text:
    BARNARD v. JUDGE OF SUPERIOR COURT OF THE CITY OF GRAND RAPIDS.
    •1. Criminal Law — Courts—Books and Documents — Inspection.
    Where the prosecuting attorney held a number of books and records of the city treasurer against whom a prosecution for embezzlement had been instituted, and refused permission to the respondent to examine the books, which had been turned over to the prosecutor by auditors after making an examination, the judge of the court in which the prosecution was pending had authority to require the prosecutor to deposit them with the clerk of the court for examination by accused or his counsel. The prosecuting attorney had no greater rights than if he had secured the books by unlawful search and seizure.
    2. Same — Records—Public Piles, etc.
    Under proper restrictions the right to examine public books and records remains in a member of the public although charged with the crime of embezzlement.
    3. Courts — Practice—Judicature Act — Disqualification.
    Act No. 314, Pub. Acts 1915, known as the judicature act (3 Comp. Laws 1915, § 12254), in so far as it disqualifies a judge for relationship, does not prohibit him from entering interlocutory orders because his son and nephew were acting as attorneys in related proceedings having the same series of transactions involved in them.

    4. Same.
    Every litigant is entitled to nothing less than the cold neutrality of an impartial judge, who must possess the disinterestedness of a total stranger to the interests of the parties involved in the litigation, whether that interest is revealed by an inspection of the record or developed by evidence dUuncLe the record. The real parties in interest furnish the reason for the judge to recuse himself when it becomes known that they are related to the judge, although they may not be parties eo nomine.

      Mandamus by Edward N. Barnard, prosecuting attorney for the county of Kent, against Major L. Dun-ham, judge of the superior court of the city of Grand Rapids, to compel respondent to vacate an order requiring relator to produce certain books or documents and to show cause why he should not be treated as disqualified to sit in the case of the People against Hawkins, then pending in said court.
    Submitted April 11, 1916.
    (Calendar No. 27,142.)
    Writ denied June 1, 1916.

      Edward N. Barnard, in pro. per.

      Maynard & Chase (George Clapperton, of counsel), for respondent.

       As to effect of relationship to attorney in case, as disqualifying judge to hear case, see note in 42 L. R. A. (N. S.) 1172.

   Steere, J.

This is an application for mandamus to compel respondent to vacate an order previously made by him as judge of the superior court of Grand Rapids, requiring relator to deposit with the clerk of the court certain records and papers claimed to be material evidence in a criminal case there pending against James S. Hawkins, city treasurer, and to refrain from further acting as judge or presiding in said case because disqualified under the judicature act of 1915 (Pub. Acts 1915, No. 314, 3 Comp. Laws 1915, § 12254) by reason of relationship. Hawkins was bound over to respondent’s court for trial on January 15, 1916, under a complaint charging him with embezzling and misappropriating $243.45 of money belonging to the city of Grand Rapids, stated in six different counts alleging such offense as committed under dates from June 8, 1914, to June 8, 1915. On January 25, 1916, prior to the filing of any information in said cause, application was made by Hawkins’ counsel, supported by his affidavit, for an order, requiring relator and the firm of Patterson & Patterson, which had been employed by the city, to audit the books and accounts of the city treasurer’s office—

“to immediately deliver to the clerk of this court all books, papers, memoranda, and data which have been removed by them from the office of the city treasurer of the city of Grand Rapids, or from the office of the city comptroller of the city of Grand Rapids, to remain in the custody of the clerk of this court until the further order of the court, and that the respondent, his attorneys and agents, may have free access for the examination of the same,' and that Edward N. Barnard, prosecuting attorney, George M. Patterson, and the firm of Patterson & Patterson may be directed and required to deliver to said respondent his personal bank checks, check stub books and bank passbooks which are or have been in the possession of any or either of them.”

Relator filed his affidavit in opposition, stating, in substance, that all such documentary evidence came into his possession in the course of an investigation of alleged criminal practices in the city treasurer’s office, and was held for use in pending criminal prosecutions against said Hawkins and his deputy. After a hearing held on January 31, 1916, the court refused to direct relator to deliver to Hawkins his personal bank checks, stub books, etc., but ordered him to produce and deliver to the clerk of the court the papers referred to in said motion, which came from the city treasurer’s office, to remain for a period of 30 days, and until the further order of the court, open to inspection, both by the prosecution and defense in said case, and that relator return to the office of the city controller of the city of Grand Rapids all books, papers, etc., in his possession or under his custody and control, which had been taken or removed from that office. The record further discloses that two other criminal cases were pending in the superior court of Grand Rapids, charging Hawkins and his deputy, William H. Olmstead, with misappropriation of funds belonging to the city treasury, one against Olmstead and one against Hawkins and Olmstead jointly, in both of which respondents were represented by the firm of Dunham & Dunham, attorneys, consisting of respondent’s son and nephew. Claiming that the three cases ihvolved substantially the same line of inquiry and were so correlated that disqualification in the other two cases was in fact and legal effect disqualification in the case under consideration, relator, in a subsequent motion to vacate said order, interposed the objection and urged as a reason that respondent was disqualified by consanguinity from acting in any of said cases. This objection was not sustained and relator’s motion was overruled.

There are but two legal questions involved in this case: First, did the court have power to make an order requiring public records and- private papers taken from public offices, including that of the city treasurer, against whom a criminal prosecution was pending, and which were held by the prosecution under claim that they were incriminating documentary evidence, to be turned over to the clerk of the court, where they might be inspected and examined by all parties in interest, and, if so, was said order an abuse of discretion under the circumstances shown? Second, was respondent disqualified from sitting in this case by reason of his son and nephew being attorneys of record in other cases of like nature pending before respondent, charging Hawkins and his deputy with like offenses, involving a similar line of inquiry and examination of the same books and rec'ords?

For the purposes of this case that portion of respondent’s return to the order to show cause herein which is material and responsive must be taken as true, as also any averments of fact in relator’s petition which are not denied in the return. From respondent’s return it appears that the auditing firm of Patterson & Patterson, while employed by the city to make an audit of the books of the city treasurer, upon which they were engaged for some months, were permitted by Hawkins, for the more convenient and efficient conduct of their work, to remove certain books, papers and memoranda from the treasurer’s office to their office in the Grand Rapids National City Bank building where they were carrying on the work, but it is stated:

“Said city treasurer and said auditors are not in accord as to whether or not the auditors had permission to take from the city treasurer’s office all the papers, books, documents, and data that were taken by said auditors.”

The auditors did not return these book and papers, but subsequently turned them over to relator, and “some 21/2 or 3 months” after they were removed from the treasurer’s office complaint whs made against Hawkins by an employee of the prosecutor, charging him with embezzling $243.45 from the city treasury. It was shown that said audit was begun shortly after August 25, 1915; that no report had been made by the auditors to the common council of the city, and that Hawkins’ demand of the auditors and relator for return of all said books and papers had been refused. Under the circumstances shown respondent states that it appeared to him from the nature of the charge against Hawkins it was proper that he be given an opportunity to make investigation in the various books and records belonging to his office concerning the item he is charged with embezzling, and trace the entries, if able, in relation to it. Relator’s contention is to the effect that the defendant in a criminal case is not entitled to the benefits of a bill of discovery; that communications made to the prosecuting attorney in a criminal case are privileged, and the prosecution cannot be compelled to disclose in advance what evidence it has against an accused.

Conceding this all to be true, we fail to discover its application to the case at hand. The order complained of does not require relator to disclose any confidential communications, the theory of the prosecution, the kind and character of evidence he has against the accused, nor any particular item of incriminating evidence he may have discovered in these books and papers or elsewhere. When the records and papers were taken temporarily from the treasurer’s office, either with or without his consent, for more convenient use by the auditors in their own office, the city treasurer was yet the legal custodian and entitled to the possession and use of them, while relator was not. In taking possession of them from the auditors he is in no different position than had he, without process, taken them from the treasurer’s office by unlawful search and seizure! He, however, has taken and holds possession of them, his only claim of right to retain and sequester them being for use as evidence in a criminal case pending in respondent’s court, thus planting his claim upon their relation to that case and bringing them under the control of the court, which has the inherent right to take cognizance of and pass upon questions involving an alleged unreasonable and unlawful exercise of authority in a case pending before it and under its general control. Authority is not wanting for a court in somewhat analogous cases to order papers wrongfully seized turned over to the accused. Weeks v. United States, 232 U. S. 383 (34 Sup. Ct. 341, L. R. A. 1915B, 834, Am. & Eng. Ann. Cas. 1915C, 1177). -But in this case the court went no farther than to order these public records, and bank checks, stub books, passbooks, etc., of the accused claimed by him to relate to the conduct of his office, into' the custody of the court to be cared for by its clerk subject to inspection by interested parties. The right to examine public records for all reasonable purposes exists by statute, and might at proper times and under proper restrictions be exercised by any citizen, whether accused of crime or not, if these records were in the office of the city treasurer of Grand Rapids, where they ordinarily belonged. It was within the discretion of the court to make the order complained of, and under the circumstances shown we do not find that there was any abuse of discretion in making it.

Relator’s contention that respondent is disqualified from acting officially in the case of People v. Hawkins, in which the interlocutory order complained of was made, is based upon that portion of section 7, chap. 4, of the judicature act of 1915 (3 Comp. Laws 1915, § 12254) which provides as follows:

“Nor shall any judge sit as a court in any cause in which he is related within the third degree of consanguinity to either of the attorneys or counselors of either party to said cause.”'

