author: Campbell, Ch. J.

text:
    The People ex rel. Ira P. Bingham v. The village of Brighton.

      Opening streets in villages Under Ohap. 70 Comp. Laws: Proceedings are judicial: Sow reviewed: Parties: Powers of the Justice: and of the jury. The proceedings instituted under § 27 of the act to provide for the incorporation of villages ( Comp. L. § 070A) for the opening of streets, &c., are so far judicial in their nature as to be subject to review by the Supreme Court. The provision of the statute giving a party claiming damages an appeal to the Circuit Court, does not preclude this Court from exercising its supervisory power by certiorari, to review questions other than those of damages solely.
    The village authorities become parties in the character of plaintiffs, or petitioners, when they decide to commence proceedings for the opening of a street* The act of the Clerk of the corporation in issuing the venire is purely ministerial ; and there is nothing m the act which prevents him from making the venire returnable before himself, if he happen to be also a Justice of the Peace.
    Nor can the proceedings be removed from him on the ground that he is a material witness. The provision of the Justices act ( Comp. L. § 5776 ) which requires that when an affidavit shall be made that the Justice before whom the cause is pending is a material witness for the defendant, it shall be transferred to some other Justice, applies only to suits at law.
    The jury must be composed of disinterested non-resident freeholders, and the return to the venire must show that the persons summoned have these qualifications. This is a jurisdictional requisite that cannot be supplied by parol, nor overlooked.

      Heard January 7.

      Decided January 10.

      Oertiorari: To Herman C. Hanse, Esq., a Justice of the Peace for the County of Livingston, to review the proceedings for the opening of Hamburg street in the village of Brighton.
    The President and Trustees of the village of Brighton, a corporation created by-an act of the Legislature of the State of Michigan, and made subject to Chapter.No. 72 of the Compiled Laws, proceeding under section 27 of said chapter ( Comp. L, § ) to lay out a street to be - known as Hamburg street, directed the Clerk of said corporation, as provided by the act, to issue a venire for a jury to determine the necessity for such street, and the compensation to be allowed to the owners, of lands to be taken for that purpose. The Clerk holding also the office of Justice of the Peace, made the venire returnable before himself as such Justice. The venire commanded the officer to summon “twelve disinterested freeholders residing without the limits of the village of Brighton.” The return to the venire was in these words: “I certify that by virtue of the within precept, I have personally summoned each of the several persons below named, to appear at the time and place within mentioned.” Following the signature of the constable are the names of twelve persons.
    On the return day named in the venire, — June 10th, 1869, — the relator, Ira P. Bingham, appeared at the place appointed for the assembling of the jury, and upon his affidavit that the Justice was a material witness for him, moved that the proceedings be transferred to some other Justice; which motion the Justice declined to entertain. The relator also objected to the jury being sworn by the Justice before whom the venire was returnable, on the ground that he was the Clerk of the corporation, by whose order the proceedings had been instituted; which objection the Justice declined to entertain.
    The jury then proceeded to view the premises, and having returned to the office of the Justice, the further proceedings he states in his return to the writ of certiorari, as follows:
    “ Thereupon the counsel aforesaid for the said President and Trustees of the village of Brighton offered and read in evidence to said jury, without objection, certain records of the votes, resolutions, orders and proceedings of the President and Trustees of . the village of Brighton relative to the laying out and establishing of a public street in the said village, designated therein as Hamburg street, over the lands and on the line described in said venire facias. But which record, as I kept no minutes, and took no copies thereof, I, as such Justice of the Peace, am not able to certify and return, otherwise than by stating their purport and effect as aforesaid. The same being records kept by and in the control of the Clerk of said village, and over which I, as such Justice of the Peace, have no control. The said Ira P. Bingham, by his counsel aforesaid, then produced as a witness before said jury, one John W. Power, and offered to prove by him certain records of the township of Brighton, which they claimed tended to show that the laying out and establishing of said street, designated as Hamburgh street, in the village of Brighton, by the President and Trustees of said village was unnecessary, to which offered proof, the President and Trustees aforesaid, by their counsel, objected to as being incompetent, immaterial, irrelevant and not pertaining to the subject of inquiry before the jury, which objection was sustained by the jury who refused to receive said evidence. Ira P. Bingham and Henry Soule were then each severally sworn as witnesses by the foreman of the said jury, and testified, each of them, as to the quantity of land claimed by each of them and embraced in the premises described in said venire facias, and the said Ira P. Bingham was examined by his counsel as to the value of such parts thereof as he claimed. Alanson P. Dickinson was then sworn as a witness at the request of the said counsel for said Ira P. Bingham, who then offered to prove by said witness his opinion as to the value of the whole premises described in said venire facias, and embraced in said Ham-burgh street, to which offered evidence, the President and Trustees aforesaid by their said counsel objected to as being incompetent, immaterial, irrelevant and not pertinent to the subject of inquiry before said jury, which objection the said jury sustained and refused to receive said offered evidence; and thereupon no further evidence being offered, the said jury having heard the proofs and allegations of the parties, as aforesaid, and the arguments of counsel on either side retired to consider of their verdict to be given, and after being absent some time returned and delivered to me, the said Justice of the Peace, their verdict and assessment in writing duly signed by them and each of them, which verdict and assessment is hereunto annexed, marked exhibit “ 0," and is herewith-returned. And I do further certify and return, that upon the return of such verdict and assessment as aforesaid by the said jury to me, I, the said Justice of the Peace did enter the said verdict and assessment at length upon my docket, and did enter judgment thereupon in manner and form following, to wit, and upon the return of the verdict and assessment of the jury aforesaid, I, the said Justice do hereby render judgment therefor, and that the verdi'ct and assessment aforesaid be, and the same is hereby confirmed.”
    The verdict affirmed the necessity of taking the lands as proposed, and assessed the damages of the relator at ninety-three dollars.
    A certiorari to this Court having been allowed, July 12th, 1869, and the return of the Justice filed, a rule was entered requiring him to make further return in the matter, and that he give precisely the day and date of his judgment of confirmation of the verdict of the jury in said proceedings. To which the Justice made “ further return, that the judgment of confirmation of the verdict of the jury in said order mentioned was made and entered on a piece of paper (in substance the same as heretofore returned) and laid in my docket for safe keeping until I could consult some one, as I had no form to make it by. I made the same on the day and at the time that I entered the proceedings in my docket, to wit, on or about the tenth day of June, A. D. 1869, being the day or the next day after I received the said verdict of the jury above referred to, but that the judgment referred to was not written on my docket in form as heretofore returned, until several days afterwards, to wit, on or about the 21st day of July, A. D. 1869, it was entered, in form and substance, the same as I had drafted it and left it in my docket on the day that I made the entry of the finding of the jury. The said entry of the judgment on 'the docket was written on the same day and copied from the paper above referred to, after the service on me of the writ of ceriiorari in the matter referred to in said order, to wit, on or about the 21st day of July last, all of which, is respectfully certified to and returned this 15th day of September, 1869.”
    The cause having been noticed for hearing in this Court, the respondents move to quash the certiorari; which motion, and the merits of the cause are argued together.

      H. H. Harmon, on the motion to quash.
    The defendants move to quash the writ upon two grounds:

      First. That it was improvidently and improperly issued. Second. That it is improperly directed.
    We submit that it was improvidently and improperly issued: Because,
    I. The proceedings sought to be reviewed are mere corporate acts, not judicial in character, done in the exercise of a power conferred by statute, and not subject to that mode of review. People v. Mayor, &c., of New York, 2 Hill, 10; In matter of Mount Morris Square, 2 Hill, 14; Mayor of Albany, 23 Wend. 283; Harlow v. Pike, 3 Greenleaf, 438; 2 Bur. Pr. p. 194, and cases there cited.

    II. The relator had an adequate remedy by appeal: Corny. L. § 2121; Matter of Mount Morris Square, 2 Hill, 27, and cases there cited; People ex. rel. Woodward v. Covert, 1 Hill, 674; Wood v. Randall, 5 Hill, 264 ; Storm v. Odell, 2 Wend. 287; Comstock v. Porter, 5 Wend. 98; Parsons, C. J., in Savage v. Gulliver, 4 Mass., 178; People v. Farwell, 4 Mich., 566; Farrell v. Taylor, 12 Mich., 113.

    Upon the analogy of the statutes, section 4998 Compiled Laws, as amended by session laws 1861, page 466, in the case last cited, and the statutes in this case, section 2124, Compiled Laws. That case is decisive on this point.
    It is improperly directed, because,—
    1. It seeks to bring into this Court, for review, the acts and proceedings of the President and Trustees of the village of Brighton, and to that end should have been directed to them and not to the Justice. See Goodrich v. Com. of Lima, 1 Mich., 386; Lawton v. Com. of Cambridge, 2 Caines, 181.

    2. The acts and proceedings of the Justice are ministerial and not judicial, and they together, with those of the jury, are but parts in the execution of a power conferred by statute on the President and Trustees. In matter of Mount Morris Square, 2 Hill, 19,27; Comp. L. § 2124; Revised Statutes, 1838, p. 535, § 7 and Revised Statutes, N. Y., p. 522, §§ 106-7-8.

