text:
    YOUNGS v. CLARK.
    Tax Sales — Validity of Decree — Premature Adjournment of Court.
    Under section 66 of the tax law (Act No. 206, Pub. Acts 1898), providing that if it shall be made to appear to the court, within five days after the day fixed for hearing the petition of the' auditor general for the sale of delinquent lands, that any person, without fault on his part, has been prevented from filing objections to. the tax, additional time may be granted for that purpose, a decree of sale is void as to a landowner who did not appear, where the court finally adjourned on the fourth day after the day fixed for the hearing of the petition. Peninsular Savings Bank v. Ward, 118 Mich. 87, followed.
    Appeal from Marquette; Stone, J.
    Submitted April 21, 1899.
    Decided July 5, 1899.
    Petition by Clark W. Youngs against Frederick O. Clark and others for a writ of assistance. From an order denying the writ, petitioner appeals.
    Affirmed.

      W. S. Hill, for petitioner.

      Clark & Pearl, for respondents.
   Long, J.

This is an application for a writ of assistance under the tax law. The land in question was returned delinquent for the taxes of 1893. It was sold .to the State in December, 1895, and reoffered by the county treasurer in December, 1896, and sold to the petitioner, who received a certificate of sale at that time. At the same time, petitioner purchased the lands for the taxes of 1894, and received a certificate subject to redemption. Petitioner, sent his certificate on the purchase for the 1893 tax to the auditor general, and on March 25, 1897, a deed was issued to him. A deed on the sale for the taxes of 1894 was also issued to him after redemption expired. Objection is-made to the issuing of the writ of assistance, on the ground that the deed is void for the reason that the court, at the time the decree was entered, failed to remain in session five days after the time fixed by the court for the hearing of the auditor general’s petition, so as to allow that time in which objections might be filed, in accordance with the provisions of section 66 of the tax law of 1893 (Act No. 206, Pub. Acts 1893), and therefore that the decree so entered is void, and no deed could issue on a sale made thereunder.

It appears that November 5, 1895, was the day designated by the court as the day for hearing the tax petition. The court finally adjourned on November 9th. The respondents were entitled, upon a proper showing, to the five days in which to make their objections. They were deprived of that right by the adjournment of the court before the five days had elapsed. Under the ruling of this court in Peninsular Savings Bank v. Ward, 118 Mich. 87, the court below very properly refused to grant the writ of assistance.

The order below must be affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Long, J.

license: Public Domain

text:
    PEOPLE v. NUNN.
    1. Criminal Law — Accomplices—Uncorroborated Testimony.
    A person charged with a crime may, in this State, be convicted npon the uncorroborated evidence of an accomplice.
    2. Same — Affidavit Impeaching Testimony — New Trial.
    The denial of a motion for a new trial in a criminal case on the ground of newly-discovered evidence, consisting solely of the affidavit of an accomplice to the effect that the testimony given by him upon the trial was false, will not be disturbed on appeal.
    3. Same — Premeditated Homicide — Degree of Crime.
    One who induces another, by promise of reward, to lie in wait and commit homicide, is guilty of murder in the first degree, and a jury, in passing upon his guilt, is properly limited to the consideration of that offense.
    Error to Grladwin; Sharpe, J.
    Submitted May 2, 1899.
    Decided July 5, 1899.
    Benjamin C. Nunn was convicted of murder in the first degree, and sentenced to imprisonment for life in the state prison at Jackson.
    Affirmed.

      Sumner Collins, for appellant.

      Guy E. Smith, Prosecuting Attorney, for the people.
   Long, J.

Respondent was convicted of murder in the first degree. The information charged in one count that one Richard Roy Nunn feloniously, willfully, and of his malice aforethought did kill and murder one Curtis Wright, and that Benjamin C. Nunn, the respondent, though not present, did aid and abet in the commission of the crime.

Richard Roy Nunn is the son of respondent. On the trial this son testified that his father, about a week before the shooting of Wright, promised him that, if he would kill Wright, he would give him half of certain money he claimed he had in Canada, which he was then going after; that his father went from home, and on July 10th he (the witness) went over to Wright’s, entered the chicken-house, took some chickens, and put them in a bag he had with him; that one of the chickens made a noise, when Wright and his wife came out with a dog; that he lay down in the grass, but the dog followed, and barked at him, when he fired one shot at the dog; that Wright then ran towards him, and he fii'ed the other shot at him. Wright died from this second shot. The witness testified, further, that he went there that night to shoot Wright, because he was asked by his father to do so. Respondent denied this story, and testified that he knew nothing of the killing of Wright; that he did not advise it; and that he had no talk with his son about it. Respondent was convicted, and sentenced to the state prison for life. A motion for a new trial was subsequently made in the case, claiming:

1. That the verdict was against the weight of evidence.

2. That the testimony of Richard Roy Nunn given on the trial was false and perjured, as he himself admits, and that without his testimony thei'e was no evidence of respondent’s guilt.

3. That there is newly-discovered evidence.

This motion was denied by the court below, and the proceedings for such new trial are incorporated in the bill of exceptions.

It is contended here that the respondent was convicted upon the uncorroborated testimony of Richard Roy Nunn, , upon the theory that respondent was an accessory before the commission of the crime, and a conspirator with him in its accomplishment, and that, under such circumstances, the conviction should be set aside. It is settled in this State that a person charged with a crime may be convicted upon the evidence of an accomplice, without any corroboration or confirmation of such testimony from other sources. People v. Gallagher, 75 Mich. 512, and cases there cited. There were some corroborating circumstances, however, in this case.

The charge of the court was fair, and fully protected all the rights of the respondent. The court charged the jury that:

“ The respondent has pleaded not guilty to the information, and the presumption of law falls on him all through this case that he is innocent until he is proven guilty. He does not have to establish his innocence; the people have to establish his guilt. The burden of proof is on the people all the way. They have to satisfy your minds beyond any reasonable doubt, by the evidence which they have produced before you for your consideration, of the guilt of the respondent. If, after you have considered the testimony in this case, and viewed it in connection with the surrounding circumstances, you can say, in your own minds, you have a reasonable doubt as to whether or not the respondent is guilty, then it is your duty to acquit him; he is entitled to the benefit of that doubt. On the other hand, after you have considered the evidence, if no such doubt exists, it is your duty, as honest, intelligent, conscientious jurors, to say by your verdict that he is guilty.
“Now, there has heen considerable said by counsel on both sides as to the weight which the jury in this case should give to the testimony of Richard Roy Nunn, and it may be somewhat difficult for me to lay down any principles of law' governing that question for you. It is not my province and I wish to say to you that you must not form any opinion of the facts in this case from anything I may say to you. You must not form any idea that I think the facts are established one way or the other. You are the sole judges of the facts, and, if anything I should say should intimate to you how you might think I felt as to the facts, you are to disregard that in making up your verdict. You have a right to follow the directions of the court as to the matters of law, but you are to be in no way guided by any impressions you may have formed as to the court’s opinion of the questions of fact. Now, the fact that this young man, by his own admissions upon the stand, is a bad boy; or the fact that he has told stories which are untrue before this relative to this same offense and his connection with it; the fact that he has been in the habit of stealing, and perhaps committing other crimes, —are things which you are to weigh carefully and consider in giving credit to his testimony. You have to consider the several stories that he has told, and you have a right to think and reason out in your own minds, if you can, what, if any, motive he had in telling these several stories. And in that way you must reason out and satisfy your own minds as to which of these stories is probably true. It is only important in that you must determine as to whether or not the story that he has told upon the witness stand in this trial, and which he now insists is true, is, as a matter of fact, true. If, after you have considered his life and character, the stories he has told, and all the circumstances surrounding his connection with this affair, you honestly and conscientiously believe the story that he has told here of his father’s connection with this crime is true, then it is your duty to believe it, and your verdict must be governed by it. * * *
“If you find that Roy Nunn and George Martell, or any other person or persons, went to Mr. Wright’s for the purpose of stealing poultry, and that ■ the killing of Mr. Wright was simply to prevent' identification or capture and personal injury to themselves, then Mr. Nunn is not guilty.
“The testimony of an accessory in a crime should be received with extreme caution, and every possible motive for falsehood should be taken into consideration as affecting his credibility. If you cannot believe the testimony of Roy Nunn fully and freely, — that is, if you have any reasonable doubt of his story being true, — you have no right to convict the respondent. * * *
“Now, this is an important case, — important to the people and important to the respondent. The people of this county are interested in seeing to it that no man who has been guilty of the offense such as the respondent is here charged with should be allowed at liberty. It is important to the respondent, in that no man who is innocent of the crime should be punished or convicted of that crime. Thus, you can see that you have an important and solemn duty to perform in this case, — the duty of determining the guilt or innocence of the accused. You must approach the consideration of the case with the careful, honest, intelligent consideration such as jurors should give to matters of such importance. Your sympathies should not enter into the consideration of the matter. It is the duty of the court and the duty of the jury, in this case, to weigh out and administer to this respondent justice, and your verdict should be founded along that line. It should not be guided by sympathy, or should not be guided by revenge. The fact that the deceased, Mr. Wright, was foully murdered, is not any reason this man should be convicted unless he is guilty. All such sentiment you are to leave behind you when you enter the jury-room to consider of your verdict in this case, and, as honest, intelligent citizens of this county, you should, under the instructions I have given you, find your verdict from the evidence.”

