author: Hooker, C. J. Grant, J.

text:
    CRANE v. WALDRON.

    1. Constitutional Law —Rules of Evidence —Fraudulent Conveyances — Bills in Aid of Execution — Prima Facie Case —Due Process of Law.
    Aot No. 99, Pub. Acts 1897 (3 Comp. Laws, § 10203), providing that, in suits in aid of execution, .complainant shall make a prima facie case by introducing in evidence the judgment against the principal defendant, the execution, with levy thereon indorsed, and proof of the conveyance complained of, prescribes a mere rule of evidence, and is not violative of the constitutional guaranty of “due process of law.” Grant and Moore, JJ., dissenting.
    2. Same — Title to Statute — Sufficiency.
    The object of the act is sufficiently indicated by its title, viz., “An 'act to provide for the change of rules of evidence in cases where bills in aid of execution are filed.”
    3. Same — Loss of Execution — Secondary Evidence.
    The fact that the execution in a given case is lost does not exclude the application of the statute, but parol evidence of its contents may be given.
    4. Same — Appeal—Objections.
    A contention that the contents of a lost execution were not ’ sufficiently proved will not be sustained on appeal, where there was proof of a valid judgment, and the issue and levy of an execution thereunder, and the only objection to the testimony was that it was “ incompetent and immaterial.”
    Appeal from Eaton; Smith, J.
    Submitted January 9, 1902.
    (Docket No. 43.)
    Reargued January 14, 1903.
    Decided April 28, 1903.
    Bill by William Crane against John Waldron and Mary ' Ann Waldron in aid of execution. From a decree for complainant, defendants appeal.
    Affirmed.

      8. B. Roe and Richard Rudabaugh, for complainant.

      Thomas, Cummins & Nichols, for defendants.

       Rehearing denied September 22, 1903.

   Hooker, C. J.

On July 12, 1900, complainant obtained: a judgment against John Waldron in a justice’s court in Shiawassee county for about $170. On July 21, 1900, a transcript was filed, and an execution was issued by the-circuit court to the sheriff of Eaton county, and on July 23, 1900, it was levied upon some village lots in that-county, the title to which was formerly in John Waldron. On June 26, 1900, John Waldron, who then lived in Shiawassee county, deeded the same to his daughter, Mary Ann Waldron, who for several years had been working-out in the capacity of domestic. On December 10, 1900,. this bill was filed in aid of the execution, to which the defendants answered separately, denying that the transfer was fraudulent, and asserting that it was in payment of $250, of which $200 had been earned by Mary, and loaned to or expended for the benefit of John, Waldron, previous-to the transfer. Upon the hearing, complainant made proof of the judgment, the issue of execution, the levy, and the deed. The execution itself was npt produced, but was shown to be lost, and secondary evidence was-admitted. The defendants offered no testimony. A decree-was rendered in behalf of complainant, and the defendants have appealed.

Counsel for defendants attack the constitutionality of Act No. 99, Pub. Acts 1897, being 3 Comp. Laws, § 10203, which provides that, “in all suits in aid of execution, the complainant shall make a prima facie case by introducing in evidence the judgment against the principal defendant, the execution with the levy or levies thereon indorsed, and proof of the conveyance complained of.” They also-question the sufficiency of complainant’s evidence. They say that:

“Bills in aid of execution only lie where the conveyance was made with the intent to hinder, delay, or defraud creditors. Section 9533, 3 Comp. Laws. If the grantee is a purchaser for a valuable consideration, then it must further appear that he had notice of his grantor’s fraudulent intent.' Section 9537, Id. To establish a prima facie case, therefore, it must appear: First, that the conveyance was made with the intent to defraud creditors; second, that the purchaser gave no consideration, or else took with notice of his grantor’s fraudulent intent. The statute of 1897 attempts to make the judgment, execution, or deed, without the aid of other proof, evidence of fraudulent intent on the part of the grantor, and evidence of notice of such fraudulent intent on the part of the grantee.”

Their claim is that ‘ due process of law ” requires that some evidence be given of a fraudulent intent by Waldron, shared by his daughter.

The power of the legislature to prescribe rules of evidence is undoubted. When one is in debt, and deeds all of his property subject to execution to another, who has no visible property, it cannot be said that there is no evidence tending to show fraud. It was within the legislative power to say that these facts shall be prima facie evidence of a fraudulent intent, making it necessary for the persons charged with fraud to give some testimony to the contrary. Cooley, Const. Lim. (6th Ed.) 450; Gruner v. Brooks, 126 Mich. 465 (85 N. W. 1085); Molitor v. Robinson, 40 Mich. 200; Buhl Iron Works v. Teuton, 67 Mich. 623 (35 N. W. 804); Hatch v. Fowler, 28 Mich. 205; Webster v. Bailey, 40 Mich. 641; Cooper v. Brock, 41 Mich. 488 (2 N. W. 660); Kipp v. Lamoreaux, 81 Mich. 299 (45 N. W. 1002); U. S. v. Lee Huen, 118 Fed. 442.

The title to the act is “An act to provide for the change of rules of evidence in cases where bills in aid of execution are filed.” This is sufficient, unless we are to say that the title must be an index of the provisions of the act, which is not required.

It is contended that the failure to produce the execution at the trial was»an omission which excludes the application of the statute. We are of the opinion that secondary evidence is admissible, under this statute, in accordance with the general rule.

' A number of technical reasons are urged in support of the proposition that the contents of the execution were not proved. The testimony regarding the execution was not challenged, except under the very general objection that the proof was incompetent and immaterial. We discover nothing that should have indicated to the court that objection was made that it was not shown to be properly directed, or properly tested, or issued in the name of the people, etc., or that it was not returnable reasonably, or did not properly recite the judgment or name the parties. Under the circumstances, the statement by Cooper that he received an execution in the case stated from Shiawassee county, the admission of the validity of the judgment upon which it was issued, the copy of the transcript of judgment, and the notice duly filed, are sufficient to convince the mind, in the absence not only of evidence, but of any claim, to the contrary.

The decree is affirmed, with costs.

Carpenter and Montgomery, JJ., concurred with Hooker, C. J.

Grant, J.

(dissenting). The bill in this cáse was filed in aid of an execution upon a judgment for $167.83, exclusive of costs, rendered July 12, 1900, by a justice of the peace. A transcript was duly taken to the circuit court, execution issued, and levy made. The bill, after setting forth the facts, alleges a deed, made oh June 27 (it was in fact made June 26), 1900, by the defendant John and his wife to the defendant Mary, his daughter, and that said deed was made without consideration, and was fraudulent and void. The answers deny all the material allegations of the bill as to the transfer of the property; allege a bona fide consideration; that Mary worked out as a domestic, and gave the greater portion of the money she earned to her father, upon the promise that her father should "convey the lands to her for her own use. Complainant made his case by proving his judgment, execution, levy, the deed from defendant John to his daughter, Mary, and that the land was worth about $400. Defendants introduced no evidence, and a decree was rendered for the complainant. »

The sole evidence of fraud upon which the decree in this case is based is the deed made by defendant John to his daughter, Mary, and the fact that he was at the time in debt. The bare execution of a deed and the fact of indebtedness by the grantor are, therefore, made to establish a fraud, for which alone the deed could be set aside. Complainant relies upon Act No. 99, Pub. Acts 1897, the title and body to which read as follows:

“An act to provide for the change of rules of evidence in cases where bills in aid of execution are filed.
“Section 1. That in all suits begun or hereafter to be begun by the filing of bills in aid of execution, the complainant shall make a prima facie case by introducing in evidence the judgment against the principal defendant, the execution with the levy or levies thereon indorsed, and proof of the conveyance or conveyances complained of. The burden of proof shall then be upon the judgment debtor, or the person or persons claiming through or under him, or the person or persons whom it is claimed are holding property in trust for said judgment debtor, to show that the transaction or transactions are in all respects bona fide, or that such person or persons are not holding as a trustee or trustees of said judgment debtor.”

This legislation is unique. It stands alone. It has no precedent or posterity. No such law is found upon the statute books of any other State. We cannot, therefore, have the benefit of the reasoning and conclusions of other courts in determining the constitutionality of the act. We must determine it upon reason and principle. For centuries the usual method of transfer of title to land has been by deed. Thousands of them are executed every day. No other method of obtaining title, except upon execution, decree, or by adverse possession, is known to the law. Presumptively these transfers are honest. Ever since civilization began they always have been, and still are, so considered. Like all other business transactions, they are daily executed, delivered, and received in good faith. Without this presumption, business could not well be carried on. The law does not limit its effect to cases between members of the same family, which courts of law as well as of equity scan with great care, where lands are transferred by one who is in debt. The earmarks of fraud in such cases are easily traceable, and courts have found no difficulty in dealing with them under the rules of evidence which have always existed. But the law stamps as presumptively fraudulent every deed made by every person against whom is a judgment unpaid, and that, too, whether the debt was contracted before or after the deed was made. Most business men are borrowers of money. Merchants borrow money at the banks in order to meet their current indebtedness, and buy goods upon credit. Many borrow money with which to make investments. If the legislature, under the specious plea of the mere change in the rules of evidence, can make the execution of a deed presumptive fraud, it can also make the execution of every other contract a presumptive fraud, no matter whether it exists in writing or in parol. Contracts of sale of real and personal property, bills of sale, promissory notes, in fact every act or transfer of property essential to the business life of the country, can be made by the legislature a presumptive fraud upon simply proving that, at the time of the transfer or execution of the paper, the maker or vendor was in debt for any sum, however trivial.

