author: Carpenter, J. Hooker, J.

text:
    DAVIDSON v. HINE.
    Constitutional Law — Local Self-Government — Municipal Corporations — Offioers—Appointment by Governor.
    Act No. 750, Local Acts 1907, attempting to establish q bureau of public safety for the city of Bay City, the members of which are to be appointed by the governor, and giving to such bureau the entire control and management of the police and fire departments of said city, is, as to the fire department, an unconstitutional interference with the city’s right of local self-government, and that feature being an essential part of the act, the entire act is unconstitutional. Hooker, J., dissenting.
    Certiorari to Bay; Collins, J.
    Submitted October 22, 1907.
    (Calendar No. 22, 496.)
    Decided March 5, 1908.
    Mandamus by James E. Davidson, Charles L. Fox, Frank E. Tyler, Charles W. Handy, and Eugene A. Dickinson, constituting the bureau of public safety of Bay City, to compel Gustaves Hine, mayor, Charles J. Barnett, comptroller, Lovell U. Grant, recorder; E. E. Corliss, treasurer, and the common council of the city of Bay City to surrender the public records, etc., of the police and fire departments of said city. There was an order granting the writ, and respondents bring certiorari.
    Reversed.

      U. R. Lor anger (Fred W. Defoe and James E. Duffy, of counsel), for relators.

      S. O. Houghton, for respondents.
   Carpenter, J.

Relators claim to be a bureau of public safety for the city of Bay City. Their title to their office is derived from an appointment made by the governor of the State acting pursuant to Act No. 750 of the Local Acts of 1907. They brought this mandamus proceeding in the circuit court for the county of Bay to compel said respondents to surrender to them the custody of the public records, papers and offices pertaining to the police and fire departments of said city. The case was heard in the lower court on petition and answer, and a mandamus ordered in accordance with the prayer of relators. The proceedings are brought to this court for review by writ of certiorari.

The only question in the case arises from the contention of respondents that the act under which relators are appointed is unconstitutional. That act provides for the appointment by the governor of a bureau of public safety consisting of five members whose term of office shall be respectively one, two, three, four and five years. It confides to the bureau so appointed “full power and control and the management of the police department, and the fire department, the organization and government and discipline of such department and the custody and control of all public property, books, records and equipments thereto belonging to such department.” If this act had been confined to the police department it would have been constitutional under the decision of People v. Mahaney, 13 Mich. 481. But it is not so confined. It gives to the bureau appointed by the governor full power and control over the fire department of said city, and it is clear that this feature is an essential part of the act, and, if unconstitutional, the entire act must fall.

Has the legislature the constitutional right to vest the management of the fire department of a municipality in a board appointed by the governor? This court has consistently held, commencing at a very early day (see People v. Hurlbut, 24 Mich. 44) that municipalities have a constitutional right of self-government, and that it is an invasion of that right for the State to make appointment of officers to perform functions of a local governmental character. It was determined in People v. Hurlbut, supra, that officers having charge of the streets of a municipality, officers having charge of the water supply of a municipality, and officers having charge of the sewers of a municipality, each perform functions of a local governmental character; that the Constitution gives to the municipality, and denies to the State, authority to appoint such officers. I quote from the opinion of Justice Cooley in that case:

“ In the case before us, the officers in question involve the custody, care, management and control of the pavements, sewers, water works and public buildings of the city, and the duties are purely local. The State at large may have an indirect interest in an intelligent, honest, upright and prompt discharge of them; but this is on commercial and neighborhood grounds rather than political, and is not much greater or more direct than if the State line excluded the city. * * * These [municipal] corporations are of a two-fold character; the one public as regards the State at large, in so far as they are its agents in government; the other private, in so far as they are to provide the local necessities and conveniences for their own citizens. * * * The question recurs whether our State Constitution can be so construed as to confer upon the legislature the power to appoint for the municipalities, the' officers who are to manage the property, interests, and rights in which their own people alone are concerned. If it can be, it involves these consequences: As there is no provision requiring the legislative interference to be upon any general system, it can and may be partial and purely arbitrary. As there is nothing requiring the persons appointed to be citizens of the locality, they can and may be sent in from abroad, and it is not a remote possibility that self-government of towns may make way for a government by such influences as can force themselves upon the legislative notice at Lansing. As the municipal corporation will have no control, except such as the State may voluntarily give it, as regards the taxes to be levied, the buildings to be constructed, the pavements to be laid, and the conveniences to be supplied, it is inevitable that parties, from mere personal considerations, shall seek the offices, and endeavor to secure from the appointing body, whose members in general are not to feel the burden, a compensation such as would not be awarded by the people, who must bear it, though the chief tie binding them to the interests of the people governed might be the salaries paid on the one side and drawn on the other. As the legislature could not be compelled to regard the local political sentiment in their choice, and would, in fact, be most likely to interfere when that sentiment was adverse to their own, the government of cities might be taken to itself by the party for the time being in power, and municipal governments might easily and naturally become the spoils of party. * * * All these things are not only possible, but entirely within the range of probability. * * * It may be said that these would be mere abuses of power, such as may creep in under any system of constitutional freedom; but what is constitutional freedom ? Has the administration of equal laws by magistrates freely chosen no necessary place in it ? Constitutional freedom certainly does not consist in exemption from governmental interference in the citizen’s private affairs; in his being unmolested in his family, suffered to buy, sell and enjoy property, and generally to seek happiness in his own way. All this might be permitted by the most arbitrary ruler, even though he allowed his subjects no degree of political liberty. The government of an oligarchy may be as just, as regardful of private rights, and as little burdensome as any other; but if it were sought to establish such a government over our cities by law, it would hardly do to call upon a protesting people to show where in the Constitution the power to establish it was prohibited; it would be necessary, on the other hand, to point out to them where and by what unguarded words the power had been conferred. * * * The State may mould local institutions according to its views of policy or expediency; but local government is matter of absolute right; and the State cannot take it away. It would be the boldest mockery to speak of a city as possessing municipal liberty where the State not only shaped its government, but at discretion sent in its own agents to administer it; or to call that system one of constitutional freedom under which it should be equally admissible to allow the people full control in their local affairs, or no control at all. * * * I think * * * there is an express recognition of the right of local authority by the Constitution. That instrument provides (art. 15, § 14) that ‘judicial officers of cities and villages shall be elected; and all other officers shall be elected or appointed, at such time and in such manner as the legislature may direct.’ It is conceded that all elections must, under this section, be by the electors of the municipality. But it is to be observed that there is no express declaration to that effect to be found in the Constitution; and it may well be asked what there is to localize the elections any more than the appointments. The answer must be, that in examining the whole instrument a general intent is found pervading it, which clearly indicates that these elections are tobe by the local voters, and not by the legislature, or by the people of a larger territory than that immediately concerned. I think, also, that when the Constitution is examined in the light of previous and contemporaneous history, the like general intent requires, in language equally clear and imperative, that the choice of the other corporate officers shall be made in some form, either directly or indirectly, by the corporators themselves. * * * When, therefore, we seek to gather the meaning of the Constitution from ‘ the four corners of the instrument,’ it is impossible to conclude that the appointments here prescribed, in immediate connection with elections by the local voters, and by a convention intent on localizing and popularizing authority, were meant to be made at the discretion of the central authority.”

This court has never cast doubt upon these principles, but has often recognized and applied them. It applied them in People, ex rel. Board of Park Com’rs, v. Detroit Common Council, 28 Mich. 228, and there denied the authority of the legislature to compel the city of Detroit to establish a park. It again applied them in Blades v. Board of Water Com'rs of Detroit, 122 Mich. 366, in a case where the legislature undertook to turn over to a board of its own selection authority to determine the taxes to be raised for the maintenance of the water works of Detroit, and the act was held unconstitutional upon the ground that “the furnishing of water to the city and its inhabitants is purely a local matter.” Still later it applied them in Moreland v. Millen, 126 Mich. 381, and again the authority of the State to appoint officers having charge of the streets of a municipality was denied. These authorities are, in my judgment, decisive of the case under consideration.

