text:
    The People v. Stonewall J. DeFrance.

      Criminal law — Witnesses—Impeachment—Dentist—Privileged communications — Conduct of prosecuting officers.

    1. In a prosecution for uttering a forged draft, the respondent sought to establish an alibi, and to that end introduced a witness who testified that on the day the draft was uttered in one city the witness was at the house of the respondent in another city, and gave him a note, which the witness paid to the respondent personally on a certain day several months afterwards at the house of the witness in said city. The note was produced, and upon it appeared an indorsement of payment as of the last-named day, signed by the respondent. A witness for the people was allowed to testify on rebuttal that, on the day the note was claimed to have been paid, the respondent was seen by the witness in a city in another state. And it is held that this testimony was admissible, and that the jury were properly instructed that they might consider it as bearing upon the credit to be given to the testimony of the respondent’s witness as to the whereabouts of' the respondent on the day the offense was committed.
    8. An objection to the testimony of a witness in a criminal case-on the ground that his name is not indorsed on the information cannot be made for the first time in the Supreme Court.

    3. A dentist is not within the terms or spirit of How. Stat. § 7516, which makes certain information acquired by physicians- and surgeons privileged.

    4. It is the duty of prosecuting officers to place before the jury all the facts which, in their judgment, are admissible as bearing upon the question of the respondent’s guilt or innocence, and the fact that they are mistaken in some of the positions taken, and that the trial court rules against them upon their offers-of certain testimony, by no means implies that they are guilty of bad faith.
    5. It is improper for counsel to refer, in their arguments, to witnesses whose testimony has been excluded by the court, or to-suggest what they might have testified to if placed upon the-stand.
    Error to Kalamazoo. (Buck, J.)
    Argued February 28, 1895.
    Decided April 2, 1895.
    ^Respondent was convicted of the crime of uttering a. forged draft, and sentenced to imprisonment in the State' prison at Jackson for 11 years.
    Judgment affirmed.
    The facts are stated in the opinion.

      Edwin F. Gonely and Orla B. Taylor (E. M. Irish and A. J. Sawyer, of counsel), for respondent.

      Alfred 8. Frost, Prosecuting Attorney, and F. F. Enapjpen, Special Prosecuting Attorney, for the people.

       For cases bearing upon the question of indorsing names of witnesses on information, see People v. Machen, 101 Mich. 400, and note.

       For cases bearing upon the construction of said section, see Dittrich v. City of Detroit, 98 Mich. 245, and note; Lincoln v. City of Detroit, 101 Id. 246.

   Montgomery, J.

The respondent was charged, in the •circuit court for the county of Kalamazoo, with having, ■on the 23d day of November, 1891, uttered a forged draft, purporting to have been drawn by ,the Pontiac National Bank, of Pontiac, Mich., on the Merchants’ National Bank of New York, for the sum of $12,500, and upon which he is claimed to have received from the First National Bank of Kalamazoo an advancement of $5,000.

The testimony on behalf of the people tended to show that the respondent came to Kalamazoo on the 10th of November, and registered at the Burdick House under the name of Louis Forrest; that he gave out that he was an agent of the Standard Oil Company, and desired to purchase some land in the vicinity of the city for that company; that he visited the bank in question on two or three occasions, and was introduced to the president by one Hammond, with whom he had become acquainted in his efforts to find land suitable for his alleged purposes; that on Monday morning, the 23 d, he presented the draft in question, and received $5,000 in currency, and was credited on the books of the bank with the balance; that he immediately left the city, and was not discovered to the bank officials until October 2, 1893, when he was'arrested in Detroit, where he had been living since the time •of the alleged offense. The defense consisted of a denial •of the identity of respondent with the man Forrest, who committed the offense, and the chief question of fact was that of the identity of the respondent. The respondent offered testimony tending to show that, during the time the man known as Forrest was in Kalamazoo, he, the respondent, was in the city of Detroit constantly. Among ■other witnesses called by the respondent for the purpose of proving this fact were Thaddeus Galvin, John Galvin,, and James Galvin, who testified that on the 21st of November, 1891, they entered into a contract with respondent, which contract was produced and introduced in evidence, and purported to have been executed on that date, and to have been signed by the Galvins and by respondent. Eespondent also called as a witness William Peabody, who testified that on the 23d of November, 1891, he borrowed $300 in money of respondent, and executed his-promissory note for the amount; that the note was after-wards paid, on the 11th of April, 1892, to Mr. De France-personally, at the house of the witness, and that De France receipted for it on the back. This note purported to have-been signed by Peabody, and was indorsed on the back:. “ Paid, April 11, ’92. S. J. De France.” It appeared by the testimony of the people that at the time the man. known as Forrest appeared at Kalamazoo his teeth presented a different appearance than those of the respondent, subsequently presented; that the two front incisors were-separated distinctly, and that now this peculiarity does not-appear. The people called as a witness Charles H. Land, a dentist, who testified that between the 30th of November and the 4th of December, 1891, he inserted three false teeth in the place of the two incisors for the respondent. The prosecution called as a witness one Cornelius W. Britt, an attorney, who testified ' that he prepared _ the contract purporting to have been executed by De France and the Galvins on the 21st of November, 1891, after respondent’s arrest and imprisonment, and by the respondent’s direction. The prosecution also called two witnesses whose testimony tended to show that the indorsement purporting to have been made on the back of the note of William Peabody on April 11, Í892, and purporting to have been signed by De France, could not have been made at that time, as he, De France, was at tl*at date, and for some days prior, in St. Paul, Minn. This statement of facts is sufficient to show the relevancy of the questions raised in the brief of counsel which we deem it necessary to discuss.

Kespondent’s counsel contend that error was committed in getting before the jury the claim that respondent had been gnilty of similar offenses to that charged, and occurring at a later date. The prosecution called as a witness F. W. Anderson, of St. Paul, Minn., who testified that he was president of the St. Paul National Bank, and first met the respondent at St. Paul on April 11, 1892. He was then asked under what circumstances he met the respondent at that time, and counsel for the respondent objected, on the ground that it related to a .separate and distinct offense. The jury were excluded during the discussion, and the court ruled the testimony inadmissible. The court did’ not depart from this ruling during the trial, but it is claimed that counsel, by putting questions to witnesses, sought to convey the impression to the jury that the respondent had been guilty of offenses at other times and places. This subject will be' referred to later on.

The prosecution, in rebuttal, called as a witness William B. Geery, who testified that on the 11th of April, 1892, the respondent was in St. Paul, and was seen by the witness in the St. Paul National Bank. This testimony was corroborated by F. W. Anderson, the president of the bank, and on the cross-examination of these witnesses facts were elicited which tended to show that respondent was guilty of some transaction which occasioned an attempt on the part of the bank officials to procure his arrest. It is strenuously insisted . that this line of testimony was incompetent. Goutísel invoke the rule that it is not competent to impeach a witness by contradicting him upon immaterial points, and it is said that the fact of the Peabody note having been indorsed as paid on the 11th of April was an immaterial or collateral fact, and that it was incompetent to dispute the testimony of the witness upon this point. The court received the testimony as bearing upon the credibility of the testimony of the witness Peabody, and in this we think no error was committed. Counsel contend that the falsity of the indorsement could not affect the authenticity of the note itself, and say, “ Suppose the date of the indorsement were false for some reason, would the contents of the note be false for that reason also?” The witness Peabody, as before stated, produced this note for the purpose of corroborating his own testimony, and his'testimony as a whole was that he borrowed, on the 23d of November, 1891, $300 of respondent; that he gave this note; that the note was paid on the 11th of April, 1892, to Mr. DeFrance •personally, at the house of the witness in Detroit, and •that DeFrance receipted it on the back. This note was supposed to represent the transaction between the parties, •the whole transaction, and nothing else. The witness told .a connected story supported by one document, which was •either true or false, and we cannot understand how it can ¡be said that testimony showing that this instrument, which was produced for the purpose of corroborating his testimony, was false in one particular, might not be and •ought not to be weighed by the. jury in determining the question of whether the whole instrument was prepared for the especial occasion, and for the purpose of corroborating his testimony. Not only was the testimony competent upon this question, but to our mind it was persuasive evidence for this purpose, and it is not surprising that it should have had the effect of discrediting the witness with the jury. The court distinctly limited the application of this testimony by instructing the jury as follows:

“Whether or not the respondent was in St. Paul on April 11, 1892, has no tendency to prove that he was in Kalamazoo in November, from the 11th to the 23d, 1891. You may, however, consider this testimony as bearing upon the credence to be given to the testimony of the witness Peabody as to the whereabouts of the respondent November 23, 1891.”

