author: Ostrander, J.

text:
    ATTORNEY GENERAL, ex rel. HOOPER, v. LOOMIS.
    1. Statutes — 1Title—Sufficiency.
    A title of an act, in substance and effect declaring its purpose to be to amend the charter of a named city, stating the sections of the old charter amended and the sections added, and setting out the general purpose of the amendatory law, is sufficient under section 20 of article 4 of the Constitution.
    2. Same — Amendment—Republishing at Length.
    A local act (Act No. 392, Local Acts 1905), amendatory of a city charter, and establishing a municipal court and peace officers for the city, is not invalid under section 25 of article 4 of the Constitution because failing to set out sections of the general laws of the State which are thereby amended by implication.
    3. Justices of the Peaoe — Number Required by Constitution.
    A local act limiting the number of justices of the peace in a city is not obnoxious to section 17 of article 6 of the Constitution.
    4. Same — Jurisdiction—Municipal Courts.
    There is nothing in section 18 of article 6 of the Constitution preventing the legislature from conferring upon municipal courts such jurisdiction as is there given to justices of the peace.
    5. Conservators of the Peace — Constitutional Provision — . Exclusiveness.
    Section 19 of article 6 of the Constitution, providing that certain officers shall be conservators of the peace, does not prevent the legislature from making other officers conservators of the peace also.
    6. Courts — Justices of the Peace — Jurisdiction — Constitution.
    An act which creates a municipal court and confers power upon its judge to act as an examining magistrate, but does not attempt to deprive any justice of the peace of similar jurisdiction, does not conflict with section 19 of article 6 of the Constitution.
    7. Statutes — Unconstitutional Feature — Elimination.
    An act, the objectionable feature of which may be eliminated, leaving the remainder to stand as a valid and workable enactment, is not wholly void.
    8. Courts — Justices of the Peace — Limitation as to Number.
    Act No. 392, as supplemented by Act No. 610, Local Acts 1905, providing for a municipal court for the city of Battle Creek consisting of a judge and an associate who exercises his powers only in the absence or on direction of the judge, cannot be sustained as a mere limitation of the number of justices of the peace for the city.
    9. Municipal Courts — Jurisdiction—Territorial Extent.
    Act No. 392, as supplemented by-Act No. 610, Local Acts 1905, attempting to create a municipal court for the city of Battle Creek, contemplating that its process shall run, both in civil and criminal cases, beyond the confines of the city, and that its judges shall exercise all the powers of justices of the peace, which officers it supersedes, is invalid.
    10. Justices of the Peace — Necessity.
    It may well be doubted if it is within the power of the legislature to set up a community in which the powers and duties of justices of the peace shall have no recognition.
    Quo warranto proceedings by John E. Bird, attorney general, on the relation of Joseph L. Hooper, prosecuting attorney of Calhoun county, against Fred W. Loomis to try the title to the office of judge of the municipal court of Battle Creek.
    Submitted October '3, 1905.
    (Docket No. 254.)
    Judgment of ouster entered October 31, 1905.
    Act No. 392, Local Acts 1905, to'test the validity of which this suit was brought, is as follows:
    ‘ £An act to amend sections one and two of chapter three; and section one of chapter twenty-three, and to add to said chapter twenty-three twenty-five sections to be known as sections two, three, four, five, six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, eighteen, nineteen, twenty, twenty-one, twenty-two, twenty-three, twenty-four, twenty-five, and twenty-six of act number four hundred and thirty of the local acts of eighteen hundred ninety-nine, entitled ‘An act to amend and revise the charter of the city of Battle Creek,’ approved June one, eighteen hundred ninety-nine, as amended by act number four hundred fifty-two, of the local acts of nineteen hundred one, approved May twenty-eight, nineteen hundred one, as amended by act four hundred seventy-eight of local acts of nineteen hundred three, approved May twenty, nineteen hundred three, and to establish and provide a municipal court in said city in the' place and stead of justice courts, to provide a judge and associate judge of said court and to define the duties and fix the compensation of said judge and associate judge; and to limit the number, to define the duties, and fix the compensation of constables, and to repeal all acts or parts of acts inconsistent herewith.
    “ The People of the State of Michigan enact:

    “Section 1. Act number four hundred thirty of the local acts of eighteen hundred ninety-nine entitled ‘ An act to amend and revise the charter of the city of Battle Creek,’approved June one, eighteen hundred ninety-nine, as amended by act number four hundred fifty-two of local acts of nineteen hundred one, approved May twenty-eight, nineteen hundred one, as amended by act number four hundred seventy-eight of the local acts of nineteen hundred three, approved May twenty, nineteen hundred three, is hereby amended by amending sections one and two of chapter three; by amending section one of chapter twenty-three, and by adding to said chapter twenty-three twenty-five sections to be known as - sections two, three, four, five, six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, eighteen, nineteen, twenty, twenty-one, twenty-two, twenty-three, twenty-four, twenty-five, and twenty-six, so that said amended sections and said added sections of said chapters shall read as follows:
    “Chapter III.
    “ Section 1. The following officers shall be elected from among the electors of said city, to wit: One mayor, one recorder, who shall be ex officio city clerk, one treasurer, three assessors, one judge, and one associate judge, of the municipal court, and two constables, to be elected and to hold their respective offices as follows, and until their successors are elected and qualified to wit: At the annual charter election in AJril, A. D. nineteen hundred five and every two years thereafter, there shall be elected one mayor, who shall hold said office for two years, and who shall be ineligible for two consecutive terms; one recorder and one treasurer, who shall each hold said office for one 3rear; one assessor who shall be elected for a term of three years as provided in section three of this act, which section is hereby continued in force and effect; one judge, and one associate judge, of the municipal court, who shall each hold his office for four years; and two constables who shall be elected one for the term of one year and one for the term of two years, and one constable shall be elected annually thereafter for the term of two years. At the charter election to be held in April, A. D. nineteen hundred six, and every two years thereafter, there shall be elected one recorder, and one treasurer who shall hold their respective offices for two years.
    “Sec. 2. There shall be elected annually in the several wards, from among the electors thereof, one alderman, who shall hold his office for two years, and until his successor shall be elected and qualified.
    “Chapter XXIII.
    ‘ ‘ Section 1. There shall be established in the city of Battle Creek a municipal court, with one judge, one associate judge and one clerk as hereinafter provided, which court and officers thereof shall have the same powers and jurisdiction and duties as are, or may be, provided by law in regard to justices of the peace and justice courts in the several townships of this State, except as otherwise hereinafter provided. The title of said court shall be the ‘ Municipal Court of Battle Creek.’
    “Sec. 2. The constables of the city elected as provided by chapter three of this act, shall have the like powers and authority in civil and criminal cases and in relation to the service of all manner of civil and criminal process issued out of said municipal court, and also such as is conferred by law upon constables in townships. They shall have power to serve all processes issued for breaches of the ordinances of the city and shall be ex officio members of the police force of said city. They shall obey all lawful orders of the said judge and associate judge not inconsistent with his statutory duties; and they shall attend upon the said court whenever required so to do by the said judge or associate judge. They shall discharge all duties required of them by any ordin^ce, resolution or regulation of the common council; and for any refusal to perform any duty lawfully required of them every constable shall be subject to a penalty of not less than five nor more than fifty dollars; and he and the sureties upon the bond to be filed by him as hereinafter required, shall be liable to any person injured for any neglect or refusal^ on his part to perform any lawful duty required of him. Every constable, before entering upon the duties of his office shall give such security for the performance of his duties as is required of constables in townships, and also such as may be required by the common council of the city of Battle Creek, and file the same with the recorder. Each of said constables shall receive a salary to be determined by the common council on or before the first Monday in March of each year for the ensuing year, to be paid monthly by the treasurer of said city, in the same manner that other salaries are paid: Provided, That the common council shall fix the said salary for the year nineteen hundred five on or before the first regular meeting^ in June, nineteen hundred five. Said constables shall receive no fees or perquisites for the performance of any duties required of them as said constables in criminal cases and for violations of the ordinances except that in criminal cases and in cases brought for any breach of the ordinances of said city for services performed outside of the city, they shall receive from the city of Battle Creek, their actual and necessary expenses, to be allowed by the common council like other claims. Each of said constables shall keep a correct itemized account of all such expenses, and of all fees in criminal cases which by the general laws of this State he would be entitled to receive for services rendered by him as constable, if compensation for such services were not made by salary as herein provided, and file a verified statement thereof with the judge of said court -at the close of each month. Said judge shall examine the same and shall certify thereon whether he believes the same to be correct, and transmit the same together with the verified statement required of him by section twenty-three of this chapter to the common council. The constables elected under the provisions of this act shall qualify and enter upon the duties of their respective offices in like manner as other city officers provided for in this act.
    “Sec. 3. At the general election held in April nineteen hundred five, and every four years thereafter, there shall be elected one judge of the municipal court whose term of office shall commence on the fourth day of July following his election and continue for four years and until his suecessor shall be elected and qualified, and he shall be elected on the general city ticket in the manner provided for the election of other city officers.
    “Sec. 4. At the general charter election held in April, nineteen hundred five and every four years thereafter there shall be elected one associate judge of the municipal court whose term of office shall commence on the fourth day of July following his election and continue for four years and until his successor shall be elected and qualified, and he shall be elected ón a general city ticket.
    “Sec. 5. Said associate judge shall have no powers, duties or jurisdiction except only at such times and in such cases as there shall be a vacancy in the office of the said judge, or when said judge shall be unable to perform the duties of his said office by reason of sickness or his absence from the city, or, he shall be disqualified to act by the general law of this State, or when justice demands and to avoid delay the judge deems it expedient, then at such times and in such cases said associate judge shall for the time being assume the powers, duties and jurisdiction of said judge, shall proceed to the trial of cases already commenced, issue process and commencement of new cases, and conduct the affairs and business of said court as judge of said court until said judge is again able to perform the duties of said office and the cases commenced and unfinished by said associate judge shall be conducted and finished by said judge.
    “Sec. 6. Said judge and the associate judge in the cases hereinbefore provided shall have jurisdiction to hear, try and determine all charges and offenses and misdemeanors alleged to have been committed within the said city, and which by the general laws of the State áre within the jurisdiction of justices of the peace. Said-court and the judges thereof shall also have jurisdiction to hear and examine all charges for crimes alleged to have been committed within the city and which by the general laws of the State are examinable by and before justices of the peace, and to hold to bail or commit for trial in the circuit court for the county of Calhoun. They shall also have concurrent jurisdiction with justices of the peace of the county of Calhoun as to all crimes, offenses and misdemeanors when alleged to have been committed without the city, but within the county of Calhoun: Provided, however, That this section shall not affect the jurisdiction of justices of the peace now in office within this city until each of such offices shall be discontinued under the operation of this act.
    “Sec. 7. The general laws of the State and this act relating to justices of the peace shall in all things apply to and govern said court and the offices thereof, except as otherwise provided in this act.
    “ Sec. 8. The said municipal court and the judges thereof shall have original jurisdiction of all civil actions wherein the debt or damages do not exceed the sum of one hundred dollars, the same as justices of the peace under the general law of the State, and concurrent jurisdiction of all civil actions upon contract express or implied wherein the debt or damages do not exceed five hundred dollars, with such provisions, exceptions and restrictions, as exist under the general law pertaining to justices of the peace: Provided, however, That no justice of the peace of any of the townships in the county of Calhoun shall have jurisdiction over any cause or proceeding, where both parties to the same or one or more of the plaintiffs and one or more of the defendants reside in the city of Battle Creek at the time of the commencement of the proceeding or cause, nor in case where the original cause of action existed in favor of a plaintiff and against a defendant, both residents of said city, and has been assigned to a nonresident of said city.
    “ Sec. 9. Said judge and the associate judge as is herein-before provided, are hereby authorized, empowered and required to inquire of, hear, try and determine in a summary manner, all offenses which shall be committed within this city against any of the by-laws or ordinances made by the common council of the city, or arising under the provisions of this act, to punish the offenders as by the said by-laws or ordinances, or by this act shall be prescribed or directed; to award all process and to take recognizances for the keeping of the peace, for the appearance of the person charged, and upon appeal or certiorari, and to commit to prison as occasion shall lawfully require: Provided, however, That this section shall not affect the jurisdiction of justices of the peace now in office within the city.
    “ Sec. 10. Said judge shall receive no fees to his own use, but in lieu thereof shall be paid from the city treasury an annual salary of fifteen hundred dollars a year payable in equal monthly installments.
    “ Sec. 11. Said associate judge shall receive a per diem compensation of five dollars when holding court for and in the place of the said judge, the same to be deducted from the salary of the said judge; and if at any time it shall be expedient or necessary for the said judge and associate judge to hold court at the same time the associate judge shall receive the same compensation as the said judge and shall be paid from the city treasury: Provided, That in case said judge shall not be absent from duty to exceed fifteen days during the year, no deduction shall be made from his salary.
    “ Sec. 12. There shall be a clerk of the municipal court to be appointed by the common council upon the nomination and recommendation of the said judge, and who may be suspended or removed by said judge at any time, with the consent of the common council, and who shall receive an annual salary fixed by a two-thirds vote of the common council, the same to be fixed on or before the first regular meeting in March of each year. Said salary shall be payable in equal monthly installments from the city treasury: Provided, That the common council shall fix the said salary for the year nineteen hundred five on or before the first regular meeting in June, nineteen hundred five.
    “Sec. 13. The common council shall provide and furnish for the said court a suitable and convenient court room, with jury room adjacent and a private office, and provide and furnish with desks, fire-proof safe, tables, furniture, fuel, blanks and stationery, and such other things as may be required to properly transact the business of said court.
    “ Sec. 14.' The judge or associate judge may call upon any constable in the city, or upon the chief of police to detail one or more policemen, as the said judge may direct, to attend upon and keep order in the municipal court under the direction of said judge or associate judge.
    “ Sec. 15. Such judge and the associate judge shall qualify in the manner provided by the general laws of the State for justices of the peace, but their bonds shall be approved by the common council.
    “ Sec. 16. Said clerk shall qualify by taking the constitutional oath and giving a bond in such amount and with such sureties as may be required by the common council.
    “Sec. 17. Said clerk shall, under the direction of the judge, keep three dockets, which dockets shall contain all that is required to be kept under the general laws of the State, relating to justices. In one of said dockets shall be kept a record of all civil business, in another all criminal business, and in the third all cases under city ordinances, rules and by-laws. He shall also keep a general record book in which shall-be entered all general rules, orders, notices and matters of which record should be kept, and which do not properly come under either of the three subdivisions above provided. He shall also file and safely keep and care for all books, papers, and other things coming to his hands as such clerk, being subject at all times to the direction and control of said judge, and said dockets shall be signed by said judge or by the associate judge when acting.
    “Seo. 18. The justices of the peace now in office shall continue to hold their offices until the expiration of their respective terms, and no longer, and so long as they remain in office their jurisdiction shall remain unchanged except that after the judge and associate, herein provided for, shall have been elected, qualified and entered upon the duties of their offices, all prosecution for the violation of any ordinance shall be brought before said municipal, court and not elsewhere.
    “ Sec. 19. In every civil action or proceeding, except garnishment proceedings commenced in said municipal court, there shall be paid to the clerk by the plaintiff, an entry fee of one dollar, and before the trial of any action or proceeding shall be commenced, such party shall pay a judgment fee of one dollar in cases where the defendant shall not appear and join issue, and two dollars in cases where issue is joined between the parties; but in case of nonsuit before commencement of trial no judgment fee shall be required; proceedings in garnishment shall be treated as part of the principal cause and no additional fee shall be required therefor, except when an issue of fact shall be joined in respect to the liability of any garnishee; in such case a judgment fee of two dollars shall be paid before such trial shall commence. The fees provided in this section shall be in full for court costs and proceedings in said cause to and including the issue of an execution upon the judgment therein, and shall be taxed in favor of the party paying the same if he be the prevailing party in the suit. The fees for all alias writs, and duplicate garnishment proceedings to be the same as provided by statute, and shall be taxed and collected in addition to the fees above specified. The jury and officers’ fees provided by general law shall be paid in addition to the foregoing fees. For all services and proceedings subsequent to the issuing of an execution or for the purpose of staying proceedings or removing causes to an appellate court, there shall be paid to the said justice the fees provided by law. In all criminal cases where a fine may be imposed it shall and may be lawful to include in the sentence such an amount for costs as would be taxable, under the general laws of the State, in justices’ courts, and all such costs and fees and moneys collected by such justice for or on account of the business of his office, except as herein otherwise provided, shall be paid over by said clerk to the city treasurer as hereinbefore provided. The fees of witnesses and jurors in criminal cases shall be paid in the same manner as is now provided by law for the payment of such fees by justices in townships, and all fines imposed by the said justice for the violation of any of the criminal laws of this State, except such as are imposed as costs as aforesaid, shall be, by the clerk of said court, paid to the treasurer of the county of Calhoun as required by law.
    “ Sec. 20. All moneys paid to said clerk, except jury, officer and witness fees, and except all fines and costs recovered for the violation of the penal laws of this State, shall be for the use of the city and shall be paid to the city treasurer, who shall give duplicate receipts therefor: Provided, That the constables provided for in this act shall be entitled to receive and collect in all civil cases the fees provided by statute: Provided, also, This act shall in no way affect the fee to which said judge may be entitled on the performance of marriage ceremonies, taking acknowledgments and administering oaths in matters not connected with any litigation in said municipal court: Provided, further, That said judge shall not engage in the collection of claims and accounts and shall not be connected with any collection agency.
    “ Sec. 21. As the term of office of the justices of peace now in office shall expire, their dockets, and the dockets then in their possession shall be turned over and delivered to the court herein provided for, and said judge is hereby authorized to issue executions, or other processes, as is . now or may be authorized by law upon any judgment appearing therein.
    “Sec. 22. Vacancies in said offices of judge of the municipal court and associate judge of the municipal court shall he filled for the unexpired term in the manner provided for filling vacancies in office by this act by election at any general election or charter election held in this city, or any special election held for that purpose, in accordance with the provisions of this act for holding special elections.
    “Sec. 23. All fees and costs taxable by law, shall be collected by said clerk, and monthly, or oftener if required by the common council, he shall pay over to the city treasurer all moneys received by him belonging to the city, taking duplicate receipts therefor, and filing one of such receipts with his sworn statement of the amounts with the city clerk, the other to be kept, and filed in the office of said court.
    “ Sec. 24. Process may be signed in blank in civil cases and left with said clerk, and may be issued by him on proper application or showing, and said clerk is authorized to administer oaths in all cases wherever an oath is required. >,
    “ Sec. 25. In cases of appeal or certiorari the said clerk may make and certify a return thereto which shall have the same force and effect as if made and certified to by said judge.
    “Sec. 26. In all prosecutions before said court for a violation of any of the general laws of the State, the county of Calhoun shall be liable for court, constable and other fees and costs, to the same extent that it is liable under the general laws of the State for justice and constable fees and costs, and the clerk shall make out and certify such bill in the name of the court and present the same to the board of supervisors for said county, and said board shall allow the same as in other cases of bills from justices and constables, and the amount of the order therefor when received shall be paid over and delivered to the city treasurer. In case of examination of offenders by said court for offenses committed against the criminal laws of this State where such court has jurisdiction to examine and to hold to bail only, it shall be lawful for said judge, on motion of the prosecuting attorney, to cause an order to be entered in the records of such court before or during the pendency of said examination, appointing some suitable stenographer to take down in shorthand the testimony of such examination; and such stenographer so appointed shall receive such per diem compensation for the time so expended in taking such testimony and such price per folio for writing out the same in longhand, as shall be fixed by the board of supervisors, the same to be allowed and paid out of the treasury of said county.
    “All acts or parts of acts inconsistent with, or contravening this act are hereby repealed.
    “ This act is ordered to take immediate effect.”

