text:
    The People v. George Sutherland.

      Criminal law — Preliminary examination — Return of magistrate— Assault with intent to do great bodily harm, — Pleading— Amendment— Evidence.

    1. A certificate of an examining magistrate stating that it appears to him that the offense charged has been committed, and that there is just cause to suspect the respondent to be guilty thereof, is sufficient to confer jurisdiction upon the circuit court to try the case.
    2. Respondent was informed against under How. Stat. § 9122a, which provides that any person who shall assault another with intent to do great bodily harm less than the crime of murder shall be punished, etc. The words “the crime of” were omitted from the complaint, warrant, and information. No objection was made during the trial to their omission. And it is held that, had the attention of the court been called tO' the defect, it would have been amended under How. Stat. g 9535, and that it must, after verdict, be disregarded; citing Merwin v. People, 26 Mich. 305.
    3. It was competent for the prosecution to show the violence of the assault as bearing upon the question of intent.
    4. The party upon whom the assault was made, after detailing with great minuteness the assault and the result upon himself, was allowed to testify, against objection, that he had. wounds upon his face, caused by being kicked by the respondent; that they had been running ever since the assault; that, two or three weeks after the assault, an abscess formed, and the doctor lanced it, and quite a number of bones worked out. And it is held that the testimony was competent as showing the aggravated character of the assault, and that no error was committed in permitting the witness to exhibit his injuries to the jury.
    A After the witness had stated on cross-examination that he had been arrested for being drunk, he was asked how many times he had been drunk since the assault. And it is held that the evidence called for had no bearing whatever on the issues involved in the case, and was properly excluded.
    '6. It was proper, on the cross-examination of the respondent, to go as fully into his antecedents as into those of any other witness in the case.
    Error to Branch. (Loveridge, J.)
    Argued March 1, 1895.
    Decided March 19, 1895.
    Respondent was convicted of an assault with intent to do great bodily harm less than the crime of murder, and sentenced to imprisonment in the State prison at Jackson for three years.
    Judgment affirmed.
    The facts are stated in the opinion.

      John 8. Evans, for respondent.

      Fred A. Maynard, Attorney General, and William, H. Compton, Prosecuting Attorney, for the people.
   Long, J.

Respondent was convicted of an assault with intent to do great bodily harm less than the crime of murder. Upon being arraignbd, he refused to plead, and his counsel moved to quash the information, for the reasons:

1. That the papers filed in said case, purporting to be the return of the justice, had no certificate.

2. That the respondent had had no examination according to the statute.

3. Thaf the justice had no jurisdiction of the 'cause, and lhat the circuit court had no jurisdiction.

4. That the justice did not find probable cause to suspect the respondent guilty of any offense.

5. That there was nothing to show that the evidence of the witnesses was reduced to writing, if there was any taken before the justice, or that the witnesses signed their testimony; nor that the respondent waived examination.

6. That the complaint did not show that there was a. felonious assault made.

■ These objections were overruled, which ruling raises the-first question in the case.

The whole of the proceedings had before the justice do-not appear to be in the record presented here, but from the part returned it appears that the justice did certify asidlo ws:

“It appears to me that said offense has been committed, and there is just cause to suspect the said defendant to be-guilty thereof."

The statute for the examination of offenders provides-¿hat “if it shall appear that an offense not cognizable by a justice of the peace has been committed, and that there is probable cause to believe the prisoner guilty thereof, and if the offense be bailable," etc., the justice shall take bail, and, if no bail be offered, cbmmit the prisoner for trial. How- Stat. § 9471. This examination is not a judicial inquiry, in which the guilt or innocence of the party accused is finally decided upon, but an inquiry to ascertain whether the crime alleged has been committed, and whether there is reasonable ground to believe that the party accused may have -committed it. People v. Lynch, 29 Mich. 279. The certificate made by the justice was sufficient to confer jurisdiction upon the circuit court to try the cause. He does certify that it appeared that said offense had been committed, and that there was just cause to suspect the respondent to be guilty thereof. He used the word “suspect" and not “believe." This is sufficient, and a sufficient finding of probable cause.

We are unable to say that tbe examination was not full! and complete, as tbe full return of tbe examination is not-in tbe record. The offense was set up in the complaint- and warrant.

It is contended, however, that the justice had no jurisdiction of the cause. The complaint recites that—

“ On the 14th day of June, A. D. 1893, * * * George Sutherland, with force and arms, in and upon him, the said Wily Putnam, did make an assault, and him, the said Wily Putnam, did beat, bruise, wound, and ill treat, with intent then and there to do great bodily harm to him, the said Wily Putnam, less than murder.”

The warrant contained the same recital, and the contention is that no offense is stated within the terms of tha statute.

How. Stat. § 9122a, provides:

“ That any person who shall assault another with intent-to do great bodily harm less than the crime of murder-shall be punished,” etc.

It is contended that in leaving out the words “tha crime of” no offense is stated.

It does not appear from the record that this specifie objection was made in the court below, and the information followed the same form. The court below evidently regarded the words as contained in the complaint, warrant, and information, for, in the charge, the court, in stating the offense, employed the words of the statute, and his attention was not called, even at that time, to this omission in the pleadings. If the objection had been made at that time, an amendment would have been allowed,, under How. Stat. § 9535, which provides that—

“Every objection to any indictment, for any formal defect apparent on the face thereof, shall be taken by demurrer or 'motion to quash such indictment before the jury shall be sworn, and not afterwards; and every court before whom such objection shall be taken for any formal defect may, if it be thought necessary, cause the indictment to be forthwith amended in such particular, and thereupon the trial shall proceed as if no defect had .appeared.”

As this defect was one which would have been amended if attention had been called to it, it must, after verdict, be disregarded. Merwin v. People, 26 Mich. 305.

Some testimony was given under objection, for the purpose of showing the violence of the assault as bearing upon the question of intent. The testimony was admissible, and was properly explained to the jury in the general charge, as follows:

“ The people claim that the respondent, at the place .and time alleged, made an unprovoked assault upon the •complaining witness; that he kicked him in the face, producing a fracture of the jaw; that he knocked him down, and kicked him several times in the chest; and that such blows and kicks were given by the respondent with intent ■to do him, Putnam, great bodily harm less than the crime ■of murder. * * * In order to find the intent to -do great bodily harm by breaking the jaw, you must find ■that the respondent contemplated such a result. You must consider the means which the respondent employed, ¡ancf whether the use of such means would naturally lead ito such a result. It may not have been necessary that the ■respondent should have contemplated precisely such a result as a fracture of the jaw, but it is necessary that you should find he contemplated a result that would have produced great bodily harm or serious injury.”

^Respondent sought to show upon the trial a justification •for the act, and upon that question the court charged the jury:

If you believe from the evidence that the complaining witness went to the respondent’s house, and accused his family, as it is claimed he did, the respondent had the' right, in defense of his family and dwelling-house, to expel the complaining witness from his dwelling-house and premises, and to use all reasonable and necessary means and force to compel him to depart.”

No written requests to charge were presented, and it is apparent that the charge as given stated the law applicable to the case. Many objections are made to the charge, but we do not deem it necessary to discuss them specifically, as we find no error in the charge as a whole.

Several other objections are made to the testimony introduced.. Such objections will be discussed so far as we deem it necessary.

The complainant, Wily Putnam, was called as a witness, and without objection detailed with great minuteness the assault, and the result upon himself. He was asked:

“Have you any wounds now upon your face in consequence of the kicking by respondent?”

This was objected to as immaterial, and admitted.

“A. Yes, sir; under my chin.
Q. Have they been running ever since? (Objected to as incompetent.)
“A. It has been running ever since. Two or three weeks after the assault, a big abscess formed, and the doctor lanced it, and quite a number of hones worked out.”

This testimony was competent as showing the aggravated character of the assault, and there was no error in permitting the witness to exhibit his injuries to the jury.

On cross-examination, respondent’s counsel asked the witness if he had been arrested for being drunk, and he answered that he had. He was then asked: “Since this trouble, how many times have you been drunk?” This was properly excluded. It had no bearing whatever on the issues involved in the case.

Some questions are raised in reference to the cross-examination of the respondent. He was sworn and examined in chief by his counsel. It was proper on cross-examination to go as fully into his antecedents as it would have been with any other witness in the case. Under the statute the respondent in a criminal case may now be sworn in his own behalf. When introduced as a witness, he is subject to the same rules of cross-examination as any other witness in the case; and we find nothing improper in the cross-examination.

The judgment must be affirmed.

McGrath, C. J., Montgomery and Hooker, JJ., concurred. Grant, J., did not sit.


source: Caselaw Access Project

author: Long, J. Montgomery, J. Grant, J.

license: Public Domain

text:
    Albert M. Todd v. The Boards of Election Commissioners of Kalamazoo, Calhoun, Branch, Eaton, and Hillsdale Counties.

      Elections — Constitutional law — Printing names of candidates on official ballot.

    1. Act No. 17, Laws of 1895, which, makes it unlawful for the board of election commissioners to cause to be printed in more than one column on the official ballot the name of any candidate who shall have received the nomination by two or more parties or political organizations for the same office, is valid, ■ and within the power of the Legislature, acting under the provisions of article 7, § 6, of the Constitution, which provides that “laws may be passed to preserve the purity of elections, and guard against abuses of the elective franchise.”
    2. Said act is not retroactive, and is not applicable where the time within which the candidate is authorized by the act to exercise his choice of tickets had expired before the act took effect.

