author: Steere, J.

text:
    ALLEN v. CITY OF DETROIT. FRUMVELLER v. POST.
    1. Deeds — Building Restrictions — Easements.
    Building restrictions limiting a tract of several lots to residence purposes only are valid restrictions upon the several portions of the divided parcel, and are in the nature of reciprocal negative easements, constituting a substantial property right which the owners can maintain and enforce.

      2. Same — Partial Restrictions.
    Although some lots may have written restrictions imposed upon them and some have none, if the general plan has been maintained from its inception, if it has been understood, accepted and relied upon by all in interest, it is binding and enforceable on all inter se and runs with, the land, binding all purchasers equally.
    3. Parties — Equity—Injunction — Necessary Parties — Vendor and Purchaser.
    In a suit to enjoin a municipality from erecting a fire department station upon land restricted to residence purposes, the grantor of the lots sold to the municipality for its purposes, by whom the original restrictions were imposed, was a party to the case so as to meet the objection that he was a necessary party where a cause in which he was made defendant to a bill for specific performance was consolidated with the injunction suit and both causes heard as one by consent.
    4. Municipal Corporations — Constitutional Law — Building Restrictions — Eminent Domain.
    Building restrictions are binding upon cities as well as upon - individuals and cannot be violated without first determining the necessity for taking the property rights created thereby, and the compensation due to the parties in interest by proceedings in eminent domain. Const. 1909, art. 13, § 1.
    6. Police Power — Fire Protection — Vested Rights — Due Process op Law — Constitutional Law.
    A city may not under its general police power erect a fire engine house within a district restricted by conveyance and agreement to residence purposes, without action under the general condemnation laws.
    6. Same.
    Police power is regulative and restrictive only, limiting and dictating the owner’s use of property for public safety, but it never extends to depriving him of it for the public benefit.
    7. Specific Performance —Notice of Prior Contract to Sell —Land Contract — Vendor and Purchaser.
    Where a vendee of land held under a contract of sale upon installments, after paying nearly a fourth of the price, surrendered by a written agreement his interest in the land in order that the land might be conveyed to a subsequent vendee by the owner of the title, who agreed to account to the vendee in the contract for all that he might receive over and above the purchase price stated in the contract, one who obtained the rights of the vendee by purchase, having notice of the entire situation, was in no better position than the vendee under the land contract, and took subject to the rights already acquired by the second vendee.

      8. Same — Costs.
    The bill for specifio performance being unnecessary and serving only to complicate the injunction case with which it was • consolidated, the defendants were entitled to costs on appeal though conditional relief was granted to complainant.
    Appeal from Wayne; Murphy, J.
    Submitted June 8, 1911.
    (Docket No. 19.)
    Reargued October 11,1911.
    Decided November 23, 1911.
    Bill by Mark W. Allen and others against the city of Detroit and others for an injunction restraining defendant city from erecting a fire station on property restricted to residences only. Bill by Edward Frumveller against Hoyt Post and others for the specific performance of a land contract. The two causes were consolidated and heard as one. From a decree granting the injunction to said Allen as against defendants the city of Detroit and others, defendant city of Detroit appeals. Affirmed. From a decree dismissing the second bill, complainant Frumveller appeals.
    Modified and affirmed.

      Arthur J. Lacy (Lucking, Emmons & Helfman, of counsel), for all complainants.

      Richard I. Lawson (P. J. M. Hally, of counsel), for defendants City of Detroit and others.

      Post, Oxtoby & Wilkinson, for defendant Post.

       Construction and effect of general restrictive covenants against use of real property for purpose offensive or detrimental to neighborhood, see note in 9 L. R. A. (N. S.) 1089.

   Steere, J.

By consent of all parties in interest, the two above-entitled suits were simultaneously heard in the trial court upon the same evidence; it being conceded that they involved substantially the same facts and related to the same property. By further stipulation they have been presented to this court for joint hearing and determination on the same record, and argued together.

The proposed construction of a fire engine house by the city of Detroit on land located contiguous to or near that of complainants’ gave rise to this litigation. The city of Detroit has appealed from a decree of the Wayne count circuit court in chancery restraining the erection of a fire engine house on the selected site, holding the same to be in violation of a building restriction limiting the district, including the said proposed site, to use for residence purposes, and complainant Frumveller has appealed from a decree denying “at this time” specific performance by defendant Post of a land contract covering lot 163 in the district in controversy, said lot being part of the premises on which it is proposed to erect said engine house.

Previous to July, 1886, defendant Hoyt Post and four others owned together and platted what is known as the “ Waterworks subdivision of all that part of private claim 257 east of Cadillac boulevard, and between Mack street and Jefferson avenue, Hamtramck, now in the city of Detroit.” As originally platted, the property was not restricted to any particular use. On July 28, 1886, the owners divided the tract among themselves, exchanging deeds for their respective holdings. Defendant Post acquired 18 of the lots as his proportion. He had 11 lots, being Nos. 163 to 173, inclusive, lying contiguous to each other on Hurlbut avenue, which, after holding for some years, he decided to sell under building restrictions, conserving them together as a strictly residential district. Prior to selling any of these lots, he announced and published his general plan to various persons, subsequently making sales on the express understanding and agreement that they should be used for residential purposes only. It is clearly shown that by written restrictions in most of his conveyances, and by specific contracts, written or oral, fully understood, accepted, and acted upon by all who purchased, he subjected all the lots which he sold in that district to such general plan of restriction. These complainants, and all others who purchased, accepted the restrictions, conformed to, and relied on them, building homes on the lots they bought costing from $3,000 to $8,000. This general plan of a strictly residential district, so initiated, has never been departed from by any of ¿hem. An examination of the testimony convinces us that all the restrictions alleged in complainants’ bill, such as the exact style of the residences and building line, are not clearly shown to have-been imposed upon and strictly observed by all parties as to all lots in the tract, but it is clearly shown that there was a general plan, mutually agreed upon by all parties in interest, mostly in writing, and, when not in writing, entered upon and consistently observed, restricting these eleven lots to residential purposes only.

The testimony fully justifies the following findings by the learned trial judge:

“As to these lots; this plan was published by Mr. Post and his authorized agents in dealings with purchasers and prospective purchasers. The property was so held out to the general public. It was, indeed, this very condition which was one of the inducing causes of all the conveyances made, save possibly two, as hereinafter noted, in the absence of which limitation the sales would not have been effected. * * * There is explicit testimony covering this. There are, moreover, the express restrictions to this effect contained in the deeds of lots 168, 169, 171,172, and 173. There is the conduct of the parties in interest in the sale of lots 167 and 166. Thus, as to lot 167, complainant Kennedy was told of these restrictions by Post, and that they applied to all the lots before he, Kennedy, received a contract for its purchase. Kennedy, moreover, was obliged to take the plans of his house to Post for approval, and, when the latter gave the contract of sale to Kennedy, it contained an agreement on the vendee’s part to proceed immediately with the erection of a substantial, two-story frame house according to the plans prepared by Architect Varney.’
“In the purchase of lot 166, Dr. Young was told by Post that this lot and the others were to be used for residences only, and he, Young, was required to present his plans to Post before the latter agreed to sell at all. Dr. Young’s house was in point of fact completed before he received the land contract. These facts furnish ample explanation for the omission of the restriction in the deeds of lots 167 and 166, as well as corroboration of the existence of a plan of restriction.
“ Lot 170 and part of lot 171 were taken in the opening of Kercheval avenue through this property. Lot 165 is still the property of Post, but upon September 1, 1903, he gave his Bon-in-law and daughter, Mr. and Mrs. John F. Robinson, a land contract for the purchase of this lot, and immediately thereafter advanced to them the money with which to build a house costing $3,800, in which, since its completion, they have resided and still reside, thus himself conforming to the established plan.
“Lots 163 and 164 had each been sold upon contract by Post, but the rights of one vendee had been surrendered and Mr. Post had acquired the interest of the other vendee for the purpose of effecting this sale to the commission. What representations, if any, had been made to these two vendees does not appear, but there is nothing as to them contravening the proofs otherwise adduced.”

A failure to clearly establish some of the other allegations in complainants’ bill does not militate against the validity and efficacy of this general restriction to a residential district so clearly proven. It is a substantial property right which the owners can maintain and enforce. The law is well settled that building restrictions of the character shown are in the nature of reciprocal negative easements, and may be created upon a division, and conveyance in severalty to different grantees, of an entire tract. That a portion of the conveyances do not contain the restrictions will not defeat the same. Although some of the lots may have written restrictions imposed upon them and others not, if the general plan has been maintained from its inception, if it has been understood, accepted, relied on, and acted upon by all in interest, it is binding and enforceable on all inter se. It goes with the land, and is equally binding on all purchasers with notice. 5 Am. .& Eng. Ene. Law (2d Ed.), p. 3; Tallmadge v. East River Bank, 26 N. Y. 105; Trustees v. Lynch, 70 N. Y. 440 (26 Am. Rep. 615; Lewis v. Gollner, 129 N. Y. 227 (29 N. E. 81, 26 Am. St. Rep. 516); Frink v. Hughes, 133 Mich. 63 (94 N. W. 601); Harris v. Roraback, 137 Mich. 292 (100 N. W. 391, 109 Am. St. Rep. 681); James v. Irvine, 141 Mich. 376 (104 N. W. 631); Stott v. Avery, 156 Mich. 674 (121 N. W. 825). In Tillotson v. Gregory, 151 Mich. 128 (114 N. W. 10, 25), involving the enforcement of an alleged general plan of restriction in a district where some of the lots were subjected thereto in writing and others were claimed to be under the same restraint by parol, Justice McAlvay, though not finding the allegation sustained by the proofs, says:

That restrictions of the kind claimed by complainants may be created and held valid is not disputed. Citation of authorities upon that question is therefore not necessary.”

