author: Moore, J.

text:
    PENFOLD v. SLYFIELD.
    1. Commencement op Suit — Declaration—Service.
    Under 2 How. Stat. § 7291, relating to the commencement of suits by declaration, service of the copy of declaration and notice of rule to plead may be made by the plaintiff in person, even though he be an officer authorized to serve process in general.
    2. Same — Style op Process — Constitutional Law.
    The provision of the Constitution (article 6, § 35) that the style of all process shall be “In the Name of the People of the State of Michigan” does not apply to notice of the rule to plead served with a copy of the declaration as commencement of suit, but only to process issued by the courts.
    3. Parties — Joint Dependants — Notice op Trial — Judgment.
    A judgment in an action against several defendants in which ■ only a joint judgment is permissible cannot be rendered without giving notice of trial to a defendant who is not served, but who appears, and files and serves a plea of the general issue, unless the right to such notice is waived.
    Error to Benzie; Aldrich., J.
    Submitted April 9, 1896.
    Decided July 28, 1896.

      Assumpsit by Jonathan Penfold against Charles B. Slyfield and others upon an appeal bond.' From a judgment for plaintiff, defendants bring error.
    Reversed.

      Wilson & Bailey and Pratt & Davis, for appellants.

      Bmurthwaite & Fowler, for appellee.
   Moore, J.

In February, 1894, in the United States district court, Penfold obtained a judgment on a cross libel against the tug E. D. Holton, the property of the Slyfields, the amount of the judgment and costs being $2,306.21. Pending an appeal to the United States circuit court of appeals, and in order to stay proceedings, the Slyfields filed a supersedeas bond in the sum of $4,000. The sureties on the bond were the other defendants in this cause. The court of appeals affirmed the judgment of the district court in February, 1895 (13 C. C. A. 512, and 66 Fed. 362), and added the costs and damages incurred during that trial. In June, 1895, the judgment being unpaid, and the tug Holton having been sold by the Slyfields, plaintiff began suit by declaration in the circuit court for Benzie county upon the bond. The declaration, with rule to plead indorsed thereon, was served by the plaintiff personally upon all the defendants except Elmer E. Slyfield, and plaintiff made affidavit of service. All of the defendants except Elmer E. Slyfield appeared by their attorneys, and moved to quash the proceedings. The motion attacked the process served by plaintiff, upon the following grounds:

1. That Penfold was a deputy sheriff, and could not legally serve his own process.
2. That the rule to plead, indorsed on the declaration, was not sufficient, in that it was not entitled “In the Name of the People of the State of Michigan,” and was consequently not proper process.
3. That because of such defect in the rule to plead the court obtained no jurisdiction over the defendants.

. The court overruled the motion, and, as no further appearance or pleading was made by the defendants, their default was duly entered. In September, 1895, the cause came on for trial, in the Benzie circuit court. The attorneys for Elmer E. Slyfield appeared, and, in his behalf, filed and served a plea of the general issue, and claimed that, as no notice of trial had been served on Elmer E. Slyfield, the cause could not proceed. The court directed the trial to proceed, and as Elmer E. Slyfield’s attorneys declined to take part, on the ground above stated, judgment was entered as against all the defendants, Elmer E. Slyfield being treated as a defendant not served with process.

Section 7291, 2 How. Stat., authorizes commencement of suits by declaration, and prescribes the method in which they may be commenced, and provides for personal service upon the defendant. It has long been .held that the service of the declaration may be made by the plaintiff. 1 Green, New Prac. (2d Ed.) 132; Grah. Prac. 459; Munn v. Haynes, 46 Mich. 140.

■As to the proposition that the declaration and rule to plead must run “In the Name of the People of the State of Michigan,” or violate article 6, § 35, of the Constitution, which provides that the style of all process shall be “In the Name of the People of the State of Michigan,” it' is sufficient to say that this provision applies only to process issued by courts. Tweed v. Metcalf, 4 Mich. 588. Courts issue process of various kinds, but do not issue' declarations as commencement of suits. They are prepared and issued by the plaintiff, or some one. acting for the plaintiff. It is true that in Begole v. Stimson, 39 Mich. 298, and City of Menominee v. Menominee Circuit Judge, 81 Mich. 577, the declaration is characterized as being in the nature of process to bring the defendant into court; but nowhere is it regarded as process, within the meaning of the foregoing constitutional provision. The method of commencing suits by declaration has been in use in this State for many years. They have never been entitled “In the Name of the People of the State of Michigan.” To hold this was essential would revolutionize the practice, and invalidate half the judgments taken in our State courts. We think the circuit judge very properly overruled the motion to quash the proceedings.

The only other question necessary to discuss here is what effect, when the cause came on for trial, did the entry of appearance of Elmer E. Slyfield, and his plea of the general issue, have upon the case? Was the effect of this action such as to make it unlawful for the court to render judgment in form against all of the defendants, after which an execution might issue that would be good against all of the defendants except Elmer E. Slyfield, who was not served with process ? Just what occurred before the trial judge, after Elmer E. Slyfield appeared in the case, we have no means of knowing, as no bill of exceptions has been settled. The record is silent as to whether he asked for a continuance of the case, announced himself ready for trial, or remained silent. All of the defendants who were served with process were in default, and as to them the case was in a condition to be heard. The record shows that plaintiff’s claim was upon a joint demand, upon which his judgment must be against all or none. The defendant Elmer E. Slyfield had a legal right to appear at any time before trial. Ralston v. Chapin, 49 Mich. 276. By filing and serving his pleá, he became entitled to notice of trial; and no judgment could be taken against him without such notice, or a waiver of his right to the same. It would seem to follow that if the judgment must be joint, and the case was not in a situation to go to judgment against one of the joint debtors, the court could not properly render any judgment. City of Detroit v. Houghton, 42 Mich. 459; Seligman v. Gray, 66 Mich. 341; Ralston v. Chapin, 49 Mich. 276; 1 Green, New Prac. (2d Ed.) 461; Bank of Genesee v. Field, 19 Wend. 643; Platner v. Johnson, 3 Hill, 476; Miller v. McCagg, 4 Hill, 35.

The judgment is reversed, and a new trial ordered.

Grant, Montgomery, and Hooker, JJ., concurred. Long, O. J., did not sit.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    LA FOUNTAIN v. DEE.
    1. Adverse Possession — Tenancy in Common — Ouster—Evidence.
    A finding of an ouster of a tenant in common by his cotenant, essential to make the sole possession of the latter adverse, may rest upon evidence tending to show that for 30 years or more the land has been known by his name, that such acts of ownership as the character of the land was susceptible of were exercised by him, that he procured a tax deed, which he caused to be placed of record, and that upon his death the property was divided and the lots distributed among his heirs, and that neither the former tenant nor any of his successors made any claim to the premises during such time.
    2. Same — Question for Jury.
    It is error, however, to direct a verdict upon such evidence, in the face of the testimony of a witness who had several times been upon the premises adjoining those in dispute, and who was in position to know if there had been any acts . of adverse possession, that he had not seen any sign of occupancy up to three years before the trial, nor any attempt to exercise ownership of the land at all.
    Error to Wayne; Carpenter, J.
    Submitted April 21, 1896,
    Decided July 28, 1896.

      Ejectment by Sarah E. La Fountain against Michael J. Dee and others. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Re versed.

      Chamberlain & Guise (Edwin F. Conely, of counsel), for appellant.

      Sullivan & Mason (E. G. Stevenson, of counsel), for appellees.
   Montgomery, J.

