author: Long, J. McGrath, C. J.

text:
    PERRY v. MICHIGAN CENTRAL RAILROAD CO.
    Master and Servant — Defective Appliances — Sufficiency of Evidence.
    In an action by a brakeman for injuries received -while making a coupling, alleged to have been due to the defective condition of the draught-iron apparatus on one of the cars, evidence that such apparatus was found to be defective after the accident is insufficient to justify a finding that it was in the same condition when the car was put into the train, there being other evidence tending to show that the defect may have been caused by the force with which the cars came together at the time of the accident. McGrath, C. J., and Montgomery, J., dissenting.
    Error to Jackson; Peck, J.
    Submitted January 24, 1895.
    Decided December 31, 1895.

      Case by Frank Perry against the Michigan Central Railroad Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Parkinson & Campbell, for appellant.

      Barkworth & Blair, for appellee.
   Long, J.

' Plaintiff, a brakeman in the employ of the defendant, was injured at Grand Rapids, while engaged in coupling cars. The fourth count of the declaration sets out the claimed cause of action, and it is alleged that plaintiff was a brakeman on a freight train, in defendant’s employ, and that, in making up the train, it was the duty of the defendant to put therein only safe and proper cars for transit, furnished and provided with safe and proper appliances to enable the plaintiff to perform his duty as a brakeman in coupling and uncoupling the same; but that the defendant, disregarding its duty, put into said train a car, designated as a “Michigan Central Car No. 7,064,” which was not in proper condition of repair, by reason of the draught-iron apparatus provided for the purpose of holding the draught iron in position, and to prevent a greater backward movement of said draught iron than of four inches, not being sufficient for that purpose, but, on the contrary, permitting a backward movement of six inches; so that because of such neglect of said defendant in not properly inspecting said car, and not furnishing reasonably safe cars in said train, and safe appliances for coupling and uncoupling, plaintiff, while in the discharge of his duty, and without fault on his part, while in the act of coupling said car to another car in said train, was injured by said defective draught-iron, apparatus permitting said ’draught iron to be driven back by the draught iron on the car to which he was coupling the same, to a distance of six inches, and so far that the deadwood of the car to which he was coupling struck against and crushed his hand against the end of said car No. 7,064, breaking and bruising it, and rendering amputation necessary. The plaintiff had verdict and judgment for the sum of $5,000.

On the trial the plaintiff gave evidence tending to show that the train was made up the night before plaintiff was hurt. It was a long train, and, when made up, was in three sections, on account of street crossings. On the morning of the injury to plaintiff, the engine was backed down and attached to the forward section, and that section was backed down to the middle section, for the forward brakeman to make that coupling. It was down grade, and, the first time the forward brakeman tried to couple, he failed. The plaintiff says that—

“When they struck, he missed the coupling the first time, and I saw him come out, give the engineer the signal to back up again, and he went in again to make the coupling; and, just as I swung the engineer up, to go in and make my coupling, he came out from making his the second time, and he was there. Then I went in to make my coupling, and was caught while in the act of coupling them. I was in there, I should judge, not to exceed three seconds.”

He was asked about the rate of speed at which the car came down to the one coupled to, and said:

“ It would be hard to state just the speed they were coming at. Just a fair rate of speed for coupling cars. Of course, sometimes they come awful slow, and then, again, they come faster than that. I consider that the speed was nothing more than the usual speed.”

He stated that there were coupled to the engine four loaded and two empty cars; that six loaded and four empty cars were in the middle section; that the front section was about 14 car-lengths from the middle section when it started to back; that it was from 20 to 30 rods away; that the cars struck with ordinary force. The way car was at the rear end of the rear section, and the brakes upon the cars of the rear section were set. He also testified on cross-examination that the forward orakeman failed in his first effort to set the brakes, and it set the middle section in motion, but not at a pretty rapid rate, though, it was down grade. He says, further, that he turned his face towards the car that was standing still, so that, if the shock of coupling moved the train, he could move forward with it; that he did not see that anything was the matter with either car, and did not know that anything was the matter. There was other testimony on the part of the plaintiff tending to show that, when the engine backed down upon the middle section, it came down with some considerable force, and that the middle section came against the rear section with some force, as it was down grade.

The plaintiff was alone. No other witness saw the accident. But the plaintiff testifies that the deadwoods of the two cars came together. Plaintiff also gave some testimony tending to show that as the train reached Hastings, on its way from Grand Rapids to Jackson, it was noticed that the deadwoods of those two cars came together, one of the witnesses saying that they were so close that you could not put a pencil in between them. One of plaintiff’s witnesses testified that at Jackson there appeared to be something broken; that it looked as if all broken up. This was in reference to the follower, which prevented the cars coming together, though the witness was unable to describe just what it was. On the other hand, the testimony of defendant tended to show that there was no breakage about the follower, or any other part of the draught iron, and that the deadwoods could not come together; the theory of the defense ‘being that, when the two sections came together on the down grade, the cars were thrown together with such force that the plaintiff was injured by a nut and washer on a projecting bolt, and not in the manner claimed. It was also insisted that if the follower was broken, and the injury was occasioned as claimed by the plaintiff, there was no evidence to show that it was broken at the time of the inspection that morning, and that it must, in consequence, have been broken by the impact when the front and middle sections were pushed down upon the rear section, as it was down grade, and the sections came together with great force. The defendant called the car inspector who made the inspection at Grand Rapids that morning, and he testified positively that on that inspection he found the car in good condition, with no breakage, and nothing out of order.

The court, in its charge to the jury, left certain questions of fact for them to find:

1. That the draught rigging of the defendant’s car No. 7,064 was out of repair on the morning of the accident, and before it occurred.
2. That it was so out of repair at the time it was last inspected, on the morning of June 28, 1892.
3. That it was so out of repair, and in such condition, as to allow the buffer of the Grand Rapids & Indiana car to strike against the deadwood of the Michigan Central car; that it would allow the draught iron to move so far backward as to render the use of the apparatus in coupling cars unsafe and dangerous.
4. That this defect was of such a character that it could have been discovered by the inspector, by the exercise of reasonable care, skill, prudence, and diligence, when he last inspected, that morning.

We have carefully examined the entire record to find some testimony which would support the plaintiff’s theory that the car was defective at the time of the' inspection. It is possible, from the plaintiff’s statement and the statement of some of his witnesses, that the car was found to be defective after the accident occurred, though the evidence is overwhelmingly the other way; but, inasmuch as some of the plaintiff’s witnesses testified that the dead-woods came together at Hastings, and that there appeared to be some defects when the car was seen at Jackson, we cannot say there was no evidence that it was found to be defective after the injury occurred. But that would not be sufficient to create a liability in this case. The complaint is of improper inspection, and the putting into the train that morning of a defective car, — a car having a defective draught iron, — so that, by reason of such negligence, the plaintiff was injured. The burden was upon the plaintiff to show these facts. It would not do to say that, because some defects were found after the accident, it necessarily followed that the car was defective at the time of inspection, when we take into consideration the manner of putting the sections together on that morning. There was no evidence whatever that the car was defective at the time it was put in the train. On the other hand, the testimony of the defendant shows that it was in good condition at that time.

Negligence cannot be presumed. It must be alleged, and affirmatively shown. A presumption of negligence cannot be raised without foundation, and the mere fact that an injury occurred is no evidence of fault on the part of the defendant. . Neither will it do to say that because, after the injury, the machinery was found out of order, the presumption is that it was defective before the injury, where it appears that the defect might have been occasioned by the coming together of the cars at the very time the plaintiff was injured. Robinson v. Charles Wright & Co., 94 Mich. 286; Toomey v. Steel Works, 89 Mich. 249, and numerous casés there cited.

