author: Bbooke, J. Ostrander, J.

text:
    GEDDES v. ANN ARBOR RAILROAD EMPLOYEES’ RELIEF ASSOCIATION.
    1. Insurance — Mutual Benefit Associations — Default.
    Where an employee of a railroad corporation became a member of its relief association by applying for insurance against sickness and accident, and in so doing gave -written authority to the railroad company to deduct from his wages the monthly premium required for his insurance under the policy, as it became due and payable, and where he afterwards became ill and received his wages in lull during his absence, without making any payments, and it appeared that through an error in the auditing department the employee’s name1 had been marked so as to indicate that he had no wages due from which deduction could be made, a provision of the policy that if any member failed to pay his premium when it was due, the insurance should cease, controlled the liability of defendant, and the insured lost his rights under the policy by failing to see that his premium was kept up: his Wages being fixed, he was chargeable with notice that no deduction had been made by the employer, and in the absence of a provision imposing upon it the duty of attending to the payment of premiums, an assignee after the death of insured could not recover on the policy.
    2. Same — Customs—Benefit Policy.
    The rule or custom of a mutual benefit association to deal leniently with members that became sick or disabled, could not be held to aid the plaintiff who had not paid any premiums from his wages before his disability occurred, receiving the full amount without deduction before he became sick: nor was he entitled to notice of the default.
    Ostrander, Kuhn, and Bird, JJ., dissenting.
    Error to Washtenaw; Kinne, J.
    Submitted November 4, 1913.
    (Docket No. 59.)
    Decided January 5, 1914.
    Assumpsit by Warren Geddes against the Ann Arbor Railroad Employees’ Relief Association on a policy of health and accident insurance. Judgment for plaintiff. Defendant brings error.
    Reversed; new trial refused.

      Seth Q. Pulver, for appellant.

      Dewey M. Forshee (Carl Storm, of counsel), for appellee.
    Plaintiff sues defendant as assignee of a claim of the estate of one Ralph L. Westerland, against defendant. It appears that on October 31, 1908, Westerland was an employee of the Ann Arbor Railroad. On that day he secured a policy of insurance in the defendant association. His application contained the following order and agreement:
    “I hereby authorize the Ann Arbor Railroad, by whom I am now employed, to deduct from my wages the monthly premium required for my insurance under said policy, as such premium shall, from time to time, become due and payable, and I understand and agree, that each such premium shall apply only to its corresponding insurance period of one month, and that the insurance shall be good only while I remain in the employ of the said Ann Arbor Railroad Company, and while the said monthly premium shall be punctually and fully paid the said Relief Association as required by the conditions of said policy, and I hereby accept the insurance applied for thereunder, subject to all agreements, conditions and limitations therein contained, and I further agree that this application cancels any previous policy issued to me by the above named Association.”
    The policy issued to Westerland contained this provision :
    “If a member shall fail to pay any monthly premium when due, or shall leave the service of the A. A. R. R. or of the R. R. System of which the A. A. R. R. may form a part, or shall accept leave of absence to engage in- other business, insurance shall immediately cease and this policy become null and void; provided, if for reasons beyond the control of the insured, premiums are not collected when due, insurance shall continue and premiums be due and. may be collected at the rate of two assessments per month until paid.”
    The policy was indorsed upon its face as follows:
    “Read Your Policy.
    “The Ann Arbor Railroad Employees’ Relief . Association.
    “Policy.
    “Mr. Ralph Westerland.
    “Employed as Clerk.

      “Place, So. Frankfort.
    “Policy No. 7070.
    “Accident benefit premium, $.25.
    “Sick benefit premium, $.50.
    “$.75 out of wages monthly.”
    Westerland was employed as a call boy by the Ann Arbor Railroad at a fixed salary of $25 per month. He continued to work from October, 1908, to some time in February, 1909, when he fell ill. He returned to work for about one week in April, 1909, again fell ill, and died of pulmonary consumption on August 7, 1909. After his insurance became effective, he received his pay check from the railroad for the full sum of $25 for each of the months of November and December, 1908, and January, 1909. These checks were cashed by him. It is undisputed that no deduction was made by the railroad company and turned over to defendant to pay his insurance assessments, and it is likewise undisputed that he never paid any one of said assessments in any other way. It appears that the secretary-treasurer of the defendant association made out each month what is called a deduction sheet and forwarded it to the auditing department of the railroad company. Commencing with the month of November, 1908, he included the name of Westerland in the list of names upon said sheet with the amount to be deducted set opposite thereto. Through some error in the auditing department the sheet was returned to the secretary-treasurer with the notation, “No time,” inserted opposite Westerland’s name. This notation the secretary understood to mean that Westerland had no wages due from which the deduction could be made. After carrying the name on the dedúction sheets for three or four months and receiving them back in each instance with the same notation, “No time,” opposite Westerland’s name, the secretary dropped the name from the list, assuming that Westerland had left the employ of the railroad. In May or June, 1909, the defendant learned of Westerland’s illness, and it at once set up the claim that he was not a member of the association, never having paid any of the assessments provided for in his policy. While the collection of assessments from policy holders was usually made through the auditor’s office of the railway company, a few of those insured made payment thereof directly to the secretary of the defendant association.
    We are unable to discover from an examination of the application, the policy, or the by-laws of defendant that the railroad company was under any contract or obligation to deduct the assessments from the wages of the insured and forward them to the secretary of defendant. The contract between the insured and the defendant does not make it the duty .of defendant or its officers to see that the deductions are made. In the court below a verdict was directed in favor of plaintiff for $160, that sum being made up of the death indemnity of $100 and the weekly indemnity for sickness from the time notice was given until the death of the insured. A deduction of $8 was made on account of the unpaid premiums.
   Bbooke, J.

(after stating the facts). It is the contention of defendant that its motion for a directed verdict should have been granted.

Plaintiff relies entirely upon the case of Lyon v. Insurance Co., 55 Mich. 141 (20 N. W. 829, 54 Am. Rep. 854). We are of opinion that that case is distinguishable and not controlling. There the insured, a brakeman, was earning variable wages, so that he might be excused for a failure to notice that no deduction from his pay had been made, while in this case Westerland was working for a fixed salary, and the fact that his premiums were not deducted could not well have escaped his attention. Again, in the Lyon Case there was an assignment by the insured to the insurance company of so much of his wages as was necessary to pay the premiums. There was no such assignment in the instant case. There was an authorization to the railroad company to deduct the premiums, but the defendant company was given' no interest therein by assignment.

It is the claim of plaintiff that it was defendant’s duty to see that the premiums were collected so long as the insured did not revoke the order for payment and had earned sufficient to cover the premiums. A sufficient answer to this claim is that the policy contract contains no such provision. The contract provides that:

“If a member shall fail to pay any monthly premium when due, * * ■ * insurance shall immediately cease and this policy become null and void.”

