author: MOORE, J.

text:
    MCDOWELL v. FULLER.
    1. Evidence — State — Bribery — State Prison — Contracts—Forfeiture — Good Faith.
    In an action against the warden of the Michigan Reformatory at Ionia for breach of a contract for convict labor, evidence that one of the members of the board of control acted corruptly and had agreed to accept a bribe so as to influence his vote in favor of reinstating the contract, which the board determined had been breached and had been forfeited, was not competent in support of the plaintiff’s case, since it did not tend to impeach the good faith of the entire board. The admission of testimony having a tendency to establish such claim was erroneous and prejudicial, in conjunction with instructions of the court to the jury, permitting them to consider the alleged bribery upon the issue of good faith.

      2. Estoppel — States—Principal and Agent — Public Officers.
    As a general rule the State is not estopped by acts or conduct of its. public officers amounting to a waiver or acquiescence, negligence .or fraud. Acts of an official such as are not within the scope of his authority are not official acts and the State is not bound thereby. The question of the bribery of one of several members of a State board was- not a material issue in an action for the breach of a contract made with the State. Good faith on the part of the State in declaring such contract forfeited would not establish a breach of the contract on the part of the plaintiff, nor would proof of bad faith on the part of the State officials in attempting to forfeit the contract excuse a breach if such actually existed.
    Steere, J., dissenting.
    Error to Jackson; Parkinson, J.
    Submitted January 29, 1914.
    (Docket No. 148.)
    Decided January 4, 1915.
    Assumpsit by Joseph S. McDowell, assignee of Alfred Wallerstein, against Otis Fuller, warden of the Michigan Reformatory at Ionia, for breach of a contract for convict labor. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Franz C. Kuhn and Grant Fellows, Attorneys General, and Thomas A. Lawler, Assistant Attorney General, for appellant.

      Smith, Baldwin & Alexander, Leventritt, Cook & Nathan and Allen & Chard, for appellee.
   MOORE, J.

This case is now here by writ of error. After it was brought here, the appellant made a motion to dismiss the writ, and also to dismiss the cause and all proceedings thereunder, and to decide the plaintiff was without authority to proceed further with this cause, or to attempt to collect the judgment of the lower court. We were of the opinion that it would be inconsistent to say, in a motion to dismiss, that we were without jurisdiction in the case, and at the same time exercise jurisdiction by passing upon the effect of the judgment rendered in the same case in the trial .court, and, as the motion could not be granted in toto, that it should be denied. Since that order was made, the case has been heard and submitted in this court, and many of the questions considered upon the motion to dismiss are here again, so that it would be very helpful to refer to the opinion found in 169 Mich. 332 (135 N. W. 265). In that opinion it is held that the State is a party to the litigation. It is also held that it was competent for the State to withdraw, at any time, its consent to be sued, without impairing the obligation of contracts. The effect of such withdrawal, upon a judgment rendered in the circuit court before the withdrawal legislation took effect, when said judgment had been removed to this court by writ of error, was left undecided.

The question is now before us. Counsel for appellees say in substance that they had a cause of action, growing out of a contract which they brought into court, and upon which they obtained a judgment in the circuit court, conferring upon them a vested right, and that, while the repealing clause may affect the right of this court to proceed, it does not affect the judgment in the court below or their right to collect it. Much reliance is placed by the appellees upon the case of McCullough v. Virginia, 172 U. S. 102 (19 Sup. Ct. 134). We think that case distinguishable from the instant case. It is a case in the Federal courts. Virginia had passed, in 1871 (Laws 1870-71, p. 378), an act authorizing the issue of bonds and providing, among other things:

“The coupons -shall be payable semi-annually and be receivable at and after maturity for all debts, taxes, dues, and demands due the State, which shall be so expressed on their face.”

These bonds were issued, and some of them became the property of the plaintiff. Later the State repealed that part of the act making the matured coupons receivable for taxes, and it was held that this impaired the obligation of contracts, within the meaning of the Constitution. It is true that the question was raised that the State of Virginia had withdrawn its consent to be sued by a repealing statute after judgment in the trial court, and therefore the whole proceeding abates. Justice Brewer said:

“But the judgment in this case did not go upon the effect of that repealing statute. It was not noticed in the opinion, and the decision was not that the suit abate by reason of the repeal of the statute authorizing it, but that the judgment of the trial court be reversed, and a new judgment be entered against the petitioner for costs. If the action had abated, it was error to render judgment against him for costs.”

It is true that later in the opinion it was stated:

“It is not within the power of a legislature to take away rights which have been once vested by a judgment. Legislation may act on subsequent proceedings, may abate actions pending, but when those actions have passed into judgment the power of the legislature to disturb the rights created thereby ceases.”

If this language is not dictum, and if it is regarded as saying that a judgment in a trial court pending a writ of error to an appellate court creates a vested right, then we think it must be said the opinion is against the great weight of authority, as will appear later.

Counsel also cite and rely upon Town of Strafford v. Town of Sharon, 61 Vt. 126 (17 Atl. 793, 18 Atl. 308). A reading of the opinion in that case will show it is not controlling.

In 26 Am. & Eng. Enc. Law (2d Ed.), pp. 747, 748, it is said that the general rule—

“may be stated to be that the repeal of a statute, in the absence of a saving clause, necessarily divests and destroys all inchoate interests which have arisen under it, while it leaves unimpaired those which either have become invested or, though connected with it, have an independent existence. * * * Though it is, as a general rule, the province of an appellate court to inquire only whether the judgment appealed from was in accordance with law at the time it was rendered, yet if, pending the appeal, the law which authorized the judgment is repealed, the judgment must be reversed.”

It is also said:

“If a law conferring jurisdiction is repealed, expressly or by implication, without any reservation or saving clause, the fight to exercise the jurisdiction is lost, and proceedings pending under it fall with the law.” Pages 751, 752, Id.
“Even the recovery of a judgment for a statutory penalty or forfeiture does not give a vested right thereto, where an appeal has been taken, because the judgment, under such circumstances, is not immediately enforceable; and therefore the repeal of the statute pending the appeal will necessitate the reversal of the judgment and the dismissal of the action.”

In 36 Cyc. p. 915, it is said:

“The consent of a State to be sued, being voluntary, may be withdrawn or modified by the State whenever it sees fit, even though pending suits may be thereby defeated; and, upon the repeal of the statute authorizing the suit, the court in which the suit is pending can proceed no further therein.”

In Vance v. Rankin, 194 Ill. 625 (62 N. E. 807, 88 Am. St. Rep. 173), it is said:

“ ‘It is well settled that, if a statute giving, a special, remedy is repealed without a saving clause in favor of pending suits, all suits’ must stop where, the repeal finds them. If final relief has not been granted, before the repeal went into effect, it cannot be after." South Carolina v. Gaillard, 101 U. S. 433. ‘If a case is appealed, and, pending the appeal, the law is' changed, the appellate court must dispose of the case under the law in force when their decision is rendered.; Cooley’s Const. Lim. (2d Ed.) '381, and note. The effect of the repeal of a statute is' to obliterate the statute repealed as completely as if it had never been passed, and it must be considered as a law that never existed, except for the purposes of thdse actions or suits which were commenced, prosecuted, and concluded while it was an existing law. Ex parte McCardle, 7 Wall. 514; Key v. Goodwin, 4 Moore & P. 341; Thorne v. San Francisco, 4 Cal. 165; Musgrove v. Railroad Co., 50 Miss. 677; Town of Belvidere v. Railroad Co., 34 N. J. Law, 193. Pending judicial proceedings, based upon a statute, cannot proceed after its repeal. Gilleland v. Schuyler, 9 Kan. 569; Wade v. St. Mary’s School, 43 Md. 178; McMinn v. Bliss, 31 Cal. 122; State v. Daley, 29 Conn. 272. This rule holds true until the proceedings have reached a final judgment in the court of last resort, for that court, when it comes to pronounce its decision, conforms it to the law then existing, and may therefore reverse a judgment which was- correct when pronounced in the subordinate tribunal from whence the appeal was taken, if it appears that pending the appeal a statute which was necessary to support the judgment of the lower court has been withdrawn by an absolute repeal. Hartung v. People, 22 N. Y. 95; Hubbard v. State, 2 Tex. App. 506; Atwell v. Grant, 11 Md. 104; United States v. Peggy, 1 Cranch, 103; Mayor of Annapolis v. Maryland, 30 Md. 112. In Musgrove v. Railroad Co., supra, a judgment erroneous when pronounced was affirmed because the subsequent repeal of a statute freed it from error. In Keller v. State of Maryland, 12 Md. 323 (71 Am. Dec. 596), the court having affirmed a judgment in ignorance of the repeal of a statute pending the appeal, afterwards at the same term; on its attention being called, to the repeal, struck out the order of affirmance and in its place entered a judgment of reversal. In Wikel v. Board of Com’rs of Jackson County, 120 N. C. 451 (27 S. E. 117), which.was a petition for mandamus to compel the county commissioners to build a bridge and levy a tax for that purpose, as required by the act of 1895, which.act, pending an appeal from a judgment granting a peremptory writ was repealed it was held that the repeal of such act destroyed the subject-matter of the action, and that the suit should abate.
“The repeal of a statute conferring jurisdiction takes away all right to proceed thereunder, unless it is expressly saved (Illinois, etc., Canal v. City of Chicago, 14 Ill. 334), and it carries with it all prosecutions pending thereunder (Wilson v. Railway Co. 64 Ill. 542 [16 Am. Rep. 656]), and, except for the purposes of such suits as are begun, prosecuted, and concluded while it is an existing law, the statute repealed is as if it never existed (Eaton v. Graham, 11 Ill. 619; Van Inwagen v. City of Chicago, 61 Ill. 31; Menard County v. Kincaid, 71 Ill. 587; Town of Jefferson v. People, 87 Ill. 503; Holcomb v. Boynton, 151 Ill. 294 [37 N. E. 1031]). In Van Inwagen v. City of Chicago, 61 Ill. 34, it is said: ‘The doctrine is that inchoate rights, derived under a statute, are lost by its repeal, unless saved by express words in the repealing statute, and unless those rights have become so far perfected as to stand independent of the statute; * * * that is to say, executed. * * * The effect of a repealing statute is to obliterate the prior law as completely from the records as if it had never passed, and it must be considered as a law that never existed, except for the purpose of those actions or suits which were commenced, prosecuted, and concluded while it was an existing law.' In Holcomb v. Boynton, 151 Ill. 297 (37 N. E. 1032), the court say: ‘Where a statute is repealed without such saving clause, it must be considered, except as to proceedings passed and closed, as if it had never existed.' ”

