text:
    FOWLES v. HAYDEN.
    1. Malicious Prosecution — Obstructing Highway — Probable Cause — Sufficiency of Evidence.
    In an action against a highway commissioner for malicious prosecution in causing plaintiff’s arrest for obstructing a highway, the testimony tended to show that defendant laid the facts before the prosecuting attorney, and acted on his advice in swearing to the complaint, without malice and in good faith. The willful obstruction of a highway is made a penal offense by 2 Comp. Laws, § 4157, and it is the commissioner’s duty to keep it free from obstructions. The validity of the proceeding laying out the highway in question had been sustained by the circuit court. Held, sufficient to justify a judgment for defendant, on the ground that he had probable cause to believe plaintiff guilty of an offense, even if a criminal prosecution will not lie for obstructing a highway.
    2. Same — Evidence—Admissibility.
    In an action against a highway commissioner for maliciously prosecuting plaintiff for obstructing a highway, an adjudication of the circuit court sustaining the validity of the highway was competent to show good faith, where brought to defendant’s knowledge, though plaintiff was not a party thereto.
    Error to Benzie; Chittenden, J.
    Submitted January 30, 1902.
    Decided March 4, 1902.
    Case by John Fowles against John S. Hayden for malicious prosecution. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      John W. Wilson and Nevius & Louiselle, for appellant:
    It is not a crime to obstruct highways. 2 Comp. Laws, § 4157; Pettinger v. People, 20 Mich. 336; Thurston v. Wright, 77 Mich. 96 (43 N. W. 860).
    Lack of probable cause is evidence of malice. Carson
      v. Edgeworth, 43 Mich. 241 (5 N. W. 282); Hamilton v. Smith, 39 Mich. 222; Brand v. Hinchman, 68 Mich. 590 (36 N. W. 664, 13 Am. St. Rep. 362).
    Good faith and honest motives, in the absence of probable cause, are no defense. Wilson v. Bowen, 64 Mich. 133 (31 N. W. 81). Nor is a belief that an offense has been committed. Spalding v. Lowe, 56 Mich. 366 (23 N. W. 46).

      D. G. F. Warner, for appellee.
   Hooker, C. J.

The plaintiff has appealed from a judgment of not guilty in an action for malicious prosecution. The defendant was highway commissioner, and, acting under the advice of the prosecuting attorney, signed and swore to a complaint in writing against the plaintiff for obstructing a highway by felling some trees across it. A warrant was issued, and plaintiff was arrested, but, being afterwards discharged by the justice upon the ground that his act did not constitute a crime, he commenced this action. It was heard upon the merits by the court without a jury. The record does not contain the pleadings, and no formal finding of fact and law was demanded or filed. Some comments made by the learned circuit judge at the close of the testimony indicate his view of the facts and the judgment to be entered. These show that he found that the defendant laid the facts before the prosecuting attorney, and acted upon his advice in swearing to the complaint, and that he acted without malice and in good faith. The plaintiff insists that the warrant charged no offense, and that his conduct was not a crime, and therefore there was not probable cause, and the prosecution was necessarily malicious.

The record does not contain copies of the complaint and warrant, and therefore we cannot tell what it charged. The unlawful obstruction of a public highway is a penal offense (2 Comp. Laws, § 4157), and it is the duty of highway commissioners to keep highways free from obstructions. The circuit court had sustained the validity of the proceedings to lay out this highway, and, whether binding upon the plaintiff or not, that action appears to have convinced the defendant that plaintiff had no right to obstruct it. We are of the opinion that there was evidence from which the trial court might properly find that the defendant had probable cause to believe that the plaintiff was guilty of an offense. He does not appear to have attempted to determine the nature of the offense, but left that to the proper officers, and we think that there was evidence to sustain the judgment.

Several errors are assigned upon the introduction of the evidence. Those pertaining to the question of damage are unimportant, because the court found against the plaintiff on the merits of the case. The former adjudication upon the subject of the validity of the highway was of no significance, except in relation to defendant’s good faith. It was competent for that purpose, although plaintiff was not a party to such adjudication, if, as appears, it was brought to defendant’s knowledge.

Other questions raised do not require discussion. We find no error, and the judgment is affirmed.

Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit.


source: Caselaw Access Project

author: Hooker, C. J.

license: Public Domain

text:
    BROWN v. CITY OF DETROIT.
    Municipal Corporations — Negligent Injuries — Limitations.
    Under section 2 of Act No. 463, Local Acts 1895, amendatory of the charter of Detroit, limiting the time for bringing actions for negligent injuries, but saving “lawful causes of action” then existing on condition that suit be commenced within six months from the time when the act should take effect, an action for an injury sustained before the act became operative, brought within six month's after the rejection of the claim by the council, was in time. Springer v. City of Detroit, 118 Mich. 69, followed; Klass v. Same, 129 Mich. 35, distinguished.

      Error to Wayne; Rohnert, J.
    Submitted January 30, 1902.
    Decided March 4, 1902.
    Case by Horace Á. Brown against the city of Detroit for personal in] uries caused by a defective sidewalk. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      Moore & Moore, Henry B. Shaw, and Charles S.' Hampton, for appellant.
    P. J. M. Hally and A. B. Hall (T. E. Tarsney, of counsel), for appellee.
   Hooker, C. J.

This cause is similar in its facts to the case of Springer v. City of Detroit, 118 Mich. 69 (76 N. W. 122), except that the plaintiff in this case delayed action for a period of 4 months and 20 days after action by the council, while in that case the period was 1 month and 6 days only. In that case it was held that the statutory period of 6 months did not commence to run until the council took action upon the claim. This action was brought within such period under that rule. The case of Klass v. City of Detroit, ante, 35 (88 N. W. 204), was a case where the accident occurred after the passage of the statute, and was governed by the express and unequivocal language of the statute.

The judgment is reversed, and the cause remanded, with leave to the defendant to plead within 20 days.

Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit.


text:
    HEWITT IRON MINING CO. v. DESSAU CO.

    1. Minino- Lease — Exhaustion of Ore — Liability for Minimum Royalty.
    Where a mining lease required the lessee to mine such quantity of ore each year as should, at a fixed royalty, yield a stipulated sum, and, in case it should not remove such quantity, to pay such sum nevertheless, and the lessee worked the property for the full term of the leáse, paying the prescribed royalty for all but the last six months, when the ore had become so far exhausted that it was unable to mine the minimum quantity, the lessor was only entitled to royalty for that period on the ore actually mined.
    2. Same — Evidence.
    The fact that, after the expiration of a mining lease, the lessee continued to work the property under rights previously acquired from third parties, producing small quantities of ore, does not conclusively negative its claim that there was no ore remaining on the property that could have been mined at a profit during the term of the lease.
    3. Same — Enforcement of Lien — Equity Jurisdiction.
    Where a bill to enforce a lien for royalties under a mining lease alleges the existence of property subject to a lien within the court’s jurisdiction belonging to defendant, and the answer is silent as to the removal or sale of the property, and suggests no nonjoinder of parties, and not until the presentation of the defense is there any intimation that the property has been shipped away, and it is not shown to have been sold to a bona fide purchaser, the court has jurisdiction to adjudicate the question of lien, and render a personal decree for the amount found due.
    Appeal from Dickinson; Stone, J.
    Submitted January . 31, 1902.
    Decided March 4, 1902.
    Bill by the Hewitt Iron Mining Company against the Dessau Company, impleaded with Sidney Cohen, to enforce a lien for royalties under a mining lease. From a decree for complainant, defendant appeals. Modified and
    affirmed.

      Cook & Pelham, for complainant.'

      George Hayden and James C. Wood {Dan H. Ball and E. A. Woodward, of counsel), for defendant.

      Rehearing denied April 22, 1902.

   Hooker, C. J.

The Hewitt Iron Mining Company, being lessee of the property involved in this litigation, sublet the same to the Millie Iron Mining Company, which in turn assigned its sublease to the defendant. The term for which the property was sublet ended June 29, 1899. In October, 1896, an agreement was made between the Hewitt Iron Mining Company and the defendant modifying the sublease under which the defendant then occupied the premises. The lease under which the Hewitt Company sublet, the sublease, and the agreement modifying the latter, all terminated on June 29, 1899. Previous thereto, and on October 26, 1896, the owners of the fee executed a lease to the defendant, covering the same premises, for the period of 20 years from and after June 29, 1899.

The lease and modification thereof under which the Dessau Company occupied the property provide that a royalty of 35 cents per ton of 2,240 pounds should be paid on all Bessemer iron ore containing 57 per cent, and over of metallic iron, and, on all non-Bessemer ore containing 57 per cent, and over of metallic iron, 25 cents per ton of 2,240 pounds; that there should be mined in each year such quantity of these ores as will, at the royalty thereon, yield $3,500 per annum; that, in case it shall not remove such quantities, it shall nevertheless pay $3,500 per annum; that all royalties for ore not mined shall be payable at end of year, except for the portion of 1899 between January 1st and June 29th of said year, which shall be payable at the expiration of sublease; that second party shall not remove or impair any supports placed in the mines, nor any timber or framework necessary to the use and maintenance of shafts or other approaches to the mine, nor any tramways within the mine; that second party shall open, use, and work said mines in such manner only as is usual and customary in the skillful and proper mining operations of similar character when conducted by the proprietors themselves, and so as not to do, cause, or permit any unnecessary or unusual permanent injury to same, or inconvenience or hindrance in the subsequent operations of the same mine, and in the working of said mine; that the royalties reserved shall be treated as rent; that second party shall have the right to remove through the shafts on the premises leased any ore mined from adjoining premises, called the “Chapin Mine,” without charge by first party, so far as it becomes necessary in. the mining of ore from premises in sublease; that first party reserves, and shall at all times have, possess, and hold, a lien upon all ores mined and on all improvements made on said premises by second party, as a security for any unpaid balance of money due under this contract, — such balance being deemed and to be treated as balance of purchase money, — and which lien may be enforced against such property in like manner as liens conferred by chattel mortgages are or may be entitled to be enforced under the laws of the State of Michigan.

