author: Steere, J.

text:
    LOBUZEK v. AMERICAN CAR & FOUNDRY CO.
    1. Master and Servant — Workmen’s Compensation Law — Depositions-t-Evidence.
    Where claimant wife had resided in Austria seven years previous to the husband’s death, depositions taken in Austria to establish such relationship without letters rogatory, notice to the opposite party, or in compliance with the rules of the industrial accident board, were not admissible in evidence in proceedings for an award under the workmen’s compensation act.

    • 2. Same — Evidence—Foreign Affidavits — Admissibiutt.
    Where no witness testified to knowing deceased both in Austria and America and could identify him as claimant’s husband, and a so-called “protocol” purporting to contain the testimony of claimant and her witnesses, taken before a probate judge in. Austria, could not be admitted as a foreign affidavit under tbe laws of Michigan (Act No. 191, Pub. Acts 1909, 3 Comp. Laws 1915, § 12502), and, if authenticated as a foreign affidavit, could not be substituted to prove, in a contested case, facts which can only be shown by competent oral evidence or legal depositions duly taken after notice to opposing parties, there was no competent evidence to sustain an award to claimant.
    Certiorari to Industrial Accident Board.
    Submitted October 18, 1916.
    (Docket No. 9.)
    Decided January 23, 1917.
    Mary Lobuzek presented her claim for compensation against the American Car <& Foundry Company for the death of her husband in defendant’s employ. From an order awarding compensation, defendant brings certiorari.
    Reversed.

      Alexander, Cotter & MacCord (G. A. Orth, of counsel), for appellant.

      John F. Berry, Thomas A. Lawler, and Leopold A. Koscinski, for appellee.

       On application and effect of workmen’s compensation acts, generally, see comprehensive note in L. R. A. 1916A, 23.

   Steere, J.

On August 12, 1913, an employee of defendant named Ignatz Lobuzek sustained fatal injuries at its foundry in the city of Detroit as the result of being caught by an ascending elevator.in the doorway of the shaft, upon the second floor. An award of full compensation for his death was made to plaintiff, as his wife living with him at the time of his death, by an arbitration committee, and affirmed by the State industrial accident board under Act No. 10, Extra Session 1912 (3 Comp. Laws 1915, § 5423).

Defendant urges that this award is erroneous and without authority of law for the reason that the evidence failed to show the accident causing Lobuzek’s death arose out of or in the course of his employment, and that certain claimed documentary ‘evidence purporting to have been taken in Austria was erroneously received and considered by the board, without which there was a total absence of proof as to plaintiffs rights or existence, and which, even if it were admissible as evidence, fails to identify deceased as her husband or to show that she was living with him at the time of his death and wholly dependent upon him for support, but, on the contrary, shows that for about seven years prior to his death he had lived in America and she in Austria, where she had employment during much of that time.

Deceased was a native of Austria, and apparently did not speak or understand the English language to any extent; his communications being chiefly with and through fellow workmen of his nationality who spoke English and could interpret. None of them gave any testimony as to his domestic relations or what part of Austria he came from.

The application for compensation preferred to the industrial accident board is in the name of Ernest Ludwig, of Cleveland, Ohio, acting consul of Austria-Hungary, under power of attorney purporting to be signed by Mary Lobuzek, of the province of Galicia, Austria, which does not appear to be authenticated by an American consul, as the published ruling of the industrial accident board demands.

Deceased was employed in defendant’s foundry as a “charger,” working with others under direction of the “cupola tender,” at throwing iron into, or charging, the furnace in the process of smelting. The charging room of the foundry was located upon the second floor. Two sets of stairs ran to it from the ground floor for the employees to use as occasion required. The building was equipped with two freight elevators supplied with electric power and operated by the manipulation of ropes or lines causing them to ascend, descend, or stop as the operator desired. The elevator in the north shaft, where the accident occurred, stopped at the second floor; the shaft entrance from the charging room being protected by an automatically operated guard gate about breast high which the ascending elevator caught and raised leaving an open doorway from it to the charging room when it stopped on that floor. When it descended the guard gate went down with it by gravity to its former position, again protecting the shaft doorway on that floor. The purpose and use of the elevators was to carry pig iron and other material up and down in the building as business demanded. They were in charge of an elevator operator employed especially to care for and run them. It was no part of deceased’s duty to use or operate them. He had been personally cautioned against attempting it, and the men were instructed generally that it was against the rules for them to operate the elevators. So far as the testimony discloses, he did not know how to run the elevators, and had not previously tried to do so.

On the morning of the accident a workman in the charging room named Lawrence, one of the older employees who had at one time been an elevator operator, but was then working as a charger, took a wheelbarrow and went into the elevator at the floor of the charging room to go down and outside the building to get a load of sand with which to cover the bottom of the furnace. Deceased stepped into the elevator with him and rode down. The elevator was so constructed that it stopped automatically on the ground floor, and the '.operator did not accompany them, but remained on the second floor, starting the elevator down by reaching into the shaft and pulling the proper rope. He then went a few steps from the shaft to the stair doorway,, where he could see out and watch Lawrence get his sand from a pile outside, and sat down. Deceased didinot accompany Lawrence, who loaded his wheelbarrow and returned to within about 20 steps of the elevator, where he sat down to rest. While watching him the operator heard an outcry, and, turning towards the shaft, saw deceased caught between the elevator and the ceiling of the second floor with his legs hanging down outside, the toes pointing out. Lawrence had occupied about 15 minutes in getting the sand and returning to where he sat down. Where deceased was during that time, what he did, and how the accident happened, except its finality, are undisclosed beyond the confused testimony, through an interpreter, of a witness named Lasczak, who testified that he stood in the charging room on the second floor and saw deceased come up alone in the elevator to that floor, get out, and reach over the gate to pull the cord to send the elevator down, saying:

“He must have got the wrong line, because instead of going downward it shot up, and the gate caught him, * * * and he was taken upward with the elevator. When' I saw that, I got frightened very much, and I ran down the stairs, taking the stairway.”

A protracted attempt by counsel to get some light on how the gate caught him aftér it had been raised by the ascending elevator before he could get out led to a series of confused and conflicting answers, of which the interpreter said, “He is all balled up,” the witness said, “I explained it more than about six times how it could be down,” and the chairman of the board said, “I think we will simply waste time on it any way.” His testimony, if of any significance, is but confirmatory of the undisputed evidence that deceased was not assisting Lawrence, was alone in the elevator without any tools or articles indicating a mission in the line of his duties, and lost his life in attempting to operate the elevator in violation of instructions. Operating an elevator was not in the line of nor a risk incident to his employment as a charger. It was a forbidden danger of his own choosing, and we fail to find any evidence in the record disclosing that he was on the elevator for any special purpose of his employment at the time of the accident. No findings were made by the accident board revealing the theory under which it was concluded the injury “arose out of” deceased’s employment.

But, if it be conceded that the record furnishes support for such conclusion as to the accident itself, the award to plaintiff is manifestly based upon claimed foreign depositions taken in a contested case without notice, and not entitled to recognition, not only under well-established elementary rules of evidence in contested judicial and quasi judicial proceedings, but under a wise, fair, and well-worded rule of practice approved and promulgated by the Michigan industrial accident board for cases of this kind, which is as follows:

“Foreign Dependents — Letters Rogatory and Proofs —Practice in. — The following practice in the above cases is approved and established by the board:
“(1) In case it is necessary to take the testimony of witnesses in a foreign country, the person desiring such testimony shall apply to the board for the issuance of letters rogatory by petition to which shall be attached the interrogatories which he desires to have propounded to the witnesses whose testimony is. to be taken; he will also attach thereto a copy of the order proposed in the case, and shall serve copies of all of said papers upon the opposite party or his attorney, the time for such service to be the same' as provided in the circuit court rules of Michigan. A notice should also be attached to the papers so served stating the time when the same would be presented to the board for issuance, and further stating that the opposite party may propose and submit at the time aforesaid cross-interrogatories to be attached to said letters, and propounded to the witnesses whose testimony is to be taken.
“(2) That at the time fixed in said notice such original petition with proof of service attached thereto may be presented to the board, and also any proposed cross-interrogatories, or objections or motions whether made orally or in writing, and the same will be passed upon by the board.
“(3) The board will issue as of course such letters in all cases except where substantial reasons are affirmatively shown against said issuance, the saino to be authenticated by the secretary of the board signing the same and' attaching the seal of the board thereto. That in such cases the cross-interrogatories proposed by the opposite party will be attached.to the letters as of course, except where it is made to appear that they are impertinent or irrelevant.”

Michigan Workmen’s Compensation Cases (1916), p. 428.

In this case no witness was produced who testified to knowing deceased both in Austria and America and could identify him as plaintiff’s husband. In fact, the only tendency in the ex parte claimed foreign depositions to so identify him was his name. By them it appeared plaintiff had not seen her husband of that name since he left her in Galicia seven years before, and his last address furnished to her in a letter from him was: “Jest Wiwian, W. Va. No. 294.” That it was necessary to take the testimony of witnesses in a foreign country to establish her right to compensation-under any aspect of the case is too manifest for discussion.' Not only were the rules of the board entirely ignored, but the so-called “protocol” purporting to contain the testimony of plaintiff and her witnesses taken before a probate judge of Bochnia, Austria, could not be admitted as foreign affidavits under the laws of this State (Act No. 191, Pub. Acts 1909 [3 Comp. Laws 1915, § 12502]); and, if authenticated as a foreign affidavit, it could not be substituted to prove, in a contested case, facts which can only be shown by competent oral evidence or legal depositions duly taken after notice to opposing parties.