Counsel for respondent contends that if the shooting was done by Richard Roy Nunn for the purpose of aiding his escape, and not in furtherance of the original design entered into between himself and his father, respondent could not be convicted. The court covered that entire question in his charge.

■The newly-discovered evidence consists principally of the affidavit of Richard Roy Nunn, which was read on the motion for new trial. It was made since his confinement in the state prison, and in it he states that his testimony given on the trial o'f the respondent was false in every particular, so far as it inculpated his father in the commission of the crime, and he also states that George Martell went with him on the evening in question, and that Martell carried the gun and did the shooting. This affidavit was fully considered by the court below, and the motion for new trial was denied. That court had seen the witnesses upon the trial and heard their testimony. He saw and heard the testimony given by Richard Roy Nunn, and the finding of the court in the refusal of the motion has great weight with us in determining the question. That court was in better position to determine the truth or falsity of that affidavit than we are. The affidavit is not supported by any other circumstance than the bald statement of the affiant that his father is not guilty, though on the witness stand, and subject to severe cross-examination, he told the story of his father’s complicity in the crime.

It is further contended that the court was in error in not directing the jury that they might render a verdict for a lesser offense than murder in the first degree. There was no error in this. If the respondent was guilty at all, it was of murder in the first degree, and nothing short of that. The jury were' left to determine his guilt or innocence, and the court properly instructed them that, if they found him guilty, it must be of murder in the first degree. People v. Repke, 103 Mich. 459.

We are satisfied that justice has been done in the prem-ises, and that the court below was not in error in refusing the new trial. The conviction must be affirmed.

The other Justices concurred.


text:
    THOMAS v. AUDITOR GENERAL.
    1. Takes — Setting Aside Sale — Reliance op Owner on Prior Decree.
    A tax sale will be set aside at the suit of a landowner who had xno actual notice of the proceedings, and who had previously obtained, in a court of competent juaisdiction, what he believed to be a valid decree setting aside the tax.
    2. Same — Equity Practice — Parties.
    Owners of distinct parcels of land affected by the same tax may join in a bill to set it aside as invalid.
    3. Same.
    The auditor general is not a necessary party to a bill to set aside a township tax.
    Appeal from Gogebic;. Haire, J.
    Submitted April 18, 1899.
    Decided July 5, 1899.
    Petition by Samuel Thomas and John W. Sterling against Poscoe D. Dix, auditor general, John P. Moore, and Charles E. Miller, prosecuting attorney, to set aside a tax sale. From a decree for petitioners, defendant Moore appeals.
    Affirmed.

      M. J. Sherwood and A. E. Miller, for petitioners.

      Frank F. Kutts and Charles M. Humphrey, for appellant.
   Long, J.

The land in controversy, situated in the township of Bessemer, county of Gogebic, was assessed in the year 1892 for certain state, county, township, highway, school, “old highway,” and other taxes; and, while the roll was still in the hands of the township treasurer, the taxes were all paid, except one-half of the highway tax, and the so-called ‘ ‘ old highway ” tax. Subsequently the lands were returned delinquent for this unpaid one-half of the highway and the old highway tax. In June, 1894, the owners of land in this township, who had all paid in'the same way all taxes but these two, joined in a bill against the township, asking that the one-half of this highway tax and the old highway tax for the year 1892 be decreed to be illegal and void, and the lands freed from the lien of these taxes, and the cloud created thereby removed. The appearance of the township was entered by solicitor, a copy of the bill served upon him, and, no answer being made by the township, its default was taken, and a decree rendered on August 16, 1894, as prayed for in the bill. The auditor general was not made a party to this proceeding. It appears that these lands were returned delinquent for these taxes of 1892, and in July, 1894, the auditor general filed his petition for the sale of the lands. The order on the petition fixed the time for hearing as of August '27th, which was 11 days after the decree of the circuit court declaring the taxes illegal and void. No-appeal had been taken from that decree. The decree on the auditor general’s petition was rendered September 28, 1894. In December, ,1894, the land in controversy was sold under the auditor general’s proceedings, ’ bid in by the State, and on March 22, 1897, purchased by, and deeded to, defendant Moore by the auditor general. It was found by the court below that the petitioners here, who are the owners of the land in controversy, had no knowledge of the sale of the lands in the proceedings by the auditor general, or that defendant Moore claimed any title to them, until May 17, 1897, when an agent of petitioners accidentally noticed the publication of an order on a bill, filed by defendant Moore to quiet title. On ascertaining this, the petitioners presented a certified copy of the decree of the circuit court of August 16, 1894, to the auditor general, who on July 20, 1897, issued a certificate of error canceling the tax deed to the lands held by defendant Moore. Petitioners then filed this petition. Defendant Moore appeared, proofs were taken, and the court below made a decree setting aside the tax deed, and vacating the decree entered on the auditor general’s petition. Defendant Moore appeals.

While many questions are raised and discussed by the defendant, but two or three need -be noticed. The petitioners had prosecuted their bill to have these taxes declared void to a decree in the circuit court in chancery in Gogebic county. The defendant township appeared in that case, and no appeal was taken. The petitioners rested upon their supposed rights under that decree. The defendant contends that the proceedings under that decree and the decree itself are void on their face. The proceedings were had before a court of competent jurisdiction, and that court, by its decree, held that the taxes were void. The owners of the land rested upon that. No actual notice was given to them of the filing of the auditor general’s petition, or of any of the proceedings taken thereunder. It is true that the usual notice was published upon the filing of the auditor general’s petition, but the'owners of the land, having taken the proceedings to set the taxes aside, had no reason to anticipate that any such proceedings would be taken, as the decree was not appealed from. They had paid all the taxes they considered valid, and had a right to suppose that the whole controversy in reference to the taxes was ended. The case falls in principle within the cases oh Hand v. Auditor General, 112 Mich. 597; Hough v. Auditor General, 116 Mich. 663; Carpenter v. Jones, 117 Mich. 91; Kneeland v. Wood, Id. 174. In those cases it appeared that the parties had made every proper effort to pay the taxes assessed, and were misled by the officers having the matter in charge. In the present case, the parties had taken the steps which the law points out to rid themselves of an invalid tax, and free the land from the incumbrance thereof. They rested upon what they thought to be a valid and proper decree. The township had notice of this proceeding, and appeared therein. These were township taxes solely, and no other governmental subdivision had any interest in them. The state and county taxes had been paid for that year. We shall, however, refer briefly to the contentions of defendant.

It is claimed that, in the bill against the township, there was a misjoinder of complainants. The complainants had each paid all taxes on their lands except one-half of the highway tax and the old highway tax. They each had the same interest in the proceedings. They were each similarly affected by what they claimed to be the illegal tax. The tax was assessed at the same time on each parcel, and under the same statute, by the same assessing officer. It is settled in this State, under such circumstances, that the parties may join as complainants in a bill to set aside illegal taxes. Scofield v. City of Lansing, 17 Mich. 437; Zabel v. Harshman, 68 Mich. 270; Turner v. Hart, 71 Mich. 139.

It is also contended that the auditor general was a necessary party to the proceedings against the township to set aside these taxes. This contention cannot be sustained. The township taxes, as soon as assessed, became a debt due to the township, and the county treasurer, in making the sale, bid in the lands “ in the name of the State, for the State, county, and township, in proportion to the taxes, interest, and charges due each.”

These last propositions, however, have no significance in the present case. We are satisfied to rest our ruling in affirming the decree below upon the proposition that the petitioners had the right, under the circumstances, to rely upon the decree setting aside the taxes.

The decree of the court below must be affirmed, with costs to the complainants.

The other Justices concurred.


author: Hooker, J.

text:
    CHITTENDEN v. CITY OF LANSING.
    Municipal Corporations — Contracts—Authority op Board op Public Works — Alterations.
    Under the charter of the city of Lansing, the common council determines when a public building shall be erected. The board of public works then prepares plans and specifications, and submits them, with an estimate of the cost, to the council. Bids are advertised for, and are reported by the board, with recommendations, to the council, which alone may authorize the execution of a contract. Held, that a provision in such a contract that, in case of alterations, a fair valuation of the work added or omitted should be made by the board of public works, and the sum agreed to be paid for the work, according to the original specifications, increased or diminished in accordance therewith, gave the board no authority to bind the city for alterations in an amount in excess of the contract price.
    Error to Ingham; Person, J.
    Submitted May 4, 1899.
    Decided July 5, 1899.

