author: Stone, J.

text:
    SMITH v. HAIGHT.
    1. Use and Occupation— Landlord and Tenant — Bankruptcy— Contracts — Statutes.
    In an action for use and occupation against the grantee of a trustee in bankruptcy, where the trustee and his grantee refused to recognize plaintiff’s title, claiming fraud in the conveyance to plaintiff by the bankrupt, also refusing to recognize an oral lease of the premises by plaintiff to the bankrupt, and also claiming hostile possession of the trustee by reason of the amendment to the bankruptcy aet of June 25, 1910 (30 U. S. Stat. chap. 541, § 47, 36 U. S. Stat. chap. 412, § 8), providing that the trustees, as to all the property coming into the custody of the bankruptcy court, shall be deemed vested with all the rights and remedies of.a lien creditor, and as to all other property, not in the custody of the bankruptcy court, with all the rights and remedies of a judgment creditor holding an execution duly returned unsatisfied, no contract relations existed between plaintiff and defendant from which the relation of landlord and tenant could be implied, and that, notwithstanding a decision in an equity suit to set aside the conveyance sustaining its bona fides in favor of plaintiff as defendant.
    2. Same — Action—Contract—Remedies.
    An action for use and occupation, being founded on contract, express or implied, will not lie where the occupancy is adverse, the owner’s title being in dispute; and a trespasser cannot be made liable for rent, as upon an implied contract to pay, by the landlord’s notifying him that he would be expected, if he stayed, to pay rent.

    3. Same — Assumpsit—Tort—Trespass—Remedy—Pleading.
    Where plaintiff’s declaration was based upon the common counts, no attempt being made to waive the tort as provided in the statute (section 11207, 3 Comp. Laws), he cannot recover under his pleading; his remedy being an action of trespass or tort.
    Error to Muskegon; Sullivan, J.
    Submitted June 16, 1915.
    (Docket No. 50.)
    Decided October 29, 1915.
    Assumpsit by Frank M. Smith, against Louis P. Haight for use and occupation. Judgment for plaintiff on a directed verdict. Defendant brings error.
    Reversed.

      William Carpenter, for appellant.

      Hilding & Hilding and Charles A. Watt, for appellee.

      As to when action for use and occupation of premises will lie, see notes in 14 L. R. A. 156, 26 L. R. A. 802.

   Stone, J.

This case is here upon writ of error to the circuit court for the county of Muskegon, wherein a judgment was rendered for the plaintiff in the sum of $3,175 and costs. The case involves some of the facts that were involved in the equity case of Haight v. Smith, 178 Mich. 392 (144 N. W. 830). The instant case is in assumpsit for use and occupation of certain premises bought by the plaintiff from the Ross Manufacturing Company, a Michigan corporation, on January 7, 1911. On the 2d day of February following the said corporation was declared a bankrupt on its own petition. It was at that time a tenant of the plaintiff of the premises, at a rental of $100 a month. After the adjudication the premises were in the possession of a caretaker for a time. Later a trustee in bankruptcy was appointed, who took possession of the bankrupt’s property. At the time he took possession, the trustee supposed that the premises in question belonged to the bankrupt’s estate, and he took possession of them. He discovered afterwards, by an examination of the books of the corporation, that the premises had been conveyed to the plaintiff by deed. The trustee never believed that said conveyance to the plaintiff •was a valid one, and he denied all rights of the plaintiff therein. On the 22d day of April, 1912, the trustee sold the greater part of the assets of the bankrupt estate to the defendant. Among the terms of the sale was an agreement by the defendant to indemnify and save harmless the trustee from the plaintiff’s claim for rent of the premises. That agreement by the defendant was as follows:

“Now, therefore, in addition to the payment of $4,-600 in cash as above stated, I do hereby assume the payment of all rents qnd royalties due from the said bankrupt estate, its receiver or trustee (from the time of the filing of the petition in bankruptcy up to the present time) to F. M. Smith' of Allegan, Mich.; but reserve the right to contest all claims therefor, and to defend against them, the same as said bankrupt estate might.”

In taking possession of the property which he had bought from the estate and which was situated on the premises in' question, the defendant took possession of said premises, and continued in possession from April 22, 1911, until March 9, 1914. Prior to the sale from the trustee to the defendant, the plaintiff had sent, a bill to the trustee for rent of the premises at $100 a month. Nothing was paid thereon by the trustee, and he denied the right of the plaintiff to either rent or any interest in the property. On December 8, 1911, the plaintiff, by his attorney, wrote to the defendant inclosing bills for rent of the premises in question, which he claimed, from June 7, 1911, to January 7, 1912, at $100 per month. The defendant did not answer this letter, but in the following month of January, 1912, he purchased from the trustee all of the estate’s interest in its real estate, and all rights of action against the plaintiff, and filed a bill in equity to set aside the plaintiff’s claimed title to the premises in question. Haight v. Smith, 178 Mich. 392 (144 N. W. 830).

In January, 1912, and before the bill to set aside plaintiff’s title was filed, the plaintiff filed with the referee in bankruptcy a petition praying that the trustee be required and directed to pay rent for the premises involved. The trustee answered the petition in the following language:

“This trustee admits that the said Smith did present to him certain statements of account, whereby he claimed rent for said premises, but. denies that this trustee ever rented said premises from him, or ever agreed to pay him for the occupation thereof, or ever had any contract relations with him, or ever admitted any liability of any kind for rent of said premises, or ever admitted that the amount claimed therefor was a reasonable charge, or that he is or ever was indebted to him therefor.”

This court having decided, in Haight v. Smith, supra, on January 5, 1914, that the deed from the Ross Manufacturing Company to the plaintiff was valid, this action for use and occupation of the premises from April 22, 1911, to March 9, 1914 (at which time the premises were vacated by defendant), was brought in assumpsit, and at the trial a judgment was rendered on a verdict directed by the court upon the basis of $100 per month. There was evidence that a fair rental of the premises was $30 per month, but there was a conflict in the evidence upon that subject.

The substantial questions involved, and raised by the assignments of error, are:

(1) Did the relation of landlord and tenant exist between the plaintiff and defendant, so as to entitle the plaintiff to recover in an action of assumpsit for use and occupation?

(2) Was the defendant bound, under the circumstances, to pay to the plaintiff a rental of $100 per month by reason of the bills sent the defendant by plaintiff’s attorney in December, 1911?

The first question was raised on the defendant’s motion to instruct the jury to render a verdict in favor of the defendant, and the court’s refusal to so instruct. Both questions are raised on the charge of the court. The appellant’s position is well stated by his counsel as follows:

“Under the ruling of this court in the case of Haight v. Smith, 178 Mich. 392 (144 N. W. 830), the defendant concedes that the property, the use of which is involved in this case, is the property of the plaintiff. He also concedes that he occupied that property from April 22, 1911, to March 9, 1914, and that the plaintiff is entitled in a proper form of action to a reasonable compensation for the premises. It is his contention, however, that the relations of the parties were, from the outset, entirely adverse; that the rights of the plaintiff to the property, and to its possession, were disputed; that the relation of landlord and tenant never existed between them, and that there were no contract relations from which that relation could be implied. The case, therefore, comes under repeated decisions in this State, that an action for use and occupation must rely only on a contract, express or implied, where the relations of landlord and tenant exists.”

The following cases are cited in support of this position: Dwight v. Cutler, 3 Mich. 566 (64 Am. Dec. 105) ; Hogsett v. Ellis, 17 Mich. 351; Marquette, etc., R. Co. v. Harlow, 37 Mich. 554 (26 Am. Rep. 538) ; Lockwood v. Boom Co., 42 Mich. 536 (4 N. W. 292) ; Henderson v. City of Detroit, 61 Mich. 378 (28 N. W. 133) ; Ward v. Warner, 8 Mich. 508.

As we understand the plaintiff, he does not claim that the defendant ever contracted with him for the use and occupation of the premises, but it is his claim that the manner in which the defendant came into possession, in itself, made him a tenant of the plaintiff. It appeared at the trial that the Ross Manufacturing Company had been in possession under an oral lease from the plaintiff. The trustee never recognized that lease and never claimed anything for it. It was not considered an asset of the estate, and was not sold. On the contrary, the trustee and the defendant claimed that the conveyance to the plaintiff was fraudulent and void as to creditors.

Our attention has been called to the amendment to the bankruptcy act of June 25, 1910 (36 U. S. Stat. 840), wherein it was provided that:

“The trustees, as to all property in the custody or coming into the custody of the bankruptcy court, shall be deemed vested with all the rights, remedies, and powers of a creditor holding a lien by legal or equitable proceedings thereon,’and also, as to all property not in the custody of the bankruptcy court, shall be deemed vested with all the rights, remedies, and powers of a judgment creditor holding an execution duly returned unsatisfied.”

It is the claim of the appellant that the trustee was therefore, by force of the bankruptcy law, hostile to the plaintiff, and whatever possession he took of the plaintiff’s property he took under an adverse claim, and not under any lease to the corporation, and that possession of the defendant was the same as that taken by the trustee. We think that the conduct both of the trustee and of the defendant was consistent with this claim. The trial court in directing a verdict referred to the cases of Thompson v. Sanborn, 52 Mich. 141 (17 N. W. 730), and Ducey Lumber Co. v. Lane, 58 Mich. 520 (25 N. W. 568). A reference to those cases will show that in both of them the relation of landlord and tenant existed. In the last cited case the court said:

“The defendant asserted no adverse right to the use or occupancy of the dock, nor did he deny that plaintiff was entitled to compensation for such use.”

