text:
    MILLS v. STATE BOARD OF OSTEOPATHIC REGISTRATION AND EXAMINATION.
    Statutes — Approval—Operation—Practice op Osteopathy. Act No. 162, Pub. Acts 1903, providing for the examination and registration of osteopathic practitioners, was approved May-28, 1903, and took effect September 17th thereafter. Held, that the language “at the time of the passage of this act,” contained therein, referred to the date when the act took effect, and not to the date of approval. »

      Mandamus by Dav,id A. Mills to compel the State Board of Osteopathic Registration and Examination to issue a certificate entitling relator to practice osteopathy.
    Submitted January 5, 1904.
    (Calendar No. 20,319.)
    Writ granted January 26, 1904.

      Cavanaugh & Wedemeyer, for relator.

      Cahill & Wood, for respondent.
   Carpenter, J.

Respondent board was created under Act No. 163 of the Public Acts of 1903. This act was approved May 38, 1903, and took effect September 17, 1903. Section 3 of said act reads:

‘c Any person, before engaging in the practice of osteopathy in this State, shall, upon the payment of a fee of twenty-five dollars, make application for a certificate to practice osteopathy to the Board of Osteopathic Registration and Examination, on a form prescribed. * * * If the facts thus set forth * * * shall meet the requirements of the board, •* * * then the board shall require the applicant to submit to an examination as to his qualifications. * * * If such an examination be passed in a manner satisfactory to the board, then the board shall issue its certificate granting him the right to practice osteopathy in the State of Michigan. * * * Any person engaged in the practice of osteopathy in this State at the time of the passage of this act, who holds a diploma from a regular college of osteopathy, as determined by the board, and who makes application to the State Board of Osteopathic Registration and Examination before January 1, 1904, upon the payment of a fee of five dollars, shall receive a certificate from the board without examination, which, when filed with the county clerk in the county where he resides, shall authorize the holder thereof to practice osteopathy in the State of Michigan.”

At the time this act was approved, relator did not have the diploma above referred to, but he obtained such a diploma on June 25, 1903, and was, as is to be inferred from the record in this case, engaged in the practice of osteopathy in this State when the act took effect, September 17, 1903. Respondent denied the application of relator for said certificate, on the ground that to entitle him to the same, under the proper construction of the language above quoted, he should have obtained his diploma before the act was approved. Relator asks for a mandamus compelling the issuance of said certificate. The single question involved is this: Does the language “at the time of the passage of this act” refer to the date when the act was approved, or to the date at which it took effect ?

While an act of the legislature is passed when it is approved by the governor, the decisions are uniform, so far as we can ascertain, in holding that the language “at the time of the passage of this act ” means when the act takes effect. See Osborn v. Charlevoix Circuit Judge, 114 Mich., at page 658 (72 N. W. 982); Charless v. Lamberson, 1 Iowa, at page 442 (63 Am. Dec. 457); Patrick v. Perryman, 52 Ill. App., at page 518; State v. Bemis, 45 Neb., at page 739 (64 N. W. 348); Ex parte Lucas, 160 Mo., at page 228 (61 S. W. 218); Harding v. People, 10 Colo., at page 392 (15 Pac. 727). In each of these cases, except Patrick v. Perryman, supra, the effect of holding that the language “at the time of the passage of this act ” referred to the date the act was approved made the law take effect at an earlier time than under the constitution it could.* There was presented to the court in each of these cases, therefore, the alternative of declaring that this language meant when the law took effect or that it meant nothing, and the court was therefore compelled to decide that it meant when the law took effect. To hold that the language “at the time of the passage of this act” refers to the date of the governor’s approval, in the case at har, results only in a discrimination between those who attained their qualifications to practice osteopathy before May 28th and those who attained them after that date. It must be conceded that the principle of the authorities now under consideration does not apply, if, as claimed by respondent, it is settled (see People v. Phippin, 70 Mich. 6 [37 N. W. 888]; Dent v. West Virginia, 129 U. S. 114 [9 Sup. Ct. 231]) that there is no constitutional objection to such discrimination.

It is not so easy, however, to distinguish Patrick v. Perryman, 52 Ill. App., at page 518, from the case at bar. The act under consideration in Patrick v. Perryman related to the practice of dentistry. It was approved May 30, 1881, and went into effect July 1, 1881. Laws Ill. 1881, p. 77. It “provided that every person engaged in the practice of dentistry in this State should cause his name and residence or place of business to be registered with the board of examiners within six months from the date of the passage of the act.” The question was whether the six months commenced to run May 30th or July 1st. It was decided that it commenced to run the latter date, when the law took effect, the court saying:

“No dentist was bound to take notice of the law till it became operative, and the period fixed for compliance with the provisions of the law would be supposed to begin at that time. To say that it began when the law was approved would involve the absurdity of saying that the legislature allowed 4 months and 39 days * * * after the law went into effect within which to comply with its terms.”

While it cannot be claimed that this decision is indistinguishable from the case at bar, we do think it an authority of some weight in favor of relator’s position.

Until this act took effect as law, September 17, 1903, relator had the same right to practice osteopathy as did his professional brother whose diploma was dated prior to May 38th. Did the legislature intend that after that date he should have less right ? Relator answers this question no; respondent answers it yes. Unless we can agree with respondent that the legislature did intend to make this discrimination, relator is entitled to a mandamus. It is difficult to reconcile such a discrimination with any sense of justice. It cannot be urged that this is a discrimination against the new practitioner in favor of the old, when it is reflected that it permits men to practice whose professional experience is 3 months and 30 days. Nor can we hold that those who commenced practice after the 38th of May did so with notice of this law.

“ To do that, we must hold that it [the act] has at least the force and effect of notice during a period when the Constitution has declared it shall not take effect or be in force, and when the obvious design and intention was that it should have no force or effect whatever.” Price v. Hopkin, 13 Mich., at pages 336 and 337.
“If the words of a statute, though capable of an interpretation which would work manifest injustice, can possibly, within the bounds of grammatical construction and reasonable interpretation, be otherwise construed, the court ought not to attribute to the legislature an intention to do what is clear, manifest, and gross injustice.” Endl. Interp. Stat. § 358, citing opinion of Brett, M. R., in Plumstead Board of Works v. Spackman, L. R. 13 Q. B. Div. 878.

Moreover, we think there is evidence in the act itself that, by the use of the language, “any person engaged in the practice of osteopathy in this State at the time of the passage of this act,” the legislature intended to include all those who were in practice when the law took effect. • The act provides two tests by which the qualifications of persons to practice osteopathy shall be determined. It may be said that one is .a test to determine the qualifications of those already in practice, and the other a test to determine the qualifications of those who wish to commence practice. The first test is to be applied to “any person engaged in the practice of osteopathy in this State at the time of the passage of this act,” and the other test is to be applied to “any person before engaging in the practice of osteopathy in this State.” It is obvious that, if relator’s qualifications are not to be determined by the latter test, they are by the former. And it is less difficult to say that relator is “ a person engaged in the practice of osteopathy in this State at the time of the passage of this act ” than it is to say that he can apply for a certificate under the act “ before engaging in the practice of osteopathy in this State.”

We conclude, therefore, that, by the words'“at the time of the passage of this act,” the legislature meant at the time the act takes effect. In other words, they intended by these words to convey a meaning which this court recently declared they did convey. See Osborn v. Charlevoix Circuit Judge, 114 Mich., at page 658 (72 N. W. 982). Nor do we think that this construction has, as claimed by respondent, “a tendency to defeat the purpose of [the act], by inviting an influx of unfit practitioners to the profession.” Inasmuch as all practitioners must, like relator, prove their fitness by the production of a diploma recognized by respondent as sufficient, we cannot believe them to be unfit, or that the legislature feared that they would be.

It results from these views that relator is entitled to the mandamus prayed for.

The other Justices concurred.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    RUSIEWSKI v. MICHALSKI.
    Poor Debtors’ Act — Imprisonment—Discharge.
    Under the terms of 3 Comp. Laws, § 9701 et seq., relating to the release of poor debtors from imprisonment, it is not sufficient to entitle the debtor to his discharge that he has been under bonds for the jail limits for the period fixed by the statute, although at the date of the application he is actually in the custody of the sheriff.

      Certiorari to Kent; Perkins, J.
    Submitted January 12,1904.
    (Docket No. 21.)
    Decided January 26, 1904.
    Alexander Rusiewski obtained a judgment against Anthony Michalski for assault and battery, and caused his arrest on a ca. sa. Defendant brings certiorari to review an order denying his application for relief under the poor debtors’ act.
    Affirmed.

      Thompson & Temple, for plaintiff in certiorari.

      E. L. Bullen (McKnight & McAllister, of counsel), for defendant in certiorari.

   Montgomery, J.

The plaintiff in certiorari was arrested on a capias ad satisfaciendum at the instance of defendant in certiorari. The debtor gave bonds for the jail limits, and after the lapse of six months was surrendered by his bondsmen to the sheriff, and at once applied to be relieved under the terms of the poor debtors’ act (chapter 266, §§ 9701-9713, 3 Comp. Laws). The circuit judge held that the statute contemplates that, before the debtor shall be entitled to his discharge under section 9701 et seq., he must have been imprisoned in the county jail for the period fixed by the statute. It is contended in this court that, if the debtor be actually in custody of the sheriff at the date of the application, it is a sufficient compliance with the statute to show that he has been in nominal custody for the period fixed by statute; i. e., under bonds for the jail limits. We consider this contention to be in conflict with our holdings in Miller v. Strabbing, 92 Mich. 300 (52 N. W. 453), and Griffin v. Helme, 94 Mich. 494 (54 N. W. 173). See, also, 1 Stev. Mich. Prac. § 240.

The ruling of the circuit judge is affirmed, with costs.

The other Justices concurred.


