text:
    GRAHAM v. BOARD OF SUPERVISORS OF MANISTEE COUNTY.
    1. Intoxicating Liquors — Time—Affidavits.
    Between, the date of the posting of the petition for a local option election and the affidavit showing the same a period of ten days was sufficient, including either the day of posting or the date of filing with the county clerk. 2 Comp. Laws, § 5415 (2 Comp. Laws 1915, § 7083).

    2. Same — Poll Lists — Statutes—Evidence.
    After a poll list is filed with the county clerk, it becomes a, public record and is proof of the facts stated or contained in it: the clerk may consult it of his own motion. 1 Comp. Laws, § 3661 (1 Comp. Laws 1915, § 3729).
    3. Same — Local Oftion — Petitions.
    The sufficiency of petitions to submit the question of county prohibition, under 2 Comp. Laws, §§ 5414-5417 (2 Comp. Laws 1915, §§ 7082-7085), depends on the number of electors as shown by transcripts of the poll lists that accompany them, or, if they are not filed together, the county clerk or board of supervisors may consult the lists to determine whether or not a sufficient number of electors have signed the petitions.

      4. Same — Number oe Petitionees.
    The statute does not require the clerk or hoard to compare each petition with the poll list of the corresponding voting precinct, hut the petitions suffice if the total number of signers equal one-third of the number of qualified electors as evidenced by .the returns or county canvass of the vote at the last general election, or by the certified transcripts accompanying the petitions.
    5. Same.
    And, held, on certiorari, to review mandamus proceedings in which the lower court denied the writ to compel the hoard to reconvene and determine the sufficiency of the petitions, that the duty of the board was clear and the writ should issue to compel performance thereof.
    Kuhn, Bird, and Brooke, JJ., dissenting.
    Certiorari to Manistee; Withey, J.
    Submitted January 24, 1916.
    (Calendar No. 27,098.)
    Decided February 23, 1916.
    Mandamus by William J. Graham against the Board of Supervisors of Manistee County to compel respondent to reconvene and to submit the question to vote of the qualified electors of said county as to whether the manufacture of liquors and the liquor traffic should be prohibited within said county. An order denying the writ is reviewed by relator on certiorari.
    Reversed.

      Edwin Rawden, for relator.

      Howard L. Campbell, for respondent.

      The rules as to first and last days in computing time are discussed in notes in 49 L. R. A. 193, 15 L. R. A. (N. S.) 686.

   Brooke, J.

(dissenting). This is certiorari to mandamus. Certain qualified electors of the county of •Manistee filed petitions with the county clerk of said county asking for the submission of the prohibition question to the electors of said county. The county clerk, as was his duty under the statute, reported the facts to the board of supervisors. From his report it appears:

(1) The total number of signatures attached to the several petitions was 1/390.
(2) The affidavit as to the genuineness of 26 of the signatures to one of said petitions was taken before an official not authorized to administer oaths in Mibhigan.
(3.) That the other 1,364 signatures were verified according to statute.
(4) The total number of qualified electors in the county of Manistee as appears by the poll lists at the last general election held on the 3d day of November, 1914, was 4,096.
(5) The total number of votes cast for governor at the last general election, held on the 3d day of November, 1914, as appears by the return of the board of canvassers, was 4,026.

Using the number of qualified electors as determined by the poll lists as the dividend, and 3 as the divisor, we arrive at a quotient of 1,365 1/3. If we use a dividend of 4,026, the number of votes cast in said county according to the returns of the board of county canvassers for governor, the quotient would be 1,342: By the first method of computation the number of petitioners would be found to be too few, and by the second method the number would be in excess of the statutory xequirement.

The statutory affidavits accompanying the petitions, as filed with The county clerk, were all made 10 days after the posting, if either the day of posting or the day upon which the affidavit was made was included. The board of supervisors refused to make an order of submission. Application for mandamus was thereupon made to the circuit court for the county of Manistee, and the learned circuit judge determined that the verifying affidavits showed upon their face that the time elapsing between the posting of the petitions and making of the affidavits was insufficient, and therefore refused to issue the writ. In this holding the court was in error. The matter has'been recently carefully considered by this court. Ehinger v. Graham, ante, 132 (155 N. W. 747), where a contrary conclusion was reached.

The question still remains, however, whether the board of supervisors has legally refused to submit the question upon the ground that a sufficient number of qualified electors had not signeod the petitions. The controlling statutory provisions are as follows:

2 Comp. Laws, § 5414 (2 Comp. Laws 1915, § 7082): “In order to ascertain the will of the qualified electors of each organized county, in regard to such prohibition, it shall be the duty of the county clerk of the counties of this State, severally, upon written application and petition filed with him and addressed to the board of supervisors óf the county, signed by not less than one-fourth [now one-third] of all the qualified electors thereof, as shown by. the poll lists or returns and canvass of the last preceding general election for Ststto officers $
2 Comp. Laws, § 5415 (2 Comp. Laws 1915, § 7083) : “To enable the county clerk to ascertain that the petitioners thus praying for such an election are qualified electors of such county, and that they constitute at least one-fourth [now one-third] of all the electors of such county, as shown by the poll list or the returns and canvass of the last preceding general election * * * Provided, however, that, if for any reason a certified transcript of any poll list shall not have been procured, or if such transcript shall be defective, it shall be sufficient if the whole number of all the petitioners is equal to one-fourth [now one-third] of the number of all the qualified electors of such county, as shown by the returns or county canvass of the last preceding general election.”
2 Comp. Laws, § 5416 (2 Comp. Laws 1915, § 7084): “When such petitions shall have been presented to the county clerk he shall file the same in his office, and when it shall, appear upon the face thereof, and by the transcripts of the poll lists, or by reference to the returns and canvass of the last general election, that such election has been prayed for by not less than one-fourth [now one-third] of all the qualified electors of the entire county, shown as aforesaid. * * *”

A reading of all of these statutory provisions leads to the conclusion that the basic fact for determination is that the petitions have been signed by one-third of the qualified electors of the county. That fact is to be determined primarily from transcripts of the poll lists, and secondarily by reference to the returns and canvass of the last general election.

The proviso contained in section 5415, supra, shows that if for any reason certified transcripts of any poll lists shall not have been procured, or if such" transcript shall be defective, recourse may then be had to the returns or county canvass of the last preceding general election. In the case at bar the communication of the county clerk to the board of supervisors clearly shows that the poll lists of November 3, 1914, were available, and that a computation could be made therefrom. It further shows that by a computation made therefrom a sufficient number of qualified electors had not signed the petition. We do not think it was the intention of the legislature to permit the board of supervisors at its will to select either the poll lists or returns and canvass of the last general election as a basis for determining whether or not the requisite number of qualified electors signed the petition. It is only in the event of the failure to procure a certified transcript of the poll lists, or if such transcript shall be defective, that the computation may lawfully be made from the returns or county canvass of the last preceding general election. In the case at bar it does not appear either that the certificate of the transcript of the poll lists was not procured, or that it was defective. We must therefore hold that the board of supervisors properly refused to order the question to be submitted.

It appearing that the learned circuit judge made a proper order in the case, the judgment should therefore be affirmed.

Kuhn and Bird, JJ., concurred with Brooke, J.

Ostrander, J.

The record shows affirmatively, I think, that petitioners did not procure and present poll lists to the clerk, and that the clerk of his own motion consulted the poll lists. This he easily might do, in most cases, because it is the law that one of the poll lists from each voting precinct shall be filed with and preserved by the county clerk. 1 How. Stat. (2d Ed.) § 249; 1 Comp. Laws, § 3661 (1 Comp. Laws 1915, § 3729). When so filed, a poll list is a public record admissible in evidence of the facts therein stated. Attorney General v. May, 97 Mich. 568, 574 (56 N. W. 1035).

Should the county clerk, and should the board of supervisors, in all cases where the poll lists are available, and are not defective, consult them and determine by them whether a sufficient number of electors have signed the petitions? This is a question not determined in the circuit court and.not before this time presented to this court. In practice this question has heretofore — uniformly, I think — been answered in the negative. It must now be answered as proper construction of the statute requires.

There is no such thing as a county poll list. There is a poll list for each voting precinct in the county. Petitions under the statute in question here come from precincts, wards, townships, and each must be separate and distinct from those of any other township, ward, or election district. One of the many petitions, presented to the clerk may have a poll list attached (procured) ; that is, a poll list of the voters in the voting precinct. One-half of the petitions may be accompanied by poll lists. With some petitions no poll lists may be filed. If one from each precinct' is procured and filed, the total number of voters as shown by the poll lists is to be used for purposes of comparison. If for any reason a certified copy of any poll list shall not have been procured or shall be defective, then it shall be sufficiént if the whole_ number of all the petitioners is equal to one-third the'number of all the qualified electors as shown by the returns or county canvass. This is the express language of the proviso, the terms of which qualify the provisions of section 5415.

It is the duty of the county clerk to lay before the supervisors—

“the petitions filed in his office praying for such election, and when, upon examination, it shall appear to said board, upon the face of said petitions, and by the transcripts of the poll lists, or by reference to the returns and canvass of the last general election, that such election has been prayed for by the requisite number of electors, as' hereinbefore provided, they shall, by resolution, determine and declare to that effect, and such determination shall be final as to the sufficiency of the petitions and the requisite number of electors signing the same.” Section 5417.

