text:
    PEOPLE v. EDWARDS.
    Intoxicating Liquors — Criminal Law — Local Option — Number op Saloons.
    Under an information charging respondent with engaging in business as a liquor dealer in a village where only one saloon was authorized by Act No. 291, Pub. Acts 1909 (2 How. Stat. [2d Ed.] § 5093), another liquor dealer having first secured a license during the year, and respondent obtaining a subsequent permit, no proof should have been received that local option had been adopted in the county in 1910, and had been repealed in 1912, without averments to such effect in the information ; it was insufficient to charge that the issuance of a license to respondent was “illegal and contrary to the provisions of Act No. 313, Pub. Acts 1887, as amended,” and that the village contained less than 500 population: the adoption of prohibition and subsequent repeal were material elementa of the offense to be alleged and proven.
    Exceptions before sentence from Lapeer; Smith, J..
    Submitted January 21, 1913.
    (Docket No. 119.)
    Decided March 22, 1913.
    Thomas Edwards was convicted of selling intoxicating liquor illegally.
    Reversed, respondent discharged.

      Herbert W. Smith, Prosecuting Attorney, for the people.

      B. F. Beed, for respondent.
   Steere, C. J.

Respondent was convicted in the circuit court of Lapeer county on October 21,1912, of having engaged in the business of selling intoxicating liquors at the village of Clifford on May 1st to the 15th, 1912, in violation of the provisions of Act No. 313, Pub. Acts of 1887, as amended. He has removed the case to this court on exceptions after conviction and before sentence.

The moral turpitude in this case, if any, appears to rest primarily with the trustees of said village, who, either through ignorance or design, laid the foundation for trouble and litigation by attempting to simultaneously authorize two saloons in their municipality where only one could be legally licensed, according to the population. Clifford is an incorporated village of 308 inhabitants, located in Lapeer county, which county adopted local option, prohibiting the sale of intoxicating liquor within its boundaries, at the spring election of 1910, and on resubmission of the question to its electors in the spring of 1912 returned to the license system. Section 39 of Act No. 291, Pub. Acts 1909, concludes as follows:

“It is understood that in counties that have adopted local option or may hereafter adopt the same and after-wards vote to return to the license system, there may be established saloons not to exceed one to every five hundred inhabitants of any township, village or city in said counties.”

Shortly after the result of the spring election of 1912 was known, respondent and a man named Jacob Yerden became spirited rivals for a license to engage in the saloon business in said village. On April 8, 1912, each filed an application with the village council for a license, each therefor using an old form of blank not complying with the requirements of the liquor law then in force. The council, however, assumed to act on them tentatively, laying Yerden’s on the table and accepting respondent’s contingently, providing that various things should be done and promised by him before his bond should be accepted. Various proceedings were had by and before the council while the first defective applications were pending, .and favorable action was ultimately attempted on both; but, the county treasurer refusing to issue licenses on them, they were then abandoned and new applications, complying with requirements of the statute, each sworn to by the applicant on April 25th, were presented to the council and accepted at a meeting held April 26th, together with the accompanying bonds, which seem to have been the same ones presented with former applications. The village clerk, who produced the records of the council and verified them, testified, under objection, that the record of the proceedings of said meeting of April 26th correctly indicated what occurred and the order of business then transacted; that, in fact, Yerden’s application and bond were acted on first, just as the entry thereof appears in the record. The application and bond of both Yerden and respondent were accepted and approved at this meeting. Both filed the same with the county treasurer, paid the license fee, received the receipt and notice provided for, posted the same up in their respective barrooms, and opened their saloons for business on May 1, 1912.

When arraigned, respondent declined to plead, and a plea of not guilty was entered in his behalf. Thereupon his counsel moved the court to quash the information for various reasons, which amounted, in effect, to a demurrer to the same. This motion was overruled, and the trial proceeded. Objection was first made to the introduction of any testimony under the information and during the trial seasonable objections were made, and exceptions taken, to properly preserve respondent’s rights.

There was little dispute as to the facts; the principal contention being over their admissibility and sufficiency under the information. The population of the village of Clifford and its corporate organization were admitted. It was proved, and not denied, that respondent ran a bar in his hotel and sold intoxicating liquor there during the time charged. The records of the village council were introduced and proof made of the proceedings before and by that tribunal, followed by proof of issuing the two licenses as before stated. After having rested, the prosecution was permitted, against objection, to reopen the case, and introduce certain records to show “that the so-called local-option law went into effect on May 1, 1910, and out of force April 30, 1912.” To this counsel for respondent further objected specifically, for the reason that the information did not charge that local option was ever adopted in the county, or that the county ever returned to the license system, being two things necessary to prove in order to make out a prima facie case and therefore necessary to allege in the information. No testimony was introduced by respondent and a motion for a directed verdict in his favor was denied. The case was submitted without argument to the jury.

In his charge, after briefly reviewing the testimony; the court said, amongst other things:

“So I say to you, gentlemen, that for the purposes of this record, as a matter of law, the respondent is guilty as charged, and, while I cannot oblige you to render a verdict convicting him, I say to you it is your duty after you have entered your jury room to return a verdict of guilty in this case.”

The first portion of the information filed against respondent charges him in the usual and familiar form with engaging in the sale of intoxicating liquor—

“ Without first having his application for a license to engage in said business accepted and approved by the village council of the said village of Clifford, and without having a bond approved by said village council, and without having paid to the county treasurer of the said county of Lapeer the annual tax required by law to be paid, to wit, five hundred dollars, and without having a receipt and notice of the payment of such tax posted up in the place where said liquors were kept for sale, he, the said Thomas Edwards, not being then and there a druggist,” etc.

With nothing further to qualify this portion of the allegations, a violation of the statute is charged. But, inasmuch as the proof would show without controversy that respondent had made application to the village council and presented a bond, that said council had approved the same, that he had paid the annual tax and posted up a receipt and notice thereof in his place of business, the information proceeds with an allegation of these facts and an averment of their invalidity, charging that the incorporated village of Clifford contained but 308 inhabitants; that on April 26, 1912, the council of said village approved the application, and accepted the bonds of Jacob Yerden before those of respondent; that the action of said council in approving the application and bond of respondent and the issuing of a license to him by the county treasurer were “illegal and contrary to the provisions of Act No. 313 of the Public Acts of the State of Michigan for the year 1887, as amended.” The particulars in which and the reason why the same is contrary to the provisions of said act are not stated. The reasons claimed at the trial, and sought to be proved, are that Lapeer county had at one time been under the local-option law and returned to the license system. The information is silent upon that subject. It does not aver facts sufficient to negative the validity of the official action through which respondent obtained his license, and it shows that he had a license, in obtaining which his personal conduct was in compliance with law. The case would necessarily turn on the unlawful conduct of the village council, which would furnish respondent no protection if properly alleged and proven to be unlawful.

Were it not for the claimed, but not alleged, facts that local option was once adopted and the license system again resumed in Lapeer county, the information in its latter part states a complete defense to its earlier charge that respondent was selling in violation of the statute. The allegation that the population of the village was less than 500, standing alone, imputes no illegality to the proceedings under which respondent’s license was issued.

It is generally held that courts cannot, unless required by statute, take judicial notice of the local adoption of a general law by the votes of cities, counties, or villages, unless the statute particularly relates to functions of government, and in harmony with that rule the adoption of local option has been so treated, and we think so held, in this State. People v. Adams, 95 Mich. 541 (55 N. W. 461); People v. Keefer, 97 Mich. 15 (56 N. W. 105); People v. Bennett, 107 Mich. 430 (65 N. W. 280); Paul v. Benzie Circuit Judge, 169 Mich. 452 (135 N. W. 283); People v. Murphy, 93 Mich. 41 (52 N. W. 1042). In the latter case it is said:

“ It is contended by the prosecution that the court was authorized to take judicial notice that prohibition was in force in Yan Burén county. Without passing upon the question of whether it would be competent for the legislature to provide that the resolution or enactment of the board of supervisors be treated as a general law, of which courts may take judicial cognizance, it is sufficient to say that by the very clear provisions of the act in question the legislature negatived any such purpose, but has prescribed what’ shall constitute the evidence of the fact that the provisions of the law are in force in a particular county.”

The information as framed renders the former existence of local option in Lapeer county a material fact necessary to constitute the offense, and therefore necessary to be set forth with certainty in the information before it can be proven at the trial. The rule on that proposition is elementary and citation of authorities superfluous.

Counsel for the prosecution contend that this was a matter of defense, to be shown by the accused, citing numerous authorities holding that in pleading a statute it is not required to negative exceptions not within the enacting clause. We do not regard that rule as applicable to the situation presented by this information. Here acts complying with the statute are shown which negative the previous allegation of its violation, and then, by way of avoidance of those acts which purport compliance, it is claimed, and necessarily must be proven to convict, that extraneous facts exist from which the invalidity of such acts necessarily follows.

We conclude that the motion to quash the information, should have been granted. The conviction must therefore be set aside, and respondent discharged.

McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred. Moore, J., did not sit.


source: Caselaw Access Project

author: Steers, C. J.

license: Public Domain

text:
    YEOMANS v. BOARD OF SUPERVISORS OF IONIA COUNTY.
    1. Trial — Mandamus—Findings.
    Findings of fact made on the trial of issues framed in mandamus are taken as true in appellate proceedings.
    3. Mandamus — Laches—Claims Against Counties.
    Where relator in mandamus to compel the board of supervisors to levy a tax to pay for services rendered in the establishment and construction of a drain, had delayed enforcing his order or claim for seven years, having knowledge or notice that the proceedings to establish the drain had been declared void in a former cause, the delay constituted laches fatal to the claim.
    3. Same — Notice—Public Officers.
    Knowledge obtained by relator as a member of the board of supervisors, relative to pending litigation attacking the validity of drain proceedings, should be treated as notice to him personally so as to charge him with the duty of acting promptly in the enforcement of any rights arising out of said proceedings.
    Certiorari to Ionia; Davis, J.
    Submitted January 28, 1913.
    (Calendar No. 25,362.)
    Decided March 21, 1913.
    Mandamus by Walter Yeomans against the board of supervisors of Ionia county to compel respondent to levy an assessment to pay a drain construction order. An order allowing the writ is reviewed by respondent on writ of certiorari.
    Reversed.

      John Nichol and B. A. Hawley, for relator.

      James Scully and Frank G. Miller, for respondent.
   Steers, C. J.

This is a proceeding in certiorari, brought here by respondent, to review the action of the circuit court of Ionia county, allowing a writ of mandamus to compel respondent, at its October session, 1912, to order spread upon the tax rolls of the townships of Campbell and Boston, in said county, a certain tax, assessed by the county drain commissioner prior to the October, 1911, session of said board, to defray the costs of laying out and constructing a certain drain, called the ‘5 Campbell Creek drain,” as apportioned and assessed against said townships by said drain commissioner, for benefits at large, and the several amounts apportioned against the tracts and parcels of land in said townships, as described in the special assessment rolls alleged to have been filed by the county drain commissioner in the year 1911.

Relator filed his petition for said writ of mandamus on the 16th of October, 1911, alleging that he held an order, by purchase, for the sum of $46.50, issued to David C. Crawford for services in the survey of said drain, which order was unpaid, and for the payment of which no provision had been made, setting forth in detail various proceedings leading up to, and resulting in, an assessment of the tax in question, and charging a refusal of said board of supervisors to act favorably thereon. To this petition respondent, on November 6, 1911, made and filed a lengthy answer, admitting certain of the allegations in relator’s petition, denying others, reciting a chronological history of the Campbell Creek drain, with a statement of many facts and reasons in justification of its refusal to act affirmatively in the matter and to order the alleged drain tax spread as demanded.

On January 29, 1912, relator, in preparation for trial, presented to the court 56 issues framed on the petition and answer, which were later adopted by the court as the issues to be submitted to and passed upon by the court or jury at the trial. The case was brought on to be tried before a jury in the circuit court of Ionia county on June 28,1912, and the trial progressed regularly in that form until taking of testimony was concluded. Thereupon, apparently by some arrangement between court and counsel, the details of which are not fully stated, the jury was discharged and the case taken under advisement by the court. In the introduction to his finding of facts the court says:

“ It having been conceded in open court at the close of the evidence by counsel for relator and respondent that there was no question arising in the cause for a jury to determine, said jury was discharged by the court, and, a demand for the special findings of fact and law having been duly made in this case by the relator, the court finds the facts and law to be as follows

The findings of fact and conclusions of law by the court were filed on September 17, 1912. They follow in numerical order and dispose of the issues which had been previously framed and adopted. Matters stated in the petition or answer, but not denied, and upon which no issues were framed, are not reviewed. In disposing of the legal questions involved, these also are to be taken as true.

The findings occupy over 12 pages of the printed record. Many of the facts there found appear in the statement of Nash v. Kenyon, 151 Mich. 152 (115 N. W. 45), and need not be repeated now. That litigation involved, up to a certain point, the same proceedings relative to the Campbell Creek drain which are in controversy here. In that case Nash & Son, plaintiffs, held certain drain orders issued against said drain, and, on demurrer to their declaration, it was found, from the record, that the board of' supervisors had refused without just cause to order a tax for payment of the same spread on the rolls of the proper townships. This court held plaintiffs could not maintain an action for damages against defendant Kenyon, who, as drain commissioner, issued the orders, the action being brought on the ground that, by reason of the illegality of the drain proceedings, malfeasance in office was imputable to him, and that he was in consequence personally accountable for resulting damages; and the demurrer was sustained. That case was begun September 13, 1905, in Ionia county, and was finally decided by this court February 15, 1908.

The Campbell Creek drain was originally laid out and established in 1873 and 1874, and the proceedings detailed in Nash v. Supervisors, supra, which are also involved here, primarily arose from a petition, filed with the commissioner in 1901, for cleaning out said drain. It is set up in respondent’s answer, and appears undisputed in this record from exhibits made a part of said answer, that in November, 1903, Kenyon, the fhen drain commissioner, with two men named Emery and Johnson, as relators, applied to the court of Ionia county for a writ of mandamus to compel the board of supervisors to take the same action now sought to be compelled. Walter Yeomans, relator here, was then chairman of the board of supervisors, and as such signed respondent’s answer, setting forth the reasons why said board should not spread said tax for the Campbell Creek drain, being the same reasons set forth in this answer. The order for $46.50 which relator here is seeking to collect had then been issued, and its validity was necessarily involved in that proceeding. The same drain proceedings were in controversy, the same points raised, and the same alleged tax litigated as before us now; and, after full hearing, the side which Yeomans then represented prevailed, the application for mandamus being denied. No appeal was ever taken from said judgment, and it yet stands unreversed in that court, adjudicating invalid the proceedings upon which the order relator is seeking to collect is based.

It is alleged in respondent’s answer, and not denied, that relator was the owner of the order for $46.50, which he is now seeking to collect, when, in 1903, as a member of the board of supervisors, he denied the validity of the proceedings on which it is based, and actively assisted in successfully contesting the same. Said order was issued by the drain commissioner October 6, 1902, and fell due March 15, 1904. He, or those from whom he obtained it, and with whom he was in privity by successive ownership, held this order during all the intervening years, up to the commencement of this mandamus case in October, 1911, without taking any steps to collect or enforce the same. He knew as early as 1903 the attitude of respondent in relation to if. Conceding that the judgment rendered in the mandamus case in 1903, sustaining the answer which relator signed as chairman of the board of supervisors, does not now raise an estoppel by judgment against his taking a contrary position in this mandamus case, because he acted in a representative capacity then and acts in a personal capacity now, he is nevertheless the same individual, and his participation, though official, in that case, gave him familiar knowledge of all the facts involved and issues raised. He then knew that the board refused to authorize the tax in question, and why. He inevitably had, and carried, that knowledge with him as a private citizen, no matter how he came by it. With that knowledge, he, as a private citizen, stood by and acquiesced in that refusal for eight years thereafter, though the courts were open to him to personally assert his rights and enforce his claim at any time after his order fell due in the spring of 1904.

Mandamus is a discretionary writ, and has been said to often partake of the nature of a bill in equity for specific performance, wherein stale claims are not favored, and nonaction for a period covered by the statute of limitations imports abandonment, and imputes laches to the dilatory suitor. Whatever its form, this proceeding is in purpose but an action to collect a debt. Mandamus proceedings for that purpose are not different from any other suits. Hosier v. Higgins Township Board, 45 Mich. 340 (7 N. W. 897). Following by analogy the statute of limitations under former decisions of this court, we think relator’s claim has become stale by inaction, and its enforcement is barred by laches. In People, ex rel. Owen, v. Lincoln Township Board, 41 Mich. 415 (49 N. W. 925), denying a writ of mandamus, this court said:

“Where six years have elapsed since the issuing of township orders for work and labor performed, and payment was refused nearly that long ago, they cannot be enforced. The laches is too great.”

In Avery v. Township Board, 73 Mich. 622 (41 N. W. 818), it was held that an unexplained delay of over six years in demanding payment of highway or township orders, or instituting proceedings to collect the same, amounts to such laches as to bar relief.

As these conclusions dispose of the case, it becomes unnecessary to consider the many other interesting questions raised.

The judgment is reversed.

Moore, McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


author: Steere, C. J.

text:
    REIMERS v. SAGINAW-BAY CITY RAILWAY CO.
    Street Railways — Negligence — Personal Injuries — Highways and Streets — Duty to Use Care.
    Applying the rule that a motorman is not limited to avoiding a collision on the track when horses become frightened by the operation of the car, but must guard, so far as possible, against injury to others resulting from such frightened animals, whether on or off the tracks, it is held, in a case brought to recover for the motorman’s negligence in operating the car and frightening a horse by the loud ringing of the bell, that there was no evidence of gross or wanton negligence as claimed by plaintiff.

    Error to Saginaw; Gage, J.
    Submitted January 30, 1913.
    (Docket No. 54.)
    Decided March 21, 1913.
    Case by Elizabeth Reimers against the Saginaw-Bay City Railway Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed; new trial refused.

      Weadock & Weadock, for appellant.

      Gallup, Bogner & Gallup, for appellee.

       As to frightening of horse by street car, see notes in 34 L. R. A. 482; and 21 L. R. A. (N. S.) 283.

