text:
    MUIRHEAD v. SANDS.
    1. Taxes — Collection by Sale of Lands — Construction op Law op 1893.
    By the express terms of section 60 of the tax law of 1893 (Act No. 206), lands theretofore returned as delinquent for taxes were made subject to disposition, sale, and redemption in accordance with the provisions of that act; and, in so providing, such section was not inconsistent with sections 125 and 126, reserving all rights that may have accrued to any person under previous laws, even though the effect of the act was to hasten the time of sale and shorten the period of redemption as to lands so returned.
    2. Same—Constitutionality of Law.
    The act mentioned, in thus altering the time of sale and the period for redemption as to lands previously assessed, is not open to the objection that it violates the provision of the Federal Constitution (article 1, § 10) that no State shall enact any law impairing the obligation of contracts, since proceedings for the collection of taxes are essentially in invitum, and do not presuppose the existence of any contract relation; nor does the act conflict with the provision of the State Constitution (article 6, § 32) that no person shall he deprived of his property without due process of law.
    3. Same—Redemption—Erroneous Certificate.
    The period of redemption is by section 74 of the act expressly fixed at one year from the date of sale; and the landowner is not prejudiced by the fact that the certificate of sale, issued conformably to section 71, erroneously recites the date at which the purchaser will be entitled to a deed.

      4. 'Same—Sale or State Bids.

      It seems that lands bid off to the State were subject to private purchase at the office of the auditor general as “State tax lands,” under section 84, without being first reoffered at the next succeeding annual sale under section 78, and before the expiration of the period of redemption.

    5. Same—Validity or Decree—Dollar Mark.
    The omission of the dollar mark from the published list of delinquent lands does not render a decree for their sale invalid, where the figures were divided in such manner as to indicate a place for dollars and cents, and they were sufficiently designated in the decree itself.
    6. Same—Proor or Publication—Surrioiency.
    Under section 66 of the act, providing that any person familiar with the facts may make an affidavit as to the publication of the petition of the auditor general and the order of hearing thereon, the affidavit need not recite that the affiant is familiar with the facts sworn to.
    7. Same—Decree—Entitling.
    The decree in such proceeding is not invalid because, in addition to the caption prescribed by section 67, it contains a caption importing that the State is the complainant and certain delinquent taxpayers are defendants.
    8. Same—Res Judicata.
    Personal service upon the delinquent taxpayer is not essential to the jurisdiction of the court to enter a decree, it being expressly provided by section 66 that notice by publication shall be equivalent to personal service; and all questions as to the regularity of the proceedings prior to the decree, not relating to the payment of the taxes or the exemption of the ■ property from taxation, are foreclosed by the decree.
    Appeal from Kalkaska; Aldrich, J.
    Submitted October 9. 1896.
    Decided January 5, 1897.
    Bill by Peter Muirhead against Louis Sands to quiet title. From a decree for complainant, defendant appeals.
    Affirmed.

      William D. Totten and Cassius M. Phelps, for complainant.

      Smurthwaite & Fowler, for defendant.

       See note on page 492.

   Montgomery, J.

Complainant, in January, 1895, became the purchaser from the State of the 78.89 acres of land in controversy, under a tax deed; the State having become the purchaser at the annual tax sale in December, 1893, the lands having been sold for the delinquent taxes of the year 1891. This bill is filed to quiet complainant’s. title under his tax deed.

It is claimed that under the law of 1889, as amended by the law of 1891, lands assessed for taxes of that year, upon which the taxes were unpaid, must be returned delinquent to the county treasurer in March, 1892, and that section 51‘of the act provides that all lands returned delinquent shall become subject to sale one year from the 1st day of July next after their return, and that by section 62 these lands could be sold on the first Monday in May next following the date at which they became subject to sale, so that they could not have been sold under that act before the first Monday in May, 1894, and that by section 68 the owner can redeem at any time previous to one year from and after the 30th day of September next succeeding such sale; so that, if these lands had been sold under the act of 1891, they would have been subject to redemption until September 30, 1895, whereas under the amended law the sale was made in December, 1893, and complainant’s deed was executed in January, 1895. It is claimed that the amended law of 1893 does not apply to these lands at all, and that the act of 1891 is .yet in force as to them. It is conceded that some parts of the act of 1893 seem to contemplate that the provisions of that act -shall apply to the sales of certain lands returned delinquent for taxes of previous years. Section 60, Act No. 206, Pub. Acts 1893, is as follows:

“All lands which have been or may hereafter be returned to the auditor general as delinquent for taxes, and upon which any taxes are now or shall hereafter remain unpaid, after their return to the auditor general under the provisions of this act, or to the several county treasurers of the State under the provisions of Act No. 200 of the Public Acts of 1891, for the period of one year or more, shall be subject to disposition, sale, and redemption for the enforcement and collection of such tax liens, in the method and manner as hereinafter provided.”

These provisions would seem to be clear. But it is contended that the provisions of section 125, which reserves all rights which have accrued to any person under-the previous tax laws, and section 126, which, after repealing contravening acts, provides that such repeal shall not destroy or affect any rights which may have accrued or which may hereafter accrue under such acts or parts of acts while the same were in force, are inconsistent with the provisions of section 60, and indicate that it was not the intention that proceedings to enforce the collection'of the' tax assessed under the law of 1891 could be taken under the law of 1893. It is asked, “Is not the right to own and hold property one of the dearest vested rights known to the law?” The answer is, of course, obvious. But we think it clear that section 125 and section 126 were not directed to the reservation of these- rights, but to the protection of such rights as accrued tmder the -previous acts. The right of defendant or his grantors to own this property was not derived under the tax laws.

It is next said that section 71 of the tax law of 1893 shows that the legislature did not intend to shorten the periods of sale and redemption of lands delinquent for the tax of 1891. This section gives the form of the certificate of sale, which contains the statement that the purchaser will be entitled to a deed of conveyance in one year from the 30th day of September next following. It is evident that, in copying this certificate into the law of 1893, a mistake occurred, as it was taken bodily from the certificate provided for by the law of 1891. But other sections of the statute of 1893 make the intention of the legislature clear as to the date of redemption. Section 70 provides that certificates shall be given to each purchaser of the lands and interests bid off by him, showing the year and the tax for which he has purchased, and also the amount thereof, and of all other taxes paid by him at the time of such purchase, stating that he will be entitled to a deed after the period of redemption provided for in section 74 has expired. Section 74 provides that “any person owning any of the lands sold as aforesaid, or any interest therein, may, at any time within one year from and after such sale, redeem any parcel of such lands, or any part or interest in such lands,” etc. These provisions make it clear that the period fixed by law for redemption was 'one year, and the original owner cannot be con-c'erned as to the form of the certificate given to the purchaser, nor would it be material if no certificate was given at all. The law fixes the time within which redemption can take place, and his rights are not affected by the evidence of purchase which the statute has provided shall be furnished to the purchaser.

It is next contended that, if the law of 1893 be construed to apply to the taxes for the year 1891, it hastens the time of sale of lands delinquent for taxes, and cuts down the period of redemption provided by the previous law, and is to that extent unconstitutional, in that it violates section 10 of article 1 of the Constitution of the United States, prohibiting enactments by the State impairing the obligation of contracts, and article 6, § 32, of the Constitution of Michigan, in that it deprives persons of their property without due process of law. We think neither of these positions is tenable. A labored argument is made to show that the relation between the State and the owner of the land is a contract relation, for the reason that the taxes assessed become a debt to the township from the person to whom they are assessed. But the proceeding is essentially in invitum, and the proceeding on a sale of land is a remedy for the delinquency of the taxpayer. The law affecting the remedy is in such cases subject to amendment, even though the time fixed for the sale or redemption be shortened. 25 Am. & Eng. Enc. Law, 410; Black, Tax Titles, § 353; Baldwin v. Ely, 66 Wis. 171; Negus v. Yancey, 22 Iowa, 57. Defendant relies upon Cargill v. Power, 1 Mich. 369, which case proceeds upon the view that the period of redemption on a mortgage sale, as fixed by statute at the time the mortgage was executed, is to be deemed a part of the engagement of the parties. No such construction can be placed upon the statute here under consideration. There was no agreement between the State and the taxpayer as to the period of redemption.

It is contended that under the law of 1893 there was no provision for any private sale of State bids until after the period of redemption had expired, and that it was the duty of the county treasurer to offer the land held on State bids for sale at the next annual sale. The distinction claimed is that, when lands are bid off to the'State for taxes, they remain State bids until offered for sale the second time, under section 78, and if again bid off to the State, and not redeemed, when redemption expires they become State tax lands, and that they may then be sold at private sale, under section 84.

It is evident that the provision for the sale of State tax lands at private sale is not one for the benefit of the original owner, as the period of redemption fixed by the statute is precisely the same whether the State or an individual becomes the purchaser. Section 78 provides that'—•

“All lands heretofore or that may be hereafter bid off to the State for taxes, which have not been redeemed or otherwise disposed of, shall be offered for sale by the county treasurer at the regular annual tax sales.”

Section 84 provides that—

“Any person may purchase any State tax lands by paying therefor the amount for which the same was bid off to the State, with interest on the same at the rate of 8 per cent, per annum from date of sale, together with the other taxes remaining a lien on such lands at the time of the purchase so made, with the interest thereon at the rate provided in this act. Upon making payment as above, such purchaser shall be entitled to and receive a certificate and a deed conveying all the right, title, and interest of the State to such tax lands acquired or accrued by virtue of the original salp or sales to the State.”

