text:
    PEOPLE v. ROAT.
    1. Criminal Law — Adverse Witnesses — Leading Questions.
    The general manager of a store from which goods were stolen may, upon a prosecution for the larceny, be asked leading questions by the prosecuting attorney, as an adverse witness, to elicit the fact that he received a sum of money for the stolen goods, and withdrew the complaint originally filed by him.
    2. Same.
    The connection of respondent with the payment of the money may be shown by other witnesses.
    3. Same — Identification of Stolen Goods — Exhibition to Jury.
    Where, upon a j>rosecution for larceny, it appears that certain knives were among the goods stolen, and that knives similar to those taken were subsequently found upon the premises of respondent, who acted in a suspicious manner, it is proper to permit the' jury to see the knives so found, .although they are not positively identified by the owner of the goods, who is apparently an unwilling witness for the prosecution.
    4. Same — Examination of Witnesses — Leading and Impudent Questions. .
    The fact that the prosecuting attorney asks leading and impudent questions of a witness called by him, but shown to be adverse, is not ground fqr reversal.
    5. Same —Remarks of Prosecutor — Exceptions —Manner-of Noting.
    Exceptions to the remarks of the prosecuting attorney, noted by the stenographer in response to nods of respondent’s counsel, without the court or the prosecutor being apprised of them, cannot be considered on appeal.
    •8. Same — Harmless Error.
    While the prosecuting attorney has no right to state to the jury, in the course of the argument, his recollection of a witness’ testimony in the justice’s court, his reference to such testimony upon an immaterial point, which would be unlikely to affect the verdict, will not require a reversal.
    7. Trial — Instructions—Quotation of Testimony.
    Error, if any, in quoting in the charge the testimony of a witness, is harmless, where the testimony quoted relates to matters not in dispute.
    8. Criminal Law — Amendment of Information — Clerical
    Omission.
    It is competent for the court to permit an information to be amended upon a motion to set aside the verdict, so as to cure the clerical omission of the clerk to sign the jurat.
    9. Same — Special Questions — Verdict.
    Respondent is not entitled to have special questions submitted to the jury, as any Imitation upon the right of the jury to find a general verdict in criminal cases is against the policy of the law.
    Exceptions before judgment from Genesee; Wisner, J.
    Submitted June 16, 1898,
    Decided July 12, 1898.
    David Eoat was convicted of breaking and entering a store, not adjoining to nor occupied with a dwelling, with intent to commit larceny.
    Affirmed.

      Johnson & Stevens and Black & Brown, for appellant.

      Fred W. Brennan, Prosecuting Attorney, for the people.
   Hooker, J.

The defendant was convicted of the offense of breaking and entering a store, not adjoining to nor occupied with a dwelling, with intent to commit larceny. Upon the trial there was testimony tending to show that among the articles 'taken from the store on the occasion of the breaking were some butcher knives, and that similar knives were subsequently found upon the premises of the defendant. A complaint was made against him by one' Baxter, who was the manager of the store, which was afterwards withdrawn. The officer who made the arrest in this case testified that, when he demanded admittance to his house, the defendant for a time refused to admit him, but finally said he would do so when he got dressed. After a time he was admitted, but could not readily find, the defendant, and, after a somewhat protracted search, was told by his wife that he had got so far away, by that time, that he would not get him. Finally he removed an oil cloth from the floor, and discovered a trapdoor, beneath which he found the prisoner. After stating the charge upon which he was arrested to the defendant, he said that he “supposed he would not be bothered for that again, for he supposed it was fixed up;” and that “they had ruined him, and had got all that he had in the world, and that it had cost him §2,000 already. All they would get now was his body, and they could have that if they wanted it.”

To prove the charge, the prosecutor called Baxter, the manager, who testified to the circumstances showing the breaking and entering, and the interference with the property contained in the store. He*did not identify the knives alleged to have been found at the defendant’s premises with positiveness. Upon the claim that he was an adverse witness, the prosecutor was allowed to ask direct questions, and showed that he received $400 or $500 as pay for the stolen goods, and that he withdrew the complaint; that he afterwards took the money back. He was also examined in relation to his statements in regard to the identity of the knives when they were discovered. It was within the discretion of the trial j udge to allow the prosecutor to show by the witness Baxter, through leading questions, his conduct in receiving money and withdrawing the first complaint. He was not permitted to state the name of the person who paid it to him, and his supposition that it came from the defendant was stricken out. The testimony of the sheriff tended to connect the receipt of the money with the defendant, and made Baxter’s testimony material. The witness was asked if he did not say, in the presence of one Garner, that the knives came from the store, and had his marks upon them; but the question does not appear to have been answered as thus put, and later, when asked if he did not say this to Garner in the presence of the defendant, he said that he did not remember. We do not discover that the record shows that all of the testimony is included, but, if it did, we should think that no error was committed in allowing the jury to see the knives found upon defendant’s premises.

Among the witnesses called by the prosecutor was one Dickinson, a blacksmith, who was working for the defendant at the time of the burglary. He testified that the defendant came home about 12 o’clock that night, but that he had been asleep, and did not positively know the time, and, after being confronted with and allowed to read his deposition upon the examination, admitted that in the justice’s court he testified that it might have been 4 o’clock and it might have been 12. It appeared, also, that he was subpoenaed at Holland, and furnished with a ticket, upon a telegram from the sheriff, to enable him to attend the trial; that he met the defendant at Durand, and was accompanied by him to Flint, and that they went from the train to the office of the defendant’s counsel, and from there to the defendant’s house, where he remained that night; that he did not see the sheriff at the depot, but got off from the train with the defendant at the bridge. He was examined quite closely by the prosecutor. The only suggestion of error made in the brief upon Dickinson’s examination is that the court permitted the prosecutor to cross-examine him, and the witness to answer numerous leading and impudent questions. Leading questions are usually within the discretion of the circuit judge, and mere impudence to a witness is not a ground for reversal.

Counsel assign error upon the remarks of the prosecuting attorney in his address to the jury. We find nothing that would justify a reversal of the judgment. Again, if the statement in the prosecutor’s brief is true, viz., that neither the court nor the prosecutor was apprised of the exceptions, which were' noted by the stenographer in response to nods of the counsel for the defendant, which does not seem to be contradicted, the questions should not be considered. The office of exceptions should be to apprise the court of alleged errors, with a view to their correction, when possible; and, with the exception of cases where errors are alleged upon the charge, exceptions must be brought to the attention of court and counsel at the time the alleged error is committed.

Statement No. 18 was not a proper one for the prosecutor to make. His recollection of what Garner testified in the justice’s court was not proper evidence, but it was an immaterial point, inasmuch as no attempt appears to have been made to contradict Garner’s statement that his attention had not been called to the number of knives at the examination. The subject was not very material, in any view of the case, and could hardly have affected the verdict. The court was careful to instruct the jury to disregard statements not justified by the evidence.

Error is assigned upon the refusal of the judge to give several of the defendant’s requests to charge, but we think the general charge sufficiently covered the subjects.

The quotation of the testimony of a witness in relation to the situation of'the premises, if erroneous (which we do not assert), was not injurious, as, under the testimony contained in the record, there was no dispute as to the store not being adjoining to or occupied with a dwelling house.

We are of the opinion that it was competent for the court to permit the information to be amended, upon the motion to set aside the verdict, by permitting the clerk to sign the jurat, which the proof showed his failure to do earlier was a clerical omission.

Error is assigned upon the refusal of the trial court to submit the following special question to the jury, viz.: “At what hour do you find that the breaking and entering of the store occurred, if * * * at all?” Any limitation upon the right of the jury to find a general verdict in criminal cases is against the policy of the law, and, as intimated in the case of People v. Marion, 29 Mich. 40, the right to require answers to special questions in criminal cases would be revolutionary. Cooley, Const. Lim. (6th Ed.) 393 et seq.

We have examined the numerous assignments of error, and think it unnecessary to discuss others.

