author: Montgomery, C. J. Grant, J.

text:
    BOARD OF STATE TAX COMMISSIONERS v. BOARD OF ASSESSORS OF GRAND RAPIDS.
    1. Taxation — Revision of Assessments — State Board — Local Self-Government — Constitutional Law.
    Act No. 154, Pub. Acts 1899, creating a board of State tax com-' missioners, and empowering it to revise the assessments of property in the townships and cities of the State, is not unconstitutional as an invasion of the right of local self-government.
    2. Same — Supervisors—Constitutional Functions.
    The fact that, at the time of the adoption of the Constitution of 1850, assessments were made by township supervisors, and that article 11, § 1, of the Constitution, provides for the annual election in organized townships of one supervisor, etc., whose powers and duties shall be prescribed by law, does not justify the inference that the framers of the Constitution intended to invest such supervisor with the exclusive power of making assessments.
    3. Same — Board or Equalization.
    Act No. 154, Pub. Acts 1899, creating a board 'of State tax commissioners, and giving them supervisory authority in the matter of the assessment of property, is not open to the objection that it deprives the State board of equalization of constitutional powers.
    4. Same — Title or Statute — Germane Provisions — Boards — Acts or Individual Members.
    The title of Act No. 154, Pub. Acts 1899, being an act “for the creation of a board of State tax commissioners, charged with the duty of enforcing this act, and exercising supervisory control over officers administering the general tax laws of the State,” etc., is sufficient to warrant the inclusion of provisions authorizing a single member of the board to act in reviewing assessments and in making additions to the rolls. Grant, J., dissenting.
    5. Same — Cities and Villages — Charter Provisions.
    Act No. 154, 'Pub. Acts 1899, which amends the general tax law (Act- No. 206, Pub. Acts 1893) by creating a board of State tax commissioners, with supervisory authority in the matter of the assessment of property, is applicable to the city of Grand Rapids; the provisions of the Grand Rapids charter being reviewed, and held not to be such as to take the city out of section 107 of the general law, which declares it to be applicable to all cities and villages, except where inconsistent with their respective charters.
    6. Same — Apportionment—Adding Names to Roll.
    Where an apportionment of taxes' among the wards of a city has been made under the provisions of its charter, that apportionment cannot thereafter be disturbed by the board of State tax commissioners, but they still have power to add to the rolls assessments against persons or property omitted therefrom.

      Mandamus by the board of State tax commissioners to compel the board of assessors of the city of Grand Rapids to deliver the assessment rolls of said city to relator for review.
    Submitted June 12, 1900.
    Writ granted June 19, 1900.

      Horace M. Oren, Attorney General (Russell C. Ostrander, of counsel), for relator.

      Lant K. Salsbury, City Attorney (Willard Kingsley, Edgar A. Maher, and Knappen & Kleinhans, of counsel), for-respondent.

      H. M. Campbell, amicus curiae.

   Montgomery, C. J.

This is an application for a mandamus to require the respondent board to deliver the assessment rolls to relator, to enable the board to add to the rolls assessments which have been omitted therefrom, and to amend certain assessments made by the local assessors, pursuant to the provisions of Act No. 154, Pub. Acts 1899. The answer of respondent states three grounds for its refusal to comply with the request made by relator that the books be delivered to it for the purpose stated:

I. That the act is unconstitutional.

2. That the act, if valid, does not apply to Grand B-apids.

3. That the relator was too late in attempting to make an alteration of the rolls.

It is insisted that the act is unconstitutional, for the reason that it interferes with local self-government in cities and townships. The particular provisions which are said to invade the right of local self-government are those empowering the State board to revise the assessment of property of an individual in any township or city in the State. It is- conceded that, under the Constitution of 1835, the State legislature possessed all the legislative powers of the British parliament, and was not limited, either expressly or impliedly, in any such degree as is the legislature under the Constitution of 1850. We think it must be conceded that, in the absence of constitutional limitation, the State may, by its legislature, prescribe the limits of taxation and agencies to be employed. The rule is stated in 2 Dill. Mun. Corp. (4th Ed.) § 737, note 2:

“Subject to constitutional restrictions, it is within the power of the legislature of a State to ascertain the public burdens to be borne, and the persons or classes of persons who ought to bear them; and its determination, within the limits of the constitution, is not judicially reviewable.”

The question recurs, Is there an express or plainly-implied inhibition against the employment of á State agency to supervise assessment rolls? It is manifest that the question is quite different from the one presented when an attempt may be made by the State to impose upon a municipality a burden, or to compel such local body to enter into a contract. No burden is imposed upon the local municipalities by this legislation. No right of local self-government is infringed, unless it be a right to determine, in practice, what property may be assessed on a particular roll. It is clear that the municipality has no right to determine this question in theory; for the State may, within constitutional limits, prescribe what persons and property may be assessable. It gets down, then, to the question whether the exclusive agency for making such assessments is, under our Constitution, some officer of the municipality, whose acts are final and conclusive as well to the State as to the municipality; for it is to be kept in view that, both at the time of the adoption of the Constitution and at the present, the taxes levied for State purposes are based on the same assessment as are those collected for local use. It is urged that as supervisors of townships were, under the law in force at the time of the adoption of the Constitution, authorized to make assessments, and as supervisors were provided for by the Constitution, it must be considered that the intention was to vest in such officers the functions which they were then exercising, and this to the exclusion of a State board. Much of the force of this contention is taken away by the fact that under the tax law in force in 1850 the supervisor was not made the sole assessor, but the electors might elect two assessors, who had co-ordinate power. Section 8, chap. 16, tit. 4, Rev. Stat. 1846. Section 1, art. 11, of the Constitution, provides that:

‘ ‘ There shall be elected annually, bn the first Monday of April, in each organized township, one supervisor, one township clerk, * * * one commissioner of highways, one township treasurer, one school inspector, not exceeding four constables, and one overseer of highways for each highway district, whose powers and duties shall be prescribed by law.”

It is contended that, inasmuch as the duty of making assessments was at this time reposed in tho supervisor, this function cannot now be withholden from him and reposed in the State board. It may be said that the act does not withdraw wholly from the supervisor this duty; it only provides for supervision of his work and correction of errors; and, as already pointed out, the supervisor was not the only person who, under the law as it existed at the time, was authorized to make assessments in townships. Reliance is placed on the two cases of Hubbard v. Township Board of Springwells, 25 Mich. 153, and Davies v. Board of Supr’s of Saginaw Co., 89 Mich. 295 (50 N. W. 862). In the latter case very broad language is used in speaking of the sacredness of the functions exercised by officers when the Constitution was adopted. This language must be understood as applying to the case in hand, which was one in which an attempt had been made to withdraw from the control of the highway commissioner and overseer of highways all control of certain highways in their respective j urisdictions. This was not a modification of their functions; it was an abrogation of them; and not only this, but there was an attempt to impose-a burden upon the locality, — an interference with local self-government. That it was not intended by the decision in the Davies Case to hold that the legislature can in no case modify the functions of township officers as they existed when the Constitution was adopted is evidenced by the fact that Hubbard v. Township Board of Springwells, 25 Mich. 153, was quoted with approval, in which case it was said:

“The Constitution requires an election every year of a township commissioner of highways and of an overseer of highways for every highway district. Their powers were subject to legislative modification, but no legislation could abolish the offices or take away all their functions.”

The real gist of these two decisions is that the provision for the election of these officers indicates that the control of highways was, by clear implication, treated as a matter of local concern, and by as clear implication vested in the officers named. The very title of the offices indicated this. Can it be said that by providing for the election of a supervisor, “whose duties shall be prescribed by law,” there is evidence of a purpose of treating assessments upon which both- local and State taxes are to be assessed as a matter of purely local concern, and that the duties of the supervisor to make such assessment are so far implied by this provision as to be beyond legislative control? There is nothing in the title of the office, as used in the Constitution, to indicate that he is to be given any authority to make assessments; and not only might this right in large part be taken from him by the electors, but he had many additional functions. He was an inspector of elections; he presided at meetings of the township board; he classified justices of the peace; he was a member of the board of supervisors; it was his duty to prosecute for penalties and to. suppress riots. In the exercise of some of these duties he was doubtless distinctively a representative of his township, and there may be duties of that character which cannot constitutionally be withdrawn from him; but we do not deem the making of an assessment roll one of them. It was not distinctively a matter of local concern. The State is concerned in the proper assessment of property, not only as to its own interests as they are affected by the collection or failure to collect the funds necessary to carry on government, but, as the supreme authority in the State, the legislature is required by section 12, art. 14, of the Constitution, to see to it that assessments be made on property at its real value. We think that the authority of the legislature is not so restricted as to preclude the use of a State board in carrying into effect this important constitutional provision. As was said in People, ex rel. Drake, v. Mahaney, 13 Mich. 481:

“ There is nothing in the maxim that taxation and representation go together which requires that the body paying the tax shall alone be consulted in its assessment, and, if there were, we should find it violated at every turn in our system.”

