text:
    FINN v. DETROIT, MT. CLEMENS & MARINE CITY RAILWAY.
    1. Master and Servant — Workmen’s Compensation — Dependents —Husband and Wife.
    Act No. 10, Extra Session 1912, pt. 2, §§ 6, 7 (2 Comp. Laws 1915, §§ 5436, 5437), establishing a conclusive presumption of dependence if the wife is living with her husband at the time of his death, did not affect the right of a wife to recover compensation for the negligent death of her husband, with whom she had not been living for several months, or until she received word of the injury, when she went to the hospital and remained with him for a few hours before his death, under testimony showing that she had resumed the work at which she had been engaged before marriage, that no definite arrangements had been made for her return though she was willing to return and looked for a reconciliation, that the separation occurred because of differences in opinions, religious belief, etc., that, she received letters from him every two or three weeks during her absence, in another State, but was not living with him in family relations and no. plans had been made for resuming them.
    2. Sam:e — Conclusiveness of Presumption — Evidence of Dependency — Separation.
    And while, upon the testimony as set forth in the record, the wife failed to establish facts that would raise such a conclusive presumption in her favor, where there was an actual separation or break in the marital relations, nevertheless the board should determine the extent to which she actually was, under the evidence, dependent, if dependence existed, and the cause is remanded for further proceedings to that end.
    Certiorari to the Industrial Accident Board.
    Submitted October 27, 1915.
    (Docket No. 158.)
    Decided January 3, 1916.
    Alma Maud Finn presented her claim for compensation against the Detroit, Mt. Clemens & Marine City Railway for the death of her husband in defendant’s employ. From an order awarditfg compensation, respondent brings certiorari.
    Reversed, and remanded for further hearing.

      Corliss, Leete & Moody and Benj. S. Pagel, for appellant.

      Eldredge & Kelly, for appellee.
   Steere, J.

This proceeding involves the review of a decision of the State Industrial Accident Board in affirming the conclusions of an arbitration committee awarding to complainant full compensation for the death of her husband under the provisions of Act No. 10, Extra Session 1912 (2 Comp. Laws 1915, § 5428 et seq.).

On May 9, 1914, William Finn, claimant’s husband, while employed by respondent as an assistant engineer in its power house at New Baltimore, Mich., sustained fatal injuries by a boiler explosion, as a result of which he died two days later in a hospital at Mt. Clemens, Mich. Claimant was not living with him at the time of the accident, but, having been summoned by an agent of respondent, was with him in the hospital for an hour or two on the evening prior to his death.

These parties were married on October 31, 1912, and thereafter lived together as husband and wife in a home provided by the husband at New Baltimore until October 5, 1913, when claimant left her husband’s home and went to Ft. Wayne, Ind., where she was engaged in teaching school, having been absent from him about seven months. She was there living and thus engaged when informed of her husband’s injury. After his death she returned and resumed her work as a teacher, being yet so engaged at the time of the arbitration in this case.

So far as the record before us discloses, neither the committee of arbitration nor the Industrial Accident Board made any finding of facts in this case, except such as may be indirectly inferred from the formal award to claimant of $3,000 payable in weekly installments of $10 each, made by the committee and a short order by the board affirming the same, which are set out in the return to the writ of certiorari. The only testimony returned is that of claimant, certified as a “true transcript of so much of the testimony taken in the said cause before the original committee of arbitration, and presented to us upon the rehearing of the cause before this board as is deemed material to said cause, and as agreed upon by the attorneys for the claimant and respondent respectively.”

The material provisions of our workmen’s compensation law (said Act No. 10, pt. 2, §§ 6, 7; 2-Comp. Laws 1915, §§ 5436, 5437) are as follows:

“Sec. 6. The following persons shall be conclusively presumed to be wholly dependent for support upon a deceased employee: (a) A wife upon a husband with whom she lives at the time of his death; (6) A husband upon a wife with whom he lives at the time of her death; (c) A child or children, etc. * * * In all other cases questions of dependency, in whole or in part, shall be determined in accordance with the fact, as the fact may be at the time of the injury; and in such other cases, if there is more than one person wholly dependent, the death benefit shall be divided equally among them, and persons partly dependent, if any, shall receive no part thereof; if there is no one wholly dependent and more than one person partly dependent, the death benefit shall be divided among them according to the relative extent of their dependency. # * *
“Sec. 7. Questions as to who constitute dependents and the extent of their dependency shall be determined as of the date of the accident to the employee, and their right to any death benefit shall become fixed as of such time, irrespective of any subsequent change in conditions. * * *”

To arrive at the award made by the committee and affirmed by the board, they apparently found that claimant was living with her husband at the time of his death, and they must therefore conclusively presume that she, as his wife, was wholly dependent upon him for support, regardless of what the actual facts were, and without regard to the later provisions of the act as to questions of dependency in whole or in part in other cases, or the requirement that the extent of dependency and right to death benefit shall be determined and fixed as of the date of the accident.

Whatever legal fiction may be invoked under a presumption as to claimant’s residence by reason of coverture, it is undisputed that during .more than half a year preceding her husband’s injury and death she was living in another State, where she had resumed, the manner of life and vocation followed by her before marrying, having of her own volition left him, abandoned the home in which they were living together, and withdrawn from all domestic duties and obligations of a wife under such circumstances as, from her standpoint, demanded a reconciliation with her husband before she would again live with him and resume marital relations. It is urged in her behalf that her evidence shows her absence from her husband was but temporary, with his consent, and not a final separation ; that they were yet husband and wife, in friendly communication with each other, he contributing to her support, and, under a cited line of authority bearing on the temporary absence of husband and wife from each other for some good reason, she was living with him in contemplation of law at the time of his injury, and in fact at the time of his death. Her evidence as to the nature and occasion of leaving her husband and living apart discloses something more than a mere suspension of the family relations, for an understood period of time, incidental to journeys for business or pleasure, changing the family place of residence, delays-in preparing a new home, financial embarrassment, sickness, or like common causes which often result in the members of a family temporarily living apart without estrangement. While claimant testifies at length as to how she came to leave, what she thought, and how she felt about it, much of her evidence consists of conclusions and generalizations. She states they were of different religious faith, and had different ideas of different things; that there was no-climax ; that when she went she did not regard it as a final separation, and there was no' agreement to that effect. She makes no claim that her husband wanted her to go or was unkind to her, but that matters were discussed and he “felt that, if I was not happy and wanted to go, why I could go, but that I should feel free to send to him for money at any time, and that he was always perfectly willing to give me whatever I wanted at all times”; that they made no definite arrangements for her to come back and live with him, but she “was perfectly willing to come> and willing for a reconciliation — in fact, had looked forward to it all the time, and felt it was bound to come.” On whose initiative it was to come and just what was to be reconciled she does not state. Asked what were her intentions when she went away and her feelings towards her husband, she answered in part:

“My intentions were just. I really intended to go home, and I felt just going away and staying a while to see if the separation would not bring back a reconciliation. It was not a final move on my part. * * * I cared a great deal about him. I had no great ill feeling — no ill feeling toward him at all. It was just simply that there were a lot of little things came up, different things and different opinions, and so forth, that made us unhappy, and under the circumstances I thought that going away would bring us together.”

The latter Hibernicism embodies the substance of Ner repeated explanations of why she left and stayed away from her husband. In another portion of her "testimony she says:

“I felt we were drifting apart, and the only thing "that would bring us together would be a separation. So I went away.”

In other words, she felt that:

“They would look better to each other when out of sight.”

She further testifies that after leaving her husband they corresponded, and she received letters from him every two or three weeks, all of which she destroyed when changing her boarding place in April, because she did not care to take them with her; that he sent h.er money whenever she requested it, and since she left had sent her a total of $78.

From the time claimant left her husband’s home in October, 1913, she did not see him again until the night of May 10,1914, when she arrived at the hospital in Mt. Clemens about midnight and sat at his bedside an “hour or two,” during which time she states that she—

“talked very little to him. Once in a while I spoke to him, and he knew me, recognized me, spoke my name, and once sang. I asked him not to sing, and he tried to rise, and he said: T always sang to you, and I think I can sing now.’ ”

After' she had been with him the length of time stated, she went to another room at the suggestion of one of the sisters, and did not see him again before his death, which occurred the next morning at 8 or 9 o’clock. She testified that when she went in and spoke to him he first asked how she could leave her school; that, when she inquired if he missed her, and had been lonesome without her, he said he had been—

“so lonesome. * * * You won’t leave me any more, will you? You will stay right here with me always?”

It is urged that claimant’s testimony sustains the statutory conclusive presumption of dependence in whole, because she is shown to have been living with her husband at the time of his death, it being said in her counsel’s brief:

“If ever husband and wife were living together, these two were when they met, became reconciled, and spent their last few hours as husband and wife together.”

