text:
    PEOPLE v. HARRIS.
    Intoxicating Liquors — Illegal Possession — Carrying on Person —Reasonable Time.
    It was not a violation of section 4, Act No. 381, Pub. Acts 1913 (2 Comp. Laws 1915, § 7121), prohibiting the keeping or storing of intoxicating liquors in any room, building, or structure other than the private residence of such person, for defendant to carry upon his person, in the soft drink establishment where he was employed, a pint of whisky which he had purchased from a druggist upon a lawful prescription from a physician, from about six o’clock till seven or eight o’clock the same evening, since he had the right to carry the same for a reasonable time, and until, in the natural course of events, and conveniently, he would reach his private residence.
    See notes in 24 L. R. A. (N. S.) 172; 26 L. R. A. (N. S.) 394; L. R. A. 1915D, 172; L. R. A. 1917D, 938.
    Exceptions before judgment from Iron; Flannigan, J.
    Submitted June 14, 1818.
    (Docket No. 106.)
    Decided July 19, 1918.

      James Harris was convicted of violating the local option law.
    Reversed, and defendant discharged.

      Power & McKale (W. J. Carbaugh, of counsel), for appellant.

      Alex. J. Groesbeck, Attorney General, and M. S. McDonough, Prosecuting Attorney, for the people.
   Brooke, J.

Defendants were prosecuted under the provisions of Act No. 381, Pub. Acts 1913, section 4 (2 Comp. Laws 1915, § 7121) of which provides as follows:

"In any township, municipality or county in this State where the manufacture or sale of any of the liquors mentioned in section 1 is prohibited, it shall be unlawful for any person to keep, store, or possess any such liquor in any room, building, or structure, other than the private residence of such person, and which is not used as a place of public resort: Provided, That none of the provisions of this section shall apply to druggists authorized to sell such liquors, nor to persons possessing such liquors for medicinal, mechanical, chemical, scientific or sacramental purposes, nor apply to such liquors in the process of transportation or in the possession of a common carrier.”

The following facts appear in the record undisputed: Defendant Hanold is the proprietor of a soft drink establishment in which defendant Harris 'is employed as a helper. On the 14th day of March, 1916, defendant Harris went to Dr. McBurney and secured from him a prescription for one pint of whisky for medicinal purposes. This prescription was filled about six o’clock of the same day and Harris had it in his pocket on his person in defendant Hanold’s temperance saloon about seven or eight o’clock that evening when the deputy sheriff came to the place with a search warrant for intoxicating liquors. None were found in the place but a search of the person of defendant Harris disclosed his possession of the pint bottle of whisky secured by him at the drug store on the McBumey prescription. The two defendants were impleaded together and a verdict of guilty was rendered against defendant and appellant, Harris, only, under a charge of the court which is as follows:

“The claim of Harris is that he had obtained the whisky on a prescription of a physician that same afternoon, and that he intended to take some of the liquor, hot, when he went to bed that night. That is his testimony on the subject. Now, gentlemen, a physician, if he deems it necessary for the health of a patient, has a right under the law to prescribe whisky for the patient; and when whisky is prescribed for the patient the druggist has a right to sell it to the patient on the prescription of the physician and the patient has a right to take it away with him and consume it. That is a reasonable provision of the law. But, gentlemen, that provision of the law is intended to aid in restoring health and not intended to be used as a method of evading the law.
“This liquor which was obtained by Harris on the prescription, lawfully, was obtained as he says, along about four o’clock in the afternoon. That it was obtained by a messenger sent by him to a drug store for it, and that it reached his hands about six o’clock in the afternoon of that day. His room, his place of habitation, was in the rear of that building. He had no business with the liquor on his person in the saloon at that time. A man is entitled to have liquor for medical purposes, but he cannot, carry it around with him. He cannot take it to work with him. He cannot have it in any place except his private residence unless the doctor prescribes that it be taken at certain intervals, and.to take it at those intervals would make it necessary for the man to carry it with him. For example: if a doctor should prescribe whisky for, for example, a carpenter working on a building, with directions to take of the whisky every half hour, or hour, or three hours, the man would have the right to take the whisky with him to his work, and take it, every half an hour, or every hour, or three hours or five hours, as the doctor prescribed.
“But in this case, gentlemen, it does not appear that there was any such prescription. It does not appear that the doctor told him to take of this liquor every so often. In other words, it does not appear, as a medical proposition, that it was necessary for Harris to have the bottle of whisky in his pocket. It appears from his own testimony that he intended to take from the bottle when he went to bed, and he says his usual time of retiring was ten o’clock at night. He should have taken the whisky to his bedroom, his place of habitation, and left it there. It was unlawful for him to have it in his possession in the saloon at that time. And, gentlemen of the jury, if you believe his own testimony, you will bring a verdict of guilty as to defendant Harris.”

We are of opinion that this charge was clearly erroneous and that defendant Harris having proved beyond dispute, that he had secured the whisky from a druggist upon a lawful prescription, he had the right to carry the same upon his person for a reasonable time and until, in the natural course of events, and conveniently, he would reach his private residence (in this case his room in the hotel) which the record in this case does not show to have been exceeded.

The verdict is set aside and the defendant Harris discharged.

Ostrander, C. J., and Bird, Moore, Steere, Stone, and Kuhn, JJ., concurred. Fellows, J., did not sit.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    ATTORNEY GENERAL, ex rel. DICKINSON, v. CITY ELECTION COMMISSION OF THE CITY OF DETROIT.
    1. Courts — State Courts — City Courts — Recorder’s Court of the City of Detroit.
    The jurisdiction of the recorder’s court of the city of Detroit is of a dual character: when exercising jurisdiction to try persons accused of crimes, under the general laws of the State, it is a State court; when exercising jurisdiction, ' given to it exclusively, to enforce ordinances of the city, it is a city court.

      2. Municipal Corporations — Candidates for City Offices — Detroit Charter — Recorder’s Court of the City of Detroit.
    Under the charter of the city of Detroit, providing “No elective officer, or salaried officer appointed, by the mayor, shall be a candidate for any public office, except to succeed himself, without first resigning such office as he may hold,” the judge of the recorder’s court is disqualified from being a candidate for mayor without first resigning; said court, when exercising its exclusive jurisdiction to enforce ordinances of the city, being a city court.
    Mandamus by Alex. J. Groesbeck, attorney general, on the relation of Horace H. Dickinson, to compel the city election commission of Detroit, and Richard Lindsay, city clerk, to strike from the primary ballots the name of Edward J. Jeffries as a candidate for the office of mayor.
    Submitted August 9, 1918.
    (Calendar No. 28,491.)
    Writ granted August 15, 1918.

      P. J. M. Hally, for plaintiff.

      Walter Barlow and Moore & Moore (Allan II. Frazer and Thomas L. Dalton, of counsel), for defendants.
   Moore, J.

This is a petition filed by the attorney general, ex rel. Horace H. Dickinson, praying for a writ of mandamus to compel the respondents, the city election commission of the city of Detroit and Richard Lindsay, clerk of the city of Detroit, to-strike from the ballot now in preparation for use at the coming, primary election in Detroit, the name of Edward J. Jeffries as a candidate for the office of mayor.

The second paragraph of the petition reads:

“That on the 27th day of July, 1918, a petition was filed with the city clerk of the city of Detroit, by which petition Edward J. Jeffries became a candidate for the office of mayor of the city of Detroit.”

The answer of defendants admits the averments of this paragraph. It is contended it is the duty of thé clerk to strike this name off the ballot because of the provision on page 29 of the recently-adopted- charter of Detroit, which reads:

“No elective officer, or salaried officer appointed by the mayor, shall be a candidate for any public office, except to succeed himself, without first resigning such office as he may hold.”

It is the contention that this language is unambiguous and that no one holding an elective city, county, State or Federal office may be a candidate for mayor of the city of Detroit without first resigning the office he holds.

It is asserted, we quote from one of the briefs, that:

“It is legally possible for the city of Detroit to prescribe such a qualification. Act No. 279, Pub. Acts 1909 (1 Comp. Laws 1915, § 3304 et seq,), commonly known as the home rule bill, provides that cities may provide for the qualifications and for the nomination and election of officers. Section 3, subd. c; section 4, subd. c; Attorney General, ex rel. Selby, v. Macdonald, 164 Mich. 590; Coxe v. Carson, 194 Mich. 304.”

It is claimed the last cited case is controlling.

On the part of the defendants it is urged that the provision of the charter relied upon by the plaintiff is found under title 4, chapter 1, § 2, headed “Executive Department,” and that a reading of the chapter shows that its provisions relate to city officers and that subdivision (e) means the same as though it read, “No elective city officer * * * shall be a candidate, etc.” It is also said that this court has held (Murtha v. Lindsay, 187 Mich. 79; Detroit Civil Service Commission v. Engel, 187 Mich. 83), that the judge of the recorder’s court is a State officer and that it logically follows that the charter provision relied upon by the plaintiff has no application to the candidacy of Judge Jeffries.

In Murtha v. Lindsay, supra, the following language was used:

“The recorder’s court is, when exercising jurisdiction to try persons accused of crimes, under the general laws of the State, a State court; its judges exercising the powers of a circuit judge. People v. Jackson, 8 Mich. 78.”

In Detroit Civil Service Commission v. Engel, supra, it was said:

“The execution of the criminal laws of the State is a matter of State concern and in this respect the court possesses a jurisdiction which the electors of the city cannot confer.”