      John E. Bird, Attorney General, and Joseph L. Hooper, Prosecuting Attorney, for relator.

      E. W. Loomis ( O. S. Clark, of counsel), in pro. per.
   Ostrander, J.

At its 1905 session the legislature enacted and gave immediate effect to an act which is set out at length above. Act No. 392, Local Acts 1905. Later, at the same session, another act was passed and given immediate effect, which declares of the act first referred tb that the court therein provided for—

“Was intended to and is hereby declared to have all the authority, powers and. jurisdiction of justices of the peace, and the municipal judge provided for therein, together with the associate judge when acting in his place and stead, was intended to be and is hereby declared to be and constitute, ex officio, a justice of the peace.” Act No. 610, Local Acts 1905.

Respondent has been duly elected to office under the provisions of this legislation and has qualified. By an information in the nature of a quo warranto, the attorney general attacks respondent’s right to the office, claiming that the legislation is invalid. The objections to the legislation, specified in the replication and considered in the briefs, are:

“1. The said Act No. 392 is void because it embraces more than one object, in that it undertakes to establish a municipal court, and to discontinue justices’ courts, in said city of Battle Greek, and seeks to limit the number, define the duties, and fix the compensation of constables within said city, contrary to section 20 of article 4 of the Constitution of this State.
“2. It undertakes to revise, alter, and amend the general laws of the State relative to justices’ courts and jus■tices of the peace, without referring to the laws so sought to be revised, altered, or amended, or re-enacting or publishing the same, contrary to section 25 of article 4 of the ■Constitution.
“3. It undertakes to abolish the office of justices of the peace, so long established within the city of Battle Creek, -and to decrease the number of justices of the peace within said city, contrary to section 17 of article 6 of the Constitution.
“4. It undertakes to confer upon said municipal court powers beyond the limits of said city, and to give it jurisdiction over things beyond the limits of said city, not pertaining to municipal affairs.
“5. It undertakes to confer upon said municipal court -the powers exclusively belonging to justices’ courts, contrary to section 18 of article 6 of the Constitution.
“6. It undertakes to make the judge and the associate .judge of said municipal court conservators of the peace, contrary to section 19 of article 6 of the Constitution.
“7. It undertakes to alter, revise, and amend the general laws of the State relative to constables and their powers, duties, and compensation, without re-enacting or publishing the same, as required by section 25 of article ■4 of the Constitution.
“8. It undertakes to alter, revise, and amend many •sections of the charter of said city without re-enacting or publishing the same.
“Relator further alleges that said Act No. 610 is void because it undertakes to alter, revise, and amend many ■sections of said Act No. 392, and many sections of the ■charter of said city of Battle Creek, and many acts and •sections of the general laws of the State of Michigan, without re-enacting or publishing the same, as required by section 25 of article 4 of the Constitution.”

If we confined ourselves strictly to the objections specified, it is probable that each of them might be well answered. The objections based upon the title of the act are not well taken. In substance and effect, the act is entitled an act to amend the charter of the city of Battle Creek. The particular sections of the old charter which are amended and the sections added are stated, and the gen-eral purpose of the amendatory law is set out. It is sufficient to refer upon this point to the reasoning of this court in People v. Mahaney, 13 Mich. 481, 494; Underwood v. McDuffee, 15 Mich. 361, 367. See, also, People v. Hurst, 41 Mich. 328; Attorney General v. Amos, 60 Mich. 372.

The second and seventh objections are bad. They are answered by saying that the law in question does not undertake to revise, alter, or amend any general law or general laws of the State. See, also, People v. Mahaney, 13 Mich. 496.

The eighth objection is not well made. The sections of the old charter which are in fact amended are re-enacted at length. If it is intended by the objection to say that other sections are by implication amended, the authority above cited is controlling of the point.

As to the third objection, we do not find in section 17, art. 6, of the Constitution, any rule fixing the minimum number of justices in cities; nor, fifth objection, do we find in section 18, art. 6, anything prohibiting the legislature from giving to municipal courts such jurisdiction as is there given to justices of the peace. The fact that section 19, art. 6, makes certain officers conservators of the peace within their respective jurisdictions, cannot be held to prevent the legislature from making other officers conservators of the peace. It is true that the power to examine and commit persons charged with crimes not cognizable by a justice of the peace belongs to the duties of a conservator of the peace. Allor v. Wayne County Auditors, 43 Mich. 76. See, also, Daniels v. People, 6 Mich. 381. And an act depriving justices of the peace of a city of jurisdiction as conservators of the peace, as such jurisdiction was held and recognized when the Constitution of 1850 took effect, has been held to be void. Averill v. Perrott, 74 Mich. 296. The act before us does not attempt to deprive any justice of the peace of jurisdiction, whether conferred by the Constitution or by statute.

As to the fourth objection made, it might be answered that the proviso to section 8, chap. 23, might be eliminated from the act, leaving the remainder to stand as a valid and workable enactment.

It is apparent, however, that it is sought in this case to present a larger question, indicated, but not formulated, in the specific objections made, and one of considerable public importance. The purpose of the legislature in making the amendments to the charter of Battle Creek is plain. A reference to section 1 of chapter 3 of the charter, as it is found in Act No. 430 of the Local Acts of 1899, shows that among the officers whose election is there provided for are four justices of the peace. The amendments we are considering do not provide for the election of any justices of the peace, and, while not attempting to vacate the offices of those now serving, makes no provision for filling the offices when the terms of present incumbents shall have expired. In effect, the amendments are intended to supply a single court and judges thereof with a jurisdiction, as to subjects and amounts involved, within the limits of constitutional jurisdiction of a justice of the peace, to do the business heretofore done by four justices of the peace in the city of Battle Greek, and to pay the judges a salary. To come directly at the real point in controversy, it is: Can the legislation be sustained, either (1) as a provision for limiting the number of justices of the. peace in Battle Creek, or (2) as an act creating a municipal court ? It is not contended that the legislature may not constitutionally provide for a single justice in cities. There is an express constitutional provision for creating municipal courts. It is manifest, however, that there is a considerable difference between limiting, in a community, the number of constitutional judicial officers who shall exercise constitutional and other powers and creating a court for municipal purposes.

