text:
    MICHIGAN SUGAR CO. v. AUDITOR GENERAL.
    1. Constitutional Law — Beet-Sugar Bounty — Taxation for Private Purpose.
    Act No. 48, Pub. Acts 1897, providing for the payment of certain bounties to manufacturers in the State of sugar from beets grown in the State, is unconstitutional, as authorizing taxation for a private purpose.
    2. Same.
    An unconstitutional statute is of no more saving effect to justify action under it than as though it had never been enacted; therefore, persons who engaged in the manufacture óf beet sugar in this State in reliance on the provisions of Act No. 48, Pub. Acts 1897, appropriating a certain sum for the payment of bounties, and declaring the excess, if any, payable out of the general fund, which legislation was wholly unconstitutional, have no claim against the State by virtue of Act No. 263, Pub. Acts 1899, by which the legislature sought to provide a tax to meet appropriations not otherwise provided for, intending, it is claimed, to recognize such bounties as earned.

      Mandamus by the Michigan Sugar Company to compel Roscoé D. Dix, auditor general, to issue a warrant for the payment of a bounty.
    Submitted June 12, 1900.
    Writ denied October 2, 1900.

      T. A. JE. & J. C. Weadock (H. H. Hatch, of counsel), for relator.

      Horace M. Oren, Attorney General (C. D. Joslyn, of counsel), for respondent.
   Long, J.

In 1897, the legislature of this State passed an act entitled:

“An act to provide for the encouragement of the manufacture of beet sugar, and to provide a compensation therefor, and to make an appropriation therefor.” Act No. 48, Pub. Acts 1897.

Section 1 provides:

“There shall be paid out of the State treasury to any person, firm, or corporation engaged in the manufacture, in the State of Michigan, of sugar from sugar beets grown in the State of Michigan, one cent per pound upon each and every pound of sugar so manufactured, under the conditions and restrictions hereinafter provided.”

Section 2 provides:

“No money shall be paid for sugar so manufactured unless such sugar shall have been so manufactured in this State, and from beets grown in the State of Michigan, and unless such sugar shall contain at least ninety per cent, crystallized sugar, and the manufacturer shall produce good and sufficient receipts and vouchers to show that at least four dollars per ton of twenty hundred pounds has actually been paid for all beets purchased containing twelve per cent, of sugar, said twelve per cent, being the basis for valuation of the purchase price of four dollars per ton. The quantity and quality of sugar upon which all of said bounty is claim'ed shall be determined by the commissioner of the State land office, with whom all claimants shall from time to time file verified statements showing the quantity and quality of sugar so manufactured by them, the price paid the producer for the beets actually produced in this State, upon which said bounty is claimed.”

Section 3 provides:

“The persons, firms, or corporations so intending to engage in the manufacture of beet sugar in this State shall, before commencing the same, file a statement with the commissioner of the State land office, setting forth their proposed undertaking, the capacity of their manufactory, the number of tons of beets they intend to manufacture per annum, and request said commissioner of the State land office to appoint a suitable weighman and inspector, as hereinafter provided.”

Sections 4 and 5 provide that the commissioner of the State land office shall appoint a weighman and inspector to keep an accurate account of the sugar manufactured and the kind and character of the beets furnished; and also provide that the person, firm, or corporation buying the beets and manufacturing the sugar shall, in order to obtain the bounty provided by the act, pay to the seller of the beets at least four dollars per ton for beets containing 12 per cent, of sugar, and a ■ sum proportionate to that amount for beets containing a greater or less per cent, of sugar.

Section 6 provides:

“When any claim arising under this act is filed, verified, and approved by the commissioner of the State land office, as hereinafter provided, he shall verify the same to the auditor general of the State, who shall draw a warrant upon the State treasurer for the amount thereof, payable to the person, firm, or corporation to whom said sum or sums are due.”

The act appropriated the sum of $10,000 for the years 1897 and 1898, and provided that, if the bounty should exceed that amount, the deficit should be paid from the general fund.

In 1899 the legislature passed Act No. 263, entitled:

“An act to provide a tax to meet the several appropriations for which a tax is not otherwise provided, for the general expenses of the State government, salaries of the State officers, expenses of the State departments, and expenses of the legislature for the years eighteen hundred ninety-nine and nineteen hundred.”

Section 2 of this act provides:

“The several sums appropriated by the provisions of any act to meet which this act provides a tax shall, so far as moneys are required to be paid to the boards or officers of any institution or commission, be paid out of the general fund in the State treasury to the proper board or officer, at such times and in such amounts as the general accounting laws of the State prescribe, and the disbursing officer of such board or commission shall render -his accounts to the auditor general thereunder.”

It is claimed that, while this last act does not, in terms, provide for an appropriation of any moneys to pay the bounty on beet sugar manufactured, yet it was the intent of the legislature to provide by the act for such bounty, as a committee of the house of representatives caused a statement to be made showing the different amounts necessary to be raised, and it is claimed that in this statement was an estimate of an excess of bounty over the tax previously raised, amounting to $42,714.06, and a further estimate of the amounts needed for the years 1899 and 1900 of $50,000 and $150,000, respectively. On the other hand, it is claimed by the respondent that under date of December 2 and 29, 1898, the relator presented its claim for bounty earned, amounting to $28,451.07, which presumably covered all claims to the end of the year 1898; and that no specific appropriation was made by the act of 1899, nor any taxes'levied, for such bounty. Relator claims that there is due it for such bounties the sum of $24,262.99. The accounts were presented to the auditor general by the relator for such amount, and payment was refused.

It appears that the relator is a corporation organized under the laws of the State, with a capital stock of $200,-000, and that it has fully complied with all the provisions of the act of 1897 to be entitled to the bounty provided by that act. But two questions are raised: (1) It is claimed that there is no money in the State treasury with which to pay the bounty claimed, as the act of 1899 made no appropriation for it, and therefore the respondent properly refused to draw a warrant for the same; while, on the other hand, it is claimed by relator that an appropriation was made, and that, though the act of 1897 be found unconstitutional and void, the relator is entitled to have the bounty paid, as the legislature has recognized by the act of 1899 the right of the relator to have the bounties earned under the act of 1897. (2) It is claimed by respondent that the act of 1897 is unconstitutional.

We will discuss the last proposition first. This taxation is for no such public purpose that it can be upheld. There is no power in the State to authorize a tax for private purposes. Taxes can be levied only for public purposes, to accomplish some government end. The legislature is the mere creature of an organic law, deriving all its power from the Constitution. Its power within those limits must be admitted to be plenary, except so far as otherwise specifically limited; but, outside ' those limits, it is as powerless as if specifically prohibited. It cannot take the property of A. and give it to B., nor can it tax it for the benefit of B. Here is a private corporation now calling upon the State for a sum of money to aid it in carrying on a private business, most of which money, if paid, must come out of the pockets of people who are not engaged in that business, and who have no interest in it. .It is claimed by the relator that this is not a gift to the relator, but that it would not have engaged in the business but for this act of the legislature; that, in reliance upon the act, it built a plant at large expense, and that it complied with the provisions of the act requiring it to pay to the producers of beets at the rate of four dollars per ton; and that, therefore, the honor and integrity of the State are involved. So the honor and integrity of the State might become involved under any other act, however unconstitutional, which the legislature might see fit to pass. What may have brought about the passage of the act of 1897 we need not discuss; the only question being whether it is within the legislative power. We need not point out specifically any particular provision of the Constitution which it violates. It is void whether it comes within any of the express provisions of the Constitution or not. It is not a law, but an act which attempts to take the property of one citizen, and turn it over to another; to compel one class to donate a part of its property to another. Under the express terms of the Constitution, private property cannot be taken for private use, even with compensation, without the owner’s consent; nor can it be taken for public use without just compensation. There is no claim here, nor can any be made, that these taxes thus imposed under the act are for any public use; nor could the State itself carry on such a husiness.

Counsel for relator seek to uphold this legislation by several cases cited in their briefs. Attention is called to Taylor v. City of Ypsilanti, 105 U. S. 60, in which it was said:

“In 1859 the legislature of Michigan passed an act providing for the payment from the State treasury of a certain sum, by way of bounty, for every bushel of salt manufactured by any individual, company, or corporation, from water obtained by boring in Michigan, and exempting from taxation property used for such purposes. Laws Mich. 1859, p. 551. That law was subsequently amended, and in People v. Board of State Auditors (decided in 1861), 9 Mich. 327, it was held that the relator, a manufacturing company, acquired a vested right to the amount offered by the original act for all salt manufactured prior to the amendatory statute reducing the bounty. And the doctrines of that case were reaffirmed in East Saginaw Manfg. Co. v. City of East Saginaw (decided in 1869), 19 Mich. 259 (2 Am. Rep. 82), after the passage of the act of March 22, 1869. The diligence of counsel, aided by our own researches, has not disclosed any adjudication of the Supreme Court of Michigan prior to May 26, 1870, in which the doctrine of these cases was recalled.”

