author: G-ravks, J.

text:
    The Township of Leoni v. Ebenezer Taylor.

      Action: Liability of Townships. Townships are under no legal obligation to keep in repair bridges and culverts within their limits; and therefore they are not liable under the act of 1861, (So. 197, P. U07) for damages occasioned by neglect to keep such bridges and culverts in repair. — Martin v. Highway Commissioners of Sües, k Mich., 557, cited and approved.

      Construction of statutes. In the construction of statutes the intention of the Legislature is undoubtedly the end to be sought; but such construction should not be repugnant to the clear meaning of the words.

      Heard April 6.

      Decided April 12.

    Error to Jackson Circuit.

      This was au action on the case brought by Ebenezer Taylor against the Township of Leoni. The declaration averred the existence in the township of Leoni, of a certain public highway which crosses a stream; that over and across said stream, is a bridge which belongs to and is a part of such public highway; “ and that defendant was authorized and compelled by law to keep such bridge in repair, and safe for the use of the public, as aforesaid; that said bridge was defective, out of repair and unsafe,” &c., and further averring that “while in the act of crossing the aforesaid bridge, and without any fault or negligence on his part, and by reason of said bridge being defective and out . of repair,” the plaintiff’s horses were injured, and that by reason of such injuries, the said plaintiff is greatly damnified, &c.
    The plea was the general issue.
    On the trial the defendant requested the Circuit Judge to charge the jury:

      First. — That there is no liability in any event on the part of the township to this action.

      Second. — That the only power the township has over the repair of highways and bridges, is that -which it may exercise at the annual meeting.

      Third. — That the township is not liable for the neglect of the Commissioners of Highways, or for the neglect of the Overseers of Highways.

      Fourth. — That the township has no power to give the slightest direction or instruction to these officers as to the performance of their duties.
    The Circuit Judge refused so to charge; and the defendant excepted. The jury rendered a verdict for the plaintiff, and the judgment entered thereon is brought into this Court by writ of error.

      John D. Gonely, for plaintiff in error.
    I. At common law there was no obligation on the part of townships to keep highways in repair. — Morey v. Newfane, 8 Barb., 645 ; Hickok v. Trustees, &c., 15 Barb., 427; Fishkill v. Fishkill, &c., 22 Barb., 634; Galen v. Clyde, &c., 27 Barb., 551; Peck v. Batavia, 32 Barb., 638; Commissioners v. Martin, 4 Mich., 557.

    II. The township has no power to give directions to the Highway Commissioners, or other town officers respecting their duties, and the township officers are in no sense the agents or servants of the township; nor is the township in any way responsible for the neglect of the Commissioners or Overseers. — Lorillard v. Monroe, 12 Barb., 161; s. c. 11 N. Y., 392 ; Onderdonk v. Brooklyn, 31 Barb., 505; Martin v. Brooklyn, 1 Hill, 545.

    III. It is unnecessary here to consider whether the principle upon which cities and villages are made liable in similar cases, arises in the nature of a contract or not, for the reason that in such cases the duty is directly imposed by statute, and means adequate are provided. — Cole v. Medina, 27 Barb., 218; Beard v. Brooklyn, 31 Barb., 142; Conrad v. Ithaca, 16 N. Y., 158; West v. Brockport, 16 N. Y., 161.

    IY. The extent of the duty resting upon a township or city depends upon the means provided for its performance; and while responsible for neglect where reasonable diligence has not been exercised, it is not responsible where it is not reasonably capable of acting efficiently by its proper agen
      cies. — Detroit v. Corey, 9 Mich., 175, 190 ; Dewey v. Detroit, 15 Mich., 312, 317; Commissioners v. Martin, 4 Mich., 557, 560.

    V. A township is not liable for the misfeasance or nonfeasance of one of its officers in respect to a duty specifically imposed upon such officer, but the remedy is against the delinquent officer himself. — Fish v. Dodge, 38 Barb., 163, 172; Robinson v. Chamberlain, 34 N. Y., 389.

    VI. Since the decision in 4th Michigan, no additional powers respecting highways have been given to townships, nor have any additional duties been imposed.
    VII. The only question is as to the construction of the act of 1861. — Laws 1861, pp. 407, 408.

    VIII. Statutes in derogation of the common law must be construed strictly, and their provisions can be enforced no further than they are clearly expressed. — Sibley v. Smith, 2 Mich., 490.

    IX. Statutes passed against the plain and obvious principles of common right and common reason, have by some writers been thought to be null and void so far as they are calculated to operate against those principles. At any rate, statutes ought to be construed to avoid, so far as may be, any violation of those principles. — 1 Bishop Criminal Law, see 58-54; People v. Gallagher, 4 Mich., 244, 248; Cochran v. Van Surlay, 20 Wend., 381, 382 ; Donaldson v. Wood, 22 Wend., 365, 396.

    X. It is not necessary to claim that this act is void. It is effective as to corporations, other than townships, but further legislation is needed to give it full effect in townships. Until the Legislature shall impose some duty on townships respecting highways, and shall provide agencies adequate to the performance of such duties, the statute remains suspended as to such townships. It is not unreasonable to suppose that the Legislature of 1861 expected that further legislation should be had.

      D. Johnson, for defendant in error.
    The Court in this case was requested to charge, in substance, that the statute of 1861, page 407, was a nullity so far as it relates to townships, that no liability was imposed upon them by the said statute; and error is assigned upon the refusal so to charge, and this leads to the construction of said statute.
    Now the construction of the statute must depend upon the sense in which the Legislature used the term duty.
    We concede they did not intend by this act to impose any newer duties upon townships, but it is certain they did intend to make townships liable for injuries of this character. The argument advanced is that no duty can be imposed without a penalty. The well considered case of the Commissioners of the Township of Niles v. Nathaniel Martin, decided by this Court and reported in J¡. Mich., 556, holds that townships are not liable to damages at the suit of a party injured, but it by no means decides that it is not the duty of townships to keep in repair the highways and bridges of their respective townships. They are not liable to damages, but it nevertheless is a duty imposed by law, and the Legislature so understood it, otherwise the act of 1861 is of no force.
    It becomes the duty of each township to annually elect Commissioners and Overseers of Highways, and it becomes their duty to keep the highways and bridges in repair, and a tax is assessed for that purpose, and these officers are required to give bonds to their respective townships for the faithful performance of their duties. See chap. 12 Compiled laws. Then in what sense can it be said townships have no duties in this regard.
    Among the many rules laid down in the books for a construction of statutes, it is proposed for the purposes of this case to refer to one, 1 Kent, p. J¡.67, “ For the sure and true interpretation of all statutes, whether penal or beneficient, four things are to be considered. What was the common law before the act ? What was the mischief against which the common law did not provide ? What remedy the Parliament had provided to cure the defect? And the true reason of the remedy? It was held to be the duty of the Judges to make such a construction as should repress the mischief and advance the remedy.”
    The mischief and the remedy are, then, the' main things to be taken into consideration. What was the mischief? Why, that townships could with impunity suffer their highways and bridges to get out of repair. What is the remedy ? To make them pay damages, and that is sufficient for the purpose. And if that was not the intention of the Legislature then the whole act is nugatory and to declare that would violate another rule of construction, viz: that courts will give some effect to statutes where it is possible. And we submit that it is not literally true that no duty was imposed upon townships in this regard : but conceding it to be true, is not the whole language of the act so cle.ar as to make it manifest what the intention was? And if it was not to make townships liable we submit it has no meaning whatever.
   G-ravks, J.

This is a writ of error to the Circuit Court for the County of Jackson.

The defendant in error, while travelling over a public bridge in said township, received an injury in consequence of the unsafe and defective condition of the bridge, and on suit brought, recovered a judgment in the Court below against the township for his damages occasioned by such injury. The accident occurred and suit was brought and determined in 1869, and the only question now to be decided is whether the township was subject to prosecution for the damages occasioned by the insufficiency of the bridge.

The plaintiff in error claims that, notwithstanding the act of 1861, (Laws 1861, p. 407,) the law gives no remedy against a township in such a case, and the defendant in error concedes that no action would lie without the aid of such statute, but contends that the effect of that law is to authorize a suit against the township in every instance like the present. It is therefore seen that the decision of the case depends upon the proper construction of the act of 1861.

The law as it stood before the passage of that statute, was critically examined in the well considered case of Martin v. the Highway Commissioners of the Township of Niles, decided in 1857, and reported in 4 Mich., 557.

It is true that the action was there brought against the Highway Commissioners; but a proper disposition of the case made it necessary for the Court to consider with some minuteness the powers, duties, and responsibilities of townships touching highways and bridges, and it was there held that under our system of township organization and management “ the care and superintendence of the highways and bridges of the towns was given to the Highway Commissioners, together with all the powers requisite to the execution of their trust,” and that the “ towns had no power to give the slightest direction or instruction to such officers as to the performance of their duties,” and it was also declared that “the law would not impose an unqualified obligation when the means of performing it did not exist.”

We think it was fully established in that case that the townships were subject to no legal duty or obligation to overlook or repair the roads and bridges within their limits, and that whatever duty the law had east upon Commissioners and Overseers in that particular, the failure to perform it, could furnish no cause of action against the townships.