1. The act does not provide for the election of a justice of the peace eo nomine. It does confer upon the judges, and the court created, the jurisdiction of a justice of the peace in civil and in criminal matters, together with an extended jurisdiction stated in the proviso to section 8, chap. 23. In view of the declaratory act, it might be held that the legislation could be given effect as a provision for a single justice of the peace, if it were not for the further provisions concerning the election and duties of an associate judge. It is provided that the associate judge shall have no powers, duties, or jurisdiction, except only at such times and in such cases as there shall be a vacancy in the office of the said judge, or when said judge shall be unable to perform the duties of his said office, or when justice demands and, to avoid delay, the judge deems it expedient. We cannot say, reasonably, that the act means to provide for two justices of the peace, because a justice of the peace is clothed, by virtue of his election to office, with powers which are not subject to be exercised or refused exercise at the will of some other justice of the peace, or assumed and discarded as the absence or sickness of another justice may require. In view of all of the provisions of the act, we cannot assume that the legislature would have passed it with the provisions concerning the associate judge and the jurisdiction of the court omitted, and, taking the act as a whole, we cannot sustain the legislation as intended merely to limit the number of justices of the peace in the city of Battle Creek.

2. It is true the title of the act announces the purpose to be to establish and provide a municipal court, but we are obliged to test the purpose of the act, not by its title alone, but by the body of the act as well. There is also to be considered, as declaratory of the legislative intent, the subsequent act. It is clear that the court was not established to relieve existing courts. The jurisdiction of the coprt is in no manner limited by the boundaries of the city. The court serves no municipal purpose as distinguished from a general public purpose, except in the exercise of jurisdiction under the provisions of section 9 of chapter 23. It was said by Mr. Justice Campbell, speaking for the court, in Allor v. Wayne County Auditors:

“ The power of justices of the peace to try civil causes is so fixed by the Constitution that they are absolutely necessary magistrates in cities as well as elsewhere. Their power to try criminal offenders is statutory, but it is contemplated by the Constitution that it shall exist to some extent, and the general statutes have extended this jurisdiction to a large class of minor offenses, and it can only be restricted by the special municipal criminal jurisdiction in cities. A municipal court could not be authorized to try extra-municipal crimes, and no attempt has ever been made to permit it.”

Much that is said by this court in the opinion in Grand Rapids, etc., R. Co. v. Gray, 38 Mich. 461, is applicable Itere. See, also, Scott v. Wayne Circuit Judges, 58 Mich. 312; Denison v. Smith, 33 Mich. 155; and, generally, Tiedeman on Municipal Corporations, § 102 et seq.; 1 Dillon on Municipal Corporations (4th Ed.), § 424 et seq.; Commonwealth v. Hawkes, 123 Mass. 525. It is expressly contemplated by the act in question that the process of the court shall run, both in civil and in criminal cases, beyond the confines of the city, and that the court and the judges thereof shall exercise all of the powers of justices of the peace.

We are of opinion that the act in question cannot be sustained as establishing a municipal court in the city of Battle Creek.

Various other objections to the validity of this legislation suggest themselves. It has been many times declared by this court that the municipal corporations of the State are required to be organized in such a way as to preserve to the inhabitants full means of local self-government. The exercise of the judicial power within every community is one means of government. It may well be doubted if it is within the power of the legislature to set up a community in which the powers and duties of justices of the peace shall have no recognition, and much that is said in Allor v. Wayne County Auditors concerning constables would seem to apply to justices of the peace.

It follows that judgment of ouster must be entered.

Moore, C. J., and McAlvay, Grant, and Hooker, JJ., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    BODEWIG v. CITY OF PORT HURON.
    1. Municipal Corporations — Liabilities—Use oe Premises.
    A city which by its charter is required to provide a pesthouse or hospital, and which makes use of a private dwelling for a hospital, must pay the owner of such dwelling a reasonable sum for the use thereof, although the city obtained possession by a trick or trespass committed by its officer or agent.
    2. Same — Liability por Torts — Acts op Oppioers.
    A city is not liable for damages resulting from the act of its health officer in tortiously entering into and wrongfully using a private house as a pesthouse, where it neither directed nor authorized the trespass, nor ratified the health officer’s act, although it had the benefit thereof.
    Error to St Clair; Tappan, J.
    Submitted October 10, 1905.
    (Docket No. 29.)
    Decided October 31, 1905.
    Case by John Bodewig against the city of Port Huron for damages to certain property by reason of its use by defendant as a pesthouse. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.
    Reversed.
    Plaintiff owned six houses on the south side of Bancroft street, in the city of Port Huron, which he leased for dwelling houses. In January, 1902, Dr. H. R. Mills, who was at that time health officer of the city, called upon plaintiff, asking if he had an empty house. Plaintiff replied that he had one on Bancroft street, gave Mills upon his request a key to the house, and offered to go with Mills to look at the house. Mills said he would not go until morning, and asked for what sum the house rented. Plaintiff replied that the rental charge depended upon the family. He was told there would not be much of a family, and said that for the winter months the house could be had for $6 a month. Mills stated that he would be around in the morning and go with plaintiff to look at the house, and he went away with the key. Mills did not return in the morning, and plaintiff, going to the house, found it occupied and placarded. Meeting Mills, he said: “‘Mr. Mills, you done an awful job on me.’ ‘ Well,’ he says, ‘ well, we couldn’t help ourselves,’ and he didn’t do it alone.” A few days later a red sign, with the word “small-pox,” appeared on the house. It was used as a detention hospital and pesthouse, and was placarded until late in the summer of 1902. In May, 1903, the house was, under direction of the then health officer of the city, fumigated, and was by him rented for six dollars a month; the rent for two months being paid to him and by him to the city treasurer. In August, 1902, plaintiff presented to the common council of the city a claim, verified, setting up the taking possession of the house by the health officer, the use to which the house had been and was being put, alleging damage, not only to the particular house and its rental value, but also to the houses adjoining. The claim was referred to the committee on ways and means. In February, 1903, plaintiff sent to the council a further communication, in which was recited the filing of the claim, its reference to a committee, and no subsequent action, asking for action and hearing before the committee. It was consented on the part of the city, at the trial, that the claim might be treated as having been disallowed by the council.
    In June or July, 1903, plaintiff began suit against the city of Port Huron. The declaration names the action as “trespass on the case,” and, after averring ownership of the property in question and of the adjoining property, charges in the first count that the defendant, “with force and arms and without leave, license, or permission ” from plaintiff, “took possession of one of the said houses,” describing it, and changed and converted it into and used it for a pesthouse, placarded it to show its use.
    “ Then and thereby and by means thereof causing great and continuing damages and annoyance and great loss to the said plaintiff, both as to the- house and premises so taken possession of by the said defendant, and the houses and premises of the said plaintiff in close proximity thereto, to the plaintiff’s damage.”
    The second count of the declaration reads as follows:
    “And for that, whereas, heretofore, to wit, on the 22d day of January, A. D. 1903, said plaintiff was the owner of and in possession of a certain house and premises, located and being the second house west of Thirteenth street and being on Bancroft street, in the city of Port Huron, which said house and premises was of great value, to wit, of the value of $1,200.00, and while he, the said plaintiff, was so in possession of said premises the said defendant, by its officers, agents, servants, and employes, with force and arms and without leave, license or permission, on, to wit, the day aforesaid, took possession of the said house and premises and converted the same into a pesthouse, and forcibly ejected plaintiff therefrom, and since said time and from thence hitherto has continued to hold and occupy said premises, contrary to the rights of said plaintiff, and did for a long space of time, to wit, for upwards of one year, continue to use and occupy said house Bind premises as a house used for persons afflicted with contagious diseases, to wit, with the contagious disease commonly called ‘smallpox,’ and has refused and neglected and still refuses and neglects to pay the said plaintiff anything for the use and occupation of said premises, although often requested so to do, to the plaintiff’s damage of $2,000.00.”
    There are other averments of loss of rents and profits. The plea does not appear in the printed record, and upon the trial no testimony was introduced on the part of the defendant.
    When the case for the plaintiff was rested, counsel for defendant moved that a verdict for defendant be directed for the reason that—
    “ This is an action of trespass on the case, according to-the declaration, and the case as attempted to be made out is an action of trespass; also for the reason that the trespass, if it should be treated as an action of trespass, the trespass as proven occurred subsequent to the trespass as alleged in the declaration, which I understand is fatal; and for the further reason that this is an action of tort, and, being such, the city is not liable for the wrongful acts of its health officer, if there were any wrongful acts.
    “My proposition is this: That, while the city is responsible in many instances for the acts of its agents in a civil action, and while the city in a civil action might be liable for the rent of this place, because the health officer rented it or used it, in an action of assumpsit or a proper action, the city might be held liable; but that is not the case we have here. We have here the case of aman who happens to be holding the office of health officer of the city, and who is performing a duty, not a duty of the city, not a duty that is doing any good to the city as a city, but a duty that is imposed upon him by the State law for the benefit of the health of all the citizens; and my proposition is that in that case that the city is not liable for his tortious act, that the city is not liable for the fact that he may have done some wrong, that where a city is obligated by the State law to do certain acts, not for itself, but for the State, that it may have certain civil liabilities in assumpsit, but that it is not liable for a tort. That is the basis of my motion.”
    This motion was overruled. The court also declined to give defendant’s fourth, fifth, and sixth requests to charge, which were:
    “4. You are instructed to direct a verdict for the defendant, for the reason that it is not shown that the city of Port Huron authorized any of the trespasses alleged to have been committed or proved.
    “5. I instruct you that the defendant cannot be held liable for the acts complained of, and it is not responsible for the torts of its health officer or health board, and cannot be held liable for the torts of such officers.
    “6. 1 instruct you that, if the trespass complained of was committed, still there is nothing in the proof which would warrant the jury in finding that defendant could have authorized the same, or could have done any act which would make the city liable on account of the same.”
    After carefully excluding from the consideration of the jury all elements of and claim to damages, except the proper rental to be allowed, the court said to the jury:
    “ For these reasons there remains but one question for your determination; that is, what is a fair and just compensation to Mr. Bodewig for the occupation and use of the single house at Thirteenth street by the city of Port Huron as a pesthouse from January 27, 1902, until June 26, 1903, practically a period of one year and five months. There has been some testimony offered in the case of a family occupying the house next door becoming afflicted with smallpox, and I allowed some testimony to be introduced in the case showing that the children from the house had gone into the middle house. I instruct you that this testimony has been stricken from the record, and that you are not to consider it, and that you have no right to conclude that the persons having smallpox in this house caught it on account of being the next house to the one taken by Dr. Mills. You will recall the testimony of Dr. Cote to the effect that those persons caught smallpox from an entirely different source and from a different locality, and that testimony is not contradicted.
    “You will also consider that the burden of proof is upon the plaintiff, and he must, by a fair preponderance of the evidence, establish the fact and convince you that he has been damaged, and the extent and amount of such damage.
    “Now, gentlemen, you will recollect that there is no evidence of physical injury to the property, and that the measure of damage in this case for your consideration is what the use of a house as a pesthouse was fairly and reasonably worth to the. city for the time they occupied and used it as a pesthouse. As to what its use is fairly and justly worth, you are the sole judges, except that the amount cannot be less than six dollars a month, named by Mr. Bodewig to Dr. Mills when he gave-him the key, and cannot exceed the amount as testified to by the witnesses, and it may also be any amount between those figures.
    “You are not bound by these statements, further than to give them fair consideration as evidence, and to determine what is a fair price for the use made of the property. You are to be the judges of that from all the conditions and circumstances.
    “ In this case you may also consider that the house is said to be ‘worth about $800, the lot being worth about $300, and that the fair, ordinary rental value is from $6 to $7 per month. Taking that all into consideration, the value of the house itself, and its former and present rental value as bearing upon the other question, and you should award, not fanciful or exorbitant damages, because the defendant is a city, but the question for you to determine is a fair and just compensation that will make the plaintiff whole up to the time of the commencement of this action, June 26, 1903. You should not consider rent or use after that date, because the plaintiff may have a separate claim for the use of the property thereafter.
    “Now, gentlemen, you are directed to find a verdict for the plaintiff, and to fix the amount at such just and reasonable sum as will compensate him for the use made of his property, nothing more and nothing less.”
    There was a verdict and judgment for $300. Defendant assigns as errors, refusal to direct a verdict for defendant, refusal to charge as requested, and “ 5. The court erred in directing the jury that the city could be held liable in this action for the conduct of Dr. Mills.”