The contention of defendant has some support in the fact that the legislature in 1895 apparently deemed it necessary, or at least wise, to amend section 84 by inserting “State bids” before the words “State tax lands.” This is, negatively, perhaps, a legislative construction of the previous act. On the other hand, it is evident that the auditor general’s department construed the words “State tax lands” to include all lands of which the State had become purchaser, either upon the original sale or upon a second sale to the State. Turning to section 70,' we find a use of the words ‘ ‘ State tax lands ” consistent with this construction, and which, we think, shows the sense in which the term “State tax lands” was used. This section provides, in substance, that, in case a sale of lands cannot be made at the annual sale, the county treasurer shall bid off the same in the name of the State, and in such case the county, township, school, and other taxes assessed on the lands so bid off to the State, and the interest and charges thereon, shall remain a lien upon said lands, and any person or persons who shall afterwards purchase such lands of the State, as State tax lands or otherwise, shall be liable for, and shall pay, all taxes then remaining unpaid. We think the sale was regular.

It is claimed that the judgment is void for the reason that on the petition and published list the dollar mark does not appear. The figures were divided in such manner as to indicate a place for dollars and cents, and in the judgment they wei’e sufficiently designated. We held in the case of Millard v. Truax, 99 Mich. 159, that a judgment entry was insufficient if it failed to show any dollar mark, or anything in terms to indicate that money was intended. This rule is supported by Cooley, Tax’n, (2d Ed.), 529, but, we think, should not apply to other proceedings in the course of taxation. See Black, Tax Titles, § 117.

It is claimed that there was no sufficient proof of the publication of the petition. The affidavit is sworn to by a Mr. Tinklepaugh, who swears that he is printer and publisher of the Kalkaska Leader, and who swears positively to the fact of publication. The statute (section 66) provides, “Any person familiar with the facts may make an affidavit as to the publication required.” It is claimed that, as the affidavit does not contain a statement that the person making it is familiar with the facts, it is insufficient. We think this contention is without force. The intention and purpose of the statute were to authorize any person who was able to swear to the facts to make the affidavit, and the fact that he swears to the facts is evidence of his ability to do so.

It is contended that there was no decree entered in the case. The statute providing for the decree (section 67) provides that it shall have the usual caption of decrees, and shall be substantially in the following form: “In the Matter of the Petition of the State of Michigan for the Sale of Certain Lands for Taxes Assessed Thereon,” etc. In this case the decree was entitled, “State of Michigan. The Circuit Court for the County of Kalkaska, in Chancery. State of Michigan, Complainant, vs. C. P. Sweet and Certain Other Delinquent Taxpayers of Said County, Defendant.” Following this, the usual caption, and thereafter, “In the Matter of the Petition of the State of Michigan for the Sale of Certain Lands for the Taxes Assessed Thereon.” We think this was clearly enough to identify the proceedings, and that the previous entitling was not' misleading, and, although irregular, may be treated as surplusage.

The other questions presented relate to the regularity of the proceedings prior to the decree. We must hold that these questions were all foreclosed by the decree. In Cole v. Shelp, 98 Mich. 58, we held that every owner of land is presumed to know the law, and that he knows that his land is subject to taxation. The statute makes the publication the equivalent of personal service, and it is therefore the duty of the owner to watch the proceedings provided for by the statute for the foreclosure of the lien, and interpose any objection he may have to the validity of the tax. The purpose of the statute is to give every person his day in court, in an equitable proceeding. We are cited to the case of Fowler v. Campbell, 100 Mich. 398, in which it was held that where lands were improperly assessed to the estate of R. M. Risdon many years after the estate had been closed, and where there was no personal service upon the resident heirs, the court was without jurisdiction to grant the decree. This case was put distinctly on the ground, however, that personal service was required by the statute then in force.' Under the law of 1893, no personal service is required. The notice by publication is notice to all landowners Avithin the county, and the question for adjudication as to the lands named in the published list is whether there is a tax due to the State from the owner. . This includes the question of whether it is properly assessed, and whether proper steps have been taken to charge the land after the assessment. If the owner permits the case to proceed to decree, all these questions become res adjudícala. The statute (section 70), in terms, provides that no sale shall be set aside after confirmation, except in cases where the taxes were paid, or the property was exempt from taxation, and that in such cases the owner of such lands may move the court, at any time within one year after he shall have notice of such sale, to set the same' aside. There is no claim in this case either that the taxes had been paid or that the lands were exempt from taxation. This construction of the law may, in particular cases, work a hardship; but the law is the outgrowth of many years of investigation and experience, and was conceived by the lawmakers to be the best measure which could be adopted, having in view the purpose of compelling the owner to pay his taxes promptly, and it is not the province of the court to fritter away its plain provisions by forced construction.

The decree of the court below will be affirmed.

Long, 0. J., Grant and Moore, JJ., concurred. Hooker, J., did not sit.

       The distinction sought to be drawn by counsel between “State bids” and “State tax lands” is not the precise distinction recognized by the auditor’s department. Lands bid to the State are there regarded as “State bids ” before, and “ State tax lands ” after, the expiration of the redemption period. In this connection it will be observed that the statute (section 78 et seq.) does not in terms provide for a second bidding off to the State, and, in practice,'lands once bid to it are merely carried upon the State books until purchased by individuals, either at the annual sales or at the office of the auditor. In the present case, the lands were bid off to the State in December, 1893, and complainant bought at private sale January 15, 1895, after the period for redemption had expired, and after one regular public sale had intervened.—Reporter.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    CRANE v. SAGINAW CIRCUIT JUDGE.
    Statutes—Repeal—False Pretenses.
    Section 9161, 2 How. Stat., which provides for the punishment of persons who, with intent to defraud, by any false pretense, shall cause any person to convey any land, or obtain the signature of any person to any written instrument the making whereof would be punishable as forgery, or obtain from any person any money or valuable thing, was not repealed by Act No. 234, Pub. Acts 1895, reducing the penalty prescribed by the former act where the value of the property involved shall be not more than §25.

      Mandamus by Riley L. Crane, prosecuting attorney, to compel Byron A. Snow, circuit judge of Saginaw county, to set aside an order quashing an information in a criminal case.
    Submitted January 5, 1897.
    Granted January 13, 1897.

      Crane & Crane, for relator.

      F. E. Emerick and J. H. Davitt, for respondent.
   Per Curiam.

Orson D. Taylor was arrested, under section 9161, 2 How. Stat., charged with having obtained, in July, 1892, $1,140, by means of false pretenses; was arrested in August, 1895, and held for trial to the circuit court for Saginaw county at the November term, 1895. Hpon arraignment, he pleaded not guilty. Subsequently he moved to quash the information upon the ground that this section of the statute was repealed by Act No. 234 of the Public Acts of 1895, and the motion was granted. Section 9161 and Act No. 234 are printed in full in People v. Kinney, 110 Mich. 97. The only amendment made by Act No. 234 is the provision that, if the property obtained be of the value of $25 or less, the offender shall be punished by a fine not exceeding $100, or imprisonment in the county jail not exceeding three months.

The court was in error in quashing the information. The amendment did not go to the crime charged against the prisoner, or to the punishment therefor. Both the crime and the punishment are the same in the original and the amending acts. The governing rule is, ‘ ‘ If the amendment does not change the old law in its substantial provisions, it only repeals the law where it is in direct conflict with it, but not beyond.” End. Interp. Stat. § 195. The amending act has no repealing clause, and repeals by implication are not favored. “ Where a law is amended. and re-enacted, those parts of the law simply repeated are not repealed and re-enacted, but are considered to have continued in force from the beginning.” 23 Am. & Eng. Enc. Law, 285. The plain intent of the legislature in the amendment was to reduce the penalty where the value of the property was $25 or under, and not to affect any other provision of the section amended.

The writ of mandamus will issue, directing the court to vacate the order and proceed to the trial of the accused.


author: Moore, J.

text:
    ATTORNEY GENERAL, ex rel. DUSENBURY, v. LOOKER.
    1. Corporations — Amendment of Charter — Constitutional Law.
    The power reserved to the legislature by the Constitution, article 15, § 1, to amend or alter the charters of corporations, authorizes any reasonable amendment, regulating the mode in which the franchise granted shall be used and enjoyed, which does not defeat or essentially impair the object of the grant, or take away property or rights which have become vested undera legitimate exercise of tbe powers granted'.
    2. Same—Tested Right—Minority of Stockholders—Statutes.
    A majority of the stockholders of a corporation have no vested right to elect the directors which is infringed by the stockholders’ minority law (3 How. Stat. § 4885a), giving the minority of the stockholders the power, by cumulative voting, to elect a representative membership in the board of directors.
    3. Same—Quo Warranto.

      Quo warranto is the proper remedy by which to try title to the office of director of a private corporation.

      Quo warranto by the Attorney General, on the relation of Joseph W. and Will J. Dusenbury, against Oscar R. Looker and others, to determine the right of .respondents to hold the offices of. members of the board of directors of the Michigan Mutual Life Insurance Company.
    Submitted January 8, 1897.
    Judgment of ouster entered January 25, 1897.

      Fred A. Maynard, Attorney General, and Fred A. . Baker, for relators.

      C. A. Kent, for respondents.
   Moore, J.

This is a proceeding brought to test the validity of the minority of stockholders law.

The Michigan Mutual Life Insurance Company was organized-July 3, 1870, under a general law for the incorporation of life-insurance companies, approved March. 30, 1869. 1 How. Stat. chap. 131. Section 1 of that act provides, among other things, that—

“Any number of persons, not less than 13, may associate together and form an incorporated company, for the purpose of making insurance upon the lives of individuals, and every insurance pertaining thereto, and to grant, purchase, and dispose of annuities.”'

The next section is, in part, as follows:

“Sec. 2. The persons so associating shall subscribe articles of association, which shall contain * * * the manner in which the corporate powers are to be exercised; the number of directors and other officers, and the manner of electing the same, and how many of the directors shall constitute a quorum, and the manner of filling all vacancies ; * * * any terms and conditions of membership therein which the corporators may have agreed upon, and which they may deem important to have set forth in such articles.”