See, also, Youngblood v. Sexton, 32 Mich. 406 (20 Am. Rep. 654).

It is suggested that inasmuch as section 13, art. 14, provides for a State board of equalization, this excludes the right to authorize such a board as the board of State tax commissioners. This is based upon the claim that the board of equalization is in one sense an assessing board; but an examination of this act discloses that none of the duties of the State board of equalization are interfered with in any way.

Another objection to the act is ba'sed on its title. The act is an amendment to the general tax law, and is entitled ‘ ‘ An act to amend ” certain named sections of that law, and to add thereto certain sections providing for “a board of State tax commissioners, charged with the duty of enforcing this act, and exercising supervisory control over officers administering the general tax laws of this State, and reporting to the legislature thereon, and empowered in certain cases to review assessment rolls, and correct the same or add thereto, and to provide for the assessment and taxation of property omitted from the assessment rolls.” There are various provisions of the amendatory act authorizing a single member of the board to act in reviewing assessments, and to make additions to the rolls. It is urged that the portion of the title to the act which provides “for the creation of a board of State tax commissioners, charged with the duty of enforcing this act, and exercising supervisory control over officers administering the general tax laws of this State,” indicates that a State board shall be created, and that the board, as such, shall be charged with the duty mentioned in the title, and that the act is therefore wholly invalid, for the reason that the object is not expressed in the title. We think this objection without force. Had the words of the title quoted been wholly omitted, the title would have been sufficient. On the other hand, had the words quoted constituted the whole of the title, a distribution of certain of the powers of the board among its members would not have been so foreign to the subject mentioned 'in its title as to render the act invalid for this reason.

It is contended that the act does not apply to the city of Grand Rapids. Section 107 of the original act (Act No. 206, Pub. Acts 1893) provides that the act shall be applicable to all cities and villages where not inconsistent with their respective charters. The provisions of the amendatory act are therefore applicable to cities, except so far as it may be inconsistent with charter provisions. It is contended that the provisions of the charter are so inconsistent with the provisions of the amendatory act conferring upon the State board the power of revision of the tax rolls that the latter act should not be held to apply to that city. Under the city charter, the assessments are made by a board of assessors. The common council is made a board of review. The rolls are required to be returned to the council on or before the fourth Monday in April. The council is given 15 days to consider appeals. The council is required to consider the city budget on or before the second Monday in May. The city clerk is required to certify this budget to the city comptroller within 5 days, and it is made his duty to apportion the amount to be raised among the several wards of the city according to the property valuations of the assessment rolls as confirmed by the common council, and certify the apportionment to the city assessors within 5 days thereafter. It is made the duty of the assessors to make copies of the assessment rolls and to spread the taxes. This work is to be completed on or before the 28th day of June in each year. The rolls are then delivered to the comptroller, who affixes his warrant and delivers the rolls to the city treasurer on or before the 1st day of July. It is also made the duty of the city assessors to make copies of the assessment rolls, and deliver them to the city treasurer within the time prescribed by the general laws of the State for the completion of the December tax roll. We think the provisions of the amendatory act are not so far inconsistent with the city charter as to render them wholly inapplicable. It is true that there- comes a time when the apportionment of taxes among the wards of the city cannot be affected by a change in the assessment, and there may be a slight inequality, as between residents of different wards in the city, resulting therefrom; but the rolls may be still corrected as to individual taxpayers, and no injustice be done to them thereby. The equalization between counties presents similar difficulties. In this case the apportionment has in fact been made. It is insisted that the proposed action of the relator is therefore tardy; but, while we are of the opinion that the apportionment among the wards may not be disturbed, we think the State board still has power to add to the rolls assessments against persons omitted therefrom, or property omitted.

For cases upholding similar legislation, attacked on different grounds, see State v. Weyerhauser, 68 Minn. 353 (71 N. W. 265), 72 Minn. 519 (75 N. W. 718), 176 U. S. 550 (20 Sup. Ct. 485).

The writ must issue as prayed.

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

Grant, J.

I concur in the opinion of the Chief Justice, except in one point. Under the title to the act, I do not think it competent to confer upon one member of the board the powers which the title to the act clearly indicates are to be conferred upon the board itself. A board cannot be composed of one individual; neither can it meet in three places at the same time. The title to the act provides alone for a board. It does not even hint that one member of it is to be clothed with the extraordinary power to superintend the assessment rolls, to set them aside and make new ones, and that his action is to be final. A quorum of any board is necessary to enable it to do business and to act. Under section 152 each member of the board in fact constitutes the board, and so it may be in session in three different places at the same time. That each member of the board may make an independent investigation may be safely granted. He may gather information upon which the board may act. So the secretary, under the order of the board, may probably collect information for the benefit of the board. The secretary is required to keep a record of the proceedings of the board. How can he keep the proceedings of the board when it is split up into three, each member acting for himself ? The act is a long one, and there is nothing in the title, in my judgment, to indicate that such an extraordinary power was to be vested in each member, of the board.' Nor is it necessary in order to carry out the purpose of the act. The duties of the board are clearly defined, and the duties imposed upon it can be clearly performed with the power intended to be conferred upon each member eliminated. I think it can safely be said, therefore, that the act may stand notwithstanding the elimination of the power conferred upon the members individually. I cannot yield my assent to the holding that, under a title to create a board, each individual thereof can be clothed with the power to perform all its functions without consultation with, approval, and action of the members as a board.

I regret that there has not been more time to examine the important questions involved, and that the necessity of a speedy determination is considered of such importance as to require haste in reaching a conclusion.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    HODGES v. HODGES.
    Creditor’s Bill — Degree—Appeal.
    A decree for complainant on a creditor’s bill was affirmed.
    Appeal from Kent; Adsit, J.
    Submitted June 5, 1900.
    Decided June 26, 1900.
    Judgment creditor’s bill' by Frank E. Hodges against Lon N. Hodges, Minnie L. Hodges, and Charles M. Watters. From a decree for complainant, defendants appeal.
    Affirmed.

      Maher & Salsbury, for complainant.

      T. F. & W. B. McGarry, for defendants.
   Per Curiam.

The complainant’s bill has a double purpose: First, to reach certain stock in a corporation, alleged to have been conveyed by defendant Lon N. Hodges to his wife in fraud of creditors; and, second, in aid of an execution levied upon three horses which defendants claim to be the property of the wife. We think that the case presents no questions of law requiring discussion, and that the learned circuit judge reached a just conclusion upon the facts. His decree is therefore affirmed, with costs.


author: Grant, J.

text:
    HUNT v. HUNT.
    Wills-t-Estate in Trust — Devise—Instructions—Life Estate— Title in Trustee — Rights of Beneficiary.

