text:
    HAMELIN v. DELTA CIRCUIT JUDGE.
    Principal and Agent — Claim; of Appeal — Signature—Descriptio Persons — Mandamus.
    A claim of appeal setting forth that the “undersigned,” being attorney in fact for H., is aggrieved by a certain order, and makes application for an appeal, which is signed “S. C., Attorney in Fact,” is the application of C., the appended words being deseriptio persones,, and therefore mandamus will not lie at the suit of H. to vacate an order dismissing the appeal.

      Mandamus by Marcelline Hamelin to compel John W. Stone, circuit judge of Delta county, to vacate an order dismissing an appeal from an order appointing an administrator.
    Submitted October 9, 1900.
    Writ denied February 27, 1901.

      James H. Clancy, for relator.

      George Gallup, for respondent.
   Per Curiam.

An administrator was appointed on the estate of John B. Hamelin, relator’s husband, by the probate court of Delta county. Prior to the appointment, a power of attorney had been given by the relator to Simon Cyr to select or suggest the name of an administrator of said estate, and authorizing said Simon Cyr to take an appeal from the order or finding of the probate court. The recommendation of Simon Cyr was ignored, and an administrator appointed at the suggestion of the son of the deceased. Thereupon a notice of appeal was filed, containing the following statement:

“The undersigned, being attorney in fact for Marcelline Hamelin, widow of said deceased, and being duly authorized by said Marcelline Hamelin, by a proper power of attorney, to select and nominate in her behalf an administrator of said estate, which said power of attorney, properly executed, is now on file in said probate court, and a part of the records of said court in the matters pertaining to said estate, reference to which will more fully appear, and being aggrieved by the order or decree of said judge of probate, made on the 7th day of May, A. D. 1900, appointing Manizep Perron administrator of the estáte of said John B. Hamelin, on the petition of one Eugene Hamelin, son of said deceased, as appears by such order and decree on file in said court, hereby gives notice of, and makes application for, an appeal to the circuit court for said county from the said order and decree of said judge of probate for the following specific reasons.”

This notice was signed, “Simon Cyr, Attorney in Fact.”

The circuit judge dismissed the appeal for the reason, among others, that the appeal was claimed and taken by-Simon Cyr, and not by the relator, and that Simon Cyr did not have any such interest in said estate as entitled him to take any such appeal, and that the addition of his name and the words “Attorney in Fact” was but a description of his person. We think that the holding is correct on the face of the papers. The question is not presented as to whether Simon Cyr, by virtue of his ap- _ pointment as attorney in fact, had such an interest in the proceeding as authorized him to take an appeal, as this application is not based upon any such view, but the relator claims that the appeal is her appeal rather than that of Mr. Cyr.

Application for a mandamus to vacate the order of the circuit judge will be denied.


source: Caselaw Access Project

author: Long, J.

license: Public Domain

text:
    WOLFF v. JASSPON.
    Set-off — Equity—Claim of One Defendant.
    Complainant contracted to sell land to defendants, who were husband and wife; the husband intending the land as a present to his wife, and paying part of the purchase price and signing her name to the contract- without her knowledge. The men also had other dealings in which the husband was indebted to complainant, and at divers times made payments and gave him collaterals and other securities, which complainant disposed of and refused to account for, more than sufficient to pay all debts they were given to secure and the balance on the land contract. In a suit to foreclose the land contract for failure to pay the balance of the purchase price, defendants sought an accounting for such securities, and application of the excess, above the debts secured and paid thereby, as an offset of the amount due under the contract, and judgment for the balance. Held, that, under 3 Comp. Laws 1897, § 10075, subd. 6, providing that, if there be several defendants, the demand set off must be due to all of them jointly, the claim of the husband alone could not be set off at' law, and that, in the absence of insolvency of the complainant, or something in the nature of the claim or the situation of the parties showing that justice would not otherwise be done, equity should follow the law, and refuse to allow the claim as an equitable set-off.
    Appeal from Alpena; Kelley, J.
    Submitted October 9, 1900.
    Decided February 27, 1901.
    Bill by Bernard Wolff against Annie Jasspon and Max Jasspon to foreclose a land contract. From a decree for complainant, defendants appeal.
    Affirmed.

      J. D. Turnbull, for complainant.

      L. G. Dafoe, for defendants.
   Long, J.

Complainant and defendant Annie Jasspon are brother and sister. Max Jasspon, the other defendant, is the husband of Annie. In 1892, and for some years prior thereto, the defendants rented from complainant the premises involved in this suit. Mr. Jasspon was carrying on a clothing business, and was. advanced moneys from time to time by complainant for his business. Previous to February, 1892, it is claimed by defendants, Jasspon concluded to purchase the premises belonging to complainant, intending to make his wife a present thereof, and that, without her knowledge and consent, he negotiated and agreed on the bargain, and on January 27th sent his personal check for $500, and duplicate contracts for the complainant to sign; that Max Jasspon signed Annie’s name, as per Max Jasspon; that it was understood by complainant that Annie was only a nominal party, that Max Jasspon was the purchasing party, and that complainant looked to him to settle in the future. We think the testimony tends to show these facts.

The contract is dated February 1, 1892; the purchase price being $2,800, to be paid as follows: $500 at the date of purchase; $500 July 15, 1892; $500 February 1, 1893; $800 July 1, 1893; $500 December 15, 1893, — with interest at 7 per cent., payable annually. Jasspon paid only the first $500 on the contract. Complainant and he continued to have business with each other, and in 1895 complainant desired that Jasspon secure him for moneys advanced for his business by assigning to complainant certain promissory notes secured by real estate and chattel mortgages, amounting to $8,600, which was done. Jasspon also deeded to complainant a farm known as the “Anderson Farm,” valued at $900, and lands in Montmorency county valued at $3,000. In April, 1896, Jasspon gave complainant notes in the amount of $8,000, and in September following turned over to him negotiable notes of other parties amounting to $3,525.84; and at that time complainant surrendered to Jasspon his (Jasspon’s) notes amounting to $3,696.40, which left due complainant from Jasspon $4,117, and for which he held three negotiable notes, dated April 26, 1896, — two for $1,000 each and one for $2,117. It is claimed that, in the settlement made in which the $4,117 balance was struck, the securities turned over to complainant in 1895 were not considered at all, and did not go into the settlement. In October, 1896, Jasspon secured complainant for the $4,117 by giving a trust mortgage. It is claimed that, soon after, the complainant and George L. Maltz took charge of the trust property and converted the same into cash, and that, if the moneys had been applied by complainant and Maltz as trustees according to the terms of the trust, all indebtedness would have been paid.

It is claimed by defendants, further, that a few days after giving the trust mortgage to complainant and Maltz, securing the $4,117, complainant came to Alpena, and Jasspon asked him to turn.over the securities, and complainant said he would fix it up. It is further claimed that he urged complainant from time to time to turn back to him the securities he then held, and that in 1898 he told complainant that he would surrender the house contract and pay rent on the premises if complainant would give up the securities, or that he would pay him $1,500 in cash if he would give them up and give a deed for the house, and that complainant would do neither; that in 1898 he had a chance to sell the Anderson farm for $900, but that complainant would not deed back the farm to him, nor would he give up the securities; that in May, 1898, he wrote complainant a letter notifying him that, if he did not give up the securities and reassign the same, he would hold him responsible for the full amount of them, and that complainant did not answer this letter; that on June 9th he wrote him a similar letter, which was never answered; that in June, 1898, complainant having given defendants notice to quit the premises, they gave the complainant the following notice:

“We have been served with notice pertaining to the house, etc., purchased from you under land contract. We desire to notify you that you have been paid in full for all dues on said contract, by keeping property turned over to you as security, which you refuse to give up; and we hereby demand payment for the differences of the amount that was due on land contract before you converted and refused to give up securities turned over to you, and the values of the securities in excess of said contract, to wit, $3,000.”

It is claimed that although complainant admits that the funds received from the sale of the mortgaged property, if properly applied, would pay all Jasspon’s indebtedness to him, except the house and lot indebtedness, he refused, after repeated demands, to deliver up the same, but converted them to his own use, and that in this proceeding, which is a bill filed to foreclose the land contract, the defendants have the right to have the value of- these securities so converted by complainant set off against the contract price, and that they are entitled to a decree in their favor for the balance. The testimony of defendants tends to support these claims.

It is claimed by complainant that there was about $1,700 not included in the trust mortgage; that there was due him on the indebtedness from Jasspon, exclusive of that due under the land contract, the sum of $1,400. On the other hand, it is claimed by defendants that the complainant had been paid in full for all indebtedness due him, leaving securities in his hands amounting to over $8,000.

