author: Steere, J. Clark, J.

text:
      In re MAYER’S ESTATE.
    1. Married Women — Common-Law Rule That Husband is Entitled to Wipe’s Earnings Changed by Statute..
    Previous to the passage of Act No. 196, Pub. Acts 1911 (3 Comp-. Laws 1915, § 11478), entitling the wife to her earnings, the common-law rule that a husband is entitled to. the labor and earnings of his wife obtained in this State.
    2. Same — Separation op Husband and Wipe Raises No Implication op Emancipation.
    The bare facts that plaintiff’s husband left her, stayed away,, and failed to contribute to her support (through whose, fault not being disclosed), raises no implication of emancipation entitling her to the proceeds of her labor previous, to the taking effect of said act.
    3. Same — Estates op Decedents — Claim: op Married Woman.
    Where plaintiff, a married woman living apart from her husband, presented a claim against decedent’s estate for services extending over a period of 21% years, held, that the trial judge should have instructed the jury that there-could be no recovery on an express contract nor on-quantum meruit prior to the time Act No. 196 became-operative.
    4. Appeal and Error — Limitation op Actions.
    The application of the statute of limitations, not having been raised in the trial court, cannot be considered here.
    5. New Trial — Evidence—Weight op Evidence — Excessive Verdict.

      Held, that a verdict for $7,800 is, under the law applicable-to the case, against the great weight of the evidence and excessive.
    Moore, C. X, and Clark, X, dissenting.
    On right of married woman to maintain action for board or lodging of, or services rendered to, a third person living in the* home, see note in 46 L. R. A. (N. S.) 238.
    Error to Calhoun; North (Walter H.), J.
    Submitted January 14, 1920.
    (Docket No. 73.)
    Decided April 29, 1920
    Alice Rogers presented a claim against the estate-of Frederick Mayer, deceased, for services .rendered. Deceased left no known heirs, and Alex. J. Groesbeck, attorney general, entered appearance under the statute. The claim was allowed in part by the commissioners, and the attorney general appealed to the circuit court. Judgment for claimant. Contestant brings error.
    Reversed.

      Alex. J. Groesbeck, Attorney General, Duane H. Mosier, Assistant Attorney General, and Hyron H. Nichols, for appellant.

      Bernard J. Onen, for appellee.
   Steere, J.

Frederick Mayer, deceased, was for many years a resident of the village of Homer in Calhoun county, engaged during the greater portion of his residence in keeping a saloon. He died in July, 1917, intestate, leaving an estate consisting of both real and personal property inventoried and appraised in the probate court of said county at a valuation of $8,829.48. He was a single man and died leaving no known heirs at law to inherit his estate. Administration proceedings were instituted in the probate court of Calhoun county and the attorney general entered his appearance in behalf of the State of Michigan under the statute applicable in such cases.

Commissioners on claims were appointed by the probate court and Alice Rogers filed a claim against the estate for services rendered during 2114 years, claiming “the entire estate of said deceased of every nature,” stating of what it consisted substantially as described in the inventory. Various hearings were had before the commissioners on claims, and while the matter was pending she filed an amended claim for damages in the sum of $15,000 for breach of contract for services as deceased’s housekeeper during a period of over 10 years immediately preceding his death, describing the nature of the services rendered, and alleging promises by deceased to her on or about the time she went to his home and on different occasions thereafter that he would in consideration therefor leave all his property to her if she remained in his service and cared for him and his home as long as he lived, which had been faithfully performed on her part. Of the three commissioners on claims two reported her claim as allowed at the sum Of $7,500, the third, who was chairman, reporting his allowance as “amount of final balance in favor of claimant — $500.” The administrator of the estate declined to appeal and the attorney general appealed the proceeding to the circuit court of Calhoun county where it was tried before a jury. At conclusion of claimant’s testimony defendant’s counsel moved for a directed verdict on various grounds, which was overruled, and a verdict followed in her favor for the sum of $7,800. A motion for a new trial by defendant on various grounds was denied and the case removed to this court by writ of error.

. Claimant is a married woman of mature years, separated but never divorced from her husband, Henry Rogers, who for a time was in Mayer’s employ and amongst other duties ran a pool room for him adjoining the saloon. Mayer occupied rooms over the saloon and Rogers lived with his wife and son in an apartment over the pool room. While living with and keeping house for her husband, claimant cared for Mayer’s rooms and did work of various kinds upon the premises, including assisting her husband in preparing luncheons served in the saloon. Her husband left her about May, 1907, since which time he has not lived with or contributed to her support. Their son, who was then a young man, remained for a time tending bar for Mayer but soon thereafter married and Went with his wife to a home of their own.

The case was submitted to the jury on two theories which were pressed by claimant: First, that of a contract between the parties by which deceased was to leave to claimant his property in consideration of her services, for a breach of which contract damages were claimed, and second, that under the proofs, irrespective of any express contract being satisfactorily shown, she was entitled to recover upon a quantum meruit or implied contract for the reasonable value of her services.

Defendant’s assignments of error are based on the contentions that a verdict in favor of the estate should have been directed because there was no contract shown and claimant had already been paid for whatever services she rendered deceased; that if not paid in full she could only recover for services rendered since August 1, 1911, when Act No. 196 of that year (3 Comp. Laws 1915, § 11478) went into effect entitling the wife to her earnings, which before that time belonged to her husband, and that in any event the verdict was against the great weight of evidence, excessive and unsupported by any competent testimony to the extent of the award.

To the general proposition that as a matter of law the husband was entitled to his wife’s earnings prior to 1911, numerous decisions of this court leave no room for debate and are controlling. As the law then stood in this State the common-law rule that a husband is entitled to the labor and earnings of his wife unquestionably obtained. Plaintiff’s answer to this is an implied emancipation by the husband. The record is silent as to the occasion of and particular reason for Kogers leaving his wife. The bare facts that he did go, stayed away, and has not contributed to her support since appear. Why he went or through whose fault is not disclosed. But it does appear that he left her well nested in their former home, and she remained there as Mayer’s housekeeper, well provided for in apparently congenial company and environments, where she was content to continue for many years with but little visible change in conditions and her home life except the absence of her lawful husband, from whom she was never divorced. No legal implication of emancipation for such a contract as is claimed here arises from her husband’s departure under the circumstances disclosed by this record.

Her legal status as a wife and common-law disability as such continued up to the time of this trial except as modified by statute. The married woman’s act of 1855 (3 Comp. Laws 1915, § 11485) only abolished the common-law rule relative to the husband’s marital rights respecting his wife’s distinct, individual property acquired by inheritance, devise, grant, gift, etc. Not until Act No. 196, Pub. Acts 1911, became operative did she acquire the right to her earnings and to make contracts in relation thereto independent of her husband. The law upon the subject of emancipation is recently discussed and clearly stated by Justice Stone in an estate case entitled In re Burnham’s Estate, 207 Mich. 361.