The articles of association of the Michigan Mutual Life Insurance Company contain the following:

“The corporate powers of the company shall be exercised by a board. of directors, which shall consist of 21 members, which may be increased, at the option of the board, to not more than 40.

“The first meeting for the election of directors shall be called by the present officers, and held as soon as practicable after these articles shall take effect.

“No person shall be eligible who is not owner of at least 10 shares of the guaranty capital of the company, and at least two-thirds of the directors shall be residents of the State of Michigan. The board, at their first meeting, shall divide themselves, by lot, into three equal classes, as near as may be, whose terms of office shall expire at the end of one, two, and three years, respectively; and thereafter one-third of the directors shall be chosen annually, for the class whose term then expires, who shall hold office for three years, or until their successors are elected. * * * They shall be chosen by ballot, and a majority of all the votes cast shall elect. Every shareholder shall be entitled to one vote for directors for every share of guaranty capital standing in his name on the books of the company, and may vote in person or by proxy. And every policy-holder insured in this company for the period of his natural life, in the sum of not less than $5,000, shall also be entitled to one vote in the annual election of directors, which vote must be given in person. * * * ”

From the origin of the company, the directors have been elected according to the provisions of said articles. Relator Joseph W. Dusenbury has been a stockholder from November 15,1890, and a director from January 27, 1891. He has attended every meeting of the stockholders from and including January 26, 1892, to January 28, 1896. Until the last-named date he has never objected to the election of directors in the manner prescribed by the articles. The terms of nine directors expired in 1896, and notice was given of an election to fill their places. On January 28,1896, at the stockholders’ meeting, relator J. W. Dusenbury claimed the right to vote his stock, and that for which he held proxies, according to the minority representation law. He did not claim that more than nine directors should be then elected. He multiplied the number of shares for which he voted by nine, and voted half of this amount for himself, and half for his brother, Will J. Dusenbury. The stockholders rejected relator’s claim, and followed the articles of association, in accordance with which nine directors, who received all the votes, save those of relator Joseph W. Dusenbury, were declared elected. Respondents received each 3,655 votes. Relators, through their multiplication, claim to have received each 5,571 votes.

In 1885 an act was passed which reads:

“An act to secure the minority of stockholders, in corporations organized'under general laws, the power of electing a representative membership in boards of directors.

“Section 1. The People of the Stgte of Michigan enact, that in all elections for directors of any corporation organized under any general law of this State, other than municipal, every stockholder shall have the right to vote, in person or by proxy, the number of shares of stock owned by him for as many persons as there may be directors to be elected; or to cumulate said shares, and give one candidate as many votes as will equal the number of directors multiplied by the number of shares of his stock; or to distribute them on the same principle among as many candidates as he shall think fit. All such corporations shall elect their directors annually, and the entire number of directors shall be balloted for at one and the same time, and not separately.” 8 How. Stat. § 4885a.

The Constitution of Michigan, adopted in 1850, contains the following:

“Corporations may be formed under general laws, but shall not be created by special act, except for municipal purposes. All laws passed pursuant to this section may be amended, altered, or repealed.” Art. 15, § 1.

It is the claim of the respondents that the power of the majority to elect all the directors, and so fully control the corporation, is a vested and valuable right of property, secured by the Constitution of the United States against the interference of State legislatures or constitutional conventions; citing in support of this proposition Hays v. Com., 82 Pa. St. 518; Baker’s Appeal, 109 Pa. St. 461; State, ex rel. Haeussler, v. Greer, 78 Mo. 188; Smith v. Railroad Co., 64 Fed. 272. In Hays v. Com., supra, it is true, language of the following tenor was used: “If it be not a vested right in those who own the major part of the stock of a corporation to elect, if they see proper, every member, of the board of directors, then I would like to know what a ‘vested right’ means. This was part of the contract under which they entered into the company, and for which they paid their money,”—and the court cite in support of that proposition the leading case of Trustees of Dartmouth College v. Woodward, 4 Wheat. 518. It is very generally agreed that the Dartmouth College Case would not now apply to a case where the law conferring corporate authority reserved the right to alter, amend, or repeal. The doctrine of the right of the majority of the stockholders to elect the directors being a vested right was not the point upon which the case of Hays v. Com., supra, was decided. In that case it was held that the constitutional provision reading, “In all elections for directors or managers of a corporation, each member or shareholder may cast the whole number of his votes for one candidate, or distribute them upon two or more candidates, as he may prefer,” did not apply to a corporation in existence at the time the constitutional provision was adopted, and the court say:

“It is manifest that the convention did not intend to subject any private corporation to any of the provisions of the constitution which might in any degree change the charter thereof. If otherwise, why say, in the second section, sixteenth article, ‘the general assembly shall not remit the forfeiture of the charter of any corporation now existing, or alter or amend the same, or pass any other general or special law for the benefit of such corporation, except upon the condition that such corporation shall thereafter hold its charter subject to the provisions of this constitution ?’ This section is so comprehensive and clear that nothing is left for surmise or doubt. Charters of private corporations are left exactly as the new constitution found them, and so they must remain until the companies holding them shall enter into a new contract with the State, by accepting the benefit of some future legislation. It is only on the theory that the manner of voting is not material that the cumulative system is sought to be saddled on this corporation; but, if this company does not hold its charter subject to the provisions of the present constitution, how can it be made subject to any one of such provisions, material or immaterial ? It is, indeed, manifest that .such an argument is foreign to the question in hand. It might apply to a legislative enactment attempting to alter this charter, but it cannot apply to this case, arising, as it does, directly on the constitution itself, for it is excluded by the very terms of that instrument. ”

The case of Baker’s Appeal, 109 Pa. St. 461, was a proceeding to determine whether the American Academy of Music was brought within the provisions of the constitution providing for cumulative voting, by accepting its provisions in the manner indicated by law. It was held, “If, at a meeting duly called for that purpose, a majority, not in number, but in interest, of the stockholders present thereat in person or by proxy, authorizes such acceptance, then, and not till then, can the holders of the major part .of the capital stock be stripped of their vested right to elect a full board of directors, all of their own selection the court accepting the view expressed in Hays v. Com., that the constitutional provision permitting cumulative voting was not intended to, and did not, apply to corporations in existence, unless accepted by them.

In the case of State, ex rel. Haeussler, v. Greer, 78 Mo. 188, it was held that the right of corporators to vote at elections for directors was a property right, and that a provision of law providing for cumulative voting would not apply to a corporation which held its charter from the legislature, where the charter provided that each stockholder should have one vote for each share of stock, and that the directors should be elected by vote of the stockholders, and contained the further provision that the legislature should have no power to alter, suspend, or repeal the charter. It was further held that, if the mode of voting is prescribed by an irrepealable charter, it is protected by that provision of the Constitution of the United States which prohibits the States from passing laws impairing the obligation of contracts.

In the case of Smith v. Railroad Co., 64 Fed. 272, it was held that a law passed in 1876 providing for cumulative voting would not apply to a corporation obtaining its charter while Kansas was a territory, though the constitution adopted when Kansas became a State contained a provision providing for the amendment and repeal of acts conferring corporate powers. The constitution had a provision that “all laws and parts of laws in force in the territory * * * shall continue and remain in full force until they expire or shall be repealed.” The territorial statute in force when the charter was granted contained the following provision: “The charter of every corporation that shall hereafter be granted by law shall be subject to alteration, suspension, or repeal by any succeeding legislature: Provided, such alteration, suspension, or repeal shall in no wise conflict with any right vested in such corporation by its charter.” The court said:

“Whether or not this act wasin force at the time the defendant’s charter was granted it is not necessary to decide, as the proviso in this section has extracted the meat, and left only the shell.”

The case of City of Detroit v. Detroit, etc., Plank-Road Co., 43 Mich. 140, was a case where a charter had been accepted by a corporation which had built a plank road and erected toll gates. It was sought, by an amendment, to require the company to remove a toll gate, and to vacate that portion of its road then within the city of Detroit, without compensation. In an opinion written by Justice Cooley it was held that “the effect of the proposed amendment, if valid, would be to take from the corporation about two miles and a half of the road upon which it collected toll, and that the legislature cannot, under its power to amend a charter, take from the corporation any of its substantial property; * * * that, if the State may deprive the corporation of the right to take tolls on two miles and a half of its road, it may in respect to any other part, and. * * * may annihilate the property of the corporation altogether; and that a statute which could have this effect would not be a statute to amend franchises, but a statute to confiscate property. It would not be a statute of regulation, but of spoliation. ”

We do not think any of these cases, when analyzed, go so far as to sustain the claim of counsel for respondents. It is claimed by the counsel that the method of electing the directors of the Michigan Mutual Life Insurance Company was made in pursuance of the statute, and constitutes a contract between the stockholders of the company, which the legislature cannot set aside; and it is asserted that the minority stockholders’ law changes the contract between the stockholders, and is therefore within the constitutional provision which forbids impairing the obligation of contracts. It would seem to be a complete reply to this view to say that the stockholders knew when they entered this corporation that the Constitution reserved to the legislature the right to amend, alter, or repeal the law under which the corporation was organized. 1 Thomp. Corp. § 89. The stockholders are as much bound by this constitutional provision as though it were contained in the articles of incorporation. Parker v. Railroad Co., 109 Mass. 506. In this case it was said:

‘! Many cases have arisen in this court involving the construction and application of the power to amend or alter charters. The reservation of power is broad and comprehensive. Whatever may be its limitation, it at least reserves to the legislature the right to make any reasonable amendments, regulating the mode in which the franchise granted shall be used and enjoyed, which do not defeat or essentially impair the object of the grant, or take away any property or rights which have become vested under a legitimate exercise of the powers granted.”

See, also, South Bay Meadow Dam Co. v. Gray, 30 Me. 547; Shields v. Ohio, 95 U. S. 324.