The statute under which this suit was brought to set aside the deed makes every such conveyance ‘ ‘ made with the intent to hinder, delay, or defraud creditors” void. Section 9533, 3 Comp. Laws. That act further provides that the question of fraudulent intent in all cases arising under it shall be deemed a question of fact, and not of law. Section 9536, Id. Now, the legislature, by Act No. 99, Pub. Acts 1897, has provided that one of the ordinary business transactions of life- — an act essential to the maintenance of business — is presumptively a fraud, and shall stamp every party thereto as guilty of a fraud, for which the debtor and grantor might be imprisoned under the fraudulent debtor’s act. Section 9556, Id. That law provides that a debtor may be arrested and imprisoned upon proof that he has assigned, removed, or disposed of his property with intent to defraud' his creditors. It follows that the legislature, if this law’ be sustained, can provide that .the execution of any paper by a debtor is sufficient, proof of his fraud to confine him in prison. The validity of this law cannot be determined upon the theory that it includes only transfers between members of the same family. Many of such transfers, however, are ■entirely valid, as this court and others have held (in fact, the great majority of them are); others are invalid, as the courts have frequently held. But it never before entered the mind of man to conceive that transactions presumptively honest, and which, in at least 99 cases out of 100, are honest, shall be presumptively dishonest and fraudulent.

Let us look further at the result of this law. The .grantor and grantee may both be dead when the suit is tried. All evidence of the transaction, except the bare fact of the execution of the deed, is buried with the dead. Both parties may be stamped, under this act, as guilty of fraud, by simply proving that the grantor, at the time of the transfer, was in debt. The grantee may have paid full consideration, and yet his family be deprived of their property, and left in’ poverty, with their father and husband disgraced by the decree of the court, and that upon the bare proof that the grantor of their husband and father was in debt at the time he executed the deed.

Does this law simply change a rule of evidence ? In my judgment, it does not. It deliberately attempts to make a presumptively honest act a presumptive fraud. It deals with facts, not with evidence. It does not take up some rule of evidence and change it. The execution of a deed, though the grantor be in debt,, is not of itself evidence of fraud. There always have been, and always ought to be, some other facts connected with it which • tend to show a fraudulent.intent. Evidence is defined to be any matter of fact the effect, tendency, or design of which is to produce in the mind a persuasion, affirmative or disaffirmative, of the existence of some other matter of fact. Best, Ev. §11. It is a logical and reasonable rule that, in order to be evidence, the facts presented must tend to prove the fact in issue. The fact in issue in this case is fraud on the part of two persons, the grantor and the grantee of a deed. Do the execution of a deed and the indebtedness of the grantor prove or tend to prove the two essential facts that both were guilty of intent to defraud the creditors of the grantor, and that no consideration was paid ? Would- not such a holding be repugnant to reason and common sense ?

The right of the legislature, within certain limitations, to prescribe rules of evidence, is conceded. People v. Cannon, 139 N. Y. 32 (34 N. E. 759, 36 Am. St. Rep. 668); Board of Com’rs v. Merchant, 103 N. Y. 143 (8 N. E. 484); State v. Beswick, 13 R. I. 211 (43 Am. Rep. 26); Meadowcroft v. People, 163 Ill. 56 (45 N. E. 303, 35 L. R. A. 176, 54 Am. St. Rep. 447). What these limitations are there may be some difficulty in determining. Courts have recognized this.

In Board of Com’rs v. Merchant it is said: “ While the power has its constitutional limitations, it is not easy to define precisely what they are.” The same opinion says: “It would not be possible to uphold a law * * * which made that prima facie evidence of crime which had no relation to a criminal act, and no tendency whatever by itself to prove a criminal act. ” The same rule must apply in civil cases where fraud or crime is the real issue. The law the constitutionality of which was questioned in that case made the drinking of intoxicating liquor on the premises prima facie evidence that it was sold with intent to be drunk on the premises.

The rule is concisely and well stated in People v. Cannon :

“The limitations are that the fact upon which the presumption is to rest must have some fair relation to, or natural connection with, the main fact.”

In Com. v. Williams, 6 Gray, 1, the law made delivery of intoxicating liquors in or from any building or place other than a dwelling house prima facie evidence of a sale. The a.ct was sustained upon the theory that delivery is essential to, and is some evidence of, every sale of property. Justice Thomas filed a very able dissenting opinion, maintaining that an act in itself innocent cannot be made by the legislature presumptive evidence of guilt.

In State v. Beswick, supra, a law which made the notorious character of the premises, or the notoriously bad or intemperate character of persons frequenting the same, or the keeping of the implements or appurtenances usually appertaining to grogshops, tippling shops, or places where such liquors are sold, prima facie evidence that such liquors were kept on such premises for sale, was held unconstitutional and void'. Whether that holding is in accord with the weight of authority we need not determine. The following language is so clearly in point that I quote it:

“ Indeed, to hold that a legislature can create artificial presumptions of guilt from facts which are not only consistent with innocence, but which are not even a constituent part of the crime when committed, is to hold that it has the power to take away from a judicial trial, or at least substantially reduce in it, the very element which makes it judicial. To hold so is to hold that the legislature has power to bind' and circumscribe the judgments of courts and juries in matters of fact, and in an important measure to predetermine their decisions and verdicts for them. It is true the accused has the right of defense left to him, and may, if he can adduce satisfactory evidence, rebut the statutory presumptions; but the production of such evidence is not always easy, even with the right to testify in his own behalf; and the right to testify in his own behalf, having been granted, can be abrogated, by the legislature. It is not one of those great and immemorial rights which lie embedded in the phrase ‘the law of the land,’” — citing authorities.

In State v. Buck, 120 Mo. 479, 495 (25 S. W. 573), a law providing that the failure of a bank should be prima facie evidence that the officer received deposits knowing the bank to be insolvent was sustained. The decision, however, left the law ineffective, because it held that the burden of proof was not really changed, and that the prima facie case did not warrant a conviction. But under this act the courts are compelled to render a decree for complainant upon bare proof of judgment and levy. The court in State v. Buck likened that case to the rule of the common law that an assault upon another with a deadly weapon, at some vital part, presumes an intent to kill, and that the possession of stolen property recently after its theft raises the presumption that the possessor was the thief.

In Meadowcroft v. People, supra, the law provided that a banker receiving deposits when insolvent is presumptively guilty of a fraud in so receiving them. The law was sustained upon the theory that:

“ He [the banker] holds himself out to the public and to his customers as being possessed of money and capital, and therefore to be safely trusted. It is his duty to know, and he is, under all ordinary circumstances, bound to know, that he is solvent, and it is criminal negligence for him not to know of his own insolvency.”

A similar case is State v. Beach, 147 Ind. 74 (46 N. E. 145, 36 L. R. A. 179).

How would lawyers, or laymen, even, look upon a decision of a court or an act of the legislature making every person who purchased from an insolvent banker a promissory note, or mortgage, or land, presumptively guilty of fraud ?

It is worthy of note that most, if not all, of such decisions to which our attention has been called, hold that the acts of the legislature did not change the burden of proof. It is also significant that the acts involved in those cases make only those facts prima facie evidence which are so closely allied to the offense charged that they are of themselves some evidence of the intent required to constitute the offense, or some evidence of the main fact in issue. They all are aimed at persons while living, and do not •attempt to make their acts prima facie evidence of fraud •against their grantees, vendees, heirs, and devisees. The circumstances surrounding the transactions which, by the •acts in those cases, were made prima facie evidence, are so indicative of wrong, and so exclusively within the knowledge of the party charged, that courts have held it not unreasonable to call upon him for explanation. This is the basis upon which those decisions rest, and, in my judgment, is the only basis upon which they can rest.

