
    45. Local Option Law — Credibility of Witness — Instructions to Jury.
    Where, upon a prosecution for a violation of the local option law, it appears that the complaining witness purchased liquor from the respondent for the purpose of obtaining evidence against liim, an instruction that such fact should be considered by the jury, in determining the credit to be given to his testimony, is sufficiently favorable to the respondent, and it is not error to refuse instructions in that connection referring to such witness as a “ spy” and a “ hired witness,” and reciting that “ he was willing to and did ask the respondent to violate the law for the sole and express purpose of making a case and instituting a criminal prosecution against him.”
    7. Same — Proceedings of Board of Supervisors — Sufficiency-Record on Appeal.
    Where the record upon an appeal from a conviction under the local option law shows that the proceedings of the board of supervisors in relation to the adoption of the law were offered and received in evidence, respondent’s counsel waiving the reading thereof, and a copy of the evidence so introduced is not returned, an objection that the court erred in instructing the jury that the law was in force within the county will be disregarded, the question as to the sufficiency of the proof in that particular being for the court, and not for the jury.
    Exceptions before judgment from Hillsdale; Lane, J.
    Submitted November 21, 1895.
    Decided December 17, 1895.
    Andrew Bennett was convicted of violating tbe local option law.
    Affirmed.

      Twnothy E. Dibell, for appellant.

      Guy M. Chester, Prosecuting Attorney, for the people.
   Hooker, J.

The defendant appeals from a conviction under the local option law. A motion was made before the justice to quash the proceedings for want of jurisdiction, and it was renewed in the circuit. It is based upon many alleged defects, but reliance appears to be placed more especially upon the claim that the complaint and warrant do not state an offense, and that the justice did not have certain evidence before him previous to the issue of the warrant. The essential evidence said to have been wanting is: (1) Evidence that the local option law was in force in Hillsdale county at the time of the alleged offense; (2) competent evidence that the defendant was not a druggist or pharmacist, and therefore within the exception to the law.

A written complaint was taken, though it was unnecessary. People v. Berry, ante, 256. If it was insufficient, it is no worse than no written complaint, unless it precludes the inference that a valid oral complaint was made. Ordinarily, where no formal written complaint is taken, the complaint amounts to little, if any, more than information to the justice that, in the opinion of the party complaining, an offense has been committed, taken in conjunction with his subsequent statements made upon oath in relation to the details thereof. We may reasonably suppose that such complaint is rarely so complete as to contain all of the statements necessary to prove an offense. It may be that the witness has not knowledge of all, and that his testimony must be supplemented by that of others, to cover all of the points that should be shown to justify the issue of the warrant. This may be supplied by an examination of the complainant and others upon oath. We may, therefore, dismiss the complaint with the remark that it was unnecessary, without taking the trouble to inquire as to its formal sufficiency were a written complaint required.

The warrant recites the fact of the making of complaint in writing and on oath, and the examination on oath of the complainant. It is attacked — First, as not stating an offense; second, as showing affirmatively that it was improvidently issued, because it does not show that the justice had evidence before him that the local option act was in force, and that defendant was not a druggist or registered pharmacist. This warrant charges that the defendant kept a saloon in Jonesville village at a time alleged, where spirituous and intoxicating liquors were sold, stored for sale, given away, and furnished as a beverage. It negatives a possible claim that they were within the exception of the act as to the purpose for which they were kept and sold. It alleges that the defendant was not a druggist or registered pharmacist within the law, hut was a keeper in violation of Act No. 207 of the Laws of 1889, and of a preamble and resolution and order of prohibition adopted by the board of supervisors of Hillsdale county pursuant to said act.