While deceased’s feeling and attitude as to a “reconciliation” may be inferred’from his statement that he had been lonesome in her absence and his request that she “stay right here” with him “always,” it does not even appear she gave him any assurance that she acquiesced, or that anything further passed between them concerning her return, beyond his inquiry as to how she could leave her school, to which she responded she had “managed that all right.” Can it be said from her testimony, viewed most favorably to such contention, that, within the purpose and meaning of the statute, she was a wife living with her husband at the time of his death? She had just arrived from another State, where she was located and regularly employed as a teacher, coming, as she states, on receipt of “a.telegram from the claim agent, Mr. Le Fevre, of the Detroit United Railway, stating that my husband was badly burned, and for me to come to Mt. Clemens, to St. Joseph Sanitarium.” She was with him in his room, in the hospital to which others had taken him, for an hour or two after her arrival, and remained in the same building, but not with him, until his death on the following day. Leaving out of consideration the fact that they had been married and were not divorced, they were no more living in family relation, as such relation is commonly understood, than would have been any friend or relative who learned of his injury and visited him at the hospital under like circumstances for the same length of time. After she first withdrew from all conjugal relations, leaving her husband and their home of her own accord, they had no matrimonial abode, house, or home life together during the remainder of his life, and, so far as shown, no definite agreement that they ever would have. Conceding the claimed reconciliation, which was with her a condition of resuming the marital relations, they never did, or could, ré-establish a home and actually dwell together in fact.

The purpose and scope of this statute is compensation to dependents when death or injury befalls the workman. It touches no other property rights arising out of the domestic relations. Dependency in whole or in part is primarily and as a rule a question of fact to be determined as evidence may disclose, with the exception of an absolute presumption of dependency (irrespective of the facts) in case of husband and wife or minor children under specified conditions. No distinction is made between husband and wife in that particular. If a wife living with her husband is fatally injured in an employment coming under the act, the husband living with her at the time of her death is likewise conclusively presumed to be wholly dependent for support upon her, irrespective of what the real facts are. If the parties in this case were reversed, and it was the husband demanding in his favor conclusive presumption that he was wholly de-* pendent upon his wife because living with her at the time of her death, he would be equally entitled to it under the statute, but that he was living with her must be established before the presumption can be invoked. In this case the nature and character of claimant’s absence from her home and husband are undisputed, and, whatever reason, preference, or pretext she may have had for such course, it is manifest that she intended to and did sever their personal marital relations for an indefinite period with the possibility and the expectation, as she represents, that at some indefinite time in the future, after a reconciliation, they would be resumed. In the most favorable view, as she states the case, the husband'and wife were voluntarily living apart because they were not happy together, in different States, each following the pursuits and living the separate life led before marriage, but in friendly correspondence with each other and a possibility that the existing estrangement, whatever it was, might some time be reconciled and they live together again.

The Massachusetts workmen’s compensation act (Stat. 1911, chap. 751, pt. 2, § 7) contains provisions identical with those under consideration here. In construing the expression “with whom she lives” the supreme court of that State, in Re Nelson, 217 Mass. 487 (105 N. E. 357), holds that those words are “used in antithesis to living apart,” and mean—

“living together as husband and wife in. the ordinary acceptation and significance of these words in common understanding. They mean maintaining a home and living together in the same- household, or actually cohabiting under conditions which would be regarded as constituting a family relation. There may be temporary absences and incidental interruptions arising out of changes in the house or town of residence, or out of travel for business or pleasure. But there must be a home and a life in it. * * * But it is the situation arising from the existence of a common home, a place of marital association and mutual comfort, broken up or put in peril of hardship or extinction by the husband’s death, which is protected by the conclusive presumption of dependency established beyond the peradventure of dispute by the statute.”

No such state of facts is disclosed here.

In those cases where absence of the husband, by reason of employment or other common causes regarded as temporary, from an. established home in which he resided with his wife or family has been held not to negative the statutory presumption, it is nevertheless recognized that the family relations in intent and fact must otherwise exist unbroken. Even in the extreme case of Northwestern, Iron Co. v. Industrial Commission, 154 Wis. 97 (142 N. W. 271, Am. & Eng. Ann. Cas. 1915B, 877), cited and relied upon in claimant’s brief — with which the Nelson Case does not harmonize in all particulars — the rule is guarded, and it is made plain that a wife may not be construed as living with an absent husband where there is an actual separation in the nature of an estrangement at the time of his injury and there exists at that time an actual severance or break in the marital relations. In this case it is the wife who had voluntarily absented herself from her home and husband under just the conditions last above recited, and therefore the conclusive presumption of total dependence does not obtain.

The foregoing conclusions do not deprive claimant of the right to show actual dependence, total or in part, as a matter of fact. While there is in this record no proof nor conclusive presumption shown to sustain an award on the theory that she was wholly dependent for support upon deceased, either at the time of his injury or of his death, the board can and should review whatever evidence is produced, ascertain from it, and determine as the facts appear, the extent of her dependence upon deceased for support at the time of his injury, as in such cases provided.

The decision of said Industrial Accident Board is therefore reversed, and the case hereby remanded for such further hearing therein before said board as parties may desire.

Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Brooke, and Person, JJ., concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    PEOPLE v. DEHN.
    1. Constitutional Law — Food—Fraud—Adulteration—Sausage.
    Under Act No. 151, Pub. Acts 1913, 2 Comp. Laws 1915, § 6509 et seq., tbe title, “An act providing for tbe protection of tbe public bealtb and tbe prevention of fraud and deception, by prohibiting the sale, the offering for sale or exposing for sale or the having in possession with intent to sell, of adulterated or deleterious sausage; defining sausage; and prescribing the penalty for the violation thereof,” sufficiently complied with the constitutional requirements to include the offense of selling sausage containing more than 2 per cent, of cereal.
    2. Same — Police Power — Extent.
    The police power of a State embraces its whole system of internal regulation by which the State seeks not only to preserve the public order and to prevent offenses against the State, but also to establish for the intercourse of citizens with citizens those rules of good manners and good neighborhood which are calculated to prevent a conflict of rights and to insure to each the uninterrupted enjoyment of his own; it is «but another name for that authority which resides in every sovereignty to pass all laws for the internal regulation and government of the State.
    3. Criminal Law — Foods—Sausage—Definition.
    Sausage is an article of food composed of meat, salt and spices.
    4. Constitutional Law — Sale—Food Law — Sausage.
    And an enactment forbidding the sale of sausage containing more than two per cent, of cereal is not invalid because it exceeds the police power of the legislature, where it was designed merely to prevent fraud or deception, not to prohibit the sale of a deleterious article.

    Exceptions before sentence from Bay; Collins, J.
    Submitted October 28, 1915.
    (Docket No. 134.)
    Decided January 3, 1916.

      Carl Dehn was convicted of selling adulterated sausage, upon a verdict directed by the court.
    Affirmed.

      James L. McCormick, Prosecuting Attorney, for the people.

      Charles W. Hitchcock and De Foe, Hall & Converse, for respondent.

      As to what constitutes adulteration within the food and drug act, see note in L. R. A. 1915B, 774.

   Moore, J.

The respondent is charged with violating the provisions of Act No. 151, Pub. Acts 1913, in that he did—

“offer for sale, and did sell to James E. Helber, a certain quantity of sausage, to wit, one quarter pound which said sausage was then and there adulterated within the meaning of Act 151 of the Public Acts of the State of Michigan for the year 1913, said sausage then and there containing added cereal or vegetable flour exceeding 2 per centum, to wit, 6.22 per. centum, contrary to the provisions of the act aforesaid.”

After the testimony on the part of the people, and part of the testimony on the part of respondent was in, it was admitted by respondent that he sold sausage as charged in the information, containing more than 6 per cent, of cereal, and claimed the right to do so for reasons that will appear later. The trial judge directed the jury to bring in a verdict .of guilty, and after returning to the jury room they did so. The case is here on exceptions before sentence.

It was claimed below that respondent should have been discharged:

First, because said Act No. 151, Pub. Acts 1913, upon which said information is based, is unconstitutional and void for the following reasons: (a) Because the title to %aid act is not broad enough to include the offense so complained of; (b) because the provisions of said act prohibiting the sale of sausage containing vegetable flour or cereal in excess of 2 per cent, is contrary to the provisions of section 16 of article 2 of the Constitution of this State providing thát no person shall be deprived of life, liberty, or property without due process of law; (c) because the aforesaid, provisions of said law are contrary to the fourteenth amendment of the Constitution of the United States; (d) because said act prescribes a cruel and unusual punishment and excessive fine, contrary to the provisions of section 15 of article 2 of the Constitution of the State; (e) because the provisions of said act are-uncertain and indefinite, in that it is impossible to determine from said act whether the per cent, of cereal is to be by weight or volume.

(a) The title of Act No. 151, Pub. Acts 1913 (2 Comp. Laws 1915, § 6509 et seq.), reads:

“An act providing for the protection of the public health and the prevention of fraud and deception, by prohibiting the sale, the offering for sale or exposing-for sale or the having in possession with intent to sell, of adulterated or deleterious sausage; defining sausage; and prescribing the penalty for the violation hereof.”