•The judgment is affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    PEOPLE v. TAYLOR.
    1. Criminal Law — Former Acquittal — Special Plea.
    Where, upon a criminal prosecution, the evidence of a former acquittal of the accused is before the court as a part of its own record in the case, the defense need not be specially pleaded.
    2. Same — Jeopardy—When Attaches.
    After a jury had been sworn and some of the testimony taken in a criminal case, the court quashed the proceedings, and ordered the discharge of the accused, upon his contention that the statute on which the charge against him was based had been repealed. Subsequently, on its appearing that no repeal had been effect&d, the case was reinstated, and a conviction followed. Held, that the defendant was in jeopardy in the earlier proceeding, and that the subsequent conviction was unauthorized.
    3. Same — Waiver.
    Where an accused person, after a jury is sworn in the case, obtains his discharge by direction of the court upon a legjal question involved therein, he is not precluded, by thus evading a trial upon the merits, from setting up such discharge as a bar to a subsequent prosecution for the same offense.

      Error to Saginaw; Snow, J.
    Submitted June 16, 1898.
    Decided July 12, 1898.
    Orson D. Taylor was convicted of obtaining a signature to promissory notes by means of false pretenses, and sentenced to imprisonment for six years in the state prison at Jackson.
    Reversed, and respondent discharged.

      James Van Kleeck, Albert Trask, and N. S. Wood, for appellant.

      E. L. Beach, for the people.
   Hooker, J.

The defendant was convicted of the offense of obtaining the signature of the complainant to three promissory notes by means of false pretenses, and has brought the case to this court by writ of error.

The record shows that upon a former trial a jury was impaneled and sworn, and testimony taken, when the judge ordered all proceedings to be quashed and the prisoner discharged. The journal entry, after reciting that the jury was impaneled and sworn, proceeded as follows :

“After hearing counsel for the respective parties, and the court being fully advised in the matter, it is ordered that all proceedings in this cause be quashed, and the prisoner discharged, for the reason that the circuit court has no jurisdiction in the matter.”

Subsequently an order was made vacating the order to quash the proceedings and discharge the prisoner, and reinstating the case. The trial followed, resulting in con.viction; and it is now contended that the defendant was in jeopardy upon the first trial, and that the subsequent conviction was erroneous for that reason. The record does not show the ground of the court’s action in quashing the proceedings, and it does not expressly appear that it was made upon the motion of defendant’s counsel, though that is inferable from the statement that the order was made “after hearing counsel.” It seems to be conceded by counsel, however, that it was claimed upon behalf of the ■defendant that the statute upon which the charge was brought had been repealed, and the court so held. Subsequently, this court passed upon the question in another case, and held otherwise, and the motion to reinstate followed.

It is urged upon the part of the prosecution that this •question should have been, but was not, raised by plea, and that the alleged former acquittal was not proved upon the trial. But we are of the opinion that the contention ■should not prevail. While the record returned contains no plea, a reference to it appears. Furthermore this is not a new proceeding, but it is a second trial in the first and only prosecution instituted. All that has occurred is before the court, upon its own record in the case, and therefore need not be pleaded, nor is formal proof of the record required. This was held in the case of People v. Harding, 53 Mich. 481, where it was said that special pleas had no office to perform where the facts alleged in them were already in the case.

There can be no doubt, under the weight of authority, that the defendant was in jeopardy upon the first trial. There are authorities that hold that legal jeopardy does not attach until a verdict is rendered, but that has never been the rule in Michigan.

It is urged by the prosecution that the defendant cannot avail himself of his former jeopardy, having waived it by his motion, which upon its face shows that he was willing that the merits of the case should not be disposed ■of. We are cited to 1 Bish. New Cr. Law, § 1027, subd. 4, which states the rule to be that “where, at any stage ■of the proceedings, the defendant procures the indictment to be quashed, he cannot, in bar to a new one, assert that the first was good, and he was in jeopardy under it.” Three cases are cited in support of this statement of the law. One of these goes no further than to hold that where a conviction is set aside by the trial court on the defendant’s motion, and upon the ground that the information is bad, such proceedings are not a bar to a subsequent prosecution for the same offense, upon a new information. State v. Hart, 33 Kan. 222. That is the rule in this State, to the extent at least that it would not bar another trial on the same information. But the setting aside a conviction upon a defendant’s motion is a radically different thing from acquitting him upon the trial, though upon an erroneous legal proposition urged by his counsel. See, also, State v. Norvell, 2 Yerg. 24 (24 Am. Dec. 458); People v. Casborus, 13 Johns. 351; Gerard v. People, 3 Scam. 362.

The case of State v. Priebnow, 16 Neb. 133, held a plea of former acquittal bad where it failed to show that there had been a judgment of acquittal. In that case the record showed that an objection was made to the introduction of testimony, on the ground that the indictment did not charge the commission of a crime. The case turned upon a statute, which the court construed to require a judgment of acquittal to justify the plea. Thus, it would seem that Nebraska might be added to the list of States which hold that jeopardy does not begin until after the verdict is declared. See 1 Bish. New Cr. Law, § 1018, and note. It can hardly be considered an authority in support of the rule stated by Mr. Bishop in those States which do not adopt the view that jeopardy begins only after verdict.

The third and last case cited by the author is Joy v. State, 14 Ind. 149. In that case an indictment contained two counts. During the trial, on motion of the defendant’s, counsel, the prosecuting officer was required to elect between the counts, which he did. The court afterwards quashed the count elected, and the prosecutor' was then, allowed to nol. pros, the discarded count. The prisoner was remanded to jail, and was discharged from that indictment. He was indicted again, and pleaded his’ former jeopardy. The court held that, by his own consent, he had waived the right to raise the question. It appeared in that case that the rulings were made after the jury was sworn, but before the prosecuting officer had stated the case to the jury, which the court said, ‘ ‘ under our practice, is in effect giving the defendant and the case in charge to the jury;” citing 2 Rev. Stat. p. 374, § 103. Thus, we find that the two cases which tend most strongly to support the claim of the prosecution are from code States, and the decisions are apparently based upon statutes, while in one of them, viz., the Indiana case, it is intimated that the-jury had not taken charge of the defendant or his case when the action was taken, and he was not in jeopardy for that reason.

This case should be distinguished from a class of cases where, after a jury is impaneled and charged with the defendant and his case, some intervening necessity compels the discharge of the jury, e. g., the death or sickness of a juror, the ending of the term, a disagreement, etc., and •possibly a continuance, granted upon the motion of the defendant. The case of Stewart v. State, 15 Ohio St. 155, is such a case. After the jury was sworn, it was discovered that one of the jurors had been on the grand jury which found the indictment in the case. The defendant’s counsel objected to proceeding to trial with the jury thus impaneled, but declined to waive any of the defendant’s rights. The jury was discharged, and a conviction by another jury was sustained. Such a case was People v. Gardner, 62 Mich. 312. There a question arose over the regularity of the jury, and a new one was called upon the defendant’s objection to the first. It was said by Mr. Justice Champlin that “he has no right to complain that his objection was sustained, and the discharge of the jury with his consent cannot be set up as an acquittal.” The case before us is different. The counsel for the defendant went into the trial of their case, and upon the trial obtained what has usually been considered as equivalent to a verdict of acquittal by direction of the court, upon a legal question involved in the case. The defendant did not-ask to have the jury discharged, under circumstances implying a consent to a trial before another jury, as in the case of People v. Gardner, and authorities cited; but he raised a question going to the legal merits of his case. Of necessity, it was a question to be decided by the court, who might have directed the jury to find a verdict of not guilty, upon that ground, after all evidence was in. He did not do this, but what was done was practically the same thing. It turns out that he was in error, but it was none the less an acquittal.