The important point made upon the sufficiency of the warrant is that it fails to show that the justice had evidence before him that the local option law was in force. It is argued that it does not show that the complainant testified to it, and that, if it did, it would be no better, because such testimony is not the kind of evidence required, the law providing how the fact shall be proved. The statute does not require that a warrant shall recite the evidence taken, nor does it say that it shall name all witnesses examined, or mention the documentary evidence placed before the magistrate during his investigation, -to determine whether an offense has been committed. He takes such evidence as in his judgment bears upon the question; and no case has been cited where the circuit court has inquired whether the evidence was of the highest character, or whether it was admissible at all. Moreover, there is nothing upon this record to show that duly-certified copies of the proceedings were not before the magistrate. They may have been produced by the complainant, or by the prosecuting attorney, if he had anything to do with the case. It was not necessary to load the warrant down with statements of this kind, and we do not agree with counsel that the record shows that the proper evidence could not have been before the justice. Presumably it was, or he would not have issued his warrant. Again, when we come to the examination, there is nothing upon this record to show that this evidence was not offered, if it is competent, upon a trial or motion to quash, for the circuit court to review the evidence taken by the justice to ascertain whether he had legal evidence of each material fact, which we need not consider.

What has been said is quite as applicable to the question relating to the failure to allege or show that the defendant was not within the exception of the statute. We cannot say but that there was direct and positive evidence that the defendant was neither druggist nor registered pharmacist, and we are not prepared to say that a justice might not infer the fact from the situation and character of the place where the liquor was sold, and the nature of the transaction.

The defendant’s arrest is said to have been the outgrowth of a purchase by the complainant with that object in view, and requests to charge were based upon that fact, which the court did not give; but we think that he covered the subject. It was perhaps proper for counsel to argue to the jury that the complainant was a “hired witness” and “a spy,” and that “he was willing to and did ask the defendant to violate the law for the sole and express purpose of making a case and instituting a criminal prosecution against him;” but it was unnecessary for the court to do more than to inform the jury that such facts, if proved, were to be considered in determining the credit due to his testimony. Similar instructions in favor of the prosecution and against the defendant, had the facts been reversed, would have been distasteful to counsel, and erroneous, if the facts were open to question.

The record of the board of supervisors was produced and received in evidence. The reading was waived by counsel. He now insists that it was error to instruct the jury that Act No. 207 was in force in the county. As defendant has not seen fit to print this evidence, we cannot tell whether the court erred in this instruction or not. Presumably he read this evidence, and decided that it was sufficient proof. It was for the court to determine that question, and for the jury to follow his direction in regard to it. Hence it was immaterial whether the proceedings were read audibly in the presence of the jury or not.

We think there is no occasion to discuss the case further. We find no error, and the conviction will be affirmed.

The other Justices concurred.

       See People v. Berry, ante, 256.


text:
    PEOPLE v. COX.
    1. Criminal Law — Disorderly House — Former Conviction.

      A conviction under the disorderly act (3 How. Stat. §■ 1997a) of keeping a house for the resort of prostitutes is a bar to a subsequent prosecution founded upon the same transaction, under 3 How. Stat. § 9286, for keeping a house of ill fame, resorted to for the purpose of prostitution or lewdness.
    2. Same — Continuing Offense.
    The keeping of a disorderly house is a continuing offense, and a conviction therefor bars another prosecution for such keeping anterior to the date laid in the former indictment.
    3. Same — Plea in Bar — Discharge of Respondent.
    The reversal of a criminal case for error in sustaining a demurrer to a plea of former conviction entitles the respondent to a discharge.
    Error to Houghton; Hubbell, J.
    Submitted November 21, 1895.
    Decided December 17, 1895.
    Ira J. Cox was convicted of keeping a house of ill fame, and sentenced to imprisonment in the State prison at Marquette for three years.
    Judgment reversed and respondent discharged.

      Joseph F. Hcmibitser, for appellant.

      A. T. Streeter, Prosecuting Attorney, for the people.
   Hooker, J.

Section 1997a, 3 How. Stat., declares that “all keepers of bawdy houses, or'houses for the resort of prostitutes, * * * shall be deemed disorderly persons;” and by the succeeding section the first offense is made punishable by a fine of $50 and costs of prosecution, or by imprisonment in the county jail or Detroit house of correction not exceeding 30 days, or the person convicted may be required to give sureties for good behavior for the period of three months.