The circumstances under which the city of Detroit became interested in the project of erecting an engine house in this district, as disclosed by the evidence, are as follows : In the early summer of 1909 the fire commission inserted an advertisement in the public .press for proposals for sites for a fire engine house in that part of the city. In response, among others, a real estate broker named Q. F. Bennett, by letter dated June 1, 1909, submitted an offer to sell lots 163 and 164 of said subdivision, embracing 100 feet frontage. He did not then own or control these lots, but had knowledge of them and understood that they were for sale, and could be secured. On June 21, 1909, the commission by resolution voted to purchase 75 feet of the property so offered, comprising lot 164 and the southerly half of lot 163. On June 18, 1909, Bennett had secured from Post a 15-day option on the two lots, and, as the outcome of various negotiations by the parties in interest, Post and wife, on July 22, 1909, executed a warranty deed of the property to Bennett, following which Bennett and his wife executed a deed of lot 164 and the southerly half of lot 163 to the city of Detroit. This deed was dated July 3, 1909, but was not, however, acknowledged until September 15, 1909. In the meantime the fire commission had made further efforts to secure a different site, but finally, on October 11, 1909, they again voted to purchase said lot 164 and the southerly half of lot 163. Said deeds of Post and Bennett, with an abstract of title furnished by Post, were turned over to the corporation counsel of the city for examination and approval be-' fore said vote of October 11, 1909, and were so held by him. September 18, 1909, the assistant corporation counsel indorsed on the margin of the Bennett deed, “ Correct in form and execution, entirely satisfactory.” Proper steps were then taken by the city officials according to the regular system which obtained to pay the purchase price for the property, ending with an undelivered voucher remaining in the office of the city controller, dated November 6, 1909, indorsed “Held up by litigation, see Mr. Halley before anything done.”

Early in these negotiations the city authorities had notice that this property was restricted to residential purposes. A specific notice of that fact and complainants’ claims in relation thereto was given to the fire commission on or before the 15th day of July, 1909, at a meeting held in the mayor’s office to discuss the matter and consider objections to the erection of an engine house on the proposed site. Shortly after the adoption of the final resolution of October 11, 1909, wherein it was decided to make the purchase, the fire commission took possession of the site, andón November 3,1909, began excavating fora foundation for the proposed engine house. Complainants protested, and on November 8, 1909, filed their bill of complaint in this suit, and made application for a temporary injunction. The circuit judge to whom application was made denied the same on the ground that the bill of complaint was sworn to on information and belief; that Mr. Hoyt Post, a necessary party, was not made a defendant; and especially that building restrictions could not be enforced against a municipality, refusing, for that reason, to entertain further proof. Application was then made to this court for a writ of mandamus to compel the circuit judge to vacate his order of denial and grant the injunction as prayed for in complainants’ bill. An opinion on said application was rendered in February, 1910 (Allen v. Wayne Circuit Judge, 159 Mich. 612 [124 N. W. 581]), in which the writ was denied in the following concluding language:

“As the bill was verified on information and belief, and there was no proof taken, we cannot issue a mandamus to compel the allowance of an injunction. It will be without prejudice to another application, however, if counsel have confidence that they can allege and prove a valid contract binding upon and enforceable against the city in favor of the complainants, all of which questions will be open on such an application, though not necessarily determined finally thereon.”

Following this, the pleadings were perfected in the main case, and it was regularly heard in the circuit court of Wayne county. It is again here on appeal taken by defendants from a final decree.

The objection that Post is a necessary party to the injunction suit, and should be made a defendant, is not well founded. In Allen v. Wayne Circuit Judge, supra, it was said:

“ Again, the fact that Mr. Post was not made a party is unimportant. * * * ”

Since that decision there has been an equitable consolidation of these two cases, and he is now to all intents and purposes a party. These cases have been heard together in the trial court, and come here on the same record, with the same testimony and objections. Post was considered and treated by court and counsel and all in interest as a party in both cases. He testified as a witness, his counsel examined witnesses, filed briefs, and participated in oral argument in each case in both courts as they saw fit.

Under the views already expressed, the judgment of the trial court should be sustained in the Allen branch of these proceedings, unless municipalities are immune from the rules of law which apply to private parties touching building restrictions. That question would seem to be foreclosed by the following language in Allen v. Wayne Circuit Judge, supra:

“ We are satisfied that a valid building restriction may be binding upon a city as well as an individual, and, before it can use a lot charged with such restriction for a purpose prohibited by the restriction, it must obtain, by purchase or condemnation, the title of all owners of any interest therein, and, when it has not done so, equity may properly intervene to preserve the status quo until such interests are acquired, provided the pleading and the evidence supporting the application show a reasonable probability of the validity and justice of complainants’ claim.”

No authorities have been cited in that connection, and it has been suggested that, as an adjudication on the point was not essential to a disposition of the issue then before the court, it is obiter dictum, and the question yet open for consideration. After an examination of the authorities, we are well satisfied that, whether dictum or not, it is a correct statement of the law of this case, based on the fundamental, constitutional provision, that—

“Private properly shall not be’taken by the public nor by any corporation for public use, without the necessity therefor being first determined and just compensation therefor being first, made or secured in such manner as shall be prescribed by law.” Const. 1909, art. 13, § 1.

Building restrictions are private property, an interest in real estate in the nature of an easement, go with the land, and are a property right of value, which cannot be taken for the public use without due process of law and compensation therefor; the validity of such restriction not being affected by the character of the parties in interest. Randolph on Law of Eminent Domain, § 79; Nichols on Power of Eminent Domain, §§ 39, 47, 48, 173; Mills on Eminent Domain, §§ 30, 31; 1 Lewis on Eminent Domain, §§ 224-233; 15 Am. & Eng. Enc. Law (2d Ed.), p. 602; Patton v. Gilmer, 42 Ala. 548 (94 Am. Dec. 665); Story v. Railroad Co., 90 N. Y. 122 (43 Am. Rep. 146); City of Chicago v. Ward, 169 Ill. 392 (48 N. E. 927, 38 L. R. A. 849, 61 Am. St. Rep. 185); Ladd v. City of Boston, 151 Mass. 585 (24 N. E. 858, 21 Am. St. Rep. 481).

The contention that the city under its general police power may ignore this building restriction, and erect its fire engine house within the restricted district because it is necessary for the public good and to protect the lives and property of citizens in that locality, is not tenable. When such action deprives the individual of a vested right in property, it goes beyond regulation under police power, and becomes an act of eminent domain governed by the appropriate condemnation laws. Police power is regulative and restrictive only, limiting and dictating the owner’s use of property for public safety, but never extends to depriving him of it for public benefit. The distinction is clearly pointed out in the early case of Commonwealth v. Alger, 7 Cush. (Mass.) 84, 85, as follows:

“Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law, as the legislature, under the governing and controlling power vested in them by the Constitution, may think necessary and expedient.
“ This is very different from the right of eminent domain, the right of a government to take and appropriate private property to public use, whenever the public exigency requires it; which can be done only on condition of providing a reasonable compensation therefor.”

This case has often been cited with approval, and the authorities seem to sustain it unanimously. 1 Dillon on Municipal Corporations, §301; Freund on Police Power, §§ 511, 512; Russell on Police Powers of the State, p. 86; Tiedeman on Limitations of Police Power, p. 423; 1 Lewis on Eminent Domain, pp. 14, 15; Nichols on Power of Eminent Domain, § 17; In re Cheesebrough, 78 N. Y. 232; Surocco v. Geary, 3 Cal. 69 (58 Am. Dec. 385); Field v. City of Des Moines, 39 Iowa, 575 (18 Am. Rep. 46); McDonald v. City of Red Wing, 13 Minn. 38 (Gil. 85); Stone v. City of New York, 85 Wend. (N. Y.) 157; Kinnie v. Bare, 68 Mich. 625, 629 (36 N. W. 672).

The right of the city to purchase this property from Post as the two may agree is undisputed. Neither is there any question of the power of the city under the law of eminent domain to acquire, and relieve the property of, the restrictive interests vested in complainants. It is objected that such an expedient would be so complicated and expensive as to amount practically to prohibition in certain extensive residential portions of the city where such restrictions exist and fire protection is greatly needed. Condemnation proceedings are a last resort when other efforts to secure needed private property for public use fails. They are, as a rule, complicated and expensive, but, in proceedings to relieve a lot from building restrictions, only the owners of property in the same subdivision, mutually burdened with the same restrictions, are necessary parties. In this case the territory comprises 11 lots all told. In a larger subdivision under building restrictions, and for which fire protection is seriously demanded, it can well be said that little difficulty would be experienced with those whose lots are not in close proximity to the proposed site.

In the Frumveller Case complainant seeks to enforce specific performance of a land contract for the purchase of said lot 163 given by Post to one John W. Clark on March 1, 1904. On March 83, 1910, complainant bought from Clark his interest in said contract, and on April 15, 1910, tendered to Post the admitted unpaid balance thereon, computed at $685, and demanded his deed. This was refused on the ground that Clark had surrendered his contract to the parties who had taken charge of the matter for the purpose of making a sale of this lot, in connection with lot 164, to the city, having executed a deed of it to Bennett, who, in turn, had conveyed one-half of said lot, together with lot 164, to the city. The conveyances had been turned over to the city authorities, being then held by the corporation counsel, pending this litigation, after examination and approval. Before proceeding with any negotiations looking to the sale of this property to the city, Post took the precaution to obtain from Clark his land contract for lot 163, together with a written surrender thereof. Across the contract was written, “Surrendered for cancellation Sept. 16, 1909,” which statement was signed by Clark. Clark testifies that Exhibit D correctly states all of his bargain with Post. It is as follows:

“This is to certify that I have in my possession a certain land contract running from me to John Clark for the sale of lot 163, Waterworks subdivision, etc., consideration $900, of which $600 is still due, with interest from June 1st, 1909, and paving tax of about $42, and the city taxes-for the current year of about $12, which I have paid. Said lot is now in process of sale for the sum of $1,150,. and, when sold, I am to receive the money and account to him for all sums in excess of amount due me on said contract, together with interest and disbursements as aforesaid.
“ Dated Sept. 20, 1909.
[Signed] “Hoyt Post,
“By I. J. Radcliffe.”