The court below was of the opinion that the value of these securities which the complainant refused to turn over to Jasspon could not be set off by Jasspon and his wife against the amount due on the land contract, and entered a decree in the case finding that there was due upon the contract from the defendants to complainant the sum of $3,725.10, and decreed a sale of the premises to meet the amount due. We think the court below was not in error in this ruling. It is claimed by counsel for defendants that the court should have allowed the set-off, and have determined the difference in the amounts in their favor, and rendered a decree for them for such difference, on the ground that if there are special equities, growing out of the transaction itself, requiring it, courts of equity will allow set-off in cases where the law will not. Under our statute (subdivision 6, § 10075, 3 Comp. Laws 1897), set-offs are only allowed, where there are several defendants, when the demand to be set off is due to them all jointly, except where other provision is expressly made by law. Here the demand is owned by Max Jasspon individually, and is not a joint demand by both himself and wife. As a general principle, courts of equity follow the rules of law in enforcing set-offs. There are no special equities growing out of the transaction requiring set-off in the present case. The general rule is that equity requires cross demands to be set off against each other, if, from the nature of the claim or the situation of the parties, justice cannot otherwise be done, as where the plaintiff is insolvent, thus rendering it apparent that defendant cannot obtain satisfaction unless set-off be allowed. In Munger v. Bank, 85 N. Y. 580, 588, it was said:

“Equity sometimes allows a set-off when law will not, because of the insolvency of one debtor, and the willingness of the other to anticipate the time for the payment of the debt owing by him, if the whole or a part of that owing to him may be applied as a set-off.”

Other instances might be cited where equitable set-offs are allowed. However, none of the reasons exists in the present case. The complainant here is not shown to be insolvent, and, as the right of set-off does not exist at law, equity must follow the law.

The decree below must be affirmed, with costs to complainant.

The other Justices concurred.


text:
    ANGELL v. PRUYN.
    1. Sales of Fruit Trees — Breach of Warranty — Declaration-Amendment — New Cause of Action.
    In an action for breach of warranty in the sale of fruit trees, a motion to amend the declaration, which counted on purchases under two orders of a certain year, so as to include a purchase under a third order of a later year, should have been denied, since its allowance introduced a new and different cause of action.
    2. Same — Damages.
    In an action to recover damages for selling plaintiff fruit trees of a variety inferior to those ordered by him, it cannot be shown in defense that the breach of warranty was harmless for the reason that the trees were winter-killed after the commencement of suit.
    3. Same — Evidence—Value—Cross-Examination.
    In an action to recover damages for selling plaintiff fruit trees of a variety inferior to those ordered by him, one of his witnesses testified as to the value that would have been added to his premises had the trees been of the varieties ordered. A question, asked on cross-examination, as to the cost of cultivating the trees in connection with other crops, was excluded. Held, that the inquiry was proper, not only to test the competency and credibility of the witness, but also to aid the jury in determining the question of fact.

      Error to Kent; Perkins, J.
    Submitted October 11, 1900.
    Decided February 27, 1901.

      Assumpsit by Daniel M. Angell against John Pruyn for breach of warranty on a sale of fruit trees. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Crane, Norris & Stevens, for appellant.

      Jamison & Ferguson, for appellee.
   Long, J.

The plaintiff is a farmer living in Ottawa county. Defendant is a nurseryman of Grand Rapids. In the fall'of 1894 plaintiff placed two orders for peach trees with the defendant, — the first for 1,000 and the second for 800; the trees to be of certain varieties specified upon the back of each order respectively. The purchase price for the entire 1,800 trees was $135. Delivery was to be made in the following spring. At the time for delivery, the defendant, not having all the varieties ordered, agreed to substitute for part of the order trees of other varieties, equally as good, which plaintiff accepted; and the trees were furnished and set out on his farm. In August, 1895, plaintiff placed a third order with defendant for 2,125 trees, at the purchase price of $150, to be delivered in the spring of 1896, and to be of certain specified varieties. As with the 1894 orders, other varieties, represented to be equally good, were in part substituted, and the trees accepted and set out. About 1,250 of these trees proved to be untrue to label. Suit to recover damages for breach of warranty of the trees was begun December 14, 1898, and the trial was had in January, 1900.

The plaintiff introduced testimony tending to show that some of the trees included in these three separate orders were not of the varieties agreed J;o be furnished, but were trees of much less value; that this was not discovered until the spring or summer of 1898, when the trees began to bear. Mr. Edison, the supervisor of the township, and a fruit grower of many years’ experience, was called as a witness by the plaintiff, and asked what the added value to 14 and a fraction acres of land would have been, set out to Smock, Crawford, and other standard varieties, when bearing in the fall of 1898. This was objected to on the ground that the declaration counted only on the two orders of 1894. The court permitted the filing of an amended declaration setting out the order of 1895. In allowing the amendment the court said:

“The sum total of those orders — -those three orders— was about 4,000 trees. The particular contracts or orders are not specified, except as it is stated that the contract was made September 15, 1894. The trees were delivered, set out, several years elapsed, and this suit was brought, counting upon a contract which is alleged to have been made September 15, 1894, but setting forth the entire number of trees which it is alleged were defective under the three orders. The case has proceeded thus far, a day and a half, upon the theory that the three orders were given, and that all testimony relative to either one of them was admissible. The orders have been produced,— offered in evidence. No objection has been raised to any of the testimony relative to either of the orders. I have my doubts as to whether the declaration, on its face, is defective, inasmuch as each of the counts covers the entire delivery covered by the three orders; and, further, that, if it is defective, the case has proceeded upon both sides upon the theory that it was sufficient and adequate to cover the three orders for trees numbering something like 4,000, and if defective, under these circumstances, no objection having been taken at the time the testimony concerning either of the two later orders was offered, I would be inclined to permit the amendment. It is one transaction. It is the delivery of trees, and it is alleged that 4,000 were delivered, a certain portion of them defective. It is all covered by the declaration, only the declaration does not specify three different dates as to the times these orders were given. * * * I hardly think it would constitute a new cause of action to include these two orders, in any event. I do not think it is a new contract, and, if the declaration should specify the date that the later orders were given, why, it can be so amended. Certainly no one will be injured. The defendant cannot be injured by such an amendment, because the plaintiff and defendant both proceed upon, the theory that there were three orders for trees in this case, and three deliveries.”

The defendant objected to the filing of an amended declaration upon the sole ground that the amended declaration set up a new cause of action. This is the first question presented. We think the court was in error in this ruling. The original declaration counts upon a purchase made in the fall of 1894, to wit, September 15th of that year. The first two orders were taken during that month. The trees, under those orders, it is alleged, were delivered to plaintiff in the spring of 1895, and set out and cultivated. It is now sought by the amended declaration to introduce into the case a breach of warranty growing out of an order made in August, 1895, and the trees delivered thereunder in the spring of 1896. This is introducing into the case during its trial a cause of action not originally counted upon. It is well settled that it is error to allow a declaration to be amended so as to introduce and set up a new cause of action. People v. Judges of Washtenaw Circuit Court, 1 Doug. 434; Connecticut Fire Ins. Co. v. Monroe Circuit Judge, 77 Mich. 231 (43 N. W. 871, 18 Am. St. Rep. 398); Hurst v. Railway, 84 Mich. 539 (48 N. W. 44). A recovery under the original declaration in this case would have constituted no bar to a recovery upon the agreement made in the fall of 1895. Stickel v. Steel, 41 Mich. 350 (1 N. W. 1046); Reid, Murdock & Co. v. Ferris, 112 Mich. 693 (71 N. W. 484, 67 Am. St. Rep. 437); Phelps v. Abbott, 116 Mich. 624 (74 N. W. 1010). The evidence which would support the claim under the agreement of 1894 would not support the agreement claimed to have been made in 1895, nor would it in any manner tend to support the claimed breach of such agreement; and evidence of the agreement made in 1895 and the breach thereof would not support the cause of action for the breach of the agreement made in the fall of 1894. In such case the cause of action is new, and cannot be brought in by way of amendment. Hurst v. Railway, 84 Mich. 539 (48 N. W. 44).

Testimony was introduced tending to show that some of the trees were injured by the cold weather of 1898-99. The court ordered this testimony stricken out, and charged the jury that the amount of damages was to be determined by the condition of the trees at the time of commencement of suit. It appears from the record that Mr. Pelton, a witness called by plaintiff, was asked on cross-examination:

“Q. Do you know anything in regard to trees freezing last winter, — whether they froze or not ?
“A. In general, yes; they did.
“Q. Quite a number pulled them up on that account, did they not ? ”

The court refused to receive the answer to this last question, remarking: “It is immaterial.” This was not error. That question was settled in Heilman v. Pruyn, 122 Mich. 301 (81 N. W. 91). It was there said:

“The law does not permit the defendant to avoid his contract because the trees were injured or destroyed by circumstances beyond the control of the parties. The rights of the parties were to be determined by the situation of affairs at the commencement of the suit. ”

It is also claimed that the court was in error in refusing to allow the plaintiff’s son to be cross-examined as to the cost of raising the trees, and the cost of cultivating them in connection with other crops. In the direct examination of this witness, he had testified that the trees planted in 1895 would have added a value of $2 apiece to the realty in 1898, and the trees planted in 1896 would have added a value of $1.50 apiece to the realty in 1898, had they been of the varieties ordered. Upon cross-examination he was asked: “How much was it worth a tree to raise those trees for the time that elapsed ? ” This was objected to, and the objection sustained. The purpose of the question was stated by counsel for defendant as follows:

“Plaintiff’s counsel was allowed to ask the question what these trees were worth, and we claim we have a right to inquire into what he bases the answer on. * * * We shall claim we have a right to show what is the cost of raising these trees, and the cost of cultivating them with other crops, as a basis of what the tree is worth.”