The defendant asked the court to charge the jury that, “under the undisputed testimony in this case, plaintiff cannot recover.”,, That request should have been given.

The judgment must be reversed, and a new trial ordered.

Grant and Hooker, JJ., concurred with Long, J.

McGrath, C. J.

(dissenting). I think that there was evidence from which the jury could properly infer that the defect in the car was not caused by the impact, but existed when plaintiff undertook to couple the cars.

Montgomery, J., concurred with McGrath, C. J.


source: Caselaw Access Project

author: Hooker, J. Grant, J.

license: Public Domain

text:
    CITY OF DETROIT v. CHAPIN.
    1. Constitutional Law — Enactment of Statute — Adjournment of Legislature — Authority of Governor to Sign Bill.
    The Constitution of 1835 provided that, if any bill should not be returned by the governor within 10 days, Sundays excepted, after it should have been presented to him, the same should become a law, in like manner as if he had signed it, unless the legislature, by their adjournment, should prevent its return, in which case it should not become a law. In the revision of 1850, the following clause was added: “The governor may approve, sign, and file in the office of the secretary of state, within five days after the adjournment of the legislature, any act passed during the last five days of the session, and the same shall become a law.” Held, that a bill passed previous to the last five days of the session, and approved by the governor after the adjournment of the legislature, but within 10 days from the time of its passage, became a law. Grant, J., dissenting.
    2. Statutes — Repeaia-Effect on Pending Proceedings.
    Act No. 467, Local Acts 1895, entitled “An act to authorize the city of Detroit to take private property for the use and benefit of the public,” repealed the existing law upon the subject, and, no saving clause being contained therein, proceedings pending under the earlier act were terminated thereby.

      Mandamus by the city of Detroit to compel William W. Chapin, judge of the recorder’s court of Detroit, to vacate an order quashing certain proceedings instituted by relator under the general act authorizing cities and villages to take private property for the use and benefit of the public, said order having been made upon the theory that the act mentioned had been repealed, so far as it was applicable to the city of Detroit, by Act No. 467, Local Acts 1895.
    Submitted November 5, 1895.
    Writ denied December 31, 1895.

      John J. Speed, for relator.

      John G. Hateley, for respondent.
    By permission of the court, briefs were also filed by Hanchett & Hanchett and B. F. Graves, on behalf of the Regents of the University, and by E. F. Sawyer, in support of relator’s contention upon the constitutional .question, and by F. H. Dodds, in support of the contention of respondent.
   Hooker, J.

This case involves the question of the validity of an act of the legislature passed previous to the last five days of the session, and approved by the governor after the adjournment of the legislature. Its determination depends on a construction of section 14, art. 4, of the Constitution, which reads as follows:

“Every bill and concurrent resolution, except of adjournment, passed by the legislature, shall be presented to the governor before it becomes a law. If he approve, he shall sign it; but if not, he shall return it with his objections to the house in which it originated, which shall enter the objections at large upon their journal, and reconsider it. On such reconsideration, if two-thirds of the members elected agree to pass the bill, it shall be sent with the objections to the other house, by which it shall be reconsidered. If approved by two-thirds of the members elected to that house, it shall become a law. In such case the vote of both houses shall be determined by yeas and nays; and the names of the members voting for and against the bill shall be entered on the journals of each house respectively. If any bill be not returned by the governor within ten days, Sundays excepted, after it has been presented to him, the same shall become a law, in like manner as if he had signed it, unless the legislature, by their adjournment, prevent its return; in which case it shall not become a law. The governor may approve, sign, and file in the office of the secretary of state, within five days after the adjournment of the legislature, any act passed during the last five days of the session; and the same shall become a law.”

This section, with the exception of the five-day provision, was a part of the former Constitution.

. It is contended on behalf of the respondent that, under the previous Constitution, the governor might lawfully sign a bill at any time within 10 days after its passage; that his neglect to return the bill, with reasons for not signing, within 10 days, was equivalent to a signature, unless the legislature, by adjourning, prevented such return, in which case it would not become a law, unless he signed it within 10 days. It will be noticed that the Constitution nowhere fixes a time within which the governor shall sign bills, except as it may be inferred to be 10 days, from the provision that an act shall become a law without signature if 10 days after its passage shall expire during the session. If this inference is not a legitimate one, the conclusion is irresistible that, under the former Constitution, the governor had unlimited time after adjournment within which to sign bills, or that he must sign during the session. If we were construing the provision of the earlier Constitution, we should therefore feel justified in concluding that the governor might sign a bill within 10 days after its passage, though the legislature should have meantime adjourned. We are aware that there are weighty authorities against this construction, notably the carefully considered and elaborately reasoned case of Fowler v. Peirce, 2 Cal. 165, which appears to have been the earliest case involving the question. On the other hand, many cases have taken a different view of the subject. People v. Bowen, 30 Barb. 24, 21 N. Y. 517; Lankford v. County Commissioners, 73 Md. 105; State v. Fagan, 22 La. Ann. 545; State v. Supervisors of Coahoma Co., 64 Miss. 365; Solomon v. Commissioners of Cartersville, 41 Ga. 157. The Georgia case, however, appears to be based upon the fact of usage. To what extent, if at all, this provision was given a construction by usage previous to 1850, we are not advised. The signing of bills after adjournment has been practiced since.

The constitutional convention which adopted our present Constitution added the last provision to the section as it previously stood, and it is contended that this provision indicates a construction of the former provision by that convention in accordance with the California decision, though that case had not then been decided. This addition is said to indicate an intention to enlarge the power of The governor, by authorizing the signature, within five days after adjournment, of bills passed during the last five days of the session; and it is forcefully argued that the last words of the sentence, “and the same shall become a law,” imply that this provision was necessary to give effect to an act not signed or • returned during the session. To the claim that the convention added this provision for the purpose of shortening the period for signature after adjournment to five days, it is answered that no good reason is assigned therefor, and that, had that been the design, unambiguous language could easily have been found to- express such idea; and, furthermore, that the addition of the words quoted is entirely without significance if that view is to be taken.

If, under the provision as previously existing, a doubt was entertained of the validity of acts signed after adjournment, the convention might well think it best to set the question at rest. In such case, it is apparent that members would be likely to entertain different opinions about the power of the governor to sign bills after the adjournment of the legislature, as well as the time to be allowed for that purpose. Some may have thought that the governor’s power was unlimited, and that acts might become laws' by virtue of his signature appended at any time after adjournment. Others may have thought the time to be limited to 10 days by the language of the Constitution relating to the return of bills with reasons. Others still may have taken the ground that bills must be signed before adjournment to give them effect. Apparently, the only light attainable was the common practice. The presidents made a practice of signing during the session, we are told. On the other hand, the decision in Georgia and that in New York show that it was customary for the governors, in those States at least, to sign after adjournment. As our Constitution followed that of New York literally so far as this provision was concerned, we may reasonably suppose that the practice under it recognized and followed that common in New York. When the subject arose in convention, all may have admitted the necessity of time for signing bills after adjournment. Some may have thought the power existed, though, in view of the fact that it was questioned, have been willing to let the Constitution show it, and to permit a limitation upon what they believed to be the existing rule, as to bills passed during the last five days, to set the question at rest. On the other hand, some may have been unwilling to concede anything unless all bills were to be signed within five days after adjournment. We think, therefore, that it is not clear that the convention had settled convictions upon the question of the governor’s power, or that the added sentence was necessarily considered an enlargement. Doubtless, it was by some, while others, believing that it was unnecessary as an extension, may have favored the provision as a limitation, or a compromise which should set the matter at rest.

