text:
    INDUSTRIAL WORKS v. MITCHELL.
    1. Contracts — Sale of Machinery — Delayed Delivery — Waiver of Damage.
    The mere acceptance of machinery by a vendee, without protest, after the time specified for its delivery, and his appropriation of the same to his own use, do not constitute a waiver of his right to claim damages for the delay; nor does the giving of a note for the purchase price necessarily operate as such waiver.
    2. Same — Damages—Loss of Profits.
    The profits that might have been made under a government dredging contract, in case dredging machinery had been furnished according to the terms of a contract for its purchase, are not so speculative as to preclude their being made the basis of recoupment in an action for the purchase price of the machinery, where the government contract contemplated the performance of specified work at a specified price.

      3. Same — Notice of Collateral Contract.
    Where one selling machinery for a dredge, agreeing to deliver it at a specified time, has notice that the purchaser has a government contract for excavating, and needs a dredge stronger than the one he then possesses to enable him to do the work, he is liable to the purchaser for the loss of profits under such contract, occasioned by delay in the delivery of the machinery.
    Error to Saginaw; Wilber, J.
    Submitted April 15, 1897.
    Decided July 16, 1897.

      Assumpsit by the Industrial Works against John A. Mitchell and Chauncey E. Mitchell upon promissory notes. From a judgment for plaintiff, defendants bring error.
    Modified.

      James B. McMahon, for appellants.

      II. H. Hatch, for appellee.
   Montgomery, J.

In the month of December, 1890, defendants had a contract for dredging for the government at Sand Beach, Mich. It became necessary for them to build a dredge to be used in performing their contract. They entered into a contract with the plaintiff, by the terms of which the plaintiff agreed to furnish and deliver the machinery necessary to be used in the dredge as early as March 1, 1891, at an agreed price. Plaintiff brought this action to recover upon notes given in renewal of notes previously given for the purchase price. Defendants sought to recoup damages occasioned by delay in not furnishing the machinery within the time prescribed, and for further delay resulting from defects in the machinery. The cause was tried before a referee, who made a special finding of facts and of law, and whose finding was affirmed by the circuit court. Prom the decision of the circuit court, defendants appeal.

The finding shows that no part of the machinery was delivered to the defendants until the 31st of March, 1891, and that, when the machinery was delivered, it was so badly constructed that it required 14 days longer to set it up than it would have required had it been constructed in a workmanlike manner. There was a further delay of 3 days after the machinery was set up, because of improper construction of the dipper-handle machinery, and 9 days’ delay because of other latent defects ih the machinery. Altogether, a delay of 56 days occurred, and the referee finds that the net profit the defendants would have made during each of these 56 days would have amounted to $54.80, had they been able to use the dredge. The referee further finds that, before the making of the contract, defendants informed the plaintiff that they had a government contract for excavating at Sand Beach, and needed a dredge stronger than the one they then had with which to do the excavating under said contract; and to questions propounded by defendants’ counsel answers were returned as follows:

“Q. Was the plaintiff informed that defendants had a government contract at Sand Beach, for which they desired to use their dredge ?
“A. Yes.
“Q. Was plaintiff informed of the character of the digging or work intended to be done by the dredge ?
“A. No, except that they wanted a stronger dredge than the one they had.”

The principal question involved in this case is whether the defendants are entitled to recoup the loss of profits which the referee finds that they have suffered by reason of the delay in furnishing the machinery, and the further delay occasioned by furnishing defective machinery.

A preliminary question arises as to whether defendants had waived their right to claim damages for the delay. In answer to a question by the plaintiff, the referee found that, before the giving of the notes in suit, defendants had accepted and appropriated to their own use all the machinery manufactured and delivered under the contract, and it is contended that their acceptance and retention of the machinery, not having reserved any right to complain of a nondelivery on time, amounts to a waiver of all right to recover for the damages which they claim. The referee finds further upon this subject that—

“By the terms of the contract, there was a cash payment to be made on March 1st, and on the same day notes were to be given for the remainder of the purchase price. This was the same day provided for the delivery of the machinery at the hull of the dredge in Port Huron. This fact shows that the parties, when they made this contract, did not contemplate that the defendants were to have an opportunity to examine or test this machinery before making payment, and the payments were made without regard to the actual delivery of the machinery. The 12,000 cash payment was made on March 4th, about 30 days before the machinery was actually delivered. The plaintiff, by its Exhibit 79, on April 25th, almost 30 days before Streng had completed placing the machinery, made demand for the note under contract, and the note was given without reference to the actual condition of the machinery.”

The acceptance of the machinery under the circumstances of this case as disclosed by the finding was practically an acceptance under compulsion. As was said by the court in Ramsey v. Tully, 12 Ill. App. 471: “To say that an acceptance, after the time for delivery had passed, under such circumstances, was voluntary in such sense as to evince an intention to waive their right to claim damages for the delay, would be a perversion of language. They did the best they could in the situation in which they found themselves placed.” See, also, Haven v. Wakefield, 39 Ill. 509; Hansen v. Kirtley, 11 Iowa, 565; Flannery v. Rohrmayer, 46 Conn. 558 (33 Am. Rep. 36); Ruff v. Rinaldo, 55 N. Y. 664. The giving of the note under such circumstances is not conclusive of an intention to waive the claim for damages. See Waterman v. Clark, 76 Ill. 428; Wheelock v. Berkley, 38 Ill. App. 518. See, also, Bodurtha v. Phelon, 13 Gray, 413.

Plaintiff, however, contends that the inference from the circumstances found by the referee is that there was an intention to waive the claim for damages. But we think the findings as a whole do not sustain this view, and that the defendants are entitled to recoup such damages as they have shown in this case.

The case presents the vexed question as to when the profits lost by the party defeated of his contract by the wrongful act of another may be the basis for damages. The briefs of counsel on both sides in this case are full, and ably present the two different views which may be taken of the question, as applied to the facts in this case. The case of Hadley v. Baxendale, 9 Exch. 341, has been approved by most of the American courts, and by this court in Hopkins v. Sanford, 38 Mich. 611. The rule as stated in that case is that, where two parties have made a contract, which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered as either arising naturally, i. e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both.parties at the time they made the contract, as the probable result of the breach of it; and that, if the special circumstances under which the contract was actually made were communicated, and thus known to both parties, the damages resulting from the breach of such a contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a'breach of contract under these special circumstances so known and communicated; but, on the other hand, if these special circumstances were wholly unknown to the party breaking the contract, he, at the most, could only be supposed to have had in contemplation the amount of injury which would arise generally, and in the great multitude of cases, not affected by any special circumstances, from such a breach of contract. Applying the rule in Hadley v. Baxendale, supra, two questions naturally arise in this case: First, whether the profits which the referee finds that the defendants lost by reason of the default of the plaintiff are too speculative in their nature to admit them as a basis of recovery; and, second, what must be the nature of the notice which the defaulting party has of the existence of a collateral contract to charge him with the loss of profits which might be made under it.

As to the first question, this court has frequently held, beginning with Burrell v. Salt Co., 14 Mich. 34, that the fact that the loss to the injured party is in the nature of profits is not, in and of itself, a reason why the general rule that he should be indemnified for the loss sustained should not be applied. There is nothing in the term “profits” which has such terror to the courts as to prevent measuring a party’s loss by proof showing the amount. It is true, there is a class of cases in which profits may not be recovered, namely, those cases in which the nature of the business in which the profits might have been earned is so uncertain and speculative in its character that it furnishes no reasonable basis upon which to make an estimate of loss. Such is not the case where either the contract sued upon, or the collateral contract, where the responsibility for its breach is fixed upon the defendant, consists of undertaking to do specific work for a specified price; and this is true even though in the performance of that work machinery as well as labor may be employed. See Loud v. Campbell, 26 Mich. 239; Atkinson v. Morse, 63 Mich. 276; Leonard v. Beaudry, 68 Mich. 312; Fell v. Newberry, 106 Mich. 542; Barrett v. Veneer Works, 110 Mich. 6. This case is undoubtedly of the class where, by the contract of defendants with the government, their profits depended upon no contingency except the performance of specified work at a specified price. There were no elements of uncertainty depending upon the state of the market. It is true, it is suggested that the state of the weather might affect the profits by interfering with the work as it was progressing; but this was certainly no more the case than in Loud v. Campbell, supra, which was a case of a breach of a contract for freightage, and the court said:

“It is not open to them [to appellants] to contend that the freight stipulated for by the contract might have been defeated by some of the accidents of navigation or otherwise, when their own failure to keep the agreement prevented the defendants in error from proceeding to perform the acts which were to earn the freight.”

What notice, then, is necessary before the defaulting party can be charged with the loss of the profits to be made upon the collateral contract by the other ? On the one hand, the rule contended for is that not only must the parties have notice of such contract, but there must be something in the terms of the contract, read in the light of surrounding circumstances, which shows an intention on the part of the vendor to assume a larger engagement, a wider responsibility, than is assumed in ordinary contracts for the sale and delivery of merchandise. On the other hand, it is contended by the defendants that notice of the fact that this machinery was to be put to use in performing a contract with the government was sufficient notice that defendants expected to derive a profit from the business, and that the natural and necessary inference must have been that a failure to fulfill the contract by the plaintiff would result in the particular damage which did follow, namely, the loss of those profits. Mr. Sedgwick, in his invaluable work on Damages, at section 146, interprets the rule in Hadley v. Baxendale, supra, to include the proposition that the plaintiff may show certain special facts to have been known to the defendant at the time of the contract, which gave notice to him that a breach of the contract would result in an otherwise unexpected loss, and the plaintiff may recover his special loss. And at section 149 the conclusion is stated that, where Hadley v. Baxendale is followed, the plaintiff recovers such damages as are proximate and natural; and that, in ascertaining what are the natural consequences, we must take into account all the circumstances of the case, including all the facts bearing on the question which were in the knowledge of both parties, even though they be such as would not necessarily, without such knowledge, enter into it; and it is then further stated:

“It is on this principle that the plaintiff is allowed to charge the defendant with loss on subcontracts, sales, etc., on proving notice, which, in the absence of such notice, would not be treated as natural or expected consequences.” 1 Sedg. Dam. § 149.