It is claimed in that connection that this was not a complete surrender of the contract, but only an arrangement for Post to act as agent for Clark in disposing of the property. In our view of the case that question is immaterial. He surrendered the land contract for the purposes of this sale. If the same is not consummated, his rights under the contract become operative again. The bill of complaint in the Allen Case was filed November 8, 1909, since which time the matter has been involved in litigation and held in suspense. The complainant purchased Clark’s interest with full knowledge of the situation, as is clearly shown by Clark’s testimony, and not disputed. He is in no better position than Clark would be. It was the understanding in connection with Exhibit D that no interest on the $600 yet due to the parties would be charged to Clark after September 20, 1909. Under this agreement, and relying on it, Post negotiated the sale, and turned the deeds over as stated. They are now in the possession of the city authorities, to be accepted or rejected within a reasonable time after this litigation is ended.

The decree of the court below should he modified, requiring the city to act and elect whether it will make the purchase or not within 60 days after resettlement of the decree. If the deed is accepted, Post should account to the complainant according to the terms of Exhibit D. If the deed is rejected, Post should convey to complainant said lot 163 according to the terms of the Clark contract, making no charge in either case for interest after September 20, 1909.

This suit for specific performance of the Clark contract was unnecessary and only served to complicate the situation; therefore defendants will recover costs in that branch of the case.

In the Allen branch of the case decree is affirmed, with costs.

Ostrander, C. J., and Bird, Moore, McAlvay, Brooke, Blair, and Stone, JJ., concurred.


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    PEOPLE v. EBERLE.

    1. Constitutional Law — Intoxicating Liquors — Local Option —Prohibition—Police Power.
    It is well settled that the State, in the exercise of the police power, may regulate or prohibit the manufacture and sale of spirituous and intoxicating liquors within its territory.

    2. Same — Construction op Statutes.
    The local-option law is a prohibitory law, limited to the territory of the counties which adopt it, and is governed by the same rules of construction as apply to statutes affecting the entire State.
    3. Same — Manufacture of Stock on Hand.
    By causing loss and depreciation in value of property owned by a brewing company, such as beer in process of manufacture, the local-option act does not deprive the owner of his property without due process of law, in violation of article 3, § 16, Const, of 1909, as the risk of such loss is incidental to the nature of the business.
    é. Same — Criminal Law — Intoxicating Liquors.
    The manufacture of new stock to add to the old for the preservation of beer on hand at the time local option was adopted is a violation of law. 3 Comp. Laws, § 6413 et seq.

    6. Same.
    An exercise of the police power in forbidding the use of property for purposes injurious to public health, morals or safety, is not an appropriation of property for public benefit, and is distinct from the exercise of eminent domain.
    6. Same — Discrimination Against Nonresidents — Statutes — Home Grown Products.
    The amendment to the local-option law permitting the manufacture and sale of wine pr cider from home grown fruits in quantities not less than five gallons is unconstitutional because it operates as a discrimination against citizens and products of other States. Act No. 183, Pub. Acts 1899. Nor is the amendment of Act No. 170, Pub. Acts 1903, constitutional, permitting the sale at wholesale of wine or cider manufactured in the county to persons residing outside the same.
    7. Same.
    But since the act is complete in itself, capable of being executed independently of such amendments, it is valid and constitutional except as to the amendments.
    8. Same — Searches and Seizures.
    The objection that the law provides for unreasonable searches and seizures is not sustained.
    Exceptions before sentence from Jackson; Parkinson, J.
    Submitted October 31, 1911.
    (Docket No. 142.)
    Decided December 8, 1911.

      Carl Eberle and Stephen H. Carrol were convicted of violating the local-option law.
    Affirmed.

      Richard Price, for appellants.

      Albert O. Reece, Prosecuting Attorney, and Frank L. Blackman, Assistant Prosecuting Attorney, for the people.

       Removed by writ of error to United States Supreme Court.

       Constitutional right to prohibit sale of intoxicating liquors, see note in 15 L. R. A. (N. S.) 908.

   McAlvay, J.

Respondents were convicted under the local-option law, adopted and in force in Jackson county, upon a charge that they “did manufacture brewed, malt, and intoxicating liquors, to wit, beer,” contrary to the provisions of said law. The case is before this court upon exceptions before sentence.

The facts are not in dispute. No question is raised but that the local-option law, prohibiting, among other things, the manufacture of brewed, malt, and intoxicating liquors, was, at the time charged, in force in said county. It is admitted that respondents did manufacture the beer in question.

The defense is founded upon the propositions: (1) That the law, on account of certain of its provisions, is unconstitutional ; (2) that such manufacture was not unlawful, because done for the sole purpose of preserving a large quantity of beer, to wit, 1,700 barrels, which they had lawfully manufactured, and had on hand at the time such law went into effect.

In order to understand the second contention properly, some of the undisputed facts must be stated. Respondents were stockholders and officers of the Eberle Brewing Company, a Michigan corporation, which owned a brewing plant at Jackson, and had been for several years engaged in the manufacture of lager beer. When the local-option law went into effect in Jackson county, on May 1,1909, the company had on hand about 1,700 barrels of beer, which they had been unable to sell. It appears that this beer would have become worthless and unmarketable, if a new brew were not made and introduced into it occasionally, to keep it alive. The new beer was made and used only for this purpose. It was not then old enough to be in a fit condition to drink. The company, after the 1st of May, 1909, was manufacturing a temperance, nonalcoholic beer, for which some new machinery had been purchased, to be used in connection with the same vats and machinery theretofore used in the manufacture of lager beer. On September 11, 1909, there was a large quantity of this old beer on hand in the basement and storerooms of the brewery. The sheriff and his deputies on that date found six vats full of what was supposed to be beer in the process of fermentation. Two of these vats were filled with new lager beer, and three were filled with temperance beer. Samples of all kinds were taken for analysis. The temperance beer was found to contain no alcohol. The new and the old lager beer contained the percentage of alcohol usually found in lager beer.

Respondents requested the court to charge, in accordance with the contention above stated, that from the proof in the case it appeared that no beer had been manufactured after May 1, 1909, by respondents, except to preserve and protect their property, and was used only for that purpose, and respondents were within their rights, and not guilty; and, if such request was not given, then to charge that if the jury so found the facts to be, then the respondents would not be guilty as charged, and a verdict of not guilty should be returned. These requests were refused, and the court charged that under the law then in force the manufacture of beer, “no matter for what purpose it is manufactured, or what the reason is,” was strictly prohibited, and if the jury found, beyond a reasonable doubt, that beer had been manufactured as charged, then respondents should be found guilty; otherwise they should be acquitted. Errors are assigned upon such rulings.

The constitutionality of the law is attacked upon several grounds:

(a) That it is in conflict with paragraph 3, § 8, art. 1, of the Constitution of the United States, relative to the regulation of commerce.
(b) That it is repugnant to section 2, art. 4, of said Constitution, relative to the privileges of citizens of different States.
(c) That it violates the fourteenth amendment of the same, and also section 16, art. 2, of the Constitution of this State (1909).
(d) That it violates the Constitution of the United States and of this State, relative to unreasonable searches and seizures and the issuance of search warrants.

The question of the constitutionality of the original act, being Act No. 207, Pub. Acts 1889, of which the law in question is amendatory, has been considered by this court, and the law held to be a valid and constitutional exercise of the legislative power. Friesner v. Charlotte Common Council, 91 Mich. 504 (52 N. W. 18); Feek v. Bloomingdale Township Board, 82 Mich. 393 (47 N. W. 37, 10 L. R. A. 69). Similar statutes have been held to be constitutional in other States. 23 Cyc. p. 78, and cases cited in note 59 et seq.

It is not contended that this law was not duly and regularly adopted according to its requirements, nor that the legislature might not enact a constitutional local-option law. Claims of unconstitutionality are based upon the provisions of certain sections of this law, the objectionable portions of which, as set forth and relied upon in respondent’s brief, are as follows:

“ Section 1 of said act provides:
“ ‘ It shall be unlawful for any person, directly or indirectly, himself or by his clerk, agent or employé, to manufacture, sell, keep for sale, give away or furnish any vinous, malt, brewed, fermented, spirituous or intoxicating liquors, or any mixed liquor or beverage any part of which is intoxicating, or to keep a saloon or any other place where any such liquors are manufactured, sold, stored for sale, given away or furnished in any county of this State on and after the first day of May next following after the adoption by the board of supervisors of such county of a resolution prohibiting the same, as provided by section thirteen of act number two hundred seven of the public acts of eighteen hundred eighty-nine, as amended, so long as said resolution remains unrepealed: Provided, however, that the provisions of this section shall not apply to druggists, or registered pharmacists, selling any such liquors under and in compliance with the restrictions and requirements imposed upon them by the general laws of this State and sections twenty-five and twenty-six of this act as amended.’
“ Section 2 of the act provides, in substance, for the suspension of the general laws of the State, regulating the business of manufacturing and selling liquor, etc., in the territory and municipalities within the limits of any county where local-option is adopted.
‘Provided, however, that all sales of liquors by druggists or registered pharmacists in such counties shall be under the restrictions and requirements imposed upon them by the general laws of this State and this act, as amended.’
“Sections 3, 4, 5, 6, 8, 9, 10, 11, 12, 13, and 14 contain provisions for ascertaining the will of the people and declaring the result of the election in counties where local option is adopted.
“ Section 15 is as follows:
“ ‘ Sec. 15. The prohibitory provisions of this act shall take effect and have full force within such county of this State on and after the first day of May, immediately following the adoption by the board of supervisors of such county of the resolution ordering such prohibition and upon publication of the notice of the adoption of such resolution: Provided, however, that nothing in this act shall be so construed as to prohibit the sale of wine for sacramental purposes, nor shall anything herein contained prohibit druggists or registered pharmacists from selling or furnishing pure alcohol for medicinal, art, scientific and mechanical purposes, nor prohibit the sale of wine or cider from home grown fruit in quantities of not less than five gallons, nor shall the provisions of the act be construed to prohibit the manufacture of wine or cider nor shall the provisions of this act be construed to prohibit the sale at wholesale of wine or cider manufactured in said county to parties who reside outside of said county.’
“Sections 25 and 26 provide that druggists ‘shall be permitted to sell such vinous, malt, brewed, fermented, spirituous and intoxicating liquors for medicinal purposes, but only on the written prescription of a regular practicing physician,5 and also provides that such druggists ‘shall be permitted to sell pure alcohol or any vinous, fermented or spirituous liquors for art, chemical, scientific or mechanical purposes, but only on the written application °of the purchaser, stating the purpose for which such liquors are purchased, which application shall be subscribed and sworn to by the person making such purchase.
“The general laws of the State referred to above, being Act No. 313, Pub. Acts 1887, provide in section 3 that the provisions of the act shall not apply to druggists who sell liquors for chemical, scientific, medicinal, mechanical or sacramental purposes only, and in strict compliance with the law, and then contains certain provisions in regard to sales to minors, etc., and the giving of a bond.55

Prom respondents5 argument and conclusions, drawn from a consideration of this statute, we may state briefly their claims against its constitutionality, as follows: (1) That it deprives citizens of property without due process of law; (2) that it discriminates against citizens and products of other States, and is an interference with interstate commerce; (3) that it discriminates against and abridges the privileges and immunities of citizens of this State, denying them the equal protection of the laws and the privileges and immunities of the citizens of the other States.

It is well settled that the State, in the exercisefjjof the police power, may regulate or prohibit the manufacture and sale of spirituous and intoxicating liquors within its territory. People v. Hawley, 3 Mich. 330; People v. Gallagher, 4 Mich. 244.

“ If the public safety or the public morals require the discontinuance of any manufacture or traffic, the hand of the legislature cannot be stayed from providing for its discontinuance, by any incidental inconvenience which individuals or corporations may suffer.55 Beer Co. v. Massachusetts, 97 U. S. 25.

This is now the accepted doctrine. Foster v. Kansas, 112 U. S. 201-206 (5 Sup. Ct. 8, ’97). The police power of the State is, however, subject to the limitations of the Federal Constitution.

The law under consideration is a prohibitory law, limited in‘this case to the territory of one county; but the same rules of law must be applied in its construction as would be applied were it State wide in its application. When this law went into effect, the brewing company of which respondents were officers and managers was possessed of property which could not be operated for the purposes of making lager beer within the county, or sold without great loss, nor could the valuable product be disposed of. Naturally a great loss and depreciation in value of the property occurred. However much such a state of facts may appeal to us, the fact remains that the question as to whether this condition is not incidental to the business engaged in must be determined as a question of law. We find that the great weight of the authorities holds that a prohibitory law which will so operate is not unconstitutional.

“Although it may deprive persons of the right to pursue a business previously lawful, and may have the effect of diminishing the value of property owned by them, and specially adapted to the continuance of the business, it does not, for that reason, amount to a deprivation of their property or liberty without due process of law, within the meaning of the Constitution.” Black on Intoxicating Liquors, § 37.

See, also, Mugler v. Kansas, 123 U. S. 623 (8 Sup. Ct. 273); Kidd v. Pearson, 128 U. S. 1 (9 Sup. Ct. 6). Reference is had to the learned opinion in Mugler v. Kansas, supra, written by Mr. Justice Harlan, where the leading cases are cited and discussed with reference to the provisions of the Kansas statute, and the exceptions therein contained, which provisions and exceptions are identical with our law, with one exception, which will be discussed later.

The authorities last above cited also dispose of respondents’ second contention that, under the facts in the instant case, the court should have directed a verdict of not guilty, for the reason that the manufacture of this beer was for the purpose of preservation of property only. The clear legislative intent expressed in this law was the prohibition of the manufacture or sale of the products therein described (subject to certain express exceptions) within the territory of the county adopting it. The only basis upon which such contention can be made is because of the claim that its denial would operate to diminish in value and destroy property without authority of law, to the damage of respondents. Prom this it may be reasonably inferred that a liability upon the municipality would result. This argument is not elaborated by respondents, but it may be assumed that the principle of remuneration, as in the taking of private property for a public use, is referred to.

The distinction between the exercise of the right of eminent domain in taking private property for a public use, and the injury, damage, and loss to property, incidental to the exercise of the police power of the State in the promotion of the public welfare, is well defined. Beer Co. v. Massachusetts, supra. Mugler v. Kansas, supra. In the latter case, the United States Supreme Court said:

“ These principles have no application to the case under consideration. The question in Pumpelly v. Green Bay Company [13 Wall.(U. S.)166], arose under the State’s power of eminent domain; while the question now before us arises under what are, strictly, the police powers of the State, exerted for the protection of health, morals, and safety of the people. * * *
“As already stated, the present case must be governed by principles that do not involve the power of eminent domain, in the exercise of which property may not be taken for public use without compensation. A prohibition simply upon the use of property for the purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed a taking or an appropriation of property for the public benefit. Such legislation does not disturb the owner in the control or use of his property for lawful purposes, nor restrict his right to dipose of it, but is only a declaration by the State that its use by any one for certain forbidden purposes, is prejudicial to the public interests.”

There remains a further objection to be considered. This local-option law exempts from its prohibition the sale of wine and cider from home-grown fruit, in quantities of not less than five gallons, and also the manufacture of wine and cider in the county, and the sale thereof at wholesale to parties who reside outside of the county. It is claimed that in this respect the statute is an attempt to restrict commerce, and to discriminate against the citizens and products of other States. Our construction of these exemptions from the operation of this prohibitory law relative to wine and cider, is that in each instance reference is had to wine and cider manufactured from homegrown fruit. It is so expressly stated, relative to the sale in quantities not less than five gallons; and from the context it is clear that the unrestricted manufacture in the county, and the unrestricted sale at wholesale to parties who reside outside of the county, applies only to the products of home-grown fruit.

In discussing the discrimination against the products of other States, contained in statutes similar to our local-option law, Mr. Black, in his valuable text-book, has said:

“In several of the States, at various times, laws have been enacted, prohibiting the sale of wine made from fruits grown outside the particular State, but permitting the sale of that made from fruits grown within the State. And in some few cases provisions of this kind have been held valid. But the great preponderance of authority, based upon repeated rulings of the Supreme Court of the United States, is to the effect that such a discrimination against the products of other States is not defensible as a police regulation, but is unconstitutional and void as an encroachment upon the exclusive power of Congress to regulate foreign and interstate commerce.” Black on Intoxicating Liquors, § 44, and cases cited; Weil v. Calhoun (C. C.), 25 Fed. 865, 873.

See, also, Kidd v. Pearson, 128 U. S. 1 (9 Sup. Ct. 6).

It is admitted in the brief for the people that these provisions cannot be defended, because unconstitutional. We are satisfied that the weight of the authorities justifies such admission. The question is, not whether a State may not lawfully prohibit of regulate the manufacture or sale of spirituous and intoxicating, vinous, fermented, and brewed liquors, and except a certain amount of some or all such products, to be used for certain purposes, but whether a State, by exceptions, may discriminate against the products and citizens of other States. These exceptions, relative to the manufacture and sale of cider and wine from home-grown fruit in this State, in our opinion, being discriminatory, violate the provision of the Federal Constitution invoked. It remains to be considered to what extent this invalid portion affects the statute.

In discussing this question, Judge Cooley says:

“A statute may contain some such provisions, and yet the same act, having received the sanction of all branches of the legislature, and being in the form of law, may contain other useful and salutary provisions, not obnoxious to any just constitutional exception. It would be inconsistent with all just principles of constitutional law to adjudge these enactments void, because they are associated in the same act, but not connected with or dependent on others, which are unconstitutional. Where, therefore, a part of a statute is unconstitutional, that fact does not authorize the courts to declare the remainder void also, unless all the provisions are connected in subject-matter, depending on each other, operating together for the same purpose, or otherwise so connected together in meaning that it cannot be presumed the legislature would have passed the one without the other. * * * The point is, not whether they are contained in the same section; for the distribution into sections is purely artificial; but whether they are essentially and inseparably connected in substance. If, when the unconstitutional part is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained. The difficulty is in determining whether the good and bad parts of the statute are capable of being separated, within the meaning of this rule.” Cooley’s Constitutional Limitations (7th Ed.), pp. 246 and 247, notes and cases cited.

The original local-option law, so called, was Act No. 207 (Pub. Acts 1889). It was in itself complete legislation, and remained intact, as enacted, as the law upon the subject in this State until the session of the legislature of 1899, and contained none of the provisions relative to the manufacture and sale of wine and cider from homegrown fruits. At that session certain amendments were made, by Act No. 183 (Pub. Acts 1899), to section 15, hereinabove quoted, and the first of these objectionable provisions was added, as follows, “ nor prohibit the sale of wine or cider from home-grown fruits in quantities not less than five gallons.”

Section 15 was again amended by Act No. 170 (Pub. Acts 1903), which was an act limited to the amendment of this single section, and added the following:

“Nor shall the provisions of this act be construed to prohibit the sale at wholesale of wine or cider manufactured in said county to parties who reside outside of said county.”