It is elementary that an action fór use and occupation, being founded on contract, express or implied, will not lie where the occupancy of the one sought to be charged has been tortious, he being a trespasser, or has been under an adverse claim, as where he has acquired, and maintained under a different or adverse title, or disputes the present owner’s title; and a mere trespasser cannot be made liable for rent as upon an implied contract to pay, by proof that the landlord notified him that he would be expected, if he stayed, to pay rent at a specified rate, and rendered monthly bills therefor, which the occupant refused to pay. 39 Cyc. pp. 860-863, citing many cases, including Gallagher v. Himelberger, 57 Ind. 63, upon the last point.

We are of the opinion that the' cases cited support the position of the defendant, and that they apply to the facts in this case. It follows that the plaintiff cannot recover under his declaration, but that his remedy is by an action of trespass or tort. Whether he might waive the tort and recover in assumpsit has not been discussed by counsel, and the declaration being really upon the common counts, the statute (section 11207, 8 Comp. Laws) not being referred to or counted upon, nor the fact of the trespass or tort alleged in the declaration, the plaintiff is not entitled to recover upon this theory. Weidman v. Willson, 153 Mich. 82 (116 N. W. 539).

We are of opinion that the court erred in directing a verdict for the amount indicated, and the judgment of the circuit court is reversed, and a new trial granted.

Brooke, C. J., and Kuhn, Ostrander, Bird, and Steere, JJ., concurred. Moore, J., did not sit.

This case was originally assigned to the late Justice McAlvay.


source: Caselaw Access Project

author: Bird, J.

license: Public Domain

text:
    ROGERS v. DAVISON.
    1. Taxation — Description—Notice to Redeem.
    Where complainant acquired title to land, which was assessed as one parcel, by the tax deed of 1892, and, in order to acquire such title, was required to pay taxes subsequently assessed on the premises as two pareéis, it was unnecessary, in the notice to redeem, to state the separate amounts assessed to each parcel, as defendant would have to pay the total amount to redeem either parcel.
    2. Same — Description—Notice to Redeem — Excessive Demand-Defective Notice.
    Complainant’s demand, in the notice served on defendant, for $10.00, as for two descriptions, was excessive, where the statute allows $5.00 for each description; but the notice was not thereby invalidated, as the “amount paid” in taxes, required by the statute, was correctly given.
    3. Same — Notice to Redeem — Easements.
    Where the patentee of land sold part of the premises, reserving a roadway connecting the two parcels, and later sold the other parcel, the title to both becoming merged in one owner, the easement was extinguished, and the notice to redeem from a tax sale was not defective because not served upon the patentee.
    Appeal from Alpena; Emerick, J.
    Submitted October 14, 1914.
    (Docket No. 94.)
    Decided October 29, 1915.
    Bill by Austin L. Rogers against Robert A. Davison to remove a cloud from complainant’s title, and to restrain an action at law. From a decree for plaintiff, defendant appeals.
    Affirmed.

      O’Brien & Francis, for complainant.

      D. W. Closser (Joseph H. Cobb, of counsel), for defendant.
   Bird, J.

On December 5,1904, complainant, Rogers, bought from the State the southeast ¼ of the northwest ¼ and the northeast ¼ of the southwest ¼ of section 10, township 29 north, range 6 east, for the delinquent taxes of 1892. At the same time he was required to and did buy the title of the State for the delinquent taxes of 1890, 1893, 1894, 1898, 1899, and 1900. He also purchased the State bids for the taxes of 1901,” and he paid the taxes levied thereon for the years 1902 and 1903.

On the 16th day of February, 1906, complainant caused to be served upon defendant, Samuel A.. Davison, the owner of the original title, the statutory notice to redeem. Davison did not redeem, but after the time had expired in which he could redeem he commenced an ejectment suit against the tenants of complainant, whereupon complainant filed this bill to remove the cloud from his title, and, further, to restrain the proceedings at law to which he had not been made a party. Two questions are raised on appeal by the defendant:

(1) Was the notice to redeem defective?

(2) Was the notice served upon all of the parties in interest ?

1. To support this contention two defects are pointed out:

(a) That the notice fails to give to each parcel of land described and assessed separately the amount paid for each description; (6) that two descriptions were charged for, whereas only one should have been demanded.

(a) It is said in Jackson v. Mason, 143 Mich. 355 (106 N. W. 1112), that:

“We have held that, where a notice was based upon several years’ taxes, a notice giving the aggregate was proper. Williams v. Olson, 141 Mich. 580 (104 N. W. 1101) ; Tucker v. Van Winkle, 142 Mich. 210 (105 N. W. 607). This was for the reason that to repurchase, all taxes upon the description must be paid. Where, however, as in this case, there are various descriptions separately sold, the amount paid for each should be given in the notice, failing in which the notice is not a compliance with law.”

Other holdings to the same effect are Duncan Land, etc., Co. v. Busch, 145 Mich. 1 (108 N. W. 494) ; Sanborn Co. v. Johnson, 148 Mich. 405 (111 N. W. 1091) ; Haden v. Closser, 153 Mich. 182 (116 N. W. 1001); McRae v. Barber, 167 Mich. 314 (133 N. W. 12).

These cases are relied upon to show the defect claimed. The trial court held, in substance, that these cases were not in point, because the instant case presents a different situation. Attention is called to the fact that the premises were assessed and sold in 1892 as one parcel. Subsequent to that year the premises were assessed as two parcels, because owned separately. Complainant acquired title thereto by the tax deed of 1892, and in order to acquire such title he was obliged to pay all other taxes which had become a lien thereon. In view of this the chancellor held that it was unnecessary to state in the notice the separate amounts assessed to each parcel, because the defendant was obliged to pay all those sums whether he redeemed the whole or only one parcel. This distinction seems to be well taken, and to be supported in Loud v. O’Brien, 167 Mich. 206 (132 N. W. 495).

(6) But if it is true that there was no necessity for the annual taxes to be apportioned to the two parcels, then we are of the opinion that only one description should have been charged for, and that the demand in the notice for $10 for two descriptions was an excessive demand.

The question then arises whether the excessive demand invalidates the notice. We held in Teal Lake Mining Co. v. Olds, 178 Mich. 335 (144 N. W. 845), that an excessive demand of the “amount paid” was fatal. The reason for so holding was because the form of the notice prescribed by the statute (Act No. 204, Pub. Acts 1899) makes it mandatory that the “amount paid” be stated. There is no claim here that there was an excessive demand of the “amount paid.” The excessive demand arose out of the statutory permission to charge $5 for each description. The court is of the opinion that a distinction should be made between these demands. The form of the notice prescribed by the statute includes a demand for $5 for each description, but it does not require the aggregate amount for several descriptions to be stated. When this demand is made in the notice and followed by the descriptions, the person upon whom the notice is served can make the computation as well as the owner of the tax title. Presumably the legislature required the “amount paid” to be stated in the notice, because of the difficulty of its ascertainment. Its failure to require the total amount claimed for descriptions to be stated was undoubtedly due to the fact that the person receiving the notice could gather the information from the face of the notice and make the computation himself, if he chose to do so. In the case before us, if the original owner believed that the demand for descriptions was excessive, he had the right to tender the amount for one description, and, had he done so, his redemption would have been effective. We are therefore of the opinion that, where there is a failure to state in the notice the aggregate amount claimed for descriptions, or where there is an excessive demand for descriptions, the notice should not by reason thereof be invalidated.

2. It is claimed by appellant that the notice to redeem should have been served upon Robert McLeod, who patented the land. McLeod erected his buildings on the north 40, and afterwards, when he sold the south 40, the following reservation was made in the deed:

“The party of the first part reserves the right of a road two rods wide from the northeast corner of the said parcel of land above described, and running south to Wolf creek.”

Subsequently McLeod sold the north 40, and later the title thereto became vested in the owner of the south 40.' The wording of this reservation would not justify us in construing it as an exception to the grant, but it undoubtedly did create an easement. Bolio v. Marvin, 130 Mich. 82 (89 N, W. 563). When the title to both forties became vested in the same grantee, the easement was extinguished by operation of law. This was the view of the chancellor, and we are in' accord with it.

It follows from what has been said that the decree of the trial court must be affirmed.

Brooke, C. J., and Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred.

The late Justice McAlvay took no part in this decision.


author: Brooke, C. J.

text:
    PRICE v. TOWNSHIP BOARD OF OAKFIELD TOWNSHIP.
    1. Statutes — Construction—Retroactive Effect.'
    Legislation is to have prospective operation only, except when the contrary intent is clearly expressed.
    2. Intoxicating Liquors — Approval of Liquor Bond — Township Boards — Discretion—Statutes.
    Respondent township board was not justified, under Act No. 169, Pub. Acts 1915, in exercising a discretion to reject relator’s application and bond for a liquor license, said act having gone into effect subsequent to the filing of relator’s application and bond; and it was the duty of said board to act fairly and in good faith, and not captiously, in the approval of bonds, and if the applicant had brought himself within the terms or conditions imposed by the statute, his application should have been granted and his bond approved.