      Mandamus.

    Argued March 23, 1895.
    Granted March 25, 1895.
    Kelator applied for mandamus to compel respondents to place his name upon the official ballot in three different columns as candidate for Congressman. The facts are stated in the opinions.

      Myron II Walker {E. M. Irish and Hoiuard & Roos, of counsel), for relator.

      Fred A. Maynard, Attorney General {Moses Taggart, of counsel), for respondents.
   Long, J.

The relator was nominated on February .28, 1895, as a candidate for Eepresentative in Congress by the Prohibition party for the Third congressional district of Michigan, and on March 7 he was nominated for the same office by the Free Silver party. On February 27 the People's party nominated one Eobert McDougall for the same office. On March 8 Eobert McDougall withdrew as a candidate upon the People's party ticket, and the relator was substituted in his stead by the congressional committee of the People’s party, such committee certifying that they were authorized by the convention to fill any vacancy upon such ticket. Certificates were filed with the election commissioners, March 7, 8, and 9. The relator claims that he has the right, under Act No. 190, Laws of 1891, to have his name printed upon each of these three tickets.

On March 14, 1895, an amendatory act was passed by the Legislature to the election law, and given immediate effect, and respondents claim that under the terms of this amendatory act the relator is not entitled to have his name appear more than once upon the official ballot. This amendatory act provides that—

“It shall be unlawful for said board of election commissioners to cause to be printed in more than one column on the ballot the name of any candidate who shall have received the nomination by two or more parties or political organizations for the same office."

The act contains further provisions, relating to the manner in which a choice is to be made by the candidate as to the place which his name shall have on the ballot as follows:

“Any person so receiving the nomination for the same office by two or more parties or political organizations shall, within five days after his name has been certified to said election commission as having been nominated by two or more political parties for the same office, give notice to the board of election commissioners of each county in the State, if said nomination be for a State office, and to the board of election commissioners of each county in the district, if said nomination be for a congressional, judicial, or legislative office, and to the board of election commissioners of the county, if such nomination be for a county office, specifying in such notice the column of which party or political organization on the ballot he wishes his name to be printed, and said board of election commissioners shall print the name of such candidate in such column on the ballot so specified by him, and in no other column. Such notice shall be given to said election commissioners by delivering the same either in person or by depositing the same in the postoffice, in a sealed envelope, with postage prepaid, directed to the chairman of such board of election commissioners at the county seats of the respective counties: Provided further, that in case any such candidate so nominated by two or more parties or political organizations for the same office, and whose name shall have been certified by the chairman and secretary of the committees of such parties or political organizations to said board of election commissioners within the time and as above provided, shall refuse or neglect to give notice to said board of election commissioners as above provided, and within the time above named, specifying in which column on the ballot he wishes his name to be printed, then and in such case said board of election commissioners shall cause his name to be printed in the column of the party or political organization from the chairman and secretary of whose committee said board of election commissioners shall have first received notice of such person’s nomination for said office, and said board of election commissioners shall not cause the name of such person to be printed on the ballot as a candidate for the same office in any other column.” •

The relator contends:

1. That this amended law is wholly unconstitutional, for the reason that it discriminates between political parties, and imposes a political test as a condition to one becoming a candidate for office.

2. That if the statute be upheld as constitutional as applied to future elections, in which the opportunity is given to parties and candidates to act under the law, it cannot be so far given retroactive effect as to make it applicable to a case like the present, where the nominations of the parties had been made, and the time within which, under the terms of the act, the candidate is required to make his election as to the place which his name is to have on the ballot had expired before the act took effect.

The constitutional question is one of unusual importance, and as the exigencies of the present case demand a prompt decision in order that the rights of the relator may be protected, and as we have reached the conclusion that the act is valid, and within the power of the Legislature, acting under the provisions of article 7, § 6, of the Constitution, which provides that “laws may be passed to preserve the purity of elections and guard against abuses of the elective franchise,” and as the relator in the present case is' entitled to his remedy without delay, we have thought it best to direct the ehtry of the order, and withhold a written opinion upon the main point until we shall have the opportunity to formulate our views upon that question, and an opinion upon the full case covering that question will be handed down later.

"We are of the opinion that the amendatory act of March 14 cannot be held applicable to the present case. The time within which the candidate is authorized by law to exercise his choice "of tickets had in the present case-expired before the law took effect. He, therefore, under the law, had no opportunity to exercise the right eonferred. If it be attempted to apply the terms of this act to the present case, the election commissioners would be bound under the other provisions of the act to print the •name of the candidate on the ticket first certified, thus •excluding wholly the right of choice plainly intended to be conferred by the statute. The general rule is well settled in this State and elsewhere that all statutes are prospective in their operation, except when a contrary intent is clearly evidenced by the context. Heineman v. Schloss, 83 Mich. 153; Stitt v. Casterline, 89 Id. 239; Smith v. Pinch, 80 Id. 332; Finn v. Haynes, 37 Id. 63; Maxwell v. Bridge Co., 46 Id. 278; Danville Stove & Manufacturing Co. v. Circuit Judge, 88 Id. 244.

“The rule to be derived from a comparison of a vast number of judicial utterances upon this subject seems to be that, even in the absence of constitutional obstacles to retroaction, a construction giving to a statute a prospective operation is always to be preferred, unless a purpose to give it a retrospective force is expressed by clear and positive command, or to be inferred by necessary, unequivocal, and unavoidable implication from the words of the statute, taken by themselves and in connection with the subject-matter and. the occasion of the enactment, admitting of no reasonable doubt, but precluding all question as to such intention.” End. Interp. Stat. § 271.

Judge Cooley, in his work on Constitutional Limitations, page 370, referring to this subject, says:

“Legislation of this character is exceedingly liable to .abuse; and it is a sound rule of construction that a statute should have a prospective operation only, unless its terms show clearly a legislative intention that it should operate retrospectively; and some of the states have deemed it just and wise to forbid such laws altogether by their constitutions.”

•As is said in Potter’s Dwarris on Statutes and Constitutions, in a note on page 163:

“Although the words of the statute are broad enough in their literal extent to comprehend existing cases, they must yet be construed as applicable only to cases that may thereafter arise, unless a contrary intention is unequivocally expressed therein.”

The act grants the right of choice of tickets, but compels the choice within a time which had already expired in the present case when the act took effect, and then in express terms provides that if the choice is not made hy the •candidate within that time the election commissioners shall print his name in the ticket first certified. There is no ■alternative under the act but that, if the choice is not made by the candidate within the time, his name must be printed upon the ticket first certified, and if we hold that the relator may have further time beyond the time fixed by the act we must interpolate something into the statute. If this be done, what time shall be fixed when the relator must make his choice? What is to guide us in fixing that time? Certainly not the act itself, but an arbitrary rule which we must adopt, and which is not contained in the act. It cannot be presumed from the language of the .statute that the Legislature intended such a result as that •one who could not conform to the provisions of the act, for the reason that the proceedings in his case had so far progressed as to render compliance by him with the terms of the act impossible, should be held within the act.

The writ must issue to the election boards of the counties .named, directing such boards to print the relator’s name ■•upon all three tickets mentioned.

Grant and Hooker, JJ., concurred with Long, J.

Montgomery, J.

I concur in the foregoing opinion, so far as it holds that the right of the present relator cannot be affected by the provisions of the act of March 14. As this holding disposes of the case, I do not deem it necessary to set forth my views upon the question of the -constitutionality of the act.

McGrath, O. J., did not sit.

The following opinion was filed in the above entitled case on October 1, 1895:

Grant, J.

A brief opinion was filed in this case upon the hearing {ante, 474). The provision of the Constitution empowering the Legislature to enact laws to preserve the purity of elections and the provisions of the statute are sufficiently stated in that opinion. For want of time, a-written opinion upon the constitutional question was then withheld.

If the effect of this act, as is strenuously argued by the learned counsel for the relator, is to “subvert or impede the right to vote," it is clearly unconstitutional. If, on the contrary, it neither subverts nor impedes, but only regulates, that right, it is constitutional. As experience has disclosed corruption, fraud, venality, and assaults upon the purity of the ballot, the legislatures of the several states have enacted laws to prevent them. Few, if any, of these enactments have escaped attack in the courts, and the charge against them has usually been that they are unconstitutional, and infringe upon the sacred and constitutional rights of the citizen. The registry law of this-State was attacked. So, also, were the laws providing for the present system,— the quasi Australian ballot. The effect of these laws has been to render voting more inconvenient, to require greater care on the part of the elector, and sometimes to deprive him of his vote. The elector who has failed, through forgetfulness or other reason, to register on the days provided by the law, must lose his-vote, unless he was sick or absent from the township on business, and without intent to avoid registration. The-elector -may not desire to vote for any man upon the ballot, and in that case he must erase the name of the-objectionable candidate, and write another name, or mark some name for the same office upon another ticket, or lose his vote for that office. He may innocently make certain marks prohibited by law, or he may innocently show his ticket, either of which will cause the loss of his vote. These and other similar provisions designed to secure an honest election, and to preserve “this most precious right to those who are entitled to enjoy it,” have been sustained by the courts. The Constitution does not guarantee that each voter shall have the same facilities with every other voter in expressing his will at the ballot-box, or, to apply the rule to the present case, it does not guarantee to each voter the right to express his will by a single mark. The constitutionality of the law is not to be tested by the fact that one voter can cast his ballot by making one mark, while another may be required to make two or more to express his will. When each has been afforded the I opportunity and been provided with reasonable facilities to vote, the Constitution has been complied with. All else is regulation, and lies in the sound discretion of the Legislature, to whom alone such regulation is committed. * Courts cannot hold such provisions unconstitutional because, in their judgment, they are harsh or unwise, or have their origin in partisan purposes. Constitutional laws often have their origin in such purposes, and unconstitutional laws are often based upon pure motives and honest intentions. Courts have nothing to do with the motives of legislators, nor the reasons they may have for passing the law. The polar' star of interpretation to guide them is the language of the Constitution itself, and the sole question always is, does the law destroy or abridge the right?