      Assumpsit by Charles M. Chittenden against the city of Lansing for extra material furnished under a building contract. Prom a judgment 'for defendant, plaintiff brings error.
    Affirmed.

      Kilbourne & Harris, for appellant.

      Charles B. Collingwood, City Attorney, for appellee.
   Hooker, J.

The plaintiff was the successful bidder for the contract for the erection of the city hall at Lansing. According to the specifications, the bidders named the stone from which they respectively proposed to build the face of the walls, and the plaintiff named “Blue Amherst. ” His bid also contained a tender of ‘ ‘ Blue Amherst Select ” at an increased cost of $2,160. After his bid was accepted, the board of public works directed him to substitute Blue Amherst Select for Blue Amherst stone, and he at once changed his order in compliance therewith. The council repudiated this action without delay. The building was completed and accepted, and the contract price of $108,000 was paid to the pláintiff,. but the council refused to pay the sum of $2,160 for the substitution of Blue Amherst Select stone, denying the authority of the board of public works to make the change and bind the city therefor, and claiming that the council did not consent thereto. The brief of counsel for the plaintiff states that the committee of the board of public works recommended the acceptance of the bid of the plaintiff on March 25, 1895, and that the report was adopted by the board, and its action was ratified and confirmed by the council, on the same day. Counsel say that the specifications required alternative bids on stone, and that the contract executed by the board of public works on behalf of the city contained paragraph 3 of the specifications, reading as follows, viz.:

“(3) Should any alterations be required in the work shown or described by the drawings or specifications, a fair and reasonable valuation of the work added or omitted ■ shall be made by the board of public works, and the sum herein agreed to be paid for the work, according to the original specifications, shall be increased or diminished, as the case may be. In case such valuation is not agreed to, the contractor shall proceed with the alteration, upon the written order of the said board, and the valuation of the work added or omitted shall be referred to three (3) arbitrators (no one of whom shall have been personally-connected with the work to which these presents refer), to be appointed as follows.”

Their contention appears to be that this paragraph authorized the board of public works to increase the expenditure by changes in the specifications. But we agree with the learned circuit judge that this cannot be true. Under the charter the city council determines whether it will build a public building. The board then procures plans and specifications, and reports them, with an estimate of cost, to the council. Bids are advertised for, but before a contract can be made it must be authorized by the council. In this case the council authorized a contract to be made binding it to pay $108,000 for the construction of a building according to certain plans and specifications. The board of public works cannot bind the city by an agreement to increase the contract price. We are not cited to any case upholding such power. If this arrangement binds the city, then there is no limit to the power of the board to make changes in material and construction at the public expense. We feel that this is a hard case, and that there is a moral obligation on the part of the council to pay for this extra which the public would be slow to forgive a private person for disregarding; but we have not the power to give relief.

The judgment is affirmed.

The other Justices concurred.


text:
    GLOVER v. RADFORD.

    1. Actions — Fraud—Election op Counts.
    It is error to require an election of counts in an action based upon fraudulent representations in the sale of corporate stock, where one count is framed on the theory of plaintiff’s rescission on learning of the fraud, and his resulting right to recover the purchase price, and the other, designed to meet a possible failure to establish rescission, seeks damages for the fraud.
    2. Rescission op Contract — Laches—Evidence.
    In an action to recover the price paid for corporate stock, based upon a rescission for fraudulent representations in its sale, it was error to exclude testimony, offered to excuse apparent laches, of one who was elected director subsequent to the sale to plaintiff, as to the steps that led to the discovery of the fraud.
    Error to Wayne; Frazer, J.
    Submitted May 9, 1899.
    Decided July 5, 1899.
    Case by Henry P. Glover against George W. Radford, James W. Fales, and Alexander MeVittie for alleged false representations on the sale of corporate stock. From a judgment for defendants, plaintiff brings error.
    Reversed.

      Fred A. Baker, for appellant.

      E. G. Stevenson and T. E. Tarsney, for appellees.

       Rehearing denied November 7, 1899.

   Hooker, J.

The defendants purchased, for $30,000 in cash, the exclusive right to the Dr. Keeley Gold Cure for the State of Michigan. With two others, they organized a corporation called the Keeley Institute, with $50,-000 capital stock in 2,000 shares. The articles stated that $30,000 was paid in. It began business at Northville, December 2,1891, where it was continued until May, 1892, when it was removed to Ypsilanti. Its only substantial asset was the right to use the Keeley cure in Michigan. One Van Oleve, representing the plaintiff and other residents of Ypsilanti, had some negotiations with the defendants, who at that time controlled, if they did not own, all of the stock of the corporation, with a view to procuring an interest in the concern and having the business removed to Ypsilanti; and such an arrangement was made whereby amended articles were filed increasing the stocli to $250,000, of which the Ypsilanti parties subscribed $50,000. The evidence shows that the defendants sold one-fifth interest in the concern for $50,000, and that this consideration went to them; and we think that the record shows that the increase of capital stock to $250,000 was with the assent of plaintiff, and the knowledge on his part that only $30,000 had been paid in. The business was not successful at Ypsilanti. This action was brought to recover the consideration paid, or damages for deceit on the part of defendants in the sale.

The claim of plaintiff’s attorney is that the purchase by his client was induced by the representation that the concern was earning 12 per cent, upon $250,000, that this was not true, and that the plaintiff did not discover the fraud until a short time before the action was commenced, and that he then sought to rescind, but his offer was refused. He then brought this action, joining counts based upon rescission and upon breach of the contract. The court held that the counts were inconsistent, and required the plaintiff to elect which theory he would stand upon, and counsel chose rescission, taking exception to the ruling. Counsel asked the witness Coombs what he did, after being elected upon the board of directors in March, 1893, in regard to finding the situation of the company, stating that the answer would bear upon the question “when the fraud was discovered.” The court excluded the answer against the plaintiff’s exception.

These are the most important questions in the case, and we think there is error in both. There can be no doubt that the two theories were inconsistent in a sense, because one is based upon the continuation of the contract and the other upon its rescission. The plaintiff attempted to rescind by tendering the stock and demanding the money that he paid for it. If there was fraud, he had the right to do this, provided he had not waived it and could put the defendants in statu quo. But he took the chance of being unable to convince the court and jury that he had not waived his right to rescind, and, if he should fail in this, he could not recover if he relied upon the single count, although the jury might find that he had been defrauded. If there was fraud, and he did not succeed in rescinding the contract, he certainly ought to have the right to recover damages for the injury he had suffered, if any. Had defendants consented to rescission, and acted upon it, the case would have been different, for there might then have been an estoppel; but there is nothing in the nature of an estoppel here. We have frequently held that one is bound by his choice between inconsistent rights or remedies; but, where there is no estoppel, this cannot usually be, unless the person really had a right of election: In this case the plaintiff claimed that he had a right to rescind, and-tried to rescind, but he did not succeed, either because he really had no such right or because he.failed to seasonably assert it. He supposed that he had a remedy growing out of rescission, but it turned out that he was mistaken, and this left him the right to-recover for the fraud, if there was fraud. This subject was discussed in McLaughlin v. Austin, 104 Mich. 491; Chaddock v. Tabor, 115 Mich. 33; Sullivan v. Ross’ Estate, 113 Mich. 316. It is a common practice to permit the joining of counts which state the cause of action differently, to prevent a possible variance between the declaration and the proof. The plaintiff should not have been required to elect between the counts of his declaration.

The case being tried upon the theory of rescission, it was competent for the plaintiff to offer testimony to explain the delay in commencing the suit and excusing laches. The testimony of Mr. Coombs was offered for that 'purpose. Being excluded, we cannot tell whether it would have sustained the claim of counsel or not, but we ’think that he should have been permitted to introduce such proof.

We think a discussion of other questions raised unnecessary. The judgment is reversed, and a new trial ordered.

The other Justices concurred.


author: Moore, J.

text:
    ADAMS v. NOBLE.
    Party Walls — Covenants Running with Land.
    A party-wall agreement whereby the first party is given the right to build the wall at his own expense, and the second party, his heirs, executors, administrators, or assigns, is given the right to connect with the wall at any time upon payment to the first party, his heirs, executors, administrators, or assigns, of one-half the cost, the parties then to become joint owners, and which expressly provides that the undertaking shall be perpetual, and shall create covenants running with the land, entitles the successor in title of the first party to the payment made on the use of the wall by the second party or his assigns, as against one who claims under an assignment of the agreement.
    Appeal from Kent; Adsit, J.
    Submitted May 4, 1899.
    Decided July 5, 1899.
    Bill of interpleader by William M. Adams and George W. Hart against Albert D. Noble, Marj^ A. Kendall, and Abbie A. Weller, to determine the title to a fund arising from a party-wall agreement. From a decree for defendant Kendall, defendant Noble appeals.
    Affirmed.