    Upon the analogy of these statutes, Root v. Barns, 1 Mich., 38; Pugsly v. Anderson, 3 Wendell, 468 ; and People v. Supervisors of Queens, 1 Hill, 195, are decisive on this point.

      Norris & Uhl, for the relator.
    The Laws of 1867, vol. 2, p. 221, incorporate a certain portion of territory as the village of Brighton, under the general laws of the State. Of such laws, §§ 991-1085 (relative to highways), are declared not to apply.
    One section of these general laws (§ 2124) gives power to village authorities to take private property for public streets without petition, but a jury of “twelve freeholders residing without the limits” of the village must pass upon the questions of necessity and just compensation.
    Subsequent to the passage of this general law, in 1859-60, Art. xviii, § 2, of the Constitution, was amended, by a clause that the provision relative to a jury of twelve freeholders should not apply to the official acts of Highway Commissioners.
    Consequent upon that came the act of 1861, No. 163, to confer upon the municipal divisions of this State the privileges of such amendment — the right of having private property condemned for public uses, without a jury.

    The record and return in this matter raised these questions among others: Whether the law of 1861 confers this privilege or right upon ' villages not having a special charter? Whether such villages may proceed under both the general latos, § 212 j, and under Laws of 1861, p. 256, §§ H, 19; or that, having begun under the latter, may they conclude under the former? Whether, under the lat-. ter, the village authorities determine the “ necessity,” and, under the former, the jury are to enquire only into the “just compensation.” We claim, then, that it appears from the record:
    I. That neither the justice nor jury obtained jurisdiction in this matter.
    1. Act No 163 of the session laws of 1861 supersedes the general act § 212j, of the Compiled Latos, and no authority exists to direct the Clerk of an incorporated village, where there is no charter, to issue a venire facias for the summoning of a jury in proceedings of this nature, and no jurisdiction is conferred by such venire. — Laws of 1861, Act No. 168. — The Legislature would not intentionally authorize two bodies to act upon the same subject matter with co-ordinate jurisdiction. — People v. Highway Com. of Nankin, 15 Mich., 353.

      2. Because it was illegal and against the policy of the law, for the Clerk to make the venire returnable before himself, though Justice as well as Clerk.
    II. It must affirmatively appear upon the record that the jurors summoned, and who appeared in obedience to such venire, were freeholders residing without the limits of the village in which the proceedings were pending, and the property proposed to be taken situated. In this record it does not so appear. — Angelí on Highways, § 191; Nichol v. Bridgeport, 23 Conn., 208, 209, 213, Farrington v. Morgan, 20 Wend. 208.

      1. In proceedings of this nature, every requisite of the statute must be complied with and appear upon the face of the record. Angelí on Highways, § 188; Barney v. Buffalo, 15 Barb., 453; Rex v. Hollingfield, 2 M. and Sel. 558; Hill et al. v. M. & H. R. R. Co., 5 Denio, 206, and 3 Seld., 155: Dunlap v. Mt. Sterling, 14 Ill., 253; Hobart v. Frisbie, 5 Conn., 592, and see Michigan cases cited lelow.

    2. As it does not appear the jury were “freeholders residing,” etc., their determination is void, even if objection was not made at the hearing below to their being sworn for that cause. It is immaterial whether it was raised in the proceeding under review or not, as it is a question of jurisdiction. — Harrington v. The People, 6 Barb., 607 ; People ex rel. Lord v. Robertson, 26 How. Pr. R. 90; 1 Doug., 384, 390 ; 5 Mich., 409; 6 Mich., 281; 4 Mich., 177.

    3. But objection was made' to the swearing of the jury, alleging as “a ground of objection:” a. Because the Justice was Clerk. 1. Because “the proceedings,” etc., (and among these was the officer’s return) were illegal.

    III. It was the duty of the Justice to transfer the proceedings upon presentation of the affidavit oí Ira P. Bingham. — Gomp. L. § 8776.

    IV. There was error in refusing to hear the evidence of the witnesses — Power and Dickinson.
    1 In proceedings contemplating the taking of private property for public use or convenience, it is the duty of the jury or commissioners, as the case may be, to hear all the proofs and allegations of the parties, as well as to view the premises. — Angell on Highways, § 107; T. & B. R. R. Co. v. Lee, 13 Barb., 169.

    This Court will review, on certiorari, the rulings of law upon the admission or exclusion of testimony, or other rulings in the proceedings having a bearing upon the result.— Hyde v. Nelson, 11 Mich., 353 ; Jackson v. The People, 9 Mich., 111.

      Y. There- was no stick judgm-ent confirming the verdict and assessment of the jury “upon the return of the same,” as would authorize the trustees in taking further steps toward the opening of the street in question.— Comp. L. § 212j.

    1. At the time of the service of the writ upon the Justice, no judgment appears upon the record, and the writ is to bring up-and try tke record, as it exists at the service, at least.

      2. It was the duty of the Justice to return to this Court the record of the proceedings before him, without any subsequent alterations or additions. — Burrill’s Prac., 2d vol., 196; 2 Hill, 9; 8 Cowen, 18; 27 Illinois, lift; 7 Cowen,108 and 187.

      H. jH. Harmon, for the respondents.
    I. The question of jurisdiction in this case (if any) goes beyond the limits of the writ. The issuing of the venire under which the jury were impanneled in this pro-, ceeding, was not the act of the Justice, nor yet in legal parlance - was it the act of the Clerk of the village. It was the act of the President and Trustees. — Comp. L. § 2121,..

    It is necessary to a proper understanding and determination of the question, that all the proceedings'of the President and Trustees relating to the matter should be before the Court. The writ in this case does not reach these proceedings. They were not and had not been before the Justice.— Goodrich v. The Com. of Lima, 1 Mich., 885; Lawton v. Com. of Cambridge, 2 Caines, 181.

    The acts and proceedings of the Justice are not judicial, but ministerial, and together with those of the jury, are but parts in the execution of a power conferred by statute on the President and Trustees. In this proceeding they are the act of the President and Trustees, and the records are with them. — Comp. L. § 2121,; People v.

      Mayor, etc., of N. Y., 2 Hill, 9 ; Matter of Mount Morris Square, 2 Hill, 14; Goodrich v. Com. of Lima, above cited; Root v. Barns, 1 Mich., 38; Rev. Stat., 1838, 535, §7; Pugsley v. Anderson, 3 Wend., 468; 1 Rev. Stat., At. T., p. 522, §§ 106, 107, 108; People v. Supervisors of Queens, 1 Hill, 195.

    It is not necessary that the venire should recite jurisdictional facts. It is but a step in the performance of a mere corporate act hy the President and Trustees, and the facts of jurisdiction appear in the records' of their proceedings; not in those of the Justice. We submit that this Court will not review them and attempt to decide the question of jurisdiction, until these proceedings are all properly before it.
    II. The Justice had no judicial discretion in this proceeding. He was to swear the jury. — Comp. L. § 2124.— He was not to decide preliminary questions. — Pugsley v. Anderson, 3 Wend. 468; 1 Rev. Stat, N. Y.,p. 522; Root v. Barnes, 1 Mich., 88; Rev. Stat, 1888, p. 585, § 7.
    The statute, § 8776 Compiled Laws, does not apply to this case. It applies only to actions before Justices of the Peace, in which pleadings are had and issue joined by the parties. The Justice had no power to transfer the proceedings, or to hear and decide objections.
    III. The Justice had no power to inquire into and decide upon objections to proceedings. His office was merely ministerial. — § 2124 Comp. L. — He was to swear the jury, receive their verdict and render the judgment prescribed by the statute confirming it. He had no power to reject it; none to refuse to confirm it; no judicial discretion whatever. — Pugsley v. Anderson, 3 Wend., 468, and other cases cited above.

    True, he was Clerk of the village, &c., but he was not then acting as clerk. He issued the venire as Clerk, two days before. In that he was merely the amanuensis of the President and Trustees. The 'issuing of it was their act, not his.
    IY. The oath administered to the jury is the statute oath.— üomp. L. § 2124.

    Y. The evidence offered by the witness, John W. Power, was not competent. The acts and proceedings of the President and Trustees were not under review. The jury were not impanneled to try the validity of their acts, nor to inquire into the necessity of the street. That was the peculiar duty and exclusive province of the President and Trustees. They had performed that duty, and it remained only for the jury to decide upon the necessity of using the premises for the purposes of the street; the street being already established by an act of the President and Trustees, not subject to review or reversal by them. — Comp. L. § 2121/., and analogous proceedings under act for incorporation of Railroad Companies; Oomp. L. § 1965; Hinchman v. City of Detroit, 9 Mich., 103.

    YI. The evidence offered by the witness Dickinson, was not competent. The value of the lohole premises was not in question. The question was as to the damage to be awarded to the relator, and it could involve no further inquiry by the jury than as to the value of that part of the premises claimed by him. Evidence had just been given as to the extent of his claim, and he had been examined as to its value. The jury had the record of the proceedings of the President and Trustees. They had viewed the premises. Bingham and Soule had been ex.amined and testified as to the extent and value of their respective claims. They therefore acted upon some evidence. And this Court will not review their finding upon the facts, or attempt to decide upon the weight of evidence. If there is any evidence it will sustain the finding. — Hyde v. Nelson, 11 Mich., 353; Linn v. Roberts, 15 Mich., 443.