We think this correctly states the rule, and that, in a case where notice is brought home to the contracting party that the goods are purchased to be put to a particular use, he is chargeable with the consequences of a failure to perform, arid with the results which such notice fairly apprised him would probably follow upon his breach of contract. See Booth v. Mill Co., 60 N. Y. 487; Richardson v. Chynoweth, 26 Wis. 656; Illinois Cent. R. Co. v. Cobb, 64 Ill. 128; True v. Telegraph Co., 60 Me. 9 (11 Am. Rep. 156). The case of Goodrich v. Hubbard, 51 Mich. 62, cited by counsel for the plaintiff, is not, we think, in conflict with this view, as in that case it was said: “There is no finding that this contract [the one between the parties] was made with reference to the fulfillment by defendant of the Stephens contract, and the evidence before him, to wit, the contract in suit, and which must be taken to express the whole contract of the parties, would not authorize such finding.” The Stephens contract was not, therefore, considered.

It appears that the defendants suffered a delay of 56' days, which, at $54.80 per day, amounts to $3,068.80. The judgment will be modified accordingly. Defendants will recover costs of this court.

The other Justices concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    SECOR v. PATTERSON.
    Mortgages — Inclusion of Commissions — Usury.
    Where a mortgagor, who was unwilling that the mortgage loan should be diminished by the commissions of the broker procuring it, agreed that the amount of such commissions should be included in the mortgage, the mortgage was not thereby rendered usurious.
    Appeal from Gratiot; Daboll, J.
    Submitted April 28, 1897.
    Decided July 16, 1897.
    Bill to redeem by Charles K. Secor and wife against Anna L. Patterson. From the decree rendered, complainants appeal.
    Affirmed.

      8. W. Steioart and James PL. Pound, for complainants.

      John PL. Powell, for defendant.
   Moore, J.

October 8, 1892, complainants made a mortgage to defendant, in which the consideration was stated to be $2,500. February 25, 1893, there was paid upon this mortgage $500. Foreclosure proceedings were afterwards commenced by the mortgagee by advertisement. February 21, 1894, the property was bid in by the mortgagee for the sum of $1,715. February 21, 1895, complainants filed this bill, and asked to have the foreclosure proceedings set aside for irregularities, and asked for an accounting to determine the amount due, and for leave to pay the amount found due upon said mortgage. In the bill the complainants averred that they “had offered to redeem the said mortgaged premises by paying the amount actually due upon said mortgage, and costs,” and renewed the offer in the bill of complaint. It was the claim of the complainants that, while the mortgage was given for $2,500, but $2,000 was in fact paid, and that the mortgage was usurious, and that there was due upon it only the sum of $1,500. The circuit judge, August 17, 1896, made a decree in which he found that the mortgage was usurious, and decreed that complainants be allowed to redeem the premises “upon the payment, and that they do so pay, within 60 days from date of this decree, into this court, to abide the further order of the court as to its distribution,” the amount for which the land was sold, and in default of payment it was decreed that the foreclosure sale stand, and complainants’ bill be dismissed. Complainants appeal from this decree, assigning a good many errors. Inasmuch as this is a bill to redeem, in which they offer -to pay what is due upon the mortgage, it is not necessary, in any view of the case, to discuss many of the assignments.

The testimony in the case is very conflicting, and it cannot all be harmonized. We think, however, it appears by a preponderance of the testimony that, for some months prior to the giving of this mortgage, the complainant Charles K. Secor, who had a power of attorney at that time to act for his wife and to sign her name, was in straitened circumstances. He had for some weeks been endeavoring to obtain a loan of $2,000 upon real estate, most of which was at Sickels, in Gratiot county. The evidence discloses that he had said to several persons, if they would get $2,000 for him, he would pay $500 commission to the person procuring the loan. He at that time was engaged in building a number of houses, and it was important that he should have this amount of money to pay for labor and material. He stated to parties that, if he could get that amount of money, it would save him a loss of $20,000. It also appears from the testimony that he made this offer to one John H. Powell, a lawyer and broker, living in Detroit. Mr. Powell made several efforts to find the money without succeeding. The security offered was, in the main, away from Detroit. Capitalists in that city did not care for the loan. Mr. Powell had done business for the defendant, and knew that she sometimes had money, and he brought about an interview between Mr. Secor and the defendant, which resulted in the defendant’s agreeing to furnish complainant $2,000. The complainant insists that the arrangement was made at the house of the defendant, and that he was to pay her $2,500 and interest for $2,000. She insists that the arrangement was made in Mr. Powell’s office, and that she was to furnish $2,000, if the security was good, for which she was to receive $2,000 and interest, and that there was never any talk of paying her any bonus. It was finally arranged that Mr. Powell should visit the property at Sickels, and, if he reported favorably, the money should be furnished. Mr. Powell and Mr. Secor visited Sickels, and looked over the property, Mr. Secor paying the expenses. Mr. Powell reported that he did not think the property was good security for the amount of money. An arrangement was then made by which two houses, for the erection of which the money obtained was to be in part-used, were to be conveyed as security in addition to the mortgage, the houses to be reconveyed upon the payment of $500 for each house. The $500 that was paid on the mortgage in February was realized from a conveyance of one of these houses. Mrs. Patterson finally procured the money, and delivered it to Mr. Powell for Mr. Secor, who in turn assigned it to Mr. Sickels. All the money was needed by Mr. Secor and Mr. Sickels, and the question arose as to how Mr. Powell was to be paid. The testimony could not well be more conflicting than it is about this feature of the case, but, in view of the situation of the parties and the testimony, we think it is established with reasonable certainty that Mr. Secor proposed to give Mr. Powell a second mortgage for the $500 commission that was to go to him; that Mr. Powell objected, and proposed that his $500 be included in the mortgage with Mrs. Patterson’s $2,000, Mrs. Patterson to pay him when it was collected from Secor, and that, all the parties assenting to this, it was done. Mrs. Patterson says that up to this time she had no knowledge that any bonus was to be paid; that no part of the $500 was for her benefit; that she has never made any claim to it for herself, and does not now; and we think she has established her contention, in that respect, by a preponderance of the evidence.

Regarding these facts as' established, there was due Mrs. Patterson, after indorsing the $500 paid her, and after deducting the bonus that was to go to Mr. Powell, all that she bid for the property. Is the mortgage, under the circumstances established, usurious? Complainants cite, in favor of the proposition that it is usurious, Act No. 156, Pub. Acts 1891; Smithers v. Heather, 25 Mich. 447; Smith v. Hart, 39 Mich. 515; Havens v. Jones, 45 Mich. 253. These citations simply establish that, when usurious interest is provided for, no interest at all, under the law as it has existed since 1891, shall be allowed. While the bargain made between Mr. Secor and Mr. Powell for the payment of $500 for the services rendered was a hard bargain, it was not an illegal bargain. It would hardly be pretended that, if Mr. Powell had been paid the money, it could be recovered back, or, if Mr. Secor had given Mr. Powell a second mortgage to secure this commission, that it could not be enforced. The rights and duties of a broker employed to secure a loan depend upon the same principles which govern the broker who undertakes to find a purchaser of property. The loan broker is entitled to his commissions when he has procured a lender who is ready, willing, and able to lend the money upon the terms proposed. Mechem, Ag. § 970; Vinton v. Baldwin, 88 Ind. 104 (45 Am. Rep. 447). Mr. Powell agreed to do a certain thing for an agreed price. He had performed on his part, and was entitled to be paid. As Mr. Secor could not pay him in money, it was competent for them to provide how the payment should be secured. That was done, and the consideration for the giving of the mortgage was the $2,000 furnished by Mrs. Patterson and the debt to Mr. Powell. We do not think the mortgage was usurious.

The defendant has not appealed, so that all we can do is to affirm the decree of the court below.

Decree is affirmed, with costs of this court to defendant.

The other Justices concurred.


author: Hooker, J.

text:
    TOWNSHIP OF GRANT v. TOWNSHIP OF RENO.
    1. Division of Township — Bonded Indebtedness — Suit for Contribution — Conclusiveness of Judgment.
    A judgment against a township upon plank-road aid bonds, void save in the hands of a bona fide holder, is not conclusive of the township’s right to recover in a suit to compel contribution to the payment of the judgment from another township organized from the territory of the former after the bonds were issued, where the township sought to be held was given no opportunity of participating in the defense in the •action upon the bonds, but complainant must establish the good faith of the judgment plaintiff’s holding.
    3. Same — Good-Faith Purchaser — Admissions of Counsel — Evidence.
    An admission by counsel at the hearing that the judgment plaintiff became the owner of the bonds through one who had “purchased” them from a specified person does not meet the requirement that complainant must show that the bonds were at some time held by one who had purchased them in good faith before maturity, for a valuable consideration, and without notice of their invalidity.
    Appeal from Iosco; Simpson, J.
    Submitted. June 15, 1897.
    Decided July 16, 1897.
    Bill by the township of Grant against the township of Reno for contribution to the payment of a judgment against the complainant township. From a decree for complainant, defendant appeals.
    Reversed.

      Barbour & Bexford, for complainant.
    O. K. M’Cutcheon, for defendant.
   Hooker, J.