It is well, perhaps, to refer to some of the decisions of this Court as to the power of the Legislature to pass acts to maintain the purity of elections, which is expressly conferred upon them by Const, art. 7, § 6.

In Chateau v. Jacob, 88 Mich. 170, a candidate for alderman claimed the right to have his name appear upon the official ballot as a candidate on the Citizens’ Committee’s Independent Ticket. He had the right to be a candidate, but it was held he had no right to have his mame printed upon the official ballot, because it did not appear that he was selected by any assemblage of electors of his ward, and that anybody could vote for him by writing his name upon the ballot.

In Common Council v. Rush, 82 Mich. 532, it was held that parties might place a county ticket upon the official ballot as the law then stood, and, if they desired to vote for any State ticket, they could erase the county ticket, ■and place their own in its stead. In that case one voter would be put to more trouble in preparing his ballot than another.

In Attorney General v. May, 99 Mich. 538, we said that every presumption is in favor of the constitutionality of the law; citing the authorities.

In Attorney General v. Common Council, 78 Mich. 545, 559, it was said:

“In order to prevent fraud at the ballot-box, it is ■proper and legal that all needful rules and regulations be made to that end; but it is not necessary that such rules and regulations shall be so unreasonable and restrictive as to exclude a large number of legal voters from exercising their franchise. * * * The power pf the Legislature in such cáses is limited to laws regulating the enjoyment of the right, by facilitating its lawful exercise, and by preventing its abuse, The right to vote must not be impaired by the regulation. It must be regulation, not •destruction.”

In Common Council v. Rush, 82 Mich. 532, 537, we held that it was—

“The exclusive province of the Legislature to enact laws providing for the registration of voters, and the time, place, ■and manner of conducting elections. It may regulate, but •cannot destroy, the enjoyment of the elective franchise. Whether such regulation be reasonable or unreasonable is for the determination of the Legislature, and not for the ■courts, so long as such regulation does not become destruction. * * * When power is conferred upon the Legislature to provide instrumentalities by which certain ■objects are to' be accomplished, the sole right to choose the means accompanies the power, in the absence of any ■constitutional provisions prescribing the means. The finding by this Court that the law impeded, hampered, or restricted the right to vote, and is therefore void, would be a ■clear assumption of, and encroachment upon, legislative power, — a substitution of our judgment for that of the Legislature. It can only be declared void when it destroys the right. Its unconstitutionality can be determined by no ■other rule.”

See, also, Attorney General v. McQuade, 94 Mich. 439.

Other decisions by this and other courts might be cited and quoted from, but the above are sufficient to establish the rule by which courts must be governed in determining the constitutionality of acts,passed by the Legislature for the purity of elections. The rule is thus stated by Juátice ■Cooley:

“All such reasonable regulations of the constitutional right which seem to the legislature important to the pres•ervation of order in elections, to guard against fraud, undue influence, and oppression, and to preserve the purity •of the ballot-box, are not only within the constitutional power of the legislature, but are commendable, and at least some of them absolutely essential,” Cooley, Const. Lim. 602.

See, also, Paine, Elect. § 301.

In the light of this well-established rule, let us examine the official ballot, to ascertain what the voter is required to do in order to cast his vote under this law. When he ■enters the booth with his ballot, he seeks that portion of it representing his political affiliations. We will assume that the law was in force at the election in question; that relator was first nominated by the Free Silver party; that he was also the nominee of all the other parties, except the Eepublican; and that he elected to have his name appear upon the ballot on the Free Silver ticket. The ballot, aside from the vignettes and instructions, would be as shown on next page.

The voter, if he belonged to any other party than the Free Silver or Eepublican party, would see at a glance that there was no candidate for Congress upon his ticket, and that there were only two candidates for that office upon the ballot. After having made the cross in the space at the head of his party ticket, if he desired to vote for either of the candidates appearing on the ballot he would then make another cross in the square opposite the name. If he desired to vote for neither of these, but for some other man, he would write the name in the blank space on his party ticket. . Any voter able to read could in a few seconds prepare his ballot. Is this destructive of the elective franchise? Does it destroy the full, free, and intelligent exercise of that precious right which is essential to the perpetuity of our government? To so hold would be absurd, and further argument cannot make it clearer. To what extent is the voter impeded? If he belongs to the Democratic or Prohibition or People's party, and desires to vote for a congressional candidate, he is required to make two crosses or marks instead of one. If he cannot read, he is certainly not impeded, because the parties sworn to assist him in preparing his ballot will readily inform him upon the subject, and mark it according to his wishes. It would be much more difficult to prepare a ballot under the pure Australian system, where each name must be marked. It would be a serious reflection upon the intelligence of the voters of Michigan to hold that they could be deceived by such a ballot or impeded in the right to vote. Especially is this true in view of the means of disseminating intelligence through the newspapers, upon

the hustings, by printed posters, and the importunities of' candidates and their friends.

It is, however, said that the voter has the right to suppose that all his party nominees will be on his party ticket. The Constitution neither expressly nor impliedly confers-any such right. If he be possessed of any intelligence-whatever, he cannot fail to see at once the vacant space-upon the ticket, and to know that, if he desires to vote for a Congressman, he must check one of the two candidates, or write a name in the blank space. Both the opportunity and the facility to vote are afforded. If it be-said that the voter who does not examine his ticket may by this means be deprived of his vote for an office, it may also be said with equal certainty that, if another candidate-than the one nominated by the convention is upon it, he-will probably vote for the man who he had no reason to suppose was on his ticket, and for whom he never intended to vote. The ballot prepared under the present law challenges the voter’s attention by the vacant space-upon his party ticket to the fact that, if he desires to-vote for a candidate for that office, he must seek his name-upon other tickets,, or write a name upon his own ticket.

It is apparent that this law will tend to secure a more-intelligent vote than if the name of the candidate were upon all four tickets. It is alleged in the answer that the convention of one of the political parties did not expressly authorize its committee to fill any vacancy, and that its congressional candidate withdrew, and such committee placed the name of the relator upon its ticket. It-is alleged by the respondents that corrupt bargains have ! been made, between unscrupulous managers of different- j political parties, by which one candidate has been bought-f off and another substituted, and that new political parties' have been organized by unscrupulous men for the sole! purpose of bargain and sale, and that the purpose of this law is to prevent these corrupt deals between corrupt politicians. No fraud is charged in the present case, but it ¡ affords an illustration of the opportunities for such trades,, which every good citizen condemns, and which should, if if possible, be prevented by law.

It is also insisted that the candidate has the constitutional right to have his name appear upon the ticket of' every party which indorses him. It gives every candidate-the right to have his name appear upon the ticket once.. Naturally, it belongs in the column of that party withi which he is openly affiliated; but if he chooses to have his,; name attached to the ticket of some other party, and that, party does not object, he possesses that right. But I know of no reason or authority for saying that any candidate-, possesses the constitutional and inalienable right to have-his name appear more than once upon the official' ballot containing the tickets of' two or more political; parties. The Australian ballot contemplates that his name-shall be there but once. It follows then that every voter-has a reasonable opportunity to vote for him. This is the ■ sole constitutional right guaranteed him. He has no occasion to find fault so long as he is permitted to have his; name upon the ballot upon such ticket as he chooses, with the constitutional right following of an opportunity given to every voter to vote for him, which he can do by simply making two crosses instead of one.

The law is general, and aims at no political party. One-1'| party may be affected at one election, and another at another, or all parties may be affected at one election, some-in one locality and others in another. It does not prevent. M coalition between different political parties, which is often very if commendable and patriotic. It does not deprive the mem- j bers of those political parties of the means to put their|

' coalition into effect by their votes, bnt furnishes all reasonable facilities for so doing. It only requires some degree of intelligence and care on the part of the voters. We hold the law to be constitutional.

Long and Hooker, JJ., concurred with Grant, J. McGrath, C. J., did not sit.

       Act No. 17, Laws of 1895.

       See opinion immediately following this.


author: Hooker, J.

text:
    John F. McLaughlin v. Henry Austin.

      Election of remedies — Evidence—Statute of frauds — Promise to pay debt of another.