See Railroad Co. v. Tennessee, 101 U. S. 337; Railroad Co. v. Alabama, 101 U. S. 832; Baltzer v. North Carolina, 161 U. S. 240 (16 Sup. Ct. 500), and Beers v. Arkansas, 61 U. S. (20 How.) 527.

In a note to Todd v. Landry, 12 Am. Dec. 479, appears the following:

“The effect of the repeal of a statute is To obliterate the statute repealed as completely from the records of parliament as if it had never passed, and it must be considered as a law that never existed, except for the purposes of those actions or suits which were commenced, prosecuted, and concluded while it was an existing law.’ Ex parte McCardle, 7 Wall. 514; Key v. Goodwin, 4 Moore & P. 341; Thorne v. San Francisco, 4 Cal. 165; Van Inwagen v. Chicago, 61 Ill. 31; Musgrove v. Railroad Co., 50 Miss. 677; Town of Belvidere v. Railroad Co., 34 N. J. Law, 193. Pending judicial proceedings, based upon a statute, cannot proceed after its repeal. Gilleland v. Schuyler, 9 Kan. 569; Wade v. St. Mary’s School, 43 Md. 178; McMinn v. Bliss, 31 Cal. 122; State v. Daley, 29 Conn. 272. This rule holds true until the proceedings have reached a final judgment in the court of last resort, for this court, when it comes to pronounce its decision, conforms it to the law then existing, and may therefore reverse a judgment which was correct when pronounced in the subordinate tribunal whence the appeal was taken, if it appears that, pending the appeal, a statute which was necessary to support the judgment of the lower court has been withdrawn by an absolute repeal. Hartung v. People, 22 N. Y. 95; Hubbard v. State, 2 Tex. App. 506; Montgomery v. State, 2 Tex. App. 618; Shepard v. State, 1 Tex. App. 522 [28 Am. Rep. 422]; Atwell v. Grant, 11 Md. 104; Price v. Nesbitt, 30 Md. 263; United States v. Peggy, 1 Cranch, 103; Mayor of Annapolis v. Maryland, 30 Md. 112. In one instance a judgment erroneous when pronounced was affirmed, because the subsequent repeal of the statute freed it from error. Musgrove v. Railroad Co., 50 Miss. 677. Another court having affirmed a judgment in ignorance of the repeal of a statute, pending the appeal, afterwards, at the same term, on its attention being called to the repeal, struck out the affirmance, and in its place entered a judgment of reversal. Keller v. State, 12 Md. 323 [71 Am. Dec. 596].” People v. Bank, 159 Cal. 65 (112 Pac. 866, 37 L. R. A. [N. S.] 934, Ann. Cas. 1912B, 1148).

It would seem to be clear that after an appeal is taken from the circuit court to the Supreme Court, until the appellate court has spoken, it cannot be known whether the judgment will be affirmed or reversed. In Baumgarth v. Insurance Co., 159 Mich. 207 (123 N. W. 592), it is held that the issuance of a writ of error from the Supreme Court is a continuation of the original cause, and not a new proceeding. How can it then be said there is a vested right created by the judgment in the trial court? Instead of it being true that the litigation is ended, we think it must be said that the litigation is yet pending.

Under the facts disclosed by this record, applying the principles of law as stated in the authorities from which we have quoted, we are constrained to reverse the judgment. As this result has been brought about by legislation on the part of the State, enacted after the judgment in the court below was obtained, we decline to give either party costs.

Judgment is reversed, and no new trial is granted.

BROOKE, C. J. After a careful examination of the record in this ease, I am satisfied that reversible error was committed upon the trial. We held (McDowell v. Fuller, 169 Mich. 332 [135 N. W. 265]), that this action is one against the State. Upon the trial the plaintiff was permitted to introduce testimony bearing upon the attempt upon the part of Wallerstein to bribe a member of the board of control, one Locke. Testimony was received over objection relative to the claimed conversations which took place in the city of Jackson with reference to the alleged bribery. With reference to this testimony, the attorney general interposed the following objection:

“We wish the record to show that we object to this testimony on the ground it was subsequent to cancellation of the contract by the board; that it is irrelevant, immaterial, and incompetent; and there is no testimony upon which can be based a claim for damages against the State and has no tendency to show bad motives on the part of the board as a board and would not affect their action legally.”

I regard it as an elementary principle that the State is not to be held estopped by the acts or conduct of its officers through waiver, acquiescence, negligence, or fraud. Crane v. Reeder, 25 Mich. 303; Manthey v. Vincent, 145 Mich. 327 (108 N. W. 667); Olds v. Commissioner of State Land Office, 150 Mich. 134 (112 N. W. 952); and State v. Land Co., 160 Mich. 702 (125 N. W. 770). Where the acts of the official are not within the scope of his authority, they are not official acts, and the State is not bound thereby. The State is not liable for the torts of its officers, though committed in the discharge of official duties. 26 Am. & Eng. Enc. Law (2d Ed.), pp. 479, 480, and 481. See, also, People v. Brown,, 67 Ill. 435, and State v. Brewer, 64 Ala. 287.

The basic question involved in the controversy was whether the State was justified in declaring the so-called Wallerstein contract forfeited. In his instructions to the jury, the learned trial judge used the following language:

“This testimony [with reference to the bribery of Locke]_ was admitted for you to consider in connection with the question as to whether or not there was good cause for canceling the Wallerstein contract. If you are able to say from the evidence, without reference to any claim of fraud or unlawful motive on Mr. Locke’s part, that the receiver, Mr. Hatch, did not as a matter of fact, no matter for what cause or reason, employ the men assigned by the prison authorities to the Wallerstein contract, and that in considerable numbers the men so assigned and ready to be used were not used, and this was of frequent occurrence, or such disuse was prolonged, so that either the number so not used or employed was considerably in excess of the number suffered by the prison authorities to be in idleness from time to time before Hatch’s receivership beginning May 2, 1903, or if, while the number not used and necessarily remaining idle, even if not much or any in excess of what had been before customarily permitted on occasion to remain temporarily idle, yet such idleness became more prolonged, or of much more frequent occurrence, so that there was a sensible increase of care and responsibility thrown upon the prison authorities on that account, that the work of enforcing or maintaining discipline was more difficult, if there was a perceptible increased interference with discipline, or the. warden was to a greater extent than had been customary theretofore prevented from carrying into effect the sentences of the court imposing hard labor, then there was good cause for declaring the contract broken by Mr. Hatch, who was then charged with its performance as receiver of Wallerstein & Co., and the prison authorities had good cause for determining not to perform any longer on their part, no matter what corrupt or improper motive might have actuated Mr. Locke in voting to take advantage of the default of the other party, as I have substantially already said.
“But if you find it doubtful as to the actual facts in respect to whether Hatch, as receiver, was carrying out the Wallerstein contract substantially as completely as the Wallersteins had performed before Hatch was appointed and as they had been suffered to perform, and you think it doubtful whether the board of control had good cause for declaring the contract at an end or for refusing to longer carry it out, then you should consider the charge of fraud brought against Locke, and determine, first, whether it is proved by a preponderance of the evidence on that question, and, if so, whether it was the cause, the efficient procuring cause of the action of the prison board of control, and also the cause of the board insisting upon its action declining to change it. * *
“And I go still further and instruct you that if the number of men not kept at work was' considerably increased over what had been the usual experience when the contractor was going forward under ordinary circumstances, or the men not at work, whether increased in number or not, were kept idle for more frequent time or greater length of time, and there appeared no prospect of immediate change in this condition, the prison authorities might declare this a breach on the part of Wallerstein & Co., or the receiver, and in so doing might, in relying upon that situation as a cause, take into consideration the circumstances in which Wallerstein & Co. were placed, their situation as being in the hands of a receiver in bankruptcy as indicating to the board of control of the prison the likelihood of this condition of default continuing, indications of immediate or early change for the better not being evident, the situation being prospectively prolonged, perhaps indefinitely, and acting in good faith in accordance with its own judgment, as the controlling board, and in reference to such a situation, if that was the situation, it would have the right and it might be its bounden duty to refuse longer to recognize the contract as binding or to suffer further default on the part of the contractor or the receiver.”