      Joseph Walsh, City Attorney, for appellant.

      Stevens, Graham & Stevens, for appellee. ■
   Ostrander, J.

(after stating the facts). The main brief for appellant discusses the single proposition that the city is not liable for the tortious acts of its health officer, and the case of Nicholson v. City of Detroit, 129 Mich. 246 (56 L. R. A. 601), is cited and relied upon.

The defendant had the power — indeed, it is by the charter made a duty — to provide a pesthouse or hospital. It made use of the premises of the plaintiff for a hospital. Its liability and duty to pay for such use such sum as under the circumstances is reasonable is not denied. This liability is not diminished by the fact that the city obtained possession of the premises by the trick or trespass of an officer or agent of the city. The single question is whether the declaration can be held to support the judgment. The first count of the declaration may be .said to be in case, since the damages alleged are consequential. The second count is the common-law count in trespass for a common expulsion. 2 Chitty on Pleading, 865. The third count avers a trespass, with both direct and consequential re-suiting injury. The case of the plaintiff as pleaded is a case of tortious entry into and wrongful use of real estate, whether we regard the allegations of forcible entry and expulsion or the particular use to which the premises were devoted. It is not a declaration admitting plea or notice of set-off. And the recovery, limited though it was, is not merely for the loss of rents and profits, an element of damages properly recoverable as resulting from the wrongful expulsion of plaintiff from the premises. Such damages would be in no way dependent upon the fact that defendant made use of the premises. The proofs show the rental value of the premises to have been not more than $7 per month. The recovery is at a rate nearly three times as large. It is not claimed that the city of Port Huron directed or authorized the trespass complained of, nor that it ratified the tortious act of the health officer, although it had the benefits of what he did. So that, upon his own theory and practice, and the proofs, plaintiff has recovered a judgment against the city of Port Huron for damages resulting from the claimed and alleged tortious conduct of the health officer of the city. In this view of the case it is within the ruling in Murray v. Village of Grass Lake, 125 Mich. 2.

The judgment is reversed, with costs, and a new trial granted.

Moóre, C. J., and McAlvay, Grant, and Blair, JJ., concurred.


author: Blair, J.

text:
    McCARTHY v. PAYNE.
    1. Estoppel — Right to Invoke — Public Policy — Criminal Status.
    Public policy will not permit one, who was carrying on an unlawful business when his property was attached, to invoke an estoppel to 'prevent the officer from setting up the unlawful character of the business to defeat an action of trover for failure to set off his exemption.
    2. Exemptions — Unlawful Business — Liquor License.
    Where one of a firm having a saloon license buys out his partner and carries on .the business without obtaining a new license as required .by law, his business is unlawful, so that he may not claim the statutory exemption out of the stock in trade.
    Error to Muskegon; Russell, J.
    Submitted October 11, 1905.
    (Docket No. 32.)
    Decided October 31, 1905.
    Trover by Thomas McCarthy against Rolla R. Payne, sheriff of Muskegon county. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Cross, Lovelace & Boss and F. W. Cook, for appellant.

      Turner & Turner, for appellee.
   Blair, J.

This was an action of trover against the sheriff of Muskegon county for the conversion of property which plaintiff selected for his statutory exemption as a saloon keeper. September 5, 1903, the plaintiff, Thomas McCarthy, formed a copartnership with one James Roe, under the firm name of Roe & McCarthy, and engaged in the business of running a saloon and restaurant on Pine street, in the city of Muskegon, paying the tax, and giving the statutory liquor bond required by law. This partnership was dissolved October 30, 1903; McCarthy buying Roe’s interest, assuming the debts of the firm, and continuing to run the business at the same place in his own name until February, 1904, when it was closed on an attachment brought by the Dallas Transportation Company in a suit to recover an indebtedness due from Roe & McCarthy. The plaintiff paid no State or government tax, other than that which was paid by the firm of Roe & McCarthy, and gave no new liquor bond,5 but after Roe went out of the firm continued to fun the saloon upon the license originally granted to Roe & McCarthy. Under the attachment above mentioned defendant, as sheriff of Muskegon county, levied upon all the property which plaintiff had in the saloon and restaurant, took possession of the place, locked the doors, and excluded everybody therefrom. The saloon business was the business in which the plaintiff was principally engaged. No opportunity was given plaintiff to select his statutory exemption, either at the time of the levy, inventory, or appraisal; but subsequently, without plaintiff’s authority or knowledge, defendant pretended to set off as plaintiff’s exemption two cash registers, which, at the time of the aforesaid levy, were in plaintiff’s possession under a contract of purchase, but to which he had no title.

Before commencing this action plaintiff went to the clerk’s office, and from the inventory and appraisal in the attachment suit, and according to the appraised value, selected property to the aggregate value of $250 as and for his statutory exemption, and on the same day served upon defendant a notice thereof and demand therefor in writing. The defendant refused to comply with said demand, and thereupon this action was brought. Under his plea of the general issue defendant gave the following notice of special defense:

“Sirs: Please to take notice that under the plea of the general issue, above pleaded, the said defendant will also give in evidence, and insist in his defense, that the personal property sued for in this action is held and was taken by him upon a certain writ of attachment issued out of the circuit court for the county of Muskegon, at the suit .of the Dallas Transportation Company, plaintiffs, against the said Thomas McCarthy, as defendant, upon the 2d day of February, A. D. 1904.
‘' That the said plaintiff in this action, the said Thomas McCarthy, was notified time and time again, after the said levy was made, to come and select his exemptions, but he neglected to do so; and that under the statute said defendant set out his exemption for him, setting out personal property to the value of two hundred and fifty dollars that the said McCarthy had claimed was his.”