We discover no reason based upon public policy for saying that the governor should not be permitted to sign bills after the houses adjourn. The strongest argument against it is found in the California case, and this rests upon the proposition that the governor, when approving an act, exercises a legislative function, which, if necessary, may be admitted without also admitting that he must sign before the two houses adjourn. The practice of the presidents has some force, but it is, at best, only negative proof of a construction, and may have been continued if it did not originate from abundant caution to avoid possible consequences. The fact that President Lincoln departed from it even in one instance is of great weight, as it shows that construction to have been disregarded by a president whose conception of the powers of the different branches of government was as broad, and his observation of them as conscientious, as that of any of his predecessors; and the action of Congress in re-enacting the law by way of amendment may have been a precautionary measure, or merely to prevent expensive litigation by eliminating the question. Moreover, the Supreme Court of the United States, in Seven Hickory v. Ellery, 103 U. S. 423, recognizes the rule as laid down in People v. Bowen, supra; and, while the Constitution there under discussion differed somewhat from the Constitution óf New York and that of the United States, the case was apparently considered to be within the principle of the New York, Maryland, and. Georgia cases, which, therefore, may be said to have been approved. Its logical effect is to break the force of the presidential precedent upon which so much reliance is placed.

The last provision of the section, if necessary to confer ■a power to sign after adjournment, applies only to the bills passed within the last five days; but if not necessary to confer a power, because already existing, it, must then be a limitation; and the question here is whether there is a necessary implication that the previously existing power was intended to be removed. To an extent, we think, there is. Clearly, it precludes signing bills passed during the last five days of the session, after the expiration of the period of five days after the adjournment. It is silent about the power as to other bills, because, under existing provisions, the signature was restricted to the same period. No consideration of public policy is urged why the governor should not sign bills after adjournment. The effect of relator’s construction would be to give a bill passed the fifth day before adjournment the full period of 10 days within which it might be signed, while bills passed one day earlier would have but five. No reason is suggested for such a discrimination, and to our minds it is more reasonable that the convention should have supposed that all bills were to be signed within 10 days after passage, except those passed during the last five days, which were to be disposed of within five days after adjournment.

“ The cardinal rule of construction concerning language is to apply to it that meaning which it would naturally convey to the popular mind, in all cases where the propriety of such construction is not negatived by some settled rule of law.” People v. Dean, 14 Mich. 406, 417.

“Constitutions are to be construed as the people construed them in their adoption, if possible; and the public history of the times should be consulted, and should have weight in arriving at that construction.” Bay City v. State Treasurer, 23 Mich. 499.

“ Constitutions, as well as statutes, are to be construed in the light of previous history and surrounding circumstances. The language is not to be measured by mathematical rules merely, but is subject, in the nature of things, to numerous implied exceptions or qualifications.” Kennedy v. Gies, 25 Mich. 83.

“Constitutional provisions must be construed with reference to each other when relating to the same subject-matter.” Root v. Mayor, etc., 3 Mich. 433; Dullam v. Willson, 53 Mich. 392.

“The framers of a Constitution are presumed to have a knowledge of existing laws, and to act in reference to that knowledge.” People v. May, 3 Mich. 598, 610.

We are cited to instances where this construction has been given to this section by the governors, and there are numerous acts whose validity depends on the question involved here. If the question were more doubtful than it is, we might properly consider the force of a practical construction of co-ordinate branches of government, acquiesced in by the general public for a long period. In commenting upon this subject, Mr. Justice Cooley says:

“ Great deference has been paid in all cases to the action of the executive department, where its officers have been called upon, under the responsibilities of their official oaths, to inaugurate a new system, and where it is to be presumed they have carefully and conscientiously weighed all considerations, and endeavored to keep within the letter and the spirit of the Constitution. If the question involved is really one of doubt, the force of their judgment, especially in view of the injurious consequences that may result from disregarding it, is fairly entitled to turn the scale in the judicial mind.” Cooley, Const. Lim. (6th Ed.) pp. 83, 84.

He supports it by numerous cases. See, also, Attorney General v. Glaser, 102 Mich. 409; Hart v. McElroy, 72 Mich. 453; People v. Maynard, 15 Mich. 470; Hovey v. State, 119 Ind. 386; Biggs v. McBride, 17 Or. 640; Castro v. De Uriarte, 16 Fed. 93; Cooley, Const. Lim. (6th Ed.) pp. 84-86, and notes; Stuart v. Laird, 1 Cranch, 299.

Our attention is called to instances where the governors of this State have signed bills under similar circumstances, one as early as 1873, and many since.

Another question needs notice, and this calls for a brief statement of facts. The act in question was “An act to authorize the city of Detroit to take private property for the use and benefit of the public,” approved June 4, 1895. Act No. 467, Local Acts 1895. On August 28, 1895, the proceedings in this case were commenced under a former statute. It is now contended that this act terminated the pending proceedings, and the court so held. This, we think, was right. There was no saving clause, and its effect was to repeal the existing law. See Key v. Goodwin, 4 Moore & P. 341; Stoever v. Immell, 1 Watts, 258; Butler v. Palmer, 1 Hill, 324; Hampton v. Com., 19 Pa. St. 329; Sedg. Stat. & Const. Law (2d Ed.), 112. The act is materially different from the one repealed by it, and therefore does not fall within the decision in Moore v. Township of Kenockee, 75 Mich. 332, which was exceptional, and in which the rule above stated is recognized. Id. 340. These proceedings were not pending when the law was passed, being commenced but three days before it took effect.

We conclude, therefore, that the action of the governor was within his constitutional power, and that the proceedings cannot be prosecuted under the previous statute.

(March 24, 1896.)

The writ is denied.

McGrath, C. J., Long and Montgomery, JJ., concurred with Hooker, J.

Grant, J.

(dissenting). When the decision in this case was handed down, I was unable to concur in either the reasons or conclusions reached by my brethren. I had not then had the time to make the investigation which I desired. A more thorough and careful examination than I had then been able to make has confirmed me in my conclusions.

There was some purpose for adding to this section as it stood in the Constitution of 1835 the following clause: “The governor may approve, sign, and file in the office of the secretary of state, within five days after the adjournment of the legislature, any act passed during the last five days of the session; and the same shall become a law.” Only three possible purposes can be suggested: (1) The limitation of a power already existing; (2) the removal of any doubt as to the existence of a power; (3) the creation of a power where none before existed, or was believed to exist.

In discussing the question, the following propositions may be laid down as nearly axiomatic:

1. If the Constitution of 1835 conferred the power upon the governor to sign bills after the legislature had adjourned, and it had been so construed by the executive, the legislature, and the people, the amendment to this article in the Constitution of 1850 was without reason, because it conferred no right that did not exist before.

2. If there was doubt about this power under that Constitution, and in the convention some members denied the power, and others affirmed it, it follows that the sole purpose of the amendment was to put the entire question at rest, and determine just what bills should be signed after adjournment, and fix the time.

3. If the power did not exist under the old Constitution, and it had been so interpreted and acted upon by the executive, the legislature, and the people for 15 years, then the sole purpose of the amendment was to extend the power beyond the day of adjournment, and to limit it as therein provided.

We obtain no light from the report of the convention •debates of 1850, for there is no record there of any debate upon this provision. It was reported from the committee ■early in the session, was finally referred to the committee •on phraseology, and changed in one or two immaterial matters. Whichever one of the above propositions is ■accepted as the true one, the same result, in my judgment, •conclusively follows, viz., that no power exists to sign bills after the legislature adjourns, except as provided in this clause. No canon of interpretation permits any other conclusion. The rule, “Inclusio unius est exclusio ■alterius,” applies to this casé, if to any. I shall, however, I think, be able to demonstrate that the first two propositions are not applicable, and that it must be determined upon the last one.