It is apparent from the foregoing excerpt, and it becomes even more apparent from an examination of the entire charge, that the jury were permitted, and indeed instructed, to consider the alleged bribery or attempted bribery of Locke and permit it to have weight in determining whether the State was justified in declaring the Wallerstein contract forfeited, and acted in good faith in so doing. It is clear, I think, that the question of the bribery or attempted bribery of Locke was immaterial to the issue. The Wallersteins had either breached the contract in such a manner as to warrant the State in declaring it forfeited, or they had not breached it, in which event the action of the State in forfeiting it was invalid. Good faith on the part of the State in declaring it forfeited would not establish a breach of the contract on the part of the Wallersteins, nor would bad faith on the part of the State in taking this action excuse such breach if, in fact, it existed. It seems very clear to me that the admission of the testimony in question, and the charge of the court in connection therewith, was erroneous and prejudicial to the defendant. If I am right upon this question, it becomes unnecessary to consider the other questions involved, and particularly the one treated in the opinion of Mr. Justice Moore.

Upon the record as it stands in this court, I am of opinion that this court should content itself with an entry of an order reversing the judgment of the court below, for the reason pointed out herein.

McAlvay and Stone, JJ., concurred with Brooke, C. J.

Ostrander, J. The State, through the warden of the Michigan reformatory at Ionia, who acted in pursuance of a statute making him capable in law of suing and being sued in all matters concerning the prison by his name of office, made a contract with plaintiff’s assignor. For an alleged breach of the contract, suit was brought against the warden, was tried in the circuit court for Jackson county, with a jury, resulting in a judgment in plaintiff’s favor of $22,000. The judgment was rendered April 23, 1910. The defendant sought to review the proceedings on error, but the bill of exceptions was not settled until May 25, 1911. By an act approved May 1, 1911, effective July 30, 1911 (Act No. 219, Pub. Acts 1911), the legislature amended the law (1 Comp. Laws, § 2091) in such manner that we held (169 Mich. 332, 334 [135 N. W. 265]), that the right of the warden to sue and be sued was withdrawn. From the manner in which the amendment was made, I must doubt whether a majority of the members of the legislature intended thereby to repudiate the plaintiff’s claim or supposed the law,

as amended, would have- the effect that is now claimed for it. The writ of -error being undecided, the attorney: general moved to dismiss the action and all proceedings in. connection therewith and for- an order determining-that plaintiff is without authority to proceed further to collect his judgment. This motion was denied March 29, 1912. Thereafter the record was printed and was filed June- 8, 1912. The brief of the attorney , general was filed September 4, 1912; a brief for the appellee having theretofore been filed. The brief for the attorney general does not raise the point that the court is without jurisdiction to- examine the errors assigned, or is bound to reverse the judgment because of the amendment to the statute. In January, 1914, in a supplemental brief, and at the hearing, the attorney general contended and contends that the legislation which has been referred to effected a withdrawal of the privilege of the plaintiff to sue the State, violated no contract obligations, and that the action has abated.

In my opinion, the judgment of the circuit court for the county of Jackson, as a judgment, cannot be set aside or avoided by the legislature. I have examined many of the authorities cited in the opinions and annotations which are made a part of the opinion of Mr. Justice Moore. I have found no case which supports the conclusion at which he has arrived. The rights which the plaintiff sought to enforce were not derived from the statute. His remedy against the State was so derived. The. remedy was not taken away until after he had recovered his judgment, until after, according, to the . law of the State, his demand had been liquidated and his right to recover it had become a vested right. He is not attempting to further pursue the remedy. It is the State which is urging that,, because it has sued out a .writ of error to review the judgment, the cause -is pending, and plaintiff is still dependent upon the statute remedy. The question immediately open to the State, in this court, on this appeal, is whether the judgment should have been obtained. If no error was committed, the judgment cannot be disturbed.

When the State enters into business, as an individual may do, it is bound, I think, by the same rules as are individuals with whom it makes contracts. The persons who are intrusted with the management of the State’s private, proprietary, business affairs may do whatever the general agents of any business proprietor may do. If this is so, the State may be estopped by their conduct, may waive strict performance of contracts, and may not profit by their fraud or misconduct.

Whether reversible error was committed in the trial of this cause depends, I think, upon whether incompetent and irrelevant testimony was admitted in the attempt of the plaintiff to prove that the action of the board of control, which terminated the contract which is the foundation for this suit, was taken in bad faith and amounted to a fraud, and whether the court correctly instructed the jury upon that subject. I assume, of course, that the board had not the right to arbitrarily forfeit of terminate the contract, and that plaintiff had the right to prove, if he could, that the attempted forfeiture was arbitrary and fraudulent. It was conceded by counsel for the State, at the trial (record, p. 72), that plaintiff had the right to show improper motives, corrupt motives, on the part of the board in canceling the contract. The situation was a peculiar one. Whether plaintiff was performing the contract according to its- terms- depended somewhat upon the view which the warden and board of control took of the manner in which the men were employed, the number employed, and the time they were employed. The men were not free, but were prisoners. Discipline and good order in the institution, as well as the profits to be derived from the labor of the men, were matters to be considered. If a practice or practices, of the contractor, approved for a considerable time and apparently satisfactory to the officials, were later made the ground for declaring the contract relations at an end, especially if no amendment of the practices was first demanded, some foundation would be laid for the claim that the action forfeiting the contract was arbitrary. It is a theory advanced by plaintiff that one member of the board acted corruptly in forfeiting the contract, and testimony was introduced which tended to prove it. It was testimony of conversations with the member and his conduct after the action canceling the contract had been taken.' It affected no other member of the board.' The court advised the jury that they might use this testimony to resolve a doubt, if they had one—

“As to the actual facts in respect to whether Hatch, as receiver, was carrying out the Wallerstein contract substantially as completely as the Wallersteins had performed before Hatch was appointed and as they had been suffered to perform, and you think it doubtful whether the board of control had good cause for declaring the contract at an end, * * * then you should consider the charge of fraud brought against Locke and determine, first, whether it is proved by a preponderance of the evidence on that question, and, if so, whether it was the cause, the efficient, procuring cause of the action of the prison board of control, and also the cause of the board insisting upon its action declining to change it.”

I have said that the testimony referred to has some tendency to prove that one member of the board acted corruptly. It had no tendency to prove that other members acted corruptly, and should have been confined, in the instructions, to its legally probative sphere. And, unless the jury was satisfied that the contract was being substantially carried out by the contractor according, at least, to a method theretofore acceptable to the prison authorities, plaintiff had failed to make out a case and could not be aided by the conduct of Locke, whether it was fraudulent or otherwise. I am impressed that the testimony should not have been received for the purpose for which it was used, and that, with the instruction referred to reversible and extremely prejudicial error was committed.

Whether a new trial ought to be awarded depends, in my opinion, upon whether plaintiff has any other remedy; because I deny the right of the State to enter upon contract relations such as are involved in this suit, at the same time affording the other party a remedy for its breach of the contract, and then withdraw all remedy. There is a remedy for plaintiff other than through the courts, namely, through the board of State auditors. Constitution, art. 6, § 20. This being so, the judgment should be reversed, without prejudice to the right of plaintiff to present his claim to this board.

Steere, J. I am unable to conclude that this court now has any authority to enter upon a review of this case, either for affirmance or reversal. The legislature has spoken and removed by repeal a former statute conferring power to pursue a remedy against the State in its courts, with the result that the repealed statute must be considered as never having existed, except as to actions theretofore prosecuted and concluded. All courts are stripped of jurisdiction to proceed further. Pending actions and all proceedings growing out of them must stop where the repeal finds them.

Legislation having thus withdrawn jurisdiction from the court, its only remaining duty and power in the premises is to dismiss the proceedings because its jurisdiction is gone, as in any other litigation where want of jurisdiction is made manifest.

Kuhn and Bird, JJ., did not sit.


source: Caselaw Access Project

author: Brooke, C. J.

license: Public Domain

text:
    WRIGHT v. KNAPP.
    Husband and Wife — Deeds—Estates by Entireties — Joint Tenancy — Conveyances.
    An attempted conveyance executed by a married man conveying real estate owned by bim to bimself and wife jointly, as grantees, operates as a conveyance of an estate in common and vests in tbe wife one-balf interest in tbe real property. It is insufficient to create an estate by tbe •entirety or a joint tenancy.
    Brooke, C. J., and MoAlvay, J., dissenting.
    Appeal from Ionia; Davis, J.
    Submitted April 15, 1914.
    (Docket No. 38.)
    Decided January 4, 1915.
    Bill by Charles Wright and others against Arthur M. Knapp, administrator of the estate of Elizabeth. Wright, deceased, and others, to set aside a deed from William Wright to Elizabeth Wright, purporting to convey an estate by the entireties, and to remove a cloud from the title of complainants in and to said real property. From á decree for the complainants, defendants appeal.
    Reversed, and decree entered that said deed conveyed an estate in common.

      Alfred R. Locke and George E, Nichols,- for complainants.

      Frank C. Miller, for defendants.
   Brooke, C. J.