The legislature has not placed upon the clerk or the board of supervisors the duty to compare each petition —from each voting precinct — with the poll list of that precinct preserved in the office of the county clerk, and, if not found there, then with the poll list preserved in the voting precinct. It has not said that poll lists shall be used for comparison if poll lists are procurable. The inquiry is limited, the investigation confined—

“to ascertaining from a comparison of the number of names on the petition with the number on the records mentioned in the statute.” Kern v. Board of Supervisors, 160 Mich. 11 (124 N. W. 941).

See, also, Rutledge v. Board of Supervisors, 160 Mich. 22 (124 N. W. 945).

The records mentioned in the statute are the tran scripts of the poll lists and the returns and canvass of votes. The legislature seems to have considered that to secure the referendum in such cases substantially one-third of the qualified electors of the county shall demand it; it being sufficient in all cases where poll lists from all voting precincts do not accompany the petitions if the total number of petitioners equals one-third the number of qualified electors as shown by the returns or county canvass of the vote at the last general election.

In my opinion, this is the construction which must necessarily be given to the law; all of its provisions, and its purpose, being considered. It is the construction which is supported by what the legislature did not say as well as by what appears in the act. It would have been a simple thing to provide that the clerk and board should consult the poll lists on file in the office of the clerk. But the law speaks only of poll lists (transcripts) accompanying the petitions. It is the construction which the law has uniformly received. Courts ought to accept as sufficient what the legislature' has said is sufficient.

I agree with Mr. Justice Brooke that the court below wrongly decided the point upon which the judgment rests. I disagree with him in the conclusion that the decision may be for other reasons sustained. The court should have reached a different conclusion, and should have issued the writ. As the duty of the board appears to be plain and the board adjourned without performing it, the writ must now issue directing the board to reconvene and make the required and necessary determination.

Stone, C. J., and Moore, Steere, and Person, JJ., concurred with Ostrander, J.


source: Caselaw Access Project

author: Kuhn, J. Brooke, J.

license: Public Domain

text:
    PEOPLE v. JOHNSON.
    1. Criminal Law — False Pretenses — Information—Sufficiency —Fraud—Obtaining Money by False Pretenses.
    Averments of an information in a prosecution for obtaining money under false pretenses that plaintiff falsely represented to a bank that he had information concerning the financial affairs of a company and had a statement showing its assets and liabilities, which he presented to the bank officials to obtain credit for the company, that the assets were exaggerated and liabilities understated, and the bank was deceived by the statement and was induced to accept a note of the company thereon, were sufficient to sustain a conviction of an offense and violation of 3 Comp. Laws, § 11575 (3 Comp. Laws 1915, § 15320). Stone, C. J., and Kuhn and Bird, JJ., dissenting.
    2. Same — Intent—Fraud.
    Three things must concur to constitute the crime of obtaining money under false pretenses: (1) the intent to defraud, (2) the false pretense, made with the intent to deceive, and (3) the fraud accomplished. ■
    3. Same — Payment—Evidence.
    Where the bank at the time the statement was presented to it held the note of said corporation for $996.28, which was .reduced by the payment of $500 and a new note given, no payment of money or giving of credit was involved, and the facts did not support the allegations of the information.
    Error to superior court of Grand Rapids; Stuart, J.
    Submitted November 5, 1914.
    (Docket No. 160.)
    Decided February 26,1916.
    Charles L. Johnson was convicted of obtaining money under false pretenses.
    Reversed; respondent ‘discharged.

      Grant Fellows, Attorney General, L. W. Carr, Assistant Attorney General, and Earl F. Phelps, Prosecuting Attorney, for the people.

      Clapperton, Owen & Hatten {William S. Forrest, of counsel), for respondent.
   Kuhn, J.

{dissenting). The respondent was convicted upon an information containing two counts and charging him and one Frank Jones in the first count with having obtained, by means of certain false pretenses, from the Old National Bank of Grand Rapids, Mich., the sum of $496.28 lawful money, and in the second count with having conspired together to obtain said amount from the bank by false pretenses. The verdict of the jury was as follows:

“And say upon their oath that they find the respondent guilty of false pretenses over $25, in manner and form as the people have in their information in this cause charged,”

which it is conceded can only be held to refer to the first count in the information.

The first count sets up two sets of false representations, together with the negations thereof, and is as follows:

The Superior Court oe Grand Rapids.
State of Michigan, County of Kent, City of Grand Rapids.
William B. Brown, prosecuting attorney for the county of Kent aforesaid, for and in behalf of the people of the State of Michigan, comes into said court, in the September term thereof, A. D. 1911, and gives it here to understand and be informed, that one [Charles L. Johnson and Frank G. Jones, on, to wit, the 22d day of May, A. D. 1911, at the city of 'Grand .Rapids, in the county of Kent aforesaid, with intent to cheat and defraud the Old National Bank, a corporation,^having its office and principal place of business in the city of Grand Rapids, Michigan, and to fraudulently obtain four hundred ninety-six and twenty-eight one-hundredths dollars, lawful money of the United States, from said Old National Bank, a corporation as aforesaid, did designedly falsely represent and pretend to the said Old National Bank, a corporation, aforesaid, that they, the said Charles L. Johnson and Frank G. Jones, were the agents and representatives of the American Electric Fuse Company, a corporation, and were knowing to and had accurate and positive information as to the business and financial, affairs and condition financially of said American Electric Fuse Company, and that they knew the sums and amounts of the assets and of the liabilities of said American Electric Fuse Company; that they had caused to be made and had in their possession a certain statement showing the sums and amounts of the assets and liabilities of said American Electric Fuse Company, on, to wit, January 14, 1911, the first line thereof and thereon being “Summary January 1st, 1911,” which statement and summary the said Charles L. Johnson and Frank G. Jones presented and caused to be presented and filed with the Old National Bank, a corporation aforesaid, on, to wit, January 14, 1911, for the purpose of showing to said Old National Bank the financial condition of said American Electric Fuse Company, and for the purpose thereby of obtaining credit to said Charles L. Johnson and Frank G. Jonés and to said American Electric Fuse Company, from said Old National Bank, and for the purpose of showing the solvent and prosperous condition of said American Electric Fuse Company, so that said American Electric Fuse Company and the said Charles L. Johnson and Frank G. Jones could borrow and receive money from said Old National Bank on the credit of said American Electric Fuse Company, and for the purpose of borrowing money from said Old National Bank by and for and obtaining credit' for the said American Electric Fuse Company, said summary showing that the assets of said American Electric Fuse Company were upwards of $709,000, and. that the total liabilities of said American Electric Fuse Company, on, to wit, January 14, 1911, were not_ to exceed $163,333.08, and for the purpose of showing to and assuring the said Old National Bank that if it would loan and advance moneys to said American Electric Fuse Company, and that if said Old National Bank would discount the notes of said American Electric Fuse Company, notes payable directly to said American Electric Fuse Company, and notes made by it, that any and all sums of money which would be paid and advanced by said Old National Bank to, for, and to the credit of said American Electric Fuse Company, should the same be paid on notes direct to, or on notes payable to said American Electric Fuse Company and by it indorsed, or money borrowed by said American Electric Fuse Company from said Old National Bank, or placed to the credit of said American Electric Fuse Company by said Old National Bank, that said Old National Bank could, with safety, advance all such sums of money to said American Electric Fuse Company, and that all such sums of money so paid and advanced to the said American Electric Fuse Company, or upon its order or indorsement by said Old National Bank, would be repaid to said Old National Bank by said American Electric Fuse Company promptly and when the same became due.
That after filing the above-mentioned summary with, the Old National Bank aforesaid, and knowing that said summary had been received by said Old National Bank and relied upon and believed by said Old National Bank to be a true and correct statement of the assets and liabilities of said American Electric Fuse Company, on, to wit, the 22d day of May, 1911, said Charles L. Johnson and Frank G. Jones presented and caused to be presented to said Old National Bank for payment and credit to the account of the American Electric Fuse Company á certain promissory note, in words and figures as follows:
“Chicago, May 22, 1911. 19.. No...
"Two months after date we promise to pay to the order of American Electric Fuse Co., 1496.28, four hundred ninety-six & 28/100 dollars, payable at Continental and Commercial National Bank, value received, with interest at the rate of 6 per cent, per annum.
“Due
“Western Telephone Construction Co.
K. P. Robertson, Pres.”

on the back of which note was the indorsement, “American Electric Fuse Co., by Frank G. Jones, Pres.,” and falsely and fraudulently represented and pretended to said Old National Bank, that said note was good and a legal note and a legal obligation, and that the signature thereto was genuine, and that said note was given to said American Electric Fuse Company for sufficient and valuable consideration from said American Electric Fuse Company, and that there was then due to said American Electric Fuse Company on said note the sum of $498.28, and that if the said Old National Bank would then pay to the said American Electric Fuse Company the sum of $498.28, and would then place to the credit of and in the account of said American Electric Fuse Company with said Old National Bank, in said Old National Bank, said account being a commercial check account, the sum of $496.28, the amount for which said note was given, on and for said note, the said note with the indorsement thereon would be delivered and transferred to said Old National Bank in consideration therefor, and that said Old National Bank would be amply and sufficiently secured for the amount so advanced to the credit of said American Electric Fuse Company on and for said note as was fully shown by the solvent condition of said American Electric Fuse Company by said summary, and which repayment and security was guaranteed by the said indorsement on the back of said note, and the said Old National Bank, believing the said summary and the statements, and representations as to the assets and liabilities of said American Electric Fuse Company as therein contained, and believing the representations so made by the said Charles L. Johnson ,and Frank G. Jones, and relying thereon, was deceived thereby, and the said Old National Bank received the said note from said Charles L. Johnson and Frank G. Jones, agents of and representing the said American Electric Fuse Company, and paid to said American Electric Fuse Company at the instance of said Charles L. Johnson and Frank G. Jones, and to its said representatives, Charles L. Johnson and Frank G. Jones, the sum of $496.28 on and for said note, and on and for said note said Old National Bank placed to the credit of said American Electric Fuse Company in' said Old National Bank, in the commercial check account of said American Electric Fuse Company, the sum of $496.28 in consideration of and receipt of said note as aforesaid, and the said Old National Bank, a corporation aforesaid, believing the said false pretenses and representations so made as aforesaid by the said Charles L. Johnson and Frank G. Jones, it, the said Old National Bank, a corporation, was then and there deceived thereby, and was then and there induced by means of the said false pretenses and representations so made as aforesaid, to deliver and did then and there deliver $496.28, lawful money of the United States of the value of $496.28, of the money and property of it, the said Old National Bank, a corporation, to the said American Electric Fuse Company, and to said Charles L. Johnson and Frank G. Jones, as aforesaid.