A little over four years subsequent to that decision the Legislature passed the act relied upon by defendant in error, to support the present action. By referring to that law it will be seen that an action is thereby authorized against a township lying under a duty to repair and neglecting it, but that the remedy does not purport to be given against a township guilty of no neglect and subject to no duty.

We have not been able to discover, nor is it claimed that any other legislation has occurred since the case of Martin v. The Highway Commissioners, of a nature to exclude the application of that decision; and, as a consequence, unless the act of 1861 can have that effect, it is manifest that the judgment of the Circuit Court in this case cannot be sustained.

But it is ai’gued for the plaintiff in error, that the last mentioned statute, while not meant to impose any new duties upon townships, was really intended to make them liable for all such injuries as those in question, and that the Legislature in enacting the law of 1861 inserted the word “duty” to mark the obligation of townships to raise taxes for highways and bridges within their limits, and likewise to point to the generally acknowledged political responsibility of the towns for the skill and fidelity of those chosen to act as Overseers and Commissioners.

We think, however, this view is somewhat too refined to serve in the exposition of this statute. It gives to important and qualifying phrases, a sense quite different from that which common and approved usage will sanction, — (I clause, § 8, Ghap. 1, JR. S. 18Jfi / JDwarris 578,) and assumes that the Legislature adopted a form of expression quite inappropriate to convey their real meaning, while the subject was unembarrassed by any difficulty in selecting words which would express their intent explicitly and clearly.

But aside from these objections, the consequence of adopting the proposed interpretation would be the rejection in substance of those qualifications in the act which seem to us to be plainly a part of it, and this we apprehend would be tantamount to a judicial amendment of the law. In every exposition of a statute, the intention of the Legislature is undoubtedly tbe end to be sought; but the construction to be given should not be repugnant to the clear meaning of the words. The courts are not at liberty, in order to effectuate what they may suppose to have been the intention of the Legislature, to put a construction upon the enactment not supported by the words, though the consequences should be to defeat the object of the act. When the meaning of the words is plain and obvious, the only safe course is to suppose the Legislature to have intended those things which the words denote, and to abstain fiom all attempts to discover a different meaning by suppositions and conjectures. Dwarris 681, -682.

The expressions now in question appear to have been carefully chosen by the framers of the statute, and their sense is so clear and well understood, that we do not feel at liberty to force upon them the different and very inapt meaning contended for by defendant in error. They plainly import a legal duty resting on the townships to repair, and a neglect of that duty. That a legal duty was intended, seems sufficiently evident, since no other could be predicated of a legal entity, and since also the neglect of no other duty would be likely to be visited by such serious consequences, as are made to follow here.

As, without the law of 1861, there has been no legislative act imposing duties upon townships to maintain and repair the bridges within their limits since the case of Martin v. The Highway Commissioners, and, as the view we are compelled to take of that law, leaves the townships in the same position as to the existence of any duty resting upon them, which they occupied when the ease above mentioned was decided, it necessarily results that the judgment of the Court below was erroneous and should be reversed.

The law of 1861 will not be rendered nugatory, by the effect of this decision, since by its express provisions it was made to apply to corporations which were and are responsible for the condition of their ways and bridges, and the Legislature may hereafter deem it proper to adopt such regulations as to give it practical operation in the case of townships.

The judgment of the Court below must be reversed with costs.

The other Justices concurred.


source: Caselaw Access Project

author: Cooley, J.

license: Public Domain

text:
    Ira Eaton v. Charles Winnie.

      Action on the case: Injuries to property communicated by infection. A party, who being allowed to remain on land, under a mere license, so uses it as to make it the means of communicating an infectious disease, will be held liable in damages, for all the injury thus occasioned to the property of the owner or licensor of the premises: such owner being ignorant of the danger to which his property was exposed.

      jDeceit as affecting the question of negligence. Where one assumes to have knowledge of a subject of which another may be ignorant, and knowingly makes false statements regarding it, upon which the other relies to his injury, the party who makes such statements will not be heard to say that the person who took his word and relied upon it, was guilty of such negligence, as to be precluded from recovering compensation for injuries which were inflicted on him under cover of the falsehood.

      Heard April 6.

      Decided April 12.

    Error to Jackson Circuit.
    Action on the' case. Eaton, the defendant below, being in the occupancy of premises belonging to Winnie, under circumstances which show his occupancy to be that of a licensee, merely, used the premises to pasture upon them a flock of sheep affected with an infectious disease; which, by means of this use of the premises, was communicated to the sheep of Winnie, who moved in immediately after the sheep of Eaton had been taken away. For the damages, suffered by Winnie, resulting from the infection thus communicated to his sheep, he brings this action against Eaton. Evidence was offered on the trial to show that Eaton knew ■of the disease and the danger of and mode of communicating infection from it; and that Winnie was ignorant in these respects. ■' •5
    The questions to be reviewed in this Court were raised in the Court below upon the admissibility of evidence, and also by exceptions to the charge of the Court.
    The defendant requested the Circuit Judge to charge the jury:
    1. That the plaintiff cannot recover on the third count, for the reason that the acts alleged as willful or negligent were lawful acts on the part of the defendant.

      2. That the defendant had the right to put on the premises sheep that had the disease known as the scab.
    3. That if the sheep of the plaintiff took the scab by reason of the infection remaining after the occupation by defendant, this would not make the defendant liable.
    5. That plaintiff had no right to rely on the statement of Baton that a frost would kill the scab, but knowing the facts himself, was himself bound to care for his own sheep and see that they were not infected.
    6. That said statement of Eaton furnishes no excuse to the plaintiff for not seeing that his sheep were cared for and the disease prevented.
    7. That Winnie, knowing that the farm had been occupied by sheep having had the scab, it was his duty to take means to prevent his sheep from taking the disease, and any statement made by Baton furnishes no excuse.
    8. That if Winnie took no means to prevent the disease, he was himself guilty of negligence.
    The Circuit Judge refused to charge as firstly, secondly and thirdly as above requested; and also refused to charge as fifthly, sixthly, seventhly and eighthly above requested; but did charge the jury in reference thereto, that if the defendant negligently and knowingly put diseased sheep on the premises, knowing that the disease was contagious, and that the plaintiff’s sheep would thereby be injured, he would be liable if plaintiff’s sheep were thereby infected; that if the plaintiff was guilty of negligence in trusting to what Eaton said about the disease being cured by the frost, or if he was negligent in putting his sheep on the place after he had knowledge of defendant’s sheep being diseased, then the defendant would not be liable on that count; that if the complainant was himself negligent, or lacked due care in placing the sheep on the place, or in other words, if the plaintiff through negligence contributed to the injury he cannot recover.
    The defendant excepted to the charges, and the aforesaid refusals. The jury, rendered a verdict for the plaintiff; and the judgment entered thereon comes into this Court by writ of error.

      John D. Gonély, for plaintiff in error.

      W. K. Gilson, for defendant in error,
    This action of trespass on the case arises from injuries to orchard and sheep of defendant, caused by the negligence and willful carelessness of plaintiff in error; and the questions of law submitted to this Court all relate to the last count in the declaration, and the admissibility of the evidence to maintain the same.
    It is insisted by plaintiff in error, that he had a right to bring sheep, whether diseased or not, upon the premises sold to Winnie. Also, that whether such right existed or not, the injury to the sheep is too remote to furnish ground for damages.
    Negligence is a violation of the obligation which requires care and caution in what we do. — h Gomst., 8^9; 16 Ind., 81% ; Sherman and Redfield on Negligence, 5. — The question of negligence depends on the facts in the particular case, and is not an abstract question of law. — 80 IIoio. Prac., %19; k Bari., 198; Sherman and Redfield on Negligence, 8, 19. — The injuries charged in the third count were the proximate and not the remote consequences of the willful, careless and negligent acts of Eaton, and lie should be held responsible for the damage. — 8 Pars, on' Gont., 178 ; S Pars, on Gont., 179; 1 PLUlard on Torts, 84, § 11; IS Wend. Rep., 518.

    Eaton had no right or permission to occupy the premises with his sheep. The diseased sheep were brought thereon by him after Winnie received his deed. Eaton knew the contagious character of the disease, and his conduct evinces a reckless disregard of consequences, which he might well have anticipated, in which case he will be held liable even for remote consequences. — Sd Pd. Sedgwick on Damages, 79,88.

    There was no concurring negligence on the part of Winnie. The rule that a plaintiff in an action for negligence, must himself be free from negligence, requires only this, that he should have used such care as a man of ordinary prudence would employ under the circumstances.— 22 N. Y., 209; Sherman and Redfield on Negligence, 28.

    This is not a case of damnum absque injuria. The injury was not caused by the prudent and reasonable and lawful exercise of any right on the part of Eaton.

      D. Johnson, on the same side.
    The errors assigned on the rulings of the Court below, on the admissibility of evidence, are of no consequence, because the same questions are raised on exceptions to the charge of the Court in the submission of the case to the jury. The principal question in this case is, whether the facts set up in the third count of the declaration constitute a cause of action.
    In the first request, the Court is asked to instruct the jury that the plaintiff below could not recover on the third count, for the reason that the acts alleged as willful or negligent were lawful. Second, That the defendant had the right to put on the premises sheep diseased with the “ scab.” Third, If the plaintiff’s sheep became diseased, the defendant was not liable.