The hardship of.this case is apparent, because it is so palpably an escape of a defendant from trial of the merits of his case, as commonly understood, upon a mistake of law; but all mistakes of law are not made so plainly manifest as this has happened to be, by reason of 'the review of the question involved so soon after the discharge of this defendant. The question was not free from difficulty, and was one about which lawyers might reasonably differ. In the minds of many, it is a hardship on society to require.it to submit to the escape of criminals through mistakes of law; and some States have attempted to remedy it by permitting a review of the case at the instance of the State, and subjecting the defendant to a new trial if reversed. This is not the general- rule, however, and the public has usually been compelled to bear the burden of mistakes of courts in criminal cases, under a somewhat technical and perhaps too rigid application of the rule that a person shall not be twice placed in jeopardy for the same offense. Our own Constitution may be thought to have been intended to limit this immunity to cases where the acquittal has been upon the merits. Const, art. 6, § 29. But it was held otherwise in the case of People v. Harding, 53 Mich. 485. It is possible that, in a case like the present one, justice would be better subserved by a refusal to apply the rule; but we consider the law to be too well settled to justify such a disposition of the case.

The conviction and judgment are reversed, and the defendant discharged.

The other Justices concurred.


author: Moore, J.

text:
    PRESTON v. BOARD OF WATER COMMISSIONERS OF DETROIT.

    1. Municipal Corporations — Water Rates — 'Uniformity.
    Water rates paid to a city by consumers are in no sense taxes, but are merely the price of a commodity; therefore, it is not necessary that they be uniform, or that they be based upon property values.
    2. Same — Waterworks—Cost op Construction and Extension —How Paid.
    A city is not obliged, by reason of its ownership of a water plant, to make the cost of its construction and extension a general city charge, but it may properly derive a profit from consumers, and apply the same in payment of the cost of the plant.
    3. Same — Free Water to Public Institutions — Right op Consumer to Complain.
    Where the water rates paid to a city by consumers are reasonable in amount, they cannot complain of them as inequitable because the water commissioners, whose duty it was to assess the rates “upon such basis as they shall deem equitable,” have supplied water either free or at nominal rates to the various city departments, and to charitable and educational institutions in which the public are more or less interested.
    Cross-appeals from Wayne; Frazer, J.
    Submitted June 17, 1898.
    Decided July 12, 1898.
    Bill by Marvin Preston and others against tbe board of water commissioners of the city of Detroit to restrain the collection of water rates as assessed by said board. From the decree rendered, all parties appeal.
    Reversed and bill dismissed.

      John W. McGrath, for complainants.

      Fred A. Baker, for defendant.

       Rehearing denied September 27, 1898.

   Moore, J.

Stated in the language of the solicitor for complainants:

“This bill was filed in 1890, to restrain the collection of water rates as assessed, on the ground that the basis of the assessment was and is radically inequitable and contrary to law.
“1. That if' the defendant has the right to include in the assessment of rates the expenses of extension and construction, and the payment of the bonded debt, as well as the operating expenses:
(a) It must assess for public uses as well as for private.
“(b) It has no right to discriminate between consumers, or to exempt any uses.
“ (c) It has no right to furnish water free to the public, to the ■ board of education, or to charitable institutions.
“ (d) It has no right to use the moneys collected as water rates for uses not directly associated with the subject of furnishing a water supply.
“2. That the water plant was constructed and exists for public as well as private use. The capacity of the plant is enlarged because of the public demands upon it for fire protection, park, and other public uses, and because of the probability of increased demands upon it in the future. Hence, in any event, a large part of the cost of the plant, and of additions thereto, should be borne by the general public.
“3. That the plant belongs to the municipality, and not to the private consumer, and its cost, including the payment of the bonded debt, should be made a general city charge.
“4. That the charter of the city, and the acts under which the bonds were issued, contemplate the payment of the bonded debt and the interest thereon, as well as the cost of extension and construction, by the city, and not by the private consumer.”

Testimony was taken before a commissioner, who found, among other things, as follows:

“ (1) I find the total sum charged against said complainants from July 1, 1890, to January 1, 1897, to be the sum of $1,172.64; and if no deductions are to be made on account of the use by the public of water, the free use of water by certain private individuals, the use of water hy other private individuals, corporations, or charities, for which a nominal charge only has been made, and the ■cost of construction and extension of the works, the expenditures for the payment of interest and bonded debt, as well as the operating expenses, are to be made a charge •against the consumers of water, then I find the above-named sum of $1,172.64 to be due from the complainants named.
“ (2) I find that table No. 1, as the same appears in Ex-Mbit A, hereto attached, is a correct statement of the -amounts expended by the defendant for construction, the payment of interest, the payment of bonds, and the operating expenses of said board, together with the total water .rates assessed and collected from July 1, 1890, to January 1, 1897, and that the total expenditures for construction, interest, bonds, and the operation during said period were 83,557,545.39.
“ I find that the board of education, from July 1, 1890, to July 1, 1894, paid the nominal rate of $1,000 per annum, whereas, if charged as other private consumers, it ■should have paid $7,000 per annum; and that from July 1, 1894, to January 1? 1897, the schools were metered, and the board of education was charged and paid at the rate of two cents per thousand gallons, whereas the rates charged on other consumers of water were six and two-thirds and two and two-thirds cents per thousand gallons; and that the difference between what the board actually paid and what it should have paid is the sum of $27,031. I find that from July 1, 1890, to January 1, 1897, the board expended, from sums collected as water rates, on account of the Hurlbut fund, $66,014.60 in excess of the receipts from the Hurlbut estate. I find that up to 1888 or 1889 the board had charged to consumers having hose connection four dollars per annum each, and there were 6,500 hose connections in the city of Detroit; that in 1888 the board ceased to charge for hose connections, and since said time the number of hose connections has more than doubled; that the amount consumed for lawn sprinkling purposes from hose connections amounts to one-thirteenth of the entire pumpage, and, therefore, that the persons using said hose connections should pay one-thirteenth of the entire water rate imposed.
“I find further that the public uses four per cent, of the amount of water actually used, which would be about six and two-tenths per cent, of the entire pumpage; and that the municipality, if it paid its proper share for the use of water, should have paid for the period named six and two-tenths per cent, of the entire water rates, or $164,904.10. I find that the amount actually paid by the city of Detroit as water rates for all public purposes, from July 1, 1890, to January 1, 1897, in all departments except the house of correction, as appears by Exhibit B, hereto attached, was the sum of $5,518.04; and the city should have paid $164,-904.10 less $5,518.04.
“These sums are correctly tabulated in table No. 2 of Exhibit A, hereto attached, and the total thereof equals eighteen per cent, of the total rates; and, if they should be deducted, then eighteen per cent, should be deducted from the amount claimed from said complainants, leaving the balance $961.57.”

The circuit judge filed a written opinion in the case. The essential part of it reads as follows:

“But it is claimed by complainants’ counsel that the manner in which water rates are determined, whether by meter or otherwise, is inequitable, and not within the power of the board of commissioners. The charter provides that the commissioners shall cause to be assessed water rates upon such basis as they shall deem equitable; and the question to be determined in this case is whether the commissioners have the power to assess water rates in the manner they are now doing. The water rates collected by the board of commissioners is the only source of revenue provided for the running expenses of the waterworks. This, of course, includes all that is paid out by the commissioners in labor, fuel, and such other expenses as are necessary to supply all the water that is consumed for all purposes in the entire city, and the whole of this expense is paid for by those consumers of water upon whom the water rates are assessed. The following use large quantities of water, and pay either no water rates, or nominal rates, entirely disproportioned to the amount of water used:
“Public institutions, or those in which the entire public is interested.
“Board of education pays $1,071, about one-seventh of what it would have to pay if charged at the rate as that charged consumers who have meters.
“Board of public works pays nothing for water used by it.
“Municipal buildings pay a nominal rate.
“ Park board pays no rates.
“All public fountains are furnished water free.
“Police department is charged nothing.
“ Fire department pays no water rates.
“Markets pay nothing.
“All private charities and hospitals are furnished water by the board on the city paying the nominal sum of §1,000.
“Cemeteries pay nothing.
“The question now presents itself whether the board of commissioners, under the power given them to assess water rates upon such basis as they shall deem equitable, have the right to give water away to a certain class of consumers, and make another certain class of consumers pay for it. This is not my idea of what is equitable, and the fact that the commissioners may deem it equitable will not prevent the courts from interfering when the act done is clearly and manifestly inequitable. All water that is used by the city, the fire department, board of public works, park commission, and all other public institutions, is used for the benefit of the general public. A man who owns a vacant lot is as much interested in having water in the streets, fire protection, clean streets, and public fountains as his neighbor who owns a house and has a water tap in it, for all these things increase the value of his vacant property; and there is no justice or equity in his reaping these benefits, and having his neighbor pay for it, because he has built a house beside his vacant lot, and uses water. It might as well be argued that if the city owned a public lighting plant, and was authorized to furnish light to the houses of citizens on payment of proper rates, the users of electric lights should alone be charged with the expense of lighting the streets and vacant property of the city. The equitable power given the water commissioners should be so exercised as to assess rates on all alike. Those institutions which are private should pay the same as other private interests do, and those that are public should pay, and whatever it costs the public can be assessed as a general tax, and thus the burden for these public benefits will be borne alike by all taxpayers. The expense of maintaining the police department, fire department, schools, parks, etc., is borne now by the general taxpayer; and why should he not pay for the water they use which is necessary to their successful maintenance ? I think the board of water commissioners have no authority to give water to one person, and make another one pay for it.”