    YII. The drawing up and leaving in his docket, by the Justice, is a sufficient entry of the judgment, if any entry at all was essential. But there is nothing' in the statute that requires any entry at all. — Comp. L. § 2124. —It is submitted that under this statute, it is not at all essential to the validity of these proceedings, that he should even render judgment. He has no judicial discretion. “ He shall render judgment therefor, confirming the same,” says the statute. He has no choice; no judicial power over it. Re must conform. He cannot reject. His judgment is the peremptory mandate of the statute. His duty is merely clerical. For all the purposes of these proceedings the verdict alone is sufficient, and this upon the principle that “What the law declares shall be done, it will regard as done.”
   Campbell, Ch. J.

This is a certiorari to a .Justice of the Peace, residing in the village of Brighton, to bring up certain proceedings in his custody, whereby steps were had to open a street and determine damages to the land owners.

The proceedings were had under § 2124 of the Compiled Laws, relating to the incorporation of villages, which provides that when the President and Trustees deem it necessary to establish streets, and cannot agree with the property owners, they may direct the Clerk to issue a venire to the Marshal or any constable, commanding him to summon and return a jury of twelve disinterested freeholders, residing without the limits of the village, to appear before any Justice of the Peace in said village, at a time to be therein stated, to enquire into the necessity of using such grounds or premises and the just compensation to be made therefor. The law requires the jurors to be sworn by the Justice, and after viewing the premises, if they deem it necessary for the village to use the lands, to inquire into and assess the damages. The Justice, upon the return of the assessment or verdict is required to “render judgment therefor, confirming the same.”

In the present case the Clerk of the village, who was also a Justice, in pursuance of directions from the President and Trustees, issued a proper venire, returnable before himself as such Justice. The return of the constable is in these words: “I certify that by virtue of the within precept, I have personally summoned each of the several persons below named, to appear at the time and place within mentioned.” To this was subjoined a list of twelve names.

Eelator appeared before the Justice and made affidavit that he was a necessary witness, and applied to have the matter transferred to another Justice, which was refused. He also objected to the Justice because he was also village Clerk. These objections being overruled, the jury was sworn, and went out in charge of an officer to view the premises, and then returned to the Justice’s office, where they heard testimony, and then retired and brought in their verdict, signed and delivered it to the justice, who wrote out on paper a judgment of confirmation, which he after-wards entered on his docket. The jury rejected certain testimony going to show that the improvement was not necessary, as well as some other less important evidence.

'Objection is made to the jurisdiction to issue certiorari in such cases, and a motion is made to. quash the writ, as improvidently granted. The chief grounds rest upon the nature of the proceedings, and also upon the claim that there is a remedy by appeal.

We think the proceedings so far judicial in their nature as to be subject to revision. The Constitution required the necessity for taking the lands and the compensation to be determined by a jury. — Const. Art. 15, § 15. — The statute requires a venire to be returnable before a Justice, and requires the Justice to render judgment upon the return, which is for damages as well as the taking of the land. No further steps are had unless some one appeals. We think the case comes within the practice long followed in this State, and that the proceedings are in their nature open to review upon their legality by certiorari, unless the appeal supersedes it. But the appeal seems designed only to review the question of damages. — G. Ju. § 2124. — It does not reach the question whether the lands should be taken; and that is the chief ground of the complaint.

It is claimed also that the whole proceeding is the act of the village in its corporate capacity. We do not think so. The village ' authorities decide nothing more than whether they will commence proceedings, to have the land condemned. Having so done they become moving parties in the character of plaintiffs or petitioners. The jury, which is the tribunal of decision, is required to consist of freeholders not residing in the village, and the Justice’s judgment becomes a debt against the village. The legal proceedings which appear in the record mf such a transaction, begin with the venire and end with the confirmation, and all of these are in the custody of the Justice, who has the means of making a return. He cannot return the village action — which does not appear to be judicial, and cannot go back of the venire which opens his own jurisdiction. But all subsequent matters are in' his exclusive possession after the proceedings terminate. We are, therefore, required to consider this record, to ascertain whether it is open to complaint.

We think there is nothing in the objection that the same person acted as Justice and Town Clerk. The issuing of the venire was purely ministerial, and the Clerk is in no sense a party to the proceedings. As the Justice is required to reside in the village, it might easily happen that if this double official capacity disqualified, there would be no one to act at all. The statute has made no exclusion, and there is no rule of law requiring.it. Neither does the statute providing for the removal of causes from one Justice to another apply to special proceedings. It relates only to suits at law. — 2 C. L. § 8776.

We think there is no doubt that under the constitutional provisions requiring the necessity for using the property, as well as the damages, to be ascertained by the jury, ( Const. Art. 18, § 2,) the jury" cannot be debarred by the action of the village authorities from determining whether the proposed improvement is required. If a road is proposed over a given line, the location of .the line determines-what land is to be taken, and to inquire whether it is necessary to -take a given parcel of land in order to lay it out on that line, would be an idle ceremony. The object of the provision was to prevent abuses in the shape of needless public works, and the jury cannot properly act upon any decision, but their own sworn belief. And, therefore, they should not reject testimony bearing upon that question. Under this statute, not being residents, they are not presumed to be fully informed of local desires or necessities, and they are bound to exercise an intelligent, as well as impartial judgment.

We have deemed' it proper to refer to this subject, as there appeal's to be some misapprehension upon it. It is doubtful, whether upon this writ, we have the means of inquiring into the acts of the jury in receiving or rejecting testimony, — inasmuch as this statute provides no means for preserving evidence of such action, as has been done under some other statutes on like subjects. As the case will be disposed of on other grounds, we content ourselves with this intimation, without deciding how far the Justice is connected with the inquest.

The law requires the officer to summon under the venire twelve disinterested non-resident freeholders. The law in regard to all special proceedings in derogation of private rights, requires the jurisdiction and regularity to be manifest on the face of the record, and no substantial omission can be supplied by presumption or by evidence resting in parol. The officer who summons the jury is bound to show by his return that he has summoned such as answer the description in the writ.

The return here does not show the jurors to have been either freeholders or non-residents. Both of these qualifications are essential to their ‘jurisdiction. The officer selects whom he pleases, and he is bound to select competent persons. There is no one authorized under this statute to rectify any of his mistakes. And the parties must depend upon his official certificate in the first instance, and have no means of correcting the panel. The regularity of the record depends upon this state of facts appearing on it. Such a jurisdictional requisite cannot be supplied or overlooked. A private citizen might as well assume to act in lieu of a judicial officer, as any but non-resident, disinterested freeholders, to sit on such an inquest. The quality must appear.

It is somewhat singular that the verdict is quite as silent as the return. It does not recite anything whatever concerning the qualifications of the jurors.

For this jurisdictional defect, the proceedings are invalid, and must be quashed.

The other Justices concurred.


source: Caselaw Access Project

author: Cooley, J. Christiancy, J.

license: Public Domain

text:
    Lizzie S. Price v. John D. Reed.

      Practice'in the Circuit Court: Attachment: Dissolution: Powers of Circuit Court Commissioner's. A Circuit Court Commissioner lias no power to dissolve an attachment, under the provisions of the “ act to amend chapter 114, of the Revised Statutes, entitled of proceedings against debtors by attachment,” ( Comp. L. §§ U778-75) upon the application of a defendant who is not entitled to have the property restored to him.

      Heard January 8.

      Decided January 10.

      Certiorari: To I. Willard Babbitt, Esq., Circuit Court Commissioner for the County of Washtenaw, to review proceedings for the dissolution of an attachment.

      Norris <& Uhl, for plaintiff in error.

      II. J. Beahes, for defendant in error.
   Cooley, J.

The plaintiff in error, Price, sued out an attachment in the Circuit Court for the County of Washtenaw, against the goods and chattels of Reed, upon which the Sheriff attached a crop of wheat of some fifty-five acres. This wheat appears to have been under a chattel mortgage previously given by Read to one Wood, and not yet due. Some days afterwards, and after the mortgage was overdue, Reed presented a petition to a Circuit Court Commissioner for the County of Washtenaw, under the provisions of § 1/.778 of the Compiled Laws, praying therein for a dissolution of the attachment, on the ground that he had committed none of the acts set forth in the affidavit, upon which it issued. A citation issued upon this petition, which was duly served, and the attorney for Price appeared and made several objections to the granting the prayer of the petition; only one of which we deem it important to notice. This objection was based upon the fact that it clearly appeared by the evidence, and was not disputed, that after the levy of the attachment, but before the hearing, Reed had turned over to Wood, whatever right of control he had in respect to the wheat, so that if the attachment was out of the way, Wood and not Reed, would be entitled to the possession. The precise nature of this arrangement was not clear, but it is not material to our present purpose.