As to the claimed life contract, several witnesses testified to statements by Mayer on different occasions “that Allie (claimant) and Fern (a little girl who lived with her) would get the property when he was through,” that he intended to will his property to claimant and also that he had done so. He in fact made no such provisions, so far as shown. Whatever may have been his expressed sentiments towards her and declarations as to what he had done or was going to do for her, none of their testimony discloses any element of an expressed contract with the possible exception of that by a witness named Markle in which the word “understanding” is especially pointed out and stressed by her counsel as of contractual significance. Markle lived at Albion, where he stated he was in the real estate and insurance business. He testified that he knew Mayer by sight but had never talked with him beyond passing the time of day before an occasion when they happened to meet on a street comer in Albion, and, as he testifies—

“talked about the wet and dry proposition for a few minutes and then he (Mayer) asked me if I knew enough to make a will and keep, my G- — d d — n mouth shut about it, that is the expression he used. • I said yes, I can make you a will and I think I knew enough to keep my mouth shut about it. * * * He said that he had a lady that had been keeping house for him a good many years and the understanding was when she went to. keeping house for him that if he had any property at his death and she was. living, that he wanted her to have that property. He wanted to make a will to that effect. * * * He said he would be up in a few days but didn’t come. I don’t think he ever mentioned the will to me after that. Never came back again to have the will drawn.”

An understanding that if she survived Mayer “he wanted her to have that property” does not compass the essential elements of an express contract, agreement or promise on his part that if she would remain with and keep house for him, “look after his wants and necessities until his death, he would leave her all his property.” This testimony also shows that the mentioned understanding was “when she went to keeping house for him,” which was some years before Act No: 196 of 1911 was passed and her disability as a married woman to independently contract in relation to her services had not yet been removed. The jury should have been instructed that there could be no recovery on an express contract, nor on quantum meruit prior to the time Act No. 196 of 1911 became operative.

Application of the statute of limitations, suggested at the argument of this, case, does not appear to have been pleaded or urged by defendants before the trial court, or covered by any assignment of error, and cannot be considered here.

As the case must be remanded for re-trial, it is deemed sufficient without further discussion of the evidence at this time to state that upon this record it is the opinion of the court that the verdict is, under the law applicable to the case, against the great weight of evidence and excessive.

For the foregoing reasons the judgment is reversed and, a new trial granted.

Brooke, Fellows, Stone, Bird, and Sharpe, JJ., concurred with Steere, J.

Clark, J.

(dissenting). The period covered by plaintiff’s claim for services was 10 years immediately preceding Mayer’s death. For a period of 12 years immediately preceding Mayer’s death plaintiff had been wholly abandoned and unsupported by her husband. With the cause of the separation of this husband and wife we are not concerned. Because of the abandonment of plaintiff by her husband and his entire failure to support her she was free to work and receive wages, and to contract as to her services. That a wife might become emancipated from the disability of coverture respecting her earnings was recognized. In re Burnham’s Estate, supra. See, also, Schoenberg v. Voigt, 36 Mich. 310; 13 R. C. L. p. 1090; 21 Cyc. p. 1406. As to a wife’s right to contract and be liable for medical aid it was said in Carstens v. Hanselman, 61 Mich. 426:

“Where a husband utterly deserts his wife, it would be a cruel rule for her if she cannot, in his absence, * * * make a binding agreement for any necessary, whether articles to be purchased or professional help, without becoming a public charge.”
“A married woman whose husband is a nonresident. and has lived apart from her for six or seven years, during which time she has provided her own support, • may, in an action for personal injuries, recover for medical attendance, although the physician’s bill was unpaid when the suit was commenced.” Lammiman v. Railway Co., 112 Mich. 602 (quoting from syllabus).

The testimony of the witness Markle and the testimony of other witnesses as to declarations and statements of the deceased made an issue of fact for the jury as to whether a contract had been made respecting plaintiff’s services.

“It is true, as urged by the counsel for the estate, that neither of these witnesses testified to the contract in the exact terms set out by the claimant, but we do not think it can be said that this testimony has no' tendency to prove such a contract. It cannot be supposed that the decedent would go over in detail the terms of his contract with the claimant with every casual acquaintance. These witnesses’ testimony, however, tends to show that there was a contract between decedent and claimant, by the terms of which claimant had agreed to stay with decedent until his death, in consideration of which he, decedent, had agreed to ‘do well by her.’ ” In re Thompson’s Estate, 157 Mich. 669.
“There was abundant testimony tending to rebut the presumption that the services were rendered gratuitously, and the court was fully justified in submitting that question to the jury. The testimony tended to show that the services were performed with the mutual understanding that at the death of Marie L. Williams, claimant should succeed to the estate, and that decedent had agreed to make a will accordingly. When a promise is made to compensate for services by will, and the promisor dies without so providing, the value of the services may be recovered as a claim against the estate.” In re Williams’ Estate, 106 Mich. 490.

See, also, Shane v. Shearsmith’s Estate, 137 Mich. 32; Sykes v. City Savings Bank, 115 Mich. 321; La throve v. Sinclair, 110 Mich. 329; Luizzi v. Brady’s Estate, 140 Mich. 73; Sammon v. Wood, 107 Mich. 506.

The other assignments of error have been examined and no prejudicial error calling for reversal being found the judgment should be affirmed, with costs to the plaintiff.

Moore, C. J., concurred with Clark, J.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    BLICKLE v. BOARD OF EDUCATION OF THE CITY OF GRAND RAPIDS.
    Mandamus — Moot Question — Schools and School Districts.
    Where, in mandamus proceedings to compel the board of education of the city of Grand Rapids to admit a female child to school, it appears by the record that the child has now reached the age of 16 years, thus presenting a moot question, the court will decline to consider it.
    Certiorari to superior court of Gfand Rapids; Dun-ham (Major L.), J.
    Submitted April 20, 1920.
    (Calendar No. 29,080.)
    Decided April 29, 1920.
    Mandamus by Lillie Blickle and another to compel the board of education of the city of Grand Rapids to admit a child to the schools. From an order granting the writ, defendant brings certiorari.
    Writ dismissed.

      Ganson Taggart, for appellant.

      Shelby B. Schwrtz, for appellees.
   Per Curiam.

This is a proceeding to compel the ooard of education of the city of Grand Kapids to admit a female child to one of the graded schools of the city. It is suggested on the record by the plaintiffs and admitted by defendant that, the child having now reached the age of 16 years, any order now made would be without force or effect. A moot question is thus presented. This we must decline to consider. Carlson v. Wyman, 189 Mich. 402; Brown, ex rel. Van Buren, v. Lawrence, 197 Mich. 178; Ideal Furnace Co. v. Molders’ Union, 204 Mich. 311.

Writ dismissed, without costs to either party.


author: Moore, C. J.

text:
    FEILY v. BAY VIEW CAMPGROUND ASSOCIATION OF THE METHODIST EPISCOPAL CHURCH.
    1. Municipal Corporations — Taxation — Constitutional Law— Compromise and Settlement.
    Where there was a difference of opinion as to whether Act No. 108, Pub. Acts 1907, repealed Act No. 57, Pub. Acts 1901, under which defendant campground association is incorporated, and by section 22 of which it was provided that defendant should expend its highway taxes upon the streets and highways running through its grounds, a settlement of a controversy arising between defendant and the officers of the township, as to the right of the township to collect highway repair and road taxes assessed against defendant, all parties acting in good faith, held, legal and binding upon the township, which could not be set aside. at instance of interested taxpayers of said township.

