author: Moore, J. Stone, J. Moore, C. J. Blair, J.

text:
    ROHDE v. WAYNE CIRCUIT JUDGE.
    Intoxicating Liquors — Warner-Cramton Act — License — Number of Saloons — Injunction.
    In a village of 830 inhabitants having more than one saloon to 500 inhabitants, as limited by the Warner-Cramton law (Act No. 291, Pub. Acts 1909), three saloon keepers being engaged in business at the time said law took effect and holding over, a new applicant should have been denied a license and was properly restrained from engaging in business by a preliminary injunction.
    ON REHEARING.
    1. Same — Preference—Municipal Corporations.
    Where relator’s application was first considered and granted by the village council, being filed before April 15th, the action of such council was a proper exercise of preference; as it was not intended by the statute to prefer those already engaged in business. Former opinion reversed. Moore, C. J., and Blair, J., dissenting.
    2. Same — Statutory Construction.
    If possible, the court should give effect to every word, clause, and sentence of a statute, and should reconcile the different provisions so as to render the act consistent.
    3. Same — Mandamus.
    The fact that the council unlawfully granted licenses to four applicants, including relator and the three other liquor dealers, should not deprive relator of his remedy.
    4. Same — Location—Statutes.
    That relator intended to conduct a saloon in a residence district without having obtained the oonsent of all property owners within 300 feet, under section 37 of the act, is not a sufficient ground of objection, where the proposed location had been previously occupied for the same purpose.
    Mandamus by Fritz Rohde to compel James O. Murfin, one of the circuit judges of Wayne county, to vacate an order temporarily restraining relator from engaging in the sale of intoxicating liquors in the village of Grosse Pointe, in said county.
    Submitted May 9, 1911.
    (Calendar No. 24,612.)
    Writ denied June 2, 1911.
    Rehearing granted September 29, 1911.
    Writ of mandamus granted March 29, 1912.

      George F. & Peter J. Monaghan (Alex J. Qroesbeclc, of counsel), for relator.
    Miller, Smith, Paddock & Perry, for respondent.
   Moore, J.

The petition filed in the above case prays for a writ of mandamus to compel the respondent, James O. Murfin, circuit judge, to set aside an order granting and continuing a temporary injunction in a case pending before him, wherein Philip T. Yan Zile is complainant and Fritz Rohde and William F. Moeller, county treasurer of Wayne county, are defendants.

The facts which occasioned the issuance of this temporary injunction, as found by the judge, are as follows: That the village of Gl-rosse Pointe has at the present time a population of 830 inhabitants; that on the 2d day of September, 1909, when the so-called Warner-Cramton law went into effect, there were five or six saloons doing business within the corporate limits of the village; that Yan Damme, Krumholz, and Doerr were then doing business; that in April of the year 1910 the relator in this case and William R. Dobson both applied for licenses to engage in business at the same site; that both licenses were granted, and Dobson occupied the premises for about a month, and thereafter ceased doing business, whereupon the relator, who had theretofore been granted a license, engaged in business at the same place, and has since continued operating therein; that on the tenth of April of this year Rohde, Yan Damme, Krumholz, and Doerr all applied for licenses, and all obtained from the village council licenses to do business in this community. The court further found that the record discloses “that there can be no question but that Mr. Rohde’s license was the first one taken up by the village trustees;” that, when they were considering his bond, a protest was made against the granting of the license.

These findings were fully justified by the evidence. The four licenses mentioned above were all granted at the same meeting. The provisions of law to be construed in this proceeding are found in section 39, Act No. 291, Pub. Acts 1909. It is clear that by the terms of this act “the number of licenses issued shall in no case exceed one to every five hundred inhabitants according to the last United States census, except as provided in said section.” We quote therefrom:

“ When applied for in accordance with the provisions of this act, bonds shall be approved by the local board, board of trustees, council or common council in each township, village and city for retail liquor dealers, not to exceed the number doing business in said township, village or city in the month of April, nineteen hundred nine: Provided, that if after this act takes effect the number of retail liquor dealers in any township, village or city shall be in excess of the ratio of one to each five hundred inhabitants, according to the last United States census, no license or licenses shall be issued to any person or persons to take the place of such license or licenses as shall have been revoked as in this act provided, or that shall voluntarily have been surrendered, until the ratio of the licenses granted, and the saloons in such township, village or city shall not exceed one saloon, for every five hundred inhabitants thereof, according to the last United States census: Provided further, that said township board, board of trustees, council or common council, of any township, village or city may by ordinance limit the number of licenses to be granted for such township, village or city; but the number of licenses issued shall in no case exceed one to every five hundred inhabitants according to the last United States census, except as herein provided: Provided further, if the applications for such license filed on or before April fifteenth of any year equal or exceed the maximum number permissible under this section, no further application shall be considered.”

When this law took effect, the relator was not engaged in the saloon business in the village of Grosse Pointe. and Van Damme, Krumholz, and Doerr were, and, at the time this proceeding was commenced, were still doing business there, making three saloons in a village of 830 inhabitants. The village council should not have considered Mr. Rohde’s application, either in April, 1910, or in April, 1911.

Counsel for relator call attention to Hanold v. Common Council of Stambaugh, 163 Mich. 242 (128 N. W. 233), and claim it is controlling in his favor. We think a reference to this case will show it is not in point.

The application of the relator is denied, with costs. See Stenglein v. Saginaw Circuit Judge, 128 Mich. 440 (87 N. W. 449).

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

ON REHEARING.

Stone, J.

A rehearing has been had in this case. The petition of relator prays for a writ of mandamus to compel the respondent to set aside an order granting and continuing a preliminary injunction in a case pending before him, wherein Philip T. Van Zile is complainant and this relator and William F. Moeller, county treasurer of Wayne county, are defendants. See original opinion, ante, 683 (131 N. W. 523).

The original opinion may be referred to for a statement of facts. They are not much in dispute. The relator had, prior to April 10, 1911, filed with the village clerk of the village of Grosse Pointé a written application for license to engage in the retail liquor business. There is no question that this application conformed in all respects to the requirements of Act 291 of the Public Acts of 1909. He was not disqualified from engaging in such business. His application was considered at the regular meeting of the village board on the evening of said day. The record shows that his application was the first considered and approved, and that before action was taken upon other applications. His bond, which appears to have been in conformity with the provisions of said act, was likewise first considered and approved, and that before action was taken on the remaining bonds. This action was in no way modified or changed by any subsequent action of the board. It is conceded in the said bill of complaint that said village was entitled to not more than three saloons, and that four applications were presented.

In the opinion of the respondent continuing the injunction in force, and after giving his views as to the intention of the legislature, he said:

“ This being true, it seems to me that any effort in the case at bar to give a license to do business to Mr. Rohde, who was not doing business at the time this act went into effect, is contravening the express provisions of this act, especially in view of the fact that the other men now licensed to do business by this village council, were doing business at the time the Warner-Cramton law went into effect.”

The application of the relator having been first unanimously approved by the board, I am of the opinion that the respondent erred in his construction of the act, and that we reached a wrong conclusion in our former opinion in this case. Under the circumstances here disclosed, any person not disqualified may apply for a license, and a “new man” stands upon an equal footing with those engaged in the business when the act took effect.