It is claimed that the question was proper for the purpose of testing the competency of the witness, and also the weight to be given to his opinion. It is the settled rule that great latitude should be allowed on the cross-examination of a witness who has given an opinion as to value, in order to test his competency and credibility. Kelley v. Richardson, 69 Mich. 430 (37 N. W. 514); 1 Thomp. Trials, § 413. The court was in error in excluding this cross-examination.

But counsel for defendant now claim it was competent for another purpose. It is said that the cost of raising the trees and of cultivating them was proper evidence as elements in aiding the jury to determine what would be the value of the land with trees of the proper varieties. We think the question was competent for that purpose, also. A somewhat analogous question was raised in Fox v. Everson, 27 Hun, 355, and Galveston, etc., R. Co. v. Parr, 8 Tex. Civ. App. 280 (28 S. W. 264). In the first case, which was an action for breach of warranty of clover seed, plantain seed was mixed with the clover, and caused damage to the plaintiff’s land. It was said by the court:

“This difference between the value of the land or farm before the sowing of the plantain seed and the value of it after the sowing furnishes him full compensation for the injury to the land, and, in our judgment, becomes the measure of damages in the case. For the purpose of determining the damages to the land, it is doubtless competent to show the extent to which the noxious weed had grown upon the land from the seed sown; the expense and labor, together with the difficulty, of removing and killing it; the extent to which it would interfere with the growing and production of crops.”

But, aside from this rule of law, the record shows that the questions were proper for both purposes for which they were asked. After the questions as to the cost of raising the trees and of cultivating them with other crops had been ruled out, the witness was 'asked, “What do you base the value of $1.50 a tree on?” and answered: “Upon the labor expended there, * * * and the ground lying idle. * * * I base my estimate of $1.50 a tree, also, on the pruning and hoeing and watering year after year.” These were the very elements the witness was asked to place a value upon, and which the court ruled out. The jury was therefore left to the mere opinion of the witness.

We think but one other question need be discusse,d. It is claimed that the value of land as the measure of damages for tort or breach of contract is always the market value, and that it nowhere appears in the case that the land had no market value, but that, on the contrary, it appears that there had been sales of similar peach lands and orchards. We do not find that this question was suggested by any request to charge, nor do we find that the attention of the court was called to it in any other way.

For the errors pointed out, the judgment must be reversed, and a new trial granted.

The other Justices concurred.


author: Long, J. Grant, J.

text:
    BACON v. BOARD OF STATE TAX COMMISSIONERS.
    1. Taxation — Foreign Corporations — Shares Owned by Residents.
    Shares of stock in a foreign corporation, owned by a resident of Michigan, may be taxed to him in this State, though the corporation is taxed in the State of its domicile upon all of its capital stock, and though the owners of such stock are not required in such State to pay any taxes thereon.

      2. Same — Constitutional Law — Full Faith and Credit.
    Such taxation is not in contravention of article 4, § \, of the Constitution of the United States, which provides that “full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State,” since that provision is not to be given an effect which would forbid each State to legislate with reference to its own jurisdiction.
    3. Same — Uniformity—Selection of Objects of Taxation.
    The fact that shares of stock in domestic corporations whose property is taxed in this State are by 1 Comp. Laws 1897, § 3831, subd. 7, expressly exempted from taxation, does not render the provisions of subdivision 9, that shares in foreign corporations shall be taxed, obnoxious to article 14, § 11, of the State Constitution, which requires general taxes to be levied according to a uniform rule; it being competent for the legislature to place domestic corporations and foreign corporations in different classes for the purpose of taxation.
    4. Same — Interpretation of Statutes.
    The tax law of 1889 provided for the taxation of personal property belonging to inhabitants of this State, situate without the State, and of shares in foreign corporations owned by inhabitants of the State. In re-enacting these provisions, in 1893, the word “citizens” was substituted for “inhabitants” in the clause relating to foreign stocks. Held, that the contention that the change was made for the purpose of reaching stocks owned by nonresident citizens of the State, and that, the effect being to exempt aliens and citizens of other States here residing, the statute violated the constitutional requirement of uniformity, could not be sustained, since the word “citizen” was evidently used in its common meaning, as synonymous with “inhabitant ” or “resident.”
    Grant, J., dissenting.

      Mandamus by Thaddeus W. Bacon to compel the board of State tax commissioners to vacate an assessment on certain shares of stock in a foreign corporation.
    Submitted October 30, 1900.
    Writ denied February 27, 1901.

      Avery Bros. (Joseph Walsh, of counsel), for relator.

      Horace M. Oren, Attorney General, for respondent.
   Long, J.

Relator is a citizen of this State, a resident of the city of St. Clair, and the owner of a number of shares of stock of the New York Central & Hudson River Railroad Company, of the State of New York. • He is assessed upon the tax roll of said city $50,000 for personal property. This assessed valuation includes the shares of stock held by him in said railroad company. The real estate of said company, and its capital stock in excess of the real estate, are taxed in the State of New York. The stock owned in the State of New York is not taxed. The relator appeared before the board of State tax commissioners at a meeting held in said city on August 20, 1900, and made application to have said assessment reduced by reason of the fact that, as the property and franchises of said corporation are taxed in the State of New York, the stock is not taxable-in this State. The board refused to reduce said assessment, and the matter is presented to this court upon petition for mandamus to compel such reduction.

The questions raised by the parties involve the construction of certain subdivisions, of section 3831,1 Comp. Laws 1897. Those provisions are as follows:

“For the purposes of taxation, personal property shall include: * * * „
“5-. All goods, chattels, and effects belonging to inhabitants of this State, situate without this State, except that property actually and permanently invested in business in another State shall not be included. * * *
“7. All shares in corporations organized under the laws of this State, when the property of such corporations is not exempt, or is not taxable to itself, or when the personal property is not taxed. * * *
“9. All shares in foreign corporations, except national banks, owned by citizens of this State.”

It is contended by counsel for relator:

That the statute, in providing for taxation on foreign stocks, is unconstitutional, in that it is not uniform and equal. The argument is that because, under this statute, an individual holding stock issued by a domestic corporation which pays taxes on its capital stock is not taxed on such individual stock so held by him, the'same rule must be applied to persons owning stock in a foreign corporation whose capital stock is taxed. One owning shares in a corporation is substantially the owner of an aliquot part of the property of the corporation, although the legal title to such property is vested in the corporation, and not in him. The value of his shares can never vary greatly from the value of the property they represent. This is as true of shares of stock in foreign corporations as of those in domestic corporations. The law taxes both, with the exception of cases where the property of the corporation is taxed in this State. Stated thus (and this is the effect of subdivisions 7 and 9, taken together), there is no want of uniformity of method or rule; and there is no impropriety in thus stating it, for the Constitution cannot be supposed to have been framed with a view to what other States might do. It has no jurisdiction over corporations of other States; and when its citizens embark in foreign corporate enterprises, and pay money to them, taking certificates of stock therefrom, this State cannot tax the property of such corporation in its possession outside of this State. Yet, substantially, its citizens have as much property as before; and, if not taxed in another State, there is no reason why it should not be taxed here, like the stock of domestic corporations. The State has said, in effect, to its citizens, “If you invest your property in corporations, you shall be taxed upon the shares, except where the property of the corporation is taxed to the corporation by this State.” We may doubt the abstract justice of this; hut we believe the State has the power to tax the shares of residents in foreign corporations, and that this power is not affected by the action of another State in imposing taxes upon the corporations. Michigan owes much to the investment of foreign money in her corporations which she taxes, and it is probably to her interest that moneys so invested be not taxed again elsewhere; but she is powerless to prevent it, though it goes without saying that the property, in effect, is taxed twice. There are the questions of policy and abstract justice involved, both protesting-against double taxation; but the legislatures of the States are judges of both policy and propriety, so long as the constitutions have not forbidden it, and the weight of authority supports the claim that, in the absence of clear and express prohibition, they have not.

In the case of Youngblood v. Sexton, 32 Mich. 406 (20 Am. Rep. 654), a tax was objected to as violating the constitutional rule of equality and uniformity. It was said:

“If the precise point here is that the tax is unequal and unjust because it is not levied in proportion to the business done, then the objection is without force. It may possibly be true that an apportionment according to the business done would have been more just, but a question of this nature concerns the legislature, and not us. Courts cannot annul tax laws because of their operating unequally and unjustly. If they could, they might defeat all taxation whatsoever, for there never yet was a tax law that was not more or less unequal and unjust in its practical workings. * * * Apportionment of taxation is purely a legislative function.”

In Insurance Co. v. City of New Orleans, 1 Woods, 85, 89 (Fed. Cas. No. 7,052), it was said, quoting from State v. Lathrop, 10 La. Ann. 402:

“This is a suit for $1,000 tax on a foreign insurance company, not chartered by this State, and transacting business therein. * * * It is resisted on the ground that the same statute imposes a tax of but $500 upon an insurance company incorporated by the laws of this State and transacting business therein. The defendant contends that the distinction made between these two classes of insurance companies is a violation of article 123 of the State constitution, which declares that ‘ taxation shall be equal and uniform throughout the State.’ The provision of the constitution relied on by defendant has not deprived the legislature of the power of dividing the objects of taxation into classes. It merely obliges the legislature to impose an equal burden upon all those who find themselves in the same class.”

This doctrine is supported by Hughes v. City of Cairo, 92 Ill. 339; Lee v. Sturges, 46 Ohio St. 153 (19 N. E. 560, 2 L. R. A. 556); Sturges v. Carter, 114 U. S. 511 (5 Sup. Ct. 1014); Graham v. Township of St. Joseph, 67 Mich. 652 (35 N. W. 808).