In the case of Hamilton Gaslight & Coke Co. v. Hamilton City, 146 U. S. 270, it was held, in an opinion written by Justice Harlan:

“A legislative grant to a corporation of special privileges, if not forbidden by the constitution, may be a contract; but, where one of the conditions of the grant is that the legislature may alter or revoke it, a law altering or revoking, or which has the effect to alter or revoke, the exclusive character of such privileges, cannot be regarded as one impairing the obligation of the contract, whatever may be the motive of the legislature, or however harshly such legislation may operate, in the particular case, upon the corporation or parties affected by it. The corporation, by accepting the grant subject to the legislative power so reserved by the constitution, must be held to have assented to such reservation.”

See, also, Greenwood v. Freight Co., 105 U. S. 13, which is a very interesting case, containing a full discussion of this subject.

In Market Street R. Co. v. Hellman, 109 Cal. 571, it was held that, when an individual becomes a stockholder in a corporation, it is with the implied assent on his part to the right of the legislature to alter and amend the law, within the scope of the constitutional provision, and is as binding upon him as a contract to the like effect of his own making would be. This was a case providing for the consolidation of corporations by a majority of the stockholders, without regard to the desire of stockholders opposing the consolidation.

In Railroad Co. v. Georgia, 98 U. S. 359, it was held that a corporation held the rights granted to it under and subject to the law as it was when the new charter was granted, and that where the law in existence when the corporate franchise was granted provided that the franchise was “subject to be changed, modified, or destroyed at the will of the creator,” the franchise was held subject to these provisions.

We understand the rule in relation to the reservation of power to amend, alter, or repeal to be correctly stated in Parker v. Railroad Co., already quoted; and, as stated by Justice Gray in Commissioners on Inland Fisheries v. Holyoke Water-Power Co., 104 Mass. 446 (6 Am. Rep. 247): “A power reserved to thé legislature to alter, amend, or repeal a charter authorizes it to make any alteration or amendment of a charter granted subject to it which will not defeat or substantially impair the object of the grant, or any rights vested under it, and which the legislature may deem necessary to secure either that object or any public right.” See, also, Sinking Fund Cases, 99 U. S. 700.

The nature of a corporation is therefore an important consideration in determining the extent of the reserved right of the State to alter or amend its charter. Is it a corporation in which the public is interested ? If so, the legislature may exercise the reserved power as just stated. Is not the public interested in the proper control and management of great life-insurance companies, like the Michigan Mutual Life Insurance Company? Is it not true that their incomes are largely drawn from the public, and that the proper or improper management of the company’s affairs affects the public as well as the stockholders? Is it not true that the policy-holders of the company are quite as much interested in what becomes of the assets of the company as the stockholders themselves ? The answer to each of these questions must be in the affirmative. For cases in which the power to alter, amend, or repeal charters or acts of incorporation has been exercised, see Fitchburg R. Co. v. Grand Junction R. Co., 4 Allen, 198; Durfee v. Railroad Co., 5 Allen, 230; Roxbury v. Railroad Corp., 6 Cush. 424; Massachusetts Gen. Hospital v. Assurance Co., 4 Gray, 227; Com. v. Eastern R. Co., 103 Mass. 254 (4 Am. Rep. 555); Commissioners on Inland Fisheries v. Holyoke Water-Power Co.., 104 Mass. 446 (6 Am. Rep. 247); Mayor, etc., of Worcester v. Railroad Co., 109 Mass. 103; Parker v. Railroad Co., Id. 506; Pennsylvania College Cases, 13 Wall. 190; Holyoke Co. v. Lyman, 15 Wall. 500; Oldtown, etc., R. Co. v. Veazie, 39 Me. 581; Boston & Albany R. Co. v. Village of Greenbush, 5 Lans. 461; Schenectady, etc., Plank-Road Co. v. Thatcher, 11 N. Y. 102; Buffalo, etc., R. Co. v. Dudley, 14 N. Y. 336; In re Lee & Co.’s Bank, 21 N. Y. 9; Albany Northern R. Co. v. Brownell, 24 N. Y.. 345; Northern B. Co. v. Miller, 10 Barb. 260; White v. Railroad Co., 14 Barb. 559; Hyatt v. McMahon, 25 Barb. 457; Anderson v. Com., 18 Grat. 295; Joslyn v. Steamship Co., 12 Abb. Pr. (N. S.) 329; Sherman v. Smith, 1 Black, 587; Perrin v. Oliver, 1 Minn. 202; Iron City Bank v. Pittsburgh, 37 Pa. St. 340; Com. v. Fayette County R. Co., 55 Pa. St. 452; Shields v. Ohio, 95 U. S. 324; Maine Cent. R. Co. v. Maine, 96 U. S. 510; Greenwood v. Freight Co., 105 U. S. 13; Close v. Glenwood Cemetery, 107 U. S. 466; Spring Valley Waterworks v. Schottler, 110 U. S. 348; Hamilton Gaslight & Coke Co. v. Hamilton City, 146 U. S. 258; Bissell v. Heath, 98 Mich. 472.

We do not think it can be said that the minority law changes the character of the business in which the Michigan Mutual Life Insurance Company is engaged, or that it takes away any substantial right acquired by the corporation. It changes the tei’ms of office of the directors, and provides for a representation on the board of directors of a minority of the stockholders. We do not think this disturbs any vested right such as is referred to by the cases cited by counsel for respondents (see Miller v. State, 15 Wall. 478), and that the minority law is constitutional.

It is objected that quo warranto is not the remedy. Quo loarranto was brought in many of the cases cited. State, ex rel. Haeussler, v. Greer, supra. Hays v. Com., supra. And we think it the proper remedy. Frey v. Michie, 68 Mich. 323.

The relators were elected as directors, and should have been so declared. In view of the fact that the annual meeting of the stockholders will be held so soon, it will not be necessary to make any further order in the proceeding. Costs are given to relators.

The other Justices concurred.


author: Grant, J.

text:
    CITY OF PONTIAC v. LULL.
    1. Eminent Domain—Petition—Description of Lands Affected —Sufficiency.
    The requirement that petitions for the condemnation of land shall separately describe the land owned by each respondent, and state his interest therein, is to enable the jury to determine the damages suffered by each; and an objection that certain of the parcels affected are not so described is unavailable, where the owners of such parcels have given their assent to the proceedings, and have agreed to convey their interests.
    2. Same—Parties—Eight of Passage.
    A petition in condemnation proceedings will not be held invalid for failure to set up that certain persons have a right of passage over the premises sought to be condemned, where such right would be in no way impaired by the appropriation of the land for the purpose contemplated.
    3. Same—Necessity—Opinions of Witnesses.
    The admission in evidence, in proceedings to condemn land for a street, of the opinions of certain witnesses as to the necessity of taking such land for public use, is not a substantial error, where the jurors are from the vicinage, the testimony is full, showing the relation of the proposed improvement to public travel and other streets, and the witnesses give the facts on which their opinions are based.
    4. Same—Éemarks of Counsel—Harmless Error.
    A statement in the opening argument of counsel for the city in proceedings to condemn land for street purposes, that any testimony showing a benefit is to be considered by the jury in arriving at the amount of damages to be awarded, is not ground for a reversal, if no evidence as to benefits is given upon the trial, and the jury are clearly instructed to give respondent the value of his land, and all damages sustained by him.
    Appeal from Oakland; Moore, J.
    Submitted October 21, 1896.
    Decided February 2, 1897.

      Proceedings by the city of Pontiac against Albe A. Lull and others to condemn land for street purposes. Respondent Lull appeals from an order confirming the verdict of the jury.
    Affirmed.
    This is a proceeding to condemn lands for a public street in the city of Pontiac. The petition was filed, in the name of the city, by the city attorney, setting forth the resolution of the common council, in which the property proposed to be taken was described by metes and bounds, and consisted of a strip of land 50 feet wide and 310 long, and extending westerly from the west line of Williams street to Pike street. The petition alleged:
    “That the names of the owners and others interested in the said parcel of land so far as aforesaid necessary to be taken, and proposed to be taken, for said improvement, as far as the same can be ascertained, including those in the possession of said premises, are as follows, to wit: A. A. Lull, Lucretia A. Heath, the heirs of Charles Fish, who are, as near as can be ascertained and determined, Frederick S. Stewart and the heirs of Nelson P. Stewart, who are Adaline Johnson, Helen McConnell, and Frederick S. Stewart.”
    Respondent Lull appeared and objected to any proceedings under the petition, because it “did not specifically describe the several parcels of land, or give the separate names of the owners of such separate parcels of land, and did not in any way specify or describe the separate lands or parcels owned severally by the respondents.” • The petitioner 'thereupon asked leave to amend, which was granted, and the petition was amended so as to definitely describe the land proposed to be taken from respondent Lull, which was a strip off the south side of his lot, six feet wide on the east end, and one foot wide on the west end. Respondent Lull then filed an answer in which he set up the same objections above mentioned, and also others. Respondent Heath answered, disclaiming any interest “ in the strip of land 44 feet wide included in the description given in said petition, which is now open to public use as a street,' and also disclaiming any interest in any portion thereof lying north of said 44-foot strip.” She was the executrix of the estate of Daniel W. Heath, and, in her-answer, consented that the petitioner might take the triangular strip of land belonging to the estate, which was situated south of the 44-foot strip, and similar in shape to the piece which was taken from Mr. Lull’s land. The other respondents answered, disclaiming' any interest in the lands proposed to be taken. The issue, as thus framed, went to trial, resulting' in a verdict and judgment that a public necessity existed for the taking of the land, and awarding damages to Mr. Lull, who has appealed the case to this court.

      Samuel W. Smith and Aaron Perry, for appellant.

      Peter B. Bromley, for appellee.
   Grant, J.