Acting upon the report of the commissioner, the circuit judge decided the water board was charging the complainants a portion of the expense of the free pumpage of water, and decreed their rates should be reduced 18 per cent.; that is, from $1,172.64, as charged, to $961.57. From this decree, all parties appeal.

The questions involved in this record are new. Our attention has not been called to any case where the right to manage a water plant belonging to a city, in charge of a board of water commissioners, in the way this plant has been managed, has been challenged. The legislature created the board of water commissioners in 1853. After the oi’iginal organization of the board, its members were appointed by the council. They were authorized, for the purpose of establishing a water plant, to borrow, upon the credit of the city, $250,000. The money was borrowed, and the city issued its bonds for that amount. The construction of the water plant was entered upon. In 1855 another loan of $250,000 was authorized, for extending and improving the works. A like amount was authorized for the same purpose in 1857, and again in 1869. In 1873 a loan of $1,000,000 was authorized. The original act (Act No. 90, Laws 1853) creating this board provided section 9):

'“.Said commissioners shall, from time to time, cause to be assessed the water rate to be paid by the owner or occupant of each house or other building having or using water, upon such basis as they shall deem equitable; and such water rate shall become a continuing lien, until paid, upon such house or other building, and upon the lot or lots upon which such house or other building is situated.”

Section 13 provides for a sinking fund from the surplus ■water rates or other sources to pay the interest and principal of the bonds issued for the money borrowed. The section in full is as follows:

“Whenever the receipts of said board, from water rates or other sources, shall accumulate so there shall be a surplus amounting to a sum of not less than five hundred dollars, not needed for the payment of the current expenses or the extension of said works, it shall be the duty of the commissioners, together with the auditor of said city, who shall be associated with them for that purpose, to invest the same in some safe stocks, or upon other real or personal securities. Such investment shall be made in the name of said board, and in such manner as to make the same available for the payment of interest and principal of the bonds issued as aforesaid, as soon as may be. It shall be the duty of said commissioners to pay the interest on such bonds, and as fast as such surplus fund will permit; also the principal, as the bonds become due, as funds for such purpose shall from time to time accumulate. The said commissioners may, when they have funds for that purpose, purchase the bonds so issued as aforesaid, whether the same have become due or not; and in case the said commissioners shall at any time not have funds on hand sufficient to meet any of the said bonds at the time when they shall become due, they shall have the right to issue new bonds for such amount and on such time as they shall deem expedient, in the place of bonds so becoming due as aforesaid; the said old bonds to be canceled in the registry thereof, and the said new bonds to be recorded in the manner hereinbefore provided.”

Section 24 provides for a water tax on the taxable property of the city for such sum annually as may be needed to meet any deficiency in the revenues of the board. The whole section reads:

“It shall be the duty of said commissioners, at least thirty days before the time fixed by the ordinance of said city for assessing city taxes, to make a special report to the common council of said city, what, if any, sum will be needed by said commissioners, over and above the revenue of said board, to meet the payment of interest or principal of the bonds issued as aforesaid, and it shall be the duty of the common council to raise said amount by special tax in the same manner as general taxes, to be designated a water tax; and the said amount shall be paid over to said'board by the treasurer of said city.”

The act of 1873 (Act No. 302) had this provision (section 2):

‘ ‘ It shall be the duty of the common council, and said council is hereby empowered, to cause to be levied and assessed annually, upon the taxable property in said city, the sum of seventy-five thousand dollars, the same to be included in each annual tax assessment levied on said city, and the same shall not require or be conditioned upon the vote of the freemen of said city. The said sum shall be collected the same as other general taxes, and shall from time to time, as received, be paid over to said board by the treasurer of said city; and the moneys so paid over by said treasurer to said board shall be used and appropriated by said board, first, in payment of the interest of said bonds; second, if there be any surplus after payment of the interest accruing during the year, said moneys shall be paid into and form part of the sinking fund of said board, and used and appropriated to the payment of said bonds when due, or to the purchase of the same, or of any other of the bonds heretofore issued by said board, as the said board may, from time to time, think expedient.”

It is evident from the _ reading of all these provisions it was thought, when the city paid, by direct tax, $75,000 a year, the plant would not only pay for its necessary extension and operating expenses, but would eventually pay for itself, even though the rates charged the water takers were reasonable and equitable. Ever since 1873 a levy of $75,-000 each year has been made, and the proceeds of the levy paid over. It has not been necessary during that time for the water board, in order to meet its expenses, to ask for any further direct tax. It is now urged that the water ought to be furnished the users at its cost, and that the interest account, the extension account, and the cost of the plant should be borne by the property of the city. Is there any equity in this contention ? It is not an unusual thing for cities and villages to confer a franchise upon a private corporation to do what is being done by the board of water commissioners. The right to do this has never been questioned so far as we know, though the policy of doing it has often been questioned. Had this been done, would it be unreasonable for the private corporation to expect ultimately to get back from its patrons the cost of its investment, including its extensions, with a reasonable profit ? If the legislature may confer upon the municipality the right to grant such a franchise, why may not that right be exercised by means of a board of water commissioners in the interests of the municipality, so the municipality shall ultimately own the property ? In the exercise of the franchise by a private corporation, the rates fixed must doubtless be reasonable and equitable. What more can be required of the rates fixed by the water board ?

The record does not show the financial transactions for all the period covered by the existence of the board. It does show, however, that from 1882 to 1895, inclusive, there was received from water rates $4,952,959.30. During the same period there was paid by the city $1,036,-532.81. It also shows there was paid of the bonds issued by the city $569,000. The board of water commissioners has now existed nearly 45 years. Bonds of the city issued for money expended upon the water plant for upwards of $1,000,000 are still unpaid. These figures indicate very clearly the water board is making a very liberal rate to the water taker, and is not compelling this generation to pay all the expenses of the construction of the plant. The record also shows, as will appear more fully later, the rates fixed are equitable and reasonable.