And the said Charles L. Johnson and Frank G. Jones did then and there designedly, by means of said false pretenses and representations so made as aforesaid, unlawfully and fraudulently obtain from the said Old National Bank, a corporation, the said sum of four hundred ninety-six and 28/100 dollars of the moneys, goods, and property of the said Old National Bank, a corporation, with intent then and there to cheat and defraud it, the said Old National Bank, a corporation, of the same, they, the said Charles L. Johnson and Frank G. Jones, then and there well knowing the pretenses and representations, so as aforesaid by them made, to be false. And in truth and in fact, the said representations so as aforesaid by them made were false.

And whereas, in truth and in fact, the said summary statement filed with said Old National Bank on, to wit, January 14,1911, as aforesaid, purporting to show the assets and liabilities of said American Electric Fuse Company, was a false statement, did' not show the financial condition of said American Electric Fuse Company, did not show the condition "of the financial affairs of said company, and the assets of said American Electric Fuse Company, at the time said summary was filed with said Old National Bank as aforesaid, were far less in amount than therein stated, and the assets of said American Electric Fuse Company were greatly overstated in said summary, and the liabilities of said American Electric Fuse Company were very much more than as stated in said summary, and the liabilities of said American Electric Fuse Company were greatly in excess of' the assets of said company at the time said summary was filed with said Old National Bank.

And the said American Electric Fuse Company was not able to pay its debts, and was not able to pay the sums and amounts by it owed, and was not able to pay the sums credited to its account as aforesaid by said Old National Bank on the note and at the time aforesaid, and said note was not given for a sufficient or valuable consideration, and no consideration was given whatever by said American Electric Fuse Company for said note, and said note was made at the instance and direction of said Charles L. Johnson without any consideration therefor, and upon which no sum was ever due to said American Electric Fuse Company, and by said Johnson caused to be presented to said Old National Bank as aforesaid for the purpose of realizing money thereon to the said American Electric Fuse Company, and to the said Charles L. Johnson and Frank G. Jones, and said note was not a legal note, the signature thereto was not genuine, and said note was wholly worthless and of no value at the time it was presented and accepted by said Old National Bank as aforesaid, and said Charles L. Johnson and Frank G. Jones well knew at all times that-said note was absolutely worthless and of no value, to the great damage and deception of the said Old National Bank, a corporation aforesaid, and to the evil example of all others in like case offending, and against the form of the statute in such case made and provided, and against the peace and dignity of the people of the State of Michigan. ■

While a number of questions are raised, as to the information, the sufficiency of the verdict, and the charge of the court, the important question to first determine is whether in the first set of representations set forth in the information as drawn there is a sufficient allegation of a false pretense.

Upon close analysis, the information is found to charge the respondent with the following false pretenses :

(1) That he was an agent of the Fuse Company.

(2) That he had accurate knowledge of its financial affairs.

(3) That he knew the amounts of its assets and liabilities.

(4) . That he, with Jones, had had made and had in possession “a certain statement showing” the assets and liabilities of the company on January 14, 1911.

Following the paragraph which sets up the last pretense are four paragraphs in which are set forth the nature, purpose, and filing of the statement. As to these matters, the court is informed:

That respondent presented it to the bank on January 14, 1911;

For the purpose of showing the company’s financial condition and obtaining credit and borrowing money; and

That the summary showed the assets to be $709,000 and liabilities $163,333.08.

But these are not facts which the respondent is charged to have pretended falsely. Assuming that these facts about the statement and its purpose were, true, respondent is charged in the information only with having falsely pretended that he had this statement in his possession, withoút'saying anything about its contents. And even could the information be held to have charged the last-enumerated facts to have been pretended falsely, their truth is not negatived. On the contrary, their truth is admitted, and they cannot, therefore, be considered as elements of a crime.

It is said that the bank was induced by the respondent’s representations to part.with its money. As to this, it can be said: First, the pretense charged did not induce the bank to advance money or credit. What actually induced the bank to lend the money was the belief that the assets exceeded the liabilities, a belief induced by the statement, not by the respondent’s alleged pretense of having caused a certain statement to be made and having it in possession; second, the pretenses of having made a certain statement, this statement, and having it in his possession are not negatived. They, are therefore taken to be true, and are not false pretenses. Redmond v. State, 35 Ohio St. 81. Indeed, these facts are conceded to be true.

It therefore follows that the alleged false representations of the assets and liabilities of the American Electric Fuse Company must be dealt with as nullities in the information, and as if they were no part thereof. An information must clearly charge the elements of the offense, and leave nothing to inference or intendment. 1 Bish. New Criminal Procedure (2d Ed.), § 325; State v. Jamison, 110 Iowa, 337 (81 N. W. 594); Moline v. State, 67 Neb. 164 (93 N. W. 228); People v. Logan, 1 Nev. 110; Kearney v. State, 48 Md. 16. The pretense upon which the prosecution is based in an action of this kind must be sufficiently and clearly specified in the information. People v. Arnold, 46 Mich. 268 (9N.W.406).

The second set of false representations are those concerning the promissory note in exchange for which the $496.28 was obtained. Can it be said that the first set of false representations may be rejected from the information as surplusage, and that it may be assumed that the jury found the respondent guilty of the pretenses contained in the second or latter set of false representations in the first count? Such was the holding in State v. Vanderlip, 4 La. Ann. 444, although a contrary conclusion was arrived at in Commonwealth v. Atwood, 11 Mass. 93, a decision which was questioned, it is true, but not overruled in Commonwealth v. Tuck, 37 Mass. (20 Pick.) 356. However, with reference to this, the difficulty here is that upon reading the charge of the court the conclusion is irresistible that the only theory upon which the first count was left to the jury was that the first element of the crime, viz., the false pretense, was the false representation of the assets and liabilities of the American Electric Fuse Company. Indeed, it is questionable whether there was sufficient evidence in the record connecting the respondent Johnson with any false representations as to the note to warrant the submission of this theory to the jury.

We are therefore of the opinion that the respondent was found guilty of a charge which was not properly alleged against him in the information, and the judgment must therefore be reversed, and the respondent discharged.

Stone, C. J., and Bird, J., concurred with Kui-in, J.

Brooke, J.

The information charges that the respondent did designedly falsely represent and pretend (1) that he had accurate and positive information as to the business and financial affairs and condition financially of the American Electric Fuse Company; (2) that he had caused to be made and had in his possession a certain statement showing the sums and amounts of the assets and liabilities of said American Electric Fuse Company on January 14, 1911; (3) which statement and summary respondent presented and caused to be presented and filed with the Old National Bank; (4) for the purpose of showing to said bank the financial condition of said Electric Fuse Company, and for the purpose thereby of obtaining credit to said respondent and said Electric Fuse Company. The information further avers that said statement was false (1) in that the assets of the Electric Fuse Company were .greatly overstated in said summary; (2) that the liabilities of said Electric Fuse Company were very much, more than as stated in said summary; (3) the liabilities of said Electric Fuse Company were greatly in excess of the assets of said company at the time said summary was filed with said Old National Bank. It is further averred that the said Old National Bank, believing the said summary and the statements and representations as to the assets and liabilities of the Electric Fuse Company, was deceived thereby and received from said respondent a certain note, and thereupon paid to said Electric Fuse Company and the respondent the sum of $496.28 on and for said note:

I am of opinion that so far as the information is-concerned it sufficiently charges the commission of a crime under the statute. Section 11575, 3 Comp. Laws (3 Comp. Laws 1915, § 15320). In People v. Wakely, 62 Mich. 297 (28 N. W. 871), it was declared that in a case involving a prosecution for false pretenses, three things at least must concur: First, the intent to defraud; second, the false pretenses made with the intent; and, third, the fraud accomplished. See, also, People v. Luttermoser, 122 Mich. 562 (81 N. W. 565).