The right of the State to appoint officers to manage the fire department of a city cannot, in my judgment, be maintained by a single sound argument which would not also authorize it to appoint officers having the management of municipal streets or of municipal water works. It is said that a municipality derives no private corporate benefits from, and as such has no particular interest in, a municipal fire department. This points to no essential distinction between a municipal fire department and the departments managing municipal streets and municipal water works. It is only_ by considering a municipal corporation as an entity, distinct and separate from its inhabitants and their interests, that it can be said that it has no “particular interest in its fire department.” So considered, it may just as truly be said that it has no particular interest in the department managing its streets or water works, and it may also be said that it is no part— at least, no essential part — of the plan of managing municipal streets or of municipal water works that private corporate benefits should be derived therefrom. All these departments are, however, alike in this — and this is the important circumstance — each is an agency of local government maintained for the benefit of the local community. I can conceive of no legitimate process of reasoning by which it can be urged that the State has the right to manage a municipality’s fire department, and has no authority over the control of water by which the fire is to be extinguished. I submit therefore that within the principle of the foregoing decisions of this court, the act in question is unconstitutional.

It is true that oiir decisions have recognized the right of the State.to make provisional appointments of officers who perform duties of a local governmental character, but it is conceded, as I understand the briefs of counsel, at least, it is clear that the appointments under consideration cannot be sustained as provisional appointments. We cannot then sustain the constitutionality of the act under consideration without overruling the foregoing decisions of this court. The suggestion that we should overrule them and thereby deny — or cast doubt upon— the proposition that our Constitution recognizes the right of local self-government cannot for one moment be entertained.

This court has decided in Davock v. Moore, 105 Mich. 120 (38 L. R. A. 783), that the State has a right to appoint a municipal board of health, and it is argued that there is no distinction between the function of such a board and that of a board controlling a municipal fire department. The decision of Davock v. Moore proceeds upon the ground that a municipal board of health is a State agency and not a municipal agency. It clearly recognizes the authority of People v. Hurlbut, supra, and it proceeds upon the ground that those municipal officers, and those only who are acting as agents of the State, can be appointed by the State. To claim that a municipal fire department — whose duty it is to extinguish fires within the limits of a municipality — is as much an agent of the State as is a municipal board of health, is to cast doubt upon the validity of the decision of Davock v. Moore, supra. For, in my judgment, as already shown, a municipal fire department is indistinguishable from a system of municipal water waters which is authoritatively determined to be an agency of municipal government. We cannot, I insist," hold that a municipal fire department is an agency of the State government and that the authorities managing it can be appointed by State authority, without overruling People v. Hurlbut, supra, and other cases decided by this court. But I do not think it necessary to cast any doubt upon the correctness of the decision of Davock v. Moore; for there is a distinction between the function of a municipal board of health and that of a municipal fire department. The municipal board of health has in charge the health of the public. If it neglects its duties an epidemic is likely, indeed almost certain, to arise which will endanger the health not only of those within the municipality, but of other residents of the State who never visit it. This is not true of a municipal fire department. The duty of that department is confined to the suppression of fires arising within municipal limits. Those living outside the municipality are not affected by the performance of this duty, unless they visit the municipality or have property within its limits. The possibility of that occurrence does not make the department a State agency. If it does, all our decisions upon this subject are erroneous.

Relators insist that Brink v. City of Grand Rapids, 144 Mich. 472, is an authority supporting their contention that the State has a right to appoint the officers having charge of a municipal fire department. In that case it was determined that a municipality was not responsible for the negligence of the employés of a fire department. This decision does not rest upon the proposition that a municipal fire department is a State agency. It rests upon this proposition — a proposition conceded by relators’ counsel — that “a municipality is not responsible for negligent injuries to persons or property committed by members of a fire department when engaged in work pertaining exclusively to the extinguishment of fires.” Does it follow that the State has authority to appoint the officers who manage the fire department of a municipality ? Unless it does, there is no ground for saying that Brink v. City of Grand Rapids, supra, supports relators’ contention. It cannot be said that a municipality is responsible for all the negligence of its officers when they are engaged in performing a local governmental duty, and, therefore, it is not true that exemption from such responsibility proves that they are not performing a local governmental duty. This is settled by our own decisions. The authorities heretofore cited in this opinion prove that officers having charge of the streets of a municipality are performing local governmental duties, and that the State has no right to appoint such officers. And it is also settled that in the absence of a statute establishing a contrary rule, a municipality is not liable for the negligence of such officials. See City of Detroit v. Blackeby, 21 Mich. 84; Alberts v. City of Muskegon, 146 Mich. 210 (6 L. R. A. [N. S.] 1094). Brink v. City of Grand Rapids, supra, is not, therefore, opposed to the reasoning of this opinion. In this connection I quote from the opinion of Justice Cooley in People, ex rel. Board of Park Com’rs, v. Detroit Common Council, 28 Mich. 228:

“ Indeed, it is a matter of general observation that the State does not force upon the local community these larger powers [powers to provide for its citizens such matters of necessity or convenience as their health, protection, comfort or enjoyment asa political community may demand], but waits to be solicited to confer them when the people interested shall deem them for their advantage. This is so well understood-that in many of the States it has been decided that a municipal corporation may justly be held, when receiving its charter, to contract in consideration of the powers conferred, that its authority shall perform towards all parties concerned, the several duties imposed upon the corporation, and may be held liable in damages for their failure to perform them. And although we have not followed those decisions in this State, the two-fold character of these corporations, as organizations on the one hand for State purposes, and on the other for the benefit of the individual corporators, has invariably been recognized by this court wherever there has been occasion to refer to it. ”

Justice Cooley thus cleárly recognizes that in Michigan the doctrine that a municipality is responsible for the negligence of its officers when engaged in performing a local governmental duty does not obtain.

It is undoubtedly true that relators’ contention is sustained by decisions of the 'courts of some of our sister States. It is sufficient to say that those decisions are opposed to our own and to our peculiar doctrine of constitutional local self-government.

In my judgment, the statute under consideration is unconstitutional and the order granting a mandamus should be vacated.

Grant, C. J., and Blair, Montgomery, Ostrander, Moore, and McAlvay, JJ., concurred with Carpenter, J. '

Hooker, J.

(dissenting). Act No. 750, Local Acts 1907, was an act entitled—

“An act to create a bureau of public safety for the city of Bay City, to define the powers and duties of the bureau of public safety, and repeal all acts and parts of acts inconsistent herewith.”

The act provided for the immediate appointment by the governor of five persons as members of said bureau, whose respective terms of office should terminate on the first day of May, i. e., one on the first day of May next ensuing, and one on each successive first day of May for the succeeding four years.

Section 2 confided to said persons full power and control over the police and fire departments of said city, the organization, government and discipline thereof, and the custody and control of all public property, books, records and equipment pertaining thereto.

Section 6 provided that all acts and parts of acts inconsistent with said act were repealed. It is unnecessary to refer to the other provisions. The act was approved June 28, 1907, and was given immediate effect.

On or about July 2, 1907, the governor appointed and commissioned the relators members of such bureau, and on July 8, 1907, they met at the city hall and assumed to organize as such bureau, and thereafter demanded from the respondents, viz., the mayor, comptroller, recorder, treasurer and common council of said city, the custody, control and management of said property, etc., of said police and fire departments, which demand was refused, whereupon they applied to the circuit court of Bay county for a writ of mandamus to compel such action by respondents. An order to show cause was issued and respondents filed their answer and after a hearing the writ was granted and respondents have brought the cause to this court hy writ of certiorari. Several errors were assigned, which will sufficiently appear in the questions discussed. All relate to the constitutionality of Act No. 750, Local Acts 1907.

Counsel contend that the provision authorizing the appointment of members by the governor is unconstitutional for the, reason that it deprives Bay City of the right of self-government. While the right contended for by respondents has been sustained in several cases, its application has been denied in others, and in all the crucial question has been held to be whether the functions of the officers provided for were those of a governmental agency. If they were, the right of local selection was held not to apply, and this crucial test has been recognized in all cases since that of People v. Hurlbut, 24 Mich. 44, the leading case upon the subject, where it is elaborately discussed.

To determine tliis case, it is therefore only necessary to ascertain whether the functions of the members of this board are governmental or merely relate to the private interests of the city. So far as the police department is concerned, the claim is not tenable, the question being ruled by People v. Mahaney, 13 Mich. 481. The law attacked in that case was one having the single object of providing a police department for the city of Detroit. It abolished certain offices and provided for the appointment of certain officers by the governor. The case has often been referred to since, and it turned upon the proposition that in its police affairs the municipality was a governmental agency for preserving the public peace, and therefore within State control. See, also, 2 Dillon on Municipal Corporations (4th Ed.), §§ 974, 975.

