author: Montgomery, J.

text:
    FORTIN v. BAY CITY TRACTION & ELECTRIC CO.
    1. Statutes — Sub jeots and Titles — Harmony—Electric Cars —Operation.
    The title of Act No. 439, Local Acts 1901, viz., “An act to regulate the operation of electric cars within the county of Bay,” is broad enough to cover a section conferring a private right of action upon persons injured by reason of failure to equip electric cars with air or electric brakes as provided by the act. Const., art. 4, § 20,
    2. Street Railroads— Operation— Negligence— Violation of Statute — Effect.
    Where a provision of a statute regulating the operation of electric cars is obviously for the benefit of the public in general, a neglect to comply with the terms of a mandatory requirement therein would at least be evidence of negligence in any action brought by an individual for injuries occasioned by such neglect, independent of an express provision making the owner of the car liable for such neglect.
    3. Carriers — Passengers—Personal Injuries — Instructions— Propriety.
    In an action against a street railroad company for personal injuries, an instruction that the fact that the car did not have air or electric brakes, as required by the statute, would make no difference in the case, unless the accident was caused or contributed to by a lack of braking power, was sufficiently favorable to defendant, where there was evidence that, had there been sufficient braking power, there would have been no difficulty in arresting the progress of the car and preventing the injury in question.
    4. Damages — Personal Injuries — Permanent Injuries — Instructions — Propriety. ,

      A requested instruction not to award damages for the injury as a permanent one was properly refused where a physician testified that some impairment of plaintiff’s ankle would always remain.
    Error to Bay; Collins, J.
    Submitted June 19, 1908.
    (Docket No. 72.)
    Decided September 29, 1908.
    Case by Ellen Fortin against the Bay City Traction & Electric Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Weadock & Duffy, for appellant.

      Fred W. DeFoe, for appellee.
   Montgomery, J.

This is an action to recover damages for personal injuries sustained by plaintiff through the negligence of the operatives of one of the defendant’s cars on the Banks line, so-called, in Bay City, on the afternoon of August 12, 1905. At the crossing of the defendant’s line with the tracks of the Michigan Central Railroad Company is constructed a steel viaduct, which is a continuation of the street over the Michigan Central tracks. The southerly approach to the steelwork or span is somewhat steep. Then for a distance of 125 feet the span is level. From the end of the level portion the street slopes gradually for a distance of 650 feet, where a private driveway of the Potts Oil Company comes out to the street. The car upon which the plaintiff was riding when in use as a summer car has one side removed, and the running board or step board extends along the entire open side, permitting the passengers to get on or off between any of the seats'. The rear platform is spacious, and the car may be boarded or left from it. The motorman is stationed in the front vestibule. Behind him on either side is a window, permitting a view of the track ahead from the seats in the car, and directly behind the motorman is a wooden door leading from the vestibule into the car. The plaintiff boarded the car with her daughter, Mrs. Eva Russell, between 5 and 6 o’clock, at the corner of Center and Washington streets, bound for her home in Banks. Between 3 and 4 o’clock there had been a light shower, lasting about half an hour, making the rails slippery and greasy. The car was equipped with double-purchase hand brake in good working order and supplied with sand. It approached the southerly incline of the viaduct, where, owing to the steep grade and greasy condition of the rails, there was some difficulty in making the ascent. It proceeded up slowly onto the level portion, and started down the north incline. The rate of speed at which it was making this decline is in controversy. There was testimony tending to show that the car was going at an unusually high rate of speed for this point. When the car was half way down or more, as defendant’s testimony tends to show, the motorman discovered a van loaded with barrels with three horses attached, the horse nearest the car having its head just over the west track, according to the mortorman’s testimony. But the testimony on behalf of the plaintiff tended to show that the motorman began to halloo when the car was from a quarter to a third of the way down the'viaduct. Testimony was offered on behalf of the plaintiff tending to show that the car, under proper control, could have been stopped within a distance of 40 feet or thereabouts. The plaintiff’s testimony as to the circumstances of the injury was as follows:

“When the motorman first hollered, we were about a quarter of the distance then down the north grade of the viaduct. I heard him holler, ‘ Hey! Back! Hey!’ and he kept hollering. He hollered an awful loud way. When he began to holler, the conductor went to the front of the car. When I seen him last, he was in the doorway to the front. I looked out to see what was the matter when they began to holler; but I couldn’t see anything. I kind of thought it was a car coming. I could not see anything on the track at all, because there was no place where I could see. There was just the doorway, and they stood in the doorway. I sat on the left-hand side of the car. When .the door in front of the car, which opens from the car into the vestibule, is opened, it slides, I think, to the left, so the door would be slid over in front of the window on the same side of the car where I sat. The windows on the same side of the car where I sat were closed where I was sitting, so that I could not lean out and see what the trouble was. When the motorman began hollering and the conductor went up to the front of the car, some of the passengers got up and some jumped off. I didn’t hear anybody in the car say anything. It was the man at the front that did the hollering. I know when I jumped off they were yelling yet. I started to look to see what was the matter, and I could not see anything. When I see them two men jump off, I thought to myself, I guess we better jump off too, to save our lives, because I thought sure it was another car coming, the way they acted. There wasn’t any employe of the street car company on the rear end of the car on the platform, and nobody said anything to me about getting off or staying on. There was no one on the rear platform at the time I got off. The people that were on the rear platform had jumped off. When I jumped, I broke my ankle.”

At the close of the defendant’s testimony, a motion was made to instruct a verdict for the defendant. This was refused, and the court left the question for the jury to determine as to whether the plaintiff had been by the negligence of the defendant placedin a position of peril where she was called upon to act hastily, and whether, under the circumstances of the case, she exercised such a degree of care as was reasonable.

The car was not equipped with an electric air brake as required by Act No. 439, Local Acts 1901. This act is entitléd: “An act to regulate the operation of electric cars within the county of Bay.” It contains three sections, the first of which makes it the—

“Duty of every person, company and corporation operating electric cars within the county of Bay to equip all double truck cars, cars hauling freight or trailer cars with an electric air brake of the latest and most approved kind in common use on electric cars, as will effectually control the speed of such cars, or such kind as may be approved by the common council or trustees of the city or village in which such person, company or corporation is operating.”

Section 2 provides: “Any person, company or corpo-* ration neglecting or refusing to comply with the provisions of this act shall be liable for all damages which shall be sustained by any person by reason of such neglect or refusal ;” and also provides a penalty for failure to so run and operate a car. Section 3 repeals contravening acts. It is contended that this act contravenes section 20 of article 4 of the Constitution of Michigan, which provides that no law shall embrace more than one object, which shall he expressed in the title. It is said that section 2 confers a private right of action upon persons injured by reason of the failure to equip the cars specified with an air or electric brake, and that the title of the act gives no intimation whatever of the right of action contained in section 2, and it cannot be said that it is in any sense germane to the provisions of the act. The title to the act is sufficiently broad to cover the subject. It is obvious that an act to regulate the operation of electric cars would have, under that statement, for its purpose the protection of those who are called upon to make use of such cars, as well as others with whom such cars might come in collision. Independent of an express provision making the company liable for neglect to comply with the terms of the statute, if the enactment were obviously for the benefit of the public in general, a neglect to comply with the terms of a mandatory requirement would at least be evidence of negligence in any action brought by an injured party. Sterling v. Carbide Co., 143 Mich. 284. It is not inappropriate, therefore, that under such an averment the responsibility arising from failure to comply with the terms of section 1 should be declared and defined.

The case is entirely analogous to the general liquor law, which is under the title:

“An act to provide for the taxation and regulation of -the business of manufacturing, selling, keeping for sale, furnishing, giving, or delivering spirituous and intoxicating liquors, and malt, brewed or fermented liquors, and vinous liquors, in this State.” Act No. 313, Pub. Acts 1887.

This statute not only contains a regulation of the business and provides a penalty for the violation of its provisions, but also provides for a recovery of damages by any person who shall be injured in his person, property, or means of support by reason of any infraction of the law. In the case of Robison v. Miner, 68 Mich. 549, it was held that there was but one general purpose indicated by this title. See, also, Soukup v. Van Dyke, 109 Mich. 679; Burrows v. Transportation Co., 106 Mich. 583 (39 L. R. A. 468).

The circuit judge charged the jury that the fact that the car in question did not have air brakes or electric brakes would make no difference in the case, unless the accident was caused or contributed to by lack of braking power. This charge was sufficiently favorable to the defendant, and there was testimony tending to show that, had there been sufficient braking power, there would have been no difficulty in arresting the progress of. this car and in preventing the injury in question. We think the case was fairly submitted to the jury.

The defendant requested an instruction as follows:

“There is no testimony in this case showing that the plaintiff’s injuries are permanent. I therefore charge you you will not award her damages, if you find she is entitled to any damages, for the injury as a permanent one.”