The bill filed in this cause was held sufficient in 107 Mich. 409, on demurrer. The cause has since been heard on pleadings and proofs, and is again before us upon appeal by the defendant from a decree in favor of the complainant. The nature of the complainant’s claim will be understood by a perusal of the statement of facts and opinion cited, and it is unnecessary to repeat in detail the facts alleged. In brief, a statement of complainant’s claim may be said to be that, in 1869, the township of Grant, as then constituted, issued some plank-road aid bonds, which, though void under the law, as interpreted by this court, were valid in the hands of innocent holders for value, under the rule recognized by the federal courts; that subsequently the township of Reno was organized from territory detached from the township of Grant, and that, although the township boards met, and it was agreed that Reno should pay its proportion of these bonds, it neglected and refused to reimburse Grant for the payment of such proportion, after judgment rendered against Grant in favor of one Haugan.

The bonds upon which the judgment against the township of Grant, to which Reno is asked to contribute, was based, are admitted to have been void in the hands of the payee. To entitle Haugan to a judgment against the township of Grant, it was necessary that he should show that he or some former owner of the bonds was a purchaser in good faith before maturity, for a valuable consideration, and without notice of the invalidity of the bonds, as the law imposes the burden of such showing upon the plaintiff where the defendant shows that the bond or note was illegal or void in the hands of the payee. Paton v. Coit, 5 Mich. 505 (72 Am. Dec. 58); Bottomley v. Goldsmith, 36 Mich. 27; Conley v. Winsor, 41 Mich. 253; Mace v. Kennedy, 68 Mich. 389; Manistee Nat. Bank v. Seymour, 64 Mich. 59; Lytle v. Lansing, 147 U. S. 59. Whether this was shown in the case against Grant, we need not inquire, but it must be shown in this case, unless it can be said that the judgment against Grant is conclusive of the question, against Reno. It is contended that such is the case, and the former opinion in this cause is relied upon as authority for the contention. We have not had the merits of this controversy before us until now. Upon demurrer it was intimated that such judgment might be conclusive upon the township of Reno under the circumstances stated in the bill demurred to, which asserted that Reno participated in the defense of the cause. This record shows that Reno did not participate in such defense, and there is nothing to show that it had an opportunity of doing so, or even knew of the pendency of the action. If Grant (which made no defense to the action) saw fit not to contest this matter, or to allow Reno to do so, the effect would be, under this contention, to place Reno at the mercy of Grant, and deny it its day in court; and we think we do not go too far in saying that, under the facts shown, the burden of establishing the bona fides of Haugan’s holding of these bonds was upon the complainant in this suit. This seems to have been understood by counsel, who offered some testimony upon that point. Counsel’s brief, in treating this subject, says that, if the judgment is not conclusive of this question, there is further proof of the fact, and says:

“It appears that the respective counsel made certain admissions for the purposes of the hearing; that complainant’s counsel, for defendant’s benefit, admitted that Haugan became the owner of the bonds some time about the year 1873 (after the decision in the Salem Case, [May 26, 1870] 20 Mich. 452), through George W. Todd, who, on January 22, 1870, purchased them from Alvin Wilkins. This admission was accepted in silence as a fact in the case, and in our statement of facts we have treated it as such.”

It will be noticed that there is no showing that these bonds were ever purchased by one who had no notice of their invalidity, and that there is no evidence that value was paid for them, unless it is to be inferred from the use of the word “purchased.” This testimony falls short of the requirements of the law, and we have no alternative but to reverse the decree of the circuit court, and dismiss the bill. It is so ordered, defendant to recover costs of both courts.

The other Justices concurred.


author: Montgomery, J.

text:
    BOARD OF AUDITORS OF WAYNE COUNTY v. WAYNE CIRCUIT JUDGE.

    County Buildings — Supervisors—Board op Auditors — Conflicting Powers — Constitutional Law.
    Act No. 63, Pub. Acts 1889, § 8, subd. 9(3 How. Stat. § 5181), providing that the board of auditors of Wayne county shall have authority to supervise the construction of buildings erected by the county, is in conflict with section 9 of article 10 of the Constitution, empowering the board of supervisors to raise money for the construction of public buildings.

      Mandamus by the board of auditors of Wayne county to compel William L. Carpenter, circuit judge, to issue a writ of mandamus requiring the board of supervisors of said county to rescind a resolution providing for a committee to supervise the construction of a county building.
    Submitted June 15, 1897.
    Denied July 16, 1897.

      John J. Speed, for relator.

      Allan H. Frazer and Ormond F. Hunt, for respondent.

       Rehearing denied November 23, 1897.

   Montgomery, J.

Relator presented to respondent a petition for mandamus to be directed to the board of supervisors of Wayne county commanding them to rescind so much of a resolution adopted by them as provides for a committee to supervise the work of constructing a county building. The order was refused, and application is made to us for mandamus to compel the circuit judge to grant an order to show cause. The question presented is whether, under the law, the board of county auditors had the exclusive right to supervise the construction of the building.

Under the ninth subdivision of section 8, Act No. 63, Pub. Acts 1889, being section 518 i, 3 How. Stat., it is provided that the board of county auditors shall have authority to procure the necessary plans and specifications for, and supervise the construction of, any buildings erected by the county, excepting such as the superintendents of the poor may construct. By section 9 of the same act, it is provided that the board of supervisors of said county shall not have or exercise the powers therein conferred upon said board of auditors. In subdivision 7 of section 8 it is provided that the said act shall not be construed to give said board of auditors the power to contract for the erection of new buildings, or the purchase of any land for any purpose whatever. These provisions would seem to be clear enough in their terms, but it is. contended that the provision of the act conferring this right upon the board of auditors is unconstitutional; that, under the Constitution, the authority to contract for the erection of public buildings is vested in the board of supervisors, and that this includes the power to see to it that the contract is complied with, and for that purpose to supervise the construction of the building.

Section 6, art. 10, of the Constitution provides:

“A board of supervisors, consisting of one from each organized township, shall be established in each county, with such powers as shall be prescribed by law.”

Section 9 of article 10 reads as follows:

“The board of supervisors of any county may borrow or raise by tax $1,000 for constructing or repairing public buildings, highways, or bridges, but no greater sum shall be borrowed or raised by tax for such purpose in any one year unless authorized by a majority of the electors of such county voting thereon.”

The latter provision is the only one which in any way supports the contention of respondent. In Board of Sup’rs v. Wayne Circuit Judge, 111 Mich. 33, we held that the power conferred by section 9, art. 10, was not so broad but that it was subject to legislative control, in view of the provisions of section 6 of the same article. The question was more directly before the court in Attorney General v. Board of Auditors, 73 Mich. 53, in which case Mr. Justice Campbell, in an exhaustive opinion, reviewed the history of the board of auditors, and reached the conclusion that, previous to the'Constitution of 1850, the board of auditors had the same general powers, except as to taxation, possessed by the board of supervisors, and the question dealt-with, as stated by the learned judge, was whether the Constitution of 1850, and the legislation under it, had changed the powers of the auditors, and confined them within closer limits; and referring to the provisions of section 10, art. 10, which reads: “The board of supervisors, or, in the county of Wayne, the board of county auditors, shall have the exclusive power to prescribe and fix the compensation for all services rendered for, and to adjust all claims against, their respective counties,” — it was said:

“ The fact that the auditors are expressly mentioned in only one section with the supervisors is very significant, and, according to the usual rules of construction, would confine their powers to those mentioned in that section, as far as such powers are enumerated. In regard to powers not so enumerated, either of supervisors or auditors, the Constitution would not repeal or affect them, unless repugnant. But as, apart from the constitutional grant, all the powers of both bodies depended on legislation, they could be changed or abolished at will. * * * There can be no doubt that the convention meant to ex-elude any board but the supervisors from managing the business given into their charge by the Constitution in express terms, except in the single subject of services and claims in Wayne county. * * * Not only is it plain, from the natural meaning of the Constitution, that such powers as the Constitution itself gave to the supervisors should be exclusive on all but the one class of powers referred to in section 10, but the legislature of 1851, on which the duty had been laid of bringing the statutes into harmony with the Constitution, gave to this article a practical construction in the same direction.”

And, after reviewing this legislation, Justice Campbell proceeded:

“The subject of purchasing or erecting public buildings is outside of their [the auditors’] jurisdiction. * * * The powers sought to be restrained are within the exclusive grant to the .board of supervisors, and the’auditors have no control over them.”

It is contended that this language was held not alone with reference to the constitutional provision, but with reference to the statute; but we think the intention was to rest the decision upon the constitutional provision. In Clegg v. Board of Auditors, 96 Mich. 191, in referring to the case of Attorney General v. Board of Auditors, and in distinguishing the case, Justice Grant said: “It must be remembered that in that case the board of auditors were assuming power over a subject which was expressly conferred by the Constitution upon the board supervisors.” It must be held that this legislation, so far as it attempts to deprive the board of supervisors of the control of this subject, is in conflict with section 9 of article 10.

The writ will be denied.

The other Justices concurred.


text:
    JENKS v. HORTON.
    Debtor and Creditor — Bill to Reach Equitable Assets — When Lies.
    A creditor having no judgment or decree of a personal nature against Ms debtor, a resident of the State, cannot maintain a bill to subject equitable interests of the debtor to the payment of the debt.
    Appeal from St. Clair; Eldredge, J., presiding.
    Submitted June 15, 1897.
    Decided July 16, 1897.
    Bill by William L. Jenks against Rebecca Horton and others to subject equitable assets to the payment of complainant’s claim. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      P. PL. Phillips, for complainant.

      Chadwick & Mcllwain, for defendant Horton.
   Hooker, J.