    1. Plaintiff sued to recover for plumbing done in a house which a third party contracted to erect for the defendant, and with whom the plaintiff agreed in the first instance to do the plumbing, upon the theory of an abandonment by the contractor of his contract, and an agreement by the defendant to pay plaintiff for the work agreed to be done for the contractor if plaintiff would finish said work, and make certain changes at an additional price, which the defendant agreed to pay. It appeared on the trial that, prior to bringing suit, plaintiff had filed a statement of lien, in which he swore that the work and materials sued for were furnished in pursuance of his contract with said contractor. And it is held that the plaintiff did not thereby elect his remedy so as to preclude the bringing of the suit against the defendant.
    2. The fact that in the statement of lien plaintiff swore that he furnished the materials and labor in pursuance of a contract with the contractor was proper evidence to be considered by the jury in determining whether the work was done in reliance upon a new undertaking with the defendant, but was not conclusive that it was not so done.
    3. The undertaking of the defendant, if entered into as claimed by the plaintiff, was not within the statute of frauds.
    Error to Wayne. (Hosmer, J.)
    Submitted on briefs January 11, 1895.
    Decided April 2, 1895.

      Assumpsit. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.'

      James H. Pound, for appellant.

      William Look and Ira Q. Humphrey, for plaintiff.
   Hooker, J.

The plaintiff contracted with one Jones, a builder, to do certain plumbing in a house which Jones-was erecting under a contract with the defendant. Hpon the part of the plaintiff it is claimed that Jones abandoned the job before it' was completed. Defendant testified that he thought Jones did not abandon the job, but that he neglected to do the work, and, desiring to move in, he, the defendant, put on some help about September 20, to-finish up the work, rather than to wait. Be this as it may, the plaintiff testified that, upon taking certain fixtures to the building, he was informed by the defendant that they would not suit, and an arrangement was made for a. change and some additions, for which he was to receive $25. At this time but little of the work had been done. The plaintiff further testified that in this conversation the defendant told him that Jones had abandoned the job, and that he, the plaintiff, should finish the work, and the .defendant would pay him. Another witness, one of the carpenters, testified to a part of this conversation. From this counsel argue, and apparently the jury found, that the defendant contracted for this work, agreeing to pay for the whole job when done, if the plaintiff would go on and finish it, and make changes at an additional price-agreed upon. The defendant denies this agreement, and says he never agreed to pay for anything except the extras mentioned. The undisputed testimony shows that the-plaintiff filed a statement of lien, in which he swore that the labor was done and materials were furnished in pursuance of a contract with Jones. An attempt was made to explain this by testimony that the facts were' stated to an attorney, under whose advice the lien was filed. Error is-assigned upon the admission of this evidence, and in permitting a verdict in the case in view of the nature of this lien.

No rule is better settled than the proposition that one-having the choice of two inconsistent remedies is bound by an election, and that suit brought upon one precludes-a subsequent resort to the other claim. Thus, one may waive a tort by bringing an action in assumpsit, or may lose his right to bring assumpsit by commencing an action for the wrong committed. One may sometimes rescind a-contract, and assert title to property that he has parted with, or he may affirm the contract, but he cannot do both. Having elected, by bringing an action upon one theory, he-has no right afterwards to sue upon the other. Thompson v. Howard, 31 Mich. 312, and cases cited; Brown v. Littlefield, 11 Wend. 467; 1 Id. 398; Morris v. Rexford, 18 N. Y. 557; M’Elroy v. Mancius, 13 Johns. 121; Sanger v. Wood, 3 Johns. Ch. 416. This rule is not inconsistent with the practice of bringing a second and different action where it appears that the plaintiff never had a right of action as first brought, and therefore could not have-elected. There is a difference between an election of remedies and a mistake of remedy, and the law has not-gone so far as to deprive parties of meritorious claims merely because of attempts to collect them by inappropriate actions, upon which recovery could not be had. Morris v. Robinson, 3 Barn. & C. 196; Peters v. Ballistier, 3 Pick. 495; Butler v. Hildreth, 5 Metc. 49.

In this case, according to the plaintiff’s testimony, he-made a valid contract with Jones, and did about 830-worth of work under it, and went to the premises for the-purpose of finishing the- job under such contract, when he was asked by the defendant to make some changes in material and do additional work, which he assented to for a stipulated price, viz., 825 (which was agreed to be, and was subsequently, paid by the defendant for the extras), and a promise to pay for all work done. It does not appear that the plaintiff expressly agreed to this at the time, or that he ever accepted this proposition, except as it may be inferred from his doing the work. Whether or not this work was done in reliance npon the defendant’s promise is only known to the plaintiff. If he relied on a contract with the defendant, he might place a contractor’s lien upon the premises, and hold him personally responsible. If, at the time he filed the subcontractor’s lien, he had a right to elect which of these persons he would hold, such election was made by filing his lien, but this cannot be said to be strictly true. His election must have been made at the time of doing the work. Then he had a valid claim against one or the other, and none the less so because of difficulty in determining which one he actually relied upon in doing the work. If it was the defendant, he was liable, and an unsuccessful effort to collect of Jones, had it been made, would not remove the liability, upon which there could be but one proper remedy, and therefore no opportunity for an election between inconsistent remedies. The fact that his claim of lien contained the sworn statement that he furnished material and labor in pursuance of a contract with Jones was proper evidence to be considered by the jury in determining whether the work was done in reliance upon a new undertaking with the defendant, but is not conclusive that it was not so done.

It is contended that this contract, if proved, was void under the statute of frauds, inasmuch as it was not in writing. It is urged that, at the time it was made, Jones owed the plaintiff $20 or $30 for work already done, and was under a legal obligation to pay the remainder of the claim when the work should be finished; that there was no agreement to release Jones from his liability, and therefore, as his liability continued, the promise of the defendant was a promise to answer for the debt of another. It is possible for one to make a valid oral promise to pay the debt of another without releasing the original debtor, though it is not where the consideration moves to the original debtor alone. This seems to be the point upon which the rule turns. Leonard v. Vredenburgh, 8 Johns. 29; Nelson v. Boynton, 3 Metc. 396; Mallory v. Gillett, 21 N. Y. 412; White v. Rintoul, 108 Id. 222; Corkins v. Collins, 16 Mich. 478; Calkins v. Chandler, 36 Id. 320; Bice v. Building Co., 96 Id. 24, 30. The agreement to pay the unpaid portion of the original contract price, plus $25, was upon the consideration that the plaintiff should proceed and do the work, notwithstanding the abandonment of the job by Jones, and do other and additional work desired by the defendant. Here was a consideration, and one that moved to the defendant, and not to Jones; and, under the authorities cited, the promise alleged by the plaintiff, if established to the satisfaction of the jury, was not within the statute of frauds.

Some other assignments of error appear, but upon examination we think it unnecessary to discuss them.

No error appearing, the judgment will be affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
    Frank Hoffman v. Alexander Lynburn.

      'Taxes — Equalization—Records of supervisors — Evidence—Apportionment of State tax — Highway assessment.

    1. If, in equalizing the assessment rolls of the several townships of a county, there was no occasion to add to or deduct from the valuations as assessed, the only requirement of section 993, Comp. Laws 1871, was that there be entered upon the record of the board of supervisors the aggregate valuation of the taxable real and personal property of each township, as determined by the board, and, where such an entry appears, the presumption arises that no such deductions or additions were found necessary or were made; citing Chamberlain v. City of St. Ignace, 92 Mich. 332.
    2. The presumption in favor of the regularity of the equalization proceedings is not rebutted by showing that, if the State tax were computed upon the basis of the equalization, the tax levied upon the land in dispute would amount to 40 cents, whereas the amount levied was but 21 cents.
    ■3. Section 997, Comp. Laws 1871, provided that the supervisors should ascertain and determine the amount of money to be raised by tax for county purposes, and apportion such amount, and also the amount of State tax required to be raised, among the several townships in the county, in proportion to the valuation of the taxable property therein for one year, as equalized by the board, which determination and apportionment should be entered at large on their records. And it is held that a resolution providing that a specified amount of State and county tax should be assessed on the rolls of the several townships, naming them, and placing opposite the name of each the amount of State and county tax required to be assessed, and giving the total of said taxes respectively, was a sufficient compliance with the statute, it not being shown that the apportionment to the several townships was unequal.
    4. Under said statute the board was not required to determine the amount of State tax to be raised, but simply to apportion the State tax, in ascertaining the amount of which it had reference to the certificate of the Auditor General showing the amount of State tax apportioned to its county, which certificate was not required to be spread upon the record of the proceedings of the board, and which, in the absence of proof to the contrary, it will be presumed to have followed in making such apportionment.
    5. In an action of ejectment involving the validity of a tax deed issued on a sale of the land for the taxes of 1872, the record of the highway commissioners showed that it was voted that the highway tax should be assessed at $1 on $100; also that the clerk should make the rolls. The assessment roll was not introduced, but ■ the inference that the assessment was made as a money tax, and not as highway labor, was sought to be drawn from said' record. And it is held that the action of the commissioners was to be evidenced by the roll; that, under the statute then in force, a day’s work was deemed for some purposes the equivalent of $1; that the fact that in giving preliminary instructions to the clerk the commissioners so treated it, instead of using the expression “one day’s labor,” does not create the presumption that their subsequent action in preparing the roll itself was irregular, and that they disregarded the statute; that, if they did, the roll itself would be the best evidence of that fact, and, if it was itself regular, the preliminary instruction would not invalidate it.
    Error to Oscoda. (Simpson, J.)
    Argued January 23, 1895.
    Decided April 2, 1895.
    Ejectment. Plaintiff brings error.
    Affirmed.
    The facts •are stated in tbe opinion.