It is undisputed that no attorney of record, or who represented Hawkins in the case, is in any degree related to respondent, but it is conceded that the son and nephew of respondent are attorneys for Olmstead in the two cases of People v. Olmstead and People v. Hawkins and Olmstead, in the trial of which it is expected that they, or one of them, will participate as counsel for Olmstead. Manifestly, the law as it reads does not disqualify respondent from making an interlocutory order in People v. Hawkins, whose attorneys are in no way related to him. Relator contends, however, that this provision should be given a liberal construction to accomplish its evident intent; that all three cases involve embezzlement by the defendants from the city treasury, with which they were officially connected; asserts that the books and documents which the order permits them to inspect are material to a greater or less extent in all the cases, and therefore the order inures to the direct benefit of interests represented by respondent’s son and nephew as well as those of Hawkins. As to this respondent returns:

“That the proof that the people must produce against the said James S. Hawkins in the case of the People v. James S. Hawkins is for a different sum of money taken at a different date, and that the same proof is not the proof that would be required by the people to secure a conviction against the said Willard H. Olmstead in the case of the People v. Willard H. Olmstead, and in the case of the People v. James S. Hawkins and Willard H. Olmstead, charged jointly.”.

From his return and the material facts established by this record we cannot find that the respondent was disqualified by statute from making the interlocutory order complained of, or that the same is void for want of jurisdiction. Neither can we assume to divine what facts may be developed in the progress of the case and prejudge, as relator petitions, the legality and propriety of respondent presiding upon the trial.

In view, however, of the adverse reflections and arguments appearing in respondent’s return upon the wisdom, propriety, and constitutionality of this law and strictures upon those who invoke it, we are constrained to state we do not find said section 7 of the judicature act out of harmony with the generally recognized public policy which demands of the judiciary strict impartiality in administrating the affairs of our courts, often declared both in statute and bench law, and well stated in Yazoo, etc., R. Co. v. Kirk, 102 Miss. 41 (58 South; 710, 834, 42 L. R. A. [N. S.] 1172, Am. & Eng. Ann. Cas. 1914C, 968), as follows:

“Every litigant is entitled to nothing less than the cold neutrality of an impartial judge, who must possess the disinterestedness of a total stranger to the interests of the parties involved in the litigation, whether that interest is revealed by an inspection of the record or developed by evidence aliunde the record. The real parties in interest furnish the reason for the judge to recuse himself when it becomes known that they are related to the judge, although they may not be parties eo nomine.”

Upon the record before us the writ of mandamus as prayed for must be denied.

Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Brooke, and Person, JJ., concurred.


source: Caselaw Access Project

author: Stone, C. J.

license: Public Domain

text:
    FOWLER v. BLOUNT.
    1. Judgment — Res Judicata — Parties.
    A decree in a divorce case awarding to the complainant wife a lien for alimony on real property claimed by her to belong to her husband, who, however, denied his alleged ownership, and claimed that his grantors had never delivered the deed to him, except for the agreed purpose of destroying it, was not res judicata as to the claimants who were not parties to the proceeding: in a subsequent suit to foreclose the wife’s lien, they were not concluded from asserting their title.
    2. Same — Estoppel—Divorce.
    Nor was the owner estopped by the decree of divorce from setting up her title or interest, though she was a witness in the divorce case.
    3. Same — General Rule.
    To constitute a judgment on estoppel there must he an identity of parties as well as of subject-matter, that is, it is necessary that the parties between whom the judgment is claimed to he an estoppel must have been parties to the action in which it was rendered, in the same capacities and in the same antagonistic relation or else they must be in privity with the parties in such former action.
    4. Same — Evidence.
    Reviewing the conclusion of the lower court on the facts, it is 7lelcL, that the evidence sustained the claim of defendants that the deed was never unconditionally delivered, but was turned over to the grantee with instructions to burn it up.
    Appeal from Newaygo; Barton, J.
    Submitted April 10, 1916.
    (Docket No. 44.)
    Decided June 1, 1916.
    Bill by Ada E. Fowler and another against Caroline Blount and others to enforce a lien granted in divorce proceedings as against real property of defendants. From a decree for defendant named, complainants appeal.
    Affirmed.

      Albert G. Day, for complainants.

      William J. Branstrom, for defendant.
   Stone, C. J.

In this cause the bill of complaint was filed January 6, 1915, to foreclose an alleged lien by virtue of a decree in a divorce case entered on June 15, 1905, affecting the north half of the southwest quarter of section 8 in township 13 north of range 13 west, being in the township of Sherman and county of Newaygo. The following statement will aid in an understanding of the issues involved:

In 1896 one Adolphus Graham was the owner of the whole southwest quarter of said section of land. On October 14, 1896, said Graham and -wife conveyed the north half of the southwest quarter of said section to Asher P. Blount, who was a son of Lucius W. Blount, and on the same day said Graham and wife conveyed the south half of said southwest quarter to said Lucius W. Blount. Both of said deeds were made subject to mortgages. It was the understanding that Asher P. Blount was to assume one-half of the mortgage indebtedness against said quarter section of land. After the deeds were executed and delivered it was ascertained that the parties who held the mortgages would not consent to a division of the mortgage indebtedness between the father and son, and it is undisputed that the son, Asher P. Blount, and his first wife, conveyed the said north half of the said southwest quarter to the father, Lucius W. Blount, on October 17,1896, thus vesting in Lucius W. Blount the title of the whole southwest quarter of said section of land. The title to the whole southwest quarter of said section continued to stand of record in Lucius W. Blount until October 14, 1912, when he and his wife’conveyed the same to one Sarah L. Tufts, who oh the same day conveyed said southwest quarter to Lucius W. Blount and his wife, Caroline Blount, thus placing the title of record in the last-named parties as tenants by the entireties.

In the meantime, and, it is claimed, in the fall of 1896, while the father, Lucius W. Blount, was the owner of the entire quarter section, desiring that the son, Asher P. Blount, should have the north half of the premises upon condition that he pay one-half of the mortgage debt on the entire property, it appears that a contract or deed was made out, signed, and acknowledged by the father, Lucius W. Blount, to the said son. Whether this instrument was a deed or contract, and whether it was signed by the mother, Caroline Blount, and whether it was ever delivered to Asher P. Blount, were disputed questions in this case, as well as in the divorce case to be later referred to.

The complainant Ada E. Fowler, whose maiden name was Ada E. Warren, was married to Asher P. Blount on or about November 22, 1898. She continued to live with him until some time in 1903. They had one child. About March 10, 1904, said Ada E. filed a bill for divorce alleging that the said Asher P. Blount had been guilty of extreme cruelty. In her bill of complaint in the divorce case said Ada E. charged that Asher P. Blount was the owner of the north half of 'said southwest quarter; that the same had been deeded to him prior to her marriage by the said Lucius W. Blount and Caroline Blount, which deed had been duly delivered to said Asher P. Blount, but never recorded. She also charged that in the latter part of the autumn of 1902 the said Asher P. Blount informed her that in February, 1902, he had burned and destroyed said deed. She further stated that she had never consented to the destruction of said deed, and prayed that said land be decreed to be the property of said Asher P. Blount, “in spite of the subsequent destruction of said deed.” A notice of Ms pendens describing said land was duly filed and recorded in the divorce case, and the chancery subpoena which was directed to and served upon Asher P. Blount only contained an underwriting that:

“A personal decree is sought against the defendant, and the bill is filed to reach interests in property.”

In his answer to the bill in the divorce case Asher P. Blount denied that he was the owner of said land. He admitted that a warranty deed of said land had been executed by his parents to him, but he denied that it was ever delivered to him. He admitted that he did burn and destroy the deed. He alleged that he was and had been since his marriage to the complainant an invalid, unable to labor and he further alleged :

“That the agreement between his father and himself in relation to said land was. that as soon as he was able to pay off his share of the mortgage the deed should be delivered to him, but, when he became sick and disabled, he became discouraged, and concluded that he would never be able to pay it, and- that he had better give up all claim to it, and with the consent of his mother, who gave him the deed for that purpose, he destroyed it. Ever since that time, and even before the deed was destroyed, his parents have considered and treated the land as their own, and have made valuable improvements thereon, in the way of putting up and repairing buildings, erecting a windmill, building fences, setting out orchards, etc., so that the place is now much more valuable than at the time when defendant was finally disabled.”

Upon the hearing in the divorce case there was testimony pro and con relating to the title and ownership of said land, and both Lucius W. Blount and Caroline Blount were examined as witnesses relating thereto on behalf of the defendant therein; but neither the said Lucius W. Blount nor Caroline Blount was a party in that case.

In the divorce case, by its decree, the court granted a divorce as prayed for, with the custody of the child. It decreed the title to said land to be in said Asher P. Blount. It awarded to the complainant as permanent alimony the sum of $400, to be paid within 30 days, or, at the option of the defendant therein, $200 in 30 days and $200 within one year. In addition, it awarded the complainant $3 each and every month toward the maintenance of the minor child, with costs, including a solicitor’s fee of $50. It also made said permanent alimony, as well as the amount provided for said maintenance and the costs and expenses of the suit, a lien on the said land until the whole should be fully paid. A certified copy of the decree was duly recorded in the office of the register of deeds. Nothing has ever been paid on said decree.

In the bill of complaint in the instant case to foreclose said claimed lien Asher P. Blount and Lucius W. Blount were made defendants. It appearing, however, of record that they had both died before the bill was filed, their names were dropped, and the case proceeded to a hearing against the defendant Caroline Blount. The bill of complaint prayed that the land be sold to satisfy the lien.