    3. Same — Township Boards — Approval of Liquor Bond — Mandamus.
    Relator had the right to demand from the township board action on his application and bond under the law as it stood when they were filed; and the captious refusal of respondent to perform its legal duty being unwarranted, mandamus will issue to compel same.

      Certiorari to Kent; McDonald, J.
    Submitted October 27, 1915.
    (Calendar No. 26,981.)
    Decided November 10, 1915.
    Mandamus by Raymond A. Price against the township board of Oakfield township to compel respondent to approve the retail liquor bond of relator. An order was entered denying the writ. Respondent brings certiorari.
    Reversed, and remanded with directions that the writ issue.

      Thompson & Temple, for relator.

      Earl F. Phelps, for respondent.

      The matter of discretion in granting of liquor licenses is discussed in notes in 21 L. R. A. 580, 18 L. R. A. (N. S.) 386.

   Brooke, C. J.

Relator’s petition to the circuit court for a writ of mandamus shows that he conducted a saloon, in the village of Harvard in the township of Oakfield, from the 1st day of May, 1913, to the 1st day of May, 1914; that on the 16th day of April, 1914, he presented his application to the board of said township, which was approved, and that on the 23d day of April, 1914, he presented to the said board a bond in accordance with the statute, and that on the 27th day of April, 1914, the said board refused to approve said bond; that he thereupon brought mandamus proceedings to compel the approval of said bond, in which proceeding he was successful, this court having affirmed the decision of the lower court. Price v. Township Board of Oakfield, 182 Mich. 216 (148 N. W. 438). The bond filed by relator was signed by a bonding company. The statute authorizing the acceptance of such bond provides that if a majority of the electors of a township, village, or city should petition the board thereof not to accept a surety company bond, it would be unlawful so to do; that upon serving the order of affirmance upon the said board, the board convened-as therein ordered, whereupon a petition was filed, under the statute as aforesaid, objecting to the approval by the said board of said bond, for the reason that it was signed by a bonding company; that, the board being brought before the circuit court for said county in contempt proceedings, the circuit court held that the filing of said petition was sufficient excuse for noncompliance with said writ of mandamus; that, being desirous to engage in the saloon business, the relator presented a proper application, and caused the same to be filed with the township clerk on the 28th day of July, 1915, to reopen and conduct the said business; that on the 31st day of July, the said township board was duly convened, and refused to approve the said application by a vote of 3 to 1, upon the ground that the date for filing the application was past, said application not having been filed before the 1st day of May; that on the 7th day of August, 1915, relator applied to the circuit court for a writ of mandamus requiring said board to reconvene and approve his said application; that on the 23d day of August, 1915, the circuit court issued a writ of mandamus to said township board to reconvene and approve the said application so presented; that on the 26th day of August, 1915, the said township board convened in obedience to said writ and approved the said application; that thereupon a bond was presented in accordance with the statute, to said board for its approval, which was rejected by a vote of 3 to 1. Relator further shows that members of said board have declared that they would do all they could to delay proceedings relative to the approval of said bond for the conducting'of a saloon in said township; further, that the board arbitrarily and wilfully failed to approve of said bond, and that the action is unjust and illegal, and deprives relator of his lawful rights in the premises. Relator prayed for a writ of mandamus, requiring said board to approve said bond. Attached to his petition to the circuit court was a copy of the bond, which appears to comply with the statute In form and substance, and upon which two individuals qualified as sureties in. the penal sum of $6,000. An order to show cause having been issued by the circuit court, an answer was filed on the 1st day of September, 1915, which sets out:

“That the laws, of the State of Michigan make it discretionary on the part of township boards to approve of or reject all retail liquor applications and bonds, and that said law was in force and effect on the 26th day of August, 1915, as your respondent is advised and believes, and that, exercising its option as it had a right to do, as it is informed and believes, refused to approve of the bond of Raymond A. Price, relator.”

On the 7th day of September the board filed an amended answer, setting out the following facts:

“That on the 24th day of August, 1915, there was served upon this board a writ of mandamus, issued out of and under the seal of this court, requiring this township board to convene and approve of the application of Raymond A. Price, and, said writ of mandamus being mandatory in form, this respondent understood that it was necessary for it to comply with said order, or be in contempt of court, and this respondent further understood that the new law, namely, Act 104 (169) of the Session Laws of 1915, made a discretion therein with the township board as to whether they should approve of a retail liquor bond, and, believing that the township board were required by said writ of mandamus to approve of said application, said board did approve of said application on the 26th day of August, 1915, as will more fully appear from the copy of the resolution passed by the township board on said day, which copy is-hereto attached and made a part hereof and marked ‘Exhibit A.’ That the members of said township board were present in open court when the above matter was heard on the 1st day of September, 1915, and heard the remarks of the circuit court judge, to the effect that he did not intend to sign an order requiring the township board to reconvene and approve of said application, but that he intended to sign an order to reconvene and consider said application and approve of it if there were no legal reasons why they should not do so. Said board after hearing such remarks of the circuit court judge, and after learning that the said circuit court judge did not intend, by his order of mandamus, to take away from said board the discretion vested in said board by Act 104 (169) of the Session Laws of 1915, reconvened on the 2d day of September, 1915, and rescinded their action approving of said application, as will more fully appear from the copy of said resolution passed by said board, hereto attached and made a part of this answer and marked 'Exhibit B.’
_ “When said board approved of said application they did so under a misapprehension of their rights, they believing that said Act 104 (169) gave them a discretion as to approving of an application for retail liquor license, and said board believed that said order of mandamus, requiring said board to approve of said application, must be complied with at all hazards, and said board further believed that when said application had been approved and a bond was presented by said applicant, that the said board would have a discretion, under said Act 104 (169), as to approving of said bond, that said action approving of said application on the 26th day of August was under a mistaken understanding on the part of said board as to their rights in the matter, and when said board was informed as to said Act 104 (169) and the intention of said circuit court judge in issuing said mandamus, said board promptly reconvened on the 2d day of September, 1915, and rescinded said action of approving said application. Respondent, therefore, says that the writ of mandamus made in this action should not issue because Act 104 (169) of the Public Acts of 1915 gives this respondent a discretion and option as to the approving or disapproving of the application and' the bond, for a retail liquor license, and submits that the prayer in said petition should be denied.
“Dated September 7, 1915.
“Township Board of Oakfield Township.
“By Wm. A. Peterson.”

Exhibit A.

“Whereas, a writ of mandamus has been issued by the circuit court of the county of Kent, State of Michigan, ordering the township board of Oakfield township in said county to convene and approve the application of Raymond A. Price for a retail liquor dealer’s license: Therefore, be it resolved that we, the .said board, do this day approve the said application.
“Dated Aug. 26, 1915.
“Township Board,
“William A. Peterson, Supervisor.
“A. J. Reynolds, Justice.
“Roy Gray, Justice.
“L. J. Griswold, Clerk.”

Exhibit B.

“At a session of the circuit court held in and for the county of Kent on the 1st day of September, 1915, said court stated that its order compelling the township board of Oakfield to convene and accept the application of Raymond A. Price for a saloon license was intended to have been an alternative writ. Therefore be it resolved that we rescind our action in accepting said application.
“Wm. A. Peterson.
“A. J. Reynolds.
“Roy Gray.”

On September 8, 1915, the circuit court denied relator’s application for a writ of mandamus, whereupon relator secured from this, court a writ of certiorari to review such action.

Counsel for appellant in their brief state that three propositions are raised, as follows:

“(1) Is Act 169 retroactive, so that it will apply to proceedings brought before the board before the act became operative?
“(2) The law compels a man to know it, and, so being informed, can the excuse set forth in its amended answer avail respondent?
“(3) Is Act 169 of the Public Acts of 1915 constitutional?”

Act No. 169 of the Public Acts of 1915 is an independent enactment, and is entitled:

“An act to authorize township boards to refuse to approve any and all applications for license presented to them for their approval by any person, firm or corporation proposing to engage in the business of selling or offering for sale spirituous or intoxicating liquors or mixed liquors and malt, brewed or fermented liquors by retail.”

It was approved May 7, 1915. The 1915 legislature adjourned May 25, 1915. The Constitution (article 5, § 21) provides:

“No act shall take effect or be in force until the expiration of ninety days from the end of the session at which the same is passed.”

It is therefore obvious that Act No. 169 did not become the law until August 24, 1915. Relator’s application and bond were filed together upon the same day, as stated in brief for relator, upon July 28, 1915. On July 31, 1915, the board convened and rejected the application. At that time it is clear that Act No. 169 had not gone into effect. We have held on various occasions that legislation is to have prospective operation only, except when the contrary intent is clearly expressed. Phillips v. Township of New Buffalo, 68 Mich. 217 (35 N. W. 918); In re Lambreoht, 137 Mich. 450 (100 N. W. 606).