The royalties provided by these writings appear to have been regularly paid, with the exception of the amount provided to cover the six months ending June 29, 1899, although it is claimed that the defendant had not succeeded in taking out sufficient ore at any time to amount, at the rate fixed, to the prescribed payments. Not having paid anything for the last six months of the term, the bill in this cause was filed to enforce a lien upon the ore on hand and improvements for such royalty, and for taxes which defendant had failed to pay. The defenses relied upon are:

1. That ore assaying 57 per cent, was exhausted, and therefore the defendant was not liable for a royalty.
2. That the only ground of equity jurisdiction was the enforcement of a lien, and that, as both the property and the owner of the same were not in this State, the court acquired no jurisdiction to render a personal decree against the defendant for its indebtedness.

The learned circuit judge held that the tools, machinery, etc., placed upon the premises by the sublessee did not constitute improvements, within the true meaning of that word as used in the instrument, and therefore that there was no lien upon anything but the ore mined upon the premises, and that, at the time the suit was commenced, all such ore had been sold and shipped out of the State. He was of the opinion that the defendant failed to prove that the ore was exhausted, and found it indebted for the minimum royalty prescribed for the six months ending with the term, and held that the court had jurisdiction to enforce a lien of this description by a suit similar to one appropriate to foreclose a chattel mortgage; that suits of that nature are transitory, and not local, and jurisdiction exists wherever service can be had on the defendant, irrespective of the locality of the property; that, where the property is not within the jurisdiction, the rights of the purchaser will not be affected, but that the court may, as between the mortgagor and mortgagee, where both are within its jurisdiction, adjudicate and determine the lien, and the amount of it; and that the removing and selling of the property does not destroy the lien. A personal decree was rendered against the defendant in favor of the complainant for the amount claimed, and the defendant has appealed.

We have endeavored to critically weigh the' testimony on the first question, and have, with some hesitation, reached a different conclusion from that of the circuit judge. During the last six months of the term but a small amount of ore was taken out. Prospecting has continued since, with unsatisfactory results; no ore in paying quantities having been found. The diamond drill has been freely used, to little purpose. Stress is. laid upon the fact that the defendant has been willing to continue its exploration ; but this does not necessarily indicate more than a well-founded hope that the efforts may be successful. It should not be forgotten that defendant has operated under a new lease made two or three years before the lease in controversy ended, and when it was regularly paying its royalties, and presumably doing a fair business, justifying its action in taking a new lease. There is nothing to lead to the inference of bad faith. For two years and a half since its sublease expired it has pursued its exploration with apparent diligence, but has failed to strike ore in paying quantities; and, to our minds, it seems improbable that it could have found ore that it could have mined profitably during the last six months of its term, if there is any ore in paying quantities upon the premises. Blake v. Lobb’s Estate, 110 Mich. 608 (68 N. W. 427). It may be said that it should have robbed the mine, by removing the pillars which support its roof; but we think it would not have been justified in doing that, under the spirit of its lease, which prohibits the removal or impairment of •supports placed in the mines. The defendant admits that it took some ore from the mine during the period in question, royalties upon which amounted to $381.22. During the succeeding six months the royalties amounted to $623.62, and during 1900 they amounted to $138.60. These successes are not inconsistent with defendant’s claim. They may be alluring and explain defendant’s persistent hope, but they do not show that the ore has existed in paying quantities; and, if it did not, the fact that, in a fruitless search for paying ore bodies, the defendant found some ore, does not prove it.

The complainant is entitled to its decree for the royalty earned, — i. e., $381.22, — unless defendant’s second point is a valid objection to any relief. In substance, it is that equity has no jurisdiction to entertain a suit upon a personal obligation merely; that its only jurisdiction in this case is to enforce a lien, and, inasmuch as it appears that the property has been sold, the lien is discharged, and there is consequently no jurisdiction to enforce it. Again, it is said the proceeding is one in rein, aimed at the property, and, where the mortgagor has parted with the equity of redemption, he is not a necessary party, and inasmuch as the owner of the equity is not before the court, and the property is beyond the jurisdiction, the court cannot make a decree affecting them, and cannot be used as a substitute for a court of law to enforce .a personal remedy .against this defendant.

When this bill was filed, it alleged the existence of property upon which complainant had a lien, within the .jurisdiction, belonging to this defendant. The answer is ;silent upon the subject of the removal or sale of the property, and suggests no nonjoinder of parties interested. ■On the contrary, it admits an indebtedness of $381.22, and ■offers to pay the same if the court shall find it due. It was not until the presentation of the defense upon the hearing that there was an intimation that the ore had been shipped away, and it is not shown to have been sold to a bona fide purchaser. The superintendent testified that it was shipped before August 1st, but did not know whether it had then been sold or not. The secretary testified that the ore was sold in January or February previous for the entire season. • Under these circumstances, we think the court had jurisdiction to adjudicate the question of the lien between these parties, and to render a personal decree for the amount found due; and though it is manifest that such decree could not bind a prior purchaser of the property, if there be such, it might be conclusive between these parties should any proceedings be taken in another jurisdiction to pursue this property as the property of this defendant.

The decree of the circuit court will be modified by reducing it in amount to the sum of $381.22, with interest from June 29, 1899, and in other respects it will be affirmed. The defendant will recover costs of this court.

Moore, Grant, and Montgomery, JJ., concurred. Hong, J., did not sit.


author: Moore, J.

text:
    LA FERNIER v. SOO RIVER LIGHTER & WRECKING CO.
    1. Negligence — Presumptions—Evidence.
    Although negligence will not be presumed from the mere fact of an accident, such fact may be taken into consideration, in connection with all the other facts and circumstances, in determining whether negligence existed.
    2. Same — Seaworthiness op Vessel.
    The presumption that a ship was seaworthy when she undertook a voyage may be overcome, not only by direct proof, but. by circumstances.
    3. Same — Death op Seaman — Liability.
    During the year preceding the last voyage of a 36-year-old vessel, she leaked so badly that she was allowed to sink at her moorings, and to remain in that condition until the following spring, when she was raised, and less than ¡J100 in repairs put upon her. She was not in commission during the following-summer, but floated light, exposed to sun and wind. Upon her first voyage thereafter she still leaked badly, even before-she was loaded, and, while being loaded, the leakage increased with the load. Upon her return voyage, when only two-thirds-loaded, in smooth water with a light wind, without collision, she sank. Her captain testified that he did not know why she sank, and called the accident a dispensation of God. Held, in an action for the death of the vessel’s fireman by drowning, that the evidence was sufficient to justify a finding that she sank because she was unseaworthy.
    Error to Chippewa; Steere, J.
    Submitted January 31, 1902.
    Decided March 4, 1902.
    Case by Amable La Eernier, special administrator of the estate of John Roberts, Jr., deceased, against the Soo River Lighter & Wrecking Company, for negligently causing the death of plaintiff’s intestate. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Warner & Sullivan (Qoulder, Holding & Masten, of counsel), for appellant.

      Alexander B. Maedonell, for appellee.
   Moore, J.

This case was tried before the circuit judge without a jury, who rendered a judgment in favor of plaintiff for $1,900. The case is brought here by writ of error. The circuit judge was requested to make special findings of fact and conclusions of law. As they state the questions involved, we quote them:

“Plaintiff sues in the capacity of special administrator of the estate of John Roberts, his son-in-law, who was drowned September 25,1898, while in defendant’s employ, by the sinking of one of defendant’s boats in the upper St. Mary’s river. Defendant is, and was during the year 1898, a corporation organized under the laws of the State of Minnesota, but doing most of its business in Michigan, on the St. Mary’s river, engaged in lightering and wrecking, with headquarters at Sault Ste. Marie, where its lighters and other wrecking .outfit were stationed, and have been stationed for several seasons.
“The boat called the Monitor, through the sinking of which deceased met his death, was owned by defendant, and used as one of its wrecking lighters. She was 36 years old, formerly a sailing schooner on the Lakes, had passed from that to a tow barge in the lumber trade, and at the time of her sinking had been stripped of her sails and sailing rigging, dismantled as a sailing vessel, equipped with pumps, hoisting machinery, and other suitable wrecking outfit, and converted into a wrecking lighter, in which capacity she was used from time to time for several seasons as opportunity offered. This work of converting her into a wrecking lighter was done in 1894, at which time she was overhauled, given new decks and deck beams, some new stanchions and parts of new frames put into her, and some new short pieces of planking put upon the outside. She was somewhat hogged; was a boat of 26-foot beam, 136 feet long, had four hatches, a tonnage of 298 net tons and 314 gross tons, and an estimated carrying capacity of 536 tons. She was an enrolled vessel, and her owners continued to take out the same license for her under the United States laws as she formerly had when a sailing schooner; but she had no propelling appliance of her own, and was towed from place to-place when in use. She is described in her last license as the ‘schooner Monitor,’ with Alex. McDougal as master.
“In the summer of 1897, some calking was done upon her above the water line, and her decks were tarred. She was also painted in 1896 and 1897. In the fall of 1897, having been towed through the ice for some distance, by which her calking was somewhat loosened, she was found to be leaking badly, and was allowed to sink at her mooring in shoal water, and rest upon the bottom until spring, when she was pumped t>ut and calked again where the ice had pulled the oakum out of her seams. In June, 1898, it being found that she still leaked, she was placed in the dry dock at Bay City and calked over her bottom and three seams above the light water line, 13 calkers working on her for one day. Her planking was of white oak, and below the water line was sound. The cost of dry docking and calking her was $138. She was then returned light to her station at Sault Ste. Marie, and did not leak on the trip back. After her return, some calking and painting was done on her above the light water line. Some of her planking had been patched with short pieces, and in places was dozy around the spikes. Some of her upper seams were more or less open, and the calking defective. She was used only at intervals, mostly in the fall, and had not, before the work she entered upon at the time she sank, been engaged in any work during that season. When not employed, which was most of the time during the summer, she lay in ordinary, unladen, high out of the water, and exposed to sun and wind. No crew was kept upon her, except a watchman or shipkeeper, who pumped her out and wet her down at times. She was equipped with sounding wells, had two siphons with two-inch discharge and an inch steam pipe, two hand pumps, a canal pump, two hoists and engines, and other wrecking paraphernalia. When in use she had no anchors, no boats, no crew list or shipping articles, and no life-saving appliances, except three or four life preservers in one of the rooms.
“On September 23, 1898, the steam barge Orr and consort, Carrington, were aground, iron ore laden, on a shoal in the upper St. Mary’s river above Round Island, and defendant’s wrecking outfit was engaged to go to their relief. Two lighters, the said Monitor and the Monterey, with about 30 laborers on board, were taken to the distressed vessels in tow of the tug Ruth. John Roberts, the deceased, was one of these laborers, and was hired for and acted as fireman during the trip. Capt. William W. Smith, who was the general manager of the Soo River Lighter & Wrecking Company and one of its stockholders, was in charge of the expedition, and acted as-captain and master on the Monitor. After arriving at tbe wreck, the Monitor lay alongside the Carrington, employed in lightering her cargo. The laborers who had been brought along were put into the hold of the Carrington, shoveling ore into buckets, which transferred it into the hold of the Monitor by the use of her derricks. This work was continued without interruption until about 12 o’clock midnight of the following Saturday, when the stranded vessel floated. In the meantime, the Monitor had lightered and emptied into her own hatches ore estimated by Capt. Smith at 350 tons; there being no exact data of the amount, the tally which was kept having been lost in the wreck. The forward hatch was loaded last, and at the conclusion of the loading she was somewhat down by the head. The water was smooth during the lightering, there being no wind or sea which delayed them, and the men worked steadily night and day for nearly 36 hours, only stopping for meals; but, at the time the stranded vessel floated, the wind had commenced blowing some from the northwest, and it was deemed best to take the Monitor to a less exposed position for reloading the cargo of ore into the Carrington.
“About 3 o’clock Sunday morning of September 25, 1898, the Monitor, in tow of the tug Ruth, left the Carrington for d,own the river with the loaded ore on board. Capt. Smith was on deck, in charge, and at the wheel. When they started, he ordered all the hands but one to go below and go to bed, and get some rest during the trip .down, as they were exhausted and in need of sleep, and would be required, on the arrival down in the morning, to return thelightered ore to the Carrington. One man, Hugh Amos by name, one of the laborers, who went as an engineer to run a hoisting engine, and who was not a sailor, was kept on duty to stand watch. He was told by Capt. Smith to keep steam up in the small boiler used for hoisting, to look after the siphon and see if there was any water in the boat, and to get a messenger ready to take the tow line from the tug. After leaving the Carrington and starting down the river, Capt. Smith and Amos were the only persons on deck. All the others were asleep in the cabin. After she had been towing behind the tug for several miles, and while' it was yet dark, but just breaking day in the morning, the Monitor settled by the head and sank in a few minutes in about 26 feet of water. She did not appear to strike the bottom or any obstruction before she sank. She was at that time in a sheltered place, and it was comparatively calm; only a fresh breeze blowing from the northwest, and no sea running sufficient to cause any inconvenience. The disaster was so sudden that there was little time to do anything. Capt. Smith kicked in the cabin windows and shouted to the sleeping men, but could do no more before the water rose and drove him up the shrouds. Five men, including John Roberts, the deceased, were caught by the water in the cabin and drowned before they could escape. The others were picked up by the tug. At thé time she sank, Capt. Smith was steering aft on the poop deck behind the cabin. Where he stood the deck was raised 3£ feet above the main deck, and was 3-|- feet below the top of the cabin, over which he could see the deck forward and the tug which was towing them. He didn’t notice that she was sinking until Amos shouted the fact to him. Amos at that time stood on the farther forward deck behind the engine room, which was constructed upon the deck, and had been sent there by the captain to fix a messenger with which to haul in the tow line from the tug. He was so occupied in untangling a knot in the line that he did not even pay particular attention to the first rush of water through the bulwarks and over the deck, although he noticed it, and he only desisted from his work when the second wave swept over the vessel and drove him upon the rail. He then, as he was climbing up, shouted to the captain that the boat was sinking, whereupon the captain sought to alarm the men in the cabin.
“Some time after she had sunk, divers were sent up to examine the Monitor. She showed no signs of having been in collision with an obstruction, was found with her stem and stern resting on a bar, with room to pass under her amidships, her hull being unbroken and in as good condition as before she sank, except that there was from 4 to 6 feet of oakum out of her seams on one side, just about the bilge. During the trip up, the Monitor was siphoned out, and while she was at the wreck she leaked to some extent; her siphons being used from time to time. As she settled with the load she was taking on, the leakage increased. When she left the Carrington, one siphon was running all the time, and continued until she sank. During the trip down, no one investigated to see whether the water was gaining on the siphon or the siphon on the water.
‘ ‘ The conclusion is reached as a matter of fact that the ship sank by leakage, which arose from her age, unsoundness above the light water line, and unseaworthiness generally, together with the failure of those in charge to keep proper watch of the leakage and use proper appliances to keep her clear at a time when she was laden and towing. The sinking of the boat caused the death of John Roberts, deceased. He was a healthy,'strong, able-bodied man, 27 years of age, and his expectancy of life, according to the mortality tables, was about 37 years. He was a common laborer, earning from $1.50 a day up when working for wages, which was about three-quarters of the time. He liyed on a farm with his wife and three children; the oldest being now seven years of age, and the youngest three. His family had no other means of support, and it took about $250 per year to support them.
“All the files, records, and exhibits in this cause are hereby made a part of these findings.
“conclusions of law.
“Capt. William W. Smith, a part owner and the manager of this defendant, was not a fellow workman of this deceased. He performed the functions and duties of the owners, and was their alter ego.
It was the duty of the owners to maintain the boat in a safe and seaworthy condition, to exercise all reasonable precautions and vigilance to guard against leakage and to keep her free of water, and maintain proper watch while she was under way to discover any dangers which might arise and to warn the sleeping men, who had been ordered below to bed after their exhausting labors.
‘ ‘ The fact that she was in tow of a tug does not relieve the owners of their responsibility. While the tug and tow are treated as one vessel under some circumstances, a different rule prevails in many particulars where the tow is officered and manned by its own men and in their immediate charge. It was the duty of the owners to see that the tow was in a fit condition to be towed. It is true that the owners had seen fit to procure a license for this boat as a schooner, and had dismantled her as such, stripping her of her sails, rigging, anchor, lifeboat, and life-saving appliances; but having all those things would not have been of any use under the circumstances of this accident, had they been on board, and their absence contributed nothing towards the drowning. She had been converted. into a wrecking lighter, equipped with proper appliances for that purpose, and was being towed through quiet waters. It was the duty of the owners to see that she was in proper condition as such to be towed, and that a proper watch was kept to guard against accidents.
“ On this trip down, she was loaded with iron ore, and gradually leaked to the sinking point. Then she suddenly plunged and sank. None of the perils of the sea, as usually understood, caused this. She encountered no storms; no wind, waves, hidden shoals, sunken rocks, or collision figured in the catastrophe. If she were staunch and sound in every particular, lightly laden, tightly calked, free from leakage and clear of water, properly manned, diligently watched over, — and the defendant claims the testimony shows she was, — her sinking as she did in those quiet waters, under the circumstances as detailed by defendant’s own witnesses, would seem a miracle. In fact, in that connection, Capt. Smith tells us it was a miracle. He swears that it was a direct intervention of Divine Providence, and without any natural and apparent cause. While not disputing the existence of miracles, we are not at liberty to dispose of this case on that theory. The law made it the duty of the defendant to take all reasonable precautions for the safety of its employés, to see that the boat was reasonably safe and seaworthy for the service she was engaged in; that she was not overloaded; that the cargo was properly stowed; that proper precautions were taken to protect and guard against leakage, and a proper watch maintained, so that any danger could be timely discovered and the sleeping men. aroused.
“This boat was old and infirm at best, converted from a sailing schooner to a tow barge, and then to a wrecking lighter. She had reached her last stage of usefulness. She had been lying light on her moorings most of the summer, her sides exposed to the sun and wind, and her seams drying. Her cargo of iron ore was dumped through each hatch in cone-shaped piles, the heaviest pile forward, and was untrimmed. No record was kept of the amount, and what tonnage she had on board was merely a guess. She leaked, and her leaking increased as her load settled her dried seams under water. When she started down the river, a siphon was running, and no one seems to have known whether or not it was gaining on the leakage. It was negligence under these conditions to send the exhausted men to bed in the cabin after they had worked continually over 30 hours without rest or sleep, and then to undertake-to navigate such a craft with only the man at the wheel and only a tired common laborer on deck to watch, and particularly when the laborer was put at work other than watching, which took him back of the engine room untangling a line, and where he could not early detect any danger which might arise. There was not a sufficient number of men on duty at proper stations and with proper skill for safely navigating this boat.
“The Monitor, on her last voyage, was under the management and control of its managing owner. The death of John Roberts, Jr., resulted through her sinking, and her sinking could have ¡been avoided by the exercise of reasonable care and diligence. She sank from leakage due to her cargo, age, infirm condition, and unseaworthiness, and a failure to properly man and navigate her, and particularly a failure to keep a proper watch.”

