text:
    SULLIVAN v. TRUSZKOWSKI.
    1. Evidence — Seduction—Opinions—Conclusion of Witness.
    Upon the trial of an action for seduction, which was brought by a Polish girl, who died after the trial, testimony of a relative to decedent, in answer to the question, what was the attitude of defendant toward her, that “they used to treat each other pretty nice,” was rightly allowed to stand notwithstanding the objection of defendant’s counsel that it was a conclusion, since it is frequently a question for the discretion of the court, in a doubtful case, whether the witness should be permitted to describe in the form of a conclusion the effect which certain transactions had upon the witness.
    2. Same — Witnesses—Custom or Habit.
    Nor did the trial court err in excluding from the record the question asked by defendant’s counsel whether defendant was in the habit of making presents to a child at any particular time of the year, the witness replying, “No, only on Christmas,” offered as tending to show that defendant was at the home of the child on one of the occasions when it was alleged that he was with deceased: the proposed testimony was too indefinite and uncertain as to whether it was a custom of defendant’s or of persons belonging to his religion.
    3. Same — Proof of Another Engagement.
    It was not permissible, in behalf of the defendant, to attempt to show that at the time of the alleged seduction he was engaged to marry another girl with whom he had frequently appeared in public, and to attempt to show that his relations with her were well known to neighbors, friends, and acquaintances: unless the testimony was brought home to the decedent before the time of the alleged seduction it would be incompetent to affect the question of her good faith.
    4. Seduction — Promise of Marriage — Absolute Contract — Appeal and Error.
    A merely conditional promise of marriage, based upon possible results of illegal relations, is insufficient as a basis of an action for seduction, as such a promise has been held to have no tendency to overcome the natural sentiment of virtue or chastity: the trial court was in error in instructing the jury that in a seduction case the promise might be based upon the contingency that if the plaintiff became pregnant defendant would marry her. But, where it clearly appeared by the record that no promise of a conditional kind was shown by plaintiff’s testimony or by other evidence in the case, the error was not prejudicial and will be treated as surplusage.

    5. Same — Trial—Argument.

      Held, also, that argument of counsel alleged to have been prejudicial was not so improper as to warrant a reversal of the judgment.
    Error to Kent; Brown, J.
    Submitted January 5, 1915.
    (Docket No. 4.)
    Decided March 18, 1915.
    Case by Alice Kopicka against Anthony Truszkowski for seduction. Upon the decease of the plaintiff her administratrix, Florence K. Sullivan, was substituted as party plaintiff. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Dunham & Dunham, for appellant.

      Hall & Gillard, for appellee.

      As to the effect of promise of marriage conditioned on pregnancy in action for seduction, see note in 51 L. R. A. (N. S.) 809.
      On the question of offer of marriage as a defense to action for seduction, see note in 29 L. R. A. (N. S.) 421.

   Kuhn, J.

This is an action for seduction, in which it is claimed that plaintiff’s decedent was seduced by the defendant under a promise of marriage. The trial resulted in a verdict and judgment for plaintiff. Plaintiff’s decedent died after a writ of error was issued in this cause, and the plaintiff was duly appointed special administratrix of her estate to prosecute this action.

Plaintiff’s decedent was a Polish girl, who came to this country from Russian Poland in October, 1911. She met the defendant soon after arriving here, at which time she was 19 years of age and he 25. It was her claim that, after the defendant obtained her confidence, he committed two different and distinct acts of seduction, to wit, on Saturday night, December 21, 1912, and on Sunday afternoon, December 29, 1912, on both of which occasions defendant promised to marry her, and that she consented to the act relying on the promises made in each instance. These claims were denied by the defendant.

The first error relied upon and argued by appellant in his brief relates to the examination of the witness Valeria Duba, the wife of plaintiff’s decedent’s half-brother, who was asked, “Just what was their attitude toward each other, as evidenced by their actions?-” and answered, “They used to treat each other pretty nice.” It is contended that the motion to strike out this answer should have been granted, for the reason that it stated a mere conclusion. The only justification for allowing the answer is found in an exception to the opinion rule of evidence which allows a witness to give his opinion or conclusion where it would be impossible to state the minor details going to make up his answer so that the jury could understand. It is sometimes difficult to determine exactly where the line should be drawn between the rule excluding opinion evidence and the exception referred to. And while it would seem that the witness, in the answer to the question here propounded, might have detailed more particularly what she actually saw that led up to the conclusion she arrived at, as stated in her answer, nevertheless we do not think it was prejudicial error to allow the answer to stand, as the trial court, who heard and saw the witness, was better qualified to determine whether under all the circumstances the witness should have been allowed to answer as she did. With reference to this rule, Jones on Evidence, vol. 2, § 359, states the following:

“But there are many cases so near the line between the rule and its exception that an appellate court should not be swift to reverse the rulings of the court below unless it is reasonably clear that a plain error of law has been committed. There is a wide difference in the ability of witnesses to describe what they have seen, and to narrate what they have heard. One witness may be able to make so graphic a word picture of the scene he has witnessed that those who hear it are in as good a situation to deduce a correct conclusion as he is; while another, who has observed the same incidents, may be utterly incapable of describing them, and can do nothing but state the impression or conclusion he drew from them. The trial court sees and hears each witness, and in doubtful cases is far better qualified than the court of appeals to determine whether a witness should be confined to the facts, or should be allowed to state his conclusions.”

Appellant’s fourth and fifth assignments of error relate to the following questions and answers propounded to the witness Amelia Zalewski, who was the mother of a child for whom the defendant had been named godfather, according to the custom of the Polish Catholic church. Witness was asked, “Do you know of Tony making any presents to the child because of his appointment?” The record discloses that notwithstanding the court sustained an objection as to the immateriality of the question, it was answered as follows: “I know of Tony making presents to the child.” The answer was allowed to stand, and was not stricken from the record, so there cannot be any merit to this assignment of error.

Another assignment of error relates to the question asked of the same witness, “Was there any particular time of the year when he did that?” and the answer, “No, just on a Christmas,” which answer, on motion of counsel, was stricken on the ground that it was too general, and also because “it assumes it was the custom, or something of that kind, which would be immaterial.” It is appellant’s claim that he was at an entirely different place at the time of the alleged seduction, and that it was relevant and competent to show the custom among the Polish Catholic people of making such presents at Christmas time, as corroborative evidence of his claim that he was at the home of the witness on the evening of December 21st, bringing a present to his godchild.

With reference to the general principle concerning the proving of a habit or custom, Mr. Wigmore, in his work on Evidence (vol. 1, § 92), says:

“Of the probative value of a person’s habit or custom, as showing the doing on a specific occasion of the act which is the subject of the habit or custom, there can be no doubt. Every day’s experience and reasoning make it clear enough.” (Citing cases.) “There is, however, much room for difference of opinion in concrete cases, owing chiefly to the indefiniteness of the notion of habit or custom. If we conceive it as involving an invariable regularity of action, there can be no doubt that this fixed sequence of acts tends strongly to show the occurrence of a given instance. But in the ordinary affairs of life a habit or custom seldom has such an invariable regularity. Hence it is easy to see why in a given instance something that may be loosely called habit or custom should be rejected, because it may not in fact have sufficient regularity to make it probable that it would be carried out in every instance or in most instances. Whether or not such sufficient regularity exists must depend largely on the circumstances of each case.”

So, in the instant case, we are of the opinion that the answer to the question was properly excluded, for the reason that it is too indefinite and uncertain what custom it was sought to establish, whether it was a custom as to the actions of this particular individual defendant or as to the habit of the devotees of the Catholic religion. The answer to the question was that he did this “just on a Christmas.” The day to which the testimony is sought to be referred is December 21st, so it is also clear that he might have conformed to the custom and still not have been present at the home of the witness at the time that the alleged seduction took place; and therefore, even if such a custom were established, it would have no real probative force to corroborate the testimony of the witness or defendant’s own claim that he was at the home of the witness on the evening of December 21st.

Other assignments of error relate to the admissibility of evidence which the trial court excluded, by which the defendant sought to show that at the time of the alleged seduction he was engaged to marry another girl, and that he appeared in public frequently with her, and that such engagement was known to his neighbors, friends, and acquaintances. The trial court excluded the testimony on the ground that it would not be competent unless such knowledge was brought home to the plaintiff’s decedent before or at the time of the act complained of, and that even then it would only be competent as bearing upon the good faith of the claim of plaintiff’s decedent that she relied upon the defendant’s promise of marriage in consenting to the act. We are of the opinion that the court was correct in its ruling, and that this testimony was entirely immaterial unless knowledge of the same was brought home to the plaintiff’s decedent, which the record does not disclose. Fisher v. Hood, 14 Mich. 189; Simons v. Busby, 119 Ind. 13 (21 N. E. 451).

The court, in charging the jury, said:

“And while it would not be good in a breach of promise case for a man to say to a woman, Tf we have sexual intercourse and you get into the family way I will marry you,’ in a seduction case that is good, that makes the case; the difference being that in a breach of promise case the promise must be a decent, respectable, legitimate promise of marriage, made by the one and accepted by the other to be made in good faith, that makes a breach of promise case. But in seduction, if a man says to a woman, ‘You give up to me and if you get pregnant I will marry you,’ and she relies upon that and gives up to him, then that makes a cause of action for seduction.”