The answer of Caroline Blount claims that she is the owner of said land as the suryivor of her husband; that the decree in the divorce case was void as to her and her husband, they neither of them being a party to such suit; that she and her husband had been in open and notorious possession of said premises for more than 15 years; that they had paid the taxes, made large improvements thereon, and paid off the mortgage on said property. She asks for affirmative relief by way of cross-bill to the end that the decree in the divorce ease, in so far as it asserts a lien on said premises, be declared void and a cloud upon her title. Upon the hearing the testimony was taken in open court, and the learned circuit judge dismissed the bill of complaint, and granted the relief prayed for in the cross-bill, holding that Asher P. Blount did not have title to said land; that, if any instrument conveying said land to Asher P. Blount was ever executed, as alleged, it was never delivered so as to vest any title in and to the said premises in him; that Caroline Blount was the owner of the premises as the survivor of her husband; that the decree in the divorce case was not res adjudicata of the question of title, the said Lucius W. Blount and Caroline Blount never having been made parties in that suit; that said decree, in so far as it attempted to create a lien upon said premises, was null and void, and, being of record, was a cloud upon the title of said Caroline Blount in and to the same, and the same was set aside and vacated, and costs were awarded to the defendant against both complainants. It should be stated that Edward E. Edwards was made a complainant herein because of his interest in the solicitor’s fee and costs in the divorce case; he having been the solicitor for the complainant in that case. The complainants have appealed.

The claims of appellants may well be considered under three general questions:

(1) Was the decree of divorce entered on June 15, 1905, which, in order to secure the payment of alimony, sought to create a lien on the land involved, res adjudicate, as to this defendant, she not having been a party in that case?
(2) Is the defendant estopped in this case to assert her own title to the property in question because of the decree of divorce, in which case neither she nor her predecessor in title was made a party?
(3) Did Lucius W. Blount and Caroline Blount ever deliver the deed to Asher P. Blount?

1. The first question must be answered in the negative. The defendant, not being a party in the divorce case, is not bound by that decree. She never had her day in court there.. It is of no consequence that she was a witness in that case. She could not have appealed from that decree. She had no control of the case whatever. Detroit Savings Bank v. Truesdail, 38 Mich. 430; Young’s Appeal, 52 Mich. 592 (18 N. W. 373) ; Axford v. Graham, 57 Mich. 422 (24 N. W. 158) ; Love v. Francis, 63 Mich. 181 (29 N. W. 843, 6 Am. St. Rep. 290) ; Fisher v. Wineman, 125 Mich. 642 (84 N. W. 1111, 52 L. R. A. 192); City of Detroit v. Railway, 134 Mich. 11 (95 N. W. 992, 99 N. W. 411, 104 Am. St. Rep. 600); Bean v. Bean, 163 Mich. 379-396 (128 N. W. 413) ; Bacon v. Walden, 186 Mich. 139 (152 N. W. 1061).

2. The second question also must be answered in the negative, and for the same reason as that already given. The rule is stated in volume 23 of Cyc. at page 1237, as follows:

“To constitute a judgment an estoppel, there must be an identity of parties as well as of the subject-matter ; that is, it is necessary that the parties as between whom the judgment is claimed to be an estoppel must have been parties to the action in which it was rendered, in the same capacities and in the same antagonistic relation, or else they must be in privity with the parties in such former action.”

In Blackwood v. Brown, 32 Mich. 104, suit was in part based upon a duebill belonging to the wife of the plaintiff, and it was held that the judgment in such a case in favor of the plaintiff would be no bar to the right of the wife, the real owner, to recover, and the fact that she was called as a witness in her husband’s behalf in his suit on the duebill would not estop her from afterwards suing in her own name on the same demand, at least where she had testified that she was still the owner. It is a significant fact that in the divorce case both the defendant and her husband had testified and strenuously insisted that they were the owners of the land in question, and that Asher had no interest in it. There is no estoppel under such circumstances.

3. Was the deed, if one was executed, ever delivered to Asher P. Blount? Upon this subject the testimony was conflicting. The trial court had the advantage of seeing and hearing the witnesses testify. We have read the entire record with care, and are of the opinion that by a preponderance of the evidence it appears that, if a deed was ever executed by Lucius W. Blount and Caroline Blount to-Asher, it was never delivered to him to operate as a conveyance, but handed to him to be burned, and that it was destroyed by him because of the fact that he was a hopeless invalid and was satisfied that he could not perform the condition upon which it was to become operative.

We agree with the trial court in reaching this conclusion; and, as delivery of the deed by Lucius W. Blount was essential to its validity, we agree with the court below in the disposition of the case.

The equities of the case are clearly with the defendant, and the decree below is affirmed, with costs to her.

Kuhn, Ostrander, Bird, Moore, Steere, Brooke, and Person, JJ., concurred.


text:
    PEOPLE v. CURRAN.
    Criminal Law — Trial—Jurisdiction—Justices of the Peace.
    In a prosecution for violation of the local-option law, after arraignment of the respondent, and the impaneling and swearing of the jury, it was too late to raise a question of the jurisdiction of the examining magistrate.
    Exceptions before sentence from Calhoun; North, J.
    Submitted April 14, 1916.
    (Docket No. 131.)
    Decided June 1, 1916.
    Tom Curran was convicted of a violation of the local-option law.
    Affirmed.

      Robert H. Kirschman, Prosecuting Attorney, for the people.

      John C. Davis and Maxwell B. Allen, for respondent.
   Stone, C. J.

This case is before us upon exceptions before sentence.

The defendant was convicted of a violation of the local-option law, in that he did, on August 18, 1915, at the city of Battle Creek, county of Calhoun, sell a quantity of beer and whisky to one Leonard Forester, he, the said defendant, not being then and there a druggist or registered pharmacist, etc. The complaint was made by one Robert C. Towsley, a deputy sheriff, upon information and belief. The warrant issued by the justice of the peace contained the following recital :

“And whereas, on examination on oath of the said R. C. Towsley and George Aldrich by me, the said justice, it appears to me, the said justice/that said offense has been committed, and there is just cause to suspect the said Tom Curran to have been guilty thereof: Therefore in the name of the people of the State of Michigan, you, and each of you are hereby commanded forthwith to arrest the said Tom Curran, and bring him before me to be dealt with according to law.”

An examination was had before the justice at which Robert C. Towsley, Leonard Forester, and George Aldrich were examined on oath in the usual manner. Upon the examination, counsel for the defendant made a motion to quash the complaint and warrant, for the reason that the affidavits, before the issue of the warrant, of Forester and Aldrich were taken before Charles R. Young, a notary public, and that said witnesses gave no testimony under oath before the said justice to sustain the complaint signed by Robert C. Towsley, and that the justice had no jurisdiction to issue said warrant for the arrest of defendant. This motion was denied by the justice, and the defendant was held for trial in the circuit court.

In the circuit court, when arraigned at the bar in open court, the defendant waived the reading of the information which was in due form, and stood mute, whereupon, by order of the court, a plea of not guilty was entered, a trial was ordered and a jury duly impaneled and sworn, and the trial proceeded.. Upon the trial of the case it appeared upon the cross-examination of George Aldrich, a witness for the people, that he made the affidavit before Charles R. Young, a notary nublic.

Upon the cross-examination of Robert C. Towsley the following occurred:

“Q. I show you the complaint in this case and. ask you if that is your signature?
“A. Yes, sir. I signed that complaint before Judge Hart [the justice] ; I signed that complaint on information and belief.”

Upon redirect examination he testified:

“Q. What did you base your complaint upon?
“A. Mr. Forester’s and Mr. Aldrich’s affidavits.
“Q. I wish you would state to the jury, whether or not these young men were before the magistrate, Judge Hart, at all.
“A. Yes, sir.
“Q. Did he put them under oath and talk with them?
“A. He talked with them; we talked with Judge Hart, and they both talked with Judge Hart, and he told me to take them in to Charles Young, and have an affidavit made.
“Counsel for Defendant: I wish to make a motion if the jury may be excused.
“The Court: In their examination before Justice Hart, were they examined by the justice under oath9
“A. Don’t think it was under oath.
“The Court: Just took their unsworn statements?
“A. Yes, sir.
“The Court: Were you present when Justice Hart examined these young men?
“A. Yes, sir.
“The Court: So far as you remember was the oath administered?
“A. I do not think they were under oath. He merely talked with them there, and we went in and took their affidavits in front of Mr. Young, and then they went in and swore to it.
“The Court: Went in where to swear to it?
“A. I think Young swore them to .it.”

The justice was called as a witness by the defendant. He testified, under objection by the prosecuting attorney, that he issued the warrant which bore his signature.

“The warrant was written out by Mr. Young, the clerk, before I signed it. It is made out in the usual form. The body of the warrant is in the handwriting of Mr. Young. I did no writing on the warrant myself, except to sign it. I don’t know whether I read the complaint and warrant over before I signed them or not. I would not say that I did.
“Q. Is that warrant based on information and belief?
“A. Yes, sir. The parties who made the affidavits came in there; I think Towsley brought them in there, and I talked with them. They were put under oath by Young, I think. Young is the man who swore them as to what knowledge they had. I don’t think they were sworn before me, but I would not say positively. * * * Our usual custom has been in most all complaints taken down there, to have affidavits brought to me and from them I have issued the warrants.
“Q. Without examining the witnesses yourself?
“A. Sometimes we examine them, and then other times we do not. I think this is one of the cases in which I did not swear them, as the affidavits were made before Charles R. Young.”