Rebecca Horton was the owner of a life estate in certain lands, and it was a duty that she owed to the reversioner to pay the taxes during her occupancy. This she failed to do, and, for his own protection, the reversioner paid them, and, upon a bill filed by him, it was decreed by this court, on appeal, that the amount of such taxes constituted a lien upon the premises, and that the same be sold to pay them, unless paid within 60 days. See Jenks v. Horton, 96 Mich. 13. Subsequently her estate in the premises was sold under the decree, and brought the sum of $50. This was followed by a petition for an execution for the deficiency. In answer to this petition, it is said that Mrs. Horton averred that the complainant received and accepted, as satisfaction for said claim, a deed of said premises. Her answer does not appear in the printed record, but the statement in the brief is not disputed, and is corroborated by the replication filed. The replication denies her averment as to such adjustment. The circuit court in chancery dismissed the petition, upon a full hearing upon pleadings and proofs, by an order couched in the following language:

“ The petition of the above-named complainant for execution for deficiency in the above cause coming on to be heard on the pleadings filed therein, and testimony taken before me, and after hearing Phillips & Jenks, for complainant, and A. E. Chadwick, for defendant, and it appearing to the court that there is no provision of law authorizing the issuance of execution by this court for the deficiency arising from the sale of premises under the decree rendered in said cause, it is hereby ordered, adjudged, and decreed that the above-named petition is hereby dismissed, with costs to defendant.”

Prom this order no appeal was taken. Previous to the entry and filing of the order (but five days after the date thereof), the bill in the present case was sworn to. The date of its filing does not appear, and is of no consequence upon this record. This bill alleges the complainant’s claim and the proceedings in the former cause, up to and including the sale under the decree of this court, and states that upwards of $400 is still due to the complainant upon the decree, and that Rebecca Horton refuses to pay, and has no property which can be reached by execution, but that she is possessed of rights, under a decree of this court, against one Henry Howard, to the annual payment of $280, and by the terms of which the sum of $280 becomes due and payable on October 15, 1894, from the executors of Henry Howard, he being dead. It was further alleged by the bill that said claim was by said decree made a lien upon certain real estate in Port Hur.on. It makes Rebecca Horton and the executors of Howard parties defendant, and prays that the latter be required to pay to the complainant the sum due from said estate to the said Horton, and that her interest in said estate be sold to satisfy the complainant’s claim. The defendants all appeared, and answered, denying the jurisdiction of the court in the premises, and Rebecca Horton alleged a former adjudication of the question, and asserted the settlement and satisfaction of the decree. Upon a hearing on pleadings and proofs taken in open court, the court found, as evidenced by the decree, that “the bill is without equity, and complainant is not entitled to decree thereunder;” and the bill was dismissed, “without prejudice to any existing right in the complainant to his action at law, this decree, however, not being construed as authorizing any action at law. ”

The decree of the circuit court in the original case is not before us, and we cannot 'therefore determine that it adjudged the defendant was indebted to the complainant. If it did, we see no obstacle to further proceedings to obtain execution to collect the amount, if the property sold proved inadequate. 2 How. Stat. § 6653, gives to courts of chancery authority to issue execution to enforce decrees. If, however, it merely gave relief to the extent of subjecting her life estate to the payment of the debt that was a lien upon it, it would follow that the complainant has no judgment or decree that will support an execution; and this would seem to have been the view of the circuit judge, who denied the application for execution upon the ground “that there is no provision of law authorizing the issuance of execution by this court for the deficiency arising from the sale of premises under the decree rendered in this cause. ” That this was his view is indicated by his dismissal of the bill in this cause without prejudice. Having no judgment, and no execution having issued, the complainant is proceeding to subject equitable interests, which are beyond the reach of executions, to the payment of his claim.

It is a rule both of common law and by statute that before the aid of equity can be invoked to subject equitable assets, not liable to execution, to the payment of a debt, all legal remedies shall be exhausted; and, where the defendant is a resident, it must appear that a judgment at law lias been obtained, execution issued, and returned unsatisfied. We are not prepared to say that a decree of a court of equity, upon which execution had issued, and been returned unsatisfied, would not be sufficient to justify filing a creditor’s bill, or a bill in aid of execution; but in the absence of a personal judgment or decree, and return of execution nulla bona, a bill does not ordinarily lie. While holding that return of execution is not prerequisite to the filing by a creditor of a bill to redeem equitable interests from a mortgage, the United States supreme court said, in Freedman’s Savings & Trust Co. v. Earle, 110 U. S. 715:

“But in other cases, when the object of the bill is to obtain satisfaction of the judgment by a sale of the equitable estate, it must be alleged that execution has been issued. This is not supposed to be necessary wholly on the ground of showing that the judgment creditor has exhausted his remedy at law; for, if so, it would be necessary to show a return of the execution unsatisfied, which, however, is not essential. Lewin, Trusts, 513. But the execution must be sued out; for if the estate sought to be subjected is a legal estate, and subject to be taken in execution, the ground of the jurisdiction in equity is merely to aid the legal right by removing obstacles in the way of its enforcement at law. Jones v. Green, 1 Wall. 330. And if the estate is equitable merely, and therefore not subject to be levied on by an execution at law, the judgment creditor is bound, nevertheless, to put himself in the same position as if the estate were legal, because the action of the court converts the estate, so as to make it subject to an execution as if it were legal. The ground of the jurisdiction, therefore, is not that of a lien or charge arising byvirtue of the judgment itself, but of an equity to enforce satisfaction of the judgment by means of an equitable execution. And this it effects by a sale of the debtor’s interest subject to prior incumbrances, or, according to circumstances, of the whole estate, for distribution of the proceeds of sale among all the incumbrancers, according to the order in which they may be entitled to participate. Sharpe v. Earl of Scarborough, 4 Ves. 538.
“It is to be noted, therefore, that the proceeding is one instituted by the jugdment creditor for his own interest alone, unless he elects to file the bill also for others in a like situation, with whom he chooses to make common cause; and, as no specific lien arises by virtue of the judgment and execution alone, the right to obtain satisfaction out of the specific property sought to be subjected to sale for that purpose dates from the filing of the bill. ‘The creditor,’ says Chancellor Walworth, in Edmeston v. Lyde, 1 Paige, 637-640 (19 Am. Dec. 454), ‘whose legal diligence has pursued the property into this court, is-entitled to a preference as the reward of his vigilance;’ and it would ‘ seem unjust that the creditor who has sustained all the risk and expense of bringing his suit to a successful termination should in the end be obliged to divide the avails thereof with those who have slept upon their rights, or who have intentionally kept back that they might profit by his exertions when there could no longer be any risk in becoming parties to the suit.’ As his lien begins with the filing of the bill, it is subject to all existing incumbrances, but is superior to all of subsequent date. As was said by this court in Day v. Washburn, 24 How. 352: ‘It is only when he has obtained a judgment and execution in seeking to subject the property of his debtor in the hands of third persons, or to reach property not accessible to an execution, that a legal preference is acquired which a court of chancery will enforce. ’ This.is in strict accordance with the analogy of the law, as it was recognized that the judgment creditor who first extends the land by elegit is thereby entitled to be first satisfied out of it. It is the execution first begun to be executed, unless otherwise regulated by statute, which is entitled to priority. Rockhill v. Hanna, 15 How. 189, 195; Payne v. Drewe, 4 East, 523. The filipg of the bill, in cases of equitable execution, is the beginning of executing it.”

The case of Earle v. Kent Circuit Judge, 92 Mich. 285, is cited in support of the practice in this case. But there was a showing in that case that the defendant was a nonresident, and had no property subject to execution in this State, while the complainant had an uncollected judgment against him in New York. An amendment alleging the issue and return unsatisfied of execution upon the New York judgment was permitted, and the judge’s order permitting the amendment was sustained. We think this case does not support the proposition that a bill might be filed to reach equitable assets, not only before execution issued, but before judgment.

We think the holding of the learned circuit judge was right, and his decree is affirmed.

The other Justices concurred.


text:
    KASTL v. WABASH RAILROAD CO.
    1. Railroad Companies — Union Tracks and Yard — Fellow-Servants.
    A switchman in the employ of a board composed of representatives of three railroad companies, to whose general control of a union depot, tracks, and yard the individual companies are subject, is not a fellow-servant of a car inspector employed by one of the companies, even when the switchman is engaged in handling the business of that particular road.
    2. Same — Car Inspectors — Negligence oe Switchmen — Assumption oe Risk.
    A car inspector so employed does not assume the risk of injury from the negligence of such switchman, so as to preclude a recovery for his death in an action against the roads in their associate capacity.
    Error to Wayne; Carpenter, J.
    Submitted June 16, 1897.
    Decided July 16, 1897.
    Case by Annie Kastl, administratrix of the estate of Anthony Kastl, deceased, against the Wabash Railroad Company, the Detroit, Lansing & Northern Railroad Company, and the Flint & Pere Marquette Railroad Company, associated and doing business as the Union Terminal Association, for negligently causing the death of plaintiff’s intestate. From a judgment for plaintiff, defendants bring error.
    Affirmed.

      Alfred Bussell, for appellant Wabash Railroad Co.

      E. A. Oott, for appellant Detroit, Lansing & Northern Railroad Co.

      Hanchett & Hanchett, for appellant Flint & Pere Marquette Railroad Co.

      Lemuel H. Foster, for appellee.
   Hooker, J.