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

text:
    LENDERINK v. VILLAGE OF ROCKFORD.
    1. Municipal Corporations — Personal Injuries — Independent Contractors — Master and Servant.
    Where defendant village let a contract for the construction of a sewer, the contractor being independent in the employment . and control of the workmen, including plaintiff, and free from direction and restraint in the digging and curbing of the trench, the relation of master and servant did not exist between plaintiff and defendant, and defendant was not liable for injuries to plaintiff from a caving in of the ground.
    2. Same — Assumption of Risk — Contributory Negligence.
    The determination of the necessity for curbing having rested with the curbers and diggers, of whom plaintiff, experienced in the work, was one, and the danger being obvious, he assumed the risk, and was guilty of contributory negligence.
    3. Same — Negligence—Fellow-Servants.
    The contractor, having furnished ample material for curbing, and a competent man to attend to the work, had performed his full duty to plaintiff, and the negligence, if any, whereby plaintiff was injured, was that of a fellow-servant.
    Error to Kent; Wolcott, J.
    Submitted January 14, 1904.
    (Docket No. 39.)
    Decided January 26, 1904.
    Case by Richard Lenderink against the village of Rockford for personal injuries caused by the caving in of a sewer trench. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.
    The defendant village made a contract with one Williams-to construct a sewer, commencing on Bridge street, extending to the intersection of Main street, and then extending some distance on Main street. By the contract the contractor was required to guard the public effectually from liability on account of the digging of the trench, and was made responsible for any damages which the defendant might be compelled to pay in consequence of his neglecting any necessary precautions. Defendant employed an inspector to see that the pipe was properly laid, and this was all the village had to do with the work. The contractor employed, paid, and discharged all the workmen, including plaintiff, who was a man of large experience in that kind of work.
    At the recommendation of plaintiff, the contractor employed one Vogt as a competent man to do the curbing. The determination as to the necessity of curbing rested with the diggers and the curbers. At the intersection of the two streets the sewer ran in close proximity to a water main. The diggers here struck made ground. The contractor suggested curbing, but the diggers thought it safe without. The contractor furnished plenty of material for curbing. The ground caved and injured the plaintiff.
    When the plaintiff rested, the court directed a verdict for the defendant for three reasons: (1) Because the w;ork was done by an independent contractor, by whom plaintiff was employed, and the relation of master and servant did not exist between plaintiff and defendant; (2) because the danger was obvious, tbe plaintiff assumed the risk, and was guilty of contributory negligence; (3) because the contractor had provided material for curbing, and a competent man to do the work, and, if there was any negligence, it was that of a fellow-servant.

      Thompson & Temple {Allen G. Adsit, of counsel), for appellant.

      Knappen, Kleinhans & Knappen, for appellee.
   Grant, J.

{after stating the facts). The instruction was correct. Counsel for plaintiff cite several cases, including City of Detroit v. Corey, 9 Mich. 183 (80 Am. Dec. 78). Thatcase involved the. liability of tbemunicipal corporation to travelers upon its highways, holding that the municipality cannot defend, as against strangers in the lawful use of the street, by setting up an independent contract to perform the work. Such cases have no application here. They also cite Ostrander v. City of Lansing, 111 Mich. 693 (70 N. W. 332). That was a case where the sewer was being constructed by the city, in whose employ the plaintiff was. That case has no application. This case is within the rule enunciated in Wright v. Manufacturing Co., 124 Mich. 91 (82 N. W. 829, 50 L. R. A. 495), and authorities there cited. The contract was with an independent contractor, and for certain results. How the digging was done, what means or methods were used, were matters which did not concern the defendant, which had no control over them. The sole duty of the inspector was to see that the tile were laid to the proper depth, and in the proper manner, after the trench was dug. It had no control in any way whatever over the workmen employed by the contractor, or over the method used in digging. In such cases the relation of master and servant does not exist, and the neglect of the contractor is not imputable to the party for whom the work is done. In other words, the rule of respondeat superior does not apply. 2 Dill. Mun. Corp. § 1028.

Plaintiff assumed the risk. He was a man of experience in digging sewers. The contractor spoke to him about cui'bing, but plaintiff did not think it was necessary; he thought it was safe enough. The president of the village also suggested that the trench needed curbing, and plaintiff told him he thought it was safe. Knowing the situation as well as any one, and having it in his own power to determine the question, and to refuse to work, he continued to work, without protest.

If there was any negligence, it was the negligence of plaintiff’s fellow-servant, Mr. Vogt. The contractor had furnished plenty of sound material, and a competent man to attend to the work of curbing. Under these circumstances, the employer had performed his full duty towards the plaintiff.

Judgment affirmed.

Carpenter, Montgomery, and Hooker, JJ., concurred with Grant, J.

Moore, C. J.

I concur in the result upon the second ground stated in the opinion.


author: Grant, J.

text:
    VAN AUKEN v. CITY OF ADRIAN.
    1. Municipal Corporations — Clams—Limitations.
    Where the charter of a city provides that all claims against it for damages growing out of its negligence or default, or that of any officer or employé, shall be presented to the common council within a specified period, and, in default thereof, the claim shall be barred, the provision is one of limitation, and operates as a bar to an action on a claim thereafter presented.
    2. Same — Revival—Action op Officers.
    A claim against a city for negligent injuries, barred by the provisions of its charter, cannot, in the absence of express, authority, be revived by the action of its officers in consenting to consider it.
    3. Same — Waiver—Estoppel.,
    Where a claim, presented to a city council with knowledge that it was barred, but with the hope to secure favorable consideration in view of its meritorious character, was referred to the appropriate committee, who accepted affidavits in its support, and made some investigation, reporting adversely, held, in an action to recover on the claim, that there was no waiver of the limitation, and nothing to estop defendant from pleading it.
    Error to Lenawee; Chester, J.
    Submitted January 15, 1904.
    (Docket No. 46.)
    Decided January 26, 1904.
    Case by Anson L. Yan Auken, executor of the last will and testament of Abram I. Grant, deceased, against the city of Adrian, for injuries to decedent, caused by a defective sidewalk. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.
    Plaintiff’s decedent brought suit against the defendant city, claiming that he stepped into a hole of a sidewalk of said city, and was injured. The claim of negligence is that the sidewalk was out of repair. With its plea the defendant gave notice that the claim was barred by the provisions of the charter, not having been presented to the common council within three months after the accident. Mr. Grant died during the pendency of the suit, which was then revived in the name of his executor.
    In his opening statement plaintiff’s counsel stated his case as follows:
    “ The accident occurred upon the 19th day of December, 1900. No claim was ever presented to the council in writing until the 8th day of the following June. Upon that date a written claim for damages, duly verified, was made and presented. It was referred to the committee on claims and finance on the 24th day of June. That committee took the matter under advisement. They investigated the claim. They called for, or at least received, affidavits showing the circumstances under which the injury was received. They made a verbal report to the council on the 24th day of—
    “ The Court: You just made the statement that the committee called for or received affidavits. Now, which did they do ?

      “Mr. Larwill: If the court please, I do not know what the proof will be on that question. Negotiations were entered into between the common council and Mr. Jewett and myself, representing the plaintiff. Both of us saw different members of the council, had conversations with them, urging upon them the justice of giving this old gentleman something for his injuries, and several members of the council assured us that they would take the matter up and investigate it, and, if they thought he ought to have anything, would make a recommendation to the council that something be given him. That may not be competent proof, because they were not acting in such a way as would bind the city. But they did receive the affidavits, whether we furnished them or whether they called for them. I think that the chairman of the finance committee called for these affidavits, and I think the proof will so show, but I will not state to your honor positively that that is true; but anyway they received those affidavits. They investigated the matter. They took it under advisement, and upon the 2d day of July the chairman of the finance committee of the common council made a verbal report to that body that he was not prepared to submit the matter, and asked for further time to investigate this claim. Upon the-25th day of September — more than two months after the claim had been presented to the council in writing, duly verified, and after the committee on claims and finance had investigated the case and received the affidavits — they made a report to the council that they had investigated the claim; that there was no cause of action; and recommended that the same be disallowed.”
    Counsel then stated to the court that he had nothing further to offer, whereupon the circuit judge delivered his opinion that the city was not- liable, and in closing his opinion said:
    “I am impressed with the idea that this statute fixes the penalty for failure to make some claim, at least, before the council within 90 days, and that the penalty is that the claim is thereafter forever barred. And I do not believe that the claimant can say that he has lost any rights, or has been prejudiced, or lulled into security by any action on the part of the council in this case. The fact that they did take some action upon the claim did not lull the plaintiff into any security whatever. If they had seen fit to allow him anything, he would have been that much ahead; but, if they had allowed him anything, I doubt very much whether the claimant could have enforced the payment. I do not believe the council have any right to dispose of the public money against the express provision of law, and for that reason I am led to believe that, under the facts as they stand proven here, the plaintiff would not be entitled to recover.”
    Counsel for plaintiff then made a further statement that the chairman of the committee to whom the claim was referred had a conference with one of the attorneys for the plaintiff, and asked to be furnished proof with regard to the existence of the hole, the length of time it had been there, the extent of the injury, etc., and that, in compliance with such request, affidavits showing the facts were furnished. Counsel did not state by whom they were furnished. After this statement the court directed a verdict for the defendant.

      H. L. Larwill and H. JR. Jewett, for appellant.

      Herbert JR. Clark, for appellee!
   Grant, J.

(after stating the facts). The provision of the charter reads as follows:

‘ ‘And all claims for damages against the city growing out of the negligence or default of said city, or of any officer or employé thereof, shall be presented to the common council of said city in the manner above provided, and the place and circumstances out of which said claim arose shall be fully set forth therein, within three months after such claim shall arise, and, in case of any default thereof, said claim shall thereafter be forever barred.” Act No. 321, Local Acts 1897, § 112.