The duty of the township board in the premises, under the law as it stood at the time the application was made, was clearly pointed out by Mr. Justice Stone, speaking for the court, in Price v. Township Board of Oakfield, supra, where it is said:

“It is the duty of the board or council to act fairly and in good faith, and not captiously, in the approval of bonds. It is its duty to investigate the responsibility of the sureties; and, when it appears that this has been done and the investigating body is satisfied that the proposed sureties are irresponsible for the amount of the bond, or that the bond is not in the statutory form, the same should be rejected.”

Earlier in the opinion it is stated that if the applicant has brought himself within the terms or conditions imposed by the statute, his application should be granted and his bond approved. See, also, Hanold v. Common Council of Stambaugh, 163 Mich. 243 (128 N. W. 233).

It is apparent, from a perusal of the record, that the board in refusing to act upon relator’s bond was of the opinion that, Act No. 169 having gone into effect subsequent to the filing of relator’s application and bond, but before action on the bond was. had, they were justified in exercising a discretion, under the act, in withholding their approval of said bond. It is, we think, manifest that upon the filing of the application and bond relator had the right to demand from the township board action thereon, under the law as it then stood, and that the captious refusal on the part of the township board to perform its legal duty in the premises, thus delaying action until Act No. 169 went into operation, was unwarranted.

Under this view of the case it is unnecessary to consider the other questions presented.

The order of the trial judge is therefore reversed, and the proceedings remanded, with directions that the writ of mandamus issue as prayed for.

Person, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


text:
    ALLEN v. ALLEN.
    1. Divorce — Dismissing Bill — Equity—Decrees and Orders.
    Leave of the court must ordinarily be obtained to dismiss a proceeding in equity, and in divorce proceedings, particularly, in which the public frequently is concerned, the rule should not he relaxed.
    2. Same — Consent—Alimony—Motion.
    Prom the fact that a motion for temporary alimony was denied it could not he implied that the court consented to the dismissal.
    3. Same — Domicile.
    Upon reviewing the testimony, the finding of the trial court that complainant had retained his domicile in Michigan, during his sojourn in Alaska, is affirmed.
    4. Same — Courts.
    Where complainant filed a hill for divorce in Genesee county, to which defendant filed her cross-hill, and complainant later went to Alaska, and secured a decree of divorce there, the Genesee circuit court which first obtained jurisdiction retained the same and could enter a valid decree for defendant under her cross-hill.
    5. Same — Extreme Cruelty.
    And the complainant’s failure to deny his wife’s charges of extreme cruelty, although the court gave him an opportunity to take the stand and rehut her testimony, tended to corroborate her claims, though otherwise unsupported.
    6. Same — Alimony.
    An award of $3,000 alimony and $400 solicitor’s fees, and $3.00 a week for the support of the infant until it should become 14 years of age, out of property worth $5,500 which defendant did not help to accumulate, held, excessive and reduced to $1,000 permanent alimony, $200 solicitor’s fees and $3 per week for the child until it should become 14 years old.
    Appeal from Genesee; Wisner, J.
    Submitted October 16, 1914,
    (Docket No. 107.)
    Decided December 21, 1915.

      Bill by Henry H. C. Allen against Blanche Allen for divorce. From a decree for defendant, on her cross-bill, complainant appeals.
    Modified.

      Thomas A. Lawler (John F. Berry, of counsel), for complainant.

      Roy E. Brownell, for defendant.
   Bird, J.

Complainant was a resident of Flint in June, 1905, when he decided to seek his fortune in the Alaskan gold fields. On his way to Nome he stopped in Seattle, and while there married the defendant and took her with him. They lived together in Nome less than a year, when she left him, as she claims, on the ground of cruel treatment. A short time after they separated she gave birth to a child. About two years later he returned to Flint and instituted this proceeding in February, 1907, to obtain a decree of divorce. Service was obtained upon her by publication, and her default for want of appearance was duly entered. Subsequently her default was set aside by stipulation of the parties, and on August 8, 1907, her answer and cross-bill were filed praying for a decree of divorce upon the ground of extreme cruelty. The answer being called to complainant’s attention, he claims that he learned for the first time that it would be necessary, in order to maintain his bill, to show that he had been a resident of Michigan for two years previous to the filing of his bill. In consequence of this, and in September, 1907, complainant’s counsel filed a dismissal of the cause, but without leave of court. After doing so complainant returned to Nome and made application in the district court for a decree of divorce on the ground of extreme cruelty, which was duly granted in that court in October, 1908. Service was likewise had upon the defendant in that court by publication. After complainant returned to Nome defendant made a motion in this cause for temporary alimony and solicitor’s fees. Complainant’s solicitor appeared and announced to the court that a dismissal had been filed, and the reason for so doing, and the application was denied. Some further motions and interlocutory orders were made, to which we think it will be unnecessary to refer. Matters continued to stand imthis way until June, 1913, when the cause was noticed for hearing and placed upon the calendar against the protest of the complainant. The hearing was subsequently had in the October term of court. As a result of the hearing upon the merits the court held that it had jurisdiction of the cause, and it granted the defendant a divorce upon her cross-bill, and granted her permanent alimony in lieu of dower in the sum of $3,000, with an additional $400 for expenses and solicitor’s fees, with a further provision that he pay $3 a week for the care and support of the child until he arrives at the age of 14 years. Subsequently a rehearing was asked for by complainant on jurisdictional grounds, but this was refused, and he has appealed to this court. The questions raised by complainant are:

(1) That the circuit court for Genesee county had no jurisdiction to render a decree in the premises, for the reason that the cause had been dismissed in 1907.

(2) That the court was without jurisdiction in the premises, for the reason that the complainant was not a resident of Genesee county for two years preceding the time of making his application for divorce.

(3) That the decree of divorce granted by the district court of Nome was a bar to the proceedings.

(4) That on the merits defendant was not entitled to a decree of divorce.

(5) That the alimony granted was excessive.

1. It is strenuously insisted by the complainant that the court had no jurisdiction in the premises, for the reason that the cause had been dismissed in 1907. It has generally been held in chancery proceedings that a complainant could not dismiss his case without the aid of the court. 6 Enc. Pleading & Practice, p. 871; 7 Standard Enc. of Practice, 654; 14 Cyc. p. 395; 9 R. C. L. p. 197. And until the entry of judgment of dismissal the court has jurisdiction of the case. 9 R. C. L. p. 207; Barnes v. Barnes, 95 Cal. 171 (30 Pac. 298, 16 L. R. A. 660). The public may have an interest in divorce proceedings. Coon v. Coon, 163 Mich. 644 (129 N. W. 12). Therefore in such cases the rule should be strictly followed.

But it is argued that the denial of defendant’s application for temporary alimony was a recognition by the trial court of the dismissal theretofore filed. No reason appears of record why the chancellor denied the motion, save what may be inferred from the order of denial. By reason of this we do not think the order of denial should be construed to be an implied consent by the court to the dismissal of the case. Our conclusion is that the steps taken by complainant to dismiss his case were not sufficient to divest the court of jurisdiction.

2. The question whether complainant abandoned his residence in Genesee county while he was in Nome was one which received no little attention upon the hearing. Considerable proof was received bearing thereon. Without setting it out in detail, we shall content ourselves by saying that the record contains evidence which justifies the finding of the chancellor that his stay in Nome was a mere temporary one, and that he retained his residence in Flint during the time, and we are not disposed to disturb that finding.

3. It is urged that the decree of the district court of Nome was a bar to these proceedings. Inasmuch as the trial court of Genesee county first obtained jurisdiction in the premises, under the well-established rule, it would retain jurisdiction to decide the issues. Hudson v. Judge of Superior Court, 42 Mich. 248 (3 N. W. 850, 913); Maclean v. Circuit Judge, 52 Mich. 257 (18 N. W. 396); E. T. Barnum Wire, etc., Works v. Circuit Judge, 59 Mich. 272 (26 N. W. 802, 805) ; Bates v. Circuit Judge, 82 Mich. 91 (46 N. W. 29).

4. The chancellor was of the opinion that defendant was entitled to a decree of divorce on the merits. We are inclined to agree with him in this conclusion. The charges of cruel treatment alleged and testified to by defendant were of a serious nature, and, while there was not much corroboration of her testimony, they were not denied by complainant at the hearing. His failure to take the stand and deny or explain the charges when given an opportunity to do so by the court is very persuasive that there was much truth in them.

5. While we do not feel disposed to disturb the conclusions of the chancellor in retaining jurisdiction and granting to defendant a decree of divorce, we are persuaded that the amount of alimony granted was excessive. The chancellor found the valúe of certain real property which had recently descended to com-, plainant from his father to be $5,500, and we think the record fairly shows that complainant had nothing aside from this. The parties lived together less than a year, and the defendant did not help to earn any of this property. We think, under the circumstances, that an allowance of $1,000 as permanent alimony, and an allowance of $200 for solicitor’s fees and expenses will be a fair allowance.

The amount of $3 per week allowed for the maintenance of the child until he is 14 years of age is probably about what it should be.

The decree will be modified in these respects and affirmed. No' costs will be granted to either party.

Brooke, C. J., and Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred.