The provisions of the act material here are as follows:

“Section 1. It shall be unlawful for any person or persons, by himself, herself or themselves, or by his, her or their agents, servants or employees, to sell, offer for sale;, expose for sale, or have in possession with intent to sell, sausage that is adulterated within the-meaning of this act. Sausage when used in this act shall be deemed, to include bologna, wiene-wurst and frankforts.
“Sec. 2. For the purpose of this act, sausage or sausage meat shall be held to be a comminuted meat from neat cattle or swine, or a mixture of such meats, either fresh, salted, pickled or smoked, with added salt and spices, and with or without the addition of edible animal fat, blood and sugar, or subsequent smoking. It shall contain no larger amount of water than the meats from which it is prepared contain when in their fresh condition.
“Sec. 3. For the purpose of this act, sausage shall be deemed to be adulterated:
“First, if it contains added water in excess of the quantity required to bring the amount up to that which the meats from which it .is prepared contain immediately after slaughter;
“Second, if it contains any cereal or vegetable flour, ❖ ❖
“Nothing in this act shall be construed as prohibiting the sale of sausage which when properly labeled shall conform to the following standard: Sausage shall not contain cereal in excess of two per cent. When cereal is added its presence shall be noted on the label or on the product. * * *
“Sec. 4. Any person who shall violate any of the provisions of this act shall be guilty of a misdemeanor, and upon conviction thereof shall be sentenced to pay a fine of not less than one hundred dollars, nor more than two hundred dollars, or to undergo an imprisonment of not less than thirty days, nor more than sixty days, or both or either, in the discretion of the court.”

The sufficiency of the title to acts to justify the provisions of the acts under them has been before this court repeatedly. See People v. Grocer Co., 118 Mich. 604 (77 N. W. 315); People v. Rotter, 131 Mich. 250 (91 N. W. 167). We think the title sufficient.

“B” and “C” may be considered together.'' The testimony is to the effect that the cereal used was a healthful article of food, and it is argued by counsel that the legislature is not authorized to prevent the sale of such food. We quote from the brief:

“This case therefore presents the question * * * as to whether or not the legislature of this State can prohibit the sale of a wholesome, nutritious, and noninj'urious article of food. We have no complaint of those provisions of the statute which require sausage to be labeled when cereal is. used; that to our mind is a wise and proper provision and if followed, will be ample protection to the public. * * * It is our contention that if the consumer prefers sausage made with cereal, or if he can afford to buy it when so made and not when manufactured of meat alone, or if the condition of his health will not permit him to eat sausage when made of pure meat, the legislature has no right and no power, under the Constitution of this State, to deprive that person of his right to purchase this wholesome article of food, nor to interfere with the business of the manufacturer in supplying this demand.”

Counsel for appellant cite in support of their contention Armour v. Dairy & Food Com’r, 159 Mich. 1 (123 N. W. 580, 25 L. R. A. [N. S.] 616) ; People v. Biesecker, 169 N. Y. 53 (61 N. E. 990, 57 L. R. A. 178, 88 Am. St. Rep. 534); Schollenberger v. Pennsylvania, 171 U. S. 1 (18 Sup. Ct. 757); State v. Hanson, 118 Minn. 85 (136 N. W. 412, 40 L. R. A. [N. S.] 865, Am. &, Eng. Ann. Cas. 1913E, 405; Collins v. New Hampshire, 171 U. S. 30 (18 Sup. Ct. 768); St. Louis, etc., Packing Co. v. Houston, 215 Fed. 553 (132 C. C. A. 65); and other authorities found in the brief. An examination of these cases will show they are not controlling of the case before us.

The record discloses that the sausage was sold in this instance for 15 cents a pound, that the cereal that goes into its manufacture costs 3% or 4 cents a pound, and that a pound of the cereal usually absorbs from 11/10 pounds to 2 1/5 pounds of water. It is evident that if respondent may legally use 6 per cent, of cereal, he may use 10 or 20 per cent., or any proportion which, in his judgment, can be mixed with the other ingredients without destroying the demand for his product. It is not claimed by the people that the cereal added to the meat made a product deleterious to health, but that it does lower the value of the sausage, and is a deception and fraud upon the purchaser, and that to avoid such a result the State has in the exercise of the police power the right to fix food standards, and that in the passage of the pure food law it is well within its rights. Courts recognize the difficulty of defining the police power of the State. It is, however, a power which will adapt itself to the constantly changing conditions of life. In 6 R. C. L., at page 186, it is said:

“Judge Cooley says that the police power of a State ‘embraces its whole system of internal regulation, by which the State seeks, not only to preserve the public order and to prevent offenses against the State, but also to establish for the intercourse of citizens with citizens those rules of good manners and good neighborhood which are calculated to prevent a conflict of rights, and to insure to each the uninterrupted enjoyment of his own so far as is reasonably consistent with a like enjoyment of rights by others/ and the courts have quoted this definition with approval many times. It has also been stated that the police power is but another name for that authority which resides in every sovereignty to pass all laws for the internal regulation and government of the State, and that it comprises that portion of the sovereignty of the State which was not surrendered by the terms, of the Federal Constitution to the central government. Finally, it has been said that by means of this power the legislature exercises a supervision over matters involving the common weal, and enforces the observance, by each individual member of society, of the duties which he owes to others and to the community at large.”

In the same authority at page 208 it is. said:

“The police power of the State is not limited to regulations necessary for the preservation of good order or the public health and safety. The prevention of fraud and deceit, cheating and imposition, is equally within the power, and a State may prescribe all such regulations as in its judgment will secure, or tend to secure, the people against the consequences of fraud, such as the prohibition of the sale of deceitful imitations of articles of food in general use, the requirement that goods sold should bear labels showing the ingredients, or the regulation of weights and measures, prohibiting the use.of coloring matter in articles of food, e. g., substitutes for butter, whereby purchasers might be deceived into believing that they were purchasing a genuine article, the regulation of the size of loaves of bread, and the prevention of deception as to the character or quality of goods offered for sale. * * * In general it may be said that a State may institute any reasonable preventive remedy required by the frequency of fraud, or the difficulty experienced by individuals in circumventing it, especially when other means have not proved to be efficacious.”

In Armour & Co. v. Dairy and Food Com’r, 159 Mich., at page 10 (123 N. W. 583, 25 L. R. A. [N. S.] 616), it is said:

“ ‘Sausage’ is defined by all the lexicographers as an article of food composed of meat, salt, and spices. See Worcester’s and Century Dictionaries. The people generally so understand it. The writer of this opinion would be compelled to admit that until very recently he had no knowledge that cereal was used in the manufacture of sausage.”

In St. Louis, etc., Packing Co. v. Houston, 215 Fed., at page 556 (132 C. C. A. 68), it is said:

“The word ‘sausage’ is defined by all the lexicographers as an article of food composed of meat, salt, and spices”.

—and we think it might be added that until recently the average purchaser of food would expect to get a product composed only of those articles if he inquired for sausage. In this connection the language of Justice Hooker in People v. Rotter, 131 Mich. 250 (91 N. W. 167), is helpful:

“Butter is a well-known commodity. From time immemorial it has had but one origin, viz., from the churning of milk or cream. Whatever may be said of the possibility of making a product from other compounds than milk or cream that shall closely resemble or be chemically identical with butter, the world has but one understanding of what is meant by the word ‘butter,’ and we must assume.that such is the sense in which our legislature used the term. 1 Comp. Laws, § 50, subd. 1. A fair inference from this statute is that the legislature undertook to prevent deception by preventing the sale of any yellow oleomargarine, and it undertook to accomplish this by the most effective means, viz., by prohibiting the coloring of oleomargarine yellow, thereby avoiding the embarrassment ■which, would otherwise arise from the necessity of proving in each case that deceit was used in selling it as and for butter.”

In State v. Ice Cream Co., 168 Iowa, 1, 17 (147 N. W., at page 201), it is said:

“We are not to say, and do not, of course, determine, that these defendants, or the association appearing in argument, or any particular person, is or has been guilty of any fraud or deception. The question is whether, without a standard, dishonest or unscrupulous manufacturers may do so. It is not practicable by any ordinary inspection for the purchaser to distinguish cheaper, low-grade ice cream from the better quality. Because of this, it is apparent from the matters which we have detailed that an opportunity is afforded for deception by selling an inferior quality of ice cream at the price of a better or more expensive grade. This was the case in the sale of oleomargarine. State v. Packing Co., 124 Iowa, 328 [100 N. W. 59, 2 Ann. Cas. 448]. * * * The purpose of the act in question was to prevent just such deception and fraud as would be possible without a standard, and it seems to us it cannot be seriously claimed that the statute will not accomplish the end sought.”

In State v. Campbell, 64 N. H. 402 (13 Atl. 585, 10 Am. St. Rep. 419), occurs the following:

“ ‘But the defendant takes the broader ground that the legislature cannot, under the Constitution, prohibit the sale of milk drawn from healthy cows which in its natural state falls below the standard fixed by the acts, unless such milk, or the article made from it, is in fact unwholesome or dangerous to public health/ * * * The difficulty of guarding against the adulteration of milk may have influenced the legislature in fixing a standard of richness. Practically it makes no difference whether milk is diluted after it is drawn from the cow, or whether it is made watery by giving her such food as will produce milk of an inferior quality, or whether the dilution, regarded by the legislature as excessive, arises from the nature of a particular animal or a particular breed of cattle. The sale of such milk to unsuspecting consumers for a price in excess of its value is a fraud which the statute was designed to suppress. It is a valid exercise by the legislature of the police power for the prevention of fraud and the protection of the public health, and as such is constitutional.”