       H. devised real estate to trustees, with power to sell and invest the proceeds in bonds and mortgages, or in other ways, as the trustees might deem safe and advisable, and to pay the income therefrom to her two sons, and at their death to transfer the property to their heirs, devisees, or legatees. Held:

    (1) That the permission given by the trustees to the two sons to occupy, use, and enjoy the real estate did not convert the active trust into a passive one.
    (2) That the two sons did not take life estates, and that the title in fee did not vest in them under 3 Comp. Laws 1897, § 8867.
    (3) That the devise created an express trust, which is valid, and that the sons are entitled only to the income therefrom during their lives, with the right to make a testamentary disposition of the principal.
    (4) Those who, upon the contingency of the sons’, dying without children, will become beneficiaries under the will, are entitled to maintain a'suit for the appointment of a trustee, — the original trustees being dead, — and to secure the preservation of the property in accordance with the terms of the devise.
    Appeal from Wayne; Carpenter and Frazer, JJ.
    Submitted June 6, 1900.
    Decided June 26, 1900.
    Bill by Maria T. Hunt and others against Charles J. Hunt and the Union Trust Company, executor of the last will and testament of Hervey C. Parke, deceased, for the appointment of a trustee under the will of Maria E. Hunt, deceased. From a decree terminating the trust, and declaring defendant Hunt to be the owner of the trust property in fee, complainants appeal.
    Reversed.
    Maria E. Hunt died testate. The first clause of her will reads thus:

      “ I do hereby will, devise, and bequeath to my executors, hereinafter named, and to the survivor of them, my farm in the county of Shiawassee and State of Michigan, lying between Corunna and Owosso, in which Mrs. Henry Hunt, widow, has a life estate, in trust, however, for the following purpose, viz.: To sell and dispose of the same as soon as convenient after the death of Mrs. Henry Hunt and the termination of said life estate, and invest the proceeds thereof permanently in bond and mortgage, or in such other ways as may seem to my said executors safe and advisable, and pay over, as fast as received, the income and interest thereof, equally, to my two sons, Charles James Hunt and Joseph Nathan Hunt, share and share alike, as long as they shall live; and, upon the death of either of them, to pay over one-half of the same to his heirs, devisees, or legatees, including principal and interest.”
    Hervey C. Parke and Mary A. Hunt were appointed executors. Miss Hunt did not qualify. Mr. Parke acted as sole executor, closed up the estate, and, as trustee under the clause above named, exchanged the land therein mentioned for real estate in the city of Detroit. Defendant Charles and his brother, Joseph, were permitted by the trustee to enjoy the use and control of this land. Mr. Parke having died, the complainants, who, upon the death of defendant Charles intestate, would, as heirs, become entitled to his property, filed a bill for the appointment of a trustee in place of Mr. Parke. The Union Trust Company filed an answer, admitting the allegations of the bill, and that complainants were entitled to the appointment of a trustee. Defendant Charles answered, admitting the allegations of the bill as to the death of Mrs. Maria E. Hunt, the will, and its execution; the death of Mr. Parke; that at his death “the trusts created by the will were in full force and virtue, and that no trustee had been appointed in his place;” and further alleged that his brother, Joseph, died testate, having disposed of his interest in the land by will, and that he (Charles) is the sole cestui que trust having interest in said land, and that he has the full power and authority to dispose of it. The court entered a decree appointing one Robert M. Chamberlain as trustee. By that decree the trustee, so appointed, was authorized to apply to the court for advice and direction in respect to the execution of said trust. Thereafter defendant Charles filed a petition in the original suit, asking that the trustee (Chamberlain) be summoned to show cause why the prayer of his cross-bill should not be granted, and the trustee directed to convey to him the real estate so held in trust under the will of Mrs. Hunt. Upon that hearing Mr. Chamberlain, the trustee, appeared, and stated to the court that, in his opinion, the trust should be terminated. Charles had made a will devising the property to his wife, who appeared in court, and asked that the decree be made. The court entered a decree terminating the trust, and declaring that defendant Charles was the owner in fee of the land.

      Le Vert Clark, Edwin E. Conely, and Orla B. Taylor, for complainants.

      Charles J. Hunt, in pro. per.

       Head-notes by Grant, J.

   Grant, J.

(after stating the facts). The intention of the testatrix is entirely clear. She devised the real estate to her executors as trustees, with authority to sell, and to invest the proceeds in bond and mortgage, or such other ways as the said trustees should deem safe and advisable, the receipts therefrom to be paid over to her two sons during their lives. She empowered each of them to devise the property, whether it should be realty or personalty, but, should either fail to make a will, then it was to go to the heirs of each one. This intention of the testatrix must be carried out, unless to do so would be in direct violation of law. The trust was an active one, and the trustees and their cestuis que trustent — the two sons of Mrs. Hunt- — could not, by any agreement or action of theirs, change the character of the estate or the fund received therefrom. Cuthbert v. Chauvet, 136 N. Y. 326 (32 N. E. 1088, 18 L. R. A. 745); Rife v. Geyer, 59 Pa. St. 393 (98 Am. Dec. 351). It follows that, even if the trustees permitted Charles and Joseph to occupy, enjoy, and manage the real estate, and receive all the rents and profits thereof, this would not change the active trust into a passive one, and deprive the other .beneficiaries of the interest in the property to which, under certain contingencies, they would become entitled. It was entirely proper for the trustees to permit them the use and benefit of it.

The defendant Charles contends that the title in fee has become vested in him under section 8867, 3 Comp. Laws 1897, which reads as follows:

“When a general and beneficial power to devise the inheritance shall be given to a tenant for life or for years, such tenant shall be deemed to possess an absolute power of disposition, within the meaning and subject to the provisions of the three last preceding sections.”

The three preceding sections have no application to this case, for the reason that no estate for life or years is vested in the defendant Charles.

The rule in Shelley's Case is abolished in this State by section 8810, 3 Comp. Laws 1897, which reads:

“When a remainder shall be limited to the heirs or heirs of the body of a person to whom a life estate in the same premises shall be given, the persons who, on the termination of the life estate, shall be the heirs or heirs of the body of such tenant for life, shall be entitled to take as purchasers, by virtue of the remainder so limited to them.”

Fraser v. Chene, 2 Mich. 81.

Under that section the words “heirs,” “devisees,” and “legatees” in this will are not words of limitation, under the rule in Shelley's Case, but are words of purchase.

The mistake of Charles lies in his assumption that he is a life tenant, with the devise over to his heirs. There is no life estate created by the will. The absolute title is vested in the trustees, and they alone have the right of possession. Upon them alone is the legal duty to pay the taxes, and to protect and care for the property.. The interests of Charles and Joseph as cestuis que trustent have none of the attributes of a life tenancy. The trustees alone are charged with the control of the property, or of the fund which they are authorized to realize from its sale. They cannot surrender the trust to their cestuis que trustent. They can only surrender it to their successors duly appointed by the chancery court. The only right Charles and Joseph can enforce against the trustees is the payment to them of the income and the faithful performance of the trust. This was all the testatrix intended they should have. There is no legal objection to such a trust. Upon Charles and Joseph she conferred the right to direct a testamentary disposition of the property upon the termination of the trust by their deaths. If they chose not to make such disposition, then the trustees under the will were directed to pay the fund or to deed the land over to the heirs o.f each. If there were no trust, and the devise were to Charles and Joseph for life, with the remainder over to their heirs, then undoubtedly they would take an allodial estate, under Fraser v. Chene, supra.

A case nearly parallel to this in its facts is Sise v. Willard, 164 Mass. 48 (41 N. E. 116). In that case complainant had a life interest in the fund, coupled with the power of testamentary disposition; and the court held that she was not entitled to an absolute transfer of the fund to her. See, also, Bowers v. Porter, 4 Pick. 198; Tayloe v. Gould, 10 Barb. 388; Germond v. Jones, 2 Hill, 569.

We have examined the authorities cited by defendant Charles, and find that they are all cases where the courts held that all the beneficial interests were befoi’e the court, and that they had the right, by consent of the trustees, to terminate the trust, and that, under such circumstances, the court would direct a transfer of the fund to the parties entitled to it. The rule is well stated in Sears v. Choate, 146 Mass. 395 (15 N. E. 786, 4 Am. St. Rep. 320):

‘ ‘ There is no doubt of the power and duty of the court to decree the termination of a trust, where all its objects and purposes have been accomplished, where the interests under it have all vested, and where all parties beneficially interested desire its termination. Where property is given to certain persons for their benefit, and in such a manner that no other person has or can have any interest in it, they are, in effect, the absolute owners of it, and it is reasonable and just that they should have the control and disposal of it, unless some good cause appears to the contrary.”

See, also, 2 Beach, Trusts, § 764.

It is, of course, impossible to now determine who will be the heirs of Charles at his death. In the event of his dying without children, his brothers and sisters, and the children of any deceased brother or sister, will be the beneficiaries under the will. • They are therefore entitled to take proceedings to protect the trust fund, to compel the appointment of trustees, and to have them properly execute the trust.