We are of opinion that the industrial accident board, had before it no competent evidence to sustain the-award made, and its decision must therefore be reversed.

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


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    BARNES v. BOARD OF SUPERVISORS OF WAYNE COUNTY.
    1. Taxation — State Tax Commissioners — Petition — Equalization of Taxation — Board of Supervisors.
    The sworn petition of a supervisor to the State tax commissioners for a review of the equalization by the county board of supervisors, of which he was a member, of the valuations of the several assessing districts in said county, under Act No. 201, Pub. Acts 1913, 1 Comp. Laws 1915, § 4028, alleging the interest of the petitioner, that he objected to the equalization made by said board, that his township had been discriminated against and would be compelled to pay an unjust and unlawful proportion of the State and county taxes, that said equalization was based upon the assessed valuations, that he had assessed the real and personal property in said township at approximately cash value “while the real and personal property in the city of Detroit was assessed for much less than cash value, as your petitioner is informed and verily believes” was not objectionable upon the ground that the petition was upon information and belief,' but by a fair construction it .was only the quoted statement that was upon information and belief.
    2. Same — Sufficiency of Petition — Evidence.
    Where said petition stated that the property in the township of which petitioner was supervisor was assessed at cash value, while that in the city of Detroit was assessed at much less than cash value, that both had been equalized as assessed, and thus the township had been discriminated against, ultimate facts sufficient to confer jurisdiction upon the State tax commissioners were stated, and it was not necessary to state the evidence to support such facts.
    3. Same — State Tax Commissioners — Jurisdiction—Fraud.
    The statute providing for said appeal confers upon the State tax commissioners extended powers of investigation and provides thaf “the action of the said board of State tax commissioners in the premises shall be final,” hence, where said board has obtained jurisdiction, and has. acted, it should be held that its action is final, in the absence of fraud.
    4. Same — Review—Time—Statutes.
    Statutory provisions as to the time assessment rolls should be delivered to the treasurer for collection, held to be directory merely, and should not be permitted to so operate as to shut off the remedy from an unjust equalization by appeal to the board of State tax commissioners, where the appeal is seasonably taken.
    5. Same — Statutes—Construction—Intent.
    The various provisions of the tax law should be so construed together as to carry out the purpose of the legislature.
    6. Same — State Tax Commissioners — Good Faith — Presumptions.
    It must be presumed that the. State tax commissioners, acting under the statute, in the exercise of its judgment in reviewing the equalization of the valuations of the assessing districts made by the county board of supervisors, did so in good faith and with a view to carry out the purpose of the law, and the fact that it reached a conclusion different from that of the county board is no evidence of fraud or bad faith.
    7. Same — Mandamus—Presumption—Statutes.
    In mandamus proceedings to compel a board of supervisors to convene and apportion the State and county taxes in accordance with an order made by plaintiff State board of tax commissioners, it will be presumed that the latter made the proper reduction for the purpose of equalization, in compliance with the statute, which provides that the aggregate valuation of the county shall not he increased. Act No. 201, Pub. Acts 1913, 1 Comp. Laws 1915, § 4028.
    Mandamus by Orlando F. Barnes, George B. Horton and Thomas D. Kearney, Board of State Tax Commissioners, and another, against the Board of 'Supervisors of Wayne County to compel said respondent to convene and apportion the State and county taxes in accordance with an order of said Board of State Tax Commissioners.
    Submitted January 30, 1917.
    (Calendar No. 27,710.)
    Writ granted February 5, 1917.

      Alex. J. Groesbeck, Attorney General, and L. W. Carr, Assistant Attorney General, for relators.

      Harry J. Dingeman, for respondent.
   Stone, J.

This is an application for a writ of mandamus to compel defendant board to convene and apportion the State and county taxes in the several assessing districts of the county of Wayne in accordance with the equalization report and order made by the plaintiff board.

It appears that on October 26, 1916, the defendant board made an examination of assessment rolls of the townships and cities in the county of Wayne for the purposes of equalization and equalized the real estate, and stated the aggregate valuations of the taxable real property therein, the result of which appears in an exhibit attached to the petition in this cause.

An appeal was taken by the plaintiff Bristow, supervisor of Greenfield township, to the board of State tax commissioners, under section 3857, 1 Comp. Laws, as amended by Act No. 201, Pub. Acts 1913 (1 Comp. Laws 1915, § 4028).

On December 11, 1916, a hearing was ordered for December 21st. After the hearing the State board of tax commissioners revised the equalization made by the defendant board and ordered the latter to apportion the State and county taxes in accordance with the equalization and apportionment made by the said State board, which defendant refused to do.

It is pertinent to here set forth the provisions of the statute as amended. Section 3857, as it originally stood, made it the duty of the board of supervisors of each county, at their session in October in each year, to examine the assessment rolls of the several townships, wards, or cities, and ascertain whether the relative valuation of the real property in the respective townships, wards, or cities has been equally and uniformly estimated. It provides that if on such examination they shall deem such valuations to be relatively unequal, they shall equalize the same by adding to, or deducting from, the valuation of the taxable property in any township, ward, or city, or townships, wards, or cities, such an amount as in their judgment will produce relatively an equal and uniform valuation of the real property in the county, and the amount added to, or deducted from, the valuation in any township, ward, or city shall be entered upon the records. They are required also to cause to be entered upon their records the aggregate valuation of the taxable real and personal property of each township, ward, or city in their county, as determined by them. The amendatory provision is as follows:

“Any supervisor of any township or city who considers his township or city aggrieved by the action of the board of supervisors of which he is a member in equalizing the valuations of the several townships, wards or cities of the county, may appeal from such determination to the board of State tax commissioners in the manner herein provided. Whenever any such supervisor desires to appeal ¡from such determination by the board of supervisors, he shall within five days after such determination and within five days after adjournment of the board of supervisors, file a written or printed petition which shall set forth in detail his reasons for taking such appeal, with the clerk of the said board of supervisors. The said petition shall be signed and sworn to by the supervisor taking the appeal ; shall show that the equalization as made by the said board of supervisors was objected to by certain members thereof; that a certain township, ward or \ city, as the case may be, has been discriminated against in such equalization, and shall pray that said board of State tax commissioners proceed at its earliest convenience to review the action from which appeal is taken. It shall be the duty of the clerk of the board of supervisors to forthwith serve such petition personally or by registered mail upon the board of State tax commissioners. The said board of State tax commissioners shall upon receipt of such petition, forthwith examine same, and if in its judgment there is a showing to the effect that the equalization complained of is unfair, unjust, inequitable or discriminatory, may proceed' at once to investigate and pass upon complaints relative to the assessment and taxation of property, and the action of the said board of supervisors in connection with the equalization and valuation of said county. The said board of State tax commissioners shall have the same authority to consider and pass upon the action and determination of the said board of supervisors in equalizing said valuations as it has to consider complaints relative to the assessment and taxation of property. The said board of State tax commissioners shall have the right to order the said board of supervisors to reconvene and to cause the assessment rolls of said county to be brought before it, and it may summon the several supervisors of said county before it to give evidence in relation to' said ! equalization, and may take such further action and may make such further investigation in the premises as it may deem necessary. If the said board of State tax commissioners shall decide that the determination and equalization made by the board of supervisors is correct, no further action shall be taken. If the said board of State tax commissioners, after due consideration, decides that the valuations of said county have been improperly equalized, it shall proceed to make such deductions from, or additions to the valuations of the respective townships, wards, or cities as may be deemed proper, and in so doing the said board shall have the same powers as the board of supervisors had in the first instance. It shall be the duty of the said board of State tax commissioners forthwith, after completing its revision of the equalization of the valuation of the several assessment districts, to report its action to the board of supervisors by filing its report with the clerk of the board of supervisors. The action of the said board of State tax commissioners in the premises shall be final and binding upon the said board of supervisors. Upon receipt of such report from the board of State tax commissioners, it shall be the duty of the clerk of the board of supervisors to forthwith call a meeting of the board of supervisors, which shall not be less than three days nor more than five days after the said report of the board of State tax commissioners is filed. Notice of such meeting shall be given to each supervisor by service of a copy of the call either personally or by registered mail as the said clerk shall determine. As soon as the said board of supervisors has reconvened, it shall immediately proceed to apportion the- State and county taxes to the several assessing • districts in accordance with the equalization _so_ made: Provided, that if the board of supervisors is in session at the time the report of the board of State tax commissioners is filed, it shall be the duty of the said clerk to deliver the said report to the said board of supervisors, which shall equalize the county in the manner indicated in said report: Provided further, that the said board of State tax commissioners shall not upon petition filed under the provisions of this act increase the aggregate valuation of said county.”

An order' to show cause having been made, the defendant has answered the petition. There being no plea to any portion of the answer, the case is before us upon petition and answer. In and by its answer the defendant claims:

(1) That the petition on appeal, filed by Supervisor Bristow, is not in compliance with the statute, and therefore the State board of tax commissioners acquired no jurisdiction.

(2) That the hearing on appeal was delayed beyond the time allowed by law, and the action of the State board is of no effect.

(3) That the action of the State board of tax commissioners in this matter was arbitrary, unlawful, and illegal, and amounted to bad faith.

(4) That errors in addition and cross-addition to the extent of approximately $1,000,000 were made by the State board, and that these errors were carried into the figures used in its order of equalization.

We shall consider these claims in the order in which they are presented.