      2. Same — Supervisor is Legal Agent of Township.
    Under 1 Comp. Laws 1915, § 2115, the supervisor of a township is its legal agent for the transaction of all legal business, by whom suits may be brought and defended, and upon whom all process against the township shall be served.
    Appeal from Emmet; Shepherd (Frank), J.
    Submitted October 16, 1919.
    (Docket No. 58.)
    Decided April 29, 1920.
    Bill by John Feily and others against the Bay View Campground Association of the Methodist Episcopal Church and others to set aside a settlement for the payment of taxes. From a decree for plaintiff, defendant association appeals.
    Reversed, and bill dismissed.

      Wade B. Smith, for plaintiffs.

      Thomas, Shields & Silsbee, for appellant.
   Moore, C. J.

The Michigan Campground Association was incorporated in 1876, and the land described in the bill of complaint in this case was donated to it by citizens of Petoskey. The association did not perform highway labor tax on the highways of the township, nor did it commute the same. In 1890 it was reincorporated under Act No. 39 of Public Acts of 1889 (2 Comp. Laws 1915, § 10062 et seq.), tailing the name “Bay View Campground Association of the Methodist Episcopal Church,” which is one of the defendants. The title of that act reads:

“An act to authorize the formation of corporations for the purchase and improvement of grounds to be occupied for summer homes, for camp-meetings, for meetings of assemblies or associations and societies organized for intellectual and scientific culture and for the promotion of the cause of religion and morality, or for any or all of such purposes.”

In 1901, by Act No. 57 the legislature amended Act No. 39 of the Public Acts of 1889, under which appellant is incorporated. Section 22 of Act No. 57 (2 Comp. Laws 1915, § 10083) reads:

“All moneys assessed, levied and paid upon the property of such association for highway purposes, including labor, tax or assessment, shall be expended and laid out upon the highways and streets upon or running across the lands of the association at such time and times, at such place and places, and in such manner as shall be directed by the board of trustees, or by the association’s superintendent of the grounds: Provided always, That such expenditure shall not in any manner do away with, lessen or abridge the jurisdiction and control of the association or its trustees over or upon such streets and highways hereinbefore granted.”

By Act No. 108, Public Acts of 1907, the legislature adopted a method for raising and expending highway taxes, radically different from that theretofore in force, and repealed all laws, acts and parts of acts contravening the provisions of said Act No. 108. It is the claim of the defendants that this act did not affect in any way the provisions of section 22 above quoted.

There was assessed upon and levied against said land for each of the years 1909, 1910, 1911 and 1912, a “highway improvement tax” and a “road repair tax.” The defendant was advised that the township could not collect these taxes so levied because of the provision of section 22 before quoted. It paid the State, county, township and all other taxes assessed against it except these highway taxes. Conferences were had between the officers of the association and the township officers looking to 'a settlement of the controversy.

We quote from the testimony of the supervisor 'of the township as to what occurred:

“I was supervisor for the years 1909, 1911, 1912 and 1913; I was not for the year 1910. As supervisor I was familiar with the assessment against the Bay View Campground Association for the highway improvement fund, and for the road repair tax fund for the years 1909, 1911 and 1912. I was familiar with these funds and taxes for the four years in controversy. I knew of the controversy between the township and the Bay View Association, and as to whether these were legal taxes against the association. * * *
“I am the George Kilborn, supervisor, spoken of in the record, and was at the meeting on August 7th, or 8th. E. J. Shanley was present and two justices were present at the meeting. At that meeting Mr. Smith was present, and Mr. Gordon, and the prosecuting attorney of this county, Mr. Sweeney, was present. The purpose of the meeting was to get some agreement or adjustment on the tax question. * * *
“Q. An agreement as to what?
“A. Why, some settlement that would be satisfactory to the Bay View Association and the township, both, as to both the highway repair and road tax fund. They were both discussed and given consideration for the purpose of settling the controversy between the township and the association as to what should be done with those taxes. I have been supervisor for several years, and knew all the facts and circumstances concerning the claims of the association as to whether or not they should pay those taxes, and also as supervisor of the township I know all the facts and circumstances concerning the claim of the township as to those funds, and was thoroughly familiar with the claims on both sides as to the amount of the taxes. I think that was true of the other members of the board who were there that day. I was satisfied' that day that myself and the other members of the board thoroughly understood the rights of the township and the claims of the township, and that Mr. Gordon and Mr. Smith understood the facts and circumstances from the point of view of the Bay View Campground Association. The matter was pretty thoroughly discussed by all the parties present. Mr. Sweeney, the prosecuting attorney, entered into the discussion and we consulted him in regard to the manner in which we could release this repair fund. I think we had consulted him previous ’to this day. * * * In the talk there we finally
came to an agreement as to how the controversy as to these taxes between the township and the association should be settled, and compromised that the association should pay the highway improvement fund; that the association should retain the road repair fund for these four years, and as a part of the agreement the association was to pay the collection fee of $172.50 but no interest was to be paid on either fund. All of these items were thoroughly discussed and considered by all of us at that date. In making the agreement and settlement I felt that that was a proper and fair settlement under the claims of the parties under the conditions, and I still think so, and whatever action grew out of that agreement was pursuant to, and carrying out the agreement that was made there, and the Bay View Campground Association actually paid the highway improvement fund and the collection fee. The road repair fund and the interest was covered on the books of the township in the bookkeeping between the county and the county treasurer, and that charge credited back to the account. These taxes were due the township. All the taxes in controversy were for sums due the township. I, as supervisor, approved the settlement agreed upon, and did everything I could as supervisor to carry out the agreement, and did it in good faith. I knew of nothing connected with that transaction that was unfair, dishonorable or dishonest, nor did I know of anything that any one did that day that I considered unfair, dishonorable or dishonest. All the parties seemed to be acting in good faith, and after a full and complete discussion the settlement was arrived at and was carried out. The act under which this company was organized and the section 22 was there read and discussed.”

Mr. Gordon testified in part as follows:

“My home is at Howell, Michigan, and I am an officer of the Bay View Campground Association, and as such have been active in the management of the business of that association for some years past, some ten or twelve years. I am the Thomas Gordon spoken of as being present at the meeting of the Bear Creek township board on the 7th of August, 1913. Judge Smith was there with me.
“Q. What was the purpose of that meeting, and what happened?
“A. We were not getting any benefit from the road repair tax that we were paying as applied to our road and ground, which are open to the public, and used by the public, and we had previously used that portion, to the amount of about $500 per year, for repairs for our roads that are open from all sides-, and it was refused to us entirely, but assessed to us- just the same, and we sought some relief from that. We were advised that we withhold about the amount that we had been accustomed to use, and did so upon legal advice, and we wanted it settled. It ran several years. We wanted it in some tangible form that could have a conclusion to it, and therefore we sought the settlement with the township board for arriving at the conclusion that has been mentioned.
“Q. Did the association pay all of its other taxes except the highway improvement and road fund?
“A. As treasurer, I know that to be so. The association refused to pay the road repair fund.
“Q. State whether or not they claimed that was an illegal tax against them, and should not be assessed or levied against them.
“A. Because the articles of association gave us that privilege that way, and because of that law our association refused to pay the taxes. And these taxes for 1909, 1910, 1911 and 1912 have been returned as unpaid, and the meeting of the township board with myself and Judge Smith was for the purpose of adjusting the differences between the association and the township as to those two taxes. The prosecuting attorney of the county was there. He did not represent the Bay View Campground Association in any way. The whole subject of these taxes and our rights was discussed and debated at that meeting, fully, and as a result a settlement of the then existing claims for taxes was arrived at, the same as the one shown here in this testimony. Under the agreement reached at that meeting, the Bay View Campground Association was to pay the highway improvement fund and it did pay it, and the township relinquished or released or left with the Bay View Campground Association, the road repair tax, and that was kept by the association. During that negotiation for the settlement, no opinion or fact was kept or suppressed in any way. It was a frank, fair, open and honest settlement, and every man taking part in it was. sincere about it. There was no controversy between the association and Bear Creek township that was not compromised and settled at that time, and since that time the township of Bear Creek, through its officers, has not made any claim against the association for those taxes since the settlement of August 7, 1913, nor has any official of the county, nor any official of the State. In that negotiation I acted in good faith, believing that was a proper settlement and adjustment of the matter.
“Cross-examination: The law under which we were advised to withhold the highway taxes was section 22 of the act under which the association was organized.. * * *
“Redirect-examination: Q. Mr. Gordon, this money that was retained by the association designated here as road repair fund, was that actually expended on the streets of the association, or an equivalent amount?
“A. An equivalent amount, I think, or more than that.
“Q. Running through the grounds of - the association there is one street, Woodland avenue, is there not, that is a county road?
“A. Yes.
“Q. Is there any other public road through there?
“A. They are open to the public and used by the public.
“Q. I am speaking in a legal sense, as to whether they are owned by the public or not.
“A. Well, I could not say as to that.
“Q. Are all the streets open for use of the public for any one that desires to use them?
“A. There is no restriction.
“Q. Are they used promiscuously by the public?
“A. They are, yes, sir.”

Circuit Judge Clement Smith testified in substance the same as Mr. Gordon.

Each of the 18 plaintiffs is a resident taxpayer in said township, and each is the owner of taxable property therein to the value of more than one hundred dollars. They were not satisfied with the settlement which was made and filed this suit to have it set aside and to have the lien for said unpaid taxes and interest declared, the tax receipts and records invalidated as evidence of payment, that the auditor general of the State of Michigan may have authority and that it may become his duty to foreclose said lien in the manner provided by law.

It is the claim of the plaintiffs:

“That Act No. 57 of 1901 is invalid,
“1. Because it has been repealed by Act No. 108, Pub. Acts 1907, with which it is the ‘irrepressible ■conflict.’
“2. That it is unconstitutional,
“a. Because it is in conflict with section 9, art. 10, of the Constitution of 1908, which forbids the power of taxation being surrendered or suspended by the State or any municipal corporation.
“6. Because it seeks to place public funds outside of public control. Detroit Museum of Art v. Engel, 187 Mich. 432.
“c. That no declaration of the township board could render an invalid statute valid.”

The circuit judge expressed himself as follows:

_ “Passing by the other objections urged by the plaintiffs, and some of them have much merit, it appears very clear to me that the act in question is unconstitutional for reasons stated in a long line of Michigan cases from People v. Salem, 20 Mich. 452, down to the recent case of Detroit Museum of Art v. Engel, and that no declaration or action of the township' board could put life into it,”

—and granted the relief for which plaintiffs prayed. The case is brought here by appeal.

Was it so clear in 1913, that Act No. 108, Public Acts of 1907, repealed Act No. 57, Public Acts of 1901? It does not purport to do so in terms. It does not refer to Act No. 57 either in its title or in the body of the act. The last named act provides for the formation of corporations, having among their purposes the holding of camp meetings and societies for educational purposes, “and for the promotion of religion and morality.” It is a matter of common knowledge that the property of churches, colleges and schools is exempt from taxation. If the legislature by the passage of Act No. 108, Public Acts of 1907, had intended to withdraw the privilege granted the defendant association by section 22, Act No. 57, Public Acts of 1901, would it not have made some specific reference to the last mentioned act? Was it so clear in 1913, that lawyers and judges might not disagree and that litigation might not arise growing out of a difference of opinion in relation thereto? The very fact that we have the litigation involved in the instant case answers some of these queries. The defendant paid all taxes assessed against it except those mentioned in section 22. As to those no one had any interest in them except the township and its inhabitants on the one side, and the defendant and its members on the other. The county treasurer was a witness as to what was done by him. We quote:

“Q. And by whose advice did you receive it and treat it as cash?
“A. By the prosecuting attorney, Mr. Sweeney.
“Q. If you had received cash for the road repair taxes, and the interest, what would you have done with it?
“A. I would have turned it over to Bear Creek township on the township quarterly settlement.
“Q. So that order took the same procedure exactly as cash would have taken if cash had been paid to you?
“A. Yes, sir.”

The opinion in Port Huron Engine & Thresher Co. v. Port Huron Township, 191 Mich. 590, had not been handed down in 1913.

There then being an honest dispute, could the township officers agree upon a settlement which would bind the township, or must the dispute be settled by expensive litigation? By the provisions of section 4035, 1 Comp. Laws 1915, the taxes when assessed became a debt to the township.

Section 2115, 1 Comp. Laws 1915, provides:

“Be it enacted by the senate and house of representatives of the State of Michigan, That the supervisor of each township shall be the agent for his township, for the transaction of all legal business, by whom suits may be brought and defended, and upon whom all process against the township shall be served.”

See Township of Bangor v. Transportation Co., 112 Mich. 601; Township of Deerfield v. Harper, 115 Mich. 678; Belknap v. Township of Benton, 169 Mich. 58.

In Hulburt v. Defendorf, 58 Hun (N. Y.), 585, there is an interesting discussion of the power of a supervisor to make a settlement of pending litigation in which his power was upheld. See, also, Town of Cabot v. Britt, 36 Vt. 349.

The record is persuasive that all parties to the settlement were acting in good faith. We have not overlooked People v. Salem, 20 Mich. 452, and Detroit Museum of Art v. Engel, 187 Mich. 439, cited by counsel, but think a reference to them will show they are clearly distinguishable from the instant case.

The decree of the court below is reversed and the bill of complaint dismissed, with costs to defendants.