In my opinion, the general object of the Warner-Cram-ton act, so-called, was two-fold; i. e.:

(1) To gradually reduce the number of saloons in a municipality, until the number should not exceed the ratio of 1 to each 500 inhabitants, according to the last United States census.
(2) To improve the personnel of those engaged in the traffic, and the character of the business.

In support of the first proposition, we may quote the language of the first part of section 39, which reads as follows:

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

The last clause of said section is pertinent and significant in this connection. It reads as follows:

“It is understood that in the counties that have adopted local-option, or may hereafter adopt the same, and after-wards vote to return to the license system, there may be established saloons not to exceed one to every five hundred inhabitants of any township, village or city in said counties.”

In support of the second proposition, it is only necessary to refer to the general provisions of the act that a license can be granted only to citizens of the State of Michigan and of the United States. It cannot be granted to a woman, nor to any person who has served time in any State prison or penitentiary of this or any other State, nor to any person who, since the act took effect, has been twice convicted of any violation of the liquor laws of this State, or of any other State. (Section 4.)

I am also of the opinion that the general purpose of this act to improve the personnel of the business is evidenced by the following provision of section 39 of the act:

“Provided further, if the applications for such license filed on or before April fifteenth of any year equal or exceed the maximum number permissible under this section, no further application should be considered; and if such applications exceed such maximum number the township board or village or city council shall grant the maximum number, and shall determine which of the applications so filed shall he granted.”

This provision plainly gives the license-giving authority the power to exercise its discretion and judgment as to which of the applicants, in such a case, are most likely to carry on the business in compliance with the law. If the number of eligible applicants exceeds the number of licenses which can be granted, preference should first be given to those whose applications were filed on or before April 15th, and “after that to applications in the order in which the same are filed. ” In other words, where the number of eligible applications for licenses exceeds the number of licenses to be issued, the license-issuing authority has a right, subject to the above limitations, to determine to whom licenses shall be granted. In making this determination, the act does not provide that preference shall be given to those already engaged in the business. To give any such preference would be to give to those already in business a vested right therein, beyond the life of their licenses, and this cannot reasonably be claimed. This legislation was a reasonable regulation of the business, which the legislature had the power to enact. Reithmiller v. People, 44 Mich. 280-285 (6 N. W. 667); Fuchs v. Grass Lake Common Council, 166 Mich. 569 (132 N. W. 96).

The language that the license-issuing body, in the instance stated, “shall determine which of the applications so filed shall be granted ” is plain and unambiguous. These words should be given their common and ordinary meaning. It is a cardinal rule in the construction of statutes that effect is to be given, if possible, to every word, clause, and sentence. It is the duty of the court, so far as practicable, to reconcile the different provisions, so as to make them consistent and harmonious, and to give a sensible and intelligent effect to each. 86 Cyc. pp. 1128, 1129. This construction of the statute is, I think, a reasonable one; and nothing will tend more effectually to improve the conduct and manner of business of the saloon keeper than to have it understood and distinctly held that in cases like the instance named, i. e., where the applications filed on or before April 15th of any year exceed the maximum number of saloons permissible, the license-issuing body may exercise its discretion and judgment, and determine which of the applicants shall be licensed, without reference to the fact of whether they are, or are not, already engaged in the business.

It is said that if this court grants the writ of mandamus as prayed for, the effect will be to give the village of Grosse Pointe four saloons; while the law says only three should be allowed. The same objection was made in Hanold v. Common Council of Stambaugh, 163 Mich. 242 (128 N. W. 233); but it was held that that fact should not deprive the relator of the relief prayed for, as he was not responsible for the unlawful action of the council.

It is also urged that the right of relator to conduct a saloon at the corner of Jefferson avenue and Fisher road (it being in a residence district) is involved here; and that “consent of all the property owners within three hundred feet of the proposed bar dr saloon ” should be obtained, under the provisions of section 37 of the act. But it should be borne in mind that by the terms of the proviso at the close of said section it is provided that “none of the provisions of this section shall apply to any bar or saloon established and existing at the time this act takes effect.” The bill of complaint in the cause, wherein the injunction complained of was issued, expressly stated that William R. Dobson, for several years prior to May 1, 1910, had been conducting a saloon at the corner of Jefferson avenue and Fisher road in said village. It would therefore appear that said section 37 has no application here.

The writ of mandamus should issue as prayed for, but without costs.

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

Moore, C. J.

(dissenting). An opinion was handed down in this case June 2,1911. It is found ante, 683 (131 N. W. 523). A rehearing has been had. A reference to the opinion which was filed will be helpful now.

I do not think upon any theory of the case a different result should be reached from the one heretofore announced. What was done by the village council about relator’s application was not shown upon the trial in the court below by the records of the village, but was shown by the oral testimony of two of the village trustees. The trial judge found, in addition to what is stated in the former opinion, the following:

“ So far as the record before me now discloses, there can be no question but that the record clearly indicates that Mr. Rohde’s license was the first one taken up by the village trustees, and that before they had completed their action upon, and while they are considering his bond, before it had been approved, a protest was lodged with them against granting the license to this man.”

The record also discloses that at this same session the applications for licenses of three other saloon keepers were considered and approved. It further shows that their bonds were approved; that they paid their license fees, and are now keeping saloons in the village of Grosse Pointe.

In construing the statute, the learned circuit judge expresses himself as follows:

“ It seems to me, to resume, as far as the law is concerned, that a fair construction of the act indicates, first, a desire on the part of the legislature to limit the number of saloons in any municipality or village to 1 to every 500 of the population, with the further proviso that the city authorities or municipal authorities could reduce the number of saloons in each particular location, if they so desire. The act further indicates a desire not to cause this legislation to interfere with existing businesses. Therefore it is provided thatthenumber of licensesin aparticular muncipality may remain the same as there were saloons doing business at the time the act took effect, provided — and this is the significant language of the act, so far as its applicability to the case before me is concerned — that no license should be issued to any person to take the place of such license or licenses as shall have been revoked, or that shall voluntarily have been surrendered. It seems to me that language indicates an expression from the legislature of a method of reducing the number of saloons, where the number was in excess of the ratio prescribed.”

If this is a proper construction of the law, and about that I express no opinion, then clearly the relator was not entitled to a license.

On the other hand, it is said the general object of the Warner-Cramton act, so called, is twofold:

(1) To gradually reduce the number of saloons in a municipality until the number should not exceed the ratio of 1 to each 500 inhabitants, according to the last United States census.
(2) To improve the personnel of those engaged in the traffic, and the character of the business.

If it is conceded that this is the proper construction, it is clear from this record that the village council did not attempt to accomplish either object; and that if we issue this writ as asked by the relator neither of those purposes will be accomplished. If the village council had attempted to accomplish the first of these objects, as it was its duty to do, it would have approved of but three licenses and three bonds; but it in fact at the one session approved four licenses and four bonds. If the village council had attempted to accomplish the second object, above stated, it would, when four applications were presented, have selected therefrom three persons who were most fit, and rejected the application of the fourth one. The record shows it did nothing of the kind, but, on the contrary, approved all four of the applications, without attempting to select the three most fit to conduct the business.