We think the determination of this question is for the legislature, and not subject to review by the courts. It appears from the statute itself that shares in foreign cor-1 porations are taxed in this State but once, and the shares in domestic corporations or their representatives are also taxed. The question of the effect of statutes of foreign States cannot be considered, nor can such statutes have any effect in this State upon the question of the uniformity of the rules of taxation. The stock has a situs in this State, and is subject to the control of the legislature for the purpose of taxation.

It is further contended by counsel for relator that the law of 1893 (section 3831, 1 Comp. Laws 1897) has an element of doubt and uncertainty in it as to the intent of the legislature to include such property for taxation in this State, as it is provided by subdivision 5 that personal property actually and permanently invested in any other State shall not be included, while subdivision 9 includes for taxation all shares in foreign corporations owned by citizens of this State, except national bank stocks. It is also contended that it was the intent of the legislature to provide taxation upon such property against citizens of the State; that it is evident the legislature used the word “citizen” in its restricted sense, and that the act was intended to provide taxation against a citizen of the State residing in New York or Ohio, or any other place outside the State, — one who returns for the purpose of voting at elections, but resides for the most part in foreign jurisdictions; that the word “citizen,” as used in this statute, was intended to reach a large class of persons who are citizens of this State and reside elsewhere; that, under the construction contended for by the respondent, all citizens who are nonresidents of the State would escape taxation. It is claimed that the construction contended for by relator is made apparent from the change made in 1893 from the former provisions of the statute; that the statute of 1889 (Act No. 195) provided, as did the law of 1885, for taxation upon all ships, boats, and vessels belonging to inhabitants of this State, whether at home or abroad, and all goods, chattels, and effects belonging to inhabitants of this State, situate without this State, and all shares in foreign corporations, except national banks, owned by inhabitants of this State; that the law of 1889 used the word “inhabitant” in providing for taxation upon personal property, while in the enactment of 1893 this word was eliminated, and the word “citizen” substituted, when referring to stock in foreign corporations; that section 3831, 1 Comp. Laws 1897, by subdivision 5, provides for taxation upon all goods, chattels, and effects belonging to inhabitants of this State, situate without this State, except that property actually and permanently invested in business in any other State shall not be included; that the word “inhabitants,” as used in these statutes, reaches all persons who are residents of the State, while the word “citizens” as used is intended to reach a class of persons who are citizens of the State and reside elsewhere; that by this construction all citizens of the State who are nonresidents of the State could be taxed under this law, while, if it only provided that inhabitants of the State should be taxed, then nonresident citizens would escape taxation; and it is thus insisted that the change made in 1893, by striking out the word “inhabitant” and inserting in lieu thereof the word “citizen,” was made to meet this situation. It is claimed that, under this construction, a rule of taxation is provided which is not uniform, as it does not operate upon all of this kind of property alike, and whether it is taxable or not depends upon who is the owner of it. It is claimed that the statute does not provide that all foreign stocks shall be taxed; that it provides only for the taxation of stocks owned by citizens of the State.

We think this contention has no force, and that it does not accord with the plain provisions of subdivision 9. We think the legislature intended to use the word “citizen” as synonymous with “inhabitant” or “resident.” As was said in McKenzie v. Murphy, 24 Ark. 155, 159:

“The word ‘citizen’ is often used in common conversation and writing as meaning only an inhabitant, a resident, of a town, State, or county, without any implication of political or civil privileges.”

In State v. Trustees of Delhi Township, 11 Ohio, 24, 27, it was said:

“Here a question is raised as to the meaning of the word ‘citizen’ as used in this connection. That this word does not always mean one and the same thing is clear. Thus we speak of a person as a citizen of a particular place,- when we mean nothing more by it than that he is a resident of that place. When we speak of a citizen of the United States, we mean one who was born within the limits of, or has been naturalized by the laws of, the United States. It can hardly be believed that the législature, in using the word ‘citizen’ in this statute, intended to make a distinction between native or naturalized citizens and resident aliens.”

We think it was not intended by the legislature to limit the word to persons who are actually citizens in a political sense. A liberal construction must be given to the tax laws for public purposes. Mr. Justice Grant said in Auditor General v. Hutchinson, 113 Mich. 245 (71 N. W. 514): “Tax laws should be liberally construed.” See, also, U. S. v. Hodson, 10 Wall. 395; U. S. v. Taylor, 104 U. S. 216.

One other question is raised. It is claimed that the taxation of relator’s stock is in contravention of section 1, art. 4, of the Constitution of the United States, which provides that “full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State.” This contention cannot be sustained. In Bonaparte v. Tax Court, 104 U. S. 592, the question the court was asked to decide was whether thq registered public debt of one State, exempt from taxation by the debtor State, or actually taxed there, was taxable by another State, when owned by a resident of the latter State. The court said:

“We know of no provision of the Constitution of the United States which prohibits such taxation. * * * It is insisted, however, that the immunity asked for arises from article 4, § 1, of the Constitution, which provides that full faith and credit shall be given in each State to the public acts of every other State. We are unable to give such an effect to this provision. * * * While the Constitution of the United States might have been so framed as to afford relief against such a disability, it has not been, and the States are left free to extend the comity which is sought, or not, as they please.”

It was further remarked in the case that:

“No State can legislate except with reference to its own jurisdiction. One State cannot exempt property from taxation in another.”

In Bradley v. Bander, 36 Ohio St. 28, 36 (38 Am. Rep. 547), it was said:

“The constitutional power to tax shares of stock owned by our citizens in corporations located without the State does not depend on whether the capital of the corporation is or is not taxed in the State where the corporation is created. The power is the same whether the capital of the corporation is there taxed or not; otherwise, the power of taxation conferred by the constitution would be made to depend upon the operation of laws of.a foreign jurisdiction, — a proposition so obviously ill-founded that the moment it is stated its falsity becomes apparent.”

See, also, Dwight v. Mayor, etc., of Boston, 12 Allen, 316 (90 Am. Dec. 149), where the same doctrine is laid down.

Cooley, in his work on Taxation, lays down the same rule. He says:

“The shares owned by residents in foreign corporations may be taxed to the owners, even though the corporations themselves are taxed in the jurisdiction where their operations are carried on.” Cooley, Tax’n (2d Ed.), 57.

The writ must be denied.

Montgomery, C. J., Hooker and Moore, JJ., concurred with Long, J.

Grant, J.

(dissenting). The conceded facts in this case are: The New York Central & Hudson River Railroad Company is a corporation organized under the laws of New York. Its property, personal and real, is situated in that State. It has no property subject to taxation in Michigan. All its property, including its capital stock, is taxed in the State of New York. Its tax in that State for the year 1900 was $2,345,526.08, which it paid. This includes the tax on its capital stock, which tax amounted to $237,815.71. The total tax amounted to 2 per cent, on its entire capital stock, and to 11.4 per cent, on its net income. The relator is a citizen of this State, residing in the city of St. Clair. He owns a number of shares of the capital stock of that company, for which he holds its certificate. This stock has been assessed to him in St. Clair, presumably at its cash value. The rate of taxation in that municipality is about 3 per cent, on the assessed value of property. The Constitution of Michigan provides that:

“The legislature shall provide an uniform rule of taxation, except on property paying specific taxes; and taxes shall be levied on such property as shall be prescribed by law.” Article 14, § 11.

The statute of Michigan provides that:

“For the purposes of taxation, personal property shall include: * * *
“5. All goods, chattels, and effects belonging to inhabitants of this State, situate without this State, except that property actually and permanently invested in business in another State shall not be included. * . * *
“7. All shares in corporations organized under the laws of this State, when the property of such corporations is not exempt, or is not taxable to itself, or when the personal property is not taxed. * * *
“9. All shares in foreign corporations, except national banks, owned by citizens of this State.” Section 3831, 1 Comp. Laws 1897.

Can this taxation be sustained under the above provision of the Constitution of Michigan ? Double taxation is unequal taxation, under our Constitution. Were this railroad company a Michigan corporation, with all its property in Michigan, and assessed at its cash value, and taxes paid thereon, and were its stockholders in Michigan again taxed upon the capital stock owned by them at its cash value, this would be double taxation, and therefore unequal, and clearly prohibited by the Constitution. To illustrate: The real estate of the Calumet & Hecla Mining Company, situated in Houghton county, is assessed at $55,274,920; its personal property, at $6,550,000; making a total of $61,824,920. Assuming that the rate of taxation in Houghton county, including State, county, and municipal, amounted to 3 per cent., the corporation would pay the present year taxes amounting to $1,854,747.60. If the stockholders in Michigan were again assessed upon the cash value of their stock, their property, clearly, would be taxed twice; for the value of their stock is represented by the value of the property of the corporation. That this would be in violation of the Constitution is clear. The stock has no value not based upon the value of its property. Furthermore, the stockholder in either event pays the taxes. It matters not what you choose to call the stock; it is but the evidence of his property. The stockholders are the owners in fact of all the property of the corporation. All profits made belong to them. The surplus, upon the winding up of its affairs, belongs to them. Although the taxes levied may be paid out of the earnings of the company, and out of its treasury, they are just as much paid by the stockholder as though he had been assessed his.pro rata share for the payment of the taxes. This was distinctly held in People v. Badlam, 57 Cal. 594. The constitution of that State provided that “ all property in the State, not exempt under the laws of the United States, shall be taxed in proportion to its value, to be ascertained as provided by law.” Is there any difference in meaning between that provision and our own, which, declares that taxation shall be equal? Taxation in proportion to value means equality, and equality means taxation in proportion to value.