Was the petition of the supervisor sufficient to confer jurisdiction on the board of State tax commissioners, to act in the premises? That petition was as follows:

“Petition for Review of Equalization.
“To the Board of State Tax Commissioners, Lansing,
“Michigan.
“Gentlemen: The undersigned, as supervisor of the township of Greenfield, county of Wayne, hereby protests against the action of the board of supervisors of the county of Wayne in equalizing the valuations of the sevei-al assessing districts in said county for the year 1916, and respectfully petitions that the board of State tax commissioners review the action of said board of supervisors at its earliest convenience, as provided in Act No. 201 of the Public Acts of 1913.
“Your petitioner hereby certifies that as a member of the board of supervisors of Wayne county he objected to the equalization from which this appeal is taken, and that he voted against its adoption; and that he considers that the assessing district he represents has been discriminated against in such equalization for the following reasons:
“That the real and personal property in the said township of Greenfield was assessed by your petitioner in 1916 at approximately cash value, while the real and personal property in the city of Detroit was assessed for much less than cash value, as your petitioner is informed and verily believes.
“Your petitioner further represents that the said board of supervisors has equalized the various cities and townships of said county of Wayne as assessed by the supervisors and assessors thereof, arid that byj reason of said equalization the township' of Greenfieldi has been discriminated against and will be compelled' to pay an unjust and unlawful proportion of the State and county taxes to be levied in said county in the year 1916.
“That such result is brought by the fact that the assessment of real and personal property in the said city of Detroit is not at cash value for the year 1916 as the law directs, but is for less than said cash value.
“Fred W. Bristow.
“Subscribed and sworn to before me this 27th day of October, A. D. 1916.
“Arthur C. Whitcomb,
“Notary Public, Wayne County, Mich.
“My commission expires Jan. 5, 1919.”

It will be observed that the petition alleges the interest of the petitioner; that he objected to the equalization made by the defendant; that he voted against the adoption of such equalization; that he considered that his township had been discriminated against; and he prayed that said board of State tax commissioners, review the action of the board of supervisors, at its. earliest convenience, as provided by said Act No. 201.. The specific facts stated were:

(1) That the township of Greenfield had been assessed by petitioner at cash value.

(2) Property in the city of Detroit had been assessed at much less than cash value.

(3) The board of supervisors had equalized the various cities and townships of the county as assessed by the local officials.

And the petition was sworn to. But it is urged by defendant that the petition was made upon information and belief. Without deciding that this would be a fatal objection to the petition, it will be well to see whether this objection is well founded. After stating as a fact that the real and personal property in the said township of Greenfield had been assessed by petitioner in 1916 at approximately cash value, he proceeds as follows :

“While the real and personal property in the city of Detroit was assessed for much less than cash value, as your petitioner is informed and verily believes.”

By any fair construction it is only the last sentence or statement that was upon information and belief. Later in.the petition it is stated absolutely as a fact that by reason of such equalization the township of 'Greenfield had been discriminated against and would Ibe compelled to pay an unjust and unlawful proportion of the State and county taxes to be levied in the year 1916; and that such result was brought about by the fact that the assessment of real and personal property in the said city of Detroit was not at cash value for the year 1916, as the law directs, but was for less than said cash value. We do not think that the objection that the petition was upon information and belief is well taken.

It is further objected that the petition does not set forth in detail the reasons for taking such appeal. It states that property in the township of Greenfield had been assessed at cash value, and that property in the city of Detroit had been assessed at much less than cash value; that both had been equalized as assessed, and thus the township of Greenfield had been discriminated against. The ultimate facts are here stated. It is true that the evidence to prove or support such facts is not stated, but is this necessary? Should we apply a stricter rule to this petition than we would to a declaration? Must the evidence be stated? We think not. As said by Justice Cooley in Stockle v. Silsbee, 41 Mich. 615, at page 618 (2 N. W. 900):

/‘The time has gone by, if it ever was, when the proceedings of taxing officers are to be criticized with ¡microscopic nicety, and the exact time and method of ■every step examined to detect a departure from the law, however insignificant or unintentional.”

The possibility of collecting the State revenue depends upon the observance of this policy. It is true that the petition is brief and the facts might, well have been stated with more elaboration, yet we think that it was sufficient to confer jurisdiction upon the board of State tax commissioners to act in the premises.

The said board having obtained jurisdiction, the statute confers upon that body extended powers of investigation. It is to proceed “to investigate and pass upon complaints relative to the assessment and taxation of property, and the action of the said board of supervisors in connection with the equalization and valuation of said county.” It has “the same authority to consider and pass upon the action and determination of the said board of supervisors in equalizing said valuations as it has to consider complaints relative to the assessment and taxation of property.” It has the right, “to order the said board of supervisors to-reconvene and to cause the assessment rolls of said county to be brought before it, and it may summon the several supervisors of said county before it to give evidence in relation to said equalization, and may take such further action and may make such further investigation in the premises as it may deem necessary.” And finally it is provided that, “the action of the said board of State tax commissioners in the premises shall be final and binding upon the said board of supervisors.” Acting within the scope of its power such action may be said to be almost plenary. Whether this statute is wise or not, is matter for legislative, rather than judicial, consideration.

It should be held that the board having obtained jurisdiction, and having acted, such action should be deemed final, in the absence of fraud.

It is further urged that the State board did not seasonably act, and attention is called to Act No. 378, Local Acts 1879, wherein the Detroit board of assessors is required to make a copy of its assessment rolls, after the same have been fully and finally confirmed by the common council, and deliver the same to the county treasurer on or before November 15th.

Such provision is analogous to the corresponding clauses of the general tax law requiring the placing of the tax roll in the hands of township treasurers for collection of taxes. We think that such provisions, as to time, should be held to be directory merely. Smith v. Crittenden, 16 Mich. 152-156; Peninsula Iron, etc., Co. v. Township of Crystal Falls, 60 Mich. 510-519. (27 N. W. 666). Such provisions should not be permitted to so operate as to shut off the remedy by appeal, where the appeal was, as here, seasonably taken.

The various provisions of the tax law should be construed together, and so as to carry out the purpose of the legislature. Further, it appears that the review of the city rolls had not been completed on November 15th, and we cannot say that the State board acted improperly in deferring its action until that review was completed, as the statute gives the board the right to use the data there obtained.

An examination of this record, including the resolution and the answer of the defendant, contains no charge of fraud on the part of the plaintiff State board. While there is much general criticism and many vague statements that the action of the State board was a “useless formality and farce,” yet there is no such charge, of fraud as would form the basis of an issue. The following is a fair sample of the allegations on this subject:

“Respondent denies that the said board of State tax commissioners investigated the matter thoroughly and carefully, and while this respondent has not sufficient information to form a belief as to what data relators examined, respondent avers the fact to be that if the order subsequently made by said board of State tax commissioners was based upon such data, that such data were decidedly erroneous and incomplete.”

It must be presumed that the State board acting under the statute in the exercise of its judgment did so in good faith, and with a view to carry out the purpose of the law. And the fact that it reached a • conclusion which differed from that of the defendant is no evidence of fraud or bad faith, for it must be borne in mind that the statute makes the State board’s action final, and binding upon the board of supervisors.

Referring to the assessment rolls of the city of Detroit, the defendant states in its answer that the State board, claiming that such assessments were not based upon cash value, in pursuance of section 1924, 1 How. Stat. (2d Ed.) (1 Comp. Laws 1915, § 4151), increased the assessments so made so as to total $1,-065,241,280, which was distributed among the various wards of the city; that said State board caused its assessment aforesaid to be placed upon the rolls of said city as required by law, and that the valuation and assessments so made by said board thereupon became final, and such property could not be assessed or valued at a lower figure within three years, where the property remained substantially the same, without the written consent of said board; that said State board in placing said valuation upon said assessment rolls made errors in addition and cross-addition in nearly every ward in said city (a table of which is given), aggregating approximately $1,000,000, but that the net total result of the same is $503,580; and that said State board in arriving at its basis for equalization, and in computing its totals for the various wards in the city of Detroit made no allowance, and took no consideration of the errors aforesaid, and that in the figures now submitted by said board for equalization purposes, the same are erroneous to the extent aforesaid, less the reduction made by said board for the purposes of equalization. It should be borne, in mind that the State board was here dealing with the equalization of the real property in Wayne county to fix a basis for the apportionment of the State and county taxes. Neither the State board nor this court is here concerned about individual assessments in the city of Detroit.

For aught that appears in the foregoing statement of the answer every one of the errors claimed may have occurred in valuations of personal property, which would not affect this equalization, where the valuation of personal property, as assessed by the defendants, is retained for purposes of equalization. It is conceded that “reduction was made by said board for the purpose of equalization.” The claim therefore is wholly immaterial to the question we are dealing with. That the State board made the proper reduction for the purpose of equalization in compliance with the statute will be presumed, in the absence of any claim to the contrary. The statute provides that the State board shall not increase the aggregate valuation of the county. In conclusion, we are of the opinion that this case is ruled by the case of Attorney General v. Midland County Supervisors, 178 Mich. 513 (144 N. W. 883).

Counsel for defendant refers to Newport Mining Co. v. City of Ironwood, 185 Mich. 668 (152 S. W. 1088), as authority that the action of the State board is not final. That was an action for the .recovery of back taxes paid under protest. The proceedings of the State board in that case were under section 1924, supra, and had nothing to do with the subject of equalization. We find no evidence of fraud or bad faith on the part of the State board.