      Phillips & Jenhs, for appellant.

      M. J. Connine, for defendant.
   Montgomery, J.

This is an action of ejectment. Plaintiff, to establish his title, introduced a patent from the State of Michigan and sundry mesne conveyances by which a prima facie title was vested in himself prior to the commencement of suit. The defendant introduced tax deeds from the Auditor General to himself for the taxes of 1872 to Í880, inclusive. Plaintiff thereupon undertook the burden of overcoming this prima facie title of defendant, derived under his tax deeds, by showing irregularity in the proceedings to assess and spread the taxes for the different years. The circuit judge apparently considered that the plaintiff had succeeded, at the close of the testimony, in showing jurisdictional errors in all the years except 1872, but upheld the defendant's title, based upon the sale for the taxes of that year. We are to consider the correctness of the holding of the circuit judge in this respect.

The errors alleged in this year are that the record of the board of supervisors fails to show a proper equalization; that the proceedings of the board in spreading- the State tax are irregular; and that the evidence shows that the highway tax, which was assessable in labor, was in fact assessed as a money tax.

The equalization, as appears by the record of the board of supervisors, is as follows:

“ Resolved, that we determine-the aggregate valuation of the taxable real and personal property of the several townships of Alcona county to be as follows, namely:
Harrisville township......................... $ 896,000 00
Alcona township............... 257,444 75
Greenbush township......... 212,640 04
Total....................................$1,366,084 79”

The statute in force at the feme this action was taken, relating to equalization was section 993, Comp. Laws 1871, which provided that—

The board of supervisors in each county shall, at their session in October in each year, examine the assessment roll of the several townships, and ascertain whether the-relative valuation of the real estate in the respective townships has been equally and uniformly estimated. If, on such examination, they shall deem such valuation to be-relatively unequal, they shall equalize the same by adding to or deducting from the valuation of the taxable property in the township or townships such an amount as in their judgment will produce relatively an equal and uniform valuation of the real estate in the county, and the amount added to or deducted -from the valuation in each township shall be entered upon the records. They shall also causé to be. entered upon their records the aggregate valuation of the taxable real and personal property of each township, ward, or city in their county, as determined by them.”

As was said in Boyce v. Sebring, 66 Mich., at page 217:

“It is only where the valuation, of the real estate is relatively unequal that the board. is authorized to add to or deduct from the aggregate amount assessed in a township.”

And in Chamberlain v. City of St. Ignace, 92 Mich., at page 335, it was said:

“If there be no occasion to add to or deduct from the assessed valuations, then the only requirement is that there shall be entered upon the record ‘thq aggregate valuation of the taxable real and personal property of each township in their county, as determined by them.”

This was done in the present case, and the equalization must be held valid.

It is said that the proceedings show that, if the State tax were computed upon the basis of the equalization, that spread upon the property in question would amount to 40 cents, whereas but 21 cents is levied for a State tax; and we are asked to infer that there must have been a deduction from the assessed valuation. But we do not think the presumption in favor of the regularity of the proceedings can be thus overcome.

The statute relating to the apportionment of the State tax (section 997, Comp. Laws 1871) reads:

“ Said board shall also ascertain and determine the amount of money to be raised by tax for county purposes, and apportion such amount, and also the amount of State tax required to be raised, among the several townships in the county, in proportion to the valuation of the taxable property therein for one year, as equalized by the board, which determination and apportionment shall be entered at large on their records.”

The apportionment in the present case was as follows:

“Resolved, that the following amount of State and county tax be assessed on the rolls of the several townships:
State Tax. County Tax.
Harrisville township............... $1,814 64 $7,314 00
Alcona township.................. 521 32 2,072 94
Greenbush township............... 430 72 1,713 01
$2,766 68 $11,000 00”

We think this was a sufficient compliance with the statute. It is urged that it does not show the amount of State tax authorized to be raised. By this we suppose is meant the amount certified by the Auditor General. But the answer to this is that this certificate is not required to be spread upon the record of the proceedings of the board, and it will be presumed that the board followed the certification of the Auditor General, in the absence of proof. It is to be noted that the board is not required to determine the 'amount of State tax to be raised, as in case of the county tax, but is simply required to apportion the State tax, and, to ascertain the amount of this, the board has reference to the certificate of the Auditor General, which is placed on file. By this apportionment, the total tax spread appears upon the record, and the apportionment to the townships is not shown to be unequal.

There was assessed against the land $2 highway tax, and this is claimed to be illegal, for the reason that the assessment was made as a money tax, and not as highway labor. The assessment roll was not introduced, but the inference is sought to be drawn from the record of the highway commissioners of the township, which reads as" follows:

“May 24, 1872, the board of commissioners met and voted that the highway tax for 1872 be assessed at $1 on $100; also, that the clerk make the rolls, and render an ■account for the same when completed.”

The highway law in force when this proceeding was had will be found in sections 1220, 1221, 1228, and 1241 of -the Compiled Laws of 1871. Section 1220 provides for an •estimate and assessment of highway labor by the commis.sioners, —first, the poll tax; second, not exceeding one day’s work for every $100 valuation of property, — and provides that—

“ The commissioners shall affix to the name of each ■person named in the lists furnished by the overseers and not assessed upon the assessment roll, and also to each valuation of property within the several road districts, the number of days which such person or property shall be •assessed for highway labor.”

Section 1221 provides that—

“The clerk of the board of commissioners shall, under their direction, make duplicates of the several lists, which shall be subscribed by the commissioners, one of which lists for each road district shall be filed by such clerk in his office, and the other shall be forthwith delivered to the overseer of highways of the district in which the highway labor therein specified is assessed.”

Section 1228 provides that—

“ Every person liable to work on the highways shall work the whole number of days for which he shall have been ■assessed; but every such person, other than an overseer, * * * may elect to commute for the same, or any part thereof, at the rate of $1 for each day.”

Section 1241 provides that the supervisor shall cause the •arrearages of labor to be levied on the lands returned, •estimating the same at $1 for each day.

It will be seen that the preliminary direction by the board to its clerk, which is set out m the record, is not provided for by statute, nor is it the record contemplated by statute. The action of the commissioners is to be •evidenced by the roll. Is the fact that the direction was given in. tliis form enough to create the presumption that the roll itself was irregular? ■ We think not.' . Under the-statute, a day’s work was ] deemed for some-purposes the equivalent of $1; and the fact that in giving the prelim* .inary instructions to- its clerk, the board so treated it, instead -of using the expression. .“one day’s. labor,” we-think, does not. create the presumption that the; subsequent, action of the board in preparing the roll itself was irregular, and that the board disregarded the law. Certainly, if it did, the roll itself would be the best evidence of the-fact, and it cannot be said that if the roll, which is the action' contemplated by • statute, was itself regular, this, preliminary instruction would invalidate it.

It is also said that the action shows that the board delegated the authority to make the lists to the clerk. But it has already been sufficiently indicated that this-action was preliminary, simply; and the statute in terms-authorizes the making of the lists by the clerk under the-direction of the board.

We think the plaintiff has failed to show the invalidity of the tax of 1872, and the judgment will' be affirmed.

Long, Grant, and Hooker, JJ., concurred. McGrath, C. J., did not sit.

       How. Stat. § 1027.

       How. Stat. § 1031.


author: Grant, J.

text:
    Henry Devonshire v. DeWitt C. Peters.

      Impeachment — Admission of evidence — Discretion of court.

    Where in an action for malicious prosecution in causing the arrest of the plaintiff for taking possession, without process, of chattel-mortgaged property, the return of which had been adjudged to him in a replevin suit brought by the defendant for his wife, who owned the mortgage, the plaintiff is asked on cross-examination if he did not state to a certain person that he owed the defendant a specified sum on the mortgage, and denies making the statement, and the person referred to testifies in behalf of the defendant that plaintiff made such statement, after which the plaintiff on rebuttal again denies making it, and details fully the conversation which he claims occurred, the admission on surrebuttal of testimony offered by the defendant attacking the reputation of the plaintiff for truth and veracity is within the sound discretion of the court, which cannot be said to be abused by the rejection of the testimony.
    Error to Eaton. (Smith, J.)
    Argued January 24, 1895.
    Decided April 2, 1895.
    Case. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      John M. Gorlin (M. V. Montgomery, of counsel), for appellant.

      Walter S. Powers and Poioers & Stine, for plaintiff.
   Grant, J.