This was followed by People v. Reilly, 53 Mich. 260, where the appointment by the governor of jury commissioners in the county of Wayne, who selected jurors for the municipal courts, was held valid.

The same was held as to the board of health of Detroit. Davock v. Moore, 105 Mich. 120 (28 L. R. A. 783), and as to tax commissioners in Board of State Tax Com’rs v. Board of Assessors of Grand Rapids, 124 Mich. 491. See, also, People v. State Board of Tax Com’rs, 174 N. Y. 417 (63 L. R. A. 884).

In the case of Brink v. City of Grand Rapids, 144 Mich. 472, an action for negligence in flushing a hydrant by members of the fire department, we held that the defendant was not liable, for the reason that the fire department was a governmental agency. This holding was in conformity to the general rule upon the subject.

In 2 Dillon on Municipal Corporations (4th Ed.), § 976, the rule is stated as follows:

“Sec. 976. (774). City not liable for Wrongful Acts of Firemen. — So, although a municipal corporation has charter power to extinguish fires, to establish a fire department, to appoint and remove its officers, and to make regulations in respect to their government and the management of fires, it is not liable for the negligence of firemen appointed and paid by it, who, when engaged in their line of duty upon an alarm of fire, ran over the plaintiff in drawing a hose-reel belonging to the city, on their way to the fire; nor for injuries to the plaintiff caused by the bursting of the hose of one of the engines of the corporation, through the negligence of a member of the fire department; nor for like negligence, whereby sparks from the fire engine of the corporation caused the plaintiff’s property to be burned. The exemption from liability in these and the like cases is upon the ground that the service is performed by the corporation in obedience to an act of the legislature; is one in which the corporation, as such, has no particular interest, and from which it derives no special benefit in its corporate capacity; that the members of the fire department, although appointed, employed, and paid by the city corporation, are not the agents and servants of the city, for whose conduct it is liable; but they act rather as officers of the city, charged with a public service, for whose negligence in the discharge of official duty no action lies against the city, without being expressly given; the maxim of respondeat superior has, therefore, no application. Nor is such a corporation liable to the owner of property destroyed or damaged by fire in consequence of its neglect to provide suitable engines or fire apparatus, or to provide and keep in repair public cisterns, or for failing to provide an adequate supply of water to extinguish fires when it has undertaken to provide a water supply. A liability on the part of the corporation was sought to be sustained upon the ground of the neglect of a corporate duty, but the court considered that powers of this nature conferred upon municipal corporations were legislative and governmental, and excluded the notion of implied responsibility to individuals, based on neglect or nonfeasance, and distinguished such cases from those in which the duty is purely ministerial.”

See, also, the recent case of Terrell v. Water Co. (Ky.), 105 S. W. 100; 36 Century Digest, pp. 2173, 2174 and 2189.

This question is to be considered in the light of the opinion of Mr. Justice Cooley, in People, ex rel. Board of Park Com’rs, v. Detroit Common Council, 28 Mich. 228, review of which will be found in 1 Dillon on Municipal Corporations (4th Ed.), § 72, note 1. We quote as follows:

“ The ground upon which the judgment in. the Detroit Park Case, just mentioned, rests, as appears by the opinion of the court delivered by Cooley, J., is that a municipal corporation like that of Detroit will he found to be in part a mere public agency of the State, and in part possessed of peculiar and local franchises and rights which appertain to it as legal personality for its private ( as distinguished from-the public) advantage. It is admitted that ‘ in all matters of general concern there is no local right to act independently of the State, * * * and the State may exercise compulsory authority, and enforce the performance of local duties, either by employing local officers for the purpose, or through agents or officers of its own appointment. * * * The proposition which asserts the amplitude of legislative control over municipal corporations, when confined, as it should be, to such corporations as agencies of the State in its government, is entirely sound.’”

That case turns upon the ability of the court to say that city parks appertain to it in a private (as distinguished from the public) advantage.

Not so the fire department. In our previous quotation from Dillon, we find that the service is performed by the corporation in obedience to an act of the legislature, a duty which it has a right to impose, one in which the corporation as such has no particular interest, from which it derives no (private) corporate benefit that the officers of that department, however selected, though they be called officers of the city, are charged with a public service, and are a State agency as contradistinguished from a local municipal agency pure and , simple. We adopted this view in Brink v. City of Grand Rapids, supra, and we cite that case, not because it held that city not liable for the neglect of the fire officers merely, but for the reason given for its immunity. On principle, the protection of the general public from the loss of life and property through fires in congested centers must be of concern to the entire public of the State, quite as clearly so as the functions of boards of health. It must be within the power of the legislature to provide for the prevention of fires, explosions, etc., in every city, village, and township in the State, through agents of its own, appointed by the governor, or elected by the locality to which their duties are confined, and it would be difficult to distinguish between the duties of such and those of members of boards of health. It is said that the same might be said of sewers, water works, and public work boards, all of which have been held matters of private rather than of public interest. There may be differences of opinion, about this, but whatever we might think of that question, it seems plain that the establishment of fire protection, through departments equipped for the prevention and extinguishment is not distinguishable from the prevention of the same evil through State fire wardens ( officers common in other States and countries), the protection of public health through State and local boards of health and drain commissioners or public safety through a board of police commissioners. See Redell v. Moores, 63 Neb. 219 (55 L. R. A. 740), overruling State, ex rel. Attorney General, v. Moores, 55 Neb. 480; Mayor, etc., of Americus v. Perry, 114 Ga. 871 (57 L. R. A. 230); City of Newport v. Horton, 22 R. I. 196 (50 L. R. A. 330); Fox v. McDonald, 101 Ala. 51 (21 L. R. A. 529); State v. Freeman, 61 Kan. 90.

We think this statute within the principle of our own case, and that it is sustained by the weight of authority elsewhere. The order should be affirmed, with costs against respondents.


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    KIBBIE TELEPHONE CO. v. LANDPHERE.
    Telegraphs and Telephones — Highways and Streets — Right to Use.
    Under section 6691, 2 Comp. Laws, giving to telephone companies organized under the act of which such section is a part the right to use the highways and streets of this State, provided the same shall not injuriously interfere with other public uses of such highways, a person desiring to move a building along a public street upon which telephone lines are maintained with the consent of the municipal authorities cannot do so in disregard of the rights of the telephone company, such use of the street not being an ordinary, but an extraordinary one, not to be exercised except upon permission under suoh restrictions safeguarding the rights of the public as necessity may require.
    Appeal from Van Burén; Des Voignes, J.
    Submitted November 11, 1907.
    (Docket No. 118.)
    Decided March 5, 1908.
    Bill by the Kibbie Telephone Company to enjoin Frank Landphere and H. B. Hoagland from cutting, removing or destroying certain telephone wires. From an order sustaining a demurrer to the bill, complainant appeals.
    Reversed.

      Thomas J. Cavanaugh, for complainant.

      Chase & Stevens, for defendants.
   McAlvay, J.

This is an appeal from an order sustaining a demurrer and dismissing complainant’s bill, which was filed in the Van Burén circuit court to restrain and enjoin defendants from injuring the property of complainant by cutting, removing, or destroying certain telephone wires. Complainant is a telephone company organized and doing business as a Michigan corporation under chapter 177, 2 Comp. Laws, and has large property interests in the village of Paw Paw and through Van Burén county, consisting of poles, wires, exchanges, and the usual fixtures necessary for carrying on the business of transmitting telephone messages for hire from place to place in Michigan and other States, for its customers and the public generally. It has more than 2,000 subscribers in Van Burén county where its principal business office is located. Its poles and wires have been placed upon and along the streets of Paw Paw, which is an incorporated village, with the permission, direction, and acquiescence of the village authorities, and at places and in the manner indicated by them. No ordinance granting complainant a franchise to occupy and use the public streets has been asked of or required by said village. Defendant Landphere is engaged in the business of moving buildings, and defendant Hoagland is the owner of a large bam which he has engaged Landphere to move for a long distance through the streets of Paw Paw. To take this building along the route proposed will require the cutting, destroying, or removing of 28 of the wires of complainant conhected with its customers’ telephones, and required to be and continue in perfect order and condition to transmit messages at all times. Complainant proposed to defendants to make the cuttings necessary to allow the free passage of this building with the expert linemen in its employ, provided defendants would secure in some way the payment of the actual expense for such work, estimated at $15. Defendants refused to do this, and on June 16, 1907, notified the complainant that on June 18th following they would move the building and tear down, cut, remove, or destroy such wires as were necessary for a free passage of the building, regardless of complainant’s property rights or interests. It is averred that defendants are financially irresponsible; that Landphere has never filed a bond or guaranty that would protect complainant against loss and damage, and that Hoagland has no removal permit; that the action of defendants, if permitted, will cost the complainant a large sum for repairs, and will work great damage to its property by the destruction of its wires and electrical currents, and great and irreparable loss to its business. The bill was filed and a preliminary injunction was issued June 18, 1907.