      T. J. O'Brien and James H. Campbell, for appellant.

      Champlin & Stone, for defendant Kendall.
   Moore, J.

In August, 1875, a contract was made between Peter Kantenberger and Gerret Brusse, with the following provisions:

“Whereas, the said Kantenberger is seised and possessed in fee of that certain piece of land, situate in said city, known and described as lot No. three (3) in block No. one (1) of the original Converse plat of a subdivision of said city, which plat is now vacated, and said Brusse is seised and possessed in fee of that other piece of land adjoining and lying along the westerly side of said first parcel, and being lot No. four (4) of said block No. one (l) of said vacated plat, said premises being on the north side of Grand river, fronting on West Bridge street, and between West Water (or Front) street and Grand river; and
“Whereas, the said Brusse is about building on his aforesaid lot a brick building, the easterly wall whereof it is intended shall be not less than sixteen inches thick, and shall rest the one-half its width on the west margin of said Kantenberger land, and the other half its width on the east margin of the said Brusse land:
“Now, therefore, the aforesaid parties of the first and second part agree to and with each other as follows:
“1. That said Brusse shall have the right, at his own present charge and expense, to place, erect, keep, and maintain said wall one-half its width on the west margin of the said lot No. three (3) of block No. one (1) aforesaid.
“2. That said Kantenberger, his heirs, executors, administrators, or assigns, may at any time hereafter; whenever he or they may see fit, make connection to said party wall, and use the same in the construction of any building he or they may erect on said lot No. three (3), so that from thenceforward such wall shall be and become the division wall between the buildings erected on said lots three and four (3 and 4), and shall belong to, and be kept and maintained by, the owners of such buildings at' their equal expense: Provided, always, and the above seeond clause, and the rights thereby conferred, shall depend and be contingent upon the said Kantenberger, his heirs, executors, administrators, or assigns, paying or causing to be paid to the said Brusse, his heirs, executors, administrators, or assigns, the one-half part of the original cost or expense of said wall, for material and construction, to be arrived at either by actual statement of the same or by appraisal of competent persons. And until such cost or expense is actually paid to the said party of the second part, his legal representatives, heirs, or assigns, the said party of the first part shall not make any attachment to said wall, or use the same in any manner or for any purpose, as a party wall or otherwise; but, when such payment is duly made by said party of the first part, his legal representatives, heirs, or assigns, then the said wall, and the whole thereof, shall be and become the joint property of the owners of the buildings which it supports and divides.
“Further, thé parties hereto, each to the other, hereby agree that the aforesaid agreement and undertaking shall be perpetual, and shall create covenants running with the lands described above, and shall be and remain forever binding upon said parties, and their heirs and assigns, forever.”

This case depends upon the construction to be given to this contract. The owner of lot 3 has recently used the party wall, and is ready to pay for so doing. Mr. Noble claims he is entitled to the fund, for the reason that he has an assignment of the contract in relation to the wall. Mrs. Kendall claims she is entitled to it, because by mesne conveyances she has become the owner of lot 4. The court below found in favor of Mrs. Kendall. From that decree Mr. Noble appeals. His solicitors say in their brief that there is only one point in the case; that* there is no statute of this State, nor reported decision of this court, on'this point; that—

“The rule of law upon which we rely is as follows: An agreement for a party wall to be built by one party, half the cost to be paid to him by the other party whenever he should desire to use it, is personal; and such payment cannot be enforced by a grantee of the party who built the wall, though the agreement also provided that it should be construed as a covenant running with the land. ”

They cite in support of that proposition Sebald v. Mulholland, 155 N. Y. 455; Voight v. Wallace, 179 Pa. St. 520; Weld v. Nichols, 17 Pick. 538; Joy v. Savings Bank, 115 Mass. 60; Gibson v. Holden, 115 Ill. 199 (56 Am. Rep. 146); Behrens v. Hoxie, 26 Ill. App. 417; Bloch v. Isham, 28 Ind. 37 (92 Am. Dec. 287); 1 Jones, Real Prop. § 800; Parsons v. Loan Ass’n, 44 W. Va. , 335; and other cases.

It is the claim of the solicitors for Mrs. Kendall—

“1. That the covenant to pay and to receive the money paid is, under the agreement, a covenant running with the land, and passes to the grantees by deed of the covenantors.
“2. That, under this contract, the title of the whole wall was vested in Mrs. Kendall until payment by the grantees of Kantenberger, and, when such payment is made to Mrs. Kendall, there is, by force of the covenant, a constructive sale by her of the undivided half of the whole wall, which then becomes the joint property of the owners of the buildings which it supports and divides.”

To the last-named proposition they cite Gibson v. Holden, 115 Ill. 207 (56 Am. Rep. 146). To the first proposition they cite Mott v. Oppenheimer, 135 N. Y. 312 (17 L. R. A. 409); Weyman’s Ex’rs v. Ringold, 1 Bradf. Sur. 40; King v. Wight, 155 Mass. 444; Richardson v. Tobey, 121 Mass. 457 (23 Am. Rep. 283); Maine v. Cumston, 98 Mass. 317; Tomblin v. Fish, 18 Ill. App. 439; Roche v. Ullman, 104 Ill. 11; National Life Ins. Co. v. Lee, (Minn.) 77 N. W. 794; and many other cases.

It is insisted by the solicitors for Mrs. Kendall that a distinction is to be made between the cases where the covenant to reimburse is personal to the party who built the wall, and those where the covenant to reimburse is by one party, his heirs, executors, administrators, or assigns, to the other party, his heirs, executors, administrators, or assigns, and that this contract belongs to the last-named class. It is urged that, when this distinction is borne in mind, the conflict between the authorities is more apparent than real.

It is difficult to harmonize all the authorities, but we think they may fairly be divided into two classes, — one class holding that the covenant for payment is personal, and does not run with the land, when it is apparent from the contract that the payment should be made to the party building the wall, and there are no words indicating that the right to receive payment shall pass to his assigns; the second class holding that the covenant runs with the land, and passes to the purchaser or assignee, when the contract evinces such intention, and where the language used is between the parties and their assigns, and the contract declares the covenant shall be perpetual, and binding upon the parties and their heirs and assigns. 1 Jones, Real Prop. § 799, reads as follows:

“A party-wall agreement in the usual form between adjoining landowners runs with the land. Thus, an agreement under seal between adjoining lot-owners, for themselves, their heirs and assigns, acknowledged and recorded, and providing that either party may build a party wall, one-half on the land of each, and that, whenever the other party uses the wall so built, he or she shall pay one-half the cost of its erection, is a covenant running with each lot. Such an agreement creates an easement of use and support in favor of each lot-owner and his successors in title in the half of the wall which stood on the other lot, and in the land under the same. Each lot of land becomes entitled, therefore, to the benefits, and subject to the burdens, arising from the covenants contained in the agreement, and relating to the erection and maintenance of the wall. They inhere in and belong to it.”

In this case Brusse was given the right, at his own cost and expense, to erect one-half the wall on lot 3. When the wall was erected, the right to have the wall remain there could not be withdrawn, and, though it was on Mr. Kantenberger’s land, the latter, his heirs, executors, and assigns, could none of them use it until he or they had paid Brusse, his heirs, executors, and assigns, one-half of the original cost of the whole wall. This they had a right to do whenever they desired to make such use of the wall, and that right could be enforced when the money was paid, even though not asserted until long after Brusse was dead. The contract then provided that, when the money was so paid, the said wall, and the whole thereof, should become the joint property of the owners of the buildings which it helps to support; that the agreement should be perpetual, creating covenants running with the land, and binding upon the parties, their heirs and assigns, forever. We think this contract falls within the second class mentioned above, and the decree is affirmed, with costs.

The other Justices concurred.


text:
    ATTORNEY GENERAL, ex rel. BARBOUR, v. PINGREE.
    1. Municipal Corporations — Power to Operate Street Railways — Constitutional Limitations — Internal Improvements.
    Act No. 338, Local Acts 1899, purporting to empower a commission, to be appointed by the common council of the city of Detroit, to acquire for the city, and maintain and operate in its behalf, the system of street railways which lies partly within and partly without the corporate limits, and comprises over 140 miles of track, is void under article 14, g 9, of the Constitution, prohibiting the State from being a party to or interested in any work of internal improvement, the operations contemplated by'the act being of sufficient magnitude to constitute internal improvements, and the legislature being powerless to authorize the municipality to do what the State could not itself do.
    2. Same —Ownership of Tracks Entirely Within Corporate Limits.
    Whether municipal ownership of tracks entirely within -..the corporate limits might be authorized under the Constitution, —qucere.