This instruction was entirely proper. If the witness Peabody had produced a forgery for the purpose of supporting his testimony, and the prosecution were able to show that the instrument which he produced for that purpose was in part a forgery, it would be most extraordinary to hold that this fact might not be taken into account in determining the weight to be given to his testimony upon all points in the case.

Numerous objections were taken to the conduct of counsel with reference to the witness Britt. First it is said that his name was not indorsed upon the information, but, as this point was not made below, it cannot be considered here. If the objection had been there made, it would have been incumbent upon the prosecution to show a sufficient reason for the failure to indorse his name upon the information, and sufficient grounds for leave to place it upon the information after the trial had commenced. But, no such, objection being made, no opportunity was afforded the prosecution to make this showing, and there is no question before us for review relating to it. The other questions raised bear rather upon the fairness of the testimony of the witness Britt than upon the question of the admissibility of his testimony. Counsel seek to show by references to testimony that Britt was a willing witness, and that counsel for the people were at pains to present him to the jury as an unwilling witness, and that this conduct was prejudicial, and was intended to be. At the best the record presents a question of fact as to whether the witness was a willing or an unwilling witness, and there is no legal question involved in relation to the subject, so far as we can discover.

Counsel contend that the testimony of the witness Land was a privileged communication, under the provisions of How. Stat. § 7516, which provides that—

“No person duly authorized to practice physic or surgery shall be allowed to disclose any information which he may have acquired in attending any patient in his professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon.”

The question presented is whether this language includes a dentist. At the common law, information gained by a physician or surgeon while in attendance upon his patient was not privileged. The purpose of this statute was to throw around such disclosures as the patient is bound to make for the information of his attending physician the cloak of secrecy, and the prime object of the act was to invite confidenpe in respect to ailments of a secret nature, and the spirit of the act would not include a case where the infirmity was apparent to every one on inspection. In practice, however, the statute has not been so limited in construction, for the reason that the words of the act are broad enough to include any information necessary to enable the physician to prescribe or the surgeon to act. Nevertheless, the purpose of the act is to be considered in determining whether the dentist was intended to be included within its terms. Certainly the terms “ dentist ” and “surgeon” are not interchangeable, and if a dentist is to be held to be a surgeon, within the meaning of this act, it must be because his business as a dentist is a branch of surgery. It is apparent that the act relates to general practitioners, and to those whose business as a whole comes within the definition of “physician” or “surgeon.” A dentist is one whose profession it is to clean and extract teeth, repair them when diseased, and replace them, when necessary, by artificial ones. The only case which we have found which bears directly upon this question is that of State v. Fisher (Mo. Sup.), 24 S. W. 167, 22 L. R. A. 799, in which a majority oí the supreme court of Missouri held that a dentist is not to be considered a surgeon. We think there was no error in admitting the testimony of this witness; that he is not within the terms or the spirit of the act.

Many of the errors assigned relate to the alleged misconduct of the counsel for the prosecution. We have given to the briefs of counsel and to the record very careful examination upon this branch of the case. It is contended that the counsel committed error in propounding questions to witnesses which they knew to be incompetent, and which implied facts which were not admissible, and the intimation of the existence of which was damaging to-the respondent. It is true that counsel put numerous-questions to witnesses which were excluded, but we are by no means convinced of the bad faith of counsel in this-particular, and, on the contrary, consider that the counsel for the prosecution were acting in the utmost good faith. The trial extended over two weeks, as is stated. The respondent was ably defended. The counsel for the prosecution would have been derelict in their duty had they not sought to put before the jury all the facts which, in their judgment, were admissible as bearing upon the question of the respondents guilt or innocence. That they were mistaken in some of the positions taken, and that the court below ruled against them upon their offers of' certain testimony, by no means implies that they were-guilty of any bad faith.

In the concluding argument of counsel for the prosecution, this occurred:

“Now, I asked to put Judge Mills on the stand. (Objected to.) He is not here, but I want to ask you if' you believe from the testimony that you have got in this-case so far-"

Counsel was here interrupted with an exception. The reference to Judge Mills should not have been made, but the circuit judge, very properly, in charging the jury, said:

The testimony of Judge Mills was excluded by the court. Counsel for the people have no right to suggest to you what Mills would have sworn to had he been placed upon the stand. I do not remember, gentlemen, that there has been any suggestion made as to what Judge Mills would have sworn to if placed upon the stand, but I give you this instruction out of abundance of caution. If any such suggestion was made, you should disregard it altogether. Judge Mills_ was not placed upon the stand. You are to decide this case according to the testimony which has been given, and nothing else.”

It is impossible to conceive that, after this very clear instruction, the jury could have been prejudiced by the remarks of counsel. As a matter of fact, the record does not show that he did state any fact that he could have proven by Judge Mills, or what the testimony of Judge Mills would have been if he could have been called. This was emphasized by the charge of the court, and it would be a reflection upon the intelligence of the jury to assume that after this very clear instruction they could have been influenced by this mistake of counsel in any way whatever.

Complaint is made of the instruction of the court to the effect that in passing upon the testimony of the witnesses for the respondent the jury had the right to take into consideration any interest which such witnesses might feel in the result of the suit, growing out of their relationship with respondent or otherwise, and give to the testimony of such witness or witnesses such weight as it was deemed entitled to under all the circumstances proved on the trial, and that in considering the testimony given by the respondent in his own behalf they might consider whether or not such testimony was affected in any manner by his interest in the result of the prosecution. We do not understand that counsel contend that these instructions were not proper enough in themselves, but it is said:

“ A general charge that the jury should consider the interests of all witnesses would not have been objectionable; but when nothing is said about the people's witnesses, and attention is specially directed to respondent and his witnesses, and the jury is told that their interest is an important consideration, we submit that the rights of the accused are not properly protected.''

But upon turning to the record we find that the respondent's counsel asked and the court gave numerous instructions relating to the question of the weight to be attached to the testimony of various witnesses for the prosecution. Respondent’s thirtieth request, as follows, was given by the court:

“In considering the question of identification, you may consider the fact that the witness Wagner swore *to a complaint for the arrest of the respondent before he had seen him, and also that upon his visit to Detroit the respondent was brought into his presence alone, in such a manner that there could be no doubt as to the person charged with the crime.”

And again:

“ If the jury believe from the evidence that the witness Hammond did in fact indorse the draft in controversy in this case, you may consider this fact as bearing upon the likelihood of his identifying an innocent party instead of the guilty party.”

And again:

“If you find that the witness Britt conspired to put up false testimony in this case, this would be a crime under the laws of the State. Yon may consider any temptations which are apparent from his testimony and the motives by which he is actuated.”

And again:

“ If you believe that the witness Britt willfully falsified in any single particular, you are at liberty to diregard his testimony altogether.”

And finally, on his own motion, the court charged the jury as follows:

“You are the sole and exclusive judges of the credibility of each and every witness who has testified in this •case. As to some of the witnesses, you have been told that you should receive their testimony with great caution. As to others, you have been instructed that you may consider any interest which they may have in the result of this case, and these instructions you should heed. But it is equally true that you are to give to the testimony of •each and every witness who has been sworn upon this trial just so much or so little credit as you find it is entitled to. You are the sole judges of the credibility of the witnesses, as well as of the weight of the evidence in the case.”