   Steere, C. J.

Plaintiff recovered a verdict and judgment in the circuit court of Saginaw county against the defendant for the sum of #1,500 in an action for personal injuries which she claimed to have received on February 17, 1911, by reason of the gross negligence of one of defendant’s employés.

Plaintiff was a Russian woman about 50 years of age, who at the time of the accident complained of had resided in the city of Saginaw for some eight or nine years. She was a widow with four children; she and they earning a livelihood by caring for sugar beet crops in the adjacent country, taking contracts therefor by the acre before the time of planting. On the day in question she hired a fellow countryman by the name of Fahnenstiel to take her into the country with his horse and buggy for the purpose of interviewing a farmer for whom she had previously worked, and with whom she contemplated making a contract relative to his anticipated beet crop for the ensuing season. The fellow countryman called at her house in the morning with his horse and buggy, and they drove out to the farmer’s place as arranged, returning some time before noon. On the way going and coming they crossed the Pere Marquette Railroad tracks, on which were numerous engines moving back and forth, ringing bells, emitting steam, etc., and also met and were overtaken and passed by several street cars and automobiles, which in no way frightened or disturbed the horse. On their return, while driving southerly into the city along North Washington avenue, on the west side of the street car track which traverses that thoroughfare, a car came up from behind and the motorman rang his gong as he approached, when the horse became frightened, started to gallop, and ran down the street in the same direction the car was going, for about 400 feet, to a point where a farmer’s Ooncord buggy stood at a hitching post on the west side of the street. The driver did not succeed in stopping the horse, but guided him in his course successfully, until, as he claimed, in attempting to pass the Concord buggy, he turned to the west, towards the curb, and his buggy struck a hitching post, tipped over, and threw them both out. Neither then appeared to have sustained much injury. Plaintiff arose, and in a short time took the next street car downtown. Her fellow countryman went after his horse, which had broken loose from the buggy and gone on. She testifies, “When he pulled him into the side, that is, where the buggy tipped over,” that she felt herself to have been hurt, and took the street car down town to see her doctor; that she suffered severe pains, went home and was laid, up for eight weeks, it developing that sh9 was suffering from a floating kidney. She knew it was a floating kidney because she felt it, and her doctor told her so.

It is the testimony of Fahnenstiel, the owner of the horse, that it was 13 years old, of steady and reluctant habits, very tame and gentle, being “ one of the gentlest horses in the county of Saginaw,” not afraid of steam cars, street cars, automobiles, puffing of steam or ringing of bells; that it had never become frightened or ran away before, though he had driven it much around Saginaw “when the street cars were ringing frequently;” that it was a ‘' fair running horse,” compared with a fast runner, and on this exceptional occasion when it was running away it ran with all its might and nearly as fast as the street car, which, the testimony of others showed, was running not to exceed 8 or 10 miles an hour; that he was unable to account for its unusual fright on this occasion, except by the sudden ringing of the gong of the street car. Other witnesses, de circumstantibus, who were near by, ascribe this manifestation of fear and activity on the part of the horse to “a testing machine” which flitted by on the other side just at that time going 30 miles an hour, the tester being one of those recent developments of our complicated civilization appurtenant to automobile factories, who, in the work of trying out a new machine, at times suddenly and unexpectedly appears and disappears on’the highways in a skeleton automobile in a cloud of dust or mud as the case may be. At the conclusion of the testimony, defendant’s counsel moved the court for a directed verdict in its favor, for the reason that the testimony disclosed no actionable negligence on its part, which motion was denied.

The negligence charged against defendant in plaintiff’s declaration is that it failed to employ careful, competent, experienced, and prudent servants, drove its car at an unreasonable and improper speed of 20 miles an hour, failed to keep its car under proper control so as to stop within a reasonable .distance; that it wilfully sounded its gong on its car in such a wanton and improper manner that it would and did frighten the horse hitched to the vehicle in which plaintiff was riding—

“And did, through a wanton, negligent, and wilful disregard of the apparent danger to the said plaintiff, continue to drive its said car along and upon the said highway and especially along and upon its said west tracks on said North Washington street, at a high rate of speed, after it became and was apparent to the said servants, agents, and employés of the said defendant that the said horse hitched to the said vehicle in which the plaintiff was riding, as aforesaid, had become and was greatly frightened and unmanageable, and after its servants, agents and employés saw or should have seen that by reason of the blocking and obstructing of said street by the other vehicle, as aforesaid, that unless it did so stop its said cars it would result in’injury to the plaintiff so riding behind the said animal hitched to said vehicle, as aforesaid, and wantonly, negligently, and wilfully drove its said car so close to the rear of said vehicle in which the said plaintiff was riding, as aforesaid, that the defendant forced the said horse and vehicle in which the plaintiff was riding into a pocket.”

The trial court submitted the case to the jury on the last proposition only, saying:

“Gentlemen of the jury, the only question, then, that I submit to you in this case with regard to the negligence of the defendant in this case is as to whether this motorman, after he discovered or should have discovered, by the exercise of reasonable care and caution, that this horse was beyond control, failed to take such precautions as a prudent man would have done under the circumstances to prevent this accident. That is as to whether he used such care and caution as was his duty to use to stop his car, if he saw it was necessary to do so, in order to prevent an accident occurring.”

This issue was raised by the allegations in the fourth count of plaintiff’s declaration, added by amendment, charging gross negligence in operating the car. In behalf of defendant, it is contended that, under the undisputed evidence, considered in its most favorable aspect for plaintiff, the capsizing of the buggy in which she was riding must either be attributed to the mismanagement and negligence of her driver, which, as between her and defendant, must be imputed to her, or, in the nature of things, it is to be regarded as an unavoidable accident, based on the great truth, promulgated centuries before street cars and Automobiles came to bless, or vex, mankind, that “an horse is a vain thing for safety,” even though he may be “one of the gentlest horses in Saginaw county,” and the modern doctrine of discovered negligence, last clear chance, or gross negligence, has no application. This calls for a consideration of the disputed and undisputed testimony claimed to have a bearing on that proposition.

It appears, undisputed, that, on the occasion in question, plaintiff was riding with her driver, south along the west side of North Washington avenue, in the city of Saginaw, behind an old, well-broken and gentle horse, accustomed to, and never before known to be afraid of, automobiles and street cars, or their noises. They were in a single, top buggy, with the top up, “ inclosed as much as a top buggy can be,” with the side and back curtains on, it being a cold day, the rear curtain having a glass in it about two by four or five inches in size, and the front open, giving a clear view forward, to and past the horse. That portion of Washington avenue is 100 feet wide, 43 feet of which are paved, a double line of defendant’s street car tracks running along the center; beyond the curb, on each side, the balance of the street is devoted first, to 18 or 19 feet of lawn or grass plat, beyond which is about 6 feet of sidewalk and then about 3 feet of lawn to the lot line. The distance from the outer side of the west rail of the west car track to the west curb is about 14.9 feet. As they were driving along this space about 9 feet from the track, a street car going in the same direction on the west track came up behind them and when near, but before reaching them, the motorman sounded a warning with his gong in the usual manner. It is testified by witnesses, and not disputed except by the statement of others that they did not see it, that at the same time the skeleton, or chassis, of an automobile, covered with mud, passed rapidly by on the opposite side of the car from where plaintiff was riding, going in the opposite direction. The horse suddenly became frightened, jumped to the right, or west, and started ahead along the street *on a gallop, going straight away practically on its former course, well outside of the track and near the west curb. The street was clear in front, with the exception of a single rig, consisting of a horse and Concord buggy, standing by the west curb about 400 feet away, the horse headed south and hitched to a post at the curb, the right wheel of the buggy within a foot or 18 inches of the curb. This vehicle was about 5 feet 4& inches wide at the hubs. When the running horse approached the rig standing hitched by the ■curb, the driver guided him to the right, onto the curb, intending, as he states, to pass by the standing rig on the •grass plat to the west, fearing, if he tried to pass on the left, to the east, he would be caught by the car which was following. As he pulled the horse to the west, over the curb, the buggy collided with a hitching post, north of that at which the rig by the curb stood, and capsized. The occupants went over with the buggy, freed themselves from the top, and got up. Plaintiff testified that where she fell “ was clear, just only the grass there.” The car which had followed behind stopped nearly opposite where the accident occurred. The cars used by defendant overhung the rails on which they ran one foot 8-£ inches on each side. The extent to which plaintiff was injured was a matter of serious dispute, but, in any aspect of the case, would not be a question for the court, nor for review here.

In support of the charge of gross negligence, counsel for plaintiff urge there was abundance of evidence for the jury to find:

(1) That the horse took fright from 400 to 500 feet north from the point of injury.

(2) That the motorman, when 30 feet in the rear, saw the horse when it first took fright, and saw it running all of the time.

(3) That the motorman saw and knew the blocked condition of the street from the time the horse first began to run.

(4) That the motorman gained 10 feet on this light driving horse, running at frightened speed and stopped his car alongside of the Bender rig hitched to the post.

(5) That the motorman, in view of these facts and his admitted knowledge of them, wantonly and recklessly pursued this frightened horse for upwards of 400 feet, even gaining 10 feet on the rig in that distance and forced the .plaintiff to choose between the two perils, as explained heretofore, with a wanton and reckless disregard of the plaintiff and her rights.

The claim that plaintiff’s driver was forced to choose between two perils is mathematically presented from the testimony as follows:

“ The space open for plaintiff’s driver to pass through with his frightened, runaway horse was 6 feet 2-| inches. His buggy was 5 feet 4^-inches wide. Therefore the clearance of his buggy, was only 9^-j- inches, or substantially 5 inches on each side.”

This is necessarily on the assumption that the car would have been directly opposite the Concord buggy standing by the curb at the exact time plaintiff’s driver attempted to pass it. He testified there might have been room even to drive past to the west of the rail “ if a man would drive slow, but not in an accident like that.” As his horse went down the street, it was necessary to swerve but little out of his course to pass, and, if in doing so he went upon the track at all, he needed to be there but an instant. We think the testimony of Fahnenstiel and plaintiff herself, not only fails to show that the car was there to form ■a “pocket,” but, on the contrary, that it was entirely back of them. That the car was closely following them, and fear of it caused the driver to endeavor to go round to the right, over the curb along the lawn, past the post he struck and trees he says were there, instead of swinging to the left on the clear, paved street, may be conceded. The vital question is whether appellant is legally responsible for the consequences of his doing so. This is not a case of a collision on the track resulting from the car not being under control. On the danger of a collision and the necessity of leaving the paved street, the strongest statements of plaintiff are as follows: That “there was nothing in the street but a buggythat her—

“ Horse was right up to the other buggy, could not get out of the way on account of the street car. * * * He had to turn the horse in order to get away from the street car. The street car was right up with us all the way down and it was right there when it tipped over. * * * He couldn’t hold it. The car was too close and the horse got frightened all the time.”

But on further examination she also testifies that she did not see the car at all until after the accident, as follows:

(lQ. You didn’t see the street car that the bell rang on at all, did you, that morning, that was back of you ?
“A. I couldn’t see it. They struck the bell and the horse got unmanageable. * * *
“Q. Can you tell us anything at all about how far back of you the car was when they rang the bell or whether it was near to you ?
“A. I didn’t look around, I don’t know how far.
“Q. Well, it sounded near, didn’t it ?
“A. Yes.
i(Q. You knew that it was a warning to you to keep off the track ?
“A. Yes.
(‘Q. Just like they always do ?
“A. Yes.
“Q. And that was all there was to it ?
“A. Yes | he tapped the bell three or four times, four or five times.”

And along the same lines Fahnenstiel, the driver, testifies:

“The car followed me. I tried my best to hold the horse. I seen the wagon ahead of me. When I came close to the wagon, I looked around. The car was right next to me pretty close. I couldn’t have any chance to get through. It was danger for the life; so I drive the horse to go out on the other side. I pull on the other line when the horse got near the wagon. The wheel struck the hitching post. The buggy tipped over, and we both got out. The horse broke the crossbar and the thill, and broke the two lines, * * * and then the car kept going, gained on me. There is a glass in the hind end of my buggy. * * *
“Q. How far was the street car from you when the gong rang?
“A. The first time I couldn’t tell you, I wasn’t close enough.
“Q. You couldn’t see it at all ?
“A. No, sir. * * *
“Q. You didn’t see it at any time from that time until you turned off, did you ?
“A. I didn’t see the car before I turned. * * * I
said there was a little window in the back of the buggy. * * *
“Q. How long did you spend looking out through that little opening in the back ?
“A. Not very long.
“Q. When you did look back, how far behind you was the car ?
“A. From two to three rods. * * *
“Q. When you came up nearer the other wagon you turned on the grass plat ?
“A. Yes.
“Q. You didn’t attempt to drive to the left at all and cross ?
“A. I didn’t. * * *
“Q. The car was still back of you 50 feet all the way ?
“J,. No, sir; the car gained on me. I looked back afterwards to find out, when I got near the other buggy. * * *
“Q. You knew from seeing there that there was 14 or 15 feet between the curb and the west rail ?
“A. Just about that I think.”

That the horse was running away is in a sense true, but this expression is relative. He had been frightened and started running, and at the time of the accident the driver had not recovered control of his speed, but was guiding his course along the street, and, according to his own testimony, was also able to turn around and look through the little window in the rear curtain, and observe the proximity of the car before deciding to turn to the right off from the pavement.

Aside from the testimony of plaintiff and her driver that their horse was running very fast and the car kept up with them, the testimony of other witnesses as to the speed of the car was that it was not running fast. The estimate of rate by various witnesses, some of whom were apparently disinterested passengers, was from six to ten miles an hour, the highest estimate given being that of the motorman, who says:

“At the time I first tapped the bell, I believe I was going between eight and ten.”

He testified: That later he was going slower, had shut off the current, and was “floating”; that all the way along he was about 20 feet behind the rig and between 20 and 30 feet distant, when it turned to the right; that he had taken up the slack in his brake and had the car all the time under full control, going then between 6 and 8 miles an hour. All he noticed was that the horse was galloping, but it was ahead of him, going straight, clear of the track, between it and the curb. He could not see the driver, and did not know the horse was not under control. That he watched, keeping his eye on it all the time. That, when the horse was turned to the right against the post, he stopped his car with the front end opposite the rig hitched to the post, which, according to other evidence, was 15T*V feet south of the post plaintiff’s rig collided with. She testifies:

“When I stood up, the car was right opposite where our buggy was.”

Several other witnesses also testified that the car stopped opposite the place of the accident. This shows conclusively that the car was far enough back to permit plaintiff’s rig to pass the Concord buggy, on the track if necessary, without interference, and the testimony of the motorman that he had his car under control and was watching is not disputed. He brought his car to a stop at that point, and did so, as is testified to by the conductor, after the accident at the post, for the purpose of going over to see if they could give any assistance, and not in an emergency to avoid an impending accident on the track.

While there is some conflict of testimony as to the speed at which the horse was running, whether or not he was running as fast as he could, whether he appeared to be running away, and other matters of like nature, the controlling and essential facts are substantially established without serious issue. The accident did not occur at a crossing or on the track. It occurred in the middle of a block, and was caused by the driver of the horse guiding him from a direct course down the street to one side, where a hitching post, against which he ran, stood inside the curb. The car complained of was running on its regular route, at its regular speed, and, when the horse by the side of the track started up and began to gallop, the car continued on its course, following behind. There was nothing to indicate to the motorman that the driver could not guide the horse. He testified that, though he saw it galloping, he did not know it was running away or was beyond control. He was far enough in the rear for the rig to safely pass the standing buggy. The top of the buggy was between him and the horse. It was going straight along the street, clear of the track, and 29 or 30 feet ahead. It is his undisputed testimony that he slackened speed, cut off the current, took up the slack of his brake, was watching the horse, and had his car under control. He had a right to continue on his course, in the usual manner until it was apparent to him the plaintiff was in danger. If he had his car under control, and was sufficiently back to leave the width of the street for the rig to pass the conveyance by the curb, he did not drive it into a pocket, or jeopardize its safety in that particular. That he was sufficiently far back is clear, and his testimony that he had his car under control is confirmed by the stop he made when the driver turned and ran against the post. He could not anticipate the driver would turn in the direction he did. The indications were that he could, and the facts were that he did, guide the horse; and the natural expectation would be that he would continue down the paved street, passing to the left of the standing rig by the curb. While the motorman was not allowed to give his views as to the room and the opportunity for the rig to pass on that side, it does appear that he was watching the horse, had cut off the current, slackened speed, and had control of his car as they approached that point. Apparently it was the fear of the driver of the rig that the motorman had not done so which caused him to turn towards the side where he could not have as wide and unobstructed a course to pass by the buggy at the curb, and for this misapprehension only it would scarcely be contended that defendant is legally responsible.

Plaintiff’s counsel say that the rule in this State which governs the case before us is found in Chauvin v. Railway, 135 Mich. 85 (97 N. W. 160); McClellan v. Railway Co., 105 Mich. 101 (62 N. W. 1025); Montgomery v. Railway Co., 103 Mich. 46 (61 N. W. 543, 29 L. R. A. 287); McVean v. Railway, 138 Mich. 263 (101 N. W. 527). In each of those cases the' injury resulted from a collision with a car on the track, and the duty of the motorman to control and stop his car before it struck plaintiff was held to be an issue for the jury. In Montgomery v. Railway Co., supra, the motorman did not have his car under proper control, and ran down a member of a band in a street parade. The band drowned the noise of the car and the warning given by its bell. The court there said:

“The motorman knew that the band was ahead of the car. He recognized the danger of those on the west side being blown upon the track. He saw Grinnell, and knew he was in close proximity to the track, heard the band playing, and knew that the noise of the approaching car would be liable to be drowned by the noise of the band; yet, if the testimony of the plaintiff’s witnesses be true, he did not slacken his speed. He kept the lever in next to the fastest notch, at least until within a few feet of these parties; and the testimony shows the car must have been under considerable speed, as it ran over 30 feet after causing the injury, though the motorman claims to have stopped it as soon as he could after it struck. * * * In the present case the testimony shows that the motorman saw the danger G-rinnell was in. It is common knowledge, and not disputed on this record, that, when the electric car and its appliances are in proper condition, the motorman has perfect control over it. He may run it at so slow a rate of speed that it can be stopped at once— almost in an instant. Here the motorman saw the danger. He should have slowed down, and, if necessary to avoid danger, stopped his car.”

In McClellan v. Railway Co., supra, decedent was run into and killed while on defendant’s track endeavoring to get a colt off the track, out of the way of an approaching car, the noise and sounding gong of which had frightened the colt. There was testimony tending to show that the situation was apparent to the motorman, and that he had ample opportunity to bring his ear under control and avoid the accident, but neglected to do so. It was held that the question of his negligence and the decedent’s contributory negligence were for the jury.

Chauvin v. Railway, supra, was a crossing case, where, in attempting to cross defendant’s double tracks, one of plaintiff’s horses was killed and another injured by a car, he being confused by two cars in sight going in different directions. While he was observing and avoiding one his team was run into by the other. It was held, under the circumstances shown, that plaintiff was not necessarily, as a matter of law, guilty of contributory negligence, and, there being testimony that the car which did the injury was running at an excessive rate of speed and no effort was made to stop it, the motorman’s negligence was held to be a question of fact.

In McVean v. Railway, supra, which is urged as directly in point and controlling here, a young girl 15 years of age, riding with her sister in a buggy drawn by one horse, was struck and injured by a car coming from behind as she jumped from the buggy with the intention of holding the horse, which was frightened, by the head, while the car passed. The negligence charged was—

“ That the defendant ran the car at an excessive and unlawful rate of speed, thereby causing the dust and leaves to fly in the air, which frightened the horse, and that the motorman did not keep his car under sufficient control.”

There was evidence that the car ran at a speed as high as %0 miles an hour, causing a commotion of leaves and dust which frightened the horse, and that the motorman did not have his car under check. The court there said:

“The motorman admitted that, when he saw the horse appeared to be frightened, he did not at once bring his car under control, but gradually reduced its speed. There were other vehicles in this narrow space, and we think it was the duty of the motorman, on seeing that any horse in such a place was frightened, to immediately bring his car under control, so far as it was possible for him to do so.”

In the case at bar it is not shown that the car was run at an excessive rate of speed, or that the motorman did not have it under control. He testifies, and it is undisputed, that he had control and was watching the horse. There is no testimony to show that he could not and would not have stopped his car in time to avoid a collision had the horse been driven on the track and the necessity arisen. In this case plaintiff’s conveyance was never on defendant’s track, and the facts in the cases cited are far from analogous.

It is also to be recognized that the duty of the motorman is not limited to avoiding a collision on the track when horses driven along the highway become frightened at the operation of his car. That duty extends to guarding, so far as possible, against any injury to others which might result from such fright, whether on or off the track. To that end he should check or stop his car with reasonable diligence upon discovering any perilous situation. But in this case it is not shown that he knew there was a perilous situation, except as it was created by plaintiff’s driver suddenly pulling his horse away from the car tracks, to the right, where it ran against the hitching post. Previous to this the motorman had taken precautions preparatory to stopping quickly, and, on observing the sudden change in the direction the horse was going, he at once made a good stop. Before that, when the horse and buggy were going down the street in a straight course away from him, the inclosed top buggy prevented him from seeing what the driver was doing. He could not tell, and did not know, whether the horse was being held back or urged forward. He testified he did not know it was unmanageable or running away. As it appeared to him, though it was galloping, it was being safely guided along the paved highway, pursuing a straight course. There was plenty of room in the clear street ahead to safely pass by the buggy at the curb, and his car was back of the place of passage, under check and full control. Against his undisputed testimony as to what he saw and what he did, we cannot assume that he would have run his car into plaintiff’s buggy had it crossed over the car tracks ahead of him or proceeded along them. The evidence fails to disclose any wanton misconduct or gross negligence on his part for which defendant must respond.

The judgment is reversed, and no new trial granted.

Moore, McAlvay, Brooke, Kuhn, Stone, and Bird, JJ., concurred. Ostrander, J.,' did not sit.


author: Stone, J.

text:
    DE FOE v. BOARD OF ELECTION COMMISSIONERS OF BAY CITY.
    1. Elections — Enrollment—Candidates for Office — Mayor.
    Under Act No. 281, Pub. Acts 1909, as amended by Act No. 279, Pub. Acts 1911 (see 1 How. Stat. [2d Ed.] §§ 505-515), the initial enrollment of a voter may be accomplished by written request to the city clerk, recorder, or other officer in charge of the enrollment book, accompanied by the affidavit required by section 4; but an enrolled voter may only re-enroll on enrollment day, pursuant to section 11, on changing his party affiliation. A Republican enrolled, as such, was not entitled to have his name appear as a National Progressive candidate on the printed primary ballots although he attempted to enroll as a member of the other party by written request, etc., pursuant to the provisions of section 4.
    2. Same — Primary—Parties.
    The provisions of section 41 of the primary law providing that votes cast for a candidate of one party who was enrolled as a member of another should not be counted, apply only to the primary ballot, not to a candidate for mayor who was selected by the city committee as a substitute for a candidate that withdrew; as the nominee, duly certified to the board of election commissioners, he was entitled to a place on the ticket.
    8. Mandamus — Answer—Return—Practice.
    The answer of respondents in mandamus should be signed by them or by some one duly authorized in their behalf. It is incorrect practice to file a return signed by respondents’ attorney.
    Mandamus by Fred W. De Foe against Horace Tupper and others, as the board of election commissioners for the city of Bay City, to compel respondents to print the name of relator as candidate for mayor of the National Progressive party on the official ballot.
    Submitted March 26, 1913.
    (Calendar No. 25,625.)
    Writ granted March 28, 1913.

      DeVere Hall, for relator.

      8. &. Houghton, for respondents.
   Stone, J.

The petition in this case prays for a mandamus to compel the board of election commissioners of Bay City to cause the name of relator to be printed on the ballot labels for use on the voting machines at the April election in said city as the candidate of the National Progressive party for the office of mayor of said city. The facts are not in dispute, and are as follows:

Relator is a resident and elector of said city, and has been actively identified with the National Progressive party since its organization, but prior to February 12,1913, had been enrolled as a member of the Republican party. On that day he filed with the city recorder of the city a request, accompanied by affidavit, for enrollment as a member of the National Progressive party. Later, on the same day, a petition in the usual form, with the required number of signers, was filed with such officer, naming relator as a candidate for the nomination of mayor upon the National Progressive ticket at the primary held March 5,1913.

The recorder thereupon certified to the board of election commissioners the name of relator as one of the candidates for said party for such office, and the board caused the primary ballots to be printed with his name thereon. On March 3, 1913, the Republican city committee filed with the board of election commissioners a written protest objecting to relator’s name remaining on such ballots, and the board, acting on the advice of the city attorney, destroyed the ballots already printed, and caused new ballots to be printed omitting relator’s name therefrom, and his name did not appear on the primary ballots at such election. At the primary election De Yere Hall was nominated as the candidate of the National Progressive party for the said office, and, after the votes had been canvassed, the recorder certified his name as such nominee to the board of election commissioners. Mr. Hall later filed his withdrawal as such candidate, and the city committee of such party selected relator to fill the vacancy; the certificate of such appointment made by the chairman and secretary of such committee having been filed with the commissioners on March 12, 1918. On March 21, 1913, the board of election commissioners, acting on the advice and opinion of the city attorney, adopted a resolution refusing to print relator’s name on the ballot labels, and refused to recognize his appointment as such candidate to fill the vacancy, and thereupon notified him of such action. The exigency of the case is such that we granted an order to show cause. Loranger v. Navarre, 97 Mich. 615 (58 N. W. 47).

The answer of respondents substantially admits the facts above stated, but denies that relator is a member of the National Progressive party, because he is regularly enrolled as a member of the Republican party. It is the claim of respondents that relator is not properly enrolled as a member of the National Progressive party, and that consequently he cannot be a candidate for office on the ticket of such party. Relator claims:

(1) That he is properly enrolled as a member of the National Progressive party.

(2) That, even though he were not so enrolled, he is not disqualified from becoming a candidate on such ticket.

1. No constitutional question is here presented, but the construction of certain sections of the general primary law is involved. Section 4 of Act No. 281 of the Public Acts of 1909, as amended by Act No.- 279 of the Public Acts of 1911 (1 How. Stat. [2d Ed.] § 508]), provides:

“No person shall be permitted to vote at any primary election held in this State, unless he shall have been enrolled in the manner herein provided as a member of a political party. The voters in the various political parties shall be afforded an opportunity to become enrolled voters of the particular political party with which they are affiliated on the first Monday of April preceding the August primary election and on the last Saturday in January in each year: Provided, 'however, that any qualified elector may become enrolled and be eligible to vote at any primary ©lection if he shall deliver to the city or township clerk or other officer in charge of the enrollment book a written request for said enrollment accompanied by an affidavit setting forth that he is a qualified elector of said township, ward or precinct, and that it is bona fide his intention to affiliate with the political party in which he seeks to enroll: Provided, however, that no enrollment by notice and affidavit shall entitle any elector to vote at any primary that shall occur within two months from the date of said enrollment. It shall be necessary for all electors to become enrolled under authority of this act and no elector shall be deemed a qualified enrolled elector who has been enrolled under any prior act subsequent to the date this act takes effect.”

Section 11 of Act No. 281 of the Public Acts of 1909 reads as follows:

"Whenever an enrolled voter has. changed his party affiliation and desires to be enrolled as a member of another political party, he may personally make application only on enrollment day for re-enrollment to the enrollment board, and said board shall thereupon re-enroll the name of said enrolled voter, and at the same time draw a pen mark through the name of said enrolled voter as previously enrolled and opposite said name as previously, enrolled, shall write the word ‘ re-enrolled ’ and the date of said enrollment.”

These two sections should be read together in determining the legislative intent, and harmonized if it can reasonably be done. These sections can be harmonized by giving them a literal construction, and holding that section 4 only provides for the initial enrollment of a person, and that only persons not enrolled in any party may enroll by written request and affidavit; and that section 11 provides for the re-enrollment of a person who has changed his party affiliation. Such person can make personal application "only on enrollment day for re-enrollment to the enrollment board,” whose duty it shall be thereupon to re-enroll the name of such enrolled voter. In our opinion such construction should be given to these sections, and we therefore conclude that relator was not entitled to have his name appear on the printed ballots at the primary election, in view of the provision of section 41. Cook v. Election Commissioners, 172 Mich. 437 (138 N. W. 1).

2. It is the claim of relator that the statute does not disqualify him as the appointee of the city committee to fill this vacancy, even though it is held that he was not enrolled as a member of the National Progressive party, and that no restriction is placed upon the committee as to whom they shall select. On the other hand, it is the claim of the respondents that the nominee selected by the city committee must be enrolled in the party upon whose ticket he is to become a candidate, because of the provision of section 41 reading:

‘ ‘ Provided further, that all votes cast for any candidate upon the ballots of one political party, when such candidate is enrolled as a member of another party, shall not be counted.”

This proviso is expressly limited in its language to the acts of the board of election inspectors in the counting of the votes at the primary election. We are here dealing with conditions that arose subsequent to the primary. It appears from this record that the relator had been duly certified to the board of election commissioners by the proper body and appears to be a member of the National Progressive party, and is entitled to a place on the ticket. We do not decide what the ruling might be had relator been a member of another party.

The practice in this case, wherein the answer is signed by the attorney for the respondents only, is not to be commended. Such answer is more than a mere pleading, and should be signed by the respondents, or by some one in their behalf duly authorized. 2 Stevens’ Michigan Practice, § 467, p. 408.

The writ of mandamus will issue as prayed for by rela'tor, but without costs to either party.

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


author: Bibd, J. Brooke, J.

text:
    BROWN v. BOARD OF ELECTION COMMISSIONERS OF KENT COUNTY.
    1. Elections — Ballots—Board oe Election Commissioners.
    Some showing or evidence of a candidate’s right to appear on the official ballot should be in the hands of the board of election commissioners to warrant the board in causing the name of the candidate to be placed thereon.
    3. Same — Regulation.
    Under article 3 of the Constitution the legislature has power to regulate but may not destroy the enjoyment of the elective franchise.
    3. Constitutional Law —Primary Elections — Right to be Candidate.
    The provisions of section 37, Act No. 381, Pub. Acts 1909, as amended by Act No. 379, Pub. Acts 1911 (1 How. Stat. [3d Ed.] § 541 et seq.), requiring fifteen per cent, of the party votes at the preceding election to entitle a candidate at the primary to have his name printed on the ballot, do not destroy the right of franchise, since the electors may write in names of candidates, not appearing on the election ballot; and the statute is therefore constitutional. MoAlyay and
    Brooke, JJ., dissenting.
    Certiorari to Kent] McDonald, J.
    Submitted March 27, 1913.
    (Calendar No. 25,630.)
    Decided March 29, 1913.
    Rehearing denied April 8, 1913.
    Mandamus by Alvah W. Brown and others against the board of election commissioners of Kent county to prevent respondents from placing the names of certain candidates for county road commissioner on the ballot. An order denying the writ* is reviewed by relators on writ of certiorari.
    Reversed.

      Roger I. Wykes and A. R. Dilley, for appellants.

      A. A. Ellis and O. Q. Turner, for appellee.
   Bibd, J.

The petitioners question the right of the election commissioners of Kent county to place the names of the Democratic and Progressive candidates for county road commissioners on the ballot for the coming spring election on the ground that such action would be in violation of section 37 of Act No. 281 of the Public Acts of 1909, as amended by Act No. 279 of the Public Acts of 1911, in that neither of such parties cast at the primary 15 per cent, of the vote cast for secretary of State at the preceding election. The material part of the section reads:

“ Provided, that no candidate for any city, county, district or State office shall be deemed nominated and no certificate of nomination shall be given to any person whose political party with which he is enrolled casts at such primary election less than fifteen per centum of the vote cast by such political party for secretary of State at the last preceding biennial or November election; and in such case such political party shall not be entitled to have the names of any candidates printed upon the official election ballot.” (1 How. Stat. [2d Ed.] § 541.)

The respondent makes reply that:

“The provisions of said section are unjust and unreasonable, and were not passed for the purpose of protecting the purity of elections, and do unjustly deprive an elector of his right of franchise, and are therefore unconstitutional and void.”

At the outset attention is called to the fact that neither the Democratic nor the Progressive candidates received certificates of nomination by the board of canvassers, and that, when the board of election commissioners threatened to place the names of these candidates on the ballot, they had no prima facie nor other evidence before them entitling the candidates to a place thereon. We are of the opinion that, before placing the name of a candidate upon the ballot, some showing of his right to be placed thereon should be in the possession of the board. See De Foe v. Board of Election Commissioners, ante, 472 (140 N. W. 641).

If this provision of the primary law is unconstitutional and void, the reason for its being so must be found in the Constitution itself. The only limitation upon the power of the Michigan legislature to enact laws is our own Constitution and the Federal Constitution. It follows, then, that this legislation must stand, unless it can be pointed out that it infringes some provision of the State or Federal Constitution. Article 3 of the State Constitution is devoted to the elective franchise. Sections 1, 7, and 8 are the important ones bearing upon this inquiry. Section 1 provides who shall be an elector, and that the legislature may provide the way in which his vote may be cast. Section 7 provides that all votes shall be by ballot. Section 8 provides that laws shall be passed to preserve the purity of elections and guard against abuse of the elective franchise. This court has on several occasions considered the limiting force of these provisions upon legislative enactments, and the conclusion reached was that the legislature may regulate, but cannot destroy, the enjoyment of the elective franchise. Common Council of City of Detroit v. Rush, 82 Mich. 532 (46 N. W. 951, 10 L. R. A. 171); Attorney General v. City of Detroit, 78 Mich. 545 (44 N. W. 388, 7 L. R. A. 99, 18 Am. St. Rep. 458); Todd v. Election Commissioner, 104 Mich. 474(62 N. W. 564, 64 N. W. 496, 29 L. R. A. 330); Attorney General v. May, 99 Mich. 538 (58 N. W. 483, 25 L. R. A. 325). In commenting upon the degree of restraint of these constitutional provisions upon the power of the legislature in Common Council of City of Detroit v. Rush, supra, Mr. Justice Grant said:

“ Under these broad provisions, it has been frequently held to be the exclusive province of the legislature to enact laws providing for the registration of voters, and the time, place, and manner of conducting elections. It may regulate, but cannot destroy, the enjoyment of the elective franchise. Whether such regulation be reasonable or unreasonable is for the determination of the legislature, and not for the courts, so long as such regulation does not become destruction. Attorney General v. City of Detroit, 78 Mich. 545 [44 N. W. 388, 7 L. R. A. 99, 18 Am. St. Rep. 458]. Courts will not declare the law invalid because its enforcement might result in the restriction of the right to vote, else the registry laws would have been held void. Yet these laws have been universally sustained, on the ground of wise and necessary regulation. In 1882 Chief Justice Shaw sustained them, on the ground that they tended to—
“ ‘ Promote peace, order, and celerity in the conduct of elections, and as such to facilitate and secure this most precious right to those who are by the Constitution entitled to enjoy it.’ Capen v. Foster, 12 Pick. [Mass.] 485 [23 Am. Dec. 632],
“The principles then enunciated have been adopted by this court in numerous cases. People v. Blodgett, 13 Mich. 127; People v. Kopplekom, 16 Mich. 342; Attorney General v. Detroit Common Council, 58 Mich. 213, 24 N. W. 887 [55 Am. Rep. 675]. When power is conferred upon the legislature to provide instrumentalities by which certain objects are to be accomplished, the sole right to choose the means accompanies the power, in the absence of any constitutional provisions prescribing the means. The finding by this court that the law impeded, hampered, or restricted the right to vote, and is therefore void, would be a clear assumption of, and encroachment upon, legislative power — a substitution of our judgment for that of the legislature. It can only be declared void when it destroys the right. Its unconstitutionality can be determined by no other rule.”

The test is, then, whether section 37 destroys the elective franchise or simply regulates it. If it destroys, it is our duty to declare it void. If it merely regulates, our duty is to declare it valid and relief from its effects must be found in the legislature. An examination of section 37 will disclose that it is aimed at the voter’s right to have his name placed upon the ballot, and not at his right to vote. The right to vote is protected by the Constitution. The right to have his name placed upon the ballot is one which is under the control of the legislature. But it. is argued that it interferes with the exercise of the franchise in that the names of the candidates for commissioners will not be printed upon the ballot. This does not destroy the right of franchise because the voter may write the names on the ballot. It may render his voting less convenient, but it does not destroy or take away the right.

It is said that the 15 per cent, requirement is an unreasonable requirement, and, if, adhered to, will in many cases deprive the party ticket of a candidate for some particular office. This may be so. It is possible that the percentage is too high, and it may be unwise to require any percentage. It is certain, however, that, if we are to have a primary law, somebody must be invested with the power to prescribe the rules and regulations under which a primary election shall be conducted. That power resides in the legislature. If the legislature has exercised that power, and while acting within the range of its authority has prescribed an unreasonable regulation, it must be remedied by it, and not by the courts. City of Detroit v. Election Inspectors, 139 Mich. 548 (102 N. W. 1029, 69 L. R. A. 184, 111 Am. St. Rep. 430, 5 Am. & Eng. Ann. Cas. 861). The same question has been many times before other State courts and with few exceptions it has been held that it is a legislative question. Some of the exceptions have been based upon constitutional provisions unlike our own. See Miner v. Olin, 159 Mass. 487 (34 N. E. 721); Ransom v. Black, 54 N. J. Law, 446 (24 Atl. 489, 1021, 16 L. R. A. 769); DeWalt v. Bartley, 146 Pa. 529 (24 Atl. 185, 15 L. R. A. 771, 28 Am. St. Rep. 814); State v. Poston, 58 Ohio St. 620 (51 N. E. 150, 42 L. R. A. 237); State v. Felton, 77 Ohio St. 554 (84 N. E. 85, 12 Am. & Eng. Ann. Cas. 65); People v. Williamson, 185 Ill. 106 (56 N. E. 1127); State v. Jensen, 86 Minn. 19 (89 N. W. 1126); State v. Drexel, 74 Neb. 776 (105 N. W. 178); Riter v. Douglass, 32 Nev. 400 (109 Pac. 444); Socialist Party v. Uhl, 155 Cal. 776 (103 Pac. 181); Ledgerwood v. Pitts, 122 Tenn. 570 (125 S. W. 1036); State v. Nichols, 50 Wash. 508 (97 Pac. 728); State v. Michel, 121 La. 374 (46 South. 430); Ladd v. Holmes, 40 Or. 167 (66 Pac. 714, 91 Am. St. Rep. 457); Healy v. Wipf, 22 S. D. 343 (117 N. W. 521).

The urgent demand on the court for an immediate decision in this proceeding has limited our investigation, but we have found no constitutional restraint, nor has any been called to our attention which would render the provisions of section 37 void.

We are therefore of the opinion that the holding of the trial court should be reversed and the writ of mandamus granted. No costs will be allowed either party.

Kuhn, Stone, and Ostrander, JJ., concurred with Bird, J.

Brooke, J.

(dissenting). In this proceeding a very unusual and remarkable situation is presented. Petitioners, themselves duly nominated for office at a primary upon the Republican ticket, and, therefore, sure of their own positions upon the official ballot, seek by mandatory injunction to prevent the board of election commissioners from placing upon said ballot the names of the men nominated at the same primary upon the democratic and progressive tickets. I am of opinion that it may well be doubted whether petitioners have shown that they have such an interest in the matter as entitles them to interfere. This interest is not in themselves getting upon the official ballot, that right is already secured to them, but they, as the properly qualified nominees of one party, seek to inquire into the legality of the nomination of their opponents by other parties, and, through such inquiry, prevent the printing of the names of any candidates of opposing parties upon the official ballot. Can it be said that their right to a position upon a “legal ballot” is such as to clothe them with the power to intervene as individuals for such a purpose ? My Brethren are of opinion that they have such an interest. I think it is at least open to grave question. Petitioners say that the said board has declared its intention to place the names of their opponents upon the official ballot, and that, unless restrained, it will do so. They aver that such action- would be unlawful, and, as authority for their position, they point to section 37 of the so-ealled primary law (Act No. 281, Pub. Acts 1909, as amended), which provides:

“That no candidate for any city, county, district or State office shall be deemed nominated and no certificate of nomination shall be given to any person whose political party with which he is enrolled casts at such primary election less than fifteen per centum of the vote cast by such political party for Secretary of State at the last preceding biennial or November election; and in such case such political party shall not be entitled to have the names of any candidates printed upon the official election ballot.”

It is admitted that the nominees of the Democratic and Progressive parties did not receive at the primary in question votes equal in number to 15 per cent, of the vote cast by either party at the election in November, 1912, if, by that is meant, that “the party ” cast all the votes received by the candidates for the office of secretary of State running upon the respective tickets. This is the construction placed upon the section by the petitioners, and doubtless the construction intended by the legislature. If the contention of petitioners is sound, and it would appear to be so if the section in question can be sustained, a very remarkable situation would ensue. Petitioners alone would be entitled to a place upon the official ballot, and the nominees of the other political parties could only be voted for at the election by the laborious process of writing their names upon the ballot in the booth. This method of voting is not only slow, but requires a considerable degree of education and intelligence. It is also likely to result, through misspelling of names or other error or omission, in partially or wholly disfranchising the voter. It is in my opinion idle to say that a law which imposes such a handicap upon a portion (in this instance more than one-half) of the electors is either reasonable, uniform, or impartial. To say that the elector can still vote, and that it is only a little harder for him to do so, and therefore that he is denied no constitutional right, is a mockery. In crowded precincts the time required by each voter to write in all the names of his party candidates would alone undoubtedly result in the disfranchisement of many. Each elector is entitled to express his choice at the election with the same facility enjoyed by any of his fellows. The constitutional warrant for the enactment of the section in question must be found, if at all, in section 8, art. 3, which reads:

“Laws shall be passed to preserve the purity of elections and guard against the abuses of the elective franchise.”

I am unable to see how section 37 tends in any degree to either preserve the purity of elections or guard against abuse. It is said its purpose was to stimulate interest in party primaries. Its effect is to compel the attendance at the primaries of a certain percentage of each political party. Failure to observe the mandate penalizes the offending party by placing it under a disability with the result that its members suffer a serious impairment of their right to freely exercise the elective franchise. In his opinion Mr. Justice Bibd says:

“ The test is, then, whether section 37 destroys the elective franchise or simply regulates it. If it destroys, it is our duty to declare it void. If it merely regulates, our duty is to declare it valid and relief from its effects must be found in the legislature.”

It is in this position that I am unable to agree with my Brethren. Under the guise of regulation, it is not competent for the legislature to enact laws which seriously impair the right to the elective franchise. It is not necessary that the legislation should go to the extent of absolute denial or complete destruction in order that constitutional safeguards may be invoked. No one would contend that, in the concrete instance before the court, the operation of the act in question is not such as to most seriously impair that right. As was said by Mr. Justice Campbell, in Attorney General v. Detroit Common Council, 58 Mich. 216 (24 N. W. 889, 55 Am.. Rep. 675):

“There is nothing in the Constitution which permits the legislature, under the desire to purify elections, to impose any conditions which will destroy or seriously impede the enjoyment of the elective franchise.”

See, also, Dapper v. Smith, 138 Mich. 104 (101 N. W 60). The methods used by parties to select their candidates for office were formerly considered matters of interest to the members of the parties only. Latterly legislatures have undertaken, by means of primary laws, to determine exactly how partisan nominations shall be made. Conceding that this is a proper field for legislative enactment, the power to regulate must certainly be exercised in such manner as will secure to the elector his full and unrestricted right of franchise. The right of all political parties to freely nominate their candidates for office is fundamental.

I am of opinion that section 37 imposes an unlawful and unreasonable restriction upon the right of parties to select candidates, and that it should, therefore, be held unconstitutional and void.

The order denying the mandamus should be affirmed.

McAlvay, J., concurred with Brooke, J. Steere, C. J., and Moore, J., did not sit.


author: Stebre, C. J.

text:
    LIVINGSTONE v. BOARD OF ELECTION COMMISSIONERS OF WAYNE COUNTY.
    Constitutional Law — Amendments—Ballots—Elections.
    When proposed amendments of the Constitution are to be voted on at a general election, the several amendments must be printed on distinct ballots, as well as on ballots separate from those containing the names of candidates to be voted for. It is not a sufficient compliance with the Constitution to print five proposed amendments on one voting slip or ticket. Const, art. 17, sec. 3.

      Certiorari to Wayne j Hally, Van Zile, Hosmer, and Codd, JJ.
    Submitted April 1, 1913.
    (Calendar No. 25,637.)
    Decided April 1, 1913.
    Mandamus by William A. Livingstone and Carl Bauer against the board of election commissioners of Wayne county to require said board to print constitutional amendments to be voted on at the spring election on separate or distinct ballots. An order denying the writ is reviewed by relators on writ of certiorari.
    Reversed.

      James A. Mnrtha and John H. Dohrman, for relators..

      Hinton E. Spalding and Carey, Armstrong & Weadoch, for respondent board.
   Stebre, C. J.

This is a proceeding in certiorari to review the action of the Wayne county circuit court in denying a writ of mandamus applied for by relators, to compel the board of election commissioners of said county to print certain proposed constitutional amendments, to be voted upon at the ensuing spring election, upon separate and distinct ballots, as it is claimed the Constitution requires, and not together upon a single ballot, as it is charged said board is about to do. The following excerpts from the pleadings are sufficient to make clear the issue involved: Relators9 petition for mandamus sets up, among other things, as follows:

“(4) Petitioners respectfully represent that in compliance with the provisions of the law and the article of the Constitution above cited (being article 17), it is the duty, of said board of election commissioners to have prepared and printed for the use of electors at said forthcoming election, each one of said five proposed constitutional amendments, upon separate and distinct ballots, in order to insure an intelligent, legal, and constitutional popular vote upon said amendments.
(5) Tour petitioners respectfully show that said board of election comnpssioners of the county of Wayne do not intend to comply with the provisions of the law, as aforesaid, but, on the contrary, at a regular meeting of said board, held in the city of Detroit, upon March 26, A. D. 1913, said board decided to prepare and have printed all of said five constitutional amendments upon one single ballot, and that such a ballot is now actually in course of preparation by said board and will be presented to the electors of this city on April 7th, next, unless prevented by the mandate of this court.”

On an order to show cause, respondent made answer to said fourth paragraph of relators’ petition as follows:

“ This respondent board deny that the law is as stated in paragraph four of relator’s petition.”

And to paragraph five as follows:

“ This respondent board admit the allegations contained in paragraph five of relators’ petition.”

On the hearing before said circuit court the writ was denied, it being the opinion of the court that it was not—

“ The intention of section 3 of article 17 of the Constitution to provide that each constitutional amendment should occupy a separate ballot, and that the Constitution by another provision continued all laws in force that were not incompatible with its terms; that there is no incompatibility between the statute which regulates the printing of constitutional amendments and the section set forth. ”

Article 17 of the Constitution of the State of Michigan relates to amendment and revision of the Constitution. Section 3 provides:

“All proposed amendments to the Constitution submitted to the electors shall be published in full, with any existing provisions of the Constitution which would be altered or abridged thereby, and a copy thereof Shall be posted at each registration and election place. Proposed amendments shall also be printed in full on a ballot or ballots separate from the ballot containing the names of nominees for public office.”

It is the claim of relators that said sentence must be construed as requiring each separate, proposed amendment to be printed on a separate and distinct ballot; while respondent construes it as authorizing, if not requiring, the printing of all proposed amendments upon a single ballot, or piece of paper.

There can be no uncertainty as to what is meant by a “ballot” in this connection. Under the requirements of our Constitution and the present development of the voting machine, constitutional amendments cannot be voted upon by such mechanism, although that process is recognized as voting by ballot. City of Detroit v. Board of Election Inspectors, 139 Mich. 548 (102 N. W. 1029, 69 L. R. A. 184, 111 Am. St. Rep. 430, 5 Am. & Eng. Ann. Cas. 861), While the courts and lexicographers have given the term a somewhat varied meaning, ranging from the original little ball cast in a box or urn to express a choice, wherein the white ball elected and black rejected, the slip of paper used, the act of voting, the list of candidates voted for, the result of the vote, etc., it is clear that in this case it means the ticket, or slip of paper, sometimes called “ voting paper,” with the specified printed matter upon it, to be used by the electors in expressing their choice on the propositions proposed.

The sentence under consideration, standing alone, taken literally as it reads, with nothing understood or supplied, is palpably obscure and imperfect. It is in the plural, naming only “proposed amendments,” and makes no provision for printing the ballot for a single proposed amendment; though, reading the section as a whole, no one could fail to understand that it was intended to comprehend one or more. Even should we adopt the manifestly unintended and literal meaning, that the sentence is directed only to an election at which more than one amendment is proposed, and is optional with the election commission either to place the amendments all on one ballot or each on a separate ballot, we find the sentence yet imperfect. “ Or ” is the correlative of “ either,” and to correctly indicate a choice we must supply the latter word and read the sentence that “ proposed amendments shall be printed in full (either) on a ballot or ballots separate,” etc. The conjunction “or” co-ordinates the two words “ballot” and “ballots,” disjunctively, so that each in turn must be regarded as the equivalent of and excluding the other.

The dominant thought appropriately expressed in the sentence is that the vote on proposed constitutional amendments shall be distinct and a thing apart from the vote upon candidates for office, and in order that the elector may know just what he is voting upon he must have before him, printed on the separate ballot provided for him, the exact proposition he is exercising his choice in relation to.

One of the most important changes made in the last Constitution was said article 17, relating to the manner of amending it. It is said to have been the result of a compromise between those who advocated the adoption of constitutional amendments by initiative and referendum and those who desired no change from the provisions of the old Constitution pertaining to the matter. The constitutional convention debates and journal show this clearly. Several forms were proposed and debated with spirit and much diversity of views. The form adopted makes radical changes, and goes into details on matters formerly left to the legislature. The phraseology of previous legislation was adopted in some particulars.

Section 3657, 1 Comp. Laws, relative to constitutional amendments, which was in force at the time of the adoption of the present Constitution, provided that:

“ Whenever any constitutional amendments or other questions are proposed to be submitted to the electors, the board of election commissioners of each county shall cause them all to be printed on one ballot, separate and distinct from the ballot containing the names of nominees for public office, the substance of each amendment or other question to be clearly indicated upon said ballot,” etc.

The early forms proposed touching amendments, out of which article 17 developed, which were introduced and debated before the constitutional convention, followed olosely the language of this statute relative to a separate ballot, and provided that it “be printed in full upon a ballot separate and distinct from the ballot containing the names of nominees for office”; but as different forms were introduced, and the debates progressed, “or ballots” was added. The committee on arrangement and phraseology evidently lost sight of the niceties of phraseology in the heat of the debates on the initiative and referendum, and the sentence was not recast to fully and aptly express the exact object of the alteration. We do not find that this change was discussed before the convention, but it is not unreasonable to infer that when it was decided to enlarge the ballot by printing in full the proposed amendments and any existing provisions to be altered or abrogated, instead of a brief statement of the substance, the thought might naturally suggest itself that, in case there were numerous and lengthy amendments, all printed on a single ballot, it would lead to possible confusion and inconvenience easily avoided by providing separate ballots for each amendment. If, as this sentence reads, all amendments are to be printed on one ballot, the added words “or ballots,” intentionally inserted, manifestly for some purpose, while the article was under debate and an exact form providing for all on a single ballot was then before the convention, would become surplusage, absolutely ineffective, and a nullity.

In construing any law it is the rule to give effect to all parts and to all words so far as the language used will permit. To construe this sentence, which, in any view, must be supplied from the context with understood words to complete it according to its evident intent, as implying that, where more than one amendment is to be voted on, “ballots” shall be used, does no violence to the language found, and gives the added words effect. Should we adopt the view that the former statute relative to a single ballot is . in force, not being incompatible with the Constitution, we must necessarily construe the constitutional provision as leaving it optional either to use “a ballot or ballots.” In such case, if it is optional with the election board, the writ was properly denied.

Proposed constitutional amendments are to be submitted to the electors '4 as the legislature shall direct.” If the Constitution, by the section under consideration, in any particular makes the manner of submitting optional, it would seem that the option, in the first instance at least, rests with the legislature. That option has apparently been exercised in this instance, and the five separate concurrent resolutions of that body, proposing the five separate and distinct amendments, each directs:

“ It shall be the duty of the board of election commissioners of each county to prepare a ballot for the use of the electors in voting on said amendment, which ballot shall be in substantially the following form(Giving the form of ballot in accordance with the requirements of the Constitution.)

Whether or not this be controlling as a matter of law, it is at least a legislative interpretation of the provision of the Constitution under consideration.

The attorney general of the State, who is the legal adviser in matters of general public interest, has given the opinion to all inquirers throughout the State that the use of the word “ballots” in this section of the Constitution means that each proposed amendment should be upon a separate ballot, for the reason that otherwise the use of the word “ballots” in the Constitution would be without significance or effect.

As a uniform method of procedure throughout the State is of primary importance, and the use of separate ballots for each proposed amendment has been adopted as the proper construction both by the legislative department and the attorney general’s office, and does no violence to the language used, we regard it as a proper one and think it should be observed.

An early adjudication of this question seems desirable, in avoidance of possible complications which might otherwise ensue, and we are constrained to hold, as the question is now presented, that each separate proposed amendment should be printed on a separate and distinct ballot, or voting paper.

We discover no requirement in the laws or Constitution which makes it imperative to use a separate ballot box for each amendment.

In the form in which this question is presented, preliminary to an election, asking in effect for direction as to the proper manner of preparing the ballots, we are not called upon to decide whether a failure to observe these requirements in all particulars would in every instance be such an irregularity as to disfranchise the electors.

The judgment is reversed, and the writ of mandamus should issue as prayed for, but without costs.

Moore, McAlvay, Brooke, Stone, and Ostrander, JJ., concurred. Bird and Kuhn, JJ., did not sit.