      Quo ivarrcmto by Horace M. Oren, attorney general, on the relation of George H. Barbour and others, against Hazen S. Pingree,' Elliott G. Stevenson, and Carl E. Schmidt, to determine the validity of the áct creating the Detroit Street-Railway Commission.
    Submitted May 5, 1899.
    Judgment of ouster entered July 5, 1899.

      Elisha A. Eraser and Jasper C. Gates ( Charles A. Kent, Hinton E. Spalding, Otto Kirchner, and Elbridge F. Bacon, of counsel), for relators.

      John J. Speed (Henry M. Duffield, Fred A. Baker, John C. Donnelly, and Charles D. Joslyn, of counsel), for respondents.
   Moore, J.

This is a proceeding brought to test the validity of an act approved March 24, 1899, entitled “An act to authorize the city of Detroit to construct, acquire, maintain, and operate street railways, and to construct' extensions thereof.” Act No. 338, Local Acts 1899. The provisions of the act material to this discussion are as follows:

The people of the State of Michigan enact:
“Section 1. That the common council of the city of Detroit be, and is hereby, authorized and empowered to appoint by resolution, at any time within the next 20 years, three persons, electors and freeholders of said city, who shall constitute a board of commissioners, to be known as the Detroit Street-Railway Commission. One of said commissioners shall be appointed for the term of two years, one for a term of four years, and one for a term of six years. Their successors shall be persons of like qualifications, and shall be appointed by the common council on the nomination of the mayor of said city, at the éxpiration of said term, for the term of six years. Vacancies shall be filled by appointment by the mayor, and persons so appointed shall hold office for the unexpired term. All members of said commission shall hold their “offices, respectively, until their successors are appointed and qualified. Any person otherwise eligible may be appointed as aforesaid, notwithstanding he may hold other office, excepting that of alderman.”
“ Sec. 5. The said commission may in their discretion, and upon such terms and conditions as they may deem advisable for the interests of said city, acquire, by deed, lease, or other satisfactory conveyance from the company or companies owning the same to said city, any street railway or railways existing at the time of the passage of this act, and lying wholly within or partly within and partly without said city, operated by the same company or companies, together with the property, assets, rights, privileges, etc., owned and used in connection with or pertaining to said railways, including rights to routes belonging to such company or companies upon which a railway shall not be in operation, and may operate and maintain said street railways, so acquired, for the carriage of passengers and freight for hire.
“Sec. 6. Said commission may provide for the payment of rentals or other obligations, and may provicle for a sinking fund for the discharge of any liens upon any of the property acquired by them, and may pledge the earnings and receipts of said railways for these purposes, and may use the earnings in operating and maintaining the same, and may use any surplus of earnings in acquiring any bonds secured by lien upon the property so acquired, or may use such surplus in making needed extensions or betterments to said railways. Said commission shall have no power to incur any obligation on behalf of said city, except such as shall be chargeable only upon the railways and property so acquired, and the earnings and increments and extensions thereof.
“Sec. 7. The said commission shall manage, maintain, and operate any street railway so acquired or extended, and may purchase from the revenues thereof all lands, tracks, cars, motors, dynamos, machinery, equipment, tools, and furniture necessary and useful therefor to be used in connection therewith, and may establish rates of fare for the carriage of passengers and freight, provided the rates of fare shall not exceed those now charged by the Detroit Citizens’ Street-Railway Company. In operating any railway so acquired, the commission may exercise such other general powers as are possessed or exercised by boards of directors of corporations .organized under the laws of this State providing for incorporation of street-railway companies.
“Sec. 8. After acquiring any railway or railways pursuant to section five hereof, said commission shall have the power to enter into agreements with any street-railway company, having a line of street railway, for or in relation to the exchange of tickets and transfers, and for the carriage of passengers, use of tracks, or operation of cars: Provided, that such agreements shall not be inconsistent with or in violation of the terms of the conveyance or contract mentioned in section five hereof. ”
“ Sec. 11. All causes of action relating to or arising out of the owning, operating, or control of any street railway constructed or acquired by said commission shall be prosecuted by or against said commission by the name herein designated, and said commission shall carry into effect, pay, or discharge any order, decree, or judgment, in any suit or proceeding to which it shall be a party, in like manner as if the same were prosecuted or defended by said city: Provided, that no action for negligent injury arising out of the operation of said railways shall be maintained unless it be commenced within one year from the time when the injury was received, nor unless notice shall be given in writing, within thirty days from the time of such injury, to the said commission, its secretary or attorney, of the time, place, and circumstances of such injury, and of the nature thereof.
“Sec. 12. Nothing in this act shall be construed as granting any franchise to any of the existing street-railway companies, or as extending the life of any existing franchise, or as implying any franchise rights in case of reversion of the property to the grantors or their successors ; and said commission is hereby expressly prohibited from granting or extending the life of any franchise under any of the powers conferred upon it by this act.”

After the passage of the act, the common council, at an adjourned special meeting, appointed the respondents as members of the commission, and they at once entered into negotiations for the purchase of the various street railways in Detroit.

The case is one of vast importance, not only because of the magnitude of the interests involved, but also because the law proposes an entirely new departure in this country, in relation to the ownership and management of one of the most important interests in the business world. We are not favored with precedents which will aid us, -because, with all of their zeal and ability, counsel have not been able to find where an undertaking just like this has been entered upon. We have, however, had the benefit, not only of well-prepared written briefs, but of such oral arguments as the learned counsel, who have given the questions involved special thought and investigation, cared to make. We have endeavored to-give the case such attention as its importance deserves.

It is claimed on the part of the attorney general that the act is unconstitutional and void for the following, among other, reasons:

“1. Because said act undertakes to confer upon the city of Detroit authority to engage in a work of internal improvement, contrary to the provisions of section 9 of article 14 of said Constitution.
“2. Because said act undertakes to cqnfer upon a municipal corporation powers which are neither local, legislative, nor administrative, contrary to the provisions of section 38 of article 4 of said Constitution.
“3. Because said act purports to give to said Detroit Street-Railway Commission, mentioned in said act, unlimited and unrestricted power to contract debts for, and loan the credit of, said city of Detroit, contrary to the tenor and effect of section 13 of article 15 of said Constitution, which provides that the legislature shall provide for the incorporation and organization of cities and villages, and shall restrict their powers of taxation, borrowing money, contracting debts, and loaning their credit.
“4. Because the powers to contract and purchase, sought to be conferred by said act upon said Detroit Street-Railway Commission, cannot be either conferred upon or exercised by said commission, under said Constitution.
“5. Because said act attempts to clothe said Detroit Street-Railway Commission with legislative powers as to street railways, and the operation and management of the same.
“6. Because said act is an unlawful interference with the rights of local self-government vested by said Constitution in the citizens of said city, in that it undertakes to take out of the control of the common council and board of estimates of said city the several matters of purely local concern above mentioned, and vest the same in the said Detroit Street-Railway Commission, which is a body the members of which hold their offices for long, appointive terms, are a law unto themselves, and are subordinate and responsible neither to said citizens nor to their representatives, in any manner or form.”

Is the act contrary to section 9, art. 14, of the Constitution? The section reads as follows:

“ The State shall not be a party to, or interested in, any work of internal improvement, nor engaged in carrying on any such work, except in the expenditure of grants to the State of land or other property.”

It is doubtless true, as urged by counsel, that the State legislature is given a general grant of legislative power, and that its power to legislate is subject only to such limitations as are imposed thereon by the express or implied limitations contained in the Constitution of the State or the Constitution of the United States. To understand the force and effect of the provisions of our Constitution in relation to the attitude of the State towards internal improvements, it may be well to consider the experience of other States and of our own State prior to the adoption of our present Constitution. The war of 1812 demonstrated the great need of a better system of intercommunication between the various portions of the country. The condition of the highways, both land and water, was such that troops and provisions could be moved but slowly and at great expense. This was also true of the products of the country. Succeeding the war of 1812, the State of New York entered upon the construction of the Erie Canal. Its construction was doubtless of great benefit to the agricultural and commercial interests of the State, and especially to the city of New York. Other States were prompted to follow the lead of New York, and projected the digging of canals, the improvement of waterways, and the construction of railroads. Nearly all the State Constitutions adopted between 1830 and 1850 either gave the legislature permission, or made it mandatory, to “encourage internal improvements within the State.” Many enterprises of this character were entered upon which were ill-advised. So many of them were undertaken, many of the States incurred obligations they were unable to meet. The rate of interest in these new countries was much higher than capital commanded in Europe. Money from' there after 1830 was furnished almost without limit, to be invested in the various projects devised by the several States. The State debts increased from $13,000,000in 1830 to $100,000,000 in 1838. After the financial crisis of 1837 came, foreign capitalists who sought to draw out this money were unable to do so. An effort to collect these obligations proved abortive. Upon one pretext or another, many of the States repudiated their debts made for internal improvements. The States most disastrously affected were Maryland, Pennsylvania, Indiana, Illinois, Louisiana, Mississippi, and our own State. 2 Cycl. Pol. Science, 571.