Plaintiff's declaration contains counts for false imprisonment and malicious prosecution. He recovered verdict and judgment for $125. He had executed a chattel mortgage to one Elmer Sheldon, who assigned the same to defendant's wife. Defendant, acting for his wife, and claiming- that the mortgage was not paid, replevied the property, and -took the same from Eaton county, where plaintiff resided, into Jackson county, where the defendant resided. The defendant was defeated in that action, and plaintiff took judgment for the return of the property. He then went to Jackson county, where the property was, and took it away. The defendant made complaint, and caused plaintiff’s arrest on a warrant for larceny. He was imprisoned for several days, and was-discharged upon examination. Upon the trial of this-cause, plaintiff proved his arrest, imprisonment, and discharge, and gave evidence tending to show malice on the-part of the defendant, and a want of probable cause. On his cross-examination he was asked if he did not admit to-one Scott Eorabeck that he owed defendant $52, and he-denied having said so. He was cross-examined fully as to-this conversation. He then rested his case. Defendant admitted the arrest, and gave evidence tending to show that he had probable cause, and was not actuated by malice, and that he seized the property on behalf of his-wife, as mortgagee. Mr. Eorabeck was called by the defendant, and testified that “plaintiff told him there was $52 due defendant on the chattel mortgage.” Defendant then rested. On rebuttal plaintiff again denied the conversation with Mr. Eorabeck, and detailed fully the conversation with him. Plaintiff thereupon again rested. Defendant then sought to impeach the plaintiff by introducing evidence that the plaintiff’s reputation in his neighborhood for truth and veracity was bad. This was ruled out by the court, and presents the sole question in the case.

Defendant insists that he was entitled to this evidence as a matter of right. Plaintiff insists that it was within the discretion of the court, at that stage of the case. When the testimony was offered, plaintiff’s counsel stated to the court that plaintiff’s witnesses had been discharged, and had returned to their homes, 30 miles distant. Defendant insists the rule to be that, where the plaintiff in rebuttal has testified to any material fact not covered by his testimony in chief, the legal right to impeach in this manner exists. If we concede this to be the rule, we do not think that the defendant brought himself within it. The material fact in this testimony was whether plaintiff! said that he owed defendant $52 at the time he replevied, the property. This the plaintiff had expressly denied im his testimony in chief. The circumstances surrounding-this conversation,to which plaintiff testified upon rebuttal! were not very material. We think the admission of the-testimony was within the sound discretion of the court,, and that this discretion was not abused.

Judgment affirmed.

Long and Hooker, JJ., concurred. Montgomery, J., took no part in the decision. McGrath, O. J., did not sit.


text:
    Jennie M. Donogh v. The Farmers’ Fire Insurance Company.

      Fire insurance — Conditions of policy — Other insurance — Waiver of forfeiture.

    1. A policy of insurance which, provides that it shall be void if the insured now has, or shall hereafter make or procure, any other contract of insurance, whether valid or not, is voided by a subsequent insurance in form, even though it may not be¡ binding and enforceable.
    2. In a suit upon an insurance policy containing such a provision, it appeared that, in the first conversation had by the agent of the defendant with plaintiff’s agent, the defense growing out of a violation of said provisions was clearly foreshadowed, and that afterwards, in a letter acknowledging the receipt from plaintiff’s agent of formal notice of the loss, the general agent. of the defendant clearly indicated that the defendant intended to make said defense. And it is held that the contention of the plaintiff that the defendant waived said condition by inviting proofs of loss in said letter is untenable, it appearing that all that was promised was that, if plaintiff saw fit to furnish such proofs, the defendant would take such action as the facts demanded, but that plaintiff was apprised in the ■ same letter that the loss could not be adjusted for the reason that other insurance, provided against in the policy, existed.
    Error to Gratiot. (Daboll, J.)
    Argued January 25, 1895.
    Decided April 2, 1895.

      Assumpsit. ■ Plaintiff brings error.
    Affirmed.
    The facts are stated in the opinion.

      George P. Stone and John M. Muerden, for appellant.

      Kelli/ S. Searl (Thomas Bates, of .counsel),. for defendant.
   Montgomery, J.

This is an action on a policy of insurance. The case was tried, before the circuit judge without a jury, and comes before this Court for review upon special findings of fact and law.

The findings of fact show that on April 6, 1892, the defendant issued its policy of insurance, which was a Michigan standard form, and ran for one year from its date. On the 17th of January, 1893, the plaintiff took out an additional policy in the Liverpool & London & Globe Insurance Company, covering the sanm property, and to run for one year. Each policy contained the clause that the same should be void “if the insured now has, or shall hereafter make or procure, -any other contract of insurance, whether valid or not, 'on property covered in whole or in part by this policy.” After the fire the general agent of the defendant went to Ithaca, the scene of the fire, and was informed by the agent of the plaintiff of the fact that the second policy had been taken out in the Liverpool & London & Globe, and that that company had refused to pay. The agent of the company then said to the plaintiff's agent that he could not tell what ground his company would take; that it might take the ground that it was not liable at all upon the policy, and it might be that it would take the position that both companies would have to contribute; he was not positive which it would be. Subsequently,- the agent of the plaintiff wrote the general agent of the defendant, inclosing formal notice of the loss, as required by the policy; and defendant's agent wrote, under date of February 27, 1893, acknowledging the receipt of the notice, and promising to give the matter early attention. On the 27th of March, 1893, excusing his delay on the ground of sickness and press of other matters, he wrote as follows:

“I will, however, say to you, as agent for Mrs. Donogh, that, owing to the existence of other insurance on the property at the time of the fire, I cannot take any action towards adjustment of the loss, and can only say to Mrs. Donogh and to you, as her agent, that if she has any claim against the Farmers' Fire Insurance Co., of York, Pa., she should present it in the manner prescribed by the policy, when we will take such action as the facts demand."

The circuit judge found, as conclusions of law — First, that the taking out of the policy in the Liverpool & London & Globe Insurance Company was in violation of the terms of the first policy, and rendered the same void; and, second, that there had been no waiver of this forfeiture on the part of the defendant company.

Plaintiff contends that, inasmuch as the policy attempted to he taken out in the Liverpool & London & Globe contained a clause like that which was relied upon by the defendant, such subsequent policy was void, and therefore did not operate to forfeit the first policy. There is authority to sustain this contention of plaintiff, to the extent that, where there is a stipulation in the policy merely that it shall be avoided by subsequent insurance, the first policy is not avoided by taking out a new policy which is wholly inoperative and void. See Gale v. Insurance Co., 41 N. H. 170; Stacey v. Insurance Co., 2 Watts & S. 506; Philbrook v. Insurance Co., 37 Me. 137; Schenck v. Insurance Co., 24 N. J. Law, 447; Jackson v. Insurance Co., 5 Gray, 52. But the stipulation in this case goes further. It provides that the policy “shall be void if the insured now has, or shall hereafter make or procure, any other contract of insurance, whether valid or not.” Language could not well be more specific. The evident purpose of the provision is to guard against the possibility of all apparent motive or inducement to commit fraud. This cannot be wholly guarded against by providing that the insured shall not have any enforceable contract, but it was deemed wise to provide against the taking out of any policy which the insured might deem a protection, and regard as affording him indemnity. The purpose is apparent, -and is lawful; and the language is intended to be broad enough to cover every possible case in which motive to incendiarism might be created by overinsurance, or by a belief on the part of the insured that he had succeeded in procuring excessive insurance. In reason and by authority, the policy is rendered void by a subsequent insurance in form, even though such insurance may not be binding and enforceable. Insurance Co. v. Lamar, 106 Ind. 513; Sugg v. Insurance Co., 98 N. C. 143; Bigler v. Insurance Co., 22 N. Y. 402; Hughes v. Insurance Co., 40 Neb. 626; Lackey v. Insurance Co., 42 Ga. 456; Allen v. Insurance Co., 30 La. Ann. 1386; Replogle v. Insurance Co., 132 Ind. 360; Carpenter v. Insurance Co., 16 Pet. 495.

We-think it very clear that there was no waiver of this condition. In the first conversation with the agent-of tbe company the defense subsequently insisted upon was clearly foreshadowed. In the letter of March 27 the agent very clearly indicated that the company intended to make the. defense now insisted upon. But it is said that the company invited proofs of loss. But certainly the plaintiff could not have been misled when, in the same letter, she was apprised that the loss could not be adjusted for the reason that other insurance existed, and when all that was promised was that if she saw fit to furnish proofs of loss the company would take such action as the facts demanded. ■ It was very clearly indicated to plaintiff, from, the first, that this claim would be contested.

The judgment will be affirmed.

Long, Grant, and Hooker, JJ„ concurred. McGrath, C. J., did not sit.


text:
    Aultman, Miller & Company, a Corporation, etc., v. Harmon B. Dodson.

      Principal and agent — Extent of authority — Evidence—New trial.
    1. The general agent of a corporation engaged in the manufacture of agricultural machinery settled with one of its agents with whom he had originally contracted for services, said agent, securing the balance due from him to the corporation by a. chattel mortgage. Afterwards the general agent contracted with another party to handle said machinery (which agreement was recognized by the company), and agreed with the mortgagor that, if he would assist said party in so doing, the mortgage should be canceled. At the close of the season the mortgagor claimed to have performed his agreement, which the mortgagee denied, and brought replevin for the mortgaged property. On the trial the above facts appeared, and in addition a witness for the plaintiff testified that the authority usually conferred by tbe plaintiff on its traveling agents was limited to proposing contracts for approval at tbe home office, but it appeared from the cross-examination of the witness that he had no direct knowledge of the extent of the authority of the' general agent who made the agreement with the defendant. And it is held that the testimony was prima facie sufficient to show the authority of said general agent to make the contract in question.
    2. The testimony as to whether or not the defendant had substantially performed his agreement was conflicting. And it. is held that the question of such performance was for the jury, and their verdict should control.
    3. ; The circuit judge, while not assigning specifically his reasons-for overruling plaintiff’s motion for a new trial, which was based upon newly discovered testimony, and upon the ground, that the verdict was against the law and' the evidence, stated that the affidavits in support of the motion did not correctly state what occurred on the, application by the plaintiff at the trial to continue said case. And it is held that it cannot be said that there was an abuse of discretion in refusing to grant the motion for a new trial.