How can such a doctrine be applied to the daily business •transactions of life, and to the daily transfers of property, which are always, and of necessity must be, prima facie honest and valid ? It is neither dishonest, nor evidence ■of a fraud or intent to commit a fraud, to be in debt. It is not dishonest, neither is it evidence of dishonesty or fraud, to buy or sell property, real or personal, when one is in debt. If it were, probably a majority of the sales and transfers of property, both real and personal, would be presumptively fraudulent. It would, in my judgment, be monstrous to hold that a transfer of property by a debtor is presumptively a fraud. Debtors often sell property for the purpose of paying certain of their debts, and the law has always justified them in so doing. It would be more monstrous to hold that his grantee is presumptively a participant in the fraud. By what process of reasoning can it be held that a sale and transfer of property by one who is in debt is any evidence of an intent to defraud? If a statute should provide that, in a suit against an alleged forger to recover money paid on an alleged forged note, the production of the note and proof that the alleged maker did not execute it should make a prima facie case against the defendant, could such an .act be sustained upon the pretense of the right of the legislature to change the rules of evidence ? There is, in my judgment, no relation between the fact of indebtedness and the intent to commit a fraud or to defraud the debtor’s creditors. The former has no tendency to prove the latter, especially on the part of a grantee or vendee, the sole-party in interest in the suit. For this reason I think the act is void.

Counsel for the complainant 'seek to sustain this law upon the theory, ‘ ‘ if the right is not expressly prohibited,, or prohibited by implication, by the State Constitution, the legislature has not exceeded its power, and the statute is. constitutional;” citing Sears v. Cottrell, 5 Mich. 251. As. applied to the facts of that case, the rule there stated is not disputed. There are, however, some things the 'legislature cannot do, although not prohibited by the Constitution, and the lawbooks are replete with such cases. Some things are so repugnant to the principles of our government and to reason and common sense that the legislature cannot enact them into valid laws. The legislature cannot declare presumptively honest citizens to be presumptively dishonest, or the daily and presumptively honest transactions of life to be presumptively fraudulent transactions, under the thin guise of a change in the rules of evidence. Every citizen under our Constitution is entitled to the presumption of honesty in his daily transactions, and he who attacks his honesty is bound to prove his dishonesty and his fraud, before he can deprive him either of his liberty, his property, or his good name. The language of the Supreme Court of the United States, speaking through Justice Chase, in Calder v. Bull, 3 Dall. 387, is. here appropriate:

“I cannot subscribe to the omnipotence of a State legislature, or that it is absolute and without control, although its authority should not be expressly restrained by the constitution or fundamental law of the State. * * * The nature and-ends of legislative power will limit the exercise of it. * * * There are certain vital principles, in our free republican governments which will determine and overrule an apparent and flagrant abuse of legislative power, — as to authorize manifest injustice by positive law, or to take away that security for personal liberty or private property for the protection whereof the government was established. An act of the legislature (for I cannot call it a law) contrary to the great first principles of the social compact cannot he considered a rightful exercise of legislative authority.”

This language is quoted with approval in City of Janesville v. Carpenter, 77 Wis. 288 (46 N. W. 128, 8 L. R. A. 808, 20 Am. St. Rep. 123). That case involved a law of Wisconsin which reads as follows:

“ It shall be unlawful and presumptively injurious and dangerous to persons and property to drive piles, build piers, cribs, or other structures, * * * in Rock river, within the limits of the county of Rock, and the doing of any such act shall be enjoined at'the-suit of any resident taxpayer without proof that any injury or danger has been or will be caused by reason of such act.”

A bill was filed asking for an injunction under this statute, and the court below sustained it. The question arose upon a motion to dissolve the temporary injunction. The supreme court said:

"This statute is, if possible, more marvelous than the complaint. * * * The legislature usurped the judicial power of the courts by the enactment of this statute. It adjudicates an act unlawful and presumptively injurious and dangerous which is not and cannot be made to be so without a violation of the constitutional rights of the defendant, and imperatively commands the court to enjoin it without proof that any injury or danger has been or will be caused by it. It reverses very many decisions of this court on the very questions involved in it, and which have the effect .of a judicial determination of the defendant’s rights of property. It violates section 2 of article 7 of the State constitution, which provides that the judicial power of the State, both, as to matters of law and equity, shall be vested in the various courts. It takes away the jurisdiction of the courts to inquire into the facts, and determine the necessity and propriety of granting or refusing an injunction in such a case according to the established rules of a court of equity. Ervine’s Appeal, 16 Pa. St. 256 (55 Am. Dec. 499). It is said in that case:
“ ‘ That is not legislation which adjudicates in a particular case, prescribes the rule contrary to the general law, and orders it to be enforced. Such power assimilates itself more closely to despotic rule than to any other attribute of government.’ ”

So the legislature in this case adjudicates an act, in itself lawful, in itself no evidence of fraud, and in itself presumptively fair and honest, to be presumptively a fraud, and commands the court to enter a decree upon it. I think this a clear invasion by the legislative department of the-authority conferred by the Constitution upon the judicial department. .

In Sears v. Cottrell, 5 Mich. 251, 261, Justice CHRISTIANCY, in his majority opinion, said:

“ I do not say, and I am not' willing to say in advance,, that an act of the legislature might not be so utterly subversive of all the purposes of justice, so oppressive in all its features and objects, and so repugnant to the fundamental principles of republican government, that it ought to be declared void on that account, though it might not conflict with any provision of the Constitution. See Bowman v. Middleton, 1 Bay, (S. C.) 252.”

Mr. Ordronaux, in his recent work, says:

“But this express theoretic view of legislative power, which in England has led to the doctrine that an act of parliament cannot be questioned or its authority controlled in any court of justice, must, in the United States, be considered as meaning always power exercised within the constitution, and in accordance with the principles of our social compact. Hence no omnipotence attaches itself to the power of an American legislature, even where the constitution has imposed no explicit restraint, because in the exercise of that power it may have violated some fundamental maxim of a free government.” Ord. Const. Leg. p. 346.

In the leading case of People v. Township Board of Salem, 20 Mich. 452 (4 Am. Rep. 400), the right of the legislature to authorize townships to vote money to aid in the construction of railroads was involved. It was held, unconstitutional. There was no express provision of the Constitution against such legislation, and the three prevailing opinions did not mention any provision of the Constitution violated by the law. Justice Cooley, at page. 473, said:

“It is conceded, nevertheless, that there are certain limitations upon this power, not prescribed in express terms by any constitutional provision, bnt inherent in the subject itself, which attend its exercise under all circumstances, and which are as inflexible and absolute in their restraints as if directly imposed in the most positive form of words.”

Chief Justice Campbell, at page 495, said:

“There are purposes the illegality of which would be so manifest that, although not mentioned in any constitution, no one could hesitate to say the burden was not validly imposed to further them.”

In the recent case of Michigan Sugar Co. v. Auditor General, 124 Mich. 674 (83 N. W. 625, 56 L. R. A. 329, 83 Am. St. Rep. 354), no express provision of the Constitution was pointed out which the sugar bounty act violated. Justice Long, speaking for the entire court, said:

“ The legislature is the mere creature of an organic law, deriving all its power from the Constitution. Its power within those limits must be admitted to be plenary, except so far as otherwise specifically limited; but outside those limits it is as powerless as if specifically prohibited.”

Mr. Cooley, in his valuable treatise, says:

‘ ‘ It does not follow, however, that in every case the courts, before they can set aside a law as invalid, must be able to find in the constitution some specific inhibition which has been disregarded, or some express command which has been disobeyed. * * * The right of local self-government cannot be taken away, because all our constitutions assume its continuance as the undoubted right of the people, and as an inseparable incident to republican government.” Cooley, Const. Lim. *174.

See, also, Hanson v. Vernon, 27 Iowa, 28 (1 Am. Rep. 215); State v. Mayor, etc., of Des Moines, 103 Iowa, 76 (72 N. W. 639, 39 L. R. A. 285, 64 Am. St. Rep. 157).

Does this act secure to a party the benefit of due process of law, as guaranteed by the bill of rights in our Constitution and by that of the United States? These bills of right provide that no person shall be deprived of his life, liberty, or property contrary to “the law of the land,” or without" due process of law. ” These two expressions have been construed to mean the same thing, and are those used in the bills of right of the various States. Courts and law writers have found difficulty in giving definitions to this language which shall be applicable to all cases. This is due to the diversity of cases. Cooley, Const. Lim. *353. I quote a few of these definitions: Chancellor Kent says: “It means law in its regular course of administration through courts of justice.” 2 Kent, Com. 13. Mr. Webster, in the Dartmouth College Case, defines it thus :

£ ‘ By the £ law of the land ’ is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, property, and immunities under the protection of the general rules which govern society. Everything which may pass under the form of an enactment is not, therefore, to be considered the law of the land.” Dartmouth College v. Woodward, 4 Wheat. 518.

Justice Cooley says that no definition embodies more tersely and accurately, the correct view of the principle than is contained in the words of Justice Johnson in Bank of Columbia v. Okely, 4 Wheat. 235:

“ After volumes spoken and written with a view to their exposition, the good sense of mankind has at length settled down to this: That they were intended to secure tlie individual from, the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice.”