It is apparent that the circuit judge fairly presented the •question of the credibility of the witnesses to the jury, and that he gave all proper requests of respondent’s counsel, •and the jury could not have failed to understand that the question of the credibility of the witnesses was solely for them. The charge of the court, as a whole, was fair, and •covered all the questions presented by the record.

The respondent had a fair trial. We think his rights were fully protected, and that the judgment should be affirmed.

McG-rath, C. J., Long and Hooker, JJ., concurred. Hrant, J., did not sit. .


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    The People v. James Gault.

      Intoxicating liquors — Information—Non-payment of tax — Former conviction— Bar.

    T. In a prosecution for engaging in the sale of intoxicating liquors without having paid the required tax, the respondent is sufficiently shown not to come within the provision which excepts from the penal provisions of the statute druggists “who sell liquors for chemical, scientific, medicinal, mechanical, or sacramental purposes only, and in strict compliance with law,” by an averment in the information that he is not a druggist who sells liquors for any of said purposes, naming them, but omitting the italicized words.
    '2. Under 3 How. Stat. § 2283o7, which requires the payment, by any person engaged in or intending to engage in the sale of intoxicating liquors as a beverage, of the statutory tax on or before May 1 in each year in advance, and 3 How. Stat. § 2283d, which provides for the punishment of any person who shall engage or be engaged in such sales without having paid said tax, the fact that a person may have been engaged in making such sales during the year preceding May 1 will not render lawful sales made by him on May 1 without having paid the tax for the ensuing year.
    •8. A conviction for having been engaged in the sale of intoxicating liquors on June 30 without having paid the required tax is not a bar to a prosecution for having been engaged in such sales on the 1st day of May of the same year without such payment being made, the proofs in support of the several charges being confined to June 30 and May 1, respectively.
    Exceptions before judgment from Montcalm. (Davis, J.)
    Argued March 1, 1895.
    Decided April 2, 1895.
    Despondent was convicted of unlawfully engaging in the
    liquor business.
    Conviction affirmed, and court advised to proceed to judgment.
    The facts are stated in the opinion.

      Ellsworth & Rarden, for respondent.

      Fred A. Maynard, Attorney General, and Bert Hayes, Prosecuting Attorney, for the people.
   Montgomery, J.

The respondent is charged with having, on the 1st day of May, 1893, been engaged in the business of selling and offering for sale malt, brewed, and fermented liquors, without having paid the annual tax required by law, and without having the receipt and notice for said tax posted up. The information alleges that—

“ Said James Gault, not being then and there a druggist who sells or then sold liquors for chemical, scientific, medicinal, mechanical, or sacramental purposes only, was then and there engaged,” etc.

The statute exempts from the penal provisions of the act druggists who sell liquors for chemical, scientific, medicinal, mechanical, or sacramental purposes only, and' in strict compliance with law; and it is urged that the present information is insufficient for the reason that the words “in strict compliance with law” are omitted. It-would seem plain enough that, if respondent was not a-druggist who sold liquors for the purposes named at all, it cannot be said that he was one who sold them for the purposes named in strict compliance with law. The question is ruled by Luton v. Circuit Judge, 69 Mich. 610; People v. Scott, 90 Id. 376; and People v. Aldrich, 104-Id. 455.

It is next urged that the respondent could not be convicted of the offense charged for prosecuting his business-on the first day of May, the record showing that he had been engaged in the business the previous year, as section 8 of the act (section 2283iil, 3 How. Stat.) provides that—

“Every person engaged in the sale of any spirituous,, malt, brewed, fermented, or vinous liquors, except druggists, shall, before commencing such business, and on or before the first day of May in each and every year thereafter, make, execute, and deliver to the county treasurer of the' county in which he is carrying on such business ul bond,” etc.

It is urged that, if the respondent was privileged to furnish the bond on the 1st day of May, it cannot be inferred that the continuation of the business until the Respondent should have had the opportunity to file such bond is to be deemed unlawful. But we think this question should be controlled by the provisions of section 4, providing that the person engaged- in or intending to engage in the business, etc., “shall, on or before the first day of May in each year, pay to the said county treasurer, in advance, the taxes required by said section 1 for such business for the year commencing on said first day of May, and ending on the thirtieth day of April next thereafter;” and section 7 provides: “ If any person or persons shall engage or be engaged in any business requiring the payment of a tax under section 1 of this act without having paid in full the tax required by this act,” etc., he “shall be deemed guilty,” etc. We think the sections, when read together, must be construed to mean that the advance tax must be paid before one can lawfully engage in the business, and that it was not intended that one having engaged in the business in the previous year should, in this respect, stand on a different footing than one who sought to engage in the business anew on the 1st day of May.

The most important question presented is that arising under a plea in bar interposed by the respondent. It appeared by the plea in bar that the respondent had been previously arrested and convicted of 4he offense of having been unlawfully engaged in the business without having paid his tax, etc., on the 30th of June, 1893; and the question presented is whether this conviction is a bar t& ¡the present information, under which the respondent is '•■charged with having been engaged in the business on the 1st day of May, 1893. We are disposed to hold that .the former prosecution cannot be treated as a bar. The offense with which the respondent is charged was complete on the 1st day of May, 1893. Had a prosecution then been instituted for this offense, and the respondent thereafter arrested for a like offense committed on the 30th day of June, 1893, it is conceded that the prosecution for the prior cffense would not constitute a bar, and we are unable to ■see why, in reversing the facts, the same rule does not ■obtain. The general rule is that, in order to bar a prosecution, it is not sufficient for the defendant to show that he has been indicted, and either acquitted or convicted, •since the date of the offense now alleged against him. He must prove that the former acquittal or conviction was for the same offense now complained of. See Black, Intox. Liq. § 555; State v. Andrews, 27 Mo. 267; State v. Shafer, 20 Kan. 226; State v. Blahut, 48 Ark. 34. As we have -said, the- offense with which the respondent is charged was •complete at the 1st day of May, 1893. The conviction which is pleaded in bar was one in which he pleaded guilty •to an offense contained and set forth in the information, which charged him with having, on the 30th day of June, been engaged in the business of selling and keeping for •sale intoxicating liquors, etc., without having paid the tax required by law. The offense is not only distinct from the charge contained in the present information, but distinct from the offense established by the proofs offered by the ■prosecution; and we think it should not be deemed a bar. In section 7 of the «act, being section 2283 d of Howell’s •Statutes, it is provided that—

“Each violation of any of the provisions of this act ■shall be construed to constitute a separate and complete •offense, and for eacb violation on the same day or on different days the person or persons offending shall be liable to the penalties and forfeitures herein provided.”

It is true that, in a prosecution charging the offense as having been committed on a particular day, the proof need not be limited to that precise day, and the prior prosecution would bar a prosecution for any offense which .•came within the proof offered by the prosecution on the prior trial, but beyond this the rule could not be extended.

The point is made that the evidence is insufficient to ■show that sales were actually being made by the respondent on the day in question. But we think that there was ■sufficient to go to the jury upon this question, and that the charge fairly presented the issue to the jury.

The conviction will be affirmed, and the circuit judge •advised to proceed to sentence.

The other Justices concurred.

       Counsel cited People v. Haas, 79 Mich. 456; People v. Decarie 80 Id. 578.


author: Hooker, J.

text:
    The People v. August Oblaser.

      •Criminal lato — Receiving stolen property — Sufficiency of evidence— Witnesses — Impeachment—Conduct of prosecuting attorney.