It is insisted by the defendant that the judge reached a wrong conclusion as to the facts, and, as he was wrong as to the facts, his conclusions of law were also wrong. In the oral argument, it was stated by the leading counsel for defendant that its chief cause of complaint might be found in the conclusion stated by the trial judge in the following language:

“The conclusion is reached as a matter of fact that the ship sank by leakage, which arose from her age, unsoundness above the light water line, and unseaworthiness generally, together with the failure of those in charge to keep proper watch of the leakage and use proper appliances to keep her clear at a time when she was laden and towing.”

It is conceded that, if the ship sank because of leakage which arose from her age, unsoundness above the water line, and unseaworthiness generally, defendant is liable; but it is insisted there is no testimony upon which to base such a conclusion. It is also insisted that, if the failure of those in charge to keep proper watch of the leakage and use proper appliances to keep the vessel clear of water was an element in bringing about the result, this failure was the act of a fellow-servant, and there would be no liability. It is also said that, while no one can tell what caused the vessel to sink, if the man placed on watch had done his duty, the deceased would have been wakened from his sleep in time to escape, and his death is due to negligence of a fellow-servant, and there is no liability. It is argued that the mere fact of an accident does not indicate negligence ; that in all cases there is a presumption that a ship, when she undertakes a voyage, is seaworthy, — citing Werk v. Leathers, 1 Woods, 271 (Fed. Cas. No. 17,415); Pyman v. Von Singen, 3 Fed. 802; Stackpole v. Wickham, 7 La. Ann. 678; Pickup v. Insurance Co., 3 Q. B. Div. 594; The Rover, 33 Fed. 520; The Piskataqua, 35 Fed. 622; and that the uncontradicted testimony is that, when this ship undertook her voyage, she was seaworthy.

We cannot agree with counsel that the testimony is not contradictory. While it is true that, simply because an accident has occurred, negligence is not to be presumed, still, in determining the question of negligence, the fact that an accident has occurred may be and should be taken into consideration, in connection with all other facts and circumstances of the case, for the purpose of determining whether in fact there was negligence. It is also true that, when a ship undertakes a voyage, she is presumed to be seaworthy; but it is a presumption which may be overcome, not only by direct proof, but by circumstances. The case of The Lizzie Frank, 31 Fed. 477, is instructive. In that case it was held the ship was seaworthy, but there is a statement of the rule of law which applies to this case. We quote:

“On consulting the American authorities, we find it stated that the owner, among other obligations to the seaman, is bound to provide a seaworthy ship, and that this means that, at the commencement of a voyage, the ship shall be furnished with all necessary and customary requisites for navigation, or, as the term is, shall be found ‘seaworthy.’ Seaworthiness includes a competent crew. Yet the owner does not warrant to each seaman the competency of the others. The E. B. Ward, Jr., 20 Fed. 704; Dixon v. The Cyrus, 2 Pet. Adm. 411 (Fed. Cas. No. 3,930). There is no warranty that a crew shall not be negligent, and such negligence is no breach of the implied warranty to provide a competent master and crew. 1 Pritch. Adm. Dig. 989.
“ By seaworthiness is meant ‘that the ship shall be in a fit state, as to repair, equipment, crew, and in ¿11 other respects, to encounter the ordinary perils of the contemplated voyage; ’ or, in the language of some of the authorities, ‘ that the ship is in a condition in all respects to render it reasonably safe where it happens to be at the time referred to;’ or, as expressed by others, ‘that the ship was, at the commencement of the voyage, in such a state as to be reasonably capable of performing it.’ The question of seaworthiness is to be determined with reference to the customs and usages of the port or country from which the vessel sails, the existing state of knowledge and experience, and the judgment of competent persons versed in such matters. * * *
“ However, if a ship breaks in a vital part, and especially if it is an old ship, the presumption of seaworthiness, which ordinarily obtains, is rebutted. In such case the breaking may be evidence of unseaworthiness; but it is not sufficient to overcome the evidence to the contrary, such as we have in this case. See Dixon v. The Cyrus, 2 Pet. Adm. 411 (Fed. Cas. No. 3,930); The Titania, 19 Fed. 101; The E. B. Ward, Jr., 20 Fed. 704; Werk v. Leathers, 1 Woods, 271 (Fed. Cas. No. 17,415).”

In Gartside v. Insurance Co., 62 Mo. 322, it is said:

“It seems to be well settled that a ship sinking in port, or very soon after commencing its voyage, in which it meets with no extraordinary gales of wind or other disturbing elements, is presumed unseaworthy.”

See Goldsmith v. Henderson, 50 Fed. 567. To the same effect are the many cases cited in 14 Am. & Eng. Enc. Law (1st Ed.), 372.

In Mullen v. St. John, 57 N. Y. 567 (15 Am. Rep. 530), in discussing the question of negligence, the court said:

“In the case at bar, the walls of the building, without any special circumstances of storm or violence, fell into the street. There was some evidence tending to show that it was out of repair. Without laying any stress upon the affirmative testimony, it is as impossible to conceive of this building so falling, unless it was badly constructed or in bad repair, as it is to suppose that a seaworthy ship would go to the bottom in a tranquil sea and without collision.”

In Schoepper v. Chemical Co., 113 Mich. 582 (71 N. W. 1081), it is said:

“Defendant’s counsel contend that the cause of this explosion is a matter of mere conjecture, and it is said by counsel that it is not enough for plaintiff to prove circumstances consistent with her theory, but that these circumstances, and each of them, must preclude any other rational conclusion. This we take to be but another way of stating the proposition that the proof must exclude all reasonable doubt. It is hardly necessary to say that no such rule obtains in civil cases. It is true that where an injury occurs that cannot be accounted for, and where the occasion of it rests wholly in conjecture, the case may fail for want of proof. Robinson v. Charles Wright & Co., 94 Mich. 283 (53 N. W. 938); Redmond v. Lumber Co., 96 Mich. 545 (55 N. W. 1004). But such cases are rare, and that rule should never be so extended as to result in a failure of justice, or in denying an injured person a right of action where there is room for balancing the probabilities, and for drawing reasonable inferences better supported upon one side than the other. In this case there was no direct proof of any other probable producing cause of the explosion than such as was offered by the plaintiff. * * *
“ It is true, defendant’s theory and expert testimony is opposed to that offered by the plaintiff. It is the peculiar province of the jury to weigh this testimony. If the testimony offered in behalf of the plaintiff is credited, we have a case in which, on the first occasion on which an attempt was made to use this hose in the manner in which it was used, an explosion followed upon such a use of the hose as experience teaches is careless and unsafe. Under such circumstances, we think the question of what was the cause of this injury was one for the jury. Negligence, like any other fact, may be inferred from circumstances. Alpern v. Churchill, 53 Mich. 613 (19 N. W. 549); Barnowsky v. Helson, 89 Mich. 523 (50 N. W. 989, 15 L. R. A. 33). And though the proof of plaintiff depended upon inference to establish the main fact, the question of whether the inference suggested by the plaintiff’s theory is the correct one, or whether it was sufficiently rebutted, was for the jury. Crosby v. Railway Co., 58 Mich. 458 (25 N. W. 463); Hagan v. Railroad Co., 86 Mich. 615 (49 N. W. 509); Woods v. Railway Co., 108 Mich. 396 (66 N. W. 328).”

This vessel was built in 1862. She leaked so badly the year before the accident that the person in charge of her, rather than do the work daily required to keep her afloat, allowed her to fill with water until she settled to the bottom. When the water was taken out of her in the spring, less than $100 worth of repairs were put upon her. She was not in commission during the summer, but set light in the water, exposed to sun and wind. Upon her first voyage, when, according to the claim of the defendant, she was only two-thirds loaded, in smooth water and a comparatively light wind, she sank. Counsel are unable to say why she sank. In response to the question, “Do you know of any reason for that vessel sinking, captain ? ” Capt. Smith answered, “I do not; no, sir.” Again he answered, “The Monitor sank without apparent cause.” At another time in his testimony he called the sinking of the ship a dispensation of God. We cannot say, therefore, that there was no testimony upon which the learned circuit judge could base his opinion that this vessel sank because she was unseaworthy. Having reached this opinion, a discussion of the other questions is unnecessary.

Judgment is affirmed.

Hooker, C. J., and Montgomery, J., concurred with Moore, J.

Grant, J., concurred in the result.

Long, J., did not sit.


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    BOWMAN v. MONTCALM CIRCUIT JUDGE.
    1. Taxation — Statements of Property Owners — Valuations— Power of Assessor.
    The valuations contained in the tax statements furnished by-property owners under the statute are not conclusive on the assessing officer, but may be either raised or lowered by him.
    2. Same — Evidence.
    Under 1 Comp. Laws, § 3846, providing that the tax statements of property owners shall be used only for making an assessment of taxes, or for enforcing the provisions of the tax law, such statements are not competent evidence, on behalf of one suing to recover taxes paid under protest on the ground of a fraudulent undervaluation of other classes of property, to show that such property was assessed at less than the values placed thereon by the owners.

      Mandamus by Edward J. Bowman, city attorney of the city of Greenville, to compel Frank D. M. Davis, circuit judge of Montcalm county, to vacate an order requiring the production of certain taxpayers’ statements for use in a suit at law.
    Submitted February 4, 1902.
    Writ granted March 4, 1902.

      George E. & M. A. Nichols, for relator.