Mr. Cooley defines it thus :

“ Due process of law in each particular case means such an exertion of the powers of government as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs.” Cooley, Const. Lim. *356.

For other definitions, see Brannon on the Fourteenth Amendment, chap. 11.

“A law which would practically shut out the evidence of a party, and thus deny him the'opportunity for a trial, would substantially deprive him of due process of law.” Board of Com’rs v. Merchant, supra.

I quote with approval the language of Mr. Justice Thomas in a dissenting opinion in Com. v. Williams, supra:

‘ ‘ If the legislature may say an innocent act is presumptive evidence of guilt, it would be only one step further in the same direction to make that presumption conclusive. * * * Where the act proved is equally consistent with innocence or guilt, the presumption -of innocence must stand. The plainest dictates of justice require it. The right of trial by jury includes it. A statute which takes from the accused the shield of that presumption essentially impairs that right.”

Due process of law does not mean the subpoena or other writ by which a party is brought into court at the instance of a party plaintiff or complainant. If, after he has been brought in, he is at any stage of the proceeding deprived •of the benefit of “the law of the land,” the proceeding against him is void, and he has not had the benefit of due process of law.

This act, as already shown, does not require a plaintiff or complainant to produce evidence of any fact which in and of itself is evidence of fraudulent or criminal intent. It requires him to prove only certain facts which in and of themselves are entirely consistent with honesty, which always have been, and always must be, so considered. It brings defendant into court by process of subpoena, and then says to him: ‘ ‘ Prove that the legal title to your property is good; that you bought it in good faith; that you paid a valuable consideration for it; that your grantor did not, in selling to you, commit a fraud, or, if he did, that you did not participate in it. ” If such grantee be dead, it says substantially the same thing to his widow and children, his heirs and devisees. If he has become insane, in which case it is impossible for him to testify, his property must be taken away from him without a particle of evidence to show any intent to participate in the fraud of another. If he be dead, his widow and children in many cases would be powerless to show the bona fides of the transaction, and not only must lose their property, but must have their husband and father decreed to have been guilty of a fraud, without one particle of evidence to show it. Is this due process of law ? Is it due process of law to say to a man’s widow and children, “Prove the good faith of your husband and father in obtaining title to this property, which may be your homestead, or it shall be taken away from you, and turned over to others?” “The right to private property is a sacred right.” Cooley, Const. Lim. (6th Ed.) 436. Is not this sacred right frittered away when the legislature says to its citizen, “Your title is presumptively a fraud, because some grantor in the chain of title conveyed it when he was in debt; and, unless you can show that it was not a fraud, you must lose it, whether you are the original grantee or some subsequent grantee, or their heirs or devisees ? ”

Under this act the court has no discretion. It is not required to exercise any judgment. It must render a decree upon bare proof of judgment, levy of execution, and the deed, not only against the original vendee, whether sane or insane, but against his vendees, his widow and children, his heirs and his devisees, without proof of a single fact which, in the history of jurisprudence, has ever been held to be proof of fraud or a fraudulent purpose. In many cases years may have passed since the transaction. The property may have changed hands a dozen times. The grantee’s heirs may have lived upon and improved the property, and under this act they must lose it, without proof of a single fact to indicate fraud or fraudulent intent. Does this law provide for a hearing or an inquiry, within the definition of Mr. Webster? Is it a. trial, within his definition, where the legislature has prescribed that, upon acts in themselves innocent and honest, the court must render judgment? Is this “law in its-regular course of administration,” within the definition by Chancellor Kent? Is it within “the established principles of private rights and distributive justice,” as defined by the United States Supreme Court? Is it within “the settled maxims of law, and such safeguards as those maxims prescribe,” within the definition of Justice Cooley? I think these questions must be answered in the negative. In my judgment, such an act does not provide for due process of law, and is therefore unconstitutional and void.

The decree should be reversed’ and the case remanded for complainant to introduce furtherevidence, if he chooses to do so.

Moore, J., concurred with Grant, J.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    SCANDINAVIAN SVEAS BENEVOLENT SOCIETY v. LINQUIST.
    1. Fraudulent Conveyances — Evidence—Sufficiency.
    A decree setting aside a conveyance as in fraud of creditors was sustained, though based on independent facts constituting badges of fraud, rather than on proof of a deliberate plan to defraud.
    2. Same — Consideration—Notice.
    Knowledge on the part of a transferee of property of his grantor’s intention to defraud creditors will invalidate the transaction, where the consideration consisted of part cash and part the discharge of an antecedent debt.
    Appeal from Oceana; Russell, J.
    Submitted February 17, 1903.
    (Docket No. 81.)
    Decided April 28, 1903.
    Bill by the Scandinavian Sveas Benevolent Society of Whitehall against Peter E. Linquist, Caroline Linquist, and Albert Linquist in aid of execution. From a decree for complainant, defendants appeal.
    Affirmed.

      O. W. Sessions (W. E. Osmun, of counsel), for complainant.

      Ed. J. Smith (W. J. Turner, of counsel), for defendants.
   Montgomery, J.

The bill in this case is filed in aid of an execution and to set aside a conveyance of 80 acres of land in Oceana county, valued at $600 to $800, made by defendant Peter E. Linquist to his son, Albert, at a time when a suit at law was pending and about to be tried, in which the present complainant was plaintiff and the defendant Peter was defendant. Upon a hearing on pleadings and proofs, the circuit judge declared the transaction fraudulent, and defendants appeal.

The defendants’ counsel strenuously insist that the circuit court based the decree on mere suspicion, and that there was no adequate proof of fraud. This contention has challenged careful scrutiny of the testimony in the case, which has led us to the conclusion that the circuit judge’s finding not only does not rest upon suspicion merely, but is well supported by the testimony in the case. True, no one testifies to a deliberate plan to defraud, and the complainant’s case is made out by independent facts constituting badges of fraud. It would not aid in future cases to enumerate these. The question is one of fact, and we have no hesitancy in holding that the circuit judge reached the correct conclusion. We are satisfied that the defendant Peter E. Linquist attempted to dispose of this property with the purpose of putting it heyond the reach of creditors, and that the defendant Albert was a participant in the fraud, within the rule laid down in Gumberg v. Treusch, 110 Mich. 451 (68 N. W. 236).

The decree is affirmed, with costs.

The other Justices concurred..


author: Per Curiam.

text:
    WHITE v. LAPEER CIRCUIT JUDGE.
    Physicians — Practicing Without Authority — Complaint—Sufficiency.
    A complaint under Act No. 237, Pub; Acts 1899, for practicing medicine without having obtained the prescribed certificate of registration, is sufficient if stated in the language of the statute, and need not specify the particular acts or means by which respondent practiced such science.

      Mandamus by Enoch C. White, prosecuting attorney of Lapeer county, to compel George W. Smith, circuit judge of said county, to vacate an order quashing a criminal complaint.
    Submitted April 7,1903.
    (Calendar No. 19,868.)
    Writ granted April 28, 1903.

      White & Cramton, for relator.

      Q-eer, Williams & Halpin, for respondent.
   Per Curiam.

One A. H. Wesley was arrested, tried, and convicted of unlawfully practicing medicine contrary to Act No. 237, Pub. Acts 1899. He took an appeal to the circuit court. The respondent quashed the proceedings on account of a defective complaint. The relator now asks for the writ of mandamus to compel the respondent to vacate that order and to proceed with the trial.

It is alleged -that the complaint is defective, in that it is general in its terms, is stated in the language of the statute, and does not specify the particular acts or means by which the defendant in that .suit practiced medicine. This precise question was before the court, under a similar statute, in People v. Phippin, 70 Mich. 6 (37 N. W. 888). We there held the complaint sufficient.

