author: Grant, J.

text:
    MICHIGAN CENTRAL RAILROAD CO. v. PERE MARQUETTE RAILROAD CO.
    Railroads — Leases—Construction—Use of Road in Common— Restrictions — Restraint of Competition — Public Policy.
    A railroad, company granted to another company the right in perpetuity to use in common with the grantpr the latter’s road, grounds, and appurtenances from the junction of such-road with the grantee’s road, through S., to E., the proposed easterly terminus of the latter road. The contract provided that the grantee should not receive freight on the common grounds in S. to be transported east of E., or to be delivered to connecting lines at S. or E., nor receive freight from connecting lines east to be delivered at S.; but that, in case of the “construction” of its road eastward of E., there should be no restriction on the business which might be done over such road. Held:

    (1) That the right conveyed was that of user, and not of ' ownership, and the relation between the parties was that of lessor and lessee.
    (2) That a purchaser of the grantee’s road, whose system extended east of E., was not entitled to use the road free from the restrictions of the contract; an extension by purchase not being equivalent to one by “ construction.”
    (3) That, if such restrictions should be held void as against public policy, the whole contract would fall; but that they were not open to such objection.

      Appeal from Saginaw; Beach, J. ■
    Submitted May 8, 1901.
    Decided October 1, 1901.
    Bill by the Michigan Central Railroad Company to enjoin the Pere Marquette Railroad Company from violating the traffic provisions of a contract for the joint use of premises. From a decree dismissing the bill, complainant appeals.
    Reversed.
    The Saginaw Valley & St. Louis Railroad Company was organized in 1871 to construct, own, and operate a railroad from the city of East Saginaw, which was situated on the east side of the Saginaw river, through the city of Saginaw, which was situated on the west side of the river, to St. Louis, in the county of Gratiot, a distance of 34 miles. The company constructed its road from St. Louis to the junction with the Jackson, Lansing & Saginaw Railroad, at a point about five miles south of the city of Saginaw. The Jackson, Lansing & Saginaw-Railroad ran from the point of "junction to and through the city of Saginaw, forming a junction with the Flint & Pere Marquette Railway Company’s road" at a point called the “ Y, ” north of the city of Saginaw. A temporary arrangement was made, by which the Saginaw Valley & St. Louis Railroad Gompany ran its freight and passenger trains from said junction with the Jackson, Lansing & Saginaw Railroad over that road into the city of Saginaw, and used the station grounds, depots, and stations for the transaction of its business, and it ran its passenger trains into the city of East Saginaw by way of said Y where the Jackson, Lansing & Saginaw Railroad and the Flint & Pere Marquette Railway connected north of the city of Saginaw. This arrangement continued until the 2d of April, 1878. At that date the Jackson, Lansing & Saginaw Railroad, which was being operated by the Michigan Central Railroad Company, was the only railroad running into the city of Saginaw, except the road of the Flint & Pere Marquette Railway Company, which extended west across the State to Ludington, north to Bay City, and eastward connecting with Detroit.
    At that date — the 2d day of April, 1878 — the right of the Saginaw Yalley & St. Louis Railroad Company to use said track of the Jackson, Lansing & Saginaw Railroad Company froln said junction south of the city of Saginaw had expired, and it had become necessary either to make a permanent arrangement for such use, or to itself build a separate road “from the point of juncture to Saginaw, and the point of connection with the Flint & Pere Marquette road, for an eastern connection.” To avoid the necessity of building such road by the Saginaw Yalley & St. Louis Railroad Company, and in the place thereof to make provision for the permanent use by it of the Jackson, Lansing & Saginaw Railroad, the contract which is the subject of controversy in this suit was made between the Saginaw Yalley & St. Louis Railroad Company of the first part, and the Michigan Central Railroad Company and the Jackson, Lansing & Saginaw Railroad Company of the second part, and John N. Dennison and James F. Joy, trustees of the bondholders whose bonds were secured by mortgage of the Jackson, Lansing & Saginaw Railroad Company, of the third part.