Steere, Brooke, Stone, Bird, and Sharpe, JJ., concurred. Fellows and Kuhn, JJ., did not sit.


author: Steere, J.

text:
    CLEMENTS v. McCABE.
    1. Municipal Corporations — Pólice Power an Attribute oe State Sovereignty — Delegated Powers.
    The governmental authority known as “police power” is an inherent attribute of State sovereignty, and only belongs to subordinate governmental divisions when and as conferred by the State either through its Constitution or constitutionally authorized legislation.
    2. Same — Police Power for Protection oe Health, Person and Property.
    As generally understood, the police power operates in a conceded sphere relating to. public safety, order and morals for the protection of health, person and property, but beyond the comparatively narrow limits of such necessary implication, the police power, like any other power conferred on a municipality, must be expressly delegated by the Constitution or legislature of the State.
    3. Same — No Inherent Power in City to Zone its" Territory.
    There exists no inherent power in a city in this State, nor can such power be implied from its mere incorporation as such, to provide by ordinance for zoning its territory, protecting its residential areas from objectionable • businesses, etc.
    4. Same — "Kegulate”—“Prohibit”—Police Power.
    To “regulate” a business, trade, occupation or amusement under the police power contemplates that it may be engaged in subject to preseribea rules or methods deemed essential for public peace, health, and safety, while"to “prohibit” indicates to prevent or do away with the same entirely.
    5. Same — Delegated Powers.
    When such powers are delegated to municipalities by the legislature it must be done in express and unmistakable terms.
    6. Same — Detroit Charter — Ordinances—No Delegated Power to Zone its Territory.
    Where neither the Constitution nor general act passed pursuant to it, providing for the incorporation, of cities, have conferred upon them the police power of zoning their territory into areas, an ordinance of the city of Detroit providing for such zoning is void.
    Certiorari to Wayne; Hunt (Ormund F.), J.
    Submitted April 6, 1920.
    (Calendar No. 29,173.)
    Decided May 10, 1920.
    Mandamus by Charles H. Clements to compel John C. McCabe, commissioner of buildings and safety engineering, and others to issue a building permit. From an order granting the writ, defendants bring certiorari.
    Affirmed.

      Clarence E. Wilcox, Corporation Counsel, and James H. Lee, Assistant Corporation Counsel (Edward M. Bassett, of counsel), for appellants.

      Douglas, Eaman, Barbour & Rogers, for appellee.
   Steere, J.

In this proceeding defendants seek review and reversal of an order of the Wayne county circuit court granting plaintiff a writ of mandamus to compel said defendants John C. McCabe, commissioner of buildings and safety engineering, George Engel, commissioner of public works, and Edward G. Heckel, commissioner of parks and boulevards, to issue him certain permits in accordance with existing municipal regulations of the city of Detroit, authorizing plaintiff to construct an automobile battery service station upon a described lot owned by him in said city.

Said lot fronts 55 feet on West Grand Boulevard and is located just south of Michigan avenue, which is a main thoroughfare and business street of the city. No building restrictions running with the title rest upon said lot limiting the owner’s use and enjoyment of the same, nor upon any other lots in the block or subdivision to which it belongs. Plaintiff desired, and presented an application for, permission to erect on said lot in compliance with the building ordinance or code of Detroit a building to be used as an automobile battery station in which it was proposed to keep, sell and repair automobile storage batteries. It is not disputed that the application was in due form and the planned building fully complied with the building code and all legal ordinances or regulations of the city then in force. It was filed October 21, 1919. A short time previous to his filing said, application the common council of Detroit, acting upon a petition presented by certain residents on West Grand Boulevard in the neighborhood of the lot in question, passed a resolution instructing the heads of the three departments named not to issue the permits requested by plaintiff and they refused to do so in compliance with such instruction.

Following their refusal plaintiff filed his petition on October 29, 1919, in the circuit court of Wayne county, asking for a writ of mandamus to compel the issuance of the permits he had applied for, and obtained an order to show cause made returnable November 11, 1919. Defendants made answer thereto denying that “the common council of the city of Detroit is without power to restrain or interfere with the use and enjoyment of real estate in the city of Detroit,” and on November 12, 1919, filed an amended answer showing, among other things, that an ordinance was introduced in the common council of the city on November 4th, the same being entitled:

“An ordinance to provide for the zoning for residential purposes of all that portion of the West Grand Boulevard extending from Fort street west, north to Michigan, and within the city of Detroit; to provide for the enforcement of said ordinance; and to provide a penalty for the violation of the terms hereof.”

And on November 19,1919, an ordinance was passed by the common council of the city, to become effective November 25, 1919, entitled:

“An ordinance to provide for the zoning and protection of certain residential areas within the city of Detroit, and to prevent the location, building, construction, or maintenance of certain designated objectionable businesses in certain areas; to provide for the enforcement of said ordinance; and to provide for a penalty for the violation of the terms hereof.”

This ordinance is set out in the pleadings at length, its most material portion being sections 1 and 2 which are as follows:

“Sec. 1. That whenever sixty per cent. (60%) or more of the frontage in any particular block of any street, avenue, boulevard, or public place within the city of Detroit is used exclusively for residential purposes (including the grounds thereof) it shall be deemed and considered a residential zone.
“Sec. 2. From and after the date of this ordinance it shall be unlawful for any person, or persons, firm or corporation to locate, build, construct or maintain any public garage, livery, boarding or sale stables, automobile, battery or accessory service station or other business which is or may be dangerous, offensive or detrimental to the public health, morals, comfort, safety or general welfare of the city of Detroit in any block in which sixty per cent. (60%) of the frontage of said block is used exclusively for residence purposes, including the grounds thereof.”

A penalty is provided for violation of said ordinance with a mandate prohibiting departments of the city from issuing permits for erection of the forbidden buildings within such zoned district, concluding with the overworked legislative pronouncement that said ordinance was “immediately necessary for the preservation of the public peace, health and safety and is hereby given immediate effect.”

Chapter 10, title 4, of the 1918 charter of the city of Detroit provides for a “city plan commission” of nine members, to be appointed by the mayor, with various provisions as to its powers and duties, amongst which subdivision (d) of section 7 of said chapter provides that it—

“(d) Shall formulate a plan to regulate and restrict the location of trades and industries and the location of buildings designed for specific uses, to regulate and limit the height and bulk of buildings hereafter erected, and for such purposes to divide the city into zones in such number, shape and area as may seem best suited to carry out a definite plan for the betterment of the city, and upon its approval and adoption by the common council, shall have the power and authority to enforce its provisions ”

Touching the activities of said commission as authorized by the chapter of the charter devoted to that subject, it is said in the trial court’s opinion—

“The ordinance in question, so far as it appears, is the first concrete result in the way of legislation. The city plan commission, however, have issued some pamphlets relative to its work from which it appears that most of the time of the commission so far has been spent in making- a survey and inventory of the entire situation in Detroit, it being intended ultimately to divide the entire city into zones under classification substantially as follows: (a) First residential (single family homes), (b) Second residential (flats, apartment houses, hotels, etc.), (c) Commercial. (d) Industrial, (e) Unrestricted (without restriction as to the nature of their use, provided same is not prohibited by law or ordinance).”

We find nothing in the record of this case showing any city plan formulated by the commission under the provision of the charter quoted, upon which the city council acted in passing the ordinance in question; but so far as appears the council was moved to enact it by a petition of certain private property owners on West Grand Boulevard between E street and Michigan avenue, while formulation of a general plan by the commission dividing the city into zones as provided in chapter 10 for the common council to approve and adopt, might with force be urged as a prerequisite to the enactment of a zoning ordinance for the city. That question, however, seems to have been avoided by common consent and upon hearing before the circuit court it was also conceded by counsel that in order to test the validity of said ordinance in its broader aspect it might be considered as having been passed at the time of the hearing.