(after stating the facts). It is insisted on behalf of Mr. Lull that the description in the amended petition is different from the description in the original petition and in the resolution of the common council, which is the basis for the proceeding. We do not concur in this view. The description is sufficiently definite in the original petition, and, if there is any change,it is to the advantage of the respondent Lull, by taking a few inches less of his land. We think, however, that the description in the amended petition corresponds with the resolution, and describes the north line of the proposed street as was intended by the council.

It. is next urged that the petition is fatally defective in that it does, not separately describe the land owned by each respondent, and state his or her interests therein; citing Chicago., etc., R. Co. v. Sanford, 23 Mich. 418; City of Owosso v. Richfield, 80 Mich. 328; Toledo, etc., R. Co. v. Detroit, etc., R. Co., 62 Mich. 569 (4 Am. St. Rep. 875); Toledo, etc., R. Co. v. Munson, 57 Mich. 42; Mansfield, etc., R. Co. v. Clark, 23 Mich. 519. Those cases do not control this. The purpose of describing the land owned by each party, and his interest therein, is to enable the jury to determine the damages which each has suffered, and for which the public should pay. Chicago, etc., R. Co. v. Sanford, 23 Mich., at page 427. All the other owners in this case had either disclaimed any interest in the land proposed to be taken, or had assented to the proposed improvement, and had agreed to convey their interest. The land proposed to be taken from Mr. Lull was described, and the only damage he could suffer was the value of the land taken, and the damage to his adjoining property by reason of the improvement.

It is contended that he had an interest, as found by the jury, in the 44-foot strip, and that, therefore, this interest should have been set up in the petition. This interest' was only that of the right of passage over the 44-foot strip, which he had in common with others who lived in the vicinity. This right was not destroyed by appropriat-, ing the strip for a street. His right of passage continued the same, and the jury found that he suffered no damage in this respect. It was not, therefore, essential to describe this interest in the petition, even if it were known to the petitioner.

3. Witnesses were permitted to give their opinion as to the necessity of taking this land for public use. This was objected to by the respondent Lull as “calling for a conclusion.” Such testimony has been held incompetent. City of Detroit v. Brennan & Co., 93 Mich. 338; City of Grand Rapids v. Bennett, 106 Mich. 528. But in City of Detroit v. Brennan & Co. we refused to reverse the judgment on account of its admission, holding that, under the facts of that case, the jury could not have been misled by the answer. The statute providing for appeals in these proceedings says that this court may “for any substantial error reverse the judgment and grant a new trial.” 3 How. Stat. § 3064n. Early in the trial the jury were sent to view the premises. The jurors were from the vicinage. The testimony was very full, showing the relation of this proposed improvement to the public travel and tbe other streets, the schools, churches, fire department, and the business parts of the city. Maps of the city were in evidence. The witnesses who testified that, in their opinion, the improvement was a public necessity, as well as those who gave their opinion to the contrary, gave the facts upon which their opinions were based. While the court should have excluded the testimony, we do not think its admission was a substantial error.

In his opening statement to the jury, counsel for the city stated, “Of course, any testimony in the case showing a benefit is to be considered by you, in arriving at the compensation or damages that you will award Mr. Lull.” This statement was objected to for the reason that such testimony should not be considered by the jury. The court did not directly pass upon the question, but said to the jury that they would be governed by the testimony offered, and by, the law as given by the court. Exception was taken to this statement of counsel, and it is now insisted that the case was submitted to the jury upon the theory that they might consider such benefits. The learned counsel are mistaken in this view. The question of benefits was not submitted to the jury, and they were clearly and fully instructed to give to the respondent the value of his land, and all the damage he had sustained. Counsel have not referred to any testimony given upon this point, and there is nothing to indicate that it was referred to after the opening statement.

5. Man}*- objections and exceptions were taken to the admission and rejection of testimony. This opinion would be of great length were each of these questions discussed. None of them raise questions which are of importance to the profession, or to the parties to this litigation. It is therefore sufficient to state that we find no error in them.

C. The instruction of the court was a clear and explicit enunciation of the law applicable to condemnation proceedings. It covered fully the rule as to public necessity and the measure of damages. It would be profitless to discuss the errors alleged upon this branch of the case. We find no error in the charge.

The jury, in their verdict, returned that one Mrs. Treadway and one Mrs. Voorheis were interested in the 44-foot strip of land. This strip had for some time been used by the parties in the vicinity as a private, if not a public, way. Pike street, as originally platted, extended both east and west of the land in controversy. Prior to these proceedings the city had done some work in grading, cutting down, and excavating the 44-foot strip in question. Neither Mrs. Treadway nor Mrs. Voorheis had any other interest in the land than the right of passage. The jury found that they were not damaged, and were not entitled to any compensation. The court was therefore correct in striking their names from the verdict, and instructing the jury that there was no proof that either had any interest in the land.

The judgment is affirmed.

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


text:
    SAGINAW BUILDING & LOAN ASSOCIATION v. TENNANT.
    1. Release—Certificate of Acknowledgment—Impeachment.
    Although a release of land from a mortgage is acknowledged in proper form, the certificate may be impeached by clear, convincing, and satisfactory proof that it is false and fraudulent.
    2. Mortgages—Liens—Adjustment of Equities.
    A decree giving to one whose mortgage on land has been released by a forged instrument a lien for $452.83 as against a subsequent mortgagee whose money was expended in putting a building on such land is justified by evidence that the present value of the land without the building is $250, that it was more valuable when the mortgage was given, and that about §200 had been expended on the building before the second mortgage was given.
    Appeal from Saginaw; Wilber, J.
    Submitted October 21, 1896.
    Decided February 2, 1897.
    Bill by the Saginaw Building & Loan Association against William M. Tennant and others to foreclose a mortgage. Lillie McBrian was admitted as a defendant, and complainant appeals from a decree awarding to her a first lien upon the premises.
    Affirmed.

      Wood & Joslin, for complainant.

      Chauncey H. Gage, for defendant McBrian.
   Moore, J.

This is a proceeding to foreclose a $900 mortgage, made by William M. Tennant to complainant, which mortgage bears date September 14, 1891, and is on lot 4, block 31, Saginaw. Prior to September 14, 1891, Tennant had given a mortgage for $500 on this lot and other property to Miss McBrian, the defendant. The record in the office of the register of deeds shows that on September 14, 1891, the lot in controversy was releasedfrom the McBrian mortgage. It is claimed that the complainant’s mortgage was given for money that was afterwards expended in putting a dwelling upon the lot in controversy. It is the claim of defendant McBrian that she never released lot 4 from her mortgage, and that it should be a prior lien to complainant’s mortgage. The case was tried in open court. The circuit judge found that the alleged release was a forgery; that there was due Miss McBrian, on her mortgage, $618.99; and gave her a first lien on the lot in controversy, for $452.83, and required her to pay one-half the costs of foreclosure. From that decree, complainant appeals. The errors relied upon .are:

‘First. The court should have sustained the part release of the McBrian mortgage, and it was error to declare it a forgery.

1 ‘Second. After finding the release a forgery, the court erred in adjusting the equities of the parties.

“Third. The court erred in fixing the McBrian lien at $452.83, instead of the value of the naked lot, which the evidence shows is from $200 to $300.

‘Fourth. The court erred in refusing to Sustain complainant’s mortgage as a first lien upon the property, and in refusing to grant a decree accordingly.”

The record contains nearly 200 printed pages. The questions involved are purely questions of fact, and it would not profit any one to embody in this 'opinion the evidence. It is doubtless true in relation to deeds, mortgages, and releases that “all presumptions are in favor of the certificate, and it must be treated with reasonable respect to the improbability of misconduct in a reputable officer, or of forgery which he ought to have discovered if it existed, and the burden of proof is on the party denying it to make out a plain case ” (Hourtienne-r. Schnoor, 33 Mich. 274; Johnson v. Van Velsor, 43 Mich. 219; Dikeman v. Arnold, 78 Mich. 470); and that a certificate in proper form can be impeached only by clear, convincing, and satisfactory proof that it is false and fraudulent (Barker v. Avery, 36 Neb. 599; Phillips v. Bishop, 35 Neb. 487; Insurance Go. v. Nelson, 103 U. S. 544; Russell v. Theological Union, 73 Ill. 337; Bailey v. Landingham, 53 Iowa, 722; Smith v. Allis, 52 Wis. 337; Barrett v. Davis, 104 Mo. 549). The testimony offered by Miss McBrian meets these requirements.

It is urged by complainant that, if the evidence establishes the release to be fraudulent, Miss McBrian should have a lien only to the present value of the vacant lot, and that this value is $250. The witnesses are not agreed as to the exact value of the vacant lot, but they are agreed that it was much more valuable when the mortgage was given than it is now. The record also discloses that something like $200 had been expended on the building put upon the lot before the mortgage to the complainant was given. The circuit judge undertook to adjust the equities between the liens held by defendant McBrian and the complainant. While he found there was due to Miss McBrian $618.99, he gave her a lien on lot 4 for only $452.83. We think this adjustment is fully justified by the evidence.

The decree is affirmed, with costs of this court.

The other Justices concurred.


author: Montgomery, J.

text:
    WALKER v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY COMPANY.
    1. Damages—Death by Wrongful Act—Parent and Child.
    The loss of occasional assistance in studies, rendered by decedent to his children, is not an element of damages for which recovery may be had in an action under the statute for death by wrongful act.
    2. Costs—Second Appeal—Printing Record.
    Upon a reversal on defendant’s second appeal, costs for printing were disallowed as to so much of the record and brief as related to questions passed upon in the former opinion.
    Error to Kalamazoo; Buck, J.
    Submitted October 22, 1896.
    Decided February 2, 1897.
    Case by Robert Walker, administrator of the estate of John Walker, deceased, against the Lake Shore & Michigan Southern Railway Company, for the alleged negligent killing of plaintiff’s intestate. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Boudeman & Adams and G. E. Weaver, for appellant.