From an examination of the cases referred to in the above opinion in this court, it is evident that the constitutionality of the salt-bounty act was not raised or passed upon. In the first case a mandamus was asked to compel the board of State auditors to allow a claim under the original act, as the board had refused payment on the ground that a subsequent act repealed the former one. In the second case a bill had been filed to restrain the collection of the taxes levied upon the property of complainant (the salt manufacturing company) invested in the business of manufacturing salt. The ground for filing the bill was that the statute in force when the complainant commenced its manufacture exempted from taxation the property employed for that purpose; and complainant-insisted that this statute was a contract between itself and the State, and was irrepealable. The court held, however, that the statute was nothing but a bounty law, and as such might be repealed at any time. On error this was affirmed by the Supreme Court of the United States. East Saginaw Salt Manfg. Co. v. City of East Saginaw, 13 Wall. 373.

We think the present case comes squarely within the reasoning of this court in People v. Township Board of Salem, 20 Mich. 452 (4 Am. Rep. 400). In that case the question was the constitutionality of an act permitting certain townships to issue bonds in aid of the construction of a railroad. It was said by Mr. Justice Cooley, beginning at page 486:

‘ ‘ But it is not in the power of the State, in my opinion, under the name of a bounty, or under any other cover or subterfuge, to furnish the capital to set private parties up in any kind of business, or to subsidize their business after they have entered upon it. A bounty law of which this is the real nature is void, whatever may be the pretense on which it may be enacted. The right to hold out pecuniary inducements to the faithful performance of public duty in dangerous or responsible positions stands upon a different footing altogether. Nor have I any occasion to question the right to pay rewards for the destruction of wild beasts and other public pests; a provision of this character being a mere police regulation. But the discrimination by the State between different classes of occupations, and the favoring of one at the expense of the rest, whether that one be farming or banking, merchandising or milling, printing or railroading,-is not legitimate legislation, and is an invasion of that equality of right and privilege which is a maxim in State government. When the door is once opened to it, there is no line at which we can stop, and say with confidence that thus far we may go with safety and propriety, but no farther. Every honest employment is honorable; it is beneficial to the public; it deserves encouragement. The more successful we can make it, the more does it generally subserve the public good. But it is not the business of the State to make discriminations in favor of one class against another, or in favor of one employment against another. The State can have no favorites. Its business is to protect the industry of all, and to give all the benefit of equal laws. It cannot compel an unwilling minority to submit to taxation in order that it may keep upon its feet any business that cannot stand alone. Moreover, it is not a weak interest only that can give plausible reasons for public aid. When the State once enters upon the business of subsidies, we shall not fail to discover that the strong and powerful interests are those most likely to control legislation, and that the weaker will be taxed to enhance the profits of the stronger. I shall not question the right of the people, by their Constitution, to open the door to such discriminations ; but in this State they have not adopted that policy, and they have not authorized any department of the government to adopt it for them.”

On page 495 of the case it was said by Justice Campbell:

“ It has been said to be too clear to need argument that it would be usurpation, and not legislation, to take the property of A. and give it to B. It must be on the same ground equally illegal to tax A. for the benefit of B.; for the amount of property taken against his will cannot make any difference in the principle; neither can it make the wrong any less that he has companions in misery. Taxation for private purposes is no more legal than robbery for private purposes. And where an enterprise is conducted by private persons for their own private benefit, the public authorities having no control over the expenditure, and no share in the profits, it is a private enterprise, and not a public one, whether large.or small, and whether profitable or unprofitable. No enterprise can be properly regarded as a public enterprise in which the public has no voice. For the expenditure of public money the Constitution and laws provide public officers, and put them under adequate control and security. The money of the people belongs in the custody of the agents of the people. Governments cannot delegate public responsibilities to private and irresponsible hands.”

These views have been affirmed and reaffirmed by this court: People v. State Treasurer, 23 Mich. 499; Anderson v. Hill, 54 Mich. 477 (20 N. W. 549); Davis v. Board of Sup’rs, 64 Mich. 404 (31 N. W. 405); Dodge v. Van Buren Circuit Judge, 118 Mich. 189 (76 N. W. 315); Attorney General v. Pingree, 120 Mich. 550 (79 N. W. 814).

The first contention of counsel for relator has no more substantial foundation than the other. The act of 1897 is unconstitutional and void; and yet counsel contend that, though this be found, under the act of 1899 it is entitled to the bounty there appropriated. Counsel cite, in suppoi’t of this proposition, the case of U. S. v. Realty Co., 163 U. S. 427 (16 Sup. Ct. 1120). The question there raised was entirely different from the question here. Here no specific appropriations were made by the act of 1899 by which the sugar bounties could be paid, and the legislature has not recognized the relator’s claim. But it has 'been held several times in this State that an unconstitutional statute is a statute only in form, and lacks the force of law, and is of no more saving effect to justify action under it than as though it had never been enacted. Mason v. Perkins, 73 Mich. 303 (41 N. W. 426); Adsit v. Osmun, 84 Mich. 420 (48 N. W. 31, 11 L. R. A. 534).

The writ of mandamus must be denied.

The other Justices concurred.


source: Caselaw Access Project

author: Montgomery, C. J.

license: Public Domain

text:
    BOARD OF STATE TAX COMMISSIONERS v. CADY.
    Taxation — State Board — Review of Assessments — Limit of Time — Inconsistent Charter Provisions.
    Act No. 154, Pub. Acts 1899, amends the general tax law ( Act No. 206, Pub. Acts 1898 ) by creating a board of State tax commissioners, with supervisory authority in the matter of the assessment of property. Section 107 of the general law declares it to be applicable to cities and villages only when not inconsistent with their respective charters. Under the charter of the city of Port Huron, the assessment roll is reviewed by the board of review and confirmed by the common council previous to May 1st. Erom May 1st to July 15th it is in the hands of the city Comptroller, who is required to make a copy of the same, and to spread thereon the city, school, and highway taxes. Such tax roll is then delivered to the city treasurer, who on November 1st returns it to the comptroller, whose duty it is to spread thereon the State and county taxes. Held, that after the tax roll has been made up,- and placed in the hands of the treasurer, the State board is not entitled to the possession of the assessment roll for the purpose of reviewing assessments, as, in the absence of any authority to change the tax roll, a change in the assessment roll would be an empty ceremony; this case being distinguishable from Board of State Tape Com’rs v. Board of Assessors of Qrand Rapids, ante, 491, in that the charter there under consideration provided for separate tax rolls for local and general taxes.

      Certiorari to St. Clair; Whipple, J,
    Submitted October 2, 1900.
    Decided October 4, 1900.

      Mandamus by the board of State tax commissioners to compel Irwin Cady, comptroller, of the city of Port Huron, to deliver the assessment roll of said city to relator for review. From-an order denying the writ, relator brings certiorari.

    Affirmed.

      Horace M. Oren, Attorney General, for relator.

      Lincoln Avery, City Attorney (Joseph Walsh, of counsel), for respondent.
   Montgomery, C. J.

The relator demanded possession of the assessment roll in the hands of the respondent for the purpose of making changes in the assessments. This demand was refused, and relator sought to compel the production of the roll by mandamus. The circuit judge denied the application, and the case is brought before us for review. It appears that, when this application was made, the tax roll, with the city taxes assessed thereon, had been made, and placed in the hands of the city treasurer for collection. The circuit judge was of the opinion that, after the time when the tax roll is thus made up and placed in the hands of - the city treasurer, there is no authority in the board to increase or reduce assessments.

The act creating the board of tax commissioners (Pub. Acts 1899, Act No. 154) is amendatory of the general tax law (Pub. Acts 1893, Act No. 206), section 107 of which provides that the act shall be applicable to all cities and villages where not inconsistent with their respective charters. Under the charter of the city of Port Huron, the assessment roll is reviewed by the board of review and confirmed by the common council previous to May 1st. From May 1st to July 15th it is in the hands of the city comptroller. During this time there is no doubt that the board of commissioners would have authority to review the roll. Board of State Tax Com’rs v. Board of Assessors of Grand Rapids, ante, 491 (83 N. W. 209). The charter further provides that the comptroller shall make a copy of the assessment roll, upon which he shall spread the city, school, and highway taxes. The roll is then, on July 15th, placed in the hands of the city treasurer for collection. The charter further provides that the city treasurer shall on November 1st return this tax roll to the city comptroller, whose duty it is to spread thereon the State and county taxes. It will be seen, therefore, that but one tax roll is provided for. There is no authority given to the comptroller to change this roll, or to make any corrections on it which may have been made on the assessment roll. We think, therefore, that the circuit judge was right in holding that, as to any change in this assessment after the original tax roll was made up, the city charter so far conflicts with the amendments to the tax law as torender such amendments inapplicable. Manifestly, it would serve no purpose to make a change on the assessment roll if the tax roll was not to be changed. There is no express authority to make any change in the tax roll, and we think it cannot be read into the statute. In the Grand Rapids Case no such difficulty was encountered, as the charter provides for two tax rolls.