The counsel for Price insisted that where it appeared that the defendant in attachment was not entitled to a return of the property, the case was not within the statute authorizing the attachment to be dissolved. On the other hand, it was claimed by the counsel for Reed that whether he was entitled to have the property restored to him or not, was a question which regarded the nature of the order to be made by the Commissioner, and not one which went to his authority to make any order at all. The statute, it was claimed, gave the defendant a right to have the attachment dissolved when it was issued without cause, and it further authorized the Commissioner to order the property to be restored to the defendant; but this could, of course, only be done when he appeared to be entitled to its possession, and the counsel not asking, but disclaiming to ask any order for the return of the attached property, the Commissioner made an order simply dissolving the attachment.

We cannot find authority for this order in the statute. All its provisions bearing upon this point plainly contemplate that the party, who can take this proceeding, must be one entitled to a return of the property. The citation to be issued requires the plaintiff in attachment to show cause why the attachment should not be dissolved and the property restored to the defendant, and if the petition is sustained, the officer is authorized to dissolve the attachment and order the property restored. It is very plain, we think, that the evil the statute was designed to remedy was the depriving of defendant of the possession of his property, pending an attachment obtained without sufficient cause, and that it was no part of its purpose .to remedy the wrongs of third persons, who have other means of redress open to them, or any incidental injuries to defendant not connected with any right to the possession of the property attached.

It is suggested that under this construction of the statute the defendant may suffer serious wrong in some eases for which there is no redress. But we cannot, on any such grounds, enlarge the scope of the summary remedy which the statute has given. If the remedy ought to be broader than it is, only the Legislature can make it so. We are very well satisfied that to entitle a defendant to petition for a dissolution of an attachment, he must be in position to be entitled to an order for the restoration of the property, because the statute contemplates that that order shall be made in every case in which the petitioner is successful. But, as the petitioner in the present case had no right to such restoration, the order of the Commissioner, which was not such as the statute contemplates, must be reversed with costs.

Campbell, Ch. J. and Graves, J. concurred.

Christiancy, J.

I concur with my brethren, that the defendant in attachment, to sustain this proceeding for setting it aside, must be entitled to a return of the property. But if the defendant, as between himself and the plaintiff, is entitled to the return^ this is sufficient, and we cannot in this proceeding adjudge the rights existing as between the defendant and other persons not parties to the suit.

I think the defendant in attachment in this case shows, that, as between himself and the plaintiff, he is entitled to have the property restored to him, if the attachment be set aside.


text:
    Robert Franklin v. Charles G. Foster.

      Wife's contract foi' money loaned; A party who lends to a wife money, known to him to be for her private use, and who at the wife’s request conceals the fact of such lending from the husband, cannot maintain an action against the hus- ' band for the money loaned.

      Heard January 8.

      Decided January 10.

    Case made from Ottawa Circuit.
    This was an action of assumpsit brought for money claimed to have been lent by the plaintiff to the defendant’s wife. The suit was brought in Justice’s Court, and judgment rendered for the plaintiff for twenty-five dollars and costs. From this the defendant appealed to the Circuit Court for the County of Ottawa.
    On the trial in the Circuit Court, the plaintiff was sworn and testified:
    “During the month of July, 1866, Mrs. Foster, the defendant’s wife, said to me she wanted some money. I said I had some pioney I did not want to use then, but did not know how soon I might want it, and I let her have twenty-five dollars then, and in a few days after I let her have ten dollars more. At the time she got the twenty-five dollars, I told her to speak to her husband about it, and she said she would, and afterwards told me she had, and it was all right. I asked her what she used the money for, and she said to buy some under clothing. I have several times asked Mrs. Foster for the money but she has never paid it. I afterwards settled with Mr. Foster, the defendant, in the fall of 1866, but did not mention the money loaned to his wife. The reason I did not mention it was, that as I was about settling with Foster, the defendant, Mrs. Foster requested me to say nothing to her husband about the money, in the settlement, and she would pay me.”
    The Court rendered judgment for the plaintiff for the sum of twenty-five dollars, with costs; which judgment comes into this Court for review upon case made.

      Edwin Baxter, for defendant.
   Campbell, Ch. J.

Franklin sued Foster for money, lent. The money was lent to Mrs. Foster, defendant’s wife, on her own request, and without any authority from her husband. When lent to her, Franklin told her to speak to her husband about it, and she promised to do so, but never did. It was lent for her private nse, as the lender knew at the time, and he not only never asked Foster for it, but concealed the facts from him at Mrs. Foster’s request, and had a settlement with him about ofher matters. The commencement of suit was the first demand ever made on Foster for it.

It is difficult to imagine upon what theory, judgment was given for this demand. A wife cannot borrow money on her husband’s credit; and much more can she not borrow it secretly on his account, and with an understanding that the fact shall be concealed from him. The loan here was made to her and not to him, and there is no possible pretext for charging him with it.

Judgment should be reversed, and judgment rendered in this Court in favor of defendant, Foster, with costs of all the courts.

The other Justices concurred.


author: Christiancy, J.

text:
    Henry H. Coolidge, v. Bezaleel P. Wells.

      Homestead. Neither the Constitution, nor the statute, exempts a contemplated future homestead; and therefore, land on which no dwelling house had ever been erected, or commenced, and on which neither the complainant nor his family had ever resided, is not exempt as a homestead. Beecher d. Baldy, 7 Mich., 501, cited and approved.

      Heard January 4.

      Decided April 5.
    Appeal in Chancery from Van Burén Circuit.
    The complainant filed his bill to foreclose a mortgage, and alleged that on the sixteenth day of January, 1861, the defendant became indebted to the complainant in the sum of two thousand two hundred and sixty-five dollars and fifty-two cents, payable in three installments yearly thereafter, with annual interest at the rate of ten percent; and that to secure the payment of the same, the defendant assigned to complainant a certificate from the Commissioner of the Land office of this State, for the south part of the southeast fractional quarter of section twenty-two, town seven south, of range seventeen west, containing forty acres. The bill also sets forth that there was due at the time of filing, the sum of $1,980,55, and that the amount due and to become due was $3,870,58, and contained the usual prayer for sale of the premises.
    Defence: The answer admits the original indebtedness, and claims that, at the same time, the complainant had a chattel mortgage upon fruit trees growing upon the same land and another 40 acres adjoining for the security of the same debt; that complainant, contrary to agreement, and in the absence of the defendant, took possession of the land and then neglected the trees and farm, and finally sold the trees at a great sacrifice. The defendant claims an equitable set-off to the amount of the value of the trees, and various other items for things sold, and also damages which he sustained by reason of the complainant’s negligence and violation of the contract. The answer also claims that the land intended to be mortgaged was the only land owned by the defendant; ^that he was a married man, a householder, having a family at the time of the making of the mortgage, and ever since that the land in question was his homestead; that his wife did not sign the conveyance or mortgage, and that the same is void by the statute of this State.
    A general replication was filed and proofs taken.
    The proofs, as to the fact of a homestead, do not show that there was any dwelling house on the mortgaged premises, or -that the mortgagor or his family had ever resided upon it. There is proof of his purpose to build a dwelling house upon it for himself and family. The record shows a considerable quantity of testimony as to the damage to the premises while they were in the possession of the mortgagee, and of the value of the fruit trees and other products taken off during such possession.
    The Court below, April 30th, 1867, dismissed the bill without costs; “and without prejudice in any action at law hereafter to be instituted by said complainant against said defendant.”
    The complainant appeals to this Court.

      F. Muzzy, for complainant.
    The Court had jurisdiction of the cause and of the parties and it became its duty to settle the account between them and put an end to further litigation. If a balance was found due to defendant he was entitled to a decree for this amount. — Story’s Fq. Jur. § 522.

      If the complainant took possession and became the tenant of defendant and committed waste, or received the profits, the account between them should have been settled by the court. — Same, §§ lfi5, lfi6 and notes. Testimony has been taken as to all transactions between the parties which had been going on three or four years, and a Court of equity is the appropriate tribunal to adjust the difference. — Story’s Eq. Jur. § Jf.50.

    But we think the Court was influenced in its decision by an erroneous view as to the rights of the defendant arising from our homestead laws.
    The answer does not show that the land was occupied by the defendant, nor whether it is in a city or village, nor does it set forth the value. The proof is that the land was not occupied by the defendant or his family, and that it was worth more than fifteen hundred dollars; therefore the averments in the answer were insufficient for the admission of evidence and the evidence admitted insufficient to sustain the homestead claim . — Helfenstein v. Cave, 3 Clarke, Iowa, 287. Same 6 Clarke, Iowa, 374.

    As it appears that the premises exceeded fifteen hundred dollars in value, the mortgage was valid, even if they were occupied as a homestead. — Dye v. Mann, 10 Mich., 291.

    It does not appear by the answer or proofs, that the defendant ever selected the premises with reference to the exemption laws, by portioning off a quantity that would bring the homestead within the value of fifteen hundred dollars, or that he ever designated any particular part of the premises as a homestead. In such case his remedy and the rem, edy of complainant are provided by Session laws of 1861, j). 51fi. This act furnishes a reciprocal remedy. Bach party by its provisions could secure his exact rights. It is the remedy furnished by the statute. A Court of chancery cannot deprive the complainant of its benefit. — Thurston v. Prentiss, 1 Mich., 193.