Plaintiff’s counsel claim that the notice required by the statute was waived by the action of the council. The right of action had been barred for nearly three months before claim was made to the common council. No testimony was taken, and no trouble or expense was incurred by plaintiff’s decedent. His counsel voluntarily presented some affidavits to the common council. Under plaintiff’s opening statement, the claim was not presented as a matter of right, but the attorneys for the decedent urged upon different members of the council “the justice of giving this old man something for his injuries.” The investigation asked and promised was not intended or designed as the basis of a right of action. The only assurance given by the members of the council in their individual, not official, capacity, was that they would investigate, and, if they thought he ought to have anything, they would recommend that the council give him something. All that the council did was done pursuant to this promise. Plaintiff’s decedent was not lulled into a feeling of security, as was the plaintiff in Renackowsky v. Board of Water Com’rs, 122 Mich. 613 (81 N. W. 581). If any one was lulled into action or nonaction, it was defendant, through its common council, by a request on the part of the plaintiff’s attorneys to consider the claim as a matter of grace. Action founded upon such a request does not form the basis for waiver or estoppel. See the recent cases of Blumrich v. Village of Highland Park, 131 Mich. 209 (91 N. W. 129); Chamberlain v. City of Saginaw, ante, 61 (97 N. W. 156).

The provision of the charter was one of limitation, and not merely the requirement of a notice as a condition precedent to bringing suit. It operated as a bar to the right of action as effectually as would the general statute of limitations. Under a statute whose language was not so strong as this in fixing a limitation of the action, we said, speaking through my Brother Hooker, “The statute is an unambiguous limitation on the right to bring an action after the lapse of a year.” We also said, speaking of the negotiations between the claimant and the city officials, under circumstances somewhat similar to this:

“We are not informed that these negotiations were more than a listening to importunities of plaintiff’s counsel, and a patient hearing and investigation of what he had to offer, with a view to recommend some recompense for plaintiff’s injury, if convinced that he had a meritorious case, notwithstanding the statute had run against his right of action; and there is nothing to indicate that the members of the committee had a suspicion that plaintiff did not know that the council had taken action, and there is nothing in the record that indicates that the council, or even the committee or city counselor, supposed that the plaintiff was deferring the commencement of suit in reliance on a supposed intention to adjust his claim.” Klass v. City of Detroit, 129 Mich. 35, 37 (88 N. W. 204).

Many cases from this and other courts upon the question of waiver or estoppel are there cited and commented upon.

This was an action of tort, and, once barred, cannot be revived. Vickers v. Stoneman, 73 Mich. 419 (41 N. W. 495); 19 Am. & Eng. Enc. Law (2d Ed.), 289 Oothout v. Thompson, 20 Johns. 277; Peterson v. Breitag, 88 Iowa, 418 (55 N. W. 86); Goodwyn v. Goodwyn, 16 Ga. 114; Galligher v. Hollingsworth, 3 Har. & McH. 122. The circumstances under which the statute of limitations is suspended and parties estopped to set it up by reason of their own wrongs are sufficiently discussed in Klass v. City of Detroit, supra. Mr. Grant, his attorneys, and the members of the council all fully understood that he then had no legal claim against the city; in other words, they knew that his claim was absolutely barred by the statute. Can the officers of a corporation, by consenting to consider a claim absolutely barred by the statute, revive it ? No such authority can be implied, and, in the absence of express authority, it does not exist. We are cited to no case holding that it does.

Judgment affirmed.

Carpenter, Montgomery, and Hooker, JJ., concurred with Grant, J. ' Moore, C. J., concurred, in the result.


author: Moore, C. J.

text:
    BATES v. BOYCE’S ESTATE.
    Conversion of Corporate Property — Stockholder’s Action-Limitations.
    Where an action for the conversion of the property of a corporation would be barred by the statute of limitations if prosecuted by the corporation itself, it is equally barred if brought in the name of a stockholder, since a recovery would inure to the benefit of the corporation and all its stockholders.
    Error to Bay; Shepard, J.
    Submitted November 18, 1903.
    (Docket No. 132.)
    Decided February 2, 1904.
    Mary J. Bates, administratrix of the estate of Edward J. Boyce, deceased, presented a claim against the estate of Jonathan Boyce, deceased, for the conversion of the interest of her intestate in a corporation. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. From a judgment for defendant on verdict directed by the court, claimant brings error.
    Affirmed.

      William Carpenter (IS. A. Cooley, of counsel), for appellant.

      Simonson, Cillett & Clark (Humphrey & Grant, of counsel), for appellee.
   Moore, C. J.

The circuit judge directed a verdict in favor of defendant. The plaintiff has brought the case here by writ of error.

On the part of the plaintiff it is claimed that in March, 1883,the Houghton Lake Lumber Company was organ-, ized, the stockholders in which were Jonathan Boyce, holding $80,000 of stock, Isabella J. Boyce, his wife, $10,000 of stock, and Edward J. Boyce, their son, $10,000 of stock. The last-named amount was given to the son by the father. It is claimed the company entered upon active operations the last of March under the management of the son, and continued to do business until July 31, 1883, when the father, having become angry with the son, made a bill of sale of all the property of the corporation to himself, and, it is claimed, paid to the other stockholders nothing. The son sought employment elsewhere. He died in April, 1887, leaving a widow, the plaintiff in this case, who has since married Mr. Bates. Jonathan Boyce . died in 1902. The widow, according to her testimony, learned that her husband had an interest in the defunct corporation in 1894, though it is claimed she did not get definite knowledge in relation thereto until later. In 1902 the plaintiff filed a claim in probate court against the estate of Jonathan Boyce for the conversion of the $10,000 interest of Edward J. Boyce in the lumber company in August, 3883, $10,000, and interest thereon amounting to $13,490.52; total, $23,490.52. The claim was disallowed by the commissioners. An appeal was taken to the cir- * cuit court, where the circuit judge directed a verdict in favor of defendant.

A good many questions are raised by counsel. We think it necessary to discuss but one of them. If Mr. Jonathan Boyce wrongly converted the property of the corporation, it had a cause of action against him. Mrs. Bates now stands in the place of Edward J. Boyce, a stockholder in the corporation. Had he brought the action, even though he did it in his own name, it would be one in behalf of the corporation, and the recovery would be for the benefit of the corporation and all its stockholders. The statute of limitations would have run against such an action the same as it would had the action been brought by the corporation itself. See Wallace v. Bank, 89 Tenn. 630 (15 S. W. 448, 24 Am. St. Rep. 625); Brinckerhoff v. Bostwick, 99 N. Y. 185, 193 (1 N. E. 663). See, also, 1 Mor. Priv. Corp. § 271. In the case at bar the conversion of the corporate property is claimed to have taken place in 1883. The cause of action was therefore barred in 1889, 13 years before this claim was filed. See Bresnahan v. Nugent, 92 Mich. 76 (52 N. W. 735).

Judgment is affirmed.

Carpenter, Grant, and Montgomery, JJ., concurred. Hooker, J., took no part in the decision.


author: Carpenter, J.

text:
    PEOPLE v. GRAY.
    Criminal Law — 'Veracity oe Respondent — Cross-Examination.
    A respondent in a criminal case who testifies in his own behalf is subject to the rules of cross-examination to test veracity applicable to ordinary witnesses; hence, having theretofore signed a liquor bond, the prosecution may prove by him, against the objection of irrelevancy, that he swore falsely as to his pecuniary responsibility. People v. Pinkerton, 79 Mich. 110, distinguished.
    2. Same — Statements in Argument — Failure to Except.
    Statements made by counsel for the people in his argument before the jury, and claimed to be improper, will not be considered on appeal unless exception was taken.
    Error to. Otsego; Sharpe, J.
    Submitted November 19, 1903.
    (Docket No. 236.)
    Decided February 2, 1904.
    John Gray was convicted of having dynamite in his possession with intent to destroy a dwelling house, and sentenced to imprisonment for seven years in the State prison at Marquette.
    Affirmed.

      W. S. Mesich (Alex. J. Oroesbeck, of counsel), for appellant.

      Albert M. Hilton, Prosecuting Attorney, and W. L. Townsend, Assistant Prosecuting Attorney, for the people.
   Carpenter, J.

Respondent was convicted in the circuit court of the offense of having “in his possession dynamite, with intent to willfully and maliciously destroy the dwelling house of one Arthur L. Morse, contrary to the statute” (section 11599, 3 Comp. Laws). Respondent and one Lewis La Fever owned two saloons in the village of Vanderbilt, Otsego county, in this State. These saloons were run in the name of Charles La Fever, son of respondent’s partner, and respondent was one of the sureties on his bond. Said Arthur L. Morse was the village marshal of Vanderbilt, and it was the theory of the people that respondent hoped, by destroying Morse’s house, to deter him from enforcing the liquor law.

Respondent became a witness in his own behalf, and on cross-examination the trial court permitted the prosecution, for the purpose of affecting his credibility, to prove that, as a surety on the bond heretofore mentioned, he swore falsely as to his pecuniary responsibility; and, in addressing the jury, counsel for the people argued that this testimony proved'that respondent had committed perjury. It is claimed that, in admitting this testimony and in making this argument, error was committed, to respondent’s prejudice. It is obvious that the argument was not improper if the testimony was admissible, and that we have, therefore, to'consider only the question of its admissibility.

The testimony was objected to, not on the ground that respondent was compelled to testify against himself, — an objection which would be disposed of on very different reasoning from that applicable to this case (see People v. Dupounce, 133 Mich. 1 [94 N. W. 388]), — but on the ground that the testimony was incompetent and immaterial. It was admitted solely for the purpose of affecting respondent’s credibility as a witness. It is insisted that the credibility of respondent as a witness in his own behalf cannot be attacked by proving from his own lips on cross-examination that he has committed other offenses than that for which he is being tried. If this is true, some of the rules of cross-examination to test the veracity of witnesses do not apply if the witness is a party charged with crime, for it is settled that, in the case of an ordinary witness, the cross-examination complained of was proper. See Saunders v. People, 38 Mich. 218; People v. Arnold, 40 Mich. 713. Is a respondent who testifies in his own behalf in a criminal case subject to the rules of cross-examination which apply to an ordinary witness ? In support of the claim that he is not, respondent relies on the case of People v. Pinkerton, 79 Mich. 110 (44 N. W. 180). In that case the court said:

‘ ‘Among other testimony which we think was improperly let in was the testimony of various persons who claimed that she made statements to them about her husband, who was not living in this house, and of her arrest many years before on a charge of prostitution. All testimony, even of conviction, and not merely of accusation, of crimes or misconduct not in issue, is improper. It raises false issues, and is likely to lead a jury to try the accused of what is not in the information. This doctrine is elementary, and has been too frequently held to need citations. Some of this testimony was subsequently -stricken out; but the circumstances were as improper as the fuller testimony, and it cannot heal the error to strike out testimony once received under objections, if it has a serious tendency. This same remark will apply to misconduct not criminal; and, in a criminal case, we do not think it competent to compel respondent, who is a witness, to answer questions irrelevant to the issue, having a tendency to bring in other charges. Whatever latitude is proper in cross-examination to test veracity, it cannot properly introduce independent issues against the person who is both witness and respondent.”