This is an action of ejectment for an undivided one-fourteenth part of a tract of land in the township of Ecorse, Wayne county, comprising a part of private claim No. 42. The case is very similar in its facts to Chabert v. Russell, 109 Mich. 571, which was ejectment for another portion of this same tract. This case differs from that in the proof offered to show adverse possession, and to rebut such proof; and the claim is also made that, as the defendants and their grantors were tenants in common with the plaintiff, no ouster is shown which would set the statute of limitations to running. The circuit judge directed a verdict for defendants on- the whole case, holding that, as matter of law, the defendants had shown adverse possession. At least, this is to be inferred, although the ground of the holding is not stated in the record. While we think the character of the occupancy, as shown by the statement of facts in Chabert v. Russell, was such that the jury might have found that it constituted adverse possession, yet we cannot say that the evidence upon this subject is conclusive, or that it was such as justified a directed verdict, particularly in view of testimony (offered by the plaintiff) of one witness to the effect that there was no sign of occupancy of the land up to three years ago; that it was all water and marsh; that there was no fishery on the marsh ten years ago; that she made several visits to her brother, who had lands adjoining the premises in dispute; and that she never saw any attempt to exercise ownership of the land at all, and could have seen it if there had been any possession of it, but did not see any. This testimony, of itself, was sufficient to raise a question for the jury, particularly in view of the nature of the testimony offered to support the claim of adverse possession.

Plaintiff claims that, inasmuch as the defendants were cotenants, there was no proof of an ouster. There was, it is true, no direct testimony that the plaintiff was notified that the defendants claimed title to the entire property. But there was testimony tending to show that defendants’ grantor, Rousson, had occupied the land in question, and that it was known as “Rousson’s Marsh,” for 30 years or more before the commencement of suit, and that such acts of ownership as the character of the land was susceptible of were exercised by him; that in 1868 he procured a tax deed of the lands, which he caused to be placed of record; that upon the death of Rousson this private claim 42 was divided into eight equal parts, and the lots were distributed among the heirs. And there was testimony tending to show that the possession was continued, and that, during all this period of occupancy, plaintiff’s grantors (the defendants’ cotenants) had made no claim to the premises. Counsel rely upon the opinion of Mr. Justice Christiancy in Dubois v. Campau, 28 Mich. 313. In the same case there was also an opinion of Mr. Justice Campbell, in which Mr. Justice Graves concurred. We think, under the opinion of Mr. Justice Christiancy, there was enough in this case to justify the submission of the question of an ouster to the jury. In .speaking of the delay in asserting a claim of ownership, Mr. Justice Christiancy said:

“We are now to consider how this neglect of the plaintiffs and their ancestors, for so long a period, to demand their share of the possession or rents and profits, affects the case, in view of the circumstances in proof. And, as the cases are not entirely harmonious (though generally involving substantially the same principles), it is proper to look to the principles involved. As a general rule, it is safe to presume that men will act in accordance with their own obvious interests, and will not surrender their rights or the enjoyment of their property to another having no just claim, without compensation in some form. This is a principle of human conduct which experience has shown to be generally reliable. It is equally recognized by courts in the administration of justice, and by the world at large in the ordinary affairs of life. Upon this principle, the continued neglect or forbearance of the plaintiffs and their ancestors to demand or assert their rights in any form, and their acquiescence in the enjoyment of the property and its income for so long a period, furnishes grounds for the inference, and is therefore evidence tending to show, that the plaintiffs and their ancestors were conscious and must have been satisfied that Joseph Campau was entitled, of right, to the sole use of the property and its income as against them, and also, in this manner, to show that whatever interest they might once have had had been released or conveyed, or for some good reason given up to him, though without a release or conveyance of record, and that they therefore knew that he was holding the property rightfully as his own, and under a claim of title to the whole, which was recognized and acquiesced in by them. This would, of course, make the possession adverse, and constitute an ouster, and would also tend, in some degree, to show that such had been the position of the parties from the commencement of Joseph Campau’s sole possession, as this would best account for and explain the conduct of all the parties. In this view, the neglect, forbearance, and acquiescence for so long a period merely create a natural presumption or furnish an inference of fact, — in other words, presumptive or circumstantial evidence tending to prove a conveyance or ouster, which, like other circumstantial evidence, is to have weight according to its greater or less tendency to produce in the minds of the jury actual belief that such was the fact. And it would be quite immaterial whether the jury should believe that this neglect or acquiescence had been for the reason that a deed or release had been given, or some agreement or understanding had, by which Joseph Campau’s right to the whole was recognized, or whether, without such deed, release, or agreement, they should believe that the plaintiffs and their ancestors knew that his possession was under an adverse claim of right to the whole, or that, without gross negligence and inattention to their own interests, they must have known it, as in either view the possession must be regarded as adverse, and known to be so. In this view, it seems to me obvious that the strength of the presumption, the force of the inference from such evidence, must depend much upon the situation of the parties, the nature of the property, and the surrounding circumstances, in each particular case.”

See, also, Cook v. Clinton, 64 Mich. 309 (8 Am. St. Rep. 816); Freem. Co-Ten. §§ 230, 232.

.We think the question was one for the jury.

The judgment will be reversed, and a new trial ordered.

Grant, Hooker, and Moore, JJ., concurred. Long, C. J., did not sit.


text:
    PHIPPEN v. BAY CITIES CONSOLIDATED RAILWAY CO.
    1. Personal Injuries — Aggravation of Existing Infirmities —Instructions.
    In an action for personal injuries, the refusal of an instruction that the plaintiff cannot recover for any aggravation of pre-existing injuries produced by the alleged accident is ' not error, where the issue is simply whether or not the injuries declared upon were caused by the accident, and neither party has presented any theory based upon an aggravation of existing infirmities. Thurstin v. Luce, 61 Mich. 292, and Wilkinson v. Spring Works, 73 Mich. 408, distinguished.
    2. Trial — Remarks of Counsel.
    The fact that plaintiff’s counsel, in his closing argument, im- ■ properly criticised the witnesses for the defendant, does not require a reversal, where the court stated in his charge that the defense made was legitimate, and that there was no occasion for the criticism.

      Error to Bay; Maxwell, J.
    Submitted April 24, 1896.
    Decided July 28, 1896.
    Case by Mary J. Phippen against the Bay Cities Consolidated Railway Company for personal injuries. Prom a judgment for plaintiff, defendant brings error.
    Affirmed.

      T. A. E. & J. C. Weadock (James E. Duffy, of counsel), for appellant.

      Lyon & Pierce, for appellee.
   Moore, J.

Plaintiff recovered a judgment against the defendant for $150. The defendant appeals, assigning a number of errors, some of which are not discussed in the brief of counsel, and for that reason will not be discussed here. It was the claim of the plaintiff that, while she was sitting in an open car owned by the defendant, it was run into by another car, and that she received severe injuries (describing them in her declaration) . ,It was averred in the declaration, and was claimed by the plaintiff, that prior to the accident she was strong and healthy; that, as the result of the injuries, she is sick, lame, etc. The car that ran into the one where plaintiff was hurt had been left standing on the track by the motorman, and it is supposed it was started by a boy about 10 years old. The defense was that the plaintiff was not on the car when it was struck, and that her condition was fully accounted for by the fact that she had been a cripple from birth, and that she was a confirmed opium eater. Proof was offered on both sides to sustain the respective theories. The defendant insists that the verdict is not warranted by the evidence offered by the plaintiff, and for that reason the case should be reversed. If the jury believed the testimony offered by the plaintiff, and did not believe the testimony offered on the part of the defendant, their verdict was warranted by the evidence.