      D. Darwin Hughes, on the same side.
    The property in question was not a homestead, because,—
    I. It did not contain a dwelling house or appurtenances, and could not be a homestead under any definition. The Constitution provides that every “ homestead,” bearing certain description as to amount and value and occupancy will be exempt. The word homestead must be understood in its ordinary meaning, and there can be no homestead without a dwelling house thereon. Homestead is the place of the mansion house, the enclosure or ground immediately connected with the mansion.— Webster’s Dictionary, Bouvier’s Law. Diet.

    That the word when used in the Constitution must be understood according to its ordinary sense, or its technical sense, if it has one in law — See People v. May., 3 Mich., 304 — So that there can be no homestead in law until there is a homestead in fact. — Beecher v. Baldy 7 Mich., 501.

    II. The land in question is not a homestead, because it was not occupied by defendant within the meaning of the Constitution. It must be occupied by the defendant as a homestead. — Beecher v. Baldy, 7 Mich., 501. — In this case the defendant was in possession and used the land as a nursery, but he did not occupy it as a homestead, or within the meaning of the Constitution.
    III. But suppose it was a homestead so far as occupation and mansion house is' concerned, the proof shows fully that it was worth more than $1500, and the complainant was entitled to a decree of foreclosure, and the defendant must set off his homestead under the statute. — Laws 1861, p. 540.

    IV. If the facts showed that the homestead was not worth over $1500, the bill ought not to have been dismissed, but should have been retained and accounts taken, and on payment of amount due complainant, the certificate from the Land Office given up and re-assigned.

      The court having acquired jurisdiction for one purpose, should keep it to settle the whole controversy.

      Batch,, Smiley & Batch, for defendant.
    The statute of 1848 and the Constitution of 1S50 provide that a homestead consisting of not exceeding forty acres of land, and the dwelling house thereon, and the appurtenances, to be selected by the owner thereof, or in lieu thereof certain village property, &c., and owned and occupied by any resident of this State, not exceeding in value fifteen hundred dollars, shall be exempt from execution or other final process from a court. The statute also provides that such exemption shall not extend to any mortgage thereon lawfully obtained, but such mortgage or other alienation of such land by the owner thereof, if a married man, shall not be valid without the signature of the wife to the same, unless said mortgage was given to secure the purchase money or some portion thereof. — Laws of 18J/.8, jo. 124 J Compiled Laws, § j Constitution, Art. 16 § 2.

      a. The defendant was and is a married man and a householder, and his wife did not sign the conveyance or mortgage. He did not and does not own any land except the forty acres in question. The land does not exceed the constitutional quantity, and there is no evidence to show that it exceeds the constitutional value. There is no doubt that the defendant owned and occupied the premises. This being the case, the mortgage was void.— Comp. L. pp. 72, 1217 ; Beecher v. Baldy, 7 Mich., 488; Dye v. Mann, 10 Mich., 296.

      b. The question may arise in this case: What kind or manner of occupancy is necessary to entitle the defendant and his family to the benefit of the homestead law? Does the Constitution mean that they must actually live in a house upon the land? Exemption statutes are remedial, and usually very liberally construed. — Montague v. Richardson, 24 Conn., 388; Robinson v. Wiley, 15 N. Y., 489; Peverly v. Sayles, 10 N. H., 358; Freeman v. Carpenter, 10 Vermont, 433; Patten v. Smith. 4 Conn., 450; 10 Met., 507; Deere v. Chapman, 25 Ill., 610 ; McCabe v.Muzzuchlli, 13 Wis., 478; Pelan v. De Bevard, 13 Iowa, 53; Wilcox v. Hawley, 31 N. Y., 648.

      c. The object of the statute is to place beyond the process of the courts a home for the family. It requires in case of village property, that it shall be otvned and ocmpied by the person claiming or selecting it as such. The ^question then arises, what is an ownership and occupancy such as is required by the Constitution and laws ? The construction given to the clause requiring an ownership has been a very liberal one. A homestead may be claimed in land of which a party is in possession under a contract to purchase. McKee v. Wilcox, 13 Mich., 358. Or having a lease or life estate in land. Deere v. Chapman, 25 Ill., 610.

    So in the case of exemption of personal property. It has been held that a part owner was an “ owner ” within the meaning and intention of the law. Radcliff v. Wood, 25 Barb., 52.

      d. The word “occupied” must receive a like liberal construction. Occupancy means possession. — Jacob’s Daw Die.; Bouvier’s Law Die.; Webster’s Die., title “Occupancy.”

      e. Must the land actually have a house upon it ? This is another question arising in the case. The Constitution itself would seem to settle this question in the negative upon any fair construction. 1st. It exempts a homestead, not exceeding forty acres of land. 2d. The dwelling house thereon. 3d. Its appurtenances. Or in lieu thereof: 1st. A village lot. 2d. The dwelling house thereon. 3d. Its appurtenances, owned and occupied, &c. — Comp. L. pp. 72, 1217.

      f. The phrase “owned and occupied by any resident of this State,” does not apply to cases where the exemption is claimed in property other than a city or village lot. It was the object and intention of the framers of the Constitution simply to limit the amount to fifteen hundred dollars.— Comp. L. pp. 1217-72.

      g. The power given to the owner to make a selection implies that it may be any piece or parcel of land owned by the party claiming the exemption, for otherwise he could only have the piece on which he might be living, and no selection could be, made. Section 450(5 gives a party also the right to claim exemption of a house on land not his own.

      •h. Any other construction would defeat the law and its object. It would be saying that the debtor who is able to own a piece of land with a house and other improvements upon it, can have the benefit of this law, but the poor man and his family for whose benefit this law was enacted, who are unable to own more than the bare land, shall lose what little they have.
    This forty acres of land was and is claimed and intended as a homestead. It was owned by him and occupied as a homestead, as far as it was susceptible of occupancy. We think this conclusive, and if we are correct, the bill must be dismissed with costs.
   Christiancy, J.

This was á bill to foreclose a mortgage (executed by the defendant to the complainant) of a certificate of purchase of forty acres of University land (which for the purposes of this case may be treated as a mortgage upon the land itself), to secure the payment of two thousand two hundred and sixty-five dollars, in three equal annual installments, at ten per cent, interest, to be paid annually. The mortgage was dated January 16, 1861.

The defendant, by his answer, relies upon two separate grounds of defense;

First: That he was a married man; that his wife did not join in the mortgage, and that the land was his homestead, and exempt as such from sale on the mortgage; and,

Secondly: That he also, at the same time and to secure the same debt, executed to the complainant a chattel mortgage upon a nursery of fruit trees, shrubbery and vines then growing on said lands, and upon certain other fruit trees, shrubbery and vines then growing upon other lands. And he alleges that in March, 1862, the complainant took possession of the land described in said certificate, and had the use, occupation, rents and profits of the same, for which he asks that complainant may account. That defendant entered the army of the United States in the fall of 1861, and continued in the army at the time of his answer, (July, 1864.) That complainant also took possession of said trees, shrubbery, and vines, and forbid the agents of defendant from cultivating, or having anything to do with them; that he wrongfully and intentionally neglected and refused to take care of, trim, and cultivate said trees, shrubbery, &c., by means of which they were greatly damaged, and lessened in value to the amount of three thousand dollars; that complainant sold the trees, &c., under said chattel mortgage for about one hundred and fifty-three dollars, being less than one twelfth part of their value; claims that such damage should be ascertained by proof, and credited and allowed to him, and alleges that complainant is indebted to him in the sum of twenty-three dollars for farming and gardening tools, which he asks may be allowed in set off.

A replication being filed, evidence was taken on both sides, and the case brought to a hearing upon pleadings and proofs. The Circuit Court 'dismissed the bill without costs, and “without prejudice in any action at law hereafter to be instituted by said complainant against said defendant:” and the case comes to this Court by appeal from this .decree.

TJpon what ground the bill- was dismissed does not expressly appear.

First: As to the defense of a homestead, we see no ground upon which this defense can be maintained. The most that the evidence shows is that the defendant contemplates, at some future time, building a dwelling house upon the land and going there to reside with his family. But it expressly appears from the evidence that no dwelling house had ever been erected or even commenced upon the land, and that neither the defendant nor any of his family had ever resided upon it.

Neither the Constitution nor the statute has undertaken to exempt a merely contemplated future homestead. Both leave the parties first to make or obtain a homestead in fact, and then apply the exemption to the homestead thus acquired. Neither has undertaken to furnish homesteads, or the means of obtaining them, to those who have none. And as held by this Court in Beecher v. Baldy, 7 Mich., 501, the land which is to be exempted as a homestead must contain the dwelling house, and must constitute a homestead in fact.

Secondly: As to the other grounds of defense set up in the answer, while the evidence shows that there were certain sums received for which he should account, and which should be applied in reduction of the mortgage debt, it wholly fails to show that the complainant had prevented the defendant or his agents from properly cultivating, trimming and taking care of the nurseries; and in- all respects it fails to establish a complete defense, or to show any proper ground for dismissing the bill. And we are satisfied this part of the defense set up by the answer was never passed upon by the Court. And the case being clearly one of equitable cognizance, we can see no ground upon which the Court could have dismissed the bill, unless upon the erroneous view that the evidence established a homestead exemption. Such we think must have been the view taken by the Court.