The jurisdiction of the recorder’s court, however, is not limited to the enforcement of the general laws of the State. In the 1904 charter, at page 203, is found the following:

“Said recorder’s court shall have exclusive cognizance of all prosecutions for offenses arising under this act or any ordinance or regulation of the common council.”

It is evident the jurisdiction of the recorder’s court is of a dual character. We think it logical to say that when it is exercising jurisdiction, given to it exclusively, to enforce ordinances of the city, that it is a city court. We do not think it necessary to say, and we decline to pass upon the question, that no man holding an elective office can be a candidate for mayor without resigning his office, but we do say a judge of the recorder’s court, a large share of whose duties is to take jurisdiction for the enforcement of the ordinances of the city, is disqualified from being a candidate for mayor without first resigning.

It follows that the writ of mandamus as prayed should be issued. As the question is one of public interest no costs will be given to either party.

Ostrander, C. J., and Steere, Brooke, Fellows, and Kuhn, JJ., concurred. Bird and Stone, JJ., did not sit.


author: OSTRANDER, C. J.

text:
    SCOTT v. SECRETARY OF STATE.
    1. Constitutional Law — Mandamus—Referendum—Elections— Regularity of Petitions — Parties—Electors.
    The interest which electors have in the determination of an important public question entitles them to institute mandamus proceedings requiring the secretary of State to determine whether a petition proposing certain amendments to the Constitution as it now exists, by adding section 12 to article 16, modifying the prohibition of the liquor traffic, conforms to the requirements of section 2, Art. 17, of the Constitution, and, if not, to refuse to proceed further in submitting it to the voters; especially in view of the fact that he was advised by the attorney general to proceed, leaving plaintiffs to their remedy in the courts.
    2. Same — Referendum—Rights of Electors to Petition.
    The right of qualified voters of the State to propose amendments to the Constitution by petition can be interfered with neither by the legislature, the courts, nor the officers charged with any duty in the premises; but the right is to be exercised, within the limitations imposed by the Constitution.
    3. Same — Duties of Secretary of State — Petitions—Sufficiency — Full Text of Amendment.
    The duty imposed upon the secretary of State by section 2, Art. 17, of the Constitution, in regard to petitions for submitting to vote amendments to the Constitution, includes that of ascertaining that the petition includes the full text of the amendment proposed, in addition to being signed by not less than ten per cent, of the legal voters of the State.
    4. Same — Ministerial Duty.
    The performance of this duty, while purely a ministerial one, may involve something more than doing a prescribed thing in a prescribed way.
    5. Same — Mandamus—Duty to Reject Improper Petition.
    ,As the secretary of State might be compelled by mandamus to receive a proper petition, *so he may be compelled to refuse to receive an improper one, since it is his duty to reject petitions not conforming to the constitutional mandate.
    6. Same — Petitions—Irregular on Face — Duty to Reject.
    A petition proposing certain amendments to the Constitution by adding section 12 to article 16, referring to a certain law which it is proposed “shall be in force and effect,”' as modified by certain exceptions, but not containing the full text of the proposed amendments, is not, on its face, in conformity with the requirements of section 2, article 17, of the Constitution, and mandamus will issue requiring the secretary of State to refrain from proceeding to submit such amendments to the voters.
    7. Same — Petitions—Regular on Face — Question of Fact.
    Whether the petition in question contains the full text of the proposed amendments is a question of fact.
    8. Same — Rejection of Part — Discretion.
    Where the proposed amendment is in effect to revive a repealed statute, except certain. sections, the secretary of State may not reject one or more of the proposed sections, since he is without discretion in the premises.
    9. Statutes — Effect of Repeal of Repealing Statute.
    In this State the repeal of a repealing statute does not re-, vive the statute repealed. 1 Comp. Laws 1915, § 65.

      Mandamus by Richard H. Scott and others to compel Coleman C. Vaughan, secretary of State, to refrain from submitting certain proposed amendments to the Constitution to the electors at the general election in November. Charles W. Norton and others were by Consent allowed, to intervene and answer the petition and to be heard in argument..
    Submitted August 6, 1918.
    (Calendar No. 28,471.)
    Writ granted September 5, 1918.

      C. W. & W. S. Foster (Cummins & Nichols, of counsel), for plaintiffs.

      Alex. J. Groesbeck, Attorney General, and Leland W. Carr, Assistant Attorney General, for defendant.

      Warner & Raudabaugh (Allan P. Cox, of counsel), for interveners.
    Article 16 of the Constitution of Michigan is entitled “Miscellaneous Provisions.” Section 11 of the article, added to the Constitution in 1916, operative since April 30, 1918, reads as follows:
    “The manufacture, sale, keeping for sale, giving away, bartering or furnishing of any vinous, malt, brewed, fermented, spirituous or intoxicating liquors, except for medicinal, mechanical, chemical, scientific or sacramental purposes shall be after April thirty, nineteen hundred eighteen, prohibited in the State forever. The legislature shall by law provide regulations for the sale of such liquors for medicinal, mechanical, chemical, scientific and sacramental purposes.”
    Petitions have been circulated in the State, signed and filed with the secretary of State, which are in the following form:
    “Petition to so amend the Constitution of the State of Michigan as to permit,, regulate and license the manufacture, sale, keeping for sale, giving away, bartering or furnishing of natural wines, wines of natural ' carbonization, cider, beer, porter and ale.

      “TO THE SECEETAEY OF STATE,
    “Lansing, Michigan.
    “We, the undersigned qualified electors of the State of Michigan, and being residents of the township of .■......................................or city of ..................in the county of............... under authority of section 2 of article 17 of the Constitution, hereby respectfully petition for an amendment to article 16 of the Constitution by amending section 11 thereof, and adding thereto five new sections to be known as sections 12, 13, 14, 15 and 16.
    “Said proposed amendment to section 11 to read as follows:
    “ ‘Section 11. The manufacture, sale, keeping for sale, giving away, bartering or furnishing of any vinous, malt, brewed, fermented, spirituous or intoxicáting liquors, except as hereinafter specified and except for medicinal, mechanical, chemical, scientific or sacramental purposes, shall be, after April 30, 1918, prohibited in the state forever. This amendment shall not be construed to prohibit the manufacture, sale, keeping for sale, giving away, bartering or furnishing of natural wines, wines of natural carbonization, cider, beer, porter and ale.’
    “Said proposed added sections to read as follows:
    “ ‘Section 12. Act No. 313, Public Acts of 1887, as amended and in force May 1, 1916, shall be in force and effect except as herein (Article XVI) modified.
    “ ‘Section 13. The circuit judge or judges in their respective circuits shall act on all applications for licenses upon petitions signed by twenty-five qualified voters of the organized township (meaning thereby all that part of a township outside the limits of an incorporated village or city located partly or wholly therein) incorporated village or incorporated city where the license is applied for and may grant the same, unless it be made to appear by a vote of such township, village or city that a majority of the voters of such township, village or city are opposed to the issuance of licenses therein, and shall grant the same if it be made to appear that a majority of the voters of such township, village or city are in favor of the issuing of licenses therein.
    “ ‘Section 14. No license, except a manufacturers’ license, shall be granted to do business in a residence section or nearer than four hundred feet to a school house or church except in business sections.

      ‘“Section 15. No more than one retail license in any organized township (meaning thereby all that part of a township outside the limits of an incorporated village or city located partly or wholly therein), incorporated village or incorporated city shall be granted for each one thousand population or fraction thereof, and no more than one wholesale license in a township, village or city shall be granted for each ten thousand population or fraction thereof, according to the last United States census.
    “ ‘A retail license shall permit the holder thereof to sell natural wines, wines of natural carbonization, cider, beer, porter and ale by the drink and in quantities of three gallons or less.
    “ ‘A wholesale license shall permit the holder thereof to sell natural wines, wines of natural carhonization, cider, beer, porter and ale in quantities of three gallons or more.
    “ ‘Any bond provided for in Act No. 313, Public Acts of 1887, as amended and in force May 1, 1916, may, within the discretion of the judge or judges granting licenses, be furnished hy any surety company authorized to do business within this State.
    “ ‘A holder of a license shall be ineligible for any elective or appointive public office, and the incumbent of any elective or appointive public office shall be ineligible for a license.
    “ ‘Section 16. The annual license fee shall be seven hundr.ed fifty dollars for each license, and shall be apportioned as follows: Two hundred fifty dollars to the township, village or city for which such license is granted, two hundred fifty dollars to the county and two hundred fifty dollars to the general fund of the State to be turned over to the general highway fund for the construction and maintenance of good roads; except that in the Upper Peninsula five hundred dollars shall go to the township, village or city for which such license is granted and two hundred fifty dollars to the general highway fund of the State, for good roads.’ ”
    Before they were filed, plaintiffs requested the secretary of State not to file them — to refuse to do so— and to reject them for the reason that they did not include, the full text of the proposed amendment as is required by article 17, section 2, of the Constitution, which reads: (