It appeared that Mr. Young was the clerk of the court over which the justice presided. It also appears that the city of Battle Creek is operating under a charter which provides for a “justice’s clerk,” appointed in accordance with the provisions of Act No. 171, Pub. Acts 1911. Section 3 of the act, among other things, provides that (3 Comp. Laws 1915, § 14758):

“Each clerk appointed under the provisions of this act is hereby empowered to take complaints in criminal causes and swear the complaining witnesses thereto.”

The above facts appearing upon the trial, defendant’s counsel made a motion that the information be quashed, the jury dismissed, and the defendant discharged for the reason that the complaint was made by said Towsley on information and belief, and that the only information given by Forester and Aldrich in support of the complaint was in the form of a sworn statement to Charles It. Young, a notary public, and no sworn evidence was given by said witnesses, or any other witnesses before the said justice before the warrant issued.

The motion was denied, and defendant duly excepted. The defendant having been found guilty by the jury, he has brought the case here for review, and the sole assignment of error is that the court erred in overruling the motion to quash the information and discharge the defendant. Counsel cite and rely upon the following decisions of this court: People v. Colleton, 59 Mich. 573 (26 N. W. 771); People v. Bechtel, 80 Mich. 623 (45 N. W. 582); People v. Heffron, 53 Mich. 530 (19 N. W. 170); Brown v. Hadwin, 182 Mich. 491 (148 N. W. 693, L. R. A. 1915B, 505),

In the Colleton Case the complaint was taken before, and the warrant was issued by, the clerk of the police court of Grand Rapids, and this court held such action involved judicial action which could only be taken by a court, and could not be performed by the clerk. That is quite a different case from this where, at most, all that is claimed is that the affidavits supporting the complaint were made before the clerk, who had statutory authority to take complaints and swear the complaining witnesses in criminal cases. But it is not necessary to pass upon this question.

It is the contention of the prosecuting attorney that the recital in the warrant in the case at bar gave jurisdiction to the justice of the peace, and that such recital that he examined a witness under oath in addition to the complaining witness cannot be impeached. He further contends that it is against the weight of authority to hold that the jurisdiction acquired by the justice of the peace, as shown by the recitals in the warrant, may be rendered void by the uncertain testimony of a fleeting witness however long after the examination was held; and it is further contended that parol evidence is inadmissible to contradict such recitals in the warrant.

We do not deem it necessary to pass upon the question whether such recital may or may not be contradicted. We think that the question of the jurisdiction of the examining magistrate was not a proper issue upon the trial of the case upon its merits. After the arraignment of the defendant, the entry of the plea of not guilty, and the impaneling and swearing of the jury, it was too late to raise a question of the jurisdiction of the justice. The issue before the jury was the guilt, or innocence of the defendant. The impropriety of going into such a collateral question as the jurisdiction of the justice is clearly shown by the examination of the justice himself, who, at the most, is uncertain as to whether he swore the man Aldrich himself, or whether the clerk swore him. The jurisdiction of the circuit court, obtained in the manner above stated, could not be destroyed because the complaining witness testified that he did not have personal knowledge of all the facts stated in the complaint. To permit this would be to allow oral testimony taken, as in this case, long after the complaint was made, to oust the court of jurisdiction given in the manner provided by the statute. We are therefore clearly of the opinion that this motion, even if there were any merit in it, ought to have been made before the jury were sworn. This entire subject-matter was outside the merits of the case. After the jury had been sworn and the trial of the issue as to the guilt of the defendant had been begun, it was too late to raise the objection as to the proceedings before the justice. This has been so often ruled by this court that it hardly seems .necessary to cite cases. The real merit of the matter is, that all preliminary questions about the jurisdiction of the justice should'have been settled before the jury were sworn. It was not a matter which went to the merits of the trial. People v. Schottey, 66 Mich. 708 (33 N. W. 810); People v. Haas, 79 Mich. 449 (44 N. W. 928); People v. Payment, 109 Mich. 553 (67 N. W. 689).

In this casé it was held that where a complaint and warrant for an offense not cognizable by a justice of the peace are valid in form, the question whether the evidence taken before him justified his conclusion to issue the warrant, is not triable at the circuit. People v. Rush, 113 Mich. 539 (71 N. W. 863); People v. Brott, 163 Mich. 150 (128 N. W. 236).

In the last-cited case it was held that on a motion to quash, first presented after a jury had been sworn, based on the ground of want of testimony before the examining magistrate, no error was committed in refusing to discharge the respondent. People v. Davis, 171 Mich. 241 (137 N. W. 61).

In the Bechtel Case, cited by defendant’s counsel, it was held that the court will presume that the justice examined the complainant and his witnesses orally, where such fact is recited in the warrant purporting to have been issued upon such complaint and examination.

We are of opinion that there is no merit in the question presented, and the conviction of the defendant is affirmed, and the court below should proceed to judgment.

Kuhn, Ostrander, Bird, Moore, Steere, Brooke, and Person, JJ., concurred.


text:
    PORT HURON ENGINE & THRESHER CO. v. TOWNSHIP OF PORT HURON.
    1. Constitutional Law — Appeal and Error.
    Constitutional objections to the validity of legislation will not be passed upon when other questions raised are decisive of and dispose of the case.
    2. Same — Taxation—Highway Assessment.
    Act No. 283, Pub. Acts 1909, 1 Comp. Laws 1915, § 4287 et seq., being a general statute affecting the entire State and creating a new system of highway tax assessment, levy, etc., repealed local acts which theretofore existed and included Act No. 293, Local Acts 1903, which provided for. the "assessment of highway taxes in Port Huron township.
    3. Same — Public Record — Townships.
    The record of a highway assessment as levied by the township at an election must be sufficiently plain so that the assessing officer or other local official can determine therefrom what was the proper rate, and if the proportionate amount named was included in the labor tax or was intended to be excluded.
    4. Same.
    No general rule of law prohibits the repeal of a special act by a general one nor is there any principle forbidding such repeal without the use of words declaratory of that intent. The question is always one of intention and the purpose to abrogate the particular enactment is sufficiently manifested when the provisions of both cannot stand together.
    5. Same — Repeal.
    Of two legislative enactments repugnant to each other, the last one to take effect, being the latest expression of the legislative will, must govern.
    Error to St. Clair; Law, J.
    Submitted April 17, 1916.
    (Docket No. 98.)
    Decided June 1, 1916.
    Assumpsit by the Port Huron Engine & Thresher Company, a corporation, against the township of Port Huron and another, for the recovery of taxes paid under protest. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Lincoln Avery (Walsh & Walsh, of counsel), for appellants.

      W. L. Jenks, for appellee.
   Stone, C. J.

This action was assumpsit, to recover township and highway taxes paid under protest. February 20, 1913, plaintiff paid to defendant township taxes assessed for the year 1912:

Township tax .............................. $500 20
Highway tax ............................... 5,002 00
Collection fee 4 per cent..................... 220 09
$5,722 29

The illegality of the township tax is conceded, and the only questions remaining relate to the claimed invalidity of the highway tax. The case was heard before the court without a jury. Written findings of facts and conclusions of law were filed, and it was held that the highway tax in question was invalid for two reasons:

First. That the record of the township proceedings upon which the assessment of highway tax was based was not sufficient, or did not show a legal voting of any appreciable highway tax.
Second. That the highway tax was assessed under the provisions of Act No. 293, Local Acts 1903, and that this act was repealed by the general highway law of 1909, being Act No. 283, Pub. Acts 1909 (1 Comp. Laws 1915, § 4287 et seq.).

There was judgment for the plaintiff, and the defendants are here, assigning error on the findings.

The record made of the vote of the qualified electors of Port Huron township, held on the 1st day of April, 1912, as shown by the township records, which defendants claim authorized the levy of the contested highway taxes, is as follows:

“1912. “State op Michigan, . “County of St. Clair j
“At annual township election held on 1st day of April, A. D. 1912, the election board was organized, and gatekeepers?, clerks, challengers and inspectors appointed, and sworn to their respective offices, and voting commenced and continued until a recess for noon was taken for the purpose of transacting other business of the town, the voting of money for highway purposes was taken up after the clerk’s annual statement was read and accepted.
“Highway District No. 1 raised 65 cents on $100.00 valuation to be used on river road for macadamizing from a point below Salt Block to town line between Port Huron and St. Clair town.
“Highway District No. 2 raised 75 cents for stone road, and 25 cents for repair of all roads.
“W. F. Allen was elected overseer of highways in district.
“Highway District No. 3 raised 25 cents to be expended on Henry street.
“Highway District No. 4 raised 50 cents to be used for macadam road and repair of macadam road.
“Motion made and supported to repair and make other necessary repairs to shed and town hall.
[Signed] “James Reynolds, Clerk.”

The records of the township fail to show any other vote of electors, or any other authority for raising a highway tax for the year 1912. No vote or action to raise a highway tax was taken in Í912 by the township board, either alone or in conjunction with the highway commissioner of Port Huron township. The record of the proceedings at the annual township meeting was held insufficient on which to base the attempted assessment of highway tax, and it was stated by the trial judge in his findings of facts that this record cannot be varied by parol testimony to show that the amount voted by the electors of district No. 4 was intended to be at a different rate or a different amount from that shown by the record.