It has already appeared that the free use of water given is only to institutions in which the city and all its citizens are interested, and, where a partial rate is charged, the recipient is a charitable institution or an educational institution in the maintenance of which the public is more or less interested. It is shown by the record that the making of the use of hose free was simply an adjustment of the rates, so as to make them more equitable; the user of the hose invariably being a water taker for other purposes, for which he paid according to the established rate, which was large enough to include the use of free hose without making the rate disproportionably low. The rate charged the complainants since 1890, for the first 3,000 cubic feet, is two-thirds of a cent for each 100 gallons, and, for all quantities over that amount, one-third of a cent for each 100 gallons. This is the same rate charged all users of water when the water passes through a meter, and, according to the testimony, it is approximately the same rate charged those whose premises áre not metered. The board is very properly given wide discretion in the management of the water plant. City of Detroit v. Board of Water Com’rs, 108 Mich. 494 (31 L. R. A. 463). There is nothing in the record to show it has abused this discretion in fixing the rates. We think it is not accurate to speak of these water rates as taxes. All property except that which is exempt by law is subject to the payment of taxes, but the use of water is not compulsory. If the owner of property prefer to dig a well and construct a cistern instead of connecting with the system of waterworks, he, in most instances at least, would be at liberty to do so. It is true, if he is in the water district, he is entitled to the usé of the water by complying with the regulations of the water board; it is also true these regulations must be reasonable; but it is not true they must be uniform, or that they must be based upon the value of the property where the water is used. “ The water rates paid by consumers are in no sense taxes, but are nothing more than the price paid for water as a commodity, just as similar rates are payable to gas companies.” Jones v. Board of Water Com’rs, 34 Mich. 273. It would be manifestly inequitable to require valuable premises, where from their character no water was used, to be charged with a water tax based upon values, while an adjoining piece of little value might, because of the character of its occupancy, use large quantities of water. When property has paid its proportion of the taxes growing out of fire protection and other uses in which property and the public in general have an interest, it has discharged its share of the burden.

The testimony discloses the water used by the fire department, the park commission, and for all other purposes which may be called “free water,” for which property should pay, constitutes but 4 per cent, of the entire pump-age. It also appears by the record that for years an assessment of $75,000 annually has been made upon the property of the city to apply upon the interest account and other expenses of the water plant. From 18 to 25 per cent, of the receipts of the water board have been derived from the city through a tax levied upon all of the property of the city. If any persons have a right to complain because the water rate paid by them is disproportionately larger, it is not the complainants.

The decree should be reversed, and the bill dismissed, with costs of both courts.

The other Justices concurred.


text:
    COX v. CAYAN.
    1. Mortgages — Negotiable Paper — Time of Payment.
    A provision in a note, or in a mortgage securing the same, giving the holder an option to declare it due upon failure to pay any installment of interest, or the taxes upon the'mortgaged land, does not destroy its negotiability. Wilson v. Campbell, 110 Mich. 580, followed.
    2. Same — Assignment—Notice—Husband and Wife.
    Where property is deeded to a wife at the instance of her husband, who signs with her the notes for the purchase price, secured by a purchase-money mortgage, makes payments thereon, and transacts all business pertaining thereto, notice to the husband of an assignment of the mortgage is notice to the wife.
    Appeal from Muskegon; Russell, J.
    Submitted June 17, 1898.
    Decided July 12, 1898.
    Bill by Richard S. Cox against Beate Cayan and William Cayan to foreclose a mortgage. From a decree for complainant, defendants appeal.
    Affirmed.

      Smith, Nims, Hoyt & Erwin, for complainant.

      Turner & Turner, for defendants.
   Hooker, J.

In 1885, Mason deeded the property involved in this suit to Beate Cayan, at the instance of her husband, William Cayan, and they gave Mason their notes, secured by a mortgage upon the premises, for a portion of the purchase price. In 1891 four new notes, for $350 each, and a new mortgage, were given to take the place of the old. They were dated September 1, 1891, and the notes were payable in two, three, four, and five years, respectively, with interest at 7 per cent. Notes were also given for the interest. Under the decision in the case of Wilson v. Campbell, 110 Mich. 580, these were negotiable instruments. On November 10, 1891, Mason delivered the notes and mortgage to the complainant as collateral security for a note of his own for $2,000, accompanying them by an unconditional assignment of the notes and mortgage. In July, 1891, Mason took up his $2,000 note, paying in part therefor with the notes and mortgage already pledged as collateral. At this time the assignment was placed on record. There was evidence tending to show, and the circuit judge found, that notice was given to William Cayan, in 1891, of the assignment of this mortgage. The two notes first falling due were paid or adjusted' between Mason and Cox in 1897. Mason testifies that he charged Cayan with the amount. Cayan paid the interest on the three notes last falling due to Mason and his bookkeeper until 1891, when, according to his testimony, he first received notice from Cox that he was the owner. Subsequently he paid some interest at the bank, taking up the coupons or interest notes. This suit is a foreclosure.

The defendants claim that, at the time the first mortgage was given, it was agree'd orally between Mason and Cayan that the latter should pay the interest in money, and that the principal might be paid in clothes and tailor work, and that this was renewed when the second mortgage was given. Cayan testifies that he was conducting the clothing business for his wife, and it is obvious that he transacted all of the business pertaining to the mortgage. The circuit judge granted a decree as prayed, and the defendants have appealed.

Counsel for the defendants contend — First, that the notes were not negotiable, and therefore complainant took the notes subject to the equities existing between the defendants and Mason; second, that Mrs. Cayan never had notice that the complainant owned the mortgage, and that notice to her husband did not bind her, as he was her agent only for the purpose of paying the notes. We have already said that the mortgage and notes were negotiable, and we agree with the learned circuit judge that the evidence shows that notice of the assignment to the complainant was given.to Mr. Cayan in 1891, and that his agency was such that it was equivalent to notice to his wife. Leland v. Collver, 34 Mich. 418, 427.

The decree is affirmed, with costs.

The other Justices concurred.


author: Grant, C. J.

text:
    FIRST NATIONAL BANK OF PAW PAW v. SHERMAN’S ESTATE.
    Estates of Decedents — Presentation of Claims — Limitations.
    2 How. Stat. § 5901, providing that all claims against estates of deceased persons shall be forever barred unless presented within the time limited for that purpose, applies, although no inventory is filed, previous to the order of hearing, showing property which can be devoted to the payment of debts.
    Error to Van Burén; Buck, J.
    Submitted June 17, 1898.
    Decided July 12, 1898.
    The First National Bank .of Paw Paw presented a claim against the estate of Alonzo Sherman, deceased. The claim was disallowed by the probate court, and claimant appealed to the circuit. From a judgment for defendant, claimant brings error.
    Affirmed.
    This case was tried before the court without a jury. The following are the facts: Alonzo Sherman was indebted to claimant upon two promissory notes, — one for $5,000, dated January 22, 1882, payable three months from date; another for $653.20, dated December 27, 1886, due in six months after date. Mr. Sherman died December 22, 1887. December 26, 1890, his widow filed a petition for the appointment of an administrator. January 26, 1891, an administrator was appointed. February 6, 1891, appraisers were appointed, and on the same day an order was made allowing six months for the presentation of claims. Proper notices were given, and on August 10, 1891, an order was entered closing the estate to creditors. December 12, 1892, the widow presented a petition praying for a setting off to her of $200 in cash, and an order therefor was duly allowed. December 13, 1892, an inventory was filed showing the estate to consist of $200 in cash. On the same day a petition was filed by the widow praying for the probate of the will of the deceased, which will was duly admitted to probate, January 9, 1893. December 26, 1896, Mrs. Sherman died, leaving a will devising her property in trust for the use and benefit of her son, Joseph. Some time prior to 1885, when does not appear, the Connecticut Mutual Life Insurance Company issued a policy upon, the life of Mrs. Sherman, payable to her husband upon her death. March 27, 1885, this policy was surrendered, and a paid-up policy for $1,966 issued in its stead, payable to Mr. Sherman upon his wife’s death. This policy was, by the last will of Mrs. Sherman, bequeathed to trustees in trust for her son. In 1897 the insurance company paid this money to the executor of the will and administrator of the estate of Mr. Sherman. Mr. Sherman bequeathed all his property to his wife during her natural life, and after her death to his son, Joseph. On the 9th day of March, 1897, the probate court allowed the claimant to present its claim against Mr. Sherman’s estate. Upon the hearing the claim was disallowed. The circuit court affirmed the decision of the probate court, upon the ground that the claim was barred by the statute of limitations.

      M. L. Howell, for appellant.

      Benjamin F. Heckert and A. Lynn Free, for appellee.
   Grant, C. J.