So it has been held that the taxation of the property of a bank and of its capital stock at the same time is double taxation, forbidden by the organic law found in the declaration of rights, and which reads: “Every person in the State, or person holding property therein, ought to contribute his proportion of public taxes for the support of the government, according to his actual worth in rea or personal property.” Frederick County Com’rs v. Farmers & Mechanics’ Nat. Bank, 48 Md. 117.

See, also, City and County of San Francisco v. Mackey, 21 Fed. 539.

Where the law authorizing the formation of corporations provided for the payment of a tax to the State, and exempted them from any further tax or burden upon them, it was held that the exemption from taxation included exemption from taxation of the stock in the hands of shareholders. Gordon v. Appeal Tax Court, 3 How. 133; State v. Branin, 23 N. J. Law, 484.

The constitution of New Hampshire provides, “No statute provision shall be so construed as to subject any stock to double taxation.” The law of that State provided for assessing stock in corporations located out of the State, to individuals owning the same. Under that act the municipal authorities assessed stock in the Michi.gan Central Railroad Company to a citizen of New Hampshire. By the charter of the Michigan Central Railroad Company, its capital stock was taxable in Michigan; and the tax so provided was to be in lieu of all taxes, charges, or exactions by virtue of any law of the State. The court held that this stock was not taxable in New Hampshire. Kimball v. Milford, 54 N. H. 406.

In New York the provision of their statute, “that the shareholder shall not be taxed in respect to his shares in any corporation whose capital stock is taxed,” was held to apply to corporations organized in other States, where their property and business were located. People v. Commissioners of Taxes of New York, 4 Hun, 595. I quote the following language from that case:

“Such corporations are taxable, and we must presume, in the absence of proof, that taxes in their respective home States are duly assessed and collected upon their capital stock or property. The stocks in such corporations, held by individuals here, are simple representatives of capital or property employed in business in other States, the title of which is vested in and controlled by the artificial person created by and residing in such States. They represent an interest which is or may become a membership in the corporation, and evidence of a right to participate in divided profit, and in the ultimate dividend of surplus after the payment of all debts and obligations of the corporation. The stock certificates are not themselves the property, but are evidences of the rights just mentioned, to be possessed, enjoyed, and enforced under and in conformity with the laws of the State which created the body corporate. The property of the corporation, whether real or personal, in which these certificates of legal or equitable rights are outstanding, is not '’within this State,’ which, by the general statute, is the test of taxability; but, if any portion of it were, that fact would not affect the question now before us, for then, under our statutes, it would be taxable here, because of its situs, to its possessor or owner, but not to the mere holders of stock in the corporation.”

That case was affirmed by the court of appeals in a memorandum opinion, found in 62 N. Y. 630.

Justice Cooley says: “It is a fundamental maxim in taxation that the same property shall not be subject to a double tax, payable by the same party, either directly or indirectly.” Cooley, Tax’n (2d Ed.), 227.

Justice Champlin, in Attorney General v. Sanilac County Sup’rs, 71 Mich. 26 (38 N. W. 642), said:

“The rule of uniformity forbids that taxation should be double. No person can be twice assessed upon the cash value of the same property, to defray a public burden.”

This opinion was concurred in by Justices Morse and Long.

Justice Campbell, in the same case, said:

“No tax law can be valid which does not provide for securing such uniformity. Of course, it is not necessary to attempt impossibilities. Uniformity, as well as value, may involve some exercise of opinion or discretion, and cannot be absolute. But a law which does not provide directly for satisfying these conditions as far as practicable cannot be a valid exercise of the taxing power, and cannot be upheld as conforming to the Constitution. * * * It cannot be possible to have double taxation valid under our Constitution. It not only destroys uniformity of burdens, but in so doing involves the other considerations referred to.”

It is not contended that, under the Constitution of this State, the property of a domestic corporation and the stock of the shareholders, whose value depends upon the value of its property, can be taxed. But it is contended that, if the corporation and its property are located in another State, then the evidence of property known as “stock” can be assessed and taxed to the individual shareholders residing in Michigan. That is the important question in this case. Let us suppose that the Calumet & Hecla Mining Company were located across the boundary line in Wisconsin, and its property assessed the same as it now is in Michigan; would the assessment of Michigan stockholders at the cash value of their stock be any less double taxation, or any less unequal, than if located within the State ? It must be borne in mind that all the property of the corporation would be taxable in Wisconsin, and nowhere else. Or suppose that the Upper Peninsula were organized into a separate State; it would then follow, if respondent’s contention be correct, that all the stock of the shareholders in the old State would at once be taxable. Is it possible that the framers of the Constitution, and the people who adopted it, supposed that they were adopting a Constitution capable of such oppression and injustice? I cannot so hold, even if there are decisions of other courts to the contrary. There are occasions when precedents from other tribunals, however learned they may be, should not be followed. The value of railroad, mining, and manufacturing corporations is based upon their property, which is taxed where they are located. There is no more justice in taxing the stockholder upon his stock in such a corporation located in another State than there would be in taxing the stock in the hands of a stockholder of a domestic corporation. It is as unjust and unequal in the one case as it is in the other. I cannot sanction that fiction of the law which separates the stock, calls it personal property, and assesses it, regardless of the fact that all the property which the stock represents has been assessed by the authorities where its property is located. It is common knowledge that all such corporate property is, and always has been, assessed in the State in which it is located. It was common knowledge when our Constitution was framed and adopted.

Counsel for respondent cites Cook on Stock and Stockholders : ‘ ‘Aside from constitutional restrictions, it unquestionably is within the power of the State to levy not only a double tax, but even a treble or quadruple tax, if it so chooses.” As authority for the text the author cites Toll-Bridge Co. v. Osborn, 35 Conn. 7. His comment upon this case is: “Evidently corporations were not popular in Connecticut in 1868, except for taxation purposes.” 1 Cook, Stock & S. § 567, and note. Such a result is not possible under the Constitution of Michigan.

One more illustration may not be out of place: Ten men, five living in Indiana and five in Michigan, are engaged as copartners in a manufacturing business located in Indiana. The real estate and all the personal property are in Indiana, and are there taxed. The property cannot be taxed in Michigan. They conclude to form a corporation. Each receives his proportionate share of the stock. The property is taxed in Indiana to the corporation, the same as it was taxed to the copartnership. The result of the respondent’s contention would be that the five stockholders in Michigan, who could not be taxed as copartners, would pay the same tax in Indiana on their corporate property as they did upon it when partnership property, and would then be taxed again in Michigan, on the theory that their property has been converted into personalty, and is therefore taxable in Michigan. Is not this a species of bald legerdemain? Is it consistent with a Constitution prohibiting unequal taxation? Is it the act of an honest and just government?

Chancellor Kent thus states the doctrine:

“Every person is entitled to be protected in the enjoyment of his property, not only from invasions of it by individuals, but from all unequal and undue assessments on the part of government. It is not sufficient that no tax or imposition can be imposed upon the citizens but by their representatives in the legislature. The citizens are entitled to require that the legislature itself shall cause all public taxation to be fair and equal in proportion to the value of property, so that no one class of individuals, and no one species of property, may be unequally or unduly assessed.” 2 Kent, Comm. 331.

This is not a question of allowing the laws of another State to interfere with the right of taxation in this. The case presents no such question. The question is, rather, whether, under our Constitution, evidences or representatives of property can be taxed in this State, while the property they represent is not, never has been, and cannot be, taxable here, but is, and always has been, taxable in the State where located. Is a certificate of stock any more property than a deed of land or contracts of copartnership? All are evidences of property, and nothing more.

I will now discuss the authorities cited in my Brother Long’s opiniqn, and others cited in the brief of the attorney general:

In Youngblood v. Sexton, 32 Mich. 406 (20 Am. Rep. 654), the right to impose a tax upon the liquor traffic, as a condition to the right to carry on the business, was involved. It was a personal tax, and not one upon property. It was in effect a license tax, which every dealer was re. quired to pay before entering into the traffic. The court expressly held that it was a uniform tax, and that “uniformity is the very basis of this tax. It is levied entirely without discrimination; and the real objection made to it is, not that it lacks uniformity, but that the legislature were unjust in making it uniform, instead of levying it by some standard of discrimination.” The law was attacked as unjust and unequal, in that it was not levied in proportion to the business done. The language quoted in my Brother’s opinion does not apply to a case where taxation is conceded to be double, but to uniform tax laws, which cannot be made to operate justly in all cases, because of the infirmities of human judgment.

In State v. Lathrop, 10 La. Ann. 398, a tax was imposed upon a foreign corporation as a condition to its doing business in the State of Louisiana. A like tax was imposed upon home companies, but in a less amount. The decision is based expressly upon the right of the State to impose any condition it pleases upon foreign corporations desiring to do business within the State. That there be no mistake about this, I quote from the decision:

“If this State has thought fit to recognize foreign charters of incorporation to the extent of permitting foreign corporations to transact business in their corporate name, through agents, within our limits, the legislature had an undoubted right to attach what conditions it thought fit to the privilege.”