The next assignment of error needing attention relates to the defendant’s third request, which reads as follows:

Third. If you find from the evidence that the troubles described in plaintiff’s declaration existed before, or are the direct results of physical conditions existing before, the time of the alleged accident, then, under the declaration and evidence in this cause, plaintiff cannot recover for such injuries,- or for any aggravation of the same produced by the alleged accident, and your verdict must be for defendant.”

It was given as follows:

“‘If you find from the evidence that the troubles described in plaintiff’s declaration existed before, or are the direct results of physical conditions existing before, the time of the alleged accident,- then, under the declaration and evidence in this case, plaintiff cannot recover for such injuries.’ I give you that so far. The following addition to the request, — ‘or for any aggravation of the same produced by the alleged accident, and your verdict must be for the defendant,’ — that I decline to give you.”

This modification of the request is assigned as error, and counsel cite Thurstin v. Luce, 61 Mich. 292; Wilkinson v. Spring Works, 73 Mich. 408. But we do not think either of those cases applies. In each of those cases it was not questioned but what some injury was suffered by the plaintiff from the defendant. In the case at issue, plaintiff claims that her injuries were caused— not aggravated — by the defendant, while the defendant denies that it caused any injury to the plaintiff whatever. Neither plaintiff nor defendant had any theory of the case based upon the idea that the plaintiff was possessed of physical weaknesses and infirmities at the time of the injury that were aggravated by the injury. Under the facts and theories of the parties, the modification of the charge was not error.

Counsel for the plaintiff, in his argument to the jury, severely criticised the witnesses for the defendant. He was not interrupted in his argument, and no exceptions were taken to it at.the time, but by permission of the court they were made to the reporter. In referring to this matter in the charge, the court said: ■

“There have been some remarks of counsel for the plaintiff in his closing argument in regard to the facts shown by the defendant as a defense. I do not see any occasion for any criticism on the defense made in the case. It was perfectly legitimate, and, if it satisfies you, it must be final; but you are the sole judges upon that subject.”

While we do not approve of the argument of the counsel, we are not inclined, upon the record as made, to reverse the case because of his argument. Maclean v. Scripps, 52 Mich. 214; Warren v. Halley, 107 Mich. 120; People v. Wirth, 108 Mich. 307.

The judgment is affirmed.

Grant, Montgomery, and Hooker, JJ., concurred. Long, C. J., did not sit.


author: Hooker, J.

text:
    BURTON v. REYNOLDS
    Mandamus — Abstracter oe Titles — Court Files — Right oe Inspection.

      Mandamus will not issue to compel the clerk of the court to permit one employed in making abstracts of title to examine and copy a file in an action relating to land between private parties, upon a petition which negatives constructive notice of the pendency of the action, and doe's not assert actual notice, nor state that the examination and coining of the file is necessary to the interests of his employer, although it does state that it is necessary to the completion of the relator’s work.

      Certiorari to Wayne; Lillibridge, J.
    Submitted April 28, 1896.
    Decided July 28, 1896.

      Mandamus by Clarence M. Burton to compel Henry M. Reynolds, county clerk, to permit an inspection of the files of the Wayne circuit court. From an order denying the writ, relator brings certiorari.

    Affirmed.

      John D. Conely and Hoyt Post, for relator.

      Jasper C. Gates, for respondent.
   Hooker, J.

The relator is engaged in the business of making abstracts of titles to land, and was employed to make an abstract of certain premises. He states in his petition that—

“In order to properly complete his work, it became necessary to see and copy the proceedings in file No. 14,083 in the circuit court for the county of Wayne, in chancery, being a suit brought by William Shattuck and others against James C. McCormick for the purpose of enforcing specific performance of a land contract, * * * and that the respondent, the county clerk, refused to allow him to inspect and copy said file. ”

The circuit court denied relator relief by mandamus, and he has brought the case here. The petition prays that respondent be compelled by mandamus to permit the relator to “inspect, examine, and copy from file No. 14,082, and from any and all other files in his office.”

The law provides for recording the evidences of title to land in the register’s office, and alkthat is recorded therein is constructive'notice to all persons. Taxes and proceedings on the.part of the public must be taken notice of by all interested, though the register’s office is not the place where the records pertaining thereto are to be found. In several cases we have intimated that the general public might have a right, under proper restrictions, to the information contained in public offices upon these subjects. Burton v. Tuite, 78 Mich. 363, 80 Mich. 218; Day v. Button, 96 Mich. 600. On the other hand, it has been twice-asserted that private actions and suits between individuals stand upon a different footing, and that it is not the absolute right of persons to make merchandise of the contents and allegations contained in the records of private actions and suits, before trial, for gain. Park v. Free Press Co., 72 Mich. 560 (16 Am. St. Rep. 544); Schmedding v. May, 85 Mich. 1 (24 Am. St. Rep. 74). These cases denied the newspapers the opportunity of consulting these documents for the purpose of gaining information for publication, for the benefit of those who might be interested; and we see no difference between such object and the object of the relator, except as it may be supposed that the interest of the patrons of the respective parties may proceed from different motives.

We do not find it necessary in this case to go so far as to say that one interested in the land title, where he has notice of the pendency of proceedings affecting such title, either actual or constructive, by reason of the filing of lis pendens or other papers constituting such notice, shall not be allowed, either personally or by proper representative, e. g., an attorney of the court, to inspect, and make necessary memoranda for his use. Such right might seem necessary, and to be contemplated by the law which subjects him to the consequences of notice. When such case shall arise, it will receive consideration. The record in this case shows nothing of the kind. On the contrary, relator’s petition negatives constructive notice, and does not assert actual notice. It does not state that the suit involves, or is in any way connected with, the land that relator was employed to abstract, by way of contract or otherwise, or that it is necessary to the interests of his employer that he be allowed to inspect this record. It does state that, “in order to properly complete his work, it became necessary to see and copy the proceedings ; ” and whatever may be meant by that, it falls short of stating a necessity that shows a legal right to inspect the record.

We see no occasion to disturb the order of the learned circuit judge, denying the writ, and the same is affirmed.

Grant, Montgomery, and Moore, JJ., concurred. Long, C. J., did not sit.


author: Grant, J.

text:
    BAUDISTEL v. RECORDER AND COMMON COUNCIL OF CITY OF JACKSON.
    Certiorari — Vacation oe Street — Estoppel.

      Certiorari will not lie at the instance of a property owner to review the action of the common council of a city in discontinuing and vacating a part of one street and laying out and establishing another upon the property of a railroad company, where the company made expenditures in furtherance of the proposed change, and the petitioner, though fully cog- ' nizant of the proceedings and of the expenditures, did not apply .to the court to restrain the same.