      N. O. Griswold and C. L. Barden, for respondent.
   Hooker, C. J.

Winter, the owner of a livery stable in the city of Greenville, paid his tax under protest, and sued to recover it back. The property assessed amounted to about $1,000, and was largely, if not wholly., personal property used in his livery business. The protest is a lengthy and carefully prepared document, alleging that assessing officers and board of review, “purposely, willfully, and fraudulently, with intent to injure him, and to require of him a greater amount of tax than his just proportion, neglected and refused to take into account and assess the following classes of property, either in toto, or, when assessed at all, neglected and refused to assess the same at its true cash value,” viz., diamonds, musical instruments, horses, cows, and other animals (except livery stock), real estate (which he alleges was purposely undervalued with intent to cheat and defraud him), and stocks of goods, wares, and merchandise. The protest further alleges that the officers purposely assessed the Ranney Refrigerator Company for one-third, or thereabouts, of the cash value of its property as listed by it, and that others were assessed upon personal property at less than the amount owned by them. Many other reasons were mentioned in the protest, but, as this application relates to those stated, we need not refer to them further. A bill of particulars was demanded, the notice asking that plaintiff specify the particular instances where the assessing officers and board of review willfully neglected their duty. A bill of particulars being ordered by the court, the plaintiff moved the court for an order that the statements made under the statute by residents of the city of Greenville for the purpose of taxation for the year 1900 (being the year in question) be filed with the clerk of the court, for the use of the plaintiff in making his bill of particulars. This motion was granted, and an order was made requiring the defendant city and its clerk, Byron C. Tower, or any other officer having the custody of said statements, to file the same with the clerk of the court. Thereupon the relator, the city attorney, upon behalf of himself and the clerk, applied to this court for a mandamus to compel the circuit court to vacate said order.

The answer shows that the parties have stipulated to waive all other questions except that of “ whether the law or the statute referred to \i. e., the tax law] prohibits the use of such statements in evidence upon the trial of the issue in said suit;” it being conceded before said court upon the hearing of said motion that, if such papers and statements are proper or competent evidence upon the trial of the issue joined, then said circuit judge had the power to require them to be filed with the county clerk. The question, then, is, May a taxpayer pay his tax under protest, upon the claim that a higher tax is required of him than would be the case if all property shown by the statements were listed at the valuation therein stated, and, upon the theory that the omission was fraudulent, bring before the court all of the statements in possession of the authorities, in the hope that he may be able to prove his claim by them ?

The object of the statute requiring taxpayers to furnish lists is to bring to light property which might otherwise escape the search of the assessor. Turner v. Muskegon Circuit Judge, 95 Mich. 4 (54 N. W. 705); 1 Comp. Laws, §§ 3841, 3846. It is intended to afford him information upon which he and the board of review may make a fair assessment of property. If the statement contains valuations of the items of property mentioned in it, such estimates are not conclusive upon the assessor. If they were, the taxpayer, and not the assessor, would assess the property, practically. As it is, the assessor must do that from his knowledge and information. Many cases hold that he may raise such valuations, and, while it is not to be expected that cases would often arise where valuations are lowered, such cases are not entirely wanting. See Collier v. Morrow, 90 Ga. 148 (15 S. E. 768). See, also, Oregon, etc., Sav. Bank v. Jordan, 16 Or. 113 (17 Pac. 621); People v. Com’rs of Taxes, 76 N. Y. 75; Nevada v. Kruttschnitt, 4 Nev. 186.

The statute (1 Comp. Laws, § 3846) shows upon its face a design that these statements shall be used only in furtherance of the objects for which they are required, and that they are not to be considered a public record, in the ordinary sense of the term. Provision is made for their custody and the inviolability of their contents during the limited time that they are expected to be preserved. It provides that “no such statement shall be used for any other purpose except the making of an assessment for taxes as herein provided, or for enforcing the provisions of this act. ” Counsel contend that the use proposed would be a use for the enforcing of the act; but we think such a construction too broad. What is meant is that the public may use a statement against the one who made it, in a proceeding calculated to induce a full and fair assessment of his property. It may be used in the first instance by the assessor, and later by the board of review. Whether it could be used in any case in a court of justice we need not now inquire; it being sufficient to say that it was not •designed to be within the reach of strangers to it, as evidence upon which they might resist the purpose of the act, and thereby avoid assessments against them in cases similar to the present.

The writ will issue as prayed.

Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit.


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    STUART v. CORLETTE.
    .Forcible Entry and Detainer — Costs—Payment—Appeal-Return — Mandamus.
    Under 3 Comp. Laws, §§ 11161, 11163, providing that, if a defendant in forcible entry and detainer be found not guilty, judgment shall be rendered in his favor for costs, which shall be taxed by the commissioner, mandamus will not lie to compel the commissioner to make return to an appeal from a judgment of not guilty, withheld by him because of the nonpayment of defendant’s costs, though the same were taxed without notice to complainant, fout days after the entry of judgment, and after the taking of the appeal.

      Certiorari to Wayne; Carpenter, J.
    Submitted February 18, 1902.
    Decided March 4, 1902.

      Mandamus by Johnston Stuart to compel William H. ■Corlette, circuit court commissioner of Wayne county, to make return to an appeal. From an order granting the writ, respondent brings certiorari.

    Reversed.

      Edwin Henderson, for relator.

      Geer & Williams and H. B. Martin, for respondent.
   Hooker, C. J.

In a suit brought for forcible entry and detainer, the circuit court commissioner’s return shows that upon July 11, 1901, he rendered a judgment “in favor of defendants and against said complainants, which said judgment was that the said defendants were not guilty of the forcible entry and detainer of the premises in dispute in said cause, as was charged in the complaint filed therein.” On July 13th the complainants took the usual steps for an appeal, and paid to the commissioner the sum of $5, for which they were given a receipt, in which that sum was denominated “appeal fees.” At that time the witness fees and other costs of the defendants had not been presented for taxation. On July 15th counsel for the defendants presented to the clerk of the commissione'r’s court a statement of the witness fees incurred, and these were taxed upon' the same day by the commissioner at the sum of $12.27. The commissioner thereupon notified complainants’ attorneys, and after-wards the complainants themselves, that these costs were-taxed, and that upon their payment he would make a return of the appeal. Payment was refused upon the-ground that complainants were advised that the taxation was void. Complainants obtained a peremptory mandamus from the circuit court requiring the commissioner to-make return, and the cause is before us upon certiorari to the circuit court in the mandamus proceeding.

The statute applicable to these proceedings (3 Comp.. Laws, § 11163) provides that:

“If the complainant shall fail to prosecute his complaint, or if on such trial the defendant shall be found not guilty, judgment shall be rendered for the defendant for his costs, which shall be taxed and collected of the complainant in the same maimer hereinbefore provided for thé collection of costs in favor of a complainant recovering judgment.”

There is no discretion in the matter, and a judgment of not guilty necessarily carries costs, if defendant has any costs, and in such case it is the duty of the commissioner to tax the costs and expenses of the defendant. 3 Comp. Laws, § 11161. This the commissioner returns that he has done.

Had the complainant’s attempt to appeal been deferred until after these costs were taxed, and had heathen refused to pay them, even had he based his refusal upon the ground of their illegality, he would have had no standing in the circuit court, because the law requires him to pay costs taxed before he can appeal. The law does not require the circuit court to enter into a preliminary inquiry to see whether the judgment appealed from is void or valid, to ascertain whether a bond tendered, or an amount of costs taxed, was justly required. For the purpose of the appeal, the judgment and taxation will be assumed to be valid.

The complainants did not wait until the costs were taxed, but took immediate steps to appeal. When the costs were taxed, they refused to pay the comparatively trifling amount, but preferred unnecessary and expensive litigation to enforce a purely technical, and apparently unmeritorious, claim of right, although they must have known'that, if successful upon the appeal, the disputed amount would be recovered back. This record does not indicate that the costs were not incurred, and the claim rests upon the assumption that the commissioner lost jurisdiction to tax these costs. We need not stop to inquire whether the commissioner’s action in taxing costs is ministerial or judicial. If we treat the authority of Saunders v. Manufacturing Co., 27 Mich. 522, as controlling, and therefore conclude that the act is a judicial one, what is there said about the presumption that the taxation was regularly made applies here. The record is silent as to whether this case was held open for the taxation of costs, and it appears only by inference that no notice was given. Even if notice should have been given, the taxation, though made without the requisite notice, would not be void, and could be disturbed only by direct proceedings to set it aside as irregular, — an inquiry which an appellant cannot compel an appellate court to go into by refusing compliance with the statute prescribing the prerequisites of an appeal.

Our Constitution and laws contain evidence of the design that judicial rules shall, so far as consistent, tend to the direct, speedy, and unhampered trial of the merits of causes, to the exclusion of technical and dilatory tactics. There is little to commend in the course pursued in this case, even if it were true that, by a delay of a day or two in taxing costs, the complainants might claim to have escaped a just liability. We do not feel called upon to disregard^ legal presumption, or to use the discretionary writ of mandamus to aid an injustice.

The order is reversed, with costs of both courts.

Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit.


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    MAHLER v. STOTT.
    Negligence op Employé — Master’s Liability.
    The owner of a delivery wagon is not liable for the negligence of his teamster in permitting a boy to ride thereon, to his resulting injury, the owner having forbidden the teamster to allow boys to ride, and precedent knowledge of the violation of his instruction not being brought home to him.
    Error to Wayne; Carpenter, J.
    Submitted February 30, 1903.
    Decided March 4, 1902.
    Case by William Mahler, an infant, by William Look, his next friend, against.David Stott, for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      William, Look, for appellant.

      Keena & Lightner, for appellee.
   Moore, J.