    ‘‘Amendments may also be proposed to this Constitution by petition of the qualified voters of this State. Every such petition shall include the full text of the amendment so proposed, and be signed by not less than ten per cent, of the legal voters of the State. Initiative petitions proposing an amendment to this Constitution shall be filed with the secretary of State at least four months before the election at which such proposed amendment is to be voted upon. Upon receipt of such petition by the secretary of State he shall canvass the same to ascertain if such petition has been signed by the requisite number of qualified electors, and if the same has been so signed, the proposed amendment shall be submitted to the electors at the next regular election at which any State officer is to be elected. Any constitutional amendment initiated by the people as herein provided shall take effect and become a part of the Constitution if the same shall be approved by a. majority of the electors voting thereon and not otherwise. Every amendment shall take effect thirty days after the election at which it .is approved. The total number of votes cast for governor at the regular election last preceding the filing of any petition proposing an amendment to the Constitution, shall be the basis upon which the number of legal voters necessary to sign such a petition shall be computed. The secretary of State shall submit all proposed amendments to the Constitution initiated by the people for adoption or rejection in • compliance herewith. The petition shall consist of sheets in such form and having printed or written at the top thereof such heading as shall be designated or prescribed by the secretary of State. Such petition shall be signed by qualified voters in ‘person only with the residence address of such persons and the date of signing the same. To each of such petitions, which may consist of one or more sheets, shall be attached the affidavit of the elector circulating the same, stating that each signature thereto is the genuine signature of the person signing the same, and that to the best knowledge and belief of the affiant each person signing the petition was at the time of signing a qualified elector. Such petition so verified shall be prima facie evidence that the signatures thereon are genuine, and that the persons signing the same are qualified electors. The text of all amendments to be submitted shall be published as constitutional amendments are now required to be published.”

      This request was referred by the secretary of State to the attorney general. Plaintiffs requested the attorney general to advise the secretary of State that for the reason asserted he ought to refuse to file said petitions. The attorney general, in a written communication, advised the secretary of State as follows:
    “July 3, 1918.
    “Hon. Coleman C. Vaughan,
    “Secretary of State,
    “Lansing, Michigan.

      “Deem' Sir:

    “I have before me your letter of the 2nd instant and note that petitions have been presented to you in accordance with section two of article 17 of the Constitution, requesting the submission to the voters at the November election of a proposed amendment with reference to the manufacture and sale of wine and beer. You state that some question has been raised as to the acceptance of said petitions and the submission of the proposed amendment.
    “It is proposed to change section eleven of article 16 and to add five new sections thereto. The first of the added sections refers to Act No. '313 of the Public Acts of 1887, and declares that the same as amended and in force May 1, 1916, shall be in force and effect except as modified by the Constitution. The objections that have been presented are directed against this section, it being claimed that the attempt to incorporate by reference is prohibited by the constitutional clause governing the matter. The question of legislating under the guise of a constitutional amendment is also at issue.
    “These propositions have never been passed on by the courts in this State and the decisions in other States cannot, in my opinion, be regarded as conclusive, inasmuch as the constitutional provisions involved are different. The Supreme Court, in the case of Thompson v. Secretary of State, 192 Mich. 512, in passing upon a situation arising under the referendum clause of the Constitution, declared that the duties of the secretary of State in the premises were purely ministerial. The same rule must, I believe, apply with reference to your duties in connection with the submission of constitutional amendments proposed by initiatory petitions. It scarcely seems to me, therefore, that you should undertake to pass upon the legality of a proposed amendment when the questions involved in the determination have never been settled by our Supreme Court.
    “In the instant case the matter is one that can be submitted to the court without delay or any appreciable expense, and a decision obtained that will remove any doubt as to your duty in the premises and as to the legality of the amendment. There can be no difference of opinion upon the proposition that an authoritative determination should be had as soon as possible in order the electors of the State and officials concerned may be guided thereby. In my opinion, therefore, a proceeding of the nature suggested should be brought as soon as possible by the parties who have presented the objections, so that the issues may be disposed of in an amicable suit.
    “This department will stand ready to co-operate in the submission of the case in order that its disposition may be facilitated, and have so advised the attorneys for the parties interested in the objections.
    “Respectfully yours,
    “Alex J. Groesbeck,
    “Attorney General.”
    Thereupon the petitions were duly filed.
    Plaintiffs describe themselves as citizens, residents, electors and taxpayers of the State and officers and directors of an association known as the Anti-Saloon League of Michigan, interested, individually and as representatives of the membership of the said league and of many citizens, in
    “all legislation, constitutional and statutory, affecting the sale or nonsale and the control and regulation of intoxicating liquors in the State of Michigan, and in its due administration and enforcement.”
    Setting up the facts already herein stated, they petition this court for an order directed to the secretary of State, commanding him to strike from the files and records of his office the said petitions, to refrain from publishing and printing the said proposed amendment or any of it, to refrain from submitting it for adoption or rejection at the next regular election.
    An order to show cause having been made and served, the secretary of State, defendant, has answered the said petition of plaintiffs, admitting the facts therein set up, including the interest of plaintiffs, stating that in action so far taken he has been guided by the advice of the attorney general, asserting that he has no discretion in the premises, and, as to his duties, submitting:
    “In answer to the ninth and tenth paragraphs of the petition it is denied that respondent has in any way acted in contravention of the duties imposed on him by law. On the contrary it is insisted that respondent has acted in strict accordance with the direction of the Constitution and of the statutes. The duties of the secretary of State in the premises are wholly ministerial, no power of judicial inquiry whatsoever is vested in him and therefore, upon presentation to him of the petitions aforesaid under section two of article 17, in proper form and signed by a sufficient number of electors, it was his duty to receive and file the same. Unless otherwise directed it will be the duty of respondent to submit the said proposed amendment to the electors of the State at the next general election.
    “Respondent believes and so states that it is- not competent or proper for him as secretary of State to construe or attempt to construe ambiguous provisions of any proposed amendment, or to adjudicate or attempt to adjudicate disputed questions of law. Rather, it has been and now is the position of respondent that any such question or questions, or disputed construction, should be submitted to the court for determination by any party or parties interested therein. In the instant case such submission would, without question, have been sought regardless of the position taken by respondent; and respondent believes that a final and authoritative determination by this court is greatly to be desired in order that the electors of the State, and officials charged with the performance of duties under the election law, including this respondent, may be fully advised as to their legal duties.
    “Wherefore, it is denied that the petitioners are entitled to the writ of mandamus sought; and the judgment of the court as to respondent’s duty in the premises is respectfully prayed.”
    Describing themselves as a campaign committee appointed by the president of the Michigan State Hotel Association,
    “for the purpose of assisting .and carrying on a campaign with the object in view of having the constitutional amendment in relation to the sale of cider, wine and beer, adopted by the people of the State of Michigan,” ■
    Messrs. Charles W. Norton, Frank W. Harriman, George Fulwell and William J. Chittenden have asked for and been granted leave to answer the plaintiffs’ petition and to be heard, the attorneys for plaintiffs and the attorney general, by stipulation, having consented thereto. The answer filed by these gentlemen denies none of the facts set out in plaintiffs’ petition, admits the interest of plaintiffs, and sets up as an additional fact that the proposed amendment was presented to the secretary of State in February, 1918, with a request that he designate the form of sheets to be used in said petition and of the heading to be written or printed thereon, which he, the said secretary of State, did on March 8, 1918; that if the secretary of State has any right' or authority to exercise any discretion in that behalf he then had opportunity to exercise it “as to the legality of the proposed amendment,” and it is now too late for others to raise the question and for the courts to undo what has been done. The answer asserts that the duties of the secretary of State in the premises are ministerial, and that he has no authority to pass upon the form or substance of an amendment to be submitted, and that inasmuch as a sufficient number have signed said petition it is his duty to submit the proposed amendment to the electors; that there is no unperformed legal duty and the plaintiffs seek to impose upon him the duty to judicially determine whether or not the proposed amendment “is in accordance with the Constitution.”
    Upon the said petition and answers the matter has been submitted to the court. For defendant secretary of State it is said in the brief of the attorney general that the question involved is whether it can be said on the face of the petitions it appeared that the full text of the amendment was not set out.
    “Under the facts here is such determination ministerial or judicial? If judicial, it is beyond respondent’s power. If ministerial the duty rested upon respondent to determine the fact correctly. If he has erred in this it lies with the court to correct him.”
    Referring to various definitions of judicial and ministerial acts and duties and the difference between them, no opinion is expressed by the learned attorney general beyond the one indicated in his letter to the secretary of State above referred to.
    For interveners two briefs have been filed by different counsel. In one of the briefs it is said there are two questions raised,
    (1) Do the petitions comply with the constitutional requirement that they shall include the full text of the proposed amendment?
    (2) If not, may the secretary of State be compelled by mandamus to strike said petitions from his records and refraih from taking any steps in reference to submitting said proposed amendment to a vote of the electors ?
    It is conceded that if section 12 of the proposed amendment as written would by its terms make that ■ part and portion of the Public Acts of Michigan a part and portion of. the Constitution, if the same were adopted by a vote of the people, then

      “said section is not in accordance or in keeping with the constitutional requirements, in this that it does not contain full text of the proposed amendment.”
    But it is the opinion of counsel that the effect of section 12 is to revive the statute, by direction, and “does not become or form a part of the Constitution of the State.” It is contended further that, assuming the secretary of State has the necessary authority, it is his duty to eliminate section 12 from the proposed amendment and allow the remainder of the proposed amendment to stand, the amendment as proposed being complete and workable with this section eliminated. But, it is said, the duty of the secretary of State is ministerial and the question raised cannot be determined in the exercise of merely ministerial powers.
    In the other brief for interveners, the right of plaintiffs to institute this proceeding is questioned. Granting their interest, it is said that mandamus is not the proper remedy to invoke, in this connection claiming that the essence of plaintiffs’ complaint is that the secretary of State has approved the proposed amendment and mandamus is sought t<? compel him to undo what is done; that the writ will not lie to compel the doing of an act which defendant is not yet under obligation to perform. It is said the court is without jurisdiction, the people in initiating the proposed amendment having acted in their legislative capacity, in which they are free from judicial interference.
    “In the instant case, the proposed amendment on file in the office of the secretary of State, having been approved by him and signed by about 100,000 qualified electors of the State, is simply in its present condition formative legislation, within the jurisdiction of the sovereign people acting in their legislative capacity. If the people do not adopt it, the courts as such will not come into contact with it, but if adopted, it then and then only becomes subject-matter for judicial cognizance.