While, therefore, I am unable to agree with my Brother Kuhn in his conclusion that the information does not properly charge a crime, I am, for another reason, constrained to hold that the result reached by him is, after all, a proper one. The information charges that by reason of the false pretenses made by-Jones and Johnson the bank paid to the Fuse Company, at the instance of Jones and Johnson, the sum of $496.28 on and for said note. The facts about the transaction seem to be that at the time the alleged false statement of assets and liabilities was deposited with the bank, the bank held the note of the Western Telephone Construction Company, indorsed by the American Electric Fuse Company for the sum of $1,496.28. This note was reduced at maturity $500, a new note given for $996.28, and on May 22, 1911, this note at its maturity was again reduced $500, and a new note given for $496.28. It is this transaction which is counted upon in the information, and it is averred that the bank paid cash for this particular note, and that it was induced so to do by the false representations with reference to the assets and liabilities of the Electric Fuse Company.

It seems plain to me that on the 22d day of May, 1911, when the Electric Fuse Company paid $500 upon the note and gave a new note for $496.28, the bank did not give, nor did the American Electric Fuse Company obtain, any money or credit. It seems to me that the money had been given — the credit obtained - — so far as this particular transaction is concerned, prior to making the false representations counted upon in the information.

The foregoing appears by the testimony of George E. MacKenzie, cashier of the Old National Bank. It is as follows:

Cross-examination:

“Q. This note, Exhibit B, in controversy in this case, was one of the notes given by the Electric Fuse Company — or discounted, in reduction of the original line as promised by Jones?
“A. These notes we got direct from Muskegon. _ .
_ “Q. Yes, I understand that, and that was given in' reduction of previous notes.
“A. No, sir; it was given for credit.
“Q. This Exhibit B is one of the remaining notes ■of the $20,000 of the Western Telephone Construction Company notes that you had discounted at the time you had that talk with Jones, isn’t it?
“A. Yes. We had not discounted it in January. We discounted that the 22d day of May. At or about the time we received the note, Exhibit B, dated May 22d, one of the prior notes was due and payable. The amount was $996.28. We received that from the American Electric Fuse Company, Frank G. Jones, president, for discount in the letter of March 15th, a note for that amount $996.28. When that note became due we sent it to Chicago for payment and it was paid.
“Q. And then you got in its place this note for $500 less, or $496.28, marked Exhibit B?
“A. We didn’t get it in its place; that is an entire separate .transaction.
“Q. That was in accordance with the arrangement and agreement you had with Mr. Jones that he would reduce $500 each time a note became due or $1,500 a month?
“A. $1,500 a month he was to reduce it.
“Q. When you made that arrangement it was the understanding that as notes became due, they would be taken care of by other notes and $1,500 a month in cash?
“A. We did not take another note in payment of that former note. That former note was entirely wiped out in Chicago.
“Q. In pursuance of that understanding you took this note for $500 less for discount?
“A. Yes, sir.
“Q. It was the same kind of note, executed in the same way as the note for $996.28 that you got in March, two months before?
“A. It was practically the same kind of note.
“Q. It amounted to this, didn’t it, that in March you took a note of the Western Telephone Construction Company, indorsed by the American Electric Fuse Company, for $996.28, and discounted it by passing it to the credit of the American Electric Fuse Company?
“A. Yes, sir; we did that.
“Q. That was in pursuance of the agreement and understanding that you had with Mr. Jones the first part of January, 1911, that the discount paper — the amount of the discount paper would be reduced $1,500 a month?
“A. I presume, Mr. Clapperton, we put that through in view of having the former note reduced, or the prior notes reduced, as he had agreed to. The result would be that in March we discounted the note of the Western Telephone Construction Company for $996.28 and had it in the bank, and in May, two months after-wards, we took and discounted the note of the same company indorsed by the same company for $500 less, or $496.28. Two months before we had discounted a similar note for $1,496.28. * * *
“Q. And at the time of the complaint that you made in this case, this pote upon which you based the complaint, for $496.28, was the last note of that series, and was not due, was it? .
“A. That is so.”

I am therefore of the opinion that a verdict should have been directed in favor of respondent on the ground that the proofs adduced failed to sustain the charges contained in the information.

The judgment should be reversed, and respondent discharged.

Ostrander, Moore, and Steere, JJ., concurred with Brooke, J.

The late Justice McAlvay took no part in this decision.


author: Stone, C. J.

text:
    HEYER v. BOARD OF SUPERVISORS OF SHIAWASSEE COUNTY.
    1. Intoxicating Liquors — Elections—Petition—Local Option.
    While several petitions having similar headings may be circulated in one voting precinct and signed by the electors to secure the submission of local option to a vote, the same must be attached together to mate up a single petition for the purposes of posting and filing, and it is not sufficient to attach distinct affidavits to each of the separate papers, treating them as distinct petitions. The statute does not contemplate that an elector shall be compelled to examine more than one petition posted' in a precinct to determine whether or not his name^has been fraudulently affixed.
    2. Same — Affidavits of Posting^-Sufficiency.
    The statutory affidavits of the posting of petitions should show that the separate parts of one proper petition were all posted at the same place; affidavits which merely showed that one portion was posted at a farm, mentioned by name, on a telegraph pole, and that another part was posted at the same farm on a telegraph pole, did not sufficiently indicate that the place of posting was identical; and an affidavit which did not show that the several petitions signed were all posted on one of four corners did not comply with the specifications of the act.
    3. Same — Validity of Petitions.
    And if there are duplicate petitions from the same precinct, all should be rejected, the fact of the existence of more than one renders all of them void.
    4. Same — Filing.
    The fact that several petitions from one ward were held together by a wire clasp and .filed as one, and so stamped by the clert, did not affect the legality of the ones not stamped; all were sufficient so long as they were duly filed.
    5. Same — Review—Mandamus—Board of Supervisors.
    The question of the sufficiency of the petitions and the requisite number of electors signing was one of fact for the determination of the board, and their conclusion could not be reviewed on mandamus.

      Certiorari to Shiawassee; Miner, J.
    Submitted February 23, 1916.
    (Calendar No. 27,155.)
    Decided March 1, 1916.
    Mandamus by Louis G. Heyer against the Board of Supervisors of Shiawassee County to compel respondent to reconvene and order that the question of prohibiting the sale of intoxicating liquors be submitted to the vote of the people. From an order denying the writ, relator brings certiorari.
    Affirmed.

      Warner & Raudabaugh, for relator.

      Seth Q. Pulver, for respondent.
   Stone, C. J.

The relator and appellant filed his petition in the circuit court for the county of Shiawassee for a writ of mandamus praying that the board of supervisors of said county be required to reconvene and determine, by resolution, that the question “Should the manufacture of liquors, and the liquor traffic, be prohibited within the county,” had been prayed for by a sufficient number of electors, and to submit said question to the electors of said county at the next regular spring election. An' order to show cause was granted, and the matter has been heard by the court upon the petition of relator, and the answer of respondents, together with the testimony of the county clerk.

Upon due argument and hearing, the trial court filed a written opinion denying the writ. The facts are not in dispute, and we quote the following from the opinion of the circuit court:

“The petitioners claim that, in the November election for the year 1914, the highest number of votes cast for any State officer within said county was 5,754 votes, and that 2,246 voters signed said petition praying that the question be submitted to the electors of Shiawassee county, Mich., at the next regular spring election: Should the manufacture of liquor and the liquor traffic be prohibited within the said county?
“All the petitions filed in said county were filed with the county clerk and by him turned over to the board of supervisors. Said petitions were referred to a committee, * * * who on the 13th day of January, 1916, made their report to said board of supervisors. They reported the number of petitions from each township and found that in all the townships one petition alone had been presented, except the township of New Haven, in which they report as follows: One petition from New Haven township on which there were 23 names, one petition from New Haven township on which there were 57 names; and from all the wards of the different cities in which the said committee found that there was one petition from each ward, except in the Fifth ward of the city of Owosso, and in regard to the Fifth ward the committee reported as follows: One petition from the Fifth ward of the city of Owosso on which there were 98 names; one petition from the Fifth ward of the city of Owosso on which there were 116 names; one petition from the Fifth ward of the city of Owosso on which there were 48 names; one petition from the Fifth ward of the city of Owosso on which there were 45 names.
“After taking the advice that they had received from the attorney general, they say:
“ ‘Therefore, we find the following petitions to be void, they are as follows: New Haven township 57 names and 23 names; Fifth ward of the city of Owosso 98 names; Fifth ward of the city of Owosso 116 names; Fifth ward of the city of Owosso” 48 names; Fifth ward of the city of Owosso 45 names. Therefore, we report that upon the petitions handed in, we find upon legal petitions worthy to be counted, that there are only 1,859 names and therefore, beg leave to report that there are not the required number of petitioners upon legally authorized petitions to authorize this board to submit the question to the electors of this county, and that the submission of the local option question has not been prayed for by the requisite number of electors. We therefore, recommend that the prayer of the petitioners be denied. All of which is respectfully submitted.’ [Signed by the committee].
“The report of the committee was adopted. Twenty ayes, three nays.
“That afterwards on the 14th day of January, 1916, said board of supervisors of Shiawassee county adjourned without day,
“The Session Laws of 1899, § 6 of Act No. 183 (2 Comp. Laws 1915, § 7085), provides:
“ ‘At such meetings of the board of supervisors it shall be the duty of the county clerk to lay before tfiem petitions filed in his ■office praying for such submission of said question of prohibition, and when upon esamination, it shall appear to the said board, upon the face of said petitions, and by the transcripts of the poll lists, or by reference to the returns and canvass of the last general election, that such submission of said question has been prayed for by the requisite number of electors, as hereinbefore provided, they shall, by resolution, determine and declare to that effect, and such determination shall be final as to the sufficiency of the petitions and the requisite number of electors signing the same.’ * * *
“In the township of New Haven, there were two petitions circulated, one by John Seelhoif and the other by William McAvoy. John Seelhoif swears on the back of one of the petitions that on the 23d day of December, 1915, an exact copy of such petition and the signatures of all the petitioners thereto was posted at three of the following named places in such township, ward, or election district, to wit: One at Clark schoolhouse on telephone pole, one at George White on telephone pole, and one at J. L. Seelhoif on telephone pole, all in New Haven township, being three of the most conspicuous places in such township, ward, or election district. This affidavit refers only to the petition circulated by John Seelhoif.
“William McAvoy, who circulated the other petition, among other things, says "that on the 23d day of December, 1915, an exact copy of such petition and the signatures of all the petitioners thereto was posted in each of the following named places in such township, ward, or election district, to wit: One near Clark schoolhouse on telephone pole, one at near George White farm on telephone pole, and one at near John Seelhoif farm on telephone pole, being three of the most conspicuous places in such township, ward, or election district. This was signed and sworn to by William McAvoy on the back of the petition he circulated.
“In the Fifth ward of the city of Owosso, there were four petitions circulated: One by Andrew J. Greene, who signs his name on the back of it and swears to it on the 7th day of January, 1916, as follows: On the 23d day of December, 1915, an exact copy of such petition and the signatures of all the petitioners therete was posted at each of the following named places in such township, ward, or election district, to wit: One at corner Main and Lansing streets, one at Main and Chipman streets, and one at corner Chipman and Stewart streets, being three of the most conspicuous places in such township, ward, or election district. The next petition was circulated by Charles Preece, and he signs the petition circulated by him and swears to it, and his affidavit is the same as the one made by Andrew J. Greene. The next petition was circulated by William F. Sharr, composed of four pages, and on the back of it is sworn to by him the same as the one sworn to by Andrew J. Greene.
“The question involved in this case is:
“First. Were the signatures of all the petitioners of the township of New Haven attached to one petition, and were the' signatures of all the petitioners of the Fifth ward of the city of Owosso, attached to one petition?
“Second. Was an exact copy of said petition from the township of New Haven and all of the signatures thereto, posted in three of the most conspicuous places in said township ?
“Third. Was an exact copy of said petition from the Fifth ward of the city of Owosso and all of the signatures thereto, posted in three of the most conspicuous places in said ward?
“The legislature in this State has seen fit to require certain conditions to be followed and carried out in getting the petition to be presented to the board of supervisors, which reads as follows (2 Comp. Laws, § 5415, 2 Comp. Laws 1915, § 7083) :
“ ‘To enable each and every elector to determine for himself If his name has been fraudulently attached to said petition, it is hereby required that the signatures of all the petitioners residing in any one and the same township, ward or election district, ■shall he attached to .one petition or list, separate from those of any other township, ward or election district, and that an exact copy of said petition and all of the signatures thereto shall he posted in three of the most conspicuous places in the said township, ward or election district for at least ten days immediately prior to its presentation to the county clerk’

—or, in other words, it requires that all the petitioners residing in any one or the same township, ward, or election district, shall be attached to one petition; and, second, it requires that a copy- of said petition and of all the signatures thereto shall be posted in three of the most conspicuous places in said township. This is, as the statute says, to enable each and every elector to determine for himself if his name has been fraudulently attached to said petition.

“In the township of New Haven, Mr. Seelhoff and Mr. McAvoy circulated the petition, and each one swore to his own petition, and there is nothing to indínate that they were attached to each other, and it nowhere appears that an exact copy of said petition and of all the signatures thereto were posted in three of the most conspicuous places in said township. Mr. Seelhoff swears that he posted his petition at the Clark schoolhouse on telephone pole, and one at George White on •telephone pole, and one at J. L. Seelhoff on telephone pole. Mr. McAvoy swears he posted his petition, one near the schoolhouse on telephone pole, one at or near George White farm on telephone pole, and one at or near John Seelhoff farm on telephone pole. Whether both of these parties posted their notices in the same place does not appear. One says he posted his at the Clark schoolhouse; the other says he posted his near •the Clark schoolhouse on telephone pole. One says he posted his at George White on telephone pole, and the other says he posted his at or near George White’s on telephone pole. Whether George White lives on his farm does not appear, or how large George White’s farm is does not appear; whether the poles were near each other does not appear. One says he posted at John- Seelhoff on telephone pole. The other swears he •posted his at or near John Seelhoff farm on telephone pole; but it would appear to the-court that such affidavits are insufficient to inform petitioners when the notices were posted, whether they were posted at the same place, or whether they were not. Whether they were posted within half a mile of each other does not appear.
“In the Fifth ward of the city of Owosso there were four petitions circulated. The first one was circulated by Andrew J. Greene, who on the 7th day of January, 1916, swears at the end of his petition and on the back side of his. petition that on the 23d day of December, 1915,
“ ‘an. exact copy of such petition and the signatures of all the petitioners thereto was posted at each of the following named places in such township, ward or election district, to wit: One at the corner of Main and Lansing streets, one at Main and Chipman streets, and one at corner Chipman and Stewart streets, feeing three of the most conspicuous places in such township, ward or election district.’
“The next one is sworn to on the back of the petition by Charles H. Preece, and the affidavit is the same as the foregoing. The next one is composed of two sheets, and on the back side is sworn to by Charles H. Preece, and an exact copy of the other petitions to said board. And the next one is composed of four pages, and on the back is sworn to by William Sharr. Or, in other words, there are four petitions, and it nowhere appears that at the time of posting said notices as required by section 5415 the signatures of all the petitioners residing in said ward were attached to one petition.
“It appears from the affidavits that the notices were posted on a corner, where one street intersects another, for instance, the corner of Main and Lansing streets, Main and Chipman streets, Chipman and Stewart streets; but none of the affidavits states upon which one of the corners the notices were posted. The court will take judicial notice that there must be four corners where two streets intersect each other. It nowhere appears whether they were all posted on the same corner, or whether or not they were posted together or attached together, as required by the statute. * * *
“The respondent’s contention should prevail. The language of the statute is too plain to admit of doubt of the legislative intention to limit each township, ward, and election district to the presentation of but one petition to each township, or ward, whether consisting of one sheet or made up of several, and to command that a copy thereof and of all the signatures be posted in the same three places. * * * In this case the court is of the opinion that the board of supervisors is warranted in reaching the conclusion that they did. Therefore the writ of mandamus will be denied.”

The relator in his petition for the writ of certiorari alleges the following errors:

(1) That the court erred in holding that more than one petition was filed from the township of New Haven, and the fifth ward of the city of Owosso.

(2) The court erred in holding that the statute limited the filing of but one petition in each township, ward, or election district.

(3) The court erred in this: If it is correct in its conclusion that but one petition can be filed from any township, ward, or election district, and that there was more than one filed in the township of New Haven, and the fifth ward of the city of Owosso, the court erred in holding that the one the clerk had filed, and placed his filing stamp on, and presented to the board of supervisors, should not be counted^

(4) . That the court erred in refusing to grant the writ of mandamus as prayed for by said relator.

The first and second assignments of error will be considered together. Counsel for relator are very frank in the statement contained in their brief, wherein they say:

“It is undeniable that the evidence tends to show that there was more than one petition circulated in the fifth ward of the city of Owosso and also in the township of New Haven; and, if this matter alone invalidates all the petitions from these election districts, then this relator has no standing in court. On the other hand, if they were to be considered as one petition, and that more than one could make the affidavits thereto in relation to the qualification and residence of the electors, and the posting of the same, then the relator is correct in his contention that they should have been counted.”

Counsel then proceed to argue that upon a proper construction of section 5415, 2 Comp. Laws (2 Comp. Laws 1915, § 7083), more than one petition may be circulated in a township, ward, or election district. They quote that portion of the section reading as follows:

“And also an affidavit or affidavits by one or more resident electors of such township, ward or election district, stating therein that an exact copy of such petition, and of all the signatures thereto, has been posted in three of the most conspicuous places in such township, ward or election district, for at least 10 days immediately prior to its presentation to the county clerk,” etc.

We cannot agree with counsel in the contention, that more than one petition or list can be circulated and a copy thereof posted in one township, ward, or election district, under any proper construction of this section.

Let us not be misunderstood here: We think that any number of headings of petition may be circulated in a precinct, and signed, and if all the headings are alike and in proper form, and if they are all attached together, and a copy thereof posted, and filed as one petition, the statute is complied with. The affidavit or affidavit of the genuineness of the signatures and that the signers are qualified electors may be attached to each heading, but the affidavit or affidavits as to the posting should be attached to the completed petition after the headings have all been attached together as one petition, and should refer to it as such. The difficulty and infirmity here is that there was no proof that the several petitions were ever attached together so as to form one petition, and as such were ever posted. They were treated as separate petitions with accompanying affidavits, and were so filed. This we think was not a substantial compliance with the statute. There was a separate and distinct posting of two petitions in New Haven township, and four in the fifth ward of Owosso. In order for an elector to determine whether his name had been fraudulently attached, he would have to examine two petitions in New Haven and four in the said fifth ward. This, certainly, the statute does not contemplate.

