text:
    CAGNEY v. WATTLES.
    1. Mandamus — Justices of the Peace — Fraudulent Entry of Judgment.
    Where a justice of the peace, in an action of replevin wherein plaintiff failed to appear, delayed the entry of judgment until the time for appeal had expired, and then entered judgment for plaintiff, falsely reciting his due appearance, defendant was entitled to mandamus to compel the entry of a judgment of nonsuit.
    2. Same —Expense of Proceedings — Action Against Justice-Damages.
    Where defendant in replevin was obliged to resort to mandamus to secure the entry by a justice of the peace of a judgment of nonsuit to which he was entitled, he may show the expense of the mandamus proceedings in an action against the justice to recover damages for his misconduct in the premises
    Error to Kalamazoo; Buck, J.
    Submitted June 8, 1899.
    Decided October 3, 1899.
    Case by Edward Cagney against I. Nat Wattles, a justice of the peace, for official misconduct. From a judgment for plaintiff, on verdict directed by the court, for less than the amount claimed, he brings error.
    Reversed.

      William A. Luby, for appellant.

      Howard, Boos & Howard, for appellee.
   Long, J.

This cause was commenced in justice’s court. The plaintiff claimed damages in his declaration for wrongful injuries committed by defendant' in issuing a writ of replevin on May 8, 1897, wherein Nettie Newton was plaintiff and Edward Cagney (the plaintiff here) was defendant, without first having taken a bond from Nettie Newton, and without having the surety justify his responsibility in writing on the bond, as required by law, and for having entered false records and false statements upon his docket. The cause was tried before the justice, who rendered a judgment in favor of plaintiff for $14, and $6.88 costs. The plaintiff appealed the cause to the circuit-court, where, upon a trial before a jury, the plaintiff recovered verdict and judgment for $15 damages, without costs. Plaintiff brings error.

Plaintiff called defendant as a witness. He testified, substantially, that he issued the writ of replevin, but that, before issuing it, the plaintiff in that case (Nettie Newton) filed with him a replevin bond in the penal sum of $100, with Mr. Holmes as surety; that, to the best of his recollection, Holmes justified in writing on the back of the bond, but that he would not say positively that Holmes did so justify or that he justified at all; that the writ was returnable on May 15, 1897, at 10 o’clock in the forenoon; that, on the return day, Nettie Newton, the plaintiff, did not appear, but that Cagney, the defendant, did appear, by Mr. Luby, his attorney, who inquired as to the bond, and demanded that the same be produced, but that witness informed him that it was mislaid, and could not be found; that Luby waited until the expiration of one hour, and, the plaintiff not appearing, he demanded a nonsuit; that this was refused by witness, but that, a week or 10 days after the return day of the writ, he entered judgment in favor of the plaintiff against Cagney, the defendant. Witness had his docket in court, and produced it. It shows two pages of entry of judgment. The first judgment entered, and marked “Exhibit A,” recites:

“May 8., On filing affidavit of Nettie Newton, taken on oath and in writing by and before me, together with approved bond, I issued writ of replevin, returnable before me at my office in the city of Kalamazoo the 15th day of May, 1897, at 10 o’clock in the forenoon.
“May 15. Writ returned executed on the 8th day of May, A. D. 1897, by seizing the goods and chatties therein specified, and delivering the same to the plaintiff therein named, at the same time serving personally on said defendant, at the city of Kalamazoo, a certified copy of said writ, by Theodore Merrill, constable in and for said county. His fees, $1.10.
“Ten o’clock a. m. cause called. Plaintiff present in court. Defendant did not appear. After waiting one hour, trial proceeded with. Plaintiff declared orally in an action of replevin for the wrongful detention of certain goods and chattels described in said writ of replevin by defendant, to plaintiff’s damages of $100 or under. Nettie Newton sworn, and testified as a witness for and on the part of plaintiff; and, after considering her evidence, I rendered judgment in favor of plaintiff, and against defendant, for the restoration of goods described in the writ of replevin, and, further, that she recover her costs of suit, taxed at $3.10. I. Nat Wattles.
“Dated, May 15, 1897.”

It appears that on July 17, 1897, the plaintiff here made an application to the circuit court for Kalamazoo county for a mandamus to compel the justice to cancel this judgment of record, and to enter upon his docket the facts that, on the return day of the writ of replevin, the plaintiff did not appear; that the defendant did appear by attorney, who requested that the bond be produced, but that the same was not produced, and that, after the expiration of one hour, the defendant’s attorney insisted that a non-suit be entered; and that he further enter upon his docket a judgment of nonsuit, with costs to be taxed in favor of defendant, and also an entry that defendant have return of the goods and chattels replevied, unless the defendant should waive a return; that defendant recover damages sustained by reason of the detention of such goods and chattels, said damages to be assessed according to law; and that the justice render accessible, if within his power to do so, the bond filed in the cause. This petition was sworn to, and the facts were recited therein. The circuit court directed the issue of mandamus in accordance with the prayer of the petition. The justice, in accordance with this mandate, canceled the former judgment, and entered a new judgment reciting the facts as directed, entering a judgment in favor of defendant, and assessing the value of the goods taken at $10 and no damages for detention; defendant, however, to recover his costs of suit. The justice recited further in the judgment entry:

“It is not in my power to render accessible the bond filed in the cause, for the reason that it is not in my files in my office. Said bond was in the sum of $100, and signed by A. J. Holmes, and ran to Edward Cagney, and said surety justified in writing on the back of said bond, and was, to the best of my recollection, sworn to before me, and said bond was given and justified to before issuing of writ of replevin.”

This entry was made November 16, 1897.

While the first judgment purports to have been entered on May 15, 1897, the justice, while on the stand as a witness, testified that it was not entered on that day, but a week or 10 days thereafter; that he kept a minute book, upon which he entered his record, and then entered his judgment at his leisure; that plaintiff appeared in court, and was sworn, but that he was unable to state at what hour she appeared. He further testified that the statement in the first judgment entry that the defendant did not appear was false; that the attorney for the defendant did appear, and that, at the expiration of one hour, the plaintiff not appearing, the defendant’s attorney asked to have a judgment of nonsuit entered. The justice, however, testified that in the afternoon of May 15, 1897, — the day the first judgment purports to have been entered,— Nettie Newton came into his back office; that Mr. Cagney came in the front office; that he then told Cagney he should enter judgment for Nettie Newton; that he knew it was his duty to enter judgment of nonsuit for defendant, and, knowing such was his duty, he decided, after talking with both parties, to enter the judgment in favor of Nettie Newton. He further testified that, when he told Cagney he should enter judgment for Nettie Newton, he thought, from the way Cagney acted, that he waived the question.

The plaintiff was called as a witness in his own behalf, and testified that the goods replevied consisted of a trunk containing a large amount of wearing apparel and other things, of the value of $15 or $20. He was then asked to state the amount of expense he was put to in the mandamus proceeding. This was objected to, on the ground that the same was irrelevant, immaterial, and incompetent. This objection was sustained, to which ruling of the court counsel for plaintiff excepted. Plaintiff was then asked to state what, if any, attorney’s fees he had paid, or obligated himself to pay, in his effort to get the defendant to expunge the false entries made on his docket, and to have the entries made on the docket in accordance with the facts. This was objected to, and objection sustained. He was then asked to state what efforts his attorney had made to induce the justice to correct his docket. This was objected to, and objection sustained. Plaintiff then offered in evidence the files and records in the mandamus proceedings. Under objection of defendant’s counsel, the court refused to receive them in evidence. The plaintiff then testified that he was not in the office of the justice on May 15, 1897, nor for 10 days thereafter, and that the justice never told him he intended to render judgment in favor of Nettie Newton, and that he never saw her in the justice’s office at any time. The court instructed the jury that they should find, for the plaintiff, and assess his damages at what they found the goods worth. They returned a verdict for $15. The court was asked to award plaintiff his costs in the judgment. This was refused.

Plaintiff’s counsel contends in his brief that the court erred in excluding the testimony above referred to, and in refusing to allow the plaintiff his costs of the trial in the circuit court. It is contended by counsel for defendant that the court properly refused to receive the evidence in relation to these mandamus proceedings, for the reason that the proceedings were wholly void, and that, therefore, plaintiff had no right to recover from defendant the costs he incurred therein. Counsel cite, in support of this contention, the case of O’Brien v. Tollman, 36 Mich. 13. It is probable that the court below viewed that case as controlling in the present, as he held that the writ of mandamus had been improvidently issued. That case differed materially from the present. In that case there was no question but that the justice acted upon the facts as they were presented in the case. The parties both appeared. The court had jurisdiction of both the parties, and, on the entry of judgment, the aggrieved party had his remedy, either by general or special appeal or by certiorari, and mandamus was not the proper* remedy to review the action. In the present case, it was shown in the mandamus proceeding that a false judgment had been entered; that the plaintiff did not appear in the case, and, at the expiration of one hour, the defendant’s counsel, who was present, asked a judgment of nonsuit. The justice had no jurisdiction to render judgment in her favor. Subdivision 2, § 6938, 2 How. Stat. Her failure to appear worked a discontinuance of the suit at once. Redman v. White, 25 Mich. 523; Brady v. Taber, 29 Mich. 199. It then became the duty of the justice to enter judgment of nonsuit, with costs, and for a return of the property, or, if return was waived, to assess the damages. 2 How. Stat. § 8346; Redman v. White, supra. In case the defendant is entitled to judgment of nonsuit, the justice must enter the judgment at once. He cannot even take the four days allowed in certain cases. 2 How. Stat. § 6945. This want of jurisdiction would have appeared had the justice truthfully stated the facts on his docket. This he did not do, and the affidavits in the mandamus proceeding tend to show that no entry of judgment was made in fact for nearly a month after the return day of the writ. The justice then made the entry of the first judgment, falsely reciting the appearance of the plaintiff, and that the defendant did not appear. When the fact of the entry of this false judgment became known to plaintiff, the time for appeal had long since expired, as well as the time for taking out a writ of certiorari. Dpon the confession of the justice, this judg ment was false, and the only requirement of the mandamus was that a judgment be entered according to the. facts, — that is, a judgment of nonsuit, — for which the statute in express terms provides. We think the court below was in error in rejecting the testimony as to the costs of the mandamus proceedings. By the defendant’s own fraudulent acts, the plaintiff was made this expense, and should have been allowed to show the amount.