At the close of plaintiff’s proofs the court, upon motion of counsel for defendant, directed a verdict of not guilty, holding that plaintiff was not in a position to claim his statutory exemption of $250 in the saloon business, because of the fact that after plaintiff had bought out the interest of his partner, James Roe, at a time when they were legitimately engaged in the saloon business, the plaintiff, for a period of four months thereafter, ran said saloon in his own name without paying a new tax on said business, and without giving a new bond as required by law, and that upon no theory could plaintiff recover.

The grounds upon which plaintiff relies for a reversal of the case may be summarized as follows:

“1. The court erred in directing a verdict for defendant, because the defendant, by his conduct, in attempting to set out for the plaintiff, as defendant in the attachment suit, personal property to the value of $250 as and for his statutory exemption, and by his notice under the plea of the general issue in this case, is estopped from now claiming that the status of plaintiff was such as not to éntitle him to any exemption under the law.
“2. The court erred in directing a verdict for defendant, because under the undisputed evidence in the case the status of plaintiff was such as to entitle him to claim his statutory exemption of $250 in the saloon business.”

We think there was no error in the rulings of the circuit judge. The doctrine of estoppel cannot be invoked to change a status made criminal by statute into a lawful' status. It would be contrary to public policy to permit such a result. It was held by the supreme court of Wisconsin, in Walsch v. Call, 32 Wis. 159, that the statute providing for exemptions must be construed to apply only to a lawful trade or business, and that therefore, the plaintiffs having been engaged in keeping a saloon for the sale of intoxicating liquors without having procured the license required by law,”no part of their stock in trade was exempt.

Plaintiff undertakes to distinguish that case from the case at bar by the fact that the business was unlawful from the beginning, whereas in the case before us the business was lawful at the commencement, and plaintiff thereby acquired a legal status as a saloon keeper, and bases his right to recover upon such status. The distinction is not a valid one. The business was as unlawful in the one case as in the other. The exemption applies to the business which is actually being carried on with the property at the time it is claimed, and, if that business is unlawful, the exemption does not attach. In the present case the plaintiff had been carrying on a business for over three months which the law denounced as criminal, and the fact that he had theretofore obeyed the law cannot afford him any protection or immunities over other violators of the law, whose violations may have been more extensive than his.

The judgment is affirmed.

Moore, C. J., and McAlvay, Grant, and Ostrander, JJ., concurred.


text:
    STARK v. MUSKEGON TRACTION & LIGHTING CO.
    1. Electricity — Negligence — Violation of Ordinance — Height of Wires.
    Negligence of an electric-light company, in failing to string, its wires 25 feet above ground as required by a city ordinance, will not be presumed to have contributed to an injury received by a child in consequence of his throwing a broken telephone wire over a light wire.

    '2. Same — Personal Injury — Ignorance of Danger.
    The fact that a child was ignorant of the danger of holding a broken telephone.wire while another threw its free end over an electric-light wire, does not, of itself, operate to charge the owner of the light wire with responsibility for the resulting injury.
    3. Same — Proximate Cause.
    Children playing with a telephone wire broke it, and, on throwing one of the loose ends over an adjacent light wire, a shock was received causing injury. Held, that neither the violation of a city ordinance in stringing the light wire less than 25 feet from the ground, nor defects in its insulation was the proximate cause of the injury.
    Error to Muskegon; Russell, J.
    Submitted October 11, 1905.
    (Docket No. 33.)
    Decided October 31, 1905.
    Case by William Stark, Jr., by next friend, against the Muskegon Traction & Lighting Company for personal injuries. There was judgment for defendant on a verdict ■directed by the court, and plaintiff brings error.
    Affirmed.
    Two errors are assigned upon the record, both of which make the single point that it- was error for the court to •direct a verdict for defendant. The record contains the ■substance of all the testimony given upon the trial. The injury complained about was received August 30, 1903. The plaintiff is a lad, 10 years old in April, 1903. Defendant is a Michigan corporation, owning a plant for developing electricity for lighting and other purposes, and at the date in question was operating its plant and wires connected therewith, including a system of wires supported by poles on and over Spring street in the city of Muskegon. The case made by the declaration is, in substance, that the wires of defendant were, at the place of the accident, carried too near the ground, and were not insulated; that on the same poles, and under the defendant’s wires, certain telephone wires were carried; that the condition and position of the wires permitted contact, or that contact occurred between the telephone wires and the other and uninsulated wire; and—
    “ That the injuries complained of were caused by the defective and unsafe construction and maintenance of such wires and the defective and unsafe stringing of the wires of the [defendant] at the place aforesaid, and in permitting and maintaining said wire too near the surface of the ground at the place aforesaid, and in allowing the wires herein designated as telephone wires to be and remain on and connected with the poles on which was strung the wires through which the defendant was transmitting a dangerous electrical current.”
    It is alleged that plaintiff, without fault on his part, and without any knowledge of the danger, came in contact with the telephone wire which, owing to carelessness and negligence of defendant, was at the time charged with electricity, and was injured. There is no dispute about the facts. No testimony was introduced on the part of defendant. At the pole near which the injury was received, the wires of defendant were supported on arms, two wires each side of the pole and some distance away from the pole. One witness, the father of the plaintiff, testified that they were 19 feet and eight inches, and another that they were 20 feet and 9 inches, above the ground. Two feet below these wires, supported by single brackets with glass insulators, were two telephone wires, about 3 inches from the pole. They were not directly under the electric-light wires; one was above the other, and they were several inches apart.. There is no testimony showing or tending to shovr that the defendant’s wires or the telephone wires were not properly and securely placed and supported, or that they were, in position, dangerous or likely to become dangerous. Plaintiff, with other children, was playing on Sunday afternoon in Spring street. One of the boys, playing with a ball and chain, threw it up to the lower telephone wire, to which it became fastened by reason of the chain winding around the wire. A sister, of the boy, using a rake, the teeth of which she hooked into the chain, in her effort to get it down broke the telephone wire. A boy took one end of the broken wire, twisted it about a post, and then carried the end to a tree, up which he climbed to put it over a limb of a tree. The other end of the broken wire was made a plaything by the children, who, plaintiff aiding, swung it in the air against the wires of defendant, apparently for the purpose of making and hearing the wires rattle.
    “ They would get hold of the end of it and get it back and form a loop, swing it around in a half-oval shape, and let go of it and strike' the electric-light wire to hear it rattle. * * * They would get hold of the end of it and then leave it somewhat slack, and then swing it round and round and as they let it go it would fly up and hit the other wires and rattle. They were out there engaged in that play probably half an hour.”
    In this way they finally threw the telephone wire over the electric-light wires, or one of them.
    “ At the time Willie Stark [the plaintiff ] threw the wire up over the electric wire, I had hold of the long piece of wire. When Willie Stark threw the short piece of wire up over the electric-light wire, then I got a shock in the long piece of wire that I had hold of.”
    The boy who first felt the current told the others, another boy tried it, and received a shock. The plaintiff, proposing to try the experiment, was asked by his sister and another not to do so. Saying, “Watch me; I am not afraid,” he took the wire and received the injuries for causing which he seeks to charge defendant. After the injury, on that day and the next day, persons noticed that in spots or small places there was no covering, no insulation on the electric-light wire over which the telephone wire had been thrown. It is supposed, by at least one witness, that the telephone wire rested finally upon one of the bare or uncovered spots on the electric-light wire, at a point where it was spliced; that the current was carried into the adjoining house from which a telephone had been a short time before removed, leaving the wires supplying the telephone in place with their ends of bare copper twisted together, the current passing out and into the wire described as the long end of the wire which had been carried first to a post and then to a tree and so, when he seized it, to the person of the plaintiff. Counsel for plaintiff offered in evidence an ordinance of the city of Muskegon, approved December 4, 1889, section 2 of which is:
    “ All such poles and wires shall be put up under the supervision of the chief engineer of the fire department of said city, but no wires shall be put up over the fire alarm telegraph wires, nor shall any wires be put up within twenty-five feet of the ground in any street, alley, or other public ground of said city.”
    The declaration does not allege disobedience of the ordinance as negligence, but avers the duty to suspend wires at a reasonably safe distance from the ground. It was not more, probably considerably less, than an hour after the time the wire was broken that plaintiff was injured.

      Turner & Turner and Cross, Lovelace & Boss, for appellant.

      Nims, Hoyt, Erwin, Sessions & Vanderwerp, for appellee.

       As to liability for injuries by electric wires in highways, see note to Denver Consolidated Electric Co. v. Simpson (Colo.), 31 L. R. A. 566.

   Ostrander, J.

(after stating the facts). It is not apparent that the requirement, by ordinance, that wires should be supported 25 feet above the ground was based upon any idea of safety of the public. Failure to comply with this provision of the ordinance is not the negligence charged. If it was, it is not to be presumed that it caused or contributed to the injury complained about. See, also, as to the right of this plaintiff to complain of the violation of the ordinance, Flanagan v. Sanders, 138 Mich. 253. Whether or not the wires of the defendant were exposed before the telephone wire was broken does not appear, nor does it appear whether it is possible, or, observing proper rules, usual, to prevent some exposure of copper wire of the size and kind, in the making of splices. Whether the substance with which the wires were covered could or probably would be removed by being struck by the telephone wire, as it was swung against it, does not appear. . It is, however, decisive of the case that plaintiff has conclusively shown a condition and relation of things which, as to himself and the public generally, was safe and harmless if not interfered with, has shown neither invitation nor inducement warranting or excusing interference, and has just as conclusively proven an interference, participated in by himself, the character and the results of which were not to be reasonably apprehended or guarded against. Whether or not, under the circumstances of this case, we apply the term “trespasser ” to one of plaintiff’s years (Trudell v. Railway Co., 126 Mich. 73, [53 L. R. A. 271]; Henderson v. Railway Co., 116 Mich. 368), he was certainly a wrong-doer, who but for his acts of wrong-doing would not have been injured. Indulging the presumption that plaintiff was not aware of the danger of seizing the telephone wire does not operate, of itself, to charge defendant with responsibility for what occurred. Neither the distance of defendant’s wires from the ground, nor the fact, if it is a fact, that one of them was defective as to insulation, can be said to be the proximate cause of the injury.

The judgment is affirmed.

Moore, O. J., and McAlvay, Grant, and Blair, JJ., concurred.


text:
    WILLIAMS v. OLSON.
    1. Pleading — Demurrer—Effect as Admission.
    A demurrer does not admit the truth of an allegation in the bill that certain notices were not signed, where they are attached to the bill as exhibits, and affirmatively appear to have been signed.
    2. Taxation — Sales—Notice of Purchase — Service of Copies.
    An objection that copies of the notices of tax sale purchases were served instead of originals is not tenable where the record shows that exact duplicates were served.
    3. Same — Notice—Sufficiency.
    The tax law (Act No. 229, Pub. Acts 1897) does not require that, when a single deed is issued by the auditor general for the taxes of several years, the notice given by the purchaser shall show the amount of the taxes for each of the years.
    4. Same — Notice—Misdirection.
    The notice of sale of land for taxes is not invalid because directed to a particular' person named as owner where he is in fact the owner.
    5. Same — Notice—Service—Necessity.
    The notice of sale of land for taxes, required by the statute (Act No. 229, Pub. Acts 1897) to be served upon the owner by the sheriff, at the instance of the purchaser, in order to set running the limitation that will entitle him to possession, is not jurisdictional, since the parties are already in court, and the sheriff’s return is not conclusive, but the proper service of the notice is a fact which must exist, and if questioned must be shown to exist, before the purchaser will be entitled to enter, to a writ of assistance, or to maintain ejectment.
    6. Same — Sheriff’s Return — Conolusiveness.
    The sheriff’s return of service of a notice of the sale of land for taxes is not conclusive, hut may be attacked either by the landowner or the tax title holder in affirmance or in avoidance of the tax title and pf acts attempted in reliance upon it.
    7. Same — Service—Deputy Sheriff.
    The sheriff may serve a tax purchase notice by deputy.
    Appeal from Iron; Stone, J.
    Submitted October 11, 1905.
    (Docket No. 38.)
    Decided October 31, 1905,
    Bill by George R. Williams against Mary E. Olson and others to set aside certain notices of tax sales, and to restrain trespasses upon land. Prom an order overruling a demurrer to the bill, defendants appeal.
    Reversed and record remanded.

      John JF. Oarey, for complainant.

      Isaac W. Byers, for defendants.
   Ostrander, J.

Complainant, describing himself as a

nonresident of the State, filed his bill of complaint, asking that the service of certain tax notices be set aside, and that an injunction issue, forbidding defendants to enter upon certain described lands and to cut or remove timber therefrom. It is alleged in the bill that complainant is owner in fee simple of the lands described, and that his deed is of record in Iron county, Mich., where the lands lie. When he became owner, of whom he purchased, and the date and place of record of his deed are facts not set out. It is alleged that one of the defendants holds two certain tax deeds received from the auditor general; one conveying a portion of the lands, and the other the remainder, issued after Act No. 229, Pub. Acts 1897, took effect, for which deeds she paid a total of $95.83. It is further alleged that said defendant caused to be served upon “V. A. Goddard, administrator of the estate of E. G. Goddard, deceased, on the fourteenth day of September, 1901, and upon George W. Tolbert, executor of the estate of James Tolbert, deceased, upon the fifth day of October, 1901,” certain notices, which, with returns of the sheriff’s serving them, are annexed to the bill as exhibits. It is charged that these notices and the service of them are ineffective, and do not comply with the provisions of the tax law, and such service is void because (1) the returns do not show that the persons served were residents of the counties in which service was made; (3) because copies of the notices, instead of the originals, were served; (3) because the notices are not signed by Mary E. Olson, the tax title owner, or by any one with her authority; (4) because the amount of taxes for each year is not given separately; (5) the returns made by the sheriffs do not show that the notices were served upon the grantee under the last recorded deed or deeds in the regular chain of title to the lands therein described, or upon the mortgagee named in any undischarged recorded mortgage, or upon an assignee of any such mortgage; (6) because service of the notices was made in each instance by a deputy sheriff; (?) because the notices are misdirected, in that they name particular persons; (8) it does not appear that returns of service were filed with the county clerk of the county in which the lands are situated. There are allegations of entry upon the lands by defendants, possession taken, timber cut and being cut. The bill does not allege that the notices were not served upon the proper, and the only proper, persons and in counties where they resided, that returns were not filed in the proper county, nor that complainant did not buy the land thereafter with notice, nor that complainant paid anything for the land. The tax titles are not attacked, nor is any offer made to pay defendants any sum of money. The entry alleged to have been made was more than six months after date of filing service of the notices. The bill is verified by one V. A. Goddard, who describes himself as agent of complainant and acquainted with the facts set forth. To this bill, two defendants, one of them the alleged tax title holder, demurred, assigning various reasons, among which are that all of the material facts set forth in the bill are available to complainant in a suit at law, that complainant has an adequate remedy at law, that the bill shows notices and returns complying in substance and form with the statute requirements, and that the notices and returns are subject to be amended to accord with the facts, and should not be canceled. An order was entered overruling the demurrer, with leave to defendants to answer the bill. From this order an appeal has been taken to this court.

The notices served are each addressed “to E. G. Goddard and James Tolbert, the owner or owners of the land herein described.” In all other respects, they follow the statute form (Act No. 229, Pub. Acts 1897). They give the years for which the taxes were levied, descriptions of the land, amount of money paid, and each is signed Mary E. Olson. It cannot be said that, because the bill alleges want of this signature, the fact is admitted by the demurrer, when the exhibits, made a part of the bill, show affirmatively that the notices were signed. So, too, the exhibits affirmatively show, not that copies of the notices, but exact duplicates, were served. The statute does not require, and we think does not contemplate, that, when a single deed is issued by the auditor general for the taxes of several years, the notice given by the purchaser shall show the amount of the taxes for each of these years. The fact that the notices are addressed to persons named, describing them as owners, does not invalidate them. The bill does not aver that they were misdirected. See Bradley v. Williams, 139 Mich. 230. What has been said disposes of the second, third, fourth, and seventh specific objections to the notices and returns-.

The eighth objection, which is quite as technical and as badly founded as are the second and third, might well be answered by the statement that no facts appear, excepting as they are set out in the bill of complaint, and that the certificates of the clerk of Iron county, a part of the exhibits attached to the bill, read in connection with the remainder of the exhibits, afford abundant evidence of the fact that the returns were filed in Iron county.