Under the rule in this State there is no question that this is an incorrect statement of the law, as this court has held that the promise of marriage in a seduction case must be absolute, and not conditional. As was said in People v. Smith, 132 Mich. 58 (92 N. W. 776):

“Such a promise (a conditional one) has no tendency to overcome the natural sentiment of virtue and purity. The woman who yields upon such a promise is in no better position than as though no promise whatever had been made. * * * The commission of the offense cannot depend upon the happening of a subsequent event.”

See, also, People v. Carlos, 183 Mich. 269 (149 N. W. 1006).

However, there was no such issue in this case, and our attention has not been challenged to any testimony in the record, nor have we been able to find any, to show that there was a conditional promise of marriage made to the plaintiff’s decedent. She testified with reference to defendant’s promises, as follows:

“He was always kissing me, and said we would always live together and we would get married and I should not be afraid. I believed what he said. I loved him, and he always told me that he loved me. * * * He said we would both get married, right after Easter, I can’t say what year. He said we would both get married and everything would be good with us. * * * On December 21, 1912, Tony promised to marry me, when he was talking me up to that. On December 29th he promised to marry me before and after we had intercourse. I believed him. That was the reason I did what we did.”

As it conclusively appears that the portion of the charge complained of had no application to the facts in issue in this case, it must be treated as surplusage, and it cannot be said to have been prejudicial error.

We have examined the assignments of error with reference to improper argument of counsel, but are not impressed that anything that was said prejudiced the rights of the defendant or affected the result. Houser v. Carmody, 173 Mich. 121, 135 (139 N. W. 9); City of Kalamazoo v. Paper Co., 182 Mich. 476 (148 N. W. 743).

All other assignments of error having been examined and no prejudicial error being found in the record, the judgment is affirmed.

Brooke, C. J., and McAlvay, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    STATE BANKING COMMISSIONER v. E. JOSSMAN STATE BANK. In re PETITION OF EDGAR.
    1. Banks and Banking — Depositor—Trust Deposit — Receivers— Dissolution of a Corporation.
    On petition of one of the depositors and creditors in a suit by the State banking commissioner to wind up an insolvent institution in which the petitioner, with four others, had a deposit in his name as trustee, it was permissible to show what were the real relations of the parties and the liability of the bank to the petitioner, for the purpose of setting off the indebtedness of the various interested beneficiaries, who were indebted to the bank in considerable sums of money: evidence tending to establish the real relations was competent in determining the question raised by a petition to compel the receiver to pay a dividend to the depositor.
    2. Same — Insolvent Estates — Set-Oef—Equity.
    It is well settled in equity that deposits and notes of the same parties in an insolvent banking institution may be set off against each other prior to tbe maturity of tbe notes in possession of tbe bank: tbe strict rule of set-off at common law not being applicable.
    Appeal from Oakland; Smith, J.
    Submitted November 10, 1914.
    (Docket No. 156.)
    Decided March 18, 1915.
    A. K. Edgar filed a petition for a right to participate in the distribution of the dividends of the E. Jossman State Bank which was being wound up upon the petition of the State banking commissioner. From a decree denying the prayer of the petition petitioner appeals.
    Affirmed.

      Davis & Bromley, for appellant.

      Charles P. Webster, for appellee receiver of bank.
   McAlvay, J.

The bill of complaint in this case was filed September 9, 1913, by the banking commissioner against this bank, its president, directors, and officers under the statute, it having become insolvent, for the purpose of the appointment of a receiver and for liquidating its assets. The matter proceeded in due course until February 9, 1914, when an order of the court was made authorizing the receiver to pay a first dividend of 20 per cent, to all creditors. The receiver refused to pay any of said dividend to “A. K. Edgar, trustee,” the petitioner herein, and he thereupon filed the petition in this cause, praying for an order directing the receiver to pay over to him as trustee the amount of the dividend represented by him claimed to be due. The receiver answered this petition, and, the matter having been fully heard before the court, an order was entered denying the prayer thereof. Petitioner has appealed from this order.

Petitioner, claiming to be trustee for himself, E. L. Davis, Manly D. Davis, Edmund Foster, and R. E. Jossman, at the time the bank failed, had on deposit in said bank in his name, as trustee, the sum of $1,995.60. What the relations of these parties were to each other and to the bank as far as this deposit was concerned cannot be gained from the contents of this petition. It has been necessary, therefore, to examine the entire record for that purpose. From such examination we are able to make the following statement:

It appears that the five persons named whom petitioner claims to represent in his petition organized, whether according to law or not does not appear, the International Live Stock & Timber Company of Mexico, and bought, probably in its name, 65,000 acres of land in Mexico. A large amount of the stock was issued to these five men, who signed their joint notes for the sum of $50,000 in payment for the land which was bought, or it may be as guarantors of the company’s debts for that amount for which they held the company’s notes. Whichever it was, they were indemnified against all their liability to the company and secured by other collateral securities. The entire amount of stock each took does not clearly appear. It does appear that they did sell some of their stock, the amount of which is not stated. It also appears they borrowed some money from private individuals for which they also gave their joint notes. This borrowed money and money arising from the sales of stock went into this account of “A. K. Edgar, trustee,” and was to be used to pay pressing debts and interest arising out of this Mexican venture. This was done by them without authority of the company or any corporate action. It was wholly voluntary on their part and entirely independent of the company. They also created what they call a pool of some of their individual stock, and each of the five men put in 20 shares under an agreement between them that such stock was to be held by the bank and not to be delivered to each individual until all the money they had borrowed for the above purpose had been paid in full. Jossman, who was cashier of the bank, disregarded this agreement and took out from the custody of the bank his own stock and delivered to Foster and Edgar their stock a short time before the bank closed. It was valueless and the company had no credit.

Petitioner positively testifies that this credit to his account as trustee belonged to himself and the four men he mentions equally, to each one-fifth. Petitioner was president, Foster was a director, and Jossman was cashier of the insolvent bank. One or two of the others were stockholders. Four of them at the time the bank was closed by the commissioner were largely indebted to the bank, Jossman in the sum of more than $100,000, petitioner in the sum of $3,000 or $4,000, the others in sums from $2,000 down to $800. Petitioner was treasurer of this Mexican company they were apparently promoting. Jossman was its secretary. One of the others was president. Edgar, as treasurer of the Mexican company, had an account credit in the bank at the time its doors were closed, which belonged to the company. Upon this claim the receiver paid the first dividend of 20 per cent, without question.

The contention in the ease upon the part of the petitioner is that as trustee for himself and four others he held a valid claim against the bank and owed it nothing, so that it held no valid set-off against him, as such trustee, therefore, he was entitled as such trustee to participate in the first dividend as a bona fide creditor.

We cannot agree with such contention. The evidence in the case supports the contention of the receiver that this fund in dispute, deposited in the name -of petitioner as trustee, was not the property of the company, but was the property of these five men of which each individually owned one-fifth. This is clear, however muddled other transactions in relation to handling the stock of the company* may appear, and was recognized by the petitioner, who was at the same time its treasurer.

We find, then, the relation of this insolvent bank, by its duly appointed receiver, to the petitioner and the four men named, who were operating with him, to be the same as if each had been a depositor in this bank to the amount of one-fifth of the sum $1,995.60, in which relation they are to be dealt .with by the receiver in exactly the same manner as if they were individual depositors. The fact that the petitioner used the word “trustee” in designating this account did not change the relation of these parties, who operated together in this matter to each other or their individual relations to the insolvent bank. Their real relations may be shown.

The principle involved is the same as in case of a suit upon a promissory note between the original parties. A defendant maker who signs as “agent” may show who were in fact the parties to the note. Keidan v. Winegar, 95 Mich. 430 (54 N. W. 901, 20 L. R. A. 705); Metcalf v. Williams, 104 U. S. 93.

The principle is well settled that' the deposits and notes of the same person in an insolvent bank can be set off against each other even before the maturity of the notes in the hands of the bank. Thompson v. Trust Co., 130 Mich. 508 (90 N. W. 294, 97 Am. St. Rep. 494); Scott v. Armstrong, 146 U. S. 499, 13 Sup. Ct. 148. In the case last above cited, the distinction between the rule of set-off applied in cases of equity and the strict rule of set-off at law is clearly stated. In the instant case the receiver of this insolvent bank was entitled to set off against the individual share in the deposit in question of each of the four persons owning such share the amount of his indebtedness to the bank.

The order and decree of the circuit court is therefore affirmed, with costs against petitioner.

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


text:
    TOWNSHIP OF HAMPTON v. WESPINTER.
    Taxation — Board of Review — Time of Meeting — Statutes—Assessment.
    In an action to recover taxes assessed against the defendant on personal property, the trial court was not in error in directing a verdict for the defendant upon the ground that defendant was not given sufficient opportunity to present his objection to the tax before the board of review, where the evidence tended to show that, on the last day fixed by statute for a meeting of the board, defendant’s agent attended at the office of the town clerk, where he remained from about 2 o’clock until 2:30, that no member of the board was present during that time, the office was locked and no one was present and no notice posted to advise the public at what time the adjourned meeting, if any, would take place. 1 Comp. Laws, § 3853; Act No. 226, Pub. Acts 1907 (1 How. Stat. [2d Ed.] § 1798).
    Error to Bay; Collins, J.
    Submitted November 11, 1914.
    (Docket No. 27.)
    Decided March 18, 1915.
    Assumpsit by the township of Hampton against Ida Wespinter for the collection of a personal property tax. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Kinnane & Lane, for appellant.

      Cooley & Hewitt, for appellee.
   McAlvay, J.