The result of the action of the council is that already the full number of saloons to which the village is entitled are now engaged in business. There is nothing in the record to show that relator’s application was approved, first, because the village council thought he was one of the three most fit to engage in the business, or that the council attempted to improve the personnel of those engaged in the business by rejecting the most unfit.

If this court grants the writ of mandamus as requested, the effect will be to give to the village of Grosse Pointe four saloons; while the law says only three should be allowed to do business in that village. The application should be denied; but, as the rehearing was ordered by the court, it should be without the costs of this rehearing.

Blair, J., concurred with Moore, 0. J.

Blair, J.

I concur in denying the writ. In my opinion, the circuit judge correctly construed the provisions of section 39 of Act No. 291 of the Public Acts of 1909 as giving a preference to retail liquor dealers engaged in business in April, 1909, over other applicants for licenses not so engaged. In construing a statute, it is the primary duty of the court to so interpret it as to give effect to the intention of the legislature. Applying this principle to the construction of the provisions in question, it appears to me to require the construction given by the circuit judge. To my mind, the provisions of this act clearly indicate an intention on the part of the legislature to protect the property of those engaged in business in April, 1909, against loss from being forced out of business, provided they possessed the qualifications for a license required by the statute, and to provide for a gradual reduction of the number by voluntary surrender and by revocation.

Section 37 appears to me to strongly support this view. By that section, existing saloons within a certain distance of churches and schoolhouses, or in a residence district, are protected, although licenses are prohibited for the establishing of new bars or saloons within such limits. Section 39 provides that proper bonds shall be approved, not to exceed the number of dealers doing business in April, 1909:

“Provided, that if after this act takes effect the number of retail liquor dealers * * * shall be in excess of the ratio * * * no license or licenses shall be issued * * * to take the place of such license or licenses as shall have been revoked as in this act provided, or that shall voluntarily have been surrendered, until the ratio of the licenses granted, and the saloons * * * shall not exceed one saloon for every five hundred inhabitants,” etc.

This act took effect September 1, 1909, and its provisions, relative to applications for licenses and bonds, relate, therefore, for the most part, to April, 1910, and ensuing years.

It appears to me, therefore, from the provisions quoted that it was the intention of the legislature that the township boards, etc., in April, 1910, should grant as many licenses and approve as many bonds as there were retail liquor dealers doing business in April, 1909, and still doing business in April, 1910, and that such number could only be reduced by voluntary surrender or by revocation. Unless this be the proper construction, the council or board, in April, 1910, could at once reduce the number of saloons to the statutory ratio, the power to do which would be inconsistent with the provisions now under consideration and with the proviso:

“Provided further, that said township board * * * may by ordinance limit the number of licenses to be granted; * * * but the number of licenses issued shall in no case exceed one to every five hundred inhabitants, * * * except as herein provided.”

The only provisions to which this exception in the proviso can reasonably apply are those providing for licenses to be issued to the number of dealers doing business in April, 1909, which supports the interpretation above given, at least as to the number of dealers entitled to licenses. But, assuming that this interpretation is correct as to the number of dealers, does it follow that the dealers doing business in April, 1909, and still in the business when their applications for licenses are presented, are entitled to preference over other applicants desiring to engage in the business ? It is argued that such construction is excluded by the proviso that if the applications exceed the maximum number “the township board or village or city council shall grant the maximum number and shall determine which of the applications so filed shall be granted.”

If by this argument it is intended to indicate that the maximum number referred to is in accordance with the statutory ratio, without reference to the number in the business in April, 1909, it would seem to be opposed to the view expressed in the opinion of Justice Stone that the statute contemplates a gradual reduction of the number of saloons. As I understand his opinion, the dealers engaged in business in April, 1909, must be taken into account in determining the number of licenses to be granted, but not in determining to whom such licenses shall be granted; or, in other words, that the local legislature cannot reduce the number of saloons, except where the license has been revoked or voluntarily surrendered, but that, where there are 1,700 applicants and only 1,500 licenses can be granted, those applicants in the business possess no superior rights.

I think that the discretion vested in the local licensing body to determine to whom the licenses should be granted should be held to apply only to cases where, a local-option county having returned to sales of liquor, there are no dealers engaged in the business at all, and to cases where such licensing body has, by ordinance, changed the ratio, so as to provide for a less number of dealers, e.g.,1 to 1,000 inhabitants, or to cases where the number of dealers in April, 1909, is less than authorized by the statute, or where, by revocations or surrenders, the original number has been reduced below the maximum, in which event the board may exercise its discretion as to whom it will license to bring the number up to the maximum.

I am firmly persuaded that the legislature, recognizing some elements of justice in the claim that the property of the men engaged in the business should receive some protection — a claim which, though not sustainable in law, had been and was vigorously asserted — and to avoid even the appearance of confiscation, intended by the somewhat contradictory provisions of this section to protect the dealers engaged in the business when the law took effect. I am very much strengthened in this view by the consideration that this must have been the intention of section 37. That section protects the particular saloon keeper in the particular saloon at a particular location, since any saloon located at a new place would be a new saloon, and a saloon at the same place, but by a new person, under a new license, would also be a new saloon. Furthermore, that the law relates to the dealer, and not to the place in which he deals, is indicated by the fact that it is the disqualification of the dealer which gradually diminishes the excess of saloons.

It is clear that the primary intention of the legislature was to limit the number of saloons. I can see a good reason for providing that such limitation should not affect the men already in the business, who should conduct their business with the propriety required by the statute. I can see no good reason for providing that the number of saloons shall not be reduced, except by revocations or surrenders, if all of the old dealers may be turned out, and an entire new set may be put in. Why should the legislature have any hesitation in providing that in 1910 the licensing board should issue the number of licenses required by the statutory ratio, which, in the judgment of the legislature, was a sufficient number, except to protect those already in the business ? Again, I think, viewed from the standpoint of public policy, the same result must follow. A man whose right to continue in the business depends upon his own conduct of the business, regardless of his political influence, is far more likely to conduct his business properly than one who understands that, however upright his behavior, and no matter how closely he observes the law, however much he may have improved his property, and however great his investment, he is liable each year to be turned out of his business by some ward heeler with greater influence with his political boss. This is precisely what, in my view, the legislature sought to prevent.

Moore, C. J., concurred with Blair, J.


source: Caselaw Access Project

author: Brooke, J. Brooke, J. Moore, C. J.

license: Public Domain

text:
    PLOOF v. BANGOR TOWNSHIP BOARD.
    Intoxicating Liquors — Licenses—Statutes—Surrender—Mandamus — Words and Phrases.
    Mandamus does not lie to compel a township board to grant an application for a retail liquor license, in a township of 1,249 inhabitants which had six saloons in April, 1909, and four at the time of relator’s application, two licensees having failed to apply for a renewal; since Act No. 291, Pub. Acts 1909, was intended to reduce the number of saloons to a ratio of one for each 500 inhabitants, and the term “voluntary surrender” used in the law includes failure to renew licenses which have expired.
    ON MOTION FOR REHEARING.
    Same — New Applicant.
    Where it appeared, on a motion for rehearing, that the applicant for the license was a new applicant, but the license applied for had been issued to a liquor dealer during the preceding year, who had failed to apply for a renewal, the license was properly refused to relator.