    The contract recites that the Saginaw Yalley & St. Louis Railroad Company had been using the track of the Jackson, Lansing & Saginaw Railroad Company from the junction five miles south of Saginaw, and also the station grounds of the said last-named company at Saginaw, and “the time of its right to use the same had expired, and it had become necessary to make a permanent arrangement for such use, or allow the said company to build a separate road from the point of juncture to Saginaw, and the point of connection with the Flint & Pere Marquette road, for an eastern connection; and Whereas, to build another and parallel road, and prepare other station grounds and buildings, when the same track and station grounds are not only adequate, but may be best used by both companies, saving an outlay of capital to the one, and making available and yielding a revenue to the other, on the property used by it jointly, by as much as is saved to the other in capital or revenue; and Whereas, it is doubly for the benefit of all parties that there should be an arrangement for such joint use on proper terms, and equally as much to the bondholders of the Jackson, Lansing & Saginaw Railroad Company as any other party, and possibly much more; and Whereas, the said Saginaw Valley & St. Louis Railroad Company has offered for such use, permanently, to be paid in cash down, forty thousand dollars, and to be invested in the purchase and cancellation of the consolidated bonds of the Jackson, Lansing & Saginaw Railroad Company, which series of bonds of that company can be bought at the largest discount, thus canceling the largest amount of debt with the money; and Whereas, said terms have been accepted by the Michigan Central Railroad Company, lessee of the Jackson, Lansing & Saginaw Railroad Company, and it is clearly for the interest of all parties concerned that the plan should be carried into effect,” — it was thereupon agreed that the said first party pay in cash to the parties of the second part the sum of $40,000 in consideration of the rights and privileges therein and thereby granted and secured by the second and third parties to the first • party, and in consideration of said sum said second and third parties did give, grant, sell, and convey to the said first party,—
    “And to its successors and assigns, and to the successors and. assigns of its railroad, in whatever form the assignment may be made, and to the lessees thereof, without further charge, the right in perpetuity to use in common, except as otherwise provided herein, with the said parties of the second part, or either of them, which may for the time being be in possession thereof, or either of their successors or assigns or lessees, in whatever form the said assignment or leases may be made, all the railroad bridges, superstructures, railroad tracks, side tracks, right of way, switches, turntables, buildings, round-houses, engine houses, freight houses, freight offices, water-tanks and water therefrom, depots and depot buildings, docks and grounds of the railroad of the Jackson, Lansing & Saginaw Eailroad Company, and now owned and occupied by the said second parties, or one of them, and which may hereafter be constructed by either of them, between or from and including the junction of the Saginaw Valley & St. Louis Eailroad with the Jackson, Lansing & Saginaw Eailroad, south of the Tittabawassee river, to, in, and through the city of Saginaw, and to and including the Y connections and junctions formed or to be hereafter made at the crossing of the Jackson, Lansing & Saginaw Eailroad and the Flint & Pere Marquette Eailroad north of the city of Saginaw, with the right also to the said party of the first part, at any time, to construct and maintain one or more turnoffs, switches, sidings, side tracks, and main tracks for its road or business, with the necessary switches from the road of the said second parties, at any points which the said first party may choose, for the purpose of extending the road of the first party, or for forming connections with other roads, or for transacting and promoting its business. * * *
    “ The said first party shall have the right to use for its trains the Y and other connections made, or that may be hereafter made, to- connect the Jackson, Lansing & Saginaw Eailroad with that of the Flint & Pere Marquette Eailroad Company, and to pass thereon with its engines, cars, and tenders from one of said roads to the other. ❖ * H?
    “In the movement of trains,the trains and cars of each party shall be upon the same footing, and in all respects equal in rights, with the trains of the same class of the other party. The trains of the said first party which carry mails, also trains having passenger and baggage cars, though freight cars may be connected therewith, shall be classed as passenger trains, and rank as first-class trains, and have the usual right of precedence over the freight trains of either party. Each party shall make its own time-tables, consulting with the other, so that there may be no conflict between them, with a view to promote and facilitate the movement of the trains of each without interfering with the time of either. Should it be found necessary at any time by either party, in order to make the proper connections with the trains of connecting railroads, to make time-tables which render the passage of its trains over the common property difficult or inconvenient on account of the time-tables of the other party, then the necessary side tracks to obviate the difficulty and allow of the passage of trains and secure connections shall be constructed and maintained at the expense of said second party adequate for the purpose. * * *
