author: McGrath, C. J. Hooker, J.

text:
    PEOPLE v. DEREMO.
    Criminal Law — Illegal Fishing — Intent—Nets Set for Turtles. • 3 How. Stat. § 2197/, declares that it shall be unlawful for any person to take or catch, or attempt to take or catch, any fish in certain waters by means of nets, “ provided that the use of dip nets in catching mullet, redsides, and suckers shall not be unlawful.” Held, that one who sets a net for the purpose of catching turtles is not guilty of a violation of the statute, although fish are accidentally imprisoned therein, they being returned alive to the water so far as possible. Hooker and Grant, JJ., dissenting.
    Exceptions before judgment from Ottawa; Padgham, J.
    Submitted June 20, 1895.
    Decided October 1, 1895.
    Frank M. Deremo was convicted of illegal fishing.
    Reversed.

      Walter I. Lillie, for appellant.

      Fred A. Maynard, Attorney General, and Arend Visscher, Prosecuting Attorney, for the people.
   McGrath, C. J.

Respondent was convicted under section 5 of Act No. Ill, Public Acts 1889, which provides that “it shall be unlawful for any person or persons to take or catch, or attempt to take or catch, any fish at any time with seines, pound nets, gill nets, or any species of nets” in certain waters, provided, “that the use of dip nets in catching mullet, redsides, and suckers shall not be unlawful” (3 How. Sta't. § 2197/). The complaint alleged that respondent “did, feloniously and unlawfully, then and there catch, and attempt to take and catch, fish with a fyke or hoop net.”

The respondent offered proof tending to show — •

“That he had made over the nets for the purpose of catching turtles; that the funnel was made large enough so that, when fish, went into the nets, they could swim out again; that in a fish net proper-the funnel was left hanging loose, so that there was no opening for the fish to come out; and that these particular nets were made with the opening, and with strings tied from the end of the funnel or opening to the main side of the net, so that, when the net was set as these nets were set; the opening of all the funnels was pulled open thereby, giving the fish plenty of room to- swim out after they went into said nets; that all of said nets were so arranged, and for the purpose of letting fish which swam in, swim out,, and that the turtles which went in could not get out because of their size and shape; that all of these nets were hoop nets; that these nets were set differently than nets were set for catching fish; that these nets were set with pieces of heavy chains at the bottom, so- that the bottom of the nets would be in the mud, and to catch them the nets had -to be on the bottom, and were set in about 12 to 15 feet in depth of water; that in setting nets for fish there are no chains on the bottom to hold them in the mud, for the reason that fish do not crawl on the bottom; that the respondent told Hammond (the deputy game and fish warden), in the winter before, that he was going to set nets for the purpose of catching turtles, and that said Hammond saw said respondent set said nets long before libe time o-f talcing- these nets-, and said nothing about it; that the respondent told said Hammond that he (respondent) had caught turtles in said nets before Hammond took them up, and that there were a few fish in them, and that respondent put them back in the water unharmed.”

It appeared that the nets were drawn by the deputy game warden, and that fish were found therein.

The trial court refused to give to the jury certain instructions, asked for by defendant’s counsel, respecting respondent’s intent and purpose in setting the nets, and instructed the jury as follows:

“If you shall find that the nets that were set there were such nets as would take and catch fish, — I say, if you find those to be the facts, and beyond reasonable doubt, — then this respondent would be guilty of the offense here charged, although he may not have drawn the nets himself. If you find that the nets were drawn by this game warden, and fish were then and there caught in those nets, and that those nets belonged to and were set by this respondent, then he would be guilty, under this act, of unlawfully taking or attempting to take or catch fish. The intent with which he set those nets there has nothing to do with the law of this case, and if he set them with the intent to catch turtles, and actually did and were well calculated to catch and imprison fish and take fish, and the fish were actually taken at the time, it would be a violation of this law.”

This instruction was erroneous. The respondent’s testimony tended to show that he set the nets for another purpose. The statute does not prohibit the setting of nets, but the catching or taking of fish from the lake by means of nets. It would be a narrow view to take of the language employed to say that a fish accidentally imprisoned by the use of a net employed for another purpose, and one which was shown to be entirely legitimate, was “caught,” within the meaning of the statute. Whether or not the net was set for the purpose of catching fish was a question for the jury under all the facts and circumstances of the case.

The conviction is set aside, and a ne w trial awarded.

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

Hooker, J.

(dissenting). The defendant was convicted of the offense of unlawfully faking fish by the 'use of fyke nets, in contravention of section 5 of Act No. Ill of the Public Acts of 1889. This section provides: “It shall be unlawful for any person or persons to take or catch, or attempt to take or catch, any fish at any time with seines, pound nets, gill nets, or any species of nets in any of the waters of this State,” etc. The defendant-does not deny that he set the nets, or that fish were caught and killed thereby, but he says that he did not set these nets from a desire to catch fish, but to catch turtles, and that he made no use of the fish that were caught, but released such as were alive when he took up his net. The trial court held that this did not conslilufe a defense.

It is admitted that the defendant used a net adapted to and commonly used for the purpose of catching fish. There is every reason to suppose that he knew that it would catch fish, for it had done so to his knowledge. To hold him guiltless is to say that a man may do those things which.will certainly result in the destruction of fish, if he has another object in view, and will return such fish as he may take, alive or dead, as the case may be, to the water, and not use them, while his neighbor, who desires to keep them, is guilty. In my opinion, a man who sets a net with the knowledge that it will result in the taking and destruction of fish intends to take them, notwithstanding the fact that his primary object may be to accomplish another purpose. He wants the turtles, and to get them he is willing to take or catch the fish. This does not show an absence of intent, for it is just as unlawful to take fish that turtles may be caught as to take fish to sell or to eat.

The right to protect fish by law is within the police power of the State, and there is force in the claim that the act is punishable regardless of the intent. Many cases can be found that hold that convictions may be sustained in the absence of a criminal intent, — e. g., the sale of adulterated milk (Com. v. Farren, 9 Allen, 489); selling liquor not known to be intoxicating (Com. v. Boynton, 2 Allen, 160); marriage of minors by one honestly supposing them of proper age (Beckham v. Nacke, 56 Mo. 546); the killing and sale of a calf under a specified age, though the defendant was ignorant of the animal’s age (Com. v. Raymond, 97 Mass. 567); transporting a slave on a steamboat (State v. Baltimore & S. Steam Co., 18 Md. 189). These cases, and others cited in People v. Roby, 52 Mich. 580, where the subject is discussed, fully justify the doctrine that neglect may be criminal. Here there is not mere neglect, but a positive expectation of doing the act prohibited, and immunity is expected upon the claim that the defendant designed to catch turtles, and to do so involved the taking of fish, but his indifferenee as to tbe fate of tbe fish, relieved Mm from liaMlity under tbe law. In my opinion, tbe man who sets a net adapted to the purpose and known by Mm to be likely to catch fish, and which actually does take them, cannot be said to be guiltless.

I think the conviction should be affirmed.

Grant, J., concurred with Hooker, J.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    PEOPLE v. LENNOX
    1, Criminal Law — False Pretenses — Sufficiency of Information — Scienter.
    Where the representation set forth in an information for obtaining money by false pretenses are of such a nature as to negative any possible hypothesis of respondent’s ignorance of their falsity, an averment that respondent knew them to be false is not necessary. An information, therefore, alleging that respondent designedly falsely represented and pretended that he had received from a certain person a subscription for a specified amount, with payment in full thereon, whereas such person had subscribed and paid only a specified smaller amount, is sufficient.
    2. Same — Intent to Defraud — Defenses.
    The fact that money obtained by false pretenses is devoted to the object for which it was given, which is a meritorious one, will not constitute a defense to a criminal prosecution, such fact being immaterial upon the question of intent to defraud.
    Exceptions before judgment from Ingham; Person, J.
    Submitted July 13, 1895.
    Decided October 1, 1895.
    Cornelius Lennox was convicted of obtaining money by false pretenses. It appeared upon the trial that tbe money so obtained was used for tbe purpose for which it was solicited and given, namely, the establishment. of a training school for colored children.
    Conviction affirmed.