It is plaintiff’s further claim that Westerland was entitled to notice from defendant that his premiums were not paid. Again, the contract imposed no such duty upon defendant; but, if it had, notice would have been unnecessary because Westerland had actual knowledge of the fact. He knew that he was eárning a fixed sum each month, and he knew that he drew that full sum each month. Under the facts, he must be charged with knowledge that nothing remained in the hands of the railroad company out of which the premiums could be paid. It was said in Pacific Mutual Life Ins. Co. v. Walker, 67 Ark. 147 (53 S. W. 675):

“Under no reasonable view of the law would Walker be allowed to hold the insurance company responsible for the nonpayment of his order when he left no funds out of which it could be paid.”

See, also, McMahon v. Insurance Co., 77 Iowa, 229 (42 N. W. 181); Landis v. Insurance Co., 6 Ind. App. 502 (33 N. E. 990); Employer’s Liability Assurance Corporation v. Rochelle, 13 Tex. Civ. App. 232 (35 S. W. 869); Bane v. Insurance Co., 85 Ky. 677 (4 S. W. 787).

The defendant is a purely mutual organization designed to furnish protection to its members at cost. It has but two paid officials, the secretary-treasurer and his assistant, who are respectively paid the nominal salaries of $30 and $10 per month. The record indicates that it was the policy of defendant to deal leniently with its members, and that it did not forfeit policies for nonpayment of the premiums while the insured was sick or disabled. This rule or .custom cannot avail plaintiff, however, for, during the first four months of the life of the policy Westerland was under no disability, there were no “reasons beyond the control of the insured” to prevent the payment of premiums. It was clearly his duty during those months to have paid his premiums, and, not having done so, it seems to us that it would be a gross imposition upon his fellow members to compel them to pay over to the assignee of his estate and beneficiary the sums claimed.

The judgment is reversed, and there will be no new trial.

. McAlvay, C. J., and Stone, Moore, and Steere, JJ., concurred with Brooke, J.

Ostrander, J.

I cannot distinguish this case and Lyon v. Insurance Co., 55 Mich. 141 (20 N. W. 829, 54 Am. Rep. 354), and therefore think the judgment should be affirmed.

Kuhn and Bird, JJ., concurred with Ostrander, J.


source: Caselaw Access Project

author: Kuhn, J.

license: Public Domain

text:
      In re MITCHELL’S ESTATE. McNALL v. MITCHELL’S ESTATE.
    1. Executors and Administrators — Estates of Decedents— Claims — Contracts—Work and Services.
    Evidence that the claimant made loans for decedent in the lifetime of the latter, who stated, in the presence of claimant’s brother, that he would pay claimant handsomely for the services when he died, and would compensate claimant more than any percentage would amount to, tended to sustain a finding of the trial court that there was a contract to pay the claimant for his services.
    2. Appeal and Error — Trial—Verdict—Findings of Fact.
    Findings made by the trial court sitting without a jury are regarded as special verdicts, and, if there is, testimony to support them, are conclusive, on error, but if it is claimed that there is no testimony to sustain them or any thereof, the Supreme Court will examine the testimony returned.
    3. Estates of Decedents — Contracts—Value.
    Upon testimony that there was an agreement to pay for services rendered to decedent and that they were after-wards rendered, also showing what they were worth, the trial court was warranted in entering a judgment for their value and this court will not review the testimony to ascertain that the amount awarded is sufficient or excessive.
    Error to Gratiot; Searl, J.
    Submitted November 25, 1913.
    (Docket No. 142.)
    Decided January 5, 1914.
    The claim of B. Frank McNall against the estate of Uriah H. Mitchell, deceased, was allowed in part by the probate court. Edward Sweeney, executor, appealed to the circuit court. Judgment for claimant. Defendant brings error.
    Affirmed.

      S. Wallace Dempsey■ and O. G. Tuttle, for appellant.

      George P. Stone and M. B. Salter, for appellee.
   Kuhn, J.

The claimant presented a claim in the probate court of Gratiot county against the defendant, which was as follows:

“Estate of Uriah H. Mitchell, To B. Frank Mc-Nall, Dr.
“To services in loaning money for said Uriah H. Mitchell, looking up the value and title of lands on which it was loaned, taking and having the care of •said money till it was loaned, collecting the interest on said loans and remitting same to said Uriah H. Mitchell, from A. D. 1884, until the death of said Uriah H. Mitchell, $2,000.”

The claim was tried before the probate judge, who allowed it at the sum of $993.64. An appeal being taken to the circuit court by the executor of the last will and testament of the deceased, the case was tried before the circuit judge without a jury, who allowed the claim at the sum of $2,000 and made the following findings of facts and law:

“First. That deceased in his lifetime and during the year 1887 made a contract and agreement to and with the claimant whereby the claimant should, as the agent of the deceased, receive money from deceased and loan the same out in Gratiot county, Mich., upon real estate security, and that the deceased in consideration thereof would, after his (deceased) death, pay the claimant handsomely for such services, a great deal more than any percentage would amount to, a great.many times more than any percentage would be.
“Second. I further find that the claimant under this agreement entered upon such employment during the year 1888 and loaned money for the deceased, furnished him by deceased during each of the years 1888, 1890, 1892, 1893, 1894, 1895, 1896, 1898, 1902, 1903, 1905, 1906, 1907, 1908, and 1909.
“Third. I further find that during these years the claimant loaned out a gross sum of. $39,747, from which loans the deceased received as interest earned thereon the sum of $18,615.59. That in some instances the interest was remitted direct by the mortgagors to Mitchell, and in some instances it was paid to the claimant, and by him remitted to Mitchell or to the bank where Mitchell kept his deposits, and through which he did business. But the evidence does not show what amounts were so remitted direct or how much was remitted by claimant.
“Fourth. That deceased died on the 17th day of May, 1910, leaving as his heirs and next of kin nephews, nieces, and a sister-in-law, and leaving a last will and testament by which he bequeathed and devised his estate to his nehpews, nieces, and sister-in-law, excepting $1,000, which he bequeathed to claimant’s only son.
“Fifth. I further find from the evidence that, under said agreement aforesaid between the deceased and the claimant, the claimant is entitled to receive for such services in loaning such money, and as a reasonable compensation therefor, a commission of one-tenth of the interest earned, where the loan was at 5 per cent., and one-twelfth where the interest was 6 per cent., and in addition thereto such a sum of money as is equal to the interest at 5 per cent, on the commission on each year’s business from the end of the year up to the time of the death of the deceased.
“I also find that the claimant is entitled to receive interest at 5 per cent, on the amount owing to him, at the time of the death of the deceased, from the time of the death of the deceased to the present time.
“Sixth. I find from the evidence of the amounts loaned during each year and the interest earned on such loans, and computing interest on such amounts as aforesaid, that the gross amount of such commission and interest thereon is in excess of the sum of $2,000.
“Seventh. I further find that the claim of the claimant, as presented in probate court, was for the sum of $2,000, and, this appeal from probate court having been heard upon the claim as so presented in that court, that the claimant cannot have in this court any greater amount than the amount of said claim as so presented in probate court.
“Eighth. Therefore this court does hereby find, adjudge, and order that the claim of the claimant is a just and proper claim against the above estate for the sum of $2,000, and the same is hereby allowed against said estate at the sum of $2,000.
“Ninth. The court further finds and adjudges that the claimant do recover his costs in this court to be taxed as in an original suit brought in this court.”