The writ will issue.


author: Moore, J.

text:
    MARQUETTE & SOUTHEASTERN RAILWAY CO. v. LONGYEAR.
    1. Railroads — Condemnation Proceedings — Petition—Description oe Route — Sufficiency.
    2 Comp. Laws, § 6243, provides that the petition in condemnation proceedings by a railroad company shall contain a statement that it is the intention of the company to construct a railroad from and to the places named in its articles of association. A petition for condemnation recited that the company was organized for the purpose of constructing a railroad from L. to the shore of Lake Michigan, at oj- near M.; that it had caused surveys to be made, and located its road in accordance therewith; and that it intended to construct such road from L. as far as R., “and thence to the shore of Lake Michigan.” Held, a sufficient compliance with the statute.
    2. Eminent Domain — Parties—Mortgagees.
    Where a petition in condemnation proceedings shows that petitioner has acquired the interest of the owner of a certain parcel, and a mortgagee of such parcel is made a party, the fact that the former owner is not also made a party does not deprive the court of jurisdiction.
    3. Railroads — Condemnation Proceedings — Rights of Way.
    It is not necessary that a railroad company seeking to condemn a right of way under 2 Gomp. Laws, § 6242 et seq., shall embrace in one petition all lands within the county necessary to be so acquired for the construction of its road.
    4. Same — Parties.
    Hence an objection that certain' persons not made parties to a proceeding are entitled to damages is without force.
    5. Eminent Domain — Award of Jury — Conclusiveness.
    An award of damages by a jury in condemnation proceedings, if within the legitimate scope of the testimony, will not be disturbed on appeal.
    6. Railroads —Rights of Way in Streets — Compensation to Adjoining Owners.
    2 Comp. Laws, § 6234, subd. 5, provides that no railroad shall be constructed on any street until compensation shall have been made to the owners of property adjoining the street, and opposite where such railroad is to be constructed. Held, that the owner of property abutting on the opposite side of a street from that in which a road is to be laid is entitled tó compensation.
    7. Same.
    /But property situated some distance from such street, with another street intervening, thopgh used in connection with land abutting on the former street; is not “adjoining” property, within said statute.
    Appeal from probate court, Marquette county; Kelsey, ■J.
    Submitted November 18, 1902.
    (Docket No. 94.)
    Decided May 1, 1903.
    Proceedings by the Marquette & Southeastern Railway Company to condemn lands for a right of way. Respondents John M. Longyear and Mary H. Longyear appeal from the award and order of confirmation.
    Reversed in part.

      Ball & Ball, for appellants.

      George B. Brown (Charles JR. Brown and Henry M. Campbell, of counsel), for appellee.
   Moore, J.

This is a proceeding to review the action taken upon a petition presented to the probate court for the county of Marquette for the condemnation of a right •of way for the petitioner’s railroad across five parcels of land, of which the appellants were the owners, in whole •or in part. The jury found it was necessary to take the land described in the petition for the purpose of said company’s incorporation, as and for a right of way, and made the following awards:

Parcel No. 1 $700 450 400 1,000 1

It is claimed the court did not obtain jurisdiction, because the petition fails to state that it is the intention of the petitioner, in good faith, to construct, finish, and maintain a railroad to and from the places named for that purpose in its articles of association, as required by 2 Comp. Laws, § 6243, as amended by Act No. 80, Pub. Acts 1901, which provides that the petition for acquiring rights of way shall contain, among other things, a statement that the petitioner has a railroad constructed from and to points specified, or “that it is the intention of said company, in good faith, to construct, finish, and maintain a railroad * * * from and to the places named for that purpose in its articles of association.”

That part of the petition material to the discussion of this question reads as follows:

“Your petitioner, the Marquette & Southeastern Railway Company, respectfully shows that it is a corporation duly organized under the railroad laws of the State of Michigan for the purpose of constructing, operating, and maintaining a railroad from the city of Marquette, commencing at a junction with the Lake Superior & Ishpeming Railway near Presque Isle, in said city of Marquette, in said, county of Marquette, and running thence through the city of Marquette, southeastwardly, and through the counties of Marquette, Alger, and Schoolcraft, to the shore of Lake Michigan, at or near Manistique, in the county of School-craft, a distance of eighty-five miles, as near as may be; * * * that the company has caused to be surveyed the route of its proposed road through said city of Marquette, and in said county of Marquette, as far as a junction with the Munising Railway, in the county of Alger, and has made maps of said survey of said route, by which said route is designated from the junction with the Lake Superior & Ishpeming Railway, in said city of Marquette, through the said city of Marquette, and has caused certificates of said maps, in due form, signed by a majority of the directors of said company, to be filed in the register of deeds’ office of said county, and has located its said road through said city of Marquette on the survey as shown by said maps, and in accordance with such survey, and it is the intention of your petitioner, in good faith, to construct, finish, and maintain said railroad on the line as so located from said junction with said Lake Superior & Ishpeming Railway, through said city of Marquette and county of Marquette, as far as the said Munising Railway, in said county of Alger, as aforesaid, and thence to the shore of Lake Michigan; that the maps of said survey and located line of railroad, showing the line thereof on Lake street, and across Walnut street, in the city of Marquette, have been approved by the railroad crossing board of the State of Michigan; and that permission to construct said railroad in said Lake street, and across said Walnut street and other streets in said city of Marquette crossed by the same, has been granted by the. common council of the city of Marquette in due form.”

It is true, the petition does not follow the language of the statute literally, by saying the petitioner intends to construct the road ‘ ‘ from and to the places named for that purpose in its articles of association;” but, when the petition is read as a whole, we think it is a substantial compliance with the statute. It recites that the company was oi’ganized for the purpose of constructing and maintaining a certain railroad, describing from what point to what point it is to be constructed. It then recites the amount of the capital stock of the company, a'nd how much is paid in; that it has caused surveys to be made, etc., “and has located its said road through said city of Marquette on the survey as shown by said maps, and in accordance with such survey, and it' is the intention of your petitioner, in good faith, to construct, finish, and maintain said railroad on the line as so located from said junction with said Lake Superior & Ishpeming Railway, through said city of Marquette and county of Marquette, as far as the said Munising Railway, in said county of Alger, as aforesaid, and thence to the shore of Lake Michigan.” This could not be much more definite as to. the route of the road from its commencement, in Marquette, to the junction with the Munising Railway, in the county of Alger; and it is not an unreasonable inference to draw from the language, “and thence to the shore of Lake Michigan,” when taken in connection with the statement made in the earlier part of the petition, that the company had been organized to construct and operate a railroad commencing, etc., running, etc., “southeastwardly, through the counties of Marquette, Alger, and Schoolcraft, to the shore of Labe Michigan, at or near Manistique, in the county of School-craft, a distance of eighty-five miles,” that it in good faith intended to construct and operate the road to the last-named point. See Bay City Belt-Line R. Co. v. Hitchcock, 90 Mich., at page 541 (51 N. W., at page 810).

It is also said the court did not get jurisdiction as to parcel No. 1, because Hornstein and Russell should have been joined in the proceeding and served with notice. This claim is based upon the fact that Mr. Longyear had a mortgage on the parcel, given by Russell, Hornstein, and Blake; and it is said that, by reason of the failure to bring in Russell and Hornstein, it was impossible for the jury to consider the question of Longyear’s mortgage interest. Mr. Longyear and Mr. Blake were made parties to the proceeding. The petition shows that, before the proceeding was Commenced, Russell and Hornstein had conveyed all of their interest in the parcel of land to the petitioner, who, of course, was before the court. The record also shows that the value of the parcel taken, as fixed by the jury, was paid into court. See 2 Comp. Laws, § 6249; Cincinnati, etc., R. Co. v. Bay City, etc., R. Co., 106 Mich. 473 (64 N. W. 471). This having been done, there will be no difficulty in taking care of the interest Mr. Longyear has, by reason of his mortgage, in the parcel condemned.

It is claimed there can be no condemnation of the parcels of land and right of way described in the petition, without including in the petition and proceedings such other parcels of land as are necessary for the construction of the road, and without which it cannot be constructed and operated even upon the parcels described, and upon which the right of way has not been obtained. Counsel say:

“The railroad company may take either one of two courses: First, to include in its condemnation proceedings all the lands, property, and franchises required for the construction of its road in the county; or, second, it may first contract for as much of the property required as it is able to do, and institute one condemnation proceeding for the rest. ”

It is argued that “the jury must first pass upon the necessity of the railroad as a public work, and then must pass upon the necessity of taking each piece of land for that purpose. One jury might find that the road was a public necessity; another might find the contrary. One jury might find that it was necessary to adopt the proposed route as adopted by the company, while another might find it not necessary. The whole subject of the necessity of the work as proposed, as well as the necessity of taking each parcel of property, is equally within the province of the jury to determine,” — citing the case of Houghton Common Council v. Mining Co., 57 Mich. 547 (24 N. W. 820), and other cases.

A reference to these cases will show that the statute under which the proceedings were commenced authorized only a single proceeding, in which all the lands should be described. The statute which applies to railroads reads differently. Section 6242, 2 Comp. Laws, provides:

‘ ‘ In case any railroad company is unable to agree for the purchase of any real estate, property, or franchises required for the purpose of its incorporation, it shall have the right to acquire title to the same m the manner and by the special proceedings prescribed in this act.”

Section 6243 provides:

“For the purpose of acquiring such title, such company may present a petition,” etc. “ Said petition * * * shall contain the description of all the real estate, property, or franchises, or so much thereof as the company seeks to acquire under such petition in said county.”

Section 6245, 2 Comp. Laws, contemplates “that any person or persons or company whose estate or interest is to be affected- by the proceedings ” may have a jury. Section 6232 permits a change in the route of the road, if necessary. Section 6251 provides that, if the proceeding results in the company securing a defective title, it may proceed anew to acquire a perfect title.