      Arthur D. Prosser, for appellant.

      L. B. Gardner, Prosecuting Attorney, for the people.
   Grant, J.

The gist of the crime charged in the information is that the respondent “did designedly falsely represent and pretend to said Robert B. Shank that he, thé said Cornelius Lennox, had received from one Walter A. Newton a subscription of $10, with payment in full thereon by said Walter A. Newton,” whereas the said Walter A. Newton had not subscribed nor paid him. the $10, and had subscribed and paid to him only $1. The allegations in regard to the Subscription book or paper, and that said Newton had written his name and amount therein, are merely descriptive of the means used, and of evidence to sustain the charge. The information would be perfectly good if it contained nothing about the subscription book or paper. “The defendant’s knowledge of the falsity of the pretenses is material, and hence must be averred, unless the pretenses stated are of such a nature as to exclude the possible hypothesis of the defendant’s ignorance of their falsity.” People v. Fitzgerald, 92 Mich. 331, and the authorities there cited. That case was reversed because the information did not allege that the respondent knew he was not authorized by the association to collect the money for the benefit of the person named in the subscription paper. It was held that the respondent might have been ignorant of the fact that the paper he presented was a false and fraudulent statement. The present case comes clearly within the exception to the general rule stated in the above authority. The allegation of the information in this case negatives any possible hypothesis of ignorance. In People v. Behce, 90 Mich. 356, the information was held bad because it did not allege that Barbour was the agent of the Detroit Stove Works, from whom it was charged that the money was fraudulently .obtained, and because it did not allege that the respondent knew the representations to be false. These representations were that he was authorized to collect money for a poor woman whose son was killed on the railway, and who was her .only support. He might honestly have believed that he was authorized. Consequently the scienter was important and material. Had Behee been charged with falsely representing to B. that A. had subscribed and paid him $10, and obtained $5 from B. on this representation, that case would be in point. The information must be held good.

The proofs fully sustain the charge, and conclusively show that the respondent represented to Shank that Newton had subscribed and paid $10, whereas in fact he had subscribed and paid but $1. It is, however, insisted that no criminal intent necessary to the offense is shown, because the respondent used the money obtained for the purpose of establishing the school, and had purchased articles necessary to start it. What he did with the money is immaterial. The law does not sanction the obtaining of money under false pretenses, though the object to which it is devoted be meritorious. The criminal character of the act is not determined by the subsequent use of the money, but by the means used in obtaining it.

We find no error in the record, and the verdict is affirmed, and the court below directed to proceed to sentence.

The other Justices concurred.


author: McGrath, C. J.

text:
    PRATT v. BROWN.
    1. Navigable Streams — Maintenance of Dam — Presumption.
    In the absence of evidence to the contrary, a dam across a navigable stream will be presumed to have been constructed under proper authority from the board of supervisors.
    8. Same — Break in Dam — Rights of Owner — Detention of Logs.
    The owner of a dam lawfully maintained across a navigable stream is entitled to a reasonable time within which to repair an accidental break therein, and for that purpose, if necessary to the protection of the dam from further serious injury, may temporarily detain the logs of a navigator.
    Error to Saginaw; McKnight, J.
    Submitted April 18, 1895.
    Decided October 8, 1895.
    Case by Edward L. Pratt against Addison. T. Brown and William Ryan for an alleged unlawful interference with the driving of plaintiff’s logs. From a judgment for plaintiff, defendants bring error.
    Reversed.

      William H. Sweet and W. A. Burritt (Chauncey H. Gage, of counsel), for appellants.

      C. W. Perry, for appellee.
   McGrath, C. J.

This action is brought to recover damages by reason of what is claimed to be an unreasonable interference by defendants, who >are the owners of a milldam known as the “Beaverton Dam,” with the plaintiff, in the use of the Tobacco river for the purpose of driving logs. The following is a crude sketch of the river and its tributaries:

The river, in its natural state of water, is from 80 to 100 feet in width. The dam is between 500 and 600 feet long, extending across the stream proper, and over a broad river bottom lying inside of an oxbow, formed by a bend in the river. A sketch will assist in understanding the situation:

The south branch is the principal stream, and is really the river proper. The milldam is located four miles above the boom company limits, and about a mile below the junction of the middle branch and north branch with the main river. The “sand bar” is about eight miles from the mouth of the middle branch. Plaintiff’s rollways were located on the middle branch, at points between the sand bar and a point four miles above the mouth of the middle branch.

One Schunk commenced floating and driving logs on the south branch on March 28,1893. Plaintiff commenced on the middle branch April 1st. When Schunk’s logs reached the junction of the middle branch with the main river, but a few of plaintiff’s logs had passed that point. Defendants had placed a boom stick across the main channel of the river at a point about 500 feet above the dam, and, when these drives reached the boom stick, a break had occurred in the dam just south of the log chute, reducing the water on the flats below the floor of the chute, and so low that the logs would not pass over the flats. Schunk’s logs filled the river for one and a half miles above the dam, and plaintiff’s logs extended back several miles above the mouth of the middle branch, and were held for some time. Finally, a ditch was made across the flats and through the dam, and the logs were released.

Defendants contend (a) that the river was not navigable for this purpose without the aid of floods, (b) that the break in the dam was caused by the flooding, and (e) that defendants’ right to maintain the dam, to the concurrent use of the stream, and to a detention of the logs until a reasonable time within which to repair the dam had elapsed, was not sufficiently guarded in the instruction given to the jury.

1. The dam was constructed in 1892, with reference to the use of the stream for this very purpose. The detention occurred in April, 1893, and the testimony clearly tended to show that the river had been actually used for this purpose for upwards of 25 years. There was testimony tending to show that, east of the mouth of the middle and north branches, the river was navigable at this season of the year in ordinary stages of water, and without flooding. There were no log dams on the main river west of the Beaverton dam and east of the Clare dam, in Clare county, some 15 miles above. The log dams were in the tributaries, and were used principally to float the logs into the main river. The court was fully warranted in submitting this question to the jury. The instructions given upon the point were full, and correctly stated the rules of law applicable. The following questions were submitted to the jury, and both were answered in the affirmative: “Is the Tobacco river navigable for driving logs?” “Can it be navigated without the use of dams?”

2. The testimony did not warrant the submission to the jury of the question as to plaintiff’s responsibility for the break in the dam.

3. The court was requested by defendants to instruct the jury as follows:

“As to the question whether the defendants had a right to prohibit the opening of the dam as claimed by the plaintiff, I charge you that, if the stream is periodically navigable, the parties would have equal rights in its use, —the plaintiff to float his logs, and the defendants to maintain and use the dam, — and it would be the duty of each to so use the stream as not to unreasonably interfere with the other in his enjoyment of it. The plaintiff would have no right to flood the river, by the use of dams on the same or tributary streams, so as to interfere with defendants’ dam, and the defendants would have no right to close up the chute, and prohibit the plaintiff for an unreasonable time from passing with his logs. Should the jury find that the dam had been injured and driven out by high water, and was in such condition, at the time the plaintiff desired to pass through it with his logs, as to render it impossible for the defendants to accede to the request of the plaintiff, and had the plaintiff been allowed to take down a portion of the dam it would have caused its destruction, or damaged it to a considerable amount, in such case the defendants had a right to refuse to allow the plaintiff to tear out the dam, and also had a right to prohibit the plaintiff from passing through the dam., for a reasonable length of time, for the purpose of protecting the dam, and what would be a reasonable length of time is a question for you to determine from all the facts and circumstances in the case.”