      “The action now here sought by the petitioners is a deadly knife thrust into the very vitals of the initiative and referendum, and spells an attempt to thwart the will of the sovereign people in direct legislation. If the legislature, merely, the agent of the people, cannot be interfered with by the courts, another agent of the people, by what process of reasoning can one reach the conclusion that the principal, the people, can be interfered with in acting in their legislative capacity by the courts, their agent?
    “The duties of the secretary of State in relation tb initiated legislation are of the same dignity and character as the duties of the clerks of the house and the senate^ during legislative sessions, and no more subject to judicial control. The present action against him is a thinly veiled attempt to stifle the proposed amendment and thereby accomplish indirectly that which no court has the power to do directly.”
    Of the proposed section 12 it is said in part:
    “The now proposed amendment, we respectfully but firmly maintain, will, if adopted by the people, not only repeal the present prohibition section of the Constitution in so far as wine, beer, cider and ale are concerned, but will also repeal by implication the laws dealing with these beverages passed by the legislature of 1917. This being the case, we have the situation of the repealing act being repealed which thereby revives the former laws in so far as they are in harmony with the new amendment.
    “Section 12, therefore, simply expressly states an intent to revive the former laws, except wherein modified by the amendment. In other words, it simply does expressly what otherwise would be done by implication, as stated in Blackstone. By expressly stating, all doubt is removed as to the intent of the people in adopting the amendment. This is not re-enacting the old statute as claimed by petitioners in their brief. It is, rather, expressly stating the fact that the bar which now makes the Warner-Cramton law inoperative is removed.
    _ “To attempt to deny to the sovereign people the right of having the doctrine of revival applied to legislation initiated and adopted by them directly, and at the same time apply the doctrine of revival to acts of the legislature. is a piece of effrontery that is unequalled in the history of popular government.
    “The endeavor on the part of petitioners to prevent the submission of the entire amendment because of their objections to section 12 is flying directly in the face of the elementary rule of statutory construction that if a law is good in part and bad in part, the valid will be kept and the invalid discarded, if the valid part is workable. Who has the temerity to say that the proposed amendment with section 12 eliminated is not workable, as a constitutional provision, which would be supplemented by subsequent legislation? In discussing this latter principle, we do not for a moment concede that section 12 can be legally eliminated, but we simply argue the proposition as an illustration of the unsoundness of the position taken by petitioners.
    “What now becomes of petitioners’ wail that the full text of the amendment is not contained in section 12? It dissipates into thin air, without leaving even an echo. Emphatically, section 12 contains the full text, for it is simply the express statement of the intent to revive the laws formerly repealed. As an expression of such intent, a fuller, fairer or more complete statement could scarcely be devised. Instead of being there for the purpose of confusing the people or for the purpose of ‘constitutional tinkering,’ as slurringly remarked by petitioners in their brief, it is there for the express purpose of informing the electors just what the result of the adoption of the amendment will be — nothing is left for conjecture or implication.
    “Further, section 12 being a full, free, frank statement of the intent to revive meets the only criticism made by petitioners that is worthy of consideration, viz., that section 12 does not contain the full text of the amendment. In this connection, it is respectfully maintained that as section 12 does contain the full text, it becomes unnecessary to decide whether as an expression of intent section 12 will become effective or not, if adopted, in producing or aiding revival of the former laws.”
    For plaintiffs it is contended that section 12 does not comply with either the letter or spirit of the constitutional provision for amendments, as, if adopted, it would transplant into the Constitution the statute referred to as amended. Of the contention that the effect of section 12 of the proposed amendment is merely to re-enact.or revive a statute, it is said that since May 1, 1918, by force of the Constitution, Act No. 313 of the Public Acts of 1887 and its amendments have stood repealed. It can be revived as a statute or as a part of the Constitution. The legislature cannot revive it until the Constitution has been changed. The people can pass no law which the legislature could not pass. But, assuming that if set out in full in the proposed amendment and the entire amendment adopted at the next general election, the effect would be a revival of the law, the legislature could not thereafter amend or repeal it for the reason that it had become a part of the Constitution.
   OSTRANDER, C. J.

(after stating the facts). Under the circumstances disclosed here, including, of course, the fact that the attorney general advised the filing of the petitions, plaintiffs show such an interest as entitles them to institute this proceeding. Ayres v. Board of State Auditors, 42 Mich. 422; Thompson v. Secretary of State, 192 Mich. 512, 522.

Of the right of qualified voters of the State to propose amendments to the Constitution by petition it may be said, generally, that it can be interfered with neither by the legislature, the courts, nor the officers charged with any duty in the premises. But the right is to be exercised in a certain way and according to certain conditions, the limitations upon its exercise, like the reservation of the right itself, being found in the Constitution. The secretary of State is charged with certain duties in this behalf.

“Upon receipt of such petition by the secretary of State he shall canvass the same to ascertain if such petition has been signed by the requisite number of qualified electors, and if the same has been so signed, the proposed amendment shall be submitted to the electors at the next regular election at which any State officer is to be elected.”

Such petition. A petition including the full text of the amendment so proposed, signed by not less than ten per cent, of the legal voters of the State. The ascertainment of these facts which are to appear before he is charged with the performance of further duties involves the exercise of no 'discretion, the performance of none but a ministerial duty. The performance of a purely ministerial duty may involve something more than doing a prescribed thing in a prescribed way. Knowledge of the correlation of facts, the exercise of reason, the application of established principles and rules may be required before performance of a duty is indicated, before the fact upon the existence of which the duty arises can be said to be established. One must appreciate the meaning and effect of what appears upon the face of a petition before he can determine whether, upon its face, it imports one thing or another. As he might be compelled by mandamus to receive a proper petition, so by mandamus he may be compelled to refuse to receive an improper petition, since it is his duty to reject, at least to refuse to take further action concerning, petitions not conforming to the constitutional mandate. The jurisdiction of the court in the premises cannot be doubted, exercised within the limits herein indicated. Rich v. Board of State Canvassers, 100 Mich. 453; Livingstone v. Wayne Election Commissioners, 174 Mich. 485; Thompson v. Secretary of State, 192 Mich. 512, 521, 522.

Does the petition here in question contain the full text of the proposed amendment? This is the single question to be answered, and is a question of fact. The proposed amendment to the Constitution which is in question here is a single thing. A single subject-matter is involved. Upon the face of the petition an amendment to the Constitution is proposed, a change of the Constitution as it now exists. It is proposed to add section 12 to article 16, to stand as a section of the Constitution. The law to which that section refers, once in force, has now no sanction. The text of the law can be found. It is proposed that it “shall be in force and effect,” proposed therefore to enact a law, to give life, legal sanction, to a set of words and phrases, referred to but not set out. And it is proposed further that the matter referred to shall be modified in meaning by language found in sections 13, 14, 15, and 16 of the proposed amendment, each of which is to stand as an amendment of the Constitution. Upon the face of the proposition, it is clear enough that it is designed to make the matter found in the act referred to a part of the Constitution and that the full text of the proposed amendment is not contained in the petition.

An argument supporting this conclusion may be differently stated. Excepting the laws of 1917, passed to make effectual the provision of section 11 of article 16 of the Constitution, there is no law affecting the subject-matter of the proposed amendment. What is the apparent scope of the proposed amendment? Plainly, to permit, what is now forbidden, the manufacture and sale of certain liquors and to regulate such manufacture and sale. Where is the text, where are the words and phrases, constituting the regulatory rules? It is plain that they are not in the proposed amendment.

The idea that the secretary of State may reject one or more of the proposed sections is, of course, based upon the further idea that he has discretion in the premises and all concerned unite in denying that he has any such power.

The argument that section 12 of the proposed amendment is merely declaratory of a rule of law, that since section 11 of article 16 of the Constitution repealed, or made inoperative, the liquor laws, the proposed amendment of that section will ipso facto revive them is essentially unsound. It is not true that in this State the repeal of a repealing statute revives the statute repealed. 1 Comp. Laws 1915, § 65. And, moreover, as a declaration, section 12 leaves repealed a large body of law upon the general subject.

I conclude that it was the duty of the secretary of State to reject the petition, and is now his duty to refuse to proceed further to perform any duty imposed on him by article 17, section 2, of the Constitution in this behalf.

The writ will issue, but no costs are awarded.