The writ of mandamus will issue as prayed for in plaintiff’s petition, with costs against the defendant,

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


author: Moore, J.

text:
    KOPCZYNSKI v. SCHRIVER.
    1. Municipal Corporations — Grand Rapids Charter — Mayor — Election — Words and Phrases.
    The charter of the city of Grand Rapids, adopted under the provisions of the home rule act (Act No. 279, Pub. Acts 1909, 1 Comp. Laws 1915, § ,3304 et seq.), is not invalid in that it provides for the election by the city commission of one of its members as mayor, while said statute requires that the charter provide for the “election” of a mayor, since “election” is not limited to the act or process of choosing a person for public office by a vote of the qualified electors. Attorney General v. Bryan, 182 Mich. 86 (148 N. W. 392).
    2. Same — Grand Rapids Charter — Duties of Mayor — City Manager — Constitutional Law.
    In mandamus proceedings to compel the city clerk of Grand Rapids to accept and file a certain nominating petition, it is unnecessary for this court to decide whether the powers conferred upon the city manager by the charter conflict with those conferred on the mayor, or whether there' is a conflict between the provisions of the charter and the home rule act, where there is no such conflict as to raise a constitutional question, or to make the charter as an entirety invalid.

      3. Same — Schools and School Districts.
    Under the provisions of the general tax law (1 How. Stat. [2d Ed.] § 1814, 1 Comp. Laws 1915, § 4042) providing that “in cities where some special provision is made for demand or collection of taxes the collector or treasurer shall comply with such special provision, otherwise be bound by the provisions of this act,” a new city charter which repealed the old charter except the provisions relating to schools which are expressly kept in force, is not invalid as failing to provide for levy, collection, and return of school taxes in conformity with the general laws of the State. Board of Education v. Straub, 182 Mich. 665 (148 N. W. 716).
    Certiorari to Superior Court of Grand Rapids; Dun-ham, J.
    Submitted January 2, 1917.
    (Calendar No. 27,679.)
    Decided February 8, 1917.
    Mandamus by Anthony J. Kopczynski against James Schriver, city clerk, to compel respondent to accept and file a certain nominating petition. From an order denying the writ relator brings certiorari.
    Affirmed.

      George C. Brown, for relator.

      Sheridan F. Master and Jewell & Smith, for respondent.
   Moore, J.

The questions involved are so clearly stated in an opinion filed by the court below that we quote from it as follows:

“This cause came on to be heard upon an order to show cause why a peremptory writ of mandamus should not be issued against respondent to compel him to accept and file the nominating petition of relator as a candidate for nomination for the office of alderman of the Fourth ward of the city of Grand Rapids, Kent county, Mich.
“Relator’s petition avers that-he is a qualified elector of said ward, and respondent the city clerk of the city of Grand Rapids, that relator presented his petition to respondent for filing as a candidate for the nomination of alderman of said Fourth ward, and that respondent refused to receive and file the same.
“Respondent tó show cause filed an answer denying that there is any such office in the city of Grand Rapids to be filled as alderman of the Fourth ward, as stated in relator’s petition, and that he refused to receive and file such petition for that reason. And for these reasons respondent moved the court to dismiss said petition.
“Relator claims in his petition that the charter of the city of Grand Rapids * * * is invalid for several reasons. * * *
“(2) By proper election and qualification a charter commission was constituted to, and which did, prepare a proposed charter for the city of Grand Rapids under the ‘Home Rule Act/ so-called, and which proposed charter was submitted to the electors of the city of Grand Rapids on the 29th day of August last, and for its adoption there were cast 7,693 votes, and against it 6,021 votes. On September 5, 1916, said votes were canvassed by the common council of the city of Grand Rapids, after which it issued the following certificate:
“Whereupon we certify that, ‘Yes/ having received a majority of all the votes cast the proposition was declared carried.
“There were 23 councilmen voting, all voting ‘Yes/ and within 30 days thereafter the city clerk certified to four copies of said resolution and to four printed copies of said charter, and filed two copies each with the secretary of State and the county clerk, respectively.
“The proposed charter undoubtedly became the charter of Grand Rapids on the 5th day of September last, or at least within 30 days thereafter, and is now the city charter of the city of Grand Rapids, Kent county, Mich., unless it is void by reason of it, or some parts of it, being contrary to the Constitution of this State, or so in contravention of the general laws of this State as to be null and void.
“(3) This charter does not provide for any such office as ‘alderman/ and by the terms of said charter there is to be no ‘alderman’ elected, and at the time relator tendered his petition for nomination for the office of ‘alderman’ to respondent there was no such office to be filled in the city of Grand Rapids. * * *
“No direct proceeding has been brought, as far as I know, to test the validity of the present charter of this city. However, attorneys for respondent in open court waived, so far as they have power to waive, any question herein concerning the forms of action. * * *
“(7) Relator asks for a writ of peremptory mandamus to compel the city clerk of this city to receive his nominating petition for alderman.
“It is true he relies upon the right to this writ upon the assumption and argument that the charter adopted on August 29th last is unconstitutional and void. To test that particular question I do not believe that mandamus is the proper remedy.
“And for the two reasons above stated, namely, first, that it does not appear to me that the present city charter is unconstitutional and void, and, second, for the reason that I do not believe the relator is the proper party,- and mandamus the proper remedy to have determined the legality of the present city charter, relator’s petition is dismissed, but without costs.”

Counsel upon both sides waive any question of the form of the procedure. The case has been argued at length, both orally and in the briefs upon the merits. The questions involved are of public interest, where a speedy determination is desirable, and we have decided to dispose of the proceeding upon the merits without deciding whether mandamus is the proper remedy.

We quote from the brief of counsel:

“The petition for the writ of mandamus alleged that the new charter was invalid on three grounds, which three grounds are relied on here. They are:
“(1) The new charter provides that the city commission shall annually elect one of its members mayor. This contravenes subdivision V of section 3 of the home rule act, requiring that each city charter shall provide for the election of a mayor.
“(2) The new charter provides that the administrative power shall be vested in the city commission which appoints a city manager who is vested with the executive authority under control of the commission. This contravenes subdivision ‘a’ of section 8 of the home rule act, requiring that the mayor shall be the executive head.
“(3) By providing for the levy, collection, and return of school taxes not in conformity with the general laws of the State, as required by subdivision ‘E’ of section 3 of the home rule act.”

The State Constitution (article 8, §§ 20, 21) provides:-

“The legislature shall provide by a general law for the incorporation of cities, and by a general law for the incorporation of villages; such general laws shall limit their rate of taxation for municipal purposes, and restrict their powers of borrowing money and contracting debts.
“Under such general laws, £he electors of each city and village shall have power and authority to frames adopt and amend its charter and to amend an existing charter of the city or village heretofore granted or passed by the legislature for the government of the city or village and, through its regularly constituted authority, to pass all laws and ordinances relating to its municipal concerns, subject to the Constitution and-general laws of this State.”

The legislature in compliance with the provision passed what is known as the home rule act (Act No. 279, Pub. Acts 1909 [1 Comp. Laws 1915, § 3304 et seq.]). What was done by the city of Grand Rapids subsequently appears in what we have quoted from the opinion of the trial judge.

. The charter which was adopted contains so many provisions that it requires more than 70 printed pages to contain them.

Section 7 of the new charter provides:

“There is hereby established for the government of the city of Grand Rapids a city commission of seven members, one member of which shall be mayor.”

Section 54 provides:

“The city commission shall annually organize by the election of one of its members as mayor and one as president, and shall also choose its other officers. It shall fill all vacancies in its membership until the next municipal election. It shall be the judge of the election and qualifications of its members and shall determine the rules of its procedure.”

Section 3 of Act No. 279, Pub. Acts 1909 (thehome rule act), provides:

“Sec. 3. Each city charter shall provide:
“(a) For the election of a mayor who shall be the executive head, and a body vested with legislative power, and for the election or appointment of a clerk, a treasurer, an assessor or board of assessors, and a board of review:
“(b) For the election or appointment of such other officers as may be deemed necessary.” (1 Comp. Laws 1915, § 3306).

Counsel say:

“In thus providing for the election by the city commission of one of its members as mayor the new charter contravenes the mandatory provisions of section 3 of the home rule act, above quoted, requiring the charter to provide for the election of a mayor. The term ‘election’ as used in section 3 of the home rule act means a popular election by the people.”

In 3 Words and Phrases, p. 2330, there are many definitions of the word “election.” One of them reads:

“The word ‘election’ is not limited in its definition and meaning to the act or process of choosing a person for a public office by a vote of the qualified electors at the time, place and manner prescribed by law. The Century Dictionary defines ‘election’ to mean a deliberate act of choice, particularly a choice of means for accomplishing a given end; the choice of a person or persons for office of any kind by the voting of a body of qualified or authorized electors. In Worcester’s Dictionary the word ‘election’ is defined as the act of electing or choosing; power of choosing; free choice; preference; selection. State v. Hirsch, 125 Ind. 207 (24 N. E. 1062, 1063, 9 L. R. A. 170).”

A similar question to the one involved here was presented in Attorney General v. Bryan, 182 Mich. 86 (148 N. W. 392). The case is so recent and so easily accessible that we content ourselves with making a reference to it.

If the home rule act was intended to restrict the election of a mayor to a popular election, it would have been easy to say so. We do not think the charter provision as to the election of mayor is illegal

2. Section 88 of the charter provides as follows:

“(88) (a) Sec. 2. Insofar as required by law, and for all ceremonial purposes, the mayor shall be recognized as the executive head of the city. He shall preside at the meetings of the city commission and shall have a vote in the proceedings but no veto power.
“(b) He shall authenticate, by his signature, all ordinances passed or enacted by the city commission and such other instruments as the city commission, this charter, or the laws of the State require.
“(c) He shall exercise only such powers as the State laws, this charter, or the city commission specifically confer upon him.”