      Certiorari to Bay; Collins, J.
    Submitted July 5, 1911.
    (Calendar No. 24,660.)
    Decided January 23, 1912.
    Rehearing denied March 29, 1912.
    Mandamus by Philip Ploof against Bangor township board to compel the respondent to grant relator’s application for a retail liquor license. An order issuing the writ is reviewed by respondent on writ of certiorari.
    Reversed.

      Weadoclc & Duffy, for relator.

      Pliny W. Marsh, for respondent.
   Brooke, J.

Relator sought and secured from the circuit court a writ of mandamus requiring respondent—

“ To meet forthwith and grant to relator a license as a retail liquor dealer in said township for the year commencing May 1st, 1911, and that said respondent approve such bond as presented by relator as shall conform to the requirements of law governing bonds of liquor dealers in this State.”

Respondent has removed the case to this court for review by certiorari.

The controlling facts are as follows: The population of the township of Bangor according to the last United States census is 1,249. In April, 1909, there existed in said township six places duly licensed and maintained for the sale of liquor at retail. For the license term running from May 1, 1909, to May 1, 1910, but five licenses were issued in said township; one of the six licensees of the preceding year having failed to apply for a renewal, and there being no new applicant. For the year 1910-11 but four licenses were issued in said township, one of the five licensees of the preceding year not applying for a renewal, and there being no new applicant. For the year 1911-12 the four doing business during the preceding year applied for and received licenses. Relator likewise made application on April 21, 1911, for a license, and presented therewith a bond apparently conforming to the provisions of law. This application was rejected by the respondent board upon the ground that to grant it would be a violation of law.

The rights of the parties depend upon a construction of the words .“voluntarily have been surrendered,” contained in section 89, Act No. 291, Pub. Acts 1909.

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

It is the contention of the relator (and in this the learned circuit judge agreed with him) that there having been six duly licensed places for the sale of liquor at retail in operation in said township in April, 1909, and none having been revoked according to law, the failure to make application for one of those licenses during the year 1909-10, and for two during the year 1910-11, does not amount to a voluntary surrender of said licenses. It is urged that a license can only be surrendered by the holder thereof discontinuing the sale of liquor at retail thereunder while it is still in force, and that the mere failure of the holder (or another) to apply for a renewal thereof at the expiration of the term does not amount to a “voluntary surrender.” We are unable to agree with this contention. A careful reading of the whole act (No. 291, Pub. Acts 1909), and particularly section 39 thereof, convinces us that the primary object of the legislature was to work a gradual reduction in the number of saloons until that number should not exceed one to each 500 inhabitants. Two methods of reduction are provided in section 39 — one by revocation and one by voluntary surrender. Nowhere in the act is the term “voluntary surrender” defined. We have no ^hesitation in holding that where a license expires by limitation, and neither the holder thereof nor any other duly qualified persons make application therefor before the beginning of the ensuing license year, that license must be held to have been voluntarily surrendered within the meaning of the act, and it cannot thereafter be renewed until, under the provisions of the law, the population of the municipality has grown sufficiently to warrant its issuance.

We think it obvious that the legislature had in mind the exact situation here presented. It failed to provide for a return of the unearned portion of the license if surrendered while yet in force, or to define what should constitute a surrender. It is, of course, clear that through lack of applications the number of saloons in the township of Bangor might be reduced to two, and that condition might continue for a number of years. If this were so, and there was no increase in the population, we think it would hardly be contended that simply because there were six saloons in operation in April, 1909, the number could be increased from two to six, thereby defeating the purpose of the legislation, and placing the business in that municipality back exactly where it was when the legislation was enacted.

The judgment is reversed, and the writ denied.

Moore, C. J., and Steere, McAlvay, Blair, Stone, and Ostrander, JJ., concurred. Bird, J., concurred in the result.

ON MOTION EOR REHEARING.

Brooke, J.

Our attention is called to the fact that in our former opinion, ante, 697 (134 N. W. 3), we reached our conclusion upon an erroneous understanding as to the facts. We gathered from the record, as it now appears erroneously, that relator’s application was for a license which had been unissued to any person for an entire license year. It now appears that the license for which application was made by relator was in force from May 1,1910, to May 1, 1911, but that the holder did not apply for a renewal thereof prior to its expiration. Relator made application therefor; and it is his contention that, being a “duly qualified person,” he was entitled to the writ of mandamus under the intimation contained in our former opinion.

Had the facts been as we understood them, it is obvious that it was unnecessary to determine more than' that, under the case there presented, relator was not entitled to the relief sought. Under the situation actually presented, we must decide whether a new applicant is entitled to take the place of the holder of a license, when the old holder declines, for any reason, to ask for a renewal thereof, where the ratio of saloons to population is greater than 1 to 500.

After mature deliberation, we have concluded that he has no such right. We do not mean by this to say that such new applicant may not be granted a license in the plaee of an old licensee, under the power of selection vested in the licensing body; but we are of opinion that the total number of licenses to be granted must be held to have been diminished by one on account of the failure of an old holder to apply for a renewal; that as to that license it must be held to have been voluntarily surrendered, within the meaning of the act. We are led to this conclusion by a consideration of the evident purpose of the legislature, as evidenced by the whole act, which was to gradually work a reduction of the number of saloons until they reached the ratio fixed by the statute, and to effect this end without undue hardship to those already engaged in the business. It is, we think, clear that, but for this latter consideration, the legislature would have at onóe fixed the number of licenses to be granted at the statutory ratio.

These conclusions do not necessarily mean that the legislature sought to, or did in fact, create a property right in the holder of a license to a renewal thereof. It means only that, so long as the holder of a license is able to meet the requirements of the licensing body, and move it to exercise its discretionary power of selection in his behalf, he shall be permitted to remain in the business, even though by so doing the number of saloons continues to be higher than the ratio fixed by the statute. When he fails to apply for a renewal, then the number to be granted is reduced by one, if the number in force is greater than the statutory ratio. Any other construction would clearly prevent any sensible reduction in the number of saloons, to effect -which was, as we have seen, the-cardinal object of the legislation.

Our former conclusion denying the writ is affirmed.

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

Moore, C. J.

I concur in the result but do not approve of the language, which I regard as dictum in this case.

Blair, J., concurred with Moore, O. J.


author: Stone, J.

text:
    SWIFT & CO. v. McMULLEN.
    1. Sales — Warranty op Quality — Sample, Sale by — Evidence op Custom.
    It was error to permit plaintiff, who claimed that certain poultry did not conform to sample, to ask of a witness: “State, from your experience and the custom, how you bought those goods.”
    2. Same — Trial—Inspection.
    Evidence that plaintiff’s agents had full opportunity to inspect, was admissible in support of the vendor’s claim that plaintiff bought after a complete inspection.
    3. Same.
    While the question of an implied warranty might properly have been submitted, it was error to submit to the jury plaintiff’s claim, unsupported by the evidence, that defendant warranted the subject-matter of the contract to be of the same quality as a portion of the goods offered for inspection.
    Error to Wayne; Murphy, J.
    Submitted January 9, 1912.
    (Docket No. 16.)
    Decided March 12, 1912.
    Assumpsit in justice’s court by Swift & Company against Harry B. McMullen for damages for breach of warranty of the quality of certain merchandise. From a judgment for plaintiff, defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.
    Reversed.