Prior to 1850, the date of the adoption of the present Constitution, no decision upon this point had been rendered by any court in the United States. The earliest case is that of Fowler v. Peirce, 2 Cal. 165, decided in 1852, in which it was held that the Constitution of that State, which was in the exact language of the Constitution •of the United States and that of 1835 in this State, did not empower the executive to sign bills after the legislature had adjourned. It is there said: “A practical exposition, entirely different from such a construction, has always been given by Congress, and the legislature of every State having similar constitutional provisions.” I have not time or material at my "command to demonstrate the truth •of this statement, even if it were of importance. The statement, however, does apply to this State, as an examination of the journals of the legislature discloses. Below is a statement of the number of bills and joint resolutions signed by the governors of this State during the last day of each session from 1835 to 1850: 1835-36, 45; 1837, 32; 1838, 37; 1839, 42; 1840, 34; 1841, 35; 1842, 32; 1843, 27; 1844, 13; 1845, 39; 1846, 16; 1847, 50; 1848, 132; 1849, 55; 1850, 108, — total, 697. Of these, 601 were public acts, and 96 joint resolutions. Many of them, at every session, were passed on the last day. All the governors during the life of that Constitution were lawyers. Some were lawyers of eminence, and had been justices of this court. If it had been supposed that any such power existed, it is certainly strange that the governors did not act upon it, and that no debate upon the question is found in the record of the debates of the convention of 1850. During that time there is a solitary instance of an act being signed after the legislature had adjourned. This was an unimportant local act, being Act No. 89 of the Laws of 1842, entitled “ An act to amend an act to incorporate the village of Pontiac.” The legislature adjourned upon the 17th of February, and the bill was signed the 27th. I find no explanation anywhere for the delay in signing this bill, or to show when it was presented to the governor. There is no record of the bill except its passage, and the fact that it is found in the office of the secretary of state, signed by the governor, under the apparent date of February 27th. That there was some mistake about it, it is reasonable to suppose. In no other way can we account for the fact that all the other bills were signed upon the day of adjournment, and this one omitted. Whether it was acted upon I do not know. It is, however, of but little consequence, in view of the universal custom, both before and after, to sign bills before the legislature adjourned.

This provision of the Constitution of the United States is in the exact language of that of 1835. Congress and the presidents have always, since the foundation of the government, construed this provision to prohibit the signing of bills after Congress has adjourned. It is well known that Congress has been in the habit of turning the clocks in the capitol back in order to secure the signing of bills before the hour of final adjournment. This is based upon the well-known rule of evidence that the journals of legislatures and Congress cannot be impeached, nor can parol evidence be introduced to show a different state of affairs than that which appears upon the face of the record. The president, on the last day of the session, goes, and has always gone, to the executive room in the capitol, in order to sign all bills before the final adjournment. As in our State, so in the United States, there is just one instance of a bill having been signed after Congress adjourned. Why it was signed by President Lincoln after adjournment, or why it was not signed before, is unknown, so far as my research has extended. This bill conferred direct power upon the executive of the nation, but he did not dare to, and did not, act upon it. In a note to the lectures of Justice Miller upon the United States Constitution, at page 187, appears the following in regard to this act:

“Power to approve an act after the adjournment of Congress: On the 3d of March, 1863, Congress passed ‘An act to provide for the collection of abandoned property, and for the prevention of frauds in insurrectionary districts within the United States.’ On the 4th of March that Congress was adjourned sine die, under the Constitution, and that act had not received the signature of the president. On the 12th of the same March (within the 10 days), President Lincoln signed it, and it was printed with the other acts of that Congress. Under its operation, a large amount of property came into the possession of the executive; but it was not thought wise to attempt to administer upon it in the courts, without a recognition by the lawmaking power, whichishould practically amount to its re-enactment. Accordingly, Congress, on the 20th of July, 1864, passed ‘An act in addition to the several acts concerning commercial intercourse between loyal and insurrectionary States, and to provide for the collection of captured and abandoned property, and the prevention of frauds in States declared in insurrection.’ This statute practically re-enacted the previous act, with amendments, and thus disposed of the difficulty.”

I cannot concur with my brethren in saying that this is a recognition on the part of President Lincoln of the power here asserted. On the contrary, it is, in my judgment, additional proof that he did not consider the law valid. Had he so believed, he would undoubtedly have acted upon it.

It would not be complimentary to the intelligence of the members of the convention of 1850, many of whom were leading men of the State, and lawyers, and some of whom had been members of Congress, to say that they were not familiar with this practical construction placed upon this provision of the Constitution by the different legislatures and by the governors of this State, and also with the construction which up to that time had been, without any exception, placed by Congress and the presidents, most of whom had been distinguished lawyers, upon the identical article in the Constitution of the United States. Can there be, under this state of facts, any other logical conclusion than that the framers of the present Constitution understood and believed that no such power existed in the executive; that they recognized the injustice and inconvenience of compelling the executive to sign all bills passed on the closing days of the session, as had been universally done before; and that their sole purpose was to create an authority which did not exist before ? Is it not also absurd to say that that convention intended to give a shorter time to examine bills passed during the last five days of the session than those passed within a few days previous ?

If I am correct in this conclusion as to the Constitution of. 1835, then the whole basis of the respondent’s contention and the opinion of my brethren falls to the ground. The sole basis upon which the respondent seeks to establish the power is that it existed under the old Constitution. If this were so, he is then driven to the — in my judgment —absurd conclusion that the framers of the Constitution intended to confer a less time upon the governor to consider bills passed during the last five days than he did upon those passed a few days previous. Under this contention, it results that the governor may have 10 days in which to consider bills passed upon the sixth day before the close of the session, while he would have but five in which to consider those passed upon the last day. I cannot yield my assent to such a conclusion. I see no reason or common sense in it. The learned counsel for the respondent entirely overlook the cardinal rule of construction above referred to, viz.: “Inclusio unins est exclusio alteritis.” The inclusion of the right to sign bills for a certain time after the legislature has adjourned necessarily excludes the right to sign any other bills at any other time. Says Mr. Justice Cooley of this canon of construction :

“So the forms prescribed for legislative action are in the nature of limitations upon its authority. The constitutional provisions which establish them are equivalent to a declaration that the legislative power shall be exercised under these forms, and shall not he exercised under any other. A statute which does not observe them will plainly be ineffectual.” Cooley, Const. Lim. (6th Ed.) p. 209.

Four methods are expressly provided for in this Constitution by which bills passed by the legislature shall become laws, viz.: (1) By the express approval of the governor, evidenced by his signing bills within 10 days after they are presented to him, the legislature being in session; (2) by his approval implied from his neglect to sign within 10 days, the legislature being in session; (3) by passing the bill over his veto; and (4) by his express approval, evidenced by his signing any bill passed during the last five days of the session within five days after adjournment. Where an express limited power is conferred by a Constitution, it excludes the existence of any greater or unlimited power. For 23 years after the adoption of the present Constitution, no governor signed any bill or joint resolution after the legislature had adjourned except those which were passed during the last five days. During that period, all governors and legislatures were careful to see that all bills and joint resolutions which were passed before the last five days were disposed of, by approval or otherwise, before final adjournment. If we add to this the 15 years of the existence of the Constitution of 1835, we have 38 years of compliance with the plain provisions of the Constitution to the effect that the governor did not possess the power to sign bills after tho legislature adjourned, except in accordance with the express provision of the Constitution of 1850. If this is not a practical construction of this provision, then 1 am unable to understand what the term means. To refrain for 38 years from exercising a power when the occasions for its exercise were ever present is certainly as effectual and practical a construction as would be the affirmative exercise of power of doubtful constitutional authority extending over the same period. If one is to prevail, so must the other.