The order of the circuit court will be affirmed.

The other Justices concurred.


author: Per Curiam.

text:
    GILLAM v. FOSTER.
    Mortgage Foreclosure — Redemption—Statutes—Appeal.
    Where a decree of foreclosure was rendered in the circuit court before Act No. 200, Pub. Acts 1899, took effect, and was appealed to the Supreme Court, and decree entered in that court after the act took effect, the mortgagor was entitled to redeem within six months after the sale, as provided in that act.

      Certiorari to Ingham; Wiest, J.
    Submitted October 2, 1900.
    Decided October 16, 1900.

      Mandamus by George F. Gillam, trustee, to compel Charles W. Foster, circuit court commissioner of Ingham county, to issue a deed on foreclosure omitting the six-months redemption clause provided for by Act No. 200, Pub. Acts 1899. From an order denying the writ, relator brings certiorari.

    Affirmed.
    The decree of foreclosure in this case was entered in the circuit court December 13, 18Ó8, and contained the usual provisions for the sale of property. The case was appealed to this court, and decree modifying the decree below entered here February 27, 1900. Qillam v: Barnes, 123 Mich. 119 (82 N. W. 38). The property was sold by the circuit court commissioner April 25, 1900, and he made the indorsement on the deed that it should be operative if the premises were not redeemed within six months from date of sale, under Act No. 200, Pub. Acts 1899.

      Cahill & Wood, for relator.

      V. H. & H. H. Smith and A. F. & F. M. Freeman, for respondent.
   Per Curiam.

The sole question is whether the statute applies to a case where the decree was rendered in the circuit court before that act took effect, and the decree upon appeal was rendered in this court after it took effect. Cases in equity are heard in this court de novo, and the appeal suspends all proceedings under the decree below. There was no decree under which a sale could be made until the final decree in this court. The mortgage was given subject to the right of the legislature to change the remedy in foreclosure proceedings. We think the language in State Sav. Bank of Detroit v. Matthews, 123 Mich. 56 (81 N. W. 919), fully covers this case.

The order of the circuit court denying the writ of mandamus will be affirmed.


text:
    LEMON v. RANDALL.
    Injunction — Practice of Medicine — Specific Performance-Defenses — Void Contract.
    A physician who, by written agreement, has sold his good will in the practice of medicine, agreeing not to re-engage in practice in the same locality without the purchaser’s consent, cannot defeat a bill to enjoin him from resuming practice by showing that the purchaser has failed to carry out a contemporaneous verbal agreement to purchase his house, such collateral agreement being void under the statute of frauds.
    Appeal from Ingham; Person, J.
    Submitted February 1, 1900.
    Decided October 31, 1900.
    Bill by James F. Lemon against Charles L. Randall to restrain defendant from practicing medicine, in violation of his agreement. From a decree for complainant, defendant appeals.
    Affirmed.

      Cummins & McArthur, for complainant.

      Charles L. Randall, in pro. per.

   Montgomery, C. J.

Defendant is a physician, who, prior to September 21, 1891, had been engaged in the practice of his profession at Dansville, Mich. On the date stated he signed and delivered to complainant, who is also a physician, an agreement reading as follows:

“Dansville, Michigan, September 21, 1891.

“For value received, I hereby sell and turn over, on and after October 1, 1891, to J. F. Lemon, M. D., my good will in the practice of medicine in Dansville and vicinity, and agree to use my influence to introduce him to my patrons, and secure for him their patronage and influence, and that I will not re-enter into or engage in the practice of medicine here after October 1, 1891, without a written agreement with said J. F. Lemon.

“O. L: Randall, M. D.”

After this agreement was made, the defendant, in pursuance of its terms, introduced complainant to his patrons, and complainant entered upon the practice of his profession at Dansville. Defendant went to Florida, and remained through the winter, returning in the spring, and has since his return, from time to time, prescribed for and treated some of his former patients. The bill in this case was filed to restrain defendant from continuing his practice. From á decree in complainant’s favor, defendant appeals.

There was no dispute about the facts above stated, nor is it disputed that complainant paid the defendant $100 when the agreement was signed and delivered. The defense relied upon is that this instrument did not embody the whole agreement between the parties, and that, contemporaneously with the making of this agreement, Dr. Lemon entered into certain engagements, which he failed to keep. The testimony adduced by defendant tends to show that it was agreed that Dr. Lemon should move into one of Dr. Randall’s houses in Dansville, and pay rent at the rate of $1 per week, and that, if he continued to remain at Dansville, he should, within one year, purchase one of these houses at the price of $900, and in that event the $100 paid down should apply as part of the purchase money. Defendant testified that a written memorandum was drawn up by him to this effect, but that complainant declined to sign it, although admitting that it embraced the previous talk between the parties. Notwithstanding complainant’s refusal to sign the agreement, defendant permitted the agreement signed by him to stand, and did not seek to rescind, but acted upon it.

It is doubtful whether the defendant understood the promise of complainant as creating any obligation other than a moral one. In answer to the question in reference to the unsigned instrument, “You thought it would do just as well as though it was signed, so you kept it ?” defendant replied, “No; I didn’t think it would do just as well as though signed, but I kept it as a. matter of mem orandum.” But, assuming that defendant understood that there was a binding agreement on the part of complainant to purchase one or the other of these houses, it was an agreement void under the statute of frauds, and cannot be used as a defense. We do not overlook the cases which hold that, as a defense to a bill for specific performance, parol evidence is admissible to show that, by fraud, mistake, or surprise, the written agreement does not contain the real terms (2 White & T. Lead. Cas. Eq. p. 929 [* 496]; Chambers v. Livermore, 15 Mich. 381); but, as was said by Lord Justice Turner in Watson v. Marston, 4 De Gex, M. & G. 230,“The court does not refuse a specific performance on the arbitrary discretion of the judge; it must be satisfied that the agreement would not have been entered into if its true effect had been understood.” In the present case the defendant knew, at the time of the execution of the written agreement which complainant asserts, that the collateral agreement which is set up in the answer was not reduced to writing. The writing was signed by him with a full understanding of its terms. He now seeks in defense to avoid the force of the agreement, complete in itself, by setting up another parol agreement, void under the statute of frauds. This collateral contract was a mere nullity, and cannot be used for any purpose whatsoever. Scott v. Bush, 26 Mich. 418 (12 Am. Rep. 311).

The decree will be affirmed, with costs.

The other Justices concurred.


text:
    PRICE v. MARTHEN.
    Sale — Repairs—Reasonable Time— Question eor Jury — Rescission oe Contract.
    A contract of sale of a musical automaton provided that the vendors should have 15 days, after notice that the instrument was not as represented, to elect whether to send a man to make it so, or order it returned to them for examination or repair, or furnish a new instrument, and should have 60 days thereafter in which to repair or replace it. On April 3d the vendee wrote the vendors that the instrument would not work. On April 5th the vendors answered, and directed the vendee not to return it, but to call in a local jeweler to adjust it, and, if he should fail, to notify them promptly. The jeweler was called, but failed to adjust the instrument, and on May 4th the vendee wrote the vendors that it was in bad shape, and that he would return it to them, which he did on May 15th. Held:

    (1) That the question whether, under such facts, the vendors had proceeded to repair the instrument, as required by the contract, within a reasonable time, was properly submitted to the jury.
    (3) That, if the vendors failed in this respect, the vendee had the right to refuse to accept the instrument.
    Error to Ogemaw; Sharpe, J.
    Submitted June 5, 1900.
    Decided October 31, 1900.

      Assumpsit by Milbert F. Price and Willard F. Main, copartners as the Equitable Manufacturing Company, against William B. Marthen, for goods sold and delivered. From a judgment for defendant, plaintiffs bring error.
    Affirmed.

      F. L. Snodgrass, for appellants.

      Boss & Harris, for appellee.
   Montgomery, C. J.

This case was before the court at the January term of the present year, and is reported in 122 Mich. 655 (81 N. W. 551). It was there held that the parties were bound by the written contract relied upon by the plaintiffs. The case has been retried, and defendant has again prevailed, and plaintiffs bring error.

The defendant gave an order to plaintiffs on a blank furnished by their agent, in which they were designated as the “Equitable Manufacturing Company.” This blank contained a description of a musical automaton, stating, among other things, that it would be set in motion by simply dropping a nickel” in the slot, and that two tunes would be played for that price. The contract contained a warranty that the instrument would be well made, from good material, and free from defects, and should comply with the representations and descriptions therein made; and, after a provision that the compány would furnish repairs for its defective parts free, it proceeds:

“The purchaser must pay the transportation charges both ways when returning the instrument for repairs, except when the instrument fails to operate when first taken from the carrier, if the instrument is taken as hereinafter provided, in which case the Equitable Mfg. Co. will pay transportation charges after repair for return to the purchaser; but purchaser shall not return the instrument without the Equitable Mfg. Co.’s order so to do. * sfc *»

A condition was inserted that, if the purchaser failed to make payment as provided within 30 days, the failure should release the company from all liability on the warranty. It was also provided that any claim that the instrument was not as represented should be made within five days, and by registered letter, or be deemed waived.