Bird, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


author: Steere, J.

text:
      In re KEENE’S ESTATE.
    1. Estates of Decedents — Liability fok Debts.
    By statute tlie entire estat> of a deceased person, real and personal, is Reid liable for deceased’s debts, after payment of tbe necessary expenses of administration, including costs of last sickness and funeral.
    2. Same.
    The corpus of the estate is subject to creditors’ liens, and the surplus after the valid and properly proved claims are paid, rather than, the gross assets, constitutes the actual estate left to deceased’s distributees or beneficiaries.
    3. Executors and Administrators — Extraordinary Services — Petition for Allowance of Claim.
    Under section 14118, 3 Comp. Laws 1915, the executor of an estate is required to file a petition with the probate court setting forth in detail extraordinary services performed and the reasons for considering same extraordinary, and failure to file such petition renders any order allowing the claim void' and of no effect.
    4. Same — Attorney’s Fees — Will Contest — Costs — Rights of Creditors.
    The assets of an estate may not be diminished to the detriment of creditors by payment of attorneys’ fees and expenses of litigation in a will contest in which the creditors had no interest, and which could in no event be beneficial to them.
    5. Same — Pleading—Practice—Rights of Creditors.
    No formal pleadings or objections were necessary in the probate court to entitle creditors, whose claims against an estate had been established, to the benefit of the court’s order disallowing in part the executor’s claim for attorneys’ fees and his own claim for extraordinary services which were not properly a charge against the estate.
    6. Same.
    On appeal to the circuit court by an executor from an order of the probate court disallowing his claim in part, . creditors clearly having an interest in the litigation should be allowed to intervene and defend their rights in subordination to the main proceeding, as the ends of justice seem to require; such being within the spirit, if not the letter, of sections 12362-12364, 3 Comp. Laws 1915.
    Error to Muskegon; Sullivan, J.
    Submitted January 22, 1918.
    (Docket No. 162.)
    Decided September 27, 1918.
    John H. Banninga presented his first annual account and first special account as executor of the last will of Alice Maynard Keene, deceased. The account was disallowed in part, and he appealed to the circuit court. Judgment affirming the order of the probate court. The executor brings error.
    Affirmed.

      H. Monroe Dunham and John M. Dunham, for appellant.

      Cross, Vanderwerp & Foote and R. J. Macdonald, for appellee creditors.
   Steere, J.

This case is supplemental to the litigation in Re Keene’s Estate, reported in 189 Mich. 97, which resulted in affirmance of a judgment on verdict of a jury rendered in the circuit court of Muskegon county sustaining .an alleged lost will of Alice Maynard Keene, a resident of Muskegon, who died in the city of Grand Rapids some time in December, 1918, supposed at the time to have left an estate of considerable magnitude, which upon probation proved so disappointing as to give rise to the present controversy, which is mainly a contention between her creditors and attorneys, engaged by her executor, to sustain her lost will, as to whether the latter’s fees or the creditors’ claims should have priority in the distribution of the assets of her estate.

The present litigation had its origin in objections interposed by certain of deceased’s creditors to allowance of portions of the “first annual account” and “first special account” of J. H. Banninga filed in the probate court as executor of deceased’s estate under her sustained lost will. Banninga was appointed executor in September, 1914, and his first annual account was filed September 7, 1915. His first special account was filed July 22, 1916. Amongst the items of those accounts which he sought to have allowed were numerous rendered bills of fees paid attorneys for professional service, amounting to $1,429.08, and claims of the executor for extra services aggregating $701.25. It is undisputed that most of the services rendered by attorneys whom the executor employed were in connection with the will contest, presumably begun and pursued in the interest of beneficiaries under the will, a litigation which could not affect the original quantum of the estate or the rights of creditors of deceased.

The substance of objections interposed before the probate court was that the allowed claims of creditors should first be paid, and should not be delayed or jeopardized by the will contest or expenses incurred in connection with it; the concluding objection summing up as follows:

“By the allowance of this claim and the allowance of the claim of attorneys claiming to represent the executor, the estate of the said deceased will be wholly insolvent. The attorneys’ bill to date, as filed, shows a claim of $2,425.90, and the executor’s account a claim of $701.25. Most of which charges are entirely out of proportion with the services rendered; some of them are illegal as expenses of administration in advance of the payment of creditors and show a studied attempt on the part of the executor to so admin-’ ister this estate that there will be nothing left for creditors, whose claims have been allowed by the court, and whose claims should first be paid, at least in advance of all claims except statutory fees.”

The probate court in passing upon the executor’s accounts held he should be allowed his statutory fees for services, $100 for attorney’s fees, and $200 additional for services and expenses, the order concluding as follows:

“It is ordered, that said accounts be and they are hereby allowed, except items aggregating $1,429.08 for attorneys’ fees and disbursements on account of suit in the circuit and Supreme Courts, which are hereby disallowed, except the sum of $100, without prejudice, however, to said executor to make claim for payments for attorney’s services when the creditors are paid; * * * that the executor be allowed the sum of $200 for his services and expenses, without prejudice to his right to make claim at some future accounting for compensation for extraordinary services.
“It is further ordered that said executor pay the sum now in his hands, to wit: Twenty-nine hundred eighty and 74/100 dollars, to the creditors of said deceased within 30 days from the date of this order.”

This order was affirmed, in substance, on appeal by the executor to the circuit court of Muskegon county.

The statement of facts in Re Keene’s Estate, supra, are helpful to an understanding of the controversy here and the situation as a whole which confronted the probate court when passing on appellant’s accounts.

On deceased’s death she left in Muskegon some tangible assets in the shape of real estate depreciated in value by the trail of the serpent over them in the use to which they had been devoted, and • some creditors whose claims this property was adequate to liquidate if devoted to that purpose through the ordinary processes, of probation. Her only ascertained relatives having possible interest in her estate were a brother and his family, living in Iowa, and a random husband from whom she was separated and against whom she had instituted divorce proceedings. Her life and associations had been such during the 20 years of her residence in Muskegon that beyond those things directly visible her financial circumstances and private affairs were matters of conjecture and gossip.

After Mrs. Keene’s death no will was found and upon petition of her brother from Iowa, Frank Maynard, an administrator was appointed, in December, 1913, and probation of her estate begun in the probate court of Muskegon county. Banninga was a real estate operator who had done some business for deceased during her lifetime and in 1900 drew her will for her in which he was nominated her executor. In June, 1914, he found in his desk what he testified was a pencil copy of the original will as he had drawn it for her, and, upon consultation with the attorneys who afterwards conducted the contest, advised Frank Maynard as one of the heirs to sign a petition for probation of the lost will. Banninga was the principal witness in the will contest and here. He testified in the instant case that he employed counsel for the purpose and the “total amount of the services rendered by the attorneys as shown by these statements is $2,425.90,” which from his experience in such matters he considered a reasonable charge for their services, and, in explanation of the uncertainties and embarrassments attending the undertaking, said: ■

“The arrangement was made that if the will was not established the attorneys were not to have any claim against me personally, but if the will was established they were to put in their bill for a reasonable amount to me as executor of the estate and I would see that they were paid. They stated to me that it was rather a complicated case and therefore more or less speculative, and that if they won they would expect a larger fee than if they didn’t win. They paid the costs until I became executor and took charge of the estate. The character of the parties themselves had something to do with the question of fees. The parties were irresponsible to a large extent, both Mr. and Mrs. Maynard being addicted.to the drug habit and Mrs. Keene herself had been known as Queen of the Sawdust in Muskegon and was also known as a famous sporting woman. She kept a number of houses of prostitution in Muskegon. Gust Keene, her husband, was an ex-saloonkeeper for a time and had the reputation of being an ex-convict. A good many of the witnesses and parties mixed up in the case were or had been inmates of houses of prostitution and were people of such character and reputation and these things were all talked over at that time.”

He was appointed by the probate court executor under the will, in September, 1914, and after qualifying as such took charge of the estate, administration of which had in the meantime been pending in the probate court as of one dying intestate. It was stated by counsel, without objection, that claims against the estate, some 12 or 14 in number, were passed upon by that court, June 20, 1914. Banninga testified that the total amount of claims allowed according to the files is $2,805.36, none of which had been paid by him, and the records show that they remain unpaid.

Banninga’s assertion that this was an “extraordinary case,” appears to be fairly borne out by his narrative in justification of his claim for extra compensation, relating the disappointments and difficulties he encountered in attempting to find and realize on the supposed assets. He testified that the general impression was from shortly after Mrs. Keene’s death until the appraisers made an inventory that her estate was worth $25,000 to $40,000, but when he qualified as executor it proved to be worth only about $7,000; that before her death Mrs. Keene owned many large and valuable diamonds and he had learned there were safety deposit boxes in Chicago in her name, to which color was added by the fact that “Bud Leonard” who claimed to have been with her in the Fort Dearborn bank “said there were large sums of money and jewels and diamonds and so forth”; promising to tell them “the number and so forth”; but they were unable to find a record of any such thing “after diligent search in numerous banks in Chicago, neither under the name of Stamp or Maynard or Keene or any other alias she used to go under,” and none of those things could be found, the result being that the assets of the estate which he was able to secure dwindled to a property called the St. Elmo hotel, upon which there was a mortgage, two properties which had been sporting houses, and some furniture. The probate judge informed him after he was appointed executor that the estate could not rent property for immoral purposes and if he did so he would likely get into trouble and in all probability go to jail; the State fire marshal also informed him the houses must be closed until the chimneys were rebuilt, and the mayor of Muskegon at one time told him “that the property must be cleaned up or the authorities would close it, on account of the filthy condition and the dilapidated state of affairs of the property.” But in spite of these embarrassments and various others which are detailed he states that “through my efforts I realized $7,000 for the estate”; he having on hand, as found by the probate and circuit courts, $2,980.74.