    1. In a prosecution for receiving stolen property (a revolver), knowing it to have been stolen, it appeared that the owner left her house during the afternoon, the doors being locked; that on her return she found her pocket-book, which had contained money, upon the stand, rifled of its contents; that the same evening she missed the revolver from the stand drawer, where it had been kept; that she could not say when she last saw the weapon, but she and her husband testified to having seen it within a few days; that on the arrest of the respondent, 10 days later, a revolver, which the woman identified as hers, was found under his pillow; that he told conflicting stories about the revolver, one of them being that he procured it from a. man whom he knew to have had it a year before, because' he was with him when he bought it; that he refused to give-his name, and advised the officer to arrest him for stealing the revolver if he thought best. And it is held that the circumstances were sufficient to sustain a conviction.
    .2. ■ Where, on the cross-examination of one of the people’s witnesses in a criminal case, a portion of his testimony taken on the preliminary examination is read to him, and he denies so testifying, the testimony, if used for the purpose of impeachment, should be offered in evidence as a part of the respondent’s-defense.
    3, During his argument, the prosecuting attorney, referring to the respondent’s counsel and his argument, stated that said counsel had said that the respondent had as good a record as any one in the court-room, and added, “Why don’t he show it?” No-evidence of good character had been given. And it is held that the statement of the prosecuting attorney was evidently invited by respondent’s counsel, who, in referring to the question of good character, went outside of the record.
    Error to recorder’s court of Detroit. (Chapin, J.)
    Argued March 1, 1895.
    Decided April 2, 1895.
    Respondent was convicted of the offense of receiving stolen property, knowing it to have been stolen, and sentenced to imprisonment in the State prison at Jackson for three years.
    Judgment affirmed.
    The facts are stated in the opinion.

      Turner, Turner & Crawford, for respondent.

      Allan II. Frazer, Prosecuting Attorney, and O. F. Runt? Assistant Prosecuting Attorney, for the people.
   Hooker, J.

The respondent was convicted of the offense-of receiving stolen property, consisting of a revolver. The owner, a woman, left her house during the afternoon, the doors being locked. On her return she found her pocketbook upon the stand, and money that it had contained was gone. That evening she missed her revolver, which had been kept in the stand drawer. She could not ¡say when she saw it last, but she and her husband testified to having seen it within a few days. Ten days later, the respondent was arrested, and a revolver was found under his pillow, which complainant identified as hers. The respondent told conflicting stories about it, one of them being that he procured it from a man whom he knew to have had it a year before, because he was with him when he bought it. He refused to give his name, and •advised the officer to arrest him for stealing the pistol if he thought best.

It is contended that this did not establish the larceny •of the pistol. We think the circumstances were sufficient to sustain a conviction by the jury. The case differs from that of People v. Montague, 71 Mich. 318, as will be readily seen by an examination of that case.

On cross-examination, Mr. O’Neil was asked by respondent’s counsel if he did not testify upon the examination that he would not swear that the revolver found was the one lost, and that the marks on his were lower down. He admitted the latter, but denied making the former statement. He admitted being' sworn, and that the rewolver was shown him, and said that he corrected the ¡statement about the screw being lower down. Counsel for the respondent then said:

“1 will read your testimony. [Reading:] ‘Saw the revolver next when Downey [the officer] brought it to me. 'This is not the one.’
“ Q. Did you testify to that?
“A. No, sir.
“ Q. Is that your signature there to that testimony "taken in the court below? .
“A. That is my signature.
“Mr. Turner: I introduce this testimony and evidence •of the witness taken below. (Mr. Hunt objected, and ■cross-examination continued.)”

This was not the proper time-to offer this evidence for the purpose of impeachment. It should have gone in, if at all, with the other impeaching testimony upon the same subject, after the respondent’s counsel took the case. It is unimportant, however, as the bill of exceptions fails to-show exception taken to its exclusion.

During the argument, the prosecuting attorney, referring to counsel for respondent, said:

“He says this man has as good a record as any one in. the court-room. Why don’t he show it?”

Nothing shows that evidence of good character was. given, and counsel for the respondent seems to have so-far forgotten himself as to make statements outside of the-record. Had the prosecutor replied by saying there was. no evidence that he had a good record, no fault could have been found. This was but another way of saying it» It was plainly invited.

The judgment must be affirmed.

The other Justices concurred.


author: Grant, J. McGrath, O. J.

text:
    John P. Nelson, Administrator, etc., v. The Lake Shore & Michigan Southern Railway Company.

      Negligence — Causing death of wife — Evidence—Damages.
    1. In a suit by a husband to recover for negligently causing the death of his wife, opinion evidence of the value of her services is admissible; citing Rajnowski v. Railroad Co., 74 Mich. 20, 27.
    2. There can be no compensation in such a case for grief, loss of companionship, wounded feelings, or suffering, either of the deceased or the beneficiary.
    3. The mortality tables found in How. Stat. § 4245, were introduced in evidence by tbe plaintiff. And it is held that they were conclusive as to the life expectancy of the decedent, in the absence of evidence to show that her probability of life-was greater or less than that shown by said tables.
    4. A verdict for $7,000 in favor of a husband for negligently-causing the death of his wife, who was of the age of 56 years,. is legally excessive, where the only tangible evidence of the value of his pecuniary loss is his board and that of his two-minor children.
    Error to Monroe. _(Kinne, J.)
    Argued November 23, 1894.
    Decided April 16, 1895.
    Negligence case. Defendant brings error.
    Eeversed.
    The facts are stated in the opinion.

      A. O. Angelí, for appellant.

      O. A. Golden and Scribner & Hurd, for plaintiff.
   Grant, J.

The accident which resulted in the death', of Mrs. Nelson occurred in Ohio, and this suit is brought’, under the Ohio statute, which is similar to that of Michigan, found in How. Stat. §§ 8313, 8314. The negligence-of the defendant is ■ conceded. The only questions arise-upon the measure of damages. A statement of the evidence-is essential to a proper understanding of the charge. There-is no dispute as to the evidence. Mrs. Nelson was 5¿ years old; her husband 56; and she left four children, — a-son, 23; a daughter, nearly 21; a daughter, 19; and a son, 16. She was an industrious woman, a good housekeeper, and in good health. The following, taken from defendant's brief, is a succinct and correct statement of plaintiff's testimony:

“Prior to April, 1890, the family had lived in Monroe county. In that month Mr. Nelson took his wife and three younger children to Toledo, the elder son then living-there. Mrs. Nelson, kept boarders and lodgers from the time of her going to Toledo until her death. She managed the boarding business entirely. The profits of that. business went for the support of the family. They hardly defrayed the household expenses. Mr. Nelson had to add some to it. Sometimes he was not able to contribute much; sometimes he was. She had on the average from ■•six to eight boarders. The rent of the house was $30 per •month. She received in gross from her boarders and dodgers about $100 per month; not more. Out of that ¡she supplied the table, paid the rent, paid for fuel and •light, and clothed herself. A good part of it went for buying carpets and better furniture for rooms. She put back a considerable part of the $100 in one or two rooms. Plaintiff still has the furniture. Plaintiff stated:
“‘She never turned over to me a dollar in cash. She did not furnish me with clothing or pocket money. I think she did once or twice buy a pair of pants for me. Whatever she turned over to me was trifling in amount. I cannot form any estimate of what she used for the benefit of the children in getting clothes. I cannot give any idea of how much of the $100 was profit over ■and above the cost of feeding and caring for boarders and lodgers. 1 had not the least idea in regard to that. I do not think I could give you any idea what the contribution was that my wife made for my support and that of my children, over and above the expense of the household. I have no idea what the expenses of the .household were. I cannot say how much clothing she furnished to the children. She never got any for me to amount to anything. T could not give any idea of the value of the goods she furnished ¡the children. I could give no idea of her net earnings. It would he simply guess-work.’
“Irving Nelson, the son who was 16 when Mrs. Nelson ‘died, testified that his mother furnished him his clothing and board. He has no idea how much the clothing furnished cost. She gave him what little pocket money he had. He was then in the high school.
“Anna Nelson, the daughter who was 19 when Mrs. Nelson died, testified that, from the time the family moved to Toledo, Mrs. Nelson furnished her with clothing, board, and other necessaries. She does not know. what her mother’s total contribution in money and clothes was during the last year of her life. Does not know what it costs to clothe her now. Whatever Mrs. Nelson spent she earned out of the boarding-house, after paying expenses, rent, etc. The balance her mother used to clothe the children and keep up the house. She fitted up three sleeping rooms with new mattresses, furniture, and carpets and linen, and her dining room with crockery, tablecloths, and napkins. Witness did not know about the cost of the things purchased. She assisted her mother in the household work.”