      Osborn, Mills & Master, for appellee.
   Montgomery, J.

This case was once before the'court, and is reported in 104 Mich. 606. A new trial has been had, and the plaintiff on the second trial recovered a verdict of $7,360. The record is voluminous, containing a large number of assignments of error. The defendant contends that the evidence on the second trial presented a different case from that passed upon in our former opinion, and strenuously argues that the verdict should have been directed for defendant. A careful examination of the record has convinced us that in no fact material to the questions of law involved does this record differ from the former to such an extent as to change the result. We think the charge of the court upon the subject of defendant’s liability was fair, and within the lines of the former decision. We are constrained to hold, however, that there was error in receiving evidence bearing upon the subject of damages, and in the charge of the court upon this subject. The widow of deceased testified, under objection and exception, as follows:

Q. You may state what, if anything, your husband did towards assisting his children in the matter of their schooling.

“A. He did all that was necessary for him to do. They would bring their arithmetic and slate home some nights. He would help them with them.

Q. Now, have your children gone to school since their father’s death ?

“A. The youngest one is all; just the youngest one. At the time of his father’s death, the oldest one was attending Lake Street School. The oldest child was in the seventh grade, I think, at the time of his father’s death. Barbara was also going to school at Laké street. She was in the seventh grade.

Q. You state that they have not been sent to school since their father’s death. You may state why not.

“A. Because they didn’t have any chance.

Q. You state that they have had no chance. What do you mean by that, Mrs. Walker?

“A. Because I was not keeping house so that they could go. The oldest one hasn’t been at all since that.

‘ ‘ Q. Why not ?

“A. He did not have any home to stay to so he could go. I was working at housework. I went to keeping house about a year ago, and took in washings.

“Q. What did the boy do ?

“A. He worked for his grandfather a while, on the farm. Since then he has not done much of anything. He could get no work. The daughter worked out after a while. She worked in the card factory about a year. She was married last fall. I have tried to keep the youngest one at school most of the time.”

In his charge to the jury, the circuit judge said:

“In estimating the plaintiff’s damages, you would be at liberty to take into consideration the nurture, instruction, physical, moral, and intellectual training which you may be able to find by the testimony the children of John Walker would have received from their father had he lived during their minority; that is, until they attained the age of 21 years. ”

And also:

“And I desire, also, at this point, gentlemen, to withdraw from your consideration entirely one piece of the testimony which was offered in the case; and that is that after the death of J ohn Walker his family was broken up, and his widow and children went with his father to live. At the time that testimony was introduced the court had an idea that it might be of some value to you in determining this second proposition; that is, whether the family had been deprived of the value of Mr. Walker’s services in attention to, superintendence, and care of his family. On reflection, the court is satisfied that it would have no value in deciding that question, so that you will disregard that testimony entirely, for every purpose, in making up your verdict.”

It is very doubtful indeed if the effect of the testimony which the court recognized as improper could be counteracted by withdrawing it from the jury at that stage of the case. But we need not determine whether, if the instructions were otherwise proper, we should say that the error in the receipt of this evidence was cured, as we are of the opinion that there was error in permitting the jury, under the testimony in this case, to award a sum as damages for loss of nurture, instruction, and moral and physical training. It has been frequently decided by this court that in an action for the recovery of damages for death by wrongful act, based upon our statute, the damages to be awarded must be limited to the pecuniary loss sustained by those in whose interest the case is prosecuted. Chicago, etc., R. Co. v. Bayfield, 37 Mich. 214; Batch v. Railroad Co., 67 Mich. 394; Mynning v. Railroad Co., 59 Mich. 262; Van Brunt v. Railroad Co., 78 Mich. 530; Nelson v. Railway Co., 104 Mich. 582. In our former opinion in this case we said:

“We are aware that some courts have held that the jury may take into account the loss sustained by the children of the deceased for loss of physical care and mental and moral training of the father or mother, and we are not prepared to say that cases may not arise in which there may be sufficient proof of damages suffered by reason' of the withdrawal of these ministrations as to justify a recovery upon that basis. But it is distinctly against the previous holdings of this court to say that such elements may be considered, and the jury left to roam at large, and draw upon their imagination as to the extent of the injury suffered through this cause.”

On the second trial there was no evidence of the value of deceased’s instruction given to his children, nor of the value of any physical, moral, or intellectual training, nor could there well have been. It was not claimed that deceased was in any sense a tutor to his children. The most that can be inferred is that he rendered to them occasional assistance, such as a parent is supposed to render to his children, but which, in its very nature, is as incapable of measurement by a pecuniary standard as is the loss of love, affection, and sympathy. See Chicago, etc., R. Co. v. Austin, 69 Ill. 426; State v. Baltimore & Ohio R. Co., 24 Md. 106 (87 Am. Dec. 600). The rulings conflict with our former opinion, and cannot be sustained.

The judgment will be reversed; but we think it would be a hardship to require the plaintiff, upon this appeal, to pay for the printing of the voluminous record and brief, in which have been presented, in the main, the same points passed upon in our former opinion. We think the questions left us for consideration by our former opinion could have been presented by a record of 60 pages, and that a brief of 20 pages would have been ample for their discussion, and the defendant will be allowed for printing of brief and record of 80 pages.

The other Justices concurred.


text:
    McEWAN BROS. & CO. v. CARPENTER.
    Liens—Waiver—Evidence.
    Evidence that the owner of logs gave his notes for the saw bill> and that the sawyers discounted the notes, and protected them in the hands of the holders by collateral security, is insufficient of itself to establish a waiver of the lien for sawing.
    Error to Bay; Maxwell, J.
    Submitted November 12, 1896.
    Decided February 2, 1897.
    Replevin by McEwan Brothers & Company against Alice M. Carpenter and another. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Frank S. Pratt (Frank L. Fales, of counsel), for appellant.

      F. A. Cooley, for appellees.
   Moore, J.

The plaintiff is a corporation doing a lumber and sawmill business at Bay City. In May, 1895, it made a contract with Alvin Maltby, the effect of which was to give it the ownership of one-half of a quantity of Norway logs. One of its reasons for making the contract was to keep its mill employed. The logs were to be cut and delivered by Maltby, and were to be sawed by the plaintiff. Maltby did not deliver the logs fast enough to keep the mill running, and the mill was shut down for a little time. While the mill was idle, the booms were filled with other logs, so that there was no room for the logs in question in plaintiff’s booms, and some talk was had about keeping the logs back until there was room for them in plaintiff’s booms. They were not- kept back, but began to arrive, and Maltby made a contract with defendants to saw them for two dollars a thousand, nothing being said about the time of payment, or how long the lumber might be on the docks without charges. The plaintiff knew nothing about the. making of the contract at the time it was made, though it had been talked between Mr. McEwan and Mr. Maltby, and between Mr. McEwan and the manager of the defendants, that the logs might be sawed by the defendants. The record does not disclose that, at the time the contract was madé, defendants knew that the plaintiff owned an interest in the logs.

During the process of manufacture, estimates were made of the amount manufactured, and Maltby, on July 29, 1895, gave defendants his note for $1,300, due November 1, 1895. August 8th he gave his note for $1,350, due November 11th. August 22d he gave his note for $550, due November 25th. These notes were indorsed by defendants, and discounted at the Lumberman’s State Bank. When they were given, nothing was said about their being received in payment. Before any of these notes matured, and on October 8th, Maltby failed. On the 11th of October Maltby conveyed the half interest he- owned in the logs and lumber to the plaintiff, who made a demand on the defendants for the lumber, which was then piled on their docks. The defendants had been paid no part of the sawing bill, unless the receiving of the notes by them was a payment, and refused to deliver the lumber until the sawing bill had been paid. The plaintiff brought replevin, and by direction of the court the jury returned a verdict in favor of defendants.

Defendants learned of the ownership of the plaintiff in a part of the lumber just after Maltby’s failure. There was evidence showing that it was the custom to make the final adjustment of the saw bill after the lumber should be shipped, and that, at the time the last note was taken, defendants acted in the light of that custom, and that they also acted upon the assumption that Mr. Maltby would ship the lumber when he got a customer, and that defendants considered Mr. Maltby’s paper good at the time the notes were given, and that, at the time the notes were given, the defendants had no intention of resorting to a claim of • a lien on the lumber for the said bill. It was admitted that the $1,300 note, at maturity, was the property of the American Exchange National Bank of Detroit, and that the $1,350 note was owned by the Canadian Bank of Commerce. The proof disclosed that the defendants indorsed the notes before they were discounted, and afterwards paid them, and produced them upon the trial. Plaintiff offered in evidence a chattel mortgage dated January 11, 1896, given by the defendants to the Lumberman’s State Bank, to secure the payment of one note due November 1, 1895, for $1,300, one due November 11, 1895, for $1,350, and one due November 25th, for $550; and offered to show that the notes described in the chattel mortgage were the notes given by Maltby to defendants. Plaintiff also offered in evidence a chattel mortgage dated October 31, 1895, to the cashier of the Lumberman’s State Bank, securing the payment of all notes held by the bank on which defendants were indorsers. It also offered a paper made by defendants October 19,1895, transferring to Mr. Norrington a quantity of salt, consideration $10,000, and offered to show that, while the paper was made to Mr. Norrington, it was really held as a security by the bank. It also offered a bill of sale of a quantity of personal property, consideration $650, dated January 13, 1896, made by defendants to Norrington as cashier. On his own motion, the circuit judge refused to receive any of these papers, or any of this testimony, in evidence.

It is the claim of the plaintiff that the notes were received by the defendants as payment of the sawing bill, and that the giving of the chattel mortgages were acts of the defendants tending to show that they received the notes as payment, and had sold them, and appropriated the avails of them to their own use. It is also its claim that the papers should have been received as tending to show who owned the notes, and that they had passed from the possession and beyond the control of the defendants. The plaintiff also claims that, whether the notes were received by defendants as payment or not, their acts were such as to indicate an intention to waive any lien they had at the common law upon the lumber. If the testimony had been received, it would not have been inconsistent with defendants’ claim of a lien. We think the case is controlled by Hughes v. Tanner, 96 Mich. 113.

The judgment is affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    ALDRICH v. WAYNE CIRCUIT JUDGE.
    1. Writ op Assistance—Mandamus.
    The proper remedy, where a party to the record is aggrieved by an order granting a writ of assistance, is by appeal, and not by mandamus to compel the court to set aside the order.
    2. Same—Objections—Claim op Title.
    A mere verbal statement by one not a party of record, made in the course of proceedings for a writ of assistance in behalf of a purchaser at foreclosure sale, that he claims possession by virtue of a sale for taxes, is too informal to warrant consideration.

      Mandamus by Ralph L. Aldrich to compel Joseph W. Donovan, circuit, judge of Wayne county, to vacate an order granting a writ of assistance.
    Submitted November 10, 1896.
    Denied February 2, 1897.

      Ralph L. Aldrich, in pro. per.

      John H. Powell, for respondent.
   Hooker, J.

On September 9, 1896, John H:' Powell, for and on behalf of a client, Annie Oorbett, filed a petition for a writ of assistance in a foreclosure case, wherein Frank B. Leland and others were defendants, upon a decree duly enrolled in said court, and sale of the premises to said Annie Oorbett. Said petition shows that the sale was confirmed, and that the petitioner called upon the tenants in the houses upon the premises, viz., Stoddard and Spring, and showed to each of them, and to said Leland, who' is alleged to have owned the fee of said premises prior to the confirmation of said sale, the commissioner’s deed, and a certified copy of the order of confirmation. It also shows that said Leland assured petitioner that he had no other or further interest in said houses, and that Aldrich was then in possession of the house occupied by Spring, and had been for some months, and had been in possession of the Stoddard house for some days; that Spring and Stoddard, tenants in said houses, came into possession thereof after the commencement of the foreclosure suit, and are unwilling to attorn to the complainant; that Aldrich is the solicitor of record for Leland in said cause; and that Leland refuses to give complainant possession of said houses.

The circuit court ordered the writ to issue as prayed, and Aldrich, who was not named in the proceeding for writ of assistance, has filed his petition in this court for a mandamus to require the vacation of said order, alleging that on May‘15, 1896, he received from the city of Detroit leases of said premises for 99 years, upon tax sales, and has certificates of sale entitling him to other leases, and that on May 18, 1896, he entered into possession, and rented one of said houses to Spring, and has held possession and received rent of said house, and has been continuously in possession of said house since, and that on July 15, 1896, he entered into possession of another of said houses, which has been continuously occupied since July' 15, 1896, by said Stoddard, and that his possession has been open and notorious, and that he has claimed the absolute right of possession of said premises. His peti-. tion alleges, further, that, upon the hearing of the application for the writ of assistance, he appeared and stated that he was not a party to said foreclosure suit, and not interested in the result thereof, and that he objected to the issue of a writ that should run against his tenants, and, further, that Spring had vacated the house occupied by him, and that he (Aldrich) had rented it to N. E. Moore, who entered and then occupied the same. In response to the order to show cause, the circuit judge returns that, on the hearing of the application, “said Aldrich appeared, as solicitor for Leland, to oppose the motion, and interposed some verbal objections to the granting of the writ of assistance, but that respondent decided that the issue as to tax leases owned or claimed t® be owned by the solicitor for the defendant, who was the owner of the premises in fee, must be tried in some other way than by a verbal argument opposing the enforcement of the decree.”

The order complained of authorizes a writ to run against the persons named in the petition. None of them, except Leland, appear to have contested the application, by pleading of any sort, or by evidence in opposition. There is nothing in the record showing that this was not a proper order to make, except the oral statement of the solicitor for Leland that he claimed to be in possession: If the order made was an improper one, in view of the evidence, the parties to the record aggrieved by it should have appealed, which is the usual course in such cases. Baker v. Pierson, 5 Mich. 456; Howard v. Bond, 42 Mich. 133. If Aldrich was actually in possession, or wished to assert that Stoddard and Spring were his tenants in possession, the claim, to be of any avail, should have been shown to the circuit court in chancery in some more formal manner than by the oral statement of a claim.

The writ is denied.

The other Justices concurred.


text:
    MULHERN v. KENT CIRCUIT JUDGE.
    1. Discovery—Statutes—Interpretation. ■
    Tlie proceedings under a statute authorizing a preliminary examination of the plaintiff or defendant in an action at law, for the purpose of affording a remedy to the adverse party analogous to that afforded in equity by a bill of discovery, are limited, in the absence of anything in the act itself indicating a contrary intent, by the rules applicable to a discovery in equity.
    2. Same—Discrimination Between Suitors—Evidence.
    No unconstitutional discrimination between, suitors is made by a statute permitting the deposition of a party to an action at law, taken at the instance of the adverse party, to be introduced on the trial at the option of the party taking the same.
    3. Same—Circuit Court Commissioners—Constitutional Law.
    The judicial power to determine what evidence is relevant to an issue at law, sought to be conferred upon circuit’ court commissioners by Act No, 181, Pub. Acts 1895, authorizing the examination of a plaintiff or defendant before a commissioner, at the instance of the adverse party, as to facts “relevant to the issues involved,” and giving testimony so taken the force of evidence, without providing for a review by the court of the rulings made on the examination, is in excess of their constitutional powers.
    4 Same.
    The unconstitutionality of such provision renders the entire act invalid, as it is not clear that the legislature would have permitted rulings by the commissioner had it known that he did not possess the necessary judicial qualifications for a final determination of the questions involved.

      Mandamus by Hattie Mulhern to compel William E. Grove, circuit judge of Kent county, to vacate an order declaring void certain proceedings under Act No. 181, Pub. Acts 1895, to compel an examination before a circuit court commissioner of the defendant in a suit for slander instituted by relator.
    Submitted November 24, 1896.
    Denied February 2, 1897.

      Maher & Salsbury, for relator.

      Butterfield & Keeney, for respondent.
   Hooker, J.

The relator, having brought an action for slander against one Dr. Jackson, before filing a declaration therein, made an affidavit that she verily believed :

‘ ‘ That it is necessary that the testimony and deposition of said defendant be taken in pursuance of the provisions of Act No. 181 of the Public Acts of the legislature of the State of Michigan of the year 1895, to enable this deponent to plead and declare in respect to the meaning of the various statements contained in said publication, of which Exhibit A, hereto annexed, is á copy, and in respect to the matters in which it is claimed that the said plaintiff violated any of the by-laws, rules, regulations, or discipline of the said Fountain Street Baptist Church.”

This affidavit was made in reliance upon Act No. 181,' Pub. Acts 1895, and a summons was taken from one McGill, a circuit court commissioner, requiring the defendant to appear before said commissioner for examination. Before the return day, these proceedings were stayed by an order made by Judge Grove of the Kent county circuit court, pending a motion to set aside such proceedings. This motion was heard on April 20, 1896, by Judge Adsit, of the same circuit, and, the matter being taken under advisement by him, has never been decided, nor has such stay been set aside or terminated by any action of the circuit court. On June 26, 1896, the plaintiff filed her declaration, and on September 2, 1896, she began another proceeding before said commissioner, basing it upon an affidavit showing that said cause was at issue, and stating that she desired to take the deposition of the defendant, under the provisions of said act. Summons was issued, but the proceeding was declared void upon a motion before Judge Grove, and a mandamus is asked to require the vacation of such order.

Counsel for the defendant contend:

1. That the law is unconstitutional for the reason that it discriminates between suitors, and because it attempts to confer upon the judge at chambers and circuit court commissioners judicial powers beyond those which, under the Constitution, they may lawfully exercise.

2. That, if the act is constitutional, its title limits relief to discovery, which has a well-defined meaning, and is limited to such discovery as under the practice in equity might have been allowed, which excludes the right to examine the defendant in this proceeding.

3. That this proceeding was begun in violation of a stay of proceedings issued in a previous proceeding of the same kind, which is still pending.

4. That no motion to vacate the order was ever made.

This act provides that—

“In all proceedings and actions * * * the testimony of' a party * * * may be taken by deposition at the instance of the adverse party, at any time after the commencement thei’eof, and before judgment, * * * before a judge at chambers or a circuit court commissioner. * * * The attendance of the party to be examined may be compelled upon subpoena, * * * and such examination.shall be subject to the same rules as that of any other witness, but he shall not be compelled to disclose anything not relevant to the controversy. If * * * taken before issue joined on the part of the plaintiff, the notice of taking the same shall be accompanied by an affidavit * * * stating the original nature and object of the action; that discovery is sought to enable the party to plead, and the points upon which such discovery is desired; and such examination shall be limited to the discovery of the facts relevant to the points so stated, unless the court or presiding judge, or such circuit court commissioner, * * * shall, before the examination is begun, by order, further limit the subjects. * * * Such examination shall not preclude the right to another examination after issue joined, upon all the issues in the case, and the party exámining shall, in all cases, be allowed to examine upon oral interrogatories. * * * In any examination * * * the judge or commissioner * * * shall have power * * * to compel the party examined to answer all questions relevant to the issues involved, and also to compel the production, by the party examined, of books and papers relevant and pertinent to the issues, and may enforce such answers, and the production of such books and papers, by contempt proceedings. The depositions taken * * * may, at the option of the party taking the same, be used as evidence at the trial. * * * If any party * * * neglect or refuse to appear and testify, or to produce any books and papers lawfully required, * * * he may be punished as for a contempt, and his pleadings stricken out, and judgment given against him as upon default or failure to plead.”