This was an action in assumpsit, brought in justice’s court in the county of Bay, by the plaintiff, to recover the amount of $70.72, taxes assessed upon $5,500 personal estate in said township, by the supervisor against defendant. The tax was not paid and was returned as delinquent to the county treasurer, who issued a warrant to the treasurer of the township for its collection. Defendant pleaded the general issue to the declaration and gave notice of special defenses, the material one of which was, in substance, that the board of review of the township of Hampton did not sit the required time for review of the assessment roll of said township as provided by law, and defendant was given no reasonable opportunity to appear before it and be heard. The case was first tried in justice’s court, then appealed to the circuit court, where a trial was had before a jury. This trial resulted in a verdict against the plaintiff, upon which a judgment was entered in due form, including costs to be taxed. Plaintiff has removed the case to this court for review upon a writ of error asking for a reversal upon errors assigned.

The principal question in the case is whether defendant was given a reasonable opportunity for appearing before the township board of review and objecting to her assessment in question. The facts are that on the last day provided by law in which the board of review is required to be in session for the purpose of reviewing and correcting the assessment roll, defendant’s agent in her behalf went to the town clerk’s office where the sessions of the board were to be held, for the purpose of examining, correcting, and reviewing her said assessment, at 2 o’clock in the afternoon, and found said office securely locked; that the board was not in session and no member of the board was at this place, or in its vicinity; that he remained there until after half past 2 o’clock and nobody appeared; that no notice was posted upon the door to give information as to an adjournment of such meeting, and nobody was at or in charge of the building to give information as to the meeting or the whereabouts of the members of the board; that he went away because business called him to another township to attend a board of review. In the present case all of the evidence agrees that the board was absent from the place of meeting on this last day for hearing complaints from 12 o’clock, noon, until 2 p. m., with the door locked and no one present to give information. Under the evidence of defendant, which must be taken as true for the purpose of plaintiff’s contention, the absence of the board continued until after 2:30 p. m. All of the members of the board, except one, had gone from this township to Bay City for dinner, either upon an interurban car or by other conveyance. One member lived in the village and went to his home, not a great distance away. The key was in the possession of the supervisor, who went to Bay City, and the office could not be opened until his return. As to how long the board was absent and the office locked was a question of fact properly submitted to the jury, which found in favor of defendant. During this absence of the board, without notice, from its place of meeting, the defendant’s agent appeared at the place of meeting, where he remained until after 2:30 o’clock, and, not being able to enter or find any person to give him information, as above stated, went about his business to another township. The claim of defendant is that she was thereby unlawfully deprived of a hearing before the board of review. The statute in force at the time providing for this meeting of boards of review in townships each year, being section 3853, 1 Comp. Laws, as amended by Act No. 326, Pub. Act's 1907, reads:

“Sec. 30. Said board of review shall also meet at the office of the supervisor on the second Monday in June at nine o’clock in the forenoon, and continue in session during the day and the day following. Such board shall continue its session at least six hours each day, and at the request of any person whose property is assessed thereon or of his agent, and on sufficient cause being shown, shall correct the assessment as to such property, in such manner as in their judgment shall make the valuation thereof relatively just and equal.”

This section has frequently been before this court for consideration and in all of the decisions where it has been construed the court has held without exception that the property owner is entitled to a hearing before the board of review, and if he is deprived of it, the assessment is invalid.

In Township of Caledonia v. Rose, 94 Mich. 216 (53 N. W. 927), and in Auditor General v. Chandler, 108 Mich. 569 (66 N. W. 482), where the board of review had adjourned at the end of the first day and did not hold any session on the second day, it was held that such action deprived the taxpayer of his hearing under this statute, and in both cases the court said:

“The provision of the statute requiring the board to meet upon the days named is mandatory, and it cannot deprive the taxpayer of his hearing there, and thereby force him to a suit at law to obtain redress. Defendant was entitled to assume that the board would remain in session the full length of time provided by the statute, and to arrange to be present any day he chose.”

The contention of appellant, relying upon the decision of this court in Wright v. Auditor General, 118 Mich. 556 (77 N. W. 11), is that defendant’s agent in the instant case had ample opportunity to attend the meeting of the board of review on the afternoon of that day after the board returned. The facts and circumstances surrounding that case were different from those in either of the cases cited supra, or in the case at bar. In the opinion itself the court recognized that it was an exceptional case, saying, “The legislature undertook to provide for such a contingency as occurred here.” This was where the absence of the supervisor from home, caused by the illness of his mother, prevented the meeting. That decision is based upon the provisions of section 3855, 1 Comp. Laws:

“If from any cause the second meeting of such board of review herein provided for is not held at the time fixed therefor, then and in that case it shall meet on the next Monday .thereafter, and proceed in the same manner and with like powers as if such meeting had been held as hereinbefore provided.”

The legislative intent was, doubtless, to provide for a contingency brought about by a sufficient cause, such as sickness, sudden death, or other serious and unforeseen occurrence. There is no claim in this case that there was any such contingency. In the Wright Case, supra, the doors of the office were not locked. Those who desired their assessments reviewed had access to the office where the meeting was to be held, were informed of the contingency which had occurred on account of which no meeting was held, were given the assessment roll, which was examined by them, and filed lists of their property with the amount of assessment they considered proper and a protest against any higher assessment than such values. Knowing why a meeting was not held these parties made no further attempt to attend a meeting. In the instant case the notice that the board of review would be in session on that day was posted upon the locked door of the clerk’s office. No indication- of any kind was given that any contingency had arisen which, under the statute, would warrant the adjournment of the board, or a further meeting to be called under the statute. No opportunity of any kind was given to defendant’s agent to obtain information. The construction contended for by plaintiffs, carried to its logical conclusion, is that the board might have remained away until 6 o’clock in the afternoon as well as until after 2:30 o’clock and then returned to the office and convened in session. The decision in that case will not and was not intended to bear any such construction, nor was it meant to overrule the cases of Township of Caledonia v. Rose, and Auditor General v. Chandler, cited supra, and decide that the taxpayer could not arrange to be present on any one of the days provided by law for the board of review to meet he might choose, except at his peril. That case, as already stated, was based upon the statute in which the legislature provided that if for sufficient cause the second meeting was not held at the time fixed therefor, the review could be had on the following Monday and the assessment roll saved from invalidity.

In the instant case we express no opinion upon the question of the validity of a noon adjournment of two hours, for the reason that the charge of the court upon that question, leaving it a question of fact to the jury whether the board was absent a material length of time beyond the two hours, was as favorable as plaintiff was entitled to. Our conclusion is that defendant, by the absence of the board of review for the length of time and under the circumstances shown by this record, was deprived of her day in court before the tribunal provided by law and to be heard relative to her assessment.

The provision of the statute requiring the board to meet upon the days named is mandatory. There is no claim that this board was prevented from being in session for any reason within the meaning of the statute.

No other questions require consideration.

The judgment of the circuit court is affirmed.

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


author: Kuhn, J.

text:
    BLYNN v. CITY OF PONTIAC.
    Municipal Corporations — Master and Servant — Policemen—Distinction Between Servant and Public Officer — Pontiac Charter.
    Under the charter of the city of Pontiac, which provides-for the appointment of policemen by the city commission and that the police department should consist “of a chief of police and as many subordinate officers, policemen, and employees as the commission shall by ordinance determine,” and also providing that the commission shall make the necessary rules to regulate the police department and the duties “of officers and employees of such department,” policemen who took oath of office under the charter were not employees of the corporation, but were public officers not entitled to compensation under the workmen’s compensation law. Act No. 10, Extra Session 1912 (2 How. Stat. [2d Ed.] § 3945).
    Certiorari to the Industrial Accident Board.
    Submitted January 12, 1915.
    (Docket No. 70.)
    Decided March 18, 1915.
    Gertrude L„ Blynn presented her petition against the city of Pontiac for compensation for the death of her husband. From an order awarding compensation, defendant brings certiorari.
    Reversed, without new trial.

      Aaron Perry, for appellant.