Testimony was taken upon certain issues of fact framed by stipulation as to the nature of the business of maintaining and operating an automobile battery service station, and under the showing made it was claimed for plaintiff, among other things, that the ordinance was invalid because unreasonable and discriminatory, but the chief contention in his behalf and point made prominent in debate both in that court and here is the right of the municipality to impose such restrictions by a general zoning system upon otherwise unrestricted property within its confines, and the trial court did not deem it necessary to pass upon any issues of fact presented or contentions of counsel in relation thereto and granted the writ of mandamus asked, filing an opinion in which it was held that under the undisputed facts the common council of the city of Detroit was without authority to enact such ordinance; that as the law now stands in this State the zoning power assumed to be exercised by the common council does not exist, because not expressly conferred upon the city by either the so-called “home-rule” provision of our Constitution or by the supplemental legislation passed pursuant thereto, providing for incorporation of cities and revising or amending their charters. Referring to that portion of article 8 of our present Constitution which deals with “cities and villages,” and legislation subsequently enacted for their incorporation in compliance with its requirements the court pursued the subject in part as follows:

“Under the Constitution of the State the legislature alone is the reservoir of power to enact laws. It is true that the legislature may delegate it to the several municipal authorities, and the question arises, Has the legislature unmistakably delegated these powers to cities generally in this State, or to the common councils thereof?
“The Constitution of Michigan, article 8, § 20, provides, among other things:
“ ‘The legislature shall provide by a general law for the incorporation of cities.' * * *
“Section 21:
“‘Under such general laws, the electors of each city and village shall have power and authority to frame, 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.’
“In. section 22 cities and villages are given permission to acquire, own, establish and maintain parks, boulevards, cemeteries, hospitals, almshouses and all works which involve the public health or safety.
“Section 23 provides, among other things:
" ‘Subject to the provisions of this Constitution, any city or village may acquire, own and operate public utilities for supplying water, light, heat, power and transportation,’ etc.
“Section 24 relates to the powers of a city or village, to issue mortgage bonds.
“Section 28, among other things, provides:
“ ‘* * * The right. of all cities, villages and townships to the reasonable control of their streets, alleys and public places is hereby reserved to such cities, villages and townships.’
“A careful search of the Constitution fails to reveal any special provision delegating to cities the power to regulate, control or restrict the use of real estate as provided by the ordinance in question.
“Turning now to the home-rule act, so-called, being Act No. 279, Pub. Acts 1909, as amended (1 Comp. Laws 1915, § 3304), we have searched in vain to find any special provisions delegating to cities the power to regulate, control or restrict the use of real estate-as provided by the ordinance in question. If such power exists, it must be by implication.”

After some further reference to the act the learned circuit judge expressed “sympathy with the aims, purposes, practicability and necessity of legislation sought by the city plan commission of Detroit,” of which he had made a study, but arrived at the conclusion that enabling legislation to that end was requisite and the ordinance invalid, citing as impelling to that view City of Kalamazoo v. Titus, 208 Mich. 252, applying it as follows:

“It is true that the subject-matter in that case is-quite distinct from the one now under consideration, but the principle involved is identical, the question there being as to whether under the Constitution and home-rule act the matter of regulating gas rates had been specifically delegated to the city. It was argued in behalf of the city that Kalamazoo had adopted a charter by referendum which conferred this power, but the Supreme Court held that there seemed to be a popular misunderstanding about the subject of home rule and, in effect, held that a city could not adopt a charter and thereby obtain any extension or enlargement of the subject of municipal legislation and control except as those subjects and powers are specifically enumerated and designated in the Constitution itself and in the home-rule act.”

In behalf of this city it is contended that this ordinance is a valid initiatory step in a proposed zoning system of the entire city under its charter provision quoted, taken in the exercise of that elastic and well known but as yet not well defined or clearly circumscribed governmental attribute termed “police power,” with which the city is endowed both by constitutional provision and legislative enactment. This is claimed to have been derived from three sources or through three channels, to wit, first, conferred by implication from the bare fact of its creation as a municipality, even prior to and independent of the home-rule act or our present Constitution, the second, by section 21, article 8, of the Constitution itself giving to each city authority to adopt or amend its charter after the enactment of a general law upon the subject, and to pass ordinances “relating to its municipal concerns,” and, third, by the language of the home-rule act.

Counsel on each side of the controversy have favored us with able and helpful briefs which both well debate the direct and controlling question involved, and in their amplifications also instructively lead far afield into the merits of the zoning system and along the less trodden ways on the outposts of police power, but, as we are constrained to view it, many of the alluring questions discussed are beyond the purview of the issue before us for determination at the present time.

The governmental authority known as “police power” is concededly an inherent attribute of State .sovereignty. It only belongs to subordinate governmental divisions when and as conferred by the State either through its Constitution or constitutionally authorized legislation. As generally understood it operates in a conceded sphere relating to public safety, order and morals for the protection of health, person and property, which is never questioned; but with changing conditions and requirements of our modern civilization, increasing regulatory and restrictive legislation has expanded its application to new subjects qnd demands presenting a debatable sphere where compulsory control borders the line of claimed constitutional rights and private freedom of action.

We may admit that the legal incorporation and organization of a city for local governmental purposes necessarily invests it with certain primary police powers within the conceded sphere of such power fundamentally essential to the ends for which it was created. But beyond the comparatively narrow limits of such necessary implication the police power, like any other power conferred on a municipality, must be expressly delegated by the Constitution or legislature. of the State.

The assumed power of the city to zone its territory according to the extensive project in so-called “municipal evolution” indicated by this ordinance is yet clearly within the debatable sphere of police power. No such inherent zoning power exists or can be implied in this State from the mere incorporation of a city as sucn.

Of the invoked constitutional and legislative authority it may first be noted that no hint of recognition of any scheme for municipal evolution on a general zoning basis is manifested by direct mention of the subject or suggestive wording pointing in that direction. It is beyond question that, when the people of this State adopted their Constitution, police power was placed in the legislature, except as distinctly reserved or conferred elsewhere. The constitutional provision conferring upon cities a greater degree of governmental independence in their strictly local concerns and the right under certain conditions to adopt, revise and amend their charters is not framed as a self-executing provision, but contemplates, and requires, that the legislature shall supplement it by enactment of a general law for the incorporation of cities. Upon the scope of such law only a few definite constitutional limitations are set, with certain enumerated rights given to cities when so incorporated. The right contended for here is not amongst those specified.

In support of the contention that the police power invoked was directly delegated to cities by the Constitution, counsel point to the provision in section 21. of article 8 authorizing a city to pass all laws and ordinances “relating to its municipal concerns,” and assert, truthfully, that these words are “very broad.” They are also very general and indefinite words which cannot fairly be construed to plainly designate in concrete terms, or even suggest, a direct constitutional grant of power to cities of such unusual scope and far-reaching possibilities as the yet in many respects debatable police power sought to be exercised in the proposed zoning plan.