The case is brought here by writ of error, and ap"pellant sets forth in the record 21 assignments of error, the first 12 of which are abandoned in this court. The principal claim urged by appellant is that the court erred in finding that the deceased made a contract with the claimant in 1887; it being contended that there are no facts in the case which support this finding. The claimant, who was a cousin of the deceased, is a farmer and has resided in Gratiot county since 1881. Before that time he resided in Niagara county, N. Y., about one-half mile from the home of the deceased, who resided there at the time of his death. Claimant lbaned money for the deceased, from the year 1887, on property in claimant’s neighborhood, at 1 per cent, below the prevailing rate. It is undisputed that he did not receive any commissions from the borrowers. In support of his contention, claimant produced James H. McNall, his brother, upon whose testimony reliance is placed to support the contract. He testified as follows:

“While I lived in Michigan, prior to 1908, I went back to New York frequently. I remember being there to attend my daughter’s wedding, in 1887. My brother was there also. I then saw and visited Uriah Mitchell. At that time my brother and I were at his place together a great many times. On one of these occasions, something was said about the claimant loaning money for Mitchell. , There were present, at that time, my brother, Mitchell, his sister, and I. Mitchell said, ‘Boys, what are the chances, what would be the chances of making good, safe loans in Gratiot county?’ My brother said he thought that they would be all right and safe if a man was careful and got a good abstract of title and so forth. Mitchell said if he had any places for it he would send my brother some money to loan. My brother told him he would loan it for him. Mitchell said, ‘If you do any business, make any loans, I do not expect Frank to pay you a percentage on these loans but will pay you “handsomely,” a great deal more than any percentage would amount to;’ that he would pay him at the time of his decease or when he got through doing business in this world;' I think those were exactly his words. * * * Some time, previous to Mitchell’s death, in the latter or middle part of December, 1909, my brother and I were in New York again. Mitchell died on the succeeding May. I was then living in New York, about 6 miles from Mitchell. From 1903 to the time of his death I visited Mitchell frequently, sometimes once a week, sometimes once in two weeks, and sometimes perhaps twice a week. When my brother came down in December, 1909, he came to my place. He and I went over to Mitchell’s. While we were there, there was some conversation in respect to what Mitchell would do for my brother or what he would give him. There were present, at that conversation, my brother, Mitchell, and I. It was at Mitchell’s house. My brother spoke of a five-year mortgage given by one Simmons, who had sold his farm and wanted to pay the mortgage. He did not know whether Mitchell wanted the money or not. I said to Mitchell: ‘Frank has been at work for you a long time. Why not give him this $2,000 for what he has worked for you, up to the present time?’ ‘He needs it and it will help him a good deal more than it will at your death.’ Mitchell said he calculated to pay my brother handsomely (he used the word_ ‘handsomely’ again) for all he had ever done for him and what he wanted him to do hereafter; that he was getting to be an old man and he wanted somebody to look after his business. * * * He used an expression of a drop in the bucket, saying, ‘this $2,000 won’t be a drop in the bucket of what I expect to pay Frank for his services.’ I think Frank came Sunday morning, on that visit, and went home the same week. After this time I visited Mitchell frequently, very frequently, but I can’t tell just how often. I had some conversation with him, after that time, about Frank, but I would not want to swear positively as to the dgte it occurred, because I was over there so many times, and the same matter was talked over on two or three different occasions.”

We would not review this testimony if it were not for the claim that there is no evidence to support the contract found to have been made by the circuit judge.

As we said in Wood v. Rooks, 173 Mich. 270, 275 (139 N. W. 35):

“In cases like this, the findings of fact are regarded as special verdicts, and, if there is testimony to support them, are conclusive in this court. If it is claimed there is no testimony tending to sustain them, or any of them, this court will examine the testimony if it, or the substance of it, is returned.”

Can it be said that the testimony of the brother was so indefinite and uncertain as to make the alleged contract void on that account? It is the claim of the claimant that there was an express contract to pay for services and that from this contract an implied promise arose, taken together with the fact that the services were rendered, to pay their reasonable worth and value, and in support of this position the case of In re McNamara’s Estate, 148 Mich. 346 (111 N. W. 1066), is relied upon. In that case the agreement was to pay claimant “ ‘liberally for all her services,’ * * * and that such allowance payment would be sufficient to keep claimant well during the balance of her life.” The court held that, “the evidence of the contract being wholly oral, it was properly left to the jury to determine whether, such contract was for full compensation in any event, together with a further assurance that such compensation would be sufficient in amount for claimant’s future support, or whether it was intended that claimant was to be limited to a sum adequate for such support, although her services may have been worth moreand that, “if the special contract was found by the jury to be a contract for full compensation out of decedent’s estate, it would follow that the actual value of such services was the measure, and that evidence of value was admissible.”

In the instant case the language was: “Handsomely and more than any percentage would amount to.” The agreement as claimed is certain that claimant was to receive compensation at decedent’s death, and the only element uncertain was the amount of compensation.

In our opinion, under the facts, there being evidence of an agreement to pay for the services, it became a question of fact as to what compensation was reasonable and adequate in view of the terms of the contract and what was done by the parties under and by virtue of it. Claimant showed by a witness, J. L. Potts, a money lender, that a reasonable compensation and value of claimant’s services in loaning money was one-twelfth of the interest earned at 6 per cent, and one-tenth when it was 5 per cent.

In the case of In re Gibson’s Estate, 163 Mich. 502 (128 N. W. 738), cited by -appellant, there was no evidence that claimant ever performed any services for the decedent after the claimed statements as to compensation were made, or that the decedent agreed to pay claimant in money or property out of his estate after his death, which is clearly distinguishable from the case before us. The instant case is also distinguishable from In re Van Dyke’s Estate, 171 Mich. 195 (137 N. W. 79), because in that case claimant was not seeking to recover what his services were worth.

As we are satisfied that there is testimony to support the findings of fact of the trial judge as to contract and value of the services, and that the amount awarded is not in excess of what is substantiated by proof, we must decline to go into the testimony to ascertain whether or not we would reach the same result upon the facts. Cragin v. Gardner, 64 Mich. 399 (31 N. W. 206); Lamoreaux v. Creveling, 103 Mich. 501 (61 N. W. 783); Hindman v. Friedrich, 163 Mich. 655 (128 N. W. 1086); Holcomb v. Sayers, 173 Mich. 238 (138 N. W. 1043).

Judgment is affirmed.