The machine was shipped March 16th by freight. On the 3d of April defendant wrote, stating that the instrument would not work, and that it was held subject to plaintiffs’ order. On the 5th the plaintiffs wrote, assuring the defendant that they would see that it ran properly, and suggested that the local jeweler be called in. On the 18th they again wrote the defendant, and on the 2d of May wrote him a third time, asking for information as to whether the instrument was running satisfactorily. On May 4th the defendant wrote them that the instrument was in bad shape, and that he would ship- it back the next week. Not hearing anything from plaintiffs, he shipped the instrument back about the 15th. Plaintiffs refused to receive it, and have brought this action to recover the price.

It appears that plaintiffs promptly answered the letter of May 4th, but that the answer was, by mistake, sent to Jacksonville, Fla., and never reached defendant. On the 16th of May a copy was transmitted to him. The defendant testified that he called in the local jeweler, who, on examination, stated that he was unable to fix the instrument. This fact does not appear to have been reported to plaintiffs.

The circuit judge charged the jury as follows:’

“Now, it was the duty of Mr. Marthen, when he received this machine under this contract, and found that it would not work, to notify the plaintiffs, as provided by the contract,, to that effect, and the law would give-them, and the contract gives them, a reasonable time. I think the contract expressly provides time, — 15 days. Yes, they shall have 15 days from receipt of notice, and they then can determine whether they will send a man to fix it, or whether they will order it sent back to them. Now, the contract must be construed reasonably as to both of them. These plaintiffs in Iowa are entitled to the same consideration from this court as the defendant, and the defendant is under just as much obligation to live up to the terms of this contract’as the plaintiffs are. Now, it is for you to say, under the testimony in this case, as to- whether the defendant, Marthen, gave the plaintiffs such a notice as the contract provided for, and whether, up to the time when he refused to take the machine and shipped it back, whether they had violated the contract in that respect. It was their duty, if their attention was called to the defects in the machine, to repair it,' — to make it so it would work, — and they had a right to do that. A man who orders a machine from another, when it arrives, if it does not just meet the requirements of the order, he cannot say, ‘Well, the contract is at an end.’ This contract does not provide for that. This contract provides that the plaintiffs have a right to make this machine work, and they’ have a reasonable time in which to make the machine do that, and the defendant must give them that chance. It was his duty to give them an opportunity to make the machine right; that the contract provides for; and, if you find that he did not do that, then the defendant is liable in this case to the plaintiffs for the value of the machine. Now, those are the questions of fact for you to determine. ”

The clause of the order or contract referred to in the above instructions reads as follows:

‘ ‘ Where claim is made that the musical automaton is not as represented, the Equitable Mfg. Co. shall have fifteen days from the receipt of notice in which to elect whether they shall send a man to make the instrument as represented herein, or order the instrument returned to them for examination or repair, or furnish a new instrument in its stead, and the Equitable Mfg. Co. shall have sixty days thereafter in which to make repairs or replace the instrument.”

On receipt of notice that the instrument did not work properly, the plaintiffs did not elect to do either of the things provided in this clause. Instead of this they wrote defendant as follows:

“You do not mention what seems to be the trouble with your instrument, or we could probably advise you how to adjust it yourself; but, in ord'er to save time, we would suggest that you call in your local jeweler, and have him look it over. By removing the front boai’d just below the tune sheet, you can easily get at the works. It may be that something about the coin-drop has, from constant jarring, loosened and slipped a little one way or the other. The least little thing would cause trouble, as it would in a clock. We don’t think that you will have any trouble, and we assure you that we will see that the instrument runs properly for you. Do not return the box, as we believe we can advise you how to adjust it without so doing, saving considerable expense for you. We want this matter adjusted satisfactorily to all concerned, and if; after you have called in your local jeweler, he should be unable to adjust the works for you, kindly advise us promptly exactly what seems to be the matter, and we will write you fully about it, giving instructions how to adjust it, or what part of the works to return to you [us]. You see it will be considerably cheaper to remove the works from the case and return them than to return the whole cabinet, and it will be much quicker. We hope your local jeweler will be able to arrange this matter for you. If not, advise us promptly. Awaiting such reply, as well as a prompt settlement of account as soon as the box is adjusted, we remain.”

This letter apparently threw the responsibility upon defendant, and advised him to engage the services of the local jeweler. True, plaintiffs requested defendant to inform them if the jeweler was unable to adjust the works, but the contract did not provide for this. We think it became a fair question for the jury whether the plaintiffs had proceeded to repair the instrument, as required by the contract, within a reasonable time. If they failed in this, the defendant had a right to refuse to receive and accept the instrument.

Numerous other objections to the proceedings are urged, but we think them without merit.

Judgment affirmed.

The other Justices concurred.


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    REICHERT v. REICHERT.
    1. Divorce — Extreme Cruelty — Charos of Insanity.
    Where the complainant vas intensely jealous of her husband without just cause, his application to have her adjudged insane, made in the bona fide belief that her statements attributing improper conduct to him were induced by an unsettled mind, was not such cruelty as would entitle her to a divorce.
    2. Same — Appeal—Costs.
    On affirmance of a decree denying a wife a divorce, the Supreme Court, being convinced of the good faith of the appeal, allowed her her taxable costs.

      Appeal from Washtenaw; Kinne, J.
    Submitted June 7, 1900.
    Decided October 31, 1900.
    Bill by Katherine C. Reichert against John G. Reichert for a divorce. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      A. J. Sawyer & Son, for complainant.

      Lehman Bros. & Stivers, for defendant.
   Montgomery, C. J.

This case presents a most unfortunate controversy between husband and wife. The complainant seeks a divorce on the ground of cruelty, predicating the charge in part on an attempt made by her husband to have her committed to an insane asylum. Any general discussion of the causes of dissension between the parties would profit no one. On the contrary, such discussion might tend to widen the breach already existing. We are convinced that the complainant became intensely jealous of her husband without just cause, and the application to have her adjudged insane was made in good faith, and in the belief that the statements attributing improper conduct to the defendant were induced by an unsettled mind. We are not able to find in the defendant’s action in this regard, or in any other respect, such evidence of cruelty as will justify a decree of divorce.

The decree of the court below will be affirmed, but, as we are convinced of the good faith of the appeal, the taxable costs will be allowed to complainant.

The other Justices concurred.


author: Grant, J.

text:
    BOYCE v. BOYCE.

    Tenants in Common — Accounting — Logging Contract — Log Scale — Expenses—Superintendence—Interest.

       A. and B. were tenants in common of a large tract of pine land. B. agreed to lumber the timber, see to its manufacture and sale, and account to A. for the proceeds.
    1. Held, that it was the duty of B. to keep an accurate account óf his expenses, and of the receipts and expenditures, and, . having failed to do so, he will be allowed only for the cost of lumbering as determined by the testimony of experienced loggers of his class.

      2. In logging operations, the log scale was contemplated, in the . absence of an express agreement. Where there was no log scale by B., and a scale was made by the common carrier which transported the logs, and was known to and acquiesced in by both A. and B., that scale must be adopted in determining the number of feet for which B. is to be allowed for lumbering.
    3. The construction of a railroad into the woods, for lumbering purposes, was a part of the expense to be included in lumbering; and, where such cost was included in the estimate of experienced loggers, no amount will be allowed for its con. struction, especially in the absence of any data showing the cost of construction.
    4. B. kept no account of his time or of expense in superintending the manufacture of the lumber, etc. He was at the same time engaged in other work. Held, that he could not recover for such services and expenses, for the reasons stated in Hake v. Coach, 114 Mich. 558.
    5. B. cannot be allowed for the pay of an accountant employed to make up statements, after the controversy arose, from the books of the mills where the lumber was sawed and sold.
    6. After B. had made sales sufficient to repay him for moneys advanced, he must pay interest on quarterly balances.
    Appeal from Roscommon; Sharpe, J.
    Submitted June 8, 1900.
    Decided October 31, 1900.