It is apparent that these amendments did not enter into legislative consideration until long after the original act was in active operation, so that a question, sometimes considered by courts, as to whether the act would have passed without the objectionable clauses of section 15 is not presented.

It remains only to apply the rule above stated to the instant case. It is clear that the general legislative purpose contained in the act may be accomplished with the objectionable provisions stricken out, leaving the act “complete in itself, and capable of being executed wholly independent of that which was rejected.” This conclusion has already been intimated by this court in a former decision. In re Wilson, 160 Mich. 45 (124 N. W. 1100).

The remaining objection, that this act provides for unreasonable searches and seizures, has received but little attention in the briefs or upon the oral argument. Our examination of those provisions satisfies us that the objection is not well taken.

The conviction is affirmed, and the court below directed to proceed to judgment upon the verdict.

Moore, Brooke, Blair, and Stone, JJ., concurred.


author: Per Curiam.

text:
    HANEY v. ALLEGAN CIRCUIT JUDGE.
    Mandamus — Record—Court Rules.
    Where petitioners in mandamus filed an additional printed record containing matters which counsel for respondent considered necessary to a proper understanding of the questions involved, and which the court on motion had determined should be incorporated in the record, a second motion to dismiss, on the ground that other material things had been improperly omitted therefrom, is denied on the ground that the record sufficiently presents the points involved as required by Supreme Court Rule 56.
    Mandamus by George M. Haney and another against Philip Padgham, judge of the Allegan circuit court,to compel respondent to settle a record on appeal and approve a bond. On motion to dismiss for insufficiency of the printed record.
    Submitted April 4, 1911.
    (Calendar No. 23,916.)
    Motion denied December 8, 1911.

      Brown, Farley & Selby, for the motion.

      Eugene Carpenter, contra.

   Per Curiam.

Relators filed a petition in mandamus proceedings against respondent circuit judge to compel him to settle the testimony in a certain chancery cause heard before him in open court, and to approve a bond on an appeal thereof to this court from certain final orders made therein or show cause why he neglects and refuses so to do. Respondent answered this petition, and later moved this court to dismiss the petition because the record printed in these proceedings was incomplete. Upon this motion an order was made that relators complete the record within a certain time. 164 Mich. 581 (129 N. W. 865). An amended record was filed March 1, 1911, in pursuance of said order. This was claimed by respondent not to include much material matter necessary to a proper understanding of the case, and another motion has been made on his behalf to strike from the files of this court such amended printed record. The amended record filed in pursuance of said order March 1, 1911, and “Addenda to the Amended Record,” filed March 21, 1911, after this last motion was made, present 163 pages of printed matter which relators claim is sufficient to inform the court of the facts involved in this motion. The case tried in the circuit court is not here for consideration, nor are any of its merits before us for discussion.

Relators claim that they are hindered from getting the case here, and denied an appeal to this court by the refusal of the trial judge to settle the testimony in the case, and this court by these mandamus proceedings is asked to determine the merits of that claim and nothing more. The rule of this court (No. 56) under which counsel for respondent claims this record is insufficient requires only so much of the records in mandamus cases to be printed “as is necessary to present the points raised.” The opinion filed at the time relators were required to file an amended record ordered relators “to file a printed record of the proceedings in this cause which will comply with said rule.” 164 Mich. 582 (129 N. W. 866). Relators insist that they have complied with the order of the court. The decree from which relators are attempting to appeal was entered in a cause wherein a writ of assistance was asked for in certain tax proceedings.

Relators insist that there are but two propositions involved in their petition for mandamus:

(а) Whether they and each of them have a legal right to appeal to this court as claimed.

(б) Whether the respondent refuses to perform a legal duty to settle the testimony in the original cause.

Neither of these questions are before us for consideration at present. We are to determine whether so much of the record has been printed “as is necessary to present the points raised,” and thereby satisfy the rule. On the part of respondent, the specific grounds of this motion are that certain paragraphs were omitted from Exhibit B, attached to respondent’s answer, and also parts of said answer. No benefit can arise from printing the claimed omissions. Suffice it to say that from our examination we are satisfied that the portions omitted are not necessary to present the questions raised. For much of this omitted matter it is claimed that it shows improper conduct and statements on the part of relators’ counsel. As to such matters, undoubtedly there was a proper time and place to deal with them; but not in these proceedings. In our opinion the present printed record is sufficient for the purposes of these proceedings, and, in fact, a much shorter record would have satisfied the requirements of the rule and presented all the necessary information contained in this record.

The motion to strike this record as amended from the files of this court is denied, and the parties will proceed according to the practice of this court to a hearing upon these mandamus proceedings.


author: Brooke, J.

text:
    BROWN v. COMMON COUNCIL OF THE VILLAGE OF SPARTA.
    Intoxicating Liquors — Villases—Limitation Upon Number of
    Saloons — Statutes—Municipal Corporations.
    Under Act No. 291, Pub. Acts 1909, a village of over 500 inhabitants that had no saloons in April, 1909, is not prohibited from afterwards licensing a saloon. The language of the statute “not to exceed the number doing business in said township, village or city in the month of April, 1909,” does not refer to a village that had no saloons.
    Appeal from Kent; Perkins, J.
    Submitted June 20, 1911.
    (Docket No. 104.)
    Decided December 8, 1911.
    Bill by William B. Brown, prosecuting attorney for the county of Kent, on the relation of George O. Norton and others, against the president and trustees of the village of Sparta and others to restrain defendants from granting a. license to a saloon. Prom a decree dismissing the bill,, complainant appeals.
    Affirmed.

      Walker & Fitzgerald, for complainant.

      Marshall M. Uhl and Kleinhans & Knappen, for defendants.
   Brooke, J.

The bill of complaint in this cause is filed, by the prosecuting attorney by leave of the court, on relation of certain citizen taxpayers of the village of Sparta.. A permanent injunction is sought, restraining the officials of the village from granting to defendant Bowen or any other person a license as a retail liquor dealer. The injunction was denied and the license granted. It is stipulated that, in the month of April, 1909, there were no saloons or retail liquor dealers doing business in the village of Sparta, and that at the time the license was granted the population of said village was in excess of 500.

The sole question here for determination is: Can a saloon or retail liquor dealer be licensed in said village ?

This involves a construction of section 39 of Act No. 291, Pub. Acts 1909:

“ When applied for in accordance with the provisions of this act, bonds shall be approved by the local board, board of trustees, council or common council in each township, village and city for retail liquor dealers, not to exceed the number doing business in said township, village or city in the month of April, nineteen hundred nine. Provided, that if after this act takes effect the number of retail liquor dealers in any township, village or city shall be in excess of the ratio of one to each five hundred inhabitants, according to the last United States census, no license or licenses shall be issued to any person or persons to take the place of such license or licenses as shall have been revoked as in this act provided, or that shall voluntarily have been surrendered, until the ratio of the licenses granted, and the saloons in such township, village or city shall not exceed one saloon for every five hundred inhabitants thereof, according to the last United States census, etc.”

If the contention of the complainant is sound, then all townships and villages in the State which were without saloons in April, 1909, though possessing more than 500 inhabitants according to the last United States census, must forever, or at least so long as this act remains in force, go without saloons. And under this construction a village might increase in population to 5,000 and still be unable to license a saloon, even though the inhabitants and officials thereof desired this action to be taken with practical unanimity. This would, of course, amount to absolute prohibition as to the territory affected, and would deprive such municipalities of the right to determine, each for itself, whether or not a saloon or saloons should be licensed.

Two methods are now provided by law for the prohibition of the liquor traffic. One is under the general local-option act (Act No. 207, Pub. Acts 1889, 2 Comp. Laws, § 5412 et seq., and acts amendatory thereto), which makes the county the local-option unit. This act permits a county, by a majority vote, according to its terms, to absolutely prohibit the manufacture and sale of liquor within its limits. The second method is under the general village act, which permits villages to suppress saloons for the sale of spirituous and intoxicating liquors. 1 Comp. Laws, § 2769.

The act here under consideration (Act No. 291, Pub. Acts 1909) is entitled “An act to provide for the taxation, licensing and regulation of the business, etc.”

If the contention of counsel for complainant as to the construction to be placed upon the language of section 39 were adopted by this court, it would be necessary to determine whether or not under this title the business could be absolutely prohibited in any municipality. Upon this point attention is directed to People v. Gadway, 61 Mich. 285 (28 N. W. 101, 1 Am. St. Rep. 578); In re Hauck, 70 Mich. 396 (38 N. W. 269); Timm v. Caledonia Station Common Council, 149 Mich. 323 (112 N. W. 942); Churchill v. Detroit Common Council, 153 Mich. 93 (116 N. W. 558). But it is not necessary to determine this question, as we are of opinion that the language, “ not to exceed the number doing business in said township, village or city in the month of April, nineteen hundred nine,” has no reference or application to a municipality which on that date had no number doing business, and that such municipality, if possessed of the requisite number of inhabitants, has the same right to grant licenses as those which on that date had a certain number “doing business.” Any other construction would, it seems to us, be intolerable, would be discriminatory to the last degree, and would be opposed to the spirit of the whole act, which is to permit saloons in territory which has not adopted prohibition nor (if a village) suppressed the traffic, up to a specified ratio.

The judgment is affirmed.

Ostrander, O. J., and McAlvay and Blair, JJ., concurred. Moore, J., concurred in the result.


text:
      In re ALEXANDER.
    1. Attorney and Client — Admission to Bar — State Board of Law Examiners — Rules.
    The rule adopted by the State board of law examiners requiring applicants to present a certificate of graduation from a normal or high school, or to take an examination in certain subjects as a preliminary qualification to their admission to the bar, is reasonable and in harmony with 1 Comp. Laws, §§ 1121, 1122.
    2. Same — Striking Name from Rolls.
    Where an applicant for admission to the bar, who had passed the examination, was permitted to sign the roll and take the oath of office upon his assurance that he would thereafter furnish the required evidence of his educational qualifications, his certificate of admission being withheld until he had complied with the requirement of the board of examiners, he did not acquire the status of an admitted practitioner and his name is ordered stricken from the rolls upon the petition of said board showing his failure to comply with the requirements.
    Petition, by the State board of law examiners to strike from the roll of attorneys the name of Sidney L. Alexander.
    Submitted June 13, 1911.
    (Calendar No. 24,652.)
    Petition granted December 8, 1911.

      Charles W. Nichols, for the motion.

      May & Dingeman, contra.

   McAlvay, J.

The controlling facts involved in this application are not in dispute. It appears that in April, 1907, respondent presented himself for examination before the State board of law examiners for admission to the bar of this State. As a preliminary to the taking of the legal examination, the board requires certain evidences of general education, in default of which the applicant must pass an examination upon certain subjects. It is not disputed that respondent neither furnished the required evidence of his general educational qualifications, nor passed an examination thereon before taking the legal examination. It appears that he was permitted to take the legal examination upon the assurance (the exact terms of which are not of consequence) that such proof would be later furnished to the board. Having successfully passed the legal examination, upon the request of respondent, he was permitted, by the authority of one of the justices of this court, to take the oath and sign the roll of attorneys in the clerk’s office; his certificate of admission to be withheld until he had complied with the lawful requirements of the board. Respondent did furnish to the board a certificate from the Central high school of Detroit, showing that he had attended that institution between September, 1899, and November, 1903, and that through such attendance he had secured a total credit of 63 full hours. This credit we understand to be less than half that required for graduation. The board declined to accept this certificate as sufficient evidence of respondent’s scholarship. In the meantime, rspondent had entered upon the practice of the law, and had assumed and is now exercising the rights and franchises pertaining to the office of an attorney at law. The board, though somewhat tardily, has filed this application. The law governing the question will be found in 1 Comp. Laws, §§ 1119-1125.

We find (section 1121) that applicants for admission to the bar, of the class to which respondent belongs, may be admitted to practice upon motion.

“But the applicant shall first produce the certificate hereinafter provided for from the board of examiners, to be appointed by the governor upon the recommendation of the Supreme Court of Michigan, that he possesses sufficient learning in the law, and moral character and ability to enable him to properly practice as an attorney and counsellor at law and solicitor and counsellor in chancery in the courts of this State.”

Further (section 1122):

“ Such board shall meet * * * for the purpose of examining all applicants for admission to the bar as to their legal learning and general qualifications to practice in the several courts of this State as attorneys and counsellors at law and solicitors and counsellors in chancery, and upon such examination being had, the board shall issue to such applicants as shall pass the required examination the certificate of qualification stating the standing of the applicants and recommending their admission to the bar. Such board shall * * * make such rules and regulations, relative to said examination, as to them may seem proper.”

The answer of respondent admits that he has never received from the board the certificate of qualification, recommending his admission, the production of which the statute makes a prerequisite to his admission. He avers that the board illegally withholds said certificate. He further alleges that the board has no authority in law, 4 either by rule or otherwise, to require applicants for admission to the bar to furnish high school diplomas or certificates, and that such rule is unreasonable. The rule adopted by the board is as follows:

“The board of examiners will regard applicants who have received bachelors’ degrees from any reputable college or university, as having prima facie the requisite general educational qualifications for admission to the bar. A similar presumption will be made in favor of all graduates of normal or high schools of the State of Michigan, or other reputable institutions of a similar character. A recent teacher’s certificate, issued by any board of school examiners in the State of Michigan for the first grade, or higher, will also be accepted as prima facie evidence of general educational requirements. In the absence of such evidence, to be sent to the secretary with application, candidates for admission to the bar will be examined, before taking the legal examination, in the ordinary studies required for graduation from the high schools of Michigan, and particularly upon the subjects of arithmetic, grammar, elementary algebra, general, American and English history, civil government, composition and rhetoric, and English literature.”

It is quite evident that the legislature intended to and did clothe the board with power to inquire into and pass upon, not only the legal qualifications of the applicant, but those of a moral and general educational character as well. In adopting the foregoing rule, it will be noted that the board does not require a certificate of any kind. It merely recites a series of qualifications, due proof of any one of which will relieve the applicant from the necessity of taking the preliminary examination as to his general educational qualifications. This rule is a reasonable and a wholesome one, and one, too, which was intended for the relief of the applicant.

We have examined the authorities cited in the brief filed on behalf of respondent with care. They are: In re Holland, 6 U. C. Q. B. Rep. (O. S.) 441; In re Page, 1 Bing. 160; In re-, Gent, 2 B. & Ad. 766. We find they are not applicable to the case here under consideration, for the reason that in each case the court was asked to pass upon an application to strike an attorney’s name from the roll after admission. We must hold in the case at bar that respondent never was admitted; that his taking the oath of office and signing the roll in the clerk’s office, under the circumstances disclosed, did not constitute “admission to the bar,” within the legal definition of that term. It follows that in assuming to enter upon the practice of the law respondent has usurped the rights and franchises of an office to which he can lay no legal claim. Respondent’s name will be stricken from the rolls in accordance with the prayer of the petition.

Ostrander, O. J., and Brooke, Blair and Stone, 33., concurred.


author: MoAlvay, J.

text:
    VETTER v. FOWLER.
    Constitutional Law — Statutes—Registers oe Deeds — Salary —Fees.
    Under the Constitution of 1909, art. 8, § 9, providing that boards of supervisors shall have exclusive power to fix the salaries and compensation of all county officers not otherwise provided for by law, the board of supervisors of Ingham county exceeded their authority in fixing the salary of the register of deeds at $1,500 in lieu of all fees, since the fees and compensation of the register are determined by a pre-existing statute. 3 Comp. Laws, § 11227.
    Error to Ingham; Wiest, J.
    Submitted July 5, 1911.
    (Docket No. 131.)
    Decided December 8, 1911.
    Assumpsit by William B. Vetter, treasurer of Ingham county, against Homer S. Fowler, register of deeds of Ingham county. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Charles H. Hayden, Prosecuting Attorney, for appellant.

      C. W. & W. S. Foster, for appellee.
   MoAlvay, J.

This suit in assumpsit was brought to recover from the register of deeds of Ingham county certain fees collected by him in his official capacity during the month of February, 1911, to the amount of $412.02. The facts in the case are stipulated, together with an agreement that no question is raised as to whether the treasurer is the proper party to institute this suit.

Plaintiff relies for recovery upon the provisions of section 9, art. 8, of the Constitution of 1909, which provides:

The boards of supervisors shall have exclusive power to fix the salaries and compensation of all county officials not otherwise provided for by law.”

At the October session, 1910, of the board of supervisors of Ingham county, the salary of the register of deeds was fixed at the sum of $1,500 per year. Defendant, under protest in writing, paid to the county treasurer the receipts of his office for the month of January, 1911. He declines to turn over such receipts for the month of February, claiming that the board of supervisors had no power to fix a salary for his office, and that he was entitled to retain the fees provided by law as his compensation. The case was tried before the court without a jury, and his opinion filed in the case is stipulated as his findings of fact and law. Upon such findings a judgment was entered for defendant. Exceptions were filed to such findings, and errors assigned. These need not be considered separately as the case depends upon the construction the court will give to the constitutional provision invoked, and the provisions of law relative to fees of registers of deeds.

We agree with the learned circuit judge that this section of the Constitution is not ambiguous. The rule that effect must be given to the entire section is a fundamental one, as is also the one that words must be given their usual and ordinary meaning. That the intention of the framers of this Constitution as expressed in the final clause, “not otherwise provided for by law,” was to place a limitation upon the power granted to boards of supervisors, cannot be made clearer than the simple words used in the paragraph itself express. Provision is made by law to compensate registers of deeds for services rendered by certain fees. See section 2611, 1 Comp. Laws, and section 11227, 3 Comp. Laws. It has always been the fixed policy of the State to compensate these officers by fees. This policy was known to the framers of this Constitution, and these provisions of law were recognized in the limitation upon the power granted. The fees sought to be recovered in this suit are those fixed by law and paid to defendant in his official capacity as register of deeds. The board of supervisors had no power to fix his salary in lieu of such statutory fees, and require him to pay into the county treasury the fees of his office.

The judgment of the circuit court is affirmed, but without costs.

Ostrander, C. J., and Brooke, Blair and Stone, JJ., concurred.


author: Moore, J.

text:
    ROTHSCHILD v. SCHNEIDER.
    1. Intoxicating Liquors — Trial—Illegal Contract —Directing Verdict.
    In an action upon a promissory note given for the purchase price of a stock of liquors, cigars and other merchandise, it was proper to submit to the jury the defense which plaintiff disputed, that a part of the consideration was for a liquor license issued to and owned by the seller to be held and used by the purchaser in carrying on the business.
    2. Same — Evidence—Production of Books.
    Error was not committed upon the trial in refusing to compel the seller to produce its books for the purpose of showing that the seller was engaged in retailing intoxicating liquors, when no showing was made that the books would tend to prove that defendant was charged with the liquors sold to him at different times, or that they would have any bearing upon the alleged illegal agreement.
    8. Same — Saving Questions for Review.
    The contention that the sale to defendant of a stock of liquors was invalid because the seller had no license and the sale was not in bulk was not raised on the trial by a motion to direct a verdict for the defendant for the reason that the sale was illegal because the vendor had no license; it appearing that the court submitted to the jury the question whether the right to conduct the business under the license was transferred with the stock of liquors, that the jury found against the contention, and that in submitting the issues the court stated without objection on defendant’s part that such was plaintiff’s claim.

      Error to Wayne; Mandell, J.
    Submitted November 6, 1911.
    (Docket.No. 47.)
    Decided December 8, 1911.
    Assumpsit in justice’s court by the estate of S. Kaufman, Louis Harris, S. Rothschild, Alfred Rothschild, and Moses Schott, copartners doing business as Rothschild & Brother, against Louis Schneider upon a promissory note. From a judgment for plaintiffs defendant appealed to the circuit court. Judgment for plaintiffs. Defendant brings error.
    Affirmed.

      W. W. Wicker, for appellant.

      Clark, Lockwood, Bryant & Klein, for appellees.
   Moore, J.

The plaintiffs sued upon a promissory note, and recovered a judgment for the amount thereof. The case is brought here by writ of error.

Two quotations from the record will aid in understanding the questions involved. When the proofs were in, a motion was made as follows:

The Court: Then the sole question of fact to be determined by the jury is whether or not the contract contemplated the carrying out of an illegal business — that is, a business under the license of Jules Meyers, deceased; the plaintiffs averring that the note was given as part of the purchase price of goods that were sold, selling the goods in bulk; and the defendant claiming that, combined with that, there was to be the use of the liquor license. That is the only disputed question of fact in the case.
“Mr. Van De Mark: I move that the court direct a verdict for the defendant, for the following reasons: First. The undisputed testimony shows that this action is brought upon a note which was given for the sale of intoxicating liquors; the sale being illegal for two reasons: First. The vendor had no license, as required by the statute, at the time the sales were made; and, secondly, because the vendee — it was within the knowledge of the vendor that the vendee also was conducting a business without a proper license, secured from the county treasurer, under the statute of this State. There is no question of the execution of the note, so far as the signature is concerned.”

No other requests were preferred by defendant. The court overruled this motion, and charged the jury in part as follows:

“ Gentlemen of the jury: This is an action, brought by Rothschild & Bro., a copartnership, against Louis Schneider. The action is based upon a promissory note. The claim of the plaintiffs amounts to, including interest, $250.48. It is claimed by the plaintiffs that they hold this note by reason of the indorsement of the Waldorf-Astoria Segar Company, the payee of the note. The plaintiffs claim if there was any legal defense to the note they (the holders of the note by indorsement) did not know it; in other words, that they were innocent purchasers without notice of any legal defense. That matter is contested by the .defendant, who claims that this note was given as part of a purchase price of a stock of liquors that was the property of the Waldorf-Astoria Segar Company, and that was being sold, from time to time, in the place on Woodward avenue, in the city of Detroit, by its agent, Mr. Jules Meyers. The defendant claims that the plaintiffs in this case (Rothschild & Bro.) knew of the fact surrounding the transaction that he (the defendant) had with the Waldorf-Astoria Segar Company, and the defendant claims that the contract that he (Schneider) had with the Waldorf-Astoria Segar Company was by itself from the terms illegal, and against public policy, and by reason of that the entire contract was illegal and void, and that no recovery could be had on either the note, or any other promise to pay, because of the illegality of the contract. He claims that the contract was this: That he was to buy the stock of goods owned by the Waldorf-Astoria Segar Company, and in addition was to buy the license that Mr. Meyers had, and that Mr. Meyers subsequently died, but that he, under the terms of the contract, had purchased this license, and that the sale by the Waldorf-Astoria Segar Company to him consisted, not only of the stock of goods, but consisted of the license, which could not be sold; and the claim is advanced by the defendant that that made the contract illegal, and recovery could not be had upon the note on that account. I charge and instruct you that a license to sell liquors is a personal license, and is not subject to transfer; it is personal, given by the State to the individual, and cannot be transferred by him or his heirs or administrators, after his death, and, if that is so, if the defendant has established to your satisfaction, by a preponderance of evidence, that the bargain was as he claimed, there cannot be a recovery in this case. The plaintiff in answer to that, because it is an affirmative defense, claims he was doing business with the Waldorf-Astoria Segar Company, and that he knew of the transaction that that company had with the defendant, and that all that transaction consisted of was the sale in bulk of a stock of liquors, and nothing was bargained concerning the sale of the liquor license, but something had been said ; and all he knew about the license was that something had been said about Mr. Schneider in this case getting a transfer of that license; or seeking it, and going on and doing business, but, so far as he knew, nothing was claimed as to the right to do business by Schneider under that license; but he did know that a certain stock of goods — and a bill had been offered in evidence which amounted to more than the amount he claimed, or for which payment was made — was sold by the Waldorf-Astoria Segar Company to the defendant, and accepted by the defendant, and by him subsequently sold, and he got the benefit of that transaction, and that he ought to pay to the plaintiff now the amount of its value, which is in part represented by the note in question. There are the claims of the two parties. I charge you prima facie the note is good, and the defendant would be liable under it; but, as he comes in here making an affirmative defense, the burden falls upon him to prove his defense, and he is obliged to establish his case by a fair preponderance of evidence.”

The motion of counsel was properly overruled, for the reason that there was a disputed question of fact which could not be decided as a matter of law.

After the motion was overruled, and before the case was submitted to the jury, the following occurred:

tl Mr. Van De Mark: In view of the statement of the court, I would like to make a further request. In view of the fact that the defendant did not produce the witness that it could have produced (the brother-in-law of Mr. Schneider), who knew all about the transaction, and in view of the fact that the books of the Waldorf-Astoria Se-gar Company are in the possession of the defendant in this case, and can be got at to show the complete transaction, I ask that we have an opportunity to produce the books, and put on the defendant’s witness, Mr. Barker, who knows all about the transactions.
The Court: An exception may be noted to the statement made in the presence of the jury, and I deny it, for the reasons as stated last Friday.
“Mr. Van De Mark: We didn’t know that Louis Rothschild would be produced as a witness, and that he had the books in his possession.
The Court: You should have known it. That was a matter of considerable importance, and it was tried in the justice’s court, and appealed here.
Mr. Wicker: May I ask that the jury be excused, so that I may make a statement ?
“The Court: No; I am to let the case go to the jury now.
“Mr. Wicker: The reason I make the request is that there are other things that might be objectionable, if stated before the jury, which I would like to state.
“The Court: I will hear you, if necessary, on a motion for a new trial. I will let the case go to the jury now; I think you have sufficiently stated all the reasons which can be urged on either side of the case. You stated — both sides stated — the case was closed, and you cannot come in at this stage or this hour and offer further proof. The other side would ask a further adjournment.
“Mr. Wicker: We want to have the record clear. The first knowledge that the defendant had that the books of the Waldorf-Astoria Segar Company were in the possession of Mr. Rothschild was when he so testified upon the stand last Friday, and a subpoena duces tecum could not have been taken out. It also appears by the record that Mr. ■ Schneider testified that the Waldorf-Astoria Segar Company had sold out their business, and the natural inference is that the officers would not be here.”

Later a motion was made for a new trial. In overruling this motion, the court filed reasons for so doing, which were in part as follows:

(2) I do not think any error was committed in not requiring the witness Rothschild to produce the books of account of the Waldorf-Astoria Segar Co., because there is no showing made that if the books were produced they would show that defendant was charged with the various items of liquors at the different dates the liquors were delivered to defendant.
“ (3) I do not think any error was committed in refusing to compel the production of such books, because if they did show that the Waldorf-Astoria Segar Co. was engaged in the liquor business, it would have no bearing on the case, the only question involved being as to the agreement made by defendant for the purchase of liquors, and the liquor license card for the company.”

We think the record justifies these conclusions.

It is now urged (we quote from the brief):

“ The Segar Company not being licensed to engage in the liquor business, it is clear that it could not recover for any liquors so sold by it. Koppitz-Melchers Brewing Co. v. Behm, 130 Mich. 649 [90 N. W. 676]; Dierkes v. Wideman, 143 Mich. 181 [106 N. W. 735]; Benson v. Bawden, 149 Mich. 584 [113 N. W. 20, 13 L. R. A. (N. S.) 721]; Walhier v. Weber, 142 Mich. 322 [105 N. W. 772]; Alexander v. Weishuhn, 166 Mich. 532 [131 N. W. 1107].

It was the contention of the plaintiffs that the sale was made in bulk, and justifiable under Overall v. Bezeau, 37 Mich. 506; Wildermuth v. Cole, 77 Mich. 484 (43 N. W. 889); United States v. Feigelstock, 14 Blatchf. (U. S.) 321, Fed. Cas. No. 15,084; Goodwin v. Clark, 65 Me. 280; State v. Ray, 109 N. C. 736 (14 S. E. 83, 14 L. R. A. 531). If the attention of the judge had been specifically called to the question of whether the sale was made in bulk or not, he undoubtedly would have submitted any disputed question of fact bearing upon that question to the jury under proper instructions. He undertook to state the theory of the parties. His attention was not called to any oversight, either orally or by a written request to charge. The motion which was overruled did not present the question here raised. The theories of the parties urged in the court below were properly submitted to the jury. We find no reversible error.

Judgment is affirmed.

Ostrander, C. J., and Steers, Brooke, and Stone, JJ., concurred.


text:
    ATTORNEY GENERAL, ex rel. McRAE, v. THOMPSON.
    1. Equity — Information—Attorney General — Municipal Corporations.
    While the attorney general may file informations to restrain municipal corporations from doing illegal acts or from exceeding their authority and corporate powers, an information filed on the relation of a taxpayer, which avers that the common council and board of estimates of the city of Detroit have approved estimates of taxes for a given year in excess of an amount claimed by the mayor and corporation counsel to be the legal limit under the municipal charter, that the mayor and said counsel have published their opinion that the tax levy is illegal and many taxpayers and bond buyers will defer to the opinion so made public and cause injury to the city, is insufficient to confer jurisdiction upon the court.
    2. Same — Taxation.
    A bill filed to secure the determination of a court in chancery that a tax levy or bond issue is valid is not within any recognized branch of equitable jurisdiction.
    8. Same — Pleading.
    Jurisdiction may not be predicated upon the prayer for relief unless the bill avers sufficient facts to confer it.
    4. Same.
    Questions of a purely academio sort will not be determined by the courts.
    Appeal from Wayne; Murfin, J.
    Submitted November 6, 1911.
    (Docket No. 52.)
    Decided December 8, 1911.
    Information by Franz C. Kuhn, attorney general of the State of Michigan, upon the relation of Milton A. McRae against William B. Thompson and others. From a decree dismissing the information, relator appeals.
    Affirmed.

      Franz G. Kuhn, Attorney General (Fred A. Baker, of counsel), for appellant.

      P. J. M. Hally, for appellees Mayor, etc., of Detroit.

      Divie B. Duffield, for appellees board of education and library commission.

      James H. Pound, for appellee board of water commissioners.

      Henry Ledyard, for appellee commissioner of police.
    The information in this case is filed by the attorney general upon the relation of Milton A. McRae,a taxpayer of the city of Detroit and president of the board of commerce of said city. It sets out that defendant William B. Thompson, who is mayor of Detroit, did on April 4, 1911, address a communication to defendant the common council of Detroit, in which he transmitted to that body an opinion of defendant Patrick J. M. Hally, who is corporation counsel of said city, relative to the legal limit of the rate of taxation in said city under its charter. The information further recites that since said date said defendants, Thompson and Hally, have persistently claimed before the common council and the board of estimates and in the public press of said city:
    “ (1) That the annual tax levy of the city of Detroit is limited by the home rule act of 1909 to 2 per cent, of the assessed value of the real and personal property of the city; (2) that bonds issued in lieu of taxation for schoolhouses, public sewers, and public buildings must be included in determining whether the 2 per cent, limit is exceeded ; and (8) that taxes levied for school purposes, and bonds issued for the purchase of lots and the erection of school buildings, must be included in determining whether the limits of taxation or of indebtedness of the city of Detroit, fixed by charter or law, are exceeded.”
    Proceeding, the information sets out at large the proceedings of the board of estimates and the common council, from which it appears that those two bodies have approved estimates of taxes for the fiscal year commencing July 1, 1911, and authorized bond issues largely in excess of any sum possible had the opinion of the corporation counsel been followed. It is further averred that, not only because of their official positions, but by reason of their learning and experience in their several departments, the opinions of defendants Thompson and Hally will be held in great favor by very many taxpayers in the city and lead them to refuse to pay their taxes, and that said opinions will cast suspicion upon the said proposed bond issues, and either prevent the sale thereof or cause such sale to be made at a higher rate of interest than would have to be paid if there was no question concerning their validity.
    The prayer for relief is as follows:
    “(1) That under its existing charter the annual tax levy of the city of Detroit is not limited, by the home rule act of 1909, to 2 per cent, of the assessed value of the taxable property in the city.
    “(2} That bonds issued in lieu of taxation are not to be included in determining the. amount of the annual tax levy.
    “(3) That taxes for school, library, and police purposes, and bonds issued for school and library buildings, are not to be included in determining whether the limitations imposed by the city charter are being exceeded.
    “(4) That the estimates of the annual tax levy for 1911 of the common council and board of estimates are not excessive, and the same and every part and portion thereof are perfectly legal and valid.
    “(5) That the sewer bonds authorized and approved by the common council and the board of estimates would be legally issued and create binding obligations of the city of Detroit.
    “(6) That the Ferry Field bonds, art museum bonds, and hospital bonds, authorized and approved by the common council and the board of estimates, would be legally issued and create binding obligations of the city of Detroit.
    “(7) That the public school bonds, and the public library bonds, recommended by the board of education, and the library commission, and authorized and approved by the common council and the board of estimates, would, be legally issued and constitute binding obligations of the-school district of the city of Detroit.
    “ (8) That the waterworks bonds recommended by the* board of water commissioners and authorized by the common council and the board of estimates would be legally issued and lawfully pledge the credit of the city and water rates for their payment.
    “ (9) That such further orders and directions may be had as the nature of the case and equity and justice may require.
    “ (10) That in case any proposed tax or bond issue is found to be excessive and beyond the limitations fixed by charter or law, or otherwise illegal, that the common, council of the city may be directed to reduce and reform the said estimates and bond propositions and make them, comply with all legal restrictions.
    “ (11) That said William B. Thompson and Patrick J. M. Hally and all other officers and agents of the city of Detroit, may be temporarily and perpetually enjoined and. restrained from giving out or proclaiming that the said proposed tax levy and bond issues are illegal in any respect whatever.
    “ (13) That such further and other relief may be granted, by the court as may be agreeable to equity and good conscience.”
    To this information defendants Heineman, the Detroit library commission, and Croul, filed answers in effect admitting the averments of the information. The other-defendants, by Patrick J. M. Hally, the corporation counsel, demurred. The first ground of the demurrer is stated, to be: “ Because it does not show a legal injury.”
   Brooke, J.

(after stating the facts). We are met at the outset by the question of the jurisdiction of the court to determine the matters involved. Counsel for relator cites many authorities which, it is asserted, establish the jurisdiction of the court in- the case presented. Among them are the following: Attorney General v. City of Detroit, 26 Mich. 263; Attorney General v. Moliter, 26 Mich. 444; Attorney General v. Board of Auditors of Wayne County, 73 Mich. 53 (40 N. W. 852); McMullen v. Ingham Circuit Judge, 102 Mich. 608 (61 N. W. 260); People v. Ingersoll, 58 N. Y. 1 (17 Am. Rep. 178).

Many cases are cited in each of the foregoing authorities, several of which are analyzed by counsel for relator. In Attorney General v. City of Detroit, supra, Justice Cooley said:

“The right of the attorney general to proceed in equity to enjoin an abuse of corporate power, consisting in the appropriation of corporate funds in a manner not justified by law, appears to me to rest in sound principle. * * * The attorney general does well to interfere when a municipality assumes to do injurious acts which the State, in conferring the power to act at all, has expressly prohibited. * * * Every misuse of corporate authority is in a legal sense an abuse of trust; and the State, as the visitor and supervisory authority and creator of the trust, is exercising no impertinent vigilance when it inquires into and seeks to check it.”

It is, we think, apparent that the power of the State through its attorney general to file informations involving the validity of municipal action is an exercise of its visitatorial authority to enjoin municipal corporations from doing those acts which are prohibited or which are in excess of their corporate powers. The essence of such an, information is necessarily the averment of some transgression of law by the municipality or it officers.

We search in vain the information before us for such an averment. It sets out the acts of the common council and board of estimates in the premises, but alleges no invalidity therein; indeed, by inference it avers their entire legality. The prayer is, in substance, that the tax levy and the several bond issues may be determined to be valid, but that, if any illegality in any particular be found, its correction may be directed, and that the mayor and corporation counsel may be enjoined from proclaiming the illegality of either the levy or the bond issues.

It is not pointed out that either the mayor or the corporation counsel has any official duty to perform in connection with the tax levy or the bond issues, nor are they or either of them or any other municipal officer or body charged with any breach of official duty either by misfeasance or nonfeasance.

The only affirmative relief sought is an injunction restraining the mayor and the corporation counsel from proclaiming their opinions as to the validity of the proposed tax levy and bond issues. No authority is cited which in our opinion even remotely supports the proposition that equity may assume jurisdiction for this purpose.

The principal and avowed purpose of the information, however, is to secure from the court an adjudication that the proceedings set out therein are legal and that the tax levy and proposed bond issues are valid; or, in case any part thereof be found illegal, such illegality be pointed out and directions given.

A bill filed for such a purpose does not come under any known head of equitable jurisdiction. If this information will lie, there is no reason why the court may not be called upon to certify to the legality of every municipal tax levy or bond issue made in the State upon the mere statement of the proceedings taken and the importance of a determination of their validity, without any averment of illegality in the proceedings, or the breach of any official duty. The prayer that the court, if it find any particular portion of the tax levy or bond issue illegal, direct the correction of such illegality, is no more than an invitation to the court to discharge the duty that would rest upon it, if it had jurisdiction.

Moreover, jurisdiction may not be predicated upon the prayer for relief; that depends upon the allegations of fact. The prayer is no more than a demand for the relief to which the relator believes himself entitled under the facts stated. The difficulty with the proposition before us is well stated by counsel for relator. He says:

“If Mayor Thompson and Corporation Counsel Hally had had the courage of their convictions, they would have become relators in an information by the attorney general to compel the common council to reduce the tax levy and the bond issues for 1911 to the limits prescribed by the opinion of the corporation counsel. Under the English and the Michigan cases cited in our brief below there can be no doubt but such an information would be sustained.”

In this contention, we quite agree with counsel, if the information contained the necessary averments of illegal action or breach of duty. Nor would it be of consequence, in such case, that the information was filed upon the relation of a citizen and taxpayer instead of upon that of the mayor and corporation counsel. But no such case is before us. The learned circuit judge in passing upon the question said:

“It may be said, without fear of successful contradiction, that the settled, well-understood law of this country is that courts will not pass upon questions merely academic. The opinion of a court is merely its reasoning in reaching a conclusion in a controverted question where adverse interests are claimed and represented, but no case can be found where the court has permitted the question to be put as to what the decision would be were the controversy presented to the court upon a given state of facts.”

We agree with this statement of the law. See Little v. Bowers, 134 U. S. 547 (10 Sup. Ct. 620); California v. San Pablo, etc., R. Co., 149 U. S. 308 (13 Sup. Ct. 876); Lord v. Veazie, 49 U. S. 251; Hahn v. City of Westport, 135 Mo. 120 (36 S. W. 663; State v. Dolley, 82 Kan. 533 (108 Pac. 846); State v. Lambert, 52 W. Va. 248 (43 S. E. 176); 3 Am. & Eng. Enc. Law (2d Ed.), pp. 160, 341 et seq., and notes. We must hold that the questions presented are upon this record purely academic.

The judgment is affirmed.

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