Plaintiff introduced the mortality tables found in How. Stat. § 4245. The jury therefore had before them the age of the deceased, the fact that she was in good health, the mortality tables, and the testimony aboye given as to the, services she rendered the family.

The learned circuit judge instructed the jury that these tables were not controlling or binding upon them, but that they were to give them just such consideration as they thought they were entitled to receive. The jury evidently thought them entitled to no consideration. They, as well as the other evidence, must have been entirely ignored, for there is no possible basis in them for the verdict of $7,000.

“The pecuniary injury to a husband from the death of a wife necessarily includes the loss of her services, and the measure of damages is their reasonable value.” Tiff. Death Wrongf. Act, § 163.

It is not enough to prove the marriage, age, and death, and then turn a jury loose upon the field of speculation or prejudice to hunt for some basis for a verdict. Mitchell v. Railroad Co., 2 Hun, 535. The compensation provided by the statute is strictly pecuniary. There can be no compensation for grief, loss of companionship, wounded feelings, or suffering, either of the deceased or of the. beneficiaries, and the court so charged the jury. The services must be proven, and the value shown. The jury may then find any amount between the lowest and highest limits. If A. works for B. under such circumstances as that the law implies a contract, A. must, in order to recover, prove the services and their value. This rule holds in all cases where the law gives compensation for services. The damages must, be founded upon.the testimony. The rule in actions of torts does not apply. Cooper v. Railway Co., 66 Mich. 261. Opinion evidence of the value of such services is admissible. Rajnowski v. Railroad Co., 74 Mich. 27. The sole evidence of any service- rendered by Mrs. Nelson to her husband is that she provided him with board, and clothed and boarded the minor children; or, in other words, that she mainly earned and paid the household expenses, though he contributed some and his daughter assisted. The only tangible evidence of the value of pecuniary loss to him was his board, and that of his two minor children. Upon this point there was evidence of the price of board. Beyond this there was no evidence of value. Who can estimate how. much she spent for clothing for herself or children? Was it $2, $5, or $10 each per month? On what basis can a. jury determine this without proof? One juror, if married, might say, “It costs me so much,” another a different sum, while the unmarried juror would have no experience upon which to act at all. What would be reasonable in one case would be unreasonable in another. The standard in the case upon trial is the controlling one, and evidence must be adduced to show it. If it be said that what she-made in her business is the basis of the value of her services, the case is equally barren of any substantial basis-for recovery. She received at the most $1,200 per year, out of which she paid the rent, $360, and the cost of fuel, lights, provisions, and her own clothing, of the value of which there is no evidence. The annual interest on $7,000 at 6 per cent, would be $420. Assuming that she netted this sum each year, it would be 35 per cent, profit from her business, — a profit hardly probable, — and leave-the principal untouched. It is absurd to say, under such facts, that the husband and children sustained a pecuniary loss of $7,000.

If there had been testimony to show that her probability of life was greater or less than that shown by the tables, then they would not have been conclusive. The jury should have been instructed that the tables were conclusive and binding, and their attention directed to the tangible evidence of the services and their value. The verdict was legally excessive, and the court should have-set it aside, and granted a new trial.

In Railway Co. v. Whitton, 13 Wall. 270, the testimony on which the charge was based is not given. “The personal qualities, the ability to be useful, and the capacity to earn money” were held competent evidence for the-jury to consider. But the case does not hold that this alone is sufficient evidence of the value of services. The expression used by some authorities, “that the damages rest in the sound reason and discretion of the jury,” means that this sound reason and discretion must be exercised within the range of the evidence. Neither is-the testimony given in Railroad Co. v. Goodman, 62 Penn. St. 329. If, however, that case holds to the doctrine that-it is only essential to prove the relations of the parties; that the wife was frugal, industrious, useful, and attentive-to her household duties; and that upon this evidence the-jury may find the actual pecuniary loss, — we need only reply that such is not the doctrine of this Court. The-abuse to which such a doctrine leads is conspicuously apparent in the present case. The correct rule was stated by the court as follows:

“The measure of damages in this ease is the present-value of the amount of money which the plaintiff and the minor children, during the continuance of decedent's life, would have received from her had she lived. The present-valuation of a sum of money payable in the future is what that sum is worth if paid presently, — paid now. For example, the present value of one dollar at 6 per cent, at the end of one year is found by dividing one dollar by one dollar and six cents; the present value of one dollar at the end of two years is found by dividing one dollar by one dollar and twelve cents,” etc.

The error lay in the qualification of the rule as above pointed out, and the failure to direct the jury as to the proper limits of this inquiry.

The judgment is reversed, and new trial ordered.

Long, Montgomery, and Hooker, JJ., concurred with Grant, J.

McGrath, O. J.

This action is brought under How. Stat. §§ 8313, 8314. The court instructed the jury, as requested by defendant, that—

“If you find that the deceased was accustomed to aid her minor children by giving them money or affording them support to the amount of a certain sum annually, and that the minor son was likely to live until his majority, the most you can award in this action for the damages sustained by said minor children is the present value, ascertained as above explained, of the certain amount which would have been contributed during his minority to the son, and the present value of the sum which would have been likewise contributed to the daughters.”

The court immediately added:

“I qualify that with this statement, gentlemen: Evidence has been offered here of certain tables known as 'Annuity Tables/ and also of what are known as 'Mortality Tables/ showing the probable length of human life. Those have been offered in evidence, and submitted to you, to aid you as best they may in reaching a fair conclusion in this matter as to what the real damages may be which these parties have suffered. I instruct you that they are not absolutely controlling and binding upon you. They are submitted to you, and for you to give them just such consideration as you think they are entitled to receive, and as, according to your ability, you are able to afford them. You may proceed to estimate the damages upon the theory of those tables. I do not think you are confined to that method.”

It is the added portion that is complained of.

The decedent, plaintiff’s wife, kept a boarding-house, and contributed to the support of both husband and children. Plaintiff had introduced as a part of his case the American Mortality" Tables, as found in How. Stat. § 4245. Defendant introduced the Carlisle Annuity Tables. The only other testimony bearing upon'the question of the decedent’s expectancy was that giving her age at the time of the injury, and the statement that “the condition of her health was good.” The data upon which the present value of an annuity is to be computed were before the jury, provided they were able to determine the probable duration of her life; and the instruction, so far as if related to the annuity tables, which, like interest tables, are mere computations, was undoubtedly correct. Nor are the jury confined to the data there disclosed. But the same is not true as to mortality tables. The data from which they are made up were not before the jury, nor was there sufficient before them to 'enable them to intelligently determine the question. These tables determine the average expectancy, and in a case where there is evidence tending to show that decedent’s prospects of life were better than the average, or not equal to the average, the tables are not conclusive, but the jury are entitled to take into consideration all the testimony bearing upon the question; as, for instance, that she had enjoyed unusually good health for a long period, or that her ancestors were long-lived, etc.

In Hunn v. Railroad Co., 78 Mich. 513, 528, it was said:

“Such tables are not conclusive. They show the probable age which a healthy person may expect to reach, whose age is given. But when that is before the jury, and the physical condition of the person at the time of his death, and all testimony which may reasonably affect his duration of life, the jury must determine from the testimony before them the probable duration of decedent’s life had he not died as a result of his injury.”

In the absence of the tables, and of the data from which such tables are made up, the determination of the jury could' only be conjectural; and, the plaintiff having introduced the tables, and having introduced no other testimony from which the jury could intelligently add to the period of expectancy, the tables must be regarded as •controlling.