      By refusal to charge as requested, the Court said to the jury, iu substance, that the defendant could incur a liability to the plaintiff by putting diseased sheep upon his premises while in the temporary possession of them, provided he knew said disease to be infectious, and that plaintiff intended to bring sheep upon the premises, and that they would be likely to take on said disease. And this is the question for review.
    Error is also assigned upon the refusal to charge that the plaintiff below had no right to rely on the statement of defendant that the frost would destroy the infectious properties of the disease, or as expressed in said request, “kill the scab,” and was guilty of negligence in doing so. The Court refused to charge as requested, either in form or substance, but did charge what we claim to be the law of the case, viz: “ That if the defendant negligently and knowingly put diseased sheep on the premises, knowing that the disease was contagious, and that the plaintiff’s sheep would thereby be injured, he would be liable if the plaintiff’s sheep were thereby infected.” And he further charged them, in substance, that any neglect on the part of the plaintiff, either in believing what the defendant had told him, or in putting his sheep on the premises after the facts came to his knowledge, as disclosed in the case, then and in that case, the defendant was not liable. The rights of the defendant were fully protected by this charge, if the plaintiff had a right of action at all, under the third count of his declaration.
    So, if we are right thus far, the only remaining question to be considered is, whether this is one of those injuries for which the law affords relief. The foundation of the defendant’s liability rests on the fact, that he was not the owner of the premises, but temporarily in the possession of them. A man would have the right to convert his own house into a hospital for the treatment of patients affected with contagious diseases, if it were sufficiently removed from his neighbors, but we submit that a tenant, whose term was about to expire, could not do so and leave the premises in a condition to imperil the lives of subsequent occupants. The liability to make reparation for any injury is said to rest “ on original moral duty” enjoined upon every person so to conduct himself or exercise his own rights as not to injure another. 1 Hilliard on Torts, 83.
    It may be argued that there is no precedent for this action. This case, therefore, must be decided upon principle, and one of the leading principles in this class of actions is, that a man shall use his own property so as to do the least possible injury to his neighbor.
   Cooley, J.

Winnie brought a special action on the case, against Eaton, to recover damages consequent upon the manner in which Eaton had used premises which Winnie had bought of him. The third count of the declaration, which alone it’ is necessary for us to consider here, is as follows :

And whereas, heretofore, to wit: on the 31st day of November, 1864, the said plaintiff was the owner in fee of the aforesaid described lands and premises, then lately purchased of said defendant, which said lands and premises were then and there, to wit: on the day and year last aforesaid, suitable and proper lands for farming and for the pasturing and raising and yarding of sheep, and were free from any contagion or infection dangerous, noxious or fatal to sheep or other stock, and being so, the owner in fee of said premises, the said plaintiff heretofore, to wit: on the day and year last aforesaid, at the township of Leoni, in said county of Jackson, at the special instance and request of said defendant, and in consideration that said defendant would exercise proper care and prudence in and about said premises, and not commit or suffer to be committed any damage or injury to said premises, or to the cattle, sheep or horses of said plaintiff, and would not bring or introduce upon said premises any distemper or contagious or infectious disease dangerous to sheep or cattle, did allow, permit and suffer said defendant to occupy and remain in possession of said premises, and said defendant did occupy and remain possessed of said premises for a long space of time, to wit: from the 31st day of November, 1864, to the 10th day of January, 1865, whereby said defendant ought to have occupied said premises in a careful and prudent manner, and not committed himself, or. suffer to be committed, any damage or injury to tbe same or to the cattle or sheep of said plaintiff on said premises, or introduced or permitted to be introduced, or brought upon said premises any sheep or other animals sick and diseased with any hurtful contagious disease or sickness, which might or could be communicated to the sheep of the said plaintiff.

Yet, the said defendant not regarding his duty, aforesaid, in the premises, afterwards, to wit: on the 1st day of December, 1864, and on divers and sundry other days and times between that day and the 10th day of January, 1865, negligently, carelessly and willfully contrived craftily to injure and defraud said plaintiff in this behalf, did turn in, and caused to be turned in and upon said premises and into the barnyard, sheepfold and enclosure of said plaintiff, wherein the sheep of said plaintiff were then and immediately about to be pastured and yarded, a large number, to wit: five hundred sheep, sick, diseased and affected with a noxious, dangerous and contagious disease, commonly known as the scab,” the said defendant then and there well knowing said sheep so turned in upon said premises to be so diseased and sick as aforesaid, by reason whereof, and by and through the carelessness and negligence and willfulness of said defendant, the said contagious disease was communicated to the sheep of said plaintiff, so that, to wit: four hundred of plaintiff’s sheep, of great value, to-wit: of the value of five hundred dollars, became sick and disordered with said contagious disease, and great numbers, to wit: two hundred, died thereby, and the rest, to wit: two hundred of the sheep of said plaintiff were rendered worthless to said plaintiff in consequence of said disease so communicated to them, so that said plaintiff wholly lost the use and benefit of and profit of said sheep, and was compelled to and did pay out divers large sums of money, to wit: one hundred dollars for medicine and nursing and care of said sheep, to the damage of said plaintiff of three thousand dollars, etc.

On the trial the plaintiff gave evidence to show that he purchased of Eaton the premises referred to in the declaration, by land contract on the 31st day of October, 1864; that he received the deed on the 29th day of November, 1864; that he went into possession of the premises on the fourth day of the following January; that previous thereto Whitfield Cain was in possession; that Cain moved off the day the plaintiff moved in; that plaintiff had been informed that Eaton formerly lived on the premises, but Cain was living there when plaintiff received his deed, and Eaton desired he might remain until Eaton fixed his house, to which plaintiff assented; that plaintiff brought sheep with him on the fourth day of January; that there had been sheep of Eaton’s on the premises, which Eaton had been doctoring; that a day or two before he moved, he said to Eaton, — “ Day after to-morrow I want to move,” and asked Eaton if his, plaintiff’s sheep, which were then sound, would not take the disease, and Eaton said, “No; one frosty night will remove it.” The plaintiff gave further evidence tending to show the sheep Eaton had on the premises between the date of plaintiff’s deed and the time he took possession in January, were afflicted with the disease called the “scab,”' and were doctored by Eaton for it; that plaintiff knew nothing of this disease, and believed what Eaton had told him; and that Eaton, to another person, assigned as a reason for putting the sheep on these premises,, instead of elsewhere, the fear of communicating the disease to sheep he was going to get for his daughter. The plaintiff gave further evidence tending to show that the scab was communicated to his sheep when turned upon, the premises, and they were greatly injured and diminished in value in consequence.

Upon this case the Court was asked to charge:

1. That the plaintiff could not recover, on said third count of his declaration for the reason that the acts alleged as willful or negligent were lawful acts on the part of defendant, and, if the plaintiff’s sheep took the scab by reason of the infection remaining after the occupation by defendant, it would be damnum absque injuria.

2. That the plaintiff had no right to rely on the statement of Eaton, that a frost would kill the scab, but, knowing the fact himself, was bound to care for his own sheep and see that they were not infected.

These requests were refused, but the Court charged the jury that if the defendant negligently and knowingly put diseased sheep on the premises, knowing that the disease was contagious, and that the plaintiff’s sheep would thereby be injured, he would be liable if plaintiff’s were thereby infected; that, if the plaintiff was guilty of negligence in trusting to what Eaton said about the disease being cured by the frost, or if he was negligent in putting his sheep on the place after he had knowledge of defendant’s sheep being diseased, then, the defendant would not be liable on that count; that if plaintiff was himself negligent, or lacked due care in placing the sheep on the premises, or if, in other words, the plaintiff, through negligence, contributed to the injury, he could not recover.

The jury having returned a verdict for the plaintiff, the correctness of this charge and of the refusals to charge, is the question which we are to consider.

Was the act of the defendant in putting the diseased sheep upon the premises, with knowledge of the disease and of the liability to communicate the infection in the manner charged a lawful act? We think not.

It is assumed iu the argument made on behalf of Eaton in this Court, that after he had conveyed the land he became tenant to Winnie, and had the usual authority of a tenant to make use of the premises as he pleased. This, we think, is an error. Nothing in the case shows that he was given any such authority. The request he made on behalf of Cain was only that Cain might be allowed for a period to remain on the land until a house elsewhere was ready, and an affirmative response to this request gave all the right he or any one under him had there. The right to the possession of the premises passed immediately to Winnie on the receipt of the deed, and the permission for Cain to remain was a mere license, which even while unrevoked would not have precluded the licensor from taking actual possession of the premises generally, and putting his stock upon them if he saw fit. Any occupation by Eaton inconsistent with this general right in his grantee would not have been warranted by the license, and consequently would have been wrongful and unjustifiable. And the wrong becomes very palpable and very gross when under a mere permission for a family to remain on the land, the party assumes to bring infection upon it, of a character which must remain after full possession has been surrendered. It is very evident to us that the license given was exceeded, and the gratuitous privilege Eaton had solicited was grossly abused, and that he ought in justice to be held responsible for the consequent damages.

But even if this be so, it is claimed that the plaintiff below was not entitled to recover, because, having full knowledge of the facts he was himself guilty of negligence, in turning his sheep upon the premises where they would be likely to take the infection. We think, however, that this position is not sustainable. The plaihtiff testified that he was ignorant of this disease, and we are not aware that the disease is so common and so generally understood, that every man at his peril is bound to understand its danger and its infectious character. Eaton assured him there was no danger, and he believed this assurance. Where one assumes to have knowledge upon a subject of which another may-well be ignorant, and knowingly makes false statements regarding it upon which the other relies, to his injury, we do not think it lies with him to say that the party who took his word and relied upon it as that of an honest and truthful man, was guilty of negligence in so doing, as to be precluded from recovering compensation for the injury which was inflicted upon him under cover of the falsehood. If a party’s own wrongful act has brought another into peril, he is not at liberty to impute the consequences of his acts to a want of vigilance in the injured party, when his own conduct and untruthful assertions have deprived the other of that quality and produced a false sense of security. Upon this point we content ourselves with referring to the cases of Pennsylvania R. R. Co. v. Ogier 35 Penn. St. 72; Gordon v. Grand St. R. R. Co. 40 Barb., 550; and Ernst v. Hudson River R. R. Co., 35 N. Y. 28, which fully support and illustrate the position here taken.

The judgment of the Court below, we think, should be affirmed with costs.

The other Justices concurred.


author: Campbell, Ch. J.

text:
    Charles Martin v. Jacob L. Ash.
    Contract: Effect of rescission. A party having regained possession of property, which he had parted with under a contract he now alleges to be void for fraud, and which he rescinds for that reason, is not estopped, while retaining such possession, to defend his title on the ground of the fraud, — it appearing that he retains nothing except that which was originally his own.
    A party defrauded in a contract will not be debarred of his rights unless his delay to assert them amounts to a waiver, or he consciously does some act which will prevent the other party from being put in as good condition as he was before. A contract right to rescind may be enforced with the same results.

      Heard April 7.

      Decided April 12.

      Error to Wayne Circuit.
    This was an action of replevin brought by Jacob L. Ash, in the Circuit Court for the County of Wayne, against Charles Martin, for a yoke of oxen. Ash recovered judgment in the Court below, and Martin now brings the record here by writ of error.

      Ward & Palmer, for plaintiff in error.
   Campbell, Ch. J.

■ Ash and Martin agreed to exchange certain oxen and a pony belonging to Martin for a span of horses belonging to Ash. The bargain was made on a Friday in December, 1867, and the animals were delivered; but it was agreed that in the next week Martin should have his oxen again and Ash his horses, to use for some days, and they were thus received and used; but Martin, after getting the oxen, repudiated the bargain and kept them, — averring that he had been defrauded, and that the horses had been falsely represented and warranted sound, with an agreement that they might be returned if not sound, which he claimed turned out to be the fact. The horses were left under Ash’s control, but the evidence does not show whether or not he afterwards exercised ownership over them.

The Circuit Court gave judgment in Ash’s favor, upon the ground that Martin, by getting the oxen under the agreement, had affirmed it, and was estopped from repudiating it. It seems to be assumed, but the statement of the evidence does not show it, that Martin had discovered the fraud when he got the oxen back. It- does not appear whether he had any previous personal interviews with Ash or not, but in our view this is not important.

If Martin, under the agreement, and after discovering the fraud had obtained something which he could not have properly retained after rescinding it, then Ash would perhaps have been damnified in such a way as to preclude such rescission. It would have been an election to abide by the contract. But the oxen belonged to Martin if the contract was avoided, and obtaining them was only obtaining what, upon rescinding the agreement, he had a right to keep. This being so, there was nothing in this act which could prevent Ash from being put in as good a condition as before, and the horses he had sold were by this ■very act restored to him. It would not be reasonable to compel Martin to return the oxen and take his chances of getting them back. Where there has been willful fraud on one side , and none on the other, the party defrauded, while compelled to act with reasonable promptness, ought not to be debarred of his rights, unless he has made such delay, as in itself amounts to waiver, or has consciously done some act which will prevent the other party from being put in as good a condition after the rescission, as he would have been had it been made more promptly. And if there was no fraud, but a contract right to rescind on the discovery of the defect in the horses, the same rules would apply. There was nothing unreasonable in this case, and Martin had a right, therefore, to rely on his rescission, if the facts were as he claimed. The Court declined to consider these facts. We think the judgment, therefore, should be reversed, with costs, and a new trial ordered.

The other Justices concurred.


author: Grates, J.

text:
    Ferdinand Specht v. The City of Detroit.

      The writ of Certiorari: Supreme Court. The writ of certiorari out of the Supreme Court is a constitutional writ; of the power to issue which, the Court cannot be deprived by legislative enactment; the power, however, should be exercised sparingly where other adequate remedies exist. Harwell v. Taylor, 1% Mich 118.

      Detroit Charter: Opening Alleys: Notice. In condemning private property to public use as streets, alleys, &c., under the charter of the City of Detroit, the resolution of tbe Common Council directing the City Attorney to proceed, is analogous to a warrant of attorney as it relates to the action of the Court; while the notice that he is required to give, is in the nature of process which must strictly conform to the charter; and if it be defective in any essential particular, the Court will obtain no jurisdiction.
    A notice that a jury will be empanneledto determine the just compensation tobe paid for property to be taken for an alley, will be essentially defective if it do not give notice that the jury will apportion and assess the compensation to be paid to and upon all lots, premises or subdivisions thereof,' within the block in which the alley is situated, and which will be benefited by the proposed improvement.

      Heard April 8.

      Decided April 12.

      Certiorari: To the Eecorder’s Court for the City of Detroit, to review the proceedings for opening and extending an alley between Lafayette avenue and Howard street, from the west line of the Woodbridge Farm to Twelfth street, in the Ninth Ward of the city of Detroit.
    On 18th May, 1869, the Common Council passed a resolution, as follows:
    “ Be it resolved, by the Common Council of the City of Detroit, That it is necessary to open and extend an alley between Lafayette avenue and Howard street, from the west line of the Woodbridge Farm to Twelfth street, in the Ninth Ward, described by metes and bounds, courses and distances as follows: All that part of Lognon and Thompson farms bounded and described as follows: Commencing at,” &c., [describing tbe premises.]
    “ And be it further resolved by the said Common Council, That the City Attorney be and he is hereby directed to apply to the Eecorder’s Court for the drawing and empanneling of a jury required in such cases, and to give notice in accordance with the city charter.”
    The notice given by the City Attorney in pursuance to the direction of the Common Council is in the following terms:
    “Alley in the Ninth Ward. — Notice is hereby given that the Common Council of the city of Detroit have determined to open and extend an alley between Lafayette avenue and Howard street, from the west line of the Woodbridge Farm to Twelfth street, in the Ninth Ward, which said improvement is described as follows: All that part of tbe Lognon and Thompson farms, bounded and described as follows: Commencing at,” etc., [description as in the resolution] “and to take therefor such private property within said limits as may be necessary for said improvement, and that on Thursday, the 8th day of July, A. D. 1869, in accordance with the instructions of said Common Council, I shall apply to the Recorder’s Court of said city, at 9 o’clock in the forenoon of that day, to have a jury of twelve freeholders drawn and empanneled, to determine the necessity for using said property for said improvement, and to apportion and assess the compensation to be paid to the several owners or persons entitled to receive the same, to and upon all lots, premises or subdivisions thereof which will be benefited by the proposed improvement.
    The jury was empanneled on the 8th of July, — the day appointed in the notice. The report of the jury was filed on the 19th of July, and on the 5th of August it was confirmed in the Recorder’s Court. In the award of benefits and damages, as found by the jury, Ferdinand Specht was assessed for benefits over his damages, the sum of $118.44. Specht, in his affidavit for the allowance of a certiorari, states that he had been informed before the confirmation of the proceedings by the Recorder’s Court, that the proceedings were in many respects irregular and insufficient; some of these defects, he states, were pointed out to the City Attorney and City Counsellor; and that he received the impression, from what was said by these officers, that these proceedings would be withdrawn, or not confirmed. They were however confirmed by the Common Council; who, on the 17th of August, ordered the alley opened; and on the 27th, he obtained the allowance of a writ of certiorari to remove the proceedings to this Court.

      G. H. Prentis and T. Bomeyn, for plaintiff in error.
    /. J. Brown, Gity Attorney, for defendant in error.
   Grates, J.

It is objected by the city that this proceeding by certiorari is not warranted, because the plaintiff in the writ had a complete remedy by appeal, of which he neglected to avail himself, and thus having suffered the time for appealing to pass without an effort to resort to that mode before sueing out the certiorari, the judgment of the Recorder’s Court became conclusive.

The authority to award the writ in this class of cases results from the Constitution and cannot be taken away by legislative enactment. It is true that legislative provisions in given instances, may supersede the necessity for reviewing questions in this form, but the propriety of proceeding by certiorari in those cases, to which by the principles of the common law it is rightly adapted, must depend upon a sound judicial discretion. Upon this point we reiterate what was said in Farwell v. Taylor, 12 Mich., 113, that “the power is one which should be exercised sparingly in cases where other adequate remedies can be had; and when a decision can be taken up by appeal, and on that appeal the jurisdictional questions as well as those arising on the merits can be fully disposed of, a certiorari should not be allowed, unless circumstances exist, which show that a failure of justice will result from denying it.”