To whatever extent this proposed zoning system may be desirable and might prove feasible, power to enforce it is not a necessary power yet recognized as essential to local government. Upon defendant’s theory that police power to that extent is a direct grant to the city from the Constitution the following reflections in City of Kalamazoo v. Titus, supra, are significant:

“The impressive thing about these constitutional provisions (in article 8) is that they recognize and affirm the theory that cities owe their origin and their powers to the legislature. And while cities may refer power to do some things as, for example, power to acquire certain public works, directly to some of these constitutional provisions, it must be admitted that all of these provisions should be considered with reference to the fact that legislative power is vested in the legislature and that the Constitution recognizes, as former Constitutions have recognized, the general control of the legislature over cities.”

Neither is this unusual and yet debatable police power claimed specifically designated in the so-called “home-rule” act itself, passed in compliance with the constitutional mandate (Act No. 279, Pub. Acts 1909), as originally enacted or subsequently amended, and what has been said of the necessity that such power must be expressly granted is equally applicable to constitutional provision or legislative enactment and need not be repeated. The following language of that por-, tion of the act outlining what each city charter shall or may provide is emphasized as impliedly conferring the zoning power claimed:

“Sec. 3. Each city shall provide: * * * (g) For the public peace and health and for the safety of persons and property; * * *
“Sec. 4. Each city may in its charter provide: * * * (d) For the regulation of trade, occupations and amusements within its boundaries, and for' ‘the regulation and restriction of the territory within which saloons where intoxicating liquors are sold at retail, may be located, but no charter shall permit the sale of such liquors in any county where such sale is prohibited by operation of the general local option law of the State.”

The mandate in section 3 to provide for guarding the public peace and health, and protecting the safety of persons and property, is but a recognition of those unquestioned police powers essential to the purposes for which municipal corporations are created, expressed in the customary legislative phraseology upon that subject with which courts are familiar.

The restriction in section 4 of territory in which a specified business may be conducted is limited to the sale of intoxicating liquors at retail, and the regulation of trade, occupations or amusements, cannot fairly be said to specifically authorize their entire prohibition' on otherwise unrestricted private property as the proposed zoning system contemplates. To regulate a business, trade, occupation or amusement under the. police power contemplates that it may be engaged in subject to prescribed rules or methods deemed essential for public peace, health and safety, while to prohibit indicates to prevent or do away with the same entirely. The distinction between the power “to regulate” and “to prohibit” is pointed out in People v. Godway, 61 Mich. 285; In re Hauck, 70 Mich. 896. "When such powers are delegated to municipalities by the legislature it must be done in express and unmistakable terms. Traverse City v. Railroad Commission, 202 Mich. 575; City of Kalamazoo v. Titus, supra.

It is not deemed advisable to review nor necessary to pass upon the many other interesting and far-reaching questions suggested by this ordinance and the ■charter provision claimed to authorize it which counsel raise and argue. As well said by counsel for the defense, this is a larger issue than the validity of the ordinance before us which is not to be “tested merely by its effect upon relator’s piece of property,” and “involves its effect on the entire community.” The controlling test is whether by any adequate, definite provision in the Constitution or general act passed pursuant to it cities have been vested with this evolutionary and comprehensive police power of zoning asserted here. Independent of legislation, the Constitution confers no such grant of power directly upon cities. Assuming, but not deciding, that such power is by the Constitution committed to the legislature, it has not by express grant in adequate terms delegated the same to cities.

For these reasons we are constrained to agree with the negative conclusion reached upon that question by' the trial court, and its order granting the writ of mandamus prayed for will stand affirmed.

Moore, C. J., and Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


author: Fellows, J.

text:
    HILL v. RABINOWITCH.
    1. Deeds — Building Restrictions — Enforcement by Equity Courts.
    The court of equity has power to enforce building restrictions, and where definite, fixed and unambiguous, they should be enforced as written and not extended by judicial construction.
    2. Same — Courts Will Not Extend Restrictions.
    Where, in the dedication of a plat, certain lots were designated for residential purposes and certain others for mercantile purposes, and in the restrictions it was provided that no dwelling house or residence should be erected nearer to the street than the building line shown on the plat, but no such restriction was expressed as to the business lots, the courts will enforce only such restrictions as are expressly provided, and will not extend the same to the business lots.
    3. Same — Restrictions Not Extended by General Plan.
    In a suit to restrain defendant from building on business lots nearer to the street than the line provided for the residential lots, plaintiffs’ contention that there has been such a general plan of improvement, so agreed to and. acquiesced in by all the interested parties as to prevent the use of such lots as defendant contemplates, and that the use of such lots should be restricted to conform to such general plan of improvement, held, not sustained by the record.
    4. Same — Business Purposes — Residential Purposes — Injunction.
    Defendant, having elected to use the lots in question for mercantile purposes, may not use any part of the building so constructed for residential purposes, and an injunction will issue restraining such use.
    For authorities discussing the question as to what part of a structure must be beyond the line to constitute a violation of a building restriction, see note in 52 L. R. A. (N. S.) 1044.
    On multiple residence structures as violation of restrictive covenants, see notes in 45 L. R. A. (N. S.) 726 and L. R. A. 1918C,, 873.
    Appeal from Wayne; Marschner (Adolph F.), J.
    Submitted April 23, 1920.
    (Docket No. 96.)
    Decided May 18, 1920.

      Bill by Louis Hill and others against Samuel Rabinowitch to enjoin the violation of certain building restrictions. From a decree for plaintiffs, defendant appeals.
    Reversed, and decree entered.

      Hayes & Maurer {Harry Holden MacCord, of counsel), for plaintiffs.

      Behr & Coolidge {Clifton G. Dyer, of counsel), for defendant.
   Fellows, J.

In the summer of 1911 James S. Holden, Daniel E. Murray, Dexter M. Ferry, Jr., and Jeannette Hawkins Ferry, his wife, executed a plat of a subdivision known as Holden & Murray’s subdivision, and caused the same to be recorded. The plat contained the following restrictions:

“The premises described in the within plat and subdivision are hereby subjected to the following restrictions, agreements and covenants which shall continue in force until January 1, 1937, and no longer, and that during that period shall be observed by the proprietors herein described and by their grantees and assigns and the heirs, executors, administrators and assigns of any of them. A building line is shown upon the different lots designated in said plat and no dwelling house or residence erected on said premises, excepting the front steps and the porches and piazzas appurtenant thereto, shall be built, erected or maintained nearer to the front or street line of said premises than is designated by said building line, the same being as follows, to wit: For that part fronting on Dexter boulevard and Lothrop avenue, 30 feet from the front or street line, and for lots fronting on Manchester, Hogarth and Whitney avenues, 25 feet from the front or street line. No building or part thereof shall be erected or maintained within six feet of the street line of lots 10, 15, 42, 47, 84, 89 and 137, projections forming a part of the body of the building shall be construed to be a part of the dwelling and must be set within the building lines designated. Said premises shall be used for residence purposes only, excepting that lots 1, 27, 62, 63, 64, 65, 111 and 112 may be used for mercantile purposes or for a terrace or apartment building with a reasonable amount of the adjacent lots to the east thereof not to exceed three lots. On the lots fronting on Dexter boulevard, Manchester and Lothrop avenues, no other than a single dwelling house or (residence not less than two stories high and costing not less than $2,500.00, * * * and bungalows with a studding not less than 12 feet high and costing not less than $2,000.00, shall be erected. The term ‘two stories’ shall be held to mean buildings having a studding or post of not less than 18 feet in height. No part of any dwelling house or residence erected thereon shall be built or maintained nearer than three feet to the side property line of the owner thereof. _ Not more than one barn, stable or garage may be built or maintained as appurtenant to each dwelling house erected thereon, and the same shall not be built or erected excepting simultaneous with or after the completion of such residence. No shed or structure of any nature shall be built, erected or maintained on said premises until after the completion of the building erected thereon for residence purposes, nor shall any fence be built, constructed or maintained on any part of said premises until the nature, kind, shape and material has been approved by the proprietors herein, or their heirs, executors or legal representatives.”