Defendant’s counsel requested the court to instruct the jury that—

“ The largest amount for which you are at liberty to bring in a verdict is the aggregate of the present value of the sum you find would have been contributed to the minor •children during minority, and the value of the annuity to the husband, determined as already explained.”

The court had, on behalf of plaintiff, instructed the jury that—

“The administrator is entitled to recover damages for such pecuniary injury as has resulted to the husband and to the minor children of the deceased from the death of their wife and mother. It is confined to pecuniary loss, and not the loss arising from grief or wounded feelings or sufferings of any kind, whether of the deceased or the plaintiff in this action, under the statute, but such pecuniary loss as they may have sustained from the loss of their wife and mother. Taking all the facts and circumstances into consideration, you may consider the personal qualities, the ability to be useful, of the party who has met with •death; of course, also, the capacity to earn money. It is not proper for the jury to look upon it as a question of feeling or sympathy. The statute does not permit that, and such consideration should be dismissed from your minds. ”

And, at the request of defendant, that—

“In arriving at the amount of damages, the jury are not to go beyond the amount of actual money lost to the husband and to the minor children, until their majority. They must base their estimate solely upon the evidence of what the persons named had received from the deceased in her lifetime, and are not at liberty to give damages founded upon possibilities and contingencies apart from the evidence.”
CrThe measure of damages in this case is the present -value of the amount of money which the plaintiff and the minor children, during the continuance of decedent’s life, would have received from her had she lived.”

These instructions are involved in ‘the request which was refused, and, inasmuch as there must be a new trial, they •should be considered.

As respects the damages, while they cannot, under the statute, exceed the pecuniary loss sustained, I do not understand that such pecuniary loss is only such as follows from the discontinuance of contributions in money. The majority, at least, of wives, are not engaged in independent vocations. A farmer’s wife has no separate income. A mechanic’s wife, who, single-handed, manages the home ;and performs the household duties, contributes no money to her husband’s support. It cannot be said in either case that the value of the services rendered is not susceptible ■of measurement in dollars and cents. The instances in which the wife does not, in the ordinary conduct of the household, perform some service which might be performed by a servant, are rare; and the cases where, even if no menial service be performed by her, she does not superintend, manage, and direct the affairs of the household, are rarer still; and to say that the loss of such service is not •a pecuniary loss would be equivalent to saying that the services of a manager of affairs are incapable of pecuniary measurement.

In Chicago & N. W. Ry. Co. v. Bayfield, 37 Mich. 205, it was held that what the decedent’s parents would lose by the death would be what they were accustomed to receive or had reasonable expectation of receiving in his lifetime, and to show that they were poor had no tendency towards showingu whether the receipts liad been or were likely to be great or small.

In Mynning v. Railroad Co., 59 Mich. 257, it was said that the mental sufferings and injured feelings, or any other injuries which are not susceptible of being compensated by a money consideration to those who are entitled to the benefit of the statute, are necessarily excluded in determining the amount of damages.

In Cooper v. Railway Co., 66 Mich. 261, decedent was but 11 years old, and it was held error to instruct the jury that they might consider such other pecuniary benefits as the parents might reasonably be expected to realize after decedent’s majority.

In Rajnowski v. Railroad Co., 74 Mich. 20, decedent was but 5 years of age, and it was held that the testimony of the fathers of other children as to the pecuniary value of a male child from the age of 5 years until it arrived at the age of 21 was admissible.

In Van Brunt v. Railroad Co., 78 Mich. 530, the deceased was an unmarried man, 22 years of age, and had no one dependent upon him. There was no showing that, decedent had ever contributed any of his earnings to any of his next of kin, or that it was expected that he would do so in the future. The Court in that case repeat the-rule laid down in the Mynning case, supra.

In Hurst v. Detroit City Railway, 84 Mich. 539, it was-held that the measure of damages in the case of a child 1 year and 11 months old was his prospective earnings until of full age.

No such narrow rule is laid down by any of these cases-as is here contended for by defendant. They hold that, in case of the death of a person under age, the damages-to the parent are limited to the prospective earnings until majority. In case of the death of a son who had arrived at his majority, the measure of damages to the parent is-the discontinuance of contributions; but this latter rule is not the limit of the recovery in a case where damages to-the husband are to be considered. Even the contributions. of the son, although of age, need not necessarily be in money, but may be in any service the value of which may be susceptible of some proof, and of being compensated by a money consideration. In the present case the husband, wife, and family lived together. The wife kept roomers and boarders, but the house was the- home of the family as well. Defendant’s counsel insists that the damage to the husband is the loss of board and lodging at the same rate paid by other boarders. Is there no other household service that a wife performs, and is the actual value of the husband’s surroundings and household privileges no greater than that of a mere roomer or boarder? While it is true that the presence and companionship of the wife are not to be considered, yet there are offices which the wife performs as the manager of the household, and there are innumerable services rendered in the care of person and apparel by the wife, which, in her absence, would have to be paid for in money. These are tangible services, and proper matters for the consideration of a jury. Proof should undoubtedly be made of the circumstances of each case, and there should be some evidence of the value of the services, as is said in the Eajnowski case, not for the purpose of controlling, but of aiding, the jury in arriving at a just conclusion. As is said in Railway Co. v. Needham, 3 C. C. A. 129, 147, 52 Fed. Rep. 371:

“In the measure of damages in such an action the constant factor is the practical knowledge, varied experience, and sound judgment of 12 men, and to these very much must be left. * * * The evidence in such a case presents so many facts and circumstances to be considered ■ — the chances and contingencies of temporary and permanent illness, of accident, injury, and disability, familiar to the experience of every juryman, and proper to be considered in estimating the probable future income of any man, but sometimes incapable of proof, are so many and so varied — that human ingenuity seems incapable of formalating a rule which shall specify every circumstance, •chance, and probability that a jury may consider, and none that it may not, in estimating the earnings his death has deprived his family of.”

In Railway Co. v. Whitton, 13 Wall. 270, which arose in Wisconsin, under a statute similar to our own, the trial court instructed the jury that plaintiff was entitled to recover for such pecuniary injury as had resulted to him from the death of his wife.

“ It is confined by the language of the statute to pecuniary loss, not the loss arising from grief or wounded feelings, or sufferings of any kind, but such pecuniary loss as he has sustained from the death of his wife. * * * Taking all the facts and circumstances into consideration, you may consider the personal qualities, the ability to be useful, of the party who has met with death, and, of course, also the capacity to earn money.”

This instruction was approved in an opinion by Mr. Justice Field.

In Railroad Co. v. Goodman, 62 Penn. St. 329, the trial court instructed the jury that—

“ Damages should be given as a pecuniary compensation, the jury measuring the plaintiff’s loss by a just estimate of the services and companionship of the wife, of which he was deprived by this accident; that is, of their value in a pecuniary sense. Nothing is allowable for the suffering of the deceased, nor for the wounded feelings of the plaintiff. Of course, the jury will examine the testimony to aid them in ascertaining the damages. But, if damages are to be given at all, there is no reason why they should be nominal merely. They should be a just compensation for the value of the companionship and services lost to him by reason of this unfortunate collision.”

Referring to this portion of the charge, the Supreme Court say:

“Looking at the entire charge on the subject of damages, we think it clearly confined the damages to a pecuniary compensation for the loss of Mrs. Goodman’s 'service. The court told the jury in express language that nothing is allowable for the suffering of the deceased, nor for the wounded feelings of the plaintiff. They said also that the plaintiff's loss was to be measured by a just estimate of the services and companionship of the wife. It is thought that this meant by way of solace for the loss of companionship. But all the judge said on this point made it ■evident he did not mean compensation by way of solace, .and could not have been so understood by the jury. ' Companionship ’ was evidently used to express the relation of the- deceased in the character of the service she performed. He merely meant to say that the loss should be measured by the value of her services as a wife or companion. The form or expression perhaps was not the best •selection of words, yet it certainly meant no more than that the pecuniary loss was to be measured by the nature of the service, characterized as it was by the relation in which the parties stood to each other. Certainly the service of a wife is pecuniarily more valuable than that of a mere hireling. The frugality, industry, usefulness, attention, and tender solicitude of a wife and the mother of •children surely make her services greater than those of an ordinary servant, and therefore worth more. These elements are not to be excluded from the consideration of a jury in making a mere money estimate of value.''