      A. L. Moore, for appellee.
    This is an appeal from a decision of the Industrial Accident Board, affirming an award made to the applicant by an arbitration committee on account of the death of Millard F. Blynn, her husband, who was killed, on the 2d of January, 1912, while riding in an automobile with two other policemen; the automobile colliding with a telegraph pole. The facts stipulated by counsel are as follows:
    (1) By virtue of the provisions of the Constitution of the State of Michigan, and Act No. 279, Pub. Acts 1909, the city of Pontiac, Mich., adopted in 1911 a charter providing for a commission form of government, and has been operating under such charter since that time.
    (2) Section 1 of chapter 5 of said charter, among other things, provides that “all powers conferred on the city shall, unless otherwise provided in this charter, be exercised by a mayor and two commissioners, who together shall be known and designated as the commission.”
    (3) Section 1 of chapter 6 of said charter provides that “the executive and administrative powers and authority of the city not herein otherwise provided for shall be distributed among six departments as follows: (1) Department of public safety. (2) Department of finance. (3) Department of water supply. (4) Department of public utilities. (5) Department of streets and public improvements. (6) Department of sewers and drainage.”
    (4) Section 2 of said chapter provides that “the mayor shall be the commissioner of the departments of finance and public safety.”
    (5) Section 1 of chapter 7 provides that “the commission shall determine and assign the duties of the several departments, except as in this charter otherwise provided.”
    (6) Section 5 of said chapter reads as follows: “All appointive officers of the city shall perform such duties as shall be prescribed by ordinance and this charter and which may be required by the commission and their heads of departments.”
    (7) Section 2, chapter 7, of the charter, provides, among other things: “The mayor shall also have special supervision of, and be charged with, the proper administration of the police, fire, and health departments.”
    (8) Other sections in the charter give to the two other commissioners definite departments, of work, such as sewers, drains, streets, etc., under one heading to one, and water supply and public utilities to another.
    (9) Section 10, chapter 7, provides: “Eách member of the commission shall have authority to employ such employees as may be necessary to conduct their several departments in an efficient manner, and such employees may be discharged at the pleasure of the member making such appointment.”
    (10) Section 8, chapter 7, provides: “The mayor may, and_ shall, at the request of the commission, appoint a city attorney, chief of fire department, chief of police, and health officer, subject to the confirmation of the commission. All of such appointees, shall be removable at the pleasure of the commission.”
    (11) Section 14 of said chapter provides: “That the commission shall by ordinance define the powers and duties of all city officers, whether elected or appointed, where the same have not been defined by this charter. Additional duties may be imposed on such officers whose duties are partially defined hereunder.”
    (12) Section 24 of said chapter reads, as follows: “Every appointive officer shall, before he enters upon the duties of his office, subscribe and file with the city clerk an oath to support the Constitution of the United States and the Constitution of the State of Michigan, and to faithfully perform the duties of the office to the best of his ability.”
    (13) Section 15 of chapter 8 of said charter reads as follows: “Prosecutions for violation of the ordinances of the city may be commenced by warrant, and all process in such cases shall be in the name of the ‘People of the State of Michigan.’ The practice in such cases shall be the same, as near as may be, as in criminal cases cognizant by justices of the peace under the general laws of the State.”
    (14) Section 16 of said chapter reads as follows: “All process issued in any prosecution or. proceeding for the violation of any ordinance shall be directed to the chief of police or to any police officer of the city or county of Oakland, and may be executed in any part of the State by said officer or any other officer authorized by law to serve process issued by a justice of the peace.”
    (15) Sections 4, 5, and 6 of chapter 10 of said charter read as follows:
    “Sec. 4. The commission shall by ordinance establish and provide for the maintenance of a police department and a fire department.
    “Sec. 5. The police department shall consist of the chief of police and as many subordinate officers, policemen, and employees as the council shall by ordinance determine.
    “Sec. 6. The commission shall by ordinance make and establish rules for the regulation and government of the police department, prescribe and define the powers and duties of the officers and employees of such department, and shall prescribe and enforce such police regulations as will most effectually preserve the peace and good order of the city, preserve the inhabitants from personal violence, and protect public and private property from destruction by fire and unlawful depredation.”
    (16) Since the adoption of this form of government by the city of Pontiac, it has been the practice of the mayor to appoint policemen, and such as have been discharged have been discharged by the mayor without any action on the part of the commission as a whole in any way whatsoever. Policemen are not appointed for any definite term; no vote of the commission has been required to approve their appointment.
    (17) No printed rules or regulations were ever adopted by the police department, and none were in force at the time of the appointment and death of Millard Blynn. No printed rules had been issued prescribing the beat limits or the portions of the city that the various policemen were required to control. Policemen were not required to make written reports of their doings or their whereabouts at any time other than to make returns of service of process when served by them. They were required to call up the central office at stated intervals by phone and report their whereabouts and what, if anything, unusual had occurred.
    (18) April 29, 1911, the commission of said city made and passed an ordinance entitled “An ordinance fixing and determining the compensation of the appointive officers of the city of Pontiac, prescribing their duties where not prescribed by charter, and repealing all ordinances and parts of ordinances conflicting herewith.” That ordinance took effect at the expiration of 30 days from its passage, and sections 1, 2, 3, and 4 thereof read as follows:
    “Sec. 1. The appointive officers of the city of Pontiac hereinafter named shall be entitled to and shall receive from the said city of Pontiac, in full payment for all services to be performed by such officers and employees, except as herein otherwise provided, the several amounts hereinafter designated and named.
    “Sec. 2. The chief of police shall be' entitled to and shall receive the sum of one thousand dollars per annum, payable in semi-monthly installments.
    “Sec. 3. The police force of the city of Pontiac shall consist of a chief of police and seven regular' policemen to be appointed by the mayor by and with the consent of the commissioners of said city, and such other special police to be appointed by the mayor from time to time as in his judgment emergency or necessity may require.
    “Sec. 4. The regular police of the force shall be entitled to and shall receive the sum of nine hundred dollars per annum payable in semi-monthly installments. Special police shall be entitled to and shall receive the sum of two and one-half dollars per day. In addition to the regular compensation of police officers regular members of the force shall be entitled to and shall receive such fees for the services of process as is permitted by statute.”

      (19) That ordinance contains other sections with reference to the duties and salaries of the city clerk and other appointed officers, but no further provisions having any reference to police officers or the police force of said city.
    (20) On the 11th day of March, 1912, said commission amended section 4 of said ordinance (such amendment to take effect on the first Monday of May, 1912) so as to read as follows:
    “Sec. 4. The regular police of the force shall be entitled to and shall receive the following compensation, to wit: New men, at the rate of nine hundred dollars per annum for the first year; nine hundred and fifty dollars per annum for the second year; and the sum of one thousand dollars per annum for the third year and subsequent years. Men who have served on the police force of said city one year shall receive the sum of nine hundred and fifty dollars per annum for the first year’s service under this ordinance, and one thousand dollars per annum for the second year and subsequent years, and men who have served on the police force of said city for two years shall receive the sum of one thousand dollars per annum for the first year under this ordinance and the sum of one thousand dollars per annum thereafter, all of said sums payable in semi-monthly installments; special police shall be entitled to and shall receive the sum of two and 50-100 dollars per day. In addition to the regular compensation the police officers and regular members of the force shall be entitled to and shall receive from other sources such fees for the service of process as is permitted by statute for sheriffs and constables.”
    (21) The appointment of the chief of police has from year to year been submitted to the commission for their approval, but the appointment of the police, regular or special, has never been submitted to the commission for approval, nor has their dismissal from service been submitted to the commission. They have been hired or discharged by the mayor at will.
    (22) Section 21, chapter 7, of the charter, in the enumeration of the municipal powers of the commission, and their right to enact ordinances, contains this language: “May enact all laws and ordinances relating to its municipal concerns, and shall have and exercise all governmental and police powers, subject to the limitations prescribed by this charter, the Constitution and laws of the State and of the United States.”
    (23) The deceased, Millard F. Blynn, was appointed a policeman of the city of Pontiac, January 2, 1912, by Robert J. Lounsbury, then mayor of said city, by a written appointment, of which the following is a copy, to wit:
    “Pontiac City Commission.
    “R. J. Lounsbury, Mayor.
    “Dick Dewey, Commissioner.
    “Wm. H. Osmun, Commissioner.
    “Pontiac, Mich., Jan. 2-12.
    “I hereby appoint Millard Blynn as policeman for the city of Pontiac.
    “R. J. Lounsbury, Mayor.”
    And on said day executed and filed with the city clerk of said city the following oath of office, to wit:
    “State of Michigan,
    “County of Oakland — ss.:
    “I do solemnly swear that I will support the Constitution of the United States, and the Constitution of this State, and that I will discharge the duties of the office of policeman of the city of Pontiac, said county and State, to the best of my ability.
    “Millard F. Blynn.
    “Subscribed and sworn to before me this 2d day of January, A. D. 1912.
    “R. J. Lounsbury,
    “Notary Public, Oakland County, Mich.
    “My commission expires Jan. 26, 1913.”
    (24) From his said appointment to the time of his death, said deceased was regularly paid semi-monthly his salary, at the rates fixed by the above-specified ordinance made and passed April 29, 1911, and the above-specified amendment thereof, such several installments being first audited and allowed by the commission of said city while in session as such commission by resolution thereof, and during all said term all the members of said commission knew that he was acting as a policeman in said city.

      The question as to whether policemen are public officers is discussed in a note in 36 L. R. A. (N. S.) 881.

   Kuhn, J.

(after stating the facts). Section 7, pt. 1, Act No. 10, Pub. Acts 1912 (Extra Session), (2 How. Stat. [2d Ed.] § 3945), provides in part as follows:

“The term ‘employee’ as used in this act shall be construed to mean: (1) Every person in the service of the State, or of any county, city, township, incorporated village or school district therein, under any appointment, or contract of hire, express or implied, oral or written, except any official of the State, or of any county, city, township, incorporated village or school district therein.”

The decision of the Industrial Accident Board can be affirmed only if it is found that a policeman of the city of Pontiac, under the facts stipulated, is an employee and not a public officer.

Policemen generally are charged with the especial duty of protecting the lives of citizens within certain territorial limits, and of preserving the public peace. The preservation of the public peace being a matter of public concern, it has therefore been said that policemen may be considered as public officers. As a rule, they are appointed under authority given by the State, and therefore have generally not been regarded as servants or agents or as otherwise bearing a contractual relation to the municipality. Schmitt v. Dooling, 145 Ky. 240 (140 S. W. 197, 36 L. R. A. [N. S.] 881 and note, Am. & Eng. Ann. Cas. 1913B, 1078).