      Ceytiorari by William Baudistel and others to review the action of the recorder and common council of the city of Jackson in vacating a portion of a street.
    Submitted May 1, 1896.
    Writ dismissed July 28, 1896.
    The purpose of this proceeding is to review the action of the common council of the city of Jackson in discontinuing and vacating a part of one street and laying out and establishing another. The facts as set forth in the petition for the writ are substantially these:
    The petitioners Neiss owned and occupied one-half of a lot in block 44, on the corner of Railroad and. Van Dorn streets. Petitioners Baudistel owned and occupied a portion of lot 4 of block 44, near the corner of Railroad and Perrine streets, and also lot 3 of block 45, at the corner of the same streets. The situation of the property will be best seen by a reference to the accompanying plat.
    February 4, 1895, the following resolution was adopted by the common council:
    “ Whereas, the property immediately adjoining the railroad right of way on the south side, in front of the passenger station, between Park avenue and Milwaukee street, is now vacant and unoccupied; and,
    “ Whereas, a street connecting Park avenue and Milwaukee street, adjoining the railroad on the south, would furnish a very convenient and desirable means of approach from the south-easterly part of the city to Main street and the business portion of the city, and would avoid danger and inconvenience of the Park-avenue crossing, which of necessity, on account of the location of the railroad station, is so often obstructed, and such new street, in connection with Elizabeth street, would avoid any crossing of the railroad tracks whatever, and in case the Grand river should be bridged at Columbus street, which has been contemplated, such new thoroughfare would be still more important and convenient:
    “Resolved, that the committee on streets be requested to examine the location, and report as to the ownership of the property, and the probable terms upon which it could be acquired, and submit a report and map of the land necessary for a street four rods or less in width connecting said Park avenue and Milwaukee street, adjacent to the right of way.”
    March 4th the committee reported that they had conferred with the railroad company, and that it would give the necessary land for such street 54.3 feet wide, would grade and prepare the street for public travel, and would build a sidewalk along the south side, on condition that the council would vacate that portion of Park avenue extending from the continuation of the north line of the porch of the depot to the south line of the railroad right of way. On April 4th a resolution was adopted to the effect that such action would be for the interest of the city, and authorizing an application to be made to the proper court for that purpose. April 15th Mr. Baudistel and several others filed a protest against

      such action. At the same meeting the railroad company presented an offer consenting to the vacation o£ that portion of Park avenue, and stated that it was the only party interested therein within the meaning of the charter of the city of Jackson, and in the same communication offered to open the new street. On June 3d the committee on streets made a report advising the acceptance of the proposition. Meanwhile the work was carried on, and the company put fences across Park avenue in accordance with the agreement. August 22d it presented to the council a deed of conveyance of this strip of land for the new street, and it was opened and dedicated to the public. On August 14th, after the fences had been erected, the petitioners and others filed another protest with the common council. Nothing further was done until February 17, 1896, when this petition was presented to the coui’t.
    The answer admits the proceedings as set forth in the petition, and claims :
    1. That the action of the common council is legislative in its character, and cannot be reviewed on certiorari.

    2. That petitioners have no rights affected by such action, except such as are common to the public.
    3. That they are not entitled to the relief asked, by reason of their delay.
    It further sets forth the situation of the streets in that vicinity, and their connection with one another and the business portions of the city. The depot has been situated in its present location for 20 years. It is next to Main street, which leads to the main business portion of the city to the west. Railroad street has never been opened for the passage of teams any farther than the railroad track during this time. An old sidewalk has existed along the south side of block 43, over Which foot passengers have traveled, and by means of which they have crossed the railroad tracks leading into Park avenue. Main street crosses the track and right of way of the rail: road at its intersection with Milwaukee street, Main street extending east and west and Milwaukee street north and south. Previous to the closing of the Park-avenue crossing, the intersection of Main and Milwaukee streets had been very much incumbered by trains of the company, on account of the short distance between Main street and Park avenue. Since this change was made, the Main and Milwaukee street crossing has been kept clear from obstructions by trains standing upon it. The other improvements contemplated in connection with the vacation of this portion of Park avenue, including the construction of the bridge across the Grand river. on Columbus street, have been completed. The entire space between the depot and Main street is, and always has been, open to public travel, and a free and open driveway has always existed from Park avenue and Elizabeth street along the northerly line of the depot to Main street. The Park-avenue crossing was dangerous to both foot passengers and teams. Engines pass over it 370 times every 24 hours, and many times that number of cars. The city of Jackson is the end of one division of the road, and trains are there supplied with fresh engines, which come from the east, where are located the roundhouse and the repair shops. The railroad company expended $15,500 in the purchase and improvement of this new street. Other reasons are given in the answer to show the benefit derived by the general public through this change.
    The authority for the action of the common council is based upon the following provision in the charter:
    ‘ ‘ If for any reason the common council shall deem it for the interest of the city to alter or vacate any plat of lands in said city, or any part of the same, or any street, alley, or public grounds, or any part of the same, it shall have power, equally with the owner or owners of the lands platted, to apply to the circuit court of the county for such alteration or vacation, and it shall be a sufficient interest in that part of the plat to authorize such an application if it shall appear that the part of the street, alley, or public grounds on the plat proposed to be altered or vacated has been dedicated to the public: Provided, That if all persons interested in the entire plat, or a distinct part thereof, shall file with the common council their written consent to its vacation, then the common council shall have power to vacate the same by resolution.”

      Richard Price, for plaintiffs in certiorari.

      William E. Ware, City Attorney, for defendants in certiorari.

   Grant, J.

(after stating the facts). Only one legal question is involved, in this controversy, viz., has the common council of the city of Jackson the right to vacate a portion of a public street upon the assent of all the adjoining landowners ? To state the question otherwise, it may be put thus: Has any member of the traveling public, or one who does not own adjoining lands, any such interest as requires the proceeding to be instituted in the courts for the purpose of vacating a part of a plat or street ? It is manifest that those living north of the railroad and east of the depot are not inconvenienced by the change in their access to the main business part of the city. The principal part of the city lies west of the depot. Some of those living north of the railroad and west of Park avenue, and between the next street east crossing the railroad north and south (which is not shown by the record), are obliged to travel a few hundred feet farther to reach that part of the city lying directly south of the railroad between these points. There is nothing to show that the common council did not act in entire good faith. It is apparent from the answer that the interests of the general public, when the safety and delay of travelers and business are considered, have been subserved. These were important considerations. In neither of the protests which were filed did the petitioners question the authority of the common council to act as they did.

Now, the writ of certiorari is not a writ of right. It is a discretionary writ, and will not be used to enforce a strict legal right where justice cannot be done, and where the petitioners are guilty of laches in failing to take prompt action. The petitioners were all the time fully cognizant of the proceedings of the council, and of the expenditures being made by the railroad company in furtherance of the proposed change, and yet they applied to no court to restrain such action. It is unnecessary to cite the many decisions of this court to the effect that where parties have stood by and seen public improvements made, and money expended, upon the faith of the validity of the proceedings, they cannot invoke the .conscience of the court, or make • use of discretionary writs, to enforce their legal remedies.

For this reason the writ was improvidently issued, and will be dismissed, with costs.

Montgomery, Hooker, and Moore, JJ., concurred. Long, C. J., did not sit.


text:
    JONES v. SCHOOL DISTRICT NO. 3 OF IOSCO.
    Schools and School Districts — Contracts—Ratification.
    A school district which had provided by resolution for the seating of a school-house is estopped to question the validity of a contract for the purchase of the seats, signed only by the director of the school board, where the other members of the board participated in the payment of the bills for freight on the furniture, and for drawing and setting up the same, and . themselves assisted in such work, and the district used the furniture for 15 months before giving notice of an intention to rescind the contract.
    Error to Livingston; Smith, J.
    Submitted June 3, 1896.
    Decided July 28, 1896.

      Assumpsit by George W. Jones against School District No. 3 of Iosco, for goods sold and delivered. From a judgment for defendant, plaintiff brings error.
    Reversed.

      William B. Gildart, for appellant.

      Louis E. Howlett, for appellee.
   Moore, J.

The plaintiff sued the defendant to recover $97 and interest on a claim assigned to him by the Adjustable School-Seat Manufacturing Company. The case was tried by a jury, who rendered a verdict for the defendant. The plaintiff appeals.