    Error to Ionia. (Davis, J.)
    Argued January 31 and February 1, 1895.
    Decided April 2, 1895.
    Eeplevin. Plaintiff brings error.
    Affirmed.
    The facts are stated in the opinion.

      John H. Mitchell and O. T. Barnes, for appellant.

      Chacldock & Scully, for defendant.

       For cases bearing upon the proper construction of and practice under Act No. 134, Laws of 1893, which provides for a review of the decision of a circuit judge in refusing a motion for a new trial, see McRae v. Lumber Co., 102 Mich. 488, and note.

   Montgomery, J.

Prior to December 31, 1890, defendant had been in the employ of plaintiff. On that date, a settlement was made by the defendant with one Frank S. Abbott, acting as agent of the company, and $181.64 found due to. the company from defendant. This amount was secured by a mortgage covering a pair of horses and a platform wagon, the property in dispute in. this ease. The mortgage was accompanied by a note due one year from date. In the fall of 1891 the agent, Abbott, visited defendant for the purpose of employing him to represent the company in making sales of machinery during the year 1892. The defendant declined to enter upon an engagement by which he would be required to do the heavy work of setting up machinery, etc. According to defendant’s testimony given on the trial of the present case, he accompanied Abbott, and the two visited one A. D. Alchines; .that a contract w;as made, by which Alchines agreed to handle the machinery of, the company in 1892, provided he could have the assistance of defendant; that Abbott then agreed that if defendant would assist Alchines, what he was able to, during the season of 1892, the company would, at the end of the season, turn over to defendant the note and mortgage above referred to. The defendant offered evidence tending to show that he performed this agreement. The company failed to turn over the note and mortgage, and, after demand, brought replevin to recover the property. On the trial the jury returned a verdict in favor of defendant, and the case is brought before us on error.

It is contended' that there was no testimony tending to show that Abbott had authority to make such a contract as that alleged, and that, therefore, it was error to submit that question to the jury. We think there was sufficient testimony to show authority, ¡prima facie. It appeared that the defendant’s original contract for service was made with Abbott; that the settlement was made with him, and the securities taken by him; that the contract with Alchines, made at the same time, and of which the agreement with defendant was really a part, was recognized b.y the company. This was some evidence of authority. This is not a case of one having the authority of a mere. traveling agent. The agency of Abbott was general, and, in the alleged contract with defendant, he was dealing with reference to a subject-matter of which he admittedly had control, and dealing with the securities which he had himself taken as a representative of the company. See Hirschmann v. Railroad Co., 97 Mich. 396. It is true that a witness for plaintiff testified that the authority usually conferred by the company on its traveling agents was limited to proposing contracts for approval at the home office, but it was made to appear on the cross-examination of the witness that he had no direct knowledge of the extent of Abbott’s authority.

It is alleged that the testimony shows conclusively that the defendant did not perform his contract fully, so as to entitle him to a discharge of the mortgage. While the testimony upon this point is not very full, the defendant did testify, in effect, that he was not to give his full time to assisting Alchines; that he was to get his note and mortgage, if he helped the Alchines people out, regardless of what he did. There was testimony that he did not devote his entire time to the business of assisting Alchines, but the question of whether he complied substantially with his contract was for the determination of the jury, and the verdict should control.

An application for a new trial was made, based upon newly-discovered testimony, and^npon the ground that the verdict was against the law and evidence in the case. The circuit judge, while not assigning specifically the reasons for refusing a new trial, states that the same is denied, the affidavits for plaintiff not correctly stating what occurred on the motion to continue the cause at the trial. Under these circumstances, we are not able to say -that there was an abuse of discretion in refusing the motion.

Judgment affirmed.

McGrath, O. J., Grant and Hooker, JJ., concurred. jLong, J., did not sit.

       The affidavit of the plaintiff’s attorney, filed in support of his motion for a new trial, states that he first obtained a knowledge of what he could prove by said Abbott, the general agent for the iplaintiff who made the agreement with the defendant, after the trial, which alleged facts are fully set forth in the affidavit of •said Abbott, and can be shown by no other witness; that, when the case was called for trial, deponent, though knowing but little of what could be shown by said Abbott, yet deeming him an important witness, and finding that he had not been reached by subpoena, asked the court for 15 minutes in which to move for a continuance based on the absence of said Abbott, which request was refused, and plaintiff was obliged to proceed to trial without the testimony of said Abbott, which, as shown by his affidavit, was .and is vital to the interests of the plaintiff.


text:
    Charles Shimmons et al. v. The City of Saginaw and George Housner, County Treasurer.

      Municipal corporations — Public improvements — Repaving streets— Necessity — Assessment of benefits — Regularity.
    1. Where, as in this State, the power exists to repave a street once improved, the question of necessity must he determined by the body in whom such power is vested, and is not open to review or attack collaterally, except in a clear case of fraud.
    .2. While it is true that a street to which every one has access, and which every person is as free to use as the abutting landowners, must be maintained at public, and not at private, expense, except only to the extent that its improvement plainly and palpably benefits the property assessed in excess of the general benefit that all property derives from the improvement, the determination of the question of the benefit to be derived is vested in the municipal authorities, which deter-ruination is final, in the absence of fraud; citing Davies v. City of Saginaw, 87 Mich. 439.
    3. It is within the authority of a city council, on paving a graveled street, to use the gravel on other streets; citing Griswold v. Bay City, 35 Mich. 452.
    4. After the institution of proceedings to pave a street under a charter empowering the city council to fix the assessment district, the charter was so amended as to vest said power in the board of public works. Two days after the amendment had taken effect, the council, in ignorance of the change in the charter, adopted a resolution fixing the assessment district. On learning of the amendment, the council, by resolution, referred the assessment district as fixed to the board of public works, and that body approved the same, but specifically negatived, in a certificate attached to the roll prepared by the city engineer, any claim that the board considered itself bound to limit the assessment for benefits to the district fixed by the council. And it is held that the assessment made by the board was valid, though the limits of the district were the same as those fixed by the council.
    5. The court will not presume, in a suit to set aside an assessment made by the proper officers for the expense of a public improvement, nor, indeed will it entertain the belief, in the absence of clear proof, that there has been an intentional violation by said officers of their oaths of office.
    6. Under a provision of a city charter that all of the proceedings of the common council in the matter of the making of public improvements shall be matters of record in its proceedings, and shall not fail on account of any technical or clerical error made by any officer of the city, nor because of any act not being done at the time or in the manner required, unless the party complaining of such failure shall show affirmatively that, he has been injured thereby, a failure to have before the council, at the time of its confirmation of the assessment roll, proof of the publication of notice of the hearing of objections-to said roll, will not operate to defeat the assessment, where-the proof shows that such notice was in fact given.
    Appeal from Saginaw. (Wilber, J.) '
    Submitted on. briefs February 1, 1895.
    Decided April 2, 1895.
    Bill to declare a paving assessment to be null and void, and to remove the cloud created thereby upon the title to-complainants* lands. Defendants appeal.
    Decree reversed,. and bill dismissed.
    The facts are stated in the opinion.

      Trask & Smith, for complainants.

      William G. Gage, for defendants.
   Montgomery, J.

This is a bill filed by 36 owners of real estate abutting on Gratiot street, in the city of Saginaw, to remove an alleged cloud upon the title of their lands, growing out of an assessment of the same for the repaving of Gratiot street. A large number of objections were made to the proceedings levying the assessment.

It appeared that the street in question had been previously graded and graveled, and that the property in question had been assessed for a portion of this expense. While it is conceded by complainants’ counsel, on the authority of Williams v. Detroit, 2 Mich. 560, and Wilkins v. Detroit, 46 Id. 120, that the council may order a re-pavement of a street once paved, or the pavement of a street previously improved by graveling, yet it is insisted that when a street has once been improved at the expense of the adjoining land-owners, and is in a reasonably fair and good condition for use as a street, it cannot be torn up without the consent of the tax-payers, and the material used to improve other streets. We think, however, that if the power exists, as it unquestionably does in this State, to repave a street once improved, the question of necessity must be determined by the body in whom that power is vested, and is not open to review or attack collaterally, except in clear case of fraud. Counsel concede that they have discovered no authority in point, nor have we, in our research, been able to find any going beyond the doctrine here announced.

It is further said that a highway to which every one has access, and which every person is as free to use as the person owning the land bordering upon it, must be maintained at public expense, not at private, except only to the extent that such improvement plainly and palpably benefits the property assessed in excess of the general benefit that all property derives from the improvement. While this is true, the determination of the question of the benefit to be derived is vested in the municipal authorities, and when this determination is made it is final, in the absence of fraud. Davies v. City of Saginaw, 87 Mich. 439; Cooley, Tax’n (2d ed.), 656.