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


text:
    SMALTZ v. NEWHOF.
    1. Trial — Inconsistent Positions — Bill of Particulars.
    Where plaintiff filed a bill of particulars showing a balance due for labor and materials in plastering houses belonging to defendant, and crediting defendant with payments on account, and where the defendant in his testimony claimed that he had made one payment of $500 on the account presented, and plaintiff admitted receiving that amount but claimed it paid a previously existing ' indebtedness for labor and services, testimony tending to establish his contention was not improperly received, nor was it so inconsistent with the opening statement of counsel for plaintiff, who admitted that plaintiff had received $200 to pay other indebtedness and to apply on the account, as that the court should have excluded the testimony; where it also appeared that the defendant had given no notice of the defense with his plea and plaintiff was first advised of the claim by amendment of the plea at the trial and by evidence in support of the claimed payment.
    2. Evidence — Books of Account — Admissibility—Refreshing Recollection of Witness.
    It was not error to admit in evidence plaintiff’s account book, kept In his own handwriting, showing the number of yards of plastering for which plaintiff claimed a judgment, the book being received only for the purpose of refreshing the recollection of the witness.
    3. Payment — Trial—Instructions.
    Where plaintiff brought suit to recover for certain plastering, and the defendant had paid $500 on the account, claiming, however, that he had paid the $500 before a given day, while the plaintiff claimed that the payment took place at a later time, and should be credited upon a previously existing debt, the court did not err in charging the jury that if they should find that the claim of plaintiff had been paid except a small balance and $500 was paid afterwards by defendant, plaintiff was overpaid, and on the other hand, if there was no payment on the houses included in plaintiff's bill of particulars, the plaintiff would be entitled to recover; and the jury was not likely to be misled by instructions that if the previous indebtedness due to plaintiff was paid up before he began the work for which he sued, and $500 was afterwards paid, he could not recover.
    Error to Kent; Brown, J.
    Submitted November 26, 1913.
    (Docket No. 127.)
    Decided January 5, 1914.
    Assumpsit by Noah A. Smaltz against Thomas Newhof for labor, materials, etc. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Wilson & Johnson, for appellant.

      Horace T. Barnaby (John J. McKenna, of counsel), for appellee.
   Kuhn, J.

The bill of particulars in this action was filed January 11, 1912, and is as follows:

November 18, to December 10, 1909. Material and labor for lathing and plastering house on boulevard, opposite John Ball Park, 680 yards at 19c per yard...................... $129 20
Paid on this account.......................... 66 70
Balance due on this account.................. $ 62 50
February 5, to 25, 1910. Material and labor for lathing and plastering house at corner of Shawmut avenue and boulevard, 675 yds. at 19c per yard............................. $128 25
March 3, to 20, 1910. Material and labor for lathing and plastering house on Shawmut avenue, a little east of the house last above mentioned, 680 yards at 19c per yard........ 129 20
March 12, to 31, 1910. Material and labor for lathing and plastering house on the north side of Shawmut avenue, nearly opposite the house last above mentioned, 680 yards at 19c per yard............................. 129 20
Total----.............................. $449 15

The plea filed by the defendant was the general-issue and notice of set-off and recoupment. During the trial of the cause, the plea of set-off was withdrawn and the pleadings amended by giving notice of payment. At the close of plaintiff’s proofs, counsel for defendant made a motion to direct a verdict for the defendant, for the following reasons:-

“First. Mr. Barnaby, the attorney for the plaintiff, in his opening statement, stated that there had been a payment by Mr. Newhof of $200 at about the time the first house on the boulevard was commenced, which amount paid all .of the former debts, everything, and $66.70 on that first house, leaving a balance on that house of $62.50.
“Second. This statement of Mr. Barnaby was corroborated by the testimony of the plaintiff himself, and was to the same effect.
“Third. The undisputed testimony is that, after the payment of $200 referred to by Mr. Barnaby in his opening statement, that there was $500 paid by Mr. Newhof and received by plaintiff.
“Fourth. The bill of particulars shows that including the $62.50 balance due after the first payment of $200 referred to by Mr. Barnaby in his opening statement, that the amount claimed in this action is $449.15. Therefore the admission by the plaintiff’s attorney in the opening statement, corroborated by the testimony of the plaintiff himself, and the fact that the amount claimed in this action as shown in the bill of particulars is only $449.15, and the fact that payments amount to $500 were made subsequent to November 18, 1909, shows conclusively that this claim has been paid and, in fact, overpaid, and leaves no question for the jury to determine.”

The motion was denied by the court, and the controversy was submitted to the jury, who rendered a verdict in favor of the plaintiff for the sum of $515.59, which was the amount claimed in the bill of particulars, with interest.

The first question raised upon this appeal is stated in the brief for defendant, as follows:

“It was error to allow the plaintiff to shift his ground from the issue stated in the bill of particulars, and in the opening^ statement of plaintiff’s attorney, by permitting the introduction of testimony at variance with the bill of particulars and said opening statement.”

Plaintiff urges that this question is not before the court because it was not raised by assignment of error. The third assignment of error, which is, “The court erred in overruling the motion to direct a verdict for the defendant, to which the attorney for the defendant then and there excepted,” it seems to us, properly raises the question, and we shall consider it. However, we are of the opinion that there is no merit in this contention, as the record does not show that the plaintiff shifted his position. It was his claim when the bill of particulars was filed that the defendant owed him $449.15. This was the claim of counsel in his opening statement to the jury. The record does not contain the entire statement of counsel, but he did state that while the plaintiff was doing the work on the house opposite John Ball Park, defendant made a payment of $200 or thereabouts, which paid all of the former debts and $66.70 on that job, leaving a balance of $62.50. This statement is in accord with the bill of particulars, and was correct, with the exception of the time of payment of the $200, the exact time of which he did not fix. It is the claim of the defendant that $500 was paid subsequent to November 18, 1909, and that these payments extinguished the indebtedness. It is conceded that payments were made by check as follows: December 4, 1909, $100, January 7, 1910, $200, and February 19, 1910, $200. On cross-examination the plaintiff testified that he received payment by check of $200 on or about November 18, 1909. It is apparent upon reading the record that plaintiff was confused about this date, and that no payment by check was made to him at that time. The $200 check .referred to was undoubtedly the one which he received on February 19, 1910. If a check had been given on or about November 18, 1909, the defendant would have been able to produce it, as the other checks were produced, as is shown by the following:

“Mr. McKenna: You said-something about a check in November. Mr. Wilson, have you got those checks?
“Mr. Wilson: The check in November — you have the checks there, the three checks. I have a check the latter part of September of $200.”

When the plea of set-off was withdrawn and amendment giving notice of payment was allowed, the plaintiff was permitted to show that on November 18, 1909, the defendant owed plaintiff a considerable balance for work he had done on 13 other houses, and the payment of the $500 extinguished this indebtedness and applied $66.70 on the boulevard house opposite John Ball Park. It is the claim of the plaintiff that when they opened their case they had no notice of payment, and did not suppose it would be claimed that the $500 payments were to be applied on the four houses mentioned in the bill of particulars. Plaintiff has contended from the first that defendant was obligated to him for work on the four houses. It was when notice of payment was given that he attempted to show that the payments claimed were for other labor and services. This, it seems to us, was entirely proper for him to do. It is true that a plaintiff cannot start and try a case on one theory and then completely abandon that theory and adopt another entirely inconsistent with the former. That was not done -in the instant case. Humphrey v. Transportation Co., 115 Mich. 420 (73 N. W. 422).