The late Justice McAlvay took no part in this decision.


author: Bird, J. Kuhn, J.

text:
    BARNHART v. PERE MARQUETTE RAILROAD CO.
    1. Master and Servant — Contributory Negligence — Section Men —Duty.
    Where plaintiff brought an action for injuries sustained in being run down by defendant’s train, and the evidence showed that he, with other section men, was engaged in cleaning off snow from several switches, in the city of Lansing, that plaintiff, in obedience to general instructions, started, after clearing off one switch, to work on another, and, with his cap pulled down over his ears, during a snow storm, ventured on the main track after one train had passed, and failed to look for or observe a train that was following, he was chargeable with the knowledge that the work was of a dangerous nature and he was bound to take reasonable precautions to protect himself from perils arising therefrom, and was guilty of contributory negligence.
    2. Same — Warning—Signals—Duty to Whistle.
    An employee working as a section hand is not entitled to recover for negligence in failing to sound the statutory signals for a crossing. 2 Comp. Laws, § 6292.
    3. Same — Fellow Servants — Comparative Negligence.
    The question of comparative negligence under Act No. 104, Pub. Acts 1909, was not a question of fact for the jury, but was correctly decided by the trial court as a question of law, since the failure of the engineer to discover plaintiff on the track was of lesser degree than plaintiff’s want of care.
    4. Same — Save Place — Negligence.
    The defendant was not chargeable with a violation of the duty to provide a safe place, the track being used for the very purpose for which it was intended, and being rendered unsafe by the act of the employee.
    5. Same — Evidence—Violation oe Ordinance.
    Nor could he recover for violation of a city ordinance relating to the speed of trains, when it was not introduced in evidence.

      Error to Ingham; Collingwood, J.
    Submitted November 10, 1914.
    (Docket No. 151.)
    Decided December 21, 1915.
    Case by Sherman T. Barnhart against the Pere Marquette Railroad Company and Michigan Central Railroad Company for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Warner, Raudabaugh & Person, for appellant.

      Samuel H. Kelley, for appellee Michigan Central Railroad Co.

      Parker, Shields & Brown (Cummins, Nichols & Rhoads, of counsel), for appellee Pere Marquette Railroad Co.
   Bird, J.

Plaintiff was employed as a section hand by the Michigan Central Railroad in December, 1911. The section upon which he was employed commenced about 1,000 feet south of Franklin avenue in the city of Lansing, and extended north to Chandler’s marsh. On the night preceding the 21st of February, 1912, there was a heavy snowfall, and the snow continued to fall and blow during the forenoon of that day. By reason of the storm, plaintiff and his co-workers were called out early to clear the snow from the interlocking switches. After cleaning the last switch, which was situate about 500 feet south of Franklin avenue, the men were ordered by the foreman to take shelter for a time behind a box car standing on a parallel track to the main track, and which was called the scale track, while he went after his mail. The men acted upon his suggestion and after remaining there for a' time, plaintiff was seen to place his broom under his arm and start toward the switch which they had last cleaned. In doing so, he took a southeasterly course, and was soon on the south-bound main track, down which he traveled toward the switch. A few moments later, a Pere Marquette passenger train (which used the tracks jointly with the Michigan* Central) was observed by the men and foreman, following close behind him. They called to him, and the foreman threw a mail box he was carrying at him, in the attempt to call his attention to the train, but presumably by reason of the storm he did not hear them, and the train struck him and injured him so badly that later he lost one of his legs by amputation. The negligence with which the defendants were charged was:

(1) The failure to furnish a safe place in which to perform his duties; (2) the failure to give the statutory crossing signals; (3) operating the train at a speed in excess of that allowed by an ordinance of the city of Lansing; (4) the failure to give heed in operating the train to the fact that it was late, and of the storm conditions.

The trial resulted in a directed verdict for the defendants, on the ground of plaintiff’s contributory negligence.

When plaintiff engaged in this line of work he knew that it was more or less hazardous by reason of the frequent operation of trains, and the law placed upon him the duty of exercising reasonable care to protect himself against injury. Schaible v. Railway Co., 97 Mich. 318 (56 N. W. 565, 21 L. R. A. 660); Aerkfetz v. Humphreys, 145 U. S. 418 (12 Sup. Ct. 835) ; Daly v. Railway Co., 105 Mich. 193 (63 N. W. 73); Carlson v. Railroad Co., 120 Mich. 481 (79 N. W. 688).

Standing beside the box car on the scale track, he was in a place of comparative safety. The proof tends to show quite conclusively that he was not ordered at that time to clean the switch again, unless it can be said that a general order, which had been given them to keep the switches clean, would suffice. But conceding that his action was in obedience to the general order, there was no occasion for his traveling down the main track to reach the switch, as the very track he started from led to the switch. Instead of traveling down the scale track, he crossed over and went onto the main track, and thereby incurred dangers which he could have, with less trouble, avoided, and he did this on a cold stormy morning, with his cap pulled down partially over his ears, when the weather conditions rendered it very difficult for him to see or hear an approaching train. He also did this with a full knowledge that he was on the south-bound main track, and that trains were being operated over it in the same direction in which he was traveling, and yet, the proof shows that he did not look back, after he started, to protect himself from approaching trains. Considering his conduct independently of Act No. 104, Pub. Acts 1909, it was a plain case of contributory negligence, which will bar his right to recover.

But it is urged that, even if he were guilty of contributory negligence, the defendants were also guilty of negligence, and under Act No. 104, the question as to which was the more negligent should have been submitted to the jury. We do not think that the charges of negligence against the defendant can be sustained, unless it can be said that the engineer was negligent in failing to discover and warn the plaintiff. Respecting the grounds of negligence, it may be said that the doctrine of “safe place” is not involved. The place was safe, and was being used for the very purpose for which it was constructed, and was rendered unsafe for plaintiff only by his own act. The defendants did not owe him the duty of giving the statutory crossing signals. Lepard v. Railroad Co., 166 Mich. 373 (130 N. W. 668, 40 L. R. A. [N. S.] 1105). Nothing can be predicated upon the operation of the train at a speed in excess of that allowed by the ordinance, because the ordinance was not introduced. If we concede that the engineer was negligent in that he did not discover plaintiff on the track and warn him, we are still of the opinion, in view of the storm conditions, that that negligence was clearly of a lesser degree than the negligence of the plaintiff.

While ordinarily questions arising under this statute are questions of fact to be determined by a jury, we are of the opinion that where it is clear that the negligence of the plaintiff is not of a lesser degree than that of the defendant, we should control the verdict as a matter of law. English v. Railroad Co., ante, 286 (154 N. W. 98); Chicago, etc., R. Co. v. Still, 19 Ill. 499 (71 Am. Dec. 236). See, also, Sonsmith v. Railroad Co., 173 Mich. 57 (138 N. W. 347). We think this is such a case, and we therefore hold, as a matter of law under the proofs, that plaintiff’s negligence was not of a lesser degree than' the negligence of the defendants, thereby affirming the view of the trial court. The judgment is affirmed.

Brooke, C. J., and Stone, Ostrander, and Steere, JJ., concurred with Bird, J.

Kuhn, J.

(concurring). Act No. 104, § 2, Pub. Acts 1909, provides as follows:

“In all actions hereafter brought against any such common carrier railroad company under or by virtue of any of the provisions of this act to recover damages for personal injury to an employee, or where such injuries have resulted in his death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery: Provided, that the negligence of such employee was of a lesser degree than the negligence of such company, its officers, agents or employees.”

As Mr. Justice Bird says in his opinion, the question to determine is whether we should say, as a matter of law—

“that the negligence of such employee was of a lesser degree than the negligence of such company, its officers, agents, or employees.”

In the consideration of this question, in my opinion, the same rule should govern as has been laid down by this court in considering whether or not the question of contributory negligence should be determined as a matter of law. We have held in numerous cases that where the evidence is conflicting, or where different conclusions might reasonably be drawn from established or conceded facts, the question belongs to the jury. Becker v. Railway Co., 121 Mich. 580 (80 N. W. 581) ; Haines v. Railway Co., 129 Mich. 475 (89 N. W. 349) ; Welch v. Railroad Co., 147 Mich. 207 (110 N. W. 1069) ; Amanta v. Railroad Co., 177 Mich. 280 (143 N. W. 76) ; Atchison, etc., R. Co. v. Wilkie, 77 Kan. 791 (90 Pac. 775, 11 L. R. A. [N. S.] 963, and note; 127 Am. St. Rep. 464, 15 Am. & Eng. Ann. Cas. 731). The question here, therefore, is, Can any other inference be fairly and reasonably drawn from the facts but that the negligence of the employee was of a greater degree than the negligence of the company ?

I concur in the conclusion of Mr. Justice Bird that it is clearly apparent that no candid and intelligent man could reach any different conclusion but that the negligence of the defendant’s engineer was of a lesser degree than the negligence of the plaintiff. The plaintiff was walking on the tracks in the yard, with full knowledge that trains were being operated on the track on which he was- walking, in the same direction, and he made no effort to ascertain whether a train was coming. The negligence of the engineer operating the train, under the weather conditions prevailing, was without question of a lesser degree. I therefore concur in holding that the question in this case should be determined as a matter of law.

Moore, J., concurred with Kuhn, J.