See, also, Tiff. Death Wrong! Act, § 163.

The judgment is reversed, and a new trial granted.


author: Hooker, J. McGrath, C. J.

text:
    The Woodmere Cemetery v. Peter Roulo, Highway Commissioner, and Charles E. Unruh, Clerk, of the Township of Springwells.

      ■Cemetery associations — Eminent domain — Constitutional law— Certiorari.

    1. Where, on error to review an order of the circuit court quashing a writ of certiorari issued to review proceedings for-the opening of a street and condemning land therefor, .it appears that the only question raised by the affidavit for certiorari was the alleged unconstitutionality of the act under which the proceedings were taken, only that question will be considered;” citing Railroad Co. v. Weiden, 69 Mich. 577.
    2. The right of eminent domain is the rightful authority which exists in every sovereignty to control and regulate those rights-of a public nature which pertain to its citizens in common, and to appropriate and control individual property for the public benefit, as the public safety, necessity, convenience, or welfare may demand; citing Cooley, Const. Lim. (6th ed.) 643.
    8. How. Stat. § 4772, which provides that no streets, highways, railways, sewers, or canals shall be opened or constructed through the grounds of rural cemetery associations without the assent of the board of directors, if of any validity whatever, must be construed as no more than an assurance of immunity from unnecessary interference by local officers, by precluding action on their part, without such assent, until the legislative will is manifested by further legislation,
    4. Act No. 386, Local Acts of 1893, which authorizes the duly constituted authorities of the township of Spring wells, in the county of Wayne, to open a public street through or upon the northerly side of “Woodmere Cemetery,” so called, — being the , property of a corporation organized under How. Stat. chap. 181, which provides for the incorporation of rural cemetery associations, and prohibits the opening of streets through, their grounds without the assent of their boards of directors,— and for that purpose to take certain land from said WoodmereCemetery, is not unconstitutional because confined in its operation to the particular corporation named in the act.
    Error to Wayne. (Carpenter, J.)
    Argued January 9, 1895.
    Decided April 16, 1895.

      Certiorari to review proceedings establishing a street through the grounds of the petitioner. Petitioner brings, error.
    Affirmed.
    The facts are stated in the opinion.

      William J. Cray and Charles M. Swift, for appellant.

      E. S. ClarTcson, for respondents.
   Hooker, J.

The highway commissioner of Springwells township, in the county of Wayne, ordered a highway to-be opened along the north side of Woodmere Cemetery, condemned a strip of land from the northernmost portion •of its premises, and awarded $300 damages. The land ■appropriated was not in use for burial purposes at the time, no burials having been made within a half mile of it, but it was purchased and held with a view to such use in the near future. The proceedings were removed by certiorari to the Wayne circuit court, where the writ was quashed upon the hearing.

Woodmere Cemetery is owned by a corporation organized in 1869, under chapter 181 of Howell's Statutes, entitled “Rural Cemetery Associations.” Section 4772 provides -that—

“No streets, highways, railways, sewers, or canals shall be opened or constructed through the grounds of such ■corporation, without the assent of the board of directors granted at a meeting of such board called for the purpose •of considering the propriety of granting such assent.”

The action of the highway commissioner was based on ■an act of the Legislature passed at its last session, and known as Act No. 386, Local Acts of 1893, reading as follows:

The People of the State of Michigan enact, That it .shall be lawful, and the duly constituted authorities and their successors in office shall have the power, under the regulations prescribed by law for the opening of public ¡streets, to open a public street through or upon the northerly side of Woodmere Cemetery, so called, in the township of Springwells, in the county of Wayne, and ■State of Michigan, and may take for said purpose the following described land from said cemetery, to wit: All .land for the full width of Toledo avenue, so called, when extended, lying- northerly of a line commencing at the point of intersection between the southerly boundary line •of said Toledo avenue with the easterly boundary line of ■said cemetery, near the north-easterly corner thereof, and running thence westerly in a straight line across the lands of said cemetery for the full length thereof, said .line being the southerly boundary line of said Toledo. avenue extended westerly in a straight line across said lands; it being intended hereby to include and describe all land now belonging or which may hereafter belong to said cemetery lying in the direct line of said Toledo avenue-extended westerly across said lands, and which may be needed for the extension and opening of said street for the full width thereof across said lands, said land being in town two south, of range eleven east. And all acts or parts of acts, general or special, in conflict herewith are hereby repealed, but only so far as they may apply to the-above-described strip of land of said cemetery.”

The only question raised by the affidavit for certiorari is whether the act of 1893 is constitutional; hence no other will be considered by us. Grand Rapids, Lansing & Detroit R. R. Co. v. Weiden, 69 Mich. 577.

Counsel for appellant cite article 15, § 1, of the Constitution, which provides that—

“Corporations may be formed under general laws, but. shall not be created by special act except for municipal purposes.”

It is also asserted that—

“The object of this provision is to inhibit the granting of special privileges to one or more of a class, and this objection is of as much weight where the special privileges are granted to all but one as if they were granted to one-only, and all others were excepted.”

The brief continues as follows:

“As amended, the act now reads: ‘No streets, highways, railways, sewers, or canals shall be opened or constructed through the ground's of such corporation, without the assent of the board of directors granted at a meeting called for the purpose of considering the propriety of granting such assent. Provided, that this provision shall not apply to the Woodmere Cemetery so -far as concerns, the northerly 33 feet of its cemetery grounds in Spring-wells/ In other words, Woodmere Cemetery is the only cemetery corporation in the State whose land may be taken for public highways. The valuable privilege of exemption from street openings belongs to every cemetery association excepting this one.”

The right of eminent domain is an incident that attaches to every sovereignty, and constitutes a condition upon which all property is holden. Kramer v. Railroad Co., 5 Ohio St. 146. As stated by Mr. Justice Cooley:

“It is the rightful authority which exists in everj sovereignty to control and regulate those rights of a public-nature which pertain to its citizens in common, and to-appropriate and control individual property for the public-benefit, as the public safety, necessity, convenience, or" welfare may demand.” Cooley, Const. Lim. (6th ed.) 643..

Walworth, Ch., in Beekman v. Railroad Co., 3 Paige, 45, says:

“Notwithstanding the grant to individuals, the eminent domain, the highest and most exact idea of property, remains in the government, or in the aggregate body of the people in their sovereign capacity; and they have a right, to resume the possession of the property, in the manner-directed by the constitution and laws of the state, whenever the public interest requires it. This right of resumption may be exercised, not only where the safety, but. also where the interest, or even the expediency, of the-state, is concerned; as where the land of the individual is. wanted for a road, canal, .or other public improvement.”

See other cases cited by Mr. Justice Cooley in Constitutional Limitations (6th ed.), p. 644, note 1. . In further discussion of this subject, the learned author says:

“When the existence of a particular power in the government is recognized on the ground of necessity, no delegation of the legislative power by the people can be held to vest authority in the department which holds it in trust to bargain away such power, or to so tie up the hands of the government as to preclude its repeated exercise as often, and under such circumstances, as the needs of the government may require; for, if this were otherwise, the authority to make laws for the government and welfare of the state might be so exercised, in strict conformity with its constitution, as at length to preclude the state performing its ordinary and essential functions, and the agent chosen to govern the state might put an end to the state itself. It must follow that any legislative bargain. in restraint of the complete, continuous, and repeated exercise of the right of eminent domain is unwarranted and void; and that provision of the Constitution of the United States which forbids the staters violating the obligation of contracts could not be so construed as to render valid and effectual such a bargain, which originally was in excess of proper authority.”

See further comments on this subject in the same volume, page 339. Eastern R. R. Co. v. Boston & Maine R. R., 111 Mass. 125, and cases cited.