      Bill by George Boyce and Nancy Boyce, survivors of themselves and William Boyce, deceased, against Jonathan Boyce and Isabella J. Boyce, for a partition of certain lands and for an accounting. From the decree rendered, complainants appeal.
    Modified.
    In 1880, complainant George, his father and brother, and the defendant Jonathan invested $62,000 in purchasing the entire of four sections, and nearly all of another section, of pine lands. Complainant and his father and brother put in $31,000, and the defendant Jonathan put in a like amount. The title was taken in the name of complainant’s father and the defendant, each becoming the owner as tenant in common of the undivided one-half part of the said lands. Complainant’s father and brother died, and he has succeeded to the entire interest. Jonathan was an old and experienced lumberman. Complainant had had no experience in lumbering operations, except as a laborer. In 1890 an arrangement was entered into by which Jonathan agreed to cut, haul, and sell the timber.. The agreement unfortunately rested entirely in parol; but there is no substantial difference as to what the original understanding was, viz., that defendant was to cut, haul, and sell the logs, and account to complainant therefor, paying him his share after deducting all costs. With this understanding Jonathan entered upon sections 13 and 23 in September, 1890, and commenced lumbering operations. Jonathan now claims that some months ■afterwards, and after a very large portion of the timber had been taken from these two sections, he made an agreement with George for $2.50 a thousand for lumbering the logs. Complainant insists that no such agreement was made, and that all the talk about a charge of $2.50 per thousand was upon the basis that that was the actual cost, in accordance with the original understanding. In February or March, 1891, instead of selling the logs, Jonathan deemed it advisable to ship them over the Michigan Central Railroad to Saginaw and Bay City, have them manufactured into lumber, and sell the lumber. He thereupon made an arrangement in his own name with the Michigan Central Railroad Company by which the company agreed to extend its road through these lands, and to other lands of the defendant, and transport the logs for $2.50 per thousand to Saginaw and Bay City. He also made arrangements with certain mills to saw the logs at a given price per thousand. These arrangements were ratified by George, and the timber was taken from these two sections, converted into lumber, and sold by Jonathan. In August, 1891, complainant demanded a statement of account from Jonathan. To this demand Jonathan paid no attention, and in January, 1892, complainant commenced this suit to obtain a partition of the lands and an accounting for the timber sold. By stipulation the circuit judge acted also as commissioner and took much of the testimony, though a large portion was taken by deposition. The circuit judge made a finding, to 'many items of which complainant excepted, and now appeals from the'decree of the court below.

      Bunker & Carpenter, for complainants.

      Simonson, Gillett & Clark (Humphrey & Grant, of counsel), for defendants.

       Rehearing denied November 19, 1900.

       Head-notes by Grant, J.

   Grant, J.

(after stating the facts). The principal and most important question of fact in the case is, What was the contract between the parties ? Upon the answer to this question depends the basis for the accounting. The learned circuit judge found that defendant Jonathan was a jobber, and lumbered .this land for $2.50 per thousand. We cannot agree with him in this finding. The defendant filed an original and an amended answer. In neither of these is any reference made to the contract upon which he now claims, and which was made the basis of the accounting and of the decree. His original answer is very brief. In it he stated that he cut, manufactured, and disposed of the timber under a certain contract made between complainant and his brother William and himself. He says nothing whatever - as to what the contract was, except to allege that “sufficient of said logs and' lumber has not been sold to pay the expense of cutting and manufacturing the same, as agreed there should be.” His amended answer was filed September 7, 1897, under oath. In this answer he states the arrangement as follows:

“Defendant Jonathan Boyce, for further answer, says that, after the purchase of said' lands, for a number of years they did not lumber them, or any part thereof, although they were only valuable for the pine timber thereon; that the defendant frequently talked with said Edward Boyce and complainants in regard to the said lands and the lumbering of the same; that it was finally agreed by said complainants George Boyce and William Boyce and defendant that defendant should go on and lumber the said lands as economically as possible, and account to them for any profits that might be coming to them on the close of the lumbering operations; that defendant should be allowed reasonable compensation out of the joint property for his services in looking after the said lumbering operations, and that he should pursue such a course as in his judgment would be for the best interests of all concerned.”

He then claims in his answer $50,000 for his services in making the purchase, superintending the lumbering operations, and selling the lumber.

The bill of complaint does not appear to be based upon any theory of any contractual relation between complainant and defendant. It merely alleges the joint ownership of the lands; that defendant has entered upon them, and cut a large amount of timber, and converted the proceeds to his own use; the demand for, and the refusal to render, an account. The bill undoubtedly is not as specific as it should be. It charged the defendant with the conversion of the timber. The bill may be susceptible of the theory that the defendant was a trespasser, cutting the timber without authority, or that he had cut it by authority, and then converted it. As- above shown, the answer simply states that there was a contract, while the second answer sets out the arrangement in full. We are of the opinion that all defects in the pleadings should be overlooked, and the case disposed of upon the merits and the contract as established by the evidence.

On November 16, 1896, defendant filed a verified discharge account, in which he charged $12,000 for his services in “superintending the cutting of the logs, manufacturing them into lumber, selling and shipping the same, and collecting the pay therefor.” He also charged for making the logging road and other expenses; but the account contains no charge for cutting and hauling. On September 7, 1897, he filed an amended discharge account, in which he charges $20,000 for “superintending and lumbering said lands,” etc. In this account is an item as follows:

“Amount paid by defendant Jonathan Boyce for logging the timber on said lands, 27,123,229 feet, at $2.50 per M., $67,808.07.”

We are of the opinion that no contract existed such as defendant claims. Whatever assent complainant gave to the proposition of defendant to charge $2.50 per thousand was clearly, in our judgment, upon the basis that that represented the actual cost. At that time defendant was, or ought to have been, in position to show to complainant the actual cost of lumbering, but did not. Defendant, in his direct examination, being asked to state the arrangement, said:

“They told me to go on and cut the timber, and dispose of it the best I could; that they knowed that what was best for my interest was best for them, and I would do the best I could. * * * I do not know as I could really state word for word, but it was generally that we would go on and cut the timber, and sell the logs if I could, and do the best I could, just as though it was my own, because they knowed what was for their interest was for my interest, and I would do the best I could; and I did so to a cent, all through.”

We find, therefore, the fact to be that defendant was intrusted with the property of the complainant, with the agreement to cut, haul, manufacture, and sell it, and account to complainant for the proceeds after deducting expenses.

It is of little consequence what name we attach to the relation of the parties. Defendant admits it was his duty to account. Under his agreement, it was his duty to keep an accurate account. If he cut and disposed of this property aso a tenant in common, it was as much his duty to keep an account of expenses as if he were a trustee or occupied other fiduciary relations. The case is directly within the principle of Darrah v. Boyce, 62 Mich. 480 (29 N. W. 102).

Defendant testified as follows:

“Q. Why didn’t you keep an account of what it cost you?

“A. Well, I cannot, of course— I might have done business a little loose there, but it was all for myself, and all the account I kept was for the expense of my men, labor, and supplies.

“Q. Up to the time you made the bargain with them to put it in for two and a half, and they said it was all right, did you keep all your bills ?

“M. Oh, I have got them yet. I have got all the supply bills and all the checks. I believe I have got down in my office a million checks there that I have paid out in my time.”

The defendant produced no account, and gave no evidence of the cost of this work, except to give his opinion that it cost him at least $2.50 per thousand. Defendant was a man of large experience in lumbering operations. It seems incredible, under his own statement of the arrangement, that he should not have appreciated the necessity of keeping and rendering an account. But, whatever the reason may be, he alone must suffer the consequences. He has failed to render an account of the cost. We must therefore look to other testimony of experienced loggers of his class to determine what should be allowed the defendant for logging. Several experienced and skillful loggers who were familiar with the lands, and who had logged upon lands similarly situated, placed the cost of logging at from 90 cents to $1.50 per thousand. These witnesses testified to what it cost them per thousand upon the lands where they had logged. We are satisfied, from all the testimony given upon this point, that $1.50 per thousand is a very liberal allowance for the cost of lumbering.

Defendant made no scale of the logs. Complainant was aware of this. The Michigan Central Railroad Company employed competent scalers, who scaled them as they were shipped, and made the amount 24,608,730 feet. Complainant knew of this scale, and, by his silence at least, assented to it. The lumber scale at the mills amounted to 27,153,311 feet. The court adopted the latter scale as the one to be used in the accounting. We think he was in error. The evidence establishes the fact that, in logging operations, the log scale is contemplated, in the absence of an express agreement. If defendant had kept and rendered an account of his expenses, this question would not have arisen. It is certainly just and equitable, therefore, that he should receive compensation according to the usual scale. In computing this amount, therefore, the log scale must be adopted.

The court allowed defendant $2,000 for building a logging road. In logging operations the cost of such road is included in the cost of logging. The testimony as to the cost is entirely unsatisfactory, and the judge so held, but concluded that it was in the neighborhood of $4,000, and, because it was built more substantial and at a greater cost than the usual road, he fixes the cost to be borne by the joint lands of complainant and defendant at tjie sum of $2,000. There was no agreement in regard to its construction. Defendant owned other large tracts of land to be benefited. The witnesses included its cost in their estimates, which were based upon actual experience. We see no reason why he should be allowed this amount. It must therefore be stricken from the account.