The fact that Charles has made a will is of no significance. If his will were irrevocable, he would have no interest in this suit other than the enforcement of the trust. The only interest he would then have would be the income from the estate. But he may revoke his will at any time, and die intestate. His will might also be held void. In these events, the other beneficiaries would be entitled to the property.

Decree reversed, and petition dismissed, but without costs. •

The other Justices concurred.


text:
    BEATH v. CHAPOTON.
    Promissory Notes — Consideration — Indorsement — Frauds Bona Fide Holder — Burden or Proof — Instructions—Harmless Error.

      1. Plaintiff charged C. with embezzlement, which C. admitted. A settlement was made fixing the amount, -for which C. was to give his promissory notes. He gave one indorsed by W. W. defended upon the ground that C. obtained his indorsement by fraud, of which plaintiff had, or should have had, knowledge. It was not error to instruct the jury that the onus was upon the defendants to establish the fraud.
    2. The court correctly and fairly instructed the jury as to what would constitute plaintiff a bona fide holder. The failure to instruct the jury as to the onus probandi was not error', in the absence of a request to so instruct them.
    3. The onus rested upon the defendants to show that the defalcation was less than the amount agreed upon. The defendants having failed to show how much less it was, the instruction that, the execution of the note being admitted, the burden of proof was upon the defendants to show want of consideration, was harmless error.
    Error to Wayne; Carpenter-, J.
    Submitted June 7, 1900.
    Decided June 26, 1900.

      Assumpsit by Thomas Beath against Louis C. Chapoton and Lewis C. Watson upon a promissory note. From a judgment for plaintiff, defendants bring error.
    Affirmed.

      John Considine, Jr., for appellant Chapoton.

      Alfred Lucking, for appellant Watson.

      Walter Barlow, for appellee.

      Head notes by Grant, J.

   Grant, J.

The facts’of this case are substantially the same as when the case was in this court before. 115 Mich. 506 (73 N. W. 806, 69 Am. St. Rep. 589). The learned circuit judge carefully submitted the case to the jury in accordance with that opinion. It is now, however, claimed that the court erred in instructing the jury: ‘ ‘ The execution of the note is admitted. That establishes a prima facie case, and the plaintiff is entitled to your, verdict for the amount of that note, unless the defendants satisfy you that the note was given without consideration.” Also: “So, I charge you that the burden of proof rests upon the defendants in this case to satisfy you respecting their defense, both as to consideration and as.to fraud.” Counsel insist that this is contrary to the rules approved by this court in Manistee Nat. Bank v. Seymour, 64 Mich. 59, 74 (31 N. W. 140); Township of Grant v. Township of Reno, 114 Mich. 41 (72 N. W. 18), and cases there cited. The above are isolated excerpts from the general charge. It does not appear that' the attention of the court was called to the points now raised.

Upon the question of consideration, the court further instructed the jury:

“Was the note given without consideration? Now, I charge you that if the defendant Chapoton was behind in his accounts with the plaintiff, and if upon a talk with the plaintiff on the 1st of January, 1894, it was agreed between them that the amount of that arrearage was $2,700, and upon this basis a settlement was made between them, that made a sufficient consideration.”

The language complained of as to consideration was an erroneous statement of the law applied to a proper case. The language above quoted fairly and correctly stated the question for the jury to decide. Chapoton denied that he had embezzled any of plaintiff’s money, but admitted that he “had given away goods as little presents from time to time.” How much this amounted to he does not state. He admitted the settlement made with the plaintiff, in which it was agreed that $2,700 was the amount of his defalcation or misappropriation. He gave no evidence to show that it was less. The onus was upon defendants to show that this was not the correct amount. Where a settlement has been made, he who attacks it has the burden of proof. The statement of Chapoton that he agreed to this amount, and gave these notes to avoid a charge of embezzlement, when in fact he had done no wrong, is not credible, especially in view of the fact that he confessed that he had been guilty, not long after his settlement with plaintiff, of the crime of forgery as well as other crimes, and that he had deliberately lied to Watson in regard to the consideration for these notes. Under these circumstances, I do not think that the charge complained of was prejudicial error.

The court correctly instructed the jury that the onus was upon the defendants to show fraud. The fraud practiced upon Watson is clearly proved; for both Watson and Chapoton testified to it, and there was no testimony to the contrary. The court.instructed the jury:

“Did Mr. Beath direct Mr. Chapoton to practice fraud in procuring this signature ? Did he know that fraud was practiced in procuring it? If he did, then he is not a bona fide holder of this paper, and he cannot recover upon it as against Mr. Watson. If, on the other hand, he was ignorant that any fraud had been practiced, he is a bona fide holder of it, and can recover against Mr. Watson, provided there was a consideration, as I have already indicated. In this connection, more to emphasize the different phases of this question of fraud than anything else, I read to you the requests of counsel that have apparently been approved by the Supreme Court. First, defendants’ request: ‘ It is claimed that Mr. Watson was induced to sign the note by fraudulent misrepresentations. If you find that plaintiff knew of such misrepresentations, or liad sufficient knowledge to put him on inquiry as to whether Mr. Watson had been induced to sign by some fraud, then' plaintiff cannot recover.’ ‘It is not necessary that Mr. Beath should have known exactly the fraudulent representations' made by Mr. Chapoton in order to get Mr. Watson to indorse the note, if he (Beath) had sufficient knowledge to put him on inquiry, so that he could have found out that Mr. Watson had been so induced by fraudulent representations; and plaintiff cannot recover if Mr. Beath knew, or had reason to believe, that Chapoton was practicing some deceit on Mr. Watson in order to get him to indorse.’ ”

The question was thus fairly left to the jury to determine whether plaintiff was a bona fide holder. If defendants desired any instructions as to the onus probandi, they should have requested it. This question of the burden of proof is often unduly magnified, and, unless the attention of the court is called to it, judgment should not be reversed because the judge failed to instruct the jury where the burden rests.

Judgment affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    FRAZER, ex rel. DE GAW, v. FITZSIMMONS
    Elections — Ballots — Distribution — Inspector’s Initials — Indorsement in Pencil — Mandatory Provisions.
    Sections 36 and 44 of the Detroit election law, which provide, respectively, that the inspectors of election shall write their initials in ink on each ballot, and that no ballot shall be distributed by any person other than an inspector, are violated where the clerk of a board of inspectors, not himself an inspector, indorses ballots with his initials and distributes them himself, where an inspector indorses ballots with an abbreviation of his given name, instead of with the initials of each of his names, and where indorsements are made with Prussian blue pencil instead of with ink; but whether such provisions are mandatory, so that by their violation the ballots affected are rendered void,— quaere.

    Error to Wayne; Donovan, J.
    Submitted June 7, 1900.
    Decided June 26, 1900.

      Quo warranto proceedings by Allan H. Frazer, prosecuting attorney of Wayne county, on the relation of Fred E. De Gaw, against Thomas W. Fitzsimmons, to fry the title to the office of justice of the peace. From a judgment for respondent, relator brings error.
    Reversed, and judgment of ouster entered.

      John J. Speed [Charles D. Joslyn, of counsel), for appellant.

      Charles W. Casgrain (Jasper C. Gates, of counsel), for appellee.
   Hooker, J.

The relator, De Gaw, instituted quo warranto proceedings to try the right of Fitzsimmons to the office of justice of the peace, to which each claims to have been elected at the election in the fall of 1898 in the city of Detroit. The cause was heard by the circuit judge without a jury, and the court found that the respondent received, and was elected by, a majority of the votes cast, and rendered judgment of not guilty. The relator brought the cause here by writ of error.

At the commencement of the trial, the court, by consent of the parties, appointed auditors, who opened the ballot-boxes of those precincts in which the correctness of the count was questioned. They tabulated the undisputed ballots, and marked and returned to the court such ballots as were questioned, with the result of their count. The questions before us are (1) whether the entire vote in certain precincts should have been excluded; (2) whether certain rejected ballots in different precincts should have been counted for the relator; (3) whether other ballots counted for the respondent should have been rejected. Counsel have also discussed some ballots alleged to have been erroneously counted for relator.