From the fact that in the first highway district mentioned, the amount was stated as 65 cents on $100 valuation, and the subsequent entries, and especially in the fourth district, the one in question having dropped the words "on $100 valuation,” it was the claim of the plaintiff, and the finding of the trial judge, that this tax was not authorized, or any tax in excess of 50 cents. We think this a narrow view of the question, and prefer not to rest our decision upon that point.

It was further urged in this court that the record was otherwise defective, in that there was no determination in 1912 as to the manner in which the highway tax should be assessed, and that this was a step necessary to be taken. And it is urged that the record did not indicate whether that was the sole tax to be levied for highway purposes, or whether it was the money tax, to which might be added the labor tax. It is obvious that the record, in order to justify the levying of any tax, must be sufficiently plain so that the assessing officer, the supervisor or highway commissioner, could tell whether 50 cents was the proper rate, or that sum, plus the labor tax, was the right amount.

Passing the first point, it is urged by the plaintiff that the title of the general act of 1909 (1 Comp. Laws 1915, § 4287 et seq.) clearly indicates the purpose of the legislature to enact a law which should be general and apply to the entire State, and attention is called to the title and to the provisions of that act; and it is urged that its provisions are in conflict and inconsistent with the local act above referred to, and that the local act was thereby repealed. On the other hand, it is urged by defendants that, even if the court should find that the legislature intended to repeal the local act by this general act, this was prohibited by the new Constitution, and that the legislature has no power to repeal a local act without the consent of the people concerned; and our attention is called to section 30, art. 5, of the present Constitution, which provides as follows:

“The legislature shall pass no local or special act in any case where a general act can be made applicable, and whether a general act can be made applicable shall be a judicial question. No local or special act shall take effect until approved by a majority of the electors voting thereon in the district to be affected.”

And it is urged, by counsel for the defendants that as this general act of 1909 provided for no referendum vote, it cannot be held that it could repeal the local act in question, and counsel say:

“First. If it attempts to repeal a local law, then it is local and not general. It is not general legislation.
“Second. The courts will not allow the legislature to do by indirection what they cannot do directly.”

And it is urged that passing an act to repeal a local act is itself local legislation, and that this provision of the Constitution cannot be affected or defeated by terming the legislation a general act. And it is said that the people of this township have the right to say what laws shall be repealed that are local in their nature, and that this is a local matter entirely, and therefore, until the people vote to change their method of raising and expending the highway taxes, the legislature cannot interfere. And attention is also called to the fact that the title of the act of 1909 does not, by express terms, attempt to repeal any other provisions of the statute. The plaintiff replies that if there is any constitutional difficulty relating to the act, of 1909, because of the provisions of the new Constitution, above quoted, then plaintiff is not obliged to rely upon the act of 1909, but calls our attention to Act No. 108, Pub. Acts 1907, and claims that that general statute repealed the local act in question, and that there was no constitutional prohibition against such legislation at the date of the, passage of the last-named act. Constitutional questions will not be passed upon when other decisive questions are raised by the record which dispose of the case. People v. Quider, 172 Mich. 280, 288 (137 N. W. 546). We shall therefore look into the provisions of the local act of 1903, and also said public act of 1907, for if it shall turn out that the last-named act, passed before the new Constitution was adopted, repealed said local act, then the judgment of the circuit court shall be affirmed. Act No. 293, Local Acts 1903, being an act entitled:

“An act to provide for the assessment and collection of highway taxes, and the expenditure thereof, in the township of Port Huron, St. Clair county, Michigan.”

The act was approved March 4, 1903, and was given immediate effect.

Section 1 provided that for convenience in the assessment and collection of highway taxes and the expenditure thereof, the commissioner of highways of the said township should, by and with the sanction and approval of the township board, on the fir^t Monday of March, 1903, divide the township into not less than 5 nor more than 12 road districts, which districts should be composed of contiguous territory.

Section 2 provided that at each annual township meeting of said township between the hours of 12 o’clock noon and 1 o’clock in the afternoon, the qualified electors of each road district should separate themselves into groups, and a majority of the qualified electors of each district present and voting should elect, viva, voce, or in such manner as the electors might direct, an overseer of highways for their respective districts. The said overseer should be a qualified elector, and a resident taxpayer of his district, and no elector except a resident in the district should vote for such overseer.

Section 3 provided that at the time and place of such, election of overseer, a majority of the qualified electors of each district present and voting, should determine: First, whether the highway tax should be assessed on a money basis, and paid in money instead of labor, and, if they so determined, such assessment should not be less than one-fourth of 1 per cent., and should not exceed 1 per cent, on the aggregate assessed valuation of the property of the ‘district, according to the assessment roll for said district for the fiscal year; second, whether the highway tax should be assessed partially in labor, and, if so, upon the amount of highway labor to be assessed, which should not exceed one day’s labor upon each $100 assessed valuation, as in the preceding-division provided; also upon the amount of money tax, if any, to be levied in the district for necessary improvements to be made in the highways and bridges during the year beyond what the highway labor, as above provided, would accomplish, not exceeding one-half of 1 per cent, on each $100 of assessed valuation as in the preceding subdivision provided.

Section 4 provided that the township clerk should record the proceedings of each district meeting in the township records, and within 15 days after the annual township meeting should certify to the commissioner of highways the amount and the manner of raising the highway tax for each road district, as determined at such district election, and the commissioner should thereafter apportion and assess, or cause to be assessed by the supervisor, said taxes in the manner provided by the general laws of the State. .

Section 5 provided for the acceptance of office by the overseers, and the giving of bonds.

Section 6 provided that in case any of the overseers so elected should fail to qualify, or in case the electors in any road district neglected or refused to elect an overseer, or to determine 'the amount of highway tax to be levied in such district, or the manner in which it should be assessed, the highway commissioner should appoint an overseer for said district for the ensuing year in the manner provided by the general laws of the State. The commissioner might in such cases assess not exceeding 1 per cent, upon the assessed valuation of the property in such district, according to the assessment roll for the fiscal year, which tax might be assessed in money or labor as the commissioner might determine.

Section 7 provided that the commissioner should thereafter proceed, at the time and in the manner1 provided by the general laws of the State, so far as applicable and not inconsistent with the provisions of the act, to assess, or cause to be assessed, the highway tax for the several road districts.

Section 8 provided that capitation or poll tax should continue to be assessed in each of said districts in the manner provided by the general laws.

Section 9 provided that all highway labor and money tax assessed and collected within said districts for highway purposes, should be expended within the limits of the district in which the same was assessed: Provided, that nothing contained in the act should be •construed to prohibit or prevent the building and maintenance of stone or macadam roads within the several districts.

Section 10 provided that the duties of the several officers named should conform to the general laws.

That Act No. 108, Pub. Acts 1907, introduced radical ■changes in the manner of assessing, collecting, and expending highway taxes, and that it covered the whole subject and was State-wide, and provided a uniform system throughout the State, is apparent from an analysis of that statute. The title of the act was as follows:

“An act to provide for the assessment of money taxes for highway purposes and to repeal chapter two, ‘Assessments for Highway Purposes,’ and chapter three, ‘The Performance of Labor on Highways and ■ the Commutation Therefor,’ of act number two hundred forty-three of the Public Acts of eighteen hundred eighty-one, as amended, being compiler’s sections number four thousand and seventy-two to four thousand one hundred three, inclusive, of the Compiled Laws of eighteen hundred ninety-seven, and all acts and parts of acts inconsistent with the provisions hereof.”

Section 1 provided that the highways in every organized township in this State should be laid out, improved and maintained by two money taxes; one tax should be known as the road repair tax, and should be assessed on all property in the township outside of the limits of incorporated villages, which tax should not exceed 50 cents on each $100 valuation according to the assessment roll of the preceding year, and the other tax should be known as the highway improvement tax, and should be assessed on all taxable property in the township, including that within the limits of incorporated villages, which tax should not exceed 50- cents on each $100 valuation according to the assessment roll for the last preceding year. All highway moneys belonging to the township or to any subdivision thereof, at the time of the passage of the act should be added to the road repair fund, or to the highway improvement fund as the township board might direct, except such moneys as had been appropriated or set aside for a special purpose, which should be used for the purposes for which they were appropriated or set aside.

Section 2 provided what account the highway commissioner should render to the township board at the annual meeting in 1908.,

Section 3 provided what the account of such officer should contain after 1908.

Section 4 required the township board to present such statement at the annual township meeting.

Section 5 provided that at the annual township meeting held in each organized township after the year 1907, the electors should, by a majority of those present and voting, who did not reside in any incorporated village,, determine the amount of road repair tax to be raised for the ensuing year, not exceeding 50 cents on each $100 valuation, according to the assessment roll for the last preceding year, and at said meeting the electors should also, by a majority of all those present and voting, including residents of incorporated villages in such organized township, determine the amount of highway improvement tax to be raised for the ensuing year, not exceeding 50 cents on each $100 valuation, according to the assessment roll for the last preceding year.

Section 6 provided that if the electors present at any annual township meeting should neglect or refuse to vote any road repair tax, or highway improvement tax, the township board and the township highway commissioner, acting jointly, should order to be levied such a sum or sums, for either or both of these funds, as might appear to them necessary and advisable, not to exceed the amounts named in section 1 of the act. .

Section 7, after providing for the transmission of a certified copy of the proceedings to the supervisor, provided that such taxes should be levied and collected in the same- manner as moneys for general township purposes were levied and collected. The taxes so levied should be carried out in two separate columns in the tax roll, one as the road repair tax, and the other as the highway improvement tax, and the township treasurer was required to keep separate accounts of the same.