There is no dispute in the case but that whatever rights complainant has to use and occupy the streets of the village of Paw Paw, aside from the acquiescence and direction and license of the village authorities, are the rights created by virtue of the statute (section 6691, 2 Comp. Laws ) under which it is organized, which provides:

“Every such corporation shall have power to construct and maintain lines of wire or other material, for use in transmission of telephone messages along, over, across, or under any public places, streets, and highways, and across or under any of the waters in this State, with all necessary erections and fixtures therefor: Provided, That the same shall not injuriously interfere with other public uses of the said places,” etc.

The court in sustaining the demurrer held that the use of the streets for moving a building was a public use, and therefore, in the contemplation of the statute, included within the words “other public uses,” with which complainant was charged not to injuriously interfere. The court also held that complainant acquired its rights subject to such use of the streets, and upon reasonable notice it was its duty to temporarily raise, lower, or remove its wires to permit free passage of this building without expense to defendant.

The statute recognizes that the use of the streets, highways, and places complainant is authorized to exercise is a public use. There is no suggestion in the record that the use of these streets by complainant has been such as to interfere with all ordinary public uses, or that it has not in all respects placed its wires and poles in such places and manner as have been indicated by the proper authorities of the village.

We must say then that complainant has acquired vested rights under the statute and the direction and license of the village authorities to use its property so located in the streets and highways of Paw Paw for the purposes of its business, and for the purpose of carrying out its cóntracts with its customers, and unless the claimed right of defendants to use the street as they propose, and to interfere with and destroy complainant’s property and injure its business, can be justified under the proviso and reservation of the statute, such interference cannot be sustained and would be an appropriation of property without due process of law.

Such vested rights of complainant cannot-be impaired or destroyed without express reservation. The status of complainant as to its occupancy has been mentioned briefly, but before proceeding further with the case it is necessary to give it more careful consideration. While the village authorities had not passed an ordinance, they had ácquiesced in complainant’s occupancy, and had gone further, by designating and directing the place and manner of the construction of the lines in the streets. Under this condition and permission, complainant had made the necessary investment and entered into its contracts with its customers. We do not agree with defendants that these conditions were different, as far. as complainant’s rights of property are concerned, than if an ordinance had been enacted granting charter rights.

Under the ordinances, the authorities hold that where the companies had constructed their lines, etc., rights vested which could not be divested without due process of law. The express reservation of the statute is: “Provided, That the same shall not injuriously interfere with other public uses of said places, etc.” The same authorities hold that the use of a street for moving houses is not a usual but is an extraordinary and unusual one. Northwestern Telephone Exchange Co. v. Anderson, 12 N. Dak. 585 (65 L. R. A. 771); Williams v. Railway Co., 130 Ind. 71 (15 L. R. A. 64); Dickson v. Motor Co., 53 Ill. App. 379; Millville Traction Co. v. Goodwin, 53 N. J. Eq. 448.

We come to the question whether the use of streets for the purposes of moving buildings is within the uses reserved in the statute. The authorities already cited answer this proposition in the negative. In Northwestern Telephone Exchange Co. v. Anderson, supra, the court, after holding that such use was not an ordinary one, said:

“ It does not pertain to the primary right to the use of the street for travel or other public purposes. The public derives no benefit therefrom generally. Such extraordinary use of a street may, however, be permitted as a favor, under restrictions safeguarding the rights of the public to the street in certain cases, as necessity may require.”

Williams v. Railway Co., supra, was an injunction case where a street railway complained that the moving of a building would destroy its property. The court said:

“Where a right to use a street is acquired pursuant to statute, and under a license from the municipality, it is in the nature of a contract right. * * * It would violate the plainest principles of law to permit an individual citizen to confiscate or destroy the property of a corporation which has assumed to exercise rights under the laws of the State, and to which the officers of a governmental subdivision have given recognition by granting to it the right to use the streets of a city. This would be true even in a case where no extraordinary claim was asserted by the individual, and certainly is true where an individual claims the right to make an extraordinary use of the public streets.”

In Taylor v. Railway, 91 Me. 193, the court defined what uses of highways were public uses, saying:

“What servitude then does the public acquire by the taking of land for a public highway ? It is the right of transit for travelers on foot and in vehicles of all descriptions. It is the right of transmitting intelligence by letter, message or other contrivance suited for communication, as by telegraph or telephone. * * * It is a public use for the convenience of the public to be moulded and. applied as a public necessity or convenience may demand as the methods of life and communication may from time to time require.”

No authorities have been found which hold that the use defendants sought to put this street to was a usual and ordinary public use, but the consensus of the authorities is to the contrary. Complainant’s use of these streets was an authorized public use. The use defendants proposed to exercise was an unusual and extraordinary use and was not “such other public use” contemplated by the statute. Complainant’s rights were paramount to defendants’ and it was entitled to the relief it sought.

We therefore hold that complainant in and by its bill of complaint stated a case within the jurisdiction of a court of equity and that the demurrer should have been overruled. The decree of the circuit court is reversed, with costs of both courts, and the cause will be remanded to the circuit court with permission to defendants to answer the bill of complaint within 15 days after notice of the filing of the decree and order of this court.

Grant, C. J., and Blair, Moore, and Carpenter, JJ., concurred.


author: Montgomery, J.

text:
    ROBISON v. WAYNE CIRCUIT JUDGES.
    1. Infants — Protection—Juvenile Courts —Establishment— Statute — Validity—Apportionment of Expense.
    The Wayne county juvenile court act of 1907 (Local Act No. 684) is not invalid because the expense of maintaining the court therein provided for is imposed in part upon the county of Wayne and in part upon the city of Detroit, while the jurisdiction of the court is limited to children of the city, because the care and protection of children is the subject of police regulation and cannot be said to be the private concern of one municipality rather than that of another.
    2. Statutes — Plurality of Subjects — Juvenile Court Act. •
    The juvenile court act for Wayne county, Act No. 684, Local Acts 1907, does not involve a plurality of objects because it provides for the treatment and trial of minor children and the punishment of offenses against children generally if within certain ages, as the general purpose of the act, i. e., to conserve the interest of dependent, neglected and delinquent children, is single.
    8. Constitutional Law — Jury—Criminal Prosecutions — Rights of Accused — Juvenile Court.-
    - The Wayne county juvenile court act of 1907 (Local Act No. 684), in so far as it attempts to provide for the trial of offenses against children punishable as crimes by a jury of six, is unconstitutional.
    4. Statutes — Partial Invalidity — Juvenile Court Law.
    The invalidity of that provision of the Wayne county juvenile court act of 1907 (Local Act No. 684). which attempts to provide for the trial of offenses against children by a jury of six does not render the entire act invalid, since the beneficent purposes of the statute may all be carried into effect if the invalid provision be wholly eliminated.
    5. Constitutional Law — Class Legislation — Juvenile Court Law —Discrimination in Favor of Inmates of Institutions.
    The Wayne county juvenile court act of 1907 (Local Act No, 684) is not unconstitutional as class legislation because children who are inmates of certain charitable and semi-charitable institutions, as to which the State exercises visitorial powers, are excepted from its operation.