After a jury was impaneled in this case, the following occurred:

“By agreement of counsel, Mr. Chipman, for plaintiff, made the following statement of facts, with the understanding that the statement should stand in place of testimony, as being the case which the plaintiff made:
“Mr. Chipman: If the Court Please, and Gentlemen of the Jury: In the summer of 1897, during the vacation
time, a number of little boys one morning went on Humboldt avenue, a street in this city which runs north and south, near the corner of Linden street, which runs east and west. About that time a wagon owned by Mr. Stott, the defendant in the case, and driven by one of his teamsters, was going in a southerly direction down Humboldt avenue. After the wagon had proceeded a little distance south of Linden street, this little boy, the plaintiff here, who was with some of his companions, asked the driver if they might get on and have a ride. The driver motioned with his head for them to get on, and they immediately climbed onto the wagon, and seated themselves, the wagon being loaded with flour. After they had gotten on, the driver said to this boy, and to another boy, who was his companion, to put the kids off, and by the ‘ kids’ he meant small boys, much smaller than these were; and, after having said that, he let the two I speak of — the plaintiff and the other boy — stay upon the wagon while it proceeded in a southerly direction down Humboldt avenue to the corner of Magnolia street, which runs east and west. The wagon was turned to the west on Magnolia street, and was proceeding along in the ordinary way, the boy sitting on the wagon, until they got to about the middle of that block between Humboldt and Sullivan, on Magnolia. At that point the driver struck the horses with the lines, the horses started up, and threw this little fellow out. In some manner he got under the wheels of the truck, and was very severely injured.
“We will show you that, at the time, this wagon was employed in the business of the defendant, Stott, who is in the milling business, and owns a large mill up on Grand River avenue; that the wagon was proceeding in a general southwest direction for the purpose of delivering a load of flour to somebody on Michigan avenue; that this teamster had at other times previous to this allowed these boys to ride on this truck; that they were in the habit when this team came by, with this particular driver, of jumping on and taking a ride. We will show that Mr. Stott, the defendant in the case, had frequently, or at least upon several occasions, told this man he could not allow boys to ride on the truck, — told he did not want boys to ride on the truck, — but that he had continued to keep the man in his employ in spite of these warnings, and in spite of the fact that he knew he had allowed boys to ride on the truck, and the inevitable finally happened; he allowed the boys to ride on until this little boy was severely injured.
“ Our claim is this: That neither Mr. Stott nor his servant, the driver, had any right to allow a little boy of that size — smaller than he is now by some three or four years —to get upon this truck and ride in a dangerous position. We claim that that was negligence; that it was something they had no right to do; that it was their duty to stop the truck after the boy was on, and let him get off, and go about his business; and if, on the contrary, he was on the ground, they had no right to allow him to get on the truck at all, and when they did this thing they were negligent in permitting him to get on; and we claim, as a matter of law, that having done this, and the boy having been injured through the negligence of this driver, under his master, Stott, that the boy is entitled to recover such damages as you in your wisdom shall think he is entitled to. I am asked to state a little more fully that this boy had ridden on perhaps half a dozen occasions before with this same driver, by invitation and permission, and on the same truck, and under about the same conditions as stated here on the occasion when he was injured.
The Court: Will you show that after Mr. Stott told this driver not to permit boys to ride there, that he had any information that his instruction was disregarded, between that time and the time of the injury to the plaintiff ?
“Mr. Chipman: I don’t know that I can. I only know that I can show that Mr. Stott claimed he repeatedly warned this man not to allow children to ride, that it was dangerous, and for that reason that he did not want him to permit any children to be about that truck; and he told him also, if children got on, to stop the truck and put them off and keep them off. That I understand was his warning to this driver; but as to whether we can show that that was done immediately prior to the injury, I do not know. I don’t know that I can even fix the date as to that; but we can show that he did it on a number of occasions, and that the man disregarded his warning, and kept on permitting the boys to ride, and finally the boy was injured. Of course, as to the remoteness of the date or contiguity of the warning to the time of the injury, I cannot say how near that was, because witnesses forget. This injury occurred in 1897, and they will forget dates anyway. We have no written records of any kind, but that will be as near as we can come to it.”

The judge was of the opinion the case as stated by counsel was controlled by Schulwitz v. Lumber Co., 126 Mich. 559 (85 N. W. 1075), and directed a verdict.for the defendant. The case is brought here by writ of error.

Counsel says in his brief:

‘ ‘ The defendant, Stott, had instructed the teamster not to permit boys to ride upon the truck, but the teamster had not obeyed the defendant’s instructions, and had, with the defendant’s knowledge, permitted and allowed plaintiff and other boys to ride upon his truck repeatedly after he had been forbidden to do so.”

He also stated in the oral argument that he could show that Mr. Stott had knowledge, after he had told the driver not to allow boys to ride, and before the plaintiff was injured, that his driver was not obeying his instructions. In the disposition of cases in this court we must be governed by the case as made in the bill of exceptions. Both of these claims are contrary to the case as made in the record. The case there disclosed is on all fours with Schulwitz v. Lumber Co., supra.

Judgment is affirmed.

Hooker, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit.


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    PEOPLE v. SKILLMAN.
    Adulterated Jelly — Liability op Salesman.
    A traveling salesman cannot be convicted of selling adulterated jelly, in violation of 3 Comp. Laws, §§ 5033, 5036, on proof merely that he solicited and obtained an order for pure fruit jelly, and forwarded the same to his house, which in response sent an adulterated article, labeled “Pure Fruit . Jelly.”
    Exceptions before judgment from Muskegon; Russell, J.
    Submitted February 21, 1902.
    Decided March 4, 1902.
    John Skillman was convicted of selling adulterated jelly.
    Reversed.

      Elliot O. Grosvenor and Smedley & Corwin, for appellant.

      Charles B. Cross, Prosecuting Attorney, and George S. Lovelace, Assistant Prosecuting Attorney, for the people.
   Moore, J.

An information was filed against the respondent, which, omitting the formal parts, reads as follows :

“That one John Skillman, heretofore, to wit, on the 16th day of September, A. D. 1901, at the city of Muskegon, in the county of Muskegon aforesaid, did unlawfully offer for sale and did sell to Albert Towl a large quantity, to wit, one-quarter of a pound, of a certain article of food, to wit, a certain compound under the name of 1 ‘ Quince Jelly,’ which was then and there adulterated within the meaning of Act No. 193 of the Public Acts of the State of Michigan of the Year 1895, as amended by Act No. 118 of the Public Acts of the State of Michigan of the Year 1897, as amended by Act No. 117 of the Public Acts of the State of Michigan of the Year 1899, in this, to wit, that said compound was then and there made and composed in part of glucose, starch, and other substances, and was then and there colored in imitation of fruit jelly, contrary to the form of the statute.”

After the testimony was all in, a motion was made asking the judge, for various reasons, to direct a verdict in favor of respondent. This motion was overruled. The case was submitted to the jury, which returned a verdict of guilty.

A great many errors are assigned. We think some of them which we shall discuss are well taken, but as the case, if ever tried again, will not present the same questions now presented by counsel, we deem it unnecessary to pass upon all the questions argued by them in the briefs.

To sustain the case of the people, testimony in substance as follows was introduced:

It was shown the respondent had for some years been a traveling salesman in the employ of Reid, Murdock & Company, of Chicago; that he solicited an order from Mr. Towl, a grocer in Muskegon; that Mr. Towl gave him an order for a case of assorted pure fruit jelly. Mr. Skill-man did not have the goods with him, but reduced the order to writing in the presence of Mr. Towl at his store, and forwarded it to the house in Chicago. It is as follows:

Reid, Murdock &Co., Ohio ago.
Name, Albert Towl. Sept. 12, ’01.
Town, Muskegon.
State, Michigan.
Ship by Barry Line. Salesman, Skillman.
* * - * * *
1 c. P. F. Jelly, Med. Asst............................$1 00
1 c. P. F. Jell., Med. Currant.--...................... 1 00
60 days.

“1 c. P. F. Jelly, Med. Asst.,” was explained to mean one case pure fruit jelly, medium size, assorted varieties. Mr. Towl testified Mr. Skillman claimed it was pure fruit jelly for which he took the order, and that was what he intended to buy. It was not shown that respondent had anything further to do with the transaction than as above stated. Later a case of goods was received from Reid, Murdock & Co.; and testimony was given tending to show that a tumbler of this jelly was sold to Mr. Bennett, inspector of the dairy and food department of Michigan, and by him forwarded to the State analyst, where it is claimed upon analysis it was shown to be a mixture of fruit juice, glucose, starch, and coloring matter.

Upon the cross-examination of Mr. Towl the following occurred:

Q. Did you give Mr. Skillman more than one order for fruit jelly about this time ?
“A. Well, he had two or three orders; I think two, at least.
“Q Two orders?
A. One of them might have been ordered by mail.
Q. Now, you received two consignments of fruit jelly from the orders you had given to Mr. Skillman ?
“ A. I think so; yes, sir.
“’ Q. Upon which one of these orders did you receive this particular tumbler of jelly that you afterwards sold to Mr. Bennett ?
“A. I couldn’t say. The one that he bought was out of that order, I think. (Witness pointing to order exhibited.)”

The defense claimed that the label, “Pure Fruit Jelly,” placed upon the tumbler analyzed, was put there by mistake. It was their claim that Reid, Murdock & Co. dealt in two kinds of jelly, — those made out of pure fruit and those made in imitation of pure fruit, — and that, when the imitation was sold in Michigan and certain other States, their instructions were to label them “imitation,” and that these instructions were furnished in writing to their agents, including the respondent; and they offered testimony tending to prove this claim. The written instructions were also offered in evidence, but, with the testimony offered, were excluded by the court.

Among other requests offered by the respondent was the following:

“Under the undisputed evidence in this case, there is nothing to show that the respondent offered to sell any jelly in violation of any statute of this State, but, on the contrary, it is shown that respondent offered to sell strictly pure fruit jelly, and sent such an order to Reid, Murdock & Co., of Chicago, Illinois; and the charge in the information fdr selling and offering to sell adulterated jelly is not sustained by the evidence, and your verdict should be, ‘Not guilty.’”