In State v. Creamery Co., 83 Minn. 284 (86 N. W.. 107, 54 L. R. A. 466, 85 Am. St. Rep. 464), it is said:

“The defendant claims that this statute, in so far as it prohibits the sale of cream solely because it contains less than 20 per centum of fat, is unconstitutional, because it is unreasonable and not a proper exercise of the police power, is based upon an arbitrary classification, and is special legislation, and is an unlawful restraint of trade, and illegally restricts the citizen’s right to contract and to pursue a lawful calling*, and deprives him of his liberty and property without-due process of law.
“The section of the statute in question is- a part of the general statutes of the State, which were enacted to prevent deception in the sale of dairy products, and. its obvious purpose is to fix a standard for cream, and forbid the sale of any cream, as such, which is below the prescribed standard, whereby unsuspecting purchasers may be defrauded. It must be, and is, construed so as to effectuate such purpose. We accordingly hold that the statute in question forbids, and only forbids, the sale of cream, as such, which is below the prescribed standard. So construed, the statute is a proper exercise of the police power of the State, and is valid. Its constitutionality rests upon the same principles as does the validity of statutes prohibiting the sale of milk unless it contains a prescribed percentage of fat and solids, and other similar statutes. The constitutionality of such statutes has been uniformly sustained. Butler v. Chambers, 36 Minn. 69 (30 N. W. 308, 1 Am. St. Rep. 644, and notes); Commonwealth v. Evans, 132 Mass. 11; State v. Smyth, 14 R. I. 100 [51 Am. Rep. 344] ; State v. Campbell, 64 N. H. 402, 13 Atl. 585 [10 Am. St. Rep. 419]; City v. Cook, 38 Mo. App. 660. Counsel for the defendant, while practically conceding the validity of statutes fixing a standard for milk, and forbidding the sale of milk below such standard, seek to distinguish such statutes from statutes of the character of the one we are considering, for the reason that:
“ ‘Cream is a natural product, and, when not diseased or impure, is not only harmless, but beneficial as food and for many other purposes, whether it contains 10 per cent, of fat or 35 per cent, of fat. It is commonly known that there is no practice of adulterating cream as there is in the case of milk, nor of simulating it as in the case of butter, and that pure cream is wholesome, though it contains less than 20 per centum of fat.’
“We cannot take judicial knowledge of the supposed facts thus asserted; for if this is a matter in which we are required to take judicial notice of the facts, we know that it is entirely feasible to mix pure cream with a limited amount of milk, and produce a mixture which may be sold to the inexperienced as pure cream. Undoubtedly there is less necessity for a statute to prevent deception in the sale of cream than there is of one to prevent fraud in the sale of milk, because the latter may be classed as a necessity, and the former as a luxury, and its sale not as general as that of milk; but the distinction is one of degree, not of principle. In either case the legislature is the sole judge of the necessity and propriety of preventing deception in the sale of the article, by appropriate legislation. Powell v. Pennsylvania, 127 U. S. 678, 8 Sup. Ct. 992, 1257 [32 L. Ed. 253]. And the legislature, by this statute,, having, in the exercise of the police power, fixed a. standard for all cream to be sold as such, the act is valid.”

In the case of People v. Grocer Co., 118 Mich. 604 (77 N. W. 315), this court sustained a law fixing the standard ingredients of vinegar as a proper exercise of the police power, saying, in effect, that if it is contended the standard fixed is unreasonable, the question might very properly be addressed to the legislature. See, also, City of St. Louis v. Reuter, 190 Mo. 514 (89 S. W. 628); People v. Girard, 145 N. Y. 105 (39 N. E. 823, 45 Am. St. Rep. 595); Commonwealth v. Evans, 132 Mass. 11.

We think the legislation was within the police power.

We have considered the other assignments of error, and deem them not well taken.

The conviction is affirmed, and the case is remanded for further proceedings.

Stone, C. J., and Kuhn, Ostrander, Bird, Steere, Brooke, and Person, JJ., concurred.


author: Stone, C. J.

text:
    EHINGER v. GRAHAM.
    1. Intoxicating Liquors — Local Option — Time for Posting Copy of Petitions — Affidavits.
    Since the number of days required between the posting of local option petitions and the presentation to the clerk is to be determined by excluding the first and including the day of presentation, it was a sufficient compliance with the statute fixing the time at ten days to' make the affidavit as of the 8th of October showing the posting on the 28th of September. 2 Comp. Laws, § 5415; 2 Comp. Laws 1915, § 7083.

    2. Same — Petitions—Order of Election — Sufficiency.
    Where the board of supervisors passed a resolution without declaring that there was a sufficient number of names on the petition and also a later resolution for an election, reciting that the, petition contained the proper number of signatures, the order was not a lawful compliance with the act; the provision is mandatory that the board find the number of names on the petition was sufficient in the original resolution and the determination is declared by statute to be final as to. the fact. It is not sufficient to refer to the number of names in the order for an election: the resolution itself must show the jurisdictional facts.
    3. Same — Duty of Board.
    A session of the hoard is deemed to embrace all adjournments although they may extend into another month and the body is authorized by statute to adjourn their meetings from time to time as they may deem it necessary. 1 Comp. Laws, § 2475; 1 Comp. Laws 1915, § 2265.
    4. Same — Evidence.
    The presumption prevails that upon the reconvening of the hoard on an adjourned day it will perform its statutory duty in ordering an election.
    Certiorari to Ingham; Collingwood, J.
    Submitted December 21, 1915.
    (Calendar No. 27,069.)
    Decided January 3, 1916.
    Mandamus by Louis Ehinger against, William H. Graham, Ingham county clerk, to compel respondent to take necessary steps to hold a local option election in said county. From an order denying the writ relator brings certiorari.
    Affirmed.

      Warner, Raudabaugh & Person (John F. Henigan, of counsel), for relator.

      William C. Brown, Prosecuting Attorney (Walter 5. Foster, of counsel), for respondent.

      The general rule as to inclusion or exclusion of first and last days in the computation of time is discussed in notes in 49 L. R. A. 193, 15 L. R. A. (N. S.) 686.

   Stone, C. J.

The relator and appellant filed a petition in the circuit court for the county of Ingham on November 23, 1915, praying for a writ of mandamus to be directed to the respondent, requiring him to show cause why he did not proceed in accordance with the statute to submit the following question to the voters of Ingham county:

“Shall the manufacture of liquors and the liquor traffic be prohibited within the county”

—at the next general election for township officers in the several townships, villages and cities in said county. From the petition of relator and the answer of respondent we gather the following statement of facts: On October 9,1915, a petition from each of the several townships, wards and election districts within the county of Ingham was filed with the respondent as county clerk, praying that such question be submitted as above stated. These petitions contained 4,823 names.- At the last November election the highest number of votes cast for any State officer in said county was 11,262. The affidavits accompanying a portion of these petitions show that copies of said petitions had been posted as required by law on the 27th day of September, 1915, and that these affidavits had been sworn to on the 7th day of October, 1915. The affidavits attached to all the remaining petitions showed that copies thereof had been posted as required by law on the 28th day of September, 1915, and these affidavits were sworn to on the 8th day of October, 1915. The annual October session of the board of supervisors convened on October 11th, on which date the respondent, as county clerk, presented these petitions to the said board, and the same were, upon motion, referred to a special committee of three members of the board. On October 12, 1915, the said committee reported to the board as follows:

“To the Honorable Chairman and Members of the
Board of Supervisors :
“Gentlemen: Your committee appointed to look over the petitions asking that the local option question be submitted to the qualified electors at the next general election of the county, beg leave to report as follows: We find a sufficient number of names on the petitions and therefore offer the following, resolution: That it be and is hereby ordered that the question whether the manufacture of liquors and the liquor traffic be prohibited in Ingham county, under the provisions of Act 207 of the Public Acts of 1889, and the acts amendatory thereof and supplemental thereto, be submitted to the qualified electors of said county at the first general election of township officers in the several townships, villages and cities in Ingham county, to be held on the first Monday in April, 1916, to ascertain whether or not it is the will of the electors of the county that the manufacture of liquor and the liquor traffic should be prohibited within the limits of said county.”

[Signed by committee.]

On October 19, 1915, the aforesaid resolution was unanimously adopted upon roll call. Immediately thereafter, and on the same day, Supervisor Brown presented the following preamble and resolution which, upon roll call, was unanimously adopted:

“Order of Election.
“To ALL WHOM IT MAY CONCERN:
“Whereas, written application and petitions, addressed to the board of supervisors of the county of Ingham, have been received by the clerk of said county and filed in his office, praying that an election be held in and for said county of Ingham, under the provisions of Act No. 207, of the Public Acts of 1889, as amended, to ascertain the will of the qualified electors of said county, whether or not the manufacture of liquors and the liquor traffic should be prohibited within the limits of the said county; and whereas, at a session of the board of supervisors of said county, held at the courthouse in the city of Mason, in said county, on the 19th day of October, A. D. 1915, the said petitions were duly examined; and whereas, upon such examination it was determined and declared by resolution adopted by the said board that such election has been prayed for by the requisite number of electors, to wit, by not less than one-third of all the qualified electors of said county, and the affidavits accompanying said petitions as shown by reference to the returns and county canvass of the last preceding general election for State officers, held in said county:
“Now, therefore, it is ordered and directed by the board of supervisors of the said county of Ingham that an election be and the same is hereby called in the several townships, villages, cities and election districts in said county, pursuant to the provisions of the aforenamed act, to ascertain the will of the electors of said county; whether or not the manufacture of liquors and the liquor traffic should be prohibited within the limits of said county.”