One somewhat serious objection suggested against appellant’s claim for increased fees and extra allowances, for services rendered in person and disbursement in the employment of attorneys and otherwise, is his failure to file the requisite statutory petition in the probate court presenting the unusual difficulties and responsibility which demanded the extraordinary services and disbursements for which allowance is sought. The executor’s fees and per diem are fixed by statute, in addition to which he is entitled to allowance of necessary expenses in care, management and settlement of the estate; beyond that the probate court may make allowance for “extraordinary services” on proper presentation and proof of the same authorizing the court to act. To move the court in that particular the statute provides, section 14118, 3 Comp. Laws 1915, that—

“In all cases where the executor or administrator shall perform any extraordinary services, not required of an executor or administrator in the common course of his duties, and in cases of unusual difficulty or responsibility, such further allowance may be made as the judge of probate shall deem just and reasonable: Provided, however. That such allowance shall only be made upon the filing of a petition therefor, setting forth in detail such extraordinary services, or the reasons for considering the case one of' unusual difficulty or responsibility, and the order making any such allowance shall recite in detail the extraordinary services. for which such allowance is made, giving the amount allowed for each item thereof, or the reasons for considering the case one of unusual difficulty or responsibility; and in case the order does not contain such recitals as herein required, the same shall be void and of no" effect.”

After the case had reached the circuit court on appeal, appellant’s counsel asked leave to amend his accounts into a more formal petition covering his claim for extraordinary services and expenses in conformance with the statute. This was held not within the power of the appellate court, because the matter had never been properly presented by petition, as the statute requires, to the probate court from which the appeal was taken and in which original jurisdiction rested. As applied to appellant’s own services, at least, this view finds support in the somewhat analogous case of In re Thompson’s Estate, 183 Mich. 618. The question is, however, of minor importance here, for both courts reserved to appellant the privilege of presenting the rejected items of his accounts by appropriate petition in the probate court “when the creditors are paid,” a sequence against which appellant seriously protests, and the real pivotal issue between these parties is whether charges by the executor for his special services and those of attorneys employed by him in a contest to establish a lost will, a matter of no concern to appellees, can be allowed or paid until the proved claims of creditors for debts incurred by deceased in her lifetime have been taken care of.

It seems self-evident that the quantum, of the estate as such could not be affected by whether there was or was not a will. It was a matter of indifference to the creditors what became of the residue of the estate after the debts were paid. It was nothing to them who the beneficiaries were, or whether they took by will or by inheritance. By statute the entire estate, real and personal, is held liable for deceased’s debts, after payment of the necessary expenses of administration, including costs of her last sickness and funeral. 3 Comp. Laws 1915, §§ 13794, 13887, 13888. Until the valid and properly proved claims of those who extended credit to deceased in her lifetime for money loaned, goods sold or services rendered are paid, the unearned gratuities to beneficiaries under her will or inheritances to her heirs are postponed and contingent, the corpus of the estate is subject to creditors’ liens and the surplus rather than the gross assets constitutes the actual estate left to deceased’s distributees or beneficiaries.

“The law subjects the assets of a deceased person to the payment of his debts, and for this reason the creditor has an equitable lien thereon, which he can enforce through, the administrator in a proper case for equitable interference.” Pierce v. Holzer, 65 Mich. 263, 273.
“Under our system the settlements of estates of deceased persons are essentially proceedings in rem (Howard v. Moore, 2 Mich. 226), as they are in most of the other States, in which the res is the decedent’s estate and the jus ad rem is in the creditor. Upon the death of a person leaving creditors, the debts, previously personal obligations, become immediately property obligations, with all the force of a lien upon a debtor’s estate.” Lafferty v. People’s Savings Bank, 76 Mich. 35, 51.

Cases cited by appellant where fees of counsel and other expenses incurred by an executor or administrator in prosecuting or defending litigation directed to increasing or conserving the amount of the estate are held to be proper expenses of administration because for the benefit of the whole estate as such, and will contests where no rights of creditors are involved, are not analogous in facts or point involved. Here the creditors are opposing diminution of an estate, upon which they have a lien, by the expenses of a litigation which jeopardized their claims and could not in any event be beneficial to them.

Under the circumstances of this case we are not impressed with appellant’s contention that it was his legal or moral duty to assume and aggressively conduct the prosecution of this will contest. He claimed no family or social relations with deceased nor personal obligations to her. He had simply done some business for her and at one time drawn her will at her request, in which he was named as executor, and had subsequently delivered the will to her. When she died he neither had possession of the will nor knew where it was, and it was never found. The statute is not directed to such a situation. Barney v. Barney, 192 Mich. 45. Had he been the custodian of it or known where or with whom it was deposited the statute invoked might be material. Conceding that in fairness and as a moral duty he should inform those who might be beneficiaries under the will or interested in the estate of the facts known to him, when he had done this his moral obligations were fulfilled except as those interested in the estate might require his services as a witness. When the lost will was finally sustained and admitted to probate, it was discretionary with the court to appoint him executor and if appointed he was under no legal obligations to accept the appointment. So far as any legal or moral obligations are concerned, he was perfectly free after advising those directly interested of the facts he knew to leave the will contest to them. After he became executor he represented the estate and as its assets reached his hands in due course of administration it was his duty to conserve and apply them according to law, under the direction of the court, in paying the debts, claims and charges against the estate in legal order of preference. The cost of a will contest between prospective distributees of a deceased person’s estate is not naturally or usually to be recognized as a reasonable or necessary charge incurred by reason of his or her death. As applied to the situation presented here, the right of the matter is well reasoned out in Mumper’s Appeal, 3 Watts & Serg. (Pa.) 441, where the status of those interested in an estate but not in a contest between heirs or beneficiaries is discussed in part as follows:

“As regards the quantum of the estate, it is a matter of indifference whether there be a will or not. Will or no will, is a question which cannot affect the estate, in this respect, in the slightest degree; but it may be, and generally is, a matter of great interest to those who claim as legatees or devisees under the writing purporting to be a will. They are the only persons interested in establishing it as a will. While, on the other hand, the heirs-at-law, or next of kin to the deceased, who are either excluded by the writing from receiving any portion of the estate, or as much of it as they would be entitled to in case of intestacy, are the persons principally interested in opposing the establishment of the writing as a will. If the person appointed by it as executor be named also, as a legatee or devisee, then as such he may be deeply interested also in establishing it to be the last will of the deceased. But it is clear that creditors and the rest of the world have no interest whatever in the question. It would, therefore, seem to be just, as well as equitable that those who have an immediate and direct interest in the question should be left to contest and bear all the costs and charges attending it. It ought to be left to them to employ counsel or not, as they please; and consequently to bear the expenses of doing so.”

Vide, also, 2 Woerner’s American Law of Administration (2d Ed.), § 516.

It is further contended for appellant that the circuit court, where the issue was tried de novo, had no right to make the order complained of because only the Michigan Trust Company, as executor of the Torrent estate, had filed formal objections to his accounts in the probate court, which were subsequently abandoned, or withdrawn when its duties as executor had ended, and the three creditors who appeared for the first time in the circuit court were not entitled to be heard or participate in the trial. The Michigan Trust Company as executor of the estate of John Torrent, a creditor of deceased, did file its objections in the probate court and was there represented by counsel who pressed the objections at the hearing in which that court passed upon the executor’s accounts. R. J. Macdonald, a creditor who testified that he also appeared in the matter in the court below, filed written objections in the circuit court and appeared in person at the trial. John D. Vanderwerp and the Pine Street Furniture Co., also creditors with proved claims, entered their appearance in the circuit court and were represented by counsel at the trial. Although at the time of trial in the circuit court the Torrent estate was in effect fully probated and the trust company’s duties of administration ended, no formal order discharging it as executor had been made or entered and counsel who appeared for it and other creditors in the circuit stated to the court: “I was informed that until they were discharged I was to continue the matter.”

All the creditors whose claims against the estate had been established were interested in this issue. No formal pleadings or objections were necessary in the probate court to entitle them to the benefit of the court’s order as made. Whether they filed objections or not it was the right and duty of the probate court to judicially pass upon the executor’s accounts and to disallow any items the court found unwarranted or illegal. Their rights were protected by the order until the executor’s appeal attacked them. The hearing in the circuit court was confined to the order appealed from and the same questions in relation to it which were before and passed upon by the probate court.

Even conceding that this step in the probation of an estate in compliance with statutory requirements that the court shall pass upon and allow the executor’s accounts becomes, on appeal, in its nature an action at law or suit in equity, we see no sound objection in reason or rule to the circuit court on trial of the same issues of law and fact de novo permitting those creditors clearly having an interest in the litigation to intervene “at any time,” and defend their rights in subordination to the main proceeding, as the ends of justice seemed to require, which is within the spirit, if not the letter, of sections 12362-12364, 3 Comp. Laws 1915.

Under the foregoing views on the meritorious and controlling questions involved, we find no technical demand for reversal in appellant’s various assignments of error and the judgment, or order, of the trial court is therefore affirmed.