      John F. Moloney {Frank W. Atkinson, of counsel), for appellant.

      George B. Greening, for appellee.
   Stone, J.

This is an action of assumpsit, in which the plaintiff seeks to recover damages from the defendant, because of the claimed worthless condition of a quantity of chickens and fowls purchased by the plaintiff from the defendant in March, 1909. The case was finally submitted to the jury by the trial court upon the claim of the plaintiff that there was an express warranty of the defendant that the bulk of the entire purchase conformed in quality to certain parts of the goods which had been inspected by the plaintiff’s agents.

Upon the trial, on the direct examination of Daniel Brill, one of plaintiff’s witnesses, the following occurred:

“Q. State, from your experience and the custom, how you bought those goods.”

This was objected to by defendant’s counsel. The objection was overruled, and the witness was permitted to answer the question, to which defendant’s counsel excepted. It was the claim of the defendant that there was no express warranty, but that the sale was made at a bulk price, subject to the inspection and risk of the inspection of the plaintiff.

Upon the direct examination of the defendant he was asked the following question:

*'Q. Was there anything to hinder or to prevent these parties from making any further or additional inspection, if they wanted to ? ”

This question was objected to by plaintiff’s counsel, as being incompetent and immaterial. The objection was sustained, and defendant’s counsel excepted.

The court charged the jury, submitting the question whether or not there was an express warranty of the quality of the goods, and, among other things, said:

“ In the case at bar, it is the claim of the plaintiff that defendant, as one of the conditions of the sale, one of the inducing causes of sale, stated as a fact that the bulk of the entire purchase conformed in quality to certain parts of the goods which had been inspected by the plaintiff’s agent.
“ If you find that to be established by the proof, gentlemen of the jury, any such statement of fact, inducing the sale, and relied upon by the buyer, would amount to an express warranty. If there was an express warranty given by the seller to the buyer, there then devolved no duty of inspecting the goods by the purchaser.”

The jury returned a verdict for the plaintiff, and a judgment accordingly was entered.

The defendant has brought the case here, and among other errors assigned are the following:

(1) That the court erred in overruling defendant’s objection to the above question propounded to the witness Daniel Brill.
(6) That the court erred in sustaining the plaintiff’s objection to the above question propounded to the defendant.
(16) That the court erred in charging the jury as above set forth.

If there was an express warranty, it is difficult to understand the materiality of the question to the witness Brill, relating to the custom and experience of the witness.

The theory of the defendant was that the plaintiff purchased on the inspection of its agents, and we think that it was material for the defendant to show that the plaintiff’s agents had full opportunity to inspect the goods.

However, the most important question in the case is whether there was any evidence in the case of an express warranty. After a careful reading of the record, we are unable to find any evidence of an express warranty that justified the court in submitting that question to the jury. Counsel for plaintiff has not pointed out, or called our attention to, any such evidence. This is not a case where the verdict is contrary to the weight of the evidence simply, but a case where there was no evidence to submit to the jury upon the subject of an express warranty. Nowhere was there any evidence of an express warranty. It would have been a fair question whether there was an implied warranty, or whether the plaintiff bought relying upon its inspection, and the defendant might have been held precluded upon the subject of inspection by the answer to the special question submitted to the jury, by him. But neither of those questions was submitted.

The sole question submitted to the jury was that of an express warranty. It is familiar doctrine that “Juries must decide upon evidence; they cannot guess at facts in default of evidence.” County of Marquette v. Ward, 50 Mich. 174 (15 N. W. 70).

For this error, we are constrained to reverse the judgment of the court below, and grant a new trial.

Moore, C. J., and Steers, McAlvay, Brooke, Blair, and Ostrander, JJ., concurred. Bird, J., did not sit.


text:
    HIGHLAND PARK ASSOCIATION v. BOSEKER.
    1. Associations — Lease—Concessions—Summer Resorts.
    A summer resort association organized under 2 Comp. Laws, § 7618 etseq., the by-laws of which provide for leasing property to members of the association and that members should be governed by by-laws thereafter enacted, had authority under the statute and its by-laws to lease lots, a dwelling, store, bathhouse, and dancing pavilion, and subsequently to change the rental, by resolution, as to an assignee of the lease who assented to the rental and agreed to sign written contracts but occupied the concessions for a year without executing them.
    2. Same — By-Laws.
    The power to make reasonable by-laws for the management, control, and disposition of property, affairs, and concerns of the association is conferred by the statute, and authorizes the granting of concessions and privileges upon its grounds.

      3. Same — Retroactive Rules.
    Parties in such mutual organizations may agree to be bound by subsequently enacted by-laws.
    4. Same — Reasonableness.
    The question of the reasonableness of the regulation as to rentals was for the jury.
    Error to Ottawa; Padgham, J.
    Submitted January 10, 1912.
    ( Docket No. 31.)
    Decided March 12, 1912.
    Assumpsit by the Highland Park Association against August Boseker for the use and occupation of premises. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      George A. Farr, for appellant.

      Smedley, Linsey & Lillie, for appellee.
   Stone, J.

The plaintiff is a “summer resort association,” organized under the provisions of chapter 207, 2 Comp. Laws, and amendments. The defendant is a member of the plaintiff association. This action was brought to recover the sum of $125, the price or value placed by the association upon certain concessions and privileges granted to the defendant, as will more fully appear hereafter. The case was tried before the circuit judge without a jury, and the following findings of facts and conclusions of. law were made and filed before the judgment for the plaintiff was entered:

“ Facts.
“(1) Plaintiff is a corporation organized and doing business under chapter 189 of Howell’s Statutes of Michigan and the acts amendatory thereto, being chapter 207 of C. L. 1897, and acts amendatory. The said corporation is located in the city of Grand Haven, Ottawa county.
“(2) The said association, plaintiff, on, to wit, October, 1895, leased lot No.-, to one John Walker for a period of 30 years. The said Walker afterwards, to wit, March 17, 1902, assigned said lease to defendant, August Boseker, who is still owner of said lease.
“(3) The said plaintiff association, afterwards, to wit, May 1,1909, leased to said August Boseker two other lots, to wit, lots 211 and 219, for a period of 30 years. Said Boseker still holds and owns said lease.
“(4) On the said lot first leased to said Walker is a building used for dwelling, store, and bathhouse, and on said lots 211 and 219 is a dancing pavilion, and other buildings used and connected therewith.
“ (5) The said lessee pays as rental for each of said lots a yearly rental of $10. In each of the said leases above mentioned, among other things, is the following clause, to wit: ‘ It is expressly agreed that the holder of the said above described premises is subject to the rules and regulations which shall from time to time be made by the Highland Park Association for the government of the same.’ The said Boseker is a member of the said association.
“ (6) On, to wit, the 3d day of December, 1909, at a meeting of the board of trustees of said Highland Park Association, the following rule or regulation was adopted by the said board of trustees, viz.: The value of the concessions and privileges now used by August Boseker was discussed, and the secretary was instructed to write him a letter and give him the following schedule of prices that he will have to pay for the privileges in the year 1910, viz.: Dancing pavilion, $50; popcorn and peanut stand, $25; candy, cigars, and ice cream, $25; rent of bathing suits and boats, $25 — total, $125.
“(7) The defendant, Boseker, was duly notified of the said charges which had been so fixed by the said board of trustees, and also notified that if he used such privileges and concessions in the year 1910 he would have to pay therefor the amounts so fixed by the said board of trustees, and contracts were drawn between the parties to that effect to be signed. By-law 8. The said Boseker read the said contracts and promised to sign them, but never did, although said Boseker used all of said concessions during the year 1910, and at the close of the resort season of that year, the said sum of $125 was demanded of said Boseker by the treasurer of the said plaintiff, and said Boseker then refused to pay the same or any part thereof, and this suit was brought by order of the board of trustees.
“(8) Section 12 of chapter 207, Laws of 1897, reads in part as follows: (7629) Sec. 12. ‘ The stockholders shall have power to make such reasonable by-laws, not inconsistent with the laws of this State or of the United States as they shall deem proper for the management, control and disposition of the property, affairs and concerns of said corporation, etc.’
“(9) By-law No. 20, of said Highland Park Association, reads as follows — which said by-law was read in evidence on the trial (twentieth): ‘The board of trustees are given charge of all of the business and property of the association, its police and sanitary regulations, and is fully authorized to act for the association as if the association passed a vote authorizing such action and is in this regard unrestrained, except by the by-laws or some direct vote of the association therefor.’
“(10) By-law No. 22 of said association reads as follows (twenty-second) : * The board of trustees shall not have power to make any special concessions such as the selling of popcorn, ice cream, etc., conducting a dancing pavilion, hotel or any other concessions usual at summer resorts for a period of more than five years.’
“ (11) The concessions above enumerated were granted by the said board of trustees to the said Boseker for a term of not exceeding five years.
“ (12) The money charged, and received for concessions such as the concessions used by Boseker, is to be used and put into the general improvement fund for building walks, keeping the grounds in a sanitary condition, etc. I find that the charge of $125 for said concessions was not unreasonable in amount.
“ The Law.
“ From the foregoing facts I am of the opinion that the plaintiff is entitled to recover a judgment against the defendant for the sum of $125, and the costs to be taxed. It is therefore ordered by the court that the plaintiff do recover of the defendant the said amount of $125, and costs to be taxed. Let judgment be entered accordingly.”

By-law No. 8 of said association is as follows:

“Any member of the said association may lease a lot of the association at its appraised value as hereafter fixed by the board, and no member shall hold more than one lot except by special permit of the board of trustees, and each member leasing a lot shall enter into a lease signed by the president and secretary and by the party leasing the same, to be executed in duplicate, and the lease shall be subject to the payments of the rents and other covenants, restrictions and forfeitures mentioned in said lease, and to such regulations, restrictions and additional rents or assessments as may be imposed by the articles of association and by-laws, and such further regulations and restrictions as may be prescribed by the board of trustees.”

The defendant has brought error, and his only assignment of error is that the circuit judge erred in his conclusion of law, and that the facts found do not support said conclusion of law. Counsel for appellant says in his brief:

“But one question appears for decision in this case; that is whether, under the proofs, the defendant was entitled to a judgment.' The claim of the defendant is that the proofs show no legal liability on his part. * * * It is claimed by the defendant that the plaintiff had no authority or legal right whatever to demand of the defendant the sum of $125 for so-called concession, under the facts above stated.”

We think that the plaintiff may well stand upon the contractual relations existing between the parties to the suit. A reference to the terms of the lease, the by-laws, and the general statute above set forth, and referred to, will in our opinion fully justify the plaintiff in its claim here asserted. The trial court distinctly found that the charge of $125 for said concession was not unreasonable in amount. There was evidence to support its finding.

The right to grant the privilege or concession is fully sustained by the following authorities: Barney v. Steamboat Co., 67 N. Y. 301 (23 Am. Rep. 115); Godbout v. Union Depot Co., 79 Minn. 188 (81 N. W. 835, 47 L. R. A. 532); Dingman v. Railway Co., 164 Mich. 328 (130 N. W. 24, 32 L. R. A. [N. S.] 1181).

We think that the power to make reasonable by-laws “for the management, control, and disposition of the property, affairs, and concerns of said corporation ” is given by the very terms of the statute. Such associations have a right to sell concessions and privileges to do certain acts upon their grounds, as incident to the ownership thereof. We are of the opinion that Northport, etc., Campmeeting Ass’n v. Perkins, 93 Me. 235 (44 Atl. 893, 48 L. R. A. 272, 74 Am. St. Rep. 342), relied upon by defendant, can be readily distinguished from the instant case. There the defendant was not a member of the association, and there were no contractual relations existing between the parties. There the plaintiff did not attempt to regulate the business upon its property, and within its jurisdiction, but it attempted to regulate the use of the public streets. The streets being open to public use, the plaintiff had no power to prevent their use by the cottagers, or by the defendant.

In a case like the one we are considering, the validity of by-laws and regulations relating to the management of the property, affairs, and business of the association, depends upon the fact of their, being reasonable, and their reasonableness depends upon particular circumstances or matters in pais, and'is therefore a question for the jury. 10 Cyc. p. 350, and cases there cited.

We have held that parties to a mutual organization expressly agreeing to be bound by after-enacted by-laws are bound thereby. Borgards v. Insurance Co., 79 Mich. 440 (44 N. W. 856); Wineland v. Maccabees of the World, 148 Mich. 608 (112 N. W. 696); Brown v. Great Camp K. O. T. M. M., 167 Mich. 123 (132 N. W. 562). In his lease the defendant expressly agreed to be bound by the rules and regulations which should, from time to time, be made by the plaintiff for the government of the property leased. We think that the conduct and action of the plaintiff in the particulars here involved were well within its lawful authority.

We find no error in the record, and the judgment of the circuit court is affirmed.

Moore, C. J., and Steere, McAlvat, Brooke, Blair, and Ostrander, JJ., concurred. Bird, J., did not sit.


author: Brooke, J.

text:
    CHAPMAN v. BOARD OF SUPERVISORS OF MUSKEGON COUNTY.
    1. Physicians and Surgeons —Counties —Board of Health — Contract for Services.
    Upon an appeal by a physician from the action of the board of supervisors of Muskegon county, disallowing his account for services rendered to indigent patients, it was not necessary, after the township board of health had determined by resolution that the patients were financially unable to pay, for plaintiff to establish by other evidence that such patients were indigent persons.
    2. Same — Health—Poor Laws — Board of Health — Townships —Supervisors.
    Where plaintiff, after calling on an indigent person, informed the supervisor of the township in which the patient resided of the situation, and the supervisor merely said he would present the physician’s bill to the board of supervisors, and the physician proceeded to perform services for which he presented an account to the township board of health, and the board certified it to the board of supervisors, a finding of the trial court that there was a valid contract of employment between plaintiff and the board of health was supported by the evidence.
    3. Appeal and Error — Constitutional Law.
    An appeal lies, under the Constitution and Act No. 58, Pub. Acts 1909, to the circuit court, from the action of the board of supervisors disallowing a physician’s claim for services rendered prior to the passage of the act or adoption of the Constitution. Const., art. 8, § 9.
    A Physicians and Surgeons — Health—Contracts.
    But such physioian could not recover for services performed by another physician tinder claimant’s direction and during claimant’s absence.
    5. Same — Quasi Contracts.
    For medicines supplied by claimant, administered by the physician, recovery was warranted.
    Error to Muskegon; Sessions, J.
    Submitted January-17, 1912.
    (Docket No. 113.)
    Decided March 12, 1912.