Exception is taken to the admission of an account book in evidence, for the following reasons, as stated by appellant:

“First. Said book of accounts does not contain all credits; therefore it is not a complete record of account between plaintiff and defendant.
“Second. It does not appear to be a book of original entries.
“Third. Entries of all items were not made in this book, but only the balance due was written down by the plaintiff as the payments were made.
“Fourth. An examination of the book shows that it does not explain itself, and it does not appear on its fáce what, if any, amount is due from defendant.”

The plaintiff testified that he kept the book himself in his own handwriting and that he made the entries while he was doing the work, and further stated:

“I kept an account with my dealings with Mr. Newhof. I have got the yards down that we plastered for him. I put it in the book at the time the work was done and at the time I got the bill from the lather stating that there was so many yards in the house. I never measured the houses at all. I would just take the number of yards from what the lather made out of them. When I received his bill I made the entry on this book, and I am refreshing my memory , from this book in which I made those entries. I commenced work on the first house on the west side on about November 18, 1909. My contract on that house was 19 cents a square yard. Mr. Newhof paid me on the first house on the west side on the boulevard $66.70. I have the bills that the lather gave me at home, but not with me. When I talked with Mr. Newhof about the plastering I told him how many yards was in each house. I went to see Mr. Newhof shortly after I finished the four houses. I didn’t give him a bill. I stated to him the amount and gave him the number of yards in each house, but I don’t think I told him the amount which was due for the number of yards in each house, but told him the total amount on the four houses. Mr. Newhof refused to pay it at the time, though I can’t remember the exact words used at the time. It was after finishing the houses that I saw Mr. Newhof and went for some money. I didn’t ask him for any certain amount. I told him how much he owed me and gave him the number of yards in each house and the lathers’ statements.
“Q. Gave him the aggregate sum that he was to pay for that?
“A. Yes, sir.
“Q. What did he say?
“A. Well, he said he wouldn’t pay me then for that there, but he had a house up on Sigsbee street that he had begun, and when he got that done, and sold that he would pay me every cent I had coming.”

Plaintiff also showed by witness Spamen that he lathed the houses sued for, and that the account was correct. At the time the book was offered in evidence, the court said:

“The Court: I think you had better offer the book in evidence for the purpose of refreshing his recollection, and it did not go any further than that at the time.”

This was not error. Baxter v. Reynolds, 112 Mich. 471 (70 N. W. 1039); Cameron Lumber Co. v. Somerville, 129 Mich. 552 (89 N. W. 346), and cases therein cited; 17 Cyc. p. 366.

Complaint is also made of the charge of the court, it being claimed that the trial judge treated an undisputed and admitted fact, the payment of the $500, as a doubtful or open question. The portion of the charge which gives rise to this criticism is as follows:

“If you should find from the testimony in the case that the claim of the plaintiff was paid, all but $62.50, including the first boulevard house, and the $500 was paid after that time, that would overpay the claim of the plaintiff. * * * If you should find in this case that the check or payment of $200 which was paid to the plaintiff, which has been referred to. in the testimony, as the payment made in November, or upon the boulevard house, if you find that that was the last payment made by the defendant, and that it paid all that was due at that time with the exception of $62.50 due on the boulevard house, and that after that time all this other amount accrued, these other three houses, and that there was no payment made upon the balance of $62.50 and the subsequent three houses which were built, if you find that from the evidence in the case, by a fair preponderance of the evidence in the case, then the plaintiff would be entitled to recover $449.15 from March 31, 1910, at 5 per cent. If you should find in the case that the last payment made by the defendant of $200 — that the payment made by the defendant which was applied on the boulevard house paid all that was due before that, and $66.70 on the boulevard house, leaving a balance of $62.50, and that after that time these other three houses were built, and that the amount paid after that time was $500, as shown by the three checks here offered by the defendant, then the amount due for these three houses and the balance on the boulevard house would be less than $500 and the account would be fully paid.”

There was no question but that $500 was paid after November 18, 1909. It was admitted on the trial by everybody who knew anything about it, and was treated as an established fact. The only question was, Was this $500 paid aftér the old account had been paid up, and $66.70 on the last four houses? When the court said, “And the $500 was paid after that time, that would overpay claim of plaintiff,” it is reasonable to conclude that he was leaving it to the jury to find whether or not the $500 was paid after the old account was all paid up, and the $66.70 on the last four houses, and treated as an established fact that $500 had been paid. Taking it in its entirety, we do not think the jury was misled by the judge’s charge.

Judgment is affirmed.

McAlvay, C. J., and Brooke, Ostrander, Bird, Moore, and Steere, JJ., concurred. Stone, J., did not sit.


text:
    PEOPLE v. BLOM.
    1. Municipal Corporations — Intoxicating Liquors — Cities — Power to Regulate Liquor Traffic — Holland Charter.
    Under the charter of the city of Holland, conferring power to prohibit and suppress ale, beer and porter houses and other similar places of business, to require Sunday closing and limit the hours of business and to regulate and license hotels, saloons, restaurants, etc., the council must exercise its authority subject to the general law of the State. Exclusive power to control such traffic within the corporate limits remains in the State unless it be expressly delegated by the charter.
    2. Intoxicating Liquors — Municipal Corporations.
    Authority conferred by the legislature to enact municipal ordinances in regulation of the liquor traffic, unless the authority is expressly declared to be exclusive, does not repeal or supersede the general laws of the State upon that subject, but is to be exercised in conformity therewith.

    3. Same — Statutory Construction — Municipal Corporations.
    Where there is doubt about the existence of power to pass an ordinance suspending the general law, such doubt should be resolved against tbe existence of the power.
    4. Same.
    Tbe sale of intoxicating liquors in less than wholesale quantities, as provided in the general law, by a wholesale liquor dealer, in the city of Holland is illegal, although the transaction is permissible under the ordinances of the city.
    Error to Ottawa; Cross, J.
    Submitted November 10, 1913.
    (Docket No. 171.)
    Decided January 5, 1914.
    William Blom was convicted of selling intoxicating liquors illegally.
    Affirmed.

      Louis H. Osterhous, for the people.

      Visscher & Robinson (Sheridan F. Master, of counsel), for respondent.

       On the general question of the power of the legislature to permit sales of intoxicating liquors, see note in 14 L. R. A. (N. S.) 172.

   Kuhn, J.

The charter of the city of Holland, granted by the legislature in 1893, provides as follows :

“Title VII.
“General Powers of the Corporation.
“Section 1, subd. 7. To prohibit and suppress ale, beer and porter houses, and all places of resort for tippling and intemperance, and to punish the keepers thereof, and all persons assisting in carrying on the business thereof; and to require all such places to be closed on the Sabbath day, and upon such other days and during such hours of every night as the council shall prescribe.
“Subd. 8. To prohibit and prevent the selling or giving of any spirituous, fermented or intoxicating liquors, and to punish any person so selling or giving. * * *
“Subd. 14. To regulate and license all taverns, hotels and houses of public entertainment; all saloons, restaurants and eating houses, and all places where tobacco, cigars and any beverages are kept for sale; and to prescribe, regulate, restrict and designate the location thereof.”