    “Each party may do local freight and passenger business upon the road to be used in common, but the said first party shall not charge less for such business than the said second party, and shall not gather up or receive freight on the common grounds in the city of Saginaw to be transported eastward of East Saginaw, or to be delivered to any roads connecting at the city of Saginaw or East Saginaw; nor shall it do any switching of cars to or from connecting roads at those cities, or either of them, whether loaded or empty, or between the city of Saginaw and East Saginaw, nor receive freight from connecting routes east to deliver at Saginaw City. But this clause and these restrictions shall not be construed to interfere with running its own trains or doing its own business to and from its road south and west of the city of Saginaw to and from East Saginaw, or any connecting railroad at either of said cities with which it may interchange freight or passengers, nor to interfere with the first party in doing any business which it may do wholly on its own road as now constructed, or as it may be hereafter constructed, nor from receiving freight in either of said cities for delivery in the other city which is strictly local freight; nor, in case of the construction of its road eastward of East Saginaw, shall there be any restriction upon the business which may be done over such road. * * *
    “ Any failure to perform the terms of this contract by either party shall not work a forfeiture of the contract, but such failure shall be compensated in damages.”
    ■ Upon the hearing a stipulation of facts was made, of which the following is an abbreviated-statement, taken from the brief of complainant:
    A branch of the road of the Detroit & Bay City Railroad Company was extended to the cities of Saginaw and East Saginaw, and came into the possession of said Michigan Central Railroad Company, and that company has since possessed and operated the same.
    About the year 1880, by foreclosure and organization proceedings taken in pursuance of the statutes of this State, the property, railroad, and franchises of the said Flint & Pere Marquette Railway Company were acquired by and became vested in the Flint & Pere Marquette Railroad Company, which latter company was duly organized under the laws of the State of Michigan, and which company thereafter owned, possessed, and operated the said railroad and railroad lines of the said Flint & Pere Marquette Railway Company. The said Flint & Pere Marquette Railroad Company also afterwards acquired and operated a railroad extending from the. cities of Saginaw and East Saginaw eastward to the city of Port Huron, and extended and operated its road to the city of Detroit, and to the city of Toledo, in the State of Ohio.
    The defendant, the Pere Marquette Railroad Company, was recently organized under the general railroad laws of this State for the purpose of constructing, owning, and acquiring, by purchase or otherwise, a railroad, and operating the same under and in pursuance of the general railroad law; has become the owner by purchase of the road so constructed by the said Saginaw Valley & St. Louis Railroad Company, with all its rights, franchises, and privileges, and of the said several lines of road so formerly owned by the said Flint & Pere Marquette Railroad Company, including the said road from the city of Saginaw to the city of Port Huron, which there connects with the road of the Grand Trunk Railway Company of Canada, which latter road extends eastward to the city of Buffalo; and said defendant company has also acquired the roads formerly owned by the Detroit, Grand Rapids & Western Railroad Company, and the Chicago & West Michigan Railway Company, respectively, and, in connection with the road which it acquired from the said Flint & Pere Marquette Railroad Company, extending from said city of Saginaw to the city of Ludington, on Lake Michigan, owns and operates steamboats and ferries by which it makes connection with the cities of Milwaukee and Manitowoc, in the State of Wisconsin, .and with railroads connecting with said cities. One of the roads acquired by the Pere Marquette Railroad Company from said Flint & Pere Marquette Railroad Company extends to Bay City, and there connects with the road of the Detroit & Mackinac Railroad Company, which extends to the city of Alpena. The defendant, under its purchase from said Flint & Pere Marquette Railroad Company, also possesses and operates as its own a railroad extending northeasterly from the city of Saginaw to Port Austin. The roads so owned and purchased by said defendant are operated as a system, of which the road so formerly owned by said Saginaw Valley & St. Louis Railroad Company constitutes a part.
    Since April 2, 1878, a railroad has been constructed from Bay City through the present city of Saginaw southerly to Durand, where it connects with the railways of the Detroit, Grand Haven & Milwaukee, the Ann Arbor, and the Chicago & Grand Trunk Railroad Companies. It is operated in connection with the said Chicago & Grand Trunk Railroad, and by that means forms a continuous line east and west from Durand, and by said connections at Durand affords means of transportation to the east by way of Detroit, to the south by way of Toledo, and to the west by way of Chicago.
    The only stations on defendant’s Saginaw-Detroit line reached by complainant’s road are Delray and Detroit; on its Saginaw-Toledo road, Wayne, Carleton, and Toledo; on its Saginaw-Port Huron road, Vassar; on its Saginaw-Port Austin road, Reese. On these roads of defendant there are stations reached by no other road.