It is insisted, however, that the governors have, during and since 1873, signed several bills, which were passed before the last five days of the session, after adjournment, and that this amounts to a practical construction. This might have some force if such usage had commenced immediately after the adoption of the Constitution, and continued for a long series of years. It is shorn of its force by the adoption of the contrary usage by the governors, the legislatures, and the people. Neither governors, nor any other officials, nor the legislature, can change the plain provisions of the Constitution, or change a practical construction when once it has been adopted by constant usage, extending over a long period. I quote with approval the words of Mr. Justice Cassoday in State v. Cunningham, 82 Wis. 48:

“ It is to be remembered that even praiseworthy objects cannot be rightfully attained by a violation of law. Every effort to fritter away the plain language of the Constitution, by way of construction or otherwise, even to secure a desirable end, is nothing less than an insidious attempt to undermine the fundamental law of the State, and hence, to that extent, destructive of good government, besides being vicious in its tendencies.”

See, also, Oakley v. Aspinwall, 3 N. Y. 568; Cooley, Const. Lim. (6th Ed.) p. 87.

Practical construction is not a shuttlecock, to be used to mean one thing today and another tomorrow, as expediency may suggest. Where doubt exists, and where practical construction has once been firmly established by usage, it is as binding, lasting, and sacred as though it were incorporated in the Constitution in express terms. It hardly needs the citation of authorities to show that this construction, contemporaneous with, and immediately, and for a long series of years, following, the adoption of this Constitution, must control. I will, howeyer, refer to one authority, where the question is fully discussed and the authorities cited,—McPherson v. Secretary of State, 92 Mich. 377; same case in 146 U. S. 3. There, as here, it was sought to set aside a construction which had been placed upon a provision of the Federal Constitution immediately succeeding its adoption by the various States of the Union. It was contended that all the States had for many years prior to 1892 adopted a contrary interpretation by legislative enactments, to the effect that the State shall act as a unit in'the choice of presidential electors. We held that there was no force in such contention, and that the construction which the people had first given it must prevail. The decision was affirmed by the Supreme Court of the United States, and for the same reasons given in this court.

In 1873 the governor signed one bill passed before the last five days. So, in 1877, the then governor signed another. We find no explanation why those two bills were thus overlooked. Probably, it occurred from the hurry of the closing days of the session. We are cited to several other similar acts in 1889, and again a few in 1893. So far as most of the acts of 1889 are concerned, it is far more reasonable to suppose that the governor signed them for two other reasons rather than that because he interpreted the Constitution to confer a power outside its plain provisions. Most of these bills were presented to him during the last five days of the session. Under a provision of the Constitution of Minnesota, identical with our own except as to the number of days, and a further provision requiring bills to be enrolled and signed by the presiding officers of each house, it was held that the enrollment and presentation to the governor were legislative acts, and that a bill was not passed, within the meaning of the Constitution, until the enrollment had taken place. Burns v. Sewell, 48 Minn. 425. Most of these bills, also, were actually passed within the last five days of the session, if Sunday be excluded. There is certainly much force in saying that the last five days of the session mean the days of actual session, and do not include Sunday, which is not a legislative day. What views the governors who signed these bills may have entertained upon these points we have no means of knowing. From 1835 to 1873 the occasion for the exercise of this power was more imperative than it has been since, for during most of the earlier sessions the legislature passed bills on the very last day; while since 1873, and perhaps for a short time before, it has been the universal custom to do no business during the last three or four days of the session, except the signing of enrolled bills by the president of the senate and the speaker of the house, for the approval of the governor, and the entry of the same upon the journal.

None of the authorities cited in the majority opinion are under a Constitution at all similar to our own. The only decision under a similar Constitution is in direct conflict with that opinion, as I read it. The provision in the Minnesota Constitution reads as follows: ‘ ‘ The governor may approve, sign, and file in the office of the secretary of state, within three days after the adjournment of the legislature, any act passed during the last three days of the session, and the same shall become a law.” Burns v. Sewell, supra. It is true that this case holds that without this clause the governor had power to approve bills after adjournment, but it also holds that this clause is “a limitation upon his power, restricting its exercise to the period of three days after the legislature shall adjourn.”

The respondent here contends — and upon that theory alone can his contention be sustained — that the five-day limit has no effect upon or application to bills passed before the last five days of the session. To what extent will the advocates'of this rule of construction carry it? Suppose a governor shall in the future, for some reason, sign a bill 15 or 20 days after the legislature adjourns, and other governors subsequently follow his example; will that be another practical construction, and affirm the right of the governors to sign bills at any time they choose ? Such was the contention in People v. Bowen, 21 N. Y. 517, the principal case upon which respondent relies. Upon this point the majority opinion says:

“ It is argued that, upon the construction which I have suggested, no time whatever is fixed within which bills are, in such cases, to be signed; and that, if it can be-done after the adjournment, it may be done at any indefinite period thereafter, and that the inconvenience would arise that it might remain a long time uncertain whether a measure which has received the assent of both branches of the legislature should eventually be a law or not. This consequence will certainly follow unless there is an implication arising out of the fixing of a period of 10 days for the consideration of bills presented to the governor while the legislature remain in actual session. It is plain that the authors of the Constitution considered that period sufficiently long for the performance of that duty; and I think he would not be justified in acting upon a bill after his ten days had elapsed, whether the session continued or not.”

That decision is, in my opinion, an act of judicial ingraftment, based upon a supposed necessity, and not a • precedent of construction which ought to be followed.

I deem it unnecessary to discuss the other authorities cited. The case of People v. Bowen was by a divided court. So, also, was the ease of Lankford v. County Commissioners, 73 Md. 105. In Solomon v. Commissioners of Cartersville, 41 Ga. 161, the decision was expressly based upon the practice of the executive department, while it, in effect, held that there was no doubt about the construction to be placed upon the Constitution, which was similar to that of New York. The other cases arise upon provisions so entirely dissimilar both from our own Constitution and from that of New York that they seem to me to have no bearing. The California case is, in my judgment, based upon sound reason, and gives to the clause of the Constitution involved in that and the New York case, and the Constitution of Michigan for 1835, its plain, logical, and common-sense meaning, viz., that the adjournment of the legislature prohibited every unsigned bill in the hands of the governor at the time of adjournment from becoming a law. The decisions to the contrary are based upon the argument of expediency and public inconvenience, and not upon sound canons of construction.

I think the writ should be granted.


author: Hooker, J. Long, J.

text:
    LOVELAND v. PETER.
    1. Accounting — Record on Appeal.
    The record on appeal in a suit for an accounting should show what items were allowed and what disallowed, with exceptions pointing out the disputed items and the rulings of the court thereon. Either party may ask the court to follow this practice, and failure to do so may reasonably be treated as a waiver of the right to raise such questions by appeal.
    2. Partnership — Accounting—Interest on Advances.
    Upon a consideration of conflicting testimony in relation to the terms of an agreement entered into by defendant and complainant’s intestate for the lumbering of certain lands, in connection with testimony showing the manner in which the business was thereafter conducted, held, (1) that the parties were copartners in the venture; (2) that interest upon advances made by the defendant was properly charged to the intestate individually, rather than to the firm; and (S) that defendant was entitled to the mill culls as part of his saw bill, —Hooker and Montgomery, JJ., dissenting upon those items of the accounting.
    Appeal from Saginaw; Wilber, J.
    Submitted November 8, 1895.
    Decided December 31, 1895.
    Bill by Mark T. Bailey against William Peter for a partnership accounting. Complainant died pending an appeal by the defendant, and the cause was revived in the name of his administrator, Ralph Loveland.
    Decree modified and affirmed.