The question of costs in appeal cases is largely in the discretion of the court. That question is not Of much consequence in the present case, as on a new trial the judgment in favor of plaintiff may be largely increased, and the court below may then determine the question.

The judgment below is reversed, and a new trial awarded.

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


source: Caselaw Access Project

author: Grant, C. J.

license: Public Domain

text:
    TILLMAN v. BEARD.
    1. Arrest — Violation of Ordinanoe — Failure to Obtain Warrant.
    Thej president of a village, as conservator of the peace, has no authority to cause the arrest, without complaint and warrant, of one whom he finds carrying on the sale of popcorn and peanuts without having obtained the license required by an ordinance of the village; arrest without warrant being lawful only in cases of felony or breach of the peace.
    g. Same — False Imprisonment — Void Ordinance.
    One is not liable for false imprisonment in preferring a complaint against another for violation of an ordinance, thereby causing his arrest, merely because the ordinance is afterwards held void.
    Error to Shiawassee; Smith, J.
    Submitted June 7, 1899.
    Decided October 3, 1899.

      Case by A. Adelbert Tillman against Abraham L. Beard for false imprisonment. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.
    Plaintiff was a vender of popcorn and peanuts. He had a machine 5 feet 2 inches long, 2i feet wide, and about 5.1-feet high. The machinery was operated by steam generated by a gasoline burner. Plaintiff had obtained permission from a merchant in the village of Morrice to put his stand in the street in front of his store. There was an ordinance prohibiting the exercise of his vocation without taking out a license. He had taken out no license. The defendant was president of the village. He found plaintiff located as above stated, without a license. He took hold of his machine, ran it out into the street, and ordered the village marshal to arrest plaintiff. The marshal arrested him, and took him to jail, where he was confined about three hours. He was then released, rearrested upon complaint and warrant, convicted, fined, and appealed to the circuit court, where a nolle prosequi was entered, upon the ground that the ordinance was void. When the plaintiff had rested, the court directed a verdict for the defendant.

      John T. McCurdy, for appellant.

      Watson & Chapman, for appellee.
   Grant, C. J.

(after stating the facts). The declaration contains four counts, and alleges assault and battery, false imprisonment, and malicious prosecution.

1. The first arrest, without a complaint and warrant, was illegal. Officers are justified in arresting without a warrant only in cases of felony and breaches of the peace. This is elementary. It is needless to cite authorities. Plaintiff was engaged in no act dangerous to, the public, or liable to cause disturbance upon the streets. The act was not malum in se, but only malum prohibí um There was no danger of escape. There was no obstruction in the public highway requiring immediate removal for the convenience of the public. The defendant may have acted in good faith in ordering the arrest of plaintiff, but he certainly acted hastily, and without any legal authority. The statute did not give him, as conservator of the peace, the authority to imprison citizens of the village in this summary manner. By ordering the arrest, he made himself responsible for it, and liable for all its consequences. Webb, Pol.; Torts, 264, and authorities there cited; Veneman v. Jones, 118 Ind. 41 (10 Am. St. Rep. 100); Gilbert v. Emmons, 42 Ill. 143 (89 Am. Dec. 412).

2. The village was organized under Act No. 3, Pub. Acts 1895. By section 2, chap. 4, of said act, the president of a municipality is made a conservator of the peace. He is the chief executive of the village, and, as such, it becomes his duty to see that the ordinances of the village are enforced. We held in Brooks v. Mangan, 86 Mich. 576 (24 Am. St. Rep. 137), that neither a justice of the peace issuing, nor the officer serving, a warrant under a void ordinance, was liable. The reasons for such rule are there fully stated. For the same reason, an officer who, in good faith, makes a complaint in the belief that the ordinance is valid, is not liable. A party in good faith making a complaint for the violation of any law or ordinance is not required' to take the risk of being mulcted in damages if courts afterwards hold it unconstitutional. This rule is dictated by the plain principles of public policy. In Marks v. Townsend, 97 N. Y. 590, it is said:

“This rule of exemption is founded in public policy, and is applicable alike to civil and criminal remedies and proceedings, that parties may be induced freely to resort to the courts and judicial officers for the enforcement of their rights and the remedy of their grievances, without the risk of undue punishment for their own ignorance of the law or for the errors of courts and judicial officers.”

If the officer is protected in the service of the warrant, in which act he is performing a duty imposed upon him by law, why should he not be equally exempt where he is in the performance of his duty in making complaint for the violation of an ordinance of his municipality ? I think the reason of the above case covers this. I have not found a case where a police officer, or an officer charged with the duty of enforcing the law, has made a complaint. I find, however, many cases involving the liability of persons making criminal complaints, and thus causing arrests. In Ross v. Griffin, 53 Mich. 5, plaintiff was arrested on a writ of commitment for contempt. The writ was issued by the judge of the superior court of the city of Detroit upon the motion of the solicitors for the complainant in the suit against Ross. He was discharged by this court upon a writ of habeas corpus, the court holding that the commitment was erroneous. This court held that neither the judge nor the solicitors who procured the commitment were liable in an action for false imprisonment, the record showing that they acted in good faith.

Where a party had been arrested under a statute after-wards held to be unconstitutional, and thereby the magistrate had no jurisdiction and the process was void, the court said:

“The authorities are conclusive that, when a person does no more than to prefer a complaint to a magistrate, he is not liable in trespass for the acts done under the warrant which the magistrate thereupon issues, even though the magistrate has no jurisdiction. If the complaint is malicious, and without probable cause, the complainant may be answerable in another form of action.” Barker v. Stetson, 7 Gray, 53 (66 Am. Dec. 457), and authorities there cited.

Tins case is cited with approval in Langford v. Railroad Co., 144 Mass. 431.

Where the judge had determined, in the exercise of the jurisdiction committed to him by the law, that the affidavit was sufficient to entitle the party to the writ, it was said: “To hold that such party is liable in damages for the erroneous judgment of the judge would impose on him a responsibility not warranted by law.” Busy v. Helm, 59 Cal. 188. In Loomis v. Render, 41 Hun, 268, defendant was held liable for false imprisonment, where he drew the complaint, had it signed by another, took it to the justice, filled up the warrant, gave it, signed by the justice, to the constable, and ordered the arrest of plaintiff at any cost. It is there said: “The defendant would not have been liable if he had only presented the complaint to the justice, and asked for a warrant, if he had done so in good faith- and without malice.” In Carratt v. Morley, 1 Q. B. 18, it was held that “ a party who merely originates a suit by stating his case to a court of justice is not guilty of trespass, though the proceedings should be .erroneous or without jurisdiction.” That case was brought against Morley, who instituted the suit, and the officers who issued the process for arrest. See Add. Torts, 148. In Murphy v. Walters, 34 Mich. 180, it was said:

“A person who simply lays facts before a magistrate, and leaves all further action to the unbiased and unsolicited conduct of the latter, is not liable in trespass for false imprisonment, unless he takes some part in furthering the arrest or urging the detention.”

Where a party was arrested under a void act of the legislature, the court say:

“ It seems to us that the mere fact that the defendant made the affidavit, under the circumstances, is not enough to warrant the court in ruling, as a matter of law, that he was liable for the imprisonment.” Fenelon v. Butts, 49 Wis. 342.

See, also, Gelzenleuchter v. Niemeyer, 64 Wis. 321 (54 Am. Rep. 616).

It is stated in the American and English Encyclopedia of Law (volume 12, 2d Ed., p. 756, note 5):

“The true rule is believed to be this: Though the warrant on which the arrest was made is invalid for insufficiency of the affidavit, the affiant is not, however, liable in false imprisonment, unless he participated in the issuanee or execution of the warrant beyond the mere making of the affidavit.”

A case precisely in point is Gifford v. Wiggins, 50 Minn. 401. Plaintiff was arrested under a void ordinance, upon the complaint of the defendant, who, so far as the record shows, was a private citizen. The ordinance was afterwards held to be absolutely void, but the defendant was held not liable for false imprisonment. It is there said:

“It seems to be settled by an almost unbroken line of authorities, that if a person merely lays a criminal complaint before a magistrate in a matter over which the magistrate has a general jurisdiction, and the magistrate issues a warrant, upon which the person charged is arrested, the party laying the complaint is not liable for an assault and false imprisonment, although the particular case may be one in which the magistrate had no jurisdiction.”

Judgment reversed, and new trial ordered.

The other Justices concurred.


author: Hooker, J. Grant, C. J.

text:
    BACON v. REICH.
    1, Pleading — Notice of Recoupment— Sufficiency.
    A plea of the general issue, with “notice of set-off and recoupment,” is too indefinite to permit of evidence under the notice, if objection is seasonably made; citing ICevr v. Bennett, 109 Mich. 546.
    3. Same — Delayed Objection.
    An objection to a notice of recoupment on the ground of insufficiency comes too late when made in the form of a request to charge, after plaintiff has gone to trial without raising the question either in justice’s or the circuit court.

      8. Trial — Objections to Testimony — Appeal—Review.
    An objection to testimony as incompetent and immaterial will not avail a party on appeal, where there was nothing to apprise the trial court as to the ground ón which the testimony was claimed to be incompetent.
    4. Judgments — Merger-Recoupment.
    The merger of a claim against an insolvent corporation for breach of contract in a judgment for damages, recovered after the corporation had, without the knowledge of the claimant, assigned its own claim under the contract, will not prevent the judgment creditor, when sued by the assignee, from having his damages applied against the claim; the circumstances warranting the court in refusing a strict application of the rule of merger. Grant, O. J., and Montgomery, .■ J., dissenting.
    Error to "Wayne; Lillibridge,' J.
    Submitted June 9, 1899.
    Decided October 3, 1899.

      Assumpsit by Elbridge F. Bacon against William Reich for goods sold and delivered. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Bacon & Palmer, for appellant.

      Louis O. Wurzer, for appellee.
   Hooker, J.

The defendant recovered a judgment against the Architectural Iron & Wire Works for a breach of a contract. He was afterwards sued by the assignee of the iron works for the price of the articles furnished to him under the contract, the assignment being made before his action for damages was instituted. In this action he sought to set off or recoup his damages, which was permitted by the trial court. The plaintiff has appealed the case, contending that the claim for damages is merged in the defendant’s judgment, and therefore will not again support an action or defense, and that the judgment cannot be set off against the plaintiff, for the reason that there is a want of privity. It is also claimed that the plea was insufficient to warrant the admission of this proof.

, It must be admitted that the plaintiff is not privy to the judgment, because he acquired' his rights, whatever they are, before defendant began his action. Bartero v. Bank, 10 Mo. App. 76; Powers v. Heath’s Adm’r, 20 Mo. 319; Mathes v. Cover, 43 Iowa, 512; Todd v. Flournoy’s Heirs, 56 Ala. 99 (28 Am. Rep. 758); Marshall v. Croom, 60 Ala. 121; Cook v. Parham, 63 Ala. 456; Coles v. Allen, 64 Ala. 98; Winslow v. Crindal, 2 Geenl. 64; Weed Sewing-Machine Co. v. Baker, 1 McCrary, 579; Bigelow, Estop. 135, 136. He is privy, however, to the injury upon which defendant’s judgment rests. It is also true that the claim of the defendant was merged in the judgment against the iron works, and the judgment would be a bar to another action, or an attempt to recoup the damages, against the Architectural Iron & Wire Works. But the judgment could be set off in an action brought by the iron works, or an action might be brought upon it., We deem it unnecessary to cite authorities in support of these principles, which are elementary.

It is nevertheless true that the plaintiff took this claim subject to the equitable right of the defendant to have his damages applied upon it, and all that can prevent is the technical rule that they are merged in a judgment against plaintiff’s assignor. Theoretically, this may be said to be no hardship, because, if the defendant shall pay the plaintiff’s claim, he would yet have the- right to collect his judgment for damages, which would work out exact justice to all. Practically, however, this is not so, because he cannot collect his judgment. The iron works is insolvent, and was at the time the plaintiff, who was a stockholder in the concern, took his assignment, and the defendant cannot collect his judgment in any other way than to set it off against his contract obligation. Furthermore, the record contains evidence that he was ignorant of the assignment at the time he took his judgment, and had a right to suppose that, by obtaining the judgment, he had settled the question of his liability on the contract, and was led to do so to avoid liability in a garnishment suit, which was adjourned for the purpose. But for the previous assignment, this would' have been so, because the judgment would have bound all persons afterwards acquiring title to the claim from the iron works.

“According to more recent cases, the doctrine that claims become merged in judgments is supported on the grounds that the allowance of a new suit is a superfluous and vexatious encouragement to litigation, injurious to the defendant and of no benefit to the plaintiff15 Am. & Eng. Enc. Law, 339, and cases cited.

The doctrine, if rigorously applied, may work hardship and injustice, and it seems to be lawful to disregard it in some cases. Thus, a foreign judgment does not bar an action upon the original claim. Vanquelin v. Bouard, 15 C. B. (N. S.) 341; Wilson v. Tunstall, 6 Tex. 221; Wood v. Gamble, 11 Cush. 8 (59 Am. Dec. 135); New York, etc., R. Co. v. McHenry, 17 Fed. 414. See, also, Olcott v. Little, 9 N. H. 259 (32 Am. Dec. 357). In Eastern Townships Bank v. Beebe, 53 Vt. 177 (38 Am. Rep. 665), it is said that:

“A foreign judgment, when shown in evidence, upon a matter within the jurisdiction of the court, and in which the court had jurisdiction of the parties, so that they were personally bound by the judgment in the country where rendered, is conclusive upon the matter therein adjudicated. But it at the same time is held that the original cause of action is not so merged by that judgment that it is incapable of being the subject of a suit in a country foreign to that in which the judgment was recovered. The books are uniform in making the distinction between merger of the cause of action and conclusiveness of effect, as matter of evidence, when the effect of a foreign judgment is brought in question in a suit upon the same original cause of action.”

In cases where, through mistake or fraud, it would be inequitable to treat such judgments as a bar, the doctrine cannot be invoked. The case of Ferrall v. Bradford, 2 Fla. 508 (50 Am. Dec. 293), is in point. We quote:

“ The plaintiffs in the court below took judgment against only one of the joint obligors, and, when that fact is pleaded by the defendants in bar, they reply that they did only do so because their attorney was circumvented, and induced to dismiss the proceedings as to the other defendants, in consequence of the fraudulent representations of one of the defendants. It matters little as to the mode or manner in which fraud is effected. A court must look to the effect, and ask if the result is a consequence of the fraud. Here the defendants seek to avail themselves of a legal defense, arising from a state of facts which they themselves, by their fraud, have produced. They admit, virtually, by their demurrer, that the plaintiffs have been deprived of a legal right by their fraud, and they seek now, by their defense, to take advantage of their own wrong,— a defense admitted to arise from their own fraudulent act. The question now is, Will such a defense be available, tolerated, or allowed? Law, reason, justice, and morality unite in a negative response. * * * At the first blush, we thought we discovered some difficulty arising from the fact that only one of the defendants is alleged to have been guilty of the fraud; but it soon disappeared, for we find this principle broadly laid down,' — that interests gained by one person by the fraud of another cannot be held by them; otherwise, fraud would always place itself beyond the reach of the court.” •

Clark v. Bowling, 3 N. Y. 216 (53 Am. Dec. 290), denies the unyielding character ascribed to merger, as shown by the following extract from the opinion of Mr. Justice Hurlbut:

“ It is true that the notes, as evidence of an indebtedness, were merged in the judgment, which, being greater security, operated to extinguish the lesser; but does it therefore follow that the judgment to all intents became a new debt, and that the merger or extinguishment of the notes was so complete as that, for the purpose of protecting the defendants in an equity connected with their original indebtedness, we may not look behind the judgment, and see upon what it was founded ? A j'udgment, instead of being regarded strictly as a new debt, is sometimes held to be merely the old debt in a new form, so as to prevent a technical merger from working injustice. And this exception to the doctrine contended for by the plaintiff has obtained, especially in cases of insolvency and bankruptcy, for the protection as well of the creditor as the debtor, and has been applied impartially for the benefit of both.”

In Stevens v. Damon, 29 Vt. 521, it was hel that:

“The judgment of the justice in such a suit will not be a bar to a subsequent suit for the recovery of the account of the plaintiff which was not presented, if its presentation was omitted by mistake, or for any other sufficient reason.”

See Cramer v. Manufacturing Co., 35 C. C. A. 508, 93 Fed. 636; Fox v. Althorp, 40 Ohio St. 322; Kane v. Morehouse, 46 Conn. 300 (closely resembles Stevens v. Damon); Wyman v. Mitchell, 1 Cow. 316, and other cases cited in the case of Clark v. Rowling, supraj also, Johnson v. Insurance Co., 12 Mich. 216 (86 Am. Dec. 49).

In the case before us, there is evidence from which it might be found that the course taken by the defendant in procuring a judgment for the breach of the contract was due to the concealment on the part of the iron works of the fact of the transfer of the claim, or, at least, of the mistake of the defendant in supposing that it belonged to the iron works at that time. We think the hardship and injustice of a strict application of the rule of merger is so apparent that we are justified in considering the case within the principle of the cases cited, and holding that, although the plaintiff was not strictly in privity as to the judgment, he was as to the cause of action upon which it was based, and that the defense made was proper. We think this conclusion renders it unnecessary to discuss the subject of election of remedies raised by the briefs.

The further point is made that the defense was not admissible under the pleadings. The case began in justice’s court. The plea was presumably oral, and consisted of “the general issue, notice of set-off and recoupment.” This was not a sufficiently definite plea, under the case of Kerr v. Bennett, 109 Mich. 546, but it was amendable, and, had attention been called to it, doubtless would have been amended.

The objections shown in the record do not indicate that the sufficiency of the plea was attacked. They are simply that certain questions and testimony were incompetent and immaterial. That might mean that the plea was insufficient, or that the defense of recoupment could not be proved because of the former judgment, which seems to have been, then, as here, the main contention. Such objections are admirably adapted to the concealment of the real point relied upon, and we have often held that they will not justify a reversal. The authorities are collected in the recent case of Detzur v. Brewing Co., 119 Mich. 282.

The judgment should be affirmed.

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

Grant, C. J.

(dissenting). This suit originated in justice’s court. Defendant entered into a contract with the Architectural Iron & Wire Works, a corporation, by which it agreed to furnish defendant certain iron trusses for the sum of $400. The iron works, being indebted to the plaintiff, assigned the amount due upon the contract to him. The justice returned that “the defendant pleads the general issue, notice of set-off and recoupment.” Defendant, claiming a breach of contract, sued the iron works, and recovered a judgment for $358 damages, from which no appeal was taken, and the j udgment remained in full force and effect. It was admitted that $100 was due upon the contract. The court permitted the defendant to recoup damages, and verdict and judgment were rendered for him.

1. The notice of recoupment was too indefinite to permit any evidence under it. Kerr v. Bennett, 109 Mich. 546; Roethke v. Brewing Co., 33 Mich. 340; Delaware, etc., Canal Co. v. Roberts, 72 Mich. 49; Darrah v. Gow, 77 Mich. 16. Had objection been seasonably made, it should have prevailed, unless defendant had asked leave to amend. But the record discloses that this point was not raised until the testimony was concluded, and then the plaintiff requested the court to instruct the jury “that, under the plea and notice filed in this case, the defendant cannot be allowed for any of the items of his claim.” Under the record as it now appears, plaintiff saw fit to go to trial in both the justice’s and circuit courts without any objection to the sufficiency of the plea and notice. We think a plaintiff should not be permitted to raise such an objection at the-close of the trial.

2. Defendant, claiming damages for violation of contract on the part of the Architectural Iron & Wire Works, had two courses open to him. He could have waited until the iron works or its assignee sued him, and then have recouped his damages, or he could have brought an independent action for damages. He chose the latter. The tort became merged in the judgment, which became a new debt, unaffected by the claim upon which it was based. Judgments are contracts, and are subject to set-off in actions of assumpsit. 1 Freem. Judgm. § 217; 15 Am. & Eng. Enc. Law, 338, 339. The latter authority states the rule as follows:

“And the present rule undoubtedly is that no second suit can be maintained on the same cause of action, irrespective of the question whether the judgment in the first suit was of a higher or lower nature than the cause of action; the reason for the rule being that the judgment is a judicial determination of the rights of the parties, into which the plaintiff has voluntarily elected to transform his claim.”

The authorities in support of this are cited in note 7.

The general rule, as above stated, is admitted, but it is urged that there are exceptions to it, and that the present case forms one of the exceptions. In Eastern Townships Bank v. Beebe, 53 Vt. 177 (38 Am. Rep. 665), the opinion recognizes the rule, but appears to limit it to domestic judgments. The opinion says:

“It [the judgment] is not so merged unless it has become a debt of record, so that the record itself has become a cause of action. * * * The books are uniform in making the distinction between merger of the cause of action and conclusiveness of effect, as matter of evidence, when the effect of a foreign judgment is brought in question in a suit upon the same original cause of action.”

The same rule was announced by this court in Bonesteel v. Todd, 9 Mich. 371 (80 Am. Dec. 90). We are not dealing with a foreign judgment, and the rule of those casesjdoes not apply.

In Ferrall v. Bradford, 2 Fla. 508 (50 Am. Dec. 293), suit was brought against three parties upon a joint bond. The Bradfords, by fraud, procured a judgment to be rendered against the other obligor alone. The court would have applied the maxim, “ transit in rem judicatam,” but for the fraud of defendants. In that case there was no judgment against the defendants, but only against their joint obligor. So, it was held in Bonesteel v. Todd, supra, that a judgment rendered against two joint debtors in the State of New York, one of whom was not served with process and did not appear, did not bind the party not appealing, and did not prevent the plaintiff from suing upon the original cause of action in this State. In Clark v. Bowling, 3 N. Y. 216 (53 Am. Dec. 290), the sole question was the effect of a discharge in bankruptcy upon a judgment rendered after the petition in bankruptcy was filed, the decree in bankruptcy being rendered after judgment was taken. The basis of the decree in Clark v. Bowling is found in Wyman v. Mitchell, 1 Cow. 316, where the same question arose. Of that case the court, in Clark v. Bowling, say:

“And the court held that, although the original undertaking of the defendant was so merged in the judgment that no suit could be maintained upon it, yet that it was proper to inquire into the time and circumstances, of the contract upon which the first judgment was founded, for the purpose of taking the case out of the operation of the defendant’s discharge.”

All the cases there cited involve the effect of a discharge in bankruptcy.

In Stevens v. Damon, 29 Vt. 521, the sole question litigated was whether items omitted by mistake from an account sued upon in justice’s court were merged in the judgment, upon the ground that a party cannot split up his cause of action. It is there said:

“Ordinarily, such a judgment will bar a subsequent suit on the account so omitted, as the plaintiff cannot divide his account and make it the subject of several actions.”

A like case is Kane v. Morehouse, 46 Conn. 300.

In Fox v. Althorp, 40 Ohio St. 322; the sole question was the right of the plaintiff to maintain four suits for monthly installments of overdue rent. Four suits had been begun before a justice of the peace for the installments due on the 1st days of September, October,' November, and December. Judgment was rendered in the suits involving the September and October installments, and the justice then rendered judgment upon the same evidence in each of the other suits. Defendant paid the judgments fo,r the installments due in November and December, and appealed the other judgments to the common pleas, and there pleaded satisfaction of the judgments ih bar. The court found that practically the four suits were tried as one, and the court based its judgment upon the ground that the defense was purely technical, and that defendant acquiesced in the severance. In Cramer v. Manufacturing Co., 35 C. C. A. 508, 93 Fed. 636, the sole question was whether a party was bound by a judgment rendered in a suit brought by him against another defendant, and whether such judgment was res judicata as to the latter suit. The decision was based upon the fact that the real party defending had not done so openly, to the knowledge of the opposite party, and therefore was not bound by the judgment.

In these cases it was not sought to reopen the judgments for the purpose of contesting the original causes of action, where judgments had been rendered against defendants who had been served with process, or who had appeared and contested the suits. Nor do they involve a case like the present, where the party, having a choice of two remedies, has chosen to bring his suit for damages. Defendant, Reich, had been garnished, and evidently disclosed in the garnishment suit his claim for damages, which was greater than the amount due upon the contract. Evidently, at his request, the garnishment suit was held to permit him to establish in a separate suit his claim for damages. I see no reason why he could not have made' that defense in the garnishment suit, which would have wiped out the claim assigned to Bacon. I find no evidence of fraud or deception on the part of Bacon or his assignor in the assignment' of this claim, or any evidence that it was assigned for the purpose of defeating Reich. The rule of law involved cannot, in my judgment, be changed by the fact that the iron works has become insolvent. The original cause of action in Reich against the iron works has, in the language of Eastern Townships Bank v. Beebe, 53 Vt. 177 (38 Am. Rep. 665), become so merged in the judgment ‘ ‘ that the record itself has become a cause of action.” The only office which that judgment can now serve is as a set-off. Huntoon v. Russell, 41 Mich. 316.

Judgment should be reversed, and new trial ordered. .

Montgomery, J., concurred with Grant, C. J.


author: Long, J.

text:
    BRENNAN v. O’BRIEN.
    1. New Trial — Discretion oe Trial Judge — Review.
    While the Supreme Court is warranted by the provisions of Act No. 134, Pub. Acts 1893, in reviewing the discretion of the trial judge in refusing a new trial, asked on the ground that the verdict is against the weight of evidence, it will not ordinarily, after he has seen the witnesses, heard the testimony, and given careful consideration to the motion, interfere with his conclusions.
    2. Jurors — Qualification—Acquaintance with Parties.
    That a person summoned as a jiu-or has a general social acquaintance with one of the parties to a cause, and for that reason prefers not to sit, is not] ground for excusing him, where he declares that, should he sit, he can and will render a verdict according to the evidence.
    3. Same — Harmless Error.
    A judgment will not be reversed because the court excused a qualified juror who was acceptable to appellant, where it does not appear that appellant exhausted his peremptory challenges, that talesmen had to be summoned, or that he was otherwise prejudiced.
    Error to Wayne; Hosmer, J.
    Submitted June 9, 1899.
    Decided October 3, 1899.
    Case by William Brennan against Patrick B. O’Brien for false imprisonment. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Keena & LigMner, for appellant.

      W. E. Baubie, for appellee.
   Long, J.

This is an action on the case for an alleged illegal arrest and imprisonment. It appears that the defendant is a member of the firm of O’Brien & Co., which carries on a grocery business in Detroit. Plaintiff was employed in defendant’s store. On November 18, 1897, Mr. Gibbs, the cigar man in the store, went to the staircase to get his coat. This staircase leads to the cellar, and is entirely closed, except at the entrance, and is dark, except when the electric lights are turned on. Gibbs had hung his coat there in the morning, and not finding it at noon, and presuming that one of the employés had taken it in sport, he asked each of them, on their return, about it. He was informed that the plaintiff had left a coat in the cellar; that he had not gone out the front door to dinner, as usual; and that he had returned through the rear door. Gibbs asked him about his coat. Plaintiff denied that he knew anything about it. Gibbs told the defendant about it, and stated that he thought plaintiff must know about it. Defendant asked plaintiff about the coat, and he denied to him that he had any knowledge of it. Defendant then sent Gibbs to the police station for a detective to investigate the matter. Detective Baker returned with Gibbs, and defendant told Baker that plaintiff was the person suspected. Plaintiff, defendant, and Baker then had a conversation about the matter. Their versions in regard to this differ. Plaintiff testified :

“As the detective came in, O’Brien said, ‘There is the fellow that stole that coat; take him away.’ Mr. Baker walked up to me and put his hand on my shoulder, and told me I was under arrest. He says, ‘You are under arrest,’ and he opened his coat, and his badge was there; and I asked him if I could go downstairs and put on my coat. I went down. He says, ‘Come on; I will take you down.’”

The plaintiff further testified that, after going into the cellar, the defendant asked: “What did you have for dinner today ? ” That he told him, and then the defendant said: “ Where did you get it ? ” That he told him his mother-in-law helped him through, when the defendant said to the officer: “He is married. He gets three dollars per week. ■ How can he live if he don’t steal?” The plaintiff then testified:

“Mr. O’Brien told the officer to take me away. The detective pulled back his coat, and in his hip pocket he had handcuffs; and he told me that, if I would go peaceably on, he would not put them on me.”

Plaintiff then detailed the walk through the different streets with the detective, and stated that, in going, tine officer stopped in two or three different pawn-shops, and asked “if this fellow had pawned a coat there;” that the officer would put his hand on his shoulder and say, “We will go in here;” that they went to plaintiff’s house, which the officer searched, and then returned to the store, where the officer left him, saying, “That will be all*for you now.” Plaintiff further testified that he worked in the store for a few days after this, when the detective came in and said to O’Brien, “We have got the man who took that coat;” and that O’Brien, turning to plaintiff, said, “You can go to work now, and everything will blow over in a few days.” Plaintiff further testified that he quit work a few days thereafter because the men in the store laughed at and made it uncomfortable for him; that he tried to find work thereafter, and could not for about six . months; that he tried to find work, but on each occasion he was asked where he worked last, and what he left his work there for, and when he stated the reason he could not get employment.

The defendant and the detective both testified that at no time did the detective lay hands on the plaintiff, nor did he tell him he was under arrest, and that defendant did not ask or instruct the detective to arrest him. They further testified that the detective went to plaintiff’s house at his suggestion, to prove to them that he did not have the coat.

The court charged the jury in part:

“It is claimed on behalf of the defense that there was no arrest, and to that I think Mr. O’Brien testifies, and the officer, Mr. Baker, and those parties in the store, who had an opportunity to see at least a part of the occurrence there. It is for you to say from this evidence which has been offered in this case whether the plaintiff was or was not arrested. If he was arrested, he is entitled to recover such damages as will compensate him. If he was not arrested, obviously the defendant is entitled to your verdict ; and I charge' you as requested by the defendant: ‘ If the jury find from the evidence that the plaintiff was not arrested by Detective Baker on November 18, 189?, your verdict would be for the defendant. And, unless the plaintiff was deprived of his liberty by Detective Baker, there was no arrest, and the verdict will be for defendant.’”

After verdict in favor of plaintiff for $500, the defendant moved for a new trial. This was refused, and many of the assignments of error are based upon that refusal.

1. It is fir^t contended that the motion should have been granted for the reason that the verdict was against the great weight of evidence. It is conceded that this court will not usually review the discretion of the trial court in refusing to grant a motion for a new trial; but counsel urge that the present case is one which should move this court to interfere, under the provisions of Act No. 134, Pub. Acts 1893, which provides for “incorporating the record of proceedings had on motions for new trial in bills of exceptions.” The statute is undoubtedly broad enough in its terms to warrant the interference of this court on appeal here, but we do not think the present case presents such a state of facts that we should overturn the deliberate conclusions of the circuit judge. It is true that the plaintiff was contradicted in many essential particulars in reference to the question whether an arrest was actually made. The plaintiff’s story was listened to by the jury, and they found, under the charge, that the plaintiff was arrested. The circuit judge also saw the witnesses, heard their testimony, and, after a careful consideration of the case, refused the motion. No showing is made which convinces us that the court did not act properly in refusing the motion.

2., The defendant took exception to the ruling of the court in excusing two jurors who he claims were qualified to sit, and who were satisfactory to the defendant. It appears that plaintiff had exhausted his peremptory chailenges, when Mr. Beck was called as a juror. His examination took place as follows:

“Q. How long have you known Mr. O’Brien?
“A. Some years; I don’t know just how long he has been on Woodward avenue.
“Q. Do you know him intimately ?
“A. No, sir.
“Q. Have you done business with him?
“A. I have done some business with him in' the store,— just purchasing, and paying for what I got.
“Q. Just the same as you would do in any other store?
“A. The same as I would do in any other store.
“Q. And it was not a question of meeting him there; it was the meeting of anybody that happened to serve you ?
“A. Yes; that is all.
“Q. Do you know Detective Baker?
“A. I am acquainted with him.
“Q. How long have you known him ?
“i. I could not say definitely. I have known him as a detective.
“Q. Are you on speaking terms with him?
“A. Yes; say ‘Hello;’ that is all.
‘ ‘ Q. Do you think that in a case where the detective had made an arrest, and his evidence might possibly contradict the plaintiff, that you would be unbiased in rendering a verdict in this case ?
“A. The question of the detective’s testimony would not cut any more figure than any one else.
ilQ. You feel, then, as though you were prepared to go on with this case and try it impartially, Mr. Beck, without any favors to any one ?
“A. So far as Detective Baker is concerned, yes, sir.
“Q. Well, so far as Mr. O’Brien is concerned?
“A. Well, my relations, of course, with Mr. O’Brien, have always been very friendly. His brother, also, I know very well.
“Q. You know them very well, do you not?
“A. Well, quite well.
“Q. Wouldn’t you rather not sit in this case?
“A. I would rather not sit, under the circumstances.
“Q. Don’t you think it would be rather unpleasant for you to render a verdict against Mr. O’Brien in this case, if the evidence showed that he was guilty of the charge made here?
“A. If he were guilty, I would render a verdict.
“Q. Would you rather not sit in this case, knowing Mr. O’Brien as well as you do?
“A. Under the circumstances, yes, sir.
“The Court: You may be excused, Mr. Beck.
“Mr. Lightner: I would like to ask Mr. Beck some questions before he is dismissed.
“The Court: You may make your record.
“Mr. Lightner: Mr. Beck, what, in general, is the character of your delations with Mr. O’Brien; that is, other than knowing him in a social way ?
“A. No other relations; no.
“Q. Now, would your relations with Mr. O’Brien be such that you could not fairly listen to the evidence, and give a verdict in accordance with the evidence and the instructions to the jury?
“A. I would give a verdict in accordance with the evidence, certainly.
“The Court: Mr. Beck, you may do as you please about it. If you feel, under the circumstances, you prefer not to sit, you may do as you please. Under the evidence, I do not think there is any legal reason for disqualification shown.
“Mr. Baubie: I think, under the circumstances, if I had another peremptory challenge I would excuse Mr. Beck, more on account of himself than anything else.
“The Court: He may be excused on his own motion, if he desires.
“Mr. Beck: All right, sir.
“Mr. Lightner: I will ask for an exception. I understand the counsel has exhausted his challenges, there is no challenge for cause, and that your honor does not excuse Mr. Beck, — you simply give him the privilege under my objection.
“The Court: Yes. Call another juror. Note an exception.”

About the same facts apply to the juror Salliotte, who was also excused by the court.

While it is conceded by counsel that the court may excuse a juror when it has some reason for so doing, yet it is insisted here that the court, without any reason whatever, permitted these jurors to excuse themselves; that by this course the court, after plaintiff had exhausted his challenges, deprived the defendant of an equal chance of securing an impartial jury; that defendant at that time had exhausted three of his challenges, and could exercise only one more. On the other hand, it is contended by counsel for plaintiff that the examination of these jurors disclosed that they were not qualified to sit. We find nothing in the answers of the jurors to the questions put to them that in any manner disqualified them as jurors. It is true that in Welch v. Publishing Co., 83 Mich. 661 (11 L. R. A. 233, 21 Am. St. Rep. 629), it was held to be error where the court excused a juror who was qualified to sit, but it there appeared that the regular panel had been exhausted and talesmen were drawn in place. It was shown that the plaintiff was prejudiced by the action of the court in excusing the juror. In the present case the defendant had not exhausted his peremptory challenges, and it does not appear that the panel of regular jurors had been exhausted. Under such circumstances, we cannot say that the defendant was prejudiced in any of his rights. In Luebe v. Thorpe, 94 Mich. 271, it appeared that the court excused a juror because he was over 60 years of age. This was held to be no ground of challenge for cause, and yet it was said:

“It does not follow, however, that the act of the circuit judge in excusing the juror was prejudicial to the defendant. It does not appear that there were not remaining a sufficient number of jurors of the regular panel to form a jury to try this case; nor does it appear that the defendant had any ground of objection to any of those who actually sat in the case, or that she had exhaused her peremptory challenges.”

The reason for this holding is fully set out in Atlas Mining Co. v. Johnston, 23 Mich. 39, which is quoted from at some length in Luebe v. Thorpe.

We are of the opinion that no prejudicial error is shown in the present case. The judgment must be affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
    PISKOROWSKI v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO.

    Railroads — Injury to Dear Person — Hand-Oars—Flagmen.
    A hand-car crew employed by defendant, while moving south on a track used for north-bound trains, observed iflaintiff ahead of them, walking beside the track at a sufficient distance from the rail to permit of their passing him in safety. The men shouted to plaintiff several times, but, although he gave no signs of heeding them, made no effort to stop the car before it caught up with him, and he, having failed, because of deafness, to hear the warnings, turned upon a cross-walk abruptly in front of the car, and was struck by it and injured. Plaintiff had previous knowledge that a flagman, whom he saw standing in the door of the flaghouse, was employed to give warning of approaching trains, and relied upon the fact that no signal was given him as indicating that the track was clear. Held, that, inasmuch as plaintiff was in a place of safety up to the moment of the accident, neither the car crew nor the flagman was negligent in assuming that he heard the warnings.
    Error to Wayne; Lillibridge, J.
    Submitted June 8, 1899.
    Decided October 3, 1899..
    Case by Anthony Piskorowski against the Detroit, Grand Haven & Milwaukee Railway Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.
    ■ William E. Eenwiclc and A. B. Hall, for appellant.

      L. G. Stanley (E. W. Meddaugh and Geer & Williams, of counsel), for appellee.

       Rehearing denied January 33, 1900.

   Montgomery, J.

On the 15th day of September, 1897, between 5:30 and 6 o’clock in the afternoon, the' plaintiff, a laboring man, about 42 years of age, and quite deaf, was returning from his work to his home. At Superior street, in the city of Detroit, the plaintiff turned upon the track of the defendant company, upon which he intended to walk to Alexandrine avenue, one block south, where he had a message to deliver to a man who lived close to the track. Between Alexandrine avenue and Superior street there are three tracks, — two main tracks and a side track. The plaintiff knew that trains going north ran on the easterly main track, and trains going south ran on the westerly main track. As he was going south, he therefore walked on the easterly track, so that, in case he was in danger of being struck by a train, he could see it approaching. He walked along the ties a few inches from the west rail of the easterly main track. When the plaintiff turned upon the track of the defendant company, he looked in both directions, and saw nothing approaching, but he did not turn again until he came to Alexandrine avenue. When about 30 steps from Alexandrine avenue, plaintiff looked around for a watchman, and saw none; but, when he reached the sidewalk, he saw the flagman in the door of the flaghouse, cleaning lamps. Plaintiff had previous knowledge that a flagman was stationed at this crossing. He turned abruptly on the sidewalk to cross the easterly main track, along the ties of which he had been walking. As he stepped across the rail he was struck by a hand-car of defendant company coming from behind, and was severely injured, his leg being crushed and rendered useless. The hand-car was propelled by four men, with a foreman in charge of a hand-brake. When the plaintiff was about 10 feet from the Alexandrine-avenue crossing, and the hand-car was about 30 feet in the rear of plaintiff, the men on the hand-car shouted to him a warning, which he did not hear, and to which he paid no attention. When between 12 and 15 feet away from the plaintiff they again shouted, and plaintiff again failed to pay any attention, and the men on the hand-car made no effort to slow up. The men on the hand-car shouted a third time just before they struck the plaintiff. The testimony of one of the men,' still in the employ of defendant company, was that the car was going very slow, and could be stopped within a few feet. When the plaintiff was struck he was upon the sidewalk of Alexandrine avenue, and had turned upon the sidewalk to cross the track. After plaintiff had submitted his case, upon motion of defendant’s attorney the learned trial judge directed a verdict for the defendant, to which ruling of the court the plaintiff assigns error.

Two grounds of recovery are urged in this court: First, that defendant’s employés were guilty of gross and wanton negligence in running down the plaintiff, such as to excuse contributory negligence on the part of the plaintiff if the jury should find such negligenceand, second, that the flagman was guilty of negligence in failing to warn plaintiff of the approaching hand-car, and that the plaintiff, having the right to rely upon the flagman to give him warning, was not guilty of negligence in failing to look before stepping in front of the hand-car.

1. The evidence shows that the plaintiff, while pursuing his course near the track, was 8 to 10 inches from the rail, and there is no testimony that the hand-car had any overhang. It is asserted by defendant’s counsel that, as a matter of fact, there was none, and it is not claimed by plaintiff’s counsel that there was. He was then in a place of safety, if he pursued the course he was in when discovered by defendant’s servants. We think negligence cannot be imputed to defendant’s servants in not knowing of plaintiff’s deafness, and in not assuming that he would ignore the warning given him. In this respect the case is quite similar to Bouwmeester v. Railroad Co., 67 Mich. 90. See, also, Fritz v. Railway Co., 105 Mich. 54.

2. Was it the duty of the flagman to give warning? It seems to us that this question is governed by the same considerations which rule the former.. Assuming that the flagman saw the approaching hand-car, and that he saw plaintiff approaching along the track, and that he heard the outcry, he would be justified in drawing the same inference that the men aboard the hand-car evidently did, viz., that the plaintiff knew of the approach of the handcar, and therefore needed no further warning. This clearly distinguishes this case from Richmond v. Railway Co., 87 Mich. 374, in which case the necessity of a warning to deceased was apparent to the flagman, and the flagman neglected the duty of giving notice of an approaching train. In that case it was his duty to know that plaintiff’s intestate was in a. position to require warning. In this case, had he known all the facts, he would not be required to assume that plaintiff would ignore the warning already given, or that he would change his course so as to come in contact with the car.

Judgment affirmed.

The other Justices concurred.


author: Per Curiam.

text:
    HOFFMAN v. SIMPSON.
    Quitclaim Deeds — Bona Fide Purchaser.
    A purchaser by quitclaim deed is not a bona fide purchaser, within the recording laws.
    Error to Crawford; Sharpe, J.
    Submitted October 4, 1899.
    Decided October 6, 1899.
    Replevin by John M: Hoffman against William H. . Simpson and others. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Phillips & Jenks, for appellant.

      Main J. Connine, for appellees.
   Per Curiam.

Plaintiff claims title to the land in question by virtue of. a quitclaim deed. The controlling question is the same as that in Peters v. Cartier, 80 Mich. 124 (20 Am. St. Rep. 508), and Beakley v. Robert, 120 Mich. 209. The court directed a verdict for the defendants upon the ground that plaintiff was not a bona fide purchaser.

Judgment affirmed.


text:
    MICHIGAN TELEPHONE CO. v. CITY OF ST. JOSEPH.
    1. Municipal Corporations — Control op Streets — Authority op Courts.
    While a circuit judge may require municipal authorities to adopt reasonable rules and regulations for the use of the streets, and may pass on 'the validity of their action when taken, he cannot himself prescribe the regulations.
    2. Same — Telephone Companies — Sale op Franchise.
    Under 3 How. Stat. § 4904e, authorizing corporations to alienate their property, a telephone company owning a franchise from a city for the use of its streets may sell the same to another corporation organized for the same purposes, without first obtaining the consent of the city.
    3.Same — Placing Poles and Wires — Reasonable Regulations.
    The power resting in municipalities of making all reasonable rules and regulations for the erection and maintenance of the poles and wires of telegraph and telephone companies does not warrant the common council of a city, which has granted a franchise to a telephone company for the use of its streets, in forbidding the company to extend its lines through the streets without the council’s consent,' and thereafter refusing to declare the rules and regulations subject to which it may proceed with a desired extension.
    Cross-appeals from Berrien; Coolidge, J.
    Submitted May 4, 1899.
    Decided October 17, 1899.

      Bill by the Michigan Telephone Company against the city of St. Joseph to restrain interference with complainant’s poles and wires. From the decree rendered, both parties appeal.
    Modified.
    The averments of the bill of complaint are substantially as follows: Complainant is a corporation organized under Act No. 129, Pub. Acts 1883 (3 How. Stat. chap. 102a). Its principal office is in Detroit. It carries on in the city of St. Joseph and other cities and towns in the State the construction, maintenance, and operation of telephone lines and exchanges, and connects with the lines of other companies without the State. It has in this State about 460 toll stations and exchanges, 3,660 miles of lines, and 6,550 miles of telephone wire, besides several hundreds of miles of pole lines and wires used in the operation of local exchanges. April 4, 1881, the Telephone & Telegraph Construction Company, a corporation engaged in the telephone business in this State, presented a petition to the common council of the village of St. Joseph for permission to construct, maintain, and operate such a system in said village. Permission was duly granted, and that company proceeded at large expense to erect poles and stretch wires within the lines of the streets and alleys of said village until June 5,1891, when said village became incorporated as a city. Complainant duly acquired by purchase all the property, rights, and privileges of said construction company. It has since continued to do business in said city, and has furnished to said city two telephones free of charge, and four others at rates below the usual charges. It has permitted said city to occupy certain poles with its fire-alarm wires without charge. August 3, 1897, complainant erected, in a good and workmanlike manner, and in accordance with the terms of the statute, certain poles in said city, for the purpose of connecting with its central office the premises of persons who had subscribed fox-telephone service. August 3, 1897, the common council passed a resolution declaring said poles and wires a nuisance, and instructed the street commissioner to forthwith remove them, and adopted a resolution providing that, if complainant thereafter should place any telephone poles in any streets or alleys of the city without first having obtained permission, said commissioner should forthwith remove them. The commissioner did remove the poles and wires so erected. After this action was taken, complainant, on August 10th and 16th, presented two petitions to the common council, asking permission to erect poles in certain specified streets and alleys. The council refused to grant permission, and permitted a rival company, known as the Twin City Telephone Company, engaged in the same business, to set up poles and string its wires in the streets and alleys of the city. Complainant was willing and anxious to conform to all reasonable and valid regulations with reference to the placing of its poles and stringing of its wires, and so stated in said petitions. The erection of these poles and wires is essential to enable complainant to do its business and meet the requirements of its subscribers. There is ample space on the streets, and no public necessity justifies the refusal. Under the act authorizing its incorporation, complainant has power to construct and maintain lines of wire, with the necessary erections and fixtures for use in transmitting messages, along, over, across, or under any public places, streets, and highways in the State. It is complainant’s duty to receive and transmit messages without discrimination, and to furnish service without unreasonable delay. By the acceptance of the resolution of 1881, and the construction and maintenance of its telephone system, and by the granting of special rates and privileges to the city, a valid contract has been created between the parties, by virtue of which the city is estopped from denying the complainant’s right to maintain and use existing poles and wires, and to continue to set poles and string wires over, on, and in the streets and alleys of the city. The action of the council (l) deprives complainant of its vested rights; (2) impairs the obligation of a contract; (3) deprives it of property without due process of law, and denies to it the equal protection of the laws; (4) operates as a regulation of commerce among the States; (5) will produce irreparable injury. The relief asked is an injunction to restrain defendant from removing or interfering with complainant’s poles and wires, and from interfering with the replacing of the poles already removed and with the erection of new ones.
    The answer denies some of the allegations of the bill, and sets up new matter in defense. It does not, however, dispute the substantial and material allegations of the bill. It admits the removal of the poles, and the refusal to act upon the petitions of August 10th and 16th. It defends under an ordinance passed June 8, 1897, by which it was enacted that “no telegraph or telephone poles shall be located and erected on any street, alley, or public place in this city, and any such pole now erected shall not be taken up and again erected, without the consent of. the city council.” It sets up the ordinance granting a franchise to the Twin City Telephone Company, and states “that it has no doubt whatever that, if the complainant should ask for a similar franchise at the hands of the city council, the same would be granted.”
    Issue was duly framed, and the case heard in open court. September 21, 1898, the court made an order holding that the common council had the right to provide reasonable rules and regulations by which the complainant should be governed in the extension of its lines; that the council had no authority to arbitrarily prohibit complainant from erecting poles and wires upon the streets and alleys; that the reasonableness of such rules and regulations was subject to the review of the court; that unless said council should, within 30 days, pass and enact rules and regulations by which complainant was to be governed- in the extension of its lines, the writ of injunction should issue, prohibiting the defendant from interfering with the complainant in erecting its poles or placing its wires. The order further required that, before extending its lines, complainant should present to the court a statement of the manner in which it proposed to proceed with such extension, and prohibited complainant from proceeding except under such reasonable rules and regulations as the court should deem necessary for the public safety and convenience. On November 11th following, a formal decree was entered substantially the same as the order above recited. From this decree both parties appeal. Complainant attacks only so much of the decree as provides that the court should establish the reasonable rules and regulations. The defendant attacks the decree in its entirety.

      Wells, Angelí, Boynton & McMillan (N. A. Hamilton, of counsel), for complainant.

      James O'Hara (Lawrence O. Fyfe and O'Hara & O'Hara, of counsel), for defendant.
   Grant, C. J.

(after stating the facts). 1. It is conceded by the learned counsel for both parties that that part of the decree by which the court assumed the right to establish reasonable rules and regulations is void. This is a legislative or administrative function, and not a judicial one. The court has power to put the proper authorities in the defendant city in motion to adopt reasonable rules and regulations, and to pass upon the validity of such action when taken. This is the extent of its authority. Houseman v. Kent Circuit Judge, 58 Mich. 364; City of Manistee v. Harley, 79 Mich. 238. Other courts recognize the same rule. Beagan v. Trust Co., 154: U. S. 362; Appeal of Norwalk St. Ry. Co., 69 Conn. 576 (39 L. R. A. 794); Nebraska Tel. Co. v. State, 55 Neb. 627.

2. It is urged that the permission granted to the Telephone & Telegraph Construction Company was personal to that company, and could not be alienated without the consent of the city. That company was organized under a general law of the State, and derived its powers and obligations from that law. The only power which a city could have exercised over it was that of regulation. This is also true of the complainant. The transfer was made August 31, 1895, was recognized as valid by the city, and has been acted upon by both the city and the complainant since that time; the latter having expended large sums of money upon its business and improvements. Whether the city is now in position to question the validity of this transfer is at least debatable, but, as it is not argued by counsel, we refrain from discussing it. Counsel for the defendant cite, in support of their contention, 25 Am. & Eng. Enc. Law, 751, where it is stated:

“The grant of a franchise public in nature, like that of a telegraph company, is personal to the grantee, and cannot be alienated except by consent of the granting power. Therefore a telegraph company has no power, in the absence of special authority, to alienate the privileges granted to it by the Federal or State government, and an agreement to transfer such privileges is ultra vires and void.”

We are also cited to Crosw. Electricity, § 158, which reads as follows:

“A grant to a telephone, telegraph, electric light or railway company of the power to use the streets, highways, and post-roads for the stringing of its wires and the setting of its poles contains so much of an element of personal obligation that such a grant is not assignable unless such a power of assignment is expressed in the language of the grant, or in some general legislation affecting the subject.”

The same authorities are there cited to sustain the proposition as are cited in the encyclopedia, and, in addition, Atlantic, etc., Tel. Co. v. Railway Co., 1 Fed. 745. That case involved the same act as the others.

The last clause of the above section reads, “If the grant is in terms to X., his successors and assigns, or similar language, it is assignable;” and cites Atkinson v. Railway Co., 113 N. C. 581; Toledo Consol. St. Ry. Co. v. Toledo Elec. St. Ry. Co., 6 Ohio Cir. Ct. R. 362; California State Tel. Co. v. Alta Tel. Co., 22 Cal. 398; Newman v. Village of Avondale, 31 Wkly. Law Bui. 123. In Atkinson v. Railway Co. the question is not raised or discussed. The case was disposed of upon a demurrer to the bill of complaint, which set up that complainant had obtained a license from the city to build a street railway; that he had assigned it in escrow to one M., who, in breach of the trust reposed in him, assigned it to the defendant corporation.- The right of sale and transfer of all the property of the corporation is not alluded to in the decision. In the Ohio case the contest was between two street railways, the question being as to the right of one company to use the tracks of the other. I do not find that the power to sell and transfer is even referred to in the case. In the California case the question is neither raised nor discussed. The sale there made was , opposed upon other grounds. The case of Newman v. Village of Avondale I have been unable to find.

If defendant’s contention be true, a mortgage of the property and franchise of these corporations would be void. The mortgage and bonds would be valueless unless there was a right to foreclose, sell, and convey to another party a valid title to the property. In City of Detroit v. Gas-Light Co., 43 Mich. 594, the grant was to the corporation, or rather to the corporators or their assigns, who were to organize a corporation. The ordinance was silent upon the right of alienation, yet the sale of its entire property was held valid. It is immaterial that the construction company was not organized under the same act as was the complainant. It was organized under another act, empowering such companies to carry on the like business; and one of its objects declared in its articles of association was the purpose of erecting and operating telegraph lines, etc., in the cities and towns of the State. The public was not concerned in the transfer to another corporation. It suffered no injury. The assignee was subject to the same control and obligated to the same duties as was its assignor. Justice Christiancy, in Joy v. Plank-Road Co., 11 Mich. 165, asserted the right of corporations to dispose of their property by absolute sale or mortgage in payment of their debts, unless such right is limited by some express provision or just implication of a statute, or by the general policy of the State, to be deduced from its legislation. In this opinion Chief Justice Martin concurred. The other justices held the mortgage in that case valid under the statute, but reserved their opinions as to the general power of such corporations to mortgage.

But, whatever may be the common-law rule, the statute puts the question at rest, and expressly authorizes corporations to alienate their property. 3 How. Stat. § 4904e. The sale, therefore, to the complainant, was valid.

3. When the construction company and the complainant accepted the privileges granted to them by the laws of the State, and the municipality had duly given its permission, and the corporations had expended their money in valuable improvements, contracts were entered into which neither the State nor the municipality could impair or destroy, in the absence of power to do so being reserved in the grant itself, or in the Constitution, which becomes a part of all such contracts. The Constitution and the statute clothe municipalities with power to control their streets and alleys, and protect them from things injurious and dangerous to the public; hence they have the power to make all reasonable rules and regulations for the erection and maintenance of poles and wires for telegraph and telephone companies. Here their power in the matter ceases. City of Detroit v. Gas-Light Co., 43 Mich. 594; City of Grand Rapids v. Hydraulic Co., 66 Mich. 606; City of Saginaw v. Electric Light Co., 113 Mich. 660; Baltimore Trust & Guarantee Co. v. Mayor, etc., of City of Baltimore, 64 Fed. 159; City of New Orleans v. Telephone & Telegraph Co., 40 La. Ann. 41 (8 Am. St. Rep. 502); City of Quincy v. Bull, 106 Ill. 337; Hudson Tel. Co. v. Mayor, etc., of Jersey City, 49 N. J. Law, 303 (60 Am. Rep. 619); Town of Areata v. Railroad Co., 92 Cal. 639.

Since the argument, counsel for defendant have called our attention to the recent case of City of Richmond v. Southern Bell Telephone & Telegraph Co., 174 U. S. 761. The company in that case was acting under a law of Congress, and claimed the right under the act of Congress to use the streets without interference by the city authorities. The circuit court of appeals held that the rights and privileges granted by the act of Congress were subject to the lawful exercise of the police power belonging to the State or its municipalities. This holding was affirmed by the supreme court. That case is no authority for the action of the common council in the case before us. The city of Richmond had, through its common council, adopted an ordinance prescribing the terms under which the telephone company might use its streets. The reasonableness of that ordinance was not questioned.

The question is not, as counsel for the defendant state, the right to regulate the use of its public streets. This right is conceded by the complainant, and in the petitions it presented to its common council. The action of the council is practically prohibitive of the use of the streets. The defendant city, by its act of incorporation, obtained no other or greater rights or control over the complainant than the village had over it and its assignor. Both, under the police power inherent in municipalities, possessed the right of reasonable regulation. The city succeeded to the rights of the village of St. Joseph, and was in fact the same body politic. City of Grand Rapids v. Hydraulic Co., 66 Mich. 606.

In reason and authority, it was the clear duty of the defendant to act upon the petitions presented to its common council by the complainant, and to establish reasonable rules and regulations for the erection of poles and the stretching of wires. The decree in this respect is affirmed. Decree will be entered in this court in accordance with this opinion, and the defendant given 30 days after service upon its mayor pf a certified copy of the decree to adopt rules and regulations in accordance therewith. Complainant will recover the costs of both courts.

The other Justices concurred.


text:
    MICHIGAN TELEPHONE CO. v. CITY OF BENTON HARBOR.
    1. Municipal Corporations — Telephone Companies — Use of Streets — Police Powers.
    While a city, under 3 How. Stat. § 3718<i, giving telephone companies the right to construct their lines along any street or highway of the State, provided they shall not injuriously interfere with other public uses, may regulate the exercise of the right so as to prevent injury to other interests, it can impose such conditions only as are based on the police power.
    2. Same — Statutes—Repeal.
    Act No. 215, Pub. Acts 1895, which provides that cities incorporated under said act may regulate or prohibit the placing of telephone poles and wires in or over the streets, does not repeal the general law relating to telephone companies (3 How. Stat. § 3718d), giving such companies the right, under certain restrictions, to construct their lines along any street or highway of the State, but must be construed as conferring authority subject to the general law.
    Appeal from Berrien; Coolidge, J.
    Submitted May 4, 1899.
    Decided October 17, 1899.
    Bill by the Michigan Telephone Company against the city of Benton Harbor to restrain interference with complainant’s poles and wires. From a decree dismissing the bill, complainant appeals.
    Reversed.
    . Wells, Angelí, Boynton & McMillan (N. A. Hamilton, of counsel), for complainant.

      F. H. Ellsworth (G. M. Valentine, of counsel), for defendant.
   Grant, C. J.

This case in its facts differs in only one particular from that of the same complainant against the city of St. Joseph, ante, 502, the opinion in which is filed simultaneously with this. In that case the records of the common council showed a resolution adopted granting permission to the Telephone & Telegraph Construction Company, while in this case the records of the common council do not show that such permission was granted. These two, cities are contiguous to each other, — separated only by a river. The work of „ the construction company in each was begun and carried on at the same time, and 'the construction company and its assignee, the complainant, have ever since been in the enjoyment of the same rights in Benton Harbor as in St. Joseph. The complainant presented a petition to the common council of Benton Harbor couched substantially in the same language, and asking for the same privileges, as it presented to the common council of the city of St. Joseph. The council denied the prayer of the petition. The court denied relief in this case, while granting it in the other, because the records of the council did not show the grant of permission, which it held was essential to the creation of a contract. The complainant, at the request of the council, furnished for the use of the city one telephone free of charge, and two other telephones at rates less than those charged to other subscribers for like service, which rates have been paid by the city. In the year 1893 complainant, on application of the city, granted permission to the city to carry its fire-alarm wires on the company’s poles, which permission was accepted by resolution adopted by the council. The complainant gave evidence tending to show that the construction company, in February, 1881, presented a petition to the common council, and that it was notified by the clerk that permission had been granted. The city .clerk testified that he could find no papers of any kind in his office,’ presented to the council from 1881 to 1887.

Complainant contends that a contract exists between it and the city, arising out of the establishment of its system by the permission of the municipality, and the maintenance thereof for many years, and that the defendant is now estopped to deny such contract. In the view we take of the case, it is unnecessary to determine this question. Section 4 of Act No. 129, Pub. Acts 1883, providing for telephone and messenger-service companies, reads as follows:

“Every such corporation shall have power to construct and maintain lines' of wire, or other material, for use in the transmission of telephonic messages, along, over, across, or under any public places, streets, and highways, and across or under any of the waters in this State, with all necessary erections and fixtures therefor: Provided, that the same shall not injuriously interfere with other public uses of the said places, streets, and highways, and the navigation of said waters; to construct, provide, and furnish instruments, devices, and facilities for use in the transmission of such messages; and to construct, maintain, and operate telephone exchanges and stations, and generally to conduct and carry on the business of providing and supervising communication by telephone, and also the business of furnishing messenger service in cities and towns.” 3 How. Stat. § 3718d.

The statute also requires every such company to supply the public with telephones and telephonic service, to operate a telephone exchange, and to receive and transmit messages without discrimination, upon payment or tender of the usual or customary charges. Id. § 3718¿.

The complainant is engaged in interstate commerce, as its business extends into other States. The State has control over its public streets and highways, and may authorize their use for the purposes of travel and commerce without the permission of the municipalities. The State does not surrender to municipalities entire control over its streets and highways. They are under legislative control. Cooley, Const. Lim. (6th Ed.) 725.

“They are for the use of the public in general, for passage and traffic, without distinction. The restrictions upon their use are only such as are calculated to secure to the general public the largest practical benefit from the enjoyment of the easement. When the highway is not restricted in its dedication to some particular mode of use, it is open to all suitable methods.” People v. Eaton, 100 Mich. 208 (24 L. R. A. 721), and authorities there cited.
“No city or village has the power, by ordinance or bylaw, to make the general laws of the State inoperative.” People v. Kirsch, 67 Mich. 539.

Where a water company is authorized by its charter to lay pipes and distribute water, it has a right of access to the streets for that purpose, to be exercised in harmony with the public convenience. The city may regulate its exercise so as to prevent injury to other interests, but cannot interfere with the reasonable exercise of such right. City of Grand Rapids v. Hydraulic Co., 66 Mich. 606; Atlantic City Waterworks Co. v. Consumers’ Water Co., 44 N. J. Eq. 427.

Held, that an electric telegraph “is indispensable as a means of intercommunication, but especially is it so in commercial transaction's. * * * Goods are sold and money paid upon telegraphic orders; ’contracts are made by telegraphic correspondence, cargoes secured, and the movement of ships directed.” Pensacola Tel., Co. v. Western Union Tel. Co., 96 U. S. 1. The^same statement now applies to the use of the telephone. It is as indispensable to commerce as is the telegraph.

Telephone companies are subject to the same rules as common carriers. Delaware & A. Telegraph ^ Telephone Co. v. Delaware, 2 C. C. A. 1, 50 Fed. 677. The same rule is held in Leloup v. Port of Mobile, 127 U. S. 640, holding that telegraphic communications are commerce, and that the State cannot impose a tax upon the occupation or business, or exact a license. The same rules apply to telephone companies. Southern Bell Telephone & Telegraph Co. v. City of Richmond, 78 Fed. 858.

Where the statute provided that telephone companies organized under its provisions “for the purpose of constructing and maintaining telephone or magnetic telegraph lines are authorized to set their poles, piers, abutments, wires, and other fixtures along and across any of the public roads, streets, and waters of this State, in such manner as not to incommode the public in the use of such roads, streets, and waters” (1 Rev. Stat. Mo. 1879, § 879), held, that the municipal authorities could regulate by-ordinance the location, kind of posts, piers, and abutments, and height of wires, but that no other restrictions could be imposed than those provided by the law. State v. Flad, 23 Mo. App. 185.

It will be observed that the act under which complainant is organized does not require the consent of the municipality to the construction of its lines. The reason of this is apparent. The business carried on by these corporations is not local, but extends over and outside the State. Where the business is purely local, the legislature, in authorizing the formation of these corporations, usually provides that it must be with the consent of the municipality. Such is the requirement in the case of train railways. 1 How. Stat. § 3527. So of street railways. Id. § 3548. So of water companies. Id. § 3115. So of electric-light companies. Id. § 4191.

Evidently it was not the intention of the legislature to permit municipalities to prevent telegraph and telephone companies from extending their business along the public highways and streets of the State. This rule seems practically to be conceded by the learned counsel for the defendant, for they say that the complainant’s rights, if it has any, are subject to the valid exercise of the police power of the city. Complainant concedes this to be the law. The learned circuit judge who tried the case also conceded it, but said that the city “was not confined merely to the exercise of its ordinary police powers.” Evidently the city desired to impose other conditions, and in furtherance of this desire its council arbitrarily refused to permit complainant to erect its poles and stretch its wires. Such refusal was not based on the inconvenience of the public or the obstruction of its streets. Under this statute the sole authority of the municipality is the proper exercise of the police power, inherent in it, to protect the public from unnecessary obstructions, inconveniences, and dangers, and to determine where and in what manner complainant may erect its poles and stretch, its wires so as to accomplish this result. It has no authority to impose other conditions. That authority rests in the legislature, —the charter-making power.

It is, however, insisted that Act. No. 215, Pub. Acts 1895, under which the defendant was incorporated, repeals the telephone act, in so far as it may be held to authorize the use of highways and streets for the erection of poles without the consent of the municipality. Section 14, chap. 22, of that act, provides, “They [the council] shall have authority * * * to regulate or prohibit the display, use, or placing of signs, advertisements, and banners, awning posts, and telegraph, telephone, or light poles and wires in or over the streets.” The title of this chapter is, “Streets and Public Grounds,” and the above language is found near the middle of the section, which specifies various subjects upon which the council may legislate. Repeals by implication are not favored. To this proposition it is unnecessary to cite authorities. The intent to repeal must very clearly appear, and courts will not hold to a repeal if they can find reasonable ground to hold the contrary. Merrill v. President, etc., of Village of Kalamazoo, 35 Mich. 211; Connors v. Iron Co., 54 Mich. 168. This case forcibly illustrates the danger in holding general laws repealed by implication in granting charters to municipal corporations. Bid the legislature intend by the above law for the organization of cities to confer upon those municipalities the power to annul the law in regard to telegraph and telephone companies, and to entirely prohibit the use of the telegraph and the telephone, which 'have become essential in commercial transactions ? Clearly such an intention should not be attributed to the legislature unless the language of the law leads to no other conclusion. We see no difficulty in giving effect to both laws by holding that the later act confers this authority upon municipalities, subject to the general laws of the State in regard to the use of its streets and highways for telegraph and telephone purposes. These municipalities may, under this law, proMbit the erection of these poles in places and in a manner which will injure or incommode the public. This was the view taken by the supreme court of Wisconsin under a similar provision. Wisconsin Tel. Co. v. City of Oshkosh, 62 Wis. 32, 40.

The decree of the court below will be reversed, and decree entered in this court in accordance with this opinion, directing the common council of the defendant to provide, by ordinance or otherwise, reasonable regulations for the erection of the poles and stretching the wires of the complainant. Complainant will recover the costs of both courts.

The other Justices concurred.