The evidence of the plaintiff’s physician tended to show that she was suffering from a permanent injury. We quote language which the defendant’s counsel have inserted in their brief, and think it sufficient answer to the contention made:

“Q. State whether or not it will ever be as useful as it would have been without the injury.
“A. I do not think it will ever be as perfect; no.
“Q. State whether or not she will ever acquire the same use of it ?
“A. I do not think she will. If it was overly used, it would make it slower of repair. Under ordinary conditions, if it was not used, the pain would practically be over with.
“Q. And the permanent part of the injury you have referred to would be in the nature of mobility and the general use of the joint ?
“A. Yes, sir.
“Q. And, as to that part of it, you think it will always remain ?
“A. Some impairment always.”

Upon cross-examination, he testified:

“Q. And, considering the woman’s age, and her weight and size, under all the circumstances, she is making a slow and gradual recovery, is she not ?
“A. Not a full recovery.
“Q. A slow and gradual one ?
“A. Yes, sir.”

The other questions discussed by'counsel have had full consideration, but we discover no error to the prejudice of defendant; and the judgment is affirmed.

Ostrander, Hooker, Moore, and McAlvay, JJ., concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    GARNER v. DOREMUS.
    1. Municipal Corporations — Detroit Charter — Contracts— Validity — Public Works.
    Where, after a contract approved by the common council of Detroit had been made with certain parties to build sidewalk intersections at a stipulated price, which they failed to construct as fast as needed, the commissioner of public works, with the approval of the board, employed other firms, including relator, to construct them at the same price, issuing written orders for specific intersections, which employment was not brought to the attention of the council until after the work was done, relator’s contract was not valid, under the charter (section 240), though it was not one such as are required to be let to the lowest bidder.
    2. Same — City Controller — Warrants—Refusal to Draw.
    The city controller properly refused to draw a warrant on the treasury in payment of relator’s claim, notwithstanding its allowance by the council, there being no controller’s certificate on the contract, as provided by section 251 of the charter, and there being no money for such purpose and no appropriation.
    Certiorari to Wayne; Murphy, J.
    Submitted July 13, 1908.
    (Calendar No. 22,906.)
    Decided September 29, 1908.
    Mandamus by William F. Garner to compel Frank E. Doremus, controller of the city of Detroit, to draw a warrant. There was an order granting the writ, and respondent brings certiorari.
    Reversed, and writ dismissed.

      A. B. Hall, for relator.

      P. J. M. Hally, for respondent.
   Hooker, J.

There was raised by tax in the city of Detroit, for use during the fiscal year beginning July 1, 1906, for the purpose of “building and repairing stone intersections and repairing stone sidewalks,” the sum of $22,500. This sum was increased by $206.14 remaining in the fund from the previous year. On November 1, 1906, there was a balance in said fund of $1,966.99. During that year the relator, on an order issued by the commissioner of public works, constructed a large number of cement intersections in the city, no one of which cost $25. This work was all completed before November 1, 1906, and payments were made from time to time upon relator’s account, which comprised a large number of items, and on November 1, 1906, the relator claimed a balance of $1,012.70, but the true sum due was $969.10. The claim was not presented until late in November, 1906, at which time the fund had been exhausted, and relator was informed by the commissioner that no funds would be available to pay the claim until the following fiscal year, beginning July 1, 1907. The bills were approved about November 1, 1906, however, by the department of public works. On February 19,1907, $5,000 was credited to the fund, but was expended for other purposes. In the fall of 1907, relator presented his bill for payment. The controller of the city disapproved of the claim in a communication to the common council, but on January 7, 1908, the council, after investigation, allowed the claim at the sum of $969.10, and directed that the sum of $819.10 be then paid, and $150 withheld as security for the remedying of certain defects in the work. This action was vetoed by the mayor, but the resolution was afterwards passed over the veto. The resolution directed the city controller to draw a warrant on the proper fund. He refused to do this, and, upon application to the Wayne circuit court, a mandamus was issued to compel it. The cause is before us on certiorari obtained by respondent.

Counsel for respondent contend:

(1) That the contract between relator and the commissioner was not valid.

(2) That, if the contract was not valid when made, the action of the common council did not amount to a valid ratification, and waiver of the irregularities of its inception.

(8) That a mandamus should not issue to compel the controller to draw an order upon a fund that has been, and is at the time, exhausted.

Was the contract with the commissioner a legal one ? The record indicates that a contract approved by the council had been made with other parties to build intersections at a stipulated price, and that such parties could not or did not construct them as fast as needed. Thereupon the commissioner of public works employed other firms at the same price, issuing written orders for specific intersections. It is evident that this was with the concurrence of the board, but there is nothing to indicate that it was brought to the attention of the council until some time after the work was done and the fund was exhausted. The contracts were not such as were required to be let to the lowest bidder. Being made by the commissioner and without approval by the council, they were not valid as executory contracts under the charter.

The following provisions of the charter (sections 240, 241, 247, 250, 251, 396 of the compilation of 1904) are cited as bearing upon the question before us:

“No contract shall be let or entered into for the construction of any public work, or for any work to be done or for the purchasing or furnishing of supplies for said city not herein provided for, and no such public work, performance, purchasing or supplying shall be commenced until approved by the common council, and until the contract therefor has been duly approved and confirmed by the common council, and a tax or assessment levied to defray the cost and expense of the same; and no such work, supplies and materials shall be paid for or contracted to be paid for except out of the proceeds of the tax or the assessment thus levied.
“No contract * * * for the construction of any public work whatever, or for any work to be done * * * if the expense of such construction, repairs, work, printing, materials or supplies shall exceed $200, shall be let or entered into except to and with the lowest responsible bidder with adequate security.
“No warrant on the treasury shall be drawn for any claim or demand for the payment of which there is no money in the treasury raised or received for such purpose, or after the fund constituted and raised therefor has been exhausted by warrants previously drawn thereon, or by appropriations, liabilities, debts and expenses actually made, incurred or contracted for, and to be paid out of such fund.
“The common council shall not by warrant, draft or order on the treasury, or by any form of contract, create any liability or expense, for the payment of which any particular fund is constituted as above, to a greater amount in the aggregate for one year than the amount of moneys raised for and paid into such fund for the year. All warrants, drafts, orders and contracts payable under this act, out of any particular fund, and issued or made after the moneys raised for and paid into such fund shall have been exhausted by payments therefrom, or liabilities created and to be paid out of said fund, shall be absolutely void as against the corporation.
“ Before any contract, to which the corporation shall be a party, or to which any officer or board thereof shall be a party, for the construction or repair of any pavement, sewer, building or any other public work shall be valid or binding upon the city of Detroit, there shall be endorsed thereon by the controller a certificate that the money proposed to be expended under said contract is actually in the treasury or an appropriation made therefor; and it shall be unlawful for the controller to draw his warrant on account of any such contract not containing the certificate herein required.
“The commissioner of public works shall have no power to enter into any contract for and in behalf of the city of Detroit without the consent or approval of the common council; no debt or liability of any kind shall be created by or on account of said department during any one fiscal year in excess of the moneys then in the proper fund thereof, or which may have been authorized to be raised by the common council for the said year.”

Performance of these contracts was commenced and finished by relator in violation of sections 840 and 396, for the contracts had not the approval of the common council ; and, if it can be said that the tax had been levied to defray the expense thereof, it must be upon the theory that a gross sum was levied for the purpose of building intersections generally, and that such sum had not been exhausted or covered by contracts let at the time this work was let. Moreover, section 251 had not been complied with; there being no controller’s certificate that the money proposed to be expended under these contracts was actually in the treasury or an appropriation made therefor. This section contains an express prohibition of the issue of a warrant on account of “such a contract, not containing such a certificate.” The controller might well hesitate to draw a warrant in the absence of such a certificate, especially where, as in this case, there was no money for such a purpose, and no appropriation for the purpose of such payment. In the face of this provision and those contained in sections 247 and 250, quoted herein, it seems manifest that a mandamus should not issue to compel the controller to draw a warrant upon any fund to pay these bills. It is not improbable that, in view of the approval of these contracts by the board of public works, and the subsequent allowance of the claim by the council, the controller may be compelled to attach his certificate and draw his warrant after the council shall have lawfully provided a proper fund to pay for this work; but we are not called upon to decide this upon this record, as it may be open to question. Unless we are to disregard the provisions quoted, we cannot sustain relator’s contention that, having had his claim allowed, he is entitled to a warrant on the treasury, regardless of the emphatic requirement of the legislature above cited that the money must be provided and in the treasury before orders can be drawn to pay for work done, if, indeed, there is any validity in a contract executory or executed unless these provisions have been complied with, which last question we do not decide.