Section 8 provided that when the amount of either or both of said taxes should have been determined as aforesaid, the township board might borrow an amount not exceeding three-fourths of the tax determined upon for the ensuing year, for the purpose of paying for labor, materials, tools, or machinery, or other expenses in connection with the laying out, building, repairing, or improving of highways and bridges of the township.

Section 9 provided that the road repair tax should be expended for labor, material, and other necessary expenses, under the supervision, and by the direction of the township highway commissioner, on the highways and bridges which would directly benefit the property taxed, not exceeding $100 on any one mile of highway, unless otherwise directed by the township board. Should the highway, or highways or bridges directly adjacent to any property taxed, be in good condition, so ■ that no repairs were necessary thereon, then the tax raised on such property might be expended by the commissioner on other highways or bridges in the township where it might be needed; provided, that if there was a surplus after the highway or highways or bridges directly adjacent to the property taxed had been repaired and put in good condition, such surplus might be expended by the commissioner on other highways and bridges in the township wherever any improvement might be needed; provided, further, that upon complaint, in writing, to the township board by any 10 or more resident taxpayers that the road repair fund was being unequally and unjustly applied, or work improperly performed, the township board might direct the expenditure of such road repair fund, or the manner of performing such work; provided, further, that not to exceed $25 should be expended by the commissioner in any one year for tools or machinery, without consent of the township board. , •

The act further provided that there should be but one road district in each organized township, except that in townships consisting of more than one surveyed township, each surveyed township might be a road district, and it provided for the election of an overseer for each road district, who should work under the direction of the township highway commissioner.

The act further provided an elaborate plan of survey and profile of survey, for all highway improvements by turnpiking, graveling, grading, etc., by private parties, the work to be supervised by the commissioner.

The last section of the act repealed the specific sections of the statute mentioned in the title, and also added:

• “All acts and parts of acts, contravening the provisions of this act are hereby repealed.”

We have here, at the risk of tediousness, presented the substance of the two enactments named, that their respective provisions may the more readily be compared. The act of 1907 covers the whole subject of assessments for highway purposes in the State. It did away with the highway labor tax, and placed the whole subject upon a money tax basis. It constituted each surveyed township a road district, and, in short, made many radical changes in the law. Its terms were so broad and comprehensive that, in our opinion, it repealed all acts, general and local, conflicting with it, including Act No. 293, Local Acts 1903.

Under ,the local act different conditions might exist in the several road districts. In one the highway tax might be assessed on a money basis, and in another it might be assessed partly in labor. The act of 1907 changed the policy of the State in that regard, and provided a money tax only, throughout the State, there being evident dissatisfaction with the labor tax system.

There can be no question, in our opinion, that the provisions of the local act were inconsistent with, and that they do contravene the provisions of, the act of 1907; and, unless there is some specific rule or principle which prevents the application of the general language of the repealing clause of the general act, it is clear that the local act was repealed.

The following excerpt from 1 Lewis’ Sutherland on Statutory Construction, p. 533, is applicable here to legislation prior to the adoption of the present Constitution, whatever may be said of the rule now:

“There is no rule of law which prohibits the repeal of a special act by a general one, ñor is there any principle forbidding such repeal without the use of words declarative of that intent. The question is always one of intention, and the purpose to abrogate the particular enactment by a later general statute is sufficiently manifested when the provisions of both cannot stand together. * * * Special or local laws will be repealed by general laws when the intention to do so is manifest, as where the latter are intended to establish uniform rules for the whole State.”

Where two legislative acts are repugnant to, or in conflict with, each other, the one last passed, being the latest expression of the legislative will, must govern even though it contains no repealing clause. In the instant case the repealing clause is present. 36 Cyc. pp. 1073, 1078, 1080, 1090.

We have examined the authorities upon-this subject cited by counsel, and are of opinion that the general rule in such cases is- that the later act repeals the former. We think the intent to abrogate the laws in conflict with the act of 1907, in so far as the assessment of highway taxes is concerned, is so clear and distinct that it must be said that the repeal of the local act is unavoidable. Hopkins v. Sanders, 172 Mich. 227 (137 N. W. 709); People v. Wenzel, 105 Mich. 70 (62 N. W. 1038); People v. Furman, 85 Mich. 110 (48 N. W. 169).

The subject-matter of the legislation contained in the act of 1907 is State-wide, and we can read nothing in either act from which it will be presumed that there were any special, distinct, or particular conditions of local import in the township of Port Huron which imply that the legislature necessarily intended to exclude it from the general law relating to highways, as prescribed in the act of 1907.

Our conclusión disposes of the case, and we must hold that, the circuit judge having reached the correct conclusion, the judgment of the court below is affirmed.

Ostrander, Moore, Steere, Brooke, and Person, JJ., concurred. Kuhn and Bird, JJ., did not sit.


author: STONE, C. J.

text:
    CUTLER v. SPENS.
    1. Contracts — Construction—Evidence.
    It is the duty of courts, not juries, to construe written contracts and define what is and what is not within their terms.
    2. Same — Rule of Interpretation.
    In construing contracts all their terms and provisions and every word and phrase should be given effect if practicable.

      3. Same — Exchange.
    Where the parties to a contract had executed a mortgage, a deed and a supplemental agreement on the day after entering into the principal contract, all relating to an exchange of real estate, the trial court did not commit, error in construing the three instruments together as a part of one transaction.
    4. Same — Joint Plaintiffs.
    And the trial court did not commit error in holding that, husband and wife that were party to a joint exchange were-properly entitled to recover on a contract for the removal-of part of. a building and for payment of compensation-therefor which, though not signed, was marked approved-, by the wife, in an action against the other person concerned in the exchange.
    5. Trial — Jury—Misconduct—New Trial.
    Upon defendant’s motion for a new trial in which he made it appear that one of the jurors laughed aloud while defendant was under cross-examination, where no exception was taken or attempt made to bring it to the attention of the trial court, the appellant was not entitled to reversal on error.
    6. Contracts — New Trial — Newly Discovered Evidence.
    An affidavit of the defendant, which set up the facts to which he believed his newly found witness would testify,, was insufficient and was not in compliance with the rule, which requires the witness to make the affidavit.
    7. Same — Trial—Issues—Consideration.

      Held, on review of the testimony, that plaintiffs were entitled to recover the agreed sum set up in the contract and that the trial court rightly left to the jury the question, of consideration which was in dispute.
    8. Same.
    Where it was stated in the deed that the grantor was to remove certain buildings and by a writing executed later
    • the parties fixed upon a sum of money to be paid the grantees for removing the buildings, evidence that they carried out the agreement which mentioned a consideration entitled them to recover the amount named.
    9. Same — Consideration.
    And under a writing wherein plaintiffs agreed to remove certain buildings on a portion of the land which defendant had sold before he exchanged with plaintiffs, the question of consideration was a proper subject of inquiry in a suit for the price named in the contract .which recited that it was entered into as a part consideration of the deed. It was not inconsistent with the prior conveyance whereby the defendant contracted that he was to remove the buildings.
    Error to Wayne; Lamb, J., presiding.
    Submitted April 10, 1916.
    (Docket No. 62.)
    Decided June 1, 1916.
    Assumpsit on the common counts by Wallie Cutler and another against John Spens. Judgment for plaintiffs. Defendant brings error.
    Affirmed.

      Jonathan Palmer, Jr. (E. F. Bacon, of counsel), for appellant.

      Jay Fuller (Charles C. Stewart, of counsel), for appellee.
   STONE, C. J.

This is an action in assumpsit; the declaration being upon the common counts to which were attached two contracts. The contracts in the order of their dates are as follows:

Exhibit C.