Complaint is also made that the city authorities removed the gravel, and used it on other streets. This was within the authority of the city. See Griswold v. Bay City, 35 Mich. 452; 2 Dill. Mun. Corp. § 689. It appeared that the city originally bore a large portion of the expense of graveling, and has borne the entire expense of maintaining the street. It would have been impossible to apportion the value of such gravel, or to treat it as the property of any person other than the city. If it had appeared that the contract price of paving would have been less if the gravel had been allowed the contractor, there might be room for saying that the actual expense of improving the street was less than it was made to appear to be by the contract price. But it appears that the successful bidder fixed precisely the same price for the improvement, with the gravel reserved to the city, as he demanded if he should be allowed to remove it. Hence- it affirmatively appears that the contract price was not increased.

The circuit judge granted the relief prayed on two grounds — First, because the assessment district upon which the tax was assessed was fixed by the common council after the repeal of the charter which empowered said council to do so, instead of leaving to the board of public works the duty of deciding what property should be assessed, as required by the amended charter; and, second, because at the time of the confirmation of the assessment Toll by the common council there was no proof, by affidavit or otherwise, before said council that the notice to persons interested in the premises was published as re■qnired by the charter.

Prior to the amendment of the charter,. power was conferred upon the common council to provide for paving streets, and the council was authorized to determine that "the whole or any part .of the expenses should be defrayed by an assessment upon the lands to be benefited thereby; .and the council was required to set forth the lots, blocks, and parcels of real estate which in its opinion would be benefited, and which should be assessed therefor. Local Acts of 1889, No. 455, tit. 6, § 5. It was then made the duty of the city clerk to certify a copy of the order to the assessor of the city, whose duty it was to proceed to make an assessment according to such order upon all property comprised in the assessment district, in proportion to the benefit and advantage which each description of property was by him deemed to receive from the making of said improvement. Id. tit. 6, § 6. By the terms of the .amendment to the charter which took effect March '28, 1891, the common council was still left, the power to ■determine what portion of the expense should be defrayed by an assessment on the lands to be benefited by the improvement, and to determine by resolution—

Whether the whole, or what portion, of the cost of .such improvement shall be assessed to such lands: Provided,, however, that the assessment which may be levied upon .any block or parcel of real estate shall not exceed the benefit which it is especially deemed to have received by such improvement. When such improvement is completed, ■or as soon thereafter as may be convenient, the board of public works shall prepare a detailed statement of the cost of such improvement, showing the amount to be assessed, upon the property benefited, as provided by the resolution ordering the said improvement.”

Section 6 provides that this detailed statement shall be-certified to the common council, and, when approved by the council, it—

“Shall be certified, to the board of public works, who-shall proceed without unnecessary delay to make an assessment, according to such order, of so much of the cost of said improvement as may have been ordered specially assessed, upon all property specially benefited, in proportion to the benefit and' advantage which each description ' of property is by them deemed to receive from the making of said improvement.” .

Section 7 provides that the board—

“ Shall certify upon such roll that they have made said' assessment upon the property described, in accordance with the order of the common council relating thereto, and .that the said roll contains the just and true assessment of the costs of such -improvement, stating the sum thereof, and that the several amounts assessed against each description of- property have been set down, .to the best of the-.judgment of said board, according to the benefit and advantage which each description of property is by them déem'ed to receive from the making of said improvement,, and that each parcel thereof is benefited specially by such improvement to the amount of the assessment thereon.”

In the' present case thé proceedings were instituted before the amendment in question was adopted, and on the 30th day of March, evidently not being aware of the- ' amendment to the charter which took effect two days before, the council adopted a resolution fixing an assessment district. On the 27th of April the council adopted the following preamble and resolution;

“Whereas, on the 9th day of' February last the board of public works reported to this council statements of the •cost of paving certain streets during the season of 1890, said statements showing th'e cost of '.said improvements- to-be assessed upon the property benefited, and the amount paid from the highway funds; said statements were received, -and on the 30th day of March the committee on taxes and •assessments and city assessor reported taxing districts for said improvements, which were approved by this council, •but the assessments- have not been made, and the charter has been so amended that it becomes the duty-of- the board -of public works to make all special assessments:
“ Therefore resolved, that said statements of • costs and ■assessing districts therefor be referred to the board of public works to make said assessments, and perform such duties as are necessary under the amended charter.”

On the 2d of May an assessment roll was reported to the board of public works by the city engineer, and the following resolution adopted:

“ Resolved, that said special assessment rolls *- * * be and the same are hereby approved and adopted, and the board does assess the cost of the improvement of each ef the streets mentioned in said rolls upon the several lots, blocks, and parcels of property designated by the common ■council and as specified in said assessment rolls, in proportion to the benefits which each, in the opinion of said board, derives specially from the improvement of said .streets, and that such assessments be reported to the common council by the clerk of the board, properly certified.”

The certificate of the board, attached to the roll, is as follows:

The board of public works of the city of Saginaw, Michigan, hereby certify that it has made the within and foregoing assessment upon the property therein' described, in accordance with the order of the common council relating thereto, and that the said assessment roll contains the just and true assessment of the cost of the improvement to which it relates, viz., $6,056.98, and that the said sev•eral amounts assessed against each description of property ■therein have been set down, to the best judgment of said board, in proportion and according to the, benefit and advantage which each description therein is by said, board ■deemed to receive from the making of said’improvement, and that each parcel thereof is benefited specially by said improvement to the amount of the assessment thereof.”.

Thus far it follows the precise language of the statute, and the board further added:

“That the said assessment on any lot, block, or parcel of' real estate so levied does not exceed the benefit which such lot, block, or parcel is specially deemed to receive by such improvement, and that no lots, blocks, or parcels of real estate or property which is not set down and assessed in said roll are deemed by said board to be specially benefited^ by such improvement

It will be noticed that this certificate specifically negatives the claim that the board of public works deemed itself bound to limit its assessment to the assessing district which had been previously fixed by the common council; for the certificate indicates that it considered that, question, and determined that there was no other lot, block, or parcel of real estate, not set down and assessed in the roll, deemed by the board to be specially benefited by the improvement. We think, therefore, that the court-was in error in holding that the assessment was in any way influenced by the assessment district fixed by the-common council. The fact that it happened that the-assessment was made upon the same list of property is not. inconsistent with the claim that the board of public works, exercised its discretion. It will very often — and, indeed in most cases — occur that two independent bodies, assuming to fix an assessment district for such an improvement, will fix precisely the same district. In fact, it is a matter of common knowledge that in most instances the assessment district consists of the lots fronting upon the street improved. The city engineer, who did the clerical work of preparing the assessment, testifies that he did not regard the assessment district as fixed by the common council; and, while it is true that he was not able to point out wherein the districts differed, yet there is no testimony which fairly disputes the certificate that the board considered the question of whether any other property than. that designated was specially benefited by the improvement. This being so, and the certificate being in full compliance with the law, it should be held conclusive, in the absence of fraud. It is necessary to commit the duty of levying such assessments to somebody; and the court will not presume, nor, indeed, will it entertain the belief,, in the absence of clear proofs, that there has been an intentional violation of their oaths of office by men selected to-perform this duty. See Powers v. City of Grand Rapids, 98 Mich. 393; Brown v. City of Grand Rapids, 83 Id. 101.

It remains to be considered whether the court was right' in holding that the common council had no jurisdiction to confirm the roll for the reason that it had no proof before it that the statutory notice had 'been given at the time of the meeting. This Court has held in a number of cases that, where the public authorities are seeking to-acquire property under the right of eminent domain, it is requisite that the jurisdictional facts appear of record. People v. Highway Commissioners, 14 Mich. 528; Dupont v. Highway Commissioners, 28 Id. 362; Bennett v. Drain Commissioners, 56 Id. 634. See, also, Coulter v. School Inspectors, 59 Mich. 391; Fractional School-Dist. No. 3 v. Inspectors of Martin, 63 Id. 611; Graves v. Board of Inspectors, 102 Id. 634. But does this failure justify the interposition of a court of 'equity to set aside and vacate the assessment? The only case we have found which sustains the contention of the complainants is that of Wilson v. City of Seattle, 2 Wash. 543, cited in their brief. In the case of Taber v. Ferguson, 109 Ind. 227, 230, it was held that, where the statute does not require proof of publication of notice to be filed with the common council or clerk, the failure to file such proof is not fatal to the proceeding, if, in fact, notice was duly published. In the case of State v. Council of City of Elizabeth, 30 N. J. Law, 365, on certiorari to review an assessment made by commissioners to cover the cost of paving a certain street, —the clerk of the council having died, and the street commissioner, who gave the notices, having removed from the state, — a rule was granted by the court, upon application in behalf of the council, permitting the examination of witnesses to show that the required notices were published and served, and, upon its being made to appear that such notices were in fact given, the assessment was sustained.

We need not, however, adopt the doctrine of the last two cases cited. The notice of hearing was in fact given. The complainants in fact had their opportunity to be heard, and, under these circumstances, we think it wa3 clearly within the power of the Legislature to provide that the omission to file proof of the publication of notice should not operate to defeat the assessment, and we think the provisions of section 16 of title 6 of the charter are broad enough to cover the case in hand. This section provides that—

“All proceedings of the common council under the provisions of this title shall be matters of record in the proceedings of the common council, and shall not fail on account of any technical or clerical error made by any officer of the city, nor because of any act not being done at the time or in the manner herein required, unless the party complaining of such failure shall show affirmatively that he has been injured thereby.”

The decree below will be reversed, and the bill dismissed, with costs to the defendants.

The other Justices concurred.

       Act No. 257, Local Acts of 1891.