The court refused these instructions, but, after a general instruction that the rights of the parties were concurrent, and that each had a right to exercise his use of it in such a way as not to interfere unreasonably with the rights of the other (which instruction was proper), the court proceeded to give, without further qualification, several of plaintiff’s requests, as follows:

“His right to recover is based upon the supposition that the river was a navigable stream, and that, as such, it could not be obstructed by any one except in a lawful way. * * * Assuming that the stream in question was, at the time stated, a navigable stream, the defendants could not be held, unless you could determine that they unlawfully obstructed the stream. * * * Was this stream wrongfully obstructed, as complained of by the plaintiff, and was that act, if a wrongful one, caused by these defendants? * *' * The testimony shows, as given by both parties, that the bed of the stream was entirely closed by the dam, that there was no provision, within several rods of such bed of the stream, to pass down the stream with the logs or other floatables. * * * If you find such river to be a navigable stream, under this definition, then the defendants have no right to abridge the right of plaintiff to freely navigate the same. If you. find that plaintiff was prevented from running his logs down such stream because of the dam across the bed of the stream, and that the defendants were the cause of such dam being there, your verdict must be for the plaintiff. * * * If you further find that the defendants, by their acts, prevented plaintiff from running his logs down the stream after there was a break in such dam, your verdict must be for the plaintiff. * * * If you find that defendants forbade the plaintiff from either opening a way through such dam or running his logs through the opening of such dam caused by the water, that would constitute a prevention by the defendants, and plaintiff would not have to assert his rights to the extent of committing a breach of the peace.”

The record is silent upon the subject; hence it will be presumed that the proper proceedings were taken to entitle defendants to construct the dam. Nelson v. Navigation Co., 44 Mich. 7.

Though the stream be navigable, defendants have the right to maintain the dam, and plaintiff’s right to float-age is subject to the proper use 'and protection of the dam. The maintenance and protection of the dam cannot be said to be an interference with plaintiff’s rights, or an obstruction to the navigation of the stream. The naked question here is, what are the relative rights of the owner of the dam and the navigator, in a case like the present, where, without fault of either, there is a recent breach in the dam? The rights of both continue to be relative. The dam owner has an undoubted right to a reasonable time to repair the dam, and to its reasonable protection, and, where the detention of the logs is necessary to such repair and protection, he has the clear right to a reasonable temporary detention for that purpose. Both parties must be reasonable in their demands. The navigator acquires no exclusive right by reason of the accident to the dam, and the dam owner must be reasonably prompt in repairing the dam, or, if Hiere be an opportunity to admit of the passage of the logs before the repairs can be made, without serious further injury to the dam, he should afford every reasonable facility for such passage. Defendants were entitled to the instructions requested, and plaintiff’s requests, as given, were calculated to impress the jury with the idea 1 hat they might find that the dam, because of the method of its construction, was in itself an obstruction, and an interference with plaintiff’s right of navigation, and that he had an absolute right to proceed on his way, irrespective of defendants’ right to the protection of their property. The error is more apparent from the fact that plaintiff testified that—

“The people I talked with were trying to manage so as to save further injury or destruction of the dam, I think. There did not seem to be any willful intention on their part to prohibit me from getting my logs through. They did not request me to stop. I could not have stopped, however, without laying myself liable. The floods given to me from the tributary streams kept the water at the dam raised, and, in my judgment, hindered the men who were engaged in repairing the dam, and I kept flooding continuously to avoid violating contracts I had made to run logs.”

The judgment is therefore reversed, and a new trial granted.

The other Justices concurred.


author: Montgomery, J.

text:
    FRANK v. MORLEY'S ESTATE.
    1. Trusts — Remedies—Action at LaiV.
    An action at law will lie to recover a trust estate consisting solely of money.
    2. Gift — Evidence—State of Feeling.
    Upon an issue as to whether defendant had given a specified sum to plaintiff, which she afterwards intrusted to him for investment, evidence of a promise by defendant “to give” plaintiff a similar sum, made 11 years thereafter, during which period the parties had been living in criminal intimacy, is inadmissible, having no tendency to support the claim made.
    3. Trusts — Statute of Limitations.
    In the case of an express trust, the statute of limitations does not begin to run in favor of the trustee until the trust is repudiated by him, and notice of that fact is brought home to the cestui que trust.

    4. Attorney and Client — Privileged Communications.
    Communications to an attorney by one who has employed him on behalf of another, made in the presence of the latter and' with reference to hi3 business, are not privileged from disclosure in a subsequent suit between the two, since the statements cannot, as between the parties, be said to have been of a confidential nature.
    5. Gift — Immoral Consideration.
    A gift is not invalid as against the heirs of the donor because of the existence of illicit relations between him and the donee.
    6. Same — Trust—Instructions to Jury.
    Plaintiff presented a claim against the defendant estate, averring that, shortly after the birth of her illegitimate child, of which the deceased was the father, the latter gave the claimant a certain sum, which she subsequently returned to him to be invested, and that he had not accounted therefor. The court instructed the jury that, if the deceased had sustained illicit relations with the claimant, and was the father of her child, and in consideration thereof gave her the sum mentioned for the support of herself and child, that would be a sufficient consideration in law for the transfer of the money to her, and it would become hers; and that if she afterwards transferred the money back to the deceased for investment, and he took the same, promising to invest it and to account to her therefor, claimant was entitled to recover. Held, that the charge was not open to the objection that it gave the jury to understand that the illicit relations between the parties imposed an obligation upon the deceased.
    Error to Wayne; Frazer, J.
    Submitted May 9, 1895.
    Decided October 8, 1895.
    Dollie Frank presented a claim against the estate of William B. Morley, deceased, for money alleged to have been intrusted to him for investment. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. From a judgment for claimant, the executor, Horatio T. Morley, brings error.
    Reversed.

      Fraser & Gates (Edwin F. Conely, of counsel), for appellant.

      Atkinson, Vance & Wolcott, for appellee.
   Montgomery, J.

William B. Morley died testate on the 15th of June, 1891. The claimant filed a claim before commissioners on claims for $20,000 and interest, claimed to have been intrusted to the deceased on or about the 10th of January, 1880. The claim was disallowed by the commissioners, and an appeal taken to the circuit court, where, on a trial before a jury, claimant recovered $23,000. The executor brings the case here on error.

Claimant made her case by producing as a witness her sister, who testified that on the 10th of January, 1880, claimant was delivered of a bastard child in the city of Detroit; that two or three days after the birth of the child the deceased came to 300 Woodward avenue, where claim.ant was confined, and gave the claimant $20,000 in bank 'bills, which he stated was for the support of the child; that claimant retained the money for a few days; that he then wanted the money back, and said he would invest it. ;She did not want to give it back to him, and he insisted" on it, and she gave it back. She wanted him to invest it in boat property, and he said it would be a scandal, and he would invest it in a better way, or some other way. There was also testimony tending to show that, from time to time, deceased had paid money to claimant. On one occasion he purchased a small farm for her, near Monroe, paying the consideration, and taking the deed in her name. On various occasions he paid sums ranging from $5 and $10 up to $340. There was never any accounting between the parties prior to the death ‘of Mr. Morley, and never any demand for an accounting by the claimant. There was testimony which tended somewhat to corroborate the testimony of the claimant, and there was testimony offered on behalf of the estate which tended to show a course of dealing between claimant and deceased inconsistent with the claim which is now made. There was also testimony tending to show that, during all the period from 1880 to 1891, illicit relations existed between claimant and deceased.

1. It is contended that the claimant has not sought the proper forum. Defendant’s first request was as follows:

“If the case made by the claimant correctly shows the relations of the deceased to the claimant in respect to the $20,000 alleged to have been delivered by the claimant to the deceased in January, 1880, the deceased did not become the debtor of the claimant, but rather the trustee, for the purposes of investment; and, there being no assumpsit, the claimant cannot enforce her rights in the premises in a proceeding before commissioners on claims, or an appeal from the decision of such commissioners.”