In Insurance Co. v. City of New Orleans, 1 Woods, 85, 89 (Fed. Cas. No. 7,052), the same question was involved, and the federal court followed and quoted from State v. Lathrop.

The same question was involved in Hughes v. City of Cairo, 92 Ill. 339, and the decision was expressly planted upon two grounds: (1) That the constitution of Illinois expressly provides that the general assembly may tax insurance interests or business, and persons or corporations owning or using franchises and privileges, in such manner as it shall from time to time direct, by general law, uniform as to the class upon which it operates; and (2) that the legislature could impose any conditions it saw fit upon foreign corporations, as a condition to their right to do business in the State.

In the above cases taxation of property subject to general taxation was no more in issue than it was in the case of Union Trust Co. v. Wayne Probate Judge, 125 Mich. 487 (84 N. W. 1101), involving the validity of the inheritance tax law. All such cases do not involve the question of the assessment of property. They are license taxes, pure and simple, upon the right to do business and the statutory right to inherit.

The question now before us was not raised in Graham v. Township of St. Joseph, 67 Mich. 652 (35 N. W. 808). The plaintiff there was the owner of stock in a foreign corporation whose sole property was two steamboats, which were assessed at Benton Harbor, a city adjoining St. Joseph, where plaintiff lived. The court held that, if the boats were taxable at Benton Harbor, plaintiff’s stock could not be taxed at St. Joseph, and held that the boats were not taxable in Benton Harbor, and the stock was therefore taxable in St. Joseph.

The case of Sturges v. Carter, 114 U. S. 511 (5 Sup. Ct. 1014), arose in Ohio. Sturges was the owner of some stock of the Western Union Telegraph Company. He claimed exemption because some of the property of the telegraph company was situated in Ohio, and was there taxed. The court followed the decision of the Ohio court in Bradley v. Bauder, 36 Ohio St. 28 (38 Am. Rep. 547), where it was held that the stock of a foreign corporation, owned by a resident of Ohio, was not included in the act exempting from taxation shares of capital stock which was taxed in the name of the corporation. The constitution provided: “Laws shall be passed taxing by a uniform rule all moneys, credits, investments in bonds, stocks, joint-stock companies, or otherwise.” In Bradley v. Bauder it is said:

“ Both the constitution and the statute expressly designate investments in stocks as one of the subjects of taxation, without any restriction or limitation as to the place or State where such stocks may be authorized or issued.”

Taxation of both domestic and foreign stocks, therefore, was expressly authorized by the constitution of Ohio. The right to tax was not in question. The sole question was whether the fact that some of its tangible property had its situs in Ohio, and was there taxed, brought the case within the exemption of the statute.

The same question again arose in Lee v. Sturges, 46 Ohio St. 153 (19 N. E. 560, 2 L. R. A. 556), and was held to be governed by Bradley v. Bauder. That case was decided in 1889. On page 161 is this language:

‘ ‘ Whether shares of the stockholders and the capital of the company constitute the same or different species of property has been the subject of much discussion in a great number of cases; but the weight of authority we believe to be in favor of the proposition that shares of stock constitute property distinct from the capital or property of the company.”

Two of the five justices dissented.

In the construction of State constitutions and State statutes, the Supreme Court of the United States follows the decisions of the State courts, where they are not in conflict with the Constitution of the United States. Several cases are cited by the attorney general from the Supreme Court of the United States, and from other courts, holding that the shares held by stockholders are distinct from the capital stock of the corporation, and that taxation of both is not always necessarily double taxation. Among them is City of New Orleans v. Houston, 119 U. S. 265 (7 Sup. Ct. 198), where it was expressly held that the assessment of a tax upon shares or shareholders in a corporation, which the company was required to pay irrespective of any dividends or profits payable to the shareholders out of which it might repay itself, was subtantially a tax upon the corporation itself. Counsel quotes from that case as follows:

“ It is well settled by the decisions of this court that the property of shareholders in their shares, and the property of the corporation in its capital stock, are distinct property interests, and, where that is the legislative intent, clearly expressed, that both may be taxed.”

In other words, such legislation by the States does not conflict with the Constitution of the United States. That case quotes with approval the language of the same court in Tennessee v. Whitworth, 117 U. S. 129 (6 Sup. Ct. 645), wherein it was held that a State statute exempting the capital stock of a railroad company from taxation exempted the shares of stock in the hands of holders. The language quoted is as follows:

“In corporations, four elements of taxable value are sometimes found: (1) Franchises; (2) capital stock in the hands of the corporation; (3) corporate property; and (4) shares of the capital stock in the hands of the individual stockholders. Each of these is, under some circumstances, an appropriate subject of taxation; and it is, no doubt, within the power of a State, when not restrained by constitutional limitations, to assess taxes upon them in a way to subject the corporation or the stockholders to double taxation. Double taxation is, however, never to be presumed. Justice requires that the burdens of government shall, as far as is practicable, be laid equally on all; and, if property is taxed once in one way, it would ordinarily be wrong to tax it again in another way, when the burden of both taxes falls on the same person. Sometimes tax laws have that effect, but, if they do, it is because the legislature has unmistakably so enacted. All presumptions are against such an imposition.”

I do not deem it necessary to enter into an analysis of the other cases cited from the United States Supreme Court. Some of them arose under the national banking act, where the State had taxed the stock of these banks in the hands pf their shareholders. Of those cases it is sufficient to say that the banking act expressly provided for such taxation. But when the State law did not comply with the national act, the State law was held void. This was the case in Van Allen v. Assessors, 3 Wall. 573. In other cases it was insisted that the State taxation was' in violation of contracts which the State and the corporation entered into, and was therefore in violation of the Constitution of the United States. Where such contracts were clearly made, the State laws taxing them were held to ,be in violation of such obligations, under the Constitution of the United States, and therefore void. Where no such contract relations existed, the power of taxation was held to be a matter for the State to determine, and its action and the judgment of its courts thereon were binding. Others are cases where it has happened that one’s property had been taxed in two jurisdictions. While this is recognized as a hardship, it seems to be occasionally unavoidable. This is the case in Coe v. Errol, 116 U. S. 524 (6 Sup. Ct. 475), where forest products intended for exportation to another State, and partially prepared for that purpose, were taxed because their situs was there, while during the same year they were assessed to their owner, as a part of his general estate, in the State to which they were to be exported and where he resided. This involves another rule, viz., the undoubted right of the State to tax personal property situated within its borders.

In most of the cases cited by counsel for respondent from the courts of other States, the question now presented does not appear to have been raised. Whether, at the time those decisions were rendered, the constitutions of such States contained a provision similar to that of our own, I have not taken the time to investigate. If they did, the decisions could be of little value as precedents upon a question which was not brought to the attention- of the courts. We are not dealing with a case where the value of the property which represents the value of the stock has not been taxed, or perhaps could not be taxed, in a foreign jurisdiction, the situs of all its property, or where its value does not consist of tangible property, but largely of its franchises, like that of the Western Union Telegraph Company, doing business in every State of the Union, in Sturges v. Carter, 114 U. S. 511 (5 Sup. Ct. 1014); or like that of an express company, in Adams Express Co. v. Ohio State Auditor, 165 U. S. 194 (17 Sup. Ct. 305); or like that of a turnpike road, wherein the court, to justify the assessment of the stock of a foreign corporation, said:

“The beneficial interest, the valuable property, consists in the franchise and right to receive tolls; and whether the right of the company in the soil of their road be tech-1 nically a fee, or a perpetual easement, makes no difference.” Inhabitants of Great Barrington v. County Com’rs of Berkshire, 16 Pick. 572.

As a reason for the power to tax shares of stock of corporations, the supreme court of Ohio, in Lee v. Sturges, 46 Ohio St. 153, 162 (19 N. E. 560, 2 L. R. A. 556), said:

“The shares of stock may be worth much more than the property of the corporation; that is, the franchise may be very valuable, while the visible capital may be of but little value, and dividends may be greatly out of proportion to the tangible property, as frequently occurs in regard to street railroads, gas companies, electric-light companies, etc.”

This language was used as applicable to domestic as well as foreign corporations. It could not apply in this State, where we have just held that franchises may enhance the value of corporate porperty, which is to be assessed as a unit, and at its cash value. Detroit Citizens’ St. Ry. Co. v. Common Council of Detroit, 125 Mich. 673 (85 N. W. 96).

There may be cases where such stock is properly and justly assessable under the statute and the Constitution. But we are dealing with a case where the value of all property which the stock represents, and of which its certificate is evidence, is all assessed and taxed by and in the State where it is situated, and where all such property has been assessed and taxed, in accordance with the custom of all the States, from the foundation of the government to the present time, and where alone it can be taxed. I have endeavored to demonstrate that this is double, and therefore unequal, taxation. The question is new in this State, having never before been presented to its courts. To interpret the Constitution so as to include such taxation must be conceded to result in the accomplishment of a gross injustice, and to violate that rule of just taxation which lies at the foundation of honest government. It is a narrow construction. It violates the spirit of that instrument. To hold that such taxation is excluded by the Constitution does justice to all its citizens, in subjecting them to equal taxation, and does injustice to none. In my judgment, the Constitution, both in letter and in spirit, prohibits such taxation.