      Vernon A. Chapman presented an account for services rendered to the board of supervisors of Muskegon county. The claim was disallowed. On appeal to the circuit court judgment for a part of the amount claimed was entered. Both parties appeal.
    Reversed.

      William Carpenter, for plaintiff.

      Alex Sutherland, Prosecuting Attorney, for defendant.
    Plaintiff, a physician, rendered professional services to one Bessie Peterson, an alleged indigent resident of Fruit-land township, Muskegon county. He also rendered like services to other children of John Peterson. The plaintiff’s bill, rendered by him to the township, shows that the services were rendered between January 4, 1903, and March 22, 1905, the total value of which is placed at $354.40. The record shows that plaintiff started to attend Bessie Peterson some time before he claims to have been directed to care for her and other members of her family by the supervisor of Fruitland township. His talk with the supervisor occurred on March 11, 1903, and he personally continued to furnish medicine and make professional calls upon the young woman until October 4, 1903, when he removed to Chicago, having arranged with Dr. Smith to take care of Bessie Peterson for him. The account rendered includes charges from January 4, 1903, to March 11, 1903, as well as charges from October 4, 1903, to March 22, 1905, during which last-named period the services were rendered by Dr. Smith at the request of plaintiff and upon his account, though the medicines furnished during this period were plaintiff’s medicines. An abortive attempt was made by plaintiff to collect this account from the township, after the board of health of the township had repudiated liability. Later, and in January, 1909, a new board of health having been elected in Fruitland township, plaintiff again presented his claim, and the following action was taken:

      “Fruitland, Michigan.
    “January 8th, 1909.
    “Board of health, Fruitland township, met at the clerk’s office in said township on the above date for the purpose of taking such action as the law directs in reference to the medical attendance furnished and medicines supplied to one Bessie Peterson by Dr. V. A. Chapman during the years 1903 and 1905, and for the transaction of such other business as may lawfully come before the board. Board called in session by C. K. Bristol, supervisor, chairman. Present a full board. The bills of Dr. V. A. Chapman, one for professional service rendered to and medicines furnished for Bessie Peterson, and one of the same nature on account of the children of John Peterson, were taken up, considered and acted on as follows: Moved and seconded that it is the sense of this board that John Peterson was not at the time when these expenditures were incurred, financially able to pay them. Carried unanimously. Moved and seconded that the said bills be and they are hereby accepted and made an itemized statement of expenses (such as the board of health shall keep in such cases) incurred for Bessie Peterson and the children of John Peterson, they being indigent persons. Carried. Moved and seconded that said bills (or statements) be rendered to the board of supervisors of Muskegon county, Michigan, by filing the same with the county clerk of said county and that the same be certified by this board. Carried. The board did then adjourn.
    “ Wi. Jones, Township Clerk.
    “ C. K. Bristol, Supervisor.
    “-, Justice of the Peace.
    “-, Justice of the Peace.”
    Thereupon the matter was presented to the board of supervisors for Muskegon county, which disallowed the claim without a hearing. Plaintiff then secured a writ of mandamus compelling the board at its next session to proceed to audit plaintiff’s claim, and to allow and pay such amount as should be found after investigation and audit to be due plaintiff. In compliance with this writ a hearing was had and the account again disallowed in toto. An appeal was then taken from the decision of the board to the circuit court for the county of Muskegon, where the case was heard by the court without a jury, and a judgment was rendered in favor of the plaintiff in the sum of $152.87.
    The circuit judge made the following findings of fact and law:
    “(1) The plaintiff, Vernon A. Chapman, is a regularly-licensed and practicing physician, and was such in the year of 1903.
    “(2) As such physician he rendered medical services and furnished medicines to the Peterson family, who resided in the township of Fruitland, in said county, from January 4, 1903, to March 22, 1905, and said medical services were rendered and medicines furnished to Bessie Peterson, a member of that family who was afflicted with tuberculosis of the bowels. That from March 11, 1903, to April 10, 1903, medical services were rendered and medicines furnished to four other children of the Peterson family who were sick with measles.
    “(3) From January, 1903, to October 4, 1903, the medical services rendered and medicines furnished to this family were rendered and furnished personally by Dr. Chapman, plaintiff in this cause. About the 1st of October, 1903, Dr. Chapman removed from Whitehall to the city of Chicago, and remained away*during the balance of the time Bessie Peterson was under treatment.
    “(4) From October 4,1903, to March 22, 1905, the medical services rendered were rendered by Dr. Smith of Whitehall, to whom Dr. Chapman had sold his practice.
    “ (5) The services rendered by Dr. Smith were rendered under an arrangement or agreement between him and Dr. Chapman and for Dr. Chapman. Dr. Smith refused to render the services for the township of Fruitland or for the public because of certain difficulties in other cases that he had with the township board of health.
    “ (6) By the agreement between Dr. Chapman and Dr. Smith, the latter was to take care of the case of Bessie Peterson, and Dr. Chapman was to pay him therefor. It is not clear whether or not Dr. Smith has ever been paid for the services he rendered. There is an open account between the two doctors that is still unsettled. All the medicines given by Dr. Smith to Bessie Peterson were furnished to him by Dr. Chapman.
    “ (7) Neither the township board of health of Fruitland township nor any member thereof had any information or knowledge of the arrangement between Dr. Smith and Dr. Chapman for the rendering of these services, and neither said board of health nor any member thereof had any knowledge or information that Dr. Smith was rendering these services for Dr. Chapman, and that the public was expected to pay for the same.
    “(8) On the 12th day of March, 1903, Dr. Chapman met the supervisor of the township of Fruitland, and informed him that he had been called in to the Peterson home the night before and found four of the children sick with the measles, that Bessie Peterson was sick with tuberculosis of the bowels, and that the case was a public charge, for which the county was liable.
    “(9) Dr. Chapman informed the supervisor that he had been attending Bessie Peterson for some time, and that he had received pay for a portion of. the services rendered, but that the family was poor and unable to pay him for further services, and that he would not render any further services or attend the family further unless he should receive his pay from the county.
    “(10) The supervisor, Mr. Todd, then informed Dr. Chapman that, if he would go ahead and treat the patients, he, Todd, would present the bill to the board of supervisors of the county, and this was the only talk any member of the board of health of Fruitland township ever had with Dr. Chapman about attending the Petersons.
    “ (11) Dr. Chapman had no further or different agreement with the supervisor, Mr. Todd, and the township board of health of Fruitland, as a board, never had any talk with Dr. Chapman nor ever took any action directing him to treat any of the Peterson family, and, when Dr. Chapman presented his bill to the said board of health, it refused to pay the claim, or to have anything to do with it.
    “(12) This claim was first presented to the board of supervisors of Muskegon county in 1905, and was rejected by the board because the bill was not certified by the local board of health of the township of Fruitland in the manner prescribed by law, and because the board determined, acting under the advice of the then prosecuting attorney, that tuberculosis of the bowels was not a dangerous and communicable disease, and that the county was not liable.
    “(13) Thereafter Dr. Chapman brought a suit against the township of Fruitland to recover upon his claim, and he was defeated in that action in this court upon the ground that the township of Fruitland was not liable, and that, if any one was liable, it was the board of supervisors of Muskegon county.