    At the time the contract was made, the Jackson, Lansing & Saginaw Railroad was the only railroad running into the city of Saginaw. The railroad connection between the cities of Saginaw and East Saginaw was by the junction of the Jackson, Lansing & Saginaw Railroad with the Flint & Pere Marquette Railway at the Y mentioned in the contract; and under a temporary, informal arrangement in that regard with the Jackson, Lansing & Saginaw Railroad Company, the Saginaw Valley & St. Louis Railroad Company ran its passenger trains into the city of East Saginaw by the way of said junction. In the city of Saginaw there were and are two depots stationed for the receipt of passengers and freight, belonging to the Jackson, Lansing & Saginaw Railroad Company, at which, under the temporary, informal arrangement mentioned above, passengers and freight were received by the Saginaw Valley & St. Louis Railroad Company. A side track of the Jackson, Lansing & Saginaw Railroad ran, and still runs, from the main line to various mills and factories to reach the business carried on there, and the Saginaw Valley & St. Louis Railroad Company never constructed or used any other railroad between the junction south of the Tittabawassee river and the said junction at the Y north of the city of Saginaw. Said temporary, informal arrangement was superseded by said contract, and the use of the track of said Jackson, Lansing & Saginaw Railroad Company by the Saginaw Valley & St. Louis Railroad Company was thereafter under and in subordination to the terms of said contract.
    Long before the purchase of the Flint & Pere Marquette Railroad Company by the Pere Marquette Railroad Company, said Flint & Pere Marquette Railroad Company had constructed tracks from its main line to many of the industries formerly reached only by said Jackson, Lansing & Saginaw Railroad, to reach the business carried on there.
    After the purchase of the Saginaw Valley & St. Louis Railroad and the Flint & Pere Marquette Railroad by the Pere Marquette Railroad Company, a connection was made between the Jackson, Lansing & Saginaw Railroad and the Belt Line of the old Flint & Pere Marquette Railroad Company’s road at a point south of the depot of the Jackson, Lansing & Saginaw Railroad Company, situated in the old city of Saginaw, now Saginaw, West Side, and since some time about June 1, 1900, all of the passenger trains and most of the freight trains of the Pere Marquette Railroad Company operated over the road of the old Saginaw Valley & St. Louis Railroad Company have been operated over the Belt Line, and none of the passenger trains of the Pere Marquette Railroad Company now stop at either of the depots in the city of Saginaw of the Jackson, Lansing & Saginaw Railroad Company.
    The bill alleges that it is the intent of the defendant to gather up freight for transportation eastward from the city of Saginaw and East Saginaw, or to be delivered to the roads so formerly owned by said Flint & Pere Marquette Railroad Company; that such conduct is in violation of the agreement; and prays that the defendant be enjoined from so doing.
    The defendant sets forth its contention in its answer as follows:
    “ This defendant respectfully contends that it was contemplated by said agreement of April 2, 1878, that thereafter the owner of the said Saginaw Valley & St. Louis Railroad would or might also own a railroad extending east beyond the cities of Saginaw and East Saginaw, and in this manner a continuous line of railroad be owned and operated by the same railroad, which company might be either said Saginaw Valley & St. Louis Railroad Company or some other company which should, from or under said Saginaw Valley & St. Louis Railroad Company, become the owner and possessor of the said railroad of said last-named company, and of the rights and privileges granted to said company by said agreement; and it was not the intent or purpose of said agreement to prevent or forbid said railroad company owning or operating such continuous line of railroad from gathering up, accepting, or receiving freight upon said common ground mentioned in said bill of complaint for transportation, and from transporting the same, over said continuous line of road to the east of said cities, but, on the contrary, it was the purpose and intent of said agreement to provide for and permit the gathering up, accepting, and receiving such freight on said common ground for transportation and to be transported over said line of railroad to the east of said cities; and this defendant respectfully submits that said agreement does permit and provide therefor.
    “This defendant claims that it has the right, and that under the laws of this State it is its duty, to accept whatever freight shall be tendered to it at,the proper places for receiving freight upon and along the portion of railroad which is the subject of controversy in this suit, being that portion of railroad described in said agreement of April 2, 1878, leased to said Saginaw Valley & St. Louis Railroad Company, for transportation by this defendant over any of its lines of road; and that said agreement cannot properly be construed to prevent or prohibit this defendant from accepting and receiving such freight, and transporting the same over its lines of road to the eastward, or in any direction in which its lines run; and this defendant respectfully submits to this court the determination of its rights and duties in the premises.”
    Decree was entered dismissing the bill.