The late Justice McAlvay took no part in this decision.


text:
    HANNULA v. CLEVELAND CLIFFS IRON CO.
    1. Master and Servant — Mines—Contract.
    Though one mining corporation owned a majority of the stock and controlled the business and policy of another, for which plaintiff worked, the dominant company was not responsible for injuries sustained by the plaintiff, who was informed by his time check, whenever he had occasion to sign it, who was the real employer, and had notice by the name on his brass pay check that he was employed by the subservient corporation.
    2. Same — Admissions—Attorney and Client — Evidence—Appeal and Error — Harmless Error.
    Though letters exchanged between plaintiff’s attorney and the attorney for defendant mining company who had authority to advise persons relative to the management of the mine, the correspondence containing his admission that defendant was operating the mine in which plaintiff was employed, later retracted by a second letter which advised plaintiff that another corporation was operating the mine, were admissible as evidence of the ownership and control of the property, the court did not, in rejecting the proofs, prejudice plaintiff, who was not misled, since suit had already been commenced when he received the letters.

      Error to Marquette; Flannigan, J.
    Submitted January 25, 1915.
    (Docket No. 37.)
    Decided December 21, 1915.
    Case by Arthur Hannula against the Cleveland Cliffs Iron Company for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Le Gendre & Driscoll, for appellant.

      William P. Belden, for appellee.
   Bird, J.

Plaintiff was injured while working as a trammer in the Hard Ore mine, in Marquette county, under such circumstances that he claims that he is entitled to recover compensation therefor. His right to recover does not seem to be controverted by defendant's counsel; but he insists that, if plaintiff is entitled to compensation, the Cleveland Iron Mining Company is liable therefor, and not the defendant. At the close of the case, the trial court directed a verdict for the defendant on the ground that the plaintiff had sued the wrong party.

It appeared without contradiction that the mine in which plaintiff was working when he received his injuries was the property known in that vicinity as the Hard Ore mine; that the Hard Ore mine is now, and has been, owned by the Cleveland Iron Mining Company for many years; that the Cleveland Iron Mining Company is a Michigan corporation; that the capital stock of the Cleveland Iron Mining Company is owned, save nine shares, by the defendant; that plaintiff had worked in this mine about five months prior to receiving his injuries; that when employed he had been given a brass check which bore his number, and the initials “C. I. M. Co.”; and that he had each month received and signed a statement, or time check, in the following form:

Time Statement.
Arthur Hannula. No. 157
In Acct. with Cleveland Iron Mining Co. Hard Ore.
For April, 1909.
Credits.
By 15¼ Shifts at $2.63.................. $40.10
Dehits.
For doctor .............................. $1.00
For benefit fund ..........................30 1.30
Balance as per pay roll(.............. $30.80
Received payment in full for the above services.
[Signed] Adolph Hannula.
(Sign Here)

After signing this statement, he was paid with a check of the defendant, upon which was printed in large type the words “Hard Ore Pay Roll Checks.”

The plaintiff defended his course in launching the case against the defendant on the facts herein recited, and on the additional facts that the printed rules of the mining company were promulgated and signed by the defendant; that the defendant paid to the employees the club or insurance money in case of accident to them at its main office; that plaintiff understood that he was working for defendant; and that it was generally understood in the vicinity of the mine that it was being operated by the defendant. The contention of plaintiff’s counsel is that this testimony raised a question of fact as to whether defendant was operating the mine, and, further, that even if defendant was not operating the mine, its acts in connection therewith were such as to estop it from denying that it was operating the property.

1. -The proofs establish beyond dispute that the Cleveland Iron Mining Company is a corporation, and was not only the owner of the property, but was actually operating it. Undoubtedly, the defendant dictated the policy of the company as is usually done by the dominant interest in nearly all corporations, whether that interest be owned by individuals or by other corporations. Plaintiff argues that that domination had the appearance of operation, and that he was misled by it into believing that defendant was actually operating the property. This contention would have much force with us were it not for the fact that plaintiff was advised in writing each month when he signed his time check who his employer was. His brass check, which he was obliged to produce when he received his pay, advised him of the same fact. It is not clear to us how plaintiff could have been advised with more certainty by whom he was employed. Measuring it by the ordinary business standards, the possession of such facts would be held sufficient to charge one with knowledge as to who his employer was, and therefore it must be conclusive upon plaintiff in this case.

2. In a telegram plaintiff’s counsel inquired of defendant’s counsel whether defendant was operating the mine. The reply was in the affirmative. Soon after, however, a letter followed in which defendant’s counsel corrected the information given, and advised that the Cleveland Iron Mining Company was operating it. It was conceded that defendant’s counsel had the authority to give out such information and that both letters should be considered together. The letters were offered by plaintiff and rejected on the ground that the second letter rendered the first one of no value as evidence. This ruling is assigned as error.

At the stage of the trial at which the letters were offered, we think they were admissible, because they bore upon the main issue as to which company was operating the mine; but the harmful effect of the ruling was neutralized subsequently by the admissions of plaintiff upon his cross-examination. It does not appear that plaintiff was misled by the letters into commencing the suit against the defendant, as the letters were written some considerable time after the suit was started. Had these letters been received in evidence, we should have been obliged to reach the same conclusion based upon the plaintiff’s own testimony. The error was harmless.

We are of the opinion that the view taken of the matter by the trial court was the proper one, and the judgment will be affirmed.

Brooke, C. J., and Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred.

The late Justice McAlvay took no part in this decision.


author: Ostrander, J.

text:
    WOOD v. CITY OF DETROIT.
    1. Constitutional Law — Workmen’s Compensation as Applied to Municipal Corporations — Due Process oe Law.
    Act No. 10, Extra Session 1912, as amended, bringing all municipal corporations of tbe State within the provisions in the statute establishing workmen’s compensation, is not in excess of the recognized powers of the legislature, which has been held in several cases arising in different States to have authority to abolish the common law defenses of contributory negligence and assumed risk and to abrogate the fellow-servant rule.
    2. Same — Equal Protection oe the Law — Corporations.
    Nor is the statute unconstitutional because it affects municipal corporations differently from private corporations, in that private corporations are permitted to elect whether or not they shall become subject to the law, while municipal corporations have no option. The classification so created is not invalid, and does not deprive a municipal corporation of the equal protection of the laws.
    3. Same — Local Self Government — Municipal Corporations.
    Under the new Constitution the right of local self government granted to municipal corporations does not deprive the legislature of its authority to regulate such public instrumentalities by general enactments affecting their private governmental functions.

      4. Same — Negligence—Federal Constitution.
    No constitutional right of the corporation is infringed because the statute compels the municipality to respond in damages to servants who may have been injured without fault of the employer: since the legislature has the power to determine on what terms municipal corporations shall be allowed to engage in the employment of labor, if at all, the collective and individual' rights of the citizens being duly preserved.

    Certiorari to the Industrial Accident Board.
    Submitted January 14, 1915.
    (Docket No. 93.)
    Decided December 21, 1915.
    Mary Wood presented her claim for compensation for the death of Henry H. Davenport while in the employ of the Public Lighting Commission of the city of Detroit. An order was entered awarding compensation. The city of Detroit brings certiorari.
    Affirmed.

      Louis H. Wolfe and Chester L. Schwartz (Maurice E. Fitz-Gerald and Samuel W. Shier, of counsel), for claimant.

      William E. Tarsney (Richard I. Lawson, of counsel), for defendant.

      Grant Fellows, Attorney General, and L. W. Carr, Assistant Attorney General, amici curiæ.

      On the constitutionality of compulsory industrial insurance, see note in 37 L. R. A. (N. S.) 466.

   Ostrander, J.

In March, 1914, an employee of the Public Lighting Commission of the city of Detroit in the course of his employment was killed. The Industrial Accident Board affirmed an award to a member of the family of the deceased made under the provisions of Act No. 10, Pub. Acts 1912 (Extra Session), overruling the contention of the city that, as applied to municipal corporations, the act is void. The act is entitled:

“An act to promote the welfare of the people of this State, relating to the liability of employers for injuries or death sustained by.their employees, providing compensation for the accidental injury to or death of employees and methods for the payment of the same, establishing an industrial accident board, defining its powers, providing for a review of its awards, making an appropriation to carry out the provisions of this act, and restricting the right to compensation or damages in such cases to such as are provided by this act.”

The proppsitions of plaintiff in certiorari are that the effect of the act, in operation, is to deprive it of its property without due process of law, the legislature being without power to compel it to respond in damages to aii employee injured without its fault; that by the terms and operation of the law, and in respect to its private and proprietary functions and powers, its rights and the similar rights of individuals and of private corporations are not equally protected. It is also contended that in the home rule act the legislature exhausted its powers and may not by the act in question affect municipal affairs as it has assumed to do. On' the other hand, the claimant, the defendant in certiorari, presents points which are stated in the brief as follows:

_ “(1) That Act No. 10, Public Acts 1912, Extra Session, is constitutional and is within the police power of the State; and that the State has absolute control of municipalities.
“(2) That the legislature in passing Act No. 279 in 1909, known as the home rule bill, did not relinquish its control or its further guidance or restrictive powers, as to municipalities; that the provision in the Constitution, made in 1908, in which it is stated that the legislature shall provide a general law for the incorporation of cities and villages with reference to the rate of taxation for municipal purposes and restricting their powers to borrow money and contracting debts, did not prevent the legislature from passing a law such as Act No. 10, Public Acts 1912, Extra Session.
“ (3) The appellee contends that municipalities, such as cities, villages, towns, townships, and counties are not discriminated against in Act No. 10 of the Public Acts 1912, Extra Session; that the legislature did not exceed its. authority in passing a measure which compels an employer (municipality) to pay money to an employee who is injured while within the scope of his employment, whether or not the employer (municipality) is negligent in any degree.”