We are of the opinion that the trial court’s criticism of the affidavits as to the place of posting was well founded for the reasons stated. Posting one “at J. L. Seelhoff on telephone pole” may be very different from posting one “at near John Seelhoff farm on telephone pole.” They would not appear to be the same place; the question of identity is involved. The same may be said of the posting in said fifth ward. One petition might have been posted on one of each of the four corners of the intersecting streets, for aught that appears in the affidavits, thus necessitating the examination at each corner by one in search for his signature. These things, in our opinion, are not mere technicalities, but are matters of substance.

Counsel for appellant also say in their brief:

“We frankly admit that our statute is peculiar, and requires the petitions to be attached from each election district, that the statutory requirement must be complied with; also, that the board of supervisors are the final judges as to whether or not the statute has been complied with, we are strongly inclined to the opinion that from the evidence before the board they might be justified in the opinion that more than one petition . had been circulated and posted in the township of New Haven, and in the Fifth ward of the city of Owosso; also, they might contend that the petitions were not attached in accordance with the statute.”

Counsel then argue that, admitting all these to be facts, the board had no authority to discard and refuse to consider legal petitions from different election districts; that is, if two or more petitions are filed with the clerk, each of which appears to be regular upon its face, accompanied by the required affidavits, certainly one of these petitions should be considered, and not all discarded. In our opinion, if there are duplicate petitions from the same precinct, all should be rejected. The mere fact of the existence of more than one renders all void.

It appears from the testimony of the county clerk that, when the petitions from said fifth ward were filed in his office, there were four of them held together by a wire clasp. It seems that upon the outside of the petitions, and upon the back of the last one, he placed his stamp. The same thing occurred in the township of New Haven, but the county clerk testified that they were all filed in his office, and they were fastened together as above indicated. We cannot agree with counsel that the petition which actually bore the filing stamp was entitled to any more consideration than the others. They were all actually filed and posted.

As the construction adopted by the board was justified from the face of the petitions and affidavits, the trial court was right in accepting the finding of the board thereon as “final as to the sufficiency of the petitions and the requisite number of electors signing the same.” The question was one of fact appearing upon the face of the papers, the determination of which by the board the court will not disturb on review. Werstein v. Board of Supervisors of Calhoun County, 156 Mich. 63 (120 N. W. 354).

Finally, counsel for relator urge that, if the conclusion reached by the trial court is correct, then those opposed to the submission of the question could circulate, post, and file petitions, thereby making more than one petition in a precinct, and thus thwart the very object of the law.

This is purely an academical question, and one that ■does not confront us in this case. No claim is made that the numerous petitions here under consideration were the result of the efforts of persons hostile to the question of submission, and no question of fraud is here involved. We concur with the trial court in regretting that more care was not exercised in the steps taken to submit this question, but it is the duty of the beard of supervisors to substantially follow the statute, and make its decision accordingly.

We find no error in' the judgment of the circuit court, and the same is affirmed.

Kuhn, Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred. Person, J., did not sit.


author: Kuhn, J.

text:
    BURTON v. CITY OF DETROIT.
    1. Ejections — Cities—Charter Amendments — Baixot.
    It was sufficient, in an election involving an amendment to the Detroit charter, to present to the voters a ballot reading as follows: “Do you favor authorizing the common council to fix the compensation of certain elective and appointive officers of the city of Detroit within certain limitations; also to fix the compensation of the subordinates to such officials. Yes... No...” The ballot apprised the electors of the proposed change in the charter giving the council authority to fix within maximum limits the salaries of enumerated officers and subordinates and in the absence of any showing that any of the electors were misled as to the contents of the amendment which was printed in full in the official paper of the city, the election was not invalidated.

      2. Municipal Corporations — Raise of Salaries.
    The common council of Detroit has power to fix salaries of employees and city officials without interference from the board of estimates, and the charter amendment of 1914 authorizing the council to fix certain salaries, etc., confers power to regulate them within the maximum limits specified in the amendment.
    3. Same — Powers—Salaries.
    An ordinance entitled “An act to fix the compensation of certain officers and employees,” and purporting to provide for a stated compensation of various officers and employees, amounts to a fixing of salaries by law.
    4. Constitutional Law — Cities — Detroit Charter — Courts — Salary.
    Fixing the salary of the judge of the Detroit recorder’s court does not interfere with the jurisdiction of the court relating to State matters, where the municipal council merely added compensation to that which was already received by law.
    5. Same — Ordinances—Detroit Charter.
    But an ordinance purporting to fix the salary of police justices and clerk of the police court was invalid, as these ■ salaries are fixed by the city charter. The salaries of assistant clerks could-be so determined.
    6. Same — Corporations—Museum: of Art.
    Any attempt to fix salaries of employees and officers of the Detroit Museum of Art is invalid under Detroit Museum of Art v. Engel, 187 Mich. 432 (153 N. W. 700), holding the same a private use to which public funds may not be devoted in view of the provisions of Art x, § 12, of the Constitution.
    7. Same — Public Officers — Increase of Salaries.
    Article xvi, § 3, of the State Constitution, does not prohibit the increase of salaries of officers that have no fixed term of office, but are appointed for an indefinite tenure. Officer and .term should be considered together.
    8. Same — Assessors.
    Neither the constitutional inhibition, nor that of Act No. 279, Pub. Acts 1909 (1 Comp. Laws 1915,- § 3324 et seq.), affected the members of the Detroit board of assessors who resigned when the charter was amended, and who received appointments for an indefinite term after tlie amendment took effect.
    Appeal from Wayne; Hosmer, Hally, and Codd, JJ.
    Submitted January 17, 1916.
    (Docket No. 52.)
    Decided March 2, 1916.
    Bill by Clarence M. Burton against the city of Detroit, and the civil service commission of said city, to enjoin defendants from paying increases in salaries to certain city officials. From the decree of the court both complainant and defendants appeal.
    Modified and affirmed.

      Oxtoby & Wilkinson, for complainant.

      Walter Barlow and Richard I. Lawson, for defendants.
   On November 3, 1914, the electors of the city of Detroit, acting under the authority of the home rule act, so called (Act No. 279, Pub. Acts 1909, as amended by Act No. 203, Pub. Acts 1911, and Act No. 5, Pub. Acts 1913 [1 Comp. Laws 1915, § 3324 et seq.]), adopted the following amendment to the city charter:

“A bill to amend an act entitled ‘An act to provide a charter for the city of Detroit and to repeal all acts and parts of acts in conflict therewith,’ approved June 7, 1883, as amended, by adding a new chapter thereto for the purpose of giving power to the common council to fix the compensation of certain officials of the city of Detroit and their subordinates.
“The people of the State of Michigan and the people of the city of Detroit enact:
“Section 1. Hereafter the common council shall have the power to fix the compensation of the officers of the city of Detroit as follows, to wit: The mayor’s compensation may be fixed at a sum not to exceed $8,000 per annum; corporation counsel’s compensation at a sum not to exceed $7,500 per annum; compensation of commissioner of department of'public works at a sum not to exceed $7,500 per annum; city clerk’s compensation at a sum not to exceed $5,000 per annum; city treasurer’s compensation at a sum not to exceed $5,000 per annum; city controller’s compensation at a sum not to exceed $5,000 per annum; the compensation of the commissioner of police at a sum not to exceed $5,000 per annum; the compensation' of the commissioner of parks and boulevards at a sum not to exceed $5,000 per annum; the recorder and associate judge of the recorder’s court of the city of Detroit may each be compensated by the city in a sum not to exceed $3,500 per annum:
“Provided, that no official shall have his compensation increased during the term for which he was elected or appointed. All subordinates to such officials and all other appointive officers shall receive such compensation as the common council may from time to time prescribe, but in no case shall the compensation of subordinates be increased during the city’s fiscal year;
“Sec. 2. All acts and parts of acts in conflict herewith are hereby repealed.”

The compensation of certain of these officials had been theretofore fixed by the city charter.

A new chapter to the city charter providing for a civil service commission for the city having been adopted on April 7, 1913, on November 3, 1914, section 1 of said chapter was amended by the electors so as to empower the mayor of the city to appoint four electors of the city to constitute the commission, one for the term of one year, one for the term of two years, one for the term of three years, and one for the term of four years, and to provide for the annual appointment of the successors of each of said commissioners whose terms next expired for the full term of four years. And it was further provided that each of said commissioners shall receive an annual salary of not more than $3,000, as the same may be determined by the common council of said city.

On March 30, 1915, ordinances were introduced in the common council fixing the compensations of certain officers, clerks, and employees of the city, and were duly passed on April 6, 1915, approved April 7, 1915, and ordered to take effect July 1, 1915, the, beginning of the fiscal year of the city, which ends June 30, 1916. These ordinances are known as Ordinances 208A to 232A, inclusive, and are each entitled “An act to fix the compensation of certain officers, clerks, and employees of the city of Detroit,” and respectively purported to fix the compensation of the officers, clerks, and employees of the (1) police department of the city of Detroit (208A) ; (2) department of public works (209A) ; (3) recorder’s court (210A) ; (4) city engineer’s office (211A) ; (5) mayor’s office (212A); (6) controller’s office (213A) ; (7) city treasurer’s office (214A) ; (8) corporation counsel’s office (215A)'; (9) department of buildings (216A) ; (10) police court (217A); (11) bureau of public welfare (218A) ; (12) board of assessors (219A) ; (13) board of health (220A) ; (14) board* of fire commissioners (221A); (15) boiler inspector’s office and bureau of inflammable liquids (222A) ; (16) recreation commission (223A); (17) board of library commissioners (224A); (18) board of civil service commissioners (225A); (19) city clerk’s office (226A) ; (20)' department of parks and boulevards (227A) ; (21) public lighting commission (228A); (22) board of poor commissioners (229A) ; (23) Detroit Museum of Art (230A); (24) board of education (231A) ; (25) board of street railway commissioners (232A).