“This agreement made this 15th day of October, A. D. 1913, by and between John Spens, of Halfway, Michigan, party of the first part, and Wallie Cutler and Selma Cutler, his wife, of Detroit^ Michigan, parties of the second part, witnesseth: The said party of the first part covenants and agrees to and with the parties of the second part that he has on this day bargained and sold unto Wallie Cutler, and Selma Cutler, his wife, said parties of the second part, the certain property known as ‘John Spens place,’ of a two-story solid brick building and blacksmith shop, and three and one-half acres of land (more or less), located at Halfway, Michigan, also all stock and merchandise, scales, cases, fixtures; shelving, and counters located in said building, also one top wagon, one new delivery wagon and one other wagon, and all farm tools belonging to said party of the first part, also one gasoline engine, and all blacksmith tools belonging to said party of the first part, and to turn over all papers from the D. U. R. in his favor for all dirt, sand, and cinders that are due him for the sum of six thousand and five hundred ($6,500) dollars. Said party of the first part does hereby agree to take deed on premises known as lots Nos. 47 and 48, located in Hamtramck and Grosse Pointe Township, Wayne county, Michigan, property located on Pennsylvania avenue (south side of street), between Jean and Edgewood avenues, with balance due on contract of $2,120, also agrees to take over the contract for lot No. 20 of Visger and Sprague subdivision of private claim 152 and lots 21 and 22 of William S. Moran’s subdivision of a part of rear concession on private claim 152 in Hamtramck, now Detroit, situate on the north side of Felch avenue, according to the recorded plat thereof, and agrees to allow parties of the second part $1,839.29 on said described property, and agrees to pay contract of $1,-660.71 balance due on said contract to Elizabeth Wurm, and he further agrees on delivery of warranty deed of his property to. take mortgage of $3,050 for five years from date hereof at six per cent. (6%) interest, payable semi-annually, and said parties of the second part have the privilege of paying any amount they see fit at the time of paying interest on said mortgage, and on delivery of this mortgage on the 16th day of October, 1913, party of the first part is to deliver a warranty deed to said parties of the second part, also $500 in cash _ when parties of second part remodel or move said brick building if they need $500 more, the said party of the first part will loan them said $500 more on completing their work, also at the rate of six per cent. (6%) interest. Said parties of the second part do this day sign over to the party of the first part the two contracts which are above mentioned in this agreement, and they shall be held by F. C. Heal until the warranty deed is delivered to parties at his office at No. 48 May avenue, Detroit, Michigan. The party of the first part does hereby agree to furnish parties of the second part an abstract of property at Halfway, Michigan, as soon as same can be brought up to date, and said parties of the second part also.agree to do the same with property turned over to the party of the first part.”
Exhibit A.
“October 16, 1913.
“Halfway, Macomb County, Michigan.
“$500.00
“Subject to all conditions mentioned herein, due to Wallie Cutler, five hundred dollars upon removal by him or his agents on or before May 1, 1914, of all buildings or parts of buildings standing on the right of way heretofore sold by me to the Rapid Railway Company; said removal to be made in full compliance with the terms of a certain bond given by me covering said removal.
“If not removed by said Cutler or his agents before May 1, 1914, then I am to remove said buildings or parts thereof by tearing them down or otherwise as I may see fit and placing them or the debris on his land adjoining said right of way and this day sold by me to him, and retain the aforesaid $500.00 as my compensation therefor and as stipulated damages to me, and he is to make no claim for damages to remainder of building or buildings caused thereto by the tearing down of parts thereof standing on the railway’s right of way purchased from me.
“John Spens.
“Wallie Cutler.
“The above is satisfactory to me.
“Selma Cutler.”

The plea was the general issue with notice of counterclaim. The following statement may aid in understanding the facts involved:

Shortly prior to October 15,1913, the plaintiffs were introduced to the defendant, who desired to sell some property at a place called Halfway, between Detroit and Mt. Clemens. It appears that the plaintiffs had no money, but had equities in-Detroit properties, and negotiation was finally entered into by the parties by which plaintiffs’ equities were turned over to the defendant in exchange for his property. A difference of $2,550 was to be made up by. a mortgage from plaintiffs to defendant. The defendant was also to advance or loan to plaintiffs $500, and the mortgage was to be increased by that amount, and was to stand for $3,050. This arrangement was evidenced by Exhibit C, above set forth. It also appeared that before trading to the plaintiffs the Halfway property the defendant had sold and conveyed a strip of land adjoining the property traded to plaintiffs to the Rapid Railway Company, and. this right of way or strip sold to the railway company included a portion of a brick building which the defendant had agreed with the railway company to remove, and to assure the removal had given a bond that such removal should be made on or before July 1, 1914.

It is the claim of the plaintiffs that it was agreed by and between the plaintiff Wallie Cutler and the defendant that, if Cutler would remove said building from the right of way before May 1, 1914, defendant would pay him $500 for such labor, and that the plaintiff Selma Cutler assented thereto, which was the occasion of the making of the agreement of October 16, 1913, known as Exhibit A.

It further appeared that on said October 16, 1913, the defendant and his wife conveyed the. said Halfway real estate to the plaintiffs, for an expressed consideration of $1 and other good and valuable considerations to them in hand paid. After the description of the premises conveyed the deed contains this language:

“As a part consideration of this deed, second parties are to remove all buildings now standing on thé land sold by first parties to the Rapid Railway Company on or before May 1, 1914. Should second parties not remove said buildings or parts thereof within the time specified, first parties retain the right to enter on the premises hereby conveyed and tear down and remove from the railway right of way the aforesaid buildings or parts thereof stánding on said right of way, and place debris on the aforesaid lands, and shall not be liable for any damages caused to the remainder of the buildings left standing on the land hereby conveyed.”

The principal issue in the case upon the trial was whether the plaintiffs were to receive $500 for removing the building from the right of way strip of land, or whether it formed a part of the consideration of the deed. The evidence was undisputed that the plaintiffs removed the buildings from the right of way before May 1,1914, and that it cost them more than $500 to do so, and that they demanded payment of the defendant about May 18, 1914, by letter. The record does not contain any bill of particulars of the plaintiffs’ demand, but there was evidence pro and con whether the defendant was also indebted to the plaintiffs for the value of certain blacksmith’s tools which it was claimed the defendant agreed to turn over to them in the trade, but did not, the value of which was claimed by the plaintiffs to be $150. Also there was a further claim of the plaintiffs of $46 for the value of some furniture sold to defendant; also $50 for the value of a fireproof safe, and some butcher’s tools which plaintiffs were to have in the trade, which on demand were not turned over to them by the defendant; also a further claim by plaintiffs for taxes of 1913 upon the Halfway real estate which plaintiffs paid and defendant agreed to repay, but did not, amounting to $57.93. The plaintiffs claimed the further right to recover for the value of a certain board partition which was in the upstairs of the building, which was not delivered to them, amounting to $15. The testimony relative to said five items presented purely questions of fact which were properly submitted to the jury.

The mortgage given by the plaintiffs to the defendant, bearing date October 16, 1913, was put in evidence by the defendant. Its effect was to complicate the issue. It was given for $3,550 instead of $3,050. Referring to this mortgage the defendant upon cross-examination testified as follows:

“Q. Exhibit E is a mortgage from Wallace Cutler and Selma Cutler, his wife, to John Spens. How much cash did you give them on that mortgage?
“A. $500. That is all.
“Q. And the $2,550 is the difference in exchange of the two properties; you have no other claim on them?
“A. No, not on them. I still own that mortgage.
“Q. You only claim $3,050 and the interest accrued since?
“A. That is all that I claim.
“Q. That is all they owe you on that mortgage, $3,-050?
“A. I claim $3,550 on this mortgage; yes, I do; but I have only charged them up the interest which they received.
“Q. You still say that they owe you $3,550 on the. mortgage?
“A. Yes.
“Q. How do you make that $3,550?'
“A. $3,550 is the $500 which I am going to loan him after this building is moved.
“Q. But you haven’t given them anything on that mortgage?
“A. I’ve got the $500 which I agreed in the first, place.
“Q. That would make $3,050.
“A. Yes.
“Q. Now you claim they still owe you $500 on the mortgage?
“A. No, sir; I don’t claim that; yes, they owe me $500 on the mortgage; yes, they owe me $3,550 on the mortgage.
“Q. You still insist on that?
“A. Yes.
“Q. Tell the jury when you gave them $3,550 on the mortgage.
“A. I gave them $2,550 at the time. I gave them $500 in cash, and then there is $500 which I am supposed to loan them after those buildings were moved off, if they wanted it.
“Q. You never loaned that to them?
“A. No, I didn’t have any chance to loan it to them. I was not asked for it. * * *
“Q. Did they ever ask you for the $500 or more?
“A. No, sir; they didn’t ask me for any of it.
“Q. Yet you still insist that they owe you $8,550?
“A. Yes.
(‘A Juror: Ha! Ha! Ha!
“Q. Do you hold this for $3,550, or do you simply hold it for $3,050, this note?
A. Well, I hold it for $3,550 when they loan the other $500 from me. I owe them $500 which I agreed to pay them. I never refused, and they owe me $3,550.
“Q. Yet-they never had but $3,050?
“A. That is all they received. They- have not asked me for the $500 yet. If they want it, I will give them a receipt for it in full; that is to pay on the mortgage if they ask for it; that is what I agreed to do.
“Q. The amount that you claim is due on the mortgage at the present time is what?
“A. $3,050.”

All the witnesses who testified in the case agree that the difference in value of properties between the two parties which was to be secured by mortgage was $2,-550, and that defendant loaned plaintiffs at the time of the trade the sum of $500. As already appears by Exhibit C, there was contemplated a further loan of $500 to the plaintiffs which had never been made.

The case was submitted to the jury by the trial court in a lengthy charge, in which it .referred to the items claimed by the respective parties, and the. trial resulted in a verdict and judgment for the plaintiffs in the sum óf $917.61, and costs. There was a motion for a new trial based upon the following reasons:

(1) Because it appeared from the files and records in the cause that the claim of said plaintiffs, mentioned in their declaration, for the sum of $500, and interest thereon, had been fully paid and discharged by defendant.

(2) Because it appeared that the claim of the plaintiffs of $500, and interest, was paid, and settled by the sale and conveyance of property in accordance with the terms of the agreement attached to, and made a part of the declaration, and therefore gave the plaintiffs no right of action therein for a recovery.

(8) Because the claim of $500, and interest, was fully covered by the terms of said agreement, and in the deed made and executed by said defendant and wife to the said plaintiffs, which deed, according to its terms, shows complete settlement of said claim as part of the consideration of the transfer of said property to said plaintiffs.

(4) Because it appears that the plaintiffs never had any claim for the payment of any additional amount of $500 under the terms of the agreement mentioned in their declaration, and that such amount was not an .obligation due or owing from said defendant for which any recovery might be had herein, but was, according to the terms of said agreement, to be treated and considered as a loan by said defendant to said plaintiffs, which was to be secured by the said plaintiffs and afterwards repaid to said defendant.