(after stating the facts). The $5,000 note had been due about five years and eight months when Mr. Sherman died. The other note was also a few months past due. The death of the debtor suspends the running of the statute of limitations. 2 How. Stat. § 8722. It suspends the statute for two years after granting letters testamentary or of administration, and not afterwards. Section 5901, 2 How. Stat., provides that all claims against estates of deceased persons shall be forever barred unless presented within the time limited for that purpose. Claimant for some reason did not see fit to present its claim when it had the opportunity. There is nothing upon which to base a charge of fraud or concealment of the assets of the estate. Why the will was not presented does not appear. Whether the insurance policy was an asset of the estate we need not determine.

No steps were taken for about 10 years by the claimant, nor until the insurance company had paid the money to the executor of Mr. Sherman’s estate. This did not determine that the money legally belonged to his estate. It is contended that upon his death the policy became hers. So far as this claimant is concerned, it is immaterial to whom the insurance money belonged. Its claim is barred under the statute.

Counsel for claimant contends that creditors may wait until an inventory is filed showing property which can be devoted to the payment of the debts of the deceased, and that the'court has no power to appoint commissioners on claims, or enter an order that claims be heard before the court, until the inventory shows such property. We cannot concur in this view. The presentation of claims is not conditional upon the inventory, nor does the statute require that the inventory precede the hearing of claims. Claimant had an opportunity for its day in court, and failed to improve it. The statute now bars its claim.

Judgment affirmed.

The other Justices concurred.


author: Per Curiam.

text:
      In re SHERMAN’S ESTATE.
    Estates op Decedents — Order Transperrinu Assets — Creditors.
    A creditor of decedent, whose claim is barred by the statute, cannot contest an order transferring assets of the estate to another claimant.
    Error to Van Burén; Buck, J.
    Submitted June 17, 1898.
    Decided July 12, 1898.
    The First National Bank of Paw Paw, a claimant against the estate of Alonzo Sherman, deceased, appealed from an order of the probate court transferring the proceeds of a life-insurance policy from said estate to the estate of Eugenia T. Sherman, deceased. From a judgment affirming the order, claimant brings error.
    Affirmed.

      M. L. Howell, for appellant.

      Benjamin F. Heckert and A. Lynn Free, for appellee.
   Per Curiam.

This is the companion of the foregoing case. The court below entered an order transferring the insurance money from the estate of Alonzo Sherman to the estate of Mrs. Sherman, on the theory that it belonged to her estate. From this the claimant has appealed. This right of appeal depends upon the allowance of its claim. Having decided that it has no provable claim against the estate, it follows that its appeal in this case must fall.

Judgment affirmed.


text:
    MENSING v. MICHIGAN CENTRAL RAILROAD CO.
    1. Carriers of Passengers — Safe Place to Alight.
    A passenger who is invited by the carrier to alight from a car in a locality where he is a stranger has a right to presume that the place where he is asked to alight is reasonably safe.
    2. Same — Accumulation of Snow — Buried Rail — Negligence.
    A railroad company is guilty of negligence in running its car , past the station platform, and inviting a passenger to leave the car, unassisted, at a place where, in alighting, he will naturally step upon the rail of a side track hidden in the snow.
    Error to Washtenaw; Kinne, J.
    Submitted June 18, 1898.
    Decided July 12, 1898.
    Case by August Mensing against the Michigan Central Railroad Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    Plaintiff was a passenger over defendant’s road from Niles to Dowagiac, on the morning of February 19, 1896. A severe snowstorm was in progress, and at Dowagiac there was about 10 inches of snow upon the ground. The brakeman had announced that the next station would be Dowagiac, and, as the train stopped, he opened the door and announced the station. Plaintiff, with his valise in one hand and his sample case in the other, stepped off the train, and in doing so claims that his right heel struck upon a T rail of a side track covered by the snow; that he slipped, fell, and was injured. In front of the depot was a plank platform 14 feet wide, and extending some little distance west of the depot. From the west end of this platform a cinder walk, level with the platform, extends westward. North of the platform and cinder walk is a park 137 feet long. From the end of the plank platform to the west end of the park is 105 feet. A spur track commenees very near the west end of the platform, and extends in a westerly direction on the north side of the track. The claim of plaintiff is that the car in which he was riding did not stop opposite the platform, but opposite the side track, so that in stepping off he would naturally step on the north rail of the side track, which was hidden in the snow. The negligence charged is the invitation to alight in an unsafe place. Plaintiff had verdict and judgment.

      John F. Lawrence (O. E. Butterfield, of counsel), for appellant.

      Lehman Bros. (H. Wirt Newkirk, of counsel), for appellee.
   Grant, C. J.

(after stating the facts). Defendant urges that no negligence was shown, because the place where plaintiff was invited to alight was safe in the daytime, and was only rendered unsafe by the snow, and that the sudden fall of snow was therefore the approximate cause of the accident. It is sought to apply to this case the rule that municipalities are not liable for damages resulting from natural accumulations of ice and snow. There may be situations where this rule will apply, but it is not applicable to the present case. - It was held in Piquegno v. Railway Co., 52 Mich. 40 (50 Am. Rep. 243), that a railroad company does not owe the duty to its employés to remove the snow and ice from the ground along its track, even in proximity to depot platforms. In Canfield v. Railway Co., 78 Mich. 356, the company was held liable to a pedestrian falling upon an accumulation of ice caused by the freezing of water dripping from the water-spout of its water;tank upon the sidewalk. These are the only two cases cited from this court, and we do not recall any others involving accumulations of ice and snow.

Plaintiff was a stranger, was invited to alight, and had the right to presume that the place was reasonably safe. Counsel for the defendant appear to concede that, if a passenger was invited to alight at such place in the night, it would he negligence not to warn him of the danger, and take reasonable means to assist him in alighting. The brakeman was chargeable with knowledge of the location of the track. A little effort on his part with his foot would have removed the snow from the rail, and showed a safe place to alight. The danger was, or should have been, known to defendant. It was not, and could not have been, known to the plaintiff. Cartwright v. Railway Co., 52 Mich. 606 (50 Am. Rep. 274), states the rule governing this case, as follows:

“If a car in which there were passengers was not standing where it would be safe for them to alight without assistance, it was the duty of the company to provide assistance or give warning, or to move the car to a more suitable place. ”

See, also, the authorities cited in that case.

The case was properly submitted to the jury.

This case was twice ‘tried, the first jury rendering a verdict for the defendant. That verdict was set aside by the trial judge, and a new trial ordered. It is urged that plaintiff changed his testimony in the last trial from what it was in the first as to the place where he alighted. On account of this discrepancy, counsel urge the verdict ought not to stand. It is claimed that on the first trial he located the place where it was impossible for him to have stepped upon the rail, while upon the second trial he located it farther west. We do not think there was such discrepancy as to justify us in reversing the case. We think it was a question for the jury, and we see no occasion for disturbing their verdict.

Judgment affirmed.

The other Justices concurred.


text:
    ATTORNEY GENERAL v. FORT STREET UNION DEPOT CO.
    Railroads — Crossings—Viaducts—Maintenance.
    An order oí the railroad’ commissioner, under 3 How. Stat. § 3301, requiring that a viaduct, to be erected to carry the tracks of one railroad company over those of another company, should be so constructed as to provide a passageway for pedestrians and teams, though not so expressly providing, implies a duty on the part of the companies to keep such passageway in repair.

      Mandamus by Fred A. Maynard, attorney general, to compel the Fort Street Union Depot Company to aid in the maintenance and repair of a certain viaduct.
    Submitted June 20, 1898.
    Writ granted July 12, 1898.

      Fred A. Maynard, in pro. per.

      Edward A. Gott (Benton Hanchett, of counsel), for respondent.
   Moore, J.

The relator asks for a writ of mandamus to compel the respondent to aid in the maintenance and repair of a viaduct over certain streets in the city of Detroit. The record shows that in October, 1889, the respondent presented to the railroad-crossing board a map and survey of its depot grounds and the route of its proposed tracks for approval. At this time the company contemplated building a trestle or viaduct along and over River street, in the city of Detroit, crossing the tracks of the Michigan Central Railroad, near Eleventh street. At this time the Michigan Central Company had 13 tracks crossing River street at an angle. The railroad-crossing board found this crossing was then dangerous, and that some means should be provided to secure the safety of teams and foot passengers. The board also determined that the setting of posts along River street to support the viaduct superstructure, the superstructure itself, and the noise and smoke of passing trains, would increase the danger, and refused to approve of the map unless some provision was made for the safety of teams and foot travelers. After this the Union Depot Company and the Michigan Central Nailroad Company appeared, before the board by their attorneys, when an order was drawn by the attorney of the Union Depot Company, and agreed to by both companies, and assented to by the railroad-crossing board, which provided, among other things, for the construction of a viaduct at an elevation of at least 18 feet of clear space over the tracks of the Michigan Central, and that- — •

“The said superstructure shall be so constructed on River street as to provide a passageway for teams and foot travelers, and in accordance with plans and specifications to be first submitted to and approved by the commissioner of railroads. The cost of the part of the superstructure for the passage of teams and foot travelers, and of the approaches thereto, shall be borne by the two companies in interest, in equal proportions, share and share alike.”

'The map of the respondent at this time was approved, and was afterwards filed. Afterwards the commissioner ■of railroads made an order requiring the construction of ;an overhead passageway for the use of teams and footmen, and specifying the manner and place of its construction. The findings of the crossing board and the orders made may be found in full in Fort St. Union Depot Co. v. State Railroad-Crossing Board, 81 Mich. 248. The viaduct was afterwards constructed, and the cost borne share and share alike by the two companies. This viaduct was allowed to become so out of repair as to be dangerous for travel, and has been closed by the board of public works of the city of Detroit for that reason. In January, 1897, the state railroad commissioner, after a full hearing and after due notice, found the superstructure was constructed at the expense of the two companies in the .interest of public safety, and that all the conditions which led to the necessity of the construction of the viaduct still exist, and make its maintenance necessary. The commissioner made an order requiring its maintenance, at the expense of the two companies, share and share alike. The Michigan Central Railroad Company has always been, and is now, ready to pay half the cost of maintenance, but the respondent refuses to do so, basing its refusal upon two grounds:

1. Because the order requiring the construction of the viaduct did not require its maintenance.

2. Because the viaduct, whfen built, became a public highway, dedicated to the public, and accepted by it, and the expense of maintenance should be borne by the city of Detroit, — citing 3 How. Stat. § 3301; 3 Elliot, R. R. § 1092, and notes.

It is true the word “maintain” is not used in the orders made prior to the construction of this viaduct. It is, however, impossible for one, after reading the details of what occurred and the orders made, to conclude that any one then expected, when the viaduct was constructed, the duty of- the two companies towards the passageway for teams and foot travelers would be ended, and they forever absolved from maintenance. It is a significant fact that the Michigan Central Railroad Company has never so understood the proceeding. The railroad-crossing board and the railroad commissioner found the erec-. tion of this superstructure increased the danger to teams and foot passengers on the River-street crossing. It is perfectly evident that, as long as the superstructure is continued, the danger will be continued, and, if it was necessary in the first instance to construct this passage-way, it is equally necessary it should be maintained so it shall be reasonably safe and fit for travel. The original increase in danger was caused by the necessity of this structure to enable the respondent to do business. The continued danger is caused by the continuance of this structure in the street and its use by the respondent. Common fairness would imply the duty of the respondent to pay its share of maintenance.

If the railroad commissioner had, or the railroad-crossing board, under the more recent statute, should, make an order requiring a railroad company to erect gates at a street crossing, but failed to say anything about maintaining them, could it be said the railroad company had discharged its duty when it had erected its gates, and that afterwards some one else must maintain and operate them ? The duty to erect such structures and appliances carries with it the duty to maintain. People, ex rel. Attorney General, v. Bay County Bridge Commission, 115 Mich. 622; Dietrich v. Schremms, ante, 298. The question of the validity of the original orders made in this case was raised and passed upon in Fort St. Union Depot Co. v. State Railroad-Crossing Board, 81 Mich. 248. It was there held the orders were valid. The statute authorizing the commissioner to make the order provides:

“ Whenever, in the opinion of the commissioner of railroads, the safety of the public would be more efficiently secured by the building of a gate or bridge where a highway or street is crossed by any railroad, or where one railroad crosses or intersects another, he shall .direct the corporation or corporations owning or operating any such railroad * * * to erect and maintain a bridge or gate, as the public safety may demand; and in case such * * * gate or bridge is directed to be erected and maintained where one railroad crosses or intersects another, the expense shall be borne jointly,” etc. 3 How. Stat. § 3301.

Where a bridge is required under this statute by the railroad commissioner, the duty of the railroad company does not end with its construction, but its duty is continuous. It must maintain as well as construct.- It is not to be presumed the legislature intended to simply provide for the safety of the public at the time the bridge or gate is ordered. It intended to provide for the safe and convenient use of the highway for all time. Cooke v. Railroad Corp., 133 Mass: 185; Maltby v. Railway Co., 52 Mich. 108; Jeffrey v. Railroad Co., 108 Mich. 221 (31 L. R. A. 170). It is just as much the duty of the respondent to pay its share of maintaining this viaduct as it was to pay its share of construction.

The writ will issue as prayed.

Thé other Justices concurred.


author: Long, J.

text:
    PEOPLE, for use of HOLMES, v. GRANT.
    1. Appeal — Review op Proceedings — Failure to Object.
    Counsel may not sit by during the progress of a trial, interpose no objection, raise no question to be passed upon by the trial court, and afterwards, upon appeal, assign error upon the proceedings.
    2. Inquest — Action on Contractor’s Bond — Court Rules.
    Whether, under Circuit Court Rule No. 14, an inquest may properly be taken in an action upon a bond given by a contractor under 3 How. Stat. § 8411a, for the protection of laborers and material men, — quaere. ,

    Error to Wayne; Carpenter, J.
    Submitted June 8, 1898.
    Decided July 12, 1898.

      Assumpsit by the people of the State of Michigan, for the use and benefit of Frank B. Holmes' and Albert R. Strachan, against James Grant and others, upon a statutory bond. From a judgment for plaintiffs, defendants bring error.
    Affirmed.

      John J. Speed, for appellants.

      C. E. Warner, for appellees.
   Long, J.

This suit was brought to enforce the liability of the defendant James Grant as principal, and the other defendants as sureties, on a bond taken by the city of Detroit under 3 How. Stat. § 8411a. The declaration alleges that defendant James Grant entered into a- contract with the city of Detroit for paving, and that the bond was taken to secure the payment by the contractor for labor and material furnished in such work. The bond was in the penal sum of $1,664, and is conditioned that if the principal “shall well and truly pay, as the same may become due and payable, all indebtedness which may become due to any person, firm, or corporation on account of any labor performed or material furnished in the construction * * * of such * * * improvement, then this obligation shall be void.” -The declaration further avers the furnishing of a quantity of stone by Holmes & Strachan, and that the same was received by James Grant, and actually used in the work, and that defendants thereupon, became liable to pay the price thereof. The defendants pleaded the general issue, and gave notice of payment and recoupment. A bill of particulars was demanded of plaintiffs, and furnished by them, claiming $1,588.88, with payments indorsed thereon of $710.45, leaving a balance due of $878.43, exclusive of interest. Notice of inquest was given under Circuit Court Rule 14. On April 12, 1898, being the seventh day of the term, the case was called and inquest taken under the rule. Judgment was entered on that date, but the judgment was afterwards set aside by the court, and a new judgment entered nunc pro time as of April 12, 1898, for $897.43. This judgment, in form, recites the calling and impaneling of a jury. It also recites that “the parties being in court by their respective attorneys, and the cause coming on for trial on inquest as aforesaid, no express objection being made thereto, and from that the court did not understand that there was any objection, it being understood, however, that defendants’ counsel consented to nothing, and no affidavit of merits having been filed and served under the rules and practice of this court, and no defense being offered or interposed, thereupon came a jury trial, to wit,” etc. Defendants’ counsel caused a writ of error to issue from this court, and assigns as error the taking of the inquest, instead of a trial being had as provided by the general practice of the court. It is alleged that Rule 14 has no application to such cases.