      Watts 8. Humphrey (Ashley Pond, of counsel), for complainant.

      Benton Hanchett, for defendant.
   Grant, J.

(after stating the facts). 1. It is first urged on behalf of defendant that by the contract of April 2, 1878, that portion of the Jackson, Lansing & Saginaw Railroad covered by it was made a part of the road of the Saginaw Valley & St. Louis Railroad Company, and that it was the design and intent of said contract to make that portion of the Jackson, Lansing & Saginaw Railroad take the place and stand in the stead of the road which, by its articles of association, the Saginaw Valley & St. Louis Railroad Company was to construct between St. Louis and East Saginaw.

Whether the Saginaw Valley & St. Louis Railroad Company had complied with its charter by making this arrangement is a question not before us. This question cannot be raised in a collateral proceeding. It could be raised and determined only in a proceeding brought by the State to determine whether that railroad corporation had complied with its charter. The State has not seen fit to raise the question, and very naturally, because probably the rights of the public have been as well subserved by the contract made between the two roads as they would have been by the construction of a separate road. The rights of the parties must, therefore, be determined by the contract which they voluntarily made. The situation was this: The Saginaw Valley & St. Louis Railroad Company desired to avoid the construction and maintenance of a separate road for a distance of five miles, and as well the construction of separate depots and the purchase of depot grounds. It must do this or make a contract with the Jackson, Lansing & Saginaw Railroad Company. The former could not compel the use of the latter’s road and depots. The latter was willing to grant a permanent use of its road to the former for certain considerations. These were agreed to. The Jackson road did not sell to the Saginaw Valley road any of its real estate, but granted only a permanent lease. To hold otherwise would be doing violence to the meaning of the plainest terms. The Saginaw Valley road was under no obligation to continue the arrangement, but might at any time construct its own road; and there is nothing in the contract to prevent it. The relation between the parties was simply that of lessor and lessee, and not that of tenants in common of the right of way. The right conveyed was that of user, and not that of ownership.

2. It is next urged that the defendant complied with the terms of the contract by the purchase of the Saginaw Valley & St. Louis Railroad; that the extension of the Saginaw Valley road was the main thing provided for in the contract; and that the purchase was equivalent to a construction. Such an interpretation would also do violence to the plain meaning of language. The persons who prepared and executed this contract on behalf of their respective corporations were men of education and intelligence. They are presumed to have used words in their ordinary and popular sense. Merrick v. Webster, 3 Mich. 274. Words may sometimes acquire a particular meaning according to the usages of trade, or the peculiar context in which they are used. Such is the case of Seymour v. City of Tacoma, 6 Wash. 138 (32 Pac. 1077), where “An act authorizing cities and towns to construct internal improvements, and to issue bonds to pay therefor,” was held to include the purchase of waterworks and light plants which had been erected by private enterprise. The ordinary definition of the word “construct” is there recognized; but, when the object to be attained and the language of the act were considered, it was held that the legislature intended something more than the construction of waterworks, and conveyed the right to municipalities to purchase waterworks already in existence, and necessary to carry out the purpose of the law.

It is impossible to read this contract without reaching the conclusion that the word “construct” was used in its ordinary and popular sense. The contract referred to the road of the Saginaw Valley & St. Louis Railroad Company “as now constructed, or as it may be hereafter constructed.” It was clearly understood that the road was only constructed from St. Louis to its junction with the Jackson, Lansing & Saginaw Railroad, five miles from Saginaw. If the Saginaw Valley & St. Louis Railroad Company had let a contract for the construction of its roadbed from St. Louis to Saginaw, paralleling the roadbed of the Jackson, Lansing & Saginaw Railroad from its junction to Saginaw, would the contractor have complied with his contract for its construction by making an agreement with the Jackson, Lansing & Saginaw Railroad Company by which its roadbed could be used in the same manner, and for the same purposes, and to the same effect as if it constructed its own roadbed? Or would the contractor have performed his contract by purchasing this five miles of road from the Jackson, Lansing & Saginaw Railroad Company, and turning it over to the Saginaw Valley & St. Louis Railroad Company ? If the owner of a manufacturing plant buys an adjoining plant used in the same business, does he, by his purchase, construct the plant purchased ? To purchase does not mean to construct. This case falls rather within that of Lamb v. Anderson, 54 Iowa, 190 (3 N. W. 416, 6 N. W. 268), where it was held that the purchase of another line of railroad was not a construction, so as to justify the collection of a tax voted by the township for the construction of a railroad.