Complainants are the.brothers, sisters, nephews, and nieces of William Wright. Defendants are, respectively, administrator and children of Elizabeth Wright, who was the wife of William Wright. William and Elizabeth had been married some 11 years, when on the 10th day of September, 1912, William, who was suffering from heart disease, caused a scrivener to be sent for, and instructed him to prepare a conveyance of the homestead to William Wright and wife. Later he modified those instructions as follows:

“ T want you to deed it right to her; I don’t know what will happen.’ I got the impression it was going to be a direct deed, and he added, ‘Make it jointly; I don’t know how things are going to go.’ ”

Whereupon the scrivener drew a deed, containing the following:

“Between William Wright, of the township of North Plains in Ionia county and State of Michigan, of the first part, and William Wright and Elizabeth Wright jointly, the survivor to have full ownership of the same place, of the second part.”

It is the claim of complainants, and the learned circuit judge so held, that this deed was an absolute nullity, and that, therefore, William Wright having died without issue, the complainants, being his brothers and sisters and children of a deceased brother, were entitled to have.one-half of said estate, and that the other half belonged to the defendants as heirs at law of their mother, Elizabeth Wright. From the decree entered, defendants appeal.

The intention of William Wright to create an estate in himself and wife by the entireties cannot be questioned. Assuming, but not deciding, that such an estate cannot be created by the instrument in question, what is the legal effect of that instrument? The infirmity in the conveyance is said to be that a grantor cannot convey directly to himself. Assuming this to be true, we still find a valid conveyance from William Wright, as grantor, to his wife, Elizabeth Wright, as grantee. It is well settled that, where one of several grantees, for any reason, is incapable of taking, one or others capable of taking shall take the whole. Dowset v. Sweet, 1 Ambler’s Eng. Chan. R. 175; Humphrey v. Tayleur, Id. 136; Ball v. Deas, 2 Strob. Eq. (S. C.) 24 (49 Am. Dec. 651); Cameron v. Steves, 9 N. Brunsw. 141; McCord v. Bright, 44 Ind. App. 275 (87 N. E. 654). In the conveyance in question the grantor named as grantee may be considered as mere surplusage.

It is unnecessary, therefore, here to determine whether an estate by the entireties may be created by an instrument such as the one under consideration, though upon this question see Bassett v. Budlong, 77 Mich. 338 (43 N. W. 984, 18 Am. St. Rep. 404); McKee v. Marshall, 5 S. W. 415, 9 Ky. Law Rep. 461; Saxon v. Saxon, 46 Misc. Rep. 202, 93 N. Y. Supp. 191; Schulz v. Brohl, 116 Mich. 603 (74 N. W. 1012).

The case of Pegg v. Pegg, 165 Mich. 228 (130 N. W. 617, 33 L. R. A. [N. S.] 166, Ann. Cas. 1912C, 925), relied upon by complainants, is not controlling.

The decree should be reversed, and a decree entered in this court dismissing the bill of complaint and confirming title to the property in question in defendants.

McAlvay, J., concurred with Brooke, C. J.

Bird, J. I am unable to concur in Mr. Justice Brooke’s conclusion that the entire estate granted vested in Elizabeth Wright upon the death of her husband. An attempt undoubtedly was made to create an estate in entirety, but it failed, because the formalities of the law were not observed in its ere-

ation. Pegg v. Pegg, 165 Mich. 228 (130 N. W; 617, 33 L. R. A. [N. S.] 166, Ann. Cas. 1912C, 925); Cameron v. Steves, 9 N. Brunswick, 141. This being so, the conveyance must be regarded the same as though made to strangers, and not to man and wife. Had William Wright made the deed to himself and his brother, one of two things would have resulted— either the conveyance would have transferred to himself and brother the estate, or it would have transferred to the brother an undivided half of the estate, and left remaining in him the other undivided half. It is not important which would have taken place, as the result would have been the same in either event, namely, each would own an undivided half interest in the estate; and this result would be in accordance with the intent of the grantor to retain an interest in the estate. But it is said that Wright could not convey to himself, and that, if he conveyed the premises to himself and wife, the wife would take the whole. This proposition would be true if the estate conveyed was ‘an estate in entirety or joint tenancy, because in both each is seised of the entire estate and both have the incident of survivorship, but it would not be true if it were an estate in common. The cases cited to this proposition by Mr. Justice Brooke are cases which proceed upon the premise that the estate granted is one of joint tenancy, and it is expressly held in Cameron v. Steves, 9 N. Brunswick, 141, cited by him, that, if the estate granted had been a tenancy in common, it would have resulted in a reservation of an equal share in the grantor. It is there stated:

“Now, as it is clear enough that a man cannot convey an estate to himself by deed, nor is a man capable of taking an estate from himself by deed, the only question would be whether Barnett reserved to himself an equal interest with Cameron and Marshall; and that he did, would have been the result had the deed been a conveyance to the three as -tenants in common, for in that case the deed would have operated to give to Cameron and Marshall severally an undivided third part; but, inasmuch as the deed is given to the three as trustees, by the express words of the Revised Statutes, vol. 1, chap. 117, § 1, it is a joint tenancy.”

Therefore my conclusion is that the deed from. William Wright to Elizabeth Wright and himself did not create an estate in entirety, nor in joint tenancy, but did create an estate in common, which, upon the death of the parties, would descend to their respective heirs, and I think the decree should be so made.

Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred with Bird, J.


text:
    FISHER v. GARDNIER.
    1. Wills — Descent—Life Estate.
    Under a will bequeathing .and devising an estate in trust for the son of the testatrix, during bis life, and on bis death to bis children or issue of any deceased child, no title to real estate vested in an adopted daughter of the son, through the statute of descent, for the reason that the son did not die seised of the real-property: his interest ceased at his- death.
    2. Adoption — Wills—Statutes—Affidavits—Principal Officer.
    By an equal division of the court it is held, that under 3 Comp. Laws, §§ 8776-8780 (4 How. Stat. [2d Ed.] §§ 11636 to 11640), complainant was duly adopted by decedent in proceedings before the probate court based upon an affidavit of the matron of the Mercy - Hospital at Detroit, in which affiant states that she was the matron of such hospital and was the only person baying the custody and control of the minor and lawfully entitled to give consent to her adoption; .the provision of statute, requiring the consent of the principal officer of the institution in whose charge the infant might be, was substantially ’complied with, and the adoption valid. Stone, Ostrander, Bird, and Steers, JJ., dissenting.
    3. Adoption-Testates of Decedents.
    A child by adoption takes title under the statute as a lineal descendant, not by birth, but as a statutory lineal descendant.
    Appeal from Oakland; Smith, J.
    Submitted April 17, 1914.
    (Docket No. 66.)
    Decided January 4, 1915.
    Rehearing denied April 28, 1915.
    Bill by Gladys I. Fisher, by her next friend, against Frank Gardnier and others for a decree quieting title to certain real property. From a decree for complainant, defendants appeal.
    Affirmed.

      Davis & Bromley, for complainant.

      Patterson & Patterson and William S. Jenney, for defendants.
   Brooke, C. J.

The statute, 3 Compiled Laws, §8780 (4 How. Stat. [2d Ed.] §§ 11636-11640), provides:

“Whereupon such child, * * * and the person or persons so adopting such child, shall thereupon stand in the place of a parent or parents to such child in law, and be liable to all the duties and entitled to all the rights of parents thereto, and such child shall thereupon become and be an heir at law of such person or persons, the same as if he or she were in fact the child of such person or persons.”

A child by adoption takes as a lineal descendant of the legatee by force of the statute; not as a lineal descendant by birth, but as a statutory lineal descendant, and as lawfully in the line of descent as if he were placed there by birth. Warren v. Prescott, 84 Me. 483 (24 Atl. 948, 17 L. R. A. 435, 30 Am. St. Rep. 370); Hartwell v. Tefft, 19 R. I. 644 (35 Atl. 882, 34 L. R. A. 500); Flannigan v. Howard, 101 Ill. App. 616; Id., 200 Ill. 396 (65 N. E. 782, 59 L. R. A. 664, 93 Am. St. Rep. 201); Ultz v. Upham, 177 Mich. 351 (143 N. W. 66).

As I understand the opinion of my Brother Stone, his holding upon this point is in consonance with the above. It is his opinion, however, that the proceedings for adoption were faulty and nugatory, for the reasons pointed out in his opinion. With this conclusion I find myself unable to agree.

The affidavit or consent of Jennie Sterling is in the following language:

“And Jennie Sterling, being the matron of Mercy Hospital, of Detroit, Mich., and being the only person having the custody and control of said minor and lawfully entitled to give consent thereto, so [do] execute this instrument for the purpose of giving consent in writing to the adoption and change of name of said child as aforesaid, and that said child may become the heir at law of said parties so adopting her, I, the said Jennie Sterling, do hereby certify that said minor has been abandoned by its parents and placed with me for the purpose of finding a suitable home for said minor.”

The order of the judge of probate recites that the proceedings were taken in good faith, and that they were based upon the declaration of Ira W. Fisher, and his wife, Matilda, and the consent of Jennie Sterling, the matron of Mercy Hospital, Detroit.

The case of In re Courtright, 167 Mich. 689 (133 N. W. 820), is exactly like the present case, with the exception that the affidavit of Sister Laura recited the fact that she was president and principal officer of the House of Providence, of the city of Detroit.

I am of opinion that the averments contained in the affidavit of Jennie Sterling are sufficient to constitute a substantial compliance with the essential requirements of the statute. It will be observed that she asserts not only that she is matron of Mercy Hospital, but that she has custody and control of said child, and is lawfully entitled to give consent to its adoption.