We have inspected the disputed ballots, and the tabulation. which follows will serve to explain the result reached by us in relation to them. The finding of the circuit judge does not give the total vote of each party, or the plurality received by either. These are deducible only from the various findings, and, as we understand them, the court counted for the relator 18,255, and for respondent 18,260, ballots. We are of the opinion that to these should be added some ballots improperly rejected (13 for relator and 7 for the respondent), and there should be deducted some that were improperly counted (viz., 5 for the relator and 12 for the respondent). This is exclusive of the 22 disputed ballots in the Fifth district of the Twelfth ward, 4 of which should be deducted from the respondent, because we are compelled to say, under the decision of Attorney General v. Glaser, 102 Mich. 405 (61 N. W. 648), that they bear distinguishing marks. It is urged with plausibility that the other 18 ballots are subject to the same rule, but we find it unnecessary to determine as to them. As already said, we compile the following table of votes counted, from the finding of the circuit judge:

De Gaw.

Fitssimmons.

Reported by auditors.--!_______________■ 16,786 16,671

Fifth district of Twelfth ward, undisputed------------:__________________ 91 158

Fifth district of Twelfth ward, disputed, but counted.......... 4 18

Ballots initialed in blue pencil, counted 699 906

Bromley ballots, Second district, Fourteenth ward.............. 158 120

Bleil ballots, Second district, Fourteenth ward........... 84 56

Bridgman ballots, Seventh district, Sixth ward---------- 216 180

Theo. ballots__________________ 193 114

Of disputed ballots_________ 24 37

18,255 18,260

We make changes in the above as follows:

De Gaw.

Fitzsimmons.

Disputed ballots erroneously rejected-.. 13 7

Add---------- 18,255 18,260

18,268 18,267

Erroneously counted, deduct.......... 5 12

18,263 18,255

From 22 ballots, Fifth district, Twelfth ward, reject and deduct.............. 4

18,263 18,251

The table shows three classes of ballots that were questioned, of which the relator has a majority, viz., those designated “Bromley,” “Bridgman,” and “Theo.” Messrs. Bromley and Bridgman were clerks of the respective boards of inspectors. Theodore E. Vitalius was an inspector. The ballots were initialed by each of these persons in his respective district, by order of the board of inspectors. Bridgman wrote his own initials, and handed some of the ballots to the voters, and Vitalius wrote “Theo.,” instead of the first letters of each "of his names. The circuit judge found that these things were done in good faith, and that no injury resulted to either candidate through the departure from the letter of the statute. Should these ballots be deducted, it would reduce relator’s aggregate 153 votes. Upon the other hand, there were many ballots initialed in blue pencil.' The court took proof tending to show that the material of which these pencils were made was Prussian blue and clay, and that the former, if dissolved in water, would make ink, and held that this was a substantial compliance with the law. Of these ballots the respondent received a plurality of 20?, and, if thrown out, that number would be deducted from his aggregate. The law requires that ballots shall be initialed by an inspector, and with his own initials, in ink, and be handed to the voters by him. Each party maintains that these provisions are mandatory in part and directory in part. Relator will be benefited by the exclusion of the ballots initialed in blue pencil; respondent, by the exclusion of the others. To our mind, the law is mandatory as to all of these requirements, or directory as to all. At all events, if it is to be held mandatory as to the requirement that only inspectors can handle the ballots, it must be so construed as to the requirement that they be initialed with ink. The blue pencil was not, in effect, ink. Not only does the proof fail to show that clay is an ingredient of the ink made from Prussian blue, but there was no proof that water was used in the application of the initials, and an experiment shows that common India rubber will efface the blue initials upon these ballots. Taking the view that all of these provisions are to be treated alike, it becomes unnecessary to decide whether they are mandatory or not, because the result would be the same if all these votes were excluded as it is under the count made, as the respondent would lose the difference between 207 votes and 153 votes; and, as this would be still further increased if the vote of the Fifth district of the Twelfth ward were to be excluded, u is unnecessary to discuss the questions relating to those votes.

We must therefore reverse the judgment of the circuit court, and, as the finding is conclusive of the questions involved, we may properly enter a judgment of ouster here. It will be so ordered, with costs of both courts to the relator.

The other Justices concurred.


text:
    PEOPLE v. O’HARE.
    1. Criminal Law — Trial—Remarks of Court — Strictures on Counsel — Failure to Produce Witness.
    For the court on the trial of a criminal cause to make a partisan argument to the jury upon the failure of respondent’s counsel to produce as a witness a certain person who figures in the defense, and to characterise the omission as part of a scheme to fabricate a defense and sustain it by perjury, “a practice of which no lawyer fit to practice law would be guilty,” is reversible error.
    2. Same — Evidence—Witnesses—Reputation.
    On a prosecution for burglary, it was error to permit the people to attack the reputation of a witness for respondent by showing that she was known to the police as a street-walker, and that she associated with another woman of bad repute.
    3. Same — Previous Arrest — Collateral Issue.
    On a prosecution for burglary, it was error to admit evidence that one not a witness, but supposed to be an accomplice, had been arrested on another occasion.

      Error to Bay; Maxwell, J.
    Submitted June 12, 1900.
    Decided June 26, 1900.
    John O’Hare was convicted of burglary, and sentenced to imprisonment for four years in the State prison at Jackson.
    Reversed.

      John E. Simonson, for appellant.

      Edioard E. Anneke, Prosecuting Attorney, and Lewis P. Coumans, Assistant Prosecuting Attorney, for the people.
   Hooker, J.

The defendant was convicted of burglary, upon a charge of breaking and entering a farmer’s barn and stealing a double harness. The outline of the case for the prosecution is that the barn door was found open in the morning, and the harness gone. The yard gate was open, and tracks showing that a buggy had stood near by, and afterwards gone south, were distinguishable. The defendant and his companions were shown to have hired a buggy in Bay City that night, about 12 midnight. The harness was found in possession of one Sackles, south of Saginaw, the next morning. He had traded a horse for it, the morning that it was missed, to Burkhardt and Wines, the men who were with defendant in the buggy. The defendant claimed that he had a slight acquaintance with one Martin, and that, a few days before the harness was stolen, he met Martin, who told him that he had a harness to sell. Defendant had no use for the harness, and the subject dropped. On July 9th defendant met Wines, who told him of a man who would trade a horse for a harness, and defendant mentioned his talk with Martin. On July 12th defendant again saw Martin, who agreed to bring the harness to Burkhardt’s barber shop for inspection that evening, which he did about 10 o’clock. Defendant paid Martin $10 for it, $3 of which he borrowed from Burkhardt, and $2 from a young woman named Hattie Smith. The horse and buggy were then hired, and used for the purpose of getting and taking the harness to Saginaw county, where it was traded for the horse. Wines was taken because he alone knew where to find the man with whom they were to trade. This horse was afterwards sold to Boutell.

Burkhardt, who had been previously convicted, was sworn, and testified to the facts claimed by the defense. Martin was not called by the defense. During the examination of Burkhardt, the following colloquy occurred:

The Court: You have had the services of the sheriff of the county at your disposal. Why haven’t you brought this Mr. Martin here ?

“Mr. Simonson: We have endeavored to get Mr. Martin.

The Court: Why haven’t you taken a subpoena for him?

“Mr. Simonson: We sent a man yesterday to try to find out where this Mr. Martin was, in order to get a subpoena. We took the— '

“The Court: You haven’t sent the sheriff to look for him at all. I have been so advised, and I think there is an order in the case that the witnesses be subpoenaed at the expense of the county.

“Mr. Simonson: We take an exception to the remarks of the court.

The Court: It looks to me like an imposition on the court.

“Mr. Simonson: We take an exception to the remarks of the court.

The Court: Take all the exceptions you are a mind to. Good faith in an attorney must be exacted in every court of justice. I cannot allow you to pick up or look after a straw man here, in order to tempt people to commit perjury.

“Mr. Simonson: We take an exception to the remarks of the court.

“The Court: If there was any such man as Mr. Martin, he can be produced or accounted for. You have had the assistance of the whole State of Michigan at your back to do it, without a cent of costs.

“Mr. Simonson: We take an exception to the remarks of the court.

“The Court: It seems to me that you are trifling with the court, and occupying its time sillily and foolishly. Not only that, but you are encouraging the commission of a crime. If there is no such man as Martin, then the testimony is all false.