I think the writ should issue.


author: Hooker, J.

text:
    TEMPLETON v. TEMPLETON.
    Divorce — Alimony—Adequacy.
    Under a decree of divorce, an award of $1,400 in cash, to be paid within 90 days, as alimony, where defendant’s property was shown to consist only of a farm worth $3,350 and personalty worth $1,140, was not open to the objection of-inadequacy.
    Appeal from Ingham; Wiest, J.
    Submitted November 14, 1900.
    Decided February 21, 1901.
    Bill by Emily Templeton against Angus Templeton for a divorce. From a decree fixing the amount of alimony to be paid by defendant, complainant appeals.
    Affirmed.

      Smith & Hood, for complainant.

      Lawton T. Hemans (B. A. Montgomery, of counsel), for defendant.
   Hooker, J.

The circuit court in chancery granted to complainant a decree of divorce, referring the subject of alimony to a commissioner, with direction to take proofs and report the amount of real and personal property possessed by the defendant. He reported the real property as of the value of $3,350, and that the personal property was worth $1,140, making a total of $4,490; whereupon the court decreed that the defendant.pay to the complainant within 90 days, in cash, the sum of $1,400. The complainant has appealed, claiming the amount inadequate.

' The proofs were taken in open court, and were ex parte. We may take judicial notice that no man whose property consists of a farm, and the personal property usually owned by a farmer, and which all amounts to but $4,490, can raise and pay $1,400 in cash without serious embarrassment. We think complainant should have been satisfied with the decree, which is hereby affirmed, without costs to either party.

The other Justices concurred.


author: Grant, J.

text:
    MARSHALL v. PONTIAC, OXFORD & NORTHERN RAILROAD CO.
    Carriers — Loss op Baggage — Liabilities.

       M. purchased a ticket at Detroit over the D., G. H. & M. Railroad to Pontiac, and from Pontiac to Imlay City over the defendant’s railroad. He presented the ticket to the agent of the D., G. H. & M. R. Co., and had his trunk checked to Imlay City. He purchased the ticket for the sole purpose of checking his trunk. He did not intend to go on the train, and did not go, but went by his own private conveyance. His trunk arrived at Imlay City Saturday morning at about 10 o’clock, remaining upon the platform until noon, when the agent put it in the baggage room. Saturday or Sunday-night the baggage room was burglarized, and the trunk and contents stolen. Held, that M. was not in the position of a bona fide passenger; that the defendant was not an ordinary-warehouseman, bound to the exercise of that care which the average man takes of his own property, but was a gratuitous bailee, liable only for gross negligence.
    Error to Lapeer; Smith, J.
    Submitted November 14, 1900.
    Decided February 27, 1901.

      Assumpsit by David S. Marshall against the Pontiac, Oxford & Northern Railroad Company to recover the value of lost baggage. From a judgment for plaintiff, defendant brings error.
    Reversed.
    The facts in this case appear in the following statement, prepared by defendant’s counsel, and given to the jury by the court below:
    “The undisputed facts in this case go to show that on the 11th day of August, 1899, plaintiff purchased a ticket at the office óf the Detroit, Grand Haven & Milwaukee Railroad in the city of Detroit over that railroad and the Pontiac, Oxford & Northern Railroad to Imlay City, about 5 o’clock in the afternoon. Knowing that no train left until the next morning, he had his trunk checked for Imlay City, with no intention of going on that train, or accompanying the trunk. The trunk was sent the next morning, and at Pontiac was taken and carried over the defendant’s road to Imlay City, arriving there about 10 o’clock the next morning, no one accompanying it. On the arrival of the trunk at Imlay City, it was placed upon the platform of the station, and remained there for an hour, at least, waiting for the owner to call for it; but, he not calling for it, the trunk was placed in the defendant’s baggage room, which has been in use as such for several years. This was Saturday, August the 12th. Tire baggage room was one used by the defendant. There was a window on the east side. This window was fastened down; and some time in the night of August 13th, which was Sunday night, the baggage room was burglariously entered by prying open the door on the west wide, pushing the lock aside by pushing the screws from the casing which held the fastening, and feloniously taking and carrying away the trunk and the articles therein in controversy. The windows were not touched or in any way interfered with.”
    Upon this statement the court was requested to direct a verdict for the defendant. This was refused, the court holding, and so instructing the jury, that the following questions of fact were for their determination:
    1. Was the room such as is usually used by railway companies for the purpose of taking care of baggage which was uncalled for ?
    2. Was this particular baggage room such as were the others on the defendant’s road ?
    3. Was the door properly fastened ?
    4. Was the plaintiff familiar with the construction of or safety of the room as a place of storage ?
    The court also instructed the jury that the defendant’s liability as a common carrier had ceased, and that it could be only held liable as a warehouseman; that, as a warehouseman, it was its duty to place the trunk in such a place as a man of ordinary prudence would store his goods in, and that it must be such a place as other railroad companies are in the habit of using under like circumstances.
    The amount of plaintiff’s claim was $60.50. The jury rendered a verdict for $40.

      Aug. O. Baldwin (A. L. Moore, of- counsel), for appellant.

      H. W. Smith, for appellee. *

       Head-note by Grant, J.

   Grant, J.

(after stating the facts). It is the well-established rule that the rigorous liability of a railroad company as a common carrier ceases when the passenger’s trunk has reached its destination, and been placed upon its platform ready for delivery, and a reasonable opportunity given to take it away. After reasonable opportunity has been given the passenger to take it away, the company, according to many authorities, is liable only as warehouseman, bound to the exercise of ordinary care. Was the defendant in this case such a bailee, or a gratuitous bailee, liable only for gross negligence? Plaintiff was not a passenger, and did not intend to be a passenger, on the train with his baggage, or for some time thereafter, if ever. He was not a passenger over the defendant’s road until more than four months had elapsed. He had not used his ticket when the case was tried in the justice’s court, but had used it shortly before it was tried in the circuit. Baggage implies a passenger who intends to go upon the train with his baggage, and receive it upon the arrival of the train at the end of the journey. For his own convenience, plaintiff purchased a ticket for the sole-purpose of deceiving the railroad company into the belief that he intended to be a passenger, entitled to have carried with him the usual amount of baggage. His contract was that of a passenger. He intended to go to his destination by his private conveyance, and there present his check and obtain his baggage. This he did, and, withotft having heen a passenger, asks the same protection as if he had been one. If he had sold the ticket (which he might have done) to another passenger, he would stand in no different light from that in which he does now. So that the question is presented: May a passenger purchase' a ticket, check his baggage, sell the ticket, and then stand in the position of a bona fide passenger upon the road ? Counsel cite no authority the parallel of this, and our knowledge of the counsel leads us to conclude that they have made a careful research, and are unable to find any. My own examination of the authorities fails to find a parallel case.

The defendant was not in fault in checking the baggage. Its agent, the baggage master, was justified in assuming that the plaintiff intended to accompany his baggage upon the next train A baggage master has no authority or right to check baggage for any other than a passenger. If, therefore, plaintiff had disclosed to the baggage master the actual situation, he would' have been refused a check.

In a case of lihel against a boat for a loss of baggage, the libelant had taken passage on the boat from Antwerp to New York. The vessel left before the arrival at Antwerp of the goods, which consisted of ten packages and one basket, and it became necessary to send them by another vessel. On their arrival, two trunks and the basket could not be found. The ground of defense was that the goods were shipped on a passenger ship as personal baggage belonging to the passenger, and, as she did not take passage on hoard the ship, and pay the fare, which would include compensation for the usual baggage, no compensation was paid, and the ship was entitled to none, and therefore the master was a gratuitous bailee, responsible only for gross negligence. The court held that, where a passenger accompanies his baggage, the fare includes compensation for its transportation; if, however, he does not accompany it, the carrier may demand compensation in advance, or upon delivery, relying on his lien or the personal responsibility of the owner. The Elvira Harbeck, 2 Blatchf. 336 (Fed. Gas. No. 4,424).

In Wilson v. Railway Co., 56 Me. 60 (96 Am. Dec. 435), it is said, “It is implied in the contract that the baggage and the passenger go'together.”

Redfield says that the receipt and carriage of baggagev are incidental to passenger transportation, and that the agents of railroad companies have no authority to receive baggage to carry upon any other basis. 2 Redf. R. R. § 171; Hutch. Carr. § 702.

Where a passenger had arrived at her destination, had left the cars, taken her baggage into her possession, and immediately left it in the baggage room for a few hours, it was held that the company was a gratuitous bailee, liable only for gross negligence. Minor v. Railway Co., 19 Wis. 40 (88 Am. Dec. 670).

See, also, Hodkinson v. Railway Co., 14 Q. B. Div. 228.

We must not be understood as holding that it is absolutely necessary for the passenger to go upon the same train with his baggage in order to entitle him to have his baggage taken care of at his destination by the railroad company as a warehouseman. Where the passenger purchased his ticket with the bona fide intention to use it, but, without fault upon his part, did not accompany it, but went upon a following train, a different case is presented.

We conclude that plaintiff was not a passenger; that the defendant was a gratuitous bailee, and was not guilty of gross negligence; and that, therefore, plaintiff could not recover.

Judgment reversed, and no new trial ordered.