The plaintiff’s intestate was a car inspector in the employ of the Wabash Railroad Company, and, while engaged in the inspection of certain cars belonging to said company, was killed through the error of a switch-man in throwing a switch, whereby another train was sent against the cars which he was inspecting. It is conceded that if the switchman, Hamill, was in the employ of the defendant Wabash Railroad Company, there can be no recovery, as in that case the alleged negligence of Hamill was that of a fellow-servant. It is contended, however, that this cannot be said, and that Hamill was the employe of a different “entity” than the intestate’s employer, going by the name of the “Union Terminal Association.” The record discloses that the depot, yards, and tracks were occupied jointly by the three defendants, which were separate and distinct railway corporations, and that, for their mutual convenience and economy in managing their respective railroads, they united in the expense of yard and depot work, contributing proportionately, and managing it, through officers and employés, under the name mentioned, and a written contract, which recognizes that “the employés are in the joint service of the parties to the contract.” The business of the depot and yards was put in charge of a board, consisting of representatives of the respective companies, and this board employed and directed men to do yard work for all. These men were paid by the board from a fund in their custody, contributed in the first instance, and periodically replenished, by the defendant companies, constituting the terminal association, so called. The switchmen, yardmaster, and others were employed and controlled by this board, and the business of locating and moving trains in the yard was conducted by it. The intestate was employed by the Wabash Company to inspect its cars, and presumably received his pay from said company, but, like all other employes upon and about trains, while in the yards, worked under and subject to the regulations and methods prescribed by the board in the management of the yard.

. It seems to be conceded that the switchman and the intestate were engaged, at the time of the accident, in the common enterprise of handling the business of the Wabash road; and, as we understand the plaintiff’s contention, the case should turn, so far as the doctrine of fellow-service is concerned, on the question whether it can be said that they were at work for a common master. Under his employment, this switchman, though engaged in the business of the Wabash road at the particular time when the accident happened, was to do business for the general convenience of all the companies, to which the ordinary use by each company of its tracks and portion of the yard was made in a manner subservient. This made it impossible for either road to conduct its business in all departments, and made the necessity of placing the control of some portion of its business beyond its own control imperative. Therefore the companies, by mutual arrangement, placed such control in the-hands of a board, which, though made up of representatives of the three roads, was beyond the power of any one road to control. The conduct of the business, as to the handling of trains in the yard, was as much beyond the control of any one company as though it were done by a separate corporation under contract, in which case it could not be said that these men were fellow-servants. The case of Northern Pacific R. Co. v. Craft, 69 Fed. 124, was a case where several roads used a station and yards belonging to a corporation known as the “Northern Pacific Terminal Association.” A terminal association employé was killed by the negligence of a Northern Pacific engineer, and it was held that the men were not fellow-servants, the court saying:

“ It is true that Craft’s duties were to check up the cars that came into the yard, whether they belonged to the Northern Pacific Railroad Company or to other companies; but, so far as the record indicates, he was in a distinct and separate employment from that of Stapleton, and they were in no sense under a common master, or subject to the same control.”

This case cites and discusses the case of Phillips v. Railway Co., 64 Wis. 475, which used similar language regarding an accident occasioned to a train running over another company’s road, through the negligence of the latter’s servant. The case also discusses and distinguishes Chicago, etc., R. Co. v. Clark, 2 Ill. App. 596, and Johnson v. City of Boston, 118 Mass. 114, which last case is relied upon as an authority sustaining defendants’ contention. It is shown that in these cases the servants were engaged in a common enterprise, and that they were, for the time being at least, under the control of a common master. Sanford v. Oil Co., 118 N. Y. 571 (16 Am. St. Rep. 787); Philadelphia, etc., R. Co. v. Bitzer, 58 Md. 372; Texas & Pacific R. Co. v. Easton, 2 Tex. Civ. App. 378; Warburton v. Railway Co., L. R. 2 Exch. 30.

It is also contended that the intestate assumed the risks incident to such conti'ol. Were this an action against the Wabash Railroad Company alone, based upon a contract to employ competent men to do its switching, it is possible that the case would be ruled by decisions which hold that where one railroad company runs its trains upon another road, over the operation of which it has no control, the employés of the former assume the risks incident to the use of such road under such management, and that their employer would not be liable for injuries resulting from the negligence of the employés of the other road. But it does not follow that such employés might not recover against such other road, which would certainly owe them the duty that is due to a stranger, if nothing more. This cause is not brought against the Wabash Railroad Company, but against the three companies, upon whom the responsibility rested, by reason of their mutual contract, none the less than as though they constituted a separate and distinct corporation, owning or having exclusive control of the premises. See Smith v. Railroad Co., 19 N. Y. 127. In this case a New York & New Haven employé was injured while his train was running oyer the Harlem road, through the negligence of an employé of the latter, which had control of its road. Held, that the Harlem road was liable, and that the men were not fellow-servants. The case of Catawissa R. Co. v. Armstrong, 49 Pa. St. 186, was similar.

It is next contended that the intestate was for the time being a fellow-servant of the switchman, because he engaged in the common work of the terminal association, voluntarily. But there is nothing to show that ha was engaged in such work. It does not appear that the inspecting of Wabash trains was undertaken by the terminal association, or was any part of its duty under the contract. There is nothing to show that the several roads surrendered the right to clean, inspect, repair, or otherwise care for their trains in the yard, while upon the tracks to which they were assigned, and upon which they were placed. Hence we may safely say that they were neither at work for such association as a common master, nor were they engaged in the common employment of the association. That two persons can in a sense be engaged in accomplishing a given object, and yet not be fellow-servants of a common master, is shown by the following cases. Svenson v. Steamship Co., 57 N. Y. 108, is a case where one of the crew of a lighter, engaged in unloading a ship, was injured by one of the crew of the ship throwing a bale of tobacco into the lighter, at a time when the man who suffered the injury was endeavoring to recover a bale which had fallen into the water. See, also, Zeigler v. Railroad Co., 52 Conn. 555; Sullivan v. Railroad Co., 44 Hun, 304; Jones v. Railway Co., 125 Mo. 666; Central Railroad v. Stoermer, 51 Fed. 518; Davi v. The Victoria, 69 Fed. 160; Johnson v. Navigation Co., 132 N. Y. 576; Johnson v. Lindsay & Co., 16 App. Cas. 371; Swainson v. Railway Co., 3 Exch. Div. 350.

We have not overlooked the fact that there may be a joint employment by two companies of a servant, who should have duties to perform for both employers, like a gateman or target keeper or watchman, and who perhaps might be a fellow-servant with the employes of such companies; but this cannot be where the master has parted with the power of employing and discharging such servant, and directing and controlling him in the discharge of his duties.

. It follows that the judgment should be affirmed, and it is so ordered.

The other Justices concurred.


text:
    THOMAS v. ANN ARBOR RAILROAD CO.
    1. Appeal — Pleadings and Proofs — Sufficiency of Declaration —Amendable Defects.
    Where the declaration, in an action for personal injuries alleges negligence in the nse of a rope, but the case was tried on the theory that defendant was negligent in selecting the rope, the defect is amendable, and on appeal does not-preclude a disposition of the case on its merits, if it did not turn on such point in the court below.
    2. Master and Servant — Defective Appliances — Selection by Foreman — Negligent Use — Fellow-Servants.
    WThile the foreman of a gang of men employed in putting in a bridge may be their fellow-servant with respect to the manner of use of materials and appliances furnished by the master, or with respect to the selection of the same from among those near at hand, he represents the master when he under- - takes the duty of selecting suitable materials from a supply-in a warehouse 80 miles distant, and for a negligent selection, resulting in injury to an employé, the master is liable.
    3. Same — Assumption of Risk.
    One injured while employed in putting in a bridge, by the falling of a girder, cannot be said, as a matter of law, to have assumed the risk of a rope’s proving insufficient to support the weight of the girder, where he claims to have had no knowledge of any defect in the rope, and it appears that he was not himself engaged in using it at the time of the accident.
    Error to Shiawassee; Smith, J.
    Submitted June 1?, 1897.
    Decided July 16, 1897.
    Case by Marshall Thomas against the Ann Arbor Railroad Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      Watson & Chapman, for appellant.

      T. W. Whitney {Alex. L. Smith, of counsel), for appellee.
   Montgomery, J.

This is an action brought by plaintiff against defendant to recover damages for personal injuries sustained by him by the falling of a bridge being put in over the Saline river at Milan, Monroe county, Mich., on defendant’s right of way, while plaintiff was in the employ of defendant as laborer in putting in said bridge. Plaintiff and other laborers like himself, at the time he was injured, were under the charge and control of one Thomas Turnbull, who had full charge, management, and control, of the men and work. The work of getting the foundation of the bridge ready and preparing the abutments had been prosecuted by this plaintiff and other men under a foreman or boss up to about three days before letting in the bridge. After Turnbull came, he took charge of the work and men, and proceeded to let in the bridge, which was done by hauling the girders of the new bridge on the abutments. The apparatus to let the bridge to place were gallows bents, which were not made by the workmen on this job, but were brought there by defendant for the use of the workmen, and which were erected on the abutments; turn-buckles, by means of which the bridge was let in or lowered to place; also guy ropes or lines, which were used for the purpose of guying the gallows bents, which were about 16 feet high, to keep them from falling over when the weight of the girder should come upon them while it was being let in or lowered to place. The apparatus was all supplied by defendant, and the use thereof was unconnected with the work plaintiff had been doing before Turnbull came and took charge, and said apparatus was all under the control of Turnbull. When one of the girders was being lowered to place, and while plaintiff was at work in the river beneath it, one of the guy ropes broke, allowing the girder to fall, by means of which plaintiff was permanently crippled and injured. There was testimony tending to show that the rope broke because it was defective, and that plaintiff had no knowledge of the defects in the rope, and was not present when the bridge was guyed. The selection of rope was made by Turnbull at defendant’s warehouse at Owosso, which is about 80 miles from where the bridge was being put in. Other allegations of negligence were charged in plaintiff’s declaration, but on the trial proof was confined to the defective rope as the cause of plaintiff’s injury. The learned circuit judge directed a verdict in favor of the defendant on the ground that Turnbull and plaintiff were fellow-servants, and that plaintiff is chargeable with Turnbull’s negligence.