This was refused, and the court charged the jury that if she (the claimant) transferred the money back to William B. Morley for the purpose of investing for her, and he did so take the money into his possession, and promised to invest it for her and account for it to her, if they should believe that these facts were established by a preponderance of the evidence in the case, then this would be a just claim against the estate of William B. Morley, provided, some payment had been made on account of the claim within the six years preceding the death of Morley.

It is generally true that equity alone has jurisdiction over proceedings to enforce a trust, but, in case there has been an account stated, a court of law may take cognizance. See Perry, Trusts, § 843. If the trustee has mingled the estate with his, and has kept no account of the same, the cestui que trust may proceed against him as a common debtor, and charge Mm with the value of the estate, with interest added. Morris v. Wallace, 3 Pa. St. 319; Coffin v. Bramlitt, 42 Miss. 194. And where, as in this case, the trust estate consisted solely of money, so that nothing remained to be done but the payment of the money, no good reason is perceived why an action a t law should not lie. Lathrop v. Bampton, 31 Cal. 17; Perry, Trusts, § 843; Sewall v. Patch, 132 Mass. 326. See, also, Catlin v. Birchard, 13 Mich. 110.

2. Deceased was in 1891 at Rochester, N. Y., receiving medical treatment. For the purpose of corroborating her statement, plaintiff offered in evidence a letter dated April 6, 1891, containing the following:

“Do not get discouraged, and see Lizzie’s goods free i'nom debt. I have not been out of the house for several days to take the electrical treatment. Am doing well without it. Say to Emma she can have a new hat as soon as she gets in the new house. I do not know that it would make any difference, but want to see everything is regular in the deed and the title is perfect. Now, I expect to come soon, but, should anything happen to me, I promise to give you a good home and twenty-five thousand dollars, to get along without me. I tell you, I am having a trying time here. If you want twenty-five or. fifty to get along, borrow it from Charley; and I am better this morning (April 6th), and am anxious to get i back to Detroit. I will try and get this to the P. O. this a. m. Good-bye.
“Your true and loving
“W. B. Morley.”

This was objected to as not tending to support the claim of plaintiff that she had in 1880 intrusted to the deceased $20,000 to invest for her. It will he noticed that this letter contains no acknowledgment of any trust or of any indebtedness. It is nothing more than the promise of a gift in the future. Does it follow that because deceased was willing to promise in 1891 to make such liberal provision for claimant, after 11 years of intimacy, that he had the same feeling in 1880, or that he had made her a present of $20,000? We think not. It is evident that the relations of the parties might have induced a sense of obligation or an infatuation on the part of the deceased in 1891 which he did not feel in 1880. We think not . only that this testimony did not amount to an acknowledgment of an indebtedness or a trust obligation, but that it had no tendency to support such a claim. The proposition was to give claimant a home and $25,000 in money. If the claimant’s theory is true, there would be the less occasion for a gift. While it is perfectly clear that plaintiff could not, under the circumstances of this case, recover upon this promise, it cannot be said that a jury might not seize hold of such a promise, and give weight to it. Its admission was therefore prejudicial error. What is said above applies to all testimony which tended to show an intention to make provision for the claimant, not accompanied by any acknowledgment of the receipt from her of the $20,000 as claimed.

3. It is objected that the court erred in its instructions upon the subject of the statute of limitations. We deem it unnecessary to consider this question at length, for the reason that, if plaintiff made a case at all, it was a case of an express trust, and there was no evidence of any fact which set the statute of limitations to running prior to his death. Ferry, Trusts, § 803; Davis v. Coburn, 128 Mass. 377.

4. Claimant called .as a witness one Ira G. Humphrey, an attorney at law. He was asked to give a statement made by deceased, about the year 1882, with reference to the paternity of the children of -Mrs. Frank. The occasion was a proceeding instituted by Mrs. Frank in the interests of 'her children, and a petition was being prepared by Mr. Humphrey, in which it was necessary to insert the names of Mrs. Frank’s children, who were heirs of her late husband. This was in the presence of both Mrs. Frank and Mr. Morley, and the business was that of Mrs. Frank, although the employment was by Mr. Morley, on her behalf. The communication was not made in any confidence which excluded Mrs. Frank, and under such circumstances the privilege does not exist. Michael v. Foil, 100 N. C. 178; House v. House, 61 Mich. 71; Cady v. Walker, 62 Mich. 158.

5. The circuit judge charged the jury as follows:

“I charge you that if William B. Morley was the father of that child, and had had these illicit relations with Dollie Frank, and in consideration of those facts he gave her $20,000 for the support of herself and her child, that is sufficient consideration in law for him transferring this money to her. If these facts have been proven in this case to your satisfaction, by a preponderance of proof,— that this $20,000 Avas actually paid over by Mr. Morley, and given by Mr. Morley to Dollie Frank, — then that money became her money, and she had a right to do with it as she pleased. And if you shall further believe that at his request, or by her consent, she transferred this money back to William B. Morley, for the purpose of investing for her, and he did so take the money into his possession, and promised to invest it for her and account for it to her, — if you shall believe that these facts are established by a preponderance of the evidence in this case, — I charge you that then this would be a just claim against the estate of William B. Morley.”

It- is contended by the defendant that this charge was misleading, as it gave the jury to understand that the illicit relations betAveen the deceased and the claimant imi>osed an obligation upon the deceased. The circuit judge, hoAvever, made the recovery to depend finally upon the question of whether claimant had intrusted to William B. Morley the $20,000 claimed. The illicit relations between this married woman and Mr. Morley, who was himself a married man, certainly created no legal obligation against Mm <or Ms estate. If, however, he saw fit to and did give her $20,000, no consideration was required. The money became hers. We should hesitate to disturb the verdict in this case upon the assumption that the jury could have misunderstood these instructions, for we think that the court finally made it very clear that plaintiff’s case turned upon the question of whether she actually received the $20,000, and after-wards intrusted it to Mr. Morley to be invested; but, for the error pointed out, the judgment should be reversed, and a new trial ordered.-

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


text:
    BUMP v. JEPSON.
    1. Drains — Collection of Assessment — Sale of Lands.
    Under sections 6 and 7, chap. 6, of the drain law of 1885 (3 How. Stat. §§ 1740/6,1740/7), providing that taxes levied under said act or under the law of 1881 shall be a perpetual lien upon the land, and that all of the provisions of the general law for enforcing the payment of taxes shall apply to such drain taxes, lands reassessed under section 14, chap. 6, of the act of 1885 (3 How. Stat. § 1740gf4), may be sold for non-payment of the tax.
    2. Board of Supervisors — Ordering Reassessment of Drain Tax — Adoption of Committee Report.
    The acceptance and adoption by a board of supervisors of the report of a committee recommending that the supervisor of a specified township be authorized to reassess certain drain taxes is a sufficient direction by the board that such taxes be reassessed.
    3. Drain Taxes — Interest.
    Interest at the rate of 1 per cent, a month, authorized by the general tax law to be charged upon delinquent taxes, cannot be added to the amount of a delinquent drain tax, under section 7, chap. 6, of the drain law of 1885 (8 How. Stat. § 1740/7), adopting the provisions of the general law relating to the collection of taxes.
    4. Tax Sale — Validity—Excessive Interest Charge.
    A sale of land for taxes including an illegal interest charge cannot be upheld on the ground that the amount for which the land was sold was not in excess of what it would have been if a lawful collection fee, which was omitted, had been added.
    5. Equity Pleading — Quieting Title — Demurrer.
    Where a bill to set aside a tax deed as a cloud upon title fails to specify the grounds upon which the sale is claimed to be invalid, or to set forth any facts showing the proceedings to be defective, a special demurrer is properly interposed.
    Appeal from Ionia; Davis, J.
    Submitted June 5, 1895.
    Decided October 8, 1895.
    Bill by Berkley Bump and others against Charles Jepson and another to set aside a tax deed as a cloud upon the title to complainants’ land. Complainants appeal from a decree, dismissing their bill.
    Reversed.