It is contended that the latter part of this language decides that you cannot prove, on the cross-examination of a respondent testifying in his own behalf, for the purpose of affecting his credibility, that he is guilty of another crime. We. do not think that the court intended to make any such decision. In that case the prosecuting attorney, on the cross-examination of respondent, asked her if she was guilty of various charges, some of which were criminal and some not. She denied her guilt, and, as appears from the opinion, other witnesses were permitted to contradict her. In saying that it was not ‘ ‘ competent to compel respondent * * * to answer questions * * * having a tendency to bring in other charges,” and that “cross-examination to test veracity * * * cannot properly introduce independent issues,” the court was condemning the practice which, as appears from the opinion, was adopted in that case. We are bound, therefore, to declare, notwithstanding that case, that the respondent in a criminal case who becomes a witness in his own behalf is subject to all the rules of cross-examination to test veracity applicable to ordinary witnesses. See People v. Howard, 73 Mich. 10 (40 N. W. 789); People v. Parmalee, 112 Mich., at page 296 (70 N. W. 577); People v. Ecarius, 124 Mich., at page 623 (83 N. W. 628). We conclude, therefore, that there was no error in compelling respondent to answer the questions complained of, or in the argument of counsel based thereon.

It is claimed that counsel for the people made improper statements in his argument to the jury. The record fails to show an exception to the most objectionable of these statements. We find no reversible error in the statements to which exception was taken.

In our judgment, the conviction should be affirmed.

The other Justices concurred.


author: Moore, C. J. Per Curiam.

text:
    ROUSE v. DETROIT ELECTRIC RAILWAY.
    1. Street Railways — Collisions With Vehicles — Right of Way — Instructions.
    On the trial of an action against an electric-railway company to recover damages for injuries to plaintiff’s intestate, caused by a collision with a car, it appearing that, at the time of the accident, the wagon in which deceased was riding was being driven in the beaten part of the highway alongside of the track, and that the car was moving in the same direction, it was error to instruct the jury that the car had the right of way upon the track, and that the motorman had the right to assume that the track was clear, and to propel the car at the extreme rate permitted by law.
    2. ShME — Contributory Negligence — Looking and Listening.
    It was not proper to instruct the jury that railway tracks are places of danger-, and one who goes upon them without looking and listening for cars does so at his peril, as such instruction was not applicable to the facts-of the case.
    3. Same — Question for Jury.
    Failure of persons driving on street-railway tracks to look and listen with sufficient diligence to avoid a collision with a car approaching from behind does not constitute contributory negligence as a matter of law.
    Error to Wayne; Donovan, J.
    Submitted October 22, 1903.
    (Docket No. 115.)
    Decided February 2, 1904.
    Rehearing denied July 16, 1904.
    Case by Sarah. Rouse, administratrix of the estate of Henry Rouse, deceased, against the Detroit Electric Railway, for negligent injuries to, her intestate, resulting in his death. From a judgment for defendant, plaintiff brings error.
    Reversed.

      Howard B. Bloomer (Alfred Lucking, of counsel), for appellant.

      Corliss, Andrus, Leete & Joslyn, for appellee.
   Moore, C. J.

This case has been here before, and is reported in 128 Mich. 149 (87 N. W. 68). A reference to the case as there reported will make it unnecessary to make a long statement of facts at this time. Upon the second trial a verdict was rendered in favor of the defendant. The plaintiff brings the case here by appeal. The important assignments of error relate to the charge of the court. The trial judge, among others, gave the following requests:

“ The cars of the defendant company have the right of way upon these tracks. Its motorman had the right to assume that no horse and wagon would be upon the right of way, and had the right to operate its car under the assumption that the right of way would be clear, and to propel the car at the rate permitted by law, to wit, 15 miles an hour. * * *
“ It is a law in Michigan that railway tracks are places of danger; that one who goes upon them without looking and listening for cars does so at his peril; and, if he enters upon a place of danger carelessly and negligently, then he cannot recover any damages which result from such action. * * *
“ If, while the car was running the eight or nine blocks from Woodlawn avenue to the place of the accident, it could have been easily seen by either Garlick or Bouse, by turning their heads, and they did not do so, but drove on without looking while it was approaching, then the plaintiff cannot recover in this action. " * * * ”

■ These statements of the law are so at variance with the law of the case as stated by Justice Long, speaking for the court, when the case was here before, that we think the trial judge must have overlooked that case. The relative rights of travelers upon the streets and highways, and electric cars thereon, have been so frequently before this court recently, that we shall content ourselves with simply citing the cases which we think ought to control in this case: La Pontney v. Cartage Co., 116 Mich. 514 (74 N. W. 712); Manor v. Railway Co., 118 Mich. 1 (76 N. W. 139); Mertz v. Railway, 125 Mich. 11 (83 N. W. 1036); Rouse v.. Railway, 128 Mich. 149 (87 N. W. 68); Tunison v. Weadock, 130 Mich. 141 (89 N. W. 703); Plant v. Heraty, 131 Mich. 619 (92 N. W. 284); Westphal v.'Railway Co., 134 Mich. 239 (96 N. W. 19); Chauvin v. Railway, ante, 85 (97 N. W. 160).

Judgment is reversed, and new trial ordered.

The other Justices, concurred.

ON MOTION EOR REHEARING.

Per Curiam.

We decided this case on the 2d of last February. The decision is reported above. Defendant asks for a rehearing on the ground that we erred in reversing the case because the trial judge charged the jury:

“ It is a law in Michigan that railway tracks are places of danger; that one who goes upon them without looking and listening for cars does so at his peril; and, if he enters upon a place of danger carelessly and negligently, then he cannot recover any damages which result from such action.”

By this we simply intended to decide that, as applied to this case, that charge was erroneous. Plaintiff’s intestate was killed because defendant’s street car collided with and overthrew the vehicle in which he was riding. Both the vehicle and the car were going in the same direction. Plaintiff’s intestate was driving, not on defendant’s track, but in the beaten path in the highway alongside of said track. This beaten path, according to plaintiff’s testimony, “in some places went right up to the street-car track, and some places a little farther away. But at this' particular place [the place of injury] it was just 1% inches from the railway track to the wagon track.” The effect of the charge of the trial court now under consideration was to inform the j ury that, if plaintiff’s intestate, in traveling this beaten track, failed to look and listen before he brought his vehicle within the path of the approaching car, he did so at his peril. By our former opinion we intended to assert, and do now assert, that this charge was erroneous, and prejudicial to plaintiff. See Tunison v. Weadock, 130 Mich. 141 (89 N. W. 703).

The jury, in answer to a special question, found that plaintiff’s intestate did not keep a careful lookout for the car. It is contended that.we are bound to conclude from this answer that plaintiff’s intestate was guilty of contributory negligence. The answer to this contention is that it is to be presumed that the jury tested the conduct of plaintiff’s intestate by the erroneous standard of care which the court in his charge told them he must exercise.

Petition for a rehearing is denied.


text:
    JACKSON v. JACKSON.
    1. Justices of the Peace — Leave to Appeal — Excuse foe Delay.
    Application for leave to appeal from a' justice’s judgment against a nonresident defendant in an attachment suit was properly granted on a showing that defendant had no notice of the proceedings until more than a month after the judgment, and that, during the six weeks thereafter intervening before the application, she was endeavoring to obtain exact and definite information as to the proceedings.
    2. Divorce — Title to Personalty — Action at Law.
    Where a decree of divorce determined the title to much household property as between the parties, and directed the execution of bills of sale in conformity therewith, after which the husband brought an action at law against the wife to recover for articles taken and sold by her, held, that, so far as plaintiff’s claim was founded on a nonperformance of the decree, his remedy was by proceedings for its enforcement in the .chancery suit, but that as to other articles owned by him, whether covered by the decree or not, a recovery might be had in the suit at law.
    Error to Bay; Shepard, J.
    Submitted November 24, 1903.
    (Docket No. 164.)
    Decided February 2, 1904.

      Assumpsit by John B. Jackson against Charlotte E. Jackson to recover for chattels converted. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      Lee E. Joslyn, for appellant.

      I. N. Kinney, for appellee.
   Carpenter, J.

Prior to November 27, 1900, the parties to this suit were husband and wife. On that day they were divorced by the circuit court for the county of Bay, in chancery. This suit was commenced by a writ of attachment in justice court to recover an indebtedness alleged to be due on contract. In that court plaintiff obtained a judgment. From this judgment, defendant, who had not appeared nor been served with process, was permitted, on a special application, made three months after the judgment was rendered, to appeal. The trial in the circuit resulted in a verdict for defendant under the direction of the court. Plaintiff brings the case to this court by writ of error, and asks us to reverse the judgment on the ground that the trial court erred in permitting defendant to appeal from the justice court and in directing said verdict.

Defendant’s application for the appeal proves that she did not know of the proceedings in the justice court until more than a month after the judgment had been rendered therein, but it also shows that she did have knowledge or notice of said judgment about six weeks before she made her application for appeal. It is contended by plaintiff that this delay of six weeks destroyed defendant’s right to the appeal. We do not think this point well taken. It appears from her application that at this time defendant resided in the city of Washington, in the District of Columbia, and that from the time she heard of the suit against her “up to the present time she has been endeavoring to obtain exact and certain information as to said judgment, all her information heretofore being uncertain and vague. ” We cannot say that this was not sufficient excuse for her delay.

Did the court érr in directing a verdict for defendant ? When the case came on for trial in the circuit, plaintiff’s declaration was the oral one made in justice court “on all the common counts in assumpsit, and specially for the value of certain. goods, chattels, books, dishes, household furniture, etc., the property of plaintiff, taken by defendant without plaintiff’s consent, and by defendant sold, disposed of, and given away, * * * said goods being taken under an implied and express promise on the part of defendant to pay the full value thereof.” There was a bill of particulars of plaintiff’s claim, in which were described various books and a large number of household articles. The plea of defendant was the general issue. Plaintiff introduced in evidence the proceedings in the divorce case, wherein defendant was complainant and plaintiff defendant. Said decree not only divorced the parties, but it determined the title to many articles of household property. It ordered defendant to execute a bill of sale transferring a large number of articles to plaintiff, and it likewise ordered plaintiff to execute a bill of sale transferring other articles to defendant. The articles to recover compensation for which this suit was brought consisted in part, as we understand it, of property described in the bill of sale executed by defendant to plaintiff, and in part of articles which were not mentioned in the decree. Before plaintiff had completed his case, the trial judge interrupted him, and directed a verdict for the defendant, giving her at the same time permission to amend her plea by alleging that the court lacked jurisdiction. This action of the court proceeded upon the ground that plaintiff could recover for the articles given him by the decree in the chancery suit only by enforcing that decree, and, as that decree had “assumed to make a partition and division between the parties,” his only remedy for articles not mentioned therein “would be to apply to the [chancery] court to show error or omission or an oversight, and have it remedied in that case.”

Respecting the property covered by the decree, if plaintiff’s cause of action therefor either arose before the decree (in which case it was merged therein), or if it arose simply from the nonperformance of the decree, we agree with the trial judge that redress should be sought from the court which made it. See Allen v. Allen, 100 Mass. 373; Lyon v. Lyon, 21 Conn. 185; Bauman v. Bauman, 18 Ark. 320 (68 Am. Dec. 171); Berry v. Innes, 46 Mich. 518 (9 N. W. 834). That court clearly has. jurisdiction to enforce the decree, and its jurisdiction is necessarily exclusive. It might modify the decree, and release defendant entirely from her obligation (3 Comp. Laws, § 8641), while another court, proceeding upon the assumption of its binding validity, was undertaking to enforce it. If, however, this cause of action arose not from, but after, the decree of divorce, the case would be different. If the defendant, after the divorce, sold property which the decree clearly awarded to plaintiff, plaintiff could recover therefor in this suit. The condition of the record does not enable us to say with certainty whether plaintiff has, under these principles, a cause of action. We have thought it our duty, however, to indicate the law which will govern another trial, since the case must be reversed on another ground.

Respecting plaintiff’s claim for property not covered by the decree, we cannot agree with the trial judge that the decree in the divorce suit assumed to make a division and partition of the household property between the parties. It did direct plaintiff to transfer to defendant certain of this property, and it also directed the defendant to transfer to the plaintiff ‘ ‘ the remainder of the personal property described in the inventory, Exhibit G, in this cause, this day filed.” Exhibit G is a list of household articles headed, “What Jackson is Willing His Wife Should Have.” We cannot infer from this that the decree assumed to affect the title of plaintiff to other property of which he was the owner. If, therefore, there was such other property, and if, as plaintiff claims, defendant sold it, the money received by her may be recovered in this suit.

The judgment of the court below must therefore be reversed, and a new trial ordered.

The other Justices concurred.


text:
    HORN v. BOARD OF SUPERVISORS OF LIVINGSTON COUNTY.
    Drains — Action of Commissioner — Review — Assessments— Authority of Board of Supervisors.
    In view of the provision of Act No. 272, Pub. Acts 1899, chap. 5, § 3, that the proceedings of a county drain commissioner in , establishing any drain shall be subject to review on certiorari as therein provided, and that, if no certiorari be brought within the time therein prescribed, the legality of the drain shall not thereafter be questioned in any suit at law or equity, the board of supervisors cannot, under 1 Comp. Laws, § 3860, review the action of the commissioner, and refuse to order the spreading of the assessments for the drain.

      Certiorari to Livingston; Smith, J.
    Submitted January 5, 1904.
    (Calendar No. 20,264.)
    Decided February 2, 1904.

      Mandamus by George Horn, drain commissioner of Livingston county, to compel the board of supervisors of said county to order the spreading of a drain tax. From an order granting the writ, respondent brings certiorari.

    Affirmed.
    The relator, the drain commissioner, of Livingston county, upon a proper petition, took proceedings to widen, deepen, and clean out an old drain. The proper order was made, the cost apportioned between the two townships, and an assessment district established, in which a portion of the cost was assessed according to benefits. The contract for its construction was advertised to be let March 10, but was adjourned from time to time until April 17,1903. The contract was let, and its construction proceeded with. The commissioner reported the assessments to the board of supervisors. The board, at its regular meeting October 17th, refused to order the tax spread, by a resolution that:

      “ Whereas, there is some question as to whether or not the proceedings for the construction of said drain have been legal, and whether said proposed tax is a legal tax: Therefore be it Resolved, that we hereby refuse to authorize the supervisors of the townships of Conway and Cohoctah to spread any tax upon their respective rolls, either upon the town at large or upon private property therein, for the construction of said drain, or for widening, deepening, or cleaning it. ”
    Relator then applied to the circuit court for the county of Livingston for the writ of mandamus to compel the supervisors to order the assessments spread. The court granted the writ, and the case is now before us for review.

      A. E. Cole (Edmund O. Shields, of counsel), for relator.

      Louis E. Howlett, for respondent.
   Grant, J.

(after stating the facts). Two defects are relied upon: (1) That the commissioner changed the depth of the drain from a depth of 7 feet to that of 6, and (2) that he adjourned the review of the assessments beyond the date of letting the contract. The change actually made was only sixteen-hundredths of a foot, and there is no claim that any one was injured by this insignificant change in depth. The original order was for a drain 7 feet deep. By a mistake of the surveyor, on which the order was based, its depth was fixed at 7.84 feet. To correct this error of the surveyor, the change was made, and the contract advertised and let in accordance-with the change. The statute expressly authorizes an adjournment for hearing objections to, and a review of, the assessments.

Counsel for respondent relies upon section 3860, 1 Comp. Laws, for the authority of the board to review the action of the drain commissioner, and declare the proceedings void. The particular part of the section reads as follows:

“They shall direct that such of the several amounts of money proposed to be raised for township, school, highway, drain, and all other purposes as shall be authorized by law be spread upon the assessment roll of the proper townships, wards, and cities.”

The board of supervisors is not endowed with unlimited power to determine the validity of taxes assessed by township and county officers, and its action is not always essential to the spreading of the tax. Robbins v. Barron, 33 Mich. 124. This court there held that the only duty of the supervisors is to see that the sums are authorized by law, and that then the duty to give the proper direction is imperative. It was also held that, in the absence of the direction of the board, the township authorities could proceed to the levy of the taxes which had been lawfully voted. This provision of the statute must be construed with other provisions controlling special proceedings, and especially where such statutes are passed subsequent to that relied upon as authority. The drain law provides a speedy remedy for those desiring to contest the validity of the proceedings. This remedy has been frequently pointed out and construed by the decisions of this court. A reference to two cases is sufficient: Moore v. McIntyre, 110 Mich. 237 (68 N. W. 130); Township of Swan Creek v. Brown, 130 Mich. 382 (90 N. W. 38).

Under the statute, the courts have no power to review the action of a drain commissioner for defects in his proceedings, unless the party complaining takes steps to determine their validity within the time fixed by the statute. It would be incongruous to confer this power upon the board of supervisors after the time fixed for the courts to exercise it has expired. If this were the law, the construction of the drain must be deferred oftentimes for a year or more, awaiting the action of the board of supervisors, and the law providing for a review would become a nullity. The drain law provides a special remedy, and any one complaining must avail himself of that remedy. If he avails himself of it, he has had his 'day in court. If he fails to avail himself of it, he is barred by the statute from questioning “its [the drain’s] legality in any suit at law or equity.” Act No. 272, Pub. Acts 1899, chap. 5, § 3. No one but the supervisor of Cohoctah township took any steps to contest the validity of the proceedings in this case. He filed a bill in chancery, and his bill was dismissed, from which he took no appeal. Nothing further was done until the action of the respondent at its annual meeting. The affidavit for the writ of certiorari in this case is made by the same supervisor. He, as well as all others, is now estopped to contest the validity of these proceedings. Whether a party whose lands are assessed can defend in an action at law where the commissioner bad no jurisdiction is not before us for determination.

The judgment of the court below is affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    PEOPLE, ex rel. BOARD OF SUPERVISORS OF KENT COUNTY, v. LOOMIS.
    1. Constitution — Proposed Amendment —Journal Entries — Boards of County Auditors.
    The entry in the journal of the house of representatives of a proposed amendment to the Constitution, art. 10, § 10, providing for a board of county auditors in Wayne county, and the amendments thereto adopted before it was finally approved, and the entry in the senate journal of the amendment as finally approved, constituted a sufficient compliance, with article 20, § 1, requiring a proposed amendment, if agreed to by each house, to be entered upon their respective journals.
    2. Same — Submission—Legislative Control — Ballots.
    Article 20, § 1, of the Constitution, providing for the submission to the electors of a proposed constitutional amendment, does not indicate the manner of submission, but leaves it subject to legislative direction; and 1 Comp. Laws, § 3657, requiring the substance of the amendment to be printed on the ballots, was not controlling in the present case, as the resolution of submission (Joint Res. No. 3, Pub. Acts 1903) explicitly provided what the ballots should contain.
    3. Same — Pill—Substitute—50-Day Limit.
    A bill creating a board oí county auditors for Jackson county having been introduced, the substitution of Kent county for Jackson county (Act No. 521, Local'Acts 1903) rendered it a new bill, which, having been reported out on the 87th day of the session, offended against the constitutional provision (article 4, § 28) prohibiting the introduction of a new bill after the first 50 days of the session.
    Case made from Kent; Wolcott, J.
    Submitted December 12, 1903.
    (Docket No. 250.)
    Decided February 2, 1904.

      Quo ivarranto proceedings by the people of the State of Michigan, on the relation of the board of supervisors of Kent county, to inquire into the right of Robert B. Loomis, William P. Wolf, and Sylvester Hicks to hold the office of board of county auditors of said county. There was a judgment for respondents, and relator assigns error.
    Reversed, and judgment of ouster entered.

      Rodgers & Rodgers, for appellant.

      Ward & Brown, for appellees.
   Hooker, J.

At its T903 session the legislature passed a law providing for the appointment by the governor of three persons, to constitute a provisional board of county auditors for the county of Kent; their successors to be elected at the general election in the year 1904. On June 15, 1903, such appointments were made, and the respondents have since assumed to hold such office. This proceeding is in the nature of a quo warranto, instituted by one De Grraaf, by authority of the board of supervisors of the county, under leave granted by the circuit court, to inquire into respondents’ right to hold such offices; it being claimed by the relator that the law is in conflict with section 10 of article 10 of the Constitution. At the same (i. e., the 1903) session the legislature adopted a joint resolution submitting to the electors of the State an amendment to section 10 of article 10 of the Constitution, reading as follows:

‘ ‘ The board of supervisors, or, in the counties of Saginaw, Jackson, Washtenaw, Kent, and Wayne, the board of county auditors, shall have the exclusive power to fix the compensation for all services rendered for, and to adjust all claims against, their respective counties, and the sum so fixed and defined shall be subject to no appeal.”

This was submitted to the electors at the April, 1903, election, and adopted, after which said act (being Act No. 521 of the Local Acts of 1903) was passed and approved. The constitutionality of both the amendment and the act is attacked, and it is upon this question that the case must turn. The circuit court sustained the validity of both amendment and law, and the respondents’ authority and title to the office, and the relator has brought the proceeding before us.

Did the action of the legislature authorize the submission of the proposed amendment ? Section 10 of article 10 of the Constitution, as it theretofore existed, provided for a board of county auditors in the county of Wayne, and that county only. Counsel for relator assert that the resolution was offered on February 12th in the house of representatives, and that it provided for a board of county auditors for the county of Saginaw. On February 20th the committee on towns and counties reporte^ the resolution, with amendments to include Jackson and Washtenaw counties. The resolution was then agreed to by two-thirds of the members elected to the house of representatives, and the resolution, as amended and passed, . was then entered in full on the house journal, with the yeas and nays taken thereon. Kent county was not included. It was then transmitted to the senate, and referred to the committee on constitutional amendments, which committee, on February 26th, reported it by its title, “ with certain amendments, recommending that the amendments be concurred in, and that, when so amended, the joint resolution pass. ” The resolution was then agreed to, and entered at length in the senate journal, with Kent county included. It is noticeable that the only substantial change made from the resolution as entered in the house journal was the inclusion of Kent county. Counsel contend that the senate journal does not show what amendment was made by the senate.

The house journal contains an entry, dated February 26th, to the effect that the joint resolution was returned to the house by the secretary of the senate, informing the house that the senate had amended the same so as to include the county of Kent, and that the same had passed the senate by a two-thirds vote; and it also shows, under date of March 4th, that the senate amendment was concurred in by the house by a two-thirds vote, the title as amended by the senate, to include Kent county, agreed to, and the resolution referred to the clerk of the house for printing and presentation to the governor. It was at no time entered in full in the house journal as finally passed.

It is contended that the senate journal fails to show what amendment was made in the senate, and that the house journal cannot be relied upon to show the senate’s action; also that the house journal fails to show what resolution finally passed the house, and that it was not entered upon the journal of the house, as required by Const. § 1, art. 20:

“If the same shall be agreed to by two-thirds of the members elected to each house, such amendment shall be entered on the journals respectively.”

The following is a verbatim copy of the proceedings of the house:

“The following message from the senate was received and read:
“‘Senate Chambee, February 26, 1903.
“ ‘To the Speaker of the House of Representatives.
‘Sir: 1 am instructed by the senate to return to the house the following joint resolution: House joint resolution No. 275, entitled:
“ ‘ “A joint resolution proposing an amendment to the Constitution of this State by so amending section 10 of article 10 as to provide for a board of county auditors in the counties of Saginaw, Jackson, and Washtenaw—
“ ‘And to inform the house that the senate has amended the joint resolution as follows:
“ ‘ (1) By inserting in line 2, section 10, of article 10, after the word “ Washtenaw,” the word “ Kent.”
“ ‘ (2) By striking out of line 21, section 10, of article 10,rthe words “and Washtenaw,” and inserting in lieu thereof the words “Washtenaw and Kent.”
“ ‘ (3) By striking out of line 23, section 10, of article 10, the words “and Washtenaw,” and inserting in lieu thereof the words “Washtenaw and Kent;” and by amending the title to read as follows:
“ ‘ “A joint resolution proposing an amendment to the Constitution of this State by so amending section 10 of article 10 as to provide for a board of county auditors in the counties of Saginaw, Jackson, Washtenaw, and Kent—
“ ‘And now to inform the house that in the passage of the joint resolution the senate has, by a two-thirds vote of all senators-elect, concurred, and has also concurred in ordering the joint resolution to take immediate effect.
“ ‘Very respectfully,
“ ‘ Elbert V. Chilson,
“ ‘ Secretary of the Senate.’
“ The question being on concurring in the amendments made to the joint resolution by the senate, Mr. Anderson moved that the joint resolution be laid on the table. The motion prevailed.”

On the 4th day of March, 1903, the following proceedings, took place in the house of representatives, to wit:

“Mr. Sanderson moved to take from the table house joint resolution No. 275, entitled ‘ A joint resolution proposing an amendment to the Constitution of this State by so amending section 10 of article 10 as to provide for a board of county auditors in the counties of Saginaw, Jackson, and Washtenaw.’ The motion prevailed. The question-being on‘concurring in the amendments made to the joint resolution by the senate, the amendments were concurred in, two-thirds of all the members-elect voting therefor by yeas and nays as follows: [Here follows the vote by yeas and nays.]
“ The question being on agreeing to the title of the joint resolution as amended by the senate, the title was agreed to.
“ The joint resolution was then referred to the clerk for printing and presentation to the governor.”

It is contended upon behalf of the respondents that the entry of the foregoing in the house journal, taken in connection with the resolution as it first passed the house, was a substantial compliance with article 20, § 1, requiring an entry of the amendment upon the journals “if the same shall have been agreed to by two-thirds of the members of each house.” It must be admitted that the senate journal shows the resolution passed by that body, and we think the entry is a full compliance with the Constitution. It needs no aid from the house journal to show its final conclusion. Upon the other hand, the house journal shows the resolution as it first passed the house, and it shows at a later date the message from the senate, which is entered at length, including the amendments stated to have been made by the senate, which the house thereupon concurred in, the yeas and nays being entered. It is apparent that it is ascertainable from the house journal that the house, by its action first and last, passed the identical resolution which passed the senate, and appears on the senate journal. Is such a piecemeal entry of the resolution a compliance with the provision of section 1, art. 20, of the Constitution, that “If the same [i. e., proposed amendment] shall be-agreed to by two-thirds of the members elected to each house, such amendment or amendments shall be entered on the journals respectively, with the yeas and nays taken thereon, and the same shall be submitted to the electors,” etc.?

There is a wg-nt of harmony in the authorities as to what is a compliance with this provision. The question has several times arisen where the journals failed to show the resolution in full, but referred to and identified it by number and title. Some cases hold to the rule that the constitutional provision clearly means that the resolution shall be set out in full upon the journals as it finally passed the respective houses; others, that it is sufficient if the terms of the resolution are ascertainable from the journals by reference. Of the latter class, the following are in point : Prohibitory Amendment Cases, 24 Kan. 700; People v. Strother, 67 Cal. 624 (8 Pac. 383); Oakland Pav. Co. v. Tompkins, 72 Cal. 5 (12 Pac. 801, 1 Am. St. Rep. 17); Worman v. Hagan, 78 Md. 152 (27 Atl. 616, 21 L. R. A. 716); State v. Herried, 10 S. Dak. 109 (72 N. W. 93); Nesbit v. People, 19 Colo. 452 (36 Pac. 221). Upon the other hand, the following cases assert a contrary doctrine: Koehler v. Hill, 60 Iowa, 543, 603 (14 N. W. 738, 15 N. W. 609); Oakland Pav. Co. v. Hilton, 69 Cal. 479 (11 Pac. 3); State v. Tufly, 19 Nev. 394 (12 Pac. 835, 3 Am. St. Rep. 895); Union Bank of Richmond v. Commissioners of Oxford, 119 N. C. 214 (25 S. E. 966, 34 L. R. A. 487). See, also, Collier v. Frierson, 24 Ala. 100.

It is a significant fact that most, if not all, of the cases cited adhere to the view that the constitutional provision is mandatory, and we are impressed that those cases which require an entry of the resolution in full as passed have much the better of the argument. See Koehler v. Hill, Oakland Pav. Co. v. Hilton, and Union Bank of Richmond v. Commissioners of Oxford, supra, and our own cases of Green v. Graves, 1 Doug. 351, 356; Rode v. Phelps, 80 Mich. 598 (45 N. W. 493); People v. Dettenthaler, 118 Mich. 595 (77 N. W. 450, 44 L. R. A. 164). But it is unnecessary to determine the question, as we think that the journal of each house shows the resolution in full as passed by it. We do not overlook the contention of counsel that the full entry shall be made after the passage. The word used is not “after,”but “if,” and it is a technical construction which would require that we hold that an entry that “the house passed the following resolution ” is good, when followed by the entry of the resolution as passed, while one stating that ‘ ‘ the foregoing resolution [entered in full] was passed by the house” is bad, the yeas and nays being given in both instances. There is not the least inaccuracy in these records. They agree perfectly, and we think them a compliance with the provision of the Constitution relied on.

Was the proposed amendment properly submitted to the electors of the State? The constitutional provision is, “ and the same shall be submitted to the electors.” If this means that the entire resolution shall be printed upon the ballot, the course taken in this.case is not in conformity to the Constitution, for this is the form adopted:

“Amendment to the Constitution providing a board of county auditors for the counties of Saginaw, Jackson, Washtenaw, and Kent — Yes.
“Amendment to the Constitution providing a board of county auditors for the counties of Saginaw, Jackson, Washtenaw, and Kent — No.”

Again, 1 Comp. Laws, § 3657, provides:

“Whenever any constitutional amendments or other questions a.re proposed to be submitted to the electors, the board of election commissioners of each county shall cause them all to be printed on one ballot, separate and distinct from the ballot containing the names of nominees for public office, the substance of each amendment or other question to be clearly indicated upon said ballot by a suitable designation in distinct and easily legible type, with the words ‘ Yes ’ and ‘ No ’ printed below it in separate lines.”

It is said that the substance of the amendment was not given.

■ We do not infer from the language of article 30, § 1, that it was the intention of the convention that the full text of the proposed amendment should be printed upon each ballot twice, or even once, or that the language was intended to indicate the manner of submission, but merely to provide that the amendment proposed should be submitted at the time specified. It is silent as to the method, and therefore it was subject to legislative control and direction. It is unnecessary, though it might be interesting, to examine the condition of the statutes previous to the passage in 1897 of section 3657, which appears to have been the first law requiring the substance of the resolution to be printed upon the ballot. It is suggestive of a change that should require the ballot to contain information of the proposed change, and may have been intended to put a stop to the method theretofore prevailing. It is not necessary to decide whether the submission in this case conformed to this statute, for the same power that passed the statute had power to repeal or suspend it, and the resolution before us contains explicit provisions as to what the ballots should contain. Joint Resolution No. 3, Rub. Acts 1903. The ballots having conformed thereto, the point raised cannot prevail.

Was Act No. 521, Local Acts 1903, valid? On February 20th a bill was introduced in the house of representatives entitled “A bill to provide for a board of county auditors for the county of Jackson,” etc. It was referred to the committee on towns and counties, and was reported out May 22 d (being the eighty-seventh day of the session), with a substitute identically like the bill originally introduced, except that the county of Kent was substituted for that of Jackson. Some unimportant amendments were made to the substituted bill, and it was passed by both houses and approved by the governor. We have had many cases arising over the sufficiency of titles of bills, where we have held that they cover all provisions germane to the subject-matter of the bill. Attorney General v. Amos, 60 Mich. 372 (27 N. W. 571); Van Husan v. Heames, 96 Mich. 506 (56 N. W. 22); Tillotson v. Saginaw Circuit Judge, 97 Mich. 585 (56 N. W. 945); Toll v. Jerome, 101 Mich. 468 (59 N. W. 816); City of Grand Rapids v. Judge of Superior Court, 102 Mich. 321 (60 N. W. 698); In re Yell, 107 Mich. 228 (65 N. W. 97); People v. McGlaughlin, 108 Mich. 516 (66 N. W. 385); Fish v. Stockdale, 111 Mich. 46 (69 N. W. 92); City of Detroit v. Wayne Circuit Judge, 112 Mich. 319 (70 N. W. 894); People v. Huntley, 112 Mich. 569 (71 N. W. 178); City of Jackson v. Jackson County Treasurer, 117 Mich. 305 (75 N. W. 617); McMorran v. Great Hive L. O. T. M., 117 Mich. 398 (75 N. W. 943). The same principle seems to govern this question. If the amendment or substituted bill presents a measure that has no relation to the bill as originally introduced, it cannot stand, for it is in substance a new measure or bill. If, however, the substitute has a clear relation tp the subject of the original bill, it can be said to be germane, and will not be treated as a new bill. The following cases have been cited as bearing upon the question: Pack v. Barton, 47 Mich. 520 (11 N. W. 367); Attorney General v. Rice, 64 Mich. 385 (31 N. W. 203); Hart v. McElroy, 72 Mich. 453 (40 N. W. 750); Sackrider v. Saginaw Co. Sup'rs, 79 Mich. 59 (44 N. W. 165); Caldwell v. Ward, 83 Mich. 17 (46 N. W. 1024); Toll v. Jerome, 101 Mich. 468 (59 N. W. 816). Of these, all but two are cases where the action of the legislature was sustained. They are therefore chiefly valuable for. the discussions they contain, and as showing the extent to which the court has gone in holding substitutes valid.

The case of Sackrider v. Saginaw Co. Sup’rs was a case where a bill was introduced to discontinue a specified portion of a particular State road in Midland county. The legislature passed a substitute providing for the construction of stone and other roads in Saginaw county, and raising money by bonds to pay for the same. It was held to be a new bill.

Caldwell v. Ward, 83 Mich. 13 (46 N. W. 1024), was a' case where a bill was introduced to authorize the township treasurers of Kalkaska county to enforce the collection of taxes. The substitute provided for the filing of bills for injunctions to restrain waste upon lands upon which there were taxes due and unpaid. This applied to the entire State. It was held that the substitute was germane to the subject-matter of the first bill, which was said to be the enforcement of the*collection of taxes. In the case before us, the bill first introduced related to county auditors. Like the Kalkaska and Midland county measures, it was local in its application. Under the rule in that case, it would have been germane had the substitute added all other counties covered by the amendment; being within the rule laid down in the case of Caldwell v. Ward. And under that rule we cannot doubt that amendments adding some and eliminating other counties from the measure would have been proper. Here the substitute had the effect of striking out the county of Jackson from the bill, and substituting Kent. If the substitute had simply added the other counties covered by the amendment, the case would in one particular, viz., that of territory, have been upon all fours with the Kalkaska case. In another it would not have been open to the same criticism which may be made upon that case, for, while this bill made no other change in the substance of the measure as introduced, the Kalkaska substitute made an important one, which could only have been sustained upon the doctrine that, as it could fairly be said to be a means to the same end, it was germane to the original measure. The only particular in which we can differentiate these cases in principle is that of local interest.

An examination of the other cases cited will show the trend of opinion in relation to such cases.

In Pack v. Barton, 47 Mich. 520 (11 N. W. 367), the bill, seasonably introduced, was for the organization of the township of Montmorency. Subsequently it was so changed as to make it a bill for the organization of the county of Montmorency, and the bill was so passed. The territory was the same in both bills. Mr. Justice Cooley said, in substance, that the two bills had the same general purpose, i. e., to give the inhabitants of the territory described a distinct municipal government,— of different grades, to be sure, but there was no departure in the second from the general intent of the first; that no necessary inference arose that, “in the change made, there was a purpose to evade the constitutional command;” and that:

“The question being one .of organizing the inhabitants of a particular territory for the purposes of local government, the legislature, on consideration of the scheme proposed, concluded to modify it to the extent of conferring county powers where only township powers had been proposed. To attempt, on this record, to indicate the limits of constitutional power in the amendment of bills previously introduced, would be uncalled for, and therefore unwarranted. It suffices to say that in this case, where the general purpose has been kept in view, and a design to circumvent or disregard the Constitution is not apparent, it cannot be held that the constitutional authority has been exceeded. No one disputes that whatever is within the proper scope of amendment is as much admissible after the fifty days as before, and this must embrace whatever is germane to the purpose which the bill had in view.”

It is noticeable that in that case the particular territory Was the same in both bills, and the organization of this, and not some other, territory was the object of both bills; and there is no suggestion that the second bill would have been germane to the subject of the first had it referred to other and wholly distinct territory, and we might naturally infer the contrary.

The cases of Attorney General v. Rice, 64 Mich. 385 (31 N. W. 203), and Hart v. McElroy, 72 Mich. 453 (40 N. W. 750), contain the intimation that such changes in legislation which may be called local, as contradistinguished from general, laws, are contrary to the Constitution. ' Thus, in the former, a substituted bill providing for the organization of the township of Ironwood was sustained, although the bill originally introduced was “a bill to organize the township of Au Train,” which was alleged by the replication to be in Alger county. The court sustained the act upon the distinct ground that the presumption was that the territory was the same in both bills, in part at any rate, and refused to go behind the journals or the certificate of the Secretary of State to ascertain the contrary.

So in Hart v. McElroy, 72 Mich. 452 (40 N. W. 750), where the bill as introduced was, “A bill detaching certain lands from the township of Ft. Gratiot, in the county of St. Clair, and organizing the same into a new township, to be known as the township of ! Huronia, ’ ” and the substitute was, “A bill to incorporate the city of Marine City, in the county of St. Clair, and to repeal Act No. 328 of Local Acts of 1885, entitled ‘ An act to re-incorporate the village of Marine City,’ approved April 23, 1885,” — it was sought to show that the territory was not the same in both bills, and the court said:

“We have no right to presume that the body of the substitute was not germane to the body of the bill. The title throws some light upon the subject, in both the bill and substitute, and from these titles it would appear that the subject to be legislated upon related to the same matter, to, wit, the incorporation of certain territory in the same county of St. Clair into a new political organization or municipality, — the bill, to take territory from the township of Ft. Gratiot, in the county of St. Clair, and organizing therefrom a new township, to be called ‘ Huronia;’ and the substitute, to incorporate the city of Marine City, within the same county. See Attorney General v. Amos, 60 Mich. 372, 380 (27 N. W. 571). We are not informed by the journal what the description of this particular territory was in the body of the bill as introduced, and we cannot go outside of the.journals to ascertain it; nor do we consider that it was necessary that the description of the territory in the bill should have been identical with that of the substitute. The lands and property to be affected in both the bill and substitute evidently, from the titles, being in the same county, we are not prepared to say that even the spirit of the constitutional provision was violated. Certainly there is no affirmative showing from the journals that the letter of the constitutional requirement was not observed.”

It is significant that in neither of these cases was the question before the court disposed of upon the theory contended for here, and apparently the court considered the presumption of identity of territory, in whole or in part, essential to the conclusion reached.

In the case of Sackrider v. Saginaw Co. Sup’rs, 79 Mich. 59 (44 N. W. 165), Mr. Justice Morse, who wrote the opinions in the last two cases mentioned, again wrote an opinion in harmony with his views expressed in those cases, and held the law invalid.

Where, then, is the distinction between these cases and the case of Caldwell v. Ward, supra, if not in the fact that in them the proposed legislation is essentially of local interest, while in that ( i. e., Caldwell v. Ward) it may be said to be of general public interest? In a sense it may be said that the entire State is interested in the organization of townships, school districts, and highway districts in every locality. See Attorney General v. Lowrey, 131 Mich. 639 (92 N. W. 289). But the nature and degree of interest is different and greater in matters pertaining to the collection of taxes in such localities. As has been suggested, a bill to change the boundaries of a school district in Iron county, introduced as a substitute for one to change the boundaries of a school district in Monroe county, could hardly be said to be germane to the subject of the latter, and, as in the present case, it would seem to be a clear disregard or evasion of the constitutional provision.'

The measure before us is apparently a meritorious one, but that does not warrant a disregard of constitutional provisions designed as a public protection, the effect of which would be to take away such protection in cases where it is needed, through the practical nullification of the fundamental law.

We are constrained to reverse the judgment of the circuit court, and remand the cause, with directions to enter a judgment of ouster, without costs to either party. No costs of this court will be allowed.

The other Justices concurred.


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    SCHNEIDER v. CITY OF DETROIT.
    1. Municipal Corporations — Delinquent Assessments — Purchase by City — Merger of Lien.
    Under the provisions of a city charter authorizing the controller to bid off for the city land sold for delinquent assessments, and to execute conveyances therefor, such a sale and purchase by the city vests the title in the municipality, and whatever prior lien the city had is merged in the title so acquired.
    2. Same — Adverse Possession.
    Adverse possession may give a good title against a city.
    Appeal from Wayne; Mandell, J.
    Submitted January 13, 1904.
    (Docket No. 27.)
    Decided February 2, 1904.
    Bill by Adaline Schneider against the city of Detroit, impleaded with Joseph F. Weber and Cyrus Johnston, to quiet title. From a decree for complainant, defendant appeals.
    Affirmed.

      Jasper C. Gates, for complainant.

      John W. McGrath, for defendant.
   Montgomery, J.

The bill, as originally filed by complainant, had a double aspect. It set out that the complainant had a contract with the defendant Weber for the purchase of the land in question (being lot 15 of outlot 23 of the Guoin Farm, in the city of Detroit), that she had performed her contract, and prayed specific performance of the contract by defendant Weber. The bill also averred that complainant and Weber, as her grantor, had been in possession of the premises in question since 1882, that the defendant city claimed some right or title in the property by virtue of a tax lease given upon a sale for taxes in 1881, — the taxes having been imposed for the purpose of constructing a sewer, — and prayed for a decree quieting title as against the city. Later, by stipulation of the parties, Weber having executed to complainant a deed of the property in question, a supplemental bill was filed, averring this fact, and averring that Weber and his grantee had been in actual and exclusive possession of the premises for more than 15 years prior to the filing of the bill; that during all that time the city regularly levied its taxes and assessments upon the property, which were paid. The prayer was that the title of complainant be quieted. On the hearing the facts were agreed upon, and are substantially in conformity with the averments in the bill. It appeared, in addition, that the sewer for which the taxes were spread was a lateral sewer in the alley on which this lot abuts, and that the complainant and her grantor had made use of the sewer from the time of its construction. The circuit judge granted the relief prayed, and the city brings the case here on appeal.

It is the contention of defendant’s counsel that Weber and complainant have been enjoying the benefits of this sewer; that it is a benefit to the property, enhancing the value of the same; and that it is a matter which the warrantor should adjust. The supplemental bill practically eliminates Weber from the controversy, and presents the case substantially as it would have appeared had the deed to complainant been given before the original bill was filed. The question, on such a record, must be whether the complainant is entitled to have a decree quieting the title acquired by adverse possession. No cross-bill was filed against the defendant Weber, and no relief prayed against him by the city; and clearly the city would be entitled to no relief against him, unless by invoking the rule that he who seeks equity must do equity.

But we are unable to see how even this rule can be invoked by the defendant here. Under section 173 of the charter of 1883 of Detroit, a sale is authorized by the city for delinquent taxes. By section 181 of the charter, the same proceedings are to be had in case of assessment rolls to defray the expense of constructing lateral sewers. It is provided by section 173 that, if the real estate shall not be redeemed within one year after such sale, the controller shall execute and deliver to the purchaser or his assigns a proper deed of conveyance, which deed shall be prima facie evidence of the regularity of all the proceedings, etc. Section 179 authorizes the controller to bid off for the city every lot of land upon which no person shall offer to bid, and enacts that, upon all-such bids by the controller, conveyances and certificates of sale may be executed by the controller to the corporation. In Gray v. City of Detroit, 113 Mich. 657 (71 N. W. 1107), it was held that such a sale and purchase by the city vests the title in the municipality 1 and that the city authorities are under no obligation to allow redemption at any time after the year provided by the charter. The title to this property, then, vested in the city. There was no contingent tax lien thereafter, but whatever lien the city had prior to that time was merged in the title which it had acquired by the sale.

That adverse possession may give a good title as against the city was determined in Flynn v. City of Detroit, 93 Mich. 590 (53 N. W. 815); Leonard v. City of Detroit, 108 Mich. 599 (66 N. W. 488); Vier v. City of Detroit, 111 Mich. 646 (70 N. W. 139). The same rule has been applied in this State as against the State, viz., that the statute of limitations runs against the State upon lands bid off to the State at a tax sale. Chamberlain v. Ahrens, 55 Mich. 111 (20 N. W. 814).

We see no escape from the conclusion reached by the circuit judge, and the decree will be affirmed, with costs.

The other Justices concurred.


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    NINDE v. UNION TRUST CO.
    Mortgages — Payment—Waiver of Proof.
    Where, on the trial of the issue of the payment of a mortgage, , evidence was offered tending strongly to show payment, and thereupon counsel representing the mortgagee’s interest stated that he was not prepared to dispute the fact that the mortgage was paid, such statement might properly be considered as a waiver of further proof.
    Appeal from Wayne; Donovan, J.
    Submitted January 15, 1904.
    (Docket No. 44.)
    Decided February 2, 1904.
    Petition by Elizabeth F. Ninde, administratrix of the estate of William X. Ninde, deceased, for an order directing the Union Trust Company, as receiver of the City Savings Bank of Detroit, to discharge a mortgage. The petition having been granted, defendant appeals.
    Affirmed.

      Palmer & Palmer, for petitioner.

      Bowen, Douglas, Whiting & Murfin, for defendant.
   Montgomery, J.

This case is a proceeding to wind up the affairs of the City Savings Bank of the city of Detroit. The petitioner is the administratrix of William X. Ninde. The petition sets out that in 1898 William X. Ninde purchased lot 7 of block 13 of C. F. Campau’s Subdivision ; that this lot was subject to a mortgage of $1,300, which ran from Arthur H. Bigg and wife to Fannie M. Sloman, then of Omaha, Neb. The petition further avers that William'X. Ninde in his lifetime paid this mortgage, but that, after it was paid, it was assigned by the mortgagee to the City Savings Bank of Detroit, and that it was listed among the assets of the City Savings Bank by the receiver ; and the petition asks that the receiver be instructed to withdraw the mortgage from the list of the assets of the bank, and discharge the same on the records of Wayne county.

On the hearing below, the circuit judge found that there had been paid upon this mortgage the sum of $1,037.80, and directed that the same be discharged upon the payment by the administratrix of the balance. The receiver appeals, and rests its claim upon two grounds: First, that there is no proof that the mortgage was paid to any one; and, second, that, if it be found that the payment in question was made to Homer Warren & Co., no authority is shown for them to receive the money on the securities.

These questions are questions of fact, and an extended discussion of the testimony would be of no value as a precedent. We are satisfied, however, that the circuit judge reached the correct conclusion upon both questions. It appeared from the testimony that Homer Warren & Co. were agents of Mrs. Sloman in the matter of mortgages, Mr. Frank C. Andrews testifying, “I looked after her affairs.” It also appeared that this mortgage was in the possession of Frank C. Andrews. It appears there were two more mortgages in which the deceased, Bishop Ninde, was concerned, and the only difficulty arose in determining whether the payment that was made to Andrews was made upon the mortgage in question or upon one of the other mortgages. We are satisfied that there was no other mortgage shown on which the money paid could have been applied, and that the circuit judge was correct in holding that the payment was made upon the mortgage in question.

We have been through the record and examined the evidence in this case as though the question were open, but it is very doubtful whether it ought not to be considered foreclosed, in view of what occurred on the trial. Mr. Whiting, representing the receiver, said, “We are perfectly willing to give up one of these mortgages, but we do not want to throw them both away.” Mr. Palmer then took the stand, and gave testimony, based upon the amount of the other mortgages upon which it might be urged that the payment was intended to apply, that such payment could not have been intended to apply on these mortgages, for the reason that it exceeded the amount in either of the mortgages against Bishop Ninde’s property. Mr. Whiting then remarked, “I am not prepared to dispute the fact that the mortgage was paid.” It is said in the brief that this admission or statement could not bind the receiver; but, occurring on the trial, we see no reason why it might not properly be considered as a waiver of further proof of the fact that payment was made, and also of further proof as to the authority of the agents, Homer Warren & Co.

The order of the circuit judge will be affirmed, with costs.

The other Justices concurred.