The probate court for Oakland county, having this evidence before it, made a judicial order based thereon. It is quite obvious that that court was satisfied that the description of the character of Jennie Sterling and the assertion by her that she was the person legally entitled to give consent, taken together, was a sufficient compliance with the statute which requires such consent to be given by “the principal officer of any institution, public or private, in this State or elsewhere.” It is a matter of common knowledge of which we should take judicial notice that papers for use in the probate courts of the State are frequently prepared by those not particularly learned in the law and without that appreciation of legal niceties that characterizes the work of one so learned. A substantial compliance with the statutory requirements should be held sufficient. I am of opinion that the court was justified in the conclusion reached. An examination of the various meanings given to the word matron include the following:

“A head nurse in a hospital; the family head or superintendent of any institution.” Century Dictionary and Encyclopedia, vol. 5.

We find therefore that among the accepted definitions of the term is “a head of any institution.” The adoption proceedings were conducted in good faith and were legally sufficient.

The decree of the court below should be affirmed.

McAlvay, Kuhn, and Moore, JJ., concurred with Brooke, C. J.

STONE, J. The bill of complaint in this cause was filed to quiet the title of complainant in an undivided two-thirds of the lands therein described, being 15.87 acres on section 23 in Avon township, county of Oakland. The land in controversy . was inherited from Hester Roberts in 1858 by her daughter Laura, who was twice married; first to a Mr. Fisher; and after-wards to a Mr. Mastin. On June, 15, 1897, Laura C. Fisher Mastin, being then the owner of the premises, duly made and published her last will and testament. After directing the payment of her just debts, funeral expenses, and the expense of settling her estate, and the placing of suitable markers at her grave, and that the date of her death should be placed upon the monument then on her lot in the Rochester cemetery, and after making certain bequests of personal property to certain persons, the will provided as follows:

“Fifteenth. All the rest, residue and remainder of my estate, real and personal, I give, devise and bequeath to Harvey Taylor, my executor and trustee hereinafter named, in trust, to be held and controlled by him for and during the life of my son, William Ira Fisher, and from the use and income thereof, I will and direct that my cemetery lot in the Rochester cemetery shall be kept in good order and repair, and that the buildings and fences on my real estate,, from said income, shall be kept up, and the balance of said income, after the expenses of executing the trust, shall be paid to my son, William Ira Fisher, each year, for and during his life, and at his death the residue of my said estate then remaining, to go to his child or children, him surviving, to whom I give and bequeath and devise the same. Provided, however, that in case my said son leave no child or children, or issue of any deceased child surviving at his death, then in that case, the residue of my estate remaining at the death of my said son shall go to my nearest kin living at the time of the death of my said son, to whom I do hereby give and bequeath and devise the same.
“Sixteenth. In case it may be deemed necessary or advisable by my said executor and trustee, I hereby will and direct that my real estate may be sold under the direction of the proper court, and the proceeds thereof invested by my said executor and trustee, to produce an income which shall be used in the manner above herein specified, and I further will and direct that in case of sickness of my said son, or other disability, by which he is unable to earn his living, then and in that case the proper court, upon the application of said executor and trustee, and after a proper hearing and investigation on said application, shall make an order to advance to my said son from time to time such sum or sums from the principal, as may be necessary and required for my said son’s support and maintenance, but I expressly will and provide that my said son shall have no voice in the determination of that question, it being my intention by this provision of my will to save for my said son a home during his lifetime, and to keep him from want, and from being dependent upon others for his living, and this provision should not in any sense be taken as a measure of a want of affection which I have for my said son, but is made for the express purpose of protection for him, and in the manner that I consider will be for his best interest and for his own good, and I urge upon my executor and trustee, and his successor, if any, and upon the court, that this condition and object of my will shall be kept in view, and that this trust shall be strictly carried out.
“Seventeenth. And lastly, I hereby nominate and appoint Harvey J. Taylor, of Rochester, Michigan, to be the executor and trustee of this my last will and testament, hereby revoking any and all former wills by me made.”

On February 26, 1904, Laura C. Fisher Mastín died, seised of said real estate, at the age of 82 years, leaving surviving her but one child, the son, William Ira Fisher, mentioned in her will. Her said will was duly admitted to probate, and her estate administered pursuant thereto by Harvey J. Taylor, the executor and trustee therein named, except as to the trust. On August 14, 1906, the probate court of Oakland county, in the matter of her estate, duly made its final order of distribution therein, which order provided as follows:

“It is further ordered * * * that the real estate of which said deceased died seised be, and the same is hereby, assigned according to the terms of the will of said deceased, and further ordered, that said executor be, and he is hereby, discharged, except as to the trust under said will.”

It was conceded at the hearing of the instant case that the son, William Ira, was a party to that proceeding, and was bound by it. The son, William Ira Fisher, died on May 9, 1910, leaving no child or children surviving, unless it shall appear that the complainant Gladys Irene Fisher was his child by adoption. On May 16, 1911, the complainant, a child of unknown parents, by her next friend, instituted this suit, asserting her adoption by William Ira Fisher and his wife on August 21, 1901, and claiming that as such adopted child she owned said land: First, by inheritance from said William Ira Fisher; and, second, by virtue of the will of his mother, above quoted. To this suit the “nearest kin” of Mrs. Mastín “living at the time of the death of” said William Ira Fisher were made defendants, that complainant’s alleged title might be quieted as to them. These defendants, answering, denied all the material allegations of the complainant’s bill, and asserted by way of cross-bill that they, as Laura C. Fisher Mastin’s next of kin, were entitled to this land by virtue of her will, praying for appropriate relief, and bringing in by process issued on the cross-bill, as cross-bill defendants, Harvey J. Taylor, the trustee, Thomas W. Hacker and James G. Toles, his bondsmen, Matilda Fisher, wife of William Ira Fisher, deceased, and the Detroit United Railway Company, an alleged grantee of part of the premises. Personal service was had upon all of the cross-bill defendants, and the default of all of them for want of plea, answer, or demurrer was duly entered, excepting the cross-bill defendant Matilda Fisher, who filed an answer thereto. The cross-bill of the principal defendants, Aurora Steevens, Emma Drehner, Glendora Drehner, and Merritt Nye, is taken as confessed by all of the cross-bill defendants, excepting Matilda Fisher. At the final hearing of the cause the complainant was granted a decree, and the defendants have appealed.

It is their claim thát complainant is not entitled to the real estate in controversy on any theory:

First. That she could not inherit it from William Ira Fisher, as a child adopted by him, because he did not die seised of it.

Second, (a) That she could not take it under the will of Laura C. Fisher Mastin, above quoted, because a proper construction thereof excludes her, even if she was a child adopted by William Ira Fisher, (b) Because her attempted adoption proceedings were legally insufficient to create that relation.

A citation of authorities is not necessary to show that by this will William Ira Fisher obtained no title to this land. All the interest which he ever had therein ceased at his death, and the probate court had no power to assign to him any interest therein contrary to the terms of the will. Certain proceedings were taken in the probate court under section 9471, 3 Comp. Laws, to determine who were the legal heirs of William Ira Fisher. Of that statute this court, in Lorimer v. Wayne Circuit Judge, 116 Mich. 682, at page 683 (75 N. W. 133), said:

“The act under which the proceedings were instituted does not purport to make the proceedings of the probate court conclusive upon anybody. They are not binding even upon the relator. The petitoner, or other person interested, if not satisfied with the findings, might, in any judicial proceeding, resort to original evidence, and wholly ignore the action of the. probate court.”

That complainant acquired no part of this land by inheritance from William Ira Fisher, because he did not die seised of it, is too plain for argument.

If complainant acquired any of the land in question, she did so by virtue of the will of Laura C. Fisher Mas-tin. This involves the validity of the alleged adoption proceedings. The claimed adoption order bears date August 21, 1901. The only adoption statute then in force was Act No. 77 of the Public Acts of 1891, as amended by Act No. 141 of 1897, being sections 8776 to 8780, 3 Comp. Laws. Complainant claims that she was adopted in conformity therewith. This is denied by defendants.

Section 8777 provides that such adoption shall be with the consent of the persons thereinafter described, viz.:

Subdivision (d) : “In case such child is an orphan, or is abandoned by its parents or surviving parent, or by its mother, if it be illegitimate, then with the consent of the nearest of kin or guardian of such child, or of the principal officer of any incorporated asylum, hospital or home, of which such child may be an inmate, or of two superintendents of the poor of the county, or the director of the poor of any city or township of which such child is a resident, or of the principal officer of any institution, public or private, in this State or elsewhere, in whose care such orphan or abandoned child may be.”

It is the claim of appellants that there was no attempt to comply with this statute and that the forms used were not adapted to the statute. The pertinent question is whether there was a substantial compliance with the essential requirements of the statute. The application for adoption was as follows:

“Know all men by these presents that we, William I. Fisher and Matilda Fisher, his wife,, of Rochester, Oakland county, Mich., do hereby declare that Gladys Irene Fisher, a minor child, whose parents are unknown, and an orphan of the age of three years on the 20th day of November, 1901, is adopted by us, and each of us, as our child, and that we intend to make such child so adopted our heir, and the heir of each of us, and desire that such child shall hereafter bear our family name, to wit, the name of Gladys Irene Fisher. And we, the said William I. Fisher and Matilda, his wife, do each of us declare that this instrument is executed in good faith, and we do hereby request the judge of probate for the county of Oakland and State of Michigan to make and enter in the journal of said court an order that said William I. Fisher and Matilda Fisher, his wife, do stand in the place of parents to said child, and that said child be their heir at law, and that the name of such child be changed as aforesaid in accordance with the provisions of the statute in such case made and provided.
“And Jennie Sterling, being the matron of Mercy Hospital of Detroit, Mich., and being the only person having the custody and control of said minor and lawfully entitled to give consent thereto, so execute this instrument for the purpose of giving consent in writing to the adoption and change of name of said child as aforesaid, and that said child may become the heir at law of said parties so adopting her, I, the said Jennie Sterling, do hereby certify that said minor has been abandoned by its parents and placed with me for the purpose of finding a suitable home for said minor.
“In testimony whereof, we have hereunto set our hands and seals this 8th day of August, 1901.
[Signed] “Ira W. Fisher. [L. S.]
“Mrs. Matilda Fisher. [L. S.]
“Jennie Sterling. [L. S.]
“State of .Michigan,
“County of Wayne — ss.:
“On this 17th day of August, A. D. 1901, before me, a notary public in and for said county, personally came the above-named Jennie Sterling known to me to be the person who executed the foregoing instrument, and acknowledged the same to be her free act and deed for the uses and purposes therein mentioned.
[Signed] “George F. Standley,
“Notary Public, Wayne Co., Mich.”

The execution of said instrument was acknowledged by the said William I. Fisher and Matilda Fisher, in the same form, on August 8, 1901, before a notary public of Oakland county.

The order of the probate court bears date August 21, 1901, and after its caption was as follows:

“In the Matter op the Adoption and Change op Name op Gladys Irene Fisher, a Minor.
“On reading and filing the declaration duly acknowledged of Ira W. Fisher and Matilda Fisher, his wife, declaring that said Gladys Irene Fisher is adopted by them as their child, and that they intend to make such child their heir, and desire that such child shall hereafter bear the name of Gladys Irene Fisher, and be their heir at law, and on reading and filing also the consent in writing of Jennie Sterling, the matron of Mercy Hospital, of Detroit, Mich., the parents of such child being unknown, she being a foundling, to the adoption and change of name of said child as aforesaid, and it appearing satisfactorily to the court that such proceedings have been taken in good faith, and that said Ira W. Fisher and Matilda Fisher are suitable persons to have the charge of said child.
“It is therefore ordered, adjudged, and decreed that said Ira W. Fisher and Matilda Fisher do stand in the place of parents of said Gladys Irene Fisher, and that said Gladys Irene Fisher be and become the heir at law of said Ira W. Fisher and Matilda Fisher, with all the rights, privileges and duties appertaining thereto as provided by law.
“Joseph S. Stock well, Judge of Probate.”

Upon the trial of the instant case, Mrs. Matilda Fisher testified that she and her husband took the child When it was about five months old, and adopted it when it was about two years old; that she did not know who the mother of the child was, and she testified further as follows:

“I know how long I had her before I adopted her, and when I did adopt her the matron of Mercy Hospital, where she had been, went before a notary public and made an affidavit; she didn’t go before the probate court.
“Q. During the time you had the child was the fact as to whether it was a suitable place for the child to be placed looked after by Mrs. Sterling?
“A. They always looked after them; that was their laws.”

It is the contention of counsel for appellants that the probate court was without jurisdiction to make an order of adoption for many reasons, two of which are that it did not appear that the consent to the adoption was given by the principal officer of any institution in whose care such orphan or abandoned child was; that it cannot be presumed that the matron was the principal officer of Mercy Hospital; that, in the absence of evidence, the court can indulge in no presumptions on that subject; and that it does not appear that Jennie Sterling was the “principal officer of any institution,” because “matron,” as applied to a hospital, means a nurse, which is not a “principal officer.” Further, that the act of 1897 nowhere authorizes adoption on the consent of an individual with whom a child has been placed for the purpose of finding a suitable home, or to whom it has been abandoned by its parents; that-.Jennie Sterling had no authority to consent to this adoption, and that, if “said minor has been abandoned by its parents and placed with me for the purpose of finding a suitable home for said minor,” as stated, then, in the words of the statute, the consent of “two superintendents of the poor of the county, or the director of the poor of any city or township of which said child is a resident” was necessary. This is a statutory proceeding, and the rule seems to be well established that there must be a compliance with all of the essential requirements of the statute, but the statute should not be construed so narrowly as to defeat the manifest legislative intent. 1 Cyc. p. 919. See note to Chehak v. Battles (Iowa), 12 Am. & Eng. Ann. Cas. 144.

In Morrison v. Sessions’ Estate, 70 Mich. 297 (38 N. W. 249, 14 Am. St. Rep. 500), it was said:

“A proceeding which so materially affects the succession of property and the rights of natural heirs is a very important one.”

And attention is called to the fact that it is a proceeding not recognized by the common law of England, and exists in this country only by special statute. This proceeding is far-reaching in its effect upon rights' of inheritance of property, and a strict compliance with the provisions of the statute is essential to its validity. The failure of the court to obtain jurisdiction renders the decree void. Volume 1, Ruling Case Law, title “Adoption of Children,” § 41; Shearer v. Weaver, 56 Iowa, 578 (9 N. W. 907); In re McCormick’s Estate, 108 Wis. 234 (84 N. W. 148, 81 Am. St. Rep. 890).

We had a similar question before us in Re Courtright, 167 Mich. 689 (133 N. W. 820). There the consent of the principal officer was as follows:

“I, Sister Laura, president and principal officer of the House of Providence, of the city of Detroit, said institution having had the care, custody, and control and to which the above-named minor was abandoned, do hereby join in the execution of said instrument,” etc.

In that case the affidavit of Sister Laura, filed in support of the proceedings had on June 12, 1911, contained the following:

“That said infant was abandoned and left at the said House of Providence, and its parents are unknown. _ Deponent further says that the said House of Providence has .had the care and custody of said infant from date of abandonment until February, 1900, when said child was turned over to Mr. and Mrs. Frank Courtright,” for the purpose of adoption by them.

We held the proceedings valid, and the reason therefor is fully stated. The cases are readily distinguished. We are constrained to hold in the instant case that there was not a compliance with the provisions of the statute in the particulars named, and that the probate court had no jurisdiction to make the order of adoption, and that such order was void. It will be observed that the probate court did not, by its order, find that consent was given by the “principal officer” of any institution in whose care such child was.

The complainant, therefore, is entitled to no relief in the case and her bill of complaint should be dismissed, and the defendants given relief under their cross-bill as prayed for therein.

The decree of the court below should be reversed, complainant’s bill dismissed, and a decree entered here in accordance with this opinion, with costs to defendants.

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


author: Ostrander, J.

text:
    LOOMIS v. MACK.
    Constitutional Law — Title of Act — Statutes — Trusts—Wills —Charitable Trusts — Object of Statute.
    Act No. 122, Pub. Acts 1907 (4 How. Stat. [2d Ed.] §§ 10700-1), having as title the following, “An act relative to gifts for religious, educational, charitable, and benevolent purposes," is constitutional and valid: the title sufficiently expresses the purpose of the statute within Art. 5, § 21, of the Constitution.
    Stone, Ostrander, Bird, and Steere, JJ„ dissenting.
    Appeal from Oakland; Murphy, J., presiding.
    Submitted April 27, 1914.
    (Docket No. 4.)
    Decided January 4, 1915.
    Rehearing denied April 28, 1915.
    Bill by William H. Loomis against Eugene Mack, trustee, and others, for the construction of a will. From a decree sustaining the trust created by the instrument, complainant and certain defendants appeal.
    Affirmed.

      Glenn C. Gillespie and Frank L. Doty (Robert M. Chamberlain, Arthur Webster, and Chamberlain, May, Denby & Webster, of counsel), for appellant Loomis.

      Pelton & McGee (B. F. Reed and George B. Andrew, of counsel), for appellant Rowland.

      Patterson & Patterson, for appellee Mack.

      Charles L. Dibble, amicus curiae.

   Ostrander, J.

The bill filed in this cause asks for the construction of the will of Leonard Rowland, who died in March, 1909, and prays that the fourth clause thereof may be decreed to be invalid. The fourth clause creates what is called a charitable trust for the benefit of dependent children in Oakland county between the ages of 12 and 14 years. The estate consists of both real and personal property. It is conceded that the provision must fail unless it is saved by, and the trust created can be administered under, Act No. 122, Public Acts of 1907 (4 How. Stat. [2d Ed.] §§10700, 10701), entitled “An act relative to gifts for religious, educational, charitable and benevolent purposes,” which declares:

“Section 1. No gift, grant, bequest or devise to religious, educational, charitable or benevolent uses which shall in other respects be valid under the laws of this State, shall be invalid by reason of the indefiniteness or uncertainty of the persons designated as the beneficiaries thereunder in the instrument creating the sahie, nor by reason of the same contravening any statute or rule against perpetuities. If in the instrument creating such a gift, grant, bequest or devise, there is a trustee named to execute the same, the legal title to the lands or property given, granted, devised or bequeathed for such purposes, shall vest in, such trustee. If no trustee shall be named in said instrument, or if a vacancy occurs in the trusteeship, then the trust shall vest in the court of chancery for the proper county, and shall be executed by some trustee appointed for that purpose by or under the direction of the court; and said court may make such orders or decrees as may be necessary to vest the title to said lands or property in the trustee so appointed.
“Sec. 2. The court of chancery for the proper county shall have jurisdiction and control over the gifts, grants, bequests and devises in all cases provided for by section one of this act. The prosecuting attorney of the county in which the court of chancery shall have jurisdiction and control shall represent the beneficiaries in all cases where they are uncertain or indefinite, and it shall be his duty to enforce such trusts by proper proceedings in the court, but he shall not be required to perform any duties in connection with such trusts in any court outside of this State.”