It appears that the questions involved are (1) whether, in selecting the rope, Turnbull represented the master, and (2) whether the plaintiff assumed the risk. It is true, the question is made as to the sufficiency of the declaration, in that it alleges that the injury occurred because of the wrongful use of the rope, and not because of any negligence in selecting it; but the case did not turn upon this below, and, as the defect is amendable, the case should be disposed of on its merits. Ross v. Township of Ionia, 104 Mich. 320.

Defendant’s counsel cite numerous cases which hold that when sufficient material or appliances of a proper kind are furnished by the master, and in the course of the operation the injured servant or the fellow-servant makes an improper selection, and in consequence an injury follows, no liability is attached. Among the cases which affirm the doctrine are two found in our own reports, which illustrate the rule. These are Rawley v. Colliau, 90 Mich. 31, and Kehoe v. Allen, 92 Mich. 464 (31 Am. St. Rep. 608). In the former, plaintiff was injured by the use of a defective hammer, which had become defective from use. There were other hammers in the shop which might have been used by plaintiff, and he himself selected this one. It was held that plaintiff could not recover, but it was said that, if this hammer had been the only one in the shop, or the only one that could be used, or if defendants had directed it to be used, knowing its condition, another case would be presented. Kehoe v. Allen followed Rawley v. Colliau, and held that, where flasks used by molders became defective by use, and there were plenty of perfect flasks which might have been used, and a fellow-servant of plaintiff selected a defective one, the act of making such selection on the spot was a part of the operation in which the two servants were engaged, and the act of making such selection was the" act of a fellow-servant. Neither of these cases goes so far as to sustain the holding of the circuit judge in the present case. There can be no doubt that, when a master delegates to another the duty of selecting and supplying material and appliances to be used in an operation, the one to whom this duty is delegated is, in general, the representative of the master while engaged in and as to the performance of that duty. Beesley v. F. W. Wheeler & Co., 103 Mich. 203. The question here presented is whether the fact that the defendant had at the warehouse at Owosso an abundance of suitable material, and delegated Turnbull to select and take to Milan (80 miles away), where this work was to be performed, proper and suitable material, shows a discharge of the duty which the master owed the plaintiff and others engaged upon the work to supply suitable material and appliances.

It is too clear for discussion that if Turnbull had been delegated to purchase and supply the workmen with this material, and had failed to perform that duty properly, the company would have been responsible for his default. Should a different rule obtain when the company '‘has its own storehouse, from which the workmen engaged at Milan had no power to withdraw any material? We think not. We are satisfied that if sufficient suitable rope was on hand, where it was accessible at the time, defendant would not be responsible for the fault of a fellow-servant in selecting defective or insufficient rope. Prescott v. Engine Co., 176 Pa. St. 459. But in this case there was no opportunity for selection by the workmen if it be found that the rope furnished was insufficient in quantity and quality. In Lund v. Lumber Co., 41 Fed. 202, plaintiff was injured by reason of the giving way of a rope used in the hauling of a barge out of the water. Campbell, the alter ego of defendant, ordered one Lynch to procure blocks, tackle, and rope for this purpose. Defendant had in its sawmill, near at hand, ropes, old and new, chain's, blocks, and tackle. Lynch selected defective rope. It was held that in making the selection he represented the master. See, also, Telander v. Sunlin, 44 Fed. 564; Probst v. Delamater, 100 N. Y. 266; Rooney v. Compagnie Generate Transatlantique, 10 Daly, 241. We are not to be understood as holding that, if the injury to plaintiff was occasioned by the negligent use made by the foreman of the materials at hand, the fault is imputed to the master; on the contrary, as to such duty Turnbull was a fellow-servant of plaintiff, under the rule established by the majority decision in Schroeder v. Railroad Co., 103 Mich. 213. It would be a question for the jury as to whether the injury resulted from negligehce of Turnbull in the use of the rope or whether it resulted from insufficient and defective rope. Robinson v. Manufacturing Co., 143 Mass. 528; Prescott v. Engine Co., supra.

Plaintiff testified that he did not have any knowledge of the defect in the rope, and it appears that he was not himself engaged in using the rope. We do not think it should he said, as matter of law, that he assumed the risk. Ferren v. Railroad Co., 143 Mass. 197.

Judgment reversed, and new trial ordered.

The other Justices concurred.


text:
    M. I. WILCOX CORDAGE & SUPPLY CO. v. MOSHER.
    1. Corporations — Failure to File Annual Report — Liability op Directors.
    The individual liability of directors of corporations for corporate debts, based upon their failure to mate the annual report required by section 12 of Act No. 232, Pub, Acts 1885 (3 How. Stat. § 4161bl), extends to corporate debts contracted pending the default. Bank of Saginaw v. Pierson, 112 Mich. 410, followed.
    2. Same — Franchise Fee — Statutes—Right op Action.
    Nonpayment of the franchise fee attempted to be imposed by Act No. 79, Pub. Acts 1893, upon all foreign corporations doing business within the State, does not affect the right of a foreign corporation, which had sold goods by itinerant salesmen to a resident corporation, to enforce the statutory liability of the directors of the latter for their willful neglect to file £?n 'annual report.
    3. Same — Character op Claim.
    The creditor is not required to reduce his claim to judgment before proceeding under the statute against the directors who are guilty of such neglect.
    4. Same — Intentional Neglect — Presumption.
    Failure to file the reports as required by the statute will be presumed to have been intentional and willful.
    5. Same — Joint Action.
    A suit against all of the directors jointly can be maintained, where no evidence is offered to rebut the presumption that all are liable.
    Error to Bay; Kelley, J., presiding.
    Submitted June 17, 1897.
    Decided July 16, 1897.
    Case by the M. I. Wilcox Cordage & Supply Company against George L. Mosher and others, directors of Mosher, Bissell & Mather, a corporation, based upon the statute requiring directors to file an annual report. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Reversed.

      James E. Duffy (T. A. E. & J. O. Weadoek, of counsel), for appellant.

      T. E. Shepard, for appellees.
   Moore, J.

This is an action brought to recover from the directors of a corporation a debt of the corporation to plaintiff, and is based upon the willful neglect of the directors to file the annual report of the corporation’s affairs in January, 1895, as required by Act No. 232 of the Public Acts of 1885. Defendants were sole directors of a corporation known as Mosher, Bissell & Mather, which was doing business in West Bay City during the year 1895, and for two years prior thereto. Defendants Mosher and Bissell were president and secretary of said corporation, respectively. No annual report of the affairs of said corporation was filed in 1895 in the office of the county clerk or the secretary of state, as required by section 12 of Act No. 232 of the Public Acts of 1885, nor was any report of the condition of the affairs of said corporation filed during 1895 until September 23, 1895. . The latter report showed that the corporation was practically insolvent. During the period of its default in filing the report required by law, the. Mosher, Bissell & Mather corporation became indebted to plaintiff upon a promissory note dated July 23, 1895, payable 60 days after date, to the order of plaintiff, in the sum of $131.52 and interest, and an open account for goods sold and delivered to said corporation between June 3 and September 19, 1895, amounting to $203.55. The circuit judge directed a verdict for defendants, because the debt was incurred after June 1, 1895, and before the 19th of September of that year. Plaintiff appeals.

The circuit judge erred in making the disposition of the case he did, for the reason assigned. Bank of Saginaw v. Pierson, 112 Mich. 410.

It is said by defendants that as plaintiff was a foreign corporation, and had not paid the fee required by Act No. 79, Pub. Acts 1893, it cannot recover in this action. The goods were sold by itinerant salesmen, and we think the case in that respect is controlled by Coit & Co. v. Sutton, 102 Mich. 324.

It is also objected that plaintiff had not recovered a judgment against the corporation, and therefore could not sue the directors. The statute does not require the creditor to put its claim into a judgment against the corporation before it has a right of action against the directors. 3 How. Stat. § 4161b1; Patterson v. Stewart, 41 Minn. 84.

It is urged upon the part of the defendants that the liability of the directors is a several, and not a joint, liability, and that this action cannot be maintained. No proof was offered on the part of any of the defendants. The failure to file the reports as required by law was shown. The neglect to file the reports is presumed to be intentional and willful. Van Etten v. Eaton, 19 Mich. 187; Gennert v. Ives, 102 Mich. 547; Bank of Saginaw v. Pierson, supra. Under the record as made, all of the defendants were liable, and we can see no objection to suing all of them in one action. 1 Cook, Stock, Stockh. & Corp. Law, § 221, note.

Judgment is reversed, and new trial ordered.

The other Justices concurred.


author: Grant, J.

text:
    SMITH v. CARLOW.
    1. Drains — Validity of Proceedings — Notice.
    Personal service upon a land owner is not essential to the validity of drain proceedings, where notice has been given by publication in accordance with the statute.
    2. Same — Estoppel.
    One who stands by and permits a drain to be constructed without taking any steps to test the validity of the proceedings is estopped to question them when called upon to pay for the improvement.
    3. Same — Sufficiency of Petition — Surplusage.
    Where a petition for a drain was signed by the citizens of two counties, and a township in another county was mentioned in the petition, but no freeholders of that county signed it, and the proposed drain did not run through any part of it, the inclusion of the name of the commissioner of such county in the petition did not invalidate the proceeding.
    4. Same — Letting of Contract — Directory Provisions.
    The provision of the drain law (3 How. Stat. § 1740d8) that, after the drain is located, the commissioner shall “proceed to divide the route thereof into convenient sections for the letting of the work,” is directory merely, and does not require a division into sections where such method of construction would entail a great increase in cost.
    5. Same — Matters Within Discretion of Commissioner.
    The judgment of a court cannot be substituted for that of the drain commissioner with respect to the extent to which a stream should be deepened and widened to constitute a drain for the adjoining lands.
    6. Same — Constitutionality of Law.
    The constitutionality of the drain law is reaffirmed.
    7. Same — Benefits—Collateral Attack.
    In an action to recover a drain tax paid under protest, plaintiff cannot show that his land was so remote that it was not benefited by the drain.
    Error to Lapeer; Smith, J.
    Submitted June 18, 1897.
    Decided July 16, 1897.

      Assumpsit by Nathaniel Smith against Lyman A. Car-low, treasurer of Imlay township, to recover taxes paid under protest. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Reversed.
    This case is no stranger to the courts. It involves the validity of the proceedings to construct what is known as the “North Branch' of Mill Creek Drain,” situated in the counties of St. Clair and Lapeer, which drain is several miles in length. No proceedings were taken to contest the validity of this drain until it was nearly completed, at an expense of upwards of $30,000. An assessment district had been made by the commissioners, and the tax levied. At a session of the supervisors of the county of Lapeer held October 17, 1895, the board adopted a resolution refusing to apportion the tax upon the several townships interested. Thereupon Mr. Snyder, the drain commissioner for the county of Lapeer, presented a petition to the circuit court for that county asking for the writ of mandamus to compel the supervisors to reconvene and. apportion the tax. The petition set forth the proceedings for the establishment of the drain, and alleged their validity. The board of supervisors made a long answer, alleging the invalidity of the proceedings, and for the same reasons now presented. An issue was framed, proofs were taken, and on November 20, 1895, the circuit court entered an order adjudging and determining that the complaint of said relator was “as appears of record,” and ordering the supervisors to reconvene and apportion the tax. The writ of certiorari was issued by this court to review this order. On December 17, 1895, the writ was dismissed by this court. No written opinion was filed, but it appears from the motion that one of the principal reasons was that, after the order of the circuit court, the board had reconvened, and complied therewith. After this action the supervisors of the townships refused to spread the taxes upon the township rolls, and the drain commissioner appealed to this court to compel the appropriate action on their part. On December 9, 1896, this court made an order directing said supervisors to spread these taxes upon their assessment rolls. Thereupon the plaintiff in this case paid his tax, $8.68, under protest, and brought this suit to recover the money so paid.
    Geer, Williams & Halxñn 'and Chadwick & Mc-Itwain, for appellant.

      Atkinson & Wolcott, for appellee.
   Grant, J.

(after stating the facts). The point was raised in the court below that the question was res judicata. This question is not raised in this court by counsel, perhaps for the reason that an adjudication upon the entire controversy is desired. Speaking for myself, I am unable to see why the question is not res judicata. I have examined the papers in the certiorari case, and, as above stated, the proceeding was attacked upon every ground now raised. The order of the court shows that it passed upon the validity of the proceedings. Inasmuch, however, as this point is not raised, we will proceed to the other questions.

Every notice which the statute requires was given during the progress of these proceedings. No appeal was taken as provided in the drain law, and no attempt made to review them by the writ of certiorari. It is true that this plaintiff testified that he was not aware for a long time that his land was included in the assessment district, and that he did not suppose that it could be benefited by the construction of the proposed drain. The statute required no personál service upon him, and, when the statutory notices have been given by publication, no personal service is necessary. Among the reasons for the delay stated in the plaintiff’s brief are these: “The time re? quired to examine the voluminous proceedings; the necessary co-operation of a large number of interested parties, the expense being far too great to be borne by a single individual; and the mistaken and ineffectual.appeal to the board of supervisors.” From this it appears that many taxpayers have combined in the prosecution of this suit to contest the validity of the proceeding. This drain is now constructed. All parties to the proceeding acted in good faith. There is no evidence of fraud. The entire proceedings were open and notorious, and evidently were known to most, if not all, whose lands were affected. The courts were open to them to contest its validity before the contractors had performed the work under their contract. The commissioners decided that it was a public necessity. Whatever advantage it is to the public has been reaped. It is just that the contractors be paid, and courts should compel payment unless some insurmountable obstacle stands in the way. We think this case comes clearly within many other decisions of this court which hold that when parties stand by and see such improvements made, and take no steps to impeach their validity, they are estopped to question their validity when called upon to pay for them.

We will, however, dispose of some of the objections to the proceeding upon -which the court held the tax invalid, and directed a verdict for the plaintiff. The petition was signed by some 50 citizens of Lapeer and St. Clair counties. The township of Maple Valley, in Sanilac county, was mentioned in the petition. No freeholders of that county signed the petition. The proposed drain did not run through any part of Sanilac county. The drain commissioner of St. Clair county, to whom the petition was directed, conceiving it to be his duty, notified the drain commissioner of Sanilac county to meet with the commissioners of the other counties. The commissioner of Sanilac county did not appear, and for the reason above stated his name was, therefore, dropped from the proceedings. The inclusion of the drain commissioner of Sanilac county in the petition was mere surplusage, and did not tend ’to invalidate the proceedings.

It is urged that the- proceeding is void because the construction of the drain was let as an entirety, and not in sections. Section 1, chap. 4, of the drain law (3 How. Stat. § 1740ci8), provides that, after the drain is located, the commissioner shall “proceed to divide the route thereof into convenient sections for the letting of the work, and shall mark the grade on each stake, from stake to stake, along the whole length of such drain. He shall also mark on each stake the number of each section.” Section 1740e requires a preference to be given in letting the contracts to those bidders who are assessed a tax for benefits. It is established by the evidence that the construction of this drain could not be let in sections without great increase in the cost. The nature of the land bordering the stream was such that the excavation could not well be done in any other manner than by a dredge. Undoubtedly, the object of this statute was to give those interested, and who had to pay for the construction, an opportunity to bid. We think this statute was directory merely; 'otherwise a drain only a few rods in length must be divided into sections. It was clearly for the benefit of all that it should be let as a whole. Our statute provides: “Every word importing the singular number only may extend to and embrace the plural numbér, and every word importing the plural number may be applied and limited to. the singular number.” 1 How. Stat. § 2, subd. 2. The term “convenient sections” includes the right to let in one section at the discretion of the commissioner. Sedg. Stat. & Const. Law, 368. The taxpayer is not injured by this proceeding, and the injustice of permitting him to take advantage of such an objection after the construction of the drain is apparent.

It is next urged that the drain law does not contemplate works of the magnitude and extent of this drain. Under this law it is contended that this is an internal improvement, prohibited by the Constitution; that this stream is a navigable stream, and cannot be so deepened and widened as to bring it within the drain law. Some 15 years or more ago logs were driven down this stream by the use of dams. Plaintiff’s own witnesses testified that logs could not be run down it in ordinary weather. The law fixes no limit to the width or depth of the drain, nor to what extent a stream may be deepened and widened so as to drain the adjoining land. This determination is left entirely to the commissioner, and courts cannot substitute their judgment for that of the commissioner. Sage v. Laurain, 19 Mich. 137. This was not a navigable stream. East Branch, etc., Imp. Co. v. White, etc., Lumber Co., 69 Mich. 207.

Plaintiff’s counsel urge that the law is unconstitutional. It is unnecessary to argue this point. It was settled in Gillett v. McLaughlin, 69 Mich. 547.

Plaintiff introduced evidence tending to show that his land'was so remote that it was not benefited by,the drain. That question could not be raised in a collateral proceeding. The statute provides a way for reviewing the action of the commissioner in this regard, and this action is final. 3 How. Stat. §§ 1740d8, 1740e2; Brown v. City of Grand Rapids, 83 Mich. 101; Township of Caledonia v. Rose, 94 Mich. 216; Nelson v. City of Saginaw, 106 Mich. 659.

Some other questions are raised, but the above are the most important, and we deem it unnecessary to discuss the others. We find that the proceedings were regular, and that the tax was valid. It follows that the judgment must be reversed, and, inasmuch as the facts are conceded, judgment will be entered in this court for the defendant, with the costs of both courts.

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


text:
    BARNARD v. McLEOD.
    1. Building Contracts — When Separable.
    A contract for the erection of a specified number of Houses on lots to be designated by the owner, to be completed at a specified time, for a fixed price for each house, is a separable contract.
    2. Same — Time of Performance — Waiver.
    Where an owner who had contracted for the erection of several houses, to be completed by October 1st, agreed September 17th to a modification of the contract under circumstances indicating that he contemplated that the buildings might not be completed until the following spring, and acquiesced in • the continuation of work until late in December, he waived the right to insist that túne was of the essence of the contract.
    3. Same — Mechanic’s Lien Law — Right of Action.
    The provision of the mechanic’s lien law (Act No. 179, Pub Acts 1891, § 4), that the contractor shall have no right of ‘ action or lien against the owner on account of his contract until he shall have furnished the statutory statement as to the amounts due to subcontractors, laborers, and material men, extends to actions upon the contract, where no lien has been effected, as well as to those brought to enforce a lien.
    4. Same — Title of Act — Constitutionality.
    Such a construction is not objectionable under section 20, art. 4, of the Constitution, requiring the object of a law to be expressed in its title.
    5. Same — Character of Suit.
    An action by the assignee of one who had contracted to erect several houses, to recover for one house built and accepted under the contract, and for work and material done and furnished for the others up to the time the owner prevented further performance of the contract, is an action upon the contract, within the scope of the lien law.
    Error to Wayne; Lillibridge, J.
    Submitted June 18, 1897.
    Decided July 16, 1897.