Section 87 deals with the powers conferred upon the city manager.

It is said:

“These provisions vesting power in the city commission and the city manager, and divesting the mayor of power contravene subdivision ‘a’ of section 3 of the home rule act, requiring that:
“‘Each city charter shall provide: For the election of a mayor, who shall he the executive head/"

We do not feel called upon in this proceeding to decide whether the powers conferred upon the city manager conflict with those conferred on the mayor, or whether there is a conflict between the provisions of the charter and the home rule act, and, if so, which of them must yield. We are quite clear, however, that there is no such conflict as to raise a constitutional question, nor to make the charter as an entirety invalid.

It is said:

“The charter does not provide for the levy, collection, and return of school taxes in conformity with the general laws of the State.”

The provisions in the new charter are the same as those in the charter which preceded it.

By section 46 of the general tax law (1 How. Stat. [2d Ed.] § 1814 [1 Comp. Laws 1915, § 4042]) it is expressly provided:

“In cities where some special provision is made for demand or collection of taxes, the collector or treasurer shall comply with such special provision, otherwise be bound by the provisions of this act.”

Section 298 of the charter reads:

“The existing charter, being Act No. 593, Local Acts of 1905, and all acts amendatory thereto or forming a part thereof, are hereby repealed, except title xiv of said act, relating to the board of education. * * * Title xiv of said Act No. 593 of the Local Acts of 1905, being the title covering the board of education, and the acts amendatory thereto, are hereby continued in full force and effect. All other special acts supplementary to the existing charter of the city are hereby repealed so far as inconsistent with the provisions of this charter and so far as consistent therewith are hereby continued in force, until the same are superseded by lawful authority exercised under this charter or otherwise.”

We think the objection of the plaintiff is fully met by Board of Education v. Straub, 182 Mich. 665, 671 (148 N. W. 716).

Counsel has not . called our attention to any constitutional provision which has been violated by the terms of the charter, nor is any conflict shown between its provisions and those of the home rule act so vital as to make the charter invalid.

The judgment of the court below is affirmed, but, as the question involved is one of public interest, it is without costs to either party.

Kuhn, C. J., and Stone, Bird, Steere, Brooke, and Fellows, JJ., concurred. Ostrander, J., did not sit.


author: BIRD, J.

text:
    NORTH v. CADY.
    1. Elections — Circuit Judges — Primary Election — Statutes.
    Where there was but one candidate for the office of circuit judge in a county, it was unnecessary for the county clerk to certify the candidate’s name to the board of election commissioners, and unnecessary to hold a primary election for said officé. Section 7, Act No. 118, Pub. Acts 1913 (1 Comp. Laws 1915, § 3526).
    2. Constitutional Law — State Legislature — Elections — Statutes.
    It is within the power of the legislature to regulate the elective franchise, and if the regulation be an unreasonable one it is a defect for the legislature to remedy, and not one for the courts.

    Certiorari to Calhoun; Collingwood, J., presiding.
    Submitted February 9, 1917.
    (Calendar No. 27,771.)
    Decided February 19, 1917.

      Mandamus by Walter H. North against Willis A. Cady, county clerk of Calhoun county, to compel respondent to certify the name and address of relator as a candidate for nomination to the office of circuit judge in said county. From an order denying the writ, relator brings certiorari.
    Affirmed.

      Willard A. Knight, for relator.

      Adrian F. Cooper, Prosecuting Attorney, and James Cleary, Assistant Prosecuting Attorney, for respondent.

       On constitutionality of primary election law, generally, see notes in 22 L. R. A. (N. S.) 1136; 41 L. R. A. (N. S.) 132.

   BIRD, J.

The petition for writ of mandamus and the answer thereto filed in this cause raise the legal question whether it is necessary to hold a primary election for the office of circuit judge when there is but one candidate among all the political parties who has filed his petitions therefor.

The plaintiff is the sole candidate for the office of circuit judge in Calhoun county. The respondent takes the position that, under the circumstances, it is unnecessary to certify plaintiff’s name to the board of election commissioners, and unnecessary to hold a primary election for the office of circuit judge, and he bases his contention upon the following provision of the primary law:

“Provided, that if upon the expiration of the time for filing petitions in any primary for city or county, it appears that there is no opposition to any candidate for any office, upon any ticket, then the city or county clerk, as the case may be, shall certify to the board of election commissioners, the names of all persons whose petitions have been properly filed, and the office for which such petitions were filed, and such persons shall be declared by such board of election commissioners nominees for the respective offices and such clerk shall forthwith notify the sheriff of the county and the several clerks of the townships interested, if any, and give notice that the primary will not be held as contemplated, giving the reasons therefor, and a public notice shall be given of such determination by a brief notice published by such clerk* in a newspaper published in such county.” Section 17, Act No. 118, Pub. Acts 1913 (1 Comp. Laws 1915, § 3526).

The provision of the statute is plain and unambiguous, and we think it applies to the situation presented by plaintiff’s petition. The principal argument made in opposition to this construction is that it will deprive the electors of Calhoun county of an opportunity to participate in a primary for a candidate for circuit judge, and further that the provision is an unreasonable regulation, and is therefore invalid.

It has been many times held by this court that it is within the power of the legislature to regulate the elective franchise. Brown v. Election Com’rs, 174 Mich. 477 (140 N. W. 642), and cases cited. The legislature has exercised its discretion in this law by providing that under certain conditions no primary election need be held. If the regulation be an unreasonable one, it is a defect for the legislature to remedy, and not one for the courts.

In the case above cited a similar question was discussed, and it was there said:

“The test is, then, whether section 37 destroys the elective franchise or simply regulates it. If it destroys, it is our duty to declare it void. If it merely regulates, our duty is to declare it valid, and relief from its effects. must be found in the legislature,, An examination of section 37 will disclose that it is aimed at the voter’s right to have his name placed upon the ballot, and not at his right to vote. The right to vote is protected by the Constitution. The right to have his name placed upon the ballot is one which is under the control of the legislature. But it is argued that it interferes with the exercise of the franchise, in that the names of the candidates for commissioners will not be printed upon the ballot. This does not destroy the right of franchise, because the voter may write the names on the ballot. It may render his voting less convenient, but it does not destroy nor take away the right.” Y

On account of the urgency for an early decision in this matter, we must content ourselves by saying that we think the construction placed upon the statute by the trial court is the proper one, and its order will be affirmed, without cost to either party.

Kuhn, C. J., and Stone, Moore, and Steere, JJ., concurred. Ostrander, Brooke, and Fellows, JJ., did not sit.


text:
    WITHEY v. BOARD OF STATE CANVASSERS.
    1. Elections — Primary Elections — Recount — Certificate of Nomination — Mandamus.
    Where the. time within which the primary election law (1 Comp. Laws 1915, § 3547) requires the clerks of the counties affected to transmit certified copies of the number of votes received by candidates for office had already ex» pired, and the board of State canvassers had before it the official returns, apparently regular and as required by law, of every county in a judicial circuit, and it made the statutory canvass and issued the certificates, mandamus will not lie, at the instance of a defeated candidate, to recall the certificate issued by it, although a recount in one precinct petitioned for by him was undecided, since he could not affirmatively show that the certificate was in fact issued to the wrong candidate.
    2. Same — Certificate of Nomination.
    If á recount subsequently demonstrated that petitioner in fact had a majority, and the certification should he changed, he could then affirmatively show a right entitling him to relief
    Mandamus by Charles A. Withey against the board of State canvassers to compel said board to recall a certificate issued by it showing the nomination of Hal L. Cutler as a candidate for the office of circuit judge of the nineteenth judicial circuit.
    Submitted March 22, 1917.
    (Calendar No. 27,836.)
    Writ denied March 22, 1917.

      Cummins & Nichols, for relator.

      Alex. J. Groesheck, Attorney General, and L. W. Carr, Assistant Attorney General, for respondent.
   Steere, J.

Plaintiff seeks by mandamus, to compel defendant to recall a certificate issued by it on March 20, 1917, showing the nomination of Hal L. Cutler as Republican candidate for the office of circuit judge of the nineteenth judicial circuit, at the primary election held in that circuit on March 7, 1917. The nineteenth circuit is composed of four counties — Osceola, Lake, Mason, and Manistee. Plaintiff and Cutler were opposing candidates for the Republican nomination for circuit judge at that election, and Thomas Smurthwaite was the unopposed Democratic candidate. By the original canvass and returns, plaintiff was found to have a majority of 12 for the Republican nomination. On March 13th, Cutler petitioned for a recount of the votes cast in two precincts of Richmond township in Osceola county, and soon thereafter plaintiff petitioned for a recount of Lake county. By consent of plaintiff the recount on Cutler’s petition was taken up and later Cutler filed petitions for recounts in two other townships in Osceola county. The last recount petitioned for by hipa was completed on March 19th. Plaintiff then petitioned for a recount of one precinct in Sherman township in Osceola county.