      John Nichol and F. H. Stowe, for complainants.

      Vosper Bros., for defendants.
   Montgomery, J.

The complainants filed a bill in the circuit court for the county of Ionia, in chancery, to. remove a cloud from the title of lands of which they were in possession. The complainants allege that the defendants claim title to the lands by virtue of a purchase of the same upon a sale made by the auditor general on the 23d day of May, 1893, and the questions involved in the case relate to the sufficiency of the sale to pass the title of the land to the defendants.

It appears that in 1883 proceedings were taken by the drain commissioner of the township of Danby, in which the lands are located, for the construction of the Cryderman Lake drain. Tlie lands were then owned and occupied by Philo Bump, who has since died intestate, the complainants being his heirs at law. The drain was established on the 8th day of November, 1883, and the lands in question were assessed at $31.42. The tax was spread upon the tax roll for 1884, and the lands were regularly returned as delinquent for non-payment of the tax, by the township treasurer. At the October session of 1885 of the board of supervisors, the tax in question was ordered reassessed upon the lands, and a sale was made at the annual tax sale of 1887, and the lands bid in by the State. The lands were reoffered for sale at the annual tax sale of 1893, and again bid in by the State. Subsequently, the defendants became purchasers from the State.

Three points are made by complainants against the validity of this title, and they will be considered in order.

1. It is said that there is no express authority to make sale of lands for taxes spread under the act of 1881, and reassessed under the act of 1885. The point is without merit. Section 14, chap. 6, Act No. 227, Pub. Acts 1885, being section 1740g4, 3 How. Stat., provides that—

“Such taxes, if properly returned to the county" treasurer, may be ordered charged back by the board' of supervisors, and reassessed upon such lands, in the same manner that unpaid or rejected taxes may be charged back by the auditor general and reassessed under the general provision of law.”

And section 6 of the same chapter, being compiler’s section 1740/6, provides:

“All taxes levied under the provisions of this act, or of act number two hundred and sixty-nine of the Session Laws of Eighteen Hundred and Eighty-One, with all lawful costs, interest, and charges, shall be and remain a perpetual lien upon the lands upon which they are assessed.”

Section 7 provides that—

“If taxes levied for the construction * * * of any drain are not collected by the township treasurer, they shall by him be returned, together with the lands upon which they are levied, to the county treasurer, in the same return, at the same time, and in the same manner, in every respect, * * * as lands are returned tor State, county, and township taxes, and such taxes shall follow such lands the same as all other taxes, and all the general provisions of law now existing, or that may be hereafter enacted, for enforcing the payment of township, county, and State taxes, shall apply to such drain taxes, and to the lands returned delinquent therefor, in the same manner and with like effect.”

There is no mistaking the purport of these provisions,— that the taxes, when reassessed, are to follow the course of other taxes, and be collected in the same manner, which involves, of necessity, a sale of the land to satisfy the taxes-.

2. It is claimed that there was no proper order of the board for a reassessment of the tax. A committee of the board reported two lists of drain taxes spread under the tax law of 1881, and returned to the county treasurer as delinquent. One list the committee reported as properly returned to the county treasurer, and the other list as not properly returned. The report of the committee concludes as follows: “Your committee would respectfully recommend that this board authorize the supervisors of the several townships in which such taxes are reported as having been properly returned to reassess the sam-e as per act of 1885 in relation thereto-, and that those reported as not having been legally returned not to be so reassessed.” The lands in question were comprised in the list reported as properly returned. On motion this report of the committee wa,s accepted and adopted. This was sufficient authorization by tire board. See Boyce v. Sebring, 66 Mich. 210, 216. The present case is unlike that of Post v. Harris, 95 Mich. 321. The report adopted by the board in that case was one made by a committee appointed “to recapitulate the reports of the several township clerks to the county clerk for all moneys voted to be raised by the townships.” The ease turned upon the point that there was no direction by the board to spread the tax, whereas in the present case there was such direction, by the adoption of the report recommending such action, in the regular way.

3. It is claimed that the sale was for an excessive amount, and included an interest charge at the rate of 1 per cent, a month from the time of the assessment. The tax was returned delinquent February 1, 1885, and amounted at that time to $31.42. It was sold and bid in by the State, October 4,1887, for $38.30, consisting of the following items:

Tax________________________________________________$31 42
Interest................_........................... 6 28
Expense of sale............,........................ 60

The lands were resold by the State in May, 1893, for the amount of the original bid, with an additional interest charge of $12.83.

It is apparent that interest was charged at the rate' of 1 per cent, per month. This we held in Jackson, etc., Tile Co. v. Snyder, 93 Mich. 325, is not permissible in drain proceedings. It is suggested, however, that the county treasurer might have included a charge of 4'per cent, for a collection fee, and that, if this be added, the amount for which the land was sold was not excessive. But no such charge for collection was included, while an excessive interest charge was. In Case v. Dean, 16 Mich. 12, it was held that an excessive tax could not be validated by showing that it did not exceed the amount which might have been lawfully assessed.

When the bill was filed, it contained no statement of the grounds upon which it was claimed that the sale was invalid, nor did it set out any facts showing defects in the proceedings. A special demurrer was interposed, assigning this defect and others. The demurrer was overruled, with costs. The defendants then answered, and on the trial, it would appear, again raised the objection. The demurrer was well taken, and we think the defendants should be allowed costs of the demurrer, and should recover the solicitor’s fee paid by order of the court. Upon the amended bill, complainants are entitled to a decree setting aside the deed, with costs of both courts, less the amount awarded to defendants on demurrer.

The decree will be reversed, and a decree entered here in accordance with this opinion.

The other Justices concurred


author: Long, J. Grant, J.

text:
    CARY v. CARY.
    1, Divorce — Nonsupport—Evidence.
    Under a bill for divorce alleging that defendant, though of sufficient ability, has grossly, wantonly, and cruelly neglected and refused to provide a suitable maintenance for complainant, evidence of the use by defendant of insulting and abusive language towards complainant is admissible.
    3. Same.
    Evidence reviewed, and held to be sufficient to entitle the complainant to a divorce on the ground of nonsupport. Grant, J., dissenting.
    Appeal from Eaton; Smith, J.
    Submitted June 14, 1895.
    Decided October 8, 1895.
    Bill by Sarah O. Gary against John N. Cary for a divorce. From a decree for complainant, defendant appeals.
    Affirmed.

      A. G. Fleury (Huggett & Smith, of counsel), for complainant.

      L. B. Gardner (Q. A. Smith, of counsel), for defendant.
   Long, J.

I am unable to agree with my Brother Grant in reversing the decree of the lower court. The grounds for the relief asked, as set forth in the bill of complaint, are that the defendant, “though of sufficient ability, has grossly, wantonly, and cruelly neglected and refused to provide a suitable maintenance for her.” My Brother Grant concludes that there is no sufficient proof to sustain these allegations. After a careful reading of the record, I am compelled to disagree with that conclusion.

The parties were married on August 11, 1892, at Frankfort, Benzie county, this State. Complainant was at that time 62 years of age, and the defendant 73. They had known each other for many years, had both been previously married, and were related to each other by such previous marriage. In 1892 complainant was residing with and keeping house for her son at Frankfort, where the defendant visited her, his home being in Lansing, Mich. He remained with complainant some five weeks, and, while there, the marriage was arranged. After the marriage the defendant remained with complainant at her home until the latter part of February, 1893, when he went to Lansing. Complainant was at that time ill, but upon her recovery she came to Lansing, where they for a time resided, and afterwards went to Charlotte, where they continued to live together up to January 19, 1894. At the time of the marriage, complainant had a small, one-story cottage, and about an acre of land, worth $700, covered by a mortgage of $250. Defendant was worth from $8,000 to $10,000.