      6. Same — Trial by Jury — Right op Accused.
    In so far as the statute authorizes the determination of the status of the child, and authorizes his commitment to the custody of a probation officer or keeper of an industrial school for the purpose of education and reformation, it is not invalid for providing that such action be taken upon the verdict of a jury of six, for such proceedings are in no sense criminal; but the further provision for placing the delinquent child on trial and imposing a fine not to exceed $25, with costs, etc., renders the proceeding criminal and renders the entire statute obnoxious to section 28 of article 6 of the Constitution providing for a jury of 12 in all courts of record.
    Mandamus by James A. Robison, prosecuting attorney, to compel Joseph W. Donovan, Alfred J. Murphy, Morse Rohnert, George S. Hosmer, Henry A. Mandell, and Flavius L. Brooke, circuit judges of Wayne county, to designate one of their number to act as judge of the juvenile court of Detroit.
    Submitted November 19, 1907.
    (Calendar No. 22, 544.)
    Writ denied March 5, 1908.

      Jasper C. Gates, for relator.

      H. JE. Spalding, for respondent.
   Montgomery, J.

This is an application for mandamus to require respondents to designate one of their number to act as judge of the juvenile court of Detroit, the respondents having refused such action for the reason ‘that the juvenile court act of Detroit, so-called, being Act No. 684, Local Acts 1907, is unconstitutional, and the question for our determination is whether the act in question is constitutional.

The act is entitled:

“An act to regulate the treatment and control of dependent, neglected and delinquent children under the age of seventeen years within the city of Detroit; to establish the juvenile court of Detroit; to regulate the practice in such court; to provide for the appointment of probation officers; to prohibit the commitment'to any jail, police station or house of correction of any child under the age of fourteen years, except in certain cases; to impose certain duties on county agents, and vest in said courts jurisdiction of offenses under>statutes of this State relative to cruelty to children, truant and disorderly children and compulsory education and truancy.”

The act, by section 1, is made to apply to children under the age of 17 years who shall be in the custody or control of any person who resides in the city of Detroit, and to any and all dependent, neglected, and delinquent children who shall be found within the city of Detroit, except such as shall be inmates of any State institution or industrial school for boys or girls, or some institution incorporated under the laws of this State.

The act then defines a “ dependent” and “neglected” child at length, and includes in that category any child under the age of 17 years who is destitute, homeless, or abandoned; or dependent on the public for support; or who has not the proper parental care or guardianship; or who habitually begs or receives alms; or who is found living in any house of ill-fame or with any vicious or disreputable person; or whose home by reason of neglect, cruelty or depravity on the part of its parents, guardian, or any other person in whose care it may be, is an unfit place for such child; and any such child under the age of ten years who is found begging, peddling, or selling any article or singing or playing any musical instrument for gain upon the streets or giving any public entertainment, or who accompanies or is used in aid of any person so doing.

The words “ delinquent child ” are defined as any child under the age of 17 years who violates any law of this State or any city ordinance; or who is incorrigible; or who knowingly associates with thieves, vicious or immoral persons; or who, without just cause and without the consent of its parents or custodian, absents itself from its home or place of abode; or who is guilty of a large number of defined delinquencies.

The act then provides for a juvenile court, for the election of a judge thereof at the election in April, 1909, and that the circuit judges of Wayne county shall designate one of their number to act as a judge of the juvenile court until the 1st of June, 1909, when the elective judge is required to enter upon his duties. It provides that the proceedings taken under the act shall not be deemed criminal proceedings. It provides for the jury commissioners drawing and returning the names of jurors, and for the summoning of not less than 18 nor more than 36 jurors at each term. It further provides that juries in said juvenile court shall be composed of six persons, who shall be residents of said city of Detroit, and shall severally possess the lawful qualification of jurors in the circuit court. The act also provides for the appointment of probation officers and for a matron.

It then provides that upon the filing in any juvenile court of any sworn complaint setting forth upon knowledge, information, or belief that any child is a delinquent, dependent, or neglected child within the meaning of the classifications contained in section 1 of the act, that the court shall give written notice to the county agent or probation officer, who shall proceed to inquire and examine into the parentage and surroundings of the child, and forthwith report the result of such inquiry to the court, and if upon such report it shall appear that the public interests or the interests of the child will be subserved thereby, a summons may issue requiring such child to appear before the court at the time and place therein named, and, in the court’s discretion, requiring the person or persons having the custody or control of the child, to appear before the court and produce the child, and show cause why such child should not be adjudged a delinquent, dependent, or neglected child, as the case may be. In case of the failure of the child to appear a warrant may issue.

The act also provides that whenever a child is arrested, with or without warrant, he may be taken directly before the court, or if the child is taken before a justice of the peace or police magistrate, it shall be the duty of such justice of the peace or police magistrate to transfer the same to the juvenile court, and the court may hear and dispose of the child in the same manner as if the child had been brought into court upon petition. The act then provides that upon the return of the warrant, or as soon as may be thereafter, the court shall proceed to hear and dispose of the case, and at such hearing the court shall examine the child and any witnesses that appear, and take such testimony relative to the case as may be produced or required, and provides that if the allegations against the child are proved the court may adjudge said child a delinquent, dependent, or neglected child, as the case may be. If it appear to the court that the welfare and interests of the child require it, he may be returned to his parents or guardians, and if the child is complained of as a delinquent and the court shall be of the opinion that his welfare and the interests of the public require that he be tried by criminal proceedings instead of being dealt with as a delinquent child, the court may, after hearing on said complaint, order that it be dismissed.

It is then provided, in section 14, that if the child be adjudged a delinquent child the court may place the case on trial and impose a fine not exceeding the sum of $25, with costs, or in the court’s discretion and if the child be adjudged a dependent or neglected child the court may decree 'such child to be a ward of the court as far as its person is concerned. It also provides that at any time after the court shall have acquired jurisdiction of a child under this act, if in the opinion of the court such child be wilfully wayward and unmanageable, the court may cause him or her to be sent to the Industrial School for Boys at Lansing or to the Industrial Home for Girls at Adrian, or to any private home or institution approved of by the court, to receive such boy or girl subject to such conditions of sex and age as are provided for the reception of children in said school, home, or institution.

The act in terms provides that the disposition of the child under the provisions of the act, or any evidence given in such case, shall not be used in any other court as evidence excepting in subsequent cases against such child under the same act or except at the instance of the child concerned. The act also provides that the court may inquire as to the ability of the parents to support the child, and that criminal proceedings shall not be begun against any child between the ages of 7 and 14 except for an offense punishable by death or imprisonment for life unless proceedings against the child as a delinquent have been instituted and previously heard.

The act also provides, in section 21, that for the purposes of this act said juvenile courtis vested with full and complete jurisdiction under the laws relative to cruelty to children, truant and disorderly children and compulsory education and truancy, as more particularly embodied in the provisions of section 11507, 3 Comp. Laws, Act No. 222 of the Public Acts of 1889, as amended, and Acts Nos. 95 and 200 of the Public Acts of 1895, as amended, and with full and complete power and authority as magistrates and for proper proceedings to carry such laws into full effect.

The points urged against the constitutionality of this act are:

1. Under the act the control of delinquent children is effected through criminal proceedings, the issues involved in which are to be tried by a jury of six.

2. The offenses against children over which the court is given jurisdiction are either crimes or misdemeanors and are therefore not triable by a jury of six.

3. The exception from the operation of the act of certain classes of children is class legislation and a denial of equal protection of the laws.

4. The act involves two distinct objects, the treatment and control of certain classes of minor children and the punishment of offenses against children generally, if within certain ages, without regard to class.

5. While the juvenile court for which the act provides' is limited in its jurisdiction over children to children of the city of Detroit, the expense of the establishment and maintenance of the court is imposed in part upon the city of Detroit and in part upon the county of Wayne.

We will consider these questions in a somewhat different order.

The objection that the law is unconstitutional in imposing certain of the expenses of maintaining this court upon the county of Wayne is not well taken. The care of juvenile delinquents might well be and often is committed to the county rather than the city authorities. Their care and trial is the subject of police regulation, and cannot be said to be of the private concern of one municipality rather than another. We think the cases cited by relator’s brief are a sufficient answer to this contention. People, ex rel. Schmittdiel, v. Wayne County Auditors, 13 Mich. 233; People, ex rel. Covell, v. Kent County Treasurer, 36 Mich. 332; People, ex rel. Knox, v. Wayne County Treasurer, 40 Mich. 62.

The objection that the act involves two distinct objects, viz., the treatment and trial of minor children and the punishment of offenses against children generally, if within certain ages, is not sustained. The general purpose of this act is single. It is to conserve the interest of dependent, neglected, and delinquent children. As a means to the end the legislature sought to confer upon the juvenile court jurisdiction of certain offenses against children generally. Whether this provision be open to constitutional objection does not affect the question of whether it presents a distinct object, so as to make the title double. We think it has not that effect.

But it is claimed that section 21, in its attempt to confer upon the juvenile court jurisdiction of offenses committed against children, is unconstitutional, for the reason that by the very terms of the act in question a jury of the juvenile court is confined to a jury of six, while in section 11507, 3 Comp. Laws, for instan^, a penalty is provided against parents or guardians offending which may be punished by imprisonment in the county jail, State’s prison, or house of correction at Ionia for a maximum period of five years. It is too obvious to require discussion, that unless it can be said that the general provisions of section 21 modify the particular provisions of section 5 which confines the jury to six persons, that, so far as section 21 is concerned, there is an attempt to confer upon a jury of six a jurisdiction to determine the guilt or innocence of a party charged .with crime in violation of section 28 of article 6 of the Constitution.

It is urged by relator’s counsel that the provisions of section 5 for a jury of six persons should be held applicable only to the ordinary proceedings of the court as outlined in sections 1 to 20 of the act, and that, for the purpose of exercising its jurisdiction under the criminal statutes mentioned in section 21, it should be held that the juvenile court is clothed with full and complete power and authority for proper proceedings under these criminal statutes; and that if a jury of 12 persons is essential for this purpose the juvenile court is possessed of full and complete power and authority to impanel such jury and carry such criminal statutes into full effect. It is said that it is in the teeth of the language of the section conferring full and complete authority for proper proceedings to say that the juvenile court has not the power to impanel a constitutional jury to try the case.

We think this contention places too little stress upon the plain words of the statute. Had no number been provided for in the statute the power to impanel a jury of 12 might possibly have implied, although it would be difficult to fit the machinery of the circuit or recorder’s court to the selection of the jury for the juvenile court. But such is not this statute. The statute provides in terms that juries in said juvenile court shall be composed of six persons, and proceeds to define their qualifications. It is that tribunal, with a judge, to whom the attempt is made to commit the powers conferred by the act in question, and as a jury of six is not competent under our Constitution to deal with a criminal charge in a court of record, it follows that this provision of the act is unconstitutional. But we do not think it necessarily follows that the entire act should fall. The beneficent purposes of the statute may all be carried into effect if this section be wholly eliminated, and the jurisdiction to punish offenders in the statute referred to in section 21 be left where the previous law has reposed it. The main purpose of the statute may be carried into effect with this eliminated. Templar v. State Board of Examiners of Barbers, 131 Mich. 254.

The objection is also made that this is class legislation because certain classes of children are excepted from the operation of the act. It is true that certain classes of children are excepted, that is, children who are inmates of other institutions. We do not regard this as class legislation in any objectionable sense. It appears by the return that there are in the city of Detroit a number of private institutions incorporated under the laws of the State, charitable or semi-charitable in character, which receive as inmates and exercise custody and control over children under the age of 17. Section 3 of Act No. 41 of the Public Acts of 1899 confers upon the State board of corrections and charities visitorial power as to every society, association, and organization incorporated or which may hereafter be incorporated under the laws of this State, the whole or a part of the business of which is to receive, maintain or place minor children in homes, on indenture by adoption or otherwise.

The exception of children in such homes which are subject to the visitorial powers of the board of corrections and charities is not in any invidious sense class legislation. The object of the legislation doubtless was, as suggested, to confine the operation of the act so far as possible to children whose residence was in the city. But independent of this the purpose of this statute in the main is beneficent, and is the purpose of guardianship of children who need the care of government. The legislature evidently deemed that children already under such guardianship did not call as loudly for the safeguards which this statute throws around delinquents as did those who were not subject to these influences.

It would hardly be called class legislation to say that orphan children might be cared for under such a statute as this, with no provision made for children who are in the family with their parents. The distinction is. the same in principle. The children in these various homes are already wards of institutions which exist for the purpose of caring for their welfare. The same necessity does not exist for the intervention of government as in the case of children less fortunate.

This brings us to a consideration of the most important question. Are the proceedings provided for by this act criminal proceedings in such sense as to entitle the accused delinquent child to a trial by a constitutional jury of 12 ? Were the only judgment open upon the trial whether to commit the child to the custody of a probation officer or to the Industrial School for Boys or the Industrial School for Girls, as the case might be, there would be little difficulty in saying that this proceeding is not, in a proper sense of the term, a criminal proceeding. In a large number of cases considered by the courts of last resort in various States similar legislation has been under consideration. The beneficent character of legislation making provision for the care of unfortunate, delinquent, or neglected children has been generally recognized. But a single case has fallen under our notice in which the court has looked with jealousy upon legislation of this character, and that is the case of People, ex rel. O’Connell, v. Turner, 55 Ill. 280, a case which, in its essential features, has been discredited by a later decision of the supreme court of Illinois in Petition of Ferrier, 103 Ill. 367, and which is now chiefly notable, as an example of the vigor with which that which is not the law may be stated. But in the following cases, Ex parte Crouse, 4 Whart. (Pa.) 11; Commonwealth v. Fisher, 213 Pa. 48; State v. Brown, 50 Minn. 353 (16 L. R. A. 691); Milwaukee Industrial School v. Milwaukee County Sup’rs, 40 Wis. 328; Mill v. Brown, 88 Pac. (Utah) 609, the distinction is noted between cases of this character in which the investigation is into the status or needs of the child, and a case where his offenses are being considered for the purpose of administering punishment. See, also, Hunt v. Wayne Circuit Judges, 142 Mich. 93.

As was said in State v. Brown:

“A person committed to the care and custody of a person in charge of an institution of the character of the Minnesota State reform school is not punished ’ nor is he ‘ imprisoned ’ in the ordinary meaning of those words.”

So in the Petition of Perrier, it was said:

“ This is not a proceeding according to the course of the common law, in which the right of a trial by jury is guaranteed, but the proceeding is a statutory one, and the statute, too, enacted since the adoption of the constitution. There was not, at the time of such adoption, the enjoyment of a jury trial in such a case.”

Quoting Cooley on Constitutional Limitations (7th Ed.), where, at p. 459, it is said:

“In those cases which formerly were not triable by jury, if the legislature provide for such a trial now, they may doubtless create for the purpose a statutory tribunal, composed of any number of persons, and no question of constitutional power or right could arise.”

Such legislation as that under consideration is but a transfer of the jurisdiction which formerly reposed in the court of chancery, in the exercise of the right of the king as parens patria to the guardianship of children, to the juvenile courts which perform the duty of seeing that the child is properly cared for.

We are satisfied that, so far as the law authorizes the determination of the status of the child, and authorizes the commitment of the child to the custody of a probation officer or to the custody of the keeper of one of the industrial schools for the purpose of education and reformation, the proceeding may be said not to be a criminal proceeding.

A difficulty, however, is encountered in sustaining this statute, which is regrettable in view of its beneficent purpose. The statute, it is true, declares that the proceedings shall not be taken to be criminal proceedings in any sense, and yet by section 14 it is provided that if the child be adjudged a delinquent child the court may place the case on trial and impose a fine not to exceed $25, with costs, etc. This can have no other purpose than punishment for a delinquency, which means nothing less or at least includes one who violates any law of this State or any city ordinance.

It is contended that it does not necessarily follow, from the fact that a fine is imposed, that the proceeding is a criminal prosecution, and reliance is placed upon People v. Jackson, 8 Mich. 110; People, ex rel. Fennell, v. Bay City Common Council, 36 Mich. 186; People, ex rel. Mixer, v. Board of Sup’rs of Manistee Co., 26 Mich. 422; and People v. Smith, 146 Mich. 193. These cases are all cases relating to an infringement of a by-law of a city, and in one sense, as was said in Mixer’s Case, the term “criminal cases” used in the laws refers to none but prosecutions under the State laws, and that no offense is a crime which does not violate the law of the land.

In the present case, however, this statute is a State law providing for a penalty. A complaint, an arrest, and trial are authorized, and, upon a determination, the imposition of a fine. It is difficult to conceive of any element of a criminal prosecution which may be said to be lacking. And as section 28 of article 6 of the Constitution very plainly provides for a jury of 12 men in all courts of record in every criminal prosecution, the provision for a jury of six for the trial of delinquents is in violation of this section.

For this reason the circuit judges were right in refusing to recognize the validity of the law, and the writ will be denied. We have confined our discussion to imperfections pointed out by counsel.