A workmen’s compensation act has been held to be invalid, because compulsory, in Ives v. Railway Co., 201 N. Y. 271 (94 N. E. 431, 34 L. R. A. [N. S.] 162, Am. & Eng. Ann. Cas. 1912B, 156), and valid, though compulsory, in State, ex rel. Davis-Smith Co., v. Clausen, 65 Wash. 156 (117 Pac. 1101, 37 L. R. A. [N. S.] 466). The New York decision was made in March, 1911. In November, 1913, the constitution of New York was. amended (article 1, § 19), and it has since been held (Jensen v. Southern Pacific Co., 215 N. Y. 514 [109 N. E. 600]) that the constitutional amendment meets the objections suggested by the court and sustains the present act, which differs essentially from the one considered in the Ives Case. See, also, State, ex rel. Yaple, v. Creamer, 85 Ohio St. 349 (97 N. E. 602, 39 L. R. A. [N. S.] 694), and Porter v. Hopkins, 91 Ohio St. 74 (109 N. E. 629). The broad question discussed in the cases referred to is not before us. The questions here are whether the legislature may impose the obligation upon a municipal corporation, and, if it may, then whether the act discriminates, unlawfully, between such corporations and others affected by the act.

It is well to inquire what will be the effect of the law in application to actual affairs, and especially in what way, if in any, it affects, differently, municipal corporations and private corporations and individuals.

Excepting employers of domestic and farm labor, the act abolishes certain defenses in actions for per-, sonal injuries as to all employers, in all cases except cases where an employee gives notice that he will not be bound by the act. These defenses are available to an individual or a private corporation in a suit brought by an employee whd has so given notice. In no case are they available to .a municipal corporation, because its employees are in any event, in express terms, bound by the act. The defenses referred to are: (1) That the employee was negligent, unless wilfully so; (2) that the injury was caused by the negligence of a fellow servant; (3) that the employee had assumed the risks inherent in, incidental to, or arising out of his employment, or arising from failure of the employer to provide and maintain safe premises and suitable appliances.

Probably no one will now deny the power of the legislature to abolish these defenses. See Opinion of Justices, 209 Mass. 607 (96 N. E. 308) ; Ives v. Railway Co., 201 N. Y. 271 (94 N. S. 431, 34 L. R. A. [N. S.] 162, Am. & Eng. Ann. Cas. 1912B, 156); Quackeribush v. Railroad Co., 62 Wis. 411 (22 N. W. 519); Id., 71 Wis. 472 (37 N. W. 834); Employers’ Liability Cases, 207 U. S. 463 (28 Sup. Ct. 141) ; Kiley v. Railway Co., 138 Wis. 215 (119 N. W. 309, 120 N. W. 756) ; Wilmington Star Mining Co. v. Fulton, 205 U. S. 60 (27 Sup. Ct. 412) ; Minnesota Iron Co. v. Kline, 199 U. S. 593 (26 Sup. Ct. 159) ; Hall v. Mill Co., 39 Wash. 447 (81 Pac. 915, 4 Am. & Eng. Ann. Cas. 587) ; Johnson v. Southern Pacific Co., 196 U. S. 1 (25 Sup. Ct. 158) ; Walker v. Railroad Co., 135 N. C. 738 (47 S. E. 675); Mott v. Railway Co., 131 N. C. 234 (42 S. E. 601) ; Cogdell v. Railway Co., 129 N. C. 398 (40 S. E. 202) ; Thomas v. Railroad Co., 129 N. C. 392 (40 S. E. 201) ; Carterville Coal Co. v. Abbott, 181 Ill. 495 (55 N. E. 131); Odin Coal Co. v. Denman, 185 Ill. 413 (57 N. E. 192, 76 Am. St. Rep. 45) ; D. H. Davis Coal Co. v. Polland, 27 Ind. App. 697 (60 N. E. 1124) ; Island Coal Co. v. Swaggerty, 159 Ind. 664 (62 N. E. 1103, 65 N. E. 1026) ; United States Cement Co. v. Cooper (Ind. App.), 82 N. E. 981; Hailey v. Railway Co., 113 La. 533 (37 South. 131) ; Kilpatrick v. Railway Co., 74 Vt. 288 (52 Atl. 531, 93 Am. St. Rep. 887) ; Johnson v. Coal Co., 88 Ark. 243 (114 S. W. 722, 123 S. W. 1180, 19 L. R. A. [N. S.] 646) ; Coley v. Railroad Co., 129 N. C. 407 (40 S. E. 195, 57 L. R. A. 817); Lore v. Manufacturing Co., 160 Mo. 608 (61 S. W. 678) ; Mobile, etc., R. Co. v. Turnipseed, 219 U. S. 35 (31 Sup. Ct. 136, 32 L. R. A. [N. S.] 226, Am. & Eng. Ann. Cas. 1912A, 463) ; Ditberner v. Railway Co., 47 Wis. 138 (2 N. W. 69) ; Missouri Pacific R. Co. v. Haley, 25 Kan. 35; Missouri Pacific R. Co. v. Mackey, 33 Kan. 298 (6 Pac. 291) ; Bucklew v. Railway Co., 64 Iowa, 603 (21 N. W. 103) ; McAunich v. Railroad Co., 20 Iowa, 338; Vindicator, etc., Mining Co. v. Firstbrook, 36 Colo. 498 (86 Pac. 313, 10 Am. & Eng. Ann. Cas. 1108) ; Deppe v. Railroad Co., 36 Iowa, 52; Peirce v. Van Dusen, 78 Fed. 693 (24 C. C. A. 280, 69 L. R. A. 705); Campbell v. Cook, 86 Tex. 630 (26 S. W. 486, 40 Am. St. Rep. 878) ; Thompson v. Railroad & Banking Co., 54 Ga. 509; Georgia Railroad v. Ivey, 73 Ga. 499; Missouri Pacific R. Co. v. Castle, 172 Fed. 841 (97 C. C. A. 124) ; Missouri Pacific R. Co. v. Mackey, 127 U. S. 205 (8 Sup. Ct. 1161).

But abolishing these defenses, except as against an employee who refuses to be bound by the act, is not the sole, nor main, purpose of the act. Obviously, it is an inducement, somewhat coercive in character, for accomplishing what the legislature regarded as a desirable result. With the particular defenses abolished, there would still be actions in which the liability of the employer would be debatable, and many injuries of employees are attributable to pure accident. The individual and the private corporation employing labor, and refusing to be bound by the act, may elect to contest, though with limited defenses, liability for injuries; municipal corporations may not. In this respect, only, the act affects, differently, municipal corporations and other corporation and individual employers of labor. It expressly provides that “the State, and each county, city, township, incorporated village and school district therein, and each incorporated public board or public commission in this State authorized by law to hold property and to sue or be sued generally” shall constitute employers subject to the provisions of this act. Act No. 50, Pub. Acts 1913. And no distinction is suggested between employment in work heretofore classified as governmental in character, or involving the exercise on the part of the corporation of governmental power, and employment in work heretofore classified as private in character.

As to the first question presented, namely, the power of the legislature to impose upon municipal corporations the duties and liabilities created by the act, I think there would have been, under our former Constitutions, no reasonable doubt. So long as it was admitted (People v. Hurlbut, 24 Mich. 44 [9 Am. Rep. 103] ; Board of Park Commissioners v. Common Council of Detroit, 28 Mich. 228), that the State, through the legislature, must determine for each of its municipal corporations the powers it should exercise and the capacities it should possess, and that it must also decide what restrictions should be placed upon them, “as well to prevent clashing of action and interest in the State as to protect individual corporators against injustice and oppression at the hands of the local majority,” it followed that municipal activity in the employment of labor, if permitted at all, might be permitted only upon compliance with such conditions as are found in the act here considered. In Atkin v. Kansas, 191 U. S. 207 (24 Sup. Ct. 124), there was involved the validity, with respect to the Fourteenth Amendment to the Constitution of the United States, of a statute of Kansas which, after fixing eight hours as a day’s work for all laborers employed by or on behalf of the State, or any of its municipalities, made it unlawful for any one contracting to do any public work to require or permit any laborer to work longer than eight hours per day, and required contractors to pay the current rate of daily wages, which it appeared were fixed, as to private work, upon ten hours’ daily labor. A contractor was convicted and sentenced for disobedience of the act. In the opinion of the court, it is said, among other things:

“ Tf a statute,’ counsel observes, ‘such as the one under consideration is justifiable, should it not apply to all persons and to all vocations whatsoever? Why should such a law be (limited to contractors with the State and its municipalities? * * * Why should the law allow a contractor to agree with a laborer to shovel dirt for ten hours a day in performance of a private contract, and make exactly the same act under similar conditions a misdemeanor when done in the performance of a contract for the construction of a public improvement? Why is the liberty with reference to contracting restricted in the one case and not in the other?’
“These questions — indeed, the entire argument of defendant’s counsel — seem to attach too little consequence to the relation existing between a State and its municipal corporations. Such corporations are the creatures, mere political subdivisions, of the State for the purpose of exercising a part of its powers. They may exert only such powers as are expressly granted to them, or such as may be necessarily implied from those granted. What they lawfully do of a public character is done under the sanction of the State. They are, in every essential sense, only auxiliaries of the State for the purposes of local government. They may be created, or, having been created, their powers may be restricted or enlarged, or altogether withdrawn at the will of the legislature; the authority of the legislature, when restricting or withdrawing such powers, being subject only to the fundamental condition that the collective and individual rights, of the people of the municipality shall not thereby be destroyed.”