We are not to presume that the Legislature intended to barter away sovereign rights when by general law it provided that lands held by cemetery associations should not be taken for highways without the consent of their boards of directors. A'V’hile, as shown, an attempt to do so would be futile, it is the rule that such an intention will not be assumed from an act which will. reasonably bear another construction. It would seem unnecessary to cite authorities upon a proposition so nearly self-evident. See cases •cited in Cooley, Const. Lim. (6th ed.) p. 340, note 1. 'Therefore, the provision which counsel treat as an exception from the burden of the right of eminent domain, if •of any validity whatever, must be considered as no more than an assurance of immunity from unnecessary interference by local officers, by precluding their action, without the consent of the cemetery associations, until the legislative will should be manifested by further legislation. In other words, it required an appeal to itself before such property could be condemned, but did not attempt to bind its successors by an engagement that an incident of sovereignty should be relinquished.

It remains to consider the act of 1893. It is contended that this is void, because the Legislature is prohibited from creating corporations by special act.' In our judgment, it cannot be said that this act attempted to create a corporation. At the furthest it undertook to subject certain property of an existing corporation to appropriation under the right of eminent domain. Whether the Legislature is, by the clause of the Constitution cited, precluded from limiting or in any way extending the powers and franchises of existing corporations by special act, we need not decide. The question before us is whether this constitutional provision precludes a similar exercise of the right of eminent domain where the property of corporations is sought to be taken as in other cases. To be more specific, is the position tenable that the Legislature, having authority to appropriate any property for public purposes, is by this clause prohibited from doing so, in cases of corporations, unless it makes a general rule applicable to all? Having occasion to extend Toledo avenue across Woodmere Cemetery, must it pass a general law that streets may be laid across all cemeteries without consent of the respective boards? If it desired to lay out a State road across these grounds, would it be necessary to provide for State roads through all cemeteries? If it determined that a State capitol, a prison, or an arsenal should be erected upon a part of this land, must it pass a general law that would authorize the condemnation of all other cemeteries for sites for other State capitols, prisons, or arsenals, when it is notorious that but one site, or at most .but few sites, would ever be required? These questions would seem to be answered by the asking. The power to create corporations, like that of eminent domain, needed no constitutional provision to confer it upon the Legislature. A restriction was placed upon the exercise of each, but these restrictions are to be measured by a reasonable construction. Innumerable cases sustain the proposition that the exercise of the right of eminent domain is confided to the Legislature, and we think that it was not intended that it should be limited by the provision prohibiting the creation of corporations by special act. The power lies dormant until the Legislature acts. It may delegate the authority, and recall it at will. Its delegation cannot prevent its own intervention in the very cases covered by the delegated authority. Special acts are recognized everywhere as proper to set the machinery in motion where particular property is needed, and we see no reason why the Legislature may not say that an extension of Toledo avenue is necessary, as well as to determine that a State road across certain premises in any other part of the State is necessary. In neither case would there be occasion for providing for the appropriation of other lands for other roads or purposes, when there was no certainty that they would ever be needed.

As another reason for holding the act of 1893 unconstitutional, it is said that Woodmere Cemetery, is protected by a general law, by which it has a right to be governed until such time as the same shall be altered by a law applicable to all other cemetery associations as well as itself, and that “general laws may be repealed, but when repealed the suspension must be general, and cannot be made for individual cases or for particular localities.” It has been shown that absolute exemption of this or any other property from the right of eminent domain is impossible, because a law attempting it would be void. If the law in question — i. e., section 4772 — is to be held valid, and therefore any protection whatever to the cemetery association, it is because it relieves its property, in common with other cemetery property, from appropriation, until the Legislature shall see fit to exercise its power, which it may ordinarily do by a general law subjecting all property of the class to such appropriation, under proceedings of a specified character, or by special legislation, aimed at the appropriation of particular property, upon its own determination that the requisite exigency has arisen. The effect of the contention of counsel for the cemetery is that, admitting this, the fact that section 4772 requires consent, restricts the legislative power to act specially, and compels it to proceed by general laws. This differs from their first proposition only in degree, inasmuch as the first was said to be a parting with the entire power of the Legislature, while this is an agreement that it will act only through general laws, and is therefore a surrender of a portion of the incident of sovereignty. But, further, section 4772 was-practically a prohibition of action by the township officers-in all cases, so far as condemnation proceedings were concerned, though they could still lay highways across these-lands by consent of the parties. But for this provision, the act would have absolutely prohibited, not only condemnation proceedings by them, but the laying of highways through lands of cemetery associations in any case; and there is much force in the proposition that this provision was inserted, not to create an exemption in favor of the cemetery association, or to make more binding a suspension of power which was already complete, but to mitigate its severity by relieving local municipalities, and the-cemetery associations themselves, from the inconvenience of a prohibition which would otherwise preclude action-even where all parties desired a road, and where, therefore, the occasion for the prohibition had ceased to exist. Instead of being an exemption from condemnation for the-benefit of cemetery associations, it was an exception intended as a means of relief to them and the public from the general law protecting cemetery property from invasion until the Legislature should see fit to take further action. It enabled the cemetery association and local authorities to-obtain a highway, when desired by all, without being put to the trouble and expense of legislative action, which without this provision would have been impossible. In-other words, section 4772 took away all power from local' officers, not to condemn land alone, but to lay highways across cemeteries, thereby not only leaving the power of eminent domain dormant, but leaving no provisions by which a road could even be laid out, in such cases, except through a direct appeal to the Legislature in each particular case. The saving clause, however, rendered that unnecessary where the board of. directors should consent to have the highway laid out. In such cases there would be no necessity for resorting to condemnation proceedings. If, however, consent could not be obtained, there was no other way but to apply to the Legislature. This we think the proper construction of section 4772, and, being so, the act of 1893 should be treated like any other attempt of the Legislature to exercise the power of appropriation of private property for a particular or specified purpose, which does not call for a general law, but may be made the subject of a special act.

The judgment of the circuit court will be affirmed.

Long, Grant, and Montgomery, JJ., concurred with Hooker, J.

McGrath, C. J.

(dissenting.) While I concur in the view that the State cannot barter away the right to condemn property for its own use, I do not regard that question as before us. The Legislature has the undoubted right to grant to or withhold from a township the power of condemnation, and it cannot be said that the power in the present case is being exercised as a delegated power or on behalf of the State. The proceedings are not instituted by or on -behalf of the State, nor is the property being taken for a State road, or a State capítol, prison, or arsenal. The part of the original act exempting cemetery lands from street-opening proceedings was certainly valid. It simply exempted cemetery associations from the operation of the general law empowering municipalities to condemn lands for street purposes. In order to uphold the act of 1893, it is necessary to hold that the right of eminent domain is such an essential incident of local government that the Legislature had no power by the original act to restrict its exercise. In Re Opening of First Street, 66 Mich. 42, the city had made a contract agreeing not to open a street across the line of a railroad company, and it was held that such an agreement was an abnegation of the legislative functions of the city, and therefore void. The contract in that case never had any validity. If the exemption in the present case was invalid, the act of 1893 was unnecessary, for the township could have proceeded under the general law. The opening of streets is not the business of the Legislature, no more so than is the condemnation of lands for railway purposes, and the same rule is applicable as if the proceeding here were taken in behalf of a railway company. The Legislature grants the authority in either case. The municipality acts in its discretion, whether in opening or closing a street. The act of 1893 imposes no duty upon the township. It is purely a grant of authority. It is no abdication of sovereignty to make a particular contract which restrains the government from conferring a power which it may grant or withhold, or grant with restrictions upoú its exercise. • Inasmuch as the act of 1893 must be treated as-a grant of authority to the township, to be exercised in. its discretion, and not as the initiative in a proceeding by or on behalf of the State, it is special in its nature and operation, directed at a single corporation, and therefore invalid.

In my opinion, the proceedings should be quashed.