The land was then farming land and lay between Dexter boulevard and Grand River avenue which was not then built up at this point as a business street. Dexter boulevard runs due north and south while Grand River avenue runs more nearly in a northwesterly and southeasterly direction. There were 139 lots in the subdivision. Lots 1, 27, 62, 63, 64, 65, 111 and 112 lay along Grand River; these lots were not regular in shape and are spoken of somewhat inaccurately as triangular. Running east and west through the subdivision were Whitney, Hogarth and Manchester (now Northwestern) avenues, and the south line was Lothrop avenue. The sale of the lots was conducted by the real estate firm of Holden & Murray. Circulars were distributed by this firm advertising the subdivision which called attention to the attractive features of it as a highly restricted district and some of the language of the circulars went farther than the restrictions recited; but the circulars had printed verbatim the restrictions found in the plat and such restrictions were inserted in all land contracts and deeds made and executed. Mr. Murray, one of the proprietors of the plat, was called as a witness for the plaintiffs; he testified among other things that if there were contradictions between the circular and the restrictions the customer’s attention was called to it,- and that the restrictions would control. The lots met a ready sale and practically all of them which were for use for residential purposes only have been built upon and the record discloses a remarkable freedom from infractions of the restrictions. There was upon the plat as recorded a line showing the building line on Dexter boulevard, Whitney, Hogarth,’ Manchester (now Northwestern) and Lothrop avenues, and in but one instance so far as we can discover from the record has any part of a dwelling house encroached beyond this line.

Since the filing of the plat business has pushed out Grand River avenue to and beyond this subdivision. It is now a noisy, business thoroughfare, paved 70 feet in width, with two street car tracks, carrying city and interurban cars. It is admitted by all that the development of business on Grand River avenue with stores where the residents may trade has materially increased the value of the residence property. The Peoples State Bank purchased lots 62 and 63 and erected a bank building on the south part of them fronting on Grand River avenue. The bank advertised and offered the balance or north part of the lots for sale. This part had a frontage of 139 feet on Grand River avenue. Defendant’s attention being attracted to this property he opened negotiations with the bank for its purchase. His attention was called to the restrictions and he submitted the matter to his attorney, and being advised that he could use the entire frontage on Grand River for mercantile purposes, purchased the premises, paying $28,200 therefor. He had plans made for the erection of store buildings fronting on Grand River avenue and commenced excavating up to Hogarth avenue, contemplating the use of the land for such store building up> to the line of Hogarth avenue.

The plaintiffs are owners of residential property on Hogarth avenue, being all located in the first block east from lots 62 and 63 upon which defendant proposed to erect the store building. They filed this bill for an injunction to restrain the erection of the store building nearer than 25 feet from the south line of Hogarth avenue, and were awarded such a decree by the trial court, to review which defendant brings the case here.

Much has been written by this court, especially in recent years, upon the subject of building restrictions. The law is so well settled in this State that it is not necessary to review it. The power of a court of equity to enforce building restrictions is beyond question. Where the restrictions are definite, fixed and unambiguous they should be enforced as written and should not be extended by judicial construction. As was said by this court in Casterton v. Plotkin, 188 Mich. 333:

“Inasmuch as defendant’s deed does contain restrictions specifying just what use can, or cannot, be made of the property, and sets limitations for the kind of building which may be built, nothing further or different is to be implied.”

So in the instant case if these restrictions definitely state what may and what may not be done with the property, we should not imply additional restrictions to those fixed by the parties themselves.

Turning to the plat and restrictions as filed we find 131 lots platted for residential purposes, and 8 of irregular shape which are available for business purposes. As to the residential lots the restrictions are quite definite. The kind and cost of the dwellings, the number and character of the outbuildings which may be erected is fixed, and no dwelling house or residence may be erected nearer to the street than the building line shown on the plat and fixed in the restrictions; and all of the 131 lots must be used for residential purposes only. As to the other 8 lots, those of irregular shape lying along Grand River avenue, it is permitted that they “may be used for mercantile' purposes,” and there can be found in the restrictions no express inhibition against their use, and their entire use for that purpose. Unless we may imply such restriction or by construction add such restriction to those the parties have made the plaintiffs must fail in their contention. The language is not ambiguous nor do we think the delineation of a building line on the plat when taken in connection with the language used in the restrictions of importance. The purpose of this building line is definitely stated; it is to fix the line beyond which “dwelling houses or residences” may not be erected. Obviously if defendant sought to use these lots for residential purposes he would be restricted in such use by the building line, but he is permitted to use them for “mercantile purposes,” and as to that use the building line does not apply unless we may add to the restrictions language not found therein. This we may not do. The parties have attached a distance from the street as one of the restrictions applicable to dwelling . houses and residences; they have not attached such restrictions when the premises are used for mercantile purposes. We may only enforce those restrictions which were in existence when defendant bought the property.

But it is insisted by plaintiffs that there has been such a general plan of improvement, so agreed to and acquiesced in by all the' interested parties as to prevent the use of these lots as defendant contemplates; and that the use of such lots should be further restricted to conform to such general plan of improvement. Our difficulty in following plaintiffs in this contention lies in the fact that we are not satisfied from this record that there was a general plan of improvement extending beyond the restrictions enumerated. That there was some puffing of the subdivision in the circulars is to be expected, but, as we have shown, the actual restrictions were there printed and prospective purchasers were told that the restrictions controlled. And while the owners of the residential lots have to the number of over a hundred scrupulously adhered to the restrictions found in the plat, and in only one instance have they been violated and then but slightly, we do not find in this fact or in the testimony introduced at the hearing evidence of a general plan involving additions to the recorded restrictions. Under these circumstances it becomes unnecessary to consider what rights plaintiffs would have if there had been a general plan of improvement agreed upon and acquiesced in by all the interested parties extending the restrictions, beyond those found in the plat.

The building which defendant has planned to erect consists of six stores with rooms over them. These rooms would be suitable for offices or flats. Defendant in his brief disaffirms any intention or desire to use the second story for flats. Defendant has elected to use these lots for mercantile purposes and we have held that when so used he could occupy all of them with his building. He may not use any part of the building so constructed upon the whole of the lots for residential purposes and while defendant states that he has no intention to so use them, we think any question about the matter should be put at rest by an injunction restraining such use.

It follows that the decree of the court below must be reversed and one here entered in conformity with this opinion. Defendant will recover costs of this court, plaintiffs costs of the court below.

Moore, C. J., and Steere, Stone, Clark, Bird, and Sharpe, JJ., concurred. Brooke, J., did not sit.