The proceeding now sought to be reviewed was one promoted by the city to condemn the property of Specht to a public use, and it is materially different in its nature and course, as also in its consequences, from an ordinary litigation between party and party, and the courts in such cases have never been accustomed to make rigid application of the rules recognized in ordinary actions, under the head of waiver. Indeed the legal tribunals have generally found it necessary to the ends of justice, in matters of this kind, to incline somewhat towards indulgence, and, without enlarging their jurisdiction, to amplify the remedy.

While the property rights of individuals ought never to be infringed, under the guise of legal authority or regulations, the danger of their being so in proceedings taken professedly under the power to condemn private property to public use has been universally felt and acknowledged. And this danger is especially recognized in the safeguards provided by the Constitution, and in general in the specific and elaborate statutory provisions relating to that subject.

The law under which the city assumes to act in this case is not an exception to this rule. — Laws of 1869, pp. 1686, 1707, mo.

While adequate power is given to the city by the charter, the various steps to be taken in the exercise of that power are carefully delineated, and appear to have been devised with no inconsiderable care. And according to the uniform course of decision there could be no substantial departure from any of the fundamental requirements there made without vitiating the proceeding.

On turning to the papers before us we can discover no evidence that the plaintiff in certiorari appeared in any stage of the business, and we cannot presume that he did so. We notice this circumstance, simply for the reason that the counsel for the city was understood as insisting that the party appeared before the jury and presented his claims, and that therefore he should be considered as having submitted himself to the jurisdiction. Without determining the scope of the remedy by appeal, we are satisfied that, in this case, “ circumstances exist which show that a failure of justice will result,” if we refuse to review these proceedings, and we are therefore disposed to retain the case.

The Common Council of Detroit are empowered to take private property for alleys, etc., but the necessity for using it and the compensation to be made must be determined by a jury. — Section 1 as amended in 1869, of chap. 7 of Charter.

When the Council have determined to take property for such uses, they are by resolution to direct the City Attorney to proceed in the Recorder’s Court to obtain an inquisition by jury, and a confirmation in that Court of the finding by the jury, and the charter prescribes the course of proceedings, from their institution in the Recorder’s Court to their conclusion, with great particularity. The proceedings are to be initiated in Court by notice from the’ City Attorney containing a precise statement of their nature and object, and this notice is to be published once a week for four successive weeks in the official daily newspaper and one other daily newspaper of the city. Copies of the notice are also to be served if practicable, or posted, and when the law has been complied with in regard to notice, the owners of any private property, intended to be taken for said improvement and all persons interested therein, are to take •,notice of and be bound by all subsequent proceedings without further notice, except as afterwards provided in the act. Within five days after the first publication of this notice, the City Attorney is required to file a copy of the notice and of- the resolution of the Council instructing him to proceed in the Recorder’s Court, with the Clerk, and thereupon, and at least three weeks before the time fixed for drawing a jury, the clerk is required to issue a summons for jurors. — §§ 2, 8, as amended in 1869, of ch. 7, of Charter.

It is seen that this notice made by the City Attorney, by direction of the Council, and filed in the Recorder’s Court'with the evidence as to publication, posting and service, is the foundation of the proceedings in that Court. It is that which immediately puts the Court in motion, specifies the things to be done by the jury, and informs those interested of the precise character of the matter in hand. It takes the place of process as against those whose rights- are to be affected, and serves as a qualified guide in the subsequent proceedings; and if it be defective in any essential particular, the Court- will obtain no jurisdiction.

The resolution of the Council directing the City Attorney to proceed is not required to have the sapie publicity, and is more analogous to a warrant of attorney, as it relates to the action of the Court, than to any step taken in the Court to qompel action.

The charter declares that the notice in question shall state “that the Common Council have determined to make such improvement, describing it by metes and bounds, courses and distances, and to talco therefor such private property within said limits as may he necessary, and that on a certain day therein to be mentioned, and not less than ten days after the date of the last of said publication he will apply to the Recorder’s Court of said city to have a jury of twelve freeholders drawn and empanneled to determine the necessity for using said property, and the just compensation to he paid therefor, and incase of opening, widening, straightening, or altering any alley or alleys, said notice shall also contain the further statement that said jury will also apportion and assess the compensation to he paid to the several owners, or persons entitled to receive the same to and upon all lots, premises, or suh-divisions thereof, within the hloclc in which the alley in question is situated, and which will ,be benefited by the proposed improvement.” — § 2 as amended in 1869 of ch. 7 of Charter.

The resolution of the Council directing the attorney in this case to give the notice simply instructed him to apply to the Recorder’s Court for the drawing and empanneling of a jury required in such cases, “ and to give notice in accordance with the city charter,” and the notice actually given, after stating that the Council had determined to open and extend an alley of the width and course, and between the points which were described, and to take therefor such private property, within certain limits, as.should be necessary for said improvement, proceeded as follows: — “And that on Thursday, the 8th day of July, 1869, in accordance with the instructions of said Common Council, I shall apply to the Becorder’s Court of said city at nine o’clock in the forenoon of that day, to have a jury of twelve freeholders drawn and empanneled to determine the necessity for using said property for said improvement, and to apportion and assess the compensation to be paid to the several owners or persons entitled to receive the same, to and upon all lots, premises, or sub-divisions thereof, which will be benefited by the proposed improvement.

The broad and essential difference between the notice given and that required by the Charter is seen at once. The Charter required that the notice should state that the jury would be called to determine the just compensation to be paid for using the property taken, and this was wholly omitted. In case of an alley the notice was further required to state that the jury would also apportion and assess the compensation to be paid to and upon all lots, premises or sub-divisions thereof, within the bloclc in which the alley is situated and which will be benefited by the proposed improvement, but in lieu of this, it was stated in the notice that the compensation would be apportioned and assessed to and upon all lots, premises or sub-divisions thereof, which would be benefited by the proposed improvement, omitting altogether the qualifying words as to locality contained in the charter. The provisions of the Charter in these respects are material and imperative, and the departures from them in the notice were not merely verbal or formal, but substantial and fundamental. The errors they involve are so evident and decisive as to require neither reasoning nor authority to make them more clear and emphatic. As these defects are fatal to the proceedings, we are not inclined to consider the other objections raised on the argument of the case.

The proceedings in the Court below must be quashed with costs.

The other Justices concurred.


author: Campbell, Ch. J. Cooley, J. Christiancy, J.

text:
    The Board of Auditors of the County of Wayne v. Emil P. Benoit, et al.

      Officer: Be facto: Under color of title. A person actually obtaining office, with, the legal indicia of title, is a legal officer until ousted, so far as to render his official acts as valid as if his title were not disputed.

      Salaries of officers. No claim can be enforced against a county for the salary or perquisites of a county officer, except for a period during which the claimant was the actual incumbent.

      Heard October 26, 1869.

      Decided April 19, 1870.
    Case made from Wayne Circuit.
    Emil P. Benoit and George Miller were candidates for office of Treasurer of Wayne County, at the general election held in November, 1866. Miller was declared elected by the Board of County Canvassers, and entered, upon the performance of the duties of his office on the first day of January, 1867, and continued in such performance until November, when he was ousted by the judgment of this Court upon an information filed against him by Benoit; who then became the incumbent of the office and so continued until January, 1, 1869. In settling his account as County Treasurer, at the close of his term of office, Benoit claimed the right to the salary for the whole term for which he was elected, including that portion of the time during which the duties of the office were performed by Miller. The Board of County Auditors, having settled with Miller and allowed him the salary for the period of his actual incumbency, at the rate previously fixed, — $3,000 per annum, — refused to allow the salary for the same period to Benoit; and they bring this action on his bond as County Treasurer for the sum withheld by him, namely; $2,583 33 — that being the amount of salary from January 1 to November 10, 1867. The Circuit Judge rendered a judgment for this sum in favor of the Board of Auditors, which judgment is brought into this Cuort for review upon a case made.

      Theo. Romeyn, for the plaintiffs.
    Miller, having received the certificate of election, was, until ousted, entitled to be recognized as legally in office, and the County Auditors could not withhold his salary from him. There can be no doubt upon the authorities that Benoit has a legal claim against Miller for whatever fees or salary may be equitably his due.
    There would seem to be as little doubt, upon principles of equity, that the county officers, having paid the actual incumbent, as by law they were bound to do, ought not to be compelled to pay to the party who failed to receive the certificate.
    The single point which we make is, that an office in this country is not property, nor are the prospective fees or salary the property of the incumbent. The right to fees or salary does not grow out of any contract between the officer and the government, but from the rendition of the services.
    If officers of the government act fraudulently and willfully in excluding a party from an office to which he has been lawfully elected, then they would undoubtedly be personally liable to him in an action upon the case. But the government or body politic cannot be made liable for services rendered. — Sigur v. Crenshaw, 10 Lou. An., 298. Petit v. Rousseau, 15 ib. 239. Smith v. Mayor of New York, 37 N. Y., 518.

    In the case of Stadler v. The City of Detroit, 13 Mich., 346, this point was not made by the counsel for the city.

      G. V. N. Lothrop, for the defendants.
    I. A mere de facto officer cannot set up the office for his own protection, or as the ground of any rights or benefits to himself. While his acts are valid as to third persons, they are of no validity whatever as to himself. This is now elementary.— Green v. Burke, 23 Wend., 502 ; People v. White, 24 Wend., 529; People v. Hopson, 1 Denio, 579 ; Riddle v. County, 9 Serg. and R., 386; 10 Serg. and R. 249; Fowler v. Bebee, 9 Mass., 231; Venable v. Curd, 2

      Head, 582; Patterson v. Miller, 2 Met. (Ky.), 493; Gourley v. Hawkins, 2 Clarke (Iowa), 175.

    II. The compensation of a public officer is incident to the true title, and not to mere occupancy. — People v. Tieman, 30 Barb. 193; s. c., 8 Abb. Pr. R., 359 ; 4 Abb. Dig., 206; People ex rel. Dorsey v. Smith, 28 Cal, 21.

    It was also ruled in People v. Brennan, 30 How. Pr. R., 417 (7 Abb., Dig., 484), that a payment of salary to a de facto officer was no defense to the claim of a de jure officer. It is quite clear that an usurper of an office could not compel by law payment to him of his salary; and we insist that it is the duty of the proper officers, in all cases of contest to withhold payment till the matter is decided. Otherwise they pay at their peril.
    It is true, that the relator in a quo warranto proceeding may look to the usurper for damages. — 2 Comp. Laws, § 5297.

    This may, in cases where the public do not pay a salary and the compensation is limited to fees, be the only remedy; or where fees constitute a part of the compensation, be the only remedy as to that part of the compensation. But where there is a salary the officer may look to those whose duty it is to pay the salary. The usurper may be wholly irresponsible. Shall the lawful officer lose his salary through the wrongful payment by the Auditors? The loss, if any; arises from their wrongful act, not his. Let the loss, then, follow the fault. And if the usurper is responsible, the Auditors can recover the money so erroneously paid.
    The case of Smith v. Mayor, I am aware, seems to hold that official compensation attends not the true title, but actual occupancy of office. — Smith v. Mayor, 1 Daly, 219; Smith v. Mayor, 87 N. Y., 518.

    But this ruling, we contend is unsound in principle, and against sound public policy, It ought not to be followed here. — See Stadler v. City of Detroit, 13 Mich., 347.

   Campbell, Ch. J.

Benoit was sued for not paying oyer the monies in his hands as Treasurer of Wayne County. The sum which he retained was an amount claimed to be due to him for his salary, during the pendency of proceedings in quo warranto, against George Miller, who held the office in fact, but who was decided not to have been lawfully elected.

The case shows that Miller was declared and certified by the county canvassers to have been duly elected, and that he took the legal oath and gave bond and assumed the office, and held it and performed its duties and received its emoluments until ousted; and that Benoit was finally by the judgment of this Court declared entitled to the office, and has still pending his claim on suggestion of damages under the statute.

The Court below held that Benoit could not claim his salary against the county, when Miller had received it as Treasurer, actually holding office in the manner mentioned.

It seems very well settled that as against the person who has kept him out of office by the intrusion, an action would lie for the injury, under which the lawful perquisites, which he would have received if in office, will be the proper subject of inquiry. Our statute has recognized the right to this redress, and has substituted a suggestion instead of the old action on the case of the assize. The precise measure of damages it would not be proper for us, on this hearing, to consider. But the right is unquestionable, and is put on the same footing with actions for disseizin of lands. See Petit v. Rousseau, 15 La. An., 239 ; Sigur v. Crenshaw, 10 La. An., 298; Boyter v. Dodsworth, 6 T. R., 681; U. S. v. Addison, 6 Wallace, 291; same v. same, 22 How. R., 174.. In the latter case the jurisdiction of the Court to try the cause depended upon the amount of money involved in the issue, and it was held that in the quo warranto proceedings the salary received and receivable by the defendant was, for this purpose, a governing consideration.

It cannot be possible that a county can be liable to pay the same salary twice over; and if the present claimant can demand the money, it must be because the payment to Miller was not warranted. And this can only be upon the assumption, that the county authorities were bound to know who was lawfully entitled to the fees, or else, that they were bound to prevent the defeated party from getting the salary until the suit was decided.

Whatever may be the case in regard to a mere intruder, without any claim or color of title, there can be no doubt that a person actually obtaining office with the legal indicia of title is a legal officer until ousted, so far as to render his official acts as valid as if his title were not disputed. And it is equally plain that there can never be two incumbents at once. If one is in, the other claimant is out, and the law never has tolerated any other theory. The proceeding by quo warranto will not lie when an office is vacant. (Rex v. Whitwell, 5. T. R., 85.) And whenever a mandamus has been sought which would in any way involve an inquiry into the right to an office, it has been held that if the office is actually full, there can be no inquiry except upon quo warranto, and until the incumbent is thus ousted, no one else can have any enjoyment of the office. (Rex v. Mayor of Colchester, 2 T. R., 259 ; Rex v. Mayor of Oxford, 6 A. & E., 349 ; Reg. v. Mayor of Winchester, 7 A. & E., 215 ; Reg. v. Phippen, 7 A. & E., 966.)

It was also held in People v. Head, 25 Ill. R., 325, that mandamus will lie in favor of a party who has the proper title or certificate, against a prior officer who claims to hold over, under a new election, to compel him to respect the official certificate, and seek his remedy as a relator in proceedings by quo warranto. And in Queen v. Blizard, L. R. 2 Q. B. 55, it was held that a resignation of a defendant in quo ivarranto, was no answer to the application for a writ, because without judgment of ouster the relator could not get in.

The position of a person who has a right to claim an office, but has not yet assumed it, is in no sense an incumbency. (The King v. Swyer, 10 B. & C. 486.) Under our statutes the party, however well entitled, loses his right, unless he files his oath and bonds. (G. L. %4L5.) We held in People v. Mayworm, 5 Mich. R., 146, that a person who had been deprived of his evidences of title by the granting of a certificate to some one else, was not compelled to file his oath and bond until judgment in his favor, because no one was obliged to recognize him as against the one holding the certificate. If, however, the county authorities were compelled to look behind the papers, there could be no reason for any such exception. And nothing but actual incumbency can make a person a legal officer, however much he may be entitled to obtain the office. And, certainly, when a person stands of record as ousted and demanding the ouster of another, whom he alleges to be wrongfully in office, as a means of getting his own rights, it could not be claimed that the acts of the relator would be in any sense official acts. The only valid proceedings in the name of office must be those oí the actual incumbent. And his acts are valid to all purposes, except, possibly, his own protection from liability as a wrong-doer. The doctrine of the validity of the acts of officers de facto has been carried as far as possible. In State v. Williams, 5 Wis., 308, it was held to make good the approval of a statute by a Governor usurping office. In Venable v. Curd, 2 Head R. 582, it was carried to the questionable extent of making good the action of a court under an invalid statute. In Doty v. Gorham, 5 Pich, 487, where an officer defacto had made a sale, it was bold that in a suit against himself, with others, for removing property thus sold, he could justify under the sale. In Leach v. Cassidy, 23 Ind., 449, it was held that a school officer de facto, could not have his title questioned, in an application made by him for a mandamus to compel the payment to him of school moneys by the local officers. And it will not be denied that Miller, the acting Treasurer of Wayne County could have compelled the payment to himself officially of all funds belonging to the treasury.

In Desmond v. McCarthy, 17 Iowa, 626, it was held that in a replevin by an officer defacto to recover the papers belonging to his office, which had been withheld on a claim that he was not the lawful officer, his title could not be questioned, but that the only inquiry on that must be in proceedings to oust him.

The general doctrine in regard to de facto officers is so familiar that no citations are necessary to show it.

If courts themselves, when called on for affirmative action in aid of an officer, cannot inquire into his title, it cannot be reasonable to allow or to expect other bodies or persons to do so. No case is to be found in which such an inquiry has been sanctioned. And nothing could be more unsafe. It is quite possible for persons to combine and connive at fraudulent contrivances to secure office unworthily. But it is just as easy to do it in one interest as in another; and if the county authorities can withhold money and official privileges on a pretence that an incumbent is not legally elected, they can practically control the offices. The law presumes that public functionaries do their duty, and if the certificate of county canvassers, under oath, is not to be respected, there is no reason for respecting the acts of any one else. All bodies can do wrong, — but our government proceeds on the assumption that they probably will not. And when a 23erson, duly certified, has com|)lied with the ceremonies and conditions incident to office, public policy would not be subserved by allowing his rights to be questioned in any other form than by a judicial trial. Thus much respect is given to all other ministerial certificates when acted upon, and there is no reason for a232)lying a different principle here.