      Assumpsit by Mary E. Barnard, assignee of John Patterson, against Duncan McLeod, upon a building contract. Prom a judgment for plaintiff, defendant brings error.
    Reversed.
    The constitutional question referred to in the opinion is indicated by the following quotation from plaintiff’s brief:
    “The construction contended for by defendant cannot be sustained, for the reason that the provision so construed would not be within the title of the act in question. It would be unconstitutional to attempt to make an affidavit a prerequisite to all actions in a statute entitled ‘An act to establish, protect, and enforce by lien the rights of mechanics,’ etc.” Const, art. 4, § 20.

      Flowers, May & Moloney, for appellant.

      Corliss, Andrus & Leete, for appellee.
   Hooker, J.

By a contract in writing, it was agreed that John Patterson, plaintiff’s assignor, should furnish materials and erect for the defendant five houses, described, upon lots to be designated by the defendant, the same to be completed by October 1, 1895, the price of each being fixed. On September 17, 1895, this contract was modified by reducing the number of houses to three, to be built that fall. This action is brought to recover for the work and material furnished, it being claimed on behalf of the plaintiff that the defendant wrongfully prevented the full performance of the contract.

We think the court correctly held that the contract was separable, and that time was not of the essence of the contract, in the light of the conduct of the parties, as shown by the undisputed testimony. It is said that this contract, made on September 17th, limited the time within which these three houses were to be erected to a period of 13 days; yet the defendant acquiesced in the continuation of work long after that, and late in December is said to have given notice to Patterson that he was required to complete house No. 3. The testimony of the defendant shows that, when the second contract was made, he contemplated that the buildings might not be completed until spring. We think it very clear that the defendant waived a right to insist on the construction contended for, if he ever had such a right, and the court did not err in leaving to the jury the question of the seasonable completion and acceptance of one house. The charge made plaintiff’s right to recover for work and materials upon the other buildings depend upon Patterson’s being wrongfully prevented from performing his contract, which was as favorable instruction as the defendant was-entitled to.

We have had great difficulty in examining the points raised by the appellant, by reason of a failure to comply with the provisions of Supreme Court Rule 36. Neither by index nor by other reference are we referred to all of the exceptions and specific errors complained of in the record, and we have not felt called upon to read the record until we could find them in each instance.

Counsel for the defendant assert that the plaintiff was not entitled to recover, for the reason that Patterson has never served upon the defendant a statement, under oath, of the names of the subcontractors and laborers in his employ, with the respective amounts, if anything, due for labor or materials for said buildings, as required by the mechanic’s lien law. Act No. 179, Pub. Acts 1891, § 4. This act attempts to authorize the owners of premises to withhold payment upon building contracts until they can make such payment safely, and it expressly suspends a right to collect by action or lien until the statutory statement is made. We held in the case of Martin v. Warren, 109 Mich. 584, that, before a lien could be enforced, this statement must be furnished, and that the owner could not be compelled to submit to the alternative of determining whether a lien existed or might yet be filed, or being subjected to costs. We see no reason for holding that this rule does not apply to an action upon the contract, when the contractor has not effected a lieu, as well as to cases brought to enforce a lien. It is within the letter of the act, and to hold otherwise would place a penalty on solvency, and subject a man who promptly pays his debts to dangers that one who is impecunious is practically exempt from. In the case before us it was claimed that a lien was effected, and, although the evidence offered by the defendant was excluded, it. may be that the defendant would not have been safe in making payment. At all events, the act forbids recovery until the statement is furnished. The defendant cannot be compelled to take the chances of litigating the question whether or not he may safely pay, but may insist upon absolute protection through the contractor’s sworn statement.

"We do not intend to be understood as saying that the. service of such sworn statement is necessarily jurisdictional, and that neglect to serve is fatal in all cases, or that it cannot be waived. Possibly it should not be allowed to stand in the way of recovery where the absence of other liens and the opportunity to effect them are conceded or obvious. This provision is a shield, and, while it should be given full effect for that purpose, its mission may be held to end with the possibility of such use, should such case arise. And it is not a sufficient answer to say that this is an action for a breach of the contract, for it is not, in any such sense as would justify the disregard of the statute. It is not a case where the contractor was prevented from doing any work under the contract. His assignee has been allowed to recover upon the theory that one house was built, and accepted under the contract. As to the others, she has been allowed to disregard the express contract, and set up an implied one, and to recover upon a promise (implied, it is true) that the contractor should be paid for cei'tain work and materials done and furnished by him at the defendant’s request. The lien law applies to such contracts. It is not impossible that no lien exists, but we cannot deny the defendant the protection that the law gives him on that account, nor can we relieve the plaintiff from her assignor’s failure to know and follow the law.

We think there is no merit in the constitutional question raised.

We are constrained to reverse the judgment.' A new trial is ordered.

The other Justices concurred.


text:
    TOWNSHIP OF ADA v. KENT CIRCUIT JUDGE.
    1. Bridges — Board of Supervisors —Powers—Constitutional Limitations — Statutes.
    An act providing for tlie construction of a bridge in a given township, and for the contribution of 84,000 by the township in which the bridge is tó be built, of 8500 each by two other townships, and of 85,000 by the county, one-half of said amounts to be raised by taxation in one year and the other half in the year following, violates section 9, art. 10, of the Constitution, authorizing the board of supervisors to borrow or raise by tax 81,000 for constructing or repairing bridges, but providing that no greater sum shall be borrowed or raised by tax in any one year unless authorized by a majority of the electors voting thereon; and it cannot be sustained by section 11, authorizing the board to provide for constructing bridges under such restrictions and limitations “as shall be prescribed by law.”
    2. Same — Necessity.
    The argument that the bridge was a necessity has no bearing on the constitutionality of the act.

      Mandamus by the township of Ada and others to compel William E. Grove, circuit judge of Kent county, to dissolve an injunction restraining relators from entering into a contract for the construction of a bridge. The township of Vergennes was permitted to intervene, and opposed the granting of the writ.
    Submitted July 6, 1897.
    Writ denied July 16, 1897.

      Rodgers, McDonald & Comoin {Sweet, Perkins & Judkins, of counsel), for relators.

      Taylor & Eddy, for respondent.

      Maher & Salsbury, for intervener.
   Grant, J.

The legislature, at its last session, passed an act entitled “An act to provide for the construction of a bridge across the Grand river in the township of Ada,, in the county of Kent, and for the raising of funds to defray the cost and expense thereof.” Act No. 342, Local Acts 1897. It provided that the township of Ada should contribute $4,000, two other townships $500 each, and the county $5,000; that the amount should be raised by taxation, one-half in 1897, and the other half in 1898.

Section 9 of article 10 of the Constitution reads as follows:

“The board of supervisors of any county may borrow or raise by tax $1,000 for constructing or repairing public buildings, highways, or bridges; but no greater sum shall be borrowed or raised by tax for such purpose in any one year, unless authorized by a majority of the electors of such county voting thereon.”

It needs no argument to show that this act is destructive of local self-government. It leaves no discretion to the taxpayers or their officers. It is in direct violation of the above provision of the Constitution, in that it deprives the electors of the right to determine by vote the improvements they desire to make, and the taxes they are willing to subject themselves to on account thereof.

It is urged that this act can be sustained under section 11 of article 10, which reads as follows:

“The board of supervisors of each organized county may provide for laying out highways, constructing bridges, and organizing townships, under such restrictions and limitations as shall be prescribed by law.”

In respect to public buildings, highways, and bridges, this section is limited by section 9. What the supervisors are prohibited by the Constitution from doing the legislature does not possess the power either to do itself or to compel the boards of supervisors to do.

Counsel have argued in their briefs the necessity of this bridge. That is not a matter for the determination of the legislature. It is a matter which, under our Constitution and form of government, is wisely left to the electors themselves. If the electors choose to submit to the inconvenience of a ferry, rather than go to the expense of constructing a bridge, they possess this right under the Constitution.

The court below issued a preliminary injunction. The sole reason why we issued an order to show cause was because it was a matter of public interest, and the township board of Ada had already let a contract for the construction of the bridge in the sum of #9,500, and all parties desired a prompt decision.

The writ is denied.

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


text:
      In re MAGUIRE.
    Habeas Corpus — Commitment to Asylum — Validity.

      Habeas corpus is not the proper remedy to test the validity of an order of the circuit judge, entered after an inquiry into the sanity of one in jail awaiting arraignment on a charge of arson, committing the accused to the asylum for the dangerous and criminal insane until restored to his right mind.

      Habeas corpus by Alice Maguire to inquire into the cause of the detention of her husband, Eugene Maguire, by the superintendent of the Michigan asylum for the dangerous and criminal insane.
    Submitted July 13, 1897.
    Denied July 16, 1897.

      Mains & Gavanagh, for petitioner.

      Fred A. Maynard, Attorney General, and Andrew■ W. Lockton, Prosecuting Attorney, for respondent.
   Moore, J.

Eugene Maguire, who was in jail in Calhoun county awaiting arraignment charged with the crime of arson, was said to be insane. The circuit judge caused an inquiry to be made in open court, in the presence of said Maguire, as to his sanity. The judge found he was insane, and entered an order releasing him from imprisonment in the county, and committing him to the Michigan asylum for the dangerous and criminal insane at Ionia, until restored to his right mind or otherwise discharged. He is now confined by virtue of such commitment. Mains & Cavanagh apply for the writ of habeas corpus, claiming that the statute authorizing the inquiry and commitment is unconstitutional and void, and that the proceedings before the circuit court were irregular and void. We think this case is ruled by the Case of Underwood, 30 Mich. 502, and the Case of Coffeen, 38 Mich. 311. See 2 How. Stat. § 8575, subd. 2.

The writ is denied.

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