Here followed the remainder of the order of the manner in which the question should be submitted.

During the same session, and without any recess or adjournment having been taken, the board, upon roll call, voted unanimously to reconsider the action of the board, both as to the' report and the resolution contained in the original report of the special committee, and as to the action of the board taken, on the preamble and resolution aforesaid, instructing the clerk to prepare ballots for the vote on the local option question. It was then moved that further action on the two resolutions be made a special order of business for October 22, 1915. Said motion was carried by unanimous vote upon roll call. The matter coming up on the 23d day of October, 1915, it was moved and carried unanimously that when the said board adjourn, they should adjourn until the second Monday in January, 1916. It was further moved and carried, unanimously upon roll call, to defer action on local option petitions until the second day of the January meeting.

At the hearing of this matter in the circuit court it was stipulated and agreed by and between the parties, through their respective attorneys, that the matters at issue in said cause and to be determined by the said court were as. follows:

(1) Had sufficient time elapsed between the posting of the petitions and the making of the affidavits thereto attached?

(2) Was the action of the board; of supervisors in passing a resolution and order of election sufficient and in accordance with law?

(3) Had the board of supervisors a right to reconsider their action taken in adopting the resolution and passing the resolution ordering the election?

(4) Was it the duty of the board to make final disposition of the petitions at the regular October meeting of the board, the same being the next regular meeting after the filing of said petitions?

The trial court answered thé first question in the negative, and held that the affidavits were prematurely made, and denied the writ of mandamus. The relator has brought the matter here upon writ of certiorari, and the questions involved have been presented and argued in the order above indicated.

The statute (section 5415, 2 Comp. Laws, [2 Comp. Laws 1915, § 7083]). provides that:

“An exact copy of said petition and of all the signatures thereto shall be posted in three of the most conspicuous places in the said township, ward or election district for at least ten days immediately prior to its presentation to the county clerk.”

The same section also provides that:

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

It is. the claim of the appellee that this proposition has been conclusively determined by this court in Crawford v. Board of Supervisors of Gratiot County, 160 Mich. 31 (124 N. W. 1103). In that case several of the affidavits were made on the day of the posting, and several on the succeeding day. In that case Justice Ostrander, speaking for this court, said:

“It is clear, therefore, and the fact appears upon the face of the affidavits that when they were made none of the affiants could truthfully have deposed, as the statute expressly requires that he should do, and as he did, that an exact copy of the petition ‘has been posted in three of the most conspicuous places. * * .* for at least ten days immediately prior to its presentation to the county clerk.’ We need not enter upon a discussion of the possible or probable legislative reasons for this express requirement. It is a requirement which may be easily complied with. We do not construe the provision as one requiring the affiant to depose that, after posting, the matter posted has. remained in position to the day of filing the petition with the county clerk. The original petitions are not required to be filed upon any particular day. The posting is not required to be done on any particular day. But when the petitions are filed, they must be accompanied by an affidavit stating two essential facts: One, that an exact copy has been posted; the other, that the posting occurred at least 10 days prior to the time of filing the original with the clerk. We have held that the statute confines the board of supervisors to the face of the petitions and the accompanying affidavits. It is obvious that no one can truthfully depose on the same day on which he posted a copy of the petition that the copy has been posted at least 10 days before its presentation to the county clerk.”

We cannot agree with the contention of counsel for appellee that the question here raised was disposed of in the Crawford Case. The question still remains: Were the affidavits prematurely made? Upon this question we are unable to agree with the learned trial judge. We think that the general rule gathered from the authorities may be stated in the following language:

As a general rule, where notice is required to be posted or published a specified number of days before an event of which notice is to be given, the required number of days is computed by excluding the day of first posting or publishing, and including the day on which the event is to occur.

In our opinion the affiants could truthfully depose upon the 7th day of October and the 8th day of October, respectively, that the copies of the petitions had been posted for at least 10 days immediately prior to their presentation to the county clerk. They had not then been presented to that officer.

We think .the rule laid down by this court in Chaddock v. Barry, 93 Mich. 542 (53 N. W. 785), is the rule which should be followed here: That where an act is to be done a certain number of 'days before, a day stated, then*that day is excluded in the computation; but where an act is to be done a certain number of days before another act, then the day on which the act is to be done is included. In the Chaddock Case Justice Long, speaking for this court, reviewed the earlier cases at great length, and said:

“We have examined the cases with considerable care, in order to deduce the proper rule of construction of this statute [relating to summons in justice court], so that in the future it cannot be said that there is confusion in the cases.; and the rule hereafter must be adhered to under this statute, excluding the day of service and including the return day in the computation of time.”

That case has been referred to and followed by this court in the following cases: Crozier v. Allen, 117 Mich. 171 (75 N. W. 300); Lemon v. Hampton, 128 Mich. 182 (87 N. W. 53); City of Port Huron v. Wright, 150 Mich. 279, 286 (114 N. W. 76). In the last-cited case the question arose as to the number of days a notice was required to be given of a meeting of the State board of assessors, the statute reading:

“The''notice of the time and place * * * shall" be published * * * at least five days before the time at which said assessor is required to appear.”

It appeared that the notice was first published on May 13th, and the day of hearing therein named as May 18th. Justice Carpenter said:

“The notice was sufficient under the following recent decisions of this court” (citing the cases above citéd).

See, also, In re Miller’s Estate, 173 Mich. 467 (139 N.W. 17).

In that case the question arose as to the service of a citation in the probate court. The service was made on September 4th, and the day fixed for the hearing ■was on September 18th. The statute provided the citation should be served on the alleged incompetent “not less than fourteen days before the time so appointed.” Justice Bird said:

“We think the service was made in season to comply with the rule laid down in Chaddock v. Barry.”

Holding as we do, therefore, that the affidavits complied with the law, it becomes necessary for us to inquire:

Was the action of the board of supervisors in passing a resolution and order of election sufficient, and in accordance with law? We are constrained to hold, in view of the plain and mandatory terms of the statute, that the resolution was ineffective, and was not a compliance with the statute. Section 5417, 2 Comp. Laws, as amended by Pub. Acts 1899, No. 183, § 6 (2 Comp. Laws 1915, § 7085), provides that:

“When upon examination, it shall appear to the said board, upon the face of said petitions, and by the transcripts of the poll lists, or by reference to the returns and canvass of the last general election, that such submission of said question has been prayed for by the requisite number of electors, as hereinbefore provided, they shall, by resolution, determine and declare to that effect, and such determination shall be final as to the sufficiency of the petitions and the requisite number of electors signing the same, and they shall thereupon issue an order directing that such question shall be voted upon at the next annual township election to be held in and for such county. Said order shall recite: The filing and examining of the petitions; the resolution determining and declaring that said petitions represent not less than one-third of all the qualified electors * * »* as shown by the transcripts of the poll lists, or the returns and canvass of the last preceding general election for State officers held in such county; the ordering of the question of prohibition to be submitted at the next general election for township officers in the several townships, villages and cities in the county, to ascertain whether or not it is the will of the electors of the county that the manufacture of liquor and the liquor traffic shall be prohibited within the limits of the county.”

It requires but a moment’s examination of the resolution adopted by the board to lead one to the conclusion that it did not determine and declare that it appeared to the board upon the face of said petitions “that such submission of said question had been prayed for by the requisite number of electors as herein-before provided,” the statute requiring that they shall, by resolution, determine and declare to that effect. The report of the committee in the instant case found the following:

“We find a sufficient number of names on the petition and therefore offer the following resolution”

—but nowhere in the resolution was there a determination as to what the petitions contained, or whether they complied with the statute. The resolution, which followed, appears to be simply an order that the question should be submitted to the qualified electors. It nowhere appears in that resolution that the board had made the finding which was essential that it should make in order to pass any resolution submitting the question. It is true that in the preamble of the order of election the following language may be found:

“Whereas, upon such examination it was determined and declared by resolution adopted by the said board, that such election has been prayed for by the requisite number of electors, to wit: By not less than one-third of all the qualified electors of said county, and the affidavits accompanying said petitions as shown by reference to the returns and county canvass of the last preceding general election for State officers, held in said county.”

Then follows the order for submission. This preamble refers back to the original resolution, which we have shown was not a compliance with the statute. It is well understood that the above provision of the statute is mandatory, and that until the board of supervisors has, by resolution, determined and declared that the submission of said question has been prayed for by the requisite number of electors, as provided for by the statute, it has no jurisdiction to order an election. There is nothing in the record of the proceedings of the board'to indicate that it, or even the committee to whom the petitions were referred, ever made the necessary determination that the submission of the question had been prayed for by the requisite number of electors. An examination of the decisions of this court upon this question will show the necessity of embracing this finding in the resolution. Friesner v. Common Council, 91 Mich. 504 (52 N. W. 18); Covert v. Munson, 93 Mich. 603 (53 N. W. 733); Giddings v. Wells, 99 Mich. 221 (58 N. W. 64); Thomas v. Abbott, 105 Mich. 687 (63 N. W. 984); Attorney General v. Circuit Judge, 143 Mich. 366 (106 N. W. 1113); Kern v. St. Clair County Supervisors, 160 Mich. 11, 14 (124 N. W. 941).

In this connection we have examined, also, People v. Hamilton, 143 Mich. 1 (106 N. W. 275). In that case it distinctly appeared that the board of supervisors had determined, as a fact, that the requisite number of electors had petitioned for a local option election. We are not here deciding that this whole determination might not be combined in one resolution, where the finding by the board is sufficient, but in this case the requisite finding does not appear as matter of fact. See, also, Madill v. Common Council, 156 Mich. 56 (120 N. W. 355).

The resolution should show the facts essential to jurisdiction, at least so far as concerns the existence and sufficiency of the petitions upon which it is based.

In our opinion the action of the board of supervisors was ineffectual, and insufficient in its finding, to warrant the calling of an election. It is therefore uniihportant whether the action that was taken was reconsidered, and rescinded or not. It is very evident that the board of supervisors had a duty to perforin, which was not performed, in this matter. But this is not a proceeding directed against the board of supervisors. That body has adjourned its annual meeting, which is required to be held in the month of October, to January 10,1916. A session of the board is deemed to embrace all adjournments, although they may extend into another month. Hubbard v. Winsor, 15 Mich. 146. The law gives the board of supervisors power to adjourn their meetings from time to time, as they may deem necessary. Section 2475, 1 Comp. Laws (1 Comp. Laws 1915, § 2265).

It is to be presumed that when the board convenes upon its adjourned day, it will perform its statutory duty in this matter. We think the circuit court reached the correct conclusion (although its reasons stated therefor were insufficient), and the judgment of the court below will be affirmed.

Kuhn, Ostrander, Bird, Moore, Steere, Brooke, and Person, JJ., concurred.


author: Ostrander, J.

text:
    SAVAGE v. CITY OF DETROIT.
    Municipal Corporations — Cities—Offices—Detroit Charter— Civil Service.
    Under the civil service provision of the charter of the city of Detroit, a candidate for the office of ward foreman who stood, highest in his examination of any of the candidates for the vacancy was entitled to the writ of mandamus to enforce thg right of relator to hold the office, which was filled by the commissioner of public works by the appointment of an applicant who did not possess the necessary qualifications, but who was not approved by the commission and whose name was later withdrawn. It was only a question of the man, and the relator was the right man for the position; respondents’ contention that some action of the appointing power was necessary did not apply to the facts shown, as the power seemed to be exercised, but in favor of an ineligible applicant. Kuhn, Bird and Brooke, JJ., dissenting.
    Certiorari to Wayne; Lamb, J., presiding.
    Submitted January 4, 1916.
    (Calendar No. 27,009.)
    Decided January 20, 1916.
    Mandamus by Robert Savage against the city of Detroit and others to compel the respondents to enforce the right of relator to hold an office under the civil service rules of the city of Detroit. An order granting the writ is reviewed by respondents on certiorari.
    Affirmed.

      James H. Pound, for relator.

      William E. Tarsney (Harry J. Dingeman, of counsel), for respondents.
   Ostrander, J.

The relator, Robert Savage, is qualified, according to the civil service rules of the city of Detroit, to fill the position of ward foreman. A ward foreman died. The commissioner of public works notified the civil service commission September 27, 1915, of the promotion or appointment of one Quit-man A. Smith to fill the vacancy, and asked the approval of the said commission. Smith was not, under the civil service rules, qualified to fill the place. No action was taken by the commission. Thereafter, on October 6, 1915, the commissioner of public works informed the commission that the appointment or nomination of Smith was withdrawn.

The relator, on October 5, 1915, filed a petition in the circuit court for the county of Wayne, in which he asked for an order requiring the commissioner of public works, the common council, the city of Detroit, and the civil service commission to show cause why he should not be appointed to take and hold the said position of ward foreman. He alleged, inferentially at least, that he headed the list of those eligible for appointment to the place. Respondents answered, admitting relator’s eligibility, by examination and civil service rules, to the position of ward foreman of the third ward, due to the death of the incumben,!, and asserting that:

“While a vacancy may exist in the position of ward foreman of the Third ward, relator is not entitled to said position until such time as request to fill said vacancy is made by the department head, and that at the time of answering said petition there is no such request pending before the civil service commission.”

There was a demurrer to the answer and the cause came on for hearing upon the petition, answer, and demurrer. The court ordered the writ to issue, and it was issued October 18, 1915.

We are referred by respondents particularly to section 9 of the local bill or act amending the charter of the city so as to' provide for civil service regulation for employees of the city. That sections reads:

“Sec. 9. The head of any department or office in which a position classified under this chapter is to be filled shall notify said commission of that fact, and said commission shall certify to the appointing officer the name and address of the candidate standing highest upon the eligible list for the class or grade to which such position belongs. íhe appointing officer shall notify said commission of each position to be filled separately, and shall fill such place by the appointment of the person certified to him by said commission therefor, which appointment shall be on probation for a period to be fixed by said rules. At or before the expiration of the period of probation the head of the department or office in which a candidate is employed may, with the consent of said commission, based upon the written reasons submitted to them, discharge him. If not discharged prior to the expiration of period of probation, his appointment shall be deemed complete. To prevent the stoppage of public business or to meet extraordinary exigencies, the head of any department or office may, with the approval of the commission, ’ make a temporary appointment to remain in force not exceeding sixty days, and only until regular appointment under the provisions of this chapter can be made. * * * The commission may give preference as between eligibles of equal rating, to those having dependent families, or those who, in any previous employment, have shown skill and adaptation for the particular work for which the labor is required, and said commission shall have authority to give preference for common labor to persons who by reason of advanced age or physical impairment or extreme need, they may deem entitled to same. No person shall be eligible to the position of ward foreman of any ward other than the one in which he resides.”

The provisions, of sections 8 and 13 and 14 are also relevant:

“Sec. 8. From the returns of the examination held by the commission, it shall prepare an eligible list for each grade or class of positions in the competitive classified service of the city of persons whose general average standing upon examinations for such grade ■or class is not less than the minimum fixed by the rules, of such commission, and who are otherwise eligible, and such persons shall take rank upon the eligible list as candidates in the-order of their relative excellence as _ determined by examination without reference to priority of time of examination. In the event of more "than one applicant receiving the same mark at an examination, priority in time of filing application shall determine the order in which their names shall be placed on the eligible list. The commission may strike ■off names of candidates from the eligible list after they. have remained thereon one year. But any list may be ■extended by the commission for a period not exceeding one year.”
“Sec. 13. Immediate notice in writing shall be given by the appointing power to said commission of all appointments, permanent or temporary, made in such •classified civil service, and of all transfers, promotions, .resignations or vacancies from any cause in such service, and of the date thereof, and a record of the same shall be kept by said commission. When any office or place of employment is created or abolished, or the ■compensation attached thereto altered, the officer or-board making such change shall immediately report it in writing to said commission.
“Sec. 14. The civil service commissioners shall certify to the controller all appointments to offices and places in the civil service of the city, subject to their rules, and all vacancies occurring therein, whether by dismissal, resignation or death. Neither the controller of said city nor any other officer concerned in the auditing or paying of any salary or wages or other claims shall approve the payment of or be in any manner concerned in paying any salary or wages to any person, subject to such rules, for services of an officer or employee in said city, before the appointment of such person to the city service has been certified by said commission to the controller, nor after the vacation, of such person’s office or employment shall have been, so certified.”

It does not appear that the place — the position or employment of ward foreman — has been abolished. It does appear that in the particular ward two ward foremen had been employed. There being a vacant place, the relator heading the list of eligibles, and being a resident of the ward, it is asserted by counsel for relator that he is inducted into the place by operation of law. On the contrary, respondents contend there must be some action of the appointing power before such a place can be filled. The judgment of the appointing power may be in such cases exercised to determine whether the public interest demands that a vacancy shall presently be filled, to deny which is to continue the maximum number of places and employees unless a place, or position, is formally abolished, regardless of the public necessity.

In my opinion, the position of relator is unsound, and that of respondents is sound. But the facts do not support the theory upon which respondents’ argument is based. On the contrary, the facts support the conclusion that it wa§ intended to fill the place. The appointing power was exercised in favor of the wrong man. It was and is a question only of the man, and relator is the right man. Therefore, no question being raised as to this method of determining relator’s right, the judgment may be, and is, affirmed.

It is suggested, however, whether the civil service act does not contemplate that matters of this nature shall be settled by action of the civil service commission, and not by the courts, and whether, therefore, relator ought not to have first presented the facts and his grievance to that body.

No costs are awarded.

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

Kuhn, J. I am of the opinion that relator ought to have first presented his grievances to the civil service ■commission, and therefore should be denied relief here.