The record shows that in 1892 the defendant erected a new school-house. The old school-house stood upon the same lot. The winter term of school commenced about November 18th, and was held in the old school-house until the 1st of January, 1893, from which time it was held in the new school-house. At a special meeting of the district, held about the middle of November, a resolution was passed “to seat the school-house, and pay for it in two equal, annual installments.” The meeting gave no directions as to who should buy the furniture. The school board at this time consisted of ’Mr. Abbott, director; Mr. Caskey, moderator; and Mr. Miller, assessor. November 22, 1892, the director. and the agent of the manufacturing company visited the homes of the assessor and moderator, to have them join the director in giving an order for the seats. They found neither the assessor nor moderator at home. Mr. Miller had corresponded with the agent before this, but the record is silent as to the nature of the correspondence. The director had been getting prices and seeing agents of different manufacturing companies before this. Not finding the-other members of the board, the director gave the agent a written .order for seats and desks, — the amount of the order being $194, payable $97 on or before January 1, 1894, and $97 February 1, 1895, — signing the order as director. The seats were shipped in knockdown form to Fowlerville, and were drawn from there by the director and moderator in the latter part of .December, 1892, and early in January, 1893. The director and moderator were assisted in putting the furniture into the schoolhouse by the assessor. The director, with the help of three men, set the seats up in the school-house, where they remained and were used by the school district during all its sessions, and were in use when this case was tried in the circuit court, December 28, 1895. Mr. Caskey, the moderator, was paid two dollars, upon a written order, for helping to draw the seats from the station. The freight bills and expenses of setting up the seats in the school-house wdre paid by the assessor, upon a written order drawn and signed by the director, and countersigned by the moderator.

At the annual meeting in September, 1893, the director made a report to the district, showing the amount of money he had paid for freight, the amount of money he had paid for putting the seats in, and also of the agreement he had made with the manufacturing company. The records show that the report was adopted, though it is claimed by the district that the part of the report which referred to the agreement with the company was excepted from the report as adopted. It is also claimed that at this meeting it was voted that “ the school board should enter into no contracts, give no bonds or notes, or pay any money to the school-seat company.” This resolution does not appear in the minutes of the meeting. The minutes show that, at the annual meeting of 1894, it was “ moved and supported that the minutes of the annual meeting of 1893 stand unapproved. Carried.” The record does not show any other action taken at the school meetings.

No action was taken to rescind this contract by any of the school officers, either acting as a board or as individual officers, until April 19, 1894, when the following paper was served on Mr. Abbott:

“Iosco School District No. 3, April 19, 1894.
“M. M. Abbott, Director:
“You are hereby requested and directed to cause to be carefully removed, stored, and cared for, the seats now in the school-house of the above-named district, — said seats having been ordered of the Adjustable School-Seat Manufacturing Company, of Marcellus, without authority of this board, and contrary to the resolution of the district qualified voters authorizing this board to act in the matter, — as we decline to ratify the so-called purchase, or pay for said seats. We will be pleased to consult with you as to temporary benchés, etc., required until this matter can be adjusted.
[Signed] “ B. W. Harford, Moderator,
“A. F. Ward, Assessor,
“Majority of School Board.”

And on the same day the following notice was mailed:

“Iosco School District No. 3, Gregory Post Office,
“Michigan, April 19, 1894.
“Adjustable School-Seat Manufacturing Company, Marcellus, Michigan.
“Gentlemen: Your attention is respectfully called to the within copy of a notice this day served bn M. M. Abbott, director of this district.
[Signed] “A. F. Ward, Assessor,
“B. W. Harford, Moderator,
“Majority of School Board.”

The furniture was not removed, and the district continued to use it. They did not pay for it, and this suit was brought.

Upon the trial the facts were made to appear as stated herein. The plaintiff asked the judge to direct a verdict in favor of the plaintiff, He' declined to do that, but instructed the jury that the director had no authority to make the contract he did, and that the “plaintiff is not entitled to recover at all, unless it is by virtue of the defendant having received the goods and used them, raising an implied acceptance.” He charged the jury at length upon the question of ratification. It will not be necessary to pass upon all the assignments of error, nor will it be necessary to determine whether the director, by virtue of his office, had authority to buy this furniture. It has been held that—

“It is well settled — at least, in this country — that where a person is employed for a corporation by one ■assuming to act in its behalf, and goes on and renders the services according to the agreement, with the knowledge of its officers, and without notice that the contract is not recognized as valid and binding, such corporation will be held to have sanctioned and ratified the contract. * * * Having availed itself of the services, and received the benefits, it is bound, in conscience, to pay, and will not be heard to say that the original agreement was not made by a person legally authorized to contract.” Lister v. La Rue, 15 Barb. 323.

In Crane v. School District No. 6, 61 Mich. 305, the plaintiff brought suit to recover pay for the full term •of service contracted for, — 20 weeks. He was discharged after teaching 10 weeks, and after having been paid $80 upon orders. The contract was not signed by the assessor, and the defendant offered to show that there was no resolution of record authorizing the making of this contract; that there was no consultation of the three officers, or any two of them, at any time, in relation to the hiring of the plaintiff; that they were not together when the contract was signed; and that there was no corporate action in relation to the execution of the contract, or the hiring •of plaintiff. The court excluded the offered evidence, upon which ruling error was assigned. Justice Morse, in the opinion affirming the case, said:

“When it was admitted, without any dispute, that the plaintiff taught under this contract for 10 weeks, with the sanction and consent of the officers, and that orders were drawn by the proper officers for his pay as such teacher, and cashed by the assessor, who did not sign the contract, without any objection, it became entirely immaterial what the book of record showed, or whether there was any corporate action in hiring him, or authorizing the contract. The defendant must be held not only estopped by the action of its officers from questioning the validity of the contract, but treated as having fully ratified and confirmed it.
“School-district officers cannot be permitted by the law to enter into a written contract with a teacher, none of them denying its validity for 10 weeks, or half the term, but recognizing it by making payments upon it, in which payments all join, and then, after the teacher, in the utmost good faith and reliance upon the contract, has taught that length of time, discharge him without cause, and plead in bar of his payment under the contract that they never met and consulted, nor took corporate action, in hiring him, nor made any record in a book of the execution of the contract. It appears very clearly in the case that a majority of the school board assented to this contract in the first place, as evidenced by their executing it. ' It was afterwards ratified by all three of them. It was not necessary that there should be a direct proceeding, with an express intent to ratify. ‘It may be done indirectly, and by acts of recognition or acquiescence, or aces inconsistent with repudiation or disapproval.’ See Scott v. Methodist Church, 50 Mich. 532. It was not necessary that these three officers should formally meet together, pass a resolution confirming the contract, and record it, in order to ratify the action of the moderator and director in hiring the plaintiff and executing the contract sued upon. Their action, in drawing and paying the orders without any demur or protest, was a sufficient recognition and approval of the contract.”

The decision in that case ought to .control this one. The district had authorized the purchase of these seats. The director gave the order for them. They were drawn from the railroad station by the director and the moderator. They were set up and put in the school-house by all three of the officers. ' The expense of setting them up, the freight bills, and the expense of bringing them from the railroad station, were paid; all three of the officers having knowledge of the fact and participating in the payment. The school district used the furniture for 15 months before any intimation was given to the assignor of the plaintiff of any purpose to rescind the contract. It .is difficult to conceive of a stronger case of ratification and estoppel. The trial judge should have directed a verdict in favor of the plaintiff, as requested.

The judgment is reversed,, and new trial ordered.

The other Justices concurred.