It was held in Smith v. Mayor of N. Y., 37 N. Y., 518, that no claim could be brought for salary or perquisites against a municipal corporation, covering any period when the claimant was not actually in office ; and this was put on the ground that these are the reward of express or implied services, and therefore can not belong to one who could not lawfully perform those services, although wrongly hindered from occupying a position in which he might render them. And in the previous case of Connor v. Mayor of N. Y., 5 N. Y. 285, the same doctrine as to the nature of official salaries and fees was laid down. Nor does there seem any good reason for doubting this rule. If an office were a contract relation, it is shown by the reasoning that it would not be competent to legislate so as to impair its tenure or its value. Yet it has always been held competent to abolish or modify tenures and profits at the will of the Legislature, when not restrained by the Constitution. And there can be no consistent theory, except that which regards official rewards as the recompense for actual or implied official work. Nor would it be possible in most cases to have the work done without some certainty of pay for it. An officer is not to be expected to work for nothing, so long as it may please his enemies to assume to doubt his title. There is very good reason why he should be compelled to respond to the rightful claimant who would have been glad to fulfill the conditions. But the laws assume that the laborer is worthy of his hire, and the person who is required to be recognised, for the time being, as the legal incumbent for the purposes of doing the work, should be recognised for the purpose of remuneration also, so far as those are concerned with whom he deals officially, and who have no personal interest in the contest for the office.

The California authority, — People v. Smyth, 28 Cal. 21, is based entirely upon New York cases which are not law in the latter state, and which were made in disregard of the previous decision in Connor’s case. It has no reasoning of its own and does not seem ■ warranted by principle.

There is an entire absence of authority elsewhere in favor of any such principle, and inasmuch as suits have been numerous, and decisions uniform, for centuries in regard to claims against the wrongdoing intruder, and no precedents are to be found favoring suits against those from whom payment for official services would originally be sought, the silence of the books on a question which could not have escaped notice is very significant. It can only be explained by the maxim that the right to office of a person in actual possession cannot be questioned collaterally.

There is one modern English case which is quite in point. In the case of the Queen v. Mayor of Cambridge, 12 Ad. and El., 702, under an act providing remuneration to persons removed from office, it was held that an officer defacto who had not complied with certain provisions, which would have made him an officer de jure, was nevertheless entitled to the remuneration, because he was actually in office and had been performing the duties. While made under statutory provisions, the decision, if not directly authority, is nevertheless somewhat analogous to our own practical construction of the laws here.

There may be cases where the redress of the aggrieved party will be difficult. But the public convenience is not on that account to be sacrificed. It is important to have the right man in office, but it is more important to be able to deal safely with those who are actually in place. And there would be great hardship in allowing the whole public interests to be thrown into confusion whenever a contest arises for office. It would invite rather than prevent litigation, if every claimant understood that by setting up a claim to office he could stop the salary of the incumbent.

The principle involved in the case cannot differ in different offices. It so happened that this is a contest concerning a salary which, is payable to himself by the incumbent, — as custodian of the county funds, but subject to a settlement of accounts. If instead of the treasurership, the clerkship or sheriffalty had been in dispute, and the officer de facto had been compelled to resort to a court to compel payment of his salary, the authorities are uniform that the title to the office could not be tried in that collateral way. The people of the state must be parties to such a controversy.

There is a distinction taken by many authorities between an office held de facto, under color of title, and one usurped without any legal pretext. This distinction is hinted at in Plymouth v. Painter, 17 Conn. 585, and Wilcox v. Smith, 5 Wend. R. 231; and is recognized in other cases. A somewhat similar question was discussed, but not decided, in Carleton v. People, 10 Mich. R. 250, where there was a difference of opinion as to an incumbency when the time had not arrived for the full operation of a statute. There is certainly some reason for distinguishing between barefaced usurpation and the assumption of office under the paper title prescribed by statute.

In the case of Stadler v. City of Detroit, 13 Mich. R. 346, the only question argued or considered was whether Stadler’s term of office had been ended, and nothing was said by any one concerning the right of action in ease he remained entitled to the office. That right was conceded, and of course such a decision could be no precedent, except upon the point actually considered and decided. But it may be doubted at least, whether that case presented any such difficulties as arise here. Stadler, being in office for two years, under a state statute, the Council instead of removing him which might have been done, assumed that the office was vacant at the end of one year without removal, and appointed Mahaney upon the theory that no one was in office at all. They acted under a mistake of law, which vitiated Mahaney’s appointment on its face; and Stadler remained an officer de facto as well as de jure, there being no ouster in the proper sense of the term. And, moreover, the body he sued was the very body that did the alleged wrong, — • while the corporation representing the county has nothing whatever to do with the appointment or installation of county officers. It is enough, however, to say that as the question of liability to suit was not raised in that case, it does not preclude its decision here as an original question, and it is not important whether the two cases differ in the principle involved upon this point.

We think the decision below was correct, and that it should be affirmed with costs.

Graves, J. concurred.

Cooley, J.

In order to apply the proper rules of law in this case, it is important to keep in view the precise facts which the record discloses.

The defendant it appears, was elected to the constitutional office of Treasurer of Wayne County, at the annual election held in November, 1866. The Board of County Canvassers, however, declared Miller, the opposing candidate to be chosen, and Miller usurped the office. The term of office was two years from the first day of January, 1867; and the Board of County Auditors had, previously to the day last mentioned, fixed the salary of the office at $3,000, at which sum it remained during the period covered by the present controversy. On the fourth of January, 1867, the defendant caused an information to be filed in this Court against Miller, which he diligently prosecuted to judgment, and judgment was rendered on the second day of November following, to the effect that the defendant was lawfully elected to said office, and that Miller had wrongfully usurped the same, aud ousting Miller therefrom.

Miller did not surrender the office until the eighth day of November, 1867. He accounted with tbe Board of Auditors and by them was allowed and paid the salary up to the tenth day of November, 1867. On what day this settlement took place doss not appear, but the case negatives any inference that it was before he surrendered the office. He credited himself with the amount in rendering his accounts to the Auditors, and they allowed and paid it. The occasion for any settlement of accounts, before the end of the fiscal year, was the judgment which terminated Miller’s usurpation, and the Auditors must therefore have acted with full knowledge of the facts.

Was Miller entitled to claim and demand of the Auditors the salary which they allowed him? I think not. The only ground on which he could claim it was, that he had occupied the office and performed its duties, and was an officer de facto. Now the acts of an officer de facto are unqestionably good for many purposes, but for many others he is regarded in the law as a jmere trespasser. Whether they are valid or void depends on the purpose for which they are considered. The public, who have an interest in the continuous discharge of official duty, and whose necessities cannot wait the slow' process of a litigation to try the title, have a right to treat as valid the official acts of the incumbent, with whom alone, under the circumstances, they can transact business. This rule is an obvious and necessary one for the protection of organized society; for, as was said in Weeks v. Ellis, 2 Barb., 325, the affairs of society cannot be carried on unless confidence were reposed in the official acts of .persons de facto in office. And private individuals, in controversies between themselves are not permitted to question the acts of an officer de facto for the further reason that to do so would be to raise and determine the title to his office in a controversy to which he was not a party, and in which he could not be heard. And this, says Parsons, Ch. J. “would be judging a man unheard, contrary to natural equity, and the policy of tlie law. From considerations like these has arisen the distinction between the holding of an office de facto and de jure.” (Fowler v. Bebee, 9 Mass., 234.) In Buclcnam v. Buggies, 15 Mass., 182, the rule and the reason for it are stated thus: It is an established principle of law that the acts of an officer, having color of title, in the exercise of the ordinary functions of his office, are valid in respect to the rights of third persons who may be interested in such acts. The adoption of such a rule is necessary to prevent a failure of justice, and the great public mischief which might otherwise be justly apprehended. Besides, the officer’s title ought not to be determined in a collateral way.” See also Tucker v. Aiken, 7 N. H., 131; Plymouth v. Painter, 17 Conn., 585; Commissioners, etc., v. McDaniel, 7 Jones, (Law,) 107; Colton v. Beardsley, 38 Barb., 29; Rounds v. Bangor, 46 Me., 541; Coles County v. Allison, 23 Ill., 437; Creighton v. Piper, 14 Ind., 182; People v. Stevens, 5 Hill, 630; Cocke v. Halsey, 16 Pet., 85; Baird v. Bank of Washington, 11 S. and R. 411

But the party himself who had usurped a public office is never allowed to build up rights, or to shield himself from responsibility on no better basis than his usurpation.

As it is said by Parsons, Ch. J., in Fowler v. Bebee, 9 Mass., 234, if an action should be commenced against one claiming to be Sheriff, for an act which he does not justify but as Sheriff; or if an information should be filed against him, in either case he would be a party, and his title to the office might be tried. The same principle is stated by Bronson, Ch. J., in People v. Hopson, 1 Denio, 579, who adds that “clearly he cannot recover fees, or set up any right of property on the ground that he is an officer de facto, unless he is also an officer de jure.” And Heath, J., in Lightly v. Clouston, 1 Taunt., 113, referring, it is 'supposed to Howard v. Wood, 2 Lev., 245, says that “ so long back as the time of Charles the Second, it was held that the title to an office under an adverse possession might be tried in an action for tbe fees of tbe office had and re-, ceived.” — And see Weeks v. Ellis, 2 Barb., 325. — It was very strongly intimated in People v. Hopson, supra, that if one resists an officer de facto, and the latter prosecutes him for the assault, it would be a good answer to the action that he was not a legal officer, but a wrong doer; for when one man attempts to exercise dominion over the per-son or property of another, it becomes him to see that he has an unquestionable title.'