If this act were to be given the broad construction’ for> which counsel for the relator contendía party plaintiff or defendant would have the right to examine his adversary, both before and after issue joined, upon any and every subject relevant to the case. This is an extension of the rule in equity, which required a decree of court, authorizing discovery, and settling the interrogatories to be answered, or subjects upon which the discovery was to be had. And while many of the States—especially the code States—have statutes permitting discovery in proceedings at law, most of them require an order of court and the settling of interrogatories; and in construing such statutes the trend of judicial opinion seems to be towards a denial of an unlimited right of examination, and confining it to such subjects as will enable the party requiring it to make out his own case. Under the common-law procedure act of England, which gives the right to deliver interrogatories to the opposite party as to any matter on which discovery may be sought, it was held in an opinion by Lord Campbell:

‘ ‘ That the section * * * is intended to apply to cases only where the matters inquired into would be evidence in the cause, and that it was not intended thereby to give one party the power of asking the other how he intends to shape his case^ * * * We were much pressed with the recent case of Flitcroft v. Fletcher, 11 Exch. 543. If the court there meant to decide that the defendant may always ask the plaintiff to declare on oath how he means to shape his case, we are not prepared to assent to it; and we should not feel ourselves bound, by a decision of this nature, to the same extent as where a decision can be reviewed on error, even if the case were precisely in point.” Edwards v. Wakefield, 6 El. & Bl. 468.

And in Pye v. Butterfield, 5 Best & S. 837, it is said:

“But I rest my judgment on the ground that, in suits pending in the courts of common law, the exercise of authority given by the common-law procedure act must be governed by those principles which, for a long series of years, have been recognized in courts of equity, where the law as to discovery has grown up and been matured. The legislature have invested the courts of law with this authority in order that parties might get relief without incurring the additional expense of going to a court of equity. They must be taken to have done this with full knowledge of the principles and rules according to which this subsidiary power had always been administered in courts of equity, and, as they have not expressly given larger power, they may have intended that it should be exercised with the same limitations. But, whether we ■ are fettered or left free to exercise our judicial discretion, we ought to abide by the principle on which this branch of jurisprudence has for centuries been administered in courts of equity.”

The same tendency is found in this country. In Wilson v. Webber, 2 Gray, 558, it is said that—

“The [Massachusetts] statute authorizes the filing of interrogatories for the discovery of facts and documents material to the support or defense of the suit, to be answered on oath by the adverse party. * * * The main purpose of these provisions of the practice act was to substitute, in place of the tedious, expensive, and complex process of a bill of discovery on the equity side of the court, an easy, cheap, and simple mode of interrogating an adverse party, as incident to and part of the proceedings in the cause in which the discovery was sought. It was not intended to make the parties to a cause witnesses, who might, at the pleasure of the party interrogating, be made to testify respecting the whole case; but only to give a limited right to obtain evidence from an adverse party, in analogy to the well-settled rules regulating bills of discovery in the court of chancery in England.”

The court of appeals in New York has construed in the same manner similar provisions of the Code of that State. Glenney v. Stedwell, 64 N. Y. 120, 123. Judge Eolger, speaking for the court, said:

“We find that in reporting the provisions of the Code for the examination of parties to actions, which prohibit the bringing of a bill of discovery in one action in aid of another action, the commissioners meant them to be a means of accomplishing substantially the same ends which were attained in a court of equity in the exercise of its jurisdiction to compel a discovery.”

The title to the act is:

“An act to provide for proceedings in the nature of proceedings for discovery in actions or proceedings commenced in any of the courts of record of this State, and to provide for the examination of parties to such proceedings, and to compel the production of books and papers.” Pub. Acts 1895, Act No. 181.

In view of the fact that this court has held that bills of discovery are obsolete, it is a natural inference that the legislature provided a substitute for that practice, and that it should be simplified as far as possible; and, while we may doubt the wisdom of allowing discovery without an order of the court, fixing the matter to be inquired about, the act is not to be held invalid unless it infringes the Constitution or is so crude that it cannot be given effect. We may, however, follow the cases cited, and limit the proceedings under it by the rules uniformly recognized as applying to discovery, a term having a well-defined meaning. Especially may we do this inasmuch as the title does not necessarily imply that it was the design to permit parties to require their adversaries to show the matters upon which they rely to meet the case made against them.

We are not able to say that the act is unconstitutional upon the ground that it discriminates between suitors, because it denies to the party who testifies the right to introduce the testimony, while it permits his adversary to do so. The object of the act, like the proceeding in equity, is to give to the moving party the benefit of information to be derived from his adversary. The testimony is in the nature of an admission, and we see no reason why it should not be made available in this way.

A more troublesome question arises in connection with those provisions which seem to confer upon the judge at chambers and the circuit court commissioner the power to determine what is relevant to the issue, and to enforce answers by proceedings for contempt. It will be noticed that the act gives the power to the commissioner to enforce compliance with the statute by proceedings for contempt, and not a remedy to the party to enforce his rights by means of contempt proceedings; thereby, in our opinion, indicating that the legislature meant that the refractory witness might be punished by such a judge or commissioner. The extent of the powers of these officers is not clearly defined, and this court has never attempted to lay down a rule by which it could be unerringly determined. It has, however, decided that, with the exception of certain things which had been lawfully done by them prior to the adoption of the present Constitution, such officers have no authority to perform acts strictly judicial. It has not been the practice for officers empowered to take testimony to attempt to do either of those things, and we have understood the consensus of opinion to be that they were beyond their power. As to contempts, there can be no question of the correctness of this view, while the constitutionality of an act authorizing such officer to decide upon questions of relevancy and exclude or admit answers is perhaps more questionable. Our Constitution has limited the powers which maybe conferred upon circuit court commissioners by vesting them with judicial powers not exceeding those of a judge at chambers. And while this court has recognized the authority of the commissioner to exercise judicial power in some instances, it seems to confine such authority to cases where such power was exercised by a judge at chambers before the adoption of the Constitution, and it has declared that the Constitution (article 6, § 16) “permitted giving to the commissioners judicial powers in a very subordinate sense only; powers of the sort that are usually denominated quasi judicial.” See Burger’s Case, 39 Mich. 204; Risser v. Hoyt, 53 Mich. 185.

Counsel for the relator cite us to the case of Shepard v. Kent Circuit Judge, 109 Mich. 606, which they say decides that the power to punish for contempt is within the authority of a judge at chambers. That case arose under chapter 278 of 2 How. Stat., which is an act providing for proceedings at law in the nature of a creditor’s bill. The act provides that, upon a satisfactory showing by affidavit, a judge or commissioner may require a person to appear before himself or a referee for examination in relation to the indebtedness of such person, etc., to the judgment debtor, etc. The validity of such act has been questioned, first in Reed v. Baker, 42 Mich. 272, where it was severely criticised. It was the basis of a proceeding in which the bill of complaint -was dismissed by this court in the case of Prescott v. Pfeiffer, 57 Mich. 23, but in that case no constitutional question appears to have been raised. Again, in the case of Lee v. Kalamazoo Circuit Judge, 101 Mich. 407, this act was considered, and it was held that it would support proceedings tó examine the judgment debtor, and to discover his assets. It has never gone further. The statute contains the following provisions, viz.: “ The judge may allow to the judgment creditor, or to any party examined, whether 'a party to the action or not, witness fees and disbursements, and a fixed sum in addition, not exceeding $30, as costs.” 2 How. Stat. § 8114. “Any of tbe proceedings authorized by this act to be had before the judge may be had before him in court, at any session of the eircuit court, or at chambers.” Id. § 8116. In the Shepard Case proceedings were taken before the circuit court (not the judge) to punish a witness for contempt, consisting of a refusal to appear before a commissioner, apparently upon a subpoena from the. commissioner. It was contended that this act did not authorize proceedings in court to punish for the contempt, but it was held that section 8115, 2 How. Stat., contemplated such action, and the power of the circuit judge at chambers does not appear to have been questioned in the case. So far as the proceedings for contempt are concerned, we might perhaps sustain the act, leaving the circuit court to deal with such proceedings, as was done in the case of Shepard v. Kent Circuit Judge.

The object of the act under discussion is to enable a party to obtain discovery of matters relevant to the issue. It as plainly attempts to deny discovery as to other matters. It names an officer supposed to possess the necessary power to determine the question, and it also undertakes to give the testimony taken the force of evidence. It makes no provision for exceptions, or review by the court of the rulings of the commissioner, as in the case of depositions. Such rulings are final, and such irrelevant matters, if admitted, may come before the jury. Rulings upon the introduction of testimony are vital to the determination of the case. They may or may not constitute error calling for its reversal,, and, where decisive of the right of the jury to.hear and act upon testimony, cannot be called quasi judicial acts. They are strictly judicial, and must be determined by an officer having judicial powers, and usually, if not necessarily, the one who is to decide the case. We must, therefore, hold that the provision permitting the judge or commissioner to pass upon the relevancy of testimony to be used upon the trial was invalid, and, as it is plain that an attempt was made to protect the party examined from improper examination, we cannot say that this provision should be eliminated, and the testimony taken with objections and exceptions, as in case of taking depositions; nor do we feel at liberty to hold that the commissioner may pass upon the question of relevancy, but that the testimony thus taken cannot be used as evidence, inasmuch as the act seems to be designed to enable parties to take testimony which may be used in the case. We are not sure that the legislature would have permitted rulings by the officers named had it supposed that they did not possess the necessary judicial qualifications for a final determination of such questions, and we think it prudent to hold the entire act invalid, leaving it to the legislature to repair any possible mischief by such legislation as may be deemed necessary.

The writ is denied.

The other Justices concurred.