(5) Because it appears from the files and records that certain taxes paid by the defendant should have been paid by the plaintiffs, and that no recovery should have been permitted herein without due credit for and allowance to the defendant for such items so paid by him.

(6) Because it appears from the files and records that the claim of the plaintiffs, if they had any claim, for the $500 item under the agreement attached to the declaration, was a personal claim in favor of the plaintiff Wallie Cutler individually, and was not a claim in which the other plaintiff, Selma Cutler, was interested, either individually or jointly with Wallie Cutler, according to the express terms of said agreement.

(7) Because it appears from the files and records in said cause that upon the trial and during the cross-examination of defendant there was misconduct on the part of one of the jurors in laughing, as indicated in the foregoing excerpt from the testimony, which it was claimed showed prejudice in the mind of said juror against said defendant.

(8) Because the court charged the jury in the following language:

“Exhibit .Arls a contract that was drawn by Mr. Heal. It was dated on the 15th day of October, 1913, and I think I shall permit you to take this agreement into the jury room. The other agreement upon which the plaintiffs base their claim for $500 for removing the building is dated the next day, October 16, 1913. That I shall also allow to go to you, and you may take it into the jury room, and you may use both of them in determining what the understanding was, and whether or not the plaintiffs’ version as to the $500 or the defendant’s story is true. I am going to allow you to take Exhibit A in connection with the other agreement, and allow you to use the two together in determining what the actual understanding was between the parties as to whether or not this $500 was to be paid for the removal of the building. In that connection you will also take into consideration and bear in mind the statement in the pleadings as to the consideration of the property, and you will also bear in mind the fact that these papers were prepared at the instigation of the defendant before they were taken away by the plaintiffs in the case.”

(9) Because it appears that the verdict therein was contrary to and against the weight of evidence produced upon the trial of said cause.

(10) Because it appears from the affidavit of the defendant that newly discovered evidence was obtainable that could be produced and used upon a new trial that would show the facts set forth in the affidavit thereto attached that are material to the issue in said cause.

This motion for a new trial was denied, and the reasons for such denial were in writing, signed by the trial judge, to which defendant’s counsel duly excepted.

The case has been brought here upon writ of error, and the first assignment of error is to the effect that the verdict of the jury was against the weight of the evidence.

The second assignment of error covers that portion of the charge already quoted as contained in the motion for a new trial, and additional language as follows:

“There are some matters here that are disputed, and the main item which is the subject of dispute must be determined largely by you in these papers. Now, there are two contracts here that will determine largely what your verdict should be ,as bearing upon the proposition of the $500.”

The third assignment of error covers a portion of the language of the court in charging the jury already quoted in the motion for a new trial.

The fourth assignment of error is that the court erred in charging the jury as follows:

“Now, what the facts are in relation to these matters in dispute you have to determine from the case. Now, there are some items upon which there has been some oral testimony that I have permitted to come in here for the purpose of assisting you in determining what the actual intent of these parties was as shown by the writing.”

The fifth assignment of error is to the effect that the court erred in charging the jury as follows:

“Now, there is a chance for dispute as to what these writings mean. If there was no chance for dispute, the papers would not have been open to any oral testimony at all, and that is the only purpose for which the oral testimony was permitted, so that you could have the benefit of it in determining what was understood at the time, and using it in connection with these papers in determining what the actual agreement was.”

The sixth assignment of error relates to the following portion of the charge, viz.:

“If you find by the greater weight of the evidence plaintiff’s claim as to this $500 has been substantiated by the greater weight of the proof, in view of all the testimony in the case he is entitled to that, together with interest at 5 per cent, from the time he got that building off, May 1, 1914.”

The remaining assignments of error relate to the refusal to grant a new trial, and the reasons therefor.

•1. In the argument of the case appellant’s counsel first claim that the verdict was contrary to the weight of the evidence. We cannot agree with counsel in this contention. It appeared to be undisputed that the plaintiffs removed the building mentioned in the contract before May 1, 1914. Whether they should be paid for such labor depends upon the construction which should be placed upon the contracts and the -dealings of the parties. We think there was evidence sufficient to support the claim of the plaintiffs, and we cannot say that the verdict was contrary to the weight of the evidence.

2. In the second and third propositions of appellant it is claimed that the court erred in its charge as stated in the assignments of error in not properly instructing the jury as to the proper construction to be placed upon the contracts, and the deed from which we have made an excerpt. The trial court, from the language used in its charge, was evidently of the opinion that there was an ambiguity in the contracts and instruments introduced in • evidence, and for that reason seems to have submitted them to the jury in connection with the oral evidence. Generally speaking, the interpretation or construction of a written contract is a question of law for the court. But this rule presupposes the absence of a dispute as to the facts and the absence of ambiguities. In fact, it is generally declared that, where a contract has been reduced to writing, its construction is for the court, and that the question whether the writing is, upon its face, a complete expression of the agreement, of the parties, is one of law for the court. It is certainly true, as a general rule, that the construction of written instruments' belongs to the court, and not to the jury. Nevertheless there are cases in which, because of the ambiguous nature of the words used, or because of obscure references as to unexplained circumstances, the true interpretation of the language may be left to the consideration of the jury for the purpose of carrying into effect the real intention of the parties. The general rule in this State is well stated in Tompkins v. Gardner & Spry Co., 69 Mich. 58 (37 N. W. 43), where it is said:

“It is the duty of courts and not juries to construe written contracts, and define what is and what is not within their terms.”

In the construction of contracts all their terms and agreements and every word and phrase should be given effect, if practicable. Smith v. Durkee, 166 Mich. 484 (131 N. W. 1116) ; Brittson v. Smith, 165 Mich. 222 (130 N. W. 599); Thomas Electric Welding Co. v. Wire Fence Co., 190 Mich. 496 (157 N. W. 67).

We are of the opinion that the contracts, deed, and mortgage should have been construed by the court as a whole as constituting one contract, and that all of the parts of the contract should be examined to determine its meaning. We think the court might properly have instructed the jury that under the instrument known as Exhibit A, it appearing that the plaintiffs had removed the building standing on the right of way within the time prescribed, and, the consideration being conceded, they were entitled to recover the sum of $500 mentioned in that agreement, with interest thereon. The verdict shows that the jury found for the plaintiffs upon that question. If there was any error of the trial court in submitting the contracts to the jury, it was harmless error of which the defendant cannot justly complain; the jury having found for the plaintiffs upon said contract.

Should the verdict be disturbed under such circumstances? We» think not, where, as here, it turns out, at most, to be an error without prejudice.

The point is also urged that the court erred in allowing a recovery by both plaintiffs upon what is termed the $500 agreement. When we examine the whole case it appears that the entire transaction was a joint one between the two plaintiffs and the defendant. It appearing that the agreement was satisfactory to the plaintiff Selma Cutler, and was approved and ratified by her, we find no error in allowing a joint recovery. See Agar v. Streeter, 183 Mich. 600 (150 N. W. 160, L. R. A. 1915D, 196).

We do not think there is any merit in the point made as to the conduct of the juror in the instance pointed out. The trial court, in disposing of that question, said:

“In fact, there was nothing in the incident to cause the court to deem a reprimand either necessary or advisable, nor was the court asked by the defendant’s counsel to reprimand the juror.”

No exception seems to have been taken, and the court’s attention was not challenged at the time to the matter. We do not think the circumstances were such as to make the ruling in Cooper v. Carr, 161 Mich. 405, 408 (126 N. W. 468), applicable, as contended. The incident was not of a serious nature, and we think the circuit judge’s view of it was justified.

We find no error in the refusal to grant a new trial. Upon the question of claimed newly discovered evidence, a perusal of the affidavit of the defendant shows that it does not comply with the rule relating to newly discovered evidence. He simply stated what he believed the proposed witness would testify to, without producing an affidavit of that witness. This was hearsay, and does not satisfy the rule.

In our opinion, the only meritorious question raised by the record is whether, on an examination of the contracts, deed, and mortgage it can be said that the plaintiffs were entitled to recover the sum of $500 for the removal of the building from the right of way. Defendant’s counsel claim that the deed was the last instrument executed. We do not think that claim well founded. There is language in Exhibit A to justify the claim that it was made after the delivery of the deed, as it speaks of the land as “this day sold by me to him.” Mr. Heal testified:

“I didn’t put that in my part (Exhibit C) because they were to have an understanding about that, when they went down to close up the deal.”

Referring to'the language of the deed which we have quoted, it appears that the plaintiffs agreed to remove all buildings then standing on the land sold by the defendant and his wife to the Rapid Railway Company, on or before May 1, 1914, and the expression is used that that agreement was made as a part consideration of the deed. We think the question of consideration was open to inquiry. Mowrey v. Vandling, 9 Mich. 39; Gardner v. Gardner, 106 Mich. 18 (63 N. W. 988).

By the undisputed evidence in the case the consideration for the deed was the property, consisting of certain equities, conveyed by plaintiffs to the defendant, and the remaining indebtedness of $2,550 secured by a mortgage. While by the terms of the deed the plaintiffs agreed to remove the buildings, they did not agree to do so without compensation. The entire clause, when taken together, is not inconsistent with Exhibit A, and we think the jury should have been instructed by the court that under the terms of Exhibit A, it appearing undisputed what the consideration was, and that the plaintiffs had removed said building, they were entitled to recover the price agreed to be paid therefor.

Finding no reversible error in the record, the judgment of the court below is therefore affirmed.

Ostrander, Bird, Moore, Steere, Brooke, and Person, JJ., concurred. Kuhn, J., did not sit.