For the period between 1835 until the financial panic of 1837 occurred, the State of Michigan had a wonderful growth. The opening of the Erie Canal, and the facilities for travel furnished by the Great Lakes, made it comparatively easy for the residents of New York, New Jersey, and New England who were seeking to better their condition to reach our borders. The climate was good, and the soil was fertile. The example of New York in constructing works of internal improvement was thought worthy of imitation. The Constitution adopted upon the admission of the State into the Union provided:

“Internal improvement shall be encouraged by the government of this State; and it shall be the duty of the legislature, as soon as may be, to make provision by law for ascertaining the proper objects of improvement in relation to roads, canals, and navigable waters, and it shall also be their duty to provide by law for an equal, systematic, economical application of the funds which may be appropriated to these objects.” Const. 1835, art. 12, § 3.

The governor of the new State, in a message to the legislature, called its attention to its duty to act under the constitutional provision. The legislature was not slow to respond. A canal was projected from Mt. Clemens to the mouth of the Kalamazoo river, and one around the falls of the St. Mary. A number of State railroads were surveyed, and their construction entered upon. To meet the expense, the governor was authorized to borrow, upon State bonds issued for the purpose, $5,200,000. These bonds were' all negotiated, though, owing to the failure of one of the companies and one of the banks which undertook to negotiate them, the amount for which they were negotiated never found its way into the State treasury. It became evident the amount of the loan would not begin to complete the internal improvements already begun. Then came the financial panic. Bankruptcy and financial ruin were upon every hand. The State, at a great sacrifice of its property, made an arrangement with its creditors which left its credit good, but left it very badly in debt. Cooley, Hist. Mich. 279; Camp. Hist. Mich. 495.

As the result of this experience, the State had the canal at the St. Mary’s river, which was afterwards taken over, by the Federal Government, and is now one of the most important improvements upon the Great Lakes; a short section of a canal, which has never been of any use, except to furnish water-power to private parties; and some uncompleted railroads, which the people were glad enough to have sold to private corporations. Justice Cooley states the situation in detail (Cooley, Hist. Mich. 289):

“The works of internal improvement still remained on the hands of the State, and in the day of its poverty and trial they were continually calling upon a depleted treasury for money to keep them in -progress. But, now that the great bubble of speculation and inflation was burst, it became plain to the comprehension of the dullest that some of the State projects were wild and chimerical, and they were abandoned altogether. Such was the case with the projected canal from Mt. Clemens to the mouth of the Kalamazoo river, which it was now seen would be worthless if constructed. The only works of much promise were the Central and Southern of the three railroads, which were now very well under way. But doubts were arising in the minds of the people whether the State had been wise in undertaking the construction and management even of these, — whether it was possible for the State to do either the one or the other with the same prudence and economy as could private owners. These doubts soon matured into a settled conviction that the management of railroads was in its nature essentially a private business, and ought to be in the hands of individuals. By common consent it came to be considered that the State, in entering upon these works, had made a serious mistake; and the legislature, in an act for funding the loan bonds, invited proposals from State creditors for the purchase of the' State railroads. The times were not then propitious; but in 1846 the Central and Southern Railroads, so far as they were then constructed, were sold by the State to corporations which had been chartered for the purpose of purchasing. The aggregate price was two millions and a half, — a sum very much below what had been their - cost to the State. But the people felt that the roads were well off their hands, and, as has been said by one familiar with the whole history : ‘ Here virtually ceased to exist all our works of internal improvement. Nothing but the debris of our airy castles remained, and that only to plague our recollec-' tions.’ The two great railroads, when taken up by corporations, went rapidly forward to completion; and they soon became great national highways, whose utility to the State was quite equal to the highest expectations ever formed concerning them.
“Having all their bitter experience with internal improvements fresh in mind, when they formed a new Constitution, in 1850, the people resolved to put it out of the power of the legislature again to involve them in extravagant projects. And here we reach another landmark, significant in itself, but especially notable when contrasted with the provision respecting internal improvements which has already been quoted from the Constitution of 1835. In 1850 the people deemed it necessary to prohibit what in 1835 they commended, and they now provided that ‘ the State shall not subscribe to, or be interested in, the stock of any company, association, or corporation,’ and also that ‘the State shall not be a party to, or interested in, -any work of internal improvement, nor engaged in carrying on any such work, except in the expenditure of grants to the State of land or other property.’ These were very positive provisions, and by adopting them the people believed they had rendered it impossible that projects of doubtful wisdom and utility should be engaged in at the public cost.
“But diseases in the body politic, like those in the human system, are likely to take on new'forms from time to time, and they are not to be exorcised by words or kept off by constitutional inhibitions. The mania for internal improvements at the cost of the public, when it returned 15 years later, under the administration of Grov. Crapo, took on the form of aid to railroad corporations by the several municipal bodies in the State. Such aid was being given in other States, and railroads, as a consequence, were being constructed with a rapidity never paralleled, Michigan was lagging behind the rest of the country. Why should this be so ? Every town which should subscribe to the stock of a railroad would immediately receive a full return in the enhanced value of its landed property, and would have the stock besides. This was what was commonly said and commonly believed; and the legislature, well reflecting the common desire, passed a general law under which townships and cities were to be permitted to vote aid to railroads. The railroads, under another general law, might be laid out anywhere by the projectors, at pleasure, so that monopoly in these public conveniences seemed to be effectually provided against. The governor vetoed the railroad-aid act, but the legislature passed it over his veto. The business of voting aid to railroads was soon active, and the most visionary scheme was found as likely to receive aid as any'other, — perhaps more so, for more work would be done for it. Nothing is so easy as to build railroads, if it can be accomplished by dropping votes into a box. Only fossils and croakers will disturb the public mind by reminders that the sums voted must at some time be paid, and that the roads, when built, may pay nothing towards them. The State, in detail, by its corporations, was fast plunging into indebtedness, which had already reached an aggregate of several millions, when the process was arrested by a decision of the State Supreme Court that the act under which the voting had taken place was unconstitutional. The decision was a bitter disappointment to many, and the public clamor for a time was loud and earnest; but a movement to obtain an amendment to the Constitution which would permit . such municipal aid to railroads was unsuccessful, and the excitement soon died out. The people had taken the ‘sober second thought/ and had become convinced that municipal corporations, in their power to contract debts or to expend public moneys, should be confined closely to proper municipal purposes. And this conclusion may be taken as a third conspicuous landmark in the history of internal improvements in Michigan.”

The cases referred to by Justice Cooley were People v. Township Board of Salem, 20 Mich. 487 (4 Am. Rep. 400); People v. State Treasurer, 23 Mich. 499; and Thomas v. City of Port Huron, 27 Mich. 320.

We think it may fairly be said of the case of People v. Township Board of Salem that the opinion was rendered upon the ground that the tax proposed would be levied for a private rather than a public purpose. This, however, cannot be said of the case of' People v. State Treasurer. In the last-named case it was held that the construction of the railroad was an internal improvement, within the meaning of the Constitution, and that what the State could, not do, it could not authorize the townships, and cities to do. The language of the opinion is not susceptible of any other .construction. It is very clear from what has been quoted from the history of Michigan, written by Judge Cooley, and published in 1885, that he so construed the decisions cited. The language of the opinion is as follows:

“ Our State had once before had a bitter experience of the evils of the government connecting itself with works of internal improvement. In a time of inflation and imagined prosperity, the State had contracted a large debt for the construction of a system of railroads, and the people were oppressed with heavy taxation in consequence. Moreover, for a portion of this debt they had not received what they bargained for, and they did not recognize their legal or moral obligation to pay it. The good name and fame of the State suffered in consequence. The result of it all was that a settled conviction fastened itself upon the minds of our people that works of internal improvement should be private enterprises; that it was not within the proper province of government to connect itself with their construction or management; and that an imperative State policy demanded that no more burdens should be imposed upon the people by State authority for any such purpose. Under this conviction they incorporated in the Constitution of 1850, under the significant title of ‘Finance and Taxation,’ several provisions expressly prohibiting the State from being a party to, or interested in, any work of internal improvement, or engaged in carrying on any such work, except in the expenditure of grants made to it, and also from subscribing to, or being interested in, the stock of any company, association, or corporation, or loaning its credit in aid of any person, association, or corporation. Article 14, §§ ?-9. All these provisions were incorporated by the people in the Constitution as precautions against injudicious action by themselves, if in another time of inflation and excitement they should be tempted- to incur the like burdensome taxation in order to accomplish public improvements in cases where they were not content to wait the result of private enterprise. The people meant to erect such effectual barriers that, if the temptation should return, the means of inflicting the like injury upon the credit, reputation, and prosperity of the State should not be within the reach of the authorities. They believed these clauses of the Constitution accomplished this purpose perfectly, and none of its provisions had more influence in recommending that instrument to the hearty goodwill of the people.”