Rule 14 provides:

“ (a) The plaintiff in any action on money bonds, promissory notes, or bills of exchange, at issue as well as at default, may have the same called out of its order on the calendar, and an inquest taken and judgment rendered thereon, on any day of the term after the first, in all cases where parties are sued in their individual capacity, unless the defendant or his attorney shall, before the first day of the term, have filed an affidavit of merits, and served a copy thereof on plaintiff’s attorney: Provided, the intention of the plaintiff to take an inquest under the rule be expressed in the notice of trial.
“(b) The plaintiff in any action on an open account may have the same called out of its order on the calendar, and judgment rendered thereon, on any day of the term' after the first, unless the defendant or his attorney shall, before the first day of the term, have filed an affidavit of merits, and served a copy thereof on plaintiff’s attorney: Provided, the intention of the plaintiff to take such course under the rule be expressed in the notice of trial, and the same be accompanied. by the affidavit of the plaintiff, his agent or attorney, showing the amount of the indebtedness over and above all legal set-offs, and that he has good reason to believe, and does believe, that the defendant has no defense to the plaintiff’s action, and that he believes the plea is interposed for the sole purpose of delay: and Provided further, that a bill of particulars of plaintiff’s demand, containing the debit and credit items of the account, accompany the notice of trial and inquest, unless the same shall have been previously filed and served.”

The notice of inquest is returned in the record, together with the affidavit of Frank B. Holmes, one of the plaintiffs, in substantial compliance with Rule 14, stating the amount of the account over and above all legal set-offs. The bill of particulars containing the debit and credit items of the account had before this been filed in the case and served upon defendants’ counsel.

We are not called upon to determine whether the present case could have been noticed for inquest under Rule 14. The judgment entry shows that the parties were in court by their respective attorneys, and the cause came on for trial on inquest, and no express objection was made thereto, and the court did not understand that any objection to an inquest was made. No affidavit of merits was filed or served, and no defense was offered or interposed.

The question is presented whether counsel can sit by during the progress of a trial, interpose no objection, raise no question to be passed upon by the trial court, and after-wards come into this court and assign errors upon the proceedings to which he* made no objection. Such practice is not to be commended. In Rayl v. Hammond's Estate, 95 Mich. 22, it was said: “It is the duty of counsel to present their propositions of law, and of the court to specifically pass upon them, or such of them as he deems to be decisive of the case.” If the case was one in which an inquest could not properly be taken, and the attention of the court had been properly called to the fact, undoubtedly the court would have compelled the proceedings to be taken under the usual practice, and defendants permitted to interpose their defense upon the merits. Fairness to the court and counsel demanded this course. If the record had not shown that counsel for defendants was present at the trial, we should feel called upon to pass upon the question whether the case was one proper for an inquest; but, as the record now stands, we are not inclined to do so.

The judgment must be affirmed.

The other Justices concurred.


text:
    HALL v. COLLINS.
    1. Tax Sales — Who May Make.
    Tax sales, under the statute, must be conducted by either the county treasurer or his legally appointed deputy, and a sale made by a mere clerk in the office of the treasurer is void.
    3. Same — Officer as Agent for Purchaser.
    An officer making a tax sale, and bound by the statute to realize the tax from the sale of as small an interest in the land as possible, cannot bid in the premises as agent for another.
    Appeal from Roscommon; Sharpe, J.
    Submitted June 7, 1898.
    Decided July 12, 1898.
    Bill by Alice A. Hall and others against William Collins and Eugene Kiely to set aside a tax deed. From a decree for complainants, defendants appeal.
    Affirmed.

      George L. Alexander, for complainants.

      Henry H. Woodruff, for defendants.
   Moore, J.

This is a proceeding in chancery, in which complainants obtained a decree setting aside, upon the payment of the taxes due, a tax deed upon certain lands described in the bill of complaint. The defendants appeal from the decree. A good many reasons are alleged in the bill of complaint why the deed should be set aside. It will not be necessary to consider them all. The record shows that the sale was not conducted by the county treasurer or a deputy county treasurer, or that either of them was present, but it was conducted by the defendant Kiely, who was acting as the clerk of the county treasurer. The sale occurred in May, 1893. The record shows that in March, 1893, the defendant Mr. Collins, who was the brother-in-law of Mr. Kiely, left money with him, and requested him to bid in these lands for Mr. Collins, who was then living on a farm belonging to Mr. Kiely. This was done by Mr. Kiely, Mr. Collins not attending the sale, or making any bid except as it was made for him by Mr. Kiely. The lands were afterwards conveyed by Mr. Collins to Mr. Kiely.

Section 521, 1 How. Stat., provides that the county treasurer may appoint a deputy, who, in the absence of the county treasurer, may perform his duties. Section 1 of article 18 of the Constitution provides that certain officers, among whom are county' treasurers, shall take the oath of office before entering upon their duties. Section 62, Act No. 195, Pub. Acts 1889, and section 62, Act No. 200, Pub. Acts 1891, provide that the county treasurer shall make the sales of lands under tax decree, and that “sale shall be made to the person offering to pay the amount -charged against such parcel in the decree, and accept a conveyance of the smallest undivided fee simple interest therein,” and that “no greater interest in any parcel shall be sold than is sufficient to pay the amount of the tax on which the same is sold,” etc. They also provide that the county treasurer, in his discretion, may require immediate payment of any person to whom land is sold. The making of these sales is made the official duty of the county treasurer. Official acts must be performed by an officer. We do not intimate that a clerk may not be employed to assist in conducting these sales; but the authority to make them is given to the county treasurer, and they should be conducted by him, or by his legally appointed deputy, or under his direction.

It has already been seen that it is the duty of the officer conducting the sale to sell as small a portion of the land as possible, and yet realize the amount of the tax assessed against it. This duty cannot be harmonized with the duty an agent owes to his principal who is a bidder at tax sales, whose interest is to procure the entire parcel for the amount of the tax. In Leaton v. Murphy, 78 Mich. 77, it was held that sales for delinquent taxes are governed by the rules relating to judicial sales. In Clute v. Barron, 2 Mich. 192, it was held that a county treasurer could not himself become a purchaser at tax sales conducted by him. In Dwight v. Blackmar, Id. 330 (57 Am. Dec. 130), it was held that an administrator could not become a purchaser of the estate or effects of his intestate. The provision of the statute in requiring the tax to be made from the sale of as small a portion of the parcel of land as possible is in the interest of the taxpayer. It is the duty of the treasurer to take care of that interest. He ought not to act for a purchaser, because the two interests are conflicting. See 27 Am. & Eng. Enc. Law, 200. The conclusion that Mr. Eiely and Mr. Collins were acting in concert is not an unreasonable one.

The decree made by the circuit judge is affirmed, with costs.

The other Justices concurred.


text:
      In re CLINK.
    Attorneys — Disbarment.
    An application for the disbarment of an attorney will he denied unless the charges against him are clearly sustained by the evidence.
    Application by Henry E. Chase, deputy attorney general, for the disbarment of Stephen H. Clink and Philip W. Niskern.
    Heard before the Supreme Court June 4, 1898.
    Denied July 12, 1898.

      Henry E. Chase, in pro. per.

      W. J. Turner (M. V. & R. A. Montgomery, of counsel), for respondent Clink.

      George S. Lovelace and Chamberlain & Cross, for respondent Niskern.
   Per Curiam.

While this proceeding has been held not to be strictly a criminal prosecution, still the punishment is severe and highly penal. The charges ought to be clearly sustained. To quote the language of this court in a similar proceeding, we “are not satisfied that the evidence gives such clear support to the charges as should be required in such cases.” In re Baluss, 28 Mich. 507.

An order will therefore be entered denying the application.