The time within which section 38 of the primary election law (1 How. Stat. [2d Ed.] § 542 [1 Comp. Laws 1915, § 3547]) requires the clerks of each county affected to transmit to the secretary of State certified copies of the number of votes received for candidates for the office had already expired, and defendant through the attorney general called for returns from those delinquent, which were then made. The so-called “absent voter’s law” (Act No. 270, Pub. Acts 1915 [1 Comp. Laws 1915, § 3798]) requires election ballots to be printed and in the hands of election inspectors at least 12 days before the day of -election (in this instance April 2d), and on March 20th defendant at last had before it duly authenticated returns from all counties of the nineteenth circuit, fair on their faces, in regular form and certified as required by law, with no report or intimation upon them that a petition for a recount had been made or was pending, except a notation to that effect on the return from Osceola county, in which plaintiff’s petition touching one precinct in Sherman township had not been acted upon. Defendant thereupon proceeded to canvass the votes as shown by the returns, finding that they showed Cutler was nominated as the Republican candidate for the office of judge of the nineteenth circuit by a majority of 33 votes and Smurthwaite as the Democratic candidate, without opposition, issuing certificates accordingly.

The statute fixes a limit of time for defendant to perform the duty of canvassing the returns made to it from the several counties and certifying the nominees shown by such return to the respective boards of election commissioners, who, with the information so furnished, are required to have the ballots printed and ready before a stated time. Defendant’s duties in the premises were purely ministerial. It had before it the official returns, apparently regular and as required by law, of every county in the circuit, and in performance of its statutory ministerial duty it made the canvass and issued the certificates. Presumptively defendant performed its official duty, and prima facie the certificates it issued authorize the names it certified to be printed on the official ballot. The infirmity of plaintiff’s application for affirmative relief by mandamus is that he was hot then in a position to show that the result of the election was otherwise and the certificate in fact wrong, or that he had a clear, or better, right to the certificate than the party to whom it was issued. He yet could proceed with any recount which he had properly petitioned for, and any canvassing board which refused or delayed unreasonably after demand might be compelled to act by proper legal proceedings. If a recount subsequently demonstrated that he in fact had a majority and the certification should be changed, he could then affirmatively show a clear right entitling him to relief, as in Beakes v. Board of State Canvassers, 172 Mich. 408 (137 N. W. 958). It is true, as pointed out, that this court there said that a return by a county board of canvassers of the first count before the time expired in which relator could file his petition for a recount was premature and invalid, but did not intimate that relator could avail himself of it before establishing by a subsequent recount his paramount right to the nomination against his opponent who had been found the nominee by an authorized board in the performance of its ministerial duties.

“The necessary effect of the primary law, however, is to give an official character to a primary nominee. It may not be strictly accurate to call him a public officer, but the law gives him a certain and definite standing and endows him with at least one valuable privilege or right which he may enforce. Until the time of the election he is guaranteed, and in fact holds, a recognized legal position, which may be called, in default of a better term, a ‘quasi office.’ ” 9 R. C. L. p. 1090.
“So, when the vote has been canvassed by the proper board and he has received his certificate, he is at once in possession of his quasi office so far as any one can be in possession of it, and entitled to its single privilege, namely, the right to have his name put on the official ballot in the proper place, as against all the world, until in some proper action or proceeding to contest his right it is decided that another person was in fact nominated.” State, ex rel. Rinder, v. Goff, 129 Wis. 668 (109 N. W. 628, 9 L. R. A. [N. S.] 916).

As it does not now appear that any one is entitled by a better right to the certificate in question, the court must decline to interfere by mandamus to annul a ministerial act performed in the line of its statutory duty by a public ministerial board.

The merits of mutual imputations as to responsibility for delays and resultant irregularities need not be considered or passed upon here, but it seems obvious that the primary responsibility and fault rests in the law itself followed by authorized resort to certain of its provisions. As the law now stands, it will always afford opportunity for confusion and delays by which rights may be lost or wrong done. The time provided in which to do the numerous things required is limited and none too long when everything runs smoothly. As illustrated in this case, the primary election was on March 7th, to be followed on April 2d by the election to which it was preliminary. The county canvass came on the second Tuesday succeeding, within 10 days after the election the county returns were required to be certified to the secretary of State, who was required to appoint a meeting not later than 20 days after election, when the canvass should be made and the result forthwith certified-to the county boards of election commissioners; but this 20 days is curtailed by the absent voter’s law requiring the county election commissioners to print and distribute the ballots to inspectors at least 12 days before election. With diligence and prompt action by the various officers whose duties are involved and no especial interferences, the' various requirements of the election law can be observed within the times prescribed, and the law found workable without serious confusion, had not the legislature thrown a wrench into the machine by the provisions in section 40 of the law authorizing, without apparent limit of number or time except it shall be on or before the day or days when the board meets, petitions for recounts by which, with the attendant delays and taking one-voting precinct at a time, it is possible by timing the events to that end for sessions of the board to be protracted indefinitely, according to the number of precincts available. The obvious remedy for this is beyond the authority of the courts.

For the foregoing reasons, the writ is denied.

Ostrander, Bird, Moore, and Fellows, JJ., concurred. Kuhn, C. J., and Stone and Brooke, JJ., did not sit.


author: Bird, J. Brooke, J.

text:
    FROLICH v. AIKMAN.
    1. Mortgages — Deed as Mortgage — Evidence.
    In equity proceedings, to have a deed, absolute upon its face, declared to have been intended as a mortgage, clear, irrefragable, and most convincing proofs are required. ,
    2. Same — Burden op Proof — Contract.
    In such proceeding, in the absence of fraud or overreaching, the burden rests upon the plaintiff to show that at the time the instrument was executed there was a contract by which he was to repay the consideration, and that thereupon his vendee should reconvey the property to him.
    3. Same — Matters Equally Within Knowledge of Deceased— Relaxing Rule.
    Where, after plaintiff had been granted a change of venue, he permitted the cause to slumber for nearly five years, and in the meantime the grantee died, and plaintiff is thus prevented by the statute from testifying to the facts surrounding the transaction, there is no showing entitling him to a relaxation of the rule requiring clear, irrefragable, and convincing proofs of his claim.

      i. Same — Fraudulent Conveyances — Equity.
    Where plaintiff conveyed property for the purpose of enabling him to effect a fraudulent and collusive settlement with his creditors, he is in no position to seek the aid of a court of equity to have said conveyance, absolute on its face, declared to be a mortgage.
    Bird and Person, JJ., dissenting.
    Appeal from Wayne; Tucker, J., presiding.
    Submitted January 6, 1916.
    (Docket No. 31.)
    Decided March 29, 1917.
    Rehearing denied September 28, 1917.
    Bill by Edward Frolich against William Aikman, Jr., to have a deed declared a mortgage, for an accounting and other relief. Upon the death of said defendant the cause was revived against Henry I. Armstrong and Aikman Armstrong, executors and trustees under the will of said deceased. From a decree for complainant, defendants appeal.
    Reversed.

      Lucking, Helfman, Lucking & Hanlon (B. F. Erskine, of counsel), for complainant.

      Robert F. Eld/redge (Angelí, Bodman & Turner, of counsel), for defendants.

       Parol evidence that a written instrument which on its face imports a complete transfer of a legal or equitable estate or interest in property was intended to operate as a mortgage or pledge is taken up in note in L. R. A. 1916B, 18.

   Bird, J.

(dissenting). A study of the record in this controversy has convinced me that the findings and conclusions of the chancellor therein should be made the final ones. He disposed of the case as follows:

“In this cause the bill is filed for an accounting and for* the construction of a deed dated July 5, 1905, which complainant claims was given merely as security for a loan, and should therefore be construed to be a mortgage. The case was commenced in Wayne county, by bill filed November 8, 1906, and was removed to the Macomb circuit on December 10, 1906, where the suit has since been pending. The defendant, William A i km an, has since died, and the action revived against his executors.
“The parties had been intimate friends for years. Complainant was in the paint and glass business, and the defendant was an attorney practicing in the city of Detroit, but they seem to have had many tastes in common. Quite a large amount of real estate was at one time owned by both parties as tenants in common. This real estate was sold in parcels from time to time. The expenses incident to the business were shared between them, and whatever profits were made were divided. I find that on July 5, 1905, and for some time prior thereto, a partnership in this real estate had existed between the parties. On that date (July 5, 1905) a quitclaim deed was executed by Frolich to Aikman covering all that then remained of their holdings. The consideration recited in the deed was $2,-500, and that amount was paid by the defendant to complainant in cash.
“It was the claim of the complainant at the time the bill in the case was filed, November 8, 1906, that this deed of July 5, 1905, was never intended to convey the title of complainant to the property therein described absolutely, but that the complainant only intended the same as security for the repayment by him to the defendant of the $2,500 received by him, which amount was merely a loan, and was never intended to be consideration in full for the transfer of the property. It was the claim of the defendant that the $2,500 was never a loan, but was paid by him to complainant in full settlement for the property transferred by the deed. This is the main question to be determined in the case. There is nothing to show upon the face of the papers that this deed was intended as a mortgage, but under the circumstances of the case I think it should be so construed if there were serious, doubts as to its character.
“The parties were intimate friends. Their various responsibilities as to this property were not closed* up at the time the deed was executed. Frolich was in financial straits and in great need of money. He had paid some bills relating to the property, and had received a large amount of money from sales of real estate which had not been accounted for between parties. Some bills pertaining to the property were paid by Frolich after the execution of the deed, though none of large amount. They indicated, however, that he considered he still had some interest in it. The two had borrowed money before July, 1905, and given quitclaim deeds to secure payment of the loans, and that is not an unusual method of giving security. The final test to be applied is the amount of the consideration paid by Aikman. If I could satisfy myself that on July 5, 1905, the sum of $2,500 was a fair consideration for the property sought to be conveyed by the deed, I would be inclined to hold the paper of July 5, 1905, to have been an absolute conveyance of complainant’s title.
“Several witnesses were sworn as to what the values were in 1905 of the houses and lots conveyed by the deed, * * * and I think one of the executors gave testimony as to value. I have gone over all this testimony, and I am satisfied that, taking the most conservative estimates made, the property interests conveyed by the deed of July 5, 1905, was at that time worth upwards of $5,000, or more than double the consideration actually paid. Some 43 lots, as I recall it, remained after the execution of the deed of July 5, 1905, and, aside from the value of any houses, these lots were worth upwards of $10,000. Of this 43 lots some 30 still remain on hand.
“Under these circumstances it would be only fair to hold the conveyance to have been a mortgage.
“As to the accounting between the parties, the bill will be treated as amended so as to cover an accounting of the entire partnership matters.
“A decree will be rendered in accordance with these findings holding the deed of July 5, 1905, to have been a mortgage and providing for an accounting before a referee of all matters included in the partnership as to the lands in question.”