It is apparent from the testimony that complainant, after the marriage, was kind to the defendant, attending him in illness, and providing for his comfort. During that time, however* it is evident that the defendant was utterly regardless of the comfort of the complainant. The only clothing he purchased for her was a pair of two-dollar shoes and a pair of rubbers. He compelled her at times to live in an attic, with no conveniences whatever. At other times they hoarded, he refusing or neglecting to pay the hoard hills, and suits were commenced against him for such board and lodging. The complainant was left in Charlotte for six weeks while defendant went to the World’s Fair, and without any means to pay her board. During part of this time she came to Lansing, and worked for her board. He left her without any means whatever. In addition to this neglect to provide a maintenance, which we think is abundantly shown to have been wanton and cruel treatment for a man of his means and circumstances in life, he used the most insulting and abusive language towards her. On the day of his going away, he called her a “she-devil,” and said he would not live with her, and that she might go and live with any one who would keep her for her company. He told her she was a thorn in his side, and wanted to rob him. This testimony as to cruel treatment was objected to under the pleadings, but we think it competent under the rule in Brown v. Brown, 22 Mich. 244.

The complainant has, we think, sustained the allegations of her bill, and the decree of the court below will be affirmed. Complainant will recover the costs of this court, including a solicitor’s fee of $100. By the decree of the court below, the case was referred to a circuit court commissioner, to take proofs, and report the- same to the court below, as to the amount of property possessed by the defendant, the permanent alimony tb be then fixed by that court. The case will be remanded for that purpose.

McGrath, C. J., Montgomery and Hooker, JJ., concurred with Long, J.

Grant, J.

(dissenting). Complainant filed a bill for divorce March 19, 1894, in which her .sole basis for relief is the allegation that defendant, “though of sufficient ability, has grossly, wantonly, and cruelly neglected and refused to provide a suitable maintenance for her.” On the 8th day of November, 1894, after all the proofs were tallen, and on the day that the final decree was entered, an amendment was filed, charging extreme cruelty. No petition or order of court allowing the amendment is found in the record. The amendment was not sworn to, nor was the original bill as amended reswom to. Under this state of facts, neither the amendment .nor the charge of cruelty contained in it can be considered. Briggs v. Briggs, 20 Mich. 34; Green v. Green, 26 Mich. 437.

The decree is based upon the “several acts of cruelty and nonsupport” charged in the bill. The proofs fail to show a case of wanton, gross, and cruel neglect or refusal to support complainant. The defendant was 76 years old, physically weak, and part of the time (about three months before the bill was filed) so ill that complainant testified that she did not consider him competent to attend to his affairs; his property mortgaged for $2,000. besides other indebtedness of about $1,000; Ms income very limited and uncertain; and a helpless daughter, 45-years old, dependent upon him for support. I do not deem it important to enter into a detailed statement of the proofs.

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


author: Hooker, J.

text:
    McMORRAN v. FITZGERALD.

    Nuisance — Injunction.
    The operation of a machine shop devoted to boat repairing, situated in a neighborhood otherwise given up to costly residences, and erected, in the face of protests, after the character of the locality as a residence district had been established, will be enjoined as a nuisance, where smoke, soot, and disagreeable odors therefrom, and from the boats coming thereto for repairs, penetrate the adjacent houses, rendering them uncomfortable and unwholesome.
    Appeal from St. Clair,; Eldredge, J., presiding.
    Submitted June 18, 1895.
    Decided October 8, 1895.
    Bill by Henry McMorran and John E. Botsford against James H. Fitzgerald and others to abate a nuisance. From a decree for complainants, defendants appeal.
    Affirmed.

      Atkinson & Wolcott, for complainants:
    Upon the facts of the case, a perpetual injunction was properly granted. 1 High, Inj. § 772 et seq.; Norris v. Hill, 1 Mich. 202; Robinson v. Baugh, 31 Mich. 290; Edwards v. Mining Co., 38 Mich. 46; Burke v. Smith, 69 Mich. 380; Flaherty v. Moran, 81 Mich. 52; People v. White Lead Works, 82 Mich. 471; Ross v. Butler, 19 N. J. Eq. 294; Cleveland v. Gas Light Co., 20 N. J. Eq. 201; Duncan v. Hayes, 22 N. J. Eq. 25; Demarest v. Hardham, 34 N. J. Eq. 474; Brady v. Weeks, 3 Barb. 157; Hutchins v. Smith, 63 Barb. 251; Fish v. Dodge, 4 Denio, 315; Peck v. Elder, 3 Sandf. 126; Howard v. Lee, Id. 281; Catlin v. Valentine, 9 Paige, 575; McKeon v. See, 51 N. Y. 300; Campbell v. Seaman, 63 N. Y. 568; Bigelow v. Bridge Co., 14 Conn. 565; Frink v. Lawrence, 20 Conn. 117; Whitney v. Bartholomew, 21 Conn. 213; Bishop v. Banks, 33 Conn. 121; Hurlbut v. McKone, 55 Conn. 31; Barnes v. City of Racine, 4 Wis. 454; Pennoyer v. Allen, 56 Wis. 502; Snyder v. Cabell, 29 W. Va. 48; Norcross v. Thoms, 51 Me. 503; Shiras v. Olinger, 50 Iowa, 571; Bushnell v. Robeson, 62 Iowa, 540; Fuseller v. Spalding, 2 La. Ann. 773; Owen v. Phillips, 73 Ind. 284; Reichert v. Geers, 98 Ind. 73; Adams v. Car Co., 131 Ind. 375; Coker v. Birge, 9 Ga. 425, 10 Ga. 336; Cooper v. Randall, 53 Ill. 24; Fogarty v. Brick Co., 50 Kan. 478; Appeal of Ladies’ Decorative Art Club, 13 Atl. 537; Wier’s Appeal, 74 Pa. St. 230; Adams v. Michael, 38 Md. 123; Dittman v. Repp, 50 Md. 516; Fertilizer Co. v. Malone, 73 Md. 268; Tuebner v. Railroad Co., 66 Cal. 173; Tipping v. Smelting Co., 4 Best & S. 608; Smelting Co. v. Tipping, 11 H. L. Cas. 642; Walter v. Selfe, 4 Eng. L. & Eq. 20; Crump v. Lambert, L. R. 3 Eq. 409; Sturges v. Bridgman, 11 Ch. Div. 852; Scott v. Firth, 10 L. T. N. S. 240; Roskell v. Whitworth, 19 Wkly. Rep. 804; Robertson v. Campbell, 13 Fac. Col. 61; White v. Cohen, 1 Drew, 313.

      Chadwiclc & McIlwain, for defendants:
    The testimony of complainants, if undisputed, would not justify the destruction of defendants’ business, since by its proper regulation the annoyances complained of could be avoided. Gilbert v. Showerman, 23 Mich. 448; Robinson v. Baugh, 31 Mich. 290; Edwards v. Mining Co., 38 Mich. 46; Cobb v. Slimmer, 45 Mich 176; Ronayne v. Loranger, 66 Mich. 373; Turner v. Hart, 71 Mich. 129; People v. White Lead Works, 82 Mich. 471; Ballentine v. Webb, 84 Mich. 38.

       Rehearing denied December 17, 1895.

   Hooker, J.

The defendants are the owners of a machine and blacksmith shop,, devoted to boat repairing, situate upon the St. Clair river at Port Huron, in a neighborhood otherwise devoted to residences. The buildings in the immediate vicinity are among the finest and most costly in the city, and are correspondingly furnished. The circuit judge found that the locality was especially adapted to the purpose of residences of this Character, and had been exclusively so used for many years prior to the erection of the defendants’ shop, and that this fact was plainly apparent to the casual observer at the time the shop was built. He further found that this shop, and boats which it called to the locality for repairs, emitted from their several smokestacks smoke, laden with cinders, soot, and disagreeable odors, which penetrated the houses, rendering them unclean, uncomfortable, and to a material extent unwholesome, and that it had to a material degree destroyed the comfortable, peaceful, and quiet occupation of the complainants’ homesteads, which, if continued, would be irreparable; and he rendered a decree granting the prayer of the bill, to the extent of enjoining the use of the defendants’ premises for the purposes to which they are now devoted. This was upon the proposition that relief by injunction should be granted where the business complained of produces what is offensive to the senses, and renders the enjoyment of life and property uncomfortable.