The doctrine of these cases was again affirmed in Thomas v. City of Port Huron, 27 Mich. 320. These cases all hold that what the State cannot do itself cannot be done through the aid of inferior municipalities.

Counsel urge that the doctrine announced in People v. Township Board of Salem, People v. State Treasurer, and Thomas v. City of Port Huron was never accepted as correct by the profession in this State, and is contrary to the decisions of other courts. If we understand the logic of the argument, it is that those cases should be overruled. We have had occasion recently .to consider a contention of like character, and supposed we had so clearly expressed ourselves that the doctrine of those cases could no longer be questioned. We do not deem it necessary to repeat what was said upon that subject in Dodge v. Van Buren Circuit Judge, 118 Mich. 189.

Counsel suggest it is as competent to authorize the city to own and operate a street railway as to acquire and maintain a public park, waterworks, a lighting plant, or a fire department, or to construct drains or to build sewers. It may be somewhat difficult to draw the line as to what a municipality may properly do and what it may not do, but all the things above mentioned are authorized and defended because it is a proper exercise of the police power. An adequate supply of water is needed for protection against fire. 1 Dill. Mun. Corp. (4th Ed.) §§ 144, 146.

“There can be no matter of higher public concern to every city than the supply of pure and wholesome water, for all useful purposes; and as population becomes more and more compact, and cities grow, the ability of the individual member of the municipal corporation to supply his individual wants in that direction constantly diminishes, and in all the larger places it becomes a matter of absolute public necessity that the city itself should directly, or indirectly provide the supply. Nothing else so directly and materially affects the health of the community as the character of its water supply.” Prent. Police Powers, 303. Drains and sewers and parks are all needed in the interest of public health. 2 Dill. Mun. Corp. (4th Ed.) § 598; Kinnie v. Bare, 68 Mich. 625; Prent. Police Powers, 56, 131, 242. Lighted streets tend to the prevention of crime. Police powers have their origin in the law of necessity. Id. 4. The exercise of these powers has little in common with what is sought to be done here.

It is urged that the internal improvements contemplated by the Constitution must be of sufficient magnitude to concern the people of the State (citing Sparrow v. Commissioner of State Land Office, 56 Mich. 575), and that street railways are mere local improvements, or a strictly local interest, not known at the time the Constitution was framed, and are not such improvements as are contemplated by the phrase “internal improvements” (citing Detroit Citizens’ St. Ry. Co. v. City of Detroit, 12 C. C. A. 365, 64 Fed. 628; Detroit City Ry. v. Mills, 85 Mich. 634). It is not claimed these cases are directly in point, but that some statements contained therein lead to the conclusion just stated. The questions involved in this case were not at issue in the cases cited, and the opinions do not tend, in our judgment, to support the contention of counsel. We shall have occasion later to consider whether the improvements are of sufficient magnitude to be deemed internal improvements.

It is said, if the theory of the relators is sound, the city of Detroit cannot construct a macadamized road, or pave a street, or build a sewer. It is a complete reply to this suggestion to call attention to the fact that by sections 23 and 38 of article 4, and section 1 of article 11, the Constitution has given to townships the control of highways, and to the cities and villages the control of the streets, for all purposes germane to their use.

It is said that, while steam railroads are in a sense public highways, in another and legal sense they are not public highways, but that street railways are in every proper sense public highways, public utilities of a local character, and are not internal improvements, within the meaning of our Constitution. Our attention is called to the case of Sun Printing, etc., Ass’n v. Mayor, etc., of New York, 152 N. Y. 257 (37 L. R. A. 788), as sustaining this contention. It is true, that case holds that it is within the legislative power to authorize the city to construct a street railway under the streets of New York, and, when constructed, to lease it for not less than 35 nor more than 50 years, at a rental not less than the interest paid by the city for the construction, and 1 per cent, in addition. The writer of the prevailing opinion stated that the case was not free from difficulty, and the court considered the case, “ hoping to reach a result that will afford necessary relief to the people of the city and at the same time preserve the general policy of our system of government.” It appears in that case that, pursuant to the provisions of the act, the commissioners entered upon their duties, and located a road to be built under the streets, through the main portions of the city, and then tried to induce private capitalists to undertake its construction. No private capitalists were willing to undertake the construction of the road, and it was undertaken by the commissioners for the city. In the course of the discussion, reference is made to certain cases decided by the Ohio court, and this language is used:

“We do not understand that the views above expressed are in conflict with the Ohio cases. In that State the constitution does not limit municipal expenditures to ‘a city purpose.’ We do not, however, wish to be understood as approving of those cases, especially in so far as they sustain the right of a city to construct a railroad mainly outside of its own territory and state.”

In conclusion, the opinion is as follows:

“ Our government was established by the people for their own protection and welfare. Their policy was to foster and protect individual industry and enterprise. To such policy we owe our advancement as a nation, and to such we must look for our future prosperity. The constitution should .be construed with reference to this general policy, and ordinarily railroads should be constructed and operated by private capital. The situation, however, in the city of New York, is most peculiar. A long, narrow island lies between two rivers, — so narrow in places that there are practically but two or three streets through which the masses must reach its business center. The population of the city during the last half century has-increased from three hundred thousand to over a million and a half of people. The travel upon its existing railroads during the last twenty years has increased from one hundred and fifty millions in 1874 to upwards -of four hundred and forty-eight millions in 1894. It was conceded upon the argument that the crowded and congested condition of the travel upon the streets in the city renders the proposed structure necessary. These considerations have induced us to give to the provisions of the act a most liberal construction. The commissioners located the road, and tried to induce private capital to construct and operate it. In this they have failed, and the situation is such that the city must itself construct the road, or go without it. Here we have a demand for a great public highway, which private enterprise and capital will not construct. It is necessary for the welfare of the people, and is required by them. It is public in character, and is authorized by the legislature. Our conclusion is that, under the circumstances and situation here presented, the proposed road may properly be held to be ‘ for a city purpose,’ and that the acts are not in contravention of the provisions of the constitution.”

The doctrine stated in the Ohio case cited (Walker v. City of Cincinnati, 21 Ohio St. 14 [ 8 Am. Rep. 24]) is contrary to the holdings of this court, as has already been shown, and cannot be reconciled with the later cases of Taylor v. Commissioners of Ross Co., 23 Ohio St. 22; Wyscaver v. Atkinson, 37 Ohio St. 80; and Counterman v. Township of Dublin, 38 Ohio St. 516. It is evident that the conclusion reached in the prevailing opinion is based upon the ground that because of the crowded condition of the city, and its peculiar shape, the improvement was a necessary one, and that, as private capital and enterprise would not enter upon its construction, it was lawful to authorize the city to do so. None of the conditions existing in New York, justifying the city, if it was justified, in entering upon the construction of the road, exist in Detroit. The city is already 'well supplied with means of transit, and, if abuses exist in the management, the authorities have ample power to correct them. The dissenting opinion in the case is more in harmony with the law in this State than is the prevailing opinion.

We are not entirely without light in relation to what constitutes an internal improvement, within the meaning of «the Constitution. We have already seen that steam railroads come within the category. In the case of Ryerson v. Utley, 16 Mich. 269, it was held that an attempt to improve the navigation of the Muskegon river by removing therefrom sand flats came within the constitutional inhibition. In People v. Township Board of Springwells, 25 Mich. 153, it is said that a macadamized road is a work of internal improvement.

“The shortness of the road does not change its character. The restriction is not against great works, but against all works of that kind, and the case comes within the language and intent of the prohibition.”

The court held that work of that character must be done by the local authorities, because, under the Constitution, they had been intrusted, as we have already stated, with the care of the highways.

In Anderson v. Hill, 54 Mich. 477, it was held that a township could not be" authorized to vote money to aid in deepening or straightening the Dowagiac river, because it was an internal improvement. The' court said:

“That the straightening or otherwise deepening the channel of the Dowagiac river, in Van Burén county, expresses a work of internal improvement, needs no argument. * * * If the legislature has the authority to pass a law permitting the majority of the legal voters of a particular township to impose a tax to aid the State in the work of an internal improvement, it has the authority to impose such by direct enactment, without the intermediate step of a vote of the people, and against their wish; and the rule is well settled, if it has not the power to impose such tax directly, it cannot authorize the imposition of the tax indirectly, through a vote of the municipality or people.”