The evidence presents a case in which an account should be taken, and we should not feel authorized without a reference for that purpose to determine upon this appeal, the amount which should be allowed to the defendant in reduction of the mortgage debt. Iu determining this amount several questions may be raised, and some of them have been argued by the defendant’s counsel; but the counsel for the complainant, from' the view they have taken of the case, have not deemed it necessary to argue them. We might perhaps determine some of these questions, and lay down some of the principles which should govern the accounting. But as we are satisfied this part of the case has not yet been considered by the Circuit Court, we think it better to leave all questions touching the account and the sums to be allowed to the defendant, to be first adjudicated in that Court.

The decree dismissing the bill must be reversed with costs, and an interlocutory decree of foreclosure and sale must be entered in this Court, and the case must be remitted to the Circuit Court for such further proceedings as may be necessary for stating an account between the parties and ascertaining the amount to be allowed to the defendant in reduction of the mortgage debt, and for making the decree final and carrying it into effect.

The other Justices concurred.


author: Graves, J.

text:
    Caspar Pipp et al. v. Albert Reynolds et al.

      Pleading in Assumpsit. A special count in assumpsit averring that the defendants promised to perform an agreement made by a third party with the plaintiffs, the consideration for the defendants’ promise being stated as moving from the third party to them, and there being no averment of any promise to the plaintiffs, would be demurrable ; and when upon the trial of an issue joined upon such a count, both parties proceed upon the theory that there was in fact no ¡ promise made by the defendants to the plaintiffs, and the count does not set forth any facts from which a contract between the plaintiffs and defendants may be inferred, it is not error for the Circuit Judge to charge the jury that the plaintiffs cannot recover on the special count.

      Heard January 8.

      Decided April 5.

    Error to Wayne Circuit.
    Caspar Pipp, Henry Spitzley, and Joseph Spitzley, brought an action of assumpsit in the Wayne Circuit Court against Albert Reynolds and Andrew Hess, setting forth their cause of action thus:

      “ For that whereas, heretofore, to wit, on the fourth day of March, A. D. 1868, one Roger Ecklin, was a partner in business with the defendant, Andrew Hess, and doing business with him, said defendant,1 under the firm name of Hess and Ecklin, and while the said Ecklin was so a partner of the said defendant, Hess, he, the said Ecklin, to wit, on the day aforesaid, did then, in consideration that the plaintiffs would make and perform certain repairs on the house of him, the said Ecklin, undertake and promise to pay to them, the said plaintiffs, the sum of three hundred and twenty-three dollars, ($323,) and did then and there also undertake and promise to pay to the said plaintiffs, so much for certain other repairs, which they, the said plaintiffs, should make and perform upon the house of the said Ecklin, as the same were reasonably worth, but it was expressly understood and agreed, that all and singular, the said work should be paid in painting, to be done by the said Ecklin for the said plaintiffs, whenever they, said plaintiffs, should require it. And the plaintiffs aver, that, in consideration, that the said Ecklin did release all and singular his interest in the said firm of Hess and Ecklin, and assign the same to the defendants; they, the said defendants, did undertake and promise to perform the said - agreement between the said plaintiffs and the said Ecklin; and the said plaintiffs further aver, that all the repairs made by them upon the house of said Ecklin, were reasonably worth four hundred and seventy-one dollars ($471) and that by

      reason of the premises, and the promises and undertakings of the said defendants, they, said defendants, ioere, and are liable to pap to the plaintiffs, the sum of four hundred and seventy-one dollars, by doing and performing fainting for the said plaintiffs, whenever they, the said plaintiffs, should desire it. Yet the said defendants, not regarding their said promises and undertakings, did not do and perform the said painting for the* plaintiffs, although often requested so to do, and have not paid to the plaintiffs the said sum of $471, and. have hitherto, although often thereunto particularly requested, wholly neglected and refused so to do; by means whereof the plaintiffs have been, and are greatly injured to their great damage, one thousand dollars, and therefore, &c.”
    The declaration contained a second special count, substantially like the first, and the common counts. The defendants pleaded the general issue.
    On the trial the plaintiffs introduced no evidence in support of the common counts of their declaration. The Circuit Judge charged the jury, as requested by the defendants, that the special counts of the plaintiffs’ declaration did not allege a cause of action; and there being no testimony in support of the common counts, the plaintiffs could not recover, to which charge the plaintiffs excepted. The jury under the charge rendered a verdict for the defendants. The judgment entered on the verdict, is brought into this Court by writ of error.

      0. Kirchner, for plaintiffs in error.
    The contract is sufficiently set up in the special counts of the declaration, and if there be any defects, the defendants having pleaded over, they are effectually cured,,and defendants cannot take advantage of them on the trial.
    It is a well known and established rule of pleading that a contract should be declared on according to its legal effect. — 1 Chit. PI. SSL

    The declaration sets up a certain promise or agreement on the part of the defendants, the legal effect of which promise or agreement is, as alleged in the declaration, to wit: That the defendants were liable to pay the plaintiffs a certain sum of money in a certain way, etc. The defendant in error will insist that the special counts of the declaration ought in terms to' charge a promise to the plaintiffs to pay them $170 in painting, etc. — 1 Chit. PI. SSI.— I reply that the special counts, though not in precise terms, do virtually and in effect charge such a promise to the plaintiffs. There is really no distinction between an allegation of a promise by the defendants whereby they become liable to do a certain thing for the plaintiffs, and an allegation that the defendants made a promise to the plaintiffs to do that very same thing. — Legáis Case Latch. 206; Bell v. Chaplain. Hardr. 321. — At all events, the defendants cannot take this objection after pleading to the merits.
    I submit that the declaration shows a cause of action. If A makes a promise, by reason whereof he becomes liable to do certain things for B, and which, though often requested, he neglects and refuses to perform, B certainly has a right of action against him. If that be so, the declaration shows a cause of action, and it is no matter that it is not set out in the declaration strictly according to the rules of pleading. The objection cannot be taken on the trial according to the rule laid down in Kean v. Mitchell, 13 Mich., 207.

      F. A. Balcer and 8. Lamed, for defendants in error.
    I. It is well settled that where a declaration omits to state to whom the promise was made, it will be intended that the promise was made to the party from whom the consideration proceeded. — 1 Chitty on Pleading, 802; Com.

      Dig., Action, Assumpsit, A. 5; Rolte v. Sharp; Croke's Charles, 77; Treat v. Scranton, 14. Conn. 445; 7 N.Hamp. 345, 351; 15 N. Hamp. 129.

    II. In the case at bar the declaration shows a consideration from a third person and not from the plaintiffs, and only states a promise to do painting for them without showing a promise to them. It is therefore defective even after verdict. — 1 Chitty on Pleading, 302; Price v. Easton, 4 B. & Ad., 433.

   Graves, J.

This Case having been brought to trial upon the issue of fact and the evidence on both sides having been submitted, the Court instructed the jury that the special counts in the declaration did not allege a cause of action. The case was therefore decided by the Court upon the view taken of the special counts, it appearing to have been admitted that the plaintiff’s cause of action, if any, was based upon them alone. They are framed in special assumpsit and purport to set forth the facts supposed by the pleader to constitute the express contract on which the plaintiffs sued. According to the facts so stated, it appears that upon a consideration moving wholly from one Ecklin, the defendants promised to perform a job of painting for the plaintiffs, which Ecklin had theretofore agreed with the plaintiffs to do for them; but it is not stated to whom this promise of the defendants was made. It is, however, alleged that by means of the premises, promises and undertakings therein before set forth, the defendants became liable to pay to the plaintiffs, &c.

This passage which alleges the liability of the defendants as a consequence of the circumstances set up, could have no effect whatever as a statement of the ground of action. I.t is the bare statement of the plaintiffs’ conclusion of law, and not an allegation of fact, and unless the facts set forth should appear to warrant the conclusion, the deelaration could receive no aid from it. — G01Ü&& Plead, c. 9, § 29; Bailey v. Bussing, 29 Conn., 1 and cases cited; Mc-Cune v. Norwich City Gas Co. 30 Conn., 521; Millard v. Baldwin, 3 Gray, 484; Granger v. Collins, 6 Mees. & Wels. 458.

The declaration was clearly demurrable for not stating to whom the promise was made, but this defect, if the only one, would have been remediable on the trial, or after verdict for the plaintiff. The omission could have been supplied by intendment, and in my opinion that intendment might have been either that the promise was made to the plaintiffs or to Ecklin, as the one or the other harmonized with the real facts, and would support a verdict for the plaintiffs.— Chitty’s Plead. ( Springñeld Bd.) 8S1; laives on Plead, in Assumpsit, pp. 92-98-95, margin, (Story’s Bd.) Whether the facts were consistent with an intendment that the promise was made to the plaintiffs cannot be determined from anything contained within the record. But when we observe that the briefs and arguments from the bar on both sides, proceeded upon the theory that no promise was in fact made to the plaintiffs, and that Ecklin was the actual promisee, it seems inevitable to conclude that the circumstances required that construction, and excluded any other intendment in support of the declaration. It, therefore, appears reasonable, in order to decide the case upon a theory consistent with the facts, as both parties represent them, to regard the special counts as we should if they had actually set forth the contract, sued upon in such form as to constitute Ecklin, from whom the consideration proceeded, the real and sole promisee.