The circuit judge, upon the basis that the defendant was a jobber, allowed him “for.services and expenses in superintending the manufacture of the lumber, assisting in the sale thereof, and for general supervision of the operation of the same, $4,000.” Here again no data are given for expenditures or for services at all reliable, and no account thereof was kept by the defendant. This item comes expressly within the rule in Hake v. Coach, 114 Mich. 558, 566 (72 N. W. 623), and must be disallowed.

After this controversy arose, defendant employed one Mood, an accountant, to make up statements, from the books of the mills where the lumber was sawed, of the amount manufactured and sold. Flood was not the regular bookkeeper of defendant, for he kept no books. Flood kept the books of one Welch, a mill owner, who sawed some of the lumber. Flood testified that in November, 1892, he was “called in by defendant to make complete copies of all his accounts in this matter.” We do not .think this was an item which should be charged against complainant. It is therefore rejected.

After stating the claims of the parties in regard to interest, the circuit judge allowed interest to complainant on the amount found due from January 1, 1893. This was about the date of the last sale of lumber made by defendant. Under this finding, defendant could have retained in his hands all the moneys until all the lumber was sold and the account balanced. If there had been no disagreement between the parties, defendant would undoubtedly have continued these operations for a, year or two longer. We do not think it was contemplated that he should retain these large amounts of money in his hands until the final closing out of the business. It was unnecessary for any protection to him for moneys advanced in the operations. It is just and equitable that he should have accounted at stated periods, and paid over the balance to complainant. He commenced to receive money from sales in March, 1891. It increased monthly until July, when he received $22,281.45. He expended a considerable amount in his logging operations, for which he would be entitled to interest, but we have no means of determining that amount. We think it just that complainant should receive interest from August 1, 1891, and that defendant should pay interest thereafter on quarterly balances.

There are several other items to which exception was taken, but as to them we sustain the conclusion reached by the circuit judge.

Decree modified in accordance with the above opinion, with costs to complainant.

The other Justices concurred.


text:
    PEOPLE v. CONRAD.
    Illegal Fishing — Private Ponds.
    2 Comp. Laws 1897, §§ 5849-5851, declaring it unlawful to spear fisli in any of the inland lakes in this State, do not cover the case of one spearing in a private lake or pond having no connection with other waters, by consent of all the owners, thereof. , ,
    Error to Genesee; Wisner, J.
    Submitted June 12, 1900.
    Decided October 31, 1900.
    William Conrad and others were convicted of violating the fish laws.
    Reversed, and respondents discharged.

      Clinton Roberts, for appellants.

      IP. W. Brennan, Prosecuting Attorney, for the people.
   Per Curiam.

Respondent Conrad and three others own Hibbard Lake, which contains about 15 acres. It has no inlet or outlet connecting it with other waters. The respondents obtained permission from these owners to spear fish in the lake. Eor this they were arrested and tried, under Act No. 159, Pub. Acts 1891 (sections 5849-5851, 2 Comp. Laws 1897), and upon the trial the court directed the jury to find a verdict of guilty.

Section 1 of the act reads:

“That it shall not be lawful for any person to take, catch, or kill, or attempt to take, catch, or kill, any fish in any of the inland lakes in this State with any kind of spear or graphook, or by the use of jacks or artificial light of any kind, or by the use of set lines or night lines, or any kind of net, or any kind of firearms or explosive, or other device except the hook and line.”

This lake is private property. Its owners have entire control over it, and the right to fish in it. The public have no interest in it. If it were connected with other lakes and streams, so that fish might pass in and out of it, others than the owners would then have an interest in the protection of the fish in the lake. This act cannot be construed to include private ponds or lakes, in which the public have no interest.

Judgment reversed, and the respondents discharged.


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    MURRAY v. VILLAGE OF GRASS LAKE.
    Municipal Corporations — Boards of Health — Village Council — Flooding Lands — Liability.
    Under the act for the incorporation of villages (1 Comp. Laws 1897, § 2684 et seq.), which, by section 2821, invests the village council with “ all the authority conferred on boards of health by the general laws of the State, so far as applicable,” and, by section 2822, authorizes the council to appoint a board of health, a village cannot be held liable for the action of its council, taken on the advice of such board, in so raising the level of a lake that private lands are flooded and damaged, the function exercised being one which pertains to the council as representative of the State.
    Error to Jackson; Peck, J.
    Submitted June 13, 1900.
    Decided October 31, 1900.
    Case by Henry H. Murray against the village of Grass Lake for flooding plaintiff’s land. From a judgment for defendant on demurrer to the declaration, plaintiff brings error.
    Affirmed.

      John W. Miner (Grove H. Wolcott, of counsel), for appellant.

      Thomas E. Barkworth, for appellee.
   Montgomery, C. J.

This case was determined below on demurrer to the plaintiff’s declaration. Final judgment was entered for the defendant, and plaintiff brings error.

Briefly stated, the averments of the declaration are that the plaintiff owns certain land adjoining Tims Lake, the outlet of which is connected with Grass Lake; that Grass Lake adjoins the village of that name, and its outlet is within the corporate limits; that for more than 20 years the waters of Grass Lake have been maintained at a certain level; that on the 3d of May, 1897, the board of health of defendant village recommended that the water of Grass Lake be raised to its former level, and the common council, by resolution, and without any necessity therefor, ordered that the lake be raised to its former height by raising the outlet, which had theretofore been lowered; that, in pursuance of such resolution, defendant caused the outlet to be obstructed so that the water of the lake was raised two feet higher than the level which had been maintained for 20 years; that the land of plaintiff, which had during this 20 years been suitable for pasture and meadow, became flooded, and of no value or use to plaintiff.

The demurrer rests upon two substantial grounds: First, it is alleged that the declaration shows upon its face that the act complained of was ultra viresj and, second, that, if any power existed in the village to perform the act complained of, it was an act done in the exercise of a* governmental function, and the duty attempted to be performed was not a corporate duty, but was exercised as a governmental agency, and that for any improper exercise of such a function no right of action accrues to an individual against the corporation. The record does not show upon which ground the demurrer was sustained.

In 2 Dill. Mun. Oorp. (4th Ed.) § 966, the rule is stated as follows:

“As respects municipal corporations proper, whether' specially chartered or voluntarily organizing under general acts, * * * it is, we think, universally considered, even in the absence of a statute giving the action, that they are liable for acts of misfeasance positively injurious to individuals, done by their authorized agents or officers in the course of the performance of corporate powers constitutionally conferred, or'in the execution of corporate duties.”

This rule has been recognized in this State. Sheldon v. Village of Kalamazoo, 24 Mich. 383; Ashley v. City of Port Huron, 35 Mich. 296 (24 Am. Rep. 552); Seaman v. City of Marshall, 116 Mich. 327 (74 N. W. 484); Morley v. Village of Buchanan, 124 Mich. 128 (82 N. W. 802).

As corollary to the rule above stated is the rule laid down by the same learned author (section 968):

“If the act complained of necessarily lies wholly outside of the general or special powers of the corporation as conferred in its charter or by statute, the corporation can in no event be liable to an action for damages, whether it directly commanded the performance of the act, or whether it be done by its officers without its express command; for a corporation cannot, of course, be impliedly liable to a greater extent than it could make itself by express corporate vote or action.”

The difficulty arises in drawing an exact line between acts which are not ultra vires in this sense and those which are. As we understand the plaintiff’s contention, it is substantially that, where a corporation is given general power to act with a certain purpose, or* to effect certain objects, it may become liable for acts of misfeasance directed by the governing body, even though the act in question is committed while employing means which the corporation is not, under any circumstances, authorized to employ. If this contention has support in our own cases, it is found in Sheldon v. Village of Kalamazoo, supra. The contention of defendant, on the other hand, is that, when the act of misfeasance is one which the municipality has no authority to do under any circumstances, it is so far ultra vires as that the governing body Of the corporation cannot make the corporation liable as for a tort by an unauthorized invasion of property rights, particularly when no benefit accrues to the corporation by the unauthorized act. Defendant’s contention certainly has the support of eminent authority. Anthony v. Inhabitants of Town of Adams, 1 Metc. (Mass.) 284; Cavanagh v. City of Boston, 139 Mass. 426 (1 N. E. 834, 52 Am. Rep. 716); Mayor, etc., of Albany v. Cunliff, 2 N. Y. 165. The difficulty in formulating a general rule on this subject has been recognized by two eminent writers. 2 Dill. Mun. Corp. (4th Ed.) § 969; Tied. Mun. Corp. § 324.

We do not find it necessary to lay down any precise rule in this case, as we prefer to rest our conclusion on other grounds. The act under which defendant village was incorporated provided by section 2821 (1 Comp. Laws 1897) that “the council shall have and exercise all the powers and authority conferred upon boards of health by the general laws of the State, so far as the same are applicable, and they may enact such ordinances as may be necessary for regulating the proceedings and mode of exercising such powers.” The next section authorizes the council to appoint a board of health. It would appear that that was done in this case. It also a'ppears that the action taken by the council was taken on the recommendation of the board of health. The action of the council was doubtless taken under authority of the section quoted. The fact that the wrong was committed by the officers of the village does not fix the responsibility upon the municipality if the wrongful act was done under authority of a general statute in the attempt to perform a public service not distinctively local or corporate. 2 Dill. Mun. Corp. (4th Ed.) § 974. It is apparently the established rule that local health officers, acting under a general statute of the State conferring their powers, are not performing corporate functions, but are representatives of the State, and that the municipality is not liable for the acts of such boards, either of misfeasance or nonfeasance. Tied. Mun. Corp. § 332; 2 Dill. Mun. Corp. (4th Ed.) § 977; 4 Am. & Eng. Enc. Law (2d Ed.), p. 607; Bryant v. City of St. Paul, 33 Minn. 289 (23 N. W. 220, 53 Am. Rep. 31); Rudolphe v. City of New Orleans, 11 La. Ann. 242; Mitchell v. City of Rockland, 41 Me. 363 (66 Am. Dec. 252); Gilboy v. City of Detroit, 115 Mich. 121 (73 N. W. 128); Webb v. Detroit Board of Health, 116 Mich. 516 (74 N. W. 734, 72 Am. St. Rep. 541).

This view is decisive of the case, and the judgment will be affirmed.

The other Justices concurred.


text:
    MORAN v. WAYNE CIRCUIT JUDGE.
    Corporations — Receiver—Mandamus.

       1. A creditor, stockholder, or officer may be appointed receiver of a corporation.
    2. Relators filed a petition against the receiver of a corporation, charging him with misconduct and misappropriation of its funds as an officer of such corporation, and praying for his removal, and a personal decree against him for moneys misappropriated. The petition was dismissed upon the hearing. Held, that mandamus is not the proper .remedy, but that appeal is the sole remedy.

      Mandamus by Ered T. Moran and Worthy L. Churchill to compel George S. Hosmer, circuit judge of Wayne county, to enter .an order removing a receiver.
    Submitted July 3, 1900.
    Writ denied October 31, 1900.
    Relators are owners of a judgment for $14,170 against the Detroit Driving Club, a corporation organized under the laws of this State. Execution upon this judgment was levied November 23, 1899, on the race track and grounds of said club, in tbe city of Detroit. Relators became the owners of this judgment by assignment after such levy. No sale has been made, and nothing done under the levy. Daniel J. Campau is the largest stockholder and president of said club. Campau and two others, as plaintiffs, on March 3, 1899, recovered a judgment against the club for |18,366. On March 30th of the -same year the same parties recovered another judgment against said club for $10,343.72. Levies upon the race track and grounds were made under executions issued upon these two judgments. Execution upon the latter judgment was returned nulla bona. April 24, 1899, Campau filed a judgment creditor’s bill, and asked for the appointment of a receiver. On December 7th following, Mr. Campau was appointed receiver. On December 28, 1899, Campau filed a petition setting forth the condition of the club, its indebtedness, the amount required, to pay interest on the bonds and to keep up insurance; asking for authority to conduct the race meetings for the season of 1900, and borrow money to pay interest, taxes, etc. On December 29th an order was made granting the prayer of the petition. Mr. Campau gave bonds, borrowed money, and advertised the race meetings. On February 2, 1900, relators filed an intervening petition, setting forth their judgment against the club; execution and levy; Mr. Campau’s connection with the club; charging him with neglect of duty as an officer of the club; the failure to keep his agreement with them and their assignor; charging that one of the principal features of the trotting meetings is gambling, known as “auction pools,” “Paris mutuals,” and “book making;” and alleging, on information and belief, that Mr. Campau intends to continue such business as a feature of the races. The prayer of the petition was for the removal of Mr. Campau as receiver; that he be required to account for his management of the affairs of the club; and for a personal decree against him for the amount due. Campau filed answers individually and as receiver to this petition, fully denying all the material allegations, which allegations were mainly on information and belief. In his answers he reserved all benefit of demurrer to said petition, and denied that petitioners had stated such a cause as entitled them to relief. Relators took no further steps until June 20, 1900, when they made a motion, to be heard on June 25th, for the removal of Mr. Campau as receiver. An order or decree was entered denying the motion, and dismissing relators’ petition.

      Fred A. Baker, for relators.

      Moore & Moore (Otto Kirchner, of counsel), for respondent.

       Head-notes by Grant, J.

   Grant, J.

(after stating the facts).

New conditions have arisen since the case was submitted, and meanwhile the time for the races has' passed. There is therefore no occasion to determine the question whether relators are entitled, in this form of action, to restrain what they assert to be gambling contracts, and to have the receiver removed on that ground.

We find no occasion to interfere with the action of the court below in appointing Mr. Campau, and in refusing to remove him. Under our law and decisions, a creditor or officer, or any of the stockholders, of a corporation, may be appointed receiver. Section 10860, 3 Comp. Laws 1897; Covert v. Rogers, 38 Mich. 368 (31 Am. Rep. 319); Gypsum Plaster & Stucco Co. v. Kent Circuit Judge, 105 Mich. 498 (63 N. W. 518).

The merits of relators’ petition appear to have been argued and disposed of without objection to such hearing in the court below. An order or decree was entered dismissing the petition. This was a final order, and can only be reviewed on appeal.

The writ is denied.

The other Justices concurred.


author: Hooker, J.

text:
    BRUGGINK v. THOMAS.
    Drains — Insufficient Outlet — Blooding Lands — Injunction.
    While a drain commissioner who constructs a drain with an insufficient outlet may incur a personal liability for the consequent flooding of private land, it is not necessary that one who sees that a proposed outlet across his land is bound to be inadequate should abide his right of action against the commissioner, but he may proceed at once to have the use of such outlet enjoined.
    Appeal from Kent; Perkins, J.
    Submitted October 2, 1900.
    Decided October 31, 1900.
    Bill by Henry Bruggink and others against John M; Thomas, drain, commissioner of Kent county, and others, to enjoin the construction of a drain. From a decree dismissing the bill, complainants appeal.
    Reversed.

      M. L. Dunham, for complainants.

      W. ,D. Fuller and Frank A. Dodgers, for defendants.
   Hooker, J.

The complainants own certain lowlands lying north of the south line of section 28 in the township of Wyoming, Kent county, through which runs a small water-course (dry in summer) from the highway mentioned, through section 28, to Buck creek. Defendant Thomas, the drain commissioner, laid out a drain extending northerly from a swamp of 30 acres or more, lying upon the south township line, to the middle of the highway mentioned, where it intersects the water-course aforesaid, and the other defendants are persons who have taken contracts to excavate portions of the same. The complainants claim that the construction of said drain will increase the amount of water in said water-course, by reason of the alleged diverson of water that formerly reached Buck creek through other outlets. They claim that the increase of water will inundate their lowlands, by reason of the inadequacy of the shallow and tortuous water-course that crosses their lands to carry off the water as fast as it will be delivered by the new drain, and that the water-course will be obstructed by quicksand, which will be brought down the drain, and deposited in the quiet places and eddies of the water-course.

The brief of counsel for defendants concedes that “if the outlet of the drain is insufficient to prevent the water to be carried therein from flooding the low farming land of complainants, and doing irreparable damage to the same,” the relief prayed should be granted, but contends that the same is not established by the testimony. We think complainants’ contention sustained by a clear preponderance of the testimony. It is not disputed that a free and unobstructed channel is made for the water to the point of entrance upon the complainants’ land. If it follows the natural law that “water will seek a level,” it must reach that point much more readily than ever before, and its flow will be more rapid to that point. All admit that quicksand has been brought down' upon complainants’ land heretofore, and we are satisfied that it will be again, if said proposed drain shall be excavated. It seems, to us inevitable that this drain will find an inadequate outlet, and that the drain commissioner, and complainants’ neighbors who wish to reclaim their waste land, should not be permitted to impose such burden upon them.

It appears to have been urged below that complainants should be left to an action for such damages as shall result against the drain commissioner. The case of Chapel v. Smith, 80 Mich. 100 (45 N. W. 69), sustains the claim of the complainants that the drain commissioner has no authority to empty water upon the lands of another without providing a proper outlet, and that he is answerable if he does so. We. think it does, not follow that he cannot be restrained from doing so before he has subjected others to expense and himself incurred a liability.

A decree will be entered in accordance witb the prayer of the bill, with the costs of both courts.

The other Justices concurred.


text:
    MERTZ v. DETROIT ELECTRIC RAILWAY.
    1. Street Railways — Loaded Wagon — Collision—Negligence —Question for Jury.
    Plaintiff, wlio was driving on a street-car track with a heavily-loaded wagon because of the muddy condition of the street» was run into by a car going in the same direction. There was testimony that the wagon could be seen three or four-blocks away. The motorman testified that he was running full speed, and that on account of falling snow he did not see the wagon until within 75 to 100 feet, when it was impossible to prevent a collision. Held, that the direction of a verdict for defendant was properly refused, since the question of defendant’s negligence was for the jury.
    2. Same — Duty of Motorman — Obstructions—Stopping Car.
    Where an electric car collided with a heavily-loaded wagon which plaintiff was driving on- the track because of the muddy condition of the street, an instruction that “the cars of the defendant company have the right of way on its tracks, and the motorman had the right to assume that no horse and vehicle would be on the right of way, and to operate his car under that assumption, and to propel the car at the rate allowed by law, 15 miles an hour,” was properly refused, since defendant did not have the. exclusive right of way, and it was the duty of the motorman to keep a lookout, and to stop when it became apparent that a vehicle on the track could not be removed in time to prevent a collision.
    3. Same — Duty of Driver — Contributory Negligence.
    Where an electric car collided with a heavily-loaded wagon which plaintiff was driving in the same direction, and plaintiff testified that he saw the car approaching five or six blocks away, the question whether he was guilty of contributory negligence in not going back to signal the car to stop was properly submitted to the jury.

      4. Same — Speed oe Oar — Witnesses—Competency.
    Witnesses who have been, accustomed to observe electric cars in motion are competent to express an opinion as to the speed of a car on the occasion of an accident.
    Error to Wayne; Hosmer, J.
    Submitted October 2, 1900.
    Decided October 31, 1900.
    Case by Jacob G. Mertz and John H. Heppner, copartners as Mertz & Heppner, against the Detroit Electric Railway, for damages caused by a collision with a trolley car. From a judgment for plaintiffs, defendant brings error.
    Affirmed.

      Thomas T. Leete, Jr., for appellant.

      Hayes & Laioson, for appellees.
   Montgomery, C. J.

Plaintiff Heppner, who is in the coal and wood business, started at nightfall on the 4th of March, 1899, to deliver a load of coal from his place of business to a customer named Baudie, who lived at the corner of Oakland avenue and Belmont street, Detroit. He drove out Woodward avenue to Westminster avenue, thence east on Westminster avenue to Oakland avenue, and thence north on Oakland avenue to go to Mr. Baudie’s house, which was about five or six blocks north of Westminster. Defendant’s cars are operated on Oakland avenue upon a double track. The street is unpaved, and at this season of the year was very muddy. Plaintiff drove between the tracks on Oakland avenue, the wheels upon one side of his wagon being between the rails of the right-hand track and the wheels upon the other side between the two tracks. He did this because he had been told that that was the best route to travel. It was about 7 o’clock in the evening. It had started to snow, and the snow was coming down from the north. There was testimony showing that the plaintiff’s horse and cart could be seen for a distance of three or four blocks. The plaintiff continued driving upon the tracks for several blocks. The roads pulled bard, and he had to rest his horse every little while. He testified that he had been on the track 15 or 20 minutes before a car appeared. He claimed that he did not leave the track when he saw the car coming, because it was difficult to do so, the wagon having settled into the mud, and the track being two or three inches higher than the ground. He saw the car approaching him when it was five or six blocks away. He testified :

“I had gone a. little over two blocks on Oakland avenue when I saw the car come in sight, and then I had two or three blocks more to go to get to Belmont avenue. I kept on going up Oakland avenue after the car was in my rear, going in the same direction. * * * I kept looking back to see the car coming, and I kept on driving on the track all along. * * *
“Q. Why didn’t you signal? Why didn’t you go back to signal ?
“A. I did not think it was necessary, because I thought they could see me as well as I could see them. I never gave it a thought to go back to signal.”

When the car was about 30 or 40 feet away, the plaintiff started to yell, and wave his hand at the motorman. The motorman testified that it was a very dark night, and that he was standing close up to the window of the vestibule, keeping a sharp lookout; that the snow was coming down and melting upon the window páne; that the car had a head-light, which threw a light down the track; that he had been looking out ahead all the time, and saw the wagon first when it was from 75 to 100 feet down the track; that he immediately reversed the controller, and the fuse wire burned out; that he caught hold of the brake, and did his utmost to stop the car, but that the little snow on the track made it bad for the wheels, causing them to slide, and that he could not stop the car until it struck the wagon; that, if the wagon box had been higher, it would have passed over the dead wood of the car, and broken into the vestibule, and probably have caused serious, if not fatal, injury to himself. The motorman and conductor both testified that the car was running about 10 miles an hour, and that as good a stop was made as was possible under the circumstances. The motorman also testified that he was running on six points —what they call full speed — just before he saw the wagon.

Plaintiffs recovered a judgment against the defendant of $100, and defendant has appealed therefrom to this court.

It is contended that, upon this state of facts, a verdict should have been directed, because no negligence on the part of defendant was shown, and also because the evidence shows the plaintiff Heppner to have been negligent. There was ample evidence to justify the submission of the question of defendant’s negligence to the jury. It appears that the motorman was familiar with the street. Presumptively- he knew something of the difficulty the plaintiff would have in turning off the track; and there was evidence to justify a finding that he might have seen the wagon, if he had looked ahead, three blocks away, and that he approached to within 50 or 75 feet of the wagon at full speed, and without before seeing it, as he says. In the face of evidence that it was necessarily discernible for three blocks, the jury were not bound to give unquestioning credence to his statement that he first saw the wagon so near the-point of collision. Defendant’s view of the law defining the motorman’s duty was apparently expressed in the fourth request to charge, as follows:

“ The cars of the defendant company have the right of way upon its tracks, and defendant’s motorman had the right to assume that any horse and vehicle would not be upon the right of way, and had the right to operate his car under the assumption that the right of way would be clear, and to propel the car at the rate allowed by law of 15 miles an hour.”

This request does not correctly state the law. The defendant company does not have the exclusive right of way over the part of the street in which its track is laid. The drivers of ordinary vehicles are in no sense trespassers upon the track, and one in charge of a street car is bound to know this. The duties of a driver of a wagon on the track and a motorman are, in some sense, reciprocal. The duty of the latter, at the very least, is to keep a lookout ahead; and, when it becomes apparent that the track is occupied by a vehicle which cannot be gotten off in time to avert a collision, it is his duty to bring the car to a stop. La Pontney v. Cartage Co., 116 Mich. 515 (74 N. W. 712); Rascher v. Railway Co., 90 Mich. 415 (51 N. W. 463, 30 Am. St. Rep. 447); Bush v. Railway Co., 113 Mich. 513 (71 N. W. 851).

The contention that the plaintiff Heppner was guilty of contributory negligence was based largely upon the case of Frost v. Railway Co., 96 Mich. 470 ( 56 N. W. 19), and it is said in defendant’s supplemental brief that, unless this court shall declare that case not good law, it should be held that the present plaintiffs are not entitled to recover. We do not agree with this view of counsel. The distinction between steam railways and street railways has been often pointed out. It is a fact that must be assumed to be within the knowledge of all persons sui juris that a steam-railway train cannot be brought under control within a short distance, while it is equally known that street cars in cities can be kept within control sufficiently to prevent collision with vehicles lawfully on the track. Rascher v. Railway Co., supra; Mahoney v. Railway Co., 110 Cal. 471 (42 Pac. 968); Calumet, etc., R. Co. v. Lynholm, 70 Ill. App. 371; Bush v. Railway Co., 113 Mich. 513 (71 N. W. 851).

Counsel also cites, in support of the contention, Daly v. Railway Co., 105 Mich. 193 (63 N. W. 73), Lyons v. Railway Co., 115 Mich. 114 (73 N. W. 139), and Graf v. Railway Co., 94 Mich. 579 (54 N. W. 388), all of which were cases of pedestrians, who could, so far as appeared to the one in charge of the motor or engine, avoid a collision by simply stepping aside. Neither of these cases is an authority to support the proposition that a motorman who sees a wagon stalled on the track ahead of him, or traveling the track in the same direction, may proceed in anticipation that the traveler' ahead of him will get out of the way. Much less can he do so when aware of the fact that the driver of a wagon would have a peculiar difficulty in turning out, owing to the unwrought condition of the road.

Whether the plaintiff was guilty of contributory negligence in not going back to warn the motorman is, under the circumstances of this case, a question for the jury. The plaintiff testified that he thought the motorman could see him as well as he could see the car, and the jury might well have found that, with the car under proper control, the motorman could have come to a stop after seeing the plaintiff’s situation, and that the plaintiff was justified in assuming that he would.

Error is assigned on rulings permitting the witnesses for plaintiffs to testify as to the speed at which the car was going. We think each of the witnesses gave evi- • dence showing sufficient experience in observing the speed of cars in motion to entitle him to express an opinion, within the x’uling in Detroit, etc., R. Co. v. Van Steinburg, 17 Mich. 104; Guggenheim v. Railway Co., 66 Mich. 155 (33 N. W. 161).

We discover no prejudicial error. Judgment affirmed.

The other Justices concurred.