Section 9286, 3 How. Stat., provides that—

“Every person who shall keep a house of ill fame, resorted to for the purpose of prostitution or lewdness, and every person who shall solicit, or in any manner induce, a female to enter such house for the purpose of becoming a prostitute, or shall by force, fraud, deceit, or in any like manner procure a female to enter such house for the purpose of prostitution or of becoming a prostitute, shall be deemed guilty of a felony, and upon conviction thereof shall be’punishéd by imprisonment in the State prison not more than five years, or in the county jail not more than one year, or by fine not exceeding one thousand dollars, or by both such fine and imprisonment, in the discretion of the court.”

The defendant appeals from a conviction under the latter section, upon an information which charges that—

“Heretofore, to wit, on the 1st day of December, A. D. 1894, and on divers other days and times between that day and the 1st day of January, A. D. 1895, * * * he unlawfully and feloniously did keep and maintain a certain house of ill fame, resorted to for the purpose of prostitution and lewdness.”

To this information a plea of former conviction was interposed, setting forth the warrant upon which said conviction was had, and stating that in that proceeding he was" prosecuted for keeping the same house, and that it was a continuation of the same offense for which he is now prosecuted. The warrant mentioned shows that he was proceeded against as a disorderly person, under the section first mentioned, the charge being—

“That heretofore, to wit, on the 23d day of March, A. D. 1895, and for ten days preceding that day, at the township of Duncan, in said county, Ira Cox, of said township of Duncan, has been and is a disorderly person, within the meaning of section 1 of Act No. 264 of the Public Acts of Michigan of 1889, being section 1997a. of Howell’s Annotated Statutes of the State of Michigan, for that the said Ira Cox, at the township of Duncan, in said county, during and at times aforesaid, was the keeper of a house for the. resort of prostitutes.”

It will be noticed that the present prosecution is for an alleged offense anterior to that upon which he was first convicted.

Two questions are presented for our consideration:

1. Whether a continuous keeping of a house of ill fame, resorted to for the purpose of prostitution, etc., is a continuing offense, so that a conviction bars another prosecution for such keeping previous to the time of the indictment upon which a conviction has been had.

2. If so, whether a conviction, under the disorderly act, of keeping a house for the resort of prostitutes, bars a prosecution for keeping a house of ill fame, resorted to for the purposes of prostitution, at a time previous to the first indictment.

To establish guilt under the disorderly act, it is necessary to show that the house is kept for the resort of prostitutes. Under the other act, the house must be resorted to for purposes of prostitution and lewdness by men or women, or both, and it must be a house of ill fame. The first falls short of the second, as it may or may not be a house of ill fame, and acts of prostitution may or may not be committed there. The act implies that it shall be a rendezvous for prostitutes, — a place which they visit or haunt (see Webst. Diet. “Resort”); and it may be open to question whether the disorderly act would apply to a person who kept a house where prostitutes merely made it their permanent residence. But such a person might be punishable under the other statute, if the house was a house of ill fame, and was resorted to (i. e., visited) for the purpose of prostitution and lewdness. These acts are made criminal under separate statutes, but they are of the same nature. The act of keeping a disorderly house is the gravamen of the offense in each. A given state of facts may permit an election by the prosecutor as to which of two offenses he will charge; but in this case, as keeping a disorderly house is a vital incident under both statutes, he should not be permitted to bring successive charges under both acts for one and the same transgression. The lesser offense is necessarily included in the greater, and “as the government cannot begin with the highest, and then go down step by step, bringing the man into jeopardy for every dereliction included therein, neither can it begin with the lowest and ascend to the highest, with precisely the same result.” We think, therefore, that one should not be prosecuted under both statutes for one and the same unlawful act.