Chief Justice Marshall distinguished an office from a simple employment in the case of United States v. Maurice, 2 Brock. (U. S.) 96, 103 Fed. Cas. No. 15,747, as follows:

“Although an office is an ‘employment,’ it does not follow that every employment is an office. A man may be certainly employed under a contract, express or implied, to do an act, or perform a service, without becoming an officer. But if the duty be a continuing one, which is defined by rules prescribed by the government, and not by contract, which an individual is appointed by government to perform, who enters on the duties appertaining to his station, without any contract defining them, if those duties continue, though the person be changed, it seems very difficult to distinguish such a charge or employment from an office, or the person who performs the duties from an officer.”

In the case of Throop v. Langdon, 40 Mich. 673, Mr. Justice Cooley expresses the distinction as follows:

“The officer is distinguished from the employee in the greater importance, dignity, and independence of his position; in being required to take an official oath, and perhaps to give an official bond; in the liability to be called to account as a public offender for misfeasance or nonfeasance in office, and usually, though not necessarily, in the tenure of his position.”

The court of criminal appeals of Texas has decided that “a policeman of a city is a public officer holding his office as a trust from the State, and not as a matter of contract between himself and the city; the word applying equally to every member of the police force,” and that “a policeman is a public officer of the State expressly charged by the statutes with enforcing a large body of the criminal law.” Ex parte Preston (Tex. Cr. App.), 161 S. W. 115. See, also, Woodhull v. Mayor, 150 N. Y. 450 (44 N. E. 1038); 2 McQuillan on Municipal Corporations, p. 940; 5 Id. p. 5049; 28 Cyc. p. 497.

Counsel for applicant does not, however, take exception to these authorities as to the status of a policeman generally, but says that they do not bear upon the situation here presented, because the city of Pontiac in its charter has determined it and has classified its policemen as employees. Assuming that the position of counsel for the applicant is tenable, that the city has the authority under the home rule provision of the Constitution to determine that a policeman, who generally would be regarded as an officer, should for the purposes of the workmen's compensation law be regarded as an employee (which we do not decide), we are not satisfied that such a conclusion is the proper one to arrive at upon a careful study of the various charter provisions with reference to the police force of the city of Pontiac. A study of these various provisions is convincing that it was the purpose therein manifested to leave the policemen in the category of appointive officers, and not to make them merely employees. This, we think, is apparent from the wording of sections 5 and 6 of chapter X of the charter, which provide as follows:

“Sec. 5. The police department shall consist of the chief of police and as many subordinate officers, policemen, and employees as the commission shall by ordinance determine.
“Sec. 6. The commission shall by ordinance make and establish rules for the regulation and government of the police department, prescribe and define the powers and duties of the officers and employees of such department, and shall prescribe and enforce such police regulations as will most effectually preserve the peace and good order of the city, preserve the inhabitants from personal violence, and protect public and private property from destruction by fire and unlawful depredation.”

It is clear that in the department of police it is sought to distinguish between officers and employees, and in section 5 policemen are spoken of independently of employees.

It is true that section 10 of chapter VII, which provides that each member of the commission shall have authority to employ such employees as may be necessary to conduct their several departments in an efficient manner, and that such employees may be discharged at the pleasure of the member making such employment, is the only section in the charter which provides for the appointment of policemen. But, in view of the distinction clearly made in the sections with, reference to the police department, the word “employees” used in this section should not be held to have been used in any other than the comprehensive sense of including all persons serving the public in these departments, whether filling an appointive office or merely occupying a temporary contractual relation to the municipality as an employee; and this use of the word should not be held to deprive a policeman of the city of Pontiac of the dignity and importance which it is generally recognized attaches to his position.

It is said that in the case of Attorney General v. Cain, 84 Mich. 223, on page 227 (47 N. W. 484 on page 485), it was held that a policeman was not a • public officer. But that was a quo warranto proceeding and the court said:

“We do not think the position of policeman, under these circumstances, is such an office as authorizes the attorney general to file an information by quo warranto in this Court to test the title to the position. It was said in People v. De Mill, 15 Mich. 182 [93 Am. Dec. 179] that:
“ ‘There are grades of positions denominated “offiees” which do not rise to the dignity of being entitled to the notice of the attorney general by information.’ See, also, Throop v. Langdon, 40 Mich. 686.
“It is certain that the intent of the charter is that these policemen shall be subject to the orders and direction of the common council, and that such council, has the power at any time to remove them.”

This case was referred to in the later case of Trainor v. Board of Auditors, 89 Mich. 162 (50 N. W. 809, 15 L. R. A. 95). While this latter case says that a policeman in the city of Adrian is not a public officer, referring to Attorney General v. Cain, supra, it must be said that this decision goes only to the extent of holding that, since in that city policemen were removable by the council at pleasure, it would be useless for the attorney general to institute proceedings to determine who was entitled to the position. Under these circumstances, it was not such an office as would authorize the attorney general to file an information by quo warranto in this court to test the title to the position.

Being satisfied that a policeman is an appointive officer under the provisions of the charter of this city, required to take an official oath of office, which it appears was done in this case, it follows that he came within the exception in subdivision 1, § 7, pt. 1, Act No. 10, Public Acts 1912 (Extra Session), (2 How. Stat. [2d Ed.] § 3945), and is not an employee, as defined by said act, and therefore does not come within its provisions. Any effort to enlarge the scope of this act should be addressed to the legislature.

The decision of the Industrial Accident Board will be reversed and the claim of the applicant is disallowed.

Brooke,- C. J., and McAlvay, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


text:
    WHITMORE v. DETROIT UNITED RAILWAY.
    1. Carriers — Street Railways — Alighting ■ from Car — Safe Place.
    Where it appeared from testimony in a negligence case that a female passenger, burdened with a basket, upon starting to alight from one of defendant’s cars, objected to the conductor that the place where the car was standing was a bad spot at which to alight, and that testimony tended to show that the street had been torn up to be repaved at that point, and that plaintiff stepped on loose blocks which overturned and threw her, there was evidence sufficient to warrant the court in submitting to the jury the question of defendant’s negligence in stopping the car at a dangerous place to discharge passengers.
    2. Same — Evidence—Contbibutobt Negligence.
    Upon evidence tending to show that the plaintiff, in alighting from the car in the daylight, saw the unsafe condition of the pavement, which was torn up, that she could have seen some loose blocks placed at the point where she was about to alight, she will be held to have seen what she could have seen when she looked, and the court properly directed a verdict for defendant on the ground of her contributory negligence.
    Error to Wayne; Hally, J.
    Submitted January 14, 1915.
    (Docket No. 88.)
    Decided March 18, 1915.
    Case by Nellie Whitmore against the Detroit United Railway for personal injuries. Judgment for defendant upon a directed verdict. Plaintiff brings error.
    Affirmed.

      Barbour, Field & Martin and Henry C. L. Forler, for appellant.

      Corliss, Leete & Moody and A. B. Hall, for appellee.
   Kuhn, J.

The plaintiff brought this action to recover for personal injuries sustained on November 25, 1912, while alighting from one of defendant’s electric street cars at or near the intersection of Kercheval and Concord avenues, in the city of Detroit. The plaintiff’s destination was a residence on the East Grand boulevard, which runs parallel with Concord avenue, while Kercheval avenue is at right angles thereto. Approaching from the west, the street car line on Kercheval avenue turns on Concord avenue toward Jefferson avenue and away from the boulevard.

On the morning of the day of the accident the plaintiff was riding in what is commonly known as a “pay-as-you-enter car.” The vestibules of these cars are inclosed, and the conductor, from a position inside the car, by means of a lever, opens the folding door of the vestibule and lowers the step. As the car approached Concord avenue, the plaintiff gave the usual signal to stop, and the car was brought to a stop at or near the intersection of Concord and Kercheval avenues, at a place claimed by the plaintiff not to be the usual stopping place. At the place where the car stopped, the street was being repaved, and had been dug out about 12 inches for that purpose; it not appearing from the proofs who was doing the work of repaving. As the car stopped, the conductor from his position turned the lever, opening the doors and lowering the step. The plaintiff, as she went to get out, and while standing on the step, facing the conductor, who was looking at her, said, “This is an awful place to let me off.” The conductor made no reply, but had his hand raised as if to give the motorman the signal to start the car. The plaintiff, fearing that the car would start, with a basket in her right hand, facing the front, and holding the handle on the car with her left hand, stepped down on some blocks, which she claims she had not seen because they were under the step, and was thrown and injured. It is also claimed that, if the car had gone a few rods further, the pavement there was in such a condition that the plaintiff could have alighted without danger of being injured.

The trial judge, at the close of plaintiff’s proofs, on motion of defendant’s counsel, directed a verdict in favor of the defendant on the ground that, although there was evidence to submit the case to the jury as to the negligence of the defendant in not exercising proper care to stop the car at a place reasonably safe to alight, nevertheless, under the circumstances of this case, the plaintiff must be held to be guilty of contributory negligence, as a matter of law. Whether this action on the part of the trial court was proper is the question before us for review.

There was sufficient evidence, in our opinion, to warrant the submission of the case to the jury as to the defendant’s negligence in not at least exercising proper care to see that the place of alighting was safe. Spangler v. Traction Co., 152 Mich. 405 (116 N. W. 373), and cases cited therein.

But it is also clear, it being in broad daylight, that the dangerous condition must have been as obvious to plaintiff as to the employees of the defendant company. This is not a case of alighting in the dark and when the danger is unknown to the passenger. The rule which it seems to us is applicable is thus stated in Nellis on Street Railways, § 308:

“But where a passenger, in alighting from a car, has as good an opportunity as the company or its servants to observe the conditions which confront him, and to know as well as they whether such conditions are dangerous to him in an attempt to alight, he is held to be guilty of contributory negligence, precluding a recovery, in case he is injured. If the street at the place of discharging a passenger presents a dangerous condition to one alighting there, and such danger is obvious to the passenger, the carrier is not liable to him for injuries received from such defects.”