It is significant that the Saginaw Valley & St. Louis Railroad Company, at the time the contract was made, had obtained no right to construct its road to the eastward. Its eastern terminus was East Saginaw. It could not extend its right of way farther without amending its charter, and establishing that a public necessity existed for the extension and construction of the road eastward. In that proceeding any one interested would have the right to appear and contest such extension. The Jackson, Lansing & Saginaw Railroad Company might well agree to incur the risk of an extension by construction, where it would be totally unwilling to incur the risk of a purchase. Construction is defined to be “the act of building or making; the act of devising and forming; fabrication.” Cent. Diet. It is in that sense that the term was used in this contract.

3. It is next urged that, under the complainant’s construction of the contract, it is void as against public policy, in that it illegally restricts the Saginaw Valley & St. Louis Railroad Company from receiving and shipping freight. It would seem a sufficient reply to this to say that there is no restriction by the contract to carry freight over its own road. Its entrance into Saginaw from the junction with the Jackson, Lansing & Saginaw Railroad was one purely of contract. Its own road was in fact constructed only to the junction. It then had two ways open to it, — either to construct its own independent road into Saginaw, or make a contract with the Jackson, Lansing & Saginaw Railroad Company. It chose the latter. The contract which it made must either stand or fall as a whole. Alford v. Railway Co., 3 Interst. Com. R. 519. If the objectionable provisions are absolutely void, then the contract must utterly fail. Without these provisions the Jackson, Lansing & Saginaw Railroad Company would undoubtedly never have made the contract. This court cannot make one for it. If the contract is entirely void for this reason, complainant, as stated by its counsel, has no objection to such a decree; for this would leave the defendant without any right whatever over the complainant’s road.

It is conceded that a railroad company cannot enter into a contract to incapacitate' itself from discharging the duties resting upon it. This, however, is far from holding that railroad companies may not enter into such an arrangement as was made in this case. There is not a word in the contract which limits the duty of either of the three roads to receive freight for transportation, or which restricts the right of any shipper to have his freight carried by either road. The Saginaw Valley & St. Louis Railroad Company expressly retained the right to ship eastward if it should construct its road in that direction. It had no connection east of Saginaw, and none was provided by its charter. The restriction in regard to picking up freight for the East was aimed solely at the Flint & Pere Marquette road, which was then in existence, and had a line running eastward from East Saginaw. It was the only competing line then in existence. The contract was aimed at it, and nothing else. No public policy and no statute were attacked by this provision. The Elint & Pere Marquette had its own road and station grounds in Saginaw. Any citizen of Saginaw could ship freight from or receive freight at its depot. The same facilities were offered by the Jackson, Lansing & Saginaw Eailroad Company. The public had two competing lines, and could, at its choice, deal with either. That right was not interfered with by this contract. The Saginaw Valley & St. Louis Eailroad Company, by the contract, was permitted to run its cars to the junction of the Flint & Pere Marquette Eailway at the Y north of the city. This was for the accommodation of the former company. It is now claimed that the present defendant, which has bought the Flint & Pere Marquette and other roads, obtained the very right which the Saginaw Valley & St. Louis Eailroad Company contracted not to exercise, and which it did not exercise for a period of 22 years. We think this claim cannot be maintained. The Jackson, Lansing & Saginaw Eailroad Company had the right to stipulate that the other road should not use its depots and grounds to pick up and deliver freight to its only competitor, the Flint & Pere Marquette Eailway Company, and in doing so violated no rule of public policy or statute of this State. Contracts between railroads, more restrictive than this one, have been sustained. Union Pac. R. Co. v. Chicago, etc., R. Co., 163 U. S. 564 (16 Sup. Ct. 1173); Chicago, etc., R. Co. v. Denver, etc., R. Co., 143 U. S. 596 (12 Sup. Ct. 479). As was said in Leslie v. Lorillard, 110 N. Y. 519 (18 N. E. 363, 1 L. R. A. 456):

“The apprehension of danger to the public interests should rest on evident grounds, and courts should refrain from the exercise of their equitable powers in interfering with and restraining the conduct of the affairs of individuals or of corporations, unless their conduct, in some tangible form, threatens the welfare of the public.”

Decree reversed, with costs of both courts, and decree entered for the complainant.