The judge refused to give this request, but charged the jury:

“ It was recognized by the legislators, and is a matter of common knowledge, that many of the wholesalers that are doing business in Michigan are not residents of this State. So the legislature saw fit to make a law, where a man solicited the sale of pure jellies, took an order for the sale of pure jellies, and, in response to that order and offer, a different class of goods was furnished, that the party should be guilty of violating this particular law. In other words, instead of that offer or order, and the furnishing of goods delivered to the party by a party who might be a nonresident of the State, that it should relate to the man who actually made the offer, — the man who actually took the order for the furnishing of this particular article. The people claim that this is the manner in which this defendant here is liable. ”

This statement of the law is sought to be justified by People v. Snowberger, 113 Mich. 86 (71 N. W. 497, 67 Am. St. Rep. 449), and People v. Grocer Co., 118 Mich. 604 (77 N. W. 315). A reference to these cases will show that the respondent in each of them admitted making the sale of the goods. In this case the respondent denies that he sold any goods coming within the provisions of the statute. Giving the only interpretation to the testimony as it appears in the record which can be fairly given to it, it shows Mr. Towl was solicited to give an order for pure fruit jelly. He gave such an order. It was reduced to writing, and in the writing the jelly was described as pure fruit jelly. As before stated, the only connection of the respondent with the transaction, as shown by the record, is the taking of an order for an article not within the terms of the statute, and forwarding it. This does not constitute an offense. It might as well be urged that if a traveling salesman takes an order for Michigan beet sugar, and forwards a written order for such sugar, and if the house, instead of filling the order as written, sends glucose, with a label upon the package containing it calling it “Michigan Beet Sugar,” the salesman would be guilty of an offense. This we do not understand to be the law. Upon the case as made, the circuit judge should have directed a verdict of not guilty. People v. Howard, 50 Mich. 242 (15 N. W. 101).

The verdict is set aside, and a new trial ordered.

Hooker, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit.


author: Grant, J.

text:
    PEOPLE v. BEECH.
    1. Witnesses — Children—Competency.
    Under 3 Comp. Laws, § 10215, permitting a child under 10 years of age, after an examination satisfactory to the trial judge, to testify “on a promise to tell the truth,” instead of on oath, it is epough that a child seven years old, after being asked six times whether she would promise to tell the truth, answered by a nod of her head.
    2. Same — Rape.
    The testimony of a girl seven years old, whom respondent was charged to have assaulted with intent to commit rape, should have been rejected, where she gave no testimony tending to establish guilt until a promise to speak had been elicited from her by giving her presents, and then contradicted herself in the most material matters.
    3. Same — Hearsay.
    The testimony of a mother as to what her boy, three years old, told her, on the day after respondent’s alleged assault on her daughter, is inadmissible.

      4. Same — Instructions.
    Where all of the testimony tending to establish an assault with intent to commit rape agreed as to the time when the offense was committed, and it was undisputed that certain third persons were present at the time stated, and that the assault was not committed while they were there, a request to charge that respondent should not be convicted on the theory that he committed the offense at any other time was erroneously refused.
    Error to Ingham; Wiest, J.
    Submitted February 21, 1902.
    Decided March 4, 1902.
    Samuel Beech was convicted of an assault with intent to commit the crime of rape, and sentenced to imprisonment in the State house of correction at Ionia for seven years.
    Reversed.
    Respondent was convicted of assault with intent to commit the crime of rape upon a girl named Gracie Metz, 6 years old. The information charges three crimes, viz.: Rape, assault with intent to commit rape, and taking indecent liberties with a child under 14 years of age. According to the theory of the prosecution, the only ones present in the house at the time of the assault were Gracie and her two little brothers, — one 7 years, and the other 3 years and 1 month, old. There were three rooms in the house,— one the cooking and living room, about 16 feet square, and two bedrooms, opening off this room, with no doors or curtains. There was a kitchen, but it was not used in the winter. The occupants were the respondent, the three children, their mother, and her husband. Jesse and Gracie slept in the same bed with respondent for about two weeks, and Jesse slept with- him during all the time they lived together. The prosecution gave testimony tending to show that the mother and father left home about 9 o’clock in the morning, leaving the respondent and the children at home; that they returned about 4 o’clock in the afternoon; that the respondent sent the two little boys, brothers of the prosecutrix, to a cubby-hole in one of the bedrooms for a hammer; and that while they were gone the assault was committed. Jesse, who, the judge determined, could not comprehend an oath, and was not sworn, testified that, when he returned from the cubbyhole, respondent was committing the assault.

      William F. Dains and Smith & Hood, for appellant.

      Arthur J.. Tuttle, Prosecuting Attorney, for the people.
   Grant, J.

(after stating the facts). 1. The first question raised was upon the competency of Gracie Metz to testify. She was examined by the presiding judge privately and in open court, and was permitted to testify, under section 10215, 3 Comp. Laws. After being asked six times whether she would promise to tell the truth, she answered by a nod of her head. We think that the court was justified in permitting the prosecuting attorney to proceed with the examination. People v. Walker, 113 Mich. 369 (71 N. W. 641). But the question remains whether her testimony, as given, was competent, or should have been stricken out as wholly unworthy of any credit. A large part of the forenoon was spent by the prosecution with the witness in an almost fruitless attempt to elicit answers from her. She finally testified that she was lying on the bed on her back. She then refused for some time to answer any questions. Finally, when asked if respondent unbuttoned her drawers, she answered, “No.” After some time this question was put to her: “ Tell me whether or not your drawers were unbuttoned at the time. A. No; my drawers were not unbuttoned.” This was about all that was elicited from the witness during the examination before the noon recess, notwithstanding both the judge and the prosecuting attorney used every endeavor to induce the witness to answer, while her mother sat by her, and the same questions were repéated many times. During the noon recess the prosecuting attorney purchased a doll and some candy for her, upon her promise that she would answer the questions put to her, and tell what she knew about the transaction. In the afternoon she testified more readily, and then said that the assault was committed upon the floor of the-bedroom, and that the respondent unbuttoned her drawers, and, to use her language, “played with my hind end.” Upon cross-examination she absolutely refused to answer many questions, and on re-direct examination flatly refused to answer questions which were very material; and, when the question was put to her by the prosecuting attorney, “Well, you said you -would tell what you knew about it if I would get that doll, didn’t you?” she answered, “I want more candy; candy is good.” And, when asked repeatedly why she would not answer the questions, the only reply was, “Because.”

We dislike to interfere with the discretion and ruling of the circuit judge in a matter of this kind, but we cannot resist the conclusion that such testimony is incompetent, and ought not to be considered where a man is on trial for a charge of such a heinous character that, if guilty, he should be sent to State prison for life. The only evidence in this case upon which this respondent can be convicted is given by two witnesses too young and ignorant to comprehend an oath, and one of whom gave no testimony tending to establish guilt until a promise to speak was elicited from her by giving her presents. Their statements do not agree; and, as already shown, the principal witness repeatedly contradicts herself in the most material matters. We think the testimony of this witness should have been eliminated from the case. It is due to the prosecuting attorney to say that he acted in the utmost •good faith, and with no desire to do anything approaching •impropriety, or to elicit anything but the truth. This is admitted by counsel for respondent. But, notwithstanding this, we think the testimony so obtained, and so contradictory, is too unreliable to be used to convict a man of so heinous a crime.

2. The name of the mother was not indorsed upon the information as a witness. When the people rested their case, the respondent’s attorneys, for some unexplained reason, demanded that the prosecution put the mother upon the stand. The prosecuting attorney did this, and examined her as his own witness. She was permitted to testify to what Gracie told her the next day about the details of the transaction; and not only that, but was also permitted to testify to what the boy 3 years and 1 month old said to his mother about it. The language the little boy used, if true, indicates the depravity, ignorance, and filth of those of this household. She testified that on the following day the little boy said to her, “Mamma, Sam was playing with little Gracie’s hind end today.” The testimony of the mother as to what the boy said was incompetent, and in a criminal case of this character this court will not stop to consider whether the objection to it conformed to the technical.rules of practice or not. Upon the question of the admissibility of the mother’s testimony to what her daughter said to her on the following day we express no opinion.

3. Counsel for respondent preferred the following request :

“The undisputed evidence in this case shows that, if this offense was committed by the defendant at all, it was committed on the afternoon of January 26, 1901, before Silas Metz and Gracie’s father and mother returned home, at between 4 and 5 o’clock in the evening, and while the undisputed proof shows that David Beech and Frank Metz were at the same house; and, if you have any reasonable doubt about its having been committed by the defendant at that time, you must acquit him. You must not convict him on the theory that he committed the offense at any other time, because there is no evidence tending to show that he committed the offense at any other time.”

This was refused, and evidently upon the theory that there was evidence from which the jury might infer that the crime was committed in the forenoon, rather than in the afternoon. It is admitted that the witnesses Beech and Metz were present all the afternoon, and were there when Mr. and Mrs. Metz returned. Inasmuch as a new trial is ordered, it is not necessary to examine the record to determine the question of fact involved in the request. We mention it only in view of a new trial. If the only evidence was that the crime was committed in the afternoon, then the request should have been given; for it is manifest that it was not committed while the witnesses Beech and Metz were there. This question may become important upon a new trial.

Conviction reversed, and new trial ordered.

Hooker, C. J., Moore and Montgomery, JJ., concurred. Long,'J., did not sit.


text:
    PEOPLE v. ROBERTSON.
    False Pretenses — Criminal Intent — Evidence of Other Transactions — Admissibility.
    In a prosecution for obtaining money by falsely representing that a note offered as collateral security was good and collectible, evidence of other transactions, wherein respondent had borrowed small sums and assigned other notes as security, is inadmissible to show criminal intent, where, in some of such cases, no representations were made, and in others the representations were not shown to be false.
    Exceptions before judgment from Hillsdale; Chester, J.
    Submitted February 21, 1902.
    Decided March 4, 1902.
    Harley D. Robertson was convicted of obtaining money by false pretenses.
    Reversed.

      C. M. Weaver and B. E. Sheldon, for appellant.

      William H. Erankhauser, Prosecuting Attorney, for “the people.
   Grant, J.

Respondent borrowed $15 from’ one Samuel J. Gier, and assigned to said Gier, as security therefor, a promissory note, made by one W. D. Drake, for the sum of $25. The crime charged is that the respondent obtained this $15 by falsely representing that “said note for $25 was good and collectible, and that W. D. Drake was well able to pay, and would pay the same when due. ” Respondent repaid Gier his loan, and demanded his note; but Gier had placed the note in the hands of the prosecuting attorney at that time, and, about a month after repayment, the warrant for his arrest was issued. He was convicted.