Injunctions restraining the use of property in accordance with the owner’s interests should be cautiously granted. As a rule, the owner may make such use of his premises as his business or taste may dictate, and the only limitation upon his right is that he must so use his property as not to cause injury to the property or rights of those owning property in the vicinity. There should not be a teclmioa.1 or fanciful interpretation of this rule. It must always be applied in the light of the circumstances; and uses of property which might be improper dm one locality may be proper in another. Thus a slaughter-house might be protected in a place remote from residences or places of business, though the land of an adjoining proprietor should not be free from noxious odors arising therefrom. But in a populous district, or in case that the adjoining proprietor should choose to erect a residence upon his premises, the slaughter-house would toe or might become a nuisance. Smoke and noise which are common in cities .would be intolerable in rural or suburban districts, and, as such, might be excluded by the law. As long as the smoke and tumult are confined to portions of a city which are principally devoted to such business, little difficulty arises, and, though theoretically a resident of such locality may have the same rights to immunity from discomfort, usually his personal interest in the increase of values which results from occupation for business purposes satisfies him. But when one invades a suburban district with an offensive and noisy business, which from its nature is injurious to those having homes in the vicinity, merely because he can purchase land cheap, or because the location has peculiar advantages for his purpose, he takes the risk of being compelled to compensate the injured neighbors, or perhaps desist from the offensive use of the property.

An inspection of the evidence satisfies us that, from the standpoint of most any one who would be likely to occupy the residences of these complainants, the conduct of the defendants’ business would be annoying and offensive in the extreme. There is ample evidence of tangible injury to the property by smoke and soot, and of unpleasant odors and noises, which would make life uncomfortable. The extent of this varies with the wind and the season of the year, but it is nevertheless a substantial invasion of complainants’ rights. There is little in the case to excuse it, beyond the proposition, which, so far as practicable, should be maintained, that one should be permitted to do as he will with his own property. As stated before, the situation was apparent before the defendants purchased the premises for the purpose of erecting their shop, and before its erection they were cautioned, and were offered a large sum to abandon the project; but they insisted. Further earnest of complainants’ sincerity was given by the commencement of a suit to restrain the operation of this plant. But the defendants persisted, and could look at the matter only from the standpoint of business, to which all other interests should yield, — a sentiment which is not uncommon, but one which the law does not sanction. Our opinions of the evidence accord with those of the circuit judge, and the authorities fully sustain his legal conclusion that, within reasonable limits, a man is entitled to freedom from smoke, soot, noise, and noxious odors in his home, taking into consideration the character of the locality and pre-existing conditions. Authorities are numerous in support of this doctrine. A discussion of the subject will be found in Wood, Nuis., chap. 15, where authorities are cited. See, also, in addition to cases cited in the briefs of counsel, Gaunt v. Fynney, 8 Ch. App. 8; Ball v. Ray, Id. 467, and a note to this case found in 6 Eng. R. 440.

We think that the decree of the circuit court should be affirmed.

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


text:
    MESSENGER v. TEAGAN. ENGEL v. WAYNE CIRCUIT JUDGE.
    1. Constitutional Law — Detroit Justices’ Act — Sufficiency of Title.
    - Act No. 460, Local Acts 1895, entitled “An act to establish, and provide justices’ courts in the city of Detroit,” does not contravene section 20, art. 4, of the Constitution, which provides that “no law shall embrace more than one object, which shall be expressed in its title,” the several provisions relating to the organization and jurisdiction of such courts being germane to the general purpose expressed in the title to the act.
    2. Same — Term of Office.
    The provision of said act that justices elected thereunder shall hold office “for four years” is not in conflict with section 17, art. 6, of the Constitution, providing that justices of the peace “ shall hold their offices for four years, and until their successors are elected and qualified,” since, in the absence of a statutory prohibition, express or implied, a public officer holds over for the period named.
    3. Same — Increasing Jurisdiction of Justices.
    The provision increasing the jurisdiction of justices of the peace in said city to $500 is authorized by section 18, art. 6, of the Constitution, and the act is not thereby rendered repugnant to the fourteenth amendment to the Constitution of the United States.
    5. Same — Restricting Appeals.
    The right of appeal is not a constitutional one, but is subject to the control of the legislature. The act is not invalid, therefore, in limiting the right of appeal to cases where the amount involved is not less than $50.
    Frank A. Messenger, Jr., applied to the circuit court for the county of Wayne for a writ of mandamus to compel John B. Teagan, one of the justices of the peace for the city of Detroit, to issue a summons in favor of relator wherein damages should be laid at the sum of $500. The •cause was heard before Joseph W. Donovan, circuit judge, who entered an order denying the writ, and relator brings the case to this court by certiorari.

    Ernest A. Engel also applied to this court for mandamus to compel Judge Donovan to set aside an order made by him_ dismissing an appeal taken by relator from a judgment rendered against him in justice’s court for less than $50.
    Submitted June 20, 1895.
    Decided October 8, 1895.
    Judgment reversed in the former case, and writ denied in the latter.

      Fred A. Maynard, Attorney General, and Horace H. Backham (George B. Yerkes and James H. McDonald, of counsel), for relator Messenger and respondent Donovan.

      Bowen, Douglas & Whiting, for respondent Teagan and relator Engel.
   Grant, J.

The object of these suits is to test the constitutionality of an act “to establish and provide justices’ courts in the city of Detroit, and to repeal Act No. 280 of the Local Acts of 1883, entitled An act relative to justices’ courts in the city of Detroit,’ approved April 25, 1883, and all acts amendatory thereof.” Act No. 460, Local Acts 1895.

1. The first objection is that it is repugnant to section 20, art. 4, of the Constitution, which reads, “No law shall embrace more than one object, which shall be expressed in its title.” The objection is not sound. The title is sufficiently comprehensive. The one general object, which is expressed in the title, is to establish and provide justices’ courts in the city of Detroit. All provisions of the act are consistent with this general purpose, and germane to it. The title is not deceptive. It gives notice to the legislators and to the public that it will provide for the organisation, the details, and the jurisdiction of the court, which is authorized by the Constitution. It is sufficient, under the following authorities: People v. Mahaney, 13 Mich. 495; Kurtz v. People, 33 Mich. 282; Connecticut Mut. Life Ins. Co. v. State Treasurer, 31 Mich. 17; Hall v. Judge of Superior Court, 88 Mich. 440; Canal Street Gravel-Road Co. v. Paas, 95 Mich. 372; Van Husan v. Heames, 96 Mich. 507.

2. The Constitution (section 17, art. 6) provides that justices of the peace “shall hold their offices for four years, and until their successors are elected and qualified.” This act provides that the justices elected under it shall hold their offices for four years, saying nothing about holding over until their successors are duly qualified. It is urged that this act contravenes the above constitutional provision, in that it shortens the constitutional term of office. We think there is no force in this contention. The Constitution and the law both provide for a term of four years; while the former provides that if, for any reason, a successor is not elected and qualified at the- expiration of the four years, the incumbent shall hold over. If the law said nothing whatever about the term of office, but only provided when the term should commence, the law would be valid, for it would then be construed as having been enacted with reference to the constitutional period. The act provides for the election of successors, so that ordinarily there can be no interregnum in office. It was equally unnecessary to incorporate into the act the provision of the Constitution in regard to holding over. The Constitution controls, and the act, in neither letter nor spirit, is in conflict with it. While there is some conflict in the decisions, the better doctrine is that, where the law does not expressly or by necessary implication prohibit, officers hold over until their successors are duly elected and qualified. Some authorities make exceptions of judicial officers, but we see no reason in the distinction in this case. 19 Am. & Enc. Law, 562o; Walker v. Ferrill, 58 Ga. 512.