Montgomery, O. J., Hooker and Moore, JJ., concurred. Long, J., did not sit.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    DYER v. SKADAN.
    Deeds — Delivery—Passing of Title.
    A wife executed a deed to her husband, and gave it to him, to be recorded only in case he should survive her, otherwise to be destroyed. The wife retained no control over the instrument, and was survived by the husband. Held, that, whether the parties intended that title should pass at once, supposing that it could be reinvested *by a destruction of the deed; or whether the law should give that effect to the transaction because of the immediate delivery of the deed to the grantee (Dawson v. Hall, 2 Mich. 390); or whether it was the intention that the deed should become operative only on the death of the grantor, — there was such a delivery as would support the conveyance.
    Appeal from Ingham; Peck, J., presiding.
    Submitted May 10, 1901.
    Decided October 1, 1901.
    Bill by Joseph L. Dyer against Frank Skadan, administrator of the estate of Mary J. Dyer, deceased, and others, to restore a lost deed. From a decree dismissing the bill, complainant appeals.
    Reversed.

      L. B. McArthur (Russell C. Ostrander, of counsel), for complainant.

      Lawton T. Hemans (R. A. Montgomery, of counsel), for defendants.
   Moore, J.

The relief sought by the bill in this case is the restoration and establishment of an unrecorded warranty deed, claimed to have been executed to the complainant, Joseph L. Dyer, by his wife, Mary J. Dyer, during her lifetime, conveying a farm of 120 acres in the township of White Oak, upon which they resided, which deed was lost after the grantor’s death. It is the claim of the complainant that he paid for the land, and that the deed was taken in the name of his wife because he was then ill, and it was thought he would not recover; that, recognizing his right to the property, his wife afterwards deeded it to him. The bill also prays that complainant be decreed to be the absolute owner of the personal property on the farm at the time of the death of his wife. The answer denies that such a deed was ever executed, or that the complainant had any interest in the personal property, and claims that the title to the farm and personal property was absolutely in Mrs. Dyer at the time of her death. The'circuit judge, in his decision, so clearly stated the questions involved that we quote from it here:

“The controlling questions in the case are: Was the deed executed as claimed in the bill ? Was it delivered so as to be legally effective to presently pass the title to the complainant ? Was it, as complainant contends, lost after Mrs. Dyer’s death ?
“The facts, as shown by the proofs (not considering the testimony of the complainant as to matters equally within the knowledge of deceased, which would be excluded by the statute), are substantially as follows:
“The farm in question was purchased in the fall of 1867, and the deed, dated October 31st of that year, was taken in the name of the wife, Mary J. Dyer. The parties took possession of the place, and continued to occupy it, with their family, in the ordinary way as a farm and home, until Mary J. Dyer died, in December, 1898. Since her death the complainant has continued in the use, occupation, and possession of the farm to the present time. July 5, 1884, Mary J. Dyer gave the complainant a life lease of the farm, which was not recorded until after her death.
“ Some time in 1885 or 1886 (the date is not more precisely shown) the complainant and his wife visited the office of the Honorable M. M. Atwood, a well-known lawyer residing at Dansville, in this county, where Mrs. Dyer made and executed a warranty deed of the farm to her husband, the complainant. The blank form of a warranty deed was used in preparing this instrument. It was drawn by Mr. Atwood, read over by him to the parties, signed by Mrs. Dyer, witnessed by Joseph McKnight and E. J. Smith, and the acknowledgment taken by Mr. Atwood. The consideration named therein was four or five thousand dollars (the proof does not show the amount more particularly), and it described the farm in question.
“After its completion, the deed was handed over by Mr. Atwood to the complainant. The understanding between the parties was that, if Mrs. Dyer survived her husband, the deed should be destroyed, and the title still remain in her; but, if the complainant outlived his wife, he should, after her death, put the deed on record, and the farm should then be his. The parties appear to have understood that it was the recording of the deed which would give it vitality; that, while it remained unrecorded, the title to the farm would remain in the grantor, and that it would continue hers after his death, if she survived him, by the mere act of destroying the deed, and that the farm would only become his after her death, by recording the deed. It is immaterial that this view may have been incorrect legally; the fact is material as a part of the understanding of the parties upon which the deed was turned over to Mr. Dyer. It was with this understanding that Mr. Atwood, with the approval of Mrs. Dyer, handed the deed to her husband. The complainant took the paper, and kept it in their house under his own control, and separate from other family papers, until after her death. While she lived, whenever there was occasion to refer to the deed, the complainant would bring it out, and return it; but I am satisfied that Mrs. Dyer knew where it was kept, and could, if necessity required, have found and produced it. When the deed was made, there was no change in the possession, management, or control of the farm. The conditions, in those respects, which had existed before its execution, continued thereafter as long as Mrs. Dyer lived.
“Not only the evidence as to what occurred when the deed was made, but the subsequent statements and conduct of Mr. and Mrs. Dyer, and their treatment of the property from the time of the execution of the instrument to her death, plainly show that it was made and delivered to Mr. Dyer, and accepted and held by him until her death, with the understanding that, if he survived her, he should get it recorded, and the title should then be his; but, if she survived him, it should be destroyed, and the title remain in her. It may not have Ijeen actually formulated in the mind of either that, to carry out this understanding, the title in the meantime should stand as it was before the conveyance, but it logically results that this must have been contemplated, for the title was to be his only in the event that he survived her, — a contingency which might not happen. If that did not occur, the deed was never to be operative on the title. It can hardly be considered that it was their design that in the meantime the title should pass to Mr. Dyer, and go back to her if the uncertain future condition did not happen.
“Mrs. Dyer died in 1898. About two months after, complainant saw the deed for the last time. It has since been lost or destroyed without his connivance or fault.
“Complainant’s claim to the personal property in question rests substantially upon the fact of his having a life lease of the farm upon which it was accumulated and grown, and his being the grantee in the deed in question. But whatever presumption or inference might ordinarily attach to such a situation is more than overcome by the proofs, which conclusively show that after the execution of the deed, and from then until not long before his wife died, he treated this property as though it belonged to his wife, and disclaimed any interest therein. If there was any personal property there to which he had title other than such as came from his life lease and the deed, it has not been pointed out by the proofs with such definiteness as enables me to distinguish or enumerate it.
“The decisive legal question, generally stated, to be determined, is this: Upon these facts, can this court, sitting in chancery, and upon the present bill, decree a restoration of the deed in question as a lost or destroyed instrument, and by virtue thereof establish the title of the complainant to the farm described therein ? The instrument was a deed in form, but was testamentary in its nature. It was intended to operate as a conveyance of the title at the death of the grantor, provided the grantee outlived her. Its only practical purpose was to convey the title to her husband at her death, if he survived her. It was a conditional testamentary conveyance, and the condition which was to give it vitality as a deed has happened by her death before her husband’s. In my opinion, the circuit court, in chancery, has no original jurisdiction to hear and determine the matter, and the questions involved can only be heard and disposed of in the probate court.”