Ostrander, C. J., and Bird, Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


text:
    HOYT v. FLEMING.
    Executors and Administrators — Fraud.
    On appeal from a decree dismissing plaintiff’s bill against the administrator of her deceased husband’s estate, charging fraud and conspiracy in the sale of real estate belonging to said estate, evidence held, insufficient to warrant disturbing the decree of the court below.
    Appeal from Muskegon; Sullivan, J.
    Submitted January 31, 1918.
    (Docket No. 124.)
    Decided September 27, 1918.
    Bill by Ada E. Hoyt against R. Andrew Fleming, individually and as administrator with, the will annexed of the estate of Hiram J. Hoyt, deceased, Stella Emerson and John Emerson, to set aside a sale of real estate on the ground of fraud, and for an accounting. From a decree dismissing the bill, plaintiff appeals.
    Affirmed.

      Clink & Farmer, for plaintiff.

      Cross, Vanderwerp & Foote, for defendant Fleming.

      Carpenter & Jackson, for defendants Emerson.
   Steere, J.

Hiram J. Hoyt, an old resident and attorney of Muskegon, died on May 17, 1909, survived, as his heirs, by plaintiff, his widow, and Wilbur S. Hoyt, their son. He left some property of uncertain value, mostly incumbered, numerous creditors and a will which provided that after payment of his debts, funeral charges, etc., and a bequest of the proceeds of a $1,500 life insurance policy to his sister, Lute E. Hoyt, the remainder of his estate, if any, should become the property of plaintiff and their son Wilbur.

The will was duly admitted to probate, but the parties named in it as his executors declined to act as such and on June 21, 1909, the probate court appointed as administrator of the estate with the will annexed defendant Andrew Fleming, who was an old1 acquaintance of the family, had formerly been in deceased’s employ for several years and was somewhat familiar with his affairs. Fleming had at different times held official positions of trust and responsibility and when he accepted the appointment as administrator his business for some years, as he stated it, had been “real estate, loans and expert accountant,” his principal work being the latter.

At the time of his death deceased’s debts amounted to over $24,000, some $11,000 of which was secured by incumbrances on the most available of his assets. He had evidently been quite extensively interested in a number of unprofitable mining operations in the West, as the inventory of his estate, which was then appraised at about $28,000, contained numerous items of ventures in that line in which his stocks, aside from those hypothecated during his lifetime, were found to be worthless. After paying secured indebtedness, funeral expenses and for a monument to deceased amounting to $570, and a widow’s allowance to plaintiff of $2,000, the proceeds from the remaining property of the estate was devoted to payment of the unsecured indebtedness and cost of administration. Liquidation proved slow and the estate had not been closed when this case was heard in March, 1917. Except the incumbered property which went to pay secured indebtedness, the assets of the estate were found to consist of a quantity of worthless mining stocks and some vacant land in the vicinity of Muskegon, for which there was then no demand or market, consisting of about 140 lots at Muskegon Heights and 11 acres of unimproved, sandy land situated beyond the eastern limits of the city, appraised in the inventory of ■ the estate at $1,100. While deceased had owned- this tract for many years, it remained uninclosed and unimproved, covered with a growth of oak grubs, and had long been used by the public as a dumping ground.

Shortly after Fleming was appointed administrator he obtained a license from the probate court to sell the real estate, which he endeavored to do, with poor success for some time. He continued his efforts, however, selling lots in Muskegon Heights when purchasers could be secured, obtaining a license to sell real estate from the probate court each year. He testified, and it is not denied, that he repeatedly made varied efforts to sell the 11-acre tract, for which $1,200 was asked, as well as lots in Muskegon Heights; that he advertised the same for sale, personally solicited possible purchasers, and placed the property on the market with real estate agents. During the first four years he sold 48 lots in Muskegon Heights at prices ranging from $40 to $60 each. Plaintiff had a dower interest in this real estate not subject to the claims of creditors and was paid $5 for release of her dower in each lot when sold. In August, 1913, the price for these lots was raised to $65 which apparently stopped sales, as no lots were sold between that time-and January, 1916. In December, 1915, an arrangement was made with a real estate dealer and agent named Rouse, who was interested in that locality, to handle the sale of those lots, by which as sold they were to realize to the estate $90 each and $10 each to plaintiff for her dower interest. Rouse testified that he advertised them in the paper at $110 each and took people to see them from time to time with poor success until along in May, 1916; and in June things picked up so he sold more lots that season than any year since; that he was “in the business not there only but all over”; and the price asked by the estate was then a fair one in his opinion, for if he thought they were cheap he “would have bought the whole smear,” as he had the money, and later he did buy some of those lots for people who wanted them but did not have the price to pay down, selling to them at an advance on a small amount down and monthly payments of $5 or $10.

Although the 11-acre tract was on the market at $1,200 and repeated efforts were also made to sell it to different parties, no one willing to pay that much for it was found until April, 19Í6, when it was sold for that price to defendant John Emerson who had a desk in Fleming’s office, and, as Fleming described his position, “in matters of real estate sales and loans he acts as sales manager. For his compensation he receives 50 per cent, of any commissions that are obtained.”

To effect a sale of this real estate it was necessary for the administrator to not only secure permission from the probate court but a'release of her dower interest from plaintiff. When asked to sign a release she at first objected because of the price, as she had at times when lots were sold, but ultimately did so, accepting $100 therefor, the estate realizing $1,100, which was the original appraisal of the property in the probate proceedings. Emerson did not have the money available to pay down on the purchase and borrowed it from his wife, defendant Stella Emerson,' who had means and furnished the amount in cash or its equivalent. The property was therefore first conveyed to her by Emerson’s direction, and later, when he decided to plat it, Emerson gave her other security, as he testified, and she deeded it to him. It is undisputed that the sale was in fact made to Emerson. It was thereafter duly reported to the probate court and affirmed by it. In the summer of 1916 a marked increase, or so-called boom, in demand and prices for real estate developed in and around Muskegon, during which Emerson cleared up, platted, and profitably sold lots in this property.

On November 25, 1916, .plaintiff filed this bill charging misconduct and fraud on the part of Fleming in handling the property of the estate as administrator, particularly in selling the Muskegon Heights lots at much below their true value and market price (which did not concern the defendants Emerson) ; and also charging that Emerson and Fleming, who were associated in business and as plaintiff believed copartners, well knowing the land was worth several times the amount for which Fleming as administrator sold it, conspired together with Mrs. Emerson to cheat and defraud plaintiff and said estate by effecting an administrator’s sale of the property to Emerson through his wife for the joint benefit of Emerson and Fleming, and that the whole transaction was in bad faith, fraudulent and void. Her prayer for relief asks that all deeds to this 11 acres be declared void as between the parties hereto and set aside as to them with an accounting ordered relative to lots sold to innocent purchasers ; that Fleming be “required to give account of said estate for any and all moneys that said estate has been defrauded of” by reason of his having sold other lands belonging to it for less than their fair value; that he be removed as administrator of said estate, and a personal decree be made against defendants as equity and justice require.

Defendants duly answered in denial of all charges of conspiracy, fraud, or other misconduct, particularly alleging as further grounds why plaintiff is not entitled to relief that Wilbur Hoyt, an heir of deceased, is not a party plaintiff nor made a defendant by said bill, and that the probate court has exclusive jurisdiction over the subject-matter of said suit.

Although upon the hearing and in plaintiff’s testimony the honesty of Fleming’s conduct in selling the Muskegon Heights lots for the prices received was attacked and other charges of maladministration were made, aside from sale of the 11-acre tract those charges have apparently been abandoned, and it is now stated in the brief of plaintiff’s counsel that the only question raised on appeal is “whether the sale made by Fleming, administrator, to his copartner or associate in business, Emerson, through his wife, was fraudulent.” The presiding trial judge who heard the testimony of the witnesses taken in open court did not find that any of plaintiff’s charges of conspiracy and fraud had been sustained and dismissed her bill of complaint.

The basis of plaintiff’s charge of fraud as to this 11-acre tract is that Fleming and Emerson conspired together to defraud her and her husband’s estate by its sale to the latter for their joint benefit and profit at a price far less than its then actual market value. For her to prevail this must be affirmatively shown by competent testimony. The fact that a subsequent boom in suburban property made a speculative possibility of higher prices a certainty and enabled Emerson to profit by his investment is immaterial if it was purely his sole purchase of the land at its then market value and Fleming had no interest in the transaction beyond selling this unproductive property of the estate as administrator at the best price then obtainable.

Defendants testify positively in denial of any such understanding, conspiracy, or fraudulent conduct as plaintiff charges. Both Fleming and Emerson say under oath that they were not copartners, bore no relations towards each other in this transaction except that of vendor and purchaser, and that Fleming never had any interest in the purchase nor in the profits ' therefrom. It is undisputed that this property was on the market at $1,200 and Fleming had repeatedly tried to sell it to others likely to be interested at that price before he sold it to Emerson, and none of them would pay that much for it. During that winter he had made special effort to sell it, as others besides himself testified. P. P. Schnorback, an old resident of Muskegon who had dealt in real estate, testified that Fleming approached him several times and asked him to take it off his hands at $1,200 as he wanted to settle up the Hoyt estate and it was practically all they had left except some lots in Muskegon Heights; that such outlying property was of very small value until the spring of 1916 and he did not want it at that price but later told Fleming he was in a position to take it and was told it had been sold to Emerson; that if he sold it in April, 1916, for $1,200, the price previously given witness, it was a fair price at that time. Joseph Castenholz, a large owner and dealer in real estate, with experience of several years in platting and selling lots and who knew this property, was solicited by Fleming to buy it for $1,200 not long before the sale to Emerson and refused to consider it. He testified:

“I told him I didn’t like the location and surroundings. I didn’t like the kind of houses that were being built opposite it or in that direction, and it was on the other side of the railroad track. The roads to it were very deep sand and there was a piece of property right in front of it that kind of blocked it out, as I consider it. In fact, I didn’t like the locality and didn’t give it any consideration to speak of. I was in a position to have purchased it if it had appealed to me. * * * Considering the condition of this particular location and surroundings, I consider $1,200 all that it was worth one year ago. * * *
“I had property offered to me up there that might look low and I wouldn’t touch it. That was the attitude of the public generally or dealers in real estate at that time.”