      “ (14) The township board which constitutes the board of health of the township of Fruitland, which certified this account to the board of supervisors in January, 1909, had changed in personnel from the board in existence during the time the services were rendered.
    “(15) The claim was again presented to the board of supervisors, properly certified by this township board, in 1909, and was again disallowed.
    “ (16) Subsequently Dr. Chapman applied to this court for a mandamus on the ground that his claim had been rejected by the board of supervisors without giving him a hearing, and this court, after hearing him, issued a writ of mandamus requiring the board to audit the claim.
    “(17) Thereafter, and in January, 1911, Dr. Chapman had a full and fair hearing on his claim, and, after such hearing before the board of supervisors, it was again disallowed.
    “(18) After the claim was last disallowed, Dr. Chapman took an appeal from that action of the board of supervisors to this court under the provisions of the Constitution of 1909 and the statutes of 1909.
    “(19) The medicines furnished by Dr. Chapman to Dr. Smith for Bessie Peterson subsequent to October 4, 1903, and not included in charges for the visits of Dr. Smith, amounted to $64.75.
    “ On these facts the court reaches the following conclusions of law:

      “(a) This court had jurisdiction, under the circumstances of the case, to hear and determine this appeal under the Constitution of 1909 and the statutes of 1909, though the obligation accrued before the adoption of the Constitution of 1909.
    “(6) The State had a right to grant or to take away the right to sue itself or any of its agencies.
    “(c) The local board of health in 1909, after the services had been performed and after the matter had been closed, and after the contract, if any existed, had been performed, could not conclusively bind the county of Muskegon to the payment of a sum of money by certifying the claim.
    “(d) The effect of such certification was only to permit the claimant, Dr. Chapman, to properly present the claim to the board of supervisors, and have it audited and passed upon by that board.
    “(e) The board of supervisors had a right to determine whether or not there was a legal contract of hiring made between Dr. Chapman and the local board of health of Fruitland township.

      “(f) This court, upon this appeal, has a right to determine whether or not a valid contract of hiring was made between the local board of health and Dr. Chapman.

      “(g) There was a legal contract of hiring between Dr. Chapman and the local board of health which bound the board of supervisors of the county of Muskegon to pay to him the reasonable value of his services rendered and medicines furnished to the Peterson family from March 12, to October, 1903.

      “(h) There was no legal contract of hiring between Dr. Chapman and the local board of health for the services rendered by Dr. Smith after October 4, 1903, nor for the services rendered by Dr. Chapman to Bessie Peterson prior to March 12, 1903.

      “(i) Dr. Chapman is entitled to recover for his services rendered and medicines furnished from March 12, 1903, to October, 1903, being for services rendered to Bessie Peterson and the other Peterson children, amounting to $134.25, with interest at 5 per cent., which amounts to $18.62.

      “(j) Dr. Chapman is not entitled to recover the balance of his claim.

      “(k) The plaintiff, Yernon A. Chapman, is entitled to judgment in the sum of $152.87 damages, and his costs of suit, to be taxed in accordance with the statute.”
    Prom this judgment both parties appeal.
   Brooke, J.

(1) It was not shown that Bessie Peterson was an indigent person.
(2) There was no evidence of a legal contract.
(3) The board of supervisors having disallowed the claim, their decision is final.

The first claim may be disposed of by noting that the health board of the township by resolution determined that at the time the services were rendered John Peterson was not financially able t® pay for them. Moreover, this court has held that, in case of a legal employment, the pecuniary ability of the patient is not controlling. Elliott v. Kalkaska County Supervisors, 58 Mich. 452 (25 N. W. 461, 55 Am. Rep. 706); McKillop v. Cheboygan County Supervisors, 116 Mich. 614 (74 N. W. 1050); Township of Cedar Creek v. Wexford County Supervisors, 135 Mich. 124 (97 N. W. 409); Board of Supervisors of Arenac County v. Iosco County Supervisors, 158 Mich. 344 (122 N. W. 629).

The second point made is ruled by the decision of this court in Pierce v. Gladwin County Supervisors, 136 Mich. 423 (99 N. W. 1132), against defendant’s contention.

Will an appeal lie from the determination of the board of supervisors ? It will be noted that the services, for which compensation is sought, were all rendered before the adoption of the Constitution of 1909. Section 9 of article 8 provides:

“Appeals may be taken from such decisions of the board of supervisors, or auditors, to the circuit court in such manner as shall be prescribed by law.”

Section 2 of Act No. 58, Pub. Acts 1909, provides that:

“When the claim of any person, firm or corporation against a county shall be disallowed in whole or in part by the board of supervisors or board of county auditors, such person, firm or corporation may appeal from the decision of such board to the circuit court for the same county.”

The language of this act is very broad. No intimation is there given that appeals will lie only in those cases where the claim arose subsequently to the passage of the act. The right given apparently covers every case of total or partial disallowance. It is, we think, clear that this statute confers no new rights, nor creates new liability. It affects the remedy only for a pre-existing right, and as such may be invoked in the enforcement of that right. Heineman v. Schloss, 83 Mich. 153 (47 N. W. 107). The circuit court had jurisdiction to entertain the appeal.

On behalf of the plaintiff the claim is made that the court erred in disallowing that portion of the claim represented by charges for the services rendered by Dr. Smith, and medicines administered during that period.

While we have held that this statute should receive a liberal construction in the interest of the public health (Bishop v. Ottawa County Supervisors, 140 Mich. 177 [103 N. W. 585]), we think it would be going too far to hold that a physician, having a contract of employment with a health board, might hire another physician to do the actual work, and himself collect for the service. It may well be supposed that the element of personal fitness enters into the contract. The board certainly is clothed with the power of selection, and the county should not be called upon to pay for the services of a physician with whom no contract was made. It seems equally plain that that portion of the bill represented by charges made by the plaintiff for services rendered by himself prior to the making of the contract was properly disallowed.

It is urged that in any event the circuit court should have allowed the plaintiff $64.75 in excess of the allowance made, that sum representing the value of the medicines furnished by plaintiff, though administered by Dr. Smith, during the period of Dr. Smith’s attendance. The record conclusively shows that the medicines used were of an unusual character for an unusual disease, and that they were supplied by the plaintiff during the whole period of attendance. That the charges made therefor are reasonable is not in dispute. We can see no reason for denying plaintiff compensation for the medicines supplied by him under his contract, even though they were administered by the hand of another. This additional sum should have been allowed.

For the error pointed out, the judgment is reversed and a new trial ordered. Plaintiff will recover his costs to be taxed.

Moore, C. J., and Steere, M[cAlvay, Blair, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.