These provisions are inconsistent with the idea that all the lands within the county required for the road must be included in one petition, and passed upon by one jury. Many cases have been before this court in which only a small number of parcels have been sought to be condemned, and in several instances only one parcel. While the precise question here involved has not been raised in any of these cases, that fact is significant, as indicating what the practice has been understood to be. The language of the statute indicates that the railroad company must acquire its right of way by negotiation with the parties, if practicable, and it is only when it cannot do so that it can resort to proceedings for condemnation. It may often happen that, by negotiation, the right of way will be secured for all of the proposed line, except isolated descriptions which are long distances from each other. If the conditions are such that it is desirable to have several or many parcels described in a single petition, and condemned in one proceeding, that may be done; but there is nothing in the statute that makes it necessary to embrace in one petition all of the descriptions in the county necessary for the construction of the road, where negotiations have failed.

As to parcel No. 5, it is said there was a failure to bring in all of the necessary parties. This objection relates to that portion of the right of way located in what the petition claims is Lake street. The appellants do not concede that what is called “Lake Street” is a highway. The right of way, so far as the common council could do so, was granted in this highway. The railroad is wholly on the south side of the center line of the street. The land on the south side of this street belonged to Mrs. Longyear. She also owned land on the north side, running west about 350 feet from Walnut street. The land west of her on the north side of the street was owned by other persons who were not made parties to this proceeding. It is insisted by the petitioner that, as the road is located and all of the property taken is south of the center line of the street, the property north of the street is not adjoining property, within the meaning of the statute, and that the owners thereof are not necessary parties to this proceeding. In our view of the law, we do not,need to decide whether the persons on the north side of the street are adjoining owners, in the sense that they are entitled to have damages assessed before the road can be built. These persons are not here complaining. If they have rights which the railway company has not acquired, they will not be precluded irom asserting them because of a proceeding to which they are not parties. Chicago, etc., R. Co. v. Sanford, 23 Mich. 428. If we are right in holding that it is not necessary to embrace in one petition all the land in the county required for the construction of the road, this objection cannot be sustained.

It is said the award is contrary to the rights of Mrs. Longyear, because:

“As to parcel No. 5, the jury excluded from their award all consideration of the question of damages to the property of Mrs. Longyear lying north of, and abutting upon, what is called ‘ Labe street,’ and also all question of damages to the remainder of the residence property by reason •of the taking of parcels No. 4 and No. 5.”

Mrs. Longyear is the owner of three tracts of land: First, a block of land in the center of which is her dwelling house, which block is about 750 feet east and west between Cedar and Walnut streets, and 300 feet north and .south between Arch and Ridge streets; second, she owns .the tract south of Ridge street, lying between Ridge and Lake streets, and extending 350 feet west from Walnut street; third, a tract south of Lake street, extending along the harbor front from the Grace Furnace Dock, so called, to the government lighthouse reserve. Petitioner’s located line extends east along Lake street, south of its center, to Walnut street, and across the north side of that portion of the third tract above mentioned which lies east of the west line of Walnut street. The land required for right of way .across this part of the tract is designated in the petition as parcel 4. That portion for right of way in Lake street opposite the remainder of the third tract is designated as parcel 5. Mrs. Longyear was awarded as compensation for the taking of parcel 4, and damages to the remainder of the lands from which it was taken, the sum of $1,000, and for damages to her lands lying south of Lake street she was awarded the nominal sum of $1.

There were many blue prints and some photographs offered in evidence, which cannot be reproduced here, which help very clearly to explain the situation. The railroad is south of the residence, and does not come within 300 feet of it. There is a space intervening from the house to Ridge street, then Ridge street, and then quite a deep lot and half of Lake street. On the east the right of way is at least 600 feet from the house, — four lots intervening, then Walnut street, and then a very considerable space before coming to the right of way. The jury viewed the premises. It was claimed on the part of Mrs. Longyear that all three tracts of land owned by her, and before described, were used in connection with her residence property, and that her damages would be at least $40,000. It was the claim of petitioner that damages should not be allowed, in making the award as to parcel 4, because of any supposed injury to Mrs. Longyear’s residence property north of Ridge street and west of Walnut street, but upon the part of Mrs. Longyear testimony was given upon that subject. Witnesses upon the part of the petitioner as to the damages caused by the taking of parcel 4 differed in their estimates, ranging from $50 to $300, while the award made by the jury was $1,000. It is insisted upon the part of the petitioner that this award could not have been made without allowing something for damages to the residence property north of Ridge street and west of Walnut street, and to that part of the property between Lake street and Ridge street west of Walnut.

In Michigan Air Line Railway v. Barnes, 44 Mich. 222 (6 N. W. 651), Justice Graves, speaking for the court, said:

“When the law provided how the tribunal should be constituted for these cases, and prescribed the method to be observed, it obviously contemplated that the practice respecting the admission of testimony should be as simple as a due regard to substantial justice would permit. It was not intended to leave the fate of the determination had in view to any finespun theories, or to the refinements which are not uncommon in trials at the circuit. They were not Supposed to be necessary to the fundamental purpose or beneficial working of inquests of this nature, and no provision was made for the certain attendance of any one presumptively qualified to deal with them. The statute plainly assumes that the jury may conduct the inquiry without the aid of any legal expert, and under circumstances in which it would be difficult, if not impracticable, to preserve technical or hair-drawn questions in a shape to be reviewed. And were the niceties of nisi prms to be insisted on, the proceeding would speedily break down under the perplexities and embarrassments due-to its own methods. The conclusion to which these and other considerations lead is that a very large discretion in admitting and rejecting testimony is left to the jury, or the attending officer, whenever there is one, and that, when the case is brought here by appeal, the award cannot be disturbed on account of such decisions, unless it is fairly evident, in view of the facts and circumstances, that the ruling was not only inaccurate, but was a cause of substantial injustice to the appellant in the matter of the result.”

In Toledo, etc., R. Co. v. Dunlap, 47 Mich. 456 (11 N. W. 271), Justice Campbell, speaking for the court, said :

“The judge formed no part of this special tribunal. The statute, indeed, allows the judge to ‘attend said jury, to decide questions of law and administer oaths to witnesses.’ Section 21, art. 2. But the same statute which allows this allows him to designate a circuit court commissioner for the same purpose, and also allows the jury to proceed without either. Whatever the language of this statute, literally construed, may mean, it is very clear that any such functions must, at most, be advisory. The jury will undoubtedly be regarded as accepting and doing what they permit to be done. But in all such cases the Constitution, as well as the principles of the common law, makes them judges of law and fact. Chamberlin v. Brown, 2 Doug. 120. Their conclusions are not based entirely on testimony. They are expected to use their own judgment and knowledge from a view of the premises, and their experience as freeholders, quite as'much as the testimony, of witnesses to matters of .opinion. And while an appellate court is bound in such cases to set aside proceedings which appear to be based on false principles, it cannot propexdy deal with rulings as if they were excepted to on a common-law trial, or dispose of the controversy on merely technical notions. Chamberlin v. Brown, 2 Doug. 120; Michigan Air Line Railway v. Barnes, 44 Mich. 222 (6 N. W. 651).”

In Fort-Street Union Depot Co. v. Jones, 83 Mich. 415 (47 N. W. 349), Justice Grant, in speaking for the court, quoted with approval the language of Justice Campbell in the case of Toledo, etc., R. Co. v. Dunlap, supra, and said:

‘ ‘ A careful examination of the testimony upon the question of values does not convince us that a case is made calling for the interference of this court. While, under the statute, this court may, upon appeal, set aside an award of the juxy, and order a new appraisal, this should only be done where it is clear that the award is against the evidence. In this case the damages awarded were within the values placed upon'the property by several witnesses. The jury knew the purpose for which the land was to be condemned, and we cannot say that they did not consider the value of the land for that purpose. They viewed the premises, saw the witnesses while testifying, and were chosen because of their supposed knowledge of the value of real estate in the vicinity. We cannot say that the award was against the evidence, or even against the weight of evidence.”

We think this branch of the case comes within those decisions. The question of damages was one about which different persons would greatly differ. There was testimony upon which to base the award, and, if it were not for an error as to parcel 5, we should not think it our duty to disturb the award.

It is true, as to parcel 5, that the line of the road is south of the center of the street. Mrs. Longyear, as before stated, is the owner of the land between Lake street and Ridge street, and west of Walnut street. While it may he true, as contended by the petitioner, that, in the award of'$1,000 for parcel 4, the jury took into consideration the damages to the above-described property, it is apparent they did not do so in awarding damages growing out of the taking of parcel 5. It is claimed on the part of the petitioner that, as the line of the road is south of the center of Lake street, it is not necessary that an award of damages to the land north of that street should be made to Mrs. Longyear before the railroad may be built, and that, if she suffers damages, she can recover them in an action at law after the line is completed; citing Grand Rapids, etc., R. Co. v. Heisel, 38 Mich. 62 (31 Am. Rep. 306). A reference to that case, however, will show it was not a condemnation proceeding,. and the question whether damages must be determined before the road could be built was not involved. When the case was here the second time (Grand Rapids, etc., R. Co. v. Heisel, 47 Mich. 393 [11 N. W. 212]), Justice Campbell, speaking for the court, said :

“Our American statutes, including our own previous to our statute of 1873, have been defective in not generally providing any statutory remedy for persons injuriously affected by the construction of public works, with the single exception of those who have had property taken specifically. But the statute now in force, and before referred to, has provided for the most important of these .cases, in favor of adjacent proprietors whose situation on public or other ways makes them the real parties most injured by their use for railways, and has, to this extent, relieved the law from an anomaly which the English statutes have always guarded against. The English courts, in construing their statutes, have usually applied them, when they could do so, as covering such damages as would have been actionable if no authority had been given to do the .injurious acts. And there has been no serious difference between the English and American courts in defining actionable rights. And where the company has not brought itself within the statutes, the common-law action has been fully maintained.
“It need hardly be said that nothing can be fairly termed compensation which does not put the party injured in as good a condition as he would have been in if the injury had not occurred. Nothing short of this is adequate compensation. In the case of land actually taken, it includes its value, or the amount to which the value of the property from which it is taken is depreciated; and in Jubb v. Hull Dock Co., 9 Q. B. 443, it was held that, where the property taken was a brewery in operation, the damages included the necessary loss in finding another place of business. In cases where damage is by injury aside from actual taking of property, the rule has been to-make the party whole, as nearly as practicable; and, where it affected the rental value or enjoyment, the same principle has been applied as in other cases. There is no reason, and, so far as we can discover, no law, which allows the wrongdoer to cast any portion of an actual and appreciable loss on the party whom he injures. In such a case as this it is in the power of the company, and always has been, to have the compensation settled once for all, and to get any benefit which the law attaches to such a method of ascertainment.”

The language of the statute (2 Comp. Laws, § 6234, subd. 5) is as follows:

“But such railway shall not be constructed upon any public street, lane, alley, highway, or private way until damages and compensation be made by the railroad company therefor to the owner or owners of property adjoining such street, lane, alley, highway, or private way, and opposite where such railroad is to be constructed, either by agreement between the railroad company and each owner or owners, or ascertain [ed] as herein prescribed for. obtaining property or franchises for the purpose of its incorporation, to be paid to the owner thereof, or deposited as hereinafter directed.”

This language is not ambiguous, and clearly gives Mrs. Longyear the right to have damages and compensation, as the owner of property adjoining Lake street on the north, if she has suffered any, before the railway can be constructed. See Riedinger v. Railroad Co., 62 Mich. 29 (28 N. W. 775); Nichols v. Railway Co., 87 Mich. 361 (49 N. W. 538, 16 L. R. A. 371). Because of this error, the award will - be set aside as to parcel 5. We deem it proper to add that, as to the block of land upon which the residence is situated, we do, not think it so adjoins Lake street that damages thereto should be given.

The other assignments of error have been considered. We do not regard them as tenable, and deem it unnecessary to discuss them.

■ The award is confirmed as to all the parcels, except parcel 5. The award as to parcel 5 is set aside, and the case is referred back to the same jury to appraise the damages caused by the taking of parcel 5 in accordance with this opinion.

The other Justices concurred.

       See, however, page 106, post.


author: Carpenter, J.

text:
    HUNT, ex rel. SNOW, v. BUHRER.
    1. Constitutional Law — Operation op Schedule to Constitution — County Oppioers — Terms op Oppice — Commencement— Wayne County Treasurer.
    Section 28 of the schedule of the Constitution, providing that the terms of office of all State and county officers, etc., shall begin on the 1st day of January next succeeding their election, was not a permanent limitation on the power of the legislature, and did not prohibit the enactment of Act No. 294, Local Acts 1895, providing that thereafter the term of office of the treasurer of Wayne county should begin on the 1st day of July next succeeding his election, and continue for the term of two years from such date.
    2. Same — Partial Invalidity op Statute.
    Conceding the unconstitutionality of the proviso to said act, which undertook to extend the term of the then incumbent of said office for six months (i. e., to July 1, 1897), the entire act was not thereby invalidated, since any vacancy in the office between the terms might be filled by appointment by the board of supervisors, under 1 Comp. Laws, § 2537.

      Error to Wayne; Hosmer, Brooke, Mandell, Donovan, Rohnert, and Erazer, JJ.
    Submitted April 21, 1903.
    (Docket No. 156.)
    Decided May 1, 1903.

      Quo warranto by Ormond F. Hunt, prosecuting attorney of Wayne county, on the relation of Frederick F. Snow, against Charles A. Buhrer, to determine the title to the office of treasurer of said county. From a judgment for respondent, relator brings error.
    Affirmed.

      C. K. Latham and E. B. Latham (John J. Speed, of counsel), for appellant.

      Corliss, Andrus, Leete & Joslyn, for appellee.
   Carpenter, J.

This is a proceeding in the nature of a quo warranto to determine who is entitled to the office of county treasurer of Wayne county during the six months from January 1 to July 1, 1903. Relator was elected to that office at the November election in 1902. Respondent was elected to that office at the November election in 1900. The controversy depends upon the constitutional validity of Act No. 294 of the Local Acts of the Legislature for the year 1895, which reads as follows:

The People of the State of Michigan enact, that hereafter the term of office of the treasurer of the county of Wayne shall begin on the first day of July next succeeding his election, and continue for the term of- two years from said first day of July: Provided, that the term of the present incumbent of the office shall end on-the thirtieth day of June, eighteen hundred ninety-seven.”

The judgment of the court below was in favor of respondent, and relator appeals to this court. He contended in the court below, and contends in this court, that said act is unconstitutional, for two reasons: (1) That its enactment was forbidden by section 28 of the schedule of the Constitution; and (2) that the provision lengthening the term of the incumbent of the office when the act took effect was unconstitutional, and impaired the validity of the whole act. We will discuss each of these questions.

1. Was the enactment of the law forbidden by section 28 of the schedule ? This section reads as follows:

“ The terms of office of all State and county officers, of the circuit judges, members of the board of education, and members of the legislature, shall begin on the first day of January next.succeeding their election.”

If this provision was intended as a permanent limitation of the power of the legislature, the act under consideration was unconstitutional; otherwise it was constitutional. An examination of the decisions of this court throws some light upon the construction to be given to the provisions of the schedule. In People v. Garlock, 5 Mich. 284, the question before the court for decision was whether the term of office of a circuit judge elected in a newly organized circuit commenced immediately after the election, or on the first of the following January. In deciding that case, the court, through Mr. Justice Christiancy, said:

“It is admitted that there is nothing in the body of the Constitution itself to postpone the immediate operation of the act, and the commencement of the official terms as soon as the result of the election was officially determined. But section 28 of the schedule provides, ‘ The terms of all State and county officers, of the circuit judges, members of''the board of education, and members of the legislature, shall begin on the first day of January next succeeding their election,’ and it is claimed that this applies to the judges and other officers elected under this act.
“Whether this section of the schedule was.intended to have any further effect than to provide for the period of transition from the old to the new Constitution, and to put the new Constitution into full operation, it does not become necessary here to decide; though, from the preamble or first clause of the schedule, declaring its purposes and the appropriate office of such schedule, it would seem that its chief object was to provide only for such transition, and to give any of its provisions a permanent and continuing operation, after the transition had been fully accomplished, the intent must be clear and manifest. But, admitting that this section was intended to have permanent effect as a part of the Constitution, still, after a careful examination of the whole subject, we are satisfied it was intended only to apply to officers elected for the full term, and at the time fixed by the Constitution.”

In People, ex rel. Douvielle, v. Manistee Co. Sup’rs, 40 Mich. 585, the question involved was whether the board of supervisors of Manistee county had a right to reduce the salary of the judge of probate after his election to that office. In the course of the opinion in that case, the court, through Mr. Justice Campbell, said:

“The first ground taken by the relator, that the schedule to the Constitution fixes the rights of the judges not to have their salaries changed (schedule, § 20 [which reads as follows: “The salaries or compensation of all persons holding office under the present Constitution shall continue to be the same as now provided by law, until superseded by their successors elected or appointed under this Constitution ; and it shall not be lawful hereafter for the legislature to increase or diminish the compensation of any officer during-the term for which he is elected or appointed”]), is, we think, untenable. The schedule was intended to provide for temporary, and not for future and permanent, purposes, and cannot be given a permanent operation in any case where any other interpretation is reasonable.”