On April 20, 1910, the council of the city of Holland, acting under the authority delegated to it by its charter, passed an ordinance regulating the liquor traffic-in that city, and, among other provisions, the ordinance contained the following:

“Sec. 7. No person, firm or corporation, doing business under a license granted under the provisions of this ordinance shall, by himself, his servant, agent or employee, sell or furnish any intoxicating liquors to any person or persons, in quantities less than as follows, to wit: No beer to be sold or furnished in quantities of less than six quarts or one dozen pint bottles to a person or persons at one time, and the sale to be entirely consummated by a purchase and 'complete delivery and removal from the place of sale of the said beer, in one quantity and one delivery. No whisky or other intoxicating liquor, other than beer, to be sold or furnished in quantities of less than one pint at one time to a person or persons, and the sale to be entirely consummated by a purchase and complete delivery and removal from the place of sale of the said liquors, in one quantity and one delivery.”

The respondent, on February 4, 1913, was engaged in business as a wholesale liquor dealer in the city of Holland, having made his application and taken the necessary steps to entitle him to a license — which he received — to engage in that business, according to the State law. On February 4, 1913, respondent sold liquors in violation of the State law, having sold whisky in a quantity less than three gallons, to wit, one pint (People v. Cain, 171 Mich. 279 [137 N. W. 159]), which quantity was duly authorized and permitted by the ordinance above referred to.

The meritorious question raised on this, appeal is stated by appellant as follows:

“Respondent insisted that, having brought himself within the law by selling in a quantity prescribed by said ordinance, and by fully complying with all of the regulations adopted by the municipal corporation, he is not amenable to the ‘general’ law, nor punishable for acts which, without the protection afforded by said ordinance, would be violations of the statute.”

The question, therefore, is, Did the legislature, by granting to the city of Holland the powers set forth in its charter, intend to confer, and did they confer, upon the city the sole and exclusive right to regulate the liquor traffic within its limits, if it saw fit so to do? It is contended by respondent’s counsel that the delegation of power in the charter suspends the general law when that power is exercised by the city, and that the State law is only superseded to the extent that the ordinance is inconsistent with the general law. A study of the legislation on the subject shows that it is not in harmony with the system of legislation enacted in this State to grant the exclusive right to cities, towns, and villages to license and control the sale of liquors within their corporate limits. Therefore, before we can assume that such a power was granted by the legislature, the language of the charter must be clear to that effect, and susceptible of no other reasonable construction. Where there is doubt about,the existence of power to pass, an ordinance suspending the general law, under a familiar rule, such doubt should be resolved against the existence of the power. Timm v. Common Council, 149 Mich. 323 (112 N. W. 942). The provisions of the charter do not “in hsec verba” grant exclusive power. It is urged, however, that the power to either “regulate and license” or “prohibit and prevent” includes and contemplates the entire and exclusive control of the subject of the grant. Repeals by implication are not favored. See Moore v. Kelley, 136 Mich. 139 (98 N. W. 989), and cases cited therein; Lake v. Village of Cedar Springs, 162 Mich. 569 (127 N. W. 690). The rule which we think should be applicable has been stated as follows:

“A legislative grant of authority to a municipal corporation to enact ordinances in relation to the liquor traffic, unless explicitly made exclusive, does not repeal or supersede the general laws of the State on the same subject, but must be exercised in conformity therewith.” 23 Cyc. p. 72.

A reasonable construction of the language of the charter seems to us to be that the legislature did not intend to relinquish the right of the State to control, but rather to give the city power to further regulate, to impose additional restrictions, and, if found necessary, to prohibit to meet local conditions as they might arise. The purpose of such a delegation of authority has been well stated in the case of Evans v. City of Redwood Falls, 103 Minn. 314, 318 (115 N. W. 200), as follows:

“A certain standard of regulation is fixed by the general statute, and the statutory regulations to preserve this standard are operative throughout the State, regardless of local rules and regulations. Any local charters or ordinances which assume to lower this standard of regulation are inconsistent with the general law and void. The statute fixes the minimum degree of regulation which may be imposed in any locality. More stringent rules may, however, be adopted under the legislative authority contained in municipal charters, and so long as they embody the substance of the general law, and merely .add thereto the further regulations required by local conditions they will be sustained.”

See, also, City of Pekin v. Smelzel, 21 Ill. 464 (74 Am. Dec. 105); State v. Lee, 29 Minn. 445 (13 N. W. 913); State v. Robinson, 101 Minn. 277 (112 N. W. 269, 20 L. R. A. [N. S.] 1127); Territory v. Webster, 5 Dak. 351 (40 N. W. 535); Paton v. People, 1 Colo. 77; Gardner v. People, 20 Ill. 430.

The motion to quash the information was properly denied; the conviction of the respondent is affirmed, and the trial court is ordered to proceed to judgment.

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


author:
KUHN, J.
      McAlvay, C. J.

text:
    ATTORNEY GENERAL, ex rel. BARNES, v. BOARD OF SUPERVISORS OF MIDLAND COUNTY.
    1. Taxation — Increase of Valuation — Review by State Board— Valuation.
    The board of State tax commissioners, proceeding under Act No. 201, Pub. Acts 1913, to equalize tbe valuations of a county, may review the action of tbe board of supervisors and increase tbe valuations as fixed without ordering said board to reconvene, although tbe commissioners are empowered to require tbe supervisors to so reconvene. Jurisdiction to proceed does not depend on tbe reconvening of tbe supervisors.
    2. Mandamus — Relator’s Signature — Petition.
    In mandamus to compel a board of supervisors to comply with an order of the board of State tax commissioners, a petition signed and verified by two supervisors of appealing townships, but not verified or signed by any of tbe State tax commissioners who appeared as parties to tbe proceeding, is sufficient; tbe board of State tax commissioners being thereby, in effect, omitted as relators.
    3. Constitutional Law — Equalization — Taxation — Board of Supervisors — Local Legislation — Appeals.
    The equalization of assessments between assessing districts of counties is not a matter of purely local concern so as to deprive tbe legislature of tbe right to interfere by enacting a statute providing for review by tbe State tax commission of tbe assessments as levied by tbe various boards of supervisors. Act No. 201, Pub. Acts 1913. Zimmer v. Bay County Supervisors, 159 Mich. 213 (123 N. W. 899), overruled in part.
    4. Same — Uniformity—Equalization—Values.
    Under tbe sections of tbe Constitution providing for uniformlty of taxation and conferring power on the legislature to levy a State tax, etc., on cash valuation of property (Art. 10, §§ 2, 3, 7), the State may authorize the review of valuations and assessments hy the board of State tax commissioners.
    5. Same.
    Nor is Act No. 201, Pub. Acts 1913, unconstitutional because it provides (section 34) that the aggregate valuation of the county shall not be increased under proceedings for appeal as authorized by said statute.
    McAlvay, C. X, and Brooke, X, dissenting.
    Mandamus by Orlando F. Barnes and other members of the board of State tax commissioners, and John Thompson and Henry Belitz to require the board of supervisors of Midland county to comply with an order of said commission.
    Submitted December 20, 1913.
    (Calendar No. 25,968.)
    Writ granted January 13, 1914.

      Grant Fellows, Attorney General, and David, H. Crowley, Assistant Attorney General (Gilbert A. Currie, of counsel), for relators.