It is the plaintiff’s claim that, although she looked and complained of the dangerous condition to the conductor, she did not see the blocks, which she claims were under the step. If this claim is true, it seems impossible for her to have stepped upon them, as she was on the step, and in stepping down and away from it could not have come into contact with the blocks. If they were in such a position as to make it possible for her to have stepped upon them when she alighted, she must have seen them, if she in fact looked, and she will be held to have actually seen what she could have seen when she looked. Indianapolis, etc., Terminal Co. v. Pressell, 39 Ind. App. 472 (77 N. E. 357). Her own negligence, in our opinion, as a matter of law, proximately contributed to her injury, and therefore the trial judge acted properly in directing a verdict for the defendant.

The judgment is affirmed.

Brooke, C. J., and McAlvay, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


text:
    PEOPLE v. DEVINE.
    Criminal Law — Bigamy—International Law — Polygamy—Marriage — Information.
    3 Comp. Laws, §11691 (5 How. Stat. [2d Ed.] § 14776), provides that if any person who has a former husband or wife living shall marry another person or shall continue to cohabit with such second husband or wife in the State, he shall be deemed guilty of polygamy, etc. The information averred that the respondent entered into a second marriage in the State of Ohio, having a wife living in the State of Michigan. It contained no averment that the respondent had lived or cohabited with the second wife -in the State of Michigan. Held, that the accused should have been discharged upon his plea of abatement based upon the ground that the information failed to set up an offense.
    Error to Oakland; Smith, J.
    Submitted January 21, 1915.
    (Docket No. 125.)
    Decided March 18, 1915.

      David Devine was convicted of polygamy.
    Reversed: respondent discharged.

      Frank L. Doty, Prosecuting Attorney, and Glenn C. Gillespie, Assistant Prosecuting Attorney, for the people.

      James J. Noon, for respondent.
   McAlvay, J.

Respondent was informed against in the circuit court for the county of Oakland for the offense of bigamy, and being arraigned December 1, 1913, entered a plea of guilty to the information filed against him. Upon which plea, having been brought to the bar of the court, judgment was pronounced and duly entered against him, and he was on the same day sentenced to be confined in the State prison at Jackson for the minimum term of two years and six months, and a maximum term of five years. On December 5th following, respondent was committed to the Michigan State prison at Jackson, at which place he is now confined. He has removed the case to this court upon a writ of error, having assigned errors upon the record of the case.

The assignments of error raise but one important question, namely, that the information does not state or charge any crime or offense known to the laws of the State of Michigan, and therefore the court was without jurisdiction to receive any plea or impose judgment and sentence upon respondent. The information, omitting the formal parts, reads:

“ * * * That David Devine, late of the city of Pontiac, in the county of Oakland, and State of Michigan, heretofore, to wit, on the 8th day of February, in the year one thousand nine hundred and eight, at the city of Marquette, in said Marquette county, did marry_ one Eleanor Mae Nolon, a spinster, and her the said Eleanor Mae Nolon then and there had for his wife, and that the said David Devine, afterwards and whilst he was so married to the said Eleanor Mae Nolon, so aforesaid, to wit, on the 20th day of July, 1913, in the city of Newark, State of Ohio, feloniously did marry and take to wife one Jenney Rayner, and by and to her, the said Jenny Rayner, was then and there married, and the said Eleanor Mae Nolon, his former wife, being then and there living, contrary to the form of the statute in such case made and provided,” etc.

The information was drawn under section 11691, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 14776), which provides:

“If any person who has a former husband or wife living, shall marry another person, or shall continue to cohabit with such second husband or wife, in the State, he or she shall, except in the cases mentioned in the following section, be deemed guilty of the crime of polygamy, and shall be punished by imprisonment in the State prison not more than five years, or in the county jail, not more than one year, or by fine not exceeding five hundred dollars.”

It is the contention on the part of counsel for respondent that under this statute it is necessary that the information should contain an allegation that respondent, having a wife living, married another woman in this State, or had continued to cohabit with such second wife in this State, and, further, that such prosecution could be maintained only in the county where the second marriage occurred, or the county in which such cohabitation took place. The exact question is one of first impression in this State, and depends upon the construction to be given to the portion of the section above quoted, which provides:

“If any person who has a former husband or wife living, shall marry another person, or shall continue to cohabit with such second husband or wife, in the State, he or she shall * * * be deemed guilty of the crime of polygamy.”

It is fundamental that the courts of this State have jurisdiction to punish only such offenses as may be •committed within its jurisdiction. It follows that the marriage referred to, if unlawful, and is the offense relied upon which is charged to have been committed in the State of Ohio, could not be the subject for a prosecution in Michigan; also that the offense of continuing to cohabit with such second wife must be charged to have been committed in this State in order "to give our courts jurisdiction. The words of this statute are plain and unambiguous and require no application of fundamental principles of criminal law in order to construe them. Words could not be selected which would more clearly express that the unlawful marriage must be contracted, or the unlawful cohabitation must be continued, in this State. Although both depend upon the fact that an unlawful marriage has been entered into while a former husband or wife is living, yet they are distinct offenses. •The information in this case charges that respondent entered into this second marriage in the State of Ohio. It does not charge that he continued to cohabit with such second wife in the State of Michigan. It is therefore fatally defective.

Statutes in other States charging these offenses in practically the same words have been considered by courts of last resort, and in all of these cases where similar questions to that here raised have been considered, it has been held that the offenses must be committed in the State and county where the prosecution is instituted. See Johnson v. Commonwealth, 86 Ky. 122 (5 S. W. 365, 9 Am. St. Rep. 269); Commonwealth v. Bradley, 2 Cush. (Mass.) 553; State v. Hughes, 58 Iowa, 165 (11 N. W. 706), and cases cited; 4 Am. & Eng. Enc. of Law (2d Ed.), p. 40, and cases cited under note 2.

That such allegations under this statute are required appears to have been recognized in this State in framing informations for entering into an unlawful second marriage in this State and for continuing to cohabit with a second wife or husband in this State. Tiffany’s Crim. Law (4th Ed.) pp. 707, 708.

Our conclusion is that the court had no jurisdiction to pass judgment and sentence upon the respondent in this case for the reason that the information alleged no offense.

The judgment of the circuit court is reversed, and the prisoner discharged.

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


author: Brooke, C. J.

text:
    PEOPLE v. HALL.
    l. Criminal Law — Insanity—Petition nor Commission — Incompetency.
    Act No. 238, Pub. Acts 1905 (5 How. Stat [2d Ed.] § 15408), provides that when a person accused of certain heinous offenses shall appear to be insane or shall have escaped indictment upon the grounds of insanity or shall have been acquitted for that reason, the court shall make inquiry to ascertain whether the insanity continues; also that any person under confinement charged with such offense who shall appear to be insane shall be examined by the court which may summon necessary witnesses to aid in the examination and, if necessary, the court may call a jury for that purpose; that if his insanity is established the accused may be imprisoned in the asylum until restored to his right mind. Respondent was charged with the crime of murder. On a petition of the prosecuting attorney alleging upon information and belief that respondent was insane when he committed the crime and asking the court to investigate the mental status of the accused, corroborated by affidavits of four citizens that supported the averments of the petition, the court instituted an examination into the competency of the respondent, who was represented by counsel at the hearing. By an order of the court a commission consisting of the prosecuting attorney and three physicians was appointed, and on the examination witnesses were sworn. No one expressed an opinion that respondent was insane, but all testified to a weakened or undeveloped condition of mind. The physicians were not sworn as witnesses, but filed a report which the prosecutor prepared, and which was not made under oath, containing findings that the accused was non compos mentis, that he belonged to the class known as imbeciles and that his condition was due to retardation of mental development and that it then continued to exist. The court entered an order based on the report that the respondent be committed to the State asylum for the criminal insane, until restored to his right mind. No finding was made by the court that the accused was insane. Held,, that although the petition conferred jurisdiction, the court erred in omitting to, have the physicians sworn as witnesses and that the order was void for failure to adjudge that respondent was insane.
    2. Same — Imbeciles — Witnesses — Physicians—Examination of Respondent — Mental Capacity.
    Construing said act with section 14 of Act No. 101, Pub. Acts 1909 (2 Hew. Stat. [2d Ed.] § 3781), which provides that the certificate of the committee appointed to examine into the mental condition of a person in probate court must contain the facts and circumstances on which the opinion of the experts is based; and when read in connection with section 15 of Act No. 25, Pub. Acts 1911, requiring the certificates of insanity to be made by two reputable physicians under oath, the legislative intent indicated is to require the physicians and other witnesses called in the case to be sworn.
    3. Same — Medical Experts — Certificate of Insanity.
    The certificate of physicians appointed by the court to examine into the sanity of one accused of murder wherein the physicians state that the respondent was non compos mentis and point out in what particulars he was mentally defective and that he was an imbecile, sufficiently states that the respondent was mentally incapacitated although they did not certify that he was insane, in the language of the statute.
    4. Same — Jury Trial.
    Failure of the court to call a jury was not fatal to the proceedings resulting in the commitment of an incompetent where respondent was represented at the hearing by counsel, who omitted to demand a jury.
    5. Same.
    The report of the prosecutor and two physicians whom the court appointed to investigate the mental status of the accused reciting that he was non compos mentis and belonged to the class known as imbeciles and had not sufficient self-control to resist the impulse to do violent acts, was not fatally defective because it failed to state that respondent was insane.
    6. Same — Requirement of Petition — Jurisdiction.
    The action of the court based upon the petition of the prosecuting attorney wherein it was set up that the accused was incompetent or insane sufficiently complied with the requirements of section 19 and was within the class of cases intended by the first portion of the section, i. e., a person accused of the crime of murder who should appear to be insane although he had not been acquitted or escaped indictment.
    7. Same — Insanity—Judsment.
    Where the order of the court fails to state that the evidence adduced at the investigation convinced the court of the respondent’s insanity, there was no judicial determination of the basic fact requisite for the entering of such order.
    8. Same — Bail—Accused.
    Though the respondent was admitted to bail after the filing of the information and had not been acquitted or indicted, he was one of the classes of cases intended by the statute.
    9. Constitutional Law — Criminal Law — Appeal and Error.
    It is the settled policy of this court to avoid the determination of constitutional objections to an act of the legislature if the case presented on appeal may be disposed of upon any other sufficient grounds.
    Error to Iron; O’Brien, J., presiding.
    Submitted January 21, 1915.
    (Docket No. 96.)
    Decided March 18, 1915.
    George Hall reviews an order of the circuit court committing him to the State asylum as insane upon writ of error.
    Reversed.