We are constrained to reverse the order granting the writ of mandamus, and an order denying the writ will he entered. No costs will be allowed.

Grant, C. J., and Blair, Moore, and McAlvay, JJ., concurred.


author: Per Curiam.

text:
    SCOTT v. UNIVERSITY OF MICHIGAN ATHLETIC ASS’N.
    Costs — Items Taxable — Stenosrapher’s Fees — Order of Court-—Necessity—Statute—Construction.
    Under Act No. 183, Pub. Acts 1897 (sections 363-414, 1 Comp. Laws), which, expressly repeals and supersedes all special statutes heretofore in force in the several circuits, the expense of procuring a stenographer’s transcript of testimony to use in settling a bill of exceptions is taxable as costs, though no application was made to the circuit court for an order requiring the stenographer to furnish it free of cost.
    Case by Frank W. Scott against the University of Michigan Athletic Association and others for personal injuries: On motion for retaxation of costs.
    Submitted September 15, 1908.
    (Calendar No. 22,452.)
    Denied September 29, 1908.

      Arthur Brown and EIdson R. Sunderland, for the motion.

      J. W, Bennett, contra.
   Per Curiam.

This is a motion to retax costs in this court. Appellant procured from the stenographer a copy of the testimony given at the trial for the purpose of settling a bill of exceptions, and the clerk has taxed the cost thereof over the objection made by appellees that, because no application was made to the circuit judge for an order requiring the stenographer to furnish a transcript free of cost, the expense of such transcript is not taxable as costs. See Hayes v. Livingston, 35 Mich. 371; Maynard v. Vinton, 59 Mich. 156; Thurstin v. Luce, 61 Mich. 486; City of Grand Rapids v. Coit, 151 Mich. 109. The question raised by this objection is the only one requiring discussion.

The case was tried in the Washtenaw circuit. The state of the law upon this subject prior to 1897 is shown in the note to Circuit Court Rule No. 47 (Stevens’ Ed.) Michigan Revised Rules of Practice. Act No. 183, Pub. Acts 1897 (1 Comp. Laws, §§ 363-414), entitled “An act to provide for the appointment and to fix the term of office, duties and compensation of circuit court stenographers in the State of Michigan,” contains an express provision for the taxation of such an item of expense as costs, and expressly repeals all acts and parts of acts contravening the provisions of that act. This statute supersedes the numerous special statutes theretofore in force, applies to all the circuits, and is authority for taxing the item objected to.

Motion to retax is denied, with costs.


author: McAlvay, J. Ostrander, J.

text:
    LINE v. BOARD OF ELECTION CANVASSERS OF MENOMINEE COUNTY.
    1. Elections — Primary Elections — Character as Elections.
    A primary election is not an election to public office, but is merely the selection of candidates for office by the members of a political party in a manner having the form of an election.
    2. Same — Voting Machines — Use—Statute—Construction.
    Act No. 287, Pub. Acts 1907, authorizing the use of voting machines at “all State, county, city, village, and township elections,” refers to elections at which persons are given public offices by a plurality of the votes of all the electors voting thereat, and does not authorize the use of voting machines at primary elections.
    3. Same — Primary Elections — Voting Machines — Use — Statutory Provisions.
    Since the primary election law of 1907 (Act No. 4, Ex. Sess. 1907) does not expressly provide for the use of voting machines at the primary elections therein provided, and adopts only such provisions of the general election law as are not inconsistent therewith, and voting machines cannot be adapted to the law and used to carry out all its mandatory provisions, the use of machines is not permissible at such primaries.
    4. Same — Canvass of Votes — Recount —Voting Machines — Duty of Recounting Board.
    Where, on petition for a recount of the votes cast at a county primary election, held under Act No. 4, Ex. Sess. 1907, it appears that in one precinct the votes were cast by means of voting machines, in consequence of which the inspectors are unable to send up the ballot boxes as required by law, the returns from that precinct must be rejected, there having been no legal primary held there, and the recount decided upon the remaining ballots.
    Mandamus by Charles Line to compel the board of election canvassers of Menominee county to reconvene and recount the ballots cast in said county.
    Submitted September 29, 1908.
    (Calendar No. 23,062.)
    Writ granted October 1, 1908.

      Charles Line, in pro. per.

      John E. Bird, Attorney General (Thomas Ambrose Lawler, of counsel), for the State.

      Sawyer & Waite, for respondent.
   McAlvay, J.

At the general primary election held September 1, 1908, relator was one of the three candidates for nomination for the office of prosecuting attorney by the republican party of the county of Menominee. Said primary election was held under and by virtue of an act entitled:

‘' An act relative to the nomination of party candidates for public office, and delegates to political conventions, to regulate primary elections and to prescribe penalties for violation of its provisions.” Act No. 4, Extra Session 1907.

At said primary election in the first precinct of the township of Spalding, in said county, all of the votes of all voters were cast and voted by means of a voting machine, and the record of the votes cast for all the candidates voted for at said primary was taken from said voting machine, certified and returned by the board of election inspectors of said precinct to the respondent canvassing board as the returns from said precinct, and were duly received by respondent board. Under the provisions of the primary election law, petitioner applied to said board for a recount, upon the ground that the use of a voting machine at such primary was not authorized by law, and asked that the votes as returned from said precinct be not counted, for the reason that they .were null and void, in effect making the claim that no lawful primary had been held in that precinct. Relator’s petition was received, and an order and subpoena was issued to the said board of election inspectors to produce and deliver to said respondent board the ballot boxes containing the ballots cast in said precinct at said primary election. To which order and subpoena the inspectors returned and showed that there “ were no ballot boxes used at such primary election, but that a voting machine was used for the purpose of voting and registering the vote cast by the electors at such primary election,” and therefore that they were unable to produce any ballot boxes containing ballots cast at such primary, as commanded. Respondent board then denied relator’s petition for recount, on the ground that it was bound by the certified statements of the inspectors of election, and the board has no power to inquire into the matter.

A writ of mandamus is asked in this proceeding to compel the respondent board to reconvene and recount or re-canvass the votes cast for said candidates for the office of prosecuting attorney for said county, and to hold and treat null and void the alleged returns from the precinct in question, and such further order as may be necessary to give relator full relief in the premises. The facts herein above stated appear from the record before us undisputed, and the further fact is admitted that, if the votes as returned from the precinct in dispute could not be considered by respondent board, the relator had received a plurality of all the votes cast for candidates for the office of prosecuting attorney on the republican ballot. On the part of respondents it is urged before us, first, that the use of a voting machine is permissible at primary elections; second, that if the primary law cannot be so construed as to intend the use of voting machines, yet if used in good faith, and the choice of the electors is expressed, no fraud or prejudice appearing, the use of the voting machine ought not to invalidate the election.

The first contention, as far as express enactment of the legislature is concerned, must be determined against respondents. A primary election is not an election to public office. It is merely the selection of candidates for office by the members of a political party in a manner having the form of an election. The law provides:

“At all State, county, city, village and township elections hereafter held in the State of Michigan, ballots or votes may be cast, registered, recorded, and counted by means of voting machines.” Act No. 287, Pub. Acts 1907, § 1.

The elections referred to are the elections where persons are given public offices by a plurality of the votes of all the electors voting thereat. Unless by the terms of the primary election law it can be fairly inferred that the use of voting machines was intended, or that such machines are adaptable to the requirements of such law, we must hold that they cannot be used. This law provides:

The provisions of the general election law relative to the furnishing of ballots, * * * arrangement of booths, * * * powers and duties of inspectors, manner of conducting the election, and all other matters, shall be applicable hereto except in so far as the provisions thereof may be inconsistent herewith.” Act No. 4, Extra Session 1907, § 34.

This provision by its terms expressly limits the application of the general election laws, as there are inconsistent provisions.

This was a general primary election for all political parties, held in every precinct in the State, to vote for party candidates for the office of governor and lieutenant governor, and in districts, counties, etc., where parties had decided for direct nomination of candidates, for such other candidates as might be necessary. The official primary election ballots for each party are furnished by the board of election commissioners of each county, and the law provides that they “ shall contain the name of the political party for which they are to be used.” The ballots are printed on a different colored paper for the different parties. It is also provided (section 25):

“The names under heading designating each official position shall be alternated on the ballots of each party casting at least five per cent, of the vote cast in the county or political subdivision at the preceding November election, and printed in the following manner: First. The forms shall be set up with the names of such candidates arranged alphabetically, in order according to surnames. In printing each set of tickets for the several election precincts, the positions of the names shall be changed in each office division, as many times as there are candidates in the office division in which there are the most names. As nearly as possible an equal number of tickets shall be printed after each change. In making the changes of position, the printers shall take the line of type at the head of each office division and place it at the bottom of the division, and shove up the column so that the name that before was second, shall be first after the change. After the ballots are printed, and before being trimmed, they shall be kept in separate piles, the one pile for each change of position, and shall then be piled by taking one from each pile and placing it upon the pile to be trimmed, the intention being that every other ballot in such pile shall have the names in a different position. After the pile is made'in this manner, the ballots shall be numbered consecutively on the upper right hand corner upon the front of the ballot, with a perforated line across said corner, underneath the said number, so that the corner with the number can be torn off. After that,- the ballots shall be trimmed and done up in sealed packages and distributed for use at the primary election the same as is required by law for the distribution of ballots at the general election.”

Other provisions of this law are as follows:

“Sec. 35. After the polls are open at a primary election any elector who is legally qualified and enrolled as hereinbefore provided, shall, before entering the booth, be furnished a ballot of the political party with which he is enrolled, and no other. It shall be incumbent upon him to state to the inspector who has the ballots in charge, the party ballot he desires, which, if he is enrolled as a member of the party represented by said ballot, and if his right thereto is not challenged, shall be delivered to him forthwith. Any voter enrolled as a member of any political party for which no ballots have been prepared, shall not be permitted to vote any other party ballot at such primary election. * * *
“Sec. 36. The enrolled voter after having received his ballot, shall enter a booth, and while there concealed from view prepare such ballot by making a cross in the square at the left of the names of such candidates as he may desire to vote for, but in no case for more candidates for any office than is indicated under the title of such office. He may, however, vote for any person whose name is not printed on the ballot by inserting such other name in such manner as shall make it a substitute for any name which is printed thereon or where no candidate’s name appears upon the ballot.”

Obviously all of these requirements were enacted by the legislature to prevent voters from voting for any except members of their respective parties, and' also for the purpose of giving to each candidate equal advantage with his party competitors as far as position upon the ballot is concerned. Whether for the reasons indicated or for other reasons, every enrolled voter and every candidate is entitled to have the primary held and the ballots cast and counted as provided by the law, and provision must be made by those in authority to enable the electorate to exercise the rights given them under the law. We do not think that the voting machine can be adapted to this law and used to carry out all of its mandatory provisions. Once in the voting machine, the voter may vote the ticket of any party, or for any individual of any party, and by so doing defy the prohibition of the statute. It is absolutely impossible that the requirements of law relative to the changes of position of the names of candidates upon the ballots can be carried out by the use of voting machines. In the case of Baker v. Board of Election Com’rs of Wayne Co., 110 Mich. 635, this court said, at page 639:

“We think that, whether the statute providing for a distinct place upon the ballot for each of the several tickets to be voted for was designed simply to avoid confusion, or in part to furnish information to the voter, it is a provision which should be observed in making up the ticket.”

If this can be said where the reason for the provision was uncertain, how much greater the necessity for observing the provision of the law, where it is evident the intention of the legislature was to give each candidate equal chance for the benefit of position upon the ballot.

This court has also held that the vote by a voting machine is a ballot within the meaning of the Constitution and laws, and such voting by machines under our election laws, general and special, has been held legal. But the primary law provides (section 20):

“Ballots other than those furnished by the board of election commissioners, according to the provisions of this act, shall not be used, cast or counted in any election precinct at any such primary election.”

It appearing that there is no provision of law which permits the use of voting machines at primary elections, and also that the mandatory provisions of the law cannot be carried out if such machines are used, thereby defeating the purpose and intent of the legislature, it follows that the use of a voting machine at such primary was unlawful. By the provisions of this law a primary election could only be held through and by the use of ballots. No ballots or ballot boxes were used in the first precinct of the township of Spalding. The returns made from such precinct were therefore a nullity, and could not be considered by respondent board, for the reason that no primary election was held in such precinct. Petitioner was correct in his contention, and respondent board should have discarded said alleged returns.

The writ of mandamus will issue, according to the prayer of the petition, directing said board to reconvene, recount, and recanvass the votes cast at such primary election in said county for the office of prosecuting attorney on the republican ballot, and not to consider or count the votes contained in the alleged returns from the election precinct in dispute, and to count and canvass no votes from said precinct.

Grant, C. J., and Blair, Montgomery, and Hooker, JJ., concurred.

Ostrander, J.

(concurring). It is clear that the provisions of the primary election 'law for the use of ballots at such elections cannot be observed if voting machines are employed. Many of these provisions are expressly designed to insure the character and the safety of the election, and in my opinion the one which reads that “ballots other than those furnished by the board of election commissioners, according to the provisions of this act, shall not be used, cast or counted in any election precinct, at any such primary election,” is mandatory, and is controlling of the right of the candidates and the powers of the inspectors. It appears upon the petition and answer, as it appeared to the board of canvassers when a recount was demanded, that the inspectors of election in the particular precinct counted and made return of ballots other than those furnished by the board of election commissioners, and did not count or make return of any ballots so furnished. A candidate, pursuing the remedy — the appeal — afforded by section 41 of the act, has made it appear to the board of canvassers that, notwithstanding the return of the inspectors of election, there was, in fact, no election held. There should, therefore, have been no return made, and it was error for the inspectors to return that any votes had been cast.

The return should be disregarded, and the vote of the county canvassed accordingly.


author: Hooker, J. McAlvay, J. Hooker, J.

text:
    HANEY v. MILLER.

    1. Taxation — Tax Sales — Purchase by the State — Title, Acquired.
    Under the tax laws then existing, a purchase by the State at a tax sale in 1893 resulted in the State obtaining a valid absolute title in fee.
    2. Same — State Tax Lands — Sale by State — Title Acquired.
    Upon a sale by the State of State tax lands in 1904, the purchaser obtained an absolute title subject to a condition to re-convey to the holder of the original title on his compliance with the prescribed conditions.
    3. Same — State Tax Lands — Sale by State — Deed—Construction.
    A deed from the State to a purchaser of State tax lands is to receive no other construction than a deed between private persons; the grantee is entitled to the performance of the condition therein according to its exact terms, and the State has no power to impose other conditions, either by legislation or by judicial construction.
    4. Same — Tax -Sales — Redemption—Statutes—Effect.
    Sections 140 and 141 of the tax law, prescribing conditions upon which the landowner may require a reconveyance from the tax-title purchaser, were not intended to relieve him from the obligation to pay the taxes assessed against his land, or deprive the State of the opportunity to collect all taxes standing against the land which the State has acquired by its purohase.
    5. Same — State Tax Lands— Purohase— Consideration— Duty of Auditor General.
    Under section 84 of the tax law, requiring the auditor general to sell State tax lands to the original owner or anybody else, without preference, upon payment of the State’s bid, with interest, together with the other taxes which have been returned to the auditor general “and remain a lien on such lands” at the time of the purchase, it is the duty of the auditor general to refuse to sell to any purchaser, original owner or speculator, without the payment of all taxes which have been returned and appear outstanding and unpaid or otherwise legally discharged, whether the same were originally legal or illegal, and whether or not the same could have originally been legally a “lien on the lands.” MoAlvay, Blair, and Ostrander, JJ., dissenting.
    ON MOTION TO RETAX COSTS.
    Taxation — Tax Sales — Suit to Set Aside — Costs—Statutory Provisions.
    Under section 144 of the tax law, Act No. 97, Pub. Acts 1899, a bill by a landowner against a tax-title purchaser and the auditor general to redeem on payment of less than the amount paid by the tax purchaser, on the ground that certain of the taxes were illegal and void, is in effect a bill to set aside the sale as to the taxes claimed to be illegal, upon which no costs are awarded.
    Appeal from Allegan; Padgham, J.
    Submitted November 19, 1907.
    (Docket No. 62.)
    Decided July 1, 1908.
    Retaxation of costs granted October 1, 1908.
    Bill by Elijah Haney against Archie T. Miller, James B. Bradley, auditor general, and Elmer E. Gable, county drain commissioner, to redeem from a sale of land for taxes, and to quiet title. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Taggart, Denison & Wilson, for complainant.

      Brown & Farley, for defendant Miller.

      John E. Bird, Attorney General (Charles W. McGill and George L. Hauser, of counsel), for defendant Auditor General.

       Rehearing denied December 21, 1908.

   Hooker, J.

The land regarding which this cause arose is the northeast quarter of section 26, township 4 N., range 11 W. The west half of this quarter section was returned delinquent for a full line of taxes assessed thereon for the year 1885, together with reassessed drain taxes for 1881, 1882, 1883, and 1884. None of these were paid, and the land was bid in to the State in 1887. The entire quarter section was returned delinquent for a full line of taxes assessed thereon in the year 1891, and was bid in to the State at the annual sale in 1893. They were .held as State tax lands without redemption until June 21,1904, when they were sold as such to Archie Miller, who received the usual auditor general’s deed dated August 16, 1904. Notice, under Act No. 229, Pub. Acts 1897, was duly served, when complainant, who owned- the original title and was in possession, tendered the amount of the tax of 1891, with interest, costs, and penalties thereon, and demanded a reconveyance, claiming that prior taxes were void and refusing to pay them. In short, of $845.40, beside sheriff’s fees, claimed to be due by the terms of the statute, complainant tendered about $90, and a reconveyance being refused, he filed this bill to redeem and remove a cloud upon his title.

As we understand complainant’s claim, it is that the taxes assessed in 1885 were illegally assessed, unlawfully returned, and unlawfully sold; that the auditor general was not authorized to require their payment, and that if defendant saw fit to pay them, he did so at his peril, and must permit the sum so paid by him to be eliminated in the computation of the amount to be paid by him for a reconveyance under the statute. It appears to be admitted that the drain tax for 1880 was reassessed in the years 1881, 1882, 1883, and 1884. The land was returned delinquent for the regular taxes of 1885 together with the reassessed drain taxes mentioned, when they were bid in to the State at the sale in 1887.

The drain proceedings were not produced, it being shown that the files and records were lost. A witness testified to his examination of the matter; and that the proceedings were void, and that he so informed complainant. He stated certain irregularities on which he based his opinion. It was also shown by oral testimony that contracts were never let and that the drain was never constructed. Upon this it was claimed that the assessment was void and was an unsubstantial foundation for subsequent proceedings. It was also claimed, we understand, that the law did not authorize the reassessment or the return of drain taxes, as it is claimed that the policy of the law then in force did not impose the duty of collection upon the auditor general, though it did require a return of delinquent drain taxes to him for the information of nonresident owners. It is contended, therefore, that the purchaser of the State’s title paid at his peril the item of the drain tax, upon the grounds, first, that the proceedings were irregular and void; second, that the auditor general had no right to include such a tax, i e., a drain tax, in the price required under section 84 of the tax law. (1 Comp. Laws, § 3907, as amended by Act No. 262, Pub. Acts 1899.)

In our opinion, this contention is answered by the statutes. It is not denied that these lands were bid in to the State in 1887 and 1893. Whatever may be thought of the validity of the purchase in 1887, that in 1893 resulted in the State obtaining a valid absolute title in fee, as we have often held. See Griffin v. Kennedy, 148 Mich. 583. At the time the State took the title in 1893, sections 140 and 141, under which the complainant makes claim to any standing in this case, were not a part of the tax law, and he was as completely divested of title as though he had conveyed to the State by deed. The State sold the land in 1904. As the law then stood, the State parted with the absolute title, but it was subject to a condition, and this condition inured to the benefit of this complainant, for it gave him a right to repurchase his lost land, or to redeem it from the purchaser, as has been sometimes said, and it is unimportant which term is used, for the substance is that the State sold its land subject to a condition to reconvey, not to it, but to its grantor, the original owner, when both the grantee and such grantor should severally perform the prescribed conditions. As has been recently said, this deed is to receive no other construction than a deed between private persons; the grantee is entitled to the performance of the condition according to its exact terms, and the State has no power to impose other conditions. So far as the injustice of the thing is concerned, there is no difference between the imposition of additional conditions against one or the other of the parties by legislation and the same thing by judicial construction, if such is clearly the effect. That is what we are asked to do. We are asked to say that, while the statute plainly limits the obligations of the State’s grantee to convey to cases where the adverse party has become entitled to a reconveyance, has paid or tendered to him the purchase price with certain definitely specified costs, penalties, etc., he may be compelled to take less, and this upon the theory that if the auditor general has exceeded the requirements of the law as to the amounts charged, such excess may be disregarded, and the tax-title purchaser must lose such excess unless he can prevail upon the State to make him good, and itself lose such excess, which may be a morally just claim against him who would redeem, even though not legally enforceable by reason of technical objection, and notwithstanding the fact that sections 140 and 141 were not intended to relieve the original owner from such obligations or to deprive the State of the opportunity to collect all taxes standing against him which it had (in this case) acquired by its purchase, which purchase had resulted in its obtaining the land in fee simple absolute, a legitimate thing for the State to attempt.

In its desire to relieve owners of land from oppression, the State has given this opportunity as a shield. It is now sought to use it as a sword to wring from the State something that it had secured, and, in my opinion, in tended to preserve.

Such a right cannot rest upon the language of section 141 (Act No. 226, Pub. Acts 1905) which requires from one who would repurchase, payment—

“To the owner of such tax deed or to the register in chancery of the county in which the lands are located, of the amount paid upon such purchase, together with one hundred per cent, in addition thereto, and the lawful fees or costs for such personal service, or substituted service, which fee shall be the same as provided by law for service of subpoenas or for orders of publication, or the cost of such service by registered mail, and the further sum of five dollars for each description, without additional cost or charge.”

In the face of this unambiguous condition, without which the original owner would have no rights whatever, it is contended that the condition stated does not mean what it says, but means that a reconveyance must be made upon tender of what the purchaser ought to have paid, instead of what he did pay. The legislature might have made such a condition but did not.

What of plausibility there is to this claim seems to rest upon section 84, which gives authority to the auditor general to sell the State’s absolute title to the original owner or anybody else without preference, upon payment of the amount of the State bid with interest, etc., “together with the other taxes which have been returned to the auditor general and remain a lien on such lands at the time of the purchase so made, with interest,” etc. It is not said that the words “ and remain a lien,” etc., limit the amount that the auditor general should charge. Of this we may say that when we consider the evident intent of the State to require payment of all previous delinquencies, the regular-: ity of which could not usually be determined from the records, — and if they could, only by an expenditure for legal’ counsel of a sum exceeding the claim, — and the passage of said act at a time prior to the enactment of sections 140 and 141, it seems obvious that the legislature intended to sell these State tax lands only upon condition that its preexisting claim for taxes against the land sold, regular or irregular, valid or invalid, could be closed out at par. We can hardly imagine an intention to unsettle the title by subjecting the purchaser to unnecessary uncertainty, loss, and expense by making him take the title subject to the unnecessary obligation of litigating such a question as this, or of making it incumbent upon the auditor general to ascertain whether returned taxes have flaws in them, and deciding whether the State’s lien has been lost or never acquired. We have an intimation that such cannot have been the intention, in the decision of Munroe v. Winegar, 128 Mich. 309. See, also, Hall v. Miller, 150 Mich. 300.

It is contended that these drain taxes were not a valid lien on the land, and therefore the purchaser was not compelled to pay them under that portion of section 84 obligating the purchaser to pay “the other taxes which have been returned to the auditor general and remain a lien on such lands.” Another answer to this contention may be suggested, viz., the language above quoted does not apply to taxes which, like these drain taxes, had ripened into a title held by the State. The purchaser’s obligation to pay such taxes arises, not from the above quoted language, but from the preceding language of section 84, reading as follows:

“Any person may purchase any State tax lands or any State bids, at any time except during the annual tax sale at the county treasurer’s office, by paying therefor to the auditor general the amount for which the same was bid off to the State, with interest on the same at the rate of one per cent, per month.”

This language construed, as it should be, in harmony with the preceding sections (note particularly sections 70, 78, and 80) requires the purchaser to acquire all tax titles held by the State, and to pay the amount of all bids that the State had made therefor, and in this case it prevented the auditor general from selling to said purchaser the title acquired by the State for the nonpayment of taxes for the year 1891, unless he purchased the title acquired for the nonpayment of the tax of 1885, and the drain tax in question. Nor do we think this language authorized the auditor general to investigate and determine that any part of the tax for which the land was sold was invalid. He was required to exact “the amount for which the same was bid off to the State, with interest.”

Again, the remedy through cancellation may possibly render redress to the repurchasing owner in proper cases,, though we do not decide that question.

Recurring to section 84, we have seen that these drain taxes were returned, as required by law that they should be. Section 84 requires the payment of all “other taxes which have been returned to the auditor general, and remain a lien on such lands at the time of the purchase.” Many taxes returned to the auditor general may be paid, others may be cancelled, others may be set aside by the-courts, in all of which cases the auditor general would have notice. Doubtless this statute was intended to exclude such from the computation, but it does not follow that we must ascribe an intention so improbable as that urged, thereby creating an unnecessary confusion in the policy of the State to realize upon its tax claims, — a large proportion of which are open to the suspicion of irregularity, — and making the deficit arising from enforced collection larger than ever. We may take judicial notice of the fact that through ignorance, carelessness and design, many people do not pay their taxes, and there is reason to believe that the expense of attempting to collect them approaches in amount the total sum collected, and the claim is often made that it exceeds such collections. It goes-without saying that the deficiency must be made up by good citizens, who not only pay their own taxes, but are thus compelled to pay those of the delinquents as well. The tax department and legislature have been persistent in their efforts to better this condition, and they have been frustrated by their inability to obtain a strict enforcement of provisions apparently plain.

Courts are naturally and properly reluctant to deprive landowners of property by enforcing tax claims where there is a reasonable ground for avoiding it.

The statute, sections 140 and 141, was passed to relieve the taxpayer by giving him a last chance to save his land, it apparently being thought that, by requiring notice and giving an opportunity to repurchase, there would be little excuse for an owner losing his land through inattention.

It was the duty of the auditor general under section 84 to refuse a sale to any purchaser, whether original owner or a speculator, who should refuse to pay all taxes which had been returned and appeared on his books as outstanding and unpaid, undischarged, uncanceled, or in some other way legally invalidated taxes and entries.

The decree should be affirmed, with costs.

Grant, C. J., and Montgomery, Moore, and Carpenter, JJ., concurred with Hooker, J.

McAlvay, J.

The record shows that complainant is the owner and has been in possession of the land in dispute for more than 15 years; that said land, having been sold to the State, December 4, 1893, for the taxes of 1891, returned delinquent, was offered for sale as State tax land. May 4,1904, but was not sold; that on August 16th following, it was sold by the State to defendant Miller; he was required to pay the sum of $382.45 for 1885 taxes which had been returned to the auditor general against the west half of said land, which, added to $37.75, the amount due for the taxes of 1891, amounted to $420.20; upon payment of which a deed was issued; that on December 13, 1904, Miller caused to be served upon complainant the statutory notice for reconveyance; that complainant, claiming that the taxes for 1885 were void and no lien against said land, tendered defendant Miller the amount paid by him for the taxes of 1891 together with 100 per cent, and fees fixed by statute, and demanded a reconveyance, which was refused. Complainant then filed this bill of complaint, praying that the sale of said land for the taxes of 1885 be declared void and set aside, and said Miller be decreed to have acquired no rights thereunder, and that upon payment of the amount tendered he be decreed to convey the premises to complainant. He also asked for an injunction, pendente lite, and for general relief.

Defendant Miller and the auditor general answered the bill of complaint. The bill was taken as confessed by the other defendant who is drain commissioner of the county of Allegan, and who appears to be only a nominal party. The case was heard in open court. Defendants offered no proofs. After the hearing, the court made a decree denying relief to complainant, and dismissing his bill of complaint. Complainant has appealed.

The taxes called in the record and in this opinion taxes of 1885, the validity of which are in dispute, were in fact mostly reassessed ditch taxes for the years 1881, 1882, and 1883 for the Hooker Swamp drain, and for 1884 for the Shook drain; also a small sum for general taxes for 1885. These proceedings relative to the Hooker drain were had under the township drain law of 1875, as amended in 1877. It would be of no benefit to state in detail the provisions of this law. The Shook drain proceedings were under the law of 1881. The records of the proceedings to lay out both of these drains were not found or produced at the time of the trial and were shown to be lost. It was proved by the testimony of Mr. Denison that he saw them and they were examined by him with great care with special reference to the validity of these proceedings and from this testimony the court is satisfied that these records showed no lawful drains were ever laid out or established. The evidence also establishes that these drains were never dug, and no contracts were ever let for digging. them. Under the township drain law of 1875, as amended, the sale of lands for nonpayment of drain taxes was made by the county treasurer, who gave deeds on such sales, subject to all general taxes, "and subordinate to State deeds for nonpayment of taxes.” This law contained no provision for reassessment, and no provision for return to the auditor general. The drain law of 1885, which provided for reassessment of drain taxes assessed under the law of 1881, made no provision for the reassessment of taxes levied under the township drain law of 1875, as amended, but the law of 1881, which repealed all former acts, provided that all proceedings should be carried forward and completed under the acts mentioned, which included the law of 1875, as amended in 1877. The action, therefore, of the board of supervisors in ordering this Hooker drain tax reassessed and all proceedings as to the return to the auditor general and sale were without authority of law and void.

It is urged that, by reason of the limitation of the act of 1885, providing "that any drain that has been established for ten years shall be conclusively deemed to have been regularly established,” complainant is estopped from questioning the legality of these drains. The evidence shows that the Hooker drain was never established legally on paper; that neither the place of beginning nor the terminal were fixed; that no width was given, which the law required. As already stated, these ditches were never dug or a contract let for digging. The statute refers to an actual drain established and dug on the face of earth. Apart from the question of the establishment of this Hooker drain, is the question of a reassessment, for which there was no provision of law whatever. The sale relied on by defendants included these taxes as reassessed. The necessary conclusion is that the Hooker drain taxes were invalid and that there was no valid sale of the land for these taxes reassessed in 1885. The law under which the Shook drain proceedings were had was repealed by the drain law of 1885, under the provisions of which these drain taxes were authorized to be reassessed and such action was attempted by the board of supervisors. Such action, however, could not give validity to this drain tax if it was illegal. The undisputed evidence in the case is that no contract was ever let and no ditch was dug. The proceedings which were had, therefore, never amounted to the establishment of a drain, and never warranted the original assessment of $33.95 against this land. The reassessed tax was therefore invalid.

The sum of $2.83, general taxes assessed for 1885, appears to be valid. This was included in the amount $127.06 for which the sale was made in 1887. This court has repeatedly held that a sale is void if a part of the tax is invalid. Case v. Dean, 16 Mich. 12; 2 Cooley on Taxation (3d Ed.), p. 955; Silsbee v. Stockle, 44 Mich. 561; Burroughs v. Goff, 64 Mich. 464; Boyce v. Sebring, 66 Mich. 210.

It is urged that complainant by reason of his laches cannot dispute the validity of these taxes. He purchased the land in 1885 for which he received a warranty deed excepting “certain drain tax claims.” He at once consulted Taggart & Wolcott, his attorneys, and was advised that these drain tax claims were invalid. He has been in possession continuously since his purchase, and the first claim or notice of claim or demand in regard to the matter is the notice of defendant Miller given under the tax law, and necessary prior to instituting proceedings for possession as purchaser under a tax deed. Complainant has never had his day in court to litigate the validity of these taxes. The sale was not a chancery sale as required under the present law. There is no reason why an owner in possession should institute proceedings against a claim which he is advised was invalid and which no person is asserting. O’Connor v. Carpenter, 144 Mich. 240. See, also, G. F. Sanborn Co. v. Johnson, 148 Mich., at page 409.

The main contention of the defense in this case, briefly stated, is that Miller, as purchaser of the title from the State for the 1891 tax, was, under section 84 of the general tax law, required to pay the other taxes of 1885 returned to the auditor general, and that, to obtain a reconveyance, complainant is required to pay the amount paid by defendant on such purchase from the State, together with 100 per cent, and fees and charges provided by law. If this contention is correct, complainant has no standing in court.

Section 84 of the general tax law, under which payment of other taxes returned is required, reads:

“Any person may purchase any State tax lands * * * by paying therefor to the auditor general the amount for which the same was bid off to the State, with interest, * * * together with the other taxes which have been returned to the auditor general and remain a lien upon such lands at the time of the purchase so made, with the interest,” etc.

The clear meaning of this statute is that the tax-title purchaser must pay the other taxes returned to the auditor general, and which remain a valid lien upon such lands at the time. While — except perhaps when appearing void upon the face of the record — the auditor general could not be called upon to determine as to whether the lien of the other taxes was valid or not, it certainly cannot be said that the legislative intent was that the owner of land who had been guilty of no laches, who had disregarded the provisions of no statute, and who had- had no day in court, or opportunity to be heard upon the validity of the lien of such other taxes, should be compelled to pay without question a tax that never was a valid lien upon his land and which had never been asserted as such, because a tax-title purchaser had been required to pay the same as a condition of his purchase from the State. The reasoning upon which this contention is based is that the State, having acquired the title to the property, can attach such conditions as it sees fit, to be performed by the owner upon his redemption (repurchase) from the purchaser, and having done this the matter is foreclosed.

It is not necessary to discuss to what length the State might go in the imposition of terms for reconveyance. It has attached such condition, and the only possible construction of that condition is that it required the payment of other taxes which were a valid lien against the lands. Holding that only valid liens were included in the statute, it follows logically that the owner cannot be required to pay double the amount the purchaser paid for taxes not a valid lien upon his lands, unless he has waived all rights, or is estopped from asserting its invalidity.

The claim is made that such a construction of this statute is a wrong against the purchaser, and will tend to deter the collection of delinquent taxes. As far as the purchaser is concerned, he can lose nothing except the use of his money. If the tax is not a valid lien his payment is returned. When he buys he should use ordinary diligence, and slight examination will disclose fatal errors. This argument is not new. It has been made in every case by the tax-title purchaser where there was a probability that he would be held to have made a bad investment. Considering its effect upon the State, it is only necessary to say that the possibilities under the present law for similar conditions to occur are very small, and that, with the exercise of reasonable diligence and industry on the part of the multitude of employés in the tax collecting department, they would be eliminated entirely.

Complainant by his bill and proofs made out a case entitling him to equitable relief. The taxes of 1885 were not a valid lien upon this land at the time of defendant Miller’s purchase. The sale for said taxes was a void sale. The entire amount thereof except $2.83 was absolutely void and complainant is entitled to have the same so decreed. All the parties in interest are before the court, and such decree can be now made as will dispose of the entire controversy. It will be unnecessary to order this amount of the 1885 assessment which is a valid tax to be returned for reassessment, but the same will be paid by complainant to defendant Miller with such interest if any as may lawfully be added to the same if returned for reassessment. This amount together with the amount tendered by complainant to said defendant Miller will be decreed to be paid him by complainant, and thereupon said Miller to reconvey all his interest in the lands in question to complainant. The auditor general will be decreed to réfund to defendant Miller the money paid on his purchase for such portion of the 1885 taxes as are by this opinion declared to be invalid. The decree of the circuit court should be reversed and a decree entered in this court in favor of complainant in accordance with this opinion, with costs of both courts against defendant Miller.

Blair and Ostrander, JJ., concurred with McAlvay, J.

ON MOTION EOR RETAXATION OE COSTS.

Hooker, J.

The bill was filed to remove a cloud from title to land, and to redeem from a tax sale. Drain taxes were assessed in the year 1880, and reassessed in 1881, 1882, 1883, and 1884, and the land was in 1885 returned delinquent for said taxes and for the regular taxes of 1885. It was bid in to the State for the same in 188?. In 1904 the lands were sold to defendant. Complainant, after notice served as required by section 140, Act No. 229, Pub. Acts 1897, seasonably tendered a sum, demanding a re-conveyance, but this was refused. Thereupon the bill was filed claiming that the purchase was a cloud on complainant’s title, and claiming a right to redeem. His bill was dismissed in the circuit court, without costs. Upon appeal, the decree was affirmed, with costs, which manifestly were limited to the costs of this court.

Defendant’s counsel contended that he should have recovered costs below, and that section 144 of the tax law had no application to a case when the bill was filed for another purpose than to set aside for delinquent taxes. To this complainant’s counsel replied that defendant could not raise the question as he had not appealed, and must therefore be content to have the decree affirmed, and this was manifestly true. No allusion was made by counsel to the question of costs in this court, and neither of the opinions discussed the subject, though both awarded costs. Complainant now contends that defendant Miller is not entitled to costs of this court.

The suit was in effect a suit to set aside these drain taxes, and the auditor general was a necessary party under section 144, and he is not entitled to costs, and it may be that, were this all there is to the suit, defendant Miller could not be allowed costs, but it is not.

The case involves the further question of the complainant’s right to redeem from the sale for the regular taxes of 1885, the claim of invalidity of which taxes and sale is inconsistent with the fact of complainant’s tender. But as his right to repurchase depended on the sufficiency of the amount tendered, and this in turn depended on the validity of the purchase by the State, we are of the opinion that it is within the letter of the statute which precludes costs against either party in “all actions or proceedings instituted for the purpose of setting aside any sale or sales for delinquent taxes on lands.”

• The decree dismissing the bill will be amended by substituting the words “without costs ” in place of the words “with costs.”

Grant, C. J., and Blair, Montgomery, Ostrander, and McAlvay, JJ., concurred.


author: McAlvay, J. Hooker, J.

text:
      In re CORBY’S ESTATE.
    1. Appeal and Error —Review—Question of Fact —ConcluSIVENESS.
    A finding upon a question of fact which there is evidence to support is not reviewable.
    2. Wills — Legacies—Speoifio or General — Construction.
    The legacies created by a bequest to certain legatees of $2,000 each “ if at the time of my death I am possessed of that much personal property,” are general legacies.
    3. Same — Speoifio Legacies — Residuary Clause — Effect.
    The specific character of a devise of houses and land and a gift of household goods is not affected by a general residuary clause in the same paragraph in favor of the same heir.
    4. Statutes — Construction—Correlated Statutes. .
    In construing a statute, the legislative intent may often be ascertained from the provisions of the sections in the immediate connection in which it occurs.
    5. Wills — Expenses of Administration — Diminution of Legacies.
    A will provided first, for the payment of testator’s debts and funeral expenses; second, $2,000 each to certain named persons, if at the time of testator’s death she should be possessed of that much personal property; third, certain houses and land, and her household furniture to her brother, whom she also made residuary legatee. Held, that under section 9292, 3 Comp. Laws, and correlated sections, the expenses of administration were chargeable only upon the personal property, and that the devisee and legatee of the houses and land and household furniture could not be charged with any part of such expenses until the remaining personal property was exhausted.
    Error to Wayne; Donovan, J.
    Submitted January 8, 1908.
    (Docket No. 10.)
    Decided October 5, 1908.
    Thomas W. Corby presented his final account as executor of the last will and testament of W inifred Corby, deceased. The account was disallowed in part, and the executor appealed to the circuit court. There was judgment affirming the order of the probate court, and the executor and certain legatees bring error.
    Reversed.

      Orla B. Taylor and P. J. M. Hally, for appellant Corby.

      Lodge, Trevor & Brown and Thomas J. Mahon, for other appellants.
   McAlvay, J.

Winifred Corby died testate, March 23, 1903. Appellant, her brother, a beneficiary under the will, was named and appointed as executor. He was also appointed special administrator by the probate court.

The portion of the will material to this controversy, after making provision for the payment of all debts and funeral expenses, reads as follows:

“I give to my beloved nephews, Martin Corby, Sidney Corby and Reuben Corby, and to my niece Edna Corby, now married, the sum of two thousand dollars ($2,000) each, if at the time of my death I am possessed of that much personal property.
“I give to my beloved brother, Thomas Corby, of Grosse Pointe, Michigan, my double brick houses in the city of Detroit, located at No. 83 and No. 85 Winder street, my household furniture and all the rest of my property of every kind and nature whatever.”
As such executor and administrator Thomas W. Corby filed his final account, showing as follows:
Receipts........ ..$8,351 28
Disbursements and expenses...................... 2,494 11
Balance.....................................$5,857 17

This final account contained an item of $500 for ser. vices as executor and special administrator. The probate judge allowed the final account, except one item: “Amount paid on real estate 1903, $191.36,” and found balance in executor’s hands to be $6,048.58, and of the administration and disbursements charged three-fifths, $1,381.65, to Thomas W. Corby and two-fifths, $921.10 to the four legatees. Thomas W. Corby appealed to the circuit court, where the case was tried before the court without a jury, and a finding was made affirming the order and judgment of the probate court. Upon this finding a judgment was entered. Both parties to the controversy have taken writs of error to this court.

Two questions are presented for consideration:

(1) The four legatees, under the paragraph of the will first above quoted, allege that the court erred in allowing the executor and special administrator $500 for services rendered.

(2) Thomas W. Corby alleges that the court erred in charging three-fifths of the debts and expenses of administration upon the real estate.

1. The contention of the four legatees is founded upon the claim that the executor agreed to serve without compensation, in consideration that they would consent to his appointment. There was a dispute in the testimony as to whether any such agreement was made. The court below passed upon the question and allowed the charge. The question was one of fact, and there was evidence to support the finding of the court. Morton v. Johnston, 124 Mich. 561. Such action is not reviewable. Mower’s Appeal, 48 Mich. 441. See, also, Wisner v. Mobley’s Estate, 70 Mich. 271.

2. The legacies to the nieces and nephews were general legacies. The devise of the land to the brother was specific, and the gift of household furniture was a specific legacy. The general residuary clause, “ of all the rest of my property of every kind and nature whatever,” added to this paragraph, does not affect the character of the devise and .legacy to him. Relative to the liability of testate estates for debts and exDenses of administration, our statutes provide:

“All the estate of the testator, real and personal, shall be liable to be disposed of for the payment of his debts, and the expenses of administering his estate. * * * ” Section 9289, 3 Comp. Laws.

Another section makes provision against which part of the estates of all deceased persons such claims shall be first chargeable.

“The personal estate of the deceased, including all growing crops of grain, grass, and fruit not disposed of by special mention in the will of the deceased and by said will plainly directed to pass with the real estate, which shall come into the hands of the executor or administrator, shall be first chargeable with the payment of the debts and expenses; and if the goods, chattels, rights and credits in the hands of the executor or administrator shall not be sufficient to pay the debts of the deceased and the expenses of administration, the whole of his real estate, except ,the widow’s dower, or so much thereof as may be necessary, may be sold for that purpose by the executor or administrator, after obtaining license therefor, in the manner provided by law.” Section 9353, 3 Comp. Laws.

Further provision is made, in certain cases, for such payment out of the estate, real or personal, given by will.

“ The estate, real or personal, given by will to any devisees or legatees, shall be held liable to the payment of the debts, expenses of administration, and family expenses, in proportion to the amount of the several devises and legacies except that specific devises and legacies, and the persons to whom they shall be made, may be exempted, if it shall appear to the court necessary, in order to carry into effect the intention of the testator, if there shall be other sufficient estate.” Section 9292, 3 Comp. Laws.

As we understand the opinion of the trial judge, he construed the section last above quoted as authorizing the judgment of the probate court, which he accordingly affirmed. Counsel for the four legatees insist that such construction was the proper one, and rely solely upon that section for an affirmance of the judgment of the circuit court. By the statute first quoted (section 9289) the law is declared to be that the entire estate of a deceased person, testate or intestate, may be subjected to the payment of his debts and expenses of administration. Section 9353 as clearly provides that the personal estate of the deceased shall be first chargeable with the payment of such debts and expensas, and this is a general provision of statutory law. This had been the law in this State at least since 1846. It was amended in 1875 by inserting the words “including all growing crops of grain, grass and fruit not disposed of by special mention in the will of the deceased, and by said will plainly directed to pass with the real estate,” which extended the property included and was not a restrictive amendment. Act No. 136, Pub. Acts 1875. It is urged that section 9292 limits the application of section 9353 to personal property not disposed of by will, which shall be first chargeable with the payment of debts and expenses of administration, basing such construction upon the amendment of 1875 above quoted.

In construing a statute, the legislative intent may often be ascertained from the provisions of the sections in the immediate connection in which it occurs. Section 9292 is closely related to section 9289, already quoted, and deals with the same subject-matter. The sections intervening provide:

“ Sec. 9290. If the testator shall make provision by his will, or designate the estate to be appropriated for the payment of his debts, the expenses of administration or family expenses, they shall be paid according to the provisions of the will, and out of the estate thus appropriated, or so far as the same may be sufficient.
“Sec. 9291. If the provision made by the will, or the estate appropriated, shall not be sufficient to pay the debts, expenses of administration, and family expenses, such part of the estate, real or personal, as shall not have been disposed of by the will, if any, shall be appropriated according to the provisions of the law for that purpose.”

The sequence of these sections clearly indicates the legislative intent contained in all of them. First and fundamentally, the entire estates of all testators (except statutory exemptions) are charged with their debts and expenses of administration; that these charges, if provided for by will, shall be paid accordingly, so far as the estate appropriated may be sufficient; that if the provision made by will shall not be sufficient, “ such part of the estate, real or personal, as shall not have been disposed of by the will, if any, shall be appropriated according to the provisions of the law for that purpose.” Then follow the provisions of section 9292: cc The estate, real or personal, given by will to any devisees or legatees, shall be held liable to the payment of the debts, * •* * in proportion to the amount of the several devises or legacies,” etc.

The first inquiry which arises is, When, under this statute, are devises and legacies subjected to these charges? The answer is, only when no estate of the testator, real or personal, remains undisposed of by his will; and then the burden falls upon the general legacies and devises. In order to carry out the intent of the testator, if there shall be other sufficient estate, specific devises and legacies are exempt. This is our construction of this statute, and it is the only construction which will give it effect and harmonize it with the provisions of section 9353, which makes the personal estate of a decedent first chargeable with debts, etc. We think the sections quoted by their express terms recognize the provisions of this section, in that, before provision is made for charging devises and legacies with this burden, the estate not disposed of by will, real or personal, shall' be appropriated for that purpose according to the provisions of law, which provisions are contained in section 9353. The case of North v. Tuscola Probate Judge, 84 Mich. 69, relied upon by appellees, is distinguishable from the case at bar; in that case the entire estate being specifically devised and bequeathed. The application of this construction of section 9292 to the case at bar defeats the contention of the counsel for the four general legatees. The intent of the testatrix is clear that the specific devise and legacy to her brother was to be kept intact, if possible. She recognized, as appears by the terms of her will, that her personal estate, after paying her debts and legal charges, might not be sufficient to pay the general legatees in full, having recognized first that her estate was chargeable with her debts and other expenses.

Our conclusion is that the court was in error in charging any portion of these debts and expenses of administration against the specific devise and legacy of Thomas W. Corby in order to carry into effect the intent of the testatrix.

The judgment of the circuit court is reversed, and the cause is remanded to the circuit court for further proceedings in accordance with this opinion.

Blair and Moore, JJ., concurred with McAlvay, J.

Hooker, J.

Thomas Corby appeals from an order of the probate court imposing upon him, as devisee of specified property, the obligation of paying a proportionate part of the expenses of the administration of the testatrix’s estate, to the relief of general legatees, who would otherwise be called to pay them. The provisions of the will are as follows:

“ I direct that my just debts and funeral expenses shall "be first paid.
“ I give to my sister, Teresa Corbett of Detroit, as an evidence of my remembrance of her and forgiveness of her unkindness, my clothing, sealskin sack and my jewelry, worth about three hundred dollars.
“ I give to my beloved nephews, Martin Corby, Sidney Corby and Reuben Corby, and to my niece, Edna Corby, now married, the sum of two thousand dollars ($2,000) each, if at the time of my death I am possessed of that much personal property.
I give to my beloved brother, Thomas Corby, of Grosse Pointe, Michigan, my double brick houses in the City of Detroit, located at No. 83 and No. 85 Winder Street, my household furniture, and all the rest of my property of every kind and nature whatever.”

The legatees have appealed from the allowance to Thomas Corby, the executor, of the sum of $500 for services, etc. It is a rule of the common law, prevailing throughout this country, that specific legacies ordinarily take precedence over general legacies, and that the latter abate, where there are not sufficient assets to pay both. See 2 Williams on Executors (7th Am. Ed.), p. 661 et seq.; 1 Am. & Eng. Enc. Law (2d Ed.), p. 45 et seq. This is upon the ground that it is to be presumed that the testator so intended, or, as is stated in effect in the latter authority, from the fact that a specific legacy is in its essence the gift of a particular article. Specific legatees, at the time of payment or delivery, are entitled to receive their legacies exonerated from all charges not incident to the subject-matter of the bequest.

This rule is subject to the qualification that a contrary intent may be shown by the will, in which case such intent will be given effect, but, in the absence thereof, the special legacy will be protected at the expense of general legacies, not only against debts, but expenses. Our statute (3 Comp. Laws, § 9292) was, in my judgment, intended to change the rule stated, and under it the presumption must be the contrary of that which previously existed under the common-law rule. Succinctly stated, the difference is this: Formerly the mere making of a specific bequest carried the presumption of an intent that general legacies were subject to abatement in its favor. Under the statute the opposite presumption must prevail, and we see no inconsistency between such an interpretation of section 9292 and the provisions of the other sections, which require the payment of debts and expenses from personal property, ordinarily.

The statute (section 9292) is as follows:

“The estate, real or personal, given by will to any devisees or legatees, shall be held liable to the payment of the debts, expenses of administration, and family expenses, in proportion to the amount of the several devises or legacies, except that specific devises and legacies, and the persons to whom they shall be made, may be exempted, if it shall appear to the court necessary, in order to carry into effect the intention of the testator, if there shall be other sufficient estate.”

Under this, no legatee can escape contribution to necessary expenses, where there are insufficient assets to otherwise meet them, unless such specific legatee may be relieved by reason of a necessity to exempt him to carry into effect the intention of the testator. In this case such an exemption is necessary, in my opinion. Not only is there a devise of specific property in its nature indivisible, but the general bequests ' show an intention that they should not be paid at the expense of the specific legacy. It is only in case of there being personal property in the estate that those bequests can be paid. This indicates that it was the intention of the testatrix to give the messuage to her brother intact; and, if there should be personal property left at the settlement of the estate, it should be applied upon them. At first blush it may appear that there is an injustice in requiring these legatees to pay all of the expenses of settling an estate of which the brother is the principal beneficiary, but we do not know the circumstances which led the testatrix to think differently. At all events, it is her judgment of that subject, and not ours, that should govern; and, when we find that she so intended, we have only to give effect to her intention. I concur in the opinion that the allowance to the executor should not be disturbed.

We are constrained to reverse the order made by the probate court, and direct the entrance of an order relieving Thomas Corby from the payment of any portion of the account allowed, and imposing the burden upon the general legacies. It is only in case of inadequacy of the other assets that any portion can be imposed upon the devisee, and we understand that there is no such claim.

Ostrander, J., concurred with Hooker, J.