But it is argued, in effect at least, and the point is self-intruding into any discussion of the subject, that the Constitution of 1909 has taken from the legislature the power to grant or refuse to municipal corporations the exercise of certain powers and the possession of certain capacities, and so has denied the power of the legislature to restrict and control provident and necessary action of municipalities in exercising powers which the Constitution itself has given to them. In other words, the so-called private capacities of municipal corporations enumerated in the Constitution may be employed precisely as like capacities and activities of private corporations may be employed in so far as legislative control is concerned.

In a recent case, in considering the right of a city while operating its electric light plant and supplying its inhabitants with current to also in that connection do electrical wiring on private premises and furnish fixtures and other accessories essential and convenient in using electricity, and sustaining the right, we said:

■ “The old law of municipal trading, involving the propriety and expediency of authorizing a municipality to engage in general business in competition with its citizens conducting a private business of like kind, has little bearing here; but the rule remains that taxation can only be for public purposes and municipalities have no express or implied power to engage generally in private business. We are past «the general question of the validity of legislation authorizing municipal ownership and operation of plants and their necessary equipment to furnish the concentrated population of cities with certain general needs and conveniences, like water, light, heat, transportation, telephone service, etc.; and it is held that the court will not interfere with any reasonable exercise of the implied powers to operate such plants in a business way, and as any private corporation could or would.” Andrews v. City of South Haven, 187 Mich. 294 (153 N. W. 827).

The- Constitution of 1909 contains the following (article 8) :

“Sec. 20. The legislature shall provide by a general law for the incorporation of cities, and by a general law for the incorporation of villages; such general laws shall limit their rate of taxation for municipal purposes, and restrict their powers of borrowing money and contracting debts.
“Sec. 21. Under such general laws, the electors of each city and village shall have power and authority to frame, adopt and amend its charter, and, through its regularly constituted authority, to pass all laws and ordinances relating to its municipal concerns, subject to the Constitution and general laws of this State.
“Sec. 22. Any city or village may acquire, own, establish and maintain, either within or without its corporate limits, parks, boulevards, cemeteries, hospitals, almshouses and all works which involve the public health or safety.
“Sec. 23. Subject to the provisions of this Constitution, any city or village may acquire, own and operate, either within or without its corporate limits, public utilities for supplying water, light, heat, power and transportation to the municipality and the inhabitants thereof; and may also sell and deliver water, heat, power and light without its corporate limits to an amount not to exceed twenty-five per cent, of that furnished by it within the corporate limits; and may operate transportation lines- without the municipality within such limits as may be prescribed by law: Provided, that the right to own or operate transportation facilities shall not extend to any city or village of less than twenty-five thousand inhabitants.
“Sec. 24. When a city or village is authorized to acquire or operate any public utility, it may issue mortgage bonds therefor beyond the general limit of bonded indebtedness prescribed by law: Provided, that such mortgage bonds issued beyond the general limit of bonded indebtedness prescribed by law shall not impose any liability upon such city or village, but shall be secured only upon the property and revenues of such public utility, including a franchise stating the terms upon which, in case of foreclosure, the purchaser may operate the same, which franchise shall in no case extend for a longer period than twenty years from the date of the sale of such utility and franchise on foreclosure.”

The general law passed pursuant to the constitutional provision is Act No. 279, Pub. Acts 1909, amended in some respects by Act No. 203, Pub. Acts 1911, and by Act No. 5, Pub. Acts 1913. Of this legislation is may be said, generally, that it recognizes and. provides for the exercise of the right of cities to acquire and control property in accordance with their charters, which they may make, revise, or amend within certain limitations. Among other things, the charters may provide:

“(i) For the purchase of the franchises, if arty exist, and of property used in the operation of companies or individuals engaged in the plank road, cemetery, hospital, almshouse, electric light, gas, heat, water and power business; and in cities having not less than twenty-five thousand inhabitants the purchase of the franchise, if any, and the property of street railway and tram railway companies, State and county taxes shall be paid upon such transportation property so purchased and owned by any such city.”
“(s) For the exercise of all municipal powers in the management and control of municipal property and in the administration of the municipal government, whether such powers be expressly enumerated or not; for any act to advance the interest of the city, the good government and prosperity of the municipality and its inhabitants, and through its regularly constituted authority to pass all laws and ordinances relating to its municipal concerns, subject to the Constitution and general laws of this State.”

The city of Detroit, the plaintiff in certiorari, exists .under a special charter, being of the class referred to in section 2 of the act as follows:

“Each city now existing shall continue with all its present rights and powers until otherwise provided by law.”

It has, however, as is matter of common knowledge, amended its charter in various respects, not here of importance. It possessed, before the Constitution was adopted, various powers relating to the acquisition, ownership, and control of property, and still possesses these powers and in their exercise has acquired and owns property, real and pérsonal, which is operated by the city. In the management and control of this property and in the exercise of powers concerning streets and public places, it employs and pays many men.

Counsel for plaintiff in certiorari say:

“If the municipality in its private business capacity is. a private corporation, it is then entitled to the same right of election as every other private corporation; and if this act is compulsory in its features as applied to the municipality, it then compels the municipality to pay its injured employees, and results in the taking away of the municipality’s property (its money) without due process of law, for the reason that by due process of law is meant the right to have laws operate on all alike, not subjecting the individuals to the arbitrary exercise of the powers of government unrestrained by the established principles of private right and distributive justice.”

The Constitution of 1909 has pointed out the extent of the local powers and capacities of cities and villages with more precision than was done in former Constitutions, thus restricting the power of the legislature to grant or to deny to particular communities the enumerated capacities and powers, at will, but it has not abolished all distinctions between municipal and other corporations and individuals with respect to the exercise of the powers conferred nor denied the power of the legislature to enact general laws applicable to cities. The distinction between powers governmental in character and those private in character, as exercised by municipal corporations, does not involve the abrogation of the distinction between private municipal activity and private individual activity. To employ a seeming paradox, private municipal activities aré all of them public. What has been called private in municipal activity is, nevertheless, public when contrasted with purely private enterprise and adventure.

There remains, and always must remain, the distinction pointed out in the opinion last referred to. The actual basis for the carrying on by municipal corporations of private municipal business is taxation. There is not, and there cannot be, any merely local power to tax persons or property, and municipal activity may still be, and it is the command of the Constitution that it shall be, restricted, limited, by the limitation of the power to tax, to borrow money and to exploit the municipal credit. Moreover, municipal corporations are still State agencies, and as such subject to legislative direction and control, none the less so because the exercise of such control may indirectly affect a private municipal activity. The act, in its application to municipalities, involves no right of local self-government, or local control and management of corporate property. It deprives the municipality of none of its property, because, in effect, it is made lawful to raise by tax the money required to pay all injured employees some compensation. A new public purpose for which taxes may be levied is declared.

The subject of the legislation which is in question' here is a social subject, in its very nature referable for community action to the State itself. A social theory needed to be crystallized into law. Its nature was such that no community less than the State could be appealed to for this purpose. The theory of this and of similar legislation includes the essential idea that the industrial worker is himself a social asset and ought not, in any case, to bear the whole result of a personal injury arising out of and in the course of his employment; that society at large ought to share the loss. The subject is one of governmental control, of public policy, necessarily committed to the legislature. Whether it is or is not denominated a police regulation, municipal corporations are, for the purpose of carrying out such a measure, subject to legislative control. The first question is therefore answered adversely to the plaintiff in certiorari.

The second question, namely, whether the classification of employers as municipal and other can be defended, is, in principle, answered by what has been already said. The legislature was confronted with the duty to devise a plan, complete in itself, for dealing with the subject and accomplishing the desired purpose. The limitation upon its power in this direction is the Constitution, which I think it has not contravened. The burden created, if it can be called a burden, is uniform as to each individual of each class. There is no vested right of any person to labor for a municipal corporation.

There is also a consideration of expediency which may have influenced the legislature. Private corporations and individuals exploit private capital. Out of this, in the first instance, the compensation of employees must be paid. The burden thus assumed by the employer must be distributed by his action in the course of his business. In the case of a municipal corporation the burden assumed by it as employer is distributed, immediately and finally, upon the community subject to be taxed to raise the necessary fund. However that may be, there is found in the imposition of the law upon municipal corporations no invasion of private rights, but only the enforcement of a State policy which, in view of municipal activities, ought to be uniformly accepted and observed by all municipal corporations. ‘

The order of the Industrial Accident Board is affirmed.

Brooke, C. J., and Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.

The late Justice McAlvay took no part in this decision.