The testimony referred to by the chancellor showing that Frolich paid bills in connection with the property after the quitclaim deed of July 5th was given has had much force in convincing me that Frolich did not understand that the conveyance was an absolute sale. The record shows that as late as June, 1906, Frolich paid some taxes on the property conveyed, and prior to that date he paid bills for plumbing, wall paper, lumber, water taxes, and fire insurance in connection with the partnership property, amounting in all to $235. These payments appear on the books as having been made in the due course of business, the same as those made before the quitclaim deed was given. The instances are indeed so rare where one pays an obligation which another is in duty bound to pay that I hesitate to believe that Frolich paid these particular bills except upon the belief that he was still a partner in the copartnership property.

The decree of the trial court should be affirmed, with costs to complainant.

Person, J., concurred with Bird, J.

Brooke, J.

I am unable to agree with the conclusions reached by my Brother Bird in this cause. This court at a very early day laid down certain principles which should govern it when called upon to determine that a deed absolute on its face is in fact a mortgage. In Hunter v. Hopkins, 12 Mich. 227, it is said that:.

“The preponderance of evidence should be clear, and the evidence should be so convincing as to leave no reasonable doubt upon the mind.”

In Case v. Peters, 20 Mich. 298, the court used the following language:

“It would * * * be exceedingly dangerous, and tend to weaken confidence in titles generally, if the effect of deeds of conveyance * * * could be thus changed by a verbal agreement, except in very clear cases, where the contract is proved to the entire satisfaction of the court. It should never be done upon a slight preponderance of evidence. The court should be satisfied beyond a reasonable doubt:”

In Tilden v. Streeter, 45 Mich. 533 (8 N. W. 502), we find the following:

“The party thus seeking to modify the operation of the instrument and prove himself entitled against the terms of his own deed to an equity of redemption is not only bound to make out the transaction was in truth and justice nothing more than the giving of security, but is required to do so by a force of evidence sufficient to command the unhesitating assent of every reasonable mind. Unless the testimony, says the Supreme Court of the United States, is entirely plain and convincing beyond reasonable controversy, the writing will be held to express correctly the intention of the parties.”

In McMillan v. Bissell, 63 Mich. 66 (29 N. W. 737), it is said:

“Clear, irrefragable, and most convincing proofs are required to show that a deed absolute upon its face was intended' as a mortgage. * * * A debt owing to the mortgagee * * * is essential to give the deed the character of a mortgage. The relation of debtor and creditor must appear.”

An examination of cases in this court where relief has been granted and deeds absolute upon their face have been held to operate as mortgages only will show that generally the instrument under consideration was the result of fraud, overreaching, or oppression. No hint of the existence of either element can be gleaned from this record. Both parties were men of mature years, and both were men of extended and unusual business experience.

In a case of this kind the burden rests upon the plaintiff to show primarily that at the time the instrument was executed there was a contract between himself and the grantee in his deed, by the terms of which he agreed to repay to his vendee the consideration advanced, and that thereupon his vendee should re-convey the property to him. An examination of this record discloses that there is an entire absence of evidence to the effect tnat Frolich, the plaintiff, ever agreed to return the $2,500 paid to him by Aikman as consideration for his deed. It may be said that this situation arises by reason of the fact that at the time of the hearing in the court below the defendant, Aikman, was dead, and the plaintiff therefore was prevented from testifying to the facts surrounding the transaction. This is true, and because it is true we are led to a consideration of the peculiar course this litigation has taken. The bill was filed November 8, 1906. An answer categorically denying the material allegations of the bill was filed November 16,1906. A motion for a change of venue was made on December 6, 1906. This motion was supported by an affidavit of the plaintiff to the effect;

“That the opposite party, William Aikman, Jr., has an undue influence over the citizens of said Wayne county, and that an odium attaches to this complainant and applicant and to his cause of action on account of local prejudice.”

Tinder the statute in force at that time the order was made as a matter of course, and the cause was transferred to Macomb county. There it was permitted by plaintiff to slumber from December 10, 1906, to July 7, 1913, a period of about 6% years. In the meantime, and on January 28, 1911, the defendant had died. Under the circumstances, therefore, the rule which requires the plaintiff to make “clear, irrefragable, and convincing proofs” of his claim should not be relaxed, but plaintiff should be held to comply with it most strictly. So far from offering testimony to the effect that at the time of the giving of the deed the plaintiff had borrowed the money from defendant and had agreed to repay the same, we find that on August- 26, 1905, less than two months after the execution of the deed in question, in his bankruptcy proceeding, the plaintiff filed a “true and correct list of all his creditors.” This was prepared by his book-, keeper, Mr. Crawford, was verified by his own affidavit, and defendant’s name does not appear on that list as one of his creditors. If the plaintiff’s claim in the case at bar is true, it is inconceivable that within so short a time after the transaction he could have forgotten the significant fact that he was the true owner of the undivided one-half of the real estate which had been conveyed by the deed, and- that he owed by way of a mortgage thereon the sum of $2,500 to the defendant. •

Plaintiff’s mother, Mrs. Frolich, gave testimony tending to show that the entire transaction was entered upon between her son, the plaintiff, and the defendant for the purpose of enabling the plaintiff to effect a fraudulent and collusive settlement with his creditors in the bankruptcy proceeding. If this testimony is entitled to the slightest credence, the plaintiff, having fraudulently placed his property out of his hands, is in no position to seek the aid of a court of equity. Gage v. Gage, 36 Mich. 229; Nickodemus v. Nickodemus, 45 Mich. 385 (8 N. W. 86); Patnode v. Darveau, 112 Mich. 127 (70 N. W. 439, 71 N. W. 1095).

The learned circuit judge in his opinion said:

“If I could satisfy myself that on July 5, 1905, the sum of $2,500 was a fair consideration for the property sought to be conveyed by the deed, I would be inclined to hold the paper to have been an absolute conveyance.”

Answering this position taken by the learned circuit judge, I desire to state at the outset that there is no proof in the record that the $2,500 check (Exhibit 8), paid by the defendant to the plaintiff at the time the' deed was executed was the only consideration paid. The deed itself recites a consideration of $1 “and other, good and valuable considerations,” and the record shows that several transactions relating to the joint property of the parties had taken place a very short time before the deed in question was made, and that the consideration arising out of the sales of the joint property had gone to the plaintiff. Neither is it very clear upon this record, even supposing $2,500 to have been the sole consideration paid for plaintiff’s one-half interest in the property conveyed, that such consideration was grossly inadequate. Making the proper deductions for mortgages on the property conveyed, the total value of the equity of redemption according to plaintiff’s witness Tait was $6,143. Witnesses on behalf of the defendant placed the value of the property conveyed at a much lower figure, but, assuming Tait’s value to have been correct, the plaintiff’s interest would have amounted to but little more than $3,000, and the discrepancy between that sum and the amount received by him is too small to call for the intervention of a court of equity to relieve him from the results of the transaction upon the ground that it is grossly inequitable. My Brother Bird places some stress upon the alleged fact that plaintiff made certain payments on account of the property conveyed after the date of the deed. This claim on behalf of the plaintiff is based upon the testimony of his bookkeeper, Crawford. Crawford was the bookkeeper of the Frolich Glass Company, owned by the plaintiff, and his testimony with reference to the items in question is confused, uncertain, and to my mind without conviction, but assuming these small payments were in fact made by plaintiff on account of the property lately owned jointly by himself and defendant, and then owned solely by defendant, the fact loses significance when it is remembered that defendant was never advised that plaintiff was making such payments. Under these circumstances the book entries showing the transactions (even if clear and unambiguous) would become mere self-serving statements and entitled to no weight.

I am clearly of opinion, after a careful review of the record, that the decree of the circuit court should be reversed, and plaintiff’s bill dismissed, with costs of both courts.

Stone, Osteandee, Mooee, and Steeee, JJ., concurred with Beooke, J. Kuhn, C. J., did not sit.


author: Bird, J.

text:
    BROWN v. BROWN.
    1. Frauds, Statute of — Lease—Appeal Bond.
    In an action upon an appeal bond from circuit court commissioner to tbe circuit court, tbe defense that tbe tenant bad entered into an oral compromise with tbe plaintiff, bis lessor or vendor, to surrender bis interest in tbe premises, was witbin tbe statute of frauds, under a land contract in writing wbicb provided for forfeiture if tbe vendee of tbe premises failed to perform bis contract of purchase, and that in such event tbe vendee should be liable for rent from a date stated after tbe execution of tbe contract.
    2. Vendor and Purchaser — Land Contracts — Forfeiture — Unconscionable Provisions — Equity.
    Unconscionable provisions in a land contract that might have been injurious to tbe vendee if on foreclosure proceedings tbe vendor bad insisted upon a literal enforcement, would not render tbe contract void where no advantage was taken, and tbe amount computed to be owing was equitably due.