It is to be observed of this case that, notwithstanding the refusal to give relator relief on the ground that the schedule was permanent, he did receive relief in that case on the ground that the legislature had not delegated to the board of supervisors authority to reduce his salary, and that without such delegated authority the reduction could not be made.

In the case of Board of Sup'rs of Houghton Co. v. Secretary of State, 92 Mich. 638 (52 N. W. 951, 16 L. R. A. 432), it was decided that the provision in section 22 of the schedule, “each county having a ratio of representation and a fraction over equal to a moiety of said ratio shall be entitled to two representatives, and so on above that number, giving one additional member for each additional ratio,” was a permanent limitation upon the power of the legislature. It is apparent from the reading of that decision that the court was very much influenced by the first part of the section, which reads:

“Every county, except Mackinaw and Chippewa, entitled to. a representative in the legislature at the time of •the adoption of this Constitution, shall continue to be so entitled under this Constitution.”

In my judgment, all these cases are consistent with the .principle announced by Judge Campbell, that “the .schedule was intended to provide for temporary, and not for future and permanent, purposes, and cannot be given a permanent operation in any case where any other interpretation is reasonable;” and with that announced by Judge Christiancy, “To give any of its provisions a permanent and continuing operation, the intent must be clear and manifest.”

If we look at the declaration preceding the schedule, and at the schedule itself, we reach the same conclusion. The men who framed the Constitution, and the people who adopted it, declared the purpose of the schedule in the following words:

“That no inconvenience may arise from the changes in the Constitution of this State, and in order to carry the same into complete operation.”

Under a schedule framed for this purpose, we have a right to believe that the makers of the Constitution would place no permanent limitation upon legislative power without using language which would unmistakably indicate their intent to make it permanent. If we examine in detail the provisions of the schedule, we find that some of them (like those which relate to the time and manner of adopting the Constitution itself) will have performed their entire office before the Constitution goes into effect; some of them (like those relating to the period of service of the legislators and county officers in office when the Constitution was adopted) will have performed their entire office in a limited time; others (like those relating to the common law and the police court of Detroit) will continue in force until changed by the legislature; while section 22, as heretofore stated, operated as a permanent limitation upon legislative power. If, therefore, the only reasonable construction that the courts can place on the language of section 28 is to hold that it permanently limits the power of the legislature to change the time of the beginning of the terms of county officers, the statute 'in question is unconstitutional; otherwise it is constitutional. Relator, in support of his claim that the only reasonable construction of said language is that of a permanent limitation on legislative power, advances several arguments, which we will notice.

It is said that section 8 of the schedule, which reads, “All county officers, unless removed by competent authority, shall continue to hold their respective offices until the first day of January in the year one thousand eight hundred and fifty-three,” means by inference that the first county officers elected under the Constitution will take office January 1, 1853, and therefore that there was no occasion for section 28 as a temporary measure. The makers of the Constitution, and the people who adopted it, might not have desired that the beginning of the terms of office of the first officials elected under the Constitution should be left to inference; and, because they did not choose to so leave it, we are by no means compelled to infer an intent to permanently limit legislative power!

Nor is the word “temporary,” in these decisions, used in any narrow sense. It is there used as opposed to “ permanent,” and not in the limited sense of referring to the immediate time the Constitution went into effect. Assuming that section 8 contains ample provision fixing the time when the first county officers elected under the Constitution shall take office, it certainly does not fix the time when their successors shall take office. The framers of the Constitution would have been short-sighted, indeed, if they had not made some provision to guard against the possible failure of the first legislature elected under this Constitution to enact a law fixing such time. Section 28 of the schedule is such a provision, and a provision which, in our judgment, has the force of an act of the legislature. This care taken to prevent the possibility of a hiatus arising does not require us to hold that the legitimate power to legislate, otherwise existing, is thereby limited.

It is urged that we are bound to declare that the provision fixing the beginning of the terms of the other officials enumerated in'this section — particularly those of members of the legislature — is permanent and continuous, and therefore that it should be held that the provision fixing the beginning of the terms of county officers cannot be changed by legislation. Relator’s argument that the part of section 28 of the schedule which fixes the beginning of the terms of members of the legislature is permanent maybe briefly stated as follows: The Constitution, read in connection with section 28, clearly requires that each legislature elected at the general biennial election in November shall assemble on the first Wednesday of the following January, and this requirement is not in the Constitution if section 28 is not a permanent provision. It is obvious that there is no force in this argument if the Constitution, without regarding section 28 as a permanent provision, requires each legislature elected in November to assemble on the first Wednesday of thé following January. We think it does so require. The Constitution vests the legislative power in the senate and house of representatives. Section i, art. 4. “Senators shall be elected for two years.” Section 2, art. 4. “Representatives shall be chosen for two years.” Section 3, art. 4. “The election of senators and representatives, pursuant to the provisions of this Constitution, shall be held on the Tuesday succeeding the first Monday of November in the year one thous- and eight hundred and fifty-two, and on the Tuesday succeeding the first Monday of November of every second year thereafter.” Section 34, art. 4. “The legislature shall meet at the seat of government on the first Wednesday in February next [this would be February, 1851], and on the first Wednesday in January of every second year thereafter, and at no other place or time, unless as provided in this Constitution.” Section 33, art. 4. It is consistent with this opinion, and in accordance with our holding, that section 28 of the schedule did fix January 1, 1853, as the beginning of the term of office of the first legislature elected under the Constitution. It follows from this, and from the provisions above quoted, without giving permanent effect to section 28 of the schedule, that the legislature elected in November must thereafter assemble the following January. Otherwise the provision of the Constitution fixing two years as the term of office of its members would be violated.

We should not, in this connection, overlook the circumstance that in the body of the Constitution (see section 2, art. 8) it is expressly provided that the term of office of the secretary of State, superintendent of public instruction, State treasurer, commissioner of the land office, auditor general, and attorney general shall commence on the 1st day of January, 1853, and of every second year thereafter. These are the State officers referred to in the clause “all State and county officers.” So far as these State officers are concerned, no principle of construction requires the language of section- 28 of the schedule to be given permanent effect.

Nor do we think it follows that because the legislature has not in fact, since the Constitution took effect, changed the time at which these terms of office begin, therefore it has no power to make that change. As well might it be urged that, because the legislature has not repealed or amended many of the Revised Laws of 1846, therefore it has no power to repeal or amend said laws.

It follows from this reasoning that a reasonable construction can be given to section 28 of the schedule without giving its language the force of a permanent limitation upon the power of the legislature to change the time for the terms of county officers to begin, and therefore it is our duty to declare that it is not such a limitation.

2. Does the proviso in the act, extending the term of the incumbent of the office of county treasurer, elected in November, 1894, for six months after the term for which he was elected, render the whole act unconstitutional? We are so well satisfied with the following reasoning of Judge Hosmer (who prepared the opinion in the circuit court) on this branch of the case that we make it a part of this opinion:

“But it is further urged that the act is void as it attempts to continue a treasurer in office after the expiration .of his term. It is unnecessary, in our view of the case, to decide whether this provision is constitutional. It is at least of extremely doubtful-validity. But, admitting its unconstitutionality, we do not regard it as controlling the act and rendering the whole void. It was, at most, only an incidental feature, to facilitate the carrying out of the act. That the whole scheme must necessarily fail because of the invalidity of the proviso, and a vacancy between terms, does not follow. It is quite probable the legislature might have provided for an election to fill this vacancy between terms at the general fall election, had the objection been raised at the time of the passage of the act; but we cannot credit a co-ordinate branch of the government with such a desire to extend the term of the then incumbent that they would, not have enacted the law without the proviso. Any one familiar with the business of the treasurer’s office at the time of the passage of the act, and with the difficulty of the payment of the taxes of Detroit before the 1st day of January under the then existing circumstances, can readily appreciate the inconvenience of turning over the office to a new official at such a time.
“Vacancies may occur and be filled until an election can take place. The requirement that a vacancy shall be filled by election is in furtherance of the spirit of local self-government, and it does not tend to support counsel’s contention that a change in the term of office is inhibited. Section 2537, 1 Comp. Laws 1897, provides, in case of a vacancy or disability, for appointment by the supervisors until the vacancy is filled or the disability removed. This section has stood unchanged since 1846. Rev. Stat. 1846, tit. 3, chap. 14, § 38; 1 Comp. Laws 1857, § 380; 1 Comp. Laws 1871, § 514; 1 How. Stat. § 522. See, also, Rev. Stat. 1838, pt. 1, tit. 3, chap. 3, § 23. Can it be contended in the case at bar that such an ad interim appointment is unconstitutional, or that the supervisors might not have appointed a person to succeed the then incumbent until an election might have been had to fill the vacancy occurring between the terms of office in consequence of the act of the legislature ?”

It results from this reasoning that the judgment of the court below must be affirmed.

Moore, Grant, and Montgomery, JJ., concurred. Hooker, .0. J., did not sit.