      Grant Fellows, Attorney General, and August J. Waffen, Prosecuting Attorney, for the people.

      Isaac W. Byers (L. A. Lyon, of counsel), for respondent.
   Brooke, C. J.

Respondent was charged at the June, 191Í, term of the circuit court of Iron county with having on the 18th day of April, 1911, killed and murdered one Zylowski. On the 5th day of June, 1911, respondent was admitted to bail in the sum of 85,000, and from that time until the February, 1914, term of said court, a period of nearly three years, respondent was at large and working upon his father’s farm in the township of Bates, in said county. At that term of court the prosecuting attorney for Iron county presented his petition to the court, alleging upon information and belief that the respondent was at that time insane, and praying the court to determine the mental condition of the respondent. This petition was accompanied by the affidavits of four citizens tending, in a greater or lesser degree, to establish the fact of the insanity of the respondent. Upon the filing of said petition, the court made an order appointing a commission' to examine respondent as to his sanity. This commission consisted of three physicians and the prosecuting attorney of Iron county. The inquiry was prosecuted under section 19 of Act No. 238, Pub. Acts of 1905 (5 How. Stat. [2d Ed.] § 15408), which follows:

“When a person accused of the crime of murder, attempt at murder, rape, attempt at rape, incest, abduction, highway robbery or arson, or attempt to do great bodily harm, shall appear to be insane, or shall have escaped indictment upon the grounds of insanity or shall have been acquitted upon trial upon the grounds of insanity, the court, being certified Jby the jury or otherwise of the fact, shall carefully inquire and ascertain whether his insanity in any degree continues, and if it does, shall order such person into safe custody and to be sent to the State asylum. If any person in confinement under indictment for the crime of arson, or murder, or attempt at murder, rape, or attempt at rape, or incest, or abduction, or highway robbery, or assault to do great bodily harm, shall appear to be insane, the judge of the circuit court of the county where he is confined shall institute a careful investigation. He shall call two or more reputable physicians and other credible witnesses, and the prosecuting attorney to aid in the examination, and if it be deemed necessary to call a jury for that purpose, is fully empowered to compel the attendance of witnesses and jurors. If it is satisfactorily proved that such person is insane, said judge may discharge such person from imprisonment and order his safe custody and removal to the State asylum, where such person shall remain until restored to his right mind, and then, if the said judge shall have so directed, the superintendent of said asylum shall inform the said judge and prosecuting attorney, so that the person so confined may within sixty days thereafter be remanded to prison and criminal proceedings be resumed, or he be otherwise discharged. If any such person be sent to said asylum, the county from which he is sent shall defray all expenses of such person while at the asylum for a period of two years, and the expense of returning home to such county if his discharge is effected during such period. If he shall not be discharged from the said asylum until after his transfer to the State shall have been effected, under the provisions of a subsequent section, the expenses of his return to said county shall be paid by the State of Michigan. The county or State may recover the amount so paid from the person’s own estate, if he have any, or from any relative, town, city or county that would have been bound under existing laws to provide for and maintain him elsewhere.”

The hearing on the said petition occurred on the 2d day of February, 1914. Upon the hearing respondent was represented by Mr. Isaac W. Byers and Mr. L. A. Lyon, who appeared as his attorneys. The prosecuting attorney inquired of counsel for respondent if a jury was demanded, whereupon Mr. Byers, one of respondent’s counsel, responded:

“My position is that we must stand mute in the matter. If we are insane we cannot act in the matter.
“The Court: The attorneys in this case are sane.
“Mr. Byers: I suppose there should be a guardian appointed.
“The Court: The attorneys are the guardians of the accused at present.
“Mr. Byers: So far as we are personally concerned, we do not want a jury.”

The investigation thereupon proceeded, and the people produced and swore some eight witnesses, who gave testimony touching the mental competency of the respondent. It may be said of this testimony that it is extremely weak. No witness sworn for the people gave evidence to the effect that in his opinion the respondent was insane. They were unable to go further than to say generally that the respondent, as a boy, was rather unlike other children, sometimes morose, easily aroused to passion, and inclined to exclude himself from the companionship of his fellows. The record fails to show that either of the three physicians were sworn as witnesses. They, however^ in conjunction with the prosecuting attorney, prepared and filed a report on said 2d day of February. On the day following, February 3, 1914, the circuit judge entered the following order:

“Whereas on the 2d day of February, 1914, the prosecuting attorney of the county of Iron presented to the court his petition supported by affidavits now on file in this cause, setting forth in substance that said respondent appears to be insane.
“And whereas, it thereupon was ordered and directed that a commission composed of three reputable physicians and the prosecuting attorney be appointed to investigate and examine as to the sanity of the said respondent, George Hall, said commission being composed of Mr. A. J. Waffen, prosecuting attorney, and Dr. William McBurney, Dr. C. F. Larson, and Dr. E. M. Libby.
“Whereas said commission did carefully investigate and examine as to the sanity of said George Hall and did report in substance as follows:
“ ‘We, the undersigned, William McBurney, C. F. Larson, and E. M. Libby, a commission of physicians duly appointed by the judge of the circuit court, together with the prosecuting attorney of Iron county, to carefully investigate and inquire into the sanity of one George Hall, now standing before the court charged by information duly filed with the crime of murder, and the said prosecuting attorney having filed with the court a motion and affidavit certifying to the insanity of the said George Hall, or to a probable belief of such insanity now existing, do hereby make the following report:
‘First. That we have carefully examined into the history of the said George Hall both by considering the testimony taken in open court and upon physical and mental examination of said respondent.
‘Second. That we find as the result of said investigation that said George Hall is now non compos mentis in this, to wit: That he belongs to that class known as imbeciles; that such imbecility, which is due to a retardation or lack of mental development, now continues.
‘Third. That at this time he has not sufficient self-control to resist violent impulses.
“ ‘Dated February 2, A. D. 1914.
“ ‘Respectfully submitted,
“ ‘August J. Wappen,
“ ‘Prosecuting Attorney,
“ ‘Iron County, Michigan.
“ ‘Wm. McBurney, M. D.
“ ‘C. F. Larson, M. D.
“ ‘E. M. D. Libby, M. D.’
“Whereas said report is on file in this court and in this cause and has been duly entered on the journal of said court:
“Now, therefore, in pursuance of the statute in such case made and provided, it is ordered by the court now here that said respondent, George Hall, be placed in safe custody and removed and committed to the State asylum, being Ionia State Hospital at Ionia, Michigan, for the criminal insane, where said George Hall shall remain until he be restored to his right mind, and that, if he should be so restored to his right mind, it is further ordered that the superintendent of the Ionia State Hospital shall inform the judge of the circuit court for the county of Iron and the prosecuting attorney of said county thereof, so that said George Hall may, within 60 days thereafter, be removed to the common jail of said Iron county and answer criminal proceedings now pending against him in said county of Iron, or the charge of murder be removed or he be otherwise discharged.”