The other Justices concurred.


author: Per Curiam.

text:
    CITY OF BAY CITY v. BAY CIRCUIT JUDGE.
    Security for Costs — Failure to Furnish — Motion to DismissLaches — Mandamus.
    A suit was commenced in April of one year, and plaintiff recovered judgment, which was reversed in May of the succeeding year. In August of the latter year, defendant moved to dismiss the cause because of plaintiff’s failure to furnish security for costs. Defendant’s attorney filed the affidavit in support of the motion, in which he positively stated that plaintiff had resided in Canada since before the institution of the suit, and was financially irresponsible, but it did not show how he acquired such information. Held, that an order denying the motion on the ground that it was made too late, and that there was no excuse for the delay, would not be vacated by mandamus, since it would be assumed from the affidavit that defendant’s attorney knew the residence of plaintiff when the suit was commenced.

      Mandamus by the city of Bay City to compel Theodore T. Shepard, circuit judge of Bay county, to dismiss an action at law for failure to file security for costs.
    Submitted December 4,1900.
    Writ denied February 27, 1901.

      Brakie J. Orr, City Attorney, for relator.

      Henry C. Haller and Isaac A. Gilbert, for respondent.
   Per Curiam.

This is an application for an order requiring the circuit judge to vacate an order refusing to grant a dismissal of a case on defendant’s motion because of plaintiff’s failure to furnish security for costs. The suit was commenced on the 6th of April, 1899. A trial was had, resulting in a verdict for the plaintiff. De-' cember 12, 1899, a motion for a new trial was denied. Subsequently a bill of exceptions was settled, and on May 2, 1900, the judgment was reversed by this court. Renaud v. City of Bay City, 124 Mich. 29 (82 N. W. 617). On the 27th of August, 1900, the relator filed a motion to dismiss the cause because of the failure of plaintiff to furnish security for costs. The affidavit upon which this motion was based was that of the city attorney, stating that the plaintiff is now, and has been since the latter part of December, 1898, a resident of the Dominion of Canada, and that she is pecuniarily irresponsible. The affidavit does not disclose when this information came to the affiant, but as the statement is made positively, and not on information and belief, it is to be assumed that the residence of plaintiff must have been known to the affiant when the suit was commenced. A controversy has arisen as to the competency óf an affidavit filed in opposition to this motion. The circuit judge, however, appears to have rested his decision in part on the ground that the motion was made at too late a day, and returns that there was no excuse for the delay. We think that upon this ground the ruling of the circuit judge was justified. 19 Enc. Pl. & Prac. p. 380, and notes. The application will be denied.


text:
    CITY OF EATON RAPIDS v. HORNER.
    Contempt — Violation of Degree of Appellate Court — Res Judicata.
    Since the circuit court has jurisdiction, under 1 Comp. Laws 1897, § 554, upon a cause being remanded to it by the Supreme Court, to take all proceedings necessary to carry the decree of such court into effect, its judgment acquitting a respondent on a charge of contempt as to such a decree will be held res judicata in a new proceeding on the same charge in the appellate court; and this notwithstanding the proceedings were under the different statutes (1 Comp. Laws 1897, § 1098 et seq., and 3 Comp. Laws 1897, chap. 301) relating, respec- ■ tively, to criminal and civil contempts.
    Petition by tbe city of Eaton Rapids for an order adjudging Charles S. Horner and others to be in contempt of the decree entered in Horner v. City of Eaton Rapids, 122 Mich. 117.
    Submitted December 4, 1900.
    Denied February 27, 1901.

      Elmer N. Peters (Russell C. Ostrander, of counsel), for petitioner.

      J. B. Hendee (J. M. C. Smith, of counsel), for respondents.
   Hooker, J.

In December, 1899, (this court made a decree upon appeal in a chancery cause between these parties. Horner v. City of Eaton Rapids, 122 Mich. 117 (80 N. W. 1012). The question in controversy was the right of the respondents Horner to maintain poles, wires, etc., for the purpose of electric lighting in the streets of the city of Eaton Rapids. The decree was in favor of the city, and required the removal of the poles, wires, etc., within a period fixed by the decree; and the cause was remanded to the circuit court under the statute (1 Comp. Laws 1897, § 554) which provides that:

“ When an appeal shall have been so heard and determined, the records and files sent from the circuit courts in chancery, together with the proceedings and decree or order of the Supreme Court therein, and all things concerning the same, shall be remitted to the circuit court in chancery for the proper county, when such further proceedings shall be thereupon had as may be necessary to carry such decree or order into effect.”

Subsequently the city filed in the circuit court a petition asserting that the Horners had not complied with the decree, but, upon the contrary, had caused to he organized, and were large stockholders in, a corporation to carry on the business of electric lighting in said city, and had transferred to it certain wires which were within the terms of the order, and which were then removed from the poles upon which they were originally strung, and attached to buildings owned by private persons, and to certain telephone poles erected and standing in the streets of the city. Said wires crossed certain streets of the city, and have since been used by said corporation to furnish electric lights to the inhabitants.of the city. The corporation claims to be owner of said wires, and to have the right to use them in furnishing its patrons with light, — a business in which it is engaged without any authority obtained from said city. Said petition recited the proceedings and decree, and prayed for an order against said Horners and the newly-organized corporation aforesaid, requiring them to show cause—

“Why they should not be punished for the contempt and misconduct alleged to have been done and committed by them, or either of them, in contempt of the order of, the Supreme Court, and prejudicial to the rights of the said petitioner in this cause, so that the right of the said defendant [h e., the petitioner] to have said poles, wires, and other electrical apparatus removed from the streets of said city may be enforced.” ,

Interrogatories and answers followed in due time, and upon a hearing of the controversy the circuit judge filed a memorandum concluding with the statement following, to wit:

“I am of the opinion, after examining the pleadings in this case and the decree of the Supreme Court, including the petitions, answers, interrogatories, and answers thereto, that the decree of the Supreme Court has not been violated by the Horner Bros, nor the Citizens’ Electric-Light Company. The petition will be dismissed, with costs to be taxed.”

This memorandum bears date August 1, 1900.

In September, 1900, the city filed its petition in this court, reciting the facts already stated, and praying an order requiring said respondents to show cause why they should not be punished for contempt for not obeying and for evading performance of the order and direction of this court. The petition was accompanied by copies of the interrogatories and answers filed in the circuit court. The respondents filed answers, and the cause has been heard in this court. It is to be considered an original application, and in no sense an appeal from an order or decree of the circuit court. In fact, the record shows that the memorandum opinion of the circuit court was not followed by an order or decree.

Contempts are of two classes: First, those which are purely criminal, and are noticed and punished merely to vindicate and preserve the authority of judicial tribunals and propriety of conduct in their proceedings; second, civil contempts, which, though criminal in nature as to procedure, are primarily a means of conferring civil rights. Originally this was the usual method of enforcing decrees and orders made in courts of chancery, and in England it was long, if it is not yet, a concurrent method, after the court was authorized to issue writs of fieri facias and elegit. See 2 Daniell, Ch. Pl. & Prac. 1042. It is not so in this State, however, owing to the abolition of imprisonment for debt; and the effect of our decisions is to confine the remedy to cases where execution'is not permitted. In New Jersey it is held that contempt proceedings instituted by private persons for the purpose of enforcing their rights are civil, and the state of mind of the offending party towards the court is immaterial, and it does not purge the contempt for him to say that he did not intend, in what he did, to contemn the authority of the court. Thompson v. Railroad Co., 48 N. J. Eq. 105 (21 Atl. 182). See, also, Wilcox Silver-Plate Co. v. Schimmel, 59 Mich. 524 (26 N. W. 692). The contempt may usually be cleared by the offending party doing the required act and paying the costs. Jennison, Ch. Prac. 549; 1 Daniell, Ch. Pl. & Prac. 507.

The proceedings in the circuit were instituted to enforce a civil right under the statute (3 Comp. Laws 1897, chap. 301). That court having by statute the control of the case for the purpose of enforcing the decree, under 1 Comp. Laws 1897, § 554, it would seem clear that no other court has jurisdiction for that purpose, whether or not this court may punish, as for a criminal contempt, willful disobedience under section 1098 et seq., under any circumstances. This statute confers upon the circuit court the power of determining whether the respondents have disobeyed the decree rendered by this court, and are liable to be punished therefor under this proceeding, and authority to punish under section 10910, subject to the limitation of section 10911. Having taken jurisdiction for that purpose, and determined the question in favor of the respondents, the same must be considered as res adjudicata between the parties. Whether such adjudication is conclusive of the question of contempt, and excludes proceedings in this court' for a criminal contempt under section 1098 et seq., we need not inquire, if the petition before us is that of a party seeking to enforce a civil remedy under chapter 301. Of this, perhaps, There should be little doubt, as both petitions are filed in the interest of the same party, by the same counsel, and, so far as we remember, neither in brief nor in argument has the claim been made that this was other than a proceeding under chapter 301. But it may be claimed otherwise. Therefore we pass upon the question. Had the court convicted one or all of these respondents, and imposed punishment by fine and imprisonment under section 10910, this court could not be expected to punish the same act again, under the other statute. Neither can it dq so where the circuit court, having full jurisdiction, has acquitted the respondents on the merits of the charge. The judgment of the circuit court is not void, and, if erroneous, cannot be attacked coll^térally. /■

The petition is dismissed, with costs.

The other Justices concurred.