In Sparrow v. Commissioner of State Land Office, 56 Mich. 567, it was held that straightening and -opening the channel of Cedar river was an internal improvement, though the decision was put upon another ground. Justice Campbell used this language:

“There can be no doubt of its being a work of internal improvement. That phrase is as broad as language can make it. It can make no difference for what direct "or indirect purpose of public utility an improvement is made, so long as it comes within such a definition, and it can make no legal difference over how much of the State it passes. All works of convenience, whether for travel, drainage, or irrigation, are similar in their nature when small and large, and works for all of these purposes have been made of all dimensions, and for large and small districts. It is impossible to draw any line of magnitude. Any such work that is deemed important enough for the State to construct is within the rule, and, if not built in the permitted way, is within the prohibition.”

Justice Champlin agreed with this statement, while' Justice Cooley said he did not intend to question the correctness of the decision in Ryerson v. Utley and People v. Township Board of Springwells.

In Wilcox v. Paddock, 65 Mich. 23, it was held that the straightening and deepening of Maple river was an internal improvement, within the meaning of the Constitution.

The constitution of Minnesota has a provision that “the State shall never contract any debts for works of internal improvement, or be a party in carrying on such works.” Const. Minn. art. 9, § 5. A bill was passed providing for a board of railway and warehouse commissioners, who were authorized to erect a State warehouse or elevator at Duluth, for public storage of grain. This was held to come within the constitutional inhibition, and the learned judge enters upon an extended discussion of what constitutes internal improvements, and the authorities relating thereto. It is too long to insert here. This language is used in the opinion:

“The time was when the policy was to confine the functions of government to the limits strictly necessary to secure the enjoyment of life, liberty, and property. The old Jeffersonian maxim was that the country is governed the -best that is governed the least. At present the tendency 'is all the other way, and towards socialism and paternalism in government. This tendency is perhaps to some extent natural, as well as inevitable, as population becomes more dense, and society older and more complex in its relations. The wisdom of such a policy is not for the courts. The people are supreme, and, if they wish to adopt such a change in the theory of government, it is their right to do so. But in order to do it they must amend the constitution of the State. The present constitution was not framed on any such lines.” Rippe v. Becker, 56 Minn. 100.

When the reasons arose for placing in the Constitution the provisions in relation to internal improvements, judged from our standpoint, the railroads were imperfect. Their passenger cars were not much heavier than the large stage coaches, and would carry from 18 to 24 passengers. In many instances the rails were flat bars of iron, less than an inch thick, laid upon rails of wood, and kept in place by spikes. The roadbeds were not well graded nor heavily ballasted. The locomotives weighed from two to six or seven tons. Cars were passed over the steeper grades by counterweights of box-cars, weighted with stone, which balanced them like window weights balance window sash. As there were no long railways, there was no freighting, except light articles, for any considerable distance. The rolling stock was cheap and scanty. Great weight and great speed would have destroyed the tracks. The entire cost of building what is known as the “Michigan Central Road,” to Marshall, was about $2,000,000, and it ' is probable the value of all internal improvements entered upon by the State was less than $5,000,000. Camp. Hist. Mich. 484.

The pleadings show that the various street-railway companies own and operate in Detroit 141 miles of street railways, which the respondents propose to take over. If the tracks inside the car barns and abandoned tracks be added, the single-track mileage is about 179 miles. There is a bonded debt upon these roads of upwards of $10,000,000, and their property is regarded as worth between $5,000,-000 and $17,000,000. It is currently reported that the commission propose to pay upwards of $16,000,000 for this property, besides assuming its indebtedness. By virtue of agreements made between these companies, there are run on their lines in Detroit cars owned by other companies, which start from Pontiac, Oakland county; Mt. Clemens, in Macomb county; Ann Arbor, in "Washtenaw county; and the city of Wyandotte, in Wayne county. The tracks of these roads are laid in a very substantial manner. The cars of the outside roads will accommodate 50 to 75 passengers each, are of great size, and run at frequent intervals. It is a matter of common knowledge that over some of these lines cars marked “special” are now run at frequent intervals, carrying freight. An electric road is now projected from Ann Arbor to Lansing, and from other of the lines now reaching Detroit to various points in the interior of the State. This method of transit, or some improvement thereon, is yet in its infancy.' It does not require one with the ken of a prophet to see that in the near future the villages and cities of. the State will be connected with a network of methods of rapid transit.

By the terms of the act (section 5), it is provided that—

“The said commission may in their discretion, and upon such terms and conditions as they may deem advisable for the interests of said'city, acquire, by deed, lease, or other satisfactory conveyance from the company or companies owning the same to said city, any street railway or railways existing at the time of the passage of this act, and lying wholly within or partly within and partly without said city, operated by the same company or companies, together with the property, assets, rights, privileges, etc., owned and used in connection with or pertaining to said railways, including rights to routes belonging to such company or companies upon which a railway shall not be in operation, and may operate and maintain said street railways so acquired, for the carriage of passengers and freight for hire.”

Section 8 provides that, after acquiring any railway pursuant to section 5, the “commission shall have the power to enter into agreements with any street-railway company, having a line of street railway, for or in relation to the exchange of tickets and transfers, and for the carriage of passengers, use of tracks, or operation of cars,” provided such agreements shall not be contrary to the provisions of section o.

It is stated in the brief of one of the counsel for respondents that during the past year the railways of Detroit carried 45,000,000 passengers. The steam roads of 1850, crude as they were, provided improved methods of moving passengers and freight over what had before been in vogue. The electric roads of 1899 are still greater improvements for the same purpose. The rails used by the electric railway are much heavier and more substantial. The track is much more substantial than those used prior to 1850. The cars will accommodate three or four times as many people. The transit is much more rapid. The entire cost of all the improvements entered upon by the State would not amount to one-half the amount which the record discloses the commissioners expect to pay for the property they intend to take. To say the system of railroads as it existed in 1850 constituted internal improvements, within the meaning of the Constitution, and that the system of roads existing in Detroit, which are to be taken over by this commission, and the lines leading thereto, with which said commission are allowed to make agreements for deeds, leases, and in relation to the exchange of tickets and transfers, is not a system of internal improvements, within the meaning of the Constitution, is to deny to words in common use their ordinary and accepted meaning. If the legislature may authorize the city of Detroit to enter into the proposed arrangement, it may authorize any other municipality to do so, and, by concert of action between the various municipalities, they may cover the State with means of rapid transit, owned and operated by the municipalities. This would enable the State to do, by means of agencies called into being by itself, what it cannot itself do, and what the Constitution forbids its doing.

It is said that the Constitution was adopted a long while ago, and that this is a gigantic age, in which enterprises are being formed on a scale so vast as to be almost beyond comprehension, and the Constitution ought to be given a construction in keeping with the spirit of the age. This argument is more properly addressed to the people than to the courts. Constitutions do not change as public opinion changes. Their provisions do not mean one thing one day and another another day. The written Constitution is the most solemn declaration of the people in relation to the powers of State. It was drawn by their representatives selected especially for that purpose. It had their approval at the polls. Every officer of every kind in the State is required to take an oath to support it, before he can enter upon the duties of his office. It is not a pleasant duty to declare that a law passed by the legislature and approved by the governor is not valid. When such a law is enacted, courts cannot for a moment hesitate in performing that duty, disagreeable as it is. The provisions of the Constitution involved in this controversy have been in existence for nearly half a century. As we have already shown, they were construed along the lines of this decision nearly 30 years ago. The people of the State have not indicated in the way provided by the organic law any dissatisfaction with these provisions. The courts cannot substitute their judgment of what the Constitution ought to be for what the people have made it. Its provisions must remain and control until the people see fit to change them in the way provided by the Constitution itself. McPherson v. Secretary of State, 92 Mich. 377 (16 L. R. A. 475, 31 Am. St. Rep. 587).

It is not necessary to discuss the very serious question whether a commission could be authorized to buy from five to eighteen million dollars’ worth of property, and subject the city of Detroit to the liability growing out of the operation of upwards of 100 miles of electric street railways, without giving the citizens and taxpayers an opportunity to say whether they wanted to purchase and operate such a business or not, nor is it necessary to discuss the other questions raised by counsel; for, if we are right in our conclusion that the law is unconstitutional, this disposes of the case.

We were asked by one of the counsel, in his oral argument, whatever our decision in this case might be, to decide the question whether the city, under any circumstances, may build or buy lines of street railway in its streets, all lying within the city limits, and lease them upon such terms as the city authorities shall deem to be for the best interests of the citizens. It is not necessary to pass upon the question just stated in order to dispose of this case. The law under consideration involves much more than the simple question of municipal ownership of the tracks within the corporate limits, and, in the decision of the case before us, we do not deem it wise to express any opinion upon any question other than the one before us. It will be soon enough to pass upon the other question when it is necessarily before the court, and when the court can have the benefit of the conditions and surroundings then existing.

We think the law unconstitutional, that there is no such office as tbe “Detroit Street-Railway Commission,” and that respondents have no title thereto, and that judgment of ouster should be entered.

The other Justices concurred.