Whereupon respondent, by his counsel, interposed objections and filed the following exceptions:

“(1) That the said circuit judge erred in appointing the commissioners to examine said defendant, to investigate and report to the court as to his sanity, upon the petition of A. J. Waffen, prosecuting attorney of said county, and the affidavits accompanying said petition, all of which are filed in said cause and are a part of the record in said cause, for the reason that said petition and said affidavits presented in support of said petition do not show that said respondent was at the time insane, or that he appeared to be insane, or that he was at the time a criminal or dangerous insane person, or that he appeared to be insane, criminal, or dangerous.
“(2) The said circuit judge erred in acting upon said petition and affidavits, and in appointing said commissioners, to examine and report to the court as to the sanity of said defendant, because said petition and said affidavits do not show that said defendant was at the time insane, or that he appeared to be insane, but that he was weak-minded and an imbecile.
“(3) That the said circuit judge erred in finding said defendant insane, upon the proceedings and evidence in said cause, and in committing said defendant to said Ionia State Hospital, upon the findings and report of said commission, and in not calling a jury to pass upon the question of the sanity of said defendant, as no reason appears, in the record for not calling a jury to determine said question, and the defendant did not and has not waived his right to have said question determined by a jury.
“ (4) That the said circuit judge erred in making an order committing said defendant to said Ionia State Hospital upon the testimony and proceedings had in said cause, for the reason that said testimony-produced and proceeding's had herein did not afford said defendant such due process of law he was entitled to under the Constitution and laws .of this State and of the United States; that said proceedings and evidence show that said defendant is only weak-minded, and he is prevented by said proceedings and order of commitment from making any defense he may have to the charge made against him in this cause; that said order of commitment brands him as a criminal, without his day in court.
“(5) That the said circuit judge erred in making said order of commitment upon the report of the physicians appointed as commissioners to examine said defendant and report to the court, for the reason that said report does not show said defendant to be insane, dangerous or criminal, or dangerously or criminally insane.
“(6) That the said circuit judge erred in making said order committing said defendant to the Ionia State Hospital for the reason that there is no evidence or testimony in this cause showing that this defendant, at the time of said examination and commitment, was insane, that he appeared to be insane, or that he was at the time dangerous, criminal, or a dangerous and criminal insane person, or that he appeared so to be.
“(7) That the said circuit judge erred in making said order of commitment, for the reason that the record in said cause shows that the said defendant had not escaped indictment or been acquitted upon trial upon the grounds of insanity, or that he was in confinement under indictment, at the time of said investigation and report, upon which said order of commitment to the State Hospital at Ionia is based.
“(8) That said circuit judge erred in making said order of commitment, for the reason that the statute governing the commitment of persons to said Ionia State Hospital does not provide that imbeciles and weak-minded persons shall be committed to said institution pursuant to said statute, and that the law is uncertain and indefinite as to the disposition of the persons of those charged with the crime with which this defendant is charged in this cause.”

Touching the first and second exceptions, an examination of the petition discloses that the prosecuting attorney represented to the court:

“That he is informed and believes and has reason to believe that the said George Hall has been demented since childhood, and that on said 18>th day of April, A. D. 1911, he was seriously demented,.if not insane, and that your petitioner believes that he has not fully recovered from his mental illness and is still demented, if not insane.”

The affidavits accompanying the petition likewise set up the fact that the various affiants believed that said Hall since early childhood was demented, if not at times insane, and therefore that they doubted his sanity. The statute above quoted provides:

“When a person accused of the crime of murder, * * * shall appear to be insane, or shall have escaped indictment upon the grounds of insanity or shall have been acquitted upon trial upon the grounds of insanity, the court, being certified by the jury or otherwise of the fact, shall carefully inquire and ascertain whether his insanity in any degree continues, and if it does, shall order such person into safe custody and to be sent to the State asylum.”

Under the language of this part of the section, we have no doubt that the petition of the prosecutor was sufficient to clothe the court with authority to make the investigation contemplated by the statute.

The third exception presents a question of more gravity. As above pointed out, the physicians called by the court to aid in the investigation do not appear by the record to have been sworn. The language of the statute is that the court “shall call two or more reputable physicians and other credible witnesses, and the prosecuting attorney, to aid in the examination.” Nowhere in the statute does it appear that a report or certificate of the physicians must be filed. It seems to us clear that it was the intent of the statute to compel the physicians called by the court to be sworn, and that their examination should be made a part of the record in the case upon which the court should or might base a conclusion as to the fact of the sanity or insanity of the respondent. It would seem clear from the recitation of the so-called report by the court in his order that said order was based in part, at least, upon the statements contained in the report. So far as the record discloses, these statements were made by the physicians signing the report under no sanction. While not controlling, provisions contained in two other acts are suggestive upon this point. Section 14 of Act No. 101, Pub. Acts of 1909 (2 How. Stat. [2d Ed.] §3781), provides as follows:

“ * * * Certificates that a person is feeble-minded or epileptic must contain the facts and circumstances upon which the opinion of the physicians is based, and show that the condition of the person examined is such as to require care and treatment in an institution for the care, custody and treatment of feeble-minded or epileptic' persons. * * * ”

Section 15 of Act No. 25, Pub. Acts of 1911, amending Act No. 217, Pub. Acts of 1903, provides:

“Certificates of insanity must be made by two reputable physicians, under oath, appointed by the probate court of the county where such alleged insane person resides, or is an inhabitant, to conduct the examination. * * * ”

While that portion of section 19 referring to this subject quoted above does not in terms require the physicians to be sworn, we are of opinion that such must have been the-intention of the legislature. The court is empowered to call two or more reputable physicians and other credible witnesses. This, in our opinion, indicates that the legislature intended that the physicians as well as the other credible witnesses should be sworn.

Objection is made on the part of the respondent that the certificate itself is insufficient in that nowhere do the physicians who signed it certify that the respondent, at the time of the making thereof, was insane. They do say, however, that the respondent is now non compos mentis, and point out in what such mental derangement consists. We think, if otherwise unobjectionable, the certificate in this regard would be adequate. It was said by Mr. Justice CAMPBELL In the case of Van Deusen v. Newcomer, 40 Mich. 90, at page 141:

“The law has but one test of insanity, and that is whether a person is compos mentis, or capable of exercising rational self-control.”

Nor are we prepared to say that the failure of the court to summon a jury to determine the question is fatal to the proceedings. The section apparently contemplates that the inquiry may be made by the court, although he is therein empowered, if he deems it necessary, to call a jury. In the instant case inquiry ■was made of respondent’s counsel whether a jury was desired or not, and counsel said so far as they were personally concerned a jury would not be required. We are quite well aware that neither counsel for respondent, nor respondent himself, could waive any constitutional right, but we are not prepared to say that the failure to call a jury to pass upon the mental condition of the respondent is such a denial, particularly when competent counsel representing respondent at the time of the inquiry declined tó make a demand for a jury.

The fourth, fifth, and sixth assignments of error have been already sufficiently covered.

The argument that neither the evidence nor the report shows the respondent to be insane, dangerous, or criminal is, in our opinion, without force. By the terms of the statute the inquiry is had for the purpose of ascertaining “whether his insanity in any degree continues.” It seems to us clear that such insanity might continue in some degree and in such a degree as to warrant the restraint of the respondent for the time being and until secured, even though he was not violent or apparently dangerous. The report itself, however, if it constitutes competent evidence upon which to base the order, recites “that at this time he has not sufficient self-control to resist violent impulses.” ■ If this statement were properly in' evidence, we are of opinion it would be adequate, under the statute, to warrant the action of the court.

The seventh assignment is predicated upon, the fact that, at the time the investigation was had, the respondent had neither escaped indictment, nor had been acquitted upon trial upon the grounds of insanity, nor that he was in confinement under indictment. As before 'noted, the respondent had been enlarged on bail some three years before the investigation was had. We think, however, that counsel for respondent overlook the fact that the investigation may be had in another class of cases — the very first mentioned in section 19, which recites that:

“When a person accused of the crime of murder * * * shall appear to be insane * * * the court, being certified by the jury or otherwise of the fact, shall carefully inquire,” etc.

There can be no doubt that, at the time the investigation was made, the respondent stood accused of the crime of murder, and as such was within the first class described by the statute, although he had neither escaped indictment, nor been acquitted upon the grounds of insanity, nor was he in actual confinement under indictment.

It is contended that the order itself is insufficient; that nowhere therein does the court determine that the respondent was, at the time the order was made, insane. It will be noted that, after reciting the report of the commissioners, the court proceeds:

“Whereas said report is on file in this court and in this cause and has been duly entered on the journal of said court,” etc.

Nowhere in the order does the court declare that the evidence adduced before him at the investigation convinced him of the fact of respondent’s insanity, nor is it certified that it was “satisfactorily proved that such person is insane.” We are of opinion that it was unnecessary for the order to contain a recitation of the report, but that it was necessary that the order should contain a judicial determination of the basic requisite fact; i. e., the respondent’s insanity. North v. Joslin, 59 Mich. 624 (26 N. W. 810); In re Storick, 64 Mich. 685 (31 N. W. 582); and Partello v. Holton, 79 Mich. 372 (44 N. W. 619).

The last assignment of error raises the question of the constitutionality of the law itself. Unconstitutionality is predicated upon the fact that the statute leaves to the circuit judge the discretion as to whether or not the superintendent of the asylum shall inform the judge and prosecuting attorney that theperson committed is restored to his right mind. It is said: That, if the judge does not give this direction to the superintendent of the asylum, the person committed is subject to life imprisonment in the asylum. That if such direction is given, and the person has been restored to his right mind, and- the superintendent neglects or refuses to inform the judge and prosecuting attorney of the fact, there is no provision in the statute to compel the superintendent to act, and there is no provision providing for a hearing before any officer, court, or other tribunal, to determine the question whether or not the person committed has been restored to his right mind. In support of respondent’s position, the following cases are cited: People v. Smith, 9 Mich. 193; People v. Lawton, 30 Mich. 386; and Underwood v. People, 32 Mich. 1 (20 Am. Rep. 633).

While the constitutionality of this statute may be seriously questioned, we must at this time decline to pass upon that phase of the case, for the reason that it is a settled policy of this court to avoid determination upon that ground, if the case presented can be disposed of upon any other ground.

For the errors pointed out, the judgment is reversed, and the respondent remanded to the custody of the sheriff of Iron county, there to abide such further proceedings as may be had according to law.

McAlvay, J., concurred with BROOKE, C. J. Kuhn, Stone,'Ostrander, Bird, Moore, and Steere, JJ., concurred in the result.