      Error to Chippewa; Fead, J.
    Submitted June 21, 1916.
    (Docket No. 98.)
    Decided March 29, 1917.
    Rehearing denied June 1, 1917.
    Assumpsit by David Brown against Hugh Brown and others upon an appeal bond. Judgment for plaintiff on a directed verdict. Defendants bring error.
    Affirmed.

      Albert É. Sharpe, for "appellants.

      John W. Shine, for appellee..
   Bird, J.

The plaintiff claimed that defendant Brown was occupying his farm in Chippewa county as a tenant, and he brought summary proceedings before the circuit court commissioner to oust him. Judgment of ouster passed, and defendant Brown appealed to the circuit court and gave a bond in the penal sum of $1,200, with the other defendants herein as sureties.; A like result was reached in the circuit court. This suit was then instituted against defendant Brown and his sureties to recover the penalty of the bond. Plaintiff prevailed in this suit, and recovered a judgment for the full penalty of the bond, by direction of the court. Upon these proceedings the defendants have assigned error.

. Plaintiff made out that defendant Brown was his tenant in this way: He sold him the farm in 1903 for $7,000 on land contract, which provided that in case of defendant’s default to perform the contract, the plaintiff might elect to treat him as his tenant, and that, in the event a forfeiture was declared, defendant Brown should be liable for rent of the premises from the 1st day of April following the date of the contract. Defendant Brown defaulted in the performance of the contract and the plaintiff elected to, and did, declare the contract forfeited. The bond upon which the suit was brought provided that if appellant was defeated in the circuit court he would pay all rent due and to become due. Consequently plaintiff showed these facts upon the trial and made proof of the amount due as rent, and after deducting the payments thereon a sum in excess of the $1,200 was found to be due. Defendant Brown finds no particular fault with the figures, if that theory is to prevail; but he defended on the ground that he made an oral agreement with plaintiff whereby he was to have $1,500 out of the sale of the farm, which the plaintiff had arranged with one Godfrey, and that the same was to be paid to him for his interest in the farm before he removed therefrom. The further defense was made that the forfeiture clause was unconscionable and void.

The defense made by defendant, that he agreed with plaintiff for a consideration of $1,500 to surrender his interest in the premises, was properly rejected hy the court, because the agreement was oral, and therefore clearly within the statute of frauds.

The other defense, that the contract was unconscionable and void, is based upon the following provision of the contract:

“But in case this contract is declared void as aforesaid, the said party of the first part expressly agrees to allow as a credit on said rental' all sums paid to him by said second party to apply on the principal of this contract, but will not allow a credit for any interest on principal, tax, assessment, or insurance paid by said party of the second part, or for any improvements made by said party of the second part on said premises, during the operation and life of this contract.”

The provision is rather an unusual one, and, had plaintiff attempted on the trial to compute the rent due in’ accordance with the letter of this provision, we would have been called upon to express some opinion concerning it; but he did not so compute it. The defendant was allowed for all the payments he had made, together with interest thereon. To the annual rental was added annual interest from the date it was due down to the date of the trial. From this was deducted all payments, plus the interest, which defendant had made thereon. We are unable to see how defendant was harmed, even if it be conceded that the provision referred to is unconscionable and void. The' mere fact that this provision might have been injurious to him, if plaintiff had insisted upon a literal enforcement of it, is no ground for complaint.

The trial court properly directed a verdict for the amount of the bond, and the judgment will be affirmed.-

Kuhn, C. J., and Stone, Ostrander, Moore, Steere, and Brooke, JJ., concurred. Person, J., took no part in the decision.


author: Bird, J. Ostrander, J.

text:
    SLIDER v. PERE MARQUETTE RAILROAD CO.
    1. Carriers — Contracts—Injury to Stock — Notice—Verification —Waiver.
    In an action for injury to horses while in defendant’s possession under a contract of carriage which required a claim for damages to be verified by the affidavit of the shipper, said requirement was waived where defendant accepted and acted upon a notice in writing with a detailed statement of the damages claimed, which was attached to the receipt signed by him.
    2. Appeal and Error — Pleading—Notice—Directed Verdict.
    Where defendant carrier failed to plead plaintiff’s failure to give notice in accordance with contract of carriage, in an action for damages to horses, submission of the question to the jury resulted in no injury to defendant, as the court might have directed a verdict for plaintiff as a matter of law.

      3. Carriers — Contracts—Construction—Cause oe Injury.
    A clause in the contract of carriage providing for the carrier’s nonliability was properly construed by the court below to mean that defendant carrier should not be liable for delay from causes beyond its control, and constituted no defense to an action for injuries to stock caused by-the derailment of the train. Ostrander, J., dissenting.
    4. Parties — Receivers—Action—Directed Verdict.
    In an action against a railroad company and its receivers for injuries to stock received while the road was being operated by the latter, a motion for directed verdict in favor of defendant railroad, company should have been granted.
    Error to Grand Traverse; Mayne, J.
    Submitted June 7, 1916.
    (Docket No. 23.)
    Decided March 29, 1917.
    Assumpsit by Thaddeus Slider against the Pere Marquette Railroad Company and Dudley E. Waters and Paul H. King, receivers thereof, for damages to live stock in transit. Judgment for plaintiff. Defendants bring error.
    Reversed as to defendant railroad company and affirmed as to defendant receivers.

      Parker, Shields & Brown (S. L. Merriam and Covell & Cross, of counsel), for appellant receivers.

      John C. Bills, for appellant railroad company.

      J. R. Cropsey (P. C. Gilbert, of counsel), for appellee.
   Bird, J.

In March, 1915, plaintiff tendered to defendant railway at Chicago' 23 horses to be transported to Thompsonville, in this State. The tender was accepted by defendant, but before they reached Thompsonville the train in which they were being conyeyed was derailed, and as a result the horses were more or less injured. The defendants requested the court for a directed verdict on two grounds:

(1) Because of the failure of plaintiff to give notice of Ms claim witMn the time prescribed by the contract of carriage.

(2) Because the derailing of the train was caused by events not under its control, and therefore, under the contract of carriage, it was not liable.

The contract of carriage included the provision:

“That no claim for damages which may accrue to the said shipper under this contract shall be allowed or paid by said carrier, or sued for in any court by the said shipper, unless a claim for such loss or damage shall be made in writing, verified by the affidavit of said shipper or his agent, and delivered to the tariff manager of said carrier at his office in Detroit within five days from the time said stock is removed from said car or cars.”

It is the contention of the plaintiff that there was a substantial compliance with this provision of the contract except as to the verification, and as to that it was waived by defendant. Compliance therewith is shown in the following • manner: Upon delivery of the horses to plaintiff defendant’s agent tendered him a receipt for his signature. Before signing he amended it by inserting over the words “in apparent good order” the words “stock damaged as per statement attached.” In the attached statement the horses were numbered, and a detailed report of the injury to each horse was set forth. This notice was accepted by defendant without protest and acted upon, and at no time did defendant refuse to pay the damages because the notice was not verified, nor did it give notice under its plea that it would rely upon the lack of verification.'

The obvious purpose of the notice is to advise defendant that a claim is made, so that a timely investigation of the facts can be made. The notice appears to have served this purpose, as it was acted upon by employing a veterinary to examine the horses and report their condition from time to time to the station agent. It is not apparent what further information the notice should have contained. The question whether the verification of the notice was waived was submitted to the jury. This resulted in no injury to defendant, as the court might very well have disposed of the question as one of law on the ground that defendant did not plead plaintiff’s failure to give the notice in accordance with the contract. Tobin v. Railway, 192 Mich. 549 (159 N. W. 389), and cases cited.

By reason of the following provision of the contract defendant claims it is not liable for the damage to the horses :

“The said carrier, or any connecting carrier, shall not be liable for or on account of any injury sustained by said live stock occasioned by any or either of the following causes, to wit: Overloading, crowding one upon another, kicking or goring, suffocating, fright, burning of hay or straw or other material used for feeding or bedding, or by fire from any cause whatever, or by heat, cold or by changes in weather, or for delay caused by stress of weather, by obstruction of track, by riots, strikes or stoppage of labor, or from causes beyond their control.”

The trial court held that the facts of the present case did not bring it within any of the exceptions mentioned. He was right in so holding. The words “or from causes beyond their control” have reference to the word “delay,” which precedes them, and should be read the same as though the intervening qualifying words had been omitted, in which event it would have read “or for delay from causes beyond their control.” With this construction the section would have no application to the present facts, because damages are not asked because of delay.

The trial court was requested to direct a verdict in behalf of the defendant Pere Marquette Railroad Company. This motion was denied. We find nothing in the record which would justify the judgment against' the Pere Marquette Railroad Company. At the time the accident happened the railroad was being operated by the receivers.

The,judgment will be affirmed as to the defendant receivers, and reversed as to the defendant Pere Marquette Bailroad Company. The latter defendant will recover its costs against the plaintiff.

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

Ostrander, J.

The contract is not correctly interpreted in the opinion. Beading the contract with the law, I think plaintiff made no case, and that the judgment as to all defendants should be reversed.

Person, J., took no part in the decision.