It remains to inquire whether this doctrine can be applied in this case, in view of the fact that the charge in this case covers time anterior to the charge in the former. Can the continuous keeping of a house under either of these statutes be treated as more than one offense? Technically speaking, when one engages in a business, he cannot be said to engage a second time in the same venture. He may engage in a similar business elsewhere, or upon another occasion, after bringing the first venture to a close. The same may be said about keeping a saloon or brothel. So long as it is uninterrupted, it is really but one act of keeping. To hold otherwise at once raises the question of duration of the offense. Shall the ■same be measured by years, months, weeks, days, hours, or by still shorter intervals? On the other hand, is there no difference between the offender of a day, and one whose business has run a year? And, further, after one has incurred and suffered one conviction, may he continue the unlawful act ad UWtum, safe from further prosecution, by reason of the former conviction?

The injustice of dividing a continuous act into as many ■offenses as there are days in the period of its continuation was early seen and asserted. The principle was applied in a case where four charges were made of infractions of the law upon one and the same day, in the case of Crepps v. Durden, Cowp. 640. That case arose under a statute prohibiting labor upon the Lord’s day, and it was held that a conviction upon proof that a baker sold a hot loaf upon that day was a bar to prosecutions for selling other loaves upon the same day, the court saying that: “There is no idea conveyed by the act itself that, if a tailor sews on the Lord’s day, every stitch he takes is a separate offense. * * * There can be but one entire offense on one and the same day.” In re Snow, 120 U. S. 281, involved the question before us; and it was held that the offense of illegal cohabitation as husband and wife was a “continuous offense, having duration, and not an offense consisting of an isolated act.” The court refused to permit more than one conviction for such act, and called attention to the great injustice of cumulative penalties, which would be possible under the practice insisted upon by the prosecutor, and said, “It is to prevent •such an application of penal laws that the rule has obtained that a continuing offense of the character of the one in this case can be committed but once, for the purposes of indictment or prosecution, prior to the time the prosecution is instituted.” Again it is said, alluding to such cumulative sentences, “No case is cited where what has been done in the present case has been held to be lawful, but the uniform current of authority is to the contrary, both in England and in the United- Statesciting the case of Crepps v. Durden, supra. A number of the American cases are cited in the opinion, which it is unnecessary to repeat here. See, also, Com. v. Rolnnson, 126 Mass. 259, which is thought to be in harmony with the rule laid down in the case of Snow. In re Nielsen, 131 U. S. 176, is another case in point, and is decisive of both questions in the case. The case of People v. Gault, 104 Mich. 575, is distinguishable from this case, as it arose under a statute which provided that the transactions of each day should be a separate offense. It is, in our opinion, well settled that a prosecution upon a charge laid at a date anterior to a former indictment is, in such a case as this, barred by a conviction upon such former indictment, where the offense charged is a continuing one.

The defendant, therefore, had the right to go to the jury upon the question of fact raised by the plea in bar, and the conviction must therefore be set aside, and the respondent discharged. See People v. Jones, 48 Mich. 554. Ordered accordingly.

The other Justices concurred.


text:
    WARNES v. BRUBAKER.
    1. ¿Written Contract — Fraudulent Omission — Election of ■Remedies.
    Where part of an agreement is fraudulently omitted in reducing its terms to writing, the defrauded party may treat the cohtract as valid, and bring an action for the deceit, or may rescind the contract, and recover that with which he has parted; but he cannot maintain assumpsit as upon the original parol understanding, especially where the subject-matter is such that a verbal agreement would be void under the statute of frauds.

      2. Appeal — Assignments op Error.
    Assignments of error that are not discussed in the appellant’s brief will be treated as abandoned, notwithstanding the assertion therein that all of the assignments are relied upon.
    Error to Lenawee; Lane, J.
    Submitted November 21, 1895.
    Decided December 17, 1895.

      Assumpsit by John Warnes against David F. Brubaker upon an alleged contract for the sale of real estate. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Balsbury cG O’Medley, for appellant.

      Waits, Bean cG Smith, for appellee.

       For a similar case, see Bedier v. Fuller, 106 Mich. 342.

   Hooker, J.

The plaintiff was the owner of certain personal property, and the defendant owned certain lands in Ohio and Michigan. Negotiations to trade culminated in a writing which was signed by the parties. The following is a copy:

“Adrian, Michigan, March 14, 1892.
“Article of agreement by and between John Warnes, of Adrian, Michigan, and D. F. Brubaker, of Ashland, Ohio, as follows: Said first party hereby sells and delivers to said second party his iron-gray stallion and his two gray mares and one gray horse; one bay colt, three years old this spring; one bay colt, one year old; one pony; twelve mules; one cow; one saddle; one cart; one double set harness for gray mares. For which said second party, in consideration, sells and conveys his forty-acre farm in Osceola county, Michigan, free and clear of all incumbrance, and also the Round Head Lake property, formerly owned by said first party; also sixty-acre farm in Ashland county, south of the Pittsburgh & Ft. Wayne Railroad, and close to Loudenville, Ohio; also to be free and clear, and abstract furnished. Said first party further agrees to let second party have full possession of the sixty-acre farm for the year 1892, up to January 1, 1898; no fall crops to be put out in 1892, to lap over into 1893.
“John Warnes.
“D. F. Brubaker.
“Witness: Dr. C. M. Hettinger.”

The land was deeded and personal property transferred accordingly. The plaintiff claims that the land is not worth as. much as represented, and in this action claims the right to recover the difference between the actual value and the value represented. He offered to prove upon the trial that, during the negotiations, the defendant said that the Ohio land was worth $2,600, and the Osceola county land was worth $1,200; that all was good farming land; that he (the defendant) was good and responsible; and that he agreed that, if this land was not worth the prices named, he would make it up to the plaintiff in good money, by paying him the difference; and that when the plaintiff proposed to go to town, to have a lawyer draw the writing, the defendant induced him to allow an accomplice to draw it, who fraudulently read the writing as though it contained their stipulation as to the warranty of value and agreement to pay the difference, if any. The testimony was excluded.

The declaration is in assumpsit, alleging a contract to sell the land, and a promise to pay the difference in value, if it did not equal the representation, and the conveyance of the premises as part performance, and claims the right to recover the difference under the contract. The common counts are added. It is not contended that this is an action for damages for the deceit, but plaintiff’s counsel assert that the fraud of the defendant vitiated the writing, which was no better than a forgery, and that the transaction is left to rest on the preliminary oral arrangement, upon which they base the claim that plaintiff may show the entire consideration for the transfer of his property. The difficulty with this claim is that the oral and the written portions of the transaction are inseparable, in a sense. The negotiations were had, and they culminated in an attempt to put the conclusion in a writing, which should be the contract, by the plaintiff, at least. If that was not the contract, there was none. It may be said that the parties made orally a different contract, but this is not so, for two reasons: First, such contract would have been void under the statute of frauds; and, second, neither of them supposed the contract was made, until put in writing. Plaintiff attacks the writing on the ground that it does not contain his understanding of the bargain, and was procured by fraud, and at the same time insists that the defendant agreed upon another oral , contract, where defendant’s very fraudulent act shows that he did not intend to make such. Evidently, his mind did not meet the plaintiff’s upon the common ground of the oral arrangement, and the fact that by subtleness and fraud he made the plaintiff think so does not change the fact, or create a valid oral contract by estoppel, in the face of the statute of frauds and the writing, which conveyed to the plaintiff information that the defendant was relying upon a written contract, and not an oral one. So the plaintiff was required to either accept the written contract, and treat it as valid, or, upon discovery of the fraud, repudiate it, and offer to put the defendant in statu quo, relying upon his right of action to obtain damages for the deceit or to recover back the consideration paid, as he might choose the one or the •other horn of the dilemma. The case arising upon a written contract is not different from one growing out of a valid oral agreement. So far as the questions here involved are concerned, there is no difference between gaining a party’s assent to an oral contract through fraud and obtaining his written assent through similar means. In either case he may repudiate the contract, upon discovery of the fraud, or he may affirm the contract. This is a rule so well settled by our own decisions as not to ^require the citation of authorities. The question whether the right to sue for the fraud will be lost by accepting or retaining the goods (i. <?., affirming the contract) has been discussed, and the right sustained. It is a common practice. See Allaire v. Whitney, 1 Hill, 484, 4 Denio, 554; Carroll v. Rice, Walk. Ch. 373.

This seems to cover all points discussed in the appellant’s brief, although it is there said that reliance is placed on each assignment of error. We must, however, treat as abandoned such as do not fall within the discussion of the brief, if there are any such.

Judgment affirmed.

The other Justices concurred.


text:
    KUZNIAK v. KOZMINSKI.
    Nuisance — What Constitutes.
    A coal and wood house, erected so near the premises of another as to darken his windows, does not constitute a nuisance, although it be so located from malicious motives. Flaherty v. Moran, 81 Mich. 52, distinguished.
    Appeal from Kent; Adsit, J.
    Submitted December 3, 1895.
    Decided December 17, 1895.
    Bill by John Kuzniak against Jacob Kozminski and Frances Kozminski to abate an alleged nuisance. From a decree for complainant, defendants appeal.
    Reversed.

      James E. McBride, for complainant.

      Thompson d Temple, for defendants.
   Long, J.

The parties to this cause own adjoining lots in the city of Grand Rapids. Defendants’ lot is on the southeasterly corner of Eleventh and Muskegon streets, and upon which is a large tenement house facing both streets. The complainant owns the lot immediately south and adjoining the defendants’, and upon which he has a dwelling house facing Muskegon street, and also a tenement house about 60 feet back from Muskegon street, and within 22 inches of the north line, being the line of defendants’ lot. At the time this tenement house was erected, defendants had upon their lot what was called a “chicken shed;” and, after complainant’s tenement house was erected, defendants moved this chicken shed upon a part of their lot directly opposite complainant’s tenement house, and within 24 inches of the lot line, and converted it into a coal and wood house for the use of their tenants, who occupied the dwelling on said lot. This bill was. filed by complainant for the purpose of having this coal and wood house of defendants declared a nuisance, and to compel them to remove the same. The claim made by the bill is that the defendants removed the building to that place through spite and from a malicious motive, and not because it was needed, for any useful purpose. Defendants answered the bill, denying that they were actuated by malice in putting the building there, and averred that it was so placed for the use of their tenants for wood and coal. The testimony was taken in open court, and the court found that the building was a nuisance, and a decree was entered directing the defendants to remove the building within 60 days from the date of the decree, and that, in default of such removal, the sheriff of the county remove the same, at the cost and expense of defendants. The complainant was awarded the costs of the suit. Defendants appeal.

It was held in Flaherty v. Moran, 81 Mich. 52, that a fence erected maliciously, and with no other purpose than to shut out the light and air from a neighbor’s window, was a nuisance, and the decree of the court below ordering its removal was affirmed; but that decision was placed on the ground that the fence served no useful purpose, and was erected solely from a malicious motive. In the present case the building erected by the defendants was for a useful purpose; and, while there may have been some malice displayed in putting it so near the complainant’s house as to shut off some of the light, that would not be a sufficient reason upon which to found a right in complainant to have the building removed. Defendants had a right to erect a building upon their own premises, and the decisions have been quite uniform to the effect that the motives of a party in doing a legal act cannot form the basis upon which to found a remedy. In Allen v. Kinyon, 41 Mich. 282, it was held that the motive is of no consequence when the party does not violate the rights of another. In Hawkins v. Sanders, 45 Mich. 491, it was held that there was no right of prospect which would prevent the erection of an awning on a neighboring lot. The case does not fall within the rule of Flaherty v. Moran, supra, and the court below was in error in directing the removal' of the building. That decree must be reversed, and a decree entered here dismissing complainant’s bill, with costs of both courts to the defendants.

The other Justices concurred.