The question is therefore whether these counts thus considered, disclose any cause of action in the plaintiffs, and I am of opinion that they do not. They are in special assumpsit upon the original contract itself, and not upon any right or duty of which that contract alone, or with other facts, would be matter of inducement.

This contract as represented in pleading, appears to have been made exclusively between defendants and Ecklin while the plaintiffs who sue upon it are not shown to have been connected with the consideration or promise, or to have been privy to the transaction. It is true as the declaration shows, that so much of the agreement as related to the undertaking of defendants consisted of an engagement on thfir part, to perform a job which Ecklin had theretofore agreed with the plaintiffs to do for them; but this circumstance could not invest the plaintiffs with the right to recover of defendants in special assumpsit, on the express agreement to which they were strangers, any damages caused by the partial or total failure to perform that agreement. To such damages, the declaration shows no title in the plaintiffs.

Though as between Ecklin and the plaintiffs, the former is stated to have undertaken to perform the work, and as between defendants and Ecklin, the defendants are alleged to have promised to carry out that agreement, and thus making the performance of Ecklin’s part of the first agreement one of the objects of the second agreement, yet no contract relation between the parties to this suit in respect to the last agreement, is shown, which could entitle the plaintiffs to recover damages for its violation by defendants.

The import of the facts as pleaded is that Ecklin, having agreed with the plaintiffs to do for them the job of painting, subsequently employed the defendants to execute the work, whereby the latter became Ecklin’s sub-contractors and not promisors of the plaintiffs.

I think the judgment of the Circuit Court should be affirmed with costs.

■ The other Justices concurred.


text:
    The People ex rel. Ira C. Bristol et al. v. The Board of Supervisors of Ingham County.

      Legislative power: Retrospective Statutes. When the Legislature by a valid exercise of its authority has conferred a power to act, and prescribed the mode of action, a substantial compliance with the mode will be essential to a valid exercise of the power. But if the power be defectively or irregularly exercised, and for that reason invalid, the Legislature may, by subsequent action cure any such defect or irregularity, the requirement of which was originally within its discretion, and if its power over the subject was plenary, its power of confirmation will be absolute.

      Legislative power over highways and state roads. The Legislature have full power within certain constitutional limitations, over the subject of laying out, altering or discontinuing highways; and this power they may exercise directly. Art. A, § 23 of the Constitution, which declares that the Legislature shall not vacate or alter any road laid out by Commissioners oí Highways, is equivalent to the express affirmation of the power to vacate or alter a state road. And this power they may delegate to the Board of Supervisors.

      Construction of Statutes * State roads: Now altered or discontinued: By the Board of Supervisors under Act No. 1U6 of 18h6\ or by the Legislature. % 1 of Act No. US, Laws of 181(6, p. 2U0, ( Comp. L. § 1081,) gives to Boards of Supervisors plenary power over all state roads within their respective counties. Section 2 of the same act ( Comp. L. § 1082) imposes a duty on the Board of Supervisors to act on any petition of twelve freeholders of each township through which any state road may pass, for the laying out, establishing, altering, discontinuing or opening any such road; the action of the Board, however, whether to grant or deny the prayer of the petition, is subject to their discretion.
    The conferring of such power upon the Board of Supervisors does not divest the Legislature of its authority; and therefore, in a case arising under the act of 1846 (No. Ih6) whether the Supervisors acted regularly or not, or whether they had obtained jurisdiction or not, becomes immaterial if tbe Legislature have acted directly on the subject. Act. No. 383, Laws of 1869, (Yol. 3, p. 1082), to legalize the action of the Board of Supervisors in discontinuing a portion of the Lansing, Eaton Rapids and Marshall State Road, is a valid exercise of power. The circumstance that the act was passed after the institution of this suit, while it may show an exercise of power not generally to he commended, is not sufficient to invalidate it.

      Vested rights in highways. The right to pass and repass upon a highway, of persons the value of whose property might be affected by its discontinuance, but who are not owners of the land through which the portion proposed to be discontinued passes, can hardly be looked upon as a vested right of property, which it would not be competent for the Legislature to take away; and, even if they were entitled to compensation, the law makes full provision for ascertaining and adjusting it.

      Heard January 8.

      Decided April 5.

      Certiorari: To Tbe Board of Supervisors of tbe County of Ingbam.
    In 1849, certain Commissioners appointed by the Legislature of 1848, (Laws of 18J¡8, p. %%0), laid out and established a State Road from Marshall, in the County of Calhoun, by the way of Duck Lake and Baton Rapids, (in Baton County), to Lansing, in the County of Ingham. The road passing through the townships of Delhi and Lansing in the last named county.
    The road is alleged to have been opened and worked and used as a public highway for over fifteen years.
    On the loth day of October, 1867, the Board of Supervisors of the County of Ingham, by resolution purported to discontinue so such of this road as runs diagonally across the east half of the northeast quarter of section 32, in the township of Lansing.
    The only petition presented to the Board for this discontinuance was that of eighteen freeholders of the township of Lansing. The Commissioners of Highways, however, certified to the board that this part of the road was unnecessary, and recommended its discontinuance, and that the survey should be so changed as to run around the southwest corner of said eighty acre lot “ on the line of the present highway.”
    The Board did not, before passing the resolution of discontinuance, adopt any resolution authorizing the Commissioners of this or any other township, to cause the line of the state road to be surveyed and located in such township; nor do they appear to have had any report of such survey before them.
    The writ of certiorari was issued from this Court, February 24, 1869, at the instance of the plaintiffs in error, who do not claim to own any land along that part of the road thus discontinued; but they describe themselves as of the County of Ingham, and as owners of property on the line of the road, and having occasion to travel it almost daily. They allege that the road is one on which there is a large amount of travel, and that the discontinuance of this portion of it works a great hardship and inconvenience, imposing unnecessary travel on all persons using the road, and that it materially depreciates the value of the petitioners’ property by depriving them of a direct road to the city of Lansing.
    On the 30th of March, 1869, after the issuing of the writ in this case, the Legislature (Laws of11869, ml. 8 p. 1082), passed the following act: “That the action of the Board of Supervisors, of the County of Ingham, in discontinuing that portion of the Lansing, Eaton Rapids and Marshall State Road, running diagonally across the east half of the northeast quarter of section thirty-two, in the township of Lansing, be and the same is hereby legalized,” and this act is declared to take immediate effect.

      Longyear dc Seager, for relator.
    I. From the record it does not appear that proper petition was ever filed. The statute requires the petition of at least twblve freeholders oí each of the townships through which the road passes. G. L. ml. 1, p. 865, § 2.

    This road passes through nine different townships. The reason for this requirement is obvious. These roads are built under the supervision of the State authorities, for the benefit of no particular locality, but of the State at large.
    If, however, the Court shotild hold that a more limited interpretation is to be given to the language of the statute, and should construe it as requiring the petition to be signed only by freeholders of the townships of that county to whose Board of Supervisors it is presented, the petition in this case is still insufficient. The road passes through two townships in the County of Ingham — Lansing and Delhi — but the petition is signed by the freeholders of Lansing only. We contend therefore, that the Board never had jurisdiction of the subject matter.
    II. There was no reference to, or report by the Commissioners of Highways for the township of Lansing; there was no declaration that the discontinuance was for public
      interest. — Bergen Turnpike Co., v. State, 1 Dutcher, 554; Keenan v. Comr’s Court of Dallas Co., 26 Ala., 568.

    III. But the most important question in the case arises under Act No. 383, Session Laws 1869.

      a. Retrospective statutes have, even when upheld, always been construed by the courts with great strictness. Their operation must not be enlarged by implication or intendment.

      1. But if it be held that the Legislature attempted to confer jurisdiction where none existed at the time of the action complained of, then the statute is clearly an excess of legislative power. Irregularities in proceedings may possibly be cured, as the proceedings would not be void, but only voidable. Failure of jurisdiction cannot be supplied. The rule as adopted we understand to be this: — If the proceeding is voidable merely, a healing statute may render it valid, but if absolutely void, it cannot be affected by* any subsequent legislation . — McDaniel v. Correll, 19 Ill., 226.

      c. Retrospective statutes touching subject matter, cannot affect actions pending at the time of their passage, though statutes applying only to the remedy or to rules of evidence may. — Denny v. Matoon, 2 Allen, 377; Taylor v. Place, 4 R. I. 337; Gaines v. Gaines, 9 B. & M., 300-1-2.

    In any event petitioners should have costs, as at time action was commenced proceedings were irregular. They should not be charged with costs on account of legislation taking away their cause of action.

      H. B. Carpenter and P. A. Baker, for respondents.
    ■ I. The Marshall and Lansing State Road was established under an act of the Legislature, approved April 1, 1848. (S. L. 18J/.8, 220.) The Board of Supervisors have full control over the opening, altering, and discontinuing of State and Territorial roads.— Comp. L. §§ 1081, 1085; Comp. L. §§ 859, 863 j People v. Nankin, 15 Mich., 347.