3. It is urged that the act is in contravention of section 18, art. 6, of the Constitution:

“In civil cases, justices of the peace shall have exclusive jurisdiction to the amount of $100, and concurrent jurisdiction to the.amount of $300, which may be increased to $500, with such exceptions and restrictions as may be provided by law. They shall also have such criminal jurisdiction, and perform such duties, as shall be prescribed by the legislature.”

This act increases the jurisdiction of the justices of the peace in Detroit to $500, and limits the right of appeal to the circuit court to cases where the justice shall disallow any claim in favor of any plaintiff or defendant to the amount of $50, or where a judgment shall be rendered to the amount of $50, exclusive of costs. The precise objection is that the justices of the peace in Detroit cannot be given greater jurisdiction or a jurisdiction over different subject-matters from that given to other justices of the peace in the State. In other words, it is contended that such powers must be conferred by a general, and not a local, act. The learned counsel for the respondent (Teagan) admit that they can find no decisions upon this point. Justice Cooley, in his work on Constitutional Limitations (page 88), quotes with approval the language of Chief Justice Denio in People v. Draper, 15 N. Y. 543:

“The people, in framing the constitution, committed to the legislature the whole law-making power of the State which they did not expressly or impliedly withhold. * * A prohibition to exercise a particular power is an exception.”

The Constitution contains no express prohibition, nor are we aware of any language from which it could be implied. A necessity may arise to confer a larger jurisdiction upon justices of the peace in large cities than in smaller cities and towns. No reason exists why it should not be conferred. The legislature is vested with unlimited power, within the limits of the constitutional provisions, and the Constitution imposes no limitation as to locality. See Attorney General v. Preston, 56 Mich. 177; People v. Gallagher, 4 Mich. 244; Sears v. Cottrell, 5 Mich. 257.

In Hayes v. Missouri, 120 U. S. 68, it was held that a law providing for 15 peremptory challenges in cities of over 1.00,000 inhabitants, while elsewhere it provided for only 8, was valid. It is there said:

“The fourteenth amendment to the Constitution of the United States does not prohibit legislation which is limited either in the objects to which it is directed,.or by the territory within which it is to operate. It merely requires' that all persons subjected to such legislation shall be treated alike, under like circurnstanees and conditions, both in the privileges conferred and in the liabilities imposed. As we said in Barbier v. Connolly, 113 U. S. 27, speaking of the fourteenth amendment: ‘Class legislation, discriminating against some and favoring others, is prohibited; but legislation which, in carrying out a public purpose, is limited in its application, if, within the sphere of its operation, it affects alike all persons similarly situated, is not within the amendment.’ ”

So in the present case the law acts equally upon all in the territory covered by the act. It denies to no one the equal protection of the law, and secures to all alike the privileges and immunities of citizens.

The question as to the right of appeal is expressly controlled by Sullivan v. Haug, 82 Mich. 553. The right of appeal is not a constitutional one, but is subject to the control of the legislature.

’The judgment below is reversed, and the respondent John B. Teagan, justice of the peace, directed to issue the summons to the relator as prayed. The writ of mandamus is denied in Engel v. Donovan. Circuit Judge.

The other Justices concurred.


text:
    NELSON v. CITY OF SAGINAW.
    1. Municipal Corporations — Public Improvements — Assessment Roll — Certificate of Board of Public Works.
    Under a charter provision requiring the board of public works to certify upon an assessment roll for the cost of a public improvement that each parcel of land so assessed “is benefited specially by such improvement to the amount of the assessment thereon,” a certificate showing the entire amount assessed, the amount assessed on each lot deemed to be benefited by the improvement, that the lots upon the roll are all that are benefited, and that the assessment is made in proportion to the benefits deemed to have been received, is sufficient.
    2. Same — Conclusiveness of Official Action — Fraud.
    'The action of municipal officers with reference to public improvements, when within the powers conferred upon them, is final, in the absence of fraud. Whether, under the decision in McDonald v. City of Escanaba, 62 Mich. 555, the courts have jurisdiction to interfere even where fraudulent conduct is shown, — qucere.

      S. Same — Validity of Assessment — Estoppel.
    A city charter provided that the board of public works should annually report to the common council such public sewers as they should deem necessary to be built during the ensuing year, and that the council should determine what sewers of those so reported should be built. Held, that a sewer assessment would not be set aside on the ground that the construction of the sewer was not embraced within such report, at the suit of one who did not avail himself of the right to be heard thereon before the common council, which by the charter was constituted a board of review, with power to correct, set aside, or confirm the assessment.
    Appeal from Saginaw; McKnight, J.
    Submitted July 18, 1895.
    Decided October 8, 1895.
    Bill by Neil Nelson and others against the city of Saginaw and George Housner, treasurer of the county of Saginaw, to set aside a sewer tax. From a decree dismissing Hie bill, complainants appeal.
    Affirmed.

      Trash & Smith, for complainants.

      William G. Gage, for defendants.
   Grant, J.

The purpose of this bill is to set aside a sewer tax assessed upon the lands of the complainants, upon the ground that it is void, and thus creates a cloud upon the titles.

The first objection is that the certificate to the roll made by the clerk of the board of public works does not certify “that each parcel thereof is benefited specially by such improvement to the amount of the assessment thereon.” Act No. 257, Local Acts 1891, tit. 6, § 7. The proceedings are in all respects regular and valid. The resolution, as appears upon the records of the common council, shows that each parcel of land was assessed as it was specially benefited. We think that the objection is without force, and that the certificate is a substantial compliance with the statute. It reads as follows:

“This is to certify that the board of public works of the city of Saginaw, Michigan, have assessed the sum of two thousand three hundred and twenty-three and 7-100 dollars, being the proportion of expense of constructing a main sewer on Mason street which, in the opinion of said board, a proper lateral sewer in the same street would amount to, upon the lots deemed to be benefited thereby; and said board further certify that they have assessed said sum of two thousand three hundred and twenty-three and 7-100 dollars upon the lots described upon the within roll, and that the amount of the assessment upon each lot is set opposite the description thereof; that said lots are by said board deemed to be benefited by the construction of said sewer, and that said lots are all the lots and property, through or near which said sewer was laid, benefited thereby; and that said assessment has been made upon said lots in proportion to the benefit derived by them, respectively.”

It is not necessary that the exact language of the charter should be used. It is sufficient if the language of the certificate be such that the facts required to be certified may fairly be inferred. The certificate shows the entire amount assessed, and, as well, the amount assessed upon each lot deemed to be benefited thereby, and that the lots upon the roll are all which were benefited by the sewer, and that it was made in proportion to the benefits deemed to have been received.

It is claimed that the officers of the city acted fraudulently in constructing this sewer. There is no evidence of bad faith, or fraudulent conduct, and the action of the officers, within the powers conferred upon them, is final. Powers v. City of Grand Rapids, 98 Mich. 393. Even if fraudulent conduct were shown, quiere if the courts have any jurisdiction to interfere, under McDonald v. City of Escanaba, 62 Mich. 555.

The third and last objection is that the construction of the sewer was not embraced in the report of the board of public works, in accordance with section 5, tit. 10, of the charter. Act No. 455, Local Acts 1889. The charter constitutes the common council a board of review, to review the assessments made by the board of public works. To such board of review any one may appeal. Notice of hearing appeals was duly given, but none of the complainants appeared or made any complaint. This entire subject was within the jurisdiction of the reviewing board, before which it was their duty to first appear, if they had any objections. Since they failed to do this, the courts will not afford them redress. Brown v. City of Grand Rapids, 83 Mich. 101.

Decree affirmed, with costs.

The other Justices concurred.