The doctrine on this general subject was very clearly and fully stated by Cowen, J., in Greene v. Burke, 23 Wend., 492. The question in that case regarded the validity of a levy made by one Stephenson who had been declared elected constable while under age. “ It appears,” says the Judge, “that the town had elected him to the office of constable, and the Justice had placed the execution in his hands. The plaintiff then directed, him to go on and collect as soon as might be. He levied, but becoming satisfied that he had already committed a trespass, he was too prudent to go any further; he returned the process to the Justice, and gave up the property to the defendant. The latter offered to pay him the money, but he would not take it. Now it is said that he was an officer de facto, and that his acts bound the defendant and the plaintiff. He may indeed have been an officer de facto; People ex rel., Dobbs v. Dean, 3 Wend., 438; and had he gone on and collected the money, the defendant never disturbing him, nor the creditors in their possession of it, the thing wordd have been well enough. But his acts were valid only in respect to such third persons as were affected by them. ( Viner's Abr. tit. Officer, G. 3 Id. G. 4.) I know cases have gone a great way. But they have stopped with preventing mischief to such as confide in officers who are acting without right. (People ex rel. Bush v. Collins, 7 Johns, 549)”. “ It by no means follows from any decided case, that where a town elects a minor to an office, and he accepts it, and presumes to act in the face of a public statute, he can protect himself when sued as a trespasser. ” “ Suppose a justice, who is a disqualified tavern-keeper, to render a judgment; could he protect himself against trespass for issuing an execution ? Could he recover fees ? But we need not pursue this distinction on principle. It is very sensibly settled by a series of cases in Pennsylvania, where most of the authorities have been examined. The result was stated in Riddle v. Bedford, Serg. & Rawle, 386, 392. £The sound distinction,” says Duncan, J., “is, that the office is void as to the officer himself, but valid as to strangers. ’ The same distinction has since been recognized there in several cases. Parker v. Luffborough, 10 Serg. & Rawle, 249; Keyser v. McKissan, 2 Rawle, 139, 140."

There are no cases in conflict with these decisions, and it is quite unnecessary to follow the authorities further. It is evident that Miller had not a shadow of claim to compensation for services rendered the county during his usurpation, and that he could not. have enforced payment by law. When the Auditors paid him they did so without legal compulsion and without necessity, and the same rule of policy which precluded Miller’s right to the office being tried in a collateral proceeding to which he was a stranger, will also preclude this settlement between Miller and the Auditors being used to the prejudice of the defendant who was not, and, from the nature of the case, could not have been a party to it.

Was, then, the defendant entitled to the salary which was paid to Miller ? The county was under legal obligations to pay it to some one. We have already seen that that obligation was not to Miller, who could not have taken the first step necessary to establish his title to the office to which the salary pertained. The foundation of his claim must have been a rightful, and not merely an actual incumbency of the office; and that, with him, did not exist at any time during the term. It would seem, therefore, that there could be no reasonable doubt of the salary belonging to the defendant, and to hold that it might be lawfully paid to Miller is, in my opinion to disregard principles which have been settled too long, to be now disturbed.

It was insisted, however, on the argument, that certain New York cases were in conflict with this conclusion. The first of these is Conner v. Mayor, etc., of New York, 5 N. Y., 285. That case decides that the prospective salary or other emoluments of a public office are not property in any sense, and may be increased, reduced or regulated by law at all times, except where the Constitution has forbidden it. The position is unquestionable, and the reasoning of the Court is satisfactory. It is obvious, however, that from the nature of the question presented, the decision can have no special application to the present case. The other case is that of Smith v. Mayor, etc., of New York, 37 N. Y., 518, and that, we must admit, has some apparent analogy to the present. There a deputy street commissioner brought action against the city for fees allowed by law for the collection of assessments, which he had been prevented by usurpation from collecting. The fees were a certain per centage on the amount collected, and, it is inferable, though not distinctly stated, that the ofíicer de facto retained this per centage when he paid the moneys over. It is obvious that an action against the corporation for the recovery of fees for specific services performed by some other person than the plaintiff, may stand on a different footing from an action for a definite salary, which is payable as a whole whether the services are greater or less.

The general language employed in these cases, that the right to fees grows out of the rendition of the services, is on all logical rules to be understood with reference to the particular facts then before the court, and cannot be applied universally, as claimed by the defense, without coming in conflict with the decision of this Court in Stadler v. Detroit, 13 Mich., 347. We there held that a municipal corporation which, had excluded a salaried officer from the performance of his duties was bound to pay him the salary. We are still, I believe, satisfied with this decision. That the right to fees does not necessarily depend upon the performance of the official duties, is also declared in Glascock v. Lyons 20 Ind. 3, hereafter mere particularly referred to.

The only case directly in point is that of People v. Smyth, 28 Gal. 21, and there it was held that the lawfully elected officer, who had been excluded by one coming in by color of title, might, after recovery of the office, maintain an action against the county for his salary, during the usurpation, notwithstanding it had been previously paid to the usurper. This decision appears to me to be sustainable on the soundest reasons of public policy. A wrong is done to society and to public order in every instance in which the usurpation of a public office takes place; and the rules of law ought to be such as to give the greatest possible discouragement to such a proceeding. The county authorities, in a case like this, ought not to be told that they may countenance the intrusion with impunity, and deliver over to a usurper the emoluments of an office to which he has neither a legal, nor a moral claim. Such a rule encourages usurpations, and tends to lower the standard of public morality. Public policy requires that municipal officers should be allowed to sanction or recognize the intrusion only so far as may be necessary to give the public the full benefit of protection, which the rule regarding the acts of officers de facto was designed to afford.

It is said, however, that the defendant has a complete remedy by recovery of damages against Miller. If I am correct in what I have already said, this is no answer to the present action. If one has a remedy against two persons for the same wrong, his action against one cannot be defeated by showing that he might have sued the other. But is the action against Miller a complete and adequate remedy ? This will depend, first, on his pecuniary responsibility, and second, on what the rule of damages may be. Upon the first point we have no information, nor is it very material what it might be in the present case, as a general rule is what we seek, and intrusions are quite as likely to be made by irresponsible persons as by any others. It is quite evident that many cases may occur in which the remedy against the intruder will prove utterly inadequate for this reason. And the true rule of damages in a proceeding against Miller is not entirely clear. If the rule is indefinite, so that the jury may be at liberty to allow the intruder full compensation for the services which he ought not to have performed, it is obvious that the remedy is not adequate. If, on the other hand, the damages recoverable are the amount of salary received, then it appears equally obvious that this suit is maintainable. For what a farce would that be, to hold that when the county authorities are in possession of a sum of money which rightfully belongs to the defendant, they may excuse themselves from paying it over, by giving him a cause of action to the same amount against another person, who may or may not be able to respond, and who in any event is to be made to pay only after the expense of a suit at law.

That, as against Miller, the rule of damages would be the sum actually received by him, and that this might be recovered in a common law action for 'money had and received, is the result of the case of Glascock v. Lyons, 20 Ind., 3. It appeared in that case that Glascock had been elected Sheriff, but Lyons, by fraud, had secured the certificate of election and had performed the official duties and received the fees. To recover the amount of these fees Glascock brought action, and it was held that he was entitled to them. Perkins, J., says: “ It is perhaps the correct theory, in reference to an office elective by the people, that the fact that an eligible person is duly chosen to fill the same, confers upon him the right, the title to such office, and the certificate of election or commission is in some respects something like a deed to land, the mere evidence of such title. This title gives the right to exercise the accustomed or fixed duties of the office, and receive the fees and emoluments therefor. In this right, it has often been contended, there may exist a franchise to which the rights of property may attach for certain purposes.”

“If the proposition is correct that he who is rightfully entitled to an office has a property in it, though not, perhaps, strictly in the commercial sense of that term, then we are not able to perceive how a mere intruder, who may perform the duties for a time, can in good conscience retain the fees, etc., for such service. If he could, under such circumstances, be permitted to retain such fees, it would be on the ground that they were a remuneration for his labor, etc., but that would not justify the retention of any such sum over such mere remuneration; if justified to that amount, how could the case be distinguished from one where A. B. may, without contract or request, express or implied, perform ordinary labor for C. D. ? In the latter it is well settled there is no right of action accrues to the laborer. How could there in the former ? If not, upon what principle can the labor be set up as a defense to an action for money received to which the plaintiff was entitled?”

This case, it will be seen, is entirely inconsistent with the deduction the plaintiffs draw from the cases in 5th and 87th New York, but it is in harmony with all those in which it has been held that salary and fees are incident to the title, and not to the usurpation and colorable possession of an office. — People v. Tieman, 30 Barb. 195 and cases before cited.

I think the weight, both of reason and authority, is with the defendant, and that the judgment should be reversed.

Christiancy, J.

I concur, in the result in this case, with my brother Campbell. But bad it affirmatively and satisfactorily appeared that the Auditors had actually and voluntarily paid over the salary to Miller after the judgment against him in the quo warranto proceedings, instead of merely allowing his account for so much retained by him on account of his salary, I should have concurred with my brother Cooley in his view of the case.