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    STERLING v. REGENTS OF UNIVERSITY OF MICHIGAN.
    1. Mandamus — Public Boards — Parties.
    A private citizen does not possess the right, without permission of the court, to apply for a writ of mandamus to compel a public board to perform an omitted duty. •
    2. State University — Power of Legislature over Board of Regents — Construction of Constitution.
    The effect of sections 2, 6, 7, and 8 of article 18 of the Constitution, providing, inter alia, that' ‘ the board of regents shall have the general supervision of the University, and the direction and control of all expenditures from the University interest fund,’’ is to vest in the regents direct and exclusive supervision and control; and the legislature, therefore, does not possess the power, attempted to be exercised by Act No. 257, Pub. Acts 1895, to compel the discontinuance of the existing homeopathic medical college at Ann Arbor, and its re-establishment at Detroit.

    3. Same.
    The following considerations bear upon such construction; (a) The reports of committees appointed by the legislature prior to the adoption of the Constitution of 1850, when the institution was under direct legislative control, favoring the vesting of exclusive control in a permanent board.

      (b) Reports of regents appointed by the legislature, and acting under its supervision, urging a restriction of responsibility to the board.
    (c) Discussions and debates in the constitutional convention.

      (d) The report of the superintendent of public instruction, immediately thereafter, referring to the “change of the organic law in placing the University under the control of regents.”
    (e) The open assertion by the regents since the adoption of the Constitution of the right of exclusive control.

      (/) Decisions of the courts substantially sustaining the regents in such contention.
    4. Same.
    The Constitution itself is ample evidence that such is the proper construction:
    (a) Direct powers are conferred upon the board of regents by the Constitution, which, in the absence of language showing a contrary intent, excludes the exercise of such powers by any other constitutional body.

      (b) The board of regents is the only corporation provided for in t.he Constitution whose powers are defined therein, the powers of all other corporations being such as the legislature shall confer.

      (o) The effect of sections 1 and 9 of article 13, which, after conferring certain power of “generalsupervision” upon the superintendent of public instruction and the State board of education, respectively, provide that their duties shall be “prescribed by law,” is to exclude such restriction upon the power of the board of regents, under the rule that where a general power over one subject is conferred upon one body in one clause of an instrument, without any restricting or qualifying language, and the like power over another subject is conferred upon another body in another clause of the same instrument, with restricting or qualifying language, such restrictions or qualifications must be excluded from the first clause.

      Mandamus by Charles F. Sterling to compel the Regents of the University of Michigan to comply with Act No. 257, Pub. Acts 1895, providing for the removal of the homeopathic medical college from Ann Arbor to Detroit.
    Submitted May 5, 189C.
    Denied July 28, 1896.
    In 1895 the legislature passed Act No. 257, Pub. Acts 1895, the material part of which reads as follows:
    ‘ ‘ That the board of regents of the University of Michigan are hereby authorized and directed to establish a homeopathic medical college as a branch or department of said University, which shall be located in the city of Detroit, and the said board of regents are hereby authorized and directed to discontinue the existing homeopathic medical college now maintained in the city of Ann Arbor as a branch of said University, and to transfer the same to the city of Detroit.”

      The title of the act is “An act to amend section one of an act entitled ‘An act for the establishment of a homeopathic medical department of the University of Michigan,’ approved April 27, 1875, being section 4932 of Howell’s Annotated Statutes.” The regents of the University declined to comply with said act. The relator thereupon presented this petition for the writ of mandamus to compel the regents to comply with the act. The ground for such refusal is (1) that it was not, in their judgment, for the best interests of the University; (2) that the legislature has no constitutional right to interfere with or dictate the management of the University. Among other things in their answer, they say:
    “A large part of the course of instruction required to be given in the other medical, department of the University, and in the homeopathic medical college, is common to the two schools. This fact has enabled the regents to provide for such common instruction at the expense, to that extent, of the support and maintenance of a single department; thus saving to the benefit of the University and to the people of the State a large sum of money annually, which otherwise would be required for the continuous support of two medical departments, which would be wholly separate throughout their several courses of instruction in case both departments of medicine were not located at the city of Ann Arbor. It appears to the regents that great advantage arises to the University as a whole, and to the students in the various departments of the University, that all the branches of the University are located and maintained at the proper seat of the University, at Ann Arbor. It appears also to the regents that whatever suggestions may be made of the advantages to be derived to the homeopathic medical college, as a department of the University, by the removal of such department to a larger city, or to any other locality than the city of Ann Arbor, are suggestions which may, perhaps, be used for the removal of the other medical department of the University and other departments of the University to some other locality than the city of Ann Arbor, by parties or interests desiring to secure such rem'oval. It further appears to the regents that the removal of one of the established departments of the University suggests a movement for an entire change in that policy of concentration of the departments of the University at the proper seat of the University which has hitherto promoted the growth and advancement of the University to its present place among the great schools of the world.
    “The claim which is made under the application of'the relator, that the provisions of Act No. 257 command the discontinuance and removal of the homeopathic medical department of the University by the regents, without any reference to their power of supervision of the University, suggests to the regents the question whether such provisions do not curtail and impair the power of supervision and control of the University which has been vested in the regents by the Constitution of the State. It is the purpose, as well as the plain duty, of the regents, to exercise, according to their best judgment, the supervision and control of the University, which has been vested in them by the State Constitution, to promote both the interests of the University and the interests of the people of the State, which are involved in'the welfare of the University. The regents have not undertaken to decide for themselves upon the wisdom or unwisdom of the purpose of the provisions of said Act No. 257, under which the relator’s application is made. They have been advised that grave doubts exist in respect to the validity of said act. They have also been advised that to the extent that the provisions of the act are a foundation for the application for a writ to compel action on the part of the regents, denying their right to exercise judgment, supervision, or control in relation to the subject of the discontinuance of an existing department of the University, there are grave doubts in respect to the validity of the act.”

      Geer & Williams, for relator.

      Hanchett & Hanchett (B. IP. Graves, of counsel), for respondent board.

       The decisions as to the nature of incorporated institutions belonging to the State are found in a note to State, ex rel. Little, v. Board of Regents of University, (Kan.) 29 L. R. A. 878.

   Grant, J.

(after stating the facts). The petitioner does not in his petition show any interest in the matter, or the right to question the action of the board of regents. The attorney general is the proper party to move in such a case, and a private citizen does not possess the right, without permission of the court, to apply for this writ to compel a public board to perform an omitted duty. People v. Regents of University of Michigan, 4 Mich. 98. The petition in this case does not set forth that the petitioner is a citizen of the State, or that he is in any manner injured by the action of the board. This point is not raised in the briefs of counsel, probably because it is desired to obtain a decision upon the merits. We think that such proceedings should be instituted by proper parties, and that relators should show themselves competent to bring them into court. Inasmuch, however, as the question has not been raised, ’ we shall do as we have sometimes done before, — dispose of the case upon the main issue.

The University of Michigan was founded under an act of Congress making an appropriation of lands for the support of a university in this State, approved May 20, 1826. In 1836 an act of Congress was passed in which it was provided:

“That the 72 sections of land set apart and reserved for the use and support of a university by an act of Congress approved May 20, 1826, are hereby granted and conveyed to the State, to be appropriated solely to the use and support of such university.” 5 U. S. Stat. at Large, 59.

This grant of lands was accepted by the State by an act of legislature approved July 25, 1836.

‘By the Constitution of 1835 (article 10, § 5) it was provided :

“ The legislature shall take measures for the protection, improvement, or other disposition of such lands as have been or may hereafter be reserved or granted by the United States to this State for the support of a university, and the funds accruing from the rents or sale of such lands, or from any other source for the purpose aforesaid, shall be and remain a permanent fund for the support of said university, with such branches as the public convenience may hereafter demand for the promotion of literature, the arts and sciences, and as may be authorized by the terms of such grant. And it shall be the duty of the legislature, as soon as may be, to provide effectual means for the improvement and permanent security of the funds of said university.”

By subsequent acts of the legislature, the lands were sold, and the State received the proceeds, and they were made a permanent fund for the support of the University. In 1837 the University was located at Ann Arbor, upon a. tract of land donated for that purpose. Laws 1837, p. 142. The same legislature passed an act establishing the University, providing for a board of regents of 12 members, for 3 departments, and for the establishment of professorships. It also provided that the regents, together with the superintendent of public instruction, should establish such branches of the University in the different parts of the State as should from time to time be authorized by the legislature; also, for the establishment, in connection with each branch, of an institution for the education of females in the higher branches of knowledge, whenever suitable buildings should be prepared; and also for a department of agriculture. Laws 1837, p. 102.

Under the Constitution of 1835, the legislature had the entire control and management of the University and the University fund. They could appoint regents and professors, and establish departments. The University was. not a success under this supervision by the legislature, and, as some of the members of the constitutional convention of 1850 said in their debates, “some of the denominational colleges had more students than did the University.” Such was the condition of affairs when that convention met. It is apparent to any reader of the debates in this convention in regard to the constitutional provision for the University that they had in mind the idea of permanency of location, to x>lace it beyond mere political influence, and to intrust it to those who should be directly responsible and amenable to the people. After these constitutional provisions, substantially in their present form, had been presented to the convention, and the question arose as to how they should be selected, whether by election or appointment, Mr. Whipple said:

“If we select eight (and I should prefer twelve), your regents will be distributed over every part of the State, and the public will thus obtain a-knowledge of this institution; for the convention will observe that the concerns of this University are to be placed in the hands of the regents. They will obtain very important knowledge in regard to this establishment, and the people among whom they live will become informed as to the nature of this institution, and will become interested in it.” Convention Debates, 782.

The public men of those times were greatly interested in the University. Methods for its management were discussed by governors in their messages, by reports of the board of regents to the legislature, and by committees of the legislature. The general consensus of opinion was that it should be under the control and management of a permanent board, who should be responsible for its management. The regents, in March, 1840, in obedience to a joint resolution of the legislature, reported that—

“The first change in the organic law deemed essential is the proper restriction of responsibility to the board of regents. At present the responsibility is divided, and the board would be greatly facilitated in their action were such amendments made as would throw entire responsibility on them.”

In the same report they also urged that the trust and management of the funds of the University should be placed in the regents.

A select committee was appointed by the legislature in 1840 to inquire into the condition of the University. No more forcible argument could well be made than is found in that report for placing the entire control of the University in the hands of a permanent board, and taking it away from the legislature. 2 House Documents 1840, p. 470. I quote from that report as follows:

“No State institution in America has prospered as well as independent colleges with equal, and often with less, means. Why they have not may be ascribed, ip part, to the following causes: They have not been guided by that oneness of purpose and singleness of aim (essential to their prosperity) that others have whose trustees are a permanent body, — men chosen for their supposed fitness for that very office, and who, having become acquainted with their duties, can and are disposed to pursue a steady course, which inspires confidence and insures success, to the extent of their limited means. State institutions, on the contrary, have fallen into the hands of the several legislatures, fluctuating bodies of men, chosen with reference to their supposed qualifications for other duties than cherishing literary institutions. When legislatures have legislated directly for colleges, their measures have been as fluctuating as the changing materials of which the legislatures were composed. When they have acted through a board of trustees, under the show of giving a representation to all, they have appointed men of such dissimilar and discordant characters and views that they never could act in concertj so that, whilst supposed to act for and represent everybody, they, in fact, have not and could not act for anybody.
“ Again, legislatures, wishing to retain all the power of the State in their own hands, as if they alone were competent or disposed to act for the general good, have not been willing to appoint trustees for a length of time sufficient for them to become acquainted with their duties, to become interested in the cause which they were appointed to watch over, and feel the deep responsibility of the trust committed to them. A new board of trustees, like a legislature of new members, not knowing well what to do, generally begins by undoing and disorganizing all that has been done before. At first they dig up the seed a few times, to see that it is going to come up; and, after it appears above the surface, they must pull it up, to see that the roots are sound; and they pull it up again, to see if there is sufficient root to support so vigorous branches; then lop off the branches, for fear they will exhaust the root; and then pull it up again, to see why it looks so sickly and pining, and finally to see if they can discover what made it die. And, as these several operations are performed by successive hands, no one can be charged with the guilt of destroying the valuable tree. Whilst State institutions have been, through the jealousy of State legislatures, thus sacrificed to the impatience and petulance of a heterogenous and changeable board of trustees, whose term of office is so short that they have not time to discover their mistakes, retrace their steps, and correct their errors, it is not surprising that State universities have hitherto, almost without exception, failed to accomplish, in proportion to their means, the amount of good that was expected from them, and much less than colleges in their neighborhood, patronized by the religious public, watched, over by a board of trustees of similar qualifications for duty, and holding the office permanently, that they may profit by experience.
‘ ‘ The argument by which legislatures have hitherto convinced themselves that it was their duty to legislate universities to death is this: ‘ It is a State institution, and we are the direct representatives of the people, and therefore it is expected of ns; it is our right. The people have an interest in this thing, and we must attend to it.’ As if, because a university belongs to the people, that were reason why it should be dosed to death for fear it would be sick, if left to be nursed, like other institutions, by its immediate guardians. Thus has State after State, in this American Union, endowed universities, and then, by repeated contradictory and over legislation, torn them to pieces with the same facility as they do the statute book, and for the same reason, because they have the right.”

All these reports and discussions were undoubtedly known to the members of the convention, and their action should be construed in the light of such knowledge. I am unable to find a single utterance by any member of that convention from which it could be inferred that the members believed or supposed that they were leaving the control of that institution to the legislature. The result has proved their wisdom, for the University, which was befóte practically a failure, under the guidance of this constitutional body, known as the “Board of Regents,” has grown to be one of the most successful, the most complete, and the best-known institutions of learning in the world. That such was the understanding of the meaning of the Constitution of 1850 is shown by the report of the superintendent of public instruction, published in 1852, in which he refers to “the additional and general interest created by a change of the organic law in 1850, in placing the University under the control of regents elected by the people.” Report, Pub. Ins. 1852, p. 26.

The provisions of the Constitution of 1850 in regard to the University are these (article 13):

“ Sec. 2. The proceeds from the sales of all lands that have been or hereafter may be granted by the United States to the State for educational purposes, and the proceeds of all lands or other property given by individuals or appropriated by the State for like purposes, shall be and remain a perpetual fund, the interest and income of which, together with the rents of all such lands as may remain unsold, shall be inviolably appropriated and annually applied to the specific objects of the original gift, grant, or appropriation.”
“Sec. 6. There shall be elected in the year 1863, at the time of the election of a justice of the Supreme Court, eight regents of the University, tvyo of whom shall hold their office for two years, two for four years, two for six years, and two for eight years. They shall enter upon the duties of their office on the first of January next succeeding their election. At every regular election of a justice of the Supreme Court thereafter, there shall be elected two regents, whose term of office shall be eight years. When a vacancy shall occur in the office of regent, it shall be filled by appointment of the governor. The regents thus elected shall constitute the board of regents of the University of Michigan.
“Sec. 7. The regents of the University, and their successors in office, shall continue to constitute the body corporate known by the name and title of ‘ the Regents of the University of Michigan.’
“Sec. 8. The regents of the University shall, at their first annual meeting, or as soon thereafter as may be, elect a president of the'University, who shall be ex officio a member of their board, with the privilege of speaking, but not of voting. He shall preside at the meetings of the regents, and be the principal executive officer of the University. The board of regents shall have the general supervision of the University, and the direction and control of all expenditures from the University interest fund.”

The board of regents, elected under the new Constitution, immediately took control of the University, interpreted the Constitution in accordance with its plain provisions, denied the power of the legislature to interfere with its management or control, and for 46 years have declined obedience to any and every act of the legislature which they, upon mature reflection and consideration, have deemed against the best interests of the institution. This court has sustained them in that position, and has on every occasion when asked denied its writ to interfere with their action. In January, 1856, in the case of People v. Regents of University of Michigan, 4 Mich. 98, this court, in denying the writ of mandamus to compel the regents to establish a professorship authorized by the legislature, said:

“They [the regents] aver that they have acted in good faith, but at the samé time under the influence of much uncertainty as to the constitutionality of the law, and we are compelled to recognize in this question what might well suggest doubt of the binding force of the law, and occasion some hesitation in their action.”

Obviously, it was not the intention of the framers of the Constitution to take away from the people the government of this institution. On the contrary, they designed to, and did, provide for its management and control by a body of eight men elected by the people at large. They recognized the necessity that it should be in charge of men elected for long terms, and whose sole official duty it should be to look after its interests, and who should have the opportunity to investigate its needs, and carefully deliberate and determine what things would best promote its usefulness for the benefit of the people. Some of the members of the convention of 1850 referred in the debates to two colleges (one in Virginia and the other in Massachusetts) which had been failures under the management by the State. It is obvious to every intelligent and reflecting mind that such an institution would be safer and more certain of permanent success in the control of such a body than in that of the legislature, composed of 132 members, elected every two years, many of whom would, of necessity, know but little of its needs, and would have little or no time to intelligently investigate and determine the policy essential for the success,of a great university.

Now, in the face of the facts that the regents have for 46 years exercised such control, and openly asserted their exclusive right to do so; that the courts have refused to compel them to comply with the acts of the legislature; that this court held in Weinberg v. Regents, 97 Mich. 246, that they were a constitutional body, upon whom was conferred this exclusive control; and in the face of this plain constitutional provision, — this court is now asked to hold that the regents are mere ministerial officers, endowed with the sole power to register the will of the legislature, and to supervise such branches and departments as any legislature may see fit to provide for. By the power claimed, the legislature may completely dismember the University, and remove every vestige of it from the city of Ann Arbor. It is no argument to say that there is no danger of such a result. The question is one of power, and who shall say that such a result may not follow? The legislature did once enact that there should be a branch of the University in every judicial circuit. If the regents comply with the present act, the next legislature may repeal it, and restore that department to the University at Ann Arbor, or place it elsewhere. Some legislatures have attached conditions — and they have the undoubted right to do so — to appropriations for the support of the University, and a subsequent legislature has removed the conditions. Some legislatures have attached to appropriations the condition for the establishment of a homeopathic professorship in the old medical department. Other legislatures have refused to attach any such condition. What permanency would there be in an institution thus subject to the caprice and will of every legislature? Under this power, the legislature could remove the law department from the University at Ann Arbor to Detroit, and provide that the law library, to which one citizen of Michigan has donated $20,000, should also be removed. It might scatter its great library (to the collection of which private citizens have contributed nearly or quite one-half), and also its great museums, laboratories, and mechanical appliances. Other results will readily suggest themselves. It appears to us impossible that such a power was contemplated.

Furthermore, it renders nugatory the express provision of the Constitution that “the regents shall have the direction and control of all expenditures from the University ' interest fund.” It is significant that, at the time of the adoption of the Constitution, this fund constituted the sole support of the University, aside from fees which might be received from students. The State had made no appropriations for its support, and-there is nothing to indicate that any such appropriations were contemplated. It is unnecessary to argue that the above provision means what it says, and that it takes away from the legislature all control over the income from that fund. The power therein conferred would be without force or effect if the legislature could control these expenditures by dictating what departments of learning the regents shall establish, and in what places they shall be located. Neither does it need any argument to show that the power contended for would take away from the regents the control and direction of the expenditures from the fund. The power to control these expenditures cannot be exercised directly or indirectly by the legislature. It is vested in the board of regents in absolute and unqualified terms. This act, in express terms, prohibits the regents from using any of this fund to support a homeopathic department at the University at Ann Arbor, since it prohibits them from maintaining such a department there.

This power cannot be sustained without overruling the case of Weinberg v. Regents. The basis of the majority opinion in that case is that the board of- regents is a constitutional body, charged by the Constitution with the entire control of that institution. The result could not have been reached upon any other basis. It was held not to be a State institution under the control and management of the legislature, as were the other corporations enumerated in the statute then under discussion. We there said: “Under the Constitution, the State cannot control the action of the regents. It cannot add to or take away from its property without the consent of the regents.” We might with propriety rest our decision upon that case, and should be disposed to do so were it not for the urgent contention of the counsel on the part of the relator that that case does not apply. We are therefore constrained to state some further reasons to show that the legislature has- no control over the University or the board of regents.

(1) The board of regents and the legislature derive their power from the same supreme authority, namely, the Constitution. In so far as the powers of- each are defined by that instrument, limitations are imposed, and a direct power conferred upon one necessarily excludes its existence in the other, in the absence of language showing the contrary intent. Neither the University nor the board of regents is mentioned in article 4, which defines the powers and duties of the legislature; nor in the article relating to the University and the board of regents is there any language which can be construed into conferring upon or reserving any control over that institution in the legislature. They are separate and distinct constitutional bodies, with the powers of the regents defined. By no rule of construction can it be held that either can encroach upon or exercise the powers conferred upon the other.

(2) The board of regents is the only corporation provided for in the Constitution whose powers are defined therein. In every other corporation provided for in the Constitution it is expressly provided that its powers shall be such as the legislature shall give. In the case of townships (article 11, § 2), and in counties (article 10, § 1), and boards of supervisors (article 10, § 6), it is expressly provided that each corporation shall have such powers and immunities as shall be prescribed by law. The same is true of other officers, aside from the regents, provided for in the Constitution. Justices of the peace (article 6, § 18), the sheriff, the county clerk, the county treasurer, the register of deeds, and prosecuting attorney (article 10, § 3), and township officers (article 11, § 1), can exercise such powers as shall be prescribed by law.

(3) Let us apply another test. It is a rule of construction that where a general power over one subject is conferred upon one body in one clause of an instrument, without any restricting or qualifying language, and the like power over another subject is conferred upon' another body in another clause of the same instrument, with restricting or qualifying language, the restrictions or qualifications of the second clause cannot be read into the first clause. On the contrary, they rhust be excluded. By article 13, § 1, the superintendent of public instruction is clothed with “the general supervision of public instruction;” but it is added, “ His duties shall be prescribed by law.” By article 13, § 9, the board of education is given “the general supervision of the State Normal School;” but it is added, “Their duties shall be prescribed by law.”

Thus, in every case except that of the regents, the Constitution carefully and expressly reposes in the legislature the power to legislate and to control and define the duties of those corporations and officers. Can it be held that the framers of the Constitution, and the people, in adopting it, had no purpose in conferring this power, viz., the “general supervision,” upon the regents in the one instance, and in restricting it in the others? No other conclusion, in my judgment, is possible than that the intention was to place this institution in the direct and exclusive control of the people themselves, through a constitutional body elected by them. As already shown, the maintenance of this power in the legislature would give to it the sole control and general supervision of the institution, and make the regents merely ministerial officers, with no other power than to carry into effect the general supervision which the legislature may see fit to exercise, or, in other words, to register its will. We do not think the Constitution can bear that construction.

The writ is denied.

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