The common council, in fixing the estimates for the fiscal year ending June 30, 1916, appropriated the necessary sums of money with which to pay the different salaries fixed and determined in and by the said several ordinances. The board of estimates of the city, in passing on the general budget of the city for the fiscal year ending June 30, 1916, cut out a large number of salaries altogether as fixed and determined in and by the said several ordinances, and reduced many others. The common council attempted to restore the salary increases and appointments disallowed by the board of estimates, and on May 4, 1915, passed a resolution to that effect. Mr. Harry J. Dingeman was appointed corporation counsel of said city on April 27, 1915, and holds his position, under the present charter as amended, at the will of the mayor. For at the election in the fall of 1914 another amendment to the charter was adopted which went into effect November 14, 1914, which reads as follows:

Section 1. Hereafter the mayor shall be vested with power, and without the confirmation of the common council, to appoint all the appointive officers of the city of Detroit and members of its boards, commissions, and departments now established or hereafter created, and said officers (except the members of the civil service commission) shall hold their offices at the pleasure of the mayor and be removable at his will without cause assigned.”

At the time the bill of complaint in this cause was filed Mr. Dingeman was receiving 'from the city his salary at the rate of $7,500 per annum, as fixed by Ordinance 167A, instead of $5,000, as fixed by the charter before tbe amendment. Complainant, who is the owner of real estate in the city of Detroit subject to taxation of the value of $50,000 and upwards, undertook by this proceeding to enjoin the payment and disbursement by the city of the excess amounts, which he claimed were not authorized by law, for the payment of unwarranted and unlawful salary increases, and alleges that, if the funds of the city on hand and available for lawful city purposes were used for other and unlawful objects, it would make necessary the raising by taxes of an amount equal to such unlawful payments, which would otherwise be avoided, that his land would become liable by assessment to pay its proportion of such, salary increases, be threatened with sale, and be liable to a lien for such taxes, and that such an assessment would be a cloud on the title of his real estate; the amount involved being in excess of $100.

The case was heard before three of the judges of the Wayne circuit bench, who joined in upholding the validity of the charter amendment and the right of the council to fix independently, without any approval thereof by the board of estimates, the 'salaries of the officials particularly referred to in the charter amendment and their subordinates, but denied the power of the council to so fix the salaries of officers and their subordinates not particularly referred to in the charter amendment; their opinion being as follows;

“We believe that the charter amendment of November, 1914, was legally adopted and confers upon the common council the authority to fix certain salaries, and that the subsequent action of the common council fixing the salaries of said officials and their subordinates by ordinance is a valid exercise of said power, and precludes the necessity of any action of the board of estimates in reference thereto. The exercise of such power, however, is only applicable to the officials enumerated in this charter amendment, and as to officials and their subordinates not enumerated therein the provisions of the charter relative to the concurrent action of the board of estimates still prevails, and has not been altered by this charter amendment where it is within the power of the common council and the board of estimates to fix salaries.”

From a decree in accordance with the opinion of the court, both complainant and defendants have appealed. The questions now before us are thus stated by complainant’s counsel in their brief:

“(1) The validity of the charter amendment submitted to and apparently adopted by the electors of the city of Detroit on November 3, 1914, and particularly the sufficiency of the manner in which it was submitted on the ballot to the electors.
“(2) The power of the common council, under the charter amendment, if valid, to increase the salary of a new incumbent of the office of corporation counsel during the current fiscal year ending June 30, 1915.
“ (3) The proper construction of the charter amendment of November 3, 1914 (if valid) in connection with the other provisions of the city charter, and particularly the power of the common council to fix the salaries of the officers, clerks, and employees particularly referred to in said charter amendment, independently of the approval of the board of estimates.
“(4) The power of the common council to fix the salaries of officers, clerks, and employees, independently of the approval of the board of estimates, under the provisions of said charter amendment that ‘all subordinates of such officials and all other appointive officers shall receive such compensation as the common council may from time to time prescribe.’
“(5) The power of the common council to fix the salaries of the judges of the recorder’s court.
“(6) The power of the common council to fix the salaries of the justices and clerk of the police court.
“(7) The power of the common council to fix the compensation of the officers and employees of the Museum of Art.
“(8) The power of the common council to fix the compensation of the officers and employees of the board of education.
“(9) The power of the common council to fix the compensation of the officers and employees of the board of library commissioners.
“(10) The power of the common council to fix the compensation of the officers and employees of the board of health.
“(11) The validity of the resolution of the common council introduced and passed without unanimous consent on May 4, 1915, restoring salary increases disapproved by the board of estimates, and directing the assessment levy for 1915.
“(12) Whether the charter amendment, if valid, expressly or by implication took away from the board of estimates power to refuse to allow appropriations for the payment of the salaries of employees, where the appointment of such employees was disapproved of, or whether the charter amendment gave the council the exclusive power, not only to fix salaries, but also to create positions and determine the number of appointments to any class of positions.”

Kuhn, J.

(after stating the facts). The real question in controversy is whether or not the salaries of the Detroit city officials, their subordinates, and other city employees, which have been fixed by the ordinances above enumerated, duly adopted by the common council of the city, can be reduced or cut out altogether by the board of estimates of the city.

Counsel for complainant challenge the sufficiency of the manner in which the charter amendment was submitted on the ballot to the electors on November 3, 1914. The form in which this amendment was submitted was determined by a resolution of the council, and was as follows:

“Do you favor authorizing the common council to fix the compensation of certain elective and appointive officers of the city of Detroit within certain limitations; also to fix the compensation of the subordinates to such officials?
“YES......
“NO.......”

It is urged that this did not fairly apprise the electors of the purpose and effect of the proposed amendment. It is not shown that any electors were, in fact, misled by the form of the amendment, and it appears that the proposed charter amendment was printed in the official newspaper of the city, that 10,000 copies thereof were printed in pamphlet form and many of them distributed by the city clerk among the electors of the city, and that the question of the adoption or the rejection of the amendment was discussed in the public newspapers generally. We are of the opinion that the form of the ballot was sufficient to fairly apprise the electors of the purpose and effect of the proposed amendment.

The charter of the city of Detroit provides:

“The legislative power of the city is vested in a common council, to be composed of the aldermen elected from each ward of the city.” Section 137, Charter of City of Detroit, 1904.

Section 21 of article 8 of the Constitution of the State provides:

“Under such general laws, the electors of each city and village shall have power and authority to frame, adopt and amend its charter, and, through its regularly constituted authority, to pass all laws and ordinances relating to its municipal concerns, subject to the Constitution and general laws of this State.”

Section 166 of the Detroit charter (Charter of City of Detroit, 1904), with reference to the powers of the common council, provides in part as follows:

“It may also fix and regulate the compensation of all officers elected or appointed under or by virtue of any act relating to said city, except as may be otherwise provided.”

Previous to the session of the legislature in 1901 there was no limitation imposed upon the power of the board of estimates to pass upon any item in the budget submitted to it by the common council. But in that year the legislature, by Act No. 474, Local Acts 1901, amended the section of the charter with reference thereto, and again amended it in 1905 by Local Act No. 617 so as to have the charter read as follows:

“Section 1. The commissioner of public works, the commissioner of police, the commissioner of parks and boulevards, board of fire commissioners of the city of Detroit, the board of health and the board of education of the city of Detroit shall respectively transmit to the city comptroller, on or before the first Tuesday of February in each year, their estimates of the amount of money required for their respective departments for the ensuing fiscal year; and the city comptroller, on or before the first Tuesday in March, shall transmit the same to the common council, together with his estimate of the amount of money required to be raised for the purposes of each of the funds constituted by this charter: Provided, that he may at any time before the expiration of the time within which the common council is required to act upon said estimates, transmit to the common council supplemental estimates, which, by mistake or otherwise, may have been omitted in the estimates aforesaid. The common council shall consider such estimates and may revise or alter said estimates, but not so as to exceed the aggregate amount authorized by law to be raised by taxation, and when such revision shall be completed and adopted, they shall transmit' such revised estimates to the board of estimates on or before the twenty-eighth day of March: Provided, it shall not be required to submit to the board of estimates so much of the revised estimates as shall be required to raise money for the payment of debts or liabilities theretofore duly and lawfully contracted, or for moneys which may be required for the payment of salaries fixed by law or otherwise required by law to be levied. Said estimates so transmitted by the common council shall be considered by the board of estimates, and they shall report the amounts of money which, for the purposes of the several funds and for the several departments aforesaid, they shall have consented to be raised by taxation. And no money shall be raised by taxation for any of said departments or for any of said funds, unless by consent of said board, excepting for the payment of debts and liabilities theretofore lawfully contracted, or for the payment of salaries fixed by law, or otherwise required by law to be levied. It shall be the duty of the controller and the said commissioners and boards to furnish to the common council and to the board of estimates such information as may be necessary for the proper consideration of said estimates.”