      George W. Weadock (Humphrey & Grant, of counsel), for complainant.

      Geer & Williams, for defendant.
   Hooker, J.

The complainant’s intestate filed the bill in this cause for a partnership accounting. The testimony was taken in open court, upon a hearing, wherein the fact of the partnership was disputed, and evidence was taken generally upon the condition of the business and accounts. It was not referred to a commissioner to state an account, nor has the circuit judge made any such statement of account in detail as enables us to determine the items of the account.

The decree determined:

1. The existence of the partnership, and that complainant’s intestate owned a one-third interest.

2. It contains a list of real estate belonging to the firm, and decides that the partners are tenants in common therein.

3. It includes a list of land contracts, in which it fixes complainant’s interest at one-third of the money remaining unpaid thereon.

4. It determines that the parties had a settlement of account on November 10, 1879, and declines to open the account back of that date, and finds that there has been no settlement since that is binding upon the parties.

5. It contains a finding that interest was to be charged by the firm to the respective members upon their indebtedness to and advancements by the firm, and that it had been improperly computed against Bailey, complainant’s intestate.

6. It determines that, after eliminating all improper entries and correcting the interest charges, there was due from defendant, Peter, to the company, the sum of $77,-955.03, and from Bailey the sum of $35,040.26, and that Peter owed Bailey upon these figures $2,624.84. This statement was held not to include — First, the lands and unpaid land contracts owned by the firm; second, an item for culls and shorts; third, an item for dry logs; and, fourth, a sum received by Bailey upon land contracts.

7. It was found that mill culls and shorts were sold by Peter, and not accounted for to the concern; that they should have been after 1879; and that for these, with the interest thereon, the sum of $16,831.59, over and above the saw bill and all other charges against the same, should have been credited.

8. That 200,000 feet of dry logs were delivered by Bailey at the mill boom, for which he had received no credit; that he was entitled to a credit of $5 per M. for such labor, together with interest from the date of delivery; that these logs were sawed by the defendant; and that, after he was paid $2.50 per M. for such sawing, the complainant would be entitled to one-third of the profits, amounting to a credit to the complainant and a charge against the defendant of $1,603.28.

9. The decree finds that Bailey received, upon land contracts, $4,459.55, of which Peter should be credited with two-thirds.

10. The sum of $5,865.62 is found due from defendant to the complainant, upon the whole record, in addition to Ms interest as tenant in common in the lands and outstanding contracts.

The appellee asks us to dismiss this proceeding for the departure from the practice pointed out in Barnebee v. Beckley, 43 Mich. 613, where it is plainly intimated that accounting cases should come to this court upon a record showing what items are allowed and what disallowed, with exceptions pointing out the disputed items and rulings of the court thereon. As said in that case, “we might with entire propriety remand this case; ” but, for similar reasons to those mentioned in that cause, we are disposed to pass upon such questions as we can reasonably consider. At the same time we desire to emphasize the rule laid down in Barnebee v. Beckley by saying' that it must not be presumed that cases will be reviewed upon records made up in this way. Either party may ask the court to follow the practice pointed out, and failure to do so may reasonably be treated by us as a waiver of the right to raise such questions by appeal.

We gather from the briefs in this case that the appellant desires to retry the following questions: (1) The question of partnership; if we find a partnership, (2) the decision of the court in relation to interest; (3) the item for culls and shorts; (4) the item for dry lumber. To do this will require a further statement in relation to the facts. In 1868, Buck, Hollahan, and Bailey were engaged in lumbering. They had bought upon contract, from a Mr. Erost, a tract of pine land, upon which several thousand dollars had been paid, and a large sum remained unpaid. Bailey had paid $5,000 upon his one-third interest. The firm found itself pecuniarily embarrassed, and Bailey made an arrangement with Peter. Peter was a large manufacturer of lumber, being the owner of a mill at Bay City. According to the testimony of Bailey, an arrangement was made by which Peter bought out Buck and Hollahan, and took an assignment of the contract from Buck, Hollahan & Co., paying $7,015 to Buck and Hollahan and $500 to Bailey, who was to take charge of lumbering operations at a salary of $800 a year. Peter was to saw tbe logs at $2 per M., and the profits were to be divided, one-third to Bailey and two-thirds to Peter. It was further agreed that Peter was to advance money to do the lumbering, and was to receive interest upon it at 7 per cent. This arrangement was made in 1868 or 1869. In 187G a new arrangement is said to have been made, by which Bailey was to deliver the logs at the boom and pay the boomage for $5 per M., and Peter was to have $2 or $2.50 for sawing, profits to be divided as before between the parties, and each was to have a corresponding interest in the land. Peter’s version is somewhat different. He claims that he bought the premises from the company; that to one he paid $4,000, to another, $3,000, and to Bailey, $500, for their respective interests; and that he did this at the solicitation of Bailey, who desired to realize out of the venture by lumbering the land. He states that there was then $17,000 due Frost upon the contract, and that he arranged with Bailey that he (Peter) should take an assignment of the firm’s interest and work up the lumber, advancing money to do the lumbering; that he was to have interest upon his money advanced, and, after he should get his money out, the profits remaining should be divided as stated. He asserts that there was no agreement for a partnership, nor any understanding that Bailey Should have any interest in the lands, further than he always understood that, when the lands were sold, the money received would go into the fund to be divided. He admitted that he took the title for security.

We will next examine the testimony with relation to what was done. Bailey proceeded to lumber these lands, and deliver the logs at the boom, from which, in due time, Peter received them, sawed them, and sold the lumber. The bookkeeping was done by Peter, who opened an account upon his private books in the name of these lands, i. e., “Tobacco River Lands.” All moneys expended for the purchase of lands, taxes thereon, and cost of marketing the lumber were charged, while the account was credited with amounts received from the lumber. Afterwards this account was changed in name to Peter & Bailey. Bailey was charged with moneys advanced, and Peter credited.. After portions of the land were lumbered, they were sold on contract. Bailey usually negotiated such sales, and Peter executed the contracts. Bailey collected some, if not most, of the moneys paid upon such contracts, and kept some sort of an account of the same. At the settlements mentioned, up to 1879, balances were struck on the basis of one-third of the profits to Bailey.

We think that, upon this testimony, the parties should be held to be partners. The agreement was not in writing, and we are satisfied that the complainant’s interest of $5,000 in the land contract was not surrendered for $500. The defendant put in $7,500, and, deducting the $500, the complainant had in $4,500, which was more than one-third of the gross sum. So that he appears to have been entitled to at least a third interest upon an equitable apportionment, had the parties sought to make one. Again, though Bailey was paid Tor lumbering, there is nothing to indicate that he received pay for anything beyond the actual value of his labor, unless it was through profits expected to be made, but necessarily uncertain. True, the assignment of the contract was made to defendant, but there was nothing unnatural in that, for he was to invest $7,500 in cash, and give his personal paper for $17,000 more, and he might reasonably ask security of some sort from one who was confessedly impecunious. Indeed, his own testimony shows that he did take it for security. The fact that only profits were mentioned is not conclusive that there was no partnership. Each had an interest in the capital, and, with the other facts stated, there is no doubt in our minds that the arrangement made the parties partners.

The Question of Interest: The circuit judge found that the advancements to Bailey were made by Peter & Bailey, and that each partner was to pay interest to the firm, when indebted to it, and that the firm was to pay-interest to either partner who should advance money for the use of the business. Counsel for the defendant say that the testimony warrants no such conclusion, and shows that the parties made no such contract, but, on the contrary, the arrangement was that the advancements should be made by Peter to Bailey, who should pay interest until such advancements were repaid. Bearing in mind that the arrangement under which the lumbering was done, previous to 1876, was that Bailey should have a salary, it cannot be said that advancements to pay the expenses of lumbering were advancements to him. There was no obligation at that time resting upon Bailey to deliver the logs for a given price, but he was to give his time to the firm for $800 a year. The advancement contemplated, then, must have been an advancement for their mutual benefit, and, as the judge says, the conclusion is irresistible that it was for the firm. It covered, not only Bailey’s salary, but all moneys expended by the company on joint account, and Bailey’s testimony, quoted in appellant’s brief, shows it. It is as follows: •

“Q. Who furnished you with the means with which to do the lumbering that season {i. e., 1870)?
“A. Peter; William Peter.
“Q. What was the arrangement about his receiving pay from the company for his advances ?
“A. He was to have 7 per cent, interest for all money put into the concern, until it was paid.”

It can hardly be said that Bailey should pay Peter interest upon all this, until they should adjust their accounts, and it would be as unjust to say that it was not a legitimate claim in Peter’s favor against the company. And we may add that, when the concern received money sufficient to pay these advances, if they were appropriated by Peter, the effect should be to stop interest. The evidence shows that Peter received most of the money from the lumbering operations. Apparently, he kept it with his own moneys, using it in any way he chose, but keeping account of what money lie received from the business, and what he paid out for it. We infer that he may 'have charged interest upon such payments as advancements for long periods, when a statement of receipts and expenditures would have shown that he had money in his hands belonging to the firm. Indeed, it seems probable that, after the first season’s operations, the concern had money, unless by reason of the purchase of Flint & Pere Marquette lands or the payment of the balance due on the Frost contract, both of which were charges against the firm. These might have reduced the surplus, and perhaps required advancements which would entitle Peter to interest; but the advancement would in such case be to the firm, and it should pay the interest.

We repeat, therefore, that the testimony and the situation show that Peter did not loan Bailey money, but that he loaned the firm money, for its operations, some of which money found its way to Bailey for his salary, and, after 1876, to pay the expenses of cutting and hauling timber upon his contract, and that such sums as he received for these purposes after 1876, if paid before due, were advancements by the company, to which he should pay interest, and which advancements ceased to be such, as to him, when the amount was earned by delivery of the logs, though they might still be advancements by Peter to the firm, or might not, depending upon the state of the firm funds in Peter’s control. The conclusion reached by the circuit judge was, in our opinion, right upon this branch of the case, so far as the method of charging and computing interest is concerned. Whether he should have allowed some items of interest that he denied, we cannot tell, as we are not pointed to disputed items. We think it probable, however, that his computation was right; it being determined that he was right in regard to the basis upon which he seems to have made it.

The decree allowed the complainant an item of $5,610.53 on account of mill culls and shorts. The defendant claims ^jhat it was agreed at the outset that he should have them, and that Bailey repeatedly settled without claiming anything for them. On the other hand, Bailey denies any arrangement with regard to them, and it appears from defendant’s testimony that they were valuable, and that he took them and kept no account of them. If this is so, the accounts would contain no indication that they were thus appropriated, excepting by the absence of such items. There is testimony tending to show that, when the parties commenced work, culls were considered worth nothing more than the saw bill, and usually went to the mill, but that subsequently they became quite valuable. We see no reason for disturbing this conclusion of the circuit judge, who evidently believed Bailey’s testimony, and properly held it to be a duty of Peter to account to his partner for the profits upon culls and shorts after 1879.

We are also of the opinion that the court was justified by the evidence in allowing the item for 200,000 feet of dry lumber.

It is urged that the complainant should be bound by the settlements from year to year. As stated, he is bound by the settlement of 1879, the circuit court having so held, and no appeal having been taken by him; but we think that is going far enough. This record does not clearly show fair dealing by Mr. Peter. It is significant that, in several particulars, he has obtained an advantage over his partner. His method of bookkeeping is not to be commended, and could hardly fail to raise complex and perplexing questions between the partners, especially if they were not expert accountants, as, apparently, Bailey, at least, was not. The alleged settlements, in our opinion, fall short of transactions showing a fair and complete understanding and voluntary adjustment, but rather indicate statements furnished to Bailey. It appears that he protested from time to time, and we see no such equities in defendant’s favor as to call for denying the complainant his share of hard-earned profits, because of these transactions.

We concur in the view taken by the circuit judge, whose decree should be affirmed.

Montgomery, J., concurred with Hooker, J.

Long, J.

I am unable to agree with my Brother Hooker upon some of the items which are charged in the account against the defendant and upon some of the items stricken from defendant’s claim. It appears that when the lumbering commenced, in 1868, Mr. Peter was to have $2 per M. for sawing. The logs were taken to his mill and manufactured into lumber. From that time up to 1876 Mr. Bailey continued to do the lumbering upon money furnished by Peter. Settlements were had from time to time. In such settlements Mr. Bailey was charged with interest on money advanced by Peter to do the lumbering, and for such interest money Mr. Bailey settled and paid. During this time, also, Peter kept and retained the mill culls as a part of his saw bills, and the settlements were made in accordance with such statements. No complaint, so far as the record discloses, was made by Mr. Bailey about the mode of keeping the accounts, or, if there was any complaint, the matters of difference were settled and receipts passed. In 1876, from Mr. Bailey’s testimony, it appears a new arrangement was made about lumbering. At that time Bailey commenced to put the logs in at $5 per M. Thereafter the lumbering was continued and Bailey given credit for the amount of his bills at $5 per M., Peter furnishing the moneys to carry on the lumbering operations. Again Bailey was charged'with interest on the moneys so advanced, and Peter took the mill culls as part of his saw bills. It is admitted by Bailey that a settlement was made in 1879 on this basis, — that is, by charging him interest in the account for moneys advanced by Peter, and that Peter kept the mill culls as part of his saw bills. The court below held that the settlements were binding up to 1879, and my Brother Hooker so treats them. It is only since that date that the settlements are opened, and the court below eliminates the interest account from Peter’s account, and also charges to Peter the value of the mill culls.

In my judgment this is erroneous. No new contract was made with reference to interest or the mill culls. The original arrangement as to the lumbering by Bailey and the sawing by Peter was not in writing, but what the arrangement was is evidenced by the settlements. Mr. Bailey testified that in 1868, when he began lumbering, there was nothing said about mill culls; that he did not claim anything about mill culls until 1876, and that in 1876, when he made the arrangement to put in the logs at $5 per M., nothing was said between Peter and himself with reference to mill culls; that there was no charge made by Peter for sawing mill culls; that in January, 1884, his son, acting for him, and Mr. Young, acting for Mr. Peter, had a settlement and struck a balance, and a statement was rendered to him; that the same thing occurred in 1885, showing a balance up to January 1, 1886, and that that was the last time they had a settlement; that in 1887 and 1888 there was not much business done; and that on May 22, 1889, Mr. Young rendered an account which showed a balance due Mr. Peter, and that at that time he objected that he had not been paid for the mill culls. It therefore appears that, from 1868, Peter had gone on charging interest to Bailey for the advances made to him, and had been keeping the mill culls, and settlements were made in accordance therewith up to 1879, and that thereafter the same method of bookkeeping was pursued. Mr. Bailey knew the facts, made settlements in accordance therewith, and even when the contract was changed in 1876, and he commenced lumbering by the thousand, he made no claim to the mill culls or that he should not be charged interest. Mr. Peter testified that settlements were made in accordance with the terms of the contract, and I think the testimony is quite conclusive upon, the subject of interest and mill culls, when taken in connection with the settlements, which must, in my judgment, be taken as the construction which the parties themselves put upon it. I am of the opinion, therefore, that Peter should be allowed the interest charged, and that he should not be charged with the mill culls.

I do not desire'to discuss the other questions, as, with these corrections, no injustice would be done. I think the decree should be modified to this extent, with costs to defendant.

■ McGrath, C. J., and Grant, J., concurred with Long, J.


author: Long, J. Grant, J.

text:
    SCHEIBNER v. COHNEN.

    Mechanic’s Lien — Validity—Excessive Claim.
    A claimant under the mechanic’s lien law is not deprived of the benefit of the statute because he included in his statement of hen items for which he had no right to charge, where such action was the result of an honest mistake on his part, and not an effort to place a hen upon the premises for a greater amount than was honestly believed to be due. LamontY. LeFevre, 96 Mich. 177, followed. Grant, J., dissenting upon the apphcation of the rule to the facts of this case.
    Appeal from Wayne; Carpenter, J.
    Submitted December 4, 1895.
    Decided December 31, 1895.
    Bill by Ferdinand Scheibner against Frank Cohnen and wife to enforce a mechanic’s lien. From a decree for complainant, defendants appeal.
    Affirmed.

      Charles Flowers, for complainant.

      Bowen, Douglas & Whiting, for defendants.

       Rehearing denied July 8, 1896.

   Long, J.

We agree with the court below that this case does not fall within the principle of Gibbs v. Hanchette, 90 Mich. 657. That case was distinguished in Lamont v. Le Fevre, 96 Mich. 175. In speaking of the Gibbs Case, it was there said:

“The case of Gibbs v. Hanchette carefully distinguishes between such cases and those where, through an honest mistake, too much has been claimed in the statement of lien, or, by reason of a failure of proof, the claimant was denied the entire amount claimed.”

It is evident to us, from the claimant’s testimony, that, in stating the amount of his claim, he was honestly mistaken. We see nothing in the record contradictory to his explanation of how it occurred. The court below, who heard the testimony, was of the opinion that it was an honest mistake, and not an effort on the part of the claimant to place a lien upon the premises for a greater amount than he honestly believed his due.

The case is governed by Lamont v. Le Fevre, supra, and the decree below must be affirmed, with costs to claimant.

McGrath, O. J., Montgomery and Hooker, JJ., concurred with Long, J.

Grant, J.

(dissenting). This is a proceeding in equity to enforce a mechanic’s lien under act No. 179, Pub. Acts 1891. January 25, 1893, complainant filed his affidavit for a lien, stating that there was j ustly and truly due to him from the defendants, over and above all legal set-offs, the sum of $1,500. January 27,1893, he filed another affidavit for a lien, stating the amount due to be $1,420. The case was heard upon pleadings and proofs, and decree entered for complainant for $754.60. Complainant admitted that both affidavits contained items to the amount of $261.55 for which he had no right to charge under the contract as he claimed it. His first affidavit also included an item of $150 which he admitted should only have been about $60, and which his own books showed to be $61.65.

The statute requires a “just and true statement or account of the demand due him.” The reason of this requirement is fully stated in Gibbs v. Hanchette, 90 Mich. 657. No satisfactory explanation is given by complainant for including these items. The explanation is no better than the one given by Mr. Gibbs. We need not impute intentional wrong to the complainant, but it is evident that he did not take those measures to make a just and true statement which the law requires. One cannot make a reckless and careless statement in these proceedings, and then be permitted in excuse to say that he did it with honest motives. The law requires him to place upon record no greater claim of lien than he is justified in making after the exercise of due care. This case is ruled by Gibbs v. Hanchette.

In addition to the authorities there cited, I also cite Ely v. Carnley, 19 N. Y. 496. In that case a clerical error of $100 in the' copy of a chattel mortgage and the accompanying statement of the amount claimed was held to invalidate it as against creditors. It was there said:

“It is important to creditors to know the amount of liens as well as their existence. Hence the act requires the filing of the instrument or of a true copy. A compliance with the act will give the creditor full information as to the property mortgaged, the amount of the debt or condition of the mortgage, and to what extent the property can be made available for the payment of his debt. When the paper filed fails to accomplish these purposes, it falls short of the requirement of the statute. In this case the paper filed did not show the amount of the debt. The referee, therefore, correctly held that it was not a true copy.' The defendant’s counsel insists that, as it was a mistake of the copyist, and there was no fraud intended, the error in the copy should be disregarded. The statute will not permit such a construction. When a judgment creditor claims the property in hostility to the mortgagee, the inquiry is, has the mortgagee complied with the statute? If not, the statute makes his mortgage void. The cause of the omission is wholly immaterial, whether by accident or design.”

It is important to parties and to their creditors that, when liens are placed upon their property, the statute shall be strictly pursued.

The decree should be reversed, and bill dismissed, with costs.


author: Per Curiam.

text:
    WITHEY v. OSCEOLA CIRCUIT JUDGE.
    Constitutional Law — Claim Against County — Attorney Appointed to Depend Criminal — Compensation—Duty op Presiding Judge.
    Act No. 96, Pub. Acts 1893, providing that an attorney appointed to conduct the defense in a criminal case shall be entitled to receive from the county treasurer, on the certificate of the -presiding judge, such an amount as the judge shall, in his discretion, deem reasonable compensation for the services performed, not exceeding the sum of §¡50, is not repugnant to section 10, art. 10, of the Constitution, which vests in the board of supervisors the exclusive power to prescribe and fix the compensation for all services rendered for and to adjust all claims against the county; and it is the duty of the trial judge to fix the amount of such compensation, and to certify the same, in accordance with the statute. People v. Hanifan, 99 Mich. 516, distinguished.

      Mandamus by Charles A. Withey against James B. McMahon, circuit judge of Osceola county.
    Submitted December 3, 1895.
    Granted December 4, 1895.

      Memorandum opinion filed December 31, 1895.
    Relator was appointed by respondent to conduct the defense, at the expense of the county, of a person charged with the commission of a felony. Having performed the services, he applied to the respondent to fix the compensation to which he was entitled therefor, pursuant to Act No. 96, Pub. Acts 1893, which provides:

      ‘ ‘ Whenever any person charged with having committed any felony or misdemeanor shall be unable to procure counsel, and the presiding judge shall appoint some attorney to conduct the defense, the attorney so appointed shall be entitled to receive from the county treasurer, on the certificate of the presiding judge that such services have been duly rendered, such an amount as the presiding judge shall, in his discretion, deem reasonable compensation for the services performed: Provided, that the compensation allowed in any one case shall not exceed the sum of fifty dollars.”
    Respondent refused to do more than to certify to the performance of such services, and recommend to the board of supervisors of the county an amount that he considered to be just compensation therefor, whereupon relator applied for mandamus to compel the granting of his application. Respondent, in his return to this court, relied upon the case of People v. Hanifan, 99 Mich. 516, as precluding any further action by him.

      Charles A. Withey, in pro. per.

      C. H. Bose, for respondent.
   Per Curiam.

This application is to have the circuit judge fix the amount and certify the same under Act. No. 96, Pub. Acts 1893. People v. Hanifan, 99 Mich. 516, is not controlling, as section 9047, 2 How. Stat., does not either fix the amount, limit the same, or determine who shall fix it. Act No. 96 limits the amount, and provides that the presiding judge shall fix the same. This is competent under People v. Macomb Co. Supervisors, 3 Mich. 475, and People v. Wayne Co. Auditors, 13 Mich. 233.