The prosecution, in order to show criminal intent, was permitted to introduce evidence of five other transactions where the respondent had borrowed small sums of money and had assigned other notes as collateral security. In some of the cases no representations were made, and in others there was no testimony to show that the representations which were made were false. There was nothings in any of these cases tending to show any criminal conduct, and therefore they were inadmissible to show criminal intent in the case which was upon trial.

For this error the conviction must be reversed, and new trial ordered.

Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit.


text:
    PEOPLE v. UTLEY.
    1. Intoxicating Liquors — Sale by Druggist — Bonds.
    A druggist who sells liquor without having given the bond prescribed by 2 Comp. Laws, § 5381, is not within the provision of that section exempting from the penalties of the liquor law druggists selling liquor in strict compliance with law, and is therefore amenable to the general law, the same as any other person.

      2. Same — Sufficiency of Information.
    But, there being nothing to prevent a druggist from becoming a retailer of liquor on giving the bond prescribed by section 5386, an information which charges him with selling liquor without having given a druggist’s bond, but which fails to negative the giving of a retailer’s bond, is fatally defective.
    Exceptions before judgment from Newaygo; Palmer, J.
    ’Submitted February 21, 1902.
    Decided March 4, 1902.
    Charles P. Utley was convicted of violating the liquor law.
    Reversed.

      E. L. Brooks, for appellant.

      George Luton, Prosecuting Attorney, for the people.
   Hooker, C. J.

The defendant was convicted under the provisions of the liquor law. It is claimed that he was a druggist, and that he sold liquor as such without having given a druggist’s bond. His counsel contends, in substance, that the law does not provide for the punishment of a druggist who, sells without having first given a druggist’s bond.

The general liquor law is not aimed at the two classes of persons usually supposed to sell liquors, viz., saloon keepers and druggists, alone. It applies to any one who sells liquor in contravention of its provisions. It contains a requirement that all persons who wish to engage in the sale shall file a bond of a prescribed form, and excepts from this provision druggists who see fit to file a bond of different form, also prescribed. Until a druggist files the latter bond, he is within the former provision, and is a retailor if he sells liquor in quantities of three gallons or less. 2 Comp. Laws, § 5380. If he has proved that he was a druggist, and has given the prescribed druggist’s bond, he is not liable for sales made as a druggist, under the complaint j but, if he has not given a druggist’s bond, he is liable under the law as any other man would be. The law does not purport to give immunity from its penalties to all druggists, but only to such druggists as. “sell liquors for chemical, scientific, medicinal, mechanical, or sacramental purposes only, and in strict compliance with law. ” Id. § 5381. No druggist sells liquor in compliance with law until he gives a bond. Such are not druggists within the contemplation of the law.

But the information is insufficient to sustain this conviction. It charges the defendant with selling liquor without giving the bond prescribed by section 5381, — i. e., the druggist’s bond, — but it does not allege that he has sold liquor unlawfully, because it does not state that he has not given the retailer’s bond prescribed by section 5386. The law does not prohibit a druggist from being a retailer of liquor, provided he is willing to pay the tax and give the retailer’s bond; but it does permit him to sell for certain purposes, and in certain methods, without giving the retailer’s bond, if he gives another bond, and not otherwise.

Inasmuch as this information will not support the conviction, we have no alternative but to set aside the verdict and discharge the respondent. It is so ordered.

Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit.


author: Montgomery, J.

text:
    ATTORNEY GENERAL, ex rel. PENNEY, v. GRAMLICH.
    i
    1. Municipal Corporations — Representation on Board op Supervisors — Legislative appointment — Constitutional Law.
    Article 10, § 7, of the Constitution, provides that cities shall have such representation on the county board of supervisors as the legislature may direct. By Act No. 485, Local Acts 1901, it was provided that the aldermen of three (of the fifteen) wards of the city of Saginaw should be members of the board of supervisors, and represent the city thereon, until a specified date. The act retained certain existing city members of the board, — among them, one supervisor elected by each ward, — the aldermen mentioned being substituted for certain other members. Held, that the provision was void as an attempt to confer on such aldermen authority which their constituency could not confer, amounting to a legislative appointment to office.
      Attorney General v. Cogshall, 107 Mich. 181, distinguished.
    2. Same.
    Since, with the above provision eliminated, the act would operate to reduce the representation of the city on the board, — an intent not imputable to the legislature, — the whole act must fail.

      Quo toarranto proceedings by Horace M. Oren, attorney general, on the relation of Harvey A. Penney and others, against Matthew Gramlich and others, to try the title to the offices of members of the board of supervisors of Saginaw county.
    Submitted February 18, 1902.
    Judgment for respondents March 11, 1902.

      Horace M. Oren, Attorney General (John F. O'Keefe and Humphrey & Grant, of counsel), for relators.

      Henry E. Naegely and Ernest A. Snow, for respondents.

       For a somewhat analogous case, see Cook Farm Co. v. City of Detroit, 124 Mich. 426, 429 (83 N. W. 130).

   Montgomery, J.

Of the respondents, five were members of the board of review, one is the recorder, and the other the city attorney, of the city of Saginaw. Under the city charter as it 'existed prior to June, 1901, the respondents were also members of the board of supervisors of that county, entitled and authorized to represent the city iipon that board. The legislature of that year made many amendments to the charter, and among them was an act passed June 8th, which act has the following provision :

“The supervisors of the several wards of said city shall be members of the board of supervisors of Saginaw county, and shall perform all the duties of supervisors of townships, except as herein otherwise provided, and except as to such duties as are herein especially devolved upon other officers of said city, and shall be entitled to the same compensation as township supervisors, and to such additional compensation as hereinbefore provided. The assessor, controller, treasurer, and aldermen of the Fifth, Sixth, and Seventh wards shall be members of the board of supervisors of Saginaw county, and represent the interests of this corporation in said board, and as such supervisors shall be entitled to receive the same compensation as other supervisors for attendance upon said board: Provided, that the terms of the supervisors of the Fifth, Sixth, and Seventh wards, herein created, shall expire January 1st, 1903.” Act No. 485, Local Acts 1901.

The relators, claiming the right to these offices under that act, demanded possession, were refused, and thereupon instituted this action in quo warranto to test their titles. The constitutionality of the act is assailed.

We are very clear that the legislation here involved should not be sustained. The Constitution (article 10, § 7) provides that “cities shall have such representation in the board of supervisors of the counties in which they are situated as the legislature may direct.” It cannot be ■maintained that the legislature, under this constitutional provision, has the power to appoint supervisors to represent a city on the board. It was held in Attorney General v. Cogshall, 107 Mich. 181 (65 N. W. 2), that the legislature might provide the manner in which representatives on the board of supervisors should be chosen by the people of a city, and also that the legislature might transfer the functions of the office of supervisor to another officer, chosen by the same constituency. But that case in no way meets the question here involved.

. It is undoubtedly true that the legislature may provide that the representatives of a city on the board of supervisors may be chosen by the electors of the various wards, or by the city at large, under this constitutional provision. If supervisors are authorized to be chosen by wards, the people of the various wards are, to the extent of the power thus conferred, agencies of the city, exercising authority delegated to them, in choosing a representative to represent the interests of the city upon the board. It may be that a distinction might be made between the various wards of a Pity, and representatives upon the board of supervisors be given to the ward, or rather authority to choose representatives of the city be conferred upon the ward, with some reference to its population or property interests. But that does not meet the question involved in this case.

In the present case the act undertakes to confer upon the aldermen of the Fifth, Sixth, and Seventh wards the authority to act as members of the board of supervisors of Saginaw county, and to represent the interests of the city on said board. When these officers were chosen, there was no power in the electors of these three named wards to choose these aldermen as representatives of the city on the board of supervisors. It is true that .the electors of each of these wards had authority to choose one representative on the board of supervisors, but this officer is still retained. There was no authority, when the aldermen were elected, to choose more than one representative. In the Cogshall Case it was held that, where power existed in the electors of a ward to choose a representative on the board of supervisors, the legislature might transfer the functions of the supervisor to the alderman of the same ward. It was said by Mr. Justice McGrath:

“It is not an attempt by the legislature to appoint to office, but a simple transfer of functions heretofore exercised by one official to others, who have been chosen as officials by the same constituency.”

That is not this case. In the present case the officers chosen by these wards to represent the interests of the city on the board retain their offices and their functions. The attempt, then, is by the legislature to confer upon named officers an authority which their constituents had, at the time they were elected, no power to confer upon them. If it were possible to do this, any number of existing officers in one of the wards might be designated to perform the important functions of supervisors. In what way this differs from a legislative appointment to office, we are unable to see.

It is said that the legislature may confer upon existing officers of the city the functions of supervisor. This is true. But in doing so it simply transfers from one officer to another, chosen, directly or indirectly, by the same constituency, the power previously exercised by the incapacitated officer. But in this case the constituency which chose these aldermen had no power to choose either them or any one else to exercise these functions; and when it is once granted that, however chosen, the supervisor who, under-this section of the Constitution, is authorized to represent the city, acts on behalf of the city, we-think it clearly follows that he must be an officer chosen either by the city at large or by a constituency ivhich had the poiver, at the time he was chosen, to elect him for that purpose. That he is a representative of the city is recognized by the very language of the act in controversy, which reads:

“The assessor, controller, treasurer, and aldermen of the Fifth, Sixth, and Seventh wards shall be members of the board of supervisors of Saginaw county, and represent the interests of this corporation in said board.”

As it cannot be assumed that the legislature intended to deprive the city of full representation upon the board, we think the act, as it relates to this subject, cannot be sustained in part, but should be declared unconstitutional, and that judgment should be entered for the respondents.

Hooker, C. J,, Moore and Grant, JJ., concurred. Long, J., did not sit.