It will be noticed that the amendment now provides that the common council need not submit to the board of estimates so much of the revised estimates as shall be required to raise moneys for the payment of salaries fixed by law. It does not seem, in our opinion, that there can be any doubt that, under the provisions of the charter itself (section 166, Charter of City of Detroit, 1904), the “home rule” clause of the Constitution (section 21, art. 8), and the home rule act (Act No. 279, Pub. Acts 1909, as amended [1 Comp. Laws 1915, § 3304 et seqj\), the common council had a right to legislate as to the salaries of its officers, their subordinates and employees. It is also clear that before the charter amendment of 1914 the common council could not increase the salaries of its officers which were fixed by the charter. The charter amendment,' however, made it possible for the common council to legislate with reference to the salaries of cex-tain of these officers, within certain limitations. But for these limitations in the charter amendment the council, as has been said, had the full authority to legislate upon the question of salaries of its officers, their subordinates or employees. If the electors of the city of Detroit so desire, they may extend the limitations on this power which the council now possesses, and further restrict the power of the council to act with reference to salaries, as was done by the amendment of 1914. Previous to 1901 the board of estimates undoubtedly had the power to review action of the council upon salaries, as upon other expenditures; but the legislature, by the proviso above set forth in the amendment, took away from the board of estimates the authority to interfere with the raising of moneys to pay salaries which had been fixed by law.

With the legislative power delegated to it, the action of the commont council, in passing the ordinances in question, in our opinion, clearly amounted to and was a fixing of the salaries by law.

Mr. Dillon, in his work on Municipal Corporations (5th Ed.), § 573, says:

“Although the proposition that the legislature of a State is alone competent to make laws is true, yet it is also settled that it is competent for the legislature to delegate to municipal corporations the power to make by-laws and ordinances, with appropriate sanctions, which, when authorized, have the force, in favor of the municipality and against persons bound thereby, of laws passed by the legislature of the State.”

See, also, Taylor v. Carondelet, 22 Mo. 105:

A city council is “a miniature general assembly,” and their authorized ordinances have “the force of laws passed by the legislature of the State.”

See, also, 28 Cyc. pp. 847, 348, and cases cited in note 2 on page 348.

Counsel for complainant contend that this court has held that the provisions of the city charter relative to the board of estimates have been construed by this court in harmony with the power of the common council, and cite in support of this contention the cases of Robinson v. City of Detroit, 107 Mich. 168 (65 N. W. 10), and Attorney General v. City of Detroit, 113 Mich. 494 (71 N. W. 870). But it must be borne in mind that these cases were decided before the amendment of 1901, which limited the power of the board of estimates, and therefore do not control the instant case.

Our attention is also challenged to City of Detroit v. Blades, 133 Mich. 249 (94 N. W. 1134); Kobel v. City of Detroit, 142 Mich. 38 (105 N. W. 79); and Carney v. Whelan, 147 Mich. 15 (110 N. W. 128). In none of these cases, however, had the council enacted any ordinances with relation to the salaries involved, and it could not be said that the salaries there in question had been fixed by law, which clearly distinguishes those cases from the situation now before us.

With reference to the judges of the recorder’s court it is contended that the city of Detroit has no control over their salaries, because that court is a part of the judiciary system of the State, citing the case of Civil Service Commission v. Engel, 187 Mich. 83 (153 N. W. 358), where it was said by Mr. Justice Ostrander, speaking for the court:

“The recorder’s court is a court established by the legislature, although its creation is evidenced by the charter of the city, which is a local law. It is a court of record, with jurisdiction to try persons accused of crimes committed within the city. The execution of the criminal laws of the State is a matter of State concern, and in this respect the court possesses a jurisdiction which the electors of the city cannot confer. Power to amend the charter the electors have, but not power to interfere with the jurisdiction of this court, in so far as it relates to matters of State concern. It follows logically that the electors may not, by amendment of the charter, interfere with the incidental powers possessed by the recorder in exercising the jurisdiction which the court possesses, such as the appointment of necessary clerks of the court.”

In" our opinion, however, the case is not controlling of the question here involved, as it cannot be said that the fixing of the salaries of the judges interferes with the jurisdiction of the court in so far as it relates to matters of State concern, which was the basis of the decision in that case. The statute fixed the salaries of the judges of the recorder’s court, and all that the city authorities seek to do is to add to the salaries in the same way that the boards of supervisors in various counties of the State have added to the compensation, of the circuit judges.

The salaries of the police justices and the clerk of the police court are fixed by section 764 of the city charter (Charter of City of Detroit, 1904), which further provides that the council may fix the salaries of the assistant clerks in amounts not to exceed the salary of the clerk. It is clear that the charter provisions as to the salaries must govern, and, having been thus fixed by law, provisions in the ordinances which profess to fix the salaries of the police justices and the clerk are invalid, but those as to the assistant clerks are valid and binding.

Ordinance 230A, purporting to fix the compensation of the officers, clerks, and employees of the Detroit Museum of Art, is void, under the holding of this court in the case of Detroit Museum of Art v. Engel, 187 Mich, 432 (153 N. W. 700), where we held that the payment by the city of Detroit of the maintenance expenses of the Museum of Art, a private corporation, was a use of public funds for a private purpose, and was illegal under section 12 of article 10 of the Constitution of 1909.

With reference to the board of health and the board of education, the charter makes certain provisions as to the powers of the board of estimates with reference to the salaries of the officers, clerks, and employees of these boards. Section 472 of the charter, with reference to the board of health, provides:

“Excepting as may be otherwise provided by law, or by the ordinances of said city, said board may prescribe the duties and powers of the health officer, and of all inspectors, superintendents, or other subordinates or employees under them, and may direct them, from time to time, in the performance of all their powers and duties. They may determine their number and may fix the compensation they shall receive except as herein provided, but the aggregate amount, to be expended for the compensation of officers, clerks, inspectors, and other subordinates, shall not exceed the amount approved by the board of estimates for that purpose.”

Section 604 of the charter (Charter of City of Detroit, 1904), with reference to the board of education, providés in part as follows:

“So much of said estimates as the common council and board of estimates of the city of Detroit shall approve shall be levied and collected the same as other city taxes; and it shall be unlawful for said board of education to pay out or agree to pay out any moneys for any item or items disallowed by said common council or board of estimates.”

It is thus seen that the city charter expressly confers on the board of estimates the power to approve or disapprove the amounts of the salaries of the officers, clerics, and employees of the boards of health and education. The decree of the court below to that effect is therefore correct.

Under the home rule act, being Act No. 279, Pub. Acts 1909, which provided:

“Sec. 5. No city shall have power: * * *
“(d) To change the salary or emoluments of any public official after his election or appointment or during his term of office; nor shall the term of any public official be shortened or extended beyond the period for which he was elected or appointed, unless he resign or be removed for cause”

—the amendment of the -charter above set forth, adopted in November, 1914, which made all appointive officers hold at the will of the mayor, could therefore not become effective against any appointive officer unless he resigned. The members of the board of assessors of the city of Detroit tendered their resignations to the mayor, and were thereupon reappointed by the mayor, and since January 15, 1915, have been serving without any fixed term; their term of office being entirely at the will of the mayor, according to the provisions of the amendment to the charter above set forth. This was the situation when the council on April 15,1915, by Ordinance 219A, fixed the salaries of the members of the board of assessors at $5,000. We are of the opinion that the assessors are entitled to receive compensation at the salaries fixed by the ordinance. It is evident that section 3, art. 16, Constitution of 1909, which provides:

“Salaries of public officers, except circuit judges, shall not be increased, nor shall the salary of any public officer be decreased, after election or appointment”

—was intended to apply to such a state of affairs as existed at the time of the adoption of the Constitution, at which time public officers were only appointed for fixed terms; and to hold that the inhibition would apply to officers whose terms were indefinite would render it impossible to ever increase or decrease the salary of such officers so long as the mayor retained them in office. In the case of Kearney v. Board of State Auditors, 189 Mich. 666 (155 N. W. 510), the officers had simply resigned their offices, and were reappointed to fill out the balance of the terms, a part of which had already been served. We there said:

“We are well satisfied that by fair implication and manifest intent of those who framed and adopted the constitutional provision under consideration it comprehends in application both officer and term, considered together, where the term is fixed by law, and after his election or appointment for a specified term his relation to that term, in the matter of compensation while an incumbent, cannot be evaded by resignation and reappointment.”

Which clearly points out that the officers and terms should be considered together. The assessors were not reappointed to fill out unexpired terms, as. in that case, but voluntarily gave up their rights, to a fixed and definite term, and were reappointed to an indefinite, uncertain, and unlimited term, which, in our opinion, presents an entirely different situation than was presented in the case of the members of the tax commission.

The court below held that the salary of Mr. George W. Barrus (the only one of the civil service commissioners who was entitled to draw a salary by virtue of his reappointment, the term of his office, considered by the court in Barrus v. Engel, 186 Mich. 540 [152 N. W. 950], having expired) was payable to him by virtue of the charter amendment with reference to the civil service commission above set forth. By an oversight and error the court below enjoined the payment of the salary of Mr. Barrus, fixed and determined by Ordinance 225A in accordance with the provisions of' the charter amendment. This should be corrected, as. the court below properly held that Mr. Barrus was-entitled to the salary fixed by the ordinance.

It also follows that the various other ordinances fixing salaries, except as. in this opinion indicated, were legal enactments of the council, and the officers, clerks, and employees therein named are entitled to the salaries therein fixed, except as they come under the inhibition of section 3, art. 16, of the Constitution above-set forth.

With the modifications herein suggested, the decree of the court below will be affirmed, without costs to either party.

. Stone, C. J., .and Bird, Moore, Steere, Brooke, and. Person, JJ., concurred. Ostrander, J., did not sit.