Was the circuit judge right in holding the instrument to be a conditional testamentary conveyance, which only the probate court had jurisdiction to restore when lost? On the part of the defendants it is claimed that no deed in fact was ever executed before Mr. Atwood. We agree with the circuit judge that the proofs show very clearly such a deed was executed and delivered.

It is claimed by counsel for defendants that this case could hardly find a closer parallel than the case of Wilson v. Wilson, 158 Ill. 567 (41 N. E. 1007, 49 Am. St. Rep. 176). An inspection of that case shows the deed was to be recorded at the death of the grantor in case he never called for it. It clearly appears the grantor reserved to himself the right to recall the deed. We think this distinguishes it from the case at bar.

In 9 Am. & Eng. Enc. Law (2d Ed.), 152, 153, it is said:

“A deed takes effect at the time of its delivery. * * * Delivery is a word, act, or both combined, by which a grantor expresses a present intention to devest himself of title to property described in an appropriate deed.”

In a note on page 158 it is said :

“Delivery is ‘the transfer of a deed from the grantor to the grantee, or some person acting in his behalf, in such, manner as to deprive the grantor of the right to recall it at his option. An absolute delivery is one which is complete upon the actual transfer of the instrument from the possession of the grantor. A conditional delivery is one which passes the deed from the possession of the grantor, but is not to be completed by possession in the grantee, or a third person as his agent, until the happening of a specified event.’ Bouv. Law Diet.”

In Dawson v. Hall, 2 Mich. 390, it is said:

“ It is a well-settled rule of law that, if the grantor does not intend that his deed shall take effect until some condition is performed, or the happening of some future event, he should either keep it himself, or leave it with some other person as an escrow to be delivered at the proper time. That it should operate as an escrow, it is necessary that the delivery should be made to a stranger, and not to the party; for, if one makes a deed, and delivers it to the party to whom it is made, as an escrow upon certain conditions, in such case, let the form of the words be whatever it may, the delivery is absolute, and the deed shall take effect presently as his deed, and the party to whom it is delivered is not bound to perform the condition; for ‘ in traditionibus chartarum, non quod dictum, sed quod factum est, inspicitur.’ Fairbanks v. Metcalf, 8 Mass. 230; Gilbert v. Insurance Co., 23 Wend. 43 (35 Am. Dec. 543); