text:
    DINNAN v. BLOOMFIELD HILLS LAND CO.
    I. Vendor and Purchaser — Fraud—Waiver—Affirmation of Contract.
    In an action for the balance due on a land contract, where plaintiff, who had entered into a written contract with, defendant for the sale of certain city lots, on which he had an option, continued to deal with defendant as if the contract were valid after he discovered that a clause providing that said lots should be sold at cost plus commission had been fraudulently inserted therein by defendant’s agent, and concealed from plaintiff by said agent’s neglecting to read same when the contract was read to him,, he waived the fraud and affirmed the contract, and the court properly directed a verdict for defendant fort the amount paid in excess of cost and commission.
    2. Same — Evidence—-Two “Parts of Contract to be Read Together.
    Where the contract was conceded to have been made in two parts, the trial court was not in error in refusing to admit the first part without the second, properly holding that they should be read together, since plaintiff was not thereby prevented from showing that a certain clause in the second part was not read to him.
    3. Same — Contracts—Fixed Consideration — Cross-Examination —Values in Vicinity Immaterial.
    In said action where the defense was that the! price named was in excess of the cost, the trial court properly prevented cross-examination, of defendant’s witness as to the value of real estate in the vicinity of the lots in question, the stated object being to show whether defendant was deceived, since the parties were dealing with a contract which had a fixed consideration, and the opinion of the parties as to values after the contract was signed was immaterial.
    Error to Oakland; Covert (Frank L.), J.
    Submitted January 5, 1921.
    (Docket No. 45.)
    Decided March 30, 1921.
    Assumpsit by Patrick W. Dinnan against the Bloomfield Hills Land Company for a balance due on a sale of land. Judgment for defendant non obstante veredicto. Plaintiff brings error.
    Affirmed.

      Robert D. Heitsch, for appellant.

      Tillson & Tillson, for appellee.
   Bird, J.

These parties reside in Pontiac and both deal in real estate. Plaintiff secured an option on certain real estate on Saginaw street, described as lot No. 3 and the south 31 feet of lot No. 2, of Hammond’s addition to the city of Pontiac. The lots were owned by different parties. , After securing the option he sold them to defendant on the following agreement:

“We agree to purchase South Saginaw street frontage as per agreement with Dinnan and agree to pay therefor $9,100 as per said agreement.
“Bloomfield Hills Land Company,
“J. E. Tillson, Secretary.”

The following was made soon thereafter as a part of the agreement:

“South 31 feet of lot 2, north 10 feet of lot 3 and remainder of lot 3, Pontiac, Michigan, Hammond addition.
“Re part of lot 2: All of lot 3 as per above, Hammond addition, being 81 foot frontage, South Saginaw street, Pontiac, same width to railway as per deeds and'abstracts showing perfect title.
“Being third and fourth properties south of land owned by American Savings Bank as per description on top of sheet.
“Dinnan offers to cause above to be conveyed at purchase price to Dinnan of $8,965, plus a profit to Dinnan of commission, etc., making the sale price to Bloomfield Hills Land Company, or order, $9,100. Terms to be not to exceed $2,500 cash and balance $60.00 per month, including! interest.
(Reverse side)
“June second, 1919.
“Property on reverse side being 81 feet South Saginaw sold to Bloomfield Hills Land Company according to terms reverse side — and $50.00 received this date on consideration of $9,100, deal to be closed as soon as abstract delivered and examined not exceeding thirty days,
(Signed); “P. W. Dinnan.”

It appears to have been understood that plaintiff wasi getting a commission of $135 on the sale. A few days after this agreement was made plaintiff came to defendant and'informed him that it would have to pay more down on the property or he could not consummate the deal. He explained to defendant that he had money tied up' in the deal and that he was very desirous of releasing it and that if defendant would make a larger payment which would satisfy the parties he would reduce his commission from- $135 to $11. In pursuance of this agreement the following was indorsed on the contract:

“Pried reduced $124, purchaser to pay down to $2,000 mortgage on Gamble place and Heitsch place down to unpaid amount on contract.
“P. W. Dinnan.”

After the purchases were made defendant learned for the first time that plaintiff did not pay $4,600 for one lot, but instead paid $4,100. When defendant settled with plaintiff it refused to pay him any more than he had paid for the lots and plaintiff brought this suit to recover a claimed balance of $351. Defendant pleaded the general issue and set up its agreement with plaintiff in which it claimed that it had overpaid plaintiff in the sum of $266 by reason of plaintiff’s misrepresentation as to the purchase price. The matter was heard by a jury and a verdict rendered for plaintiff for his entire claim. Subsequently this verdict was set aside by the trial court and a judgment rendered for the defendant for the sum of $266. Plaintiff insists this was error upon the part of the trial court.

It was the claim of plaintiff on the trial, that he did not read the agreement by which he agreed to sell the property to defendant; that the agreement was drawn up by an agent of the defendant and was read to him, but that it did not contain any provisions that he should sell the lots at cost plus his commission; and if the agreement contained this provision defendant’s agent did not read it to him. He further said he was a man of limited education, but did not claim he could not read it. This contention furnished the question of fact which was submitted to the jury by the trial court. After an examination of the record we are convinced that this was the only material contested question there was in the case and we incline to the opinion that this question was one of fact for the jury unless the following occurrence made it one for the court. Plaintiff testified upon cross-examination that the first knowledge he had of this provision in the contract which required him to sell the lots at cost was when he came to get defendant to make a larger advancement upon the purchase price. At that time he testified he was acquainted with its provisions. Conceding, for the sake of the argument, that this question was one for the jury under the original agreement as to whether he understood its contents, he testified he did know of it later and with that knowledge in his possession he dealt with defendant again and persuaded it to advance more moneys on the purchase. Under these circumstances, we think plaintiff waived whatever rights he had to complain that he did not understand the agreement and that he was deceived and defrauded thereby. His act in dealing with defendant as though the contract were valid after he knew of its infirmity amounted to a waiver of the fraud and an affirimation of the contract. 39 Cyc. p. 1292; Wylie v. Gamble, 95 Mich. 564; Draft v. Hesselsweet, 194 Mich. 604; Parkyn v. Ford, 194 Mich. 184. In the face of this admission by plaintiff the trial court was justified in controlling the verdict.

In the event that this court should arrive at the conclusion which it has on this question plaintiff has assigned certain errors on the conduct of the trial which he asserts entitle him to a retrial.

(a) It is insisted that the trial court was in error in refusing to admit the first contract, Exhibit A, without admitting at the same time the balance of the contract, which was Exhibit B. Both were parts of one contract which, it was conceded were made with reference to the purchase and sale of the property. The trial court held that both exhibits be read together. We think no error was. committed in this holding. This holding did not prevent plaintiff from showing that a certain part of Exhibit B, with reference to selling the property at cost, was not read to him.

(b) Plaintiff was prevented from cross-examining defendant’s witness as to the values of real estate in the vicinity of this property. Plaintiff claims this testimony was competent to show whether defendant was deceived. We do not think the judgment of the witness on the question of values was material. The parties were dealing with a contract which had a fixed consideration, and it was of little moment what either of the parties thought on the question of values after the contract was made and signed.

We have examined the remaining assignments, but we find nothing in them which calls for a reversal of the case.

The judgment is affirmed.

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


source: Caselaw Access Project

author: Bird, J.

license: Public Domain

text:
    McGILL v. COLEMAN.
    1. Attorney and Client — Escape of Debtor — Assent of Attorney not Binding on Client.
    In an action against a judgment debtor and his sureties on the bond given for the jail limits, where the declaration counted upon an escape, the fact that plaintiff’s attorney-might have known of and assented to defendant’s going-beyond the limits would not amount to an assent upon the part of plaintiff, since an attorney has no authority by virtue of his employment to bind his client by the discharge of a debtor from arrest except on payment in full of the judgment.
    2. Appeal and Error — Attorney and Client — Harmless Error.
    "Where defendant failed to connect plaintiff with any efforts her attorney might have made in getting defendant out of the county, she was entitled to a directed verdict, and therefore defendant was not prejudiced by the submission to the jury of the question as to- whether said attorney was connected with defendant’s escape.
    3. Attorney and Client — Contingent Pee — Lien on Judgment-for Services — Discharge of Debtor.
    That plaintiff’s attorney’s compensation was to be one-half" of what he recovered, would at most give him only a lien on the judgment for his services, and would give him no-authority to discharge the debtor without payment in full, of the judgment.
    Error to Wayne; Webster (Arthur), J.
    Submitted February 1, 1921.
    (Docket No. 86.)
    Decided March 30, 1921.
    Assumpsit by Carrie McGill against Frank Coleman, principal, and Robert G. Simpson and Donaldson Craig, sureties, on a bond. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Roy Herald and Henry B. Graves, for appellants.

      Frank J. Riggs (J. M. Bennett, of counsel), for appellee.
   Bird, J.

Plaintiff recovered a judgment in the Wayne circuit court against defendant Coleman for $3,608.70, in an action of tort. The judgment was not paid and plaintiff took his body on a capias ad satisfaciendum. Soon thereafter defendant Coleman gave a bond for the jail limits,' with defendants Simpson and Craig as sureties. A few months later Coleman went beyond the limits of the county of Wayne to examine some real estate. While he was outside of the county on this mission this, suit on his bond was commenced against both him and his sureties. The declaration counted upon an escape. Upon the trial the defense was that Mr. Frank J. Riggs, the attorney who had acted for plaintiff in obtaining the judgment, had conspired with other parties to induce Coleman to go outside the county. Defendants offered no proofs. The case went to the jury and they returned a verdict for plaintiff for the full amount of her judgment.

1. It is insisted on behalf of defendant Craig that a judgment should have been directed for him in the trial court because of the activities of Riggs in getting Coleman outside the county. Without going into details it is sufficient to state that there was testimony from which the jury could have inferred that Mr. Riggs was a party to a scheme to get Mr. Coleman beyond the limits of the county.

Starting with this, counsel argue that Riggs was the agent of plaintiff, and whatever he did in connection with the affair was the act of the plaintiff and was tantamount upon her part to giving her consent that Coleman might go beyond the eonfines of the county, and that if this were true no recovery could, be had for an escape. The court was of the opinion that if Riggs, plaintiff’s attorney, “assisted or connived at or procured or induced the defendant by persuasion or artifice, to go outside of the county,” this would amount to an assent on the part of the plaintiff, and no recovery could be had.

The question as to whether plaintiff’s attorney,, Riggs, was connected with the affair was a disputed question and, therefore, was one for the jury. But we are of the opinion that the question as to whether Riggs had anything to do with the affair was an immaterial one unless plaintiff was connected with it in some way. She testified, and it was not disputed, that she knew nothing about the affair and that she had never authorized Mr. Riggs, or any one else, to arrange to get Coleman outside of the county. If this were true, and we assume it was because it is not questioned, we are of the opinion that whatever Riggs did in connection with getting Coleman beyond the limits of the county would not bind plaintiff. Hahn v. Loker, 229 Mass. 368 (118 N. E. 661, L. R. A. 1918D, 807); Simonton v. Barrell, 21 Wend. (N. Y.) 362; Kellogg v. Gilbert, 10 Johns. (N. Y.) 220 (6 Am. Dec. 335); Jackson v. Bartlett, 8 Johns. (N. Y.) 361; Crary v. Turner, 6 Johns. (N. Y.) 51.

See, also, Hall v. Presnell, 157 N. C. 290 (72 S. E. 985, 39 L. R. A. [N. S.] 62, Ann. Cas, 1913B, 1293).

The case of Hahn v. Loker, supra, was a case wherein a like question was determined and it was said:

“Notwithstanding the broad discretionary power vested generally in an attorney in behalf of his client, to do whatever is reasonably necessary to obtain judgment and to collect it afterwards, he cannot, by virtue of his employment, acknowledge satisfaction of a judgment except by payment in full. Lewis v. Gamage, 1 Pick. (Mass.) 347; Shores v. Caswell, 13 Metc. (Mass.) 413; Brown v. Kendall, 8 Allen (Mass.), 209; Shattuck v. Bill, 142 Mass. 56 (7 N. E. 39). Nor has an attorney authority to bind his client by the discharge of a debtor from arrest except on payment in full of the judgment. Brown v. Kendall, supra; Simonton v. Barrell, supra; Kellogg v, Gilbert, supra; Hall v. Presnell, supra; Pomeroy v. Prescott, 106 Me. 401 (76 Atl. 898, 21 Ann. Cas. 574).”

In the earlier case of Simonton v. Barrell, supra, the same question was involved as here, and the court said in part:

“There is no doubt that,, at common law, the judgment would have been extinguished by the consent of the plaintiff, on whatever terms, to discharge the defendant from this arrest. But it is equally well settled that the attorney for the plaintiff has no power to allow a discharge -in virtue of his general authority, without the actual payment of the money. Kellogg v. Gilbert, supra.”

There being no testimony upon which a conclusion could be reached by the jury that the plaintiff had any knowledge of the acts of Riggs in connection with the affair, there was, under the cases cited, no question in the case for the jury. The trial court was of the opinion that if Riggs was engaged in the scheme to get Coleman outside of the county, it would bind plaintiff, and the question was submitted to the jury. They evidently by their verdict found that Riggs was not connected with his going. This submission to the jury and their findings did not change the situation. When the defendant failed to connect the plaintiff with any efforts made by Riggs in getting Coleman out of the county the testimony concerning the activity of Riggs should have been stricken from the case as immaterial. As the result reached by the verdict of the jury was essentially what the trial court should have directed, we can see no prejudicial error in submitting the question to the jury.

2. It appeared on the trial that Riggs’ compensation as attorney was measured by one-half of what he recovered. It is argued that this arrangement made him at least an equitable owner of one-half ' of the judgment and took the case out of the foregoing rule. We are not of the opinion that this would change the rule to be applied. There was no proof that Riggs owned the judgment or any part of it. It belonged to the plaintiff and she had the title thereto. The most that can be said is that Riggs had a lien on the judgment for his services. Inasmuch as the judgment belonged to plaintiff and no testimony was offered that she knew of or encouraged any effort to get Coleman outside the county, the testimony of her arrangement with Riggs concerning his compensation was immaterial. But even if it could be said that Riggs had the legal title to one-half of the judgment, the jury determined that he took no part in getting Coleman beyond the limits of the county, so in either event the question is foreclosed.

We think the conclusion reached was the proper one and the judgment will be affirmed.

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


text:
    MIKESELL v. WADE.
    1. Landlord and Tenant — Leases—Ambiguity—Construction by Parties Controlling.
    Where an. ambiguity existed in a written lease, the granting clause conveying the premises for two years, and in the next paragraph the lessee agreeing to lease for one year, the conduct of the parties in treating the lease as one for two years is conclusive.
    2. Same — Holding Over — Consent of Landlord Necessary to Renewal.
    The lessee’s holding over at the expiration of his lease would not effect a renewal thereof constituting him a tenant from year to year, and entitling him to three months’ notice to quit before summary proceedings could be brought by the landlord to recover possession, in the absence of some act upon the part of the landlord indicating that he intended the lease should continue.
    3. Same — Summary Proceedings — Appeal—Judgment Against Sureties on Appeal Bond Proper.
    On appeal by defendant lessee from the commissioner’s judgment of restitution in summary proceedings, it was proper for the circuit judge, under 3 Comp. Laws 1915, §§ 12794, 12795, on finding for the plaintiff, to render judgment against the sureties on the appeal bond as well as against defendant, for the amount due for rent after the termination of the lease.
    Error to Grand Traverse; Mayne (Frederick W.), J.
    Submitted January 6, 1921.
    (Docket No. 63.)
    Decided March 30, 1921.
    Summary proceedings by Lun F. Mikesell against John A. Wade for the possession of leased premises. There was judgment of restitution before the commissioner, and defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      J. J. Tweddle, for appellant.

      Parm C. Gilbert, for appellee.
   Bird, J.

Plaintiff leased to defendant “the front rooms on the second floor in the brick block situated at 219 Bast Front street, Traverse City, for the term of two years from and after the 25th day of June, 1917,” etc. In the next paragraph of the lease, wherein defendant agrees to lease the premises, it reads: “And the said party of the second part does hereby lease the said premises for the term of one year,” etc. Defendant went into possession under this lease and occupied the premises for two years, when plaintiff served a' notice on him to quit. He did not vacate the premises, and plaintiff brought summary proceedings to eject him. The commissioner held defendant’s term under the lease had expired and rendered judgment of restitution in behalf of plaintiff. Upon appeal the case was tried before the court without a jury, and the same conclusion was reached. Defendant has brought the case to this court for review.

Defendant’s counsel contends that the summary proceedings were prematurely begun because defendant was entitled to a three months’ notice to quit, which it is conceded he did not have. His reasoning is that plaintiff leased the premises for one year and was permitted to hold over another year, and that he had entered on the third year and that this would entitle him to a three months’ notice to quit because he had become a tenant from year to year.

1. The real differences of the parties arise over an ambiguity in the lease. It will be noted that the granting clause of the lease conveys the premises for two years. In the next paragraph defendant agrees to lease them for one¡ year. This ambiguity as to time in the lease was explained by both parties without objection. Plaintiff testified that the lease was originally made for one year. Defendant desired it for five years, but he would not consent to this. Finally he did agree, to two years and the lease was changed in one place, but not in the other. Defendant does not disagree ( in any important particular with plaintiff’s version of. it. He testified: ¡

“The understanding was that the lease was to be for five years, but when I went down there to get it, it was made out for two years. The lease was made out seemingly for two years, part of it, and part of it for one year.”

It will be seen from this that the parties were practically in accord as to how the ambiguity occurred, in the lease. They both, however, understood it was-a lease for two years and both treated it as such. At-the conclusion of that timé it was the duty. of defendant to vacate the premises. His failure to do soon June 25, 1919, fully justified these proceedings andl the conclusions reached therein. He was not entitled to a notice to quit. Smith v. Smith, 144 Mich. 139. Before there could be any renewal of the lease under defendant’s theory it was not enough that he held over into the third year for a time, but there must be some act upon the part of the landlord which would indicate that he intended the lease should continue. Faraci v. Fassulo, 212 Mich. 216.

2. Objection is taken because judgment was rendered against defendant sureties on the appeal bond as well as himself. A judgment of $60 for rent was rendered for the time which elapsed from the termination of the lease up to the time the matter was determined in the circuit court. We are impressed that this was justified by 3 Comp. Laws 1915, §§ 12794, 12795.

The judgment of the trial court is affirmed.

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


text:
    YEOMAN v. MUSKEGON TRACTION & LIGHTING CO.
    1. Negligence — Pleading—Duty Created by Ordinance Must be Pleaded — Franchises.
    A mere common-law declaration in an action for negligence will not support proof of a duty created by an ordinance unless pleaded, and whether the ordinance is a part of defendant’s franchise or not is immaterial.
    2. Street Railways — Pleading—Negligence—Excessive Speed— Ordinances — Franchises—Evidence—Admissibility.
    In an action against a street railway company, where the declaration counted upon the excessive speed at which defendant’s car was operated when it collided with plaintiff’s automobile causing the damages sought to be recovered, but not pleading the city ordinance limiting to 12 miles an hour the rate of speed at which street cars should run in said city, it was not admissible in evidence although it is a part of defendant’s franchise.
    Error to Muskegon; Vanderwerp (John), J.
    Submitted January 14, 1921.
    (Docket No. 77.)
    Decided March 31, 1921.
    Case by Edgar L. Yeoman against the Muskegon Traction. & Lighting Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Cross, Foote & Sessions, for appellant.

      Willard J. Turner, for appellee.
   Bird, J.

Plaintiff was an employee of the Linderman Steel & Machine Company in Muskegon. On the evening of December 12, 1918, after leaving his work, he went outside, cranked his automobile and backed it onto defendant’s’ track, where it stalled and was run into by one of defendant’s interurban cars. The automobile was damaged and plaintiff was injured. Defendant being unwilling to compensate him he brought this suit. The declaration counted upon the negligence of defendant because of the excessive speed at which the ear was being operated and because the motorman failed to give warning of its approach. The trial resulted in a verdict for plaintiff of $8,000. Application was made for a new trial assigning numerous reasons. After considering them the trial court concluded that the verdict was excessive, but gave plaintiff the privilege of remitting $1,850, which was complied with in writing. The motion was then overruled. Defendant, being unwilling to pay this amount, has assigned error.

The error most complained of was the admission in evidence of an ordinance of the city of Muskegon, limiting the speed of defendant’s cars to 12 miles an hour. This was objected to by defendant on the ground that it was not pleaded. Considerable controversy ensued between counsel and between the court and counsel, after which the ordinance was admitted and read to the jury. It is argued by defendant that this was clearly in violation of the rule laid down in the following cases: Richter v. Harper, 95 Mich. 221; Gardner v. Railway Co., 99 Mich. 182; Granader v. Railway, 206 Mich. 367.

In the last case cited it was said:

“It was held in Richter v. Harper, 95 Mich. 221, that a city ordinance to be available in establishing the negligence of the defendant must be pleaded. In Gardner v. Railway Co., 99 Mich. 182, the rule was approved and the reason therefor stated to be that a common-law declaration will not support proof of a duty created by an ordinance, unless defendant is given notice thereof. This rule has since been adhered to by this court in many cases, although we have held that an ordinance, not pleaded, was admissible in evidence when offered solely for the purpose of affecting the question of plaintiffs negligence. Putnam v. Railway, 164 Mich. 342; Millette v. Railway, 186 Mich. 634.”

As indicating the use which was made of the ordinance by the trial court the following paragraph from his charge will show:

“It is also claimed by the plaintiff, and the ordinance of this city offered in evidence shows, that it was the duty of the defendant’s motorman to not drive street cars in this city at a rate of speed exceeding 12 miles per hour, and it is claimed by the plaintiff that this street car was at the time in question being driven at a speed considerably in excess of 12 miles an hour as provided by this ordinance. Now, gentlemen, I charge you that the fact that this street car was driven at a speed exceeding 12 miles an hour, if you find that to be a fact, does not of itself show that the motorman in so driving the street car was guilty of negligence, but it is á fact and the ordinance is a thing that you should take into consideration together with all the other evidence in the case and the circumstances surrounding this occurrence in determining whether or not the defendant’s motorman. was negligent.”

Plaintiff’s counsel contended in the trial court, and also in this court, that these cases did not apply because the ordinance in this instance was a part of the franchise under which defendant operated its cars in the city of Muskegon. We are unable to perceive any force in this distinction. The reason which supports the rule is that a mere common-law declaration will not support proof of a duty created by an ordinance unless pleaded. Whether the ordinance is a part of the franchise, or whether it stands by itself, it seems to us to make very little difference. In either event the effect is. the same. The situation in this case was very much as it was in Granader v. Railway, supra. There the principal contention was over the question of excessive speed. The same question was involved here. There was some testimony that the car was running as high as 30 miles an hour. The introduction of this ordinance providing that defendant should not exceed 12 miles an hour in the operation of its cars must have had its effect oh the jury.

We are of the opinion that the rule stated in the. cases cited is applicable to the present one, and that the trial court was in error in permitting the ordinance to come in upon the question of defendant’s negligence without being pleaded.

It will be unnecessary to consider the remaining assignments. .

The judgment is reversed and a new trial ordered. Defendant will recover its costs in this court.

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

The late Justice Brooke took no part in this decisión.


author: Sharpe, J. Fellows, J.

text:
    THOMAS v. BOARD OF SUPERVISORS OF WAYNE COUNTY.
    1. Records — Evidence—Tract Index — Alphabetical Index — Neicessity — Statutes.
    In a suit by taxpayers to test the right or power of a county to establish and maintain a tract index and to make and furnish abstracts of title to land in said county, evidence held, to show a necessity for a tract index as authorized by Act No. 79, Laws 1841 (3 Comp. Laws 1915, §§ 11789, 11790), as well as an alphabetical or grantor and grantee index, the keeping of which was made mandatory by section 28, chap. 65; Rev. Stat. 1846 (3 Comp. Laws 1915, § 11720).
    2. Same — Statutes—Construction—Limitations.
    The act of 1841, granting broad powers to boards of supervisors to take action whenever in their judgment they should deem it advisable to do so, to make and maintain a tract index cannot be assumed to have been intended to be limited to the relief of conditions then existing, but, never having been repealed, is now in full force and effect.
    3. Same — Statute Providing for Tract Index Not Repealed.
    The act of 1841 not having been expressly repealed by section 28, chap. 65, Rev. Stat. 1846, and being in no way repugnant thereto, held, to be still in full force and effect.
    4. Evidence — Judicial Notice — Abstracts Copies of Public Records.
    The court will take judicial notice that in many counties the abstracts prepared by private abstracters are made out on a form similar to that of a county tract index, which describes the land, the names of grantor and grantee, kind of instrument, consideration, date of instrument, date of record, book and page of record and whether there is a building restriction, with an additional column for remarks, so that an abstract is simply a copy or duplicate of the tract index page or pages.
    5. Records — Certified Copies of Public Records May be Secured —Abstracts.
    The tract index as prepared by the county, being a public record, a certified copy of any page or pages thereof may be procured by paying therefor, and where incomplete, in not affording full information as to special provisions in the instruments recorded, certified copies of such instruments may also he procured, and thus an examiner would have the same information as would he contained in the completed abstract which the county proposes! to furnish.

      On right of taxpayer, in absence of statute, to enjoin unlawful expenditures by municipality, see note in 36 L. R. A. (N. S.) 1.

      6. Counties — Furnishing Copies op Public Record a Local Concern — Abstracts.
    The furnishing by the county of such information as is contained in its tract index and instruments of public record, being purely a matter of local concern, in which neither the State as a whole nor any person other than a taxpayer of the county has any interest, the hoard of supervisors may lawfully provide for furnishing such information in the form of a certified abstract.
    7. Same — Furnishing Copies op Records Not “Engaging in Business” — Abstracts.
    In furnishing abstracts as proposed, the county will not be “engaging in a business,” as that expression is used in commercial transactions, hut will be merely furnishing certified copies of its public records in form suitable and convenient for examination, and will he extending its service to the public by giving to landowners of the county the benefit and advantage of the large sums of money already lawfully expended in the preparation of the tract index.
    8. Same — Furnishing Abstracts Not Inhibited by Constitution or Statute.
    When action is taken by a State or one of its municipal subdivisions, manifestly in the interest of its people as a whole, and the rights of individuals are not abridged thereby, and such action is not within the inhibition of some constitutional or statutory provision, it should be upheld as a valid exercise of authority, though lacking in any positive grant of power to support it, hence a county may, by ordinance, provide for furnishing abstracts of title.
    9. Same — Constitutional and Statutory Duties op Register op Deeds May Not be Transferred.
    In view of the constitutional provisions (Art. 8, § 3) for the election of a register of deeds, and the general law prescribing his powers and duties (1 Comp. Laws 1915, § 2472 et seq., and 3 Comp. Laws 1915, § 11711 et seq.) and especially Act No. 79, Laws 1841, authorizing the preparation and maintenance of a tract index by the register of deeds, the provisions of an ordinance of the county of Wayne attempting to create a tract index department and conferring upon the superintendent thereof powers and duties by law prescribed as part of the powers and duties of the register of deeds, must be/ held to be void if said superintendent is a person other than the register of deeds or a deputy appointed by him,
    10. Same — Right of Taxpayers to Question Varidity of Ordb nance Providing for Payment of Money.
    Plaintiffs, as taxpayers of a county, have a right to question the validity of an ordinance providing for the furnishing of abstracts of title since in the payment , of salaries to officers and clerks it must be assumed that they as taxpayers will be damaged.
    Fellows, J., dissenting.
    Appeal from Wayne; Webster (Arthur) and Codd (George P.), JJ.
    Submitted January 5, 1921.
    Docket No. 38.)
    Decided April 6, 1921.
    Bill by (William S. Thomas and others against the board of supervisors of Wayne county and others to enjoin the maintenance of a tract index and the furnishing of abstracts of title to land. From the decree rendered, all parties appeal.
    Modified and affirmed.

      Beaumont, Smith & Harris, for plaintiffs.

      Matthew H. Bishop and Paul W. Voorhies, Prosecuting Attorneys (Thomas G. Long and William L. Carpenter, of counsel), for defendants.
   Sharpe, J.

This suit is brought by the plaintiffs, who are taxpayers of the county of Wayne, to test the right or power of the county to establish and maintain a tract index and to make and furnish abstracts of title to lands in that county. On September 18, 1913, a petition was presented to the board of county auditors by certain real estate dealers and brokers, requesting that a complete abstracter’s tract index of the lands in the county be compiled and placed in the office of the register of deeds for use of the county officials and the general public. It was represented in the petition that there were but two corporations in the county engaged in the furnishing of .abstracts of title and that the demands therefor were so great that much delay and consequent inconvenience to the public resulted therefrom. This petition was presented by the county auditors, to the board of supervisors at its next session. The matter was referred to a committee of the board, who reported, recommending that the county auditors begin at once “the compiling and installing of an abstracter’s tract index or geographical index in the register of deeds’ office, with full supervision of the plans and work for said index.” This report was adopted and an appropriation of $35,000 made to begin such work. Reports of progress were made to the supervisors from time to time and additional appropriations made. At the hearing in the trial court it appeared that about $400,000 had been expended in the furtherance of the work.

On October 28, 1919, the board of supervisors adopted an ordinance entitled:

“An ordinance to establish a department of the county government of the county of Wayne, to be known as the Wayne county tract index department, to provide a penalty for a violation of- the provisions thereof, and to repeal all ordinances or parts of ordinances in conflict herewith.”

This ordinance contains 15 sections and provides with somewhat minute details for the accomplishment of the purpose outlined in its title. The purpose of the index was stated in section 7 to be:

“It being the intent and purpose of this ordinance to have such Tract index’ contain a full and complete history of the title to every piece, parcel, tract or subdivision of land lying and being within the county of Wayne, and to continue and perpetuate such history.”

Section 8 makes it the duty of the superintendent of such department to furnish any person upon request an abstract of title to any land in the county and to attach thereto a certificate to the effect that every instrument recorded or filed in the office of the register of deeds affecting the title to such land has been entered therein. Section 9 provides that the superintendent, under the regulation of the board of county auditors, shall fix the price to be paid for all abstracts furnished by the department and may also prescribe a schedule of fees for searches and certificates where no complete abstract is made, all moneys received by him to be paid by him, daily, into the county treasury.

Soon after the adoption of such ordinance, and on February 25, 1920, the plaintiffs filed the bill of complaint herein, praying that the board of supervisors, the board of county auditors, and the county treasurer, who are made defendants, be restrained from continuing such work and from appropriating or paying out any of the moneys of the county in furtherance thereof. The defendants, answering, while admitting in substance the averments in the bill as to the work done, allege that the purpose of the action of the board of supervisors in- establishing the tract index was “based upon considerations arising from the convenience and necessities of the public” in quickly ascertaining the title to lands in the county and “the utility of such index in and of itself to the people of the county of Wayne,” and that the adoption of the ordinance, with the provisions therein contained relative to furnishing abstracts of title,—

“was wholly based upon practical considerations arising from existing conditions, there being but two (2) sources, of procuring abstracts in the county, the long wait to which all persons were subjected after giving an order, before it was filled, and the large cost and expense to every person of procuring such service from one of such abstract companies,”

and that—

“The furnishing of abstracts is but the furnishing of certified copies of excerpts from the public records, a service which has been performed by public officers, from time immemorial.”

A hearing was had at which much testimony was; taken and a decree made by the trial court in which, the power of the board of supervisors to install the. tract index as prepared was upheld but the authority to provide for the furnishing of abstracts was denied-From this decree all parties appeal.

Tract Index. In the early years of government in this country, but little attention was. paid to real estate titles. The grantee received from the grantor a- warranty deed of the premises conveyed. This was usually accompanied by the muniments of title held by the grantor, consisting of the original conveyances in the chain of title and discharges of any mortgages, liens or levies which had been placed thereon. While the law in the several States and Territories early provided for the recording of all matters affecting the title, such records were but little consulted. The transfers were infrequent and in most cases possession had been held for a sufficient length of time to ripen into a title. But, as the country developed and commercial activity increased, the transfers became more frequent, and with the increase in values conflicting .claims of title became not infrequent and the rights under them were in many cases dependent upon an accumulation of evidences of title, which required a careful examination and a considerable degree of skill on the, part of the examiner to arrange and classify as well as to interpret and adjust. It became no longer practical, in most cases, to determine the nature of a title by an inspection of the original documents and recourse must perforce be had to the public records, which were given the same probative force and effect as the original documents copied therein.

The necessity of providing a means by which an effective search of such records might be had gave rise to the enactment of laws in 1841, and, later, in 1846, the former being permissive and the latter .mandatory. They read as follows':

Act No. 79, Laws of 1841 (3 Comp. Laws 1915, §§ 11789, 11790):

“Section 1. Be it enacted by the senate and house of representatives of the State of Michigan, That the county commissioners of the respective counties of this State be, and they are hereby authorized, if, in the opinion of the commissioners, they shall deem it necessary, to cause the registers of their respective counties to prepare a general index to all books in their offices, used for the. purpose of recording deeds, mortgages, and other instruments, in order that the records containing the title of lands may the more easily be preserved, and a search of said records, to ascertain such title facilitated; and the said registers shall receive for their compensation such sum as the county commissioners may deem just and right.
“Section 2. That no compensation shall be allowed for indexing in the general index, deeds, mortgages, and other instruments, that shall be left for record, after the general index books shall be furnished to the registers of the respective counties, or when said books may have been already furnished, and the registers are hereby required, without charge, to index all such deeds, mortgages and other instruments, in said general index.”

Section 28 of chapter 65, Revised Statutes of 1846 (3 Comp. Laws 1915, § 11720):

“Every register of deeds shall also keep, a proper general index to each of the sets of books, in which he shall enter, alphabetically, the name of every party to each and every instrument recorded by him, with & reference to the book and page where the same is recorded.” * * * .

The alphabetical index proved serviceable. It was referred to in Edwards v. McKernan, 55 Mich. 520 (decided in 1885), as affording “ready means of information to purchasers investigating the title to land.” But, as the records increased in volume, this index proved inadequate to satisfy the demand for accurate information, and in many of the counties the index provided for in the law of 1841 was installed and has since been maintained. It is spoken of as a tract index, geographical index, sectional index, and abstract book. The only substantial difference between it and the alphabetical index is that in the former the documents as recorded are minuted in columns on pages, the caption of which contains the particular description of the land conveyed, and in the latter under the surname of the grantor and grantee. While substantially the same facts appear in the alphabetical index, the greater convenience, for the purposes of search, of having the information listed in a record, each page of which is, devoted to a particular tract or section, is apparent. The importance of the tract index in the preparation of an abstract of title and its practical value when kept up by the county is thus stated by Mr. Warvelle:

“No perfect abstract can be compiled without the assistance of a carefully prepared tract index * * * and should the county records be supplemented with this indispensable adjunct, the searcher will have less difficulty and experience more satisfactory results.” Warvelle on Abstracts (4th Ed.), § 67.

The proofs show that the alphabetical, or grantor and grantee, index, as it is sometimes called, is of little assistance at the present time in the search of records in the county of Wayne. This county has now a population of about 1,250,000, and the valuation of its property, as fixed by the State board of equalization for the year 1919, was $1,589,800,000; more than 35 per cent, of the valuation of the entire State. The area of the county is 630 square miles, of which more than 78 are in the city of Detroit. There are in the entire county about 5,700 subdivisions which have been platted, consisting of upwards of 500,000 lots. There were 91,298 instruments recorded from December, 1918, to November, 1919. Mr. Burton, one of the plaintiffs, estimated that such transfers in the city of Detroit exceeded those in any other city in this country, with the possible exception of Chicago.

These figures clearly demonstrate the necessity of some means of determining titles other than that afforded by the alphabetical index. If the people of the county may not provide other means, it remains that they are at the mercy of those owning private indexes' to afford them the information necessary to complete a transfer of real estate.

Mindful of these considerations, let us now examine the act of 1841, under which the board of supervisors defends its action. This law has appeared in our statutes for 80 years and many counties, acting under. the power therein conferred, have maintained a “general index” similar in all essentials to that now being prepared in the county of Wayne. It is our duty to ascertain the meaning of and to give full force and effect to the statute. We must not overlook the purpose of its enactment. The intention of the legislature, clearly expressed in the act, was to permit such an index to be prepared and maintained—

“in order that the records containing the title of lands may the more easily be preserved, and a search of said records, to ascertain such title facilitated.”

The tract index is designed to accomplish this purpose and a reading of the record clearly demonstrates the utility of the work in this respect. It is a “general index” to all books in the office used for the purpose of recording instruments relating to the title to real estate. Calling it a set of abstract books is but seeking to confuse the mind. The name has no significance. By it the purpose of the act is fulfilled in every particular. We can conceive of but two ways in which an index to the title to lands may be prepared. One of these is the alphabetical index provided for in the act of 1846, the other an index in which the instruments recorded shall be noted under a caption for each particular tract of land. If the act of 1841 does not authorize the preparation of a tract index, we can see no reason why the mandatory act of 1846 was enacted. Presumably, the legislature was aware that in many counties the tract index was not being maintained and in its wisdom it made provision that an alphabetical index must be kept up. It is urged that this act was passed in view of the conditions then existing, due to the transfer of the records from one office- to another. If we concede that such conditions impelled the legislature to act, we have no right to assume that a statute granting power in broad and general terms was intended to be limited in its application to the relief of such conditions. It is permissive only. It grants authority to the commissioners, now the boards of supervisors, to take action whenever, in their judgment, they shall deem it advisable to do so. If such action could have been taken immediately upon the act taking effect, as was. done in several counties, it may be taken at any time a board of supervisors so determines.

The owners of lands in Wayne county have expended large sums of money in recording the conveyances affecting their titles. While a statement of the fees paid therefor in any one year does, not appear in the record, if we assume an average of 75 cents (that usually charged for a short form warranty deed) for each document recorded in the year 1919, it amounts to more than $68,000. The purpose of this large expenditure is to secure safety for their muniments of title. The people of the county, through its representatives, the board of supervisors, now propose by means of this tract index to make these records available to those interested in ascertaining the condition of the title to any particular description. The cost of keeping it up will be comparatively trifling. A clerk, with the instrument before him, will in a few minutes enter the facts contained in it in the blank spaces provided therefor on the page of the index. Where a will, court order, contract or conveyance containing special provisions is recorded, more time will be required, but the charge for recording will more than compensate for this service and no hardship be imposed on a register of deeds if paid by the fees for recording instead of by a salary.

Counsel for plaintiffs insist that the law of 1841 was repealed by that of 1846. This act has been included in every compilation of the statutes since that time and appears in the Compiled Laws of 1915 as sections 11789 and 11790. As has been stated, a considerable number of counties have authorized and continued action thereunder. It may also be noted that Judge Cooley in his preface to the Compiled Laws of 1857 states, in effect, that this and other acts enacted prior to 1846 were included therein because not repealed by the Revised Statutes of 1846. We feel constrained to hold that the act of 1841, not having been expressly repealed and being in no way repugnant to the provision in the law of 1846 providing for an alphabetical index, is still in full force and effect, and that it confers the power now being exercised by the board of supervisors in preparing and maintaining the tract index.

Abstracts. The tract index, as prepared in Wayne county, under appropriate headings, gives the following information as to each conveyance under a caption in which the particular parcel of land is described: Name of grantor, name of grantee, kind of instrument, consideration, date of instrument, date of its record, liber and page on which recorded, whether or not there is a building restriction, with an additional column for remarks. Unless there be some special provision in the instrument recorded, a copy of such entry would in itself make a complete abstract of the document. We may take judicial notice that in many counties the abstracts prepared by private abstracted are made out on such a form and in the column for remarks all unusual provisions and omissions or defects in execution are inserted, the abstract being simply a copy or duplicate of the tract index page or pages. The writer of this opinion has seen abstracts which were but a photographic copy of such pages. In other counties, the abstracts consist of a series of pages in which the facts noted on the tract index are set out, thus forming a condensed history of the title to the land. There is nothing, however, which will appear upon such an abstract that is not copied from the records of the county. The tract index as prepared is a public record. A certified copy of any page or pages of it may be procured by paying therefor. Where it is incomplete, in not affording full information as to special provisions in the instruments recorded, a certified copy of such instruments may also be procured. The examiner of titles would, by procuring these, have the same information as is contained in the completed abstract, which the county proposes to furnish. For the convenience of the owners, and prospective purchasers of lands in the county, May not the board of supervisors, provide for furnishing the information desired as to these special matters? It is purely a matter of local concern. Neither the State as a whole nor any person other than a taxpayer of Wayne county has any interest in the matter. The county having lawfully expended a large sum in the preparation of the tract index, May it not provide for giving its people the benefit of such expenditure by furnishing them the information desired in the form proposed? We so conclude. The recording of documents and the preparation and keeping up- of the tract index were provided for as a service to the people. To meet the present demand, that service may now be extended to give the landowners of the county the full benefit and advantage of the moneys expended. In furnishing abstracts as proposed, the county will not be “engaging in a business” as that expression is used in commercial transactions. In that it will thereby serve the public it may be called a public utility, but the work proposed is merely the furnishing of certified copies of the public records in a form suitable and convenient for examination by those interested in them.

Counsel for the plaintiffs urge that Traverse City v. Railroad Commission, 202 Mich. 575, City of Kalamazoo v. Titus, 208 Mich. 252, and Clements v. McCabe, 210 Mich. 207, are controlling as to the right of the county to furnish abstracts. The two former involved the power of the cities to fix the rates for service of public utilities, and it was held that no such power had been delegated by the legislature in express terms. The latter, the zoning case, involved an exercise of police power by the city. Such power, independent of the Constitution, is lodged in the legislature. It was held, that a delegation thereof to the city must be specific in its terms and was not included in a constitutional provision conferring upon cities a greater degree of self-government nor in an act of the legislature, general in its terms, adopted pursuant thereto. In all three, the property rights of others were involved. The power sought to be- exercised was not of a local legislative or administrative character, but affected rights dependent upon legislative action and control. The distinction is apparent. The reasoning of this court in Andrews v. City of South Haven, 187 Mich. 294 (L. R. A. 1916A, 908, Ann. Cas. 1918B, 100), is more applicable. It was there held that under the power conferred on a board of public works of a city to construct, manage, supervise and control an electric lighting plant it might keep on hand a stock of electrical fixtures and accessories and sell the same to the citizens.

We are of the opinion that there is no legal impediment to prevent the county of- Wayne furnishing abstracts of title to the landowners of the county. The conclusion we have reached is but in accord with the trend of modern thought and judicial decision. When action is taken by a State or one of its municipal subdivisions, manifestly in the interest of its people as a whole, and the rights of individuals are not abridged thereby, and such action is not within the inhibition of some constitutional or statutory -provision, it should be upheld as a valid exercise of authority, though lacking in any positive grant of power to support it. One of the purposes of a government such as ours is to promote the public welfare. The power to act, in doing so, is not confined to the suppression of what is harmful. It extends, to- providing appropriate facilities for making available to the public need all of the property and agencies, of the government, whether National, State or municipal.

Tract Index Department. Having concluded that the action of the board of supervisors, in causing the tract index to be compiled and in providing for the furnishing of abstracts of title, is warranted, May it continue such work under the plan provided therefor in the ordinance? We have heretofore referred to some of its provisions. It is set forth in full in the margin.

In considering the validity of this ordinance it must be borne in mind that the authority to compile the tract index rests on the power conferred by the act of 1841. Under it the boards of supervisors were empowered “to cause the registers of their respective counties” to prepare the index. When completed, it became the duty of the register to enter thereon all instruments thereafter recorded without charge. The present Constitution (Art. 8, § 3) provides for the election biennially of a register of deeds in each organized county, “whose duties and powers shall be prescribed by law.”

While under the general law the compensation of registers of deeds is in the way of prescribed fees, Act No. 381, Local Acts of 1879, provides for an annual salary to be fixed by the board of county auditors of the county of Wayne. -The fees prescribed are to be collected and turned into the county treasury. Section 8 of this act authorizes the county auditors to prescribe the number of deputies or clerks to be employed and to fix their compensation. These are, however, to be appointed by the register of deeds. The duties of the register as prescribed by law will be found in the general law relating to county officers (1 Comp. Laws 1915, § 2472 et seq.) and in the recording laws (3 Comp. Laws 1915, § 11711 et seq.). Section 7 of article 8 of the Constitution provides for a board of supervisors in each county, “with such powers as shall be prescribed by law.” Under section 8—

“The legislature may by general law confer upon the boards of supervisors of the several counties such powers of a local, legislative and administrative character, not inconsistent with the provisions of this Constitution, as it may deem proper.”

Under the authority thus conferred, the legislature enlarged the power of boards of supervisors by authorizing them

“to pass such laws, regulations and ordinances relating to purely county affairs as they may see fit, but which shall not be opposed to the general laws of this State.” * * * 1 Comp. Laws 1915, § 2274.

We feel constrained to hold that the ordinance in question was. not authorized by the enlarged power granted under this section. It empowers the board of county auditors and the superintendent therein provided for to perfom duties imposed on the register of deeds by the general law relating to that office. It, in effect, creates a new county office and is not a mere employment of the superintendent to perform duties which the board of supervisors have the power to provide for. The last section assumes to place the title to the tract index in the Wayne county tract index department. Clearly, the board of supervisors had no power to so provide. There is no express grant of the authority therein exercised ill the statute, and we are unable to conclude that such power is impliedly granted or is incidental to that which is expressly coinferred. In view of the length of this opinion and the fact that the provisions of the ordinance can be easily changed so as to make the duties of the superintendent those of the register of deeds or a deputy appointed by him, we refrain from discussing this question at greater length.

We have not overlooked the claim of the defendants that the plaintiffs as taxpayers of the county have no right to question the validity of the ordinance in this proceeding. Their counsel insist that—

“They are not aggrieved by the circumstance that abstracts are made and furnished in this manner. * * * This is a question which can only be raised by the proper public authorities.”

They rely on Miller v. Grandy, 13 Mich. 540; Steffes v. Moran, 68 Mich. 291; Sweet v. Smith, 153 Mich. 674; Home Telephone Co. v. Railroad Commission, 174 Mich. 219; and Board of Education v. Gilleland, 191 Mich. 276 (L. R. A. 1916E, 468), to support this claim. We think these cases may be distinguished and that the facts here presented are ruled by Curtenius v. Hoyt, 37 Mich. 583; Callam v. City of Saginaw, 50 Mich. 7; Putnam v. City of Grand Rapids, 58 Mich. 416; Savidge v. Village of Spring Lake, 112 Mich. 91, and Bates v. City of Hastings, 145 Mich. 574. In the Curtenius Case, Mr. Justice Graves, after reviewing the authorities, apparently in conflict, said:

“The conclusion reached is that ‘the decided preponderance of authority is in support of the right of the taxpayers to file bills on their own behalf in such cases.’ ”

In the Savidge Case, Mr. Justice Grant, speaking for the court, said:

“It is well settled in this State’ that a taxpayer in' the situation of the complainant is entitled to maintain a suit to restrain the illegal action of a municipality in the expenditure of money.”

The ordinance provides for the payment of salaries to the holder of an office created by it and deputies, assistants and clerks to be appointed by him. We must assume that plaintiffs- as taxpayers will be damaged thereby. .

The decree rendered will be modified to conform to-this opinion, and, as thus modified, affirmed. No costs will be allowed.

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

The late Justice Brooke took no part in this decision..

Fellows, J.

(dissenting). Counties are organized for governmental purposes only. I do not regard it as one of the functions of these county governments under the present state of the law to engage in the business of selling abstracts. At least counties should not engage in such business unless expressly authorized so to do. The question of expediency of legislation is one for the legislature within the limits of the Constitution. The question of law, the question of power, is all we are permitted to determine. I am unable to agree that the authority to engage in the business of selling abstracts has been expressly conferred on counties by the legislature, and find it unnecessary to express any views as to whether if such power had been expressly conferred it would square with constitutional limitations. For these reasons- I feel constrained to dissent from the opinion of Mr. Justice Sharpe.

       An ordinance to establish a department of the county government of the county of Wayne, to be known as the Wayne county tract index department, to provide a penalty for a violation of the provisions thereof, and to repeal all ordinances or parts of ordinances in conflict herewith.
      It is hereby ordained by the board of supervisors for the county óf Wayne, State of Michigan:
      Section 1. There is hereby established a department of the county government of the county of Wayne to bo known as the “Wayne) county tract index department.”
      Section 2. The board of county auditors shall, as soon as may be after this ordinance takes effect, appoint a suitable person to act as superintendent of said department. Said superintendent shall hold office for a period of two years from and after the day of his appointment. And said superintendent shall, before entering upon the duties óf his office, file in the office of the board of county auditors, an official bond for the proper performance of the duties of his office and to account for all moneys coming to his hands by reason thereof, said bond to he in such sum and with such sureties as the board of county auditors shall direct and approve. Said superintendent may be removed at any time by the board of county auditors for cause, but not until he shall be given an opportunity to be heard in his defense.
      Section 3. Said superintendent is hereby authorized to appoint an assistant superintendent and such other assistants, clerks and subordinates as may be deemed necessary and proper. Such assistant superintendent, when so appointed, shall hold office during the pleasure of the superintendent. And said superintendent may dismiss any assistant, clerk or employee of said department when he shall deem it advisable.
      Section 4. The superintendent, assistant superintendent, clerks, assistants and other subordinates employed in said department shall receive such compensation as may be determined by the board of supervisors.
      Section 5. It shall be the duty of the board of county auditors to provide offices, furniture, telephones, safes, or vaults, heat, light and all necessary books, blanks, files, stationery and other equipment and supplies for the use of said department.
      Section 6. Said superintendent shall have the care and custody of all books, records, papers and.documents pertaining to said department, and it shall be his duty to securely keep the same; and no book, record, paper) or document shall be removed from- the office or offices occupied by said department except upon the written consent of said superintendent; and any person or persons removing any book, record, paper or document from such office or offices without having first obtained such written consent, or who shall mark, mutilate, deface or destroy any such book, record, paper or document shall be deemed guilty of' a misdemeanor, and upon conviction shall be subject to a fine not exceeding the sum of one hundred dollars, or by imprisonment in the county jail not exceeding ninety days, or both such fine and imprisonment in the discretion of the court.
      Section 7. It shall be the duty of said superintendent to keep in his office books to be known as the “tract index,” 'and to enter in such books an epitome of every deed, mortgage, agreement, release, discharge, attachment, lien, sale, lis pendens, or .other instrument or transaction of record in any manner affecting title to land lying within the county of Wayne, and which have heretofore been entered of record in any of the record offices of the city of Detroit or the county? of Wayne, or which appear of record in any of the courts in said county. And it shall also be the duty of such superintendent to enter in such tract index an epitome of the daily transactions in the various record offices hereinbefore mentioned. It being the intent and purpose of this ordinance to have such “tract index” contain a full and complete history of the title to every piece, parcel, tract or subdivision, of land lying and being within the county of Wayne, and to continue and perpetuate such history.
      Section 8. Said superintendent is hereby authorized and empowered and it shall be his duty to furnish any person upon request, an abstract of title to any piece, parcel, tract or subdivision of land lying within the said county of Wayne. There shall be attached to each abstract so furnished a certificate to the effect that there has been entered therein every conveyance, encumbrance or other instrument recorded or filed in the office of the register of deeds for the county of Wayne and, State of Michigan affecting the title to the property covered by such abstract from the date of the commencement thereof to the date of the certificate thereof. The certificate .may b,e enlarged to cover such other matter mentioned in the preceding section, as the superintendent may in his discretion determine, subject to the approval of the board of county auditors.
      Section 9. Said superintendent under such regulations and conditions as the board of county auditors may prescribe, shall fix the price to be paid for all abstracts furnished by said department, said price, so far as possible, to be determined according to the number of separate documents, instruments and proceedings appearing on said abstract. And he may also under such regulations and conditions prescribe a schedule of fees for searches and certificates, and for such other information as may be furnished by the books and records of said department. And said superintendent may, in any case where he deems it advisable, demand a fee in advance for any abstract of title furnished by said department.
      Section 10. Said, superintendent is hereby given exclusive authority to determine the manner and method of preparing abstracts of title, and the order or arrangement of the various documents, instruments and proceedings appearing thereon. Provided, however, that each deed, mortgage, agreement, release, discharge, attachment, lien, sale, Us pendens, or other instrument appearing thereon shall be numbered separately and successively.
      Section 11. Said superintendent shall keep an accurate account of all moneys received by him and shall make a daily report to the board of county auditors of all moneys received by him on the previous day. And shall daily pay to the county treasurer all moneys received by him, and take the receipt of said treasurer for the same. The books of account so kept by said superintendent [shall] be audited and inspected by the board of county auditors at least once every month or at any time deemed advisable by said board. And .all moneys paid by said superintendent to the county treasurer shall be credited to such fund or funds as may be designated by the board of supervisors.
      Section 12. Said superintendent shall prepare and submit to the board of county auditors, an estimate of the expenses of said department for the ensuing year. He shall also make a true and accurate report to the board of supervisors of all moneys received by said department during the prior twelve months and give such other and further information as may be required by said board of supervisors.
      Section 13. Said superintendent may make such reasonable rules and regulations with reference to the inspection and examination of the files and records of his office as shall be deemed necessary for the protection of said records and files, and he shall absolutely prohibit the use of pen and ink in making copies of notes of such records and files, except by the employees of said department. And he shall also furnish proper and reasonable facilities for the inspection and examination of the records and files in his office, and for making memoranda or transcripts therefrom during the usual business hours, to all persons Raving occasion to make examination of them for any lawful purpose.
      Section 14. That the tract index or abstract books heretofore prepared under resolution of the board of supervisors of said county, adopted at a session of said board held in the year 1913, shall become the property of the Wayne county tract index department, and shall at all times remain the permanent records of said department.
      Section 15. All ordinances or parts of ordinances in conflict herewith are hereby repealed.


text:
    MASTERS v. BOARD OF SUPERVISORS OF ALGER COUNTY.
    Counties — Right of County to Furnish Abstracts.
    This case is controlled by Thomas v. Board of Supervisors of Wayne Co., ante, 72.

    Appeal from Alger; Fead (Louis FI.), J.
    Submitted June 9, 1920.
    (Docket No. 17.)
    Decided April 6, 1921.
    Bill by Wallace H. Masters and others against the board of supervisors of Alger county and the county of Alger to enjoin the maintenance of a tract index and the furnishing of abstracts of title to land. From a decree for plaintiffs, defendants appeal.
    Reversed, and bill dismissed.

      R. W. Nebel and E. A. Macdonald (Beaumont, Smith & Harris, of counsel), for plaintiffs.

      Berg, Clancey & Randall (Matthew H. Bishop, Thomas G. Long and William L. Carpenter, of counsel), for defendants.
   Sharpe, J.

In this case an injunction is sought by plaintiffs, who are taxpayers of the county of Alger, to restrain the defendant board from expending money in causing a tract index or set of abstract books to be compiled in that county. It presents a .similar question to that decided in Thomas v. Board of Sup’rs of Wayne Co., ante, 72, and is ruled thereby.

The decree entered is reversed, and one may be entered here dismissing the bill of complaint, with costs of both courts to defendants.

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

The late Justice Brooke took no part in this decision.

Fellows, J.

(dissenting). For the reasons stated, by me in Thomas v. Board of Sup’rs of Wayne Co., ante, 72, I dissent from the conclusion reached by Mr. Justice Sharpe.