“Mr. Simonson: We take an exception to the remarks of the court. Shall I go on with the witness ?

“The Court: You can do whatever you are a mind to.

“Q. You came back after you took Miss Smith home, and you found Mr. Daniels and O’Hare in front of your place ?

“A. Yes.

“Q. What did you do then, and what conversation did you have ?

“A. Mr. Daniels got up and leaned against a pole, and I sat down, and we were talking, and I says: ‘I believe Mr. Vanderbilt has an opening at his place, and a dance. I ought to go out, as he comes to my place, but I guess I won’t go; it will be too far to walk back.’

“The Court: Where does Martin live?

“A. I couldn’t tell you. It seems to me that I saw the man once or twice previous to that.

“The Court: You told us on the other trial that he lived up at Portsmouth.

“A. That is what I learned from a man in the jail.

“The Court: You haven’t taken any subpoena for him or sent the sheriff after him ?

“A. I mentioned it to the sheriff.

“Q. You mentioned it to your attorney?

“A. Yes. That day when he came in I told Mr. Anneke about it. Mr. Anneke was the first one I mentioned it to.

“Q. Why didn’t Mr. Simonson send for him?

“A. I never spoke to Mr. Simonson.

“Q. You knew he was a necessary and material witness?

“A. Certainly, we would like'to have him.

“'The Court: But you made no effort to get him?

“A. I couldn’t do anything. '

“The Court: You could ask the sheriff.

‘A. I did tell the sheriff over there.

“The Court: Instead of getting a man that you thought, if he existed and would tell the truth, could help you out of this scrape, you saw fit, both of you, to ransack every crib and bad place there is here to get some witness that would tell a lie. It seems to me that has been the practice, instead of the legitimate practice of the law.

“Mr. Simonson: We take exception to the remarks of the court.

“The Court: I don’t think a lawyer is fit to practice law that would be guilty of such a practice as that.

“Mr. Simonson: We take an exception to the remark of the court.

“The Court: You can have no exception here.

“Mr. Simonson: Shall I proceed with the witness?

The Court: There is an order of the court assigning you to defend this man, which directed the sheriff to subpoena all of his witnesses at the expense of the county.

'Mr. Simonson: How could I know what Mr. Martin—

The Court: You knew the importance of Mr. Martin, and that, of all things in the world, he ought to be produced.

“Mr. Simonson: As soon as I was appointed I directed a man to go up there, and to go to every Martin family up there, and find out who he was.

‘ ‘ The Court: Whom did you send ?

“Mr. Simonson: John L. Averill.

The Court: Why didn’t you send the sheriff ?

'Mr. Simonson: How could the sheriff go and subpoena a man until he knew whom to subpoena and where he was ? Suppose I say, ‘ Go and get Mr. Martin.’ What would he tell me? He would say, ‘Who is Mr. Martin, and where does he live ? ’

“The Court: I cannot have this class of work done here, and I won’t have it. ”

In his charge the court alluded to the subject as follows:

“Now, under this state of facts, as to that man Martin, I think the defendant was bound to produce him, or account for him, if he could. You have heard the testimony of the defendant, and of this man Horn, and of this girl, and of his accomplice, Burkhardt. Horn testified that he saw a man come into the Grand Central Hotel and speak to O’Hare, and that finally he went out with him to the corner; looked at the man and the harness; he had a very small horse. Both Burkhardt and O’Hare testify about O’Hare borrowing the money,— that he had $5, Burkhardt only had $3, and that they borrowed these $2 of the girl to make up the $10 that he wanted. Now, gentlemen, if a $38 harness was offered in the night for sale for $10, a prudent man ought to be on his guard about buying it. He ought to be able to show, if he bought it, that the transaction was honest and free from suspicion. You have heard the testimony of both Burkhardt and the defendant here, and you must be aware of the terrible strain and temptation they are under to controvert this evidence by false testimony, if false testimony will do them any good. As to the relations between the girl and this Burkhardt, she testifies that he was her lover, and they were engaged to be married. A wife has often as much interest for her husband as the husband himself can have. But now I reach a branch of the case which I think I ought to fully submit to you. Last Monday, I think it was, Mr. O’Hare applied to the court to assign him counsel and means to procure his witnesses with. An order was made assigning Mr. Simonson to aid him. A similar order was made that the sheriff summon, at the expense of Bay county, all the witnesses that he might need in his defense. The sheriff is an officer of the court, over which the court has absolute control about the service of papers, and the court can punish him for contempt for any'violation or lack of duty. Simply giving the name of a witness to the sheriff was all that was needed in order to secure his attendance here if he could be found. This court does not recognize any constable at all, except as the sheriff may employ him to preserve order in the court-room. I cannot take his return as any evidence, as I do that of the sheriff or deputy sheriff. He has no business to perform any service of this court except the solitary duty of attending court when requested by the sheriff. Mr. Averill, a constable, an officer not recognized by the circuit court of this county, is sent out by Mr. Simonson to find this man. He starts out at 3 o’clock, and is back that night. He takes a city directory and looks over four or five names, and he goes out to look for Martin. If the story was true that such a man existed, did he or his attorney avail themselves of what the law had placed in their hands in order to get him here? If it is not so, it casts a very black shadow over this defense. You may look at it as part of a scheme to fabricate a defense, to justify it by perjury, and force it through by an immense number of witnesses swearing falsely.”

The witness Hattie Smith corroborated Burkhardt. She was interrogated upon cross-examination as to her relations with Burkhardt, and denied any impropriety in them. Afterwards an officer was permitted to testify that she was a street-walker, and had such a reputation among the police officers, and that she associated and roomed with another woman, not a witness, of bad repute. Wines was not a witness, yet a witness was permitted to testify that on one occasion he knew of his being arrested.

The course taken by the circuit judge cannot be approved. His strictures upon counsel were excessive, and it was not for him to make a partisan argument upon the failure of the defendant to produce Martin. Again, it was error to admit proof of Hattie Smith’s reputation, and of Wines’ arrest.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


text:
    BEUTEL v. BAY CIRCUIT JUDGE.
    Certiorari — Vacation of Street — Review of Proceedings— Unreasonable Delay.

       Proceedings were taken to vacate a portion of a city plat which included a street. The relator, the owner of land in the vicinity, eight months afterwards filed a petition for the writ of certiorari to review those proceedings. The petitioner in the vacation proceedings had meanwhile invested a large amount of money in buildings upon the vacated street. Held, that relator was barred by laches to contest the validity of the proceedings.

      Certiorari by Robert Beutel to review the action of Andrew C. Maxwell, circuit judge of Bay county, in vacating a portion of a street.
    Submitted June 13, 1900.
    Writ dismissed June 26, 1900.
    This case is brought to this court by the writ of certiorari to review the proceedings of the circuit court for the county of Bay, vacating a portion of a plat known as “F. W. Wheeler & Company’s Third Addition to West Bay City,” whereby part of Washington street was vacated. The petition was made by the West Bay City Sugar Company. The order vacating the plat was made June 6, 1899. On July 10, 1899, relator filed a bill of complaint in the circuit court for the county of Bay, in chancery, praying an injunction against said company from closing said street. An injunction was granted unless defendant should execute a bond conditioned to pay all damages which the complainant might sustain, which bond was duly filed, and approved by the circuit judge. This is shown by the records of the court, attached to the return of the respondent. One of the counsel for relator filed an affidavit on the 23d of April, 1900, setting forth that he left the bill of complaint with the circuit judge, for him to examine; that the motion for granting an injunction came on to be heard on August 7th, and the injunction was refused; that said proceedings were thereupon abandoned, and the bill of complaint never in fact filed. To this bill of complaint an answer was filed October 6, 1899. It appears that, immediately upon giving the bond as required by the order of the circuit judge, the sugar company took possession of the vacated street, erected buildings thereon, and has expended a large amount of money in its plant. Relator then rested until he filed this petition for the writ of certiorari, March 27, 1900, although the jurat to the petition is dated January 24th preceding.

      Simonson, Gillett & Courtright, for relator.

      Lee E. Joslyn, for respondent.

       Head-note by Grant, J.

   Grant, J.

(after stating the facts). The granting of the writ of certiorari is discretionary, and where one has rested upon his rights for an unreasonable length of time, while the other party, in reliance upon the regularity of the proceedings, has made large improvements, it will not be granted. This court has refused the writ in other cases where the delay was not so long as in this case. Baudistel v. Recorder, etc., of City of Jackson, 110 Mich. 357 (68 N. W. 292); City of Detroit v. Murphy, 95 Mich. 531 (55 N. W. 441), and authorities cited. If relator abandoned his suit in chancery, he should have moved promptly to review the proceedings in some other manner, if he desired to contest their legality. If that suit has not been abandoned, but is still pending, he is in position to test the legality of the proceedings, and has no need to invoke the discretionary writ of certiorari.

The writ is dismissed, with costs.

The other Justices concurred.


author: Montgomery, C. J.

text:
    McDERMOTT v. SQUIER.
    Corporations — Stock Subscriptions — Bonus—Application to Subscriptions — Instructions.
    Where, in. an action by a receiver of a corporation for unpaid stock subscriptions, the evidence tended to show that, before the organization was perfected, the stockholders agreed that a bonus promised by citizens as an inducement and aid to the enterprise should be divided and applied on the stock subscriptions, and it was so credited, making up the balance of the subscriptions, it was not error to charge that, though the bonus could not be so divided if it was an asset of the corporation, yet if it was raised to promote and carry on the enterprise, and actually went into the corporation, which had its benefits, and it was not the property of the corporation, which was not then in existence, there could be no recovery.
    Error to Newaygo; Palmer, J.
    Submitted June 18, 1900.
    Decided June 26, 1900.

      Assumpsit by James E. McDermott, receiver of the Hillsborough Manufacturing Company, against Andrew T. Squier, upon a subscription to the capital stock of said corporation. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Newnham & Fyfe, for appellant.

      W. D. Fuller, for appellee.
   Montgomery, C. J.

Plaintiff, as receiver of the Hills-borough Manufacturing Company, an Ohio corporation, sues to recover $500 claimed to be due from defendant as unpaid subscription to the capital stock of the corporation. The case lies within a narrow compass. Defendant subscribed for $4,000 of the stock of the corporation, and has paid in cash and expenses incurred on behalf of the corporation $3,500. Whether he has paid the remaining $500 depends upon whether a certain “bonus” contributed by citizens of Hillsborough is to be treated as a contribution to the corporation as such or as a donation to the promoters. It appears that, in the spring of 1890, Edward P. Chamberlain owned certain machinery then at Grand Rapids, Mich., valued at $7,000, and he, in company with defendant, visited Hillsborough, Ohio, with a view to starting a factory at that place, and decided to do so if the citizens there would give certain financial aid to the enterprise. Soon after, information came to the defendant that the proposed aid ($1,500) had been subscribed. Up to this time no corporation had been formed or agreed upon. Defendant and Mr. Chamberlain were the only persons concerned in the enterprise. At this stage it was decided to form a corporation. It was at first the purpose to divide the stock equally between defendant and Chamberlain, defendant putting in $7,000, and Chamberlain contributing his machinery at the same figures. It became necessary to have more than two stockholders, and it was proposed to have subscriptions for single shares of stock by citizens of Hillsborough, who should become directors. On approaching persons to take stock, it transpired that those who were sought for preferred to take a larger interest, and it was finally agreed that defendan should subscribe for 160 shares, amounting to $4,000, Chamberlain for 280 shares, S. P. Scott for 70 shares, O. S. Price for 45 shares, and L. S. Smith for 45 shares, each, of which the par value was $25. The whole case turns upon the agreement made at this time. Defendant’s testimony tended to show that, before the organization was perfected, it was agreed between Chamberlain and the other stockholders that the “bonus” which had been promised to Chamberlain and defendant should be divided as follows: $500 should be applied on defendant’s stock subscription, $500 on the stock subscriptions of Scott, Price, and Smith, and the remainder should be used by Chamberlain to transport the machinery which he was to furnish from Grand Rapids to Hillsborough. When the bonus money was turned over to the company, $1,000 of it was credited to capital stock, and this, with the other payments made by the other stockholders, made up the entire subscribed stock. The circuit judge charged:

“Was this amount of money subscribed by the citizens of Hillsborough, at the time it was divided by these men, a fund to be used for the purpose of making the enterprise talked of a success, or was it subscribed and used for the purpose of organizing this corporation, as an asset of the corporation? If it was an asset of the corporation, as I have stated, it cannot be so divided, and Mr. Squier would be liable for $500. If, at the time this agreement was made, — this meeting was had, — it was talked over that this money which had been raised by the citizens for the purpose of carrying on this enterprise should be divided by these people who had united their energies and funds for the purpose of carrying on and promoting this enterprise ; that the money actually went into the corporation; that they had the benefit of it; and that at that time it was not the property of the corporation; that no corporation was then organized and in existence, — if this be true, then your verdict should be, ‘ No cause for action.’ ”

■ It is contended that the agreement that the individual stockholders should have the benefit of» the bonus subscribed by citizens of Hillsborough was not binding upon the corporation; that it was, in effect, an agreement by the promoters that defendant and the other stockholders should not be called upon to pay the full subscription price. We think the contention of plaintiff is based upon a misapprehension of the relation of the parties to this fund. When the agreement was made, it is quite true that it was not competent to bind the corporation, for the reason that no corporation existed, and might never exist; but it is equally true, for similar reasons, that the corporation had no interest in this bonus money, and might never have. The proposition was made to Chamberlain and defendant. They saw fit to organize a corporation as an instrumentality in establishing the industry for which the bonus was to be given. All the parties concerned in that organization consented to the application of this money towards payment of stock subscriptions. Who had any right to complain of the arrangement ? Certainly not the stockholders, who assented to it. The public and subsequent creditors are without just ground for complaint for applying the bonus cash payments on stock subscriptions. The full price of stock has been actually paid in.

The charge correctly stated the law of the case, and no error was committed in admitting the defense.

Judgment affirmed, with costs.

The other Justices concurred.


author: Grant, J. Montgomery, C. J. Moore, J.

text:
    PEOPLE v. MORGAN.
    Homicide — Motive—Inference from Proofs — Insurance.
    On. a prosecution for homicide, where the people claimed that respondent shot at deceased, mistaking him in the darkness for the husband of a woman on whose farm respondent was employed, and whose separation from the husband had been effected after rumors of improper relations with respondent, the court was in error in admitting evidence that the husband’s life was insured infavor of the wife for §2,000, upon the theory that the jury might, in the absence of direct testimony, be warranted in drawing an inference — from testimony that the wife knew of the insurance, .and that respondent had once jocularly observed that any one who would get rid of the husband would get a thousand dollars — that respondent also knew of the insurance, and that it furnished an inducement for the commission of the crime. Montgomery, C. J., and Hooker, J.', dissenting.
    Exceptions before judgment from Cheboygan; Adams, J.
    Submitted May 1, 1900.
    Decided July 3, 1900.
    Prank Morgan was convicted of murder in the second degree.
    Reversed;
    Respondent was charged with the murder of one Don Gillis on the 29th day of April. He was convicted of murder in the second degree. He was at work as a farm laborer for one Mrs. Bowen. Her husband had left her, and was living in a house upon an adjoining 40 acres. Mrs. Bowen controlled the house and farm where she lived. About 11 o’clock at night Mrs. Bowen’s dogs barked in such a manner as to lead her and the respondent to believe that somebody was prowling around the house. She told the respondent to take his revolver, 'go out upon the stoop, and fire it, to scare the person or persons away. The night was dark and stormy. Respondent went out upon the stoop, and saw, by a flash of lightning, an object three or four rods from the house, in a stooping posture. He cried out, “Who is there?” and, receiving no response, fired three shots. The next morning the dead body of Gillis was found in the yard. Gillis had climbed over the fence, as was shown by his tracks, and was approaching the house.; but for what purpose does not appear, as it was not shown that he had had any difficulty with the respondent or any one in the house. The people claimed that respondent shot and killed Gillis, believing the person to be Mr. Bowen, Mrs. Bowen’s husband.
    It is urged that respondent had been the cause of Mr. Bowen’s separation from his wife, that the relations between her and respondent were criminal, that there had been trouble between Bowen and respondent, and that therefore respondent shot at the person that night, believing him to be Bowen. It was also claimed that there was an insurance policy upon the life of Mr. Bowen, in favor of his wife, and that the purpose of Mrs. Bowen and respondent was to obtain this insurance. There was evidence from the people’s witnesses that persons had been prowling around the house before, and that threats had been made to lynch respondent, and that he purchased a revolver for the purpose of defending himself against Bowen. Mr. and Mrs. Bowen had five children, all of whom were then at her home; the oldest one being 15 years of age.
    There is no evidence that respondent knew of the insurance policy. Policies had been taken out by Mr. and Mrs. Bowen in the Maccabees, each in favor of the other. His, for her benefit, was for $2,000, and hers, for his benefit, was for $1,000. Mr. Bowen left her the 1st of January previous, and took his policy with him. The continuance of the policy depended upon whether he kept up his assessments. The record is barren of any proof of criminal intimacy between respondent and Mrs. Bowen. Mr. Bowen was a witness, a'nd gave no reason for leaving her, or for having any suspicion against respondent or his wife. There is testimony that he was jealous of her, and did not want respondent to work upon the farm. She went to the prosecuting attorney, Mr. Frost, and stated the facts to him; saying that her husband was jealous of respondent, but it would be the same if any other man were to work for her. She was a witness for the prosecution, and her testimony in her cross-examination upon this point is as follows:
    “I heard rumors of personal violence against Morgan or myself while he was living at my place. I did not communicate any of them to Mr. Morgan. I had no talk in particular about his leaving my place. I remember having a conversation with the prosecuting attorney of this county with reference to my keeping a hired man; I believe, in March. In that conversation I stated to him some objections that I had heard with reference to my having an employé. He told me that if the man did his work properly, and I paid him his wages, to keep him, by all means. I also showed him a letter I had from my husband concerning the matter, and he said it was because he was evidently jealous, and it made no matter what man it was; it would be the same. And, acting upon that suggestion, I still retained Mr. Morgan in my employ.”
    On her redirect examination she testified:
    “ I told you there had been threats as to both our lives, and you said that would not make any difference; they were just trying to frighten me, and would not dare to take the law in their own hands.”
    This statement is not denied, and comes from the peo- ' pie’s own witness.
    Respondent testified that he once met Mr." Bowen upon the highway, and “Bowen took off his coat, vest, and cap, and said he was going to whip me.” He told him he did not want to have any trouble with him, and that he had always thought a good deal of him, and they talked a few minutes, when Bowen put on his clothes, handed respondent a cigar, took one himself, and they both lighted them with one match. This is not contradicted by Bowen, and is the sole evidence of any difficulty between Bowen and respondent. One Hanske testified that one evening respondent, when he was intoxicated, said, in the presence of several others, “Any man would get a thousand dollars that would get rid of Bowen.” The witness said he laughed, and did not think respondent meant it. . One other witness who was present testified to this conversation, but his version differs very materially from that given by Hanske. This is the only testimony tending to show any malice against Bowen, or any intent to do him harm. But this is no proof that respondent had reason to believe that the person he saw that night was Bowen. It was essential for the people'to prove this. There is an entire absence of any such proof.

      Gross & Roe and Halstead & Halstead, for appellant.

      George JE. Frost, Prosecuting Attorney (F. D. Sprague, of counsel), for the people.
   Grant, J.

(after stating the facts). 1. I can find no evidence upon this record from which it can reasonably be inferred that the respondent was guilty of murder. Unless the people produced evidence from which it could ■ fairly be inferred that respondent shot, believing that the person in the yard was Bowen, and intended to kill him, the conviction is wrong. This is the claim of the people, and the sole theory on which they asked conviction. There is, in my judgment, no such testimony. The court should, therefore, as requested, have directed the jury to acquit him of the crime of murder.

2. It was error to permit evidence that Mr. Bowen’s life was insured. The prosecuting attorney stated that he would connect this evidence with what the prisoner had stated,- — that “there was a thousand dollars in it for any one who would do away with Dave Bowen.” The court admitted it, stating that, if the connection was not made, it would certainly be immaterial. The prosecution did not show that respondent had any knowledge whatever of this insurance; yet it is evident that this was urged as one of the reasons for his conviction. It is especially important in criminal cases that the proper order for the admission of testimony be observed. Knowledge of this insurance on the part of the respondent should have been shown before introducing evidence of the fact of insurance.

Conviction reversed, and new trial ordered.

Long, J., concurred with Grant, J.

Montgomery, C. J.

I cannot assent to the conclusion of my Brother Grant that there was no evidence in this case justifying a verdict of murder in the second degree. If the case of the people rested wholly on the testimony of Mrs. Bowen, the conclusion might be justified; but it does not. The people called witnesses who testified, in substance, to a statement of respondent that it would be worth $1,000 to one who would make way with Bowen. There was also testimony to the effect that, at some time before he took his residence at Mrs. Bowen’s the last time, he attempted to borrow a revolver, saying he was going over to Bowen’s, and that he had heard that Dave (Bowen) was prepared for him, and he wanted' to take it in case of any trouble; he wanted to defend himself. He was advised by the witness to stay away from Bowen’s if Mr. Bowen did not want him there. Another witness testified that he had a conversation with respondent in regard to the talk of lynching him, and that respondent said that there was some jealousy, and, when asked who it was, replied that it was Bowen, and applied an offensive epithet to Bowen.

In the face of this evidence, it seems to me that there was ample basis for the jury to find malice towards Bowen. When we consider, in connection with this fact, that respondent was living at Bowen’s house, which Bowen had left because of his jealousy, and that respondent understood that it was Bowen who threatened him with mob law, is not the inference justifiable that on the fatal night, when respondent claims to have thought that some person bent on doing injury to himself or Mrs. Bowen had invaded the premises, he believed that person to be Bowen, and acted accordingly ? I think the answer is obvious; and I also think that, if he intentionally shot at this man, the intent to kill might be inferred from the use of a deadly weapon. That he did shoot to hit is testified to by the witness Bell, who states that the respondent told him that he fired at a man; that he fired three shots, but did not know which took effect.

I am also of the opinion that there was testimony tending to show improper relations between the respondent and Mrs. Bowen. True, she testified that there were no such relations, but she was a necessary witness to the res gestee, and cannot conclude the people. There was testimony that respondent was charged with such relations, and did not deny it, but gave an evasive answer. There was testimony that Mrs. Bowen visited him at a lumber camp where he was at work at $26 per month, and that he shortly after returned to her home to work at $20 per month, and continued there, although he knew of the husband’s jealousy, and that he attempted to hire another to make way with Bowen. These facts, I think, have some tendency to show improper relations.

I have some doubt upon the question relating to the life insurance. The record discloses that Mrs. Bowen knew of the insurance. There is no direct testimony to the effect that respondent did, but I think the jury might be permitted to infer such knowledge from the other circumstances of the case. If it is found that he was paramour to Mrs. Bowen, this fact, taken together with his offer of $1,000 to any one who would make way with Bowen, might justify an inference of knowledge.

Complaint is made that the court did not, in the charge, define involuntary manslaughter. But the court did what was more favorable to respondent. At the request of respondent’s counsel he charged that :

“If you have any reasonable doubt as to his intention, or the killing being accidental, or as to whether he intended to aim in the direction of any one, or whether he was reckless or heedless or not, the respondent is entitled to the benefit of the doubt, and you must acquit.”

In my opinion, no prejudicial error was committed by the circuit judge, and the exceptions should be overruled.

Hooker, J., concurred with Montgomery, C. J.

Moore, J.

I cannot agree with Justice Grant that a verdict of acquittal should have been directed, nor can I agree with Justice Montgomery that the case should be affirmed. The record is barren of any testimony from which the inference can be fairly drawn that respondent had knowledge that Mr. Bowen had a life-insurance policy which was payable to Mrs. Bowen. It is the testimony of Mr. Bowen that when he left Mrs. Bowen he took this policy with him, and that he could not say that his wife knew whether the policy was in force since then or not. There is no testimony that the respondent ever knew of the existence of this policy. I agree with the opinion of Justice Grant as to the incompetency of the testimony in relation to the life insurance, and, for this error, think the conviction should be, reversed, and a new trial granted.