The other specific objections made to the notices and returns may be discussed together. The language used in the statute must be, if possible, so construed that the legislative purpose shall be accomplished and effectuated. The legislative purpose is plain. A person who buys delinquent tax lands of the auditor general is not invested with all the rights of a landowner, nor are adverse titles and interests in the land extinguished until the owners of such titles and interests are afforded, by the act of the tax title holder, opportunity to pay the taxes and a penalty, and obtain a reconveyance. A short period of limitation is established, which begins to run upon the giving of the statute notice. The essential idea of the legislation is opportunity for the delinquent taxpayer. The period of opportunity begins with notice, and runs, according to a construction already given the statute by this court, until such time as the tax title holder has brought himself within the statute conditions for taking action. Pike v. Richardson, 136 Mich. 414. Good faith and honest endeavor on the part of the tax title holder are implied, and want of them may be shown. Winters v. Cook, 140 Mich. 483. Unless compelled so to do, courts should not so construe the legislation as to make its provisions mandatory, and, so, applicable only to cases where the returns of service of notice show exact conformity with the statute provisions. To do so would not only render the legislation abortive, but would afford the delinquent taxpayer additional security against the collection, by the State, of its revenues. In terms the statute re-' quires a return, made by a sheriff, showing that service has been made upon the grantee or grantees under the last recorded deed in the regular chain of title to said land. Setting aside considerations growing out of the difficulties the sheriff would be likely to experience in discovering for himself the truth of the fact stated in the return, and the impropriety of certifying to a fact not within his knowledge, we are of opinion that a return reciting the fact may be shown to be false, and that actual proper service of the notice may be shown when the return does not recite the fact. The notice and return are in no sense jurisdictional. For this reason, the cases cited by counsel for complainant are not controlling. But the proper service of notice is a fact which must exist, and must, if questioned, be shown to exist, before the tax title holder is entitled to enter upon the land, to a writ of assistance, or to maintain ejectment. The absence of the fact is, therefore, also a fact which may be shown in a proceeding begun either by landowner or tax title owner, in affirmance or in avoidance of the tax title and of acts attempted in reliance upon it. It follows, necessarily, that it is open to complainant to question the asserted fact in a proceeding directly affecting the right of the defendants to have possession of the land in question.

We have not lost sight of the contention that in section 140 of the tax law (Act No. 229, Pub. Acts 1897) words are used which seem to imply that a return of the proper service of notice, filed with the county clerk of the county in which the land lies, is prima facie evidence of such proper service, and that relief by writ of assistance cannot be had until six months after such proof or return of service is filed.

Reading all provisions of the tax law together, we are, we think, required to hold, and the language referred to permits us to hold, that upon the application for a writ of assistance, which is a proceeding to enforce the decree of the court, which already has jurisdiction of the subject-matter and the original parties, the fact of proper service is, notwithstanding the return, matter to be proven, the actual filing of the return, fixing the date from which the period of limitation must be reckoned. The considerations stated control us in ruling, as we do, that the sheriff may serve the statute notices by his deputies. The 'demurrer should have been sustained.

The order appealed from is reversed and set aside, with costs of both courts. As it is possible that the complainant may desire to amend his bill of complaint, the record is remanded.

Moore, O. J., McAlvat, Grant, and Blair, JJ., concurred.


text:
    TOWNSHIP OF HOMER v. SMITH.
    Taxation — Persons Liable — Trustee.
    Where property is assessed to its true owner, a corporation or association, and not to its trustee, the tax cannot be collected from the trustee; section 3826, 1 Comp. Laws, providing that for assessment purposes a trustee may be treated as owner, and section 3922, relating to errors in assessments, not being applicable.
    Error to Jackson; Peck, J.
    Submitted October 12, 1905.
    (Docket No. 49.)
    Decided October 31, 1905.
    Assumpsit in justice’s court by the township of Homer against Hugh L. Smith, trustee of the Electric Oil Stove Company, for the taxes of 1900. Plaintiff had judgment and defendant appealed to the circuit court by writ of certiorari. There was judgment for defendant, and plaintiff brings error.
    Affirmed.
    This suit, an action of assumpsit, was begun in justice’s court in August, 1901, by the supervisor of Homer township, in the name of the township. Defendant filed a plea in abatement, verified by his affidavit, to the effect that he was not, when suit was begun, trustee of the Electric Oil Stove Company. An issue was made upon the plea by plaintiff’s oral reply thereto, and was tried and determined upon oral and documentary testimony, adversely to the defendant. Defendant did not plead over nor take any part in the trial upon the merits, which was at once entered upon, and which resulted in a judgment for the plaintiff. The proceedings were removed to the circuit court for the county of Jackson by certiorari, and in that court the judgment was reversed and set aside, with costs of both courts to defendant. The proceedings in the circuit court are brought to this court by writ of error. The only demand asserted by plaintiff is the amount of certain taxes, and proof of the demand was made by the introduction of an assessment and a tax roll for the year 1900, from which it appeared that the Electric Oil Stove Company of Homer eo nomine was assessed as for $10,000 of personal property, and taxed for State, county, township, and school purposes, a total of $128. Interest and charges increased this amount to $140.80, which was the amount of judgment. In disposing of the matter, the judge of the circuit court made a statement, a portion of which is here set out:
    “Whether the ‘Electric Oil Stove Company’ was a partnership, general or limited, a partnership association, or a corporation, nowhere appears in the record; nor does it appear, except by inference, where its offices or place of business was, but this assessment was made upon the theory that, whatever may have been its organization, it was the owner of personal property located in Homer, subject to assessment in that township. Upon that theory it was competent for the township authorities to pursue the course they did, viz., to assess this personal property to its owner by its proper name. The statute also provides that, where the personal property of a corporation or natural person is under the control of a trustee or agent, it may be assessed to such trustee or agent in the township where he resides, except as otherwise provided; and in my opinion, under the circumstances of this case, it would have been legal for the township to have assessed this personal property of the Electric Oil Stove Company in the township of Homer to a trustee, provided the trustee had control of the property, and the township had chosen to do so. It is unnecessary to inquire what would have been the effect of such an assessment upon the township’s right to collect the tax by suit against the trustee, as the township did not pursue that course and the assessment was not made against a trustee, but was made to the owner of the property. The statute provides ‘that the president, secretary or proper accounting officer of any company or association, incorporated or unincorporated, except railroad, insurance and telegraph companies and banking corporations, the taxation of which is specifically provided for by law, shall make out and deliver to the assessor a sworn statement setting forth the property subject to assessment.’ In this instance Hugh L. Smith, the defendant, made out and swore to, and delivered to the supervisor, the sworn statement, Exhibit A, which is the ordinary statement of the taxable property ‘ held or owned by and in the possession of the Electric Oil Stove Company of the village of Homer, in the county of Calhoun, Mich.’ In the affidavit attached to this statement Mr. Smith deposes ‘ that he is the trustee of the Electric Oil Stove Company, and that the above statement was made by him, and is a full and true statement of all matters therein set forth, and of all the taxable property owned by the Electric Oil Stove Company liable to assessment in this assessing district.’ Upon receiving this statement, the supervisor assessed the personal property therein described at the sum of $10,000 to the Electric Oil Stove Company, and not to Hugh L. Smith, trustee, and upon that assessment as a basis the justice rendered judgment, not against the owner of the property, the Electric Oil Stove Company, but against Hugh L. Smith as trustee, to whom no assessment whatever had been made.
    “This is not a suit brought by the treasurer, in the name of the township, under the statute authorizing the treasurer to represent the township and bring a suit in its name. If it was, the action could not be maintained, for the reason that it is not brought against the person assessed. Township of Laketon v. Akeley, 74 Mich. 695. This suit is brought by the township and at the instance of the supervisor, and a tax record showing an assessment to the Electric Oil Stove Company would not be conclusive and prevent the collection of the tax from the real owner. City of Menominee v. Lumber Co., 119 Mich. 201. The effect of the decisions of the Supreme Court of this State is to establish that a misnomer of the party does not have the effect to mislead the real owner of the property, and the real owner is held subject to the same liability as though the tax had been regularly levied in-the proper name. Fletcher v. Post, 104 Mich. 427. If this suit were between the township of Homer and the real owner of the property assessed, the fact that there may have been a misnomer of the party assessed, or that it may have been assessed to some one other than the true owner, would not have relieved the owner of the property from liability for the tax. But that is not the situation here. The true owner of the property was the Electric Oil Stove Company, and it was assessed to that company, which is undoubtedly liable for the tax. The effect of the judgment complained of is that it renders a party liable for the tax to whom it was not assessed, and who was not the owner of the property.”
    It appears, also, that the first notice defendant had of the intention of the township to look to him for payment of the taxes was when the summons was served upon him in August, 1901, at which time he was no longer trustee for the Electric Oil Stove Company.

      Howard W. Cavanagh, for appellant.

      John W. Miner (Grove H. Wolcott, of counsel), for appellee.
   Ostrander, J.

(after stating the facts). The facts stated m the opinion of the learned circuit judge, and above set out, are in conformity with the record. There is nothing in the record showing or tending to show that defendant was owner of the property assessed. It was not assessed to him as trustee, or otherwise. The statutes, 1 Comp. Laws, §§ 3826, 3922, and the cases, City of Detroit v. Lewis, 109 Mich. 155 (32 L. R. A. 439), and H. M. Loud & Sons Lumber Co. v. Hagar, 118 Mich. 452, relied upon by counsel for appellant, have no application here. See, also, Township of Bangor v. Transportation Co., 112 Mich. 601; City of Menominee v. Lumber Co., 119 Mich. 201; Township of Laketon v. Akeley, 74 Mich. 695.

The judgment of the circuit court was right, and it is affirmed.

Moore, C. J., and McAlvay, Grant, and Blair, JJ., concurred.