But a week or so before Emerson bought it Fleming offered the property for $1,200 to John Ten Haven who lives near and was familiar with it. Fleming had tried to sell it to him several times before without success. On this occasion Ten Haven called to inquire if it was still for sale. Fleming told him it had not yet been sold, that it was for sale at $1,200 and urged him to buy it, but Ten Haven did not accept the offer and left the office with no indication that he ever intended to. After that Fleming suggested to Emerson that he raise the money and buy it, which he concluded to do after consulting with his wife, who consented to let him have the money, his father-in-law and others, including John McLaughlin, an attorney and abstractor, in whom he had confidence, whose business gave him knowledge of real estate transactions and prices. McLaughlin testified that he knew this property was for sale, and when Emerson told him Fleming’s price he replied that was about all it was worth, but that the conditions were beginning to brighten a little and perhaps he might be able to make a little something out of it, saying:

“I thought their price was reasonable. That was my judgment, based on my knowledge of values. * * * There wasn’t any great desire for property situated as that was at that time; any great market— if you want to put it that way. The increase, of course, through the entire city of Muskegon, and through the city of Muskegon Heights, came in the summer of 1916, and has practically continued up to this time. I should say the big increase began to show itself in the month of June.”

The charges of fraud in plaintiff’s bill, filed after a marked activity in suburban real. estate with enhanced values had occurred and this property had been cleared, platted, and much of it sold, are to be tested by conditions and values at the time the sale was made. The real issue is Fleming’s good faith in making the sale of this land at that time for the price asked and paid. ,

The evidence is undisputed and conclusive that up to and including the time he last offered it to Ten Haven he, as administrator, was trying unsuccessfully to sell this unproductive asset of an apparently insolvent estate for the price he did sell it to the first person he found willing to pay that amount. He had a license to sell it from the probate court in which it had been appraised at the price he realized for the estate. He had no right as administrator to plat it on speculation in anticipation of a real estate boom, or' to sell lots on time when creditors of the estate were ’ waiting, as could a private owner. It is now evident, in the light of subsequent events, that he made a mistake and sold too soon, as many private owners weary of long holding unimproved real estate have done, and that in selling it to Emerson, with whom he officed and had business relations, he gave greater plausibility, as it turned out, to these charges; but to establish legal fraud it must be convincingly shown by competent testimony that he sold this property in bad faith for personal gain. It is claimed for plaintiff that this is shown by proof of existing conditions, prospects, active interest in and actual value of real estate existing at the time of the sale, but which defendants contend developed later. Upon that issue opinion testimony of persons claimed to have experience or knowledge was introduced by the respective parties.

Of the numerous witnesses called but two testified directly to a greater market value for this property than $1,200 at the time it was sold; one of them was Ten Haven, who was offered it at that price shortly before it was sold to Emerson, and to whom he then made overtures to purchase from him at an advanced price. Called as a witness by plaintiff, he said he considered the property worth “something like $3,000 at that time,” although he told Emerson he “wouldn’t consider $3,000,” but “I thought $2,200 would be enough./’ Emerson denies that he ever made any direct offer to him at any price, although requested to do so, and his own testimony does not disclose that he did more than inquire and suggest what he might do. He testified that he had just bargained to sell for $8,000 a 15-acre tract adjoining this, with a house and barn on it. What those improvements were worth he did not state, but being asked on cross-examination:

“When you found out that the price was $1,200, at the time you did talk with him (Fleming), did you consider that to be a fair price for that property?” he replied, “Well, I didn’t know. I was acting for the man. The man had left town and I didn’t see him again. I wasn’t buying it for myself. I think it was a reasonable price.”

Plaintiff’s other witness who valued the property in excess of $1,200 when sold in April, first went to Muskegon in September, 1916, six months later, after it is conceded conditions and prices had radically changed. While the parties are at variance as to the exact time the activity in demand and marked advance in prices for outlying property started, it is undisputed that for several years before that time the reverse, and what is sometimes the result, of a boom prevailed. A witness called by plaintiff to testify that the stage of quick progress and activity in real estate was very marked in 1915 and the advance in values reached its height in 1916, which he stated indicated “an oversale or slackening up” in the fall, also testified of previous conditions in the real estate market that “there were thousands of lots thrown on the market by the tax sales,” and witness bought tax lots at what he designates “the last sale of taxes, that is to say the homestead sale, * • * * for around ten dollars,” which he appraised at $300 when testifying in 1917. This would seem to indicate that dealing in such property, whether platted for resale or not, was, or at least had been, to the owners whose thousands of lots were sold for taxes, a chance proposition, uncertain as to time and results.

The refusal of Wilbur S. Hoyt, an heir and. residuary legatee, to join plaintiff in this litigation, and his expressed disapproval • of her action cannot be regarded as entirely immaterial. He was a man of affairs of mature years, located and engaged in business in the west, on friendly terms with his mother, who at times had been with him there. When this suit was commenced without his knowledge and Fleming notified him of it, he sent to plaintiff at Muskegon a telegram dated San Francisco, December 4, 1916, as follows:

“Greatly shocked at receipt clipping, Chronicle, November 27th. I am sure your action is ill-advised and founded on false reports. We are victims of evil-minded people. My confidence in Fleming based on 40 years’ friendship too strong to be influenced by such gossips. Please delay further action until receipt letter. Wilbur S. Hoyt.”

He also wrote to Fleming two letters on the subject of some length, disclaiming any previous knowledge of or consent to the proceeding, which he deprecated, and excusing his mother on account of her age, etc., saying in part:

“I have never had the slightest hint from my mother that she was at all dissatisfied with your handling of the affairs of the estate. On the contrary, she has always expressed to me her deep appreciation of your unselfish efforts, and we always joined in mutual congratulations in our extreme good fortune in having such a friend. * * * I am so greatly distressed that I am in no condition to discuss the matter with you, but I do want to ask that you be as charitable as possible toward my mother. Remember, Andrew, she is a woman of advanced years and while it is impossible for me to understand how any one or any number of people could have so deceived her as to lead her to take this action, I am sure that it must have been very strong influence.
“I shall not rest until you are completely vindicated. * * * If necessary I will make trip to Michigan, though it would be most inconvenient, as my partner is sick and my business demands my presence.”

While his position in the matter could not affect her individual rights in this litigation, the fact that during all the time the estate was in probation she gave no intimation of dissatisfaction to her son, also interested as an heir and residuary legatee, with whom she was in close and friendly relations, presents at least an unusual situation and has some bearing on her mental condition and peculiarities of her testimony as to Fleming’s alleged fraudulent conduct in recklessly sacrificing the property of the estate against her protests, not alone in the disposition of the 11 acres but in other particulars which have been abandoned. She testified strongly as to her amicable relations with her son, and said that after she commenced this suit and he wrote her, she then wrote him all the particulars, after which he did not object; that “the last letter from Wilbur was beautiful. He didn’t mention it at all.” Saying also of the suit:

“I never had said one word to Wilbur. I had kept it from him, and last winter when I was with him the six months I said every little while to myself, ‘I ought to tell Wilbur but I guess I won’t. He has got more than he can see to.' His partner was flat on his back and Wilbur was doing all the work himself.”

Fleming was acting under authority of the probate court in handling this estate and making the sale. It was his duty to convert the assets into money' for liquidation of its indebtedness and was licensed by that court to do so. He could make no valid sale until it had been reported to and approved by the court. Under the law it was the duty of the court before approving this sale to examine into the proceedings reported, with authority to examine witnesses under oath, and determine if the proceedings were fair, for the interest of the estate and the price proportionate to the value of the property sold. Presumptively those steps were taken and the order of approval, from which no appeal was taken, based upon a determination by the probate court that the price was proportionate to the market value made at the time of the sale, when and where existing conditions were known and witnesses not necessitated to retrospectively testify of past events and values seen through the haze of an intervening activity and inflation in prices. To grant the relief asked for by plaintiff would be to ignore and in effect set aside this order of the probate court, made within the scope of its jurisdiction and not appealed from by any direct proceedings. It may at least be said such orders and determinations of the probate court are entitled to serious consideration, and not to be thus by indirection overruled without impelling reasons.

We are not able to conclude from this record, considered in its entirety, that the charges of conspiracy and fraud contained in plaintiff’s bill are sustained by a preponderance of the evidence and find no occasion to disturb the decree of the trial court dismissing said bill. The same is therefore affirmed, with costs to defendants.

Bird, Brooke, Fellows, and Stone, JJ., concurred. Moore, J., took no part in the decision. Ostrander, C. J., and Kuhn, J., did not sit.