The act was amended by Act No. 125 of the Public Acts of 1911, but not so as to affect the questions presented here.

The learned trial judge filed carefully considered opinions, sustaining the validity of the legislation and the validity of the will. The bill was dismissed.

It is said in this court, as it was in the court below:

(1) The object of the act is not expressed in the titie; (2) the act is broader than its title, and it is therefore .unconstitutional.

It is also contended that, if the statute is valid, the particular trust is invalid, not because the beneficiaries are indefinite, but because the purpose of the trust is indefinite. The trust is not fully expressed and clearly defined upon the face of the instrument creating it.

In Moore v. O’Leary, 180 Mich. 261 (146 N. W. 661), we had occasion to examine this statute and to determine whether, in view of its provisions, a certain disposition of property by last will could be sustained. The constitutionality of the law was not questioned or considered, and the act itself was not construed.

The statute is like one adopted in the State of New York in 1893, which, when adopted here, had been construed by the court of last resort of that State. The New York chancery courts, in an early day, asserted and exercised a somewhat broad power to administer charitable trusts. And in Allen v. Stevens, 161 N. Y. 122 (55 N. E. 568), in sustaining a bequest, after referring to the earlier doctrine of the courts, it was said of the New York statute of 1893 (Laws 1893, chap. 701):

“Reading the statute in the light of the events to which reference has been made, it seems to me very clear that the legislature intended to restore the law of charitable trusts as declared in the Williams Case; that having discovered that legislative enactment had operated to take away the power of the courts of equity to administer trusts that were indefinite as to beneficiaries, and had declared a permanent charity void unless the devise in trust was to a corporation already formed or to one to be created, it sought' to restore that which had been taken away through another enactment. This is markedly indicated, not only by the absence of details in the statute, which is broadly entitled ‘An act to regulate gifts for charitable purposes.' but also in the brevity of the statute, which confers all power over such trusts and trustees on the Supreme Court and directs the attorney general to represent the beneficiaries in cases Within the purview of the statute, as was the practice in England. Practical effect can be given to the provision that no devise or bequest shall be deemed invalid by reason of the indefiniteness or uncertainty of the persons designated as beneficiaries only by treating it as a part of a general scheme to restore to the courts of equity the power formerly exercised by chancery in the regulation of gifts for charitable purposes, for, in order to ascertain the class of persons who were entitled to the benefits of the trust, the rule formerly in force must necessarily be invoked by which the court ascertained, as nearly as possible, the intention of the testator, by decree adjudged, who were intended to be the beneficiaries of the trust, and directed its administration accordingly.”

We have in this State no body of rules, no affirmation or exercise of power in the equity courts to administer charitable trusts. On the contrary, by a policy more than 100 years old, the doctrine of charitable trusts has been refused in Michigan. Methodist Episcopal Church v. Clark, 41 Mich. 730 (3 N. W. 207); Hopkins v. Crossley, 132 Mich. 612 (96 N. W. 499). See, also, Moore v. O’Leary, supra. In Michigan, trusts for charitable uses have never been distinguished from others, and their validity has always depended upon the rules affecting other trusts. Whether the trust fund was real or personal estate, the object public or private benefaction, the rule here, evidenced by legislation long in force, is the rule of the common law:

“If there be a clear trust, but for uncertain objects, the property that is the subject of the trust is undisposed of; and the benefit of such trust must result to those to whom the law gives the ownership in default of disposition by the former owner.” Morice v. Bishop of Durham, 9 Vesey, 399.

So, also, if the beneficiaries of the trust be uncertain. Stoepel v. Satterthwaite, 162 Mich. 457 (127 N. W. 673). So by our law it is provided that:

“The absolute power of alienation shall not be suspended by any limitation or condition whatever, for a longer period than during the continuance of two lives in being at the creation of the estate, except in the single case mentioned in the next section.” 3 Comp. Laws, § 8797.

Repeatedly the courts have been obliged to enforce this statute to prevent the accumulation of landed estates to be held in perpetuity or for a long period of time. If, then, the object of the statute now before us is, as it appears to be, to overturn a long-settled State policy in favor of gifts, grants, bequests, and devises to religious, educational, charitable, and benevolent uses, and to permit courts of chancery to administer, in perpetuity, landed and other estates, the advertisement of such an object ought to be clear. The Constitution, art, 5, § 21, provides that:

“No law shall embrace more than one object, which shall be expressed in its title.” '

This provision of the fundamental law is binding upon the legislature as well when it borrows or adopts a law from another jurisdiction as when the law originates at home.

“The Constitution has made the title the index to the legislative intent as to what shall have operation.” Callaghan v. Chipman, 59 Mich. 614 (26 N. W. 808).
“One of the purposes * * * of the Constitution is to prevent ‘the insertion of clauses in the bill of which the title gives no intimation,’ or, as has been said, 'for the purpose of preventing the legislature, as well as the people, from being misled as to its contents.”’ Davies v. Board of Supervisors, 89 Mich. 302 (50 N. W. 862).
“This purpose of the constitutional direction, which has been disregarded in this act, is that the intent of the bill — its. object — shall be clearly shown by its title, for the benefit, not only of the members of the legislature who are to vote upon it, but also for the benefit of the people of the State outside of the. legislature, who are interested, and have a right to be, in all legislation.” Brooks v. Hydorn, 76 Mich. 278 (42 N. W. 1123).
“The purpose of this constitutional provision is that legislators, and as well parties interested, may understand from the title that only provisions germane to the object therein expressed will be enacted.” Blades v. Water Com’rs of Detroit, 122 Mich. 378 (81 N. W. 276).

If the title to this act expresses its object, it equally as well expresses the object of any act which could be passed affecting gifts, grants, bequests, and devises for religious, educational, charitable, and benevolent purposes, and it equally as well expresses the object of any act enlarging or limiting the powers to be exercised by courts of chancery. This is so even if we consider the word “gifts” in the title as equivalent to and meaning the same as “grants, bequests, and devises.” The trouble is that the title to the act expresses no object and would express none if we could refer the words “gifts for religious, educational, charitable, and benevolent purposes” to a body of rules or a doctrine, the nature and extent of which was well known and made certain by association, practice, or judicial decision. In whatever manner or spirit the title is read, the inquiry must still be: What is the object of the law? And that can be discovered only by reading the law. The title is misleading. In my opinion, there is present, not a mere technical evasion or disregard of the Constitution, but the precise evil at which the Constitution is aimed. An act of the greatest importance is passed with a title which not only fails to express its object but, in so far as it is suggestive of an object, is misleading. In such a case, the duty of the court, however unpleasant its performance, is to declare the act invalid.

I doubt the value of any attempt to reply to the opinion of Mr. Justice Brooke upon this point. Industry might be so extended as to bring together even a larger variety of titles to legislative acts than he has done. Whether the ruling I have indicated would or would not make invalid “a mass of legislation of the greatest importance” is, I submit, not an argument. The question is whether the law before us “has but one general object which is fairly indicated by its title.” People v. Mahaney, 13 Mich. 481, 495. The question must be answered, not by a reference to any mass of legislation of great or of little importance, but by an intelligent examination of the act itself, discovery of its general object, and finding the object fairly indicated in the title, or otherwise. That the effect of my conclusion is to overrule two of our own decisions is a statement which should be noticed. It is not very material, but the title to the original act, considered in Soukup v. Van Dyke, 109 Mich. 679 (67 N. W. 911), is not correctly stated in the opinion of Mr. Justice Brooke. The title is:

“An act relative to justices’ courts in the city of Grand Rapids, to reduce the number thereof, and to fix the compensation of such justices, and provide a clerk and offices therefor.”

It is clear that almost any provision relating to justices’ courts in Grand Rapids might be looked for in such an act. The act contained also provisions regulating fees to be paid by suitors and to transfer of causes for trial from one justice to another. By an amendatory act, entitled “An act to amend an act entitled ‘An act,’ ” repeating the title of the original act, justices of the peace of the city of Grand Rapids were given exclusive jurisdiction of all actions within the limits of a justice’s jurisdiction where both parties were residents of the city. The question was whether this object was sufficiently indicated in the title. It was held that the general words, “An act relative to justices’ courts in the city of Grand Rapids,” indicated the general purpose of the legislation, which was not restricted by a reference in the title to certain special features of the act. The general rule applied was, “The title is sufficient if it fairly and reasonably announces the object, and that is a single one.” People v. Kelly, 99 Mich. 82 (57 N. W. 1090); Canal Street Gravel Road Co. v. Paas, 95 Mich. 379 (54 N. W. 907), and Van Husan v. Heames, 96 Mich. 507 (56 Ñ. W. 22), are cited. In this connection, People v. Snyder, 108 Mich. 48 (65 N. W. 562), and Cote v. Village of Highland Park, 173 Mich. 201 (139 N. W. 69), may be cited. I think the distinction between the case at bar and those cited by Justice Brooke is plain. In People v. Kelly, the title of the act was “An act relative to disorderly persons and to repeal,” etc. It is said in the opinion:

“The precise contention is that the title gives no information as to what acts constitute a disorderly person, and that the third offense, of which the defendant was found guilty, is not expressed therein. The title to this act is the same as the titles to other acts for the punishment of disorderly persons, which have been, from time to time, enacted by the legislature, and the ¡Sections of those acts defining who are disorderly persons have been substantially the same. The term ‘disorderly persons’- is comprehensive, and properly includes all those who are designated in the body of the act. It is within the purview of the title to include different degrees of punishment for first, second, and subsequent convictions. The crime does not consist in the fact of two or more convictions, but in the fact that the respondent has been convicted as a disorderly person for the second or more times. Upon such subsequent trial, he must be found guilty of being a disorderly person; and, in order to impose the heavier punishment, former convictions must be proven. This objection to the law is not well founded.”

This court has been careful not to hamper legislation by a too striét application of the constitutional provision in question. Each case in which it has been applied must be consulted in order to learn the real ground of decision. I have called attention to the fact that in the case now presented the title is not aided by a reference therein to any subject defined by former legislation or to any body of rules or to a doctrine made certain by association, practice, or judicial decision.

But I do not consider that, because all donations to the uses mentioned in the act are commonly known as gifts, the word “gifts” in the title expresses the same meaning as the words “grants, bequests, and devises” in the body of the act, nor connotes or suggests the larger purpose and object indicated in the body of the act. It will be presumed to have the same meaning in the title that it has in the body of the act, where, plainly, it is used as having a different meaning than the words “grants, bequests, and devises.”

The decree should be reversed, and a decree entered in this court generally agreeably with the prayer* of the bill; but, unless counsel can agree upon its terms, the extent to which the trustee ought equitably to account must be left a matter for further consideration.

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

Brooke, C. J. My Brother Ostrander holds the act in question invalid because of the alleged insufficiency of its title. The title reads: “An act relative to gifts for religious, educational, charitable and benevolent purposed.” This court has three times passed upon the precise question raised.

In People v. Kelly, 99 Mich. 82 (57 N. W. 1090), the court had under consideration an act entitled “An act relative to disorderly persons.” It was said:

“The precise contention is that the title gives no information as to what acts constitute a disorderly person, and that the third offense of which the defendant was found guilty is not expressed therein. * * * This objection to the law is not well founded.”

In Soukup v. Van Dyke, 109 Mich. 679 (67 N. W. 911), the title under consideration was: “An act relative to justices’ courts in the city of Grand Rapids.” The court said:

“We think the general words ‘An act relative to justices’ courts in the city of Grand Rapids’ are used to indicate the general purpose of the legislation. * * *
“The provision requiring the object to be expressed in its title has not received a construction which renders it necessary * * * that the title be as full as the act itself.”

Again in the case of People v. Worden Grocer Co., 118 Mich. 604 (77 N. W. 315), this court, in considering an act entitled “An act in relation to the manufacture and sale of vinegar,” said:

“It is contended that the title to the act does not express any object; that the act was intended to prevent deception in the sale of vinegar, or to prevent adulteration of vinegar, but that no such object is expressed in the title. * * * We think this contention sufficiently answered by what was said by this court in Soukup v. Van Dyke, supra.”

Much of the most important legislation upon our statute books has been enacted under titles similar to the one in.question. ¡ Some, instances follow:

“An act relative to" levies and sales in execution, in certain cases.”' Act No. 274, Laws 1865.
“An-act relating to negotiable instruments.” Act No. 2.65, Pub. Acts 1905.
“An act in relation to the public health in this State.” Act No.. 293,. Pub. Acts 1909.
“An act in relation to the sale of corn syrup.” Act No. 123, Pub. Acts 1903.
“An act relative to the unauthorized removal of timber or other, property from State tax lands.” Act No. 145, Pub. Acts 1903.'
. “An act in relation to.the use of preservatives in food products.”. Act Np. 7, Pub. Acts 1905.
“An act relative to the cost' of bonds to be furnished by State officers.” Act No. 311, Pub. Acts 1905.
'“An act relative to agreements, contracts and combinations in restraint of trade or commerce.” Act No. 329, Pub. Acts 1905.
“An act in relation to acquiring title to real estate by adverse possession.” Act No. 46, Pub. Acts 1907. “An act relative to the maintenance and construction of hospitals and sanitoria within the counties of this State and to provide a tax to raise moneys therefor.” Act No. 139, Pub. Acts 1909.
. “An act relative to wills executed without this State.” .Act No. 45, Pub. Acts 1911.
“An act relative to proceedings against and the liquidation of delinquent insurance corporations.” Act No. 216, Pub. .Acts 1911.
“An act relating to the conduct of hotels, inns and public lodging houses.” Act No. 188, Pub. Acts 1913.

In addition to the foregoing there are others. This list is sufficient, however, to indicate the breadth and importance of the legislation enacted under titles subject to the exact infirmity which my Brother holds fatal to the act in question. Many, of these acts are penal in character and directly affect the liberty of the individual. Others deal with the public health, fix property rights, and define and provide penalties for illegal methods of doing business.' Many of these acts have been before this court for construction; no attack having been made upon their several titles. To agree with my Brother’s conclusion would be to overrule the three cases above cited, to adopt a new and much stricter rule of construction, and (by inference) to make invalid a mass of legislation of the greatest importance. It is true that the act in question does change an old and well-settled policy of this State,, That fact, however, does not militate against its validity. Legislative changes are constantly being made to meet varying conditions, and it is. the duty of the court to give effect to legislation, where the legislative intent is clear and no constitutional provision offended.

It should be noted that, under constitutional provisions practically identical with our own, the States, of Pennsylvania and Kentucky have had for many years acts similar in character to our own under titles subject to the same alleged infirmity. The fact that the title may be said to be broader than the enactment thereunder does not affect its validity. Under our own decisions, I am satisfied that the title to the act in question is sufficient.

It is said that -the word “gifts” in the title is insufficient to cover the language “gift, grant, bequest or devise” used in the body of the act, and that therefore the enactment is broader than its title. 1 Comp. Laws, § 50, subsec. 1, relative to the construction of statutes, provides:

“All words and phrases shall be construed and understood according to the common and approved usage of the language; but technical words and phrases, and such as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.” '

The word “gift” is about as common and ordinary as any in the English language. It is of everyday use, and has acquired a very well-settled, common, and approved definition. That universally accepted and popular definition is the transfer without consideration of something of value, whether between living persons or by will. The fact that a sum of money is bequeathed or a piece of real estate devised by law does not affect the quality of the act. It is still a gift, in the popular understanding of that term, and, indeed, would be so understood by the legally trained mind as well as by the lay mind. The donee of a gift inter vivos, the legatee of a bequest, or the devisee of lands all receive something of value without consideration. The quality of the transaction is the same in each instance, though the method of its performance is different. To hold that the word “gift” was insufficient to cover the terms used in the enacting part of the statute would, in my opinion, be inexcusable over-refinement.

At the last session of the legislature, an act (Act No. 380, Pub. Acts 1913) was passed entitled:

“An act to regulate gifts of real and personal property to cities, villages and other municipal corporations, and to validate all such gifts heretofore made.”

Section 1 provides:

“Any city, village, township or other municipal corporation in the State of Michigan may receive, own and enjoy any gift of real or personal property, made by grant, devise, bequest or in any other manner, for public parks, * * * whether made directly or in trust. * * * ”

This act has never been construed by this court, and it is significant only as indicating the legislative understanding of the definition of the word “gift,” used in the earlier act. It is unnecessary to hold that the word “gift” in the title be restricted to the meaning it is said to have in the body of the act.

In Black on Interpretation of Laws, § 82, it is said:

“Where the same language is used repeatedly in the statute, in the same connection, it is presumed to bear the same meaning throughout the act; but this presumption will be disregarded where it is necessary to assign different meanings to the same term in order to make the statute sensible, consistent, and operative.”

The word “gifts” in the title is generic, but the word “gift” in the body of the act, used in connection with the words “devise” and “bequest,” doubtless was intended to refer to gifts inter vivos, as distinguished from gifts by devise or bequest. The presumption that a word repeatedly used in the same statute bears the same meaning is of little weight. 26 Am. & Eng. Enc. Law (2d Ed.), p. 610. If a statute is susceptible of two constructions, that construction which renders it constitutional is to be chosen rather than the one which would render it unconstitutional, even though the latter may be the more natural interpretation of the language. Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308; Weimer v. Bunbury, 30 Mich. 201; 8 Cyc. p. 606; 36 Cyc. p. 1112; Black on Interpretation of Laws, § 43.

A statutory interpretation invalidating a law upon constitutional grounds is adopted by the courts only when imperatively demanded. I do not regard the fact that the body of the statute deals in some measure with trusts as important, for the reason that a gift in trust, whether inter vivos or by bequest or devise, is nevertheless a gift, and as such is covered by the general term used in the title. The fact that this statute was enacted more than seven years ago should not be overlooked. It is to be presumed that, relying upon the act, charities have been established and estates have vested. Under such circumstances, it would be the duty of the court to decline to hold it invalid, even if it was subject to the infirmities claimed by the appellants, but which, in my opinion, do not exist. Stockle v. Silsbee, 41 Mich. 615 (2 N. W. 900); Continental Improvement Co. v. Phelps, 47 Mich. 299 (11 N. W. 167).

The decree should stand affirmed.

McAlvay, Kuhn, and Moore, JJ., concurred with Brooke, C. J.