      Ray Hart, Prosecuting Attorney (Floyd L. Post and Gillett & Clark, of counsel), for respondent.
   KUHN, J.

This is an application for mandamus to compel the respondent board of supervisors to reconvene and reapportion the State and county taxes in accordance with the report and order of the relator board of State tax commissioners. The board of supervisors of Midland county, upon the 25th day of October, 1913, took action equalizing the properties of the various assessing districts in said county. The relators John Thompson and Henry Belitz, who are supervisors of two of the townships in said county, objected to this equalization and appealed to the board of State tax commissioners, as provided for by Act No. 201 of the Public Acts of 1913, complaining of unfairness and discrimination in said equalization, and petitioned the said board to review the action of the board of supervisors in this respect. The board of State tax commissioners, in accordance with the provisions of said act, gave notice to the respondent of its decision to investigate the complaint, and upon testimony introduced upon a hearing had, and from other data previously gathered by the said relator board, determined that the equalization made on October 25, 1913, by the respondent board was unfair and discriminatory, and. thereupon made another equalization of the various assessing districts of said county, and ordered the respondent board to reapportion the State and county taxes upon the basis so determined by the relator board. The respondent board met on November 18, 1913, in the regular manner, upon notice from the clerk, but refused to comply with the orders of the relator board and, in a resolution at that time adopted, gave as its reason for its refusal to act the following:

“Whereas, in the opinion of counsel of the board, Act 201 of the Public Acts of Michigan for 1913 and said order and determination of the said board of State tax commissioners is illegal and unconstitutional and void for the reason that the same violates the principles of local government and also that said order and determination was made without any evidence whatever, and that several of the townships of the said county was raised on knowledge of said board of State tax commissioners, without any evidence whatever as to the value of those townships, or as to their assessments or equalization: Therefore, be it resolved, that the board of supervisors hereby consider that the only legal and valid equalization of the property assessed in said county and apportionment of State and county taxes in said county is the equalization and apportionment ■ made by the board on the 25th day of October, 1913. All of which is in accordance with the advice of counsel of the said board.”

In this proceeding respondent denies that the peti-tioners are entitled to the relief prayed for in the petition, for the following reasons:

“(1) Because section 34 of Act No. 201 of the Public Acts of the State of Michigan, for the year 1913, in so far as it purports to confer upon the board of State tax .commissioners any authority to review the proceedings of the boards of supervisors of the several counties of the State of Michigan, for the equalization of township valuations within said counties, and in so far as it is sought to be applied to the proceedings hereby affected, is unconstitutional and void.
“(2) That by failing to serve notice of their proceedings upon the said Stewart B. Gordon and Ira Fales, members of the board of supervisors of the said county, and representing the city of Midland on said board, the board of State tax commissioners failed to acquire jurisdiction of the pretended proceedings pending before said board.
“(3) That the relators’ petition, although purporting to be the petition, among others, of the board of State tax commissioners, is not signed or verified by any member of the said board, or by any other person acting for or by the authority of the said board, or any member thereof.”

The answer to the second reason above advanced is that there is nothing in the act in question which requires the board of State tax commissioriers to convene the board of supervisors. The act provides that:

“The said board of State tax commissioners shall have the right to order the said board of supervisors to reconvene and to cause the assessment rolls of said county to be brought before it, and it may summon the several supervisors of said county before it to give evidence in relation to said equalization, and may take such further action and may make such further investigation in the premises as it may deem necessary.”

The failure of the State board to reconvene the respondent board as provided for in the act would not invalidate the proceedings had by them.

The effect of the omission of the State board to properly sign and verify the petition would be to strike their names from the proceedings as relators, and would leave John Thompson and Henry Belitz as relators, who have a sufficient interest in the case to bring, the proceedings. We do not find that there is any merit in the third reason.

Counsel for respondent say that the instant case “presents almost a precise parallel to the case of Zimmer v. Bay County Sup’rs, 159 Mich. 213 (123 N. W. 899),” where a similar statute (Act No. 292 of the Public Acts of 1909) was involved. The material change in the present statute from the one considered in the Zimmer Case is that the board of State tax commissioners is substituted for the committee on appeals, which was created by the parties in interest from ex-supervisors of adjoining counties. Two opinions were filed in the Zimmer Case, both holding the statute unconstitutional. The majority opinion held, in effect, that, as the committee on appeals was a nonresident body of men not representatives of the people of the county, it violated the constitutional principle of local self-government, and, also, the method of its selection created an appeal tribunal, which violated the rule that no man may be a judge, or select the judge, of a case in which he has an interest. The minority opinion was based on the latter ground alone. In the majority opinion the following appears:

“Can it be said of the act under consideration that the State has an interest in the activities of the committee on appeal, or that they are not ‘distinctively a matter of local concern?’ We think not. The concluding sentence of section 34 of the act is as follows:
‘Provided, further, That the said committee on appeal, shall not increase the aggregate valuation of said county.’
“It is manifest that the State has no interest in the matter. The county as a whole pays the same tax to the State, whether it pays according to one equalization or the other. The burden is simply, in part, lifted from one township or ward, and imposed upon another township or ward. The action of the committee produces a purely local result. Its action, however, relieves one portion of the local community from taxation in a measure, and imposes upon another an additional burden. This result is reached through the intervention of a nonresident body of men not representatives of the people of the county in which they act, and is repugnant to the well-settled principles of local self-government, so frequently asserted and upheld by an unbroken line of decisions of this court. People v. Hurlbut, 24 Mich. 44 (9 Am. Rep. 103); People v. Murray, 89 Mich. 276 (50 N. W. 995, 14 L. R. A. 809, 28 Am. St. Rep. 294); Township of Ada v. Kent Circuit Judge, 114 Mich. 77 (72 N. W. 35); Moreland v. Millen, 126 Mich. 381 (85 N. W. 882); Board of Road Com’rs of Wayne County v. Board of Auditors, 148 Mich. 255 (111 N. W. 901); Davidson v. Hine, 151 Mich. 294 (115 N. W. 246, 15 L. R. A. [N. S.] 575, 123 Am. St. Rep. 267 [14 Am. & Eng. Ann. Cas. 352]).”

It is urged that this reasoning, when applied to the instant case, is controlling, and, unless it is overruled, it follows that the present act is unconstitutional. We have carefully examined the briefs of the original files in the Zimmer Case, and are satisfied that there is no escape from this conclusion. The result reached by the entire court could have been arrived at, however, without holding that the State has no interest in the question of equalization. We fully realize that without the observance of stare decisis the law would soon become fluctuating and uncertain, and we hesitate to overrule the reasoning of a decision deliberately made. As this court said in McEvoy v. City of Sault Ste. Marie, 136 Mich. 172, 178 (98 N. W. 1006):

“Before this court overrules a decision deliberately made, it should be convinced not merely that the case was wrongly decided, but also that less injury will result from overruling than from following it.”

When, however, it becomes apparent that the reasoning in an opinion is erroneous, and less injury would result from overruling it than following it, it becomes as much the duty of the court to correct it as to follow it under other conditions. Of this we are satisfied in the instant case. By this reasoning no vested rights were obtained, and no such harm or damage can be sustained by overruling it. as might result when a rule of conduct announced by the court had been relied upon in the business transactions of the country, and had been acted upon as a rule of property and contracts.

Can it be said that the equalizing of assessments between the assessing districts of a county is a matter of purely local concern, and that the State has no interest in the matter?

Section 2 of art. 10 of the Constitution of this State provides as follows:

“The legislature shall provide by law for an annual tax sufficient with other resources to pay the estimated expenses of the State government, the interest on any State debt and such deficiency as may occur in the resources.”

Section 3 of the same article provides, in part, that:

“The legislature shall provide by law a uniform rule of taxation, except on property paying specific taxes, and taxes shall be levied on such property as shall be prescribed by law.”

Section 7 of the same article provides that:

“All assessments hereafter authorized shall be on property at its cash value.”

Equalization is an important factor in taxation, and, under our present system, the levy and collection of taxes is incomplete without it. The State board of equalization, under the Constitution, equalizes the State tax as between the various counties, and it would seem that the constitutional provision requiring the legislature to provide a uniform rule of taxation is for the purpose of equally distributing, as between taxation districts and individuals, the burden of taxation. In order to do this, it follows as a natural consequence that the legislature is empowered to create the necessary agencies to carry into effect the duty thus imposed. The present act is an amendment to the general tax law for the purpose of permitting the State, through a State agency, its State board of tax commissioners, to see that the State tax imposed by it upon its tax-paying subjects is equitably distributed according to the fundamental principle of taxation — that the burden shall be equally distributed. We do not think that it can properly be said that the State is concerned only in getting a certain sum of money from each county, and is not concerned in the manner of the distribution of this burden between the districts and individuals of the county paying the same. The authority given the board of State tax commissioners to review the assessments made by local authorities was sustained by this court in Board of State Tax Com’rs v. Board of Assessors, 124 Mich. 491 (83 N. W. 209), and Board of State Tax Com’rs v. Quinn, 125 Mich. 128 (84 N. W. 1). It seems to us, as we said in the minority opinion in the Zimmer Case:

“It is as' well within the legislative power to provide the agency which shall finally determine when a proper equalization has been made as it is to provide the agency which shall determine when taxable property has been properly listed and valued upon assessment rolls. The legislative provision is no more an invasion of the right of local self-government in one case than it is in the other.”

In a similar case in Wisconsin, State, ex rel. Brown County, v. Myers, 52 Wis. 628, 680-632 (9 N. W. 777), the supreme court of that State said:

“It is not easy to discover any well-founded objection to this law. It surely appears to be_ a wholesome enactment — one intended to produce, in certain cases, greater uniformity and fairness in the assessments of property, and thus insure greater equality in the burdens of taxation. For it is manifest, if there is not a fair valuation of property for the purposes. of taxation, there can be no just apportionment of the tax. * * * An examination of the law in question will show, we think, that it does not in any way unwarrantably invade the power of the county board, or interfere with the right of local self-government. Its object, as we have said, is to secure greater uniformity and equality in the valuation of the taxable property as between the cities and towns of the county. The matter of listing and estimating prop- ' erty, and of equalizing assessments for the purpose of taxation, is one essentially within the control of the legislature. * * * The law is evidently in furtherance of justice and fairness in the equalization of values, and does not seem open to any constitutional objection; for this whole matter is within the control of the legislature, which, doubtless, might abolish the present system and create a State board for the assessment and equalization of the value of the taxable property of the State.”

The State board of equalization fixed the cash value of Midland county at $7,000,000. The total equalized value of the county, as fixed by the board of supervisors and by the board of State tax commissioners in its equalization of the townships of the county was $6,500,000. The proviso of section 34 of Act No. 201 of the Public Acts of 1913, the act in question, is as follows:

“That the said board of State tax commissioners shall not upon petition filed under the provisions of this act, increase the aggregate valuation of said county.”

It is maintained and argued that the act is unconstitutional because this proviso is opposed to the section of the Constitution providing that all assessments shall be at cash value; that the power to equalize is limited to the aggregate fixed by the board of supervisors, and not at what the real cash value of the property is. This, in our opinion, is answered by the fact that equalization between the assessing districts of a county does not in any manner depend upon the aggregate valuation, but solely upon the per cent, allotted to the various assessing districts on the basis accepted by the equalization board. In other words, the result as between the assessing districts would be the same, whatever the aggregate valuation might be, providing the distribution of the taxes were made at the proper percentage.

The argument is made that, giving the authority to the State agency, the board of State tax commissioners, to review the equalization made by the county board of supervisors leads to the adoption of a paternalistic form of government, and would destroy the constitutional principle of the right of self-government in local affairs. Sound reasons might be advanced for an. entire separation of State and local finances, and thus make the raising of taxes by direct assessment under the ad valorem, system a matter of purely local concern. However, as long as the system now. in vogue in this State remains, and it seems to be well established, the State is interested in all matters which involve in any way the raising of its revenues. The appellate body provided for in the act is a disinterested, fair, and competent State agency, and the authority delegated in the act should tend to prevent unjust and arbitrary actions by local bodies.

The writ of mandamus will issue as prayed for in relators’ petition.

Stone, Ostrander, Bird, and Steere, JJ., concurred with Khhn, J. Moore, J., concurred in the result.

McAlvay, C. J.

(dissenting). The principal question involved in these proceedings was first before this court in the case of Zimmer v. Bay County Sup’rs, 159 Mich. 213 (123 N. W. 899), where the constitutionality of Act No. 292 of the Public Acts of 1909 was determined. Since that time, evidently for the purpose of curing its infirmity, that act was amended by Act No. 201 of the Public Acts of 1913 by giving the power and authority then reposed in a nonresident committee to the board of State tax commissioners and, respondent board of supervisors, having been ordered by the tax commissioners to reconvene and reapportion the taxes as fixed by them, has raised the question of the unconstitutionality of the amended act. The only change in the situation is that a State agency is now authorized to perform what the original act delegated to a committee. To determine the case in favor of the relators it bias been found that it is necessary to overrule Zimmer v. Bay County Sup’rs, supra, which, if followed, is admitted must result in holding the act, as amended, to be unconstitutional.

This is an admission that the identical question is again presented in the instant case, and it is proposed to reverse the former case upon the ground that its reasoning is erroneous. The reasoning employed and relied upon is the reasoning of the minority opinion in Zimmer v. Bay County Sup’rs. I cannot concur in such á conclusion. That case received the most careful and mature consideration, and a majority of this court decided that the law was unconstitutional because repugnant to the well-settled principles of local self-government. No new view except that the authority has been delegated to a State agency has been presented in the briefs filed by relators in the instant case, and no new arguments or authorities are relied upon. A careful re-reading of the Zimmer Case, together with the authorities cited, is more than ever convincing to me that its conclusions are both logical and correct, even when considering the use of a State agency. I am convinced that the instant case is one which should be controlled by that case, and the doctrine of stare decisis should be applied. The writ of mandamus should be denied.

Brooke, J., concurred with McAlvay, C. J.