      We insist that, independent of any petition by freeholders, as provided for tinder sections 860 and 1082, of the Comp. Laws, the Board of Supervisors possessed the power, under § 11, Art. 10 of the Constitution, and §§ 859 and 1081, of the Comp. L., to discontinue on its own motion, any portion of the Marshall and Lansing State Road, lying within the County of Ingham.
    The resolution does not declare that the Board deemed it for the interest of the public to discontinue the road; but that will be presumed.
    II. By the points raised in the petition, it would seem that the counsel for the relators consider that the legality of the action of the Board of Supervisors, depends entirely upon the fact whether or not there was a strict compliance with the provisions of §§ 860 and 1082, of the Compiled Laws.

    But by a careful examination of §§ 860 and 1082, of Comp. L., it is evident that they relate entirely to state roads that have been been authorized by the Legislature, and have not been surveyed and located; it being provided that upon the coming in of the report of the Highway Commissioners, the Board of Supervisors may declare such road or roads as surveyed and located by the Commissioners, duly laid out, established, discontinued, opened> or altered, the word “ discontinued ” being used to give the Board power, not to discontinue a road that has been declared duly laid out and established, but to discontinue the survey and location determined upon by the Highway Commissioners.
    III. In the case at bar, the action of the Board of Supervisors was legalized by the Legislature by an act approved March 30, 1869. — 3d vol. S. L., 1869. 1082.

    We submit: 1st. That this act cures any supposed illegality in the proceedings. 2d. That it may be considered a discontinuance of the road by the Legislature itself. The Constitution does not prevent the Legislature from discontinuing State roads.— Art. 4, § 28.

   Christiancy, J.

If the action of the Board of Supervisors under the then existing law, constituted of itself, or with the aid of the subsequent act of the Legisla!ure of March 30, 1869, (ratifying and legalizing that action ), a valid discontinuance of part of the state road in question, then there is no ground for maintaining this certiorari, and the discontinuance must be affirmed, otherwise reversed.

By the act of May 16, 1846, {Latos of 1846, p. 240) it was enacted Section 1, “That the Board of Supervisors of the several counties within this State are hereby authorized and empowered to cause to be laid out, established, altered, discontinued or opened all State and Territorial Roads, heretofore or now laid out or hereafter to be laid through or within their respective counties, whenever they may deem it for the interest of the public.”

Section 2. Whenever the Board of Supervisors of any county are petitioned to by at least twelve freeholders of each of the townships, through which any such road or roads may pass, they shall upon such petition authorize the Commissioners of Highways of such townships, to cause the line of said road or roads within their respective townships to be surveyed and located therein, and such Commissioners shall report such survey and location to the Board of Supervisors of their county; and upon examination of such survey and report, said Board may declare such road or roads duly laid out, established, discontinued, opened or altered as the case may be; provided that such Board shall deem the laying out, establishing, altering, discontinuing, or opening said road or roads for the interest of the public.”

These two sections (and two subsequent sections not necessary to be here noticed), were inserted and re-enacted verbatim in the act of April 8, 1851, “to define the powers and duties of Supervisors, &c.,” with the omission only of the proviso at the end of the second section.

It is insisted by the plaintiffs in error that the Board could acquire no jurisdiction of the question of discontinuance, without a petition of twelve freeholders of each of the townsnips of Delhi and Lansing, in the County of Ingham, through which the road runs; and this objection is well taken if the Board derive all their authority to act from the second section.

But after a careful examination of the act, I am inclined to think that plenary jurisdiction of the question was conferred upon the Board by the first section of the act; and that under this section they have full power to act, without any petition, upon their own motion, and. without any restriction from the provisions of the second section; that the second section was intended not to confer a poiuer, but to impose the duty of acting when the petition there mentioned should be presented; in other words, that the first section confers the power without any restriction not mentioned in it, while the second imposes a duty under certain circumstances, and provides how that-duty is to be performed. This view may account for the omission in the act of 1851, of the proviso contained in the second section as passed in 1846. The Legislature of 1851 would seem to have rejected the proviso in the second section, with the idea that the power or jurisdiction was conferred by the first section, which already contained a similar provision, which they thought unnecessary to be repeated in the second, as this imposed a duty subject to the jurisdictional limits only of the first section. If this be not the true interpretation — if the Board was intended to possess no. power over the subject except that contained in, and limited by the second section — then the first section can have no effect whatever, and must have been inserted with no intelligible purpose;-^, supposition we are not at liberty to indulge, while the act will admit of any other rational interpretation.

But is objected that, if this construction be correct, it was still necessary that the Board should have found expressly that the discontinuance was for the interest of the public. Whether this would be presumed, or whether its omission would constitute error, it is unnecessary here to decide, since, if the Board had jurisdiction, this omission would at most constitute an error in its exercise, and not a want of jurisdiction. And it is admitted that if the Board had obtained jurisdiction, a mere omission like this or other irregularity, might be cured by the Legislature, and that the act of March 30, 1869, would have this effect.

But I think the same result must follow whether this Board had jurisdiction or not.

The parties who seek to reverse the action of the Board are not the owners of the land through which the discontinued portion of the road passes. They show no rights affected, but such as are common to all other owners of property anywhere along the line of those portions of the road not discontinued; if, in fact, they show any thing more than the mere right of travel, common to all the people of the State. The whole burden of their complaint is that they are deprived of a direct road to the city of Lansing, and as far as we can judge from the case, will be compelled to travel from a quarter to half a mile further in going to and returning from' that place. They complain of this, it is true, as depreciating the value of their property. But this, if there 'be any such damage, being a mere incident arising from the interference with the general public right of travel, common to all the people of this State, can hardly be looked upon as a vested right of property, which it would not be competent for the Legislature to take without compensation; and, if they are entitled to compensation, the fourth section of the original act and the twenty-eighth section of the act of 1851 ( Oomp. L. § 362) make lull provision for obtaining it.

The legislative power is every where recognized as the proper guardian of all such public rights, as the right of travel upon the highways, and , as having as the proper representative of the public, full power • over the whole subject of laying out, opening, altering and discontinuing highways. And this power they may, so far as they have not been restrained by the Constitution, exercise directly without delegating it to any other tribunal.

Our Constitution has expressly taken from the Legislature the power to “vacate or alter any road laid out by the Commissioners of Highways.” ( Art. b, § 28.) But this is equivalent to an express affirmation of the power to vacate or alter a state road like that here in question, laid, out by the Legislature itself. And there is a manifest propriety and consistency in placing the power to discontinue such roads in the same body which exercises the power to lay out.

The Legislature, then, having complete power to discontinue this road without the intervention of any other officers or board, might, if they saw fit to delegate it to such officers or board, have prescribed in advance such terms, conditions, or special proceedings as they chose to prescribe; or they might have conferred the full power upon such board or officers without any restrictions or conditions. In short it would have have been clearly competent to have authorized the Board of Supervisors in advance in this very instance, to have discontinued this road by the very proceeding which the Board in fact adopted. And if they could have authorized this in advance, they can equally ratify and legalize the act when done, and that without any reference to the question, whether the Board had jurisdiction at the time of doing the act.

It is upon this principle alone, that various taxes for township bounties to soldiers could be sustained, based upon votes of the inhabitants or the action of township officers wholly unauthorized by law at the time of such votes or action; as in the case of Crittenden v. Robertson, 13 Mich., 58 ; Miller v. Grandy, id. 540; People v. Supervisor of Blackman, 14 Mich., 336; People v. Supervisor of Onondaga, 16 id., 254. But in the case of all these taxes the Legislature, as in the present case, - might itself have authorized in advance the proceedings subsequently ratified, or might themselves have done the act in question, without any such proceeding. There are cases in which the act in question, is, in its nature, such as cannot be done directly by the Legislature itself,- but is required to be done, or considered and determined upon, by some tribunal or officer, in which it has been properly enough held that such tribunal or officer must have acquired the jurisdiction to act, before it would be competent for the Legislature by a retroactive statute to cure any defects or irregularities in their action.

But these are cases in which the Legislature could not themselves have done the act in question, or could not in advance have given the jurisdiction to do the act, in the manner in which it has been done. If any cases have gone beyond this in requiring jurisdiction for such a purpose, I see no sound principle upon which they can rest. See Cooley Const. Limitations, 881 to 888, and id. 871.

I think, therefore, the act of March 10, 1869, legalizing the action of the Board in discontinuing the part of the road here in question must have the same complete effect in this case as if it had been previously passed, and authorized in advance the very course of action adopted by the Board; and that it renders the action legal and valid.

I think also that this act is in principle equivalent in its operation to an act of the Legislature directly discontinuing the road by their own authority, which they had a clear right to do.

The circumstance that the act was passed after the institution of this suit, and while it was pending, though it may show an exercise of the legislative power not generally to be commended, has not been recognized by the authorities as sufficient to invalidate the act. See the work of my brother Cooley on Const. Limitations, (p. 381), where the authorities are collected.

In any view, therefore, which I have been able to take of this case, the discontinuance must be affirmed. But as the respondents saw fit to. apply to the Legislature, pending this suit, to cure the errors in the proceedings, and we have sustained the proceedings mainly upon this ground, we think the respondents are not entitled to costs.

The other Justices concurred.