Ostrander, Hooker, Carpenter, and McAlvay, JJ., concurred.


author: Moore, J. McAlvay, J.

text:
    LEACH v. WHITBECK.
    Execution —Body Execution —Imprisonment —Solitary Confinement-Propriety.
    On certiorari to review the denial of a mandamus against a sheriff to compel him to relieve, relator, imprisoned on civil process, from solitary confinement; to permit relator to have daily papers, furnished by his relatives; and to permit relator to receive his wife and other relatives at the jail, evidence examined, and held, by a divided court, that there was evidence to sustain the conclusion of the circuit judge that the sheriff had not abused his discretion, whence the order would not be disturbed.
    Certiorari to Allegan; Padgham, J.
    Submitted November 12, 1907;
    reargued February 17, 1908.
    (Calendar No. 22, 515.)
    Decided March 5, 1908.
    Mandamus by John H. Leach to compel Allen L. Whitbeck, sheriff, to grant relator certain jail privileges. There was an order denying the writ, and relator brings certiorari.
    Affirmed by a divided court.

      Ferie L. Fouch and Milo D. Campbell, for relator.

      Clare E. Hoffman, for respondent.
   Moore, J.

This is a writ of certiorari to review the decision of the Allegan county circuit court in dismissing a petition for mandamus. On July 16, 1907, relator filed a petition against Allen L. Whitbeck, sheriff, the object of which was to obtain a writ of mandamus to compel the sheriff to relieve the relator from solitary confinement, in which he claimed he had been placed; to permit relator to have reasonable exercise; to allow relator to have the daily papers furnished by his relatives; to permit relator to receive his wife and other relatives and friends at said jail; all of which he claimed was denied him.

An answer was filed by the sheriff, an issue was framed, and upon the trial thereof the judge found' the allegations of the petition were not sustained. In his return to the writ of certiorari the circuit judge, among other things, says:

“After hearing the testimony offered by the respective parties and listening to the argument of counsel, it appeared to the court that no sufficient showing had been made to give the court jurisdiction to grant a mandamus; that all of the matters and things set forth in the petition, and which it was sought to compel the sheriff to do, were matters and things which rested in his, discretion. There was no evidence which tended to show that the sheriff had abused this discretion, and the court further found from the testimony in the cause that the allegations contained in said petition were not sustained by the evidence.

“It further appeared to the court that the sheriff had permitted the relatives and friends of the said John TL Leach to visit him at all proper times, and that for some months the friends and relatives of said John H. Leach abused the privilege granted them, came very frequently to the jail, threatened the sheriff, and their conduct was such as to warrant the sheriff in fixing visiting days.

“It further appeared to the court thát petitioner was not kept in solitary confinement; that he was not kept in such close confinement as to in any way impair his general health; that his general health was not impaired by his confinement; that he received all the air that was needed; that the rooms that he occupied were properly ventilated; that the jail was of modern construction; that the prisoner had ample opportunity to take exercise; and so far as the evidence shows, was given all the privileges and usages of a prisoner confined on civil process, and that the restrictions finally imposed by the sheriff were reasonable and that there was no abuse of discretion in , imposing such regulations.

“It further appeared that petitioner, John H. Leach, occupied the civil department of the jail, being the only civil prisoner in said jail, that said department contained two cells and a corridor, and petitioner had the use of the whole thereof.

“That said rooms were clean, properly ventilated, and sanitary. No complaint was every made by petitioner in regard to his treatment by the sheriff except on one occasion, when he complained that one of the closets made a sizzling noise, and he testified that the sheriff said that he would have the same fixed at once. Petitioner made no complaint about the quantity or quality of the food furnished him by the sheriff, except on the hearing, when for the first time he claimed that since some time in May he had not been served with pie, cake and sauce; that he never made any request of the sheriff that was not granted, except that the sheriff refused to permit him to place a private telephone in his department to be used for his pleasure.

“ It further appeared from the testimony that between the second day of July, and the twenty-ninth day of July, the latter date being the date of the joining of issue in this cause, that the said John H. Leach was visited by the following named persons: One Simpkins; Charles Guest; his son-in-law, Mr. Eldred; his wife, Mrs. Leach; Mr. Eouch; Mr. Cross; Drs. Robinson, Van Ness, and Taylor; and by his daughter, Mrs. Cheeseman; and his son-in-law, Mr. Cheeseman; that his wife was never refused permission to see him when she called on visiting days as fixed by the sheriff, and at the hours as fixed by him; that his daughter-in-law, Mrs. Eldred, and his son-in-law, Mr. Cheeseman, were never refused permission to see him. That his daughter, Mrs. Cheeseman, was never refused permission to see him except on one occasion, and at that time she called after visiting hours, and on one occasion when she called after the visiting days had been changed, and then she was afterward permitted to see him.

“ No testimony was introduced on the part of the petitioner to show what the customary rights, usages, rights and privileges of prisoners are when confined on civil process. Neither were any authorities cited tending to show what these rights and privileges were, and the order sought to be obtained by the petitioner had reference to matters purely discretionary with the sheriff; and from the testimony as a whole I was unable to find any legal duty that the sheriff should have performed which he neglected or refused to perform.”

An examination of the 238 pages of typewritten testimony shows an abundance of evidence to sustain the conclusions of the circuit judge. We decline to disturb, them. See First Nat. Bank of Paw Paw v. Walker, 115 Mich. 439; Roberts v. Smith, 115 Mich. 5; Taylor v. Shimmel, 107 Mich. 676.

Judgment is affirmed, with costs.

Grant, O. J., and Ostrander, and Hooker, JJ., concurred with Moore, J.

McAlvay, J.

Relator, who claims he is unlawfully-imprisoned in solitary confinement by the sheriff of Allegan county, who holds him upon a body execution in a civil suit, applied to the circuit court for mandamus to-relieve him from such unlawful treatment. His petition, was denied, and the case is before us upon a writ of certiorari to review the decision of the circuit court.

Petitioner is 58 years old and is imprisoned in a civil suit upon a capias ad satisfaciendum. His imprisonment began April 11, 1907, and until July 2, 1907, he was allowed certain liberties and privileges. His wife and. friends visited him. They furnished him newspapers. His wife provided him an easy chair, a strip of carpet for the narrow alley in his room, and a small rug before his cot. He is not kept with prisioners detained for criminal offenses but in that portion of the jail provided for-civil prisoners. This is a compartment 11 by 14 feet with, a solid iron door and one window. Within this compartment are two cells 7 feet square leaving an alley in front, of them about 4 feet wide and 14 feet long.

After July 2, 1907, relator was locked up within this small space, deprived of the chair, carpet, and rug furnished by his wife, and also of all newspapers, and was not permitted during that time to come out for exercise or any other purpose until brought before the court August 17, 1907, upon the hearing of his petition, with one exception, when he was before the court on the return day of' the order to show cause.

Upon the filing of the answer 13 issues of fact were framed, and upon the hearing a large amount of testimony was taken, the transcript of which covers about 240 typewritten pages. The court refused relief upon the ground that upon the showing made he had no authority whatever by mandamus to direct the sheriff in the matter.

In an opinion filed, the trial judge holds that the whole matter is one of discretion on the part of the sheriff. Upon being asked by relator’s attorney whether he found that the imprisonment amounted to solitary confinement, the court said:

“I find that under this testimony it does not amount to solitary confinement. There is no solitary confinement.”

Reliance is placed upon the fact that this court will not disturb this finding of the court below. One of the exceptions to that rule is that it will do so where the finding is contrary to the undisputed evidence. In this case the evidence as to the nature of the confinement which respondent is inflicting upon relator is undisputed and is as set forth in the facts just related.

The only question for us to consider is whether this imprisonment is solitary confinement and may be imposed lawfully upon relator. The only provisions in the statutes of Michigan relative to the solitary confinement of prisoners confined in county jails are contained in sections 2651 and 2652, 1 Comp. Laws.

“When any convict shall be sentenced to solitary imprisonment and hard labor in any jail, the keeper thereof shall execute such sentence of solitary imprisonment, by confining the convict in one of the cells, if there be any in such jail, and if there be none, then in the most retired and solitary part of such jail.

“No intercourse shall be allowed with any convict in solitary imprisonment, except for the conveyance of food, and other necessary purposes, unless some minister of the gospel shall be disposed to visit him, in the manner hereinafter provided.”

Sections 2674 and 2675, 1 Comp. Laws, provide for the punishment-of refractory prisoners.

“ If any person confined in any jail, upon a conviction or charge of any criminal offense, shall be refractory or disorderly, or shall wilfully or wantonly destroy or injure any article of bedding, or other furniture, or a door or window, or any other part of such prison, the sheriff of the county, after due inquiry, may cause such person to be kept in solitary confinement, not more than ten days for any one offense; and during such solitary confinement, he shall be fed with bread and water only, unless other food shall be necessary for the preservation of his health.

“ If any person committed to jail on original process or on execution, or for any other cause than those mentioned in the preceding section, shall be guilty of either of the offenses therein specified, and be thereof convicted before a justice of the peace of the county, on the complaint of the keeper of such jail, such person shall be punished by solitary imprisonment, as directed in the preceding section, not more than ten days for any one offense; and such offender shall be liable for double the amount of the damages done to the jail, furniture, or other property, to be recovered with costs of suit, in an action of trespass, in the name of the board of supervisors of the county.”

The decisions which discuss the subject of solitary confinement are very few. In the United States Supreme Court Reports we find a description and a statutory history of such punishment given. In Re Medley, 134 U. S. 160, the court says:

“The peculiarities of this system were the complete isolation of the prisoner from all human society, and his confinement in a cell of considerable size, so arranged that he had no direct intercourse with or sight of any human being, and ho employment or instruction.”

The court said that it is this mode of imprisonment to which the term “ solitary confinement ” was usually applied. The statute the court was at the time considering was a modification of the original prinéiple of “solitary confinement” by which it was provided that “no person shall be allowed access to said convict, except his attendants, counsel, physician, a spiritual adviser of his own selection and members of his family, and then only in accordance with prison regulations.”

The court said:

“ Even the statutory amelioration is a very limited one. * * * The solitary confinement, then, which was meant by the statute, remains of the essential character of that mode of prison life as it originally was prescribed and carried out, to mark them as examples of the just punishment of the worst crimes of the human race.”

The court, citing the first English statute imposing solitary confinement, quotes from 25 Geo. II, chap. 37, entitled:

“An act for better preventing the horrid crime of murder.

“Whereas the horrid crime of murder has of late been more frequently perpetrated than formerly; * * * a^d whereas it is thereby become necessary that some further terror and peculiar mark of infamy be added to the punishment of death now by law inflicted on such as shall be guilty of the said heinous offense,” (then follows the provision for solitary confinement).

The court proceeds:

“This statute is very pertinent to the case before us, as showing, first, what was understood by solitary confinement at that day, and, second, that it was considered as an additional punishment of such a severe kind so that it is spoken of in the preamble as ‘a further terror and peculiar mark of infamy’ to be added to the punishment of death. In Great Britain, as in other countries, public sentiment revolted against this severity, and by statute * * * the additional punishment of solitary confinement was repealed.”

The foregoing is given as the conclusion of the Federal court from its investigation as to what was originally the true significance of the term, “solitary confinement,”and the reason for its statutory enactment. By comparing the imprisonment of relator with that described by the Supreme Court of the United States as solitary confinement, we may determine whether his confinement is as claimed, solitary confinement.

It is admitted that he is confined alone in this part of the jail which has one window, and in which are two cells and a narrow space 4 feet by 14 feet for his exercise; that the solid iron door is kept locked and he is deprived of hooks and newspapers. He is “without employment or instruction.” This condition fits exactly the description of the court above quoted as the “mode of imprisonment to which the term solitary confinement was usually applied.”

In the case at bar there were modifications of the extreme severity of this confinement. The Federal court pointed out the modifications of the statute under consideration. They were, “no person shall be allowed access to said convict except his attendants, counsel, physician, a spiritual adviser of his own selection, and members of his family, and these only in accordance with prison regulations.”

Respondent, assuming the right to hold this civil prisoner in this apartment, issued certain prison regulations relative to his confinement:

“July 27th, 1907.

“ Hon. P. L. Fouch,

“Allegan, Mich.

Dear Sir: In reply to your request, as attorney for John H. Leach, and also in reply to the request of his son-in-law, Mr. Fldred, for certain information relating to the confinement of Mr. Leach, permit me to inform you as follows:

“For the present, relatives of'Mr. Leach and persons having important business with him, will be permitted to visit him on Tuesday of each week, between the hours of two and four o’clock p. m. for a period of fifteen minutes (or longer in the discretion of the officer in charge). Such interview must be in the presence of an officer, and will not be permitted unless the prisoner and the visitors refrain from abusive conduct toward the one in charge of the jail at the time of such visit.

“The daily papers will not be given to the prisoner. Books may be brought to the jail and will be given to the prisoner if deemed advisable.

“The prisoner will be permitted to supply himself with articles of clothing but his food will be furnished at the jail.

“Letters directed to Mr. Leach will be given to him but will first be read by tbe officer in charge of the jail at the time they are delivered.

“ Respectfully,

Signed: “Allen L. Whitbeck,

“ Sheriff.”

Relative to these modifications of petitioner’s condition by prison regulations, we may with truth and propriety repeat what was said by the court in the case from which we have quoted:

“ The statutory amelioration was a very limited one. * * * The solitary confinement, then, which is meant by the statute, remains of the essential character of that mode of prison life as it originally was prescribed and carried out, to mark them as examples of the just punishment of the worst crimes of the human race.”

The records of the courts of this State do not show that any prisoner, civil or criminal ( except convicted of a capital offense ), has ever for such a length of time been subjected to such punishment.

The prisoner in this case is not a criminal and should not be treated as a criminal. The fact that the statute (3 Comp. Laws, § 10534) provides that “on no pretense whatever shall prisoners on civil and criminal process be put or kept in the same room ” emphatically indicates this distinction. Prisoners charged with crime in this jail were treated with less severity than relator.

The court recognizes that a sheriff has a discretion in regard to the care and treatment of prisoners held by him upon both criminal and civil process. That discretion is subject, however, to limitations, and must not be abused. We think in this case that the sheriff abused this discretion and that the facts warrant the interference of the court. Such treatment of a civil prisoner is not authorized by law, and is contrary to every sentiment of justice and humanity. The confinement under which relator has been held since July 2d is practically solitary confinement. Nothing has disturbed its solitude except a few brief visits, concerning some of which there is a dispute.

It is urged that respondent has no other place provided by the county in which to confine prisoners committed upon civil process. The question before us is not where the relator has been confined, but what has been the nature of that confinement. From this record we cannot say that this apartment is unsuitable and too small for the use for which it was intended, provided respondent used reasonable discretion in his treatment of his prisoner. If it were too small this court would exercise its authority to order that a suitable place be provided or that the prisoner be enlarged. He does not ask in this case to be enlarged. He asks for release from solitary confinement, for air and exercise, and that he be allowed to have newspapers and books.

The reasons given by this man for keeping relator shut up alone for this length of time in this manner are too trivial to warrant the severity of what may be truly called his punishment. He may have done things contrary to the rules of the jail, but if he did these things he was not told he was breaking the rules. He may have been annoying and disagreeable, but on that account respondent cannot confine him contrary to law.

It is evident from this record that the true reason why relator on the 2d of July was deprived of his privileges and locked up without sufficient space for exercise was because the attorney for plaintiff in the civil suit advised and requested such action. The attorney for said plaintiff was not the proper party to advise respondent as to his treatment of relator, although he was the public prosecutor, and respondent should not have acted upon such advice but should have sought unbiased and disinterested counsel.

The record in the case shows that with but little trouble relator could be allowed to exercise in the main corridor. He is certainly entitled to exercise sufficient to preserve his health, and to sufficient fresh air. There can be no sufficient ventilation of the room except when the wind is from one direction. The allowance of papers and reading matter would also be entirely reasonable. For the reasons above given the judgment of the circuit court should be reversed and set aside, with costs of both courts, and a writ issued directing respondent to desist from further confining relator in the manner above stated, and to give him opportunity for daily exercise in the main corridor, or elsewhere, and to open the door of his room for sufficient time to give complete change of air. If a satisfactory order cannot be agreed upon between the parties the court should enter such order as the circumstances require.

Blair, Montgomery, and Carpenter, JJ., concurred with McAlvay, J.