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


author: Brooke, J. Ostrander, J.

text:
    COOK v. KENT COUNTY BOARD OF CANVASSERS.
    1. Municipal Corporations — Cities — Certiorari — Canvass oe V otes — Election.
    Section 9 of Act No. 279, Pub. Acts 1909 (1 Comp. Laws 1915, § 3312), in relation to annexing territory to a city or municipal. division, requires that the election shall be conducted, in such manner as to keep‘ the votes of the territory to be annexed separate from the other portions of the city, village or township, and if the majority in both distinct portions is favorable to annexation it shall carry. Held, that a favorable vote of each territorial division to be annexed should concur before the proposition could be said to have prevailed, and that the home rule provisions of the Constitution would not permit the construction contended for by the board of canvassers.
    2. Constitutional Law — Municipal Corporations — Districts — Legislative and Senatorial Divisions.
    Under Art. v, §§ 3, 4, of the Constitution, a provision for the preservation of senatorial or legislative districts was essential to the validity of the annexation and a proceeding withdrawing territory from one legislative district and annexing it to .another without preserving or providing for the proper districting could not he upheld. It effects an unconstitutional alteration in the boundaries of the legislative districts, and a provision for this purpose should be contained in the order submitting the matter to a vote. Oakman v. Board of Supervisors, 185 Mich. 359 (152 N. W. 89).
    Error to Kent; Perkins, J.
    Submitted October 15, 1915.
    (Docket No. 101.)
    Decided January 24, 1916.
    Certiorari by Percy T. Cook against the Board of County Canvassers of Kent County, to review the action of said board in declaring the result of an election relative to the annexation of certain territory to the city of Grand Rapids, and returning that the vote was in favor of annexation. Judgment for defendant. Plaintiff brings error.
    Reversed.

      Taggart & Taggart, for appellant.

      Edward N. Barnard, Prosecuting Attorney, and William K. Clute, Assistant Prosecuting Attorney, for appellees.

      Freeland & Munshaw, for certain residents of annexed district.
   This is an action in which the plaintiff by writ of certiorari sought to review the action of the defendant board in its canvass and return upon the question as to the annexation of certain territory to the city of Grand Rapids under section 9 of Act No. 279, Pub. Acts 1909 (1 Comp. Laws 1915, § 3812). The pertinent facts appear to be as follows:

On September 12, 1914, there was filed with the clerk of Kent county a petition for the submission of the question of annexation of certain territory in the townships of Paris and Wyoming to the city of Grand Rapids. After said petition was filed and considered by the board, the following resolution was passed:

“Resolved that the form of the question to be submitted to the voters aforesaid shall be in substance as follows: ‘Shall the following territory be annexed to the city of Grand Rapids?’ [Here follows the description of certain territory in the township of Paris and certain territory in the township of Wyoming.] It being intended to include in said territory the N. W. quarter of section 7 .of Paris township, all of Sec. 12, and the S. E. quarter of Sec. 11 of Wyoming township, of said county of Kent, and State of Michigan.
“Yes. [ ].
“No. [ ].”

The question was submitted in such form to the voters at a charter election held April 5, 1915, at which time that portion of Paris township proposed to be annexed voted Yes 63, No 23. That part of Wyoming township proposed to be annexed voted Yes 127, No 142, and that portion of the two townships not to be annexed, voting collectively with the city of Grand Rapids, gave a large majority in favor of annexation. The returns of the election were filed with the county . clerk, and the board of canvassers canvassed the same, and declared that such annexation carried. Plaintiff, a resident and taxpayer of the township of Wyoming, procured a writ of certiorari to review the action of the board of canvassers. He asserted that the action of said board was erroneous and invalid for the following reasons:

“First. Because the statute under which the said election was submitted requires the affirmative vote of that part of any township proposed to be annexed, taken separately from the rest of the township or from the vote of any other township.
- “Second. That it appears from the face of the returns that the said election did not carry as to the township of Wyoming.
“Third. Because the construction of the law allowing the voters of Paris township to decide whether or not a portion of Wyoming township should be annexed is unconstitutional and void, in that: (a) It is an unlawful and unconstitutional delegation of the legislative power inherent in the legislature to the voters of Paris township; (b) in that it usurps the right of the township of Wyoming to decide for itself whether it and that portion thereof proposed to be annexed desire such annexation.
“Fourth. Because said annexation ignores the right of self-government inherent in a township as a constitutional subdivision of the State, and permits one township to control and meddle in the management of the public interest of the other township.
“Fifth. Because it cannot be assumed that the voters of Paris township assumed to do more than to signify their assent to the annexation of that part of their own township proposed to be annexed.
“Sixth. Because said board exceeded its jurisdiction in so returning as aforesaid that the said election had carried in Wyoming township, and such finding was contrary to the fact.
“Seventh. Because said attempted annexation is unconstitutional, in that it changes the representative and senatorial districts of the State in violation of the State Constitution.
“Eighth. Because the action of the said board of canvassers is contrary to the laws of the State of Michigan, and a usurpation of judicial authority not vested in them by any law of the State.”

The return to the writ of certiorari was filed by defendant board through the prosecuting attorney, who at some stage in the proceedings filed a written opinion to the effect that said contemplated annexation was wholly void, because it violated section 4, art. 5, of the Constitution, in that it effected changes in the representative and senatorial districts of the State. The learned circuit judge held the proceedings to be regular and the annexation of the territory in question to have been legally accomplished. Plaintiff now seeks a review of that determination in this court.

Brooke, J.

(after stating the facts). The first proposition is stated by appellant as follows:

“That the proper construction of the act under which annexation was attempted requires a majority vote in favor of such annexation in that part of each township sought to be annexed voting separately, not collectively, from any other township or part of any other township.”

Section 9 of the act involved reads as follows:

“The district to be affected by every such proposed incorporation, * * * or change of boundaries shall be deemed to include the whole of each city, village or township from which territory is to be taken or to which territory is to be annexed: Provided, that proposed consolidations or changes of boundaries shall be submitted to the qualified electors of the city, and to the qualified electors of the city, village or township from which the territory to be taken is located, and at the election when said question is voted upon, the city, village or township shall conduct the election in such manner as to keep the votes of the qualified electors in the territory proposed to be annexed or detached in a separate box from the one containing -the votes from the remaining portions of such city, village or township, and if the returns of said election shall show a majority of the votes cast in the district proposed to be annexed, voting separately, to be in favor of the proposed change of boundary, and if a majority of the electors voting in the remainder of the district to be affected as herein defined, voting collectively, are in favor of the proposed change of boundary, then such territory shall become a part of the corporate territory of the city or shall be detached therefrom, as the case may be.”

This section provides that the question shall be submitted to the qualified electors, that the portion of the “city, village or township” to be annexed shall vote separately from the remaining district of such “city, village or township,” and then continues:

“And if the returns of said election shall show a majority of the votes cast in the district to be annexed, voting separately, to be in favor of the proposed change of boundary, and a majority of the electors voting in the remainder of the district to be affected, voting collectively, are in favor of the proposed change of boundary, then such territory shall become a part of the corporate territory of the city, or shall be detached therefrom as the case may be.”

It is the contention of the defendants that the words “district proposed to be annexed” should be construed to mean either a part of a single township to be annexed or the several parts of two or more townships which might in one proceeding be annexed. Plaintiff’s contention is that the “district to be annexed” means that portion of each township to be annexed, and that the statute requirement of a majority vote in the “district to be annexed” means that that portion of each township to be annexed must vote affirmatively before annexation can follow.

While it may be conceded that the language of the statute, without straining, will support either of the foregoing views, we are of opinion that the contention of the plaintiff should be sustained as being more nearly consonant with justice and with the principles of local self-government which have been so frequently enunciated by this court. The evils which would flow from .a contrary holding seem to be very well illustrated in the case before us. That .portion of Paris township proposed to be annexed is but 160 acres in area. It immediately adjoins the city of Grand Rapids upon the south, and is apparently much more densely populated than that portion of Wyoming township which adjoins it. The territory proposed to be taken from Wyoming township consists of about 800 acres, being the whole of section 12 and the southeast quarter of section 11. Section 11 nowhere abuts upon the city, but lies immediately to the west of section 12. To permit the favorable minority in that portion of Paris township to be annexed to overcome the adverse majority in that portion of Wyoming township to be annexéd would, in our opinion, be contrary to the spirit of section 9, and, we believe, under a fair construction of the language, .it is likewise contrary to its express terms.

This conclusion upon the first point raised by appellant disposes of the question so far as he is concerned. It still leaves, however, for determination, the legality of the annexation so far as it affects Paris township. That question must be determined by ascertaining whether the contemplated annexation is in violation of the State Constitution, in that it effects an unconstitutional alteration in the boundaries of the legislative and senatorial districts. This particular question was before us in the recent case of Oakman v. Board of Supervisors, 185 Mich. 359 (152 N. W. 89). We there said:

“It is said that Act No. 279 is inadequate, in that no provision is made for maintaining the integrity of the representative district of which the territory proposed to be annexed is now a part. This claim is based upon article 5, §§ 3 and 4, of the Constitution. # * *
“The powers conferred by Act No. 279 should be read in the light of these constitutional provisions; and, when so read, it will result in this: that, when favorable action of the board of supervisors upon a petition for annexation is followed by a consenting vote of the electorate, territory can be annexed for city purposes, but not so as. to affect the integrity of the representative district. This may be accomplished "by including in the order of submission a provision for annexation of the particular territory for all purposes, save for the one purpose of electing representatives to the State legislature. The annexed territory would then become a part of the city for all voting purposes, save those in which a representative was voted for. This construction would make effective the act, and at the same time would satisfy the constitutional provisions. * * * While no express provision' exists, we think the power to provide in the order of submission a provision to preserve the integrity of the representative district can be implied from the general powers granted. When the power to annex is conferred upon the board of supervisors and the electorate, we think it carries with it the implied power to make such incidental orders as become necessary to-make the power conferred effective.”

Commenting upon this decision, the learned circuit judge used the following language:

“If, as held in the Oakman Case, the power of the board of supervisors to provide for the preservation of the integrity of the representative district may be implied from the general powers granted by this act, it follows as a logical sequence that the like power may be implied to rest in the voter who votes on the question of annexation submitted to him. It cannot be assumed that either the board of supervisors or the voter, in the absence of any showing to that effect, violated the law in the performance of duties pursuant to and within the provisions of an act of the legislature which has been held to be constitutional. Nothing is contained either in the act in question, in the proceedings of the board of supervisors, or in the vote taken pursuant thereto that in any way interferes with the existing representative district in these townships. It is not mentioned. It is'not conceived, therefore, how proceedings in any way interfere with or change that district. That difficulties may arise in the matter of polling places, registration and the like are not matters for the court, but for the legislature, to consider.”

We are of opinion that the conclusion upon this point reached by the learned circuit judge is erroneous. While we held in the Oakman Case that it was within the power of the board of supervisors to provide in the order of submission for the maintenance of the integrity of the representative district, we have never held that a proceeding without such provision baldly withdrawing territory from one legislative district and annexing it to another could be upheld. In the case of Smith v. City of Saginaw, 81 Mich. 123 (45 N. W. 964), the annexation was held valid because the act of consolidation expressly provided for the maintenance of the territorial integrity of the legislative districts. A situation exactly like that presented by the case at bar was considered in Attorney General v. Holihan, 29 Mich. 116, the holding in which the court, by its decision in the Oakman Case, intended neither to overrule nor question.

The judgment of the court below is reversed, with direction to issue the order as prayed. No costs will be awarded.

Stone, C. J., and Kuhn, Bird, Moore, Steere, and Person, JJ., concurred with Brooke, J.

Ostrander, J.

I concur in the conclusion of Mr. Justice Brooke upon the first point decided. I am constrained to concur with the conclusion upon the .second point, but upon the ground stated by me in Oakman v. Board of Supervisors, and not upon the ground .stated by Mr. Justice Brooke.


author:
Bird, J.
      Ostrander, J.

text:
    ANDREWS v. ELLSWORTH.
    1. Venue — Jury Trial — Criminal Law — Fishing—Game Law. The jurisdiction of offenses against the game law for taking fish from the waters of Lake Huron, in violation of Act No. 213, Pub. Acts 1909, as amended by Act No. 97, Pub. Acts 1913 (2 Comp. Laws 1915, § 7673 et seq.), is in the counties mentioned in 1 Comp. Laws, § 2450 (1 Comp. Laws 1915, § 2249), and the county of Bay might lawfully try an offense-committed in the waters of Lake Huron adjacent to the county of St. Clair, no exception as to any class of offenses being made from the language conferring jurisdiction.
    2. Same — Vicinage—Jury.
    It has long been the policy of this State to create and maintain a vicinage for the trial of offenses committed on the waters of the Great Lakes different from the one ordinarily applying to criminal cases.
    3. Same — Constitutional Law — Jury oe Vicinage — Statutes— Fish and Game Law.
    Though it is a general rule that the county is the vicinage fixing the venue of a criminal prosecution, there are exceptions where justice requires, and the statute giving jurisdiction of offenses not committed in the limits of certain counties, upon the waters of one of the Great Lakes, is not unconstitutional because it creates a larger jurisdiction than the county unit.

    Certiorari to St. Clair; Tappan, J.
    Submitted January 21, 1915.
    (Docket No. 108.)
    Decided February 4, 1916.
    Habeas corpus by Bert Andrews against Robert E. Ellsworth to determine the jurisdiction of a justice of the peace of Bay county to hold petitioner for violating the game and fish law. An order discharging petitioner from custody is reviewed by respondent on certiorari.
    Reversed.

      James A. Muir, for petitioner.

      Grant Fellows, Attorney General, and L. W. Carr,. Assistant Attorney General, for respondent.

      On jurisdiction over the Great Lakes see note in 46 L. R. A.-277.

   Bird, J.

Complaint was made before one of the justices of the peace in Bay county, charging petitioner with having violated the provisions of Act No. 213, Pub. Acts 1909, as amended by Act No. 9¡7, Pub. Acts 1913 (2 Comp. Laws 1915, § 7673 et seq.), the same being an act to regulate the taking of fish in the waters of the Great Lakes. The commission of the offense was described as having taken place in the waters of. Lake Huron, bordering on the county of St. Clair. A warrant based upon the complaint was issued, and the same was executed by Eobert E. Ells-worth, the respondent, in the county of St. Clair, where petitioner resided. Petitioner insisted that he was illegally detained thereunder, and therefore «sued out a writ of habeas corpus from the circuit court for the county of St. Clair, and upon a hearing thereof he was released from custody, on the ground that the justice’s court in Bay county had no jurisdiction of the alleged offense.

The trial court was of the opinion that section 2'450, 1 Comp. Laws (1 Comp. Laws 1915, § 2249), which gives concurrent jurisdiction to certain counties, including Bay and St. Clair, of offenses committed on the waters of Lake Huron, did not apply to offenses of this character which were local in their nature, but applied to transitory actions, like offenses committed on boats navigating the waters. But he held that, if the section did apply to such offenses, then it was unconstitutional, because it violates the constitutional provision which guarantees to respondent the right of trial by a jury of the vicinage. Section 2450, referred to, provides that:

“The counties of Saginaw, Mackinac, St. Clair, and Chippewa, and such other counties now organized, or that may hereafter be organized, upon the shore of Lake Huron, shall have jurisdiction in common of all offenses committed on that part of Lake Huron which lies within the limits of this State; and such offenses may be heard and tried in either of said counties in which legal process against the offender shall be first issued, in like manner, and to the same effect, as if the offense had been committed in any part of either of said counties.”

We think the distinction made by the trial court between local and transitory offenses cannot be sustained. The language of the statute is clear and unambiguous. It states in unmistakable terms that the counties named “shall have jurisdiction in common of all offenses committed upon the waters of Lake Huron.” No class of offenses is excepted therefrom, either expressly or by inference, and therefore we can except none.

The foregoing statute in its present form was passed by the legislature in 1885, but was simply a reenactment of an old statute, with slight changes, which was passed by the first legislature of the State. Similar laws were passed with reference to Lake Michigan, Lake Erie, Lake Superior, and Lake St. Clair (chapter 84, 1 Comp. Laws (1 Comp. Laws 1915, chap. 69), and these enlarged jurisdictions have been recognized as valid by this court. People v. Coffey, 155 Mich. 103 (118 N. W. 732). These acts very clearly indicate that it has been the policy of the State, ever since it began its existence, to create and maintain a different vicinage for the trial of offenses committed on the waters of the Great Lakes from the one prescribed for the rest of the State. People v. Bouchard, 82 Mich. 156 (46 N. W. 232, 9 L. R. A. 106). The reason for creating an enlarged vicinage for the trial of offenses committed upon the Great Lakes is „ obvious, on account of the great difficulty which would be encountered in determining in which of the bordering counties the commission of the act took place. It is quite evident that the necessity of the situation was what gave rise to this enlarged vicinage. While the general rule is that the county is the vicinage, there are some exceptions thereto where justice demands it. Illustration of this is seen in the exception to the rule giving to the adjoining counties of the State concurrent jurisdiction of offenses committed on and within 100 rods of the boundary line between them. The difficulty of determining in certain cases upon which side of the line the offense was committed gave rise by necessity to an exception to the rule.

Another exception to the rule is the statute providing for the change of venue; this is an enlargement of the vicinage in the interest of the administration of justice. The fixing of the boundaries of a vicinage is a legislative function, and it has been exercised in this State by the legislature declaring that the county shall be the unit in which jurors shall be selected to try offenses committed therein, and this rule has been steadily and consistently adhered to, save in unusual cases where the proper administration of justice demanded an en-r larged jurisdiction. We see nothing in this section which indicates that the legislature has exceeded its powers. It has created an enlarged vicinage for the trial of all offenses committed upon the waters of Lake Huron, because the vicinage of the county would be an impracticable one. If these jurisdictions are larger than they should be, it must be remedied by the legislature, and not by the courts. We are therefore of the opinion that the justice of the peace in Bay county, before whom this complaint was made, had jurisdiction to entertain it. Having arrived at this conclusion, we think the other questions presented on this record should be presented to that court.

The judgment of the lower court is reversed, and one will be entered therein , denying the prayer of the petition for the writ of habeas corpus.

Stone, C. J., and Kuhn, Moore, Steere, and Brooke, JJ., concurred with Bird, J.

Ostrander, J.

• In my opinion the statute is valid, and applicable, but the order of this court should go no further than vacating the order of the circuit court.

The late Justice McAlvay took no part in this decision.