author: Hooker, J. Grant, J.

text:
    Fannie Metzger v. The Manchester Fire Assurance Company.

      Fire insurance — Conditions of policy — Legal representative — False swearing by agent — Evidence—Opinion as to value of goods.

    1. The term “ legal representative,” as used in the clause in the Michigan standard fire insurance policy, “ wherever in this policy the word ‘insured’ occurs, it shall be held to include the legal representative of the insured,” refers to those who succeed to the insured’s legal rights, by reason of his death or the transfer of the policy.

      2. An affidavit, made at the request of fire insurance adjusters, as to the correctness of the books of the' insured and the amount • of stock at the time of the fire, is not one upon which a prosecution for perjury can be based.
    3. An agent of the insured, who had the entire management and control of the business, and who held a power of attorney from the insured authorizing him to settle for the loss, executed and delivered to the adjusters a false affidavit regarding the books of account which had been kept by him. And it is held that the insured, if not a party to the deceit, and acting in good faith, is not precluded from recovering upon the policy under a clause therein providing that the same shall be void in case of any fraud or false swearing by the insured touching any matter relating to the insurance, whether before or after loss.
    4. A dry goods and clothing merchant testified, in a suit to recover for damage to insured property, that he had been in the store of the plaintiff a number of times, but could not say that he was there within a month before the fire, but had been within a year; that he thought he had noticed a stock which would amount to anywhere from $9,000 to $12,000; that in such estimate he did not confine himself to the year before the fire, and that all he knew was that he had a recollection of being in the store several times, when he saw a good-sized stock of goods there. And it is held that the witness did not show himself competent to testify as to the value of the insured property. •
    Error to Chippewa. (Steere, J.) .
    Argued April 25, 1894.
    Decided October 16, 1894.

      Assumpsit. Defendant brings error.
    Reversed.
    Tbe. facts are stated in tbe majority opinion.

      Marie Norris, for appellant.

      Hurst & Sullivan and Laivson G. Holden (L. E. Bradt, of counsel), for plaintiff.
   Hooker, J.

Tbe defendant insured a stock of goods belonging to the plaintiff. Her business was managed by her husband, and she appears to have had little to do with it. He bought the goods and kept the books, and, in short, managed the business as he chose. He procured the insurance upon the stock. His authority was not in writing. The .goods were injured by fire on January 13, 1892. The husband, Lewis L. Metzger, notified defendant’s local agent of the fire a few days after it occurred, and adjusters of the defendant and other companies visited the place about a week later. They did not see the plaintiff. While there, the plaintiff executed a power of attorney to her husband, authorizing him to settle the loss. This was done at the suggestion of one or more of the adjusters, by whom the paper was drawn, that they would not settle with an agent unless his authority was in writing. An examination was made of the books kept by Lewis L.- Metzger of the business; and he executed and swore to an affidavit, prepared by the adjusters, in which he stated that the books were correct, true, and accurate records of the transactions of the business, which was carried on under the name of the Giant Clothing Company, and showed the exact' and actual transactions with the firms and individuals named therein, and that an inventory of February 1, 1891, shown to Yernor and Fletcher (two of the adjusters), was a true inventory of the goods on hand at that date, and that subsequent purchases and sales were truthfully entered in the books, and added to said inventory. On March 9, 1892, the adjusters Yernor and Fletcher (the former representing defendant) sent notice to the plaintiff denying all liability under the policies upon the part of their respective companies, for two reasons: (1) Because of fraud; (2) because of attempted fraud.

In the investigation made by the adjusters, they discovered some entries on the books for which there were no bills, and this led to the discovery of alterations in the books, of which the following are specimens:

In the journal was an entry of $1,931.69, ostensibly representing the amount of merchandise purchased in'April, 1891. It was originally posted in the ledger as $931.69,— at that time being so entered in the journal, — which was the correct amount. The journal was changed so that it read $1,931.69, and the item was again posted in the ledger as $1,931.69, and the footings changed to correspond. The books also showed false entries of payment of these fictitious accounts. Lewis Metzger admitted that he made all of these false entries, and makes the excuse that he had marked the goods at 10 per cent, above actual cost, and that he made thése entries five months before the fire, to make the books compare with the amount of stock, if it should be inventoried according to the raised .cost mark. He said that he was trying to sell out, and he did this so' that a purchaser would, think he had paid the amount marked. He claimed that he did not know of these false entries at the time that he made the affidavit, having forgotten them; and the jury so found, in answer to special questions. On redirect examination he attempted to patch the matter up by saying that the 10 per cent, was for freight and dravage; that he made the affidavit before these alterations were called to his attention, and he believed it to be true when he made it. A computation will show that the six items mentioned, which he says were all of the raised accounts, were raised from $96.76 to $1,526.76, — a raise óf more than 1,400 per cent., instead of 10. His affidavit was admittedly false, and it requires great credulity to believe that he did not know it when he made it.

Counsel for defendant asked the court to hold that this was conclusive evidence of attempted fraud, and to direct a verdict, upon the theory that the act of the agent is the act of the principal.

The policy was the Michigan standard, which provides:

This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof; or if the interest of the insured in the property be not truly stated herein, or in case of any fraud or false swearing by the insured'touching any matter relating to this insurance or the subject thereof, whether before or after loss. * * * * *
Wherever in this policy the word ' insured occurs, it shall be held to include the legal representative of the insured.”

It is contended that the fraudulent intent upon the part of the husband binds the wife, and forfeits the policy, under the last clause;, counsel asserting that the term legal representative ” should be construed to include any one who is authorized to act for the insured, while plaintiffs counsel contend that it refers to those who succeed to her legal rights, by reason of her death or the transfer of the policy. We think it should receive the latter construction. This defense is not that the company was defrauded in the making of the contract. In such a case the fraud of the agent could be asserted as a defense against the principal, whether the policy so provided in express terms or not. But the contract was valid, and, for the purpose of determining this question, we must assume that plaintiff has suffered an honest loss, for which she had a legitimate claim. An effort is made to defeat this by showing an attempt by an agent to deceive the defendant into paying a sum greater than the loss. Forfeitures and penalties are not favored in the law, and the language should not be unnecessarily extended by construction. The provision for a forfeiture of rights under the policy is doubtless a wise one, to prevent deceit on the part of insured persons; but it does not seem to us necessary, where the insured acts in good faith, and is not a party to the deceit. The word “insured” is used many times in the policy. If the broad construction contended for is to be given, it would follow that the company would have the right to require statements to be made and sworn to, not only by the insured, but by his legal-representative, stating the belief of such representative, his interest, etc. It would not only compel the insured to make double proofs, if technically construed, but would place him at the mercy of his agent. But the attempt, if made with the knowledge and complicity of the insured, would be as effective to defeat the policy as though it had been made by him alone. It follows that the good faith of the plaintiff was a proper subject for investigation.

Counsel for the plaintiff assailed the conduct of the •adjusters in requiring a power of attorney, and, under the guise of an objection to -its introduction, intimated that it was done for the purpose of ruining her.” The evi- ■ dence shows that the power of attorney was required by Fletcher before defendant’s adjuster arrived, and it was no more than an ordinary and proper precaution to require written authority from the policy-holder before settling with an agent. An examination of the paper shows it to be an ordinary power of attorney. It confers no more power upon Lewis Metzger than the testimony shows that he had without it, nor any more than the safety of the defendant required that he should have. There was no evidence that the adjusters did more than to say they should require written authority from Mrs. Metzger to her husband before they would settle with him, after which they, or some one else, prepared it, and Metzger took it to his wife, who executed it. She testified that she did not see the adjusters. When it was offered in evidence, counsel said:

“ We object to the admission of this purported power of attorney in evidence, on the ground that it is incompetent and immaterial.”

There was no occasion to call it a “purported power of attorney,” nor could there be any reason for saying that a power of attorney was incompetent or immaterial. Moreover, the subject was introduced by plaintiff’s counsel upon direct examination, having proved by the witness Metzger that he had a power of attorney, signed by his wife, at which point the defendant’s counsel asked that the power be introduced, and the objection was made. The language was uncalled for and prejudicial. Litigants have a right to have their cases tried upon the merits, and appeals to the prejudices of jurors, by unfounded charges of fraud and deceit, are unwarranted. Whatever- may be said concerning the affidavit, there was no testimony tending tó show that the power of attorney was intended to trap the plaintiff, or deprive her of any rights. .

Nor are we prepared to concur with counsel in their attack upon the adjusters. They had every right to believe that Metzger was attempting a gross fraud upon the insurance companies, and it was their legal right to probe it to the bottom, and ascertain what there was of it, and the intent with which the representations were made. There was no occasion to talk of subornation of perjury, for the affidavit was one upon which a prosecution for perjury could not be based. If knowingly made, it was a simple lie, like any other, only more emphatic, because in writing, and verified by an oath, which should have had some moral restraint upon the affiant. Whatever may have been said about the impropriety of inducing persons to commit crime, we are not prepared to place on the same footing efforts to detect rascality and prevent fraud. Self-protection in business dealings would be a delusion if parties were to use the ordinary methods, at the hazard of legal censure, when dealing with persons who scruple at nothing. Crimes and frauds are not usually detected by informing the wrong-doer in advance that he is suspected. We think these adjusters had a right to suppose that this man would not swear to a statement if it was false, though he had taken the first step in deceit, and they certainly had the right to ascertain the value of the burned goods by any fair means.

The testimony of the witness Desenberg should not have been admitted. He testified that he had been in the store a number of times, but could not say that he was there within a month before the fire, but had been within a year, and he thought he had noticed a stock which would amount to anywhere from $9,000 to $12,000. He said that in this estimate he was not confining himself to the year alluded to, and that all he knew was that he had a recollection of being in the store several times, when he saw a good-sized stock of goods there. He did not show himself competent to testify upon the subject.

Other questions raised we think it unnecessary to discuss.

The judgment will be reversed, and a new trial ordered.

McGrath, 0. J., Long and Montgomery, JJ., concurred with Hooker, J.

Grant, J.

I concur with my Brother Hooker in the reversal of this case. I also concur with his statement that—

Forfeitures and penalties are not favored in the law, and the language should not be unnecessarily extended by construction. The provision for a forfeiture of rights under the policy is doubtless a wise one, to prevent deceit on the part of insured persons; but it does not seem to us necessary, where the insured acts in good faith, and is not a party to the deceit.”

Did the facts in this case make the plaintiff a party to the deceit? This, of course, depends upon the determination of the question, whether the acts of her agent were in fact her acts. It will be conceded that if she made false and fraudulent representations the policy was rendered void. I cannot assent to the rule that, where one trusts the entire management of his business to an agent, the principal is not responsible for the fraudulent acts and representations of the agent in connection with the business. It is manifest from this record that the plaintiff knew nothing about the business. It was carried on in her name. Grant that it was carried on for her benefit, still she constituted her husband her sole agent to buy and sell, attend to the insurance, and exercise exclusive control and management of the entire business. When the adjusters came to adjust the loss, he appeared as her sole representative. The defendant desired that he should obtain from the plaintiff a written authority to act for her. She voluntarily executed a power of attorney giving him full authority in the premises. She should be held responsible for his acts and conduct. Seldom do the records of insurance litigation exhibit a more deliberate and glaring attempt to defraud an insurance company. Such attempts should not be made successful, under the guise of agency, especially where there exists the intimate relation of husband and wife; the one claiming to be an innocent principal, and the other a confessedly dishonest agent.

The’ judgment should be reversed, and no new trial ordered.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Emery J. Vance et al. v. Charles H. Wisner, Circuit Judge of Shiawassee County.

      Receiver — Powers.
    A village, claiming that a bonus by it paid to a manufacturing company was procured by fraud, filed a bill to set aside certain transfers of the property of such corporation, and to protect its rights therein. The court, pending a hearing, enjoined the officers of the company from interfering with its property, and appointed a receiver with general powers. And it is held that, while the injunction should be retained, the powers of the receiver should be limited to the protection of the property and the collection of debts.

      Mandamus.

    Argued October 2, 1894.
    Granted in part. October 30, 1894.
    The village of Vernon entered into a contract whereby, to secure the location of a manufacturing enterprise, it advanced to the Partition Packing & Box Company the sum of $10,000, and procured for it a factory site. Subsequently, the trustees of the village filed a bill in the circuit court of Shiawassee county, in chancery, to set aside said conveyance to the company and certain mortgages given by it upon its real and personal property, and to enforce the rights of the village therein, claiming that it was induced to enter into the contract and to make said advances through fraud and misrepresentation. Pending a hearing, the court issued an injunction restraining the officers and agents of the company from collecting, disposing of, or interfering with the property of the company, and appointed a receiver thereof, with authority to pay debts, collect claims, and continue the business generally. Relators, the defendants in said suit, apply for a mandamus to compel the court to vacate said orders.

      Hatch & Cooley, for relators.-

      Albert L. Chandler, for respondent.
   Per Curiam.

The appointment of the receiver will not. be disturbed, but the order of appointment will be modified, limiting his power to the protection of the property and the collection of debts. The injunction will be retained.


author: Per 0uriam.

text:
    Bruce Goodfellow v. The Common Council of the City of Detroit.

      Municipal corporations — Removal of officers — Hearing—Dismissal of charges.

    Under a city charter providing that the council should have power to remove certain officers for cause, a copy of the charges made, with notice of the time and place of hearing, being first served, the council, at the time assigned for hearing charges preferred against an official, notwithstanding his protest, adjourned such hearing, upon the recommendation of the mayor, until after a certain report, regarding a matter not necessarily involved in such charges, should have been received. And it is held that such officer was entitled either to a hearing at that time, or to have a time assigned therefor; and that the indefinite action of the council must be regarded as equivalent to a dismissal of the charges.

      Certiorari to Wayne. (Lillibridge, J.)
    Argued October 30, 1894.
    Judgment affirmed November 1, 1894.
    Eelator is a member of the board of fire commissioners of the city of Detroit, and the president thereof. The charter (§ 332, compilation of 1893) provides that any member of the board may .be removed by the common council for sufficient cause, a copy of the charges preferred, with notice of the time and place of hearing the same, being first served on such member, and opportunity given him to make his defense; The mayor preferred charges of ■official misconduct against relator, in that he forcibly prevented an examination, by the mayor and his assistants, of tthe books and accounts of the commission, the charter (§ 353) providing that the same shall at all times be subject to the inspection of the mayor. At the time assigned for hearing, a message from the mayor was read before the ■council, stating that he had employed an expert accountant to make an examination of the accounts of the commission, and recommending that action upon the charges preferred against relator be postponed until after the report of said accountant should have been made. Upon motion, the recommendation of the mayor was concurred in, and the council refused to proceed with the hearing. Eelator thereupon applied to the circuit court of Wayne county for ■mandamus to compel the council to proceed to the hearing upon such charges, or to dismiss the same. The application being denied, relator brings certiorari.

      Fred G. Harvey (F. A. Balter and George Gartner, of counsel), for relator.

      John J. Speed and Oharles D. Joslyn, for respondent.
   Per 0uriam.

In this matter we deem it unnecessary to issue the mandamus as prayed. Relator was, without question, entitled either to a hearing upon the charges made at the time fixed, or to have a time fixed when such hearing should be had. We think that the indefinite action of the common council was equivalent to a dismissal of the charges then pending, and must be so regarded. No costs will be allowed.


text:
    David B. Kirby, Administrator, etc., v. Chauncey L. LaDow.

      Attorney and client — Judgment—Iden—Discontinuance of cause in Supreme Court.

    A party who has recovered a judgment in the court below cannot stipulate in the Supreme Court to dismiss the suit without the consent of his attorneys, if he is at the time indebted to them for services in the case, and a stipulation so entered will be set aside on their motion.
    Motion to set aside stipulation dismissing suit.
    Argued October 30, 1894.
    Referred to court below November 1, 1894.
    Granted February 26, 1895.
    Defendant recovered a judgment for costs against plaintiff in the circuit court for Calhoun county, and plaintiff removed the cause by writ of error to the Supreme Court. Before the cause was submitted, a stipulation was entered, signed by defendant and by plaintiff’s attorney, dismissing tbe suit without costs to either party. Defendant’s attorneys, claiming a lien upon the judgment for their services, moved for an order setting aside the stipulation, upon the hearing of which defendant denied that he was indebted to said attorneys in any sum whatever.

      Mains & Mains, for the motion.

      L. B. Tompkins, contra.

   Per Curiam.

This matter will be referred to the, court below to determine, upon issues framed, whether appellee here is indebted to his attorneys, and, if so, in what amount, and report the result to this Court. In the meantime, the motion here will be held.

Subsequently the report of the circuit judge was filed, finding the defendant indebted to his attorneys, and on February 26, 1895, the motion 'was granted, and an order discontinuing the cause entered, subject, however, to the lien of said attorneys.


author: Hooker, J.

text:
    Judson A. Peck et al. v. The Board of Supervisors of the County of Berrien.

      Board of supervisors — Appointed member — Powers—Removal of county seat — Election—Ballots.
    1. A township temporarily represented by an appointed supervisor has the same voice upon the board of supervisors that it had while represented by the supervisor elected to such office.

      2. An appointment of a supervisor for the remainder of the term of his predecessor is a valid temporary appointment, though it may not prevent an election.
    3. It was intended by the use of the word “elect,” in How. Stat. § 489, which provides that, “whenever a county seat is proposed to be removed, the board of supervisors for such county .shall have power, by a vote of two-thirds of all the members elect, to designate a place to which such proposed removal is to be made,” to require the consent of two-thirds of a full board to such designation, and not to deprive townships, which should be represented by appointed supervisors, of a voice in the proceedings.
    4. After a resolution designating a place for the removal of a county seat had been offered, an amendment was offered making such designation to depend upon the city so designated providing a perfect title to a good and sufficient site for the buildings, and depositing with the county treasurer a designated sum to be used in the erection of such buildings. The committee to whom the amendment was referred reported that the resolution as amended would be legal, but did not recommend the adoption of the amendment. The report was accepted and adppted. No vote was taken upon the amendment, but the original resolution was adopted. And it is held that the amendment was not a part of the original resolution as adopted, and that its omission from the notice of election is not a valid objection to the validity of the proceedings.
    5. Eesolutions of a board of supervisors relating to the method of submitting to the electors the question of the removal of the county seat, from their nature, must be acted upon before the question is submitted, and do not affect the question to be voted upon.
    6. It is not a valid objection to the validity of proceedings for the removal of a county seat that the county board of election commissioners prepared the ballots, that they were on a separate piece of paper from the township tickets, and were deposited ■ in a separate ballot-box.
    Error to Berrien. (Coolidge, J.)
    Argued October 30, 1894.
    Decided November 2, 1894.

      Gertiorari to review proceedings for the removal of the county seat of Berrien county from Berrien Springs to St. Joseph. Defendant brings error.
    Beversed, and judgment entered in this Court for defendant.
    The facts are stated in the opinion.

      N. A. -Hamilton, George S. Clapp, and Lawrence 0. Fyfe, for appellant.

      Edward Bacon, Spafford Tryon, and Marshall Howell, for petitioners.
   Hooker, J.

The electors of Berrien county voted upon the proposition to remove the county seat from Berrien Springs to the city of S.t. Joseph, which vote was canvassed by the board of supervisors of said county, and the proposition declared carried. Upon certiorari to the board of supervisors, the proceedings were held to be void by the circuit court of Berrien county. The cause is here upon writ of error.

The proceedings are attacked:

1. Upon the alleged invalidity of the action of the board in submitting the proposition.
2. Upon alleged irregularities in the preparation and casting of the ballots and the counting of votes.
3. Upon questions relating to the canvass of the returns by the board of supervisors.

The resolution to submit the proposition received the votes of 18 out of 36 supervisors. Two of the 18 had not been elected, but were appointed to fill vacancies. It is contended that the votes of the two supervisors mentioned were unlawfully counted in favor of the proposition, inasmuch as they were not elected. How. Stat. § 489, is cited as authority for this contention. It is as,follows:

“Whenever a county seat is proposed to be removed, the board of supervisors for such county shall have power, by a vote of two-thirds of all the members elect, to designate a place to which such proposed removal is to be made, and after a majority of the electors of such county voting thereon shall have voted in favor of the proposed location, as hereinafter provided, to make and establish such county seat.”

Section 37, art. 4, of the Constitution, provides that—

“The Legislature may declare the cases in which any office shall be deemed vacant, and also the manner of filling the vacancy, where no provision is made for that purpose in this Constitution.”

How. Stat. § 729, provides for such appointment. We find no authority for the proposition that a township temporarily represented by an appointed supervisor has not the same voice upon the board that it had before the vacancy. The Constitution (article 4, § 37,' cited above) contains no implication of the kind, and the statute referred to expressly provides that the appointee shall continue to discharge the duties of the office, etc. That the use of the term “elect,” in section 489, has a purpose, is plain; but we think it more reasonable to believe that it was intended to require the consent of two-thirds of a full board, than that it was designed to deprive townships, which should be represented by appointive officers, of a. voice in the proceedings. It was intended to preclude action by two-thirds of a quorum, or of a board whose numbers had been lessened by vacancies.

It is claimed that the appointments of the two supervisors were void because made for the remainder of the term, instead of until successors should be elected. We are not referred to the appointments of these officers, but we think such appointments as these are claimed to be would be valid temporary appointments, though they might not prevent an election.

The next question of importance refers to the proposition submitted. The board of supervisors being in session on January 5, 1894, the following resolution was offered:

“Resolved, that it is the sense of this board that the county seat of this county should be removed from its present location to the city of St. Joseph, and that this board does hereby designate the city of St. Joseph as the proper place to which the said county seat should be removed; and that the question of the removal of said county seat to St. Joseph shall be, and is hereby, submitted to the electors of the said county of Berrien at the time of holding the next annual township election.”

The following amendment was thereupon offered:

“That the city of St. Joseph provide a perfect title to a good and sufficient site for the buildings, and that they deposit $10,000 with the county treasurer, to be used in the erection of said buildings, on or before the 20th day of March, 1894.”

A motion was made to “refer the amendment,” which motion prevailed. The following is the report of the judiciary committee:

To the Board of Supervisors of Berrien Bounty:
Gentlemen: Your committee on judiciary, to whom was referred the resolution of Supervisor Comings, of St. Joseph, for the removal of the county seat to St. Joseph, as amended by Supervisor Smith, of Galien, have had the same under consideration, and your committee would report that they have examined the statutes and the decisions of the Supreme Court upon this point, and that they are of the opinion that the submission to the people of the resolution, as amended, would be legal.
“Bespectfully submitted,
“George W. Bough,
“W. H. Bale,
“A. J. Easton,
“ Committee.”

The record proceeds:

“ Mr. Tichenor moved that the report be accepted and adopted, which prevailed. * * * The question now being on the resolution offered by Mr. Comings, Mr. Comings demanded the ayes and nays. The ayes and nays being had, the resolution prevailed by the following two-thirds vote.” .

Upon January 6 the following resolution was adopted:

Whereas, a resolution has been adopted by this board by a two-thirds vote thereof, proposing the removal of the county seat of this county, and designating the city of St. Joseph as the place to which such removal is to be made: Therefore,—
" Resolved, that the proposition to remove said county seat to the said city be submitted to the electors of said county on the first Monday of April, 1894, which is the time of holding the next annual township meeting; and the county clerk shall prepare, and the sheriff shall cause to be published and posted, such notices of such election as are required by the statutes in such case made and provided;
" Resolved, further, that, in cities or wards where an election would not otherwise be held on said day, a special election shall be held on such day for the purpose aforesaid, in the same manner as at charter or ward elections, and the several clerks of the inspectors of election of such cities and wards shall give the like notice of such election as is by law required for special elections; and
" Resolved, further, that said county clerk shall prepare and cause to be distributed, for the use of the electors at the several polling places of the county on said day, a sufficient number of ballots, one-half of which shall have printed thereon, 'For the removal of the county seat/ and one-half of which shall have printed thereon, ' Against the removal of the county seat.’ ”

This action was followed by the following report of a committee:

" To the Board of Supervisors of Berrien County, Mich,:
"Messrs: Your committee to whom was delegated the ■authority to visit the city of St. Joseph, and view the site or several sites presented for the purpose of acceptance by the board of supervisors for county, sites of county buildings, met at the city of St. Joseph on the 18th day of January, 1894, the committee being all present. They then, on said 18th day of January, proceeded to visit and view four sites presented; and your committee beg leave to report that they recommend for your acceptance the following described pieces or parcels of land, to wit: A piece or parcel of land described as follows, to wit: Bounded on the south by Ship street, on the north by Port street, on the east by Wayne street, on- the west by Church street; also, a half block bounded north by Front street, on the south by Port street, on the east by Wayne street, and on the west by an alley, being one-half block of lands, lots numbered 333, 334, 401, 402. All of wbieb is hereby respectfully submitted.
“Dated at St. Joseph, Mich., January 18, 1894.
“J. V. Phillips.
“W. Randall.
“C. 0. Bell.
“S. H. Martin.”

The record shows that the following proceedings were then had:

“ Mr. Comings moved that the majority report [meaning the report aforesaid, dated January 18, 1894] be accepted and adopted, which prevailed.- Mr. ¡Phillips presented a bond from the city council of St. Joseph, signed by the mayor and clerk of said city, and the proceedings of the council relating thereto. Mr. Peck moved that the bond and papers relating to the proceedings of the council be referred to the judiciary committee. Mr. Peck demanded the ayes and nays. The ayes and nays being had, the motion was declared lost by the following vote.”
The following election notice was published and posted:
“ State of Michigan, County of Berrien
To the Electors of the County of Berrien, State of Michigan:
“Ton are hereby notified that at the annual township election to be held in the several townships and city wards-of said county on Monday, the 2d day of April, A. D. 1894, there will be submitted to the electors of said county a proposition for the removal of the county seat of said county from its present location, at the village of Berrien Springs, to the city of St. Joseph, in said county, in. accordance with the following resolution passed by the-board of supervisors of said county, by a vote of two-thirds of the supervisors elect, on Friday, January 5, A. D. 1894:
“‘■Resolved, That it is the sense of this board that the county seat of this county should be removed from its present location to the city of St. Joseph, and that this board does hereby designate the city of St. Joseph as the proper place to which such county seat shall be removed; and that the question of the removal of said county seat. to St. Joseph shall be, and is hereby, submitted to the electors of said county of Berrien at the' time of holding the next annual township election.5
“In testimony whereof, I have hereunto set my hand and affixed the seal of the circuit court of said county this 6th day of February, A. D. 1894.
“Fred A. Woodruff,
[Seal.] “ County Clerk.55

It is claimed that this notice did not contain the proposition that was submitted by the board, in that the original resolution, i. e., that of January 5, was conditioned upon a site being furnished by the city of St. Joseph, and, again, that the resolution of January 6 was contradicted by the resolution of Mr. Gard in relation to the ballots. It is also contended that the record shows that the place selected for the county seat was a piece of land consisting of certain designated lots in the city of St. Joseph, while the proposition voted upon was to remove the county seat to St. Joseph, or at most to the city of St. Joseph.

We consider these objections as overtechnical. It can hardly be said that the amendment of Mr. Smith was part of the resolution of January 5, as adopted. The amendment was referred to a committee, who reported that the resolution as amended would be legal; but the record does not show that the committee recommended the adoption of the amendment. Their report was accepted and adopted, but no vote appears to have been taken upon the amendment. The original resolution, however, was adopted.

The resolution that the clerk provide distinctive “yes55 and “no55 ballots, and the subsequent resolution of Mr. Gard, were not designed to be submitted to the voters. They related to the method of submission, and, from their nature, had to be acted upon before the submission, and. did not affect the question to be voted upon.

As to the third contention, i. e., that the proposition submitted was not sufficiently specific, we think it plain that the board never intended to deprive itself of the power to locate the county buildings. It left to the voters the. question of removal to the city of St. Joseph, as clearly appears from the notice. It decided, in advance, to erect the buildings upon a site tendered by that city.

The record shows that the board were concerned about the nature of the ballots to be used. After obtaining the advice of the prosecuting attorney and Attorney General, they adopted a ballot in accordance with the advice received. The following is a copy of the ballot:

Oeeicial Ballot.
Instructions — If you desire to vote in favor of the removal of the county seat to St. Joseph, you will make a cross in the square opposite the word “ Yes,” which is printed below the words, “For the removal of the county seat to St. Joseph.”
If you desire to vote against the removal of the county seat to St. Joseph, you will make a cross in the square opposite the word “ No,” which is printed below the words, “ For the removal of the county seat to St. Joseph.”
Before leaving the booth fold the ballot so that th'e initials may be seen on the outside.
EOR THE REMOVAL OE THE COUNTY SEAT TO ST. JOSEPH.
Printed by authority.

These ballots were separate from the ballots used for the election' of officers. The objections made to them are:

1. That they were made by the board of election commissioners of the county.
2. That they were upon a separate piece of paper from that upon which the township tickets were printed.
3. That the two ballots were deposited in separate boxes.

It is contended that the county board of election commissioners can only act in cases of general elections, and that the defendant board erred in treating the spring election of 1894 as such. It is said that there can be but one ballot used at any election, and consequently that there can be but one box used. This seems to be based upon section 1 of Act No. 190, Laws of 1891, which section contains no mention of township officers, and Act No. 194, Laws of 1891, which provides for township boards of commissioners. The powers of county boards are not limited to providing ballots- for elections where the officers named in section 1 of Act No. 190 are to be voted for. Section 9 of that act makes it their duty to provide ballots for “all proposed constitutional amendments or other questions to be submitted to the electors." Under article 20, § 1, of the Constitution, proposed amendments may be submitted at the spring election, although no officers, other than township officers, are to be voted for. It would seem to follow that there may be occasion for the action of county boards • in cases not covered by said section 1. Cases of special elections for judges or county officers are apparently covered by section 1, calling for action by the board of county commissioners. It is apparent that in such cases, and at spring elections where a full State ticket is to be elected, there may be two ballots, or we must say that the township commissioners have no duties to perform. No express prohibition of a separate ballot for township officers appears in either statute, nor is there any provision for informing the county commissioners of the township tickets, unless it be inferable from section 10. On the other hand, no provision seems to have been made for notice to township commissioners of the pend-ency of propositions such as the one in question. The law, in our judgment, contemplates that where State or county measures, or State or county officers to be elected by reason of a vacancy, are to be voted upon, the county commissioners may act, and in such case the ballot may be separate from the ballot containing the tickets for township officers, and separate ballot-boxes may be used, for the furnishing of which section 6 of Act No. 190 provides.

Again, it is urged that the ballots should have been separate, i. e., some for,” and some “ against,” the proposition, as provided by How. Stat. § 491. The case of Double v. McQueen, 96 Mich. 39, justifies the counting of ballots prepared under Act No. 190, substantially like those in question.

This disposes of the important questions in the case. A number of questions are raised by the petition in this case, relating to the conduct of electors and inspectors of election, but we think it unnecessary to discuss them further than to say that the return shoe's that the inspectors caused returns of the canvass of votes in the various precincts to be made and forwarded to the county clerk, and that they were canvassed by the board of supervisors, and the result found by them was duly declared. We fail to find that in the record which would justify us in overturning their decision in the premises. See Hipp v. Board of Supervisors, 62 Mich. 456; Double v. McQueen, 96 Id. 39; Pinkerton v. Staninger, 101 Id. 273.

The judgment of the circuit court will be reversed, and one entered here for the defendant.

The other Justices concurred.

       Mr. Gard moved that the clerk be instructed to prepare the ballots for the election relating to the removal of the county seat in accordance with Act No. 190, Laws of 1891.


author: Grant, J.

text:
    John M. Fuchs et al. v. Herman Meisel et al.

      Religious societies — Voluntary organization — Corporations—Use of church property — Division of congregation — Injunction — Pleading.
    1. The bill in this case is held not to be. multifarious.
    2. How. Stat. § 4649, which provides that, “ whenever any religious society or corporation shall have exercised the franchises and privileges of a corporation for the term of 10 successive years, the same shall be presumed to have been legally organized in pursuance of the laws of this State,” creates only a presumption, and does not, in and of itself, change a voluntary organization, by lapse of time, into a corporation.

    3. A conveyance or bequest to a religious association, or to trustees for such association, necessarily implies a trust.
    4. Where such a conveyance refers expressly or by implication to the constitution, by-laws, or other written documents of the organization, courts will look to the declarations thereof to ascertain the trust and the purpose for which the property was conveyed.
    5. How. Stat. § 4639, which provides that “ neither the canon law, nor the decrees, nor any decree or order of any ecclesiastical council or body, nor any custom or usage founded thereon, nor any custom or usage of any church, congregation, or religious society or religious order, shall hereafter be recognized or enforced in this State, so far as such law, usage, or custom shall relate to the acquisition, the tenure, or the control or disposition of any real estate, or any interest therein, or any use or trust connected or to be connected therewith,” has never been construed so as to deprive those entitled to property rights, under the conclusive ecclesiastical order and decree, of a remedy which they otherwise have not.
    ■6. While members of a church possess the right to withdraw from it, with or without reason, yet they cannot take with them, for their own purposes, or transfer to any other religious body, the property dedicated to and conveyed for the worship of God under the discipline of the religious association to which said church (a voluntary association) belongs; nor can they prevent the use of such property by those who choose to remain in the church, and who represent the regular church organization.
    Appeal from Bay. (Maxwell, J'.)
    Argued June 19, 1894.
    Decided November 7, 1894.
    Bill for injunction. Complainants appeal from decree sustaining demurrer.
    Decree reversed, and record remanded for further proceedings.'
    The facts are stated in the opinion.

      T. A. E: é J. O. Weadoch and Judd, Ritchie & Esher, for complainants.

      Pratt, Van Eleech é Gilbert, for defendants.

       For cases involving the construction of certain provisions of Act No. 145, Laws of 1855, entitled “ An act concerning churches .and religious societies,” etc., being, as amended, chapter 170, How. Stat., see Wilson v. Livingstone, 99 Mich. 594, and note; Buettner v. Circuit Judge, 100 Id. 179.

   Grant, J.

The bill in this case contains, in substance, the following averments:

The Evangelical Association of North America is a. religious denomination organized about 1800, under the “ eonnectional” or “associated” form of church government, founded upon that of the Methodist Episcopal Church, and having a system of graded executivé, legislative, and judicial ecclesiastical bodies and officers, and a code of rules known as the “Discipline.” The territory covered by said denomination is divided into “Annual Conference Districts,” in each of which is held a yearly meeting of the preachers of the denomination located within such district. Every preacher who holds a pastorate within the district must attend every session of his conference. For certain purposes of local administration, each annual conference exercises jurisdiction over all its own members, and over the congregations within its limits. By the general conference, held every four years, bishops are elected for a term of four years. It is the special duty of a bishop to preside over the annual conferences, and, with the aid of the presiding elders thereof, to appoint at the conference session the preachers to their respective pastoral charges for the ensuing year, the same being the only recognized method of appointing ministers in use in said denomination since its • origin. Neither the lay members of the several congregations, nor the trustees thereof, according to the discipline of said denomination, have any voice or vote in the selection of their pastors, nor any power to reject a pastor who has been appointed in the manner aforesaid.”

The Michigan annual conference of ' this denomination has been in existence over 16 years, and has always embraced within its limits all the preachers, members, and congregations of the denomination in Bay county, Mich. Each annual conference elects presiding elders, for service' within its own bounds, and for terms of office not exceeding four years. Each year the conference assigns to each presiding elder a certain district within its territory for supervision. Under the discipline, a presiding elder is required to superintend the spiritual and temporal affairs of the denomination within his district, to enforce all disciplinary provisions, to hold services, and otherwise to officiate in the various houses of worship in his district, and once in every three months to call and preside over a quarterly conference, held in the. house of worship of each pastoral charge. In this denomination a pastor’s appointment over any particular charge lasts for one year only, though he may be reappointed at annual conference, but not more than three times in succession. A' presiding elder’s appointment over any particular district in like manner is good for only one year, though he may' be reappointed over the same district four times in succession. Under the discipline and usages of the denomination, each pastor and presiding elder is entitled, by virtue of his office, to certain emoluments derived from collections taken up among the members of their charges. Every pastor who is a married man is entitled to occupy the parsonage belonging to his congregation. “ Stewards ” are appointed in each charge, to collect funds to pay the pastor’s salary, and to procure a dwelling place for him, if a married man. Under the discipline, each quarterly conference has to provide for the support of the pastor and presiding elder, and every member must .contribute to their support according to his means, under penalty of trial under the church rules. The discipline also provides that each annual conference shall provide for the yearly salary of its preachers. In 1886 the Michigan conference enacted that each presiding elder should be entitled to a yearly salary of at least $500, and each pastor of the rank of elder should receive the same amount.

The discipline provides “that, when any trustee of a ■church of this denomination withdraws from the denomination, he shall cease to be trustee,” and also that, “ when any land is conveyed for the use of any congregation of said denomination, said land shall 'be kept in trust, to be kept, used, and maintained as a place of divine worship by the ministers and membership of the Evangelical Association of North America, with power to dispose of and convey the same, subject to the discipline, usages, and ministerial appointments of said church or association, as from time to time authorized and declared by the general conference thereof, or by the particular annual conference within whose bounds the said premises are located.” In like manner with regard to parsonages, the discipline provides “ that, if any land is conveyed to said denomination or any of its congregations for the erection of a dwelling-house for the use of preachers, the said land must be held in trust, to be kept, used, and maintained as a plac§ of residence for the preachers of the denomination who may from time to time be duly stationed in said place, with power to dispose of and to convey the same, subject to the discipline and usages of said denomination.”

In the year 1878 there was organized, “as a voluntary association,” by and among members of the denomination in and about Bay City, under the supervision of a preacher of said denomination, a congregation thereof under the name of Zion’s Church of the Evangelical Association of North America in Bay City, County of Bay, State of Michigan.” Until the acts of the defendants herein complained of, said congregation, without dissent, always acted as, and claimed to be, a part of said denomination, and subject to its rules and usages, and to the jurisdiction of the general conference of the denomination and of the Michigan annual conference; and, in particular, said congregation always accepted as their pastor and presiding elder only such persons as had been appointed thereto according to the discipline and -usages of said denomination.

-“With a single exception,~the said Zion’s society, in each and every year after its organization, in 1878, up to the spring of 1891, solicited and received from the said Michigan annual conference an appropriation or contribution of money, for the purpose of maintaining the said society, and paying its current expenses as a society belonging to said denomination. At times such yearly appropriations amounted to $500.”

In 1878, with money contributed for the purpose by members of the denomination within- the bounds of the Michigan conference, and by the members of said conference, there was purchased, and in part paid for, a lot of ground in Bay City (describing the same); and, with funds derived from the same sources, said society thereupon erected upon said lot a building, which was used for a house of worship, according to the rules and discipline of said Evangelical Association. In November, 1882, the owner of said lot conveyed the same in fee to “Zion's Church of the Evangelical Association of North America in Bay City, County of Bay, State of Michigan.'' The deed contains the following clause:

“This deed being made pursuant to a contract for the sale of said premises made by Jennie F. Paine to August Meisel, Frederic Koch, and August Kosky, bearing date the said 8th day of June, 1878, which contract has been assigned by said Meisel, Koch, and Kosky to the trustees of said party of the second part hereto, and said premises having been conveyed subject to said contract by said Jennie E. Paine to James T. Lawson, by said Lawson conveyed to Hiram A. Jones, and by said Jones conveyed to John W. Forsyth, above named.”

Afterwards, in 1889, with funds contributed by members of the denomination both in said Zion's society and elsewhere within the bounds of the Michigan conference, and collected by preachers of said conference from persons not members, upon the representation that such contributions were tó be used to erect a church of said denomination, there was erected by said society on lot 7 a new house of worship for use according to the usages and discipline of said denomination, and not otherwise. In laying the corner stone of said new edifice, the pastor in charge (being a person appointed thereto from the Michigan conference), in the presence of said congregation, and with its consent, used the forms prescribed in said discipline. These forms require the officiating clergyman to declare that “ we lay this corner stone as the foundation of a house to be dedicated to the service of the Most High, according to the order and rules and for the use of the Evangelical Association.” Afterwards, when completed, said edifice was dedicated under the discipline by a bishop of said denomination. The disciplinary form required the bishop to declare that “ we now declare, designate, and consecrate this house as the [name of the church] of the Evangelical Association of [name of place],” for divine worship and the observance of, “devotional services, rules, -and customs adopted and practiced in public worship by the Evangelical Association.”

In November, 1884, with funds subscribed by members of the Evangelical Association, and solicited by the pastor in charge (appointed from the Michigan conference), there was purchased by the said Zion’s society another lot (number 6) in Bay City. Such lot was conveyed by the owner to “the Zion Church of the Evangelical Association of North America in Bay City, County of Bay, State of Michigan.” In the early spring-of 1889, said Zion’s congregation solicited and received from said Michigan annual conference 8500, to be used in part payment for a parsonage to be erected on said lot 6. With the money so donated, and with other funds contributed by the members of the denomination, there was erected on said lot a parsonage “for the use, as a dwelling-house, of the preacher who should be duly appointed at the Michigan annual conference as the pastor of said congregation under the discipline.”

Until 1893 no person had ever been admitted to membership in said congregation except such as were members of the denomination; and no one had acted as trustee or officer of the congregation except persons who had been admitted to the denomination and into said congregation according to the rules of the denomination.

At a regular session of said Michigan conference,, in April, 1890, the complainant Bev. Q-eorge A. Hettler was elected presiding elder for the ensuing four years; and at a session of said conference in April, 1893, the district which includes said Bay City charge was assigned to said Hettler for the ensuing year. Said Hettler is a duly-ordained elder of the denomination, and a member of said conference, and was such prior to 1890. The complainant Rev. John M. Fuchs is a duly-ordained elder of the denomination, and a member of said Michigan conference. At the session of said conference held in April, 1893, he was appointed by the presiding bishop, with the aid of the presiding elders of said conference, pastor of said Zion’s Church. Said complainant is a married man. Since their appointment, as aforesaid, said Hettler and Fuchs have endeavored to enter said church, and officiate therein as presiding elder and pastor, respectively; and said Fuchs has demanded from defendants the possession and the right to occupy the said parsonage. But the defendants and their adherents in said congregation have excluded both of said complainants from» the church and said Fuchs from the parsonage, and have denied their official authority, and threaten to continue so to do, and to exclude them “ from the enjoyment of any perquisites or emoluments belonging to the office of presiding elder and pastor, respectively, of said charge;” but they recognize the defendant Schneider as their lawful pastor, and they admit him into said church as pastor, and permit him to receive the collections taken up for the pastor’s salary, and have admitted him into the occupancy of the parso'nage; and they threaten to continue thus to support said Schneider in the possession of said office, and the use of said church and parsonage.

“In March, 1893, the defendants (save and except Schneider) and their adherents in the said congregation formally resolved and declared that they would no longer submit to the authority or the rules of the officers of the constituted tribunals of the said Evangelical Association, but that they would separate from and be independent of the said Michigan annual conference in all respects, and they notified said conference of this resolution.”

The complainants Hebinger and Fenske are now, and for some years past have been, members of the denomination and of the said Zion’s Church,, and have attended worship at the latter, and have contributed to the support of said congregation. Said Hebinger has not attended services since the defendant Schneider has been acting as pastor, .because he believed said Schneider not to be the lawful pastor. Besides the complainants, “ there are a large number of the members of said congregation who dissent from such unlawful acts and proceedings, and who still adhere to the said Evangelical 'Association and its rules, and still recognize and submit to the authority of the complainants Hettler and Fuchs, respectively, as their presiding elder and duly-appointed pastor, and who desire the said church edifice and parsonage to be used by said Hettler and Fuchs as by the discipline required and permitted, as aforesaid.’’

The defendant Schneider now holds, and refuses to surrender, the books and papers pertaining to the affairs of the congregation, which, under the discipline and usages . of the denomination, rightfully belong to the custody of the lawful pastor; such as the registers of marriages, births, deaths, etc., the membership lists, and the financial accounts of the congregation. Since April, 1893, the stewards of the congregation have collected funds applicable, under the usages of the denomination, to the payment of the pastor’s salary. Part of said funds have been paid over to defendant Schneider. Defendants and their adherents threaten to continue to take up such collections, and pay them to said Schneider, to the extent of at least $600 per annum; and, they pretend that they have hired the services of said Schneider, for a year or more, as pastor.

In excuse of these unlawful acts, defendants and their adherents pretend that the said Michigan conference of 1893 was not a lawful conference of the Evangelical Association, and that, therefore, complainant Hettler’s appointment over the presiding elder’s district, and the complainant Fuchs’ appointment as pastor, were not valid. In this regard complainants say that said Michigan conference of 1893 was composed of the preachers within the district theretofore duly fixed by general conference, and duly qualified under the discipline to be members of said body, and that the time and place at which it was convened had been duly' fixed the preceding year by the presiding bishop, and a majority vote of said conference duly convened. The bishop presiding when complainant Fuchs was appointed pastor had been elected as bishop by a general conference of the denomination held in October, 1891, at Indianapolis. The bill then sets forth facts to show the regularity and validity of said Indianapolis body as a general conference of this church.

Prior to assuming the office of pastor of Zion’s Church, defendant Schneider had withdrawn from the Michigan conference and from the Evangelical Association.

Complainants file their bill on behalf of the members of the denomination and of the Michigan conference, “and especially on behalf of the members of said Zion’s Church congregation at Bay City who still adhere to the said Evangelical Association.” The defendants (except Schneider) are the trustees of said Zion’s Church, “ and, as such, have the actual possession of the said church edifice and parsonage, and are exercising control thereover.”

The relief prayed is as follows: That defendants be restrained from interfering in any way with the complainant Hettler in the discharge of his duties as presiding elder of said congregation, and in taking up collections from said congregation for his salary; from withholding from said Hettler funds heretofore collected from said congregation as and for the salary of the presiding elder; from preventing Hettler from entering the church, and officiating therein as presiding elder, and from holding his quarterly conferences therein;, from interfering with complainant Fuchs in the discharge of his duties as pastor; from preventing his entrance into the church, and from interfering with his collection of contributions for his salary; from withholding from said Fuchs funds already collected as and for the pastor’s salary; from excluding Fuchs -from the parsonage; from- withholding from said Fuchs the said records, registers, etc., pertaining to the congregation, and lawfully belonging to the custody of the pastor; that defendant Schneider be restrained from acting as pastor of said congregation, from officiating in and about said church edifice as pastor, and. from taking up collections from said congregation for pastor’s salary; that the defendants account for moneys heretofore collected by them (as and for pastor’s and presiding elder’s salary) from ■said congregation, and be decreed to pay over the amount, when ascertained, to the complainants; that the rights of the respective parties be ascertained and decreed.

A demurrer was interposed, stating the following reasons:

1. That the bill covered “distinct matters and causes, in several whereof the complainants are not in any manner in common or jointly interested or concerned.”
2. That the bill is multifarious.
3. That the bill states no cause for relief of any kind.

The demurrer was sustained.

1. We see no force in the contention that the bill sets forth no grievance common to all the complainants, and seeks no common relief. The complainants are interested in the same subject-matter, and all claim one common right to use the church, although ..in different ways. Fuchs, as pastor, and Hettler, as presiding elder, are ¿entitled to the use of it for ■ the purpose of conducting divine” worship. Fuchs is entitled to the use of the parsonage in connection- with the church, and the other complainants are entitled to the use of the church for the purpose of worship according to its discipline and usages. We therefore think the bill is not multifarious.

2. While the bill alleges that Zion’s Church at Bay City is not a corporation, but a voluntary association, it is nevertheless insisted that it is a corporation, because the bill shows that it has exercised the franchises and privileges of a corporation for a term of more than 10 successive years; that it has bought and held real estate in its corporate name, has erected a church and parsonage, and that all its temporal affairs are controlled by a board of trustees. It is therefore argued that its rights must be controlled by the same rules that apply to religious societies duly incorporated. In support of this, section 4649 of Howell’s Statutes is cited. This section provides that—

“Whenever any religious society or corporation shall have exercised the franchises and privileges of a corporation for the term of 10 successive years, the same shall be presumed to have been legally organized in pursuance of the laws of this State.”

This statute creates only a presumption. It does not of itself change a voluntary organization, by lapse of time, into a corporation. It was held in Smith v. Bonhoof, 2 Mich. 128, that, under this statute, “no church can become incorporated, provided the powers conferred by the statute upon the corporators are, by the constitution, laws, or usages of the church, lodged in another body.” See, also, Allan v. Duffie, 43 Mich. 3; Methodist Church v. Clark, 41 Id. 730. The allegation, therefore, that the church is a voluntary association, must be assumed as true.

3. It is next argued that no trust is created by the conveyance in favor of the Evangelical Association of North^ America; that, therefore, the legal title is in the local church; and that the Evangelical Association of North America obtained no. right to the church property or its use, under the statute abolishing uses and trusts. The complete answer to this argument is that the general association is not a complainant in this case, nor is it seeking to enforce any title to or claim over the property. The complainants claim the right to its use under the discipline and usages. A conveyance or bequest to a religious association, or to trustees for that association, necessarily implies a trust. The deed in this case shows that the contract was made to certain persons as trustees for the church, and that the deed was made pursuant to that contract. We would naturally look to the written declarations in the constitution, by-laws, and written' documents of the organization to ascertain the trust and the purpose for which the property was conveyed. If the deed refers expressly or by implication to such writings, courts will look there for the declaration of the trust. It is by no means clear that these defendants, who are now the trustees, are in position to set up the statute of frauds. Neither the grantor nor any other person claiming under him is setting 'up this claim. Both parties claim under the same conveyance. In Lynd v. Menzies, 33 N. J. Law, 166, it is said:

“The imperfection relied on was_the absence of an incorporation. But the want of this quality does not at all affect the rights and duties of pastor and people towards each other. The effect of becoming incorporated is to facilitate the acquisition and transfer of property, and to enable the congregation to be represented in the convention of the diocese. But by the canonical law of this denomination of Christians, it is not necessary, in order to. constitute a church, that the congregation should take the form of an incorporated body. Indeed, the very law of this state which provides for the incorporation of this class of' churches presupposes and requires that there shall be, antecedent to the inception of proceedings, fa congregation of the Protestant Episcopal Church in this state, duly organized according to the constitution and usages of said church.’ In the case now before us, it plainly appears that this church was constituted in conformity to the ecclesiastical law and usages applicable to it, and the consequence is that the plaintiff, by his official connection with it, acquired all the customary powers and privileges pertaining to the rectorship.”

In any view of the case, the allegations of the bill are sufficient to require an answer and proofs.

4. The principal .and important question in the case is whether the trustees and the members of this local church at Bay City can, by a majority vote, withdraw its connection with the general body, take the church property with them, set aside the itinerant plan, and deprive their regularly appointed ministers of its use. In this determination the allegations of the bill alone can be considered. Ex parte affidavits, which were used upon the hearing for a preliminary injunction, cannot be considered in the nature of an answer, and must be entirely excluded from this discussion.

It is insisted that under How. Stat. § 4639, the violation of church discipline and church law is to be corrected by ecclesiastical tribunals, and that the State courts have no jurisdiction. Courts, of course, will not set aside the decrees and orders of ecclesiastical courts involving the construction of their own articles of faith or discipline. But. this statute has never been so construed as to deprive those entitled to property rights,- under the conclusive ecclesiastical order and decree, of a remedy which they otherwise have not. Buettner v. Circuit Judge, 100 Mich 179, does not aid the defendants, for it was there said that “both parties must first exhaust the remedies afforded by the ecclesiastical body before the courts will consider the questions involved.” See, also, Smith v. Bonhoof, 2 Mich. 115, where is found an able discussion of this provision of the statute. Nor is this' case ruled by that of Wilson v. Livingstone, 99 Mich. 594. In that’ case the chnrch was a corporation organized under the statutes of this State, and the difference between such a corporation and the case of a voluntary society was expressly recognized. It was there stated that the obligations and rights of the members of a voluntary society are to be measured by their articles of association or constitution.” ,

In the present case the bill recognizes the defendant trustees as the lawful trustees, in charge and in possession of the church property. No attempt is made to deprive them of its control or possession when used in a legitimate manner. The only purpose is to compel them to permit the use of the church and parsonage according to the discipline, rules, usages, and polity of the church. It is immaterial in whom, the legal title stands. One party may hold the title, and another be entitled to the use and possession of the property; or, as in this case, both may be entitled to its joint use and possession. It may be admitted for the purposes of this hearing that the title is in the local society or its board of trustees. The question is not, as in many of the cases cited in the briefs of counsel, in whom is the title to the property? but, in whom is the right to its use for religious worship both as pastor and layman? The bill sets forth fully'the history, the discipline, and polity of the church, the title of complainants Hettler and Fuchs to the offices which they hold, and the right to the use of the church property to which said officers are entitled. The question presented relates exclusively to property rights, over which the proper courts have almost universally exercised jurisdiction. If the defendants’ position be’ the true one, it, follows that they are in no manner bound to the faith and tenets of this church, and that they may withdraw, and take the property to any other denomination of Christians.

The plan of the Evangelical Association is identical with that of the Methodist Episcopal Church. The itineracy of its clergy is one of its chief distinctive and fundamental principles. The church at Bay City entered into the voluntary association with full knowledge of its discipline, rules, and usages, and agreed to be bound thereby. Its property was not purchased with funds raised entirely by its own members, but in part by members of the Michigan conference and others, for the purpose of erecting a church of said denomination. The building was consecrated in accordance with its discipline, and for many years, and until after the schism in the church, the local body at Bay City accepted the pastor and elder appointed by the proper authorities. The churches of this body, when they entered it, voluntarily surrendered the right to choose their own pastor, and agreed to accept the pastor appointed by the bishop with the aid of the presiding elders.

Many authorities might be cited sustaining the rights of complainants, but we shall refer to but few. They may ba found in the briefs of counsel. This religious body ia nearly identical in its discipline with that of the Methodist Episcopal Church. In each the itineracy of the clergy is one of the articles of its discipline. The right of the trustees of a local church of that denomination to close its doors against a pastor appointed by the bishop was passed upon in Whitecar v. Michenor, 37 N. J. Eq. 6, a case identical in its facts with the present one. The trustees in that case closed the building against the duly-appointed pastor, ■on the ground that it was not for the interest of the church that' he should be its pastor, and that he was appointed against the wishes of the majority of its members. The court say:

It is not claimed that there is any warrant in the ■discipline of the church for the action of the trustees, nor that the discipline provides that the wishes of the majority of the members shall determine whether the preacher appointed to the charge shall act as such or not. If the church belongs to the Methodist Episcopal connection, as it is admitted it does, there is no warrant of law, discipline, or usage for the acts of the defendants. What is known as the itineracy of the preachers and the absolute power of the bishops over the appointments of the preachers to the churches is part of the discipline.”

An injunction was issued in that case to prevent the trustees from closing the church building against the regularly appointed pastor. In a foot-note to that case are ■collated many authorities bearing upon the question, as well as upon the jurisdiction of a court of equity to grant an injunction.

Counsel for defendants, in their brief, admit that the local church at Bay City adheres to the faith of the Evangelical Association, and they say that the church services and Sunday school are conducted in the same manner and in the same faith as before, and that it withdrew in order to keep away from the factions of the association. The reasons for such action are stated in the brief. In the freedom of conscience and the right to worship allowed in this country, the defendants and the members of this ■church undoubtedly possessed the right to withdraw from it, with or without reason. But they could not take with them, for their own purposes', or transfer to any other religious body, the property dedicated to and conveyed for the worship of God under the discipline of this religious association; nor could they prevent its use by those who chose to remain in the church, and who represent the regular church organization. If complainants maintain the allegations -of their bill, — that they represent the regularly organized body of the church, and are its regular appointees, — they are entitled to the relief prayed. .

The decree of the court below is reversed, and the case remanded for further proceedings, with costs of both courts.

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

       Counsel cited: Bear v. Heasley, 98 Mich. 279; McGinnis v. Watson, 41 Penn. St. 9; Sutter v. Trustees, 42 Id. 503; Winebrenner v. Colder, 43 Id. 244; Schnorr’s Appeal, 67 Id, 138; Roshi’s Appeal, 69 Id. 462; Schlichter v. Keiter, 156 Id. 119; Jones v. Wadsworth, 11 Phila. 227; Church v. Wood, 5 Ohio, 283; Harrison v. Hoyle, 24 Ohio St. 254; Watson v. Jones, 13 Wall. 679; People v. Steele, 2 Barb. 397; Den v. Pilling, 24 N. J. Law, 653; Gibson v. Armstrong, 7 B. Mon. 491; Curd v. Wallace, 7 Dana, 190; Ferraria v. Vasconcelles, 23 Ill. 456.


author: Long, J.

text:
    The Lake Shore & Michigan Southern Railway Company v. The City of Grand Rapids et al.

      Railroad companies — Exemption from taxation — Local improvements — Collection of assessment.

    1. The exemption from taxation granted to the Michigan Southern Railroad Company under its special charter does not apply h> lines organized under the general railroad law of the State, and thereafter leased and operated by said railroad company.
    2. The contention that the words “in lieu of all other taxes,” as used in How. Stat. § 3360, which provides that the specific tax paid by a railroad company organized under the general railroad law shall be in lieu of all other taxes upon the property of such company, etc., preclude the levying by a city of special assessments for local improvements, cannot be sustained.
    3. Terminal property of a railroad company, consisting of a freight house and a portion of its road-bed and right of way, cannot be sold, under the provisions of a.city charter, for non-payment of assessments thereon for local improvements.
    4. The validity of an assessment for benefits upon a portion of the right of way and road-bed of complainant’s road, including a freight-house on said right of way, occasioned by the paving of the street upon which said assessed property abuts, is sustained. The sale of said property to satisfy said assessment is set aside, but without prejudice to the right of the defendant city to proceed to the enforcement of the assessment in such mode as it may deem best.
    Appeal from the superior court of Grand Rapids. (Burlingame, J.)
    Argued June 23, 1894.
    Decided November 7, 1894.
    Bill to vacate an assessment for local improvements, to enjoin the execution of a deed on a sale of the property to satisfy the assessment, and to restrain any further sales. Complainant appeals from decree sustaining demurrer. Decree reversed, and one entered- in this Court in accordance with the opinion. The farots are stated in the opinion.

      O. F. Weaver and FitzGerald & Barry (Francis A. Staee, of counsel), for complainant.
    ■ William Wisner Taylor, for defendants.
   Long, J.

On April 24, 1891, the, common council of the city of Grand Rapids determined, by resolution, to* pave a part of West Bridge street, including the part which passes the complainant’s railroad and freight house. The pavement was constructed, and on January 1], 1892, the-common council designated the district benefited; which included the north 100 feet of complainant’s premises, and assessed complainant for benefits therefor the sum of $846.50, the premises being'valued at $1,500. From this assessment complainant appealed to the common council, on the ground that its lands were not liable to assessment for such improvements. This claim was denied by the common council, and the assessment roll was confirmed on March 21, 1892. The assessment was to be paid “in five annual installments. The first was not paid, and the land was sold by the city marshal for the amount of the same and costs of sale, on November 4, 1892. i The second installment not being paid, it was returned by the treasurer to the city clerk. The city charter provides (title 6, §§ 33, 41) for the execution of a deed by the mayor at the expiration ■ of one year from the date of sale. This bill was filed September 39, 1893, for the purpose of vacating the assessment as illegal, on the ground that the complainant is not liable to assessment for this municipal street improvement, and that its premises are not benefited or susceptible of benefit thereby, and to enjoin the mayor from executing a deed on the sale for the first installment, and the marshal from selling on the second. The defendants demurred generally to the bill. The court sustained, the demurrer, and dismissed the bill.

The contentions of the complainant are:

1. That, under the special acts of the Legislature by which it is incorporated, it cannot be assessed or taxed for municipal street improvements.
3. That, under the general railroad law, it cannot be so assessed or taxed.
3. That the charter of the city of Grand Rapids does not authorize the assessment of such tax on the lands of ■complainant used and operated in the exercise of its franchises.
4. That the lands of complainant so used are not sus- ' ceptible of benefit from a street improvement, and for that reason cannot be assessed.

The Michigan Southern Railroad Company was originally organized under a special charter. Laws of 1846, p. 170, Act No. 113. By its charter it is provided:

The said company shall pay to the State an annual tax of one-half of one per cent, upon the capital stock paid in, including the $500,000 of purchase money paid or to be paid to the State, until the first day of February, 1851, and thereafter an annual tax of three-fourths of one per cent, upon its capital stock paid in, including the $500,000 of purchase money aforesaid, and also upon all loans made to said company for the purpose of constructing said railroad, or purchasing, constructing, chartering, or hiring of steamboats authorized by this act to be held by said company, which tax shall be paid in the last week in January in each year to the State Treasurer; and the property and effects of said company, whether real, personal, or mixed, shall, in consideration thereof, be exempt from all and every other tax, charge, and exaction by virtue of any laws of this State now or hereafter to be in force, except penalties by this act. imposed.”

Afterwards, in the year 1855-, an act was passed by the Legislature to authorize the Michigan Southern Railroad Company to consolidate with the Northern Indiana Kailroad Company. Laws of 1855, p. 300, Act No. 138. This act contains the following provision:

“ The said corporation so to be organized by virtue of this act shall continue subject to the same rate of tax as though such consolidation should not take place, and the .amount of its capital and loans hereafter upon which such taxation shall be paid shall be such portion of the whole of its capital and loans as is actually employed in the State of Michigan,”

It is contended that the words “tax, charge, and exaction,” employed in the statute, cover every kind of assessment which can be made under the taxing power of the State, and that, under this special act by-which complainant was incorporated, it cannot be assessed or taxed for municipal street improvements.'

The act of 1846, for the organization of the Michigan Southern Railroad Company, also provided for the sale of the Southern Railroad, and for the right of the newly-organized company to purchase it. The new company was authorized to build a road from the city of Monroe, passing through Petersburg, Adrian, Hillsdale, thence to Cold-water, and thence to Lake Michigan, on the line theretofore established as the line of the Southern Railroad by the State, or anywhere further, southward than said line; and also from the junction of the Tecumseh branch with the Southern Railroad, to pass through the villages of Tecumseh and Clinton, to the village of Manchester, in the county of Washtenaw. The Michigan Southern Railroad was to construct and put in operation its road fyom Hillsdale to Coldwater within four years, and from Cold-water to the St. Joseph river within eight years, and from the St. Joseph river to Niles within twelve years, and within three years put in operation the Tecumseh Branch to the village of Jackson, along the line .of railroads formerly authorized to be constructed by the Jacksonburg & Palmyra Railroad Company. The act further provided that the line of railroad thus completed should constitute a continuous line of railroad from the waters of Lake Erie, in the city of Monroe, to Lake Michigan. The scope of the act, therefore, was to build a line of railroad across the State from east to west, through the several places named, and to complete the branch from. Tecumseh to Jackson. It was this company, organized to construct and operate this road, to which the act of 1846 applies. The act of 1855 authorized the Michigan Southern Railroad Company to consolidate with the Northern Indiana Railroad Company, but in no manner changed the rate of taxation. State Treasurer v. Auditor General, 46 Mich. 224. Afterwards, the consolidated company organized under the nanle of the Lake Shore & Michigan Southern Railway Company. Thereafter the complainant company leased or otherwise acquired the control of the railroad extending from White Pigeon, St. Joseph county, to the city of Grand Rapids, and has since operated it in its own name. It was no part of its original line, and it is not disputed that the portion from Kalamazoo to Grand Rapids was originally known as the Gardner Road,” and was organized under the general law of this State.

Whatever the rights of the complainant company may be under the act of 1846 as to taxation, that act cannot fee made applicable to this leased road, it being organized under the general railroad law. The exemption from taxation under the act of 1846 was a special privilege granted to the Michigan Southern Eailroad Company, and it cannot be extended to such lines as that company might thereafter lease and operate, which were organized under the general railroad law of the State. In fact, the rule seems to be much narrower than this; that is, that the exemption from taxation must be construed to have been the personal privilege of the very corporation specifically referred to. In a note to Cooley on Taxation (2d ed. p. 212) it is said (quoting from Railroad Co. v. Railroad Commissioners, 112 U. S. 609):

This salutary rule of interpretation is founded upon an obvious public policy, which regards such exemptions as in derogation of the sovereign authority and of common right, and, therefore, not to be extended beyond the exact and express requirement of the grants construed strictis-simi juris.”

In the case cited it appears that the railroad company exempt from taxation had attempted to transfer its franchises to another corporation, which therefore claimed the exemption, and filed its bill to restrain taxation. The bill was dismissed, the Court saying:

The exemption from taxation must be construed to have been the personal privilege of the very corporation specifically referred to, and to have perished with that, unless the express and clear intention of the .law requires the exemption to pass as a continuing franchise to a successor.”

No such intention can be found in the statute of 1846. It is claimed, however, that, under the general railroad law of this State, this property cannot be made liable for local improvements of this character. It is provided by the general railroad law (How. Stat. § 3360) that a tax shall be paid by every company formed under its provisions to the State Treasurer, based upon a percentage of the gross income of the company, and that the tax so paid “shall be in lieu of all other taxes upon the property of such companies, except such real estate as is owned and can be conveyed by such corporation under the laws of this State, and not -actually occupied in the exercise of its franchises, and not necessary or in use in the proper operation of its road.” It is contended that the words “in lieu of all other taxes” preclude the levying of such assessments for local improvements.

We are satisfied that this contention cannot be sustained. As said by Mr. Justice Cooley:

“It is a very just rule that, when an exemption is found to exist, it shall not be enlarged by construction. On the contrary, it ought to receive a strict construction; for the reasonable presumption is that the state has granted in express terms all it intended to grant at all, and that, unless the privilege is limited to the very terms of the statute, the favor would be extended beyond what was meant.” Cooley, Tax’n (2d ed.), p. 205.

Speaking of local assessments, the learned author says, on page 207:

“ The most striking illustration of the rule of strict construction of exemptions is seen in the case of special assessments for local improvements, such as the paving and repair of streets, etc. It is almost universally held that a general exemption from taxation will not extend to such .assessments. In the leading case, the words of the exemption were that no church or place of public worship 'should be taxed by any law of this state/ Upon this the court remarked: ‘The word “taxes” means burdens, charges, or impositions put or set upon persons or property for public uses, and this is the definition which Lord Coke gives of the word “talliage” (2 Inst. 232); and Lord Holt, in Carth. 438, gives the same definition, in substance, of the word “tax.” The legislature intended by that exemption to relieve religious and literary institutions from these public burdens, and the same exemption was extended to the real estate of any minister, not exceeding in value $1,500. But to pay for the opening of a street in the ratio of the benefit or advantage derived from it is no burden. It is no “talliage” or “tax,” within the meaning of the exemption, and has no claim upon the public benevolence.’”

Judge Dillon, in his work on Municipal Corporations (§ 777), speaking of the strictness with which these statutes are construed, says:

“Although an ‘assessment’ is in the nature of a tax, and is authorized by or is a branch of the taxing power, yet a general statute exempting certain property — as, for example, churches — from ‘ taxation by any law of the state ’ does not exempt it from liability for a street assessment.” In re Nassau Street, 11 Johns. 77.

It was held in State v. City of Newark, 27 N. J. Law, 185, that a railroad charter exempting the company, in consideration of the payment of a certain tax, from any “ other or further tax or imposition ” upon it, does not exempt it from liability for an assessment- upon houses and lots owned by it, and benefited by the opening and widening of a street; but that the corporation cannot for such a purpose be assessed without reference to the special benefit conferred upon property owned by it, as such an assessment would be in fact a tax, from which it is exempt. See, also, Railroad Co. v. City of New Britain, 49 Conn. 40; City of Ludlow v. Trustees, 78 Ky. 357.

But Judge Dillon says (§ 778):

“ Aside from the rule of strict construction which applies to exemptions from taxation, the cases cited in this and in the previous section will show that there is, in their ordinary use, a recognized difference between the words tax ’ and assessment,’ and that the one does not always or usually include the other. Thus, a constitutional provision that ‘ taxation shall be equal and uniform throughout the state ’ does not apply to local assessments upon private property to pay for local improvements. So a provision of the constitution of a state which requires ‘ the rule of taxation to be uniform,’ in connection with another provision that ‘ it shall be the duty of the legislature to provide for the organization of cities, and to restrict their power of taxation, assessment, etc., so as to prevent abuses in assessments and taxation,’ is construed not to apply to special assess ments by municipal corporations, made by authority of the legislature, for local improvements,” — citing Weeks v. City of Milwaukee, 10 Wis. 242.

It is evident that the great weight of authority upholds the doctrine that assessments for local improvements are not within the general exemption from taxation. Under the general railroad law of this State, the taxes'mentioned are such burdens, charges, or impositions as are put or set upon persons or property for public uses; and this law has no reference to. special assessments for local improvements in the ratio of the benefit or advantage to be derived from them. It is apparent from the statements in the bill that certain benefits are derived to this property by the improvement made. The proportion of these benefits is determined by the local officers..

But a more serious question is raised by counsel for complainant. It is insisted that the mode of collection of the tax fixed by the charter cannot be adopted and carried out as against the complainant, a railroad corporation. The proceedings prescribed by the charter for the collection of the taxes are as follows: After the assessment roll has been made and confirmed by the common council, it shall be delivered by the city clerk to the treasurer of the city; Ninety days after the receipt of the assessment roll, the treasurer shall return it to the city clerk, with a list of the real estate on which the assessment has not been paid, stating the amount of the tax and collection fees on each parcel, and the names of the persons to whom assessed. Within 30 days after the return of such list, the clerk shall cause the list to be published in a newspaper, with a notice of sale. The marshal shall attend the sale, and act as auctioneer. If no person bids the amount of the assessment, the lands shall be struck off to the city of Grand Rapids. No bid for less than the assessment, fees, and expenses, with interest, shall be received; and the land may be redeemed within one year on payment of the amount for which it was sold, with interest from date of sale at 25 per cent. If not redeemed, the mayor shall execute a deed to the purchaser. The city is empowered to hold, occupy, enjoy, use, possess, lease, incumber, and convey lands bid off to it at such sales as fully and completely as a natural person. At the time of this assessment, no other means were provided by the charter for the collection of such assessments. It is claimed by counsel that a railroad is an entirety, and cannot be cut up and taxed and sold for taxes in parcels; that such a proceeding would result in a destruction of the franchise, and destroy the availability of the road to the public, who are entitled to its benefits as a means of transportation.

In City of Detroit v. Detroit City Railway Co., 76 Mich. 421, 427, it was said:

But these tracks are only special adaptations, for a particular use, of the surface _ of public highways, and, under our laws concerning levy and sale on execution, each track would be sold as a whole to the bidder for the shortest term of years to collect tolls for the usé of it. * * * The right to use the tracks is inseparable from the franchises, and, it not being taxable as land, it should properly be taxed as an entirety to the corporation.”

In Hackley v. Mack, 60 Mich. 591, 604, it was said:

We have no law that we have yet discovered, and certainly none has been pointed out to -us, which authorizes the sheriff to levy upon the track or road-bed of a railway, even against the corporation. If any levy can be made upon the property of the company, aside from such goods and chattels as may be found and seized and taken into custody by the sheriff, it is only, on the franchise of earning tolls, as provided by the corporation laws.”

In Applegate v. Ernst, 3 Bush, 648, the court said:

The railroad, from one end to the other, is an entirety, and as a whole only may be subject to taxation or coercive sale. Fragmentary taxations or sales might be nnjnstly vexatious and injurious to the owners, pervert the destination of the road, and disturb the public use and interest. To avoid such evils and absurdities, the law treats a railroad and all its appurtenances as, one entire thing, not legally subject to coercive severance or dislocation. In that consolidated character it must be taxed for state revenue, and cannot be a fit subject for local taxation by the separate counties through which it runs.”

In the case of Georgia v. Railroad Co., 3 Woods, 434, 438, Mr. Justice Bradley, speaking in reference to a tax levy made on the depots, freight houses, passenger houses, and offices of the company for taxes due the state, says:

“It cannot be supposed that the legislature, in authorizing its construction, and granting peculiar franchises for its operation and use, ever intended that execution creditors might levy upon parcels of it, and cut it up into sections, and destroy it as a great public thoroughfare. Such a supposition' seems to us preposterous. Suppose a mile of the road should be levied on and sold, would the purchaser have a right to fence it in, and take up the rails and cross-ties, and plant it, and thereby destroy the railroad? Could this be done without contemning the power of the state by which it was created and made a public highway? We think not.”

In Porter v. Railroad Co., 76 Ill. 561, it was held that, if a railroad was to be assessed at all, it must be as an entirety.

These cases arose under a claimed power of taxation by the state or by counties, or attempted levies under executions, and not under local assessments; but the reasoning is equally applicable against sales for local assessments where the attempt is made to collect by sale of the roadbed, or, as in this case, the freight house, road-bed, and right of way.

It is said, however, that this was a terminal of the road, and the rights of the public could not be affected by the sale of such terminal. We cannot accede to this. The sale of the freight houses and terminal of right of way and tracks might seriously affect the business of the company and the' rights of the public. In Railroad Co. v. Trustees, 7 Hun, 652, an assessment was made upon a part of the road-bed of plaintiff for benefits in opening a street. Proceedings were had to set aside the assessment; and it was held that the defendant could not sell the entire road-bed, nor any lands necessarily used by plaintiff for the purpose of its franchise. The case was, however, rnled as coming within section 59, chap. 277, Laws of 1864, defining and limiting the powers of the trustees.

It is suggested, though not strenuously contended, by counsel for defendants, that though no sales may be made of the real estate assessed for the purpose of paying this tax, yet the assessment against the property is valid, and may now be collected from the personal property of the complainant, under and by virtue of the amendment to the city charter in 1893, contained in title 6, § 10, Act No. 418, Local Acts of 1893. . That section provides:

“At the time of the delivery of the assessment roll to the city treasurer, the mayor shall attach his warrant thereto, commanding him to collect the assessment therein contained, together with the fees hereinbefore prescribed, within 90 days from the date thereof; and further commanding and authorizing said treasurer, when he may deem it necessary so to do, to levy and collect the same by distress and sale of any personal property upon such premises belonging to the premises chargeable to said assessment.”

Just what personal property, there may be “upon such premises belonging to the premises chargeable to said assessment” it is difficult to perceive; or just what this provision means is difficult of ascertainment. If there were a general clause in the charter authorizing the collection from the personal property of the corporation, we could see no difficulty in enforcing the collection,- as we are of the opinion that though the lands and premises assessed cannot be Sold for the tax, for the reasons before stated, yet the assessment for the local improvement- is valid. The only question in this case is the mode of collection. Whether there is any law under which the city can now proceed for the enforcement of the payment of the tax is doubtful. None has been pointed out, and it may need further legislation-on the subject to enable the city to collect.

The decree of the court below must be reversed, and decree entered here in favor of complainant, setting aside the sale of the premises, and releasing the levies under the tax warrant as to the other years. The assessment for benefits will not be disturbed, but will stand as a valid and subsisting assessment upon the property for the improvement thus made. The relief granted is without prejudice to the defendant city to proceed to the enforcement of the assessment in such mode as it may deem best.

McGrath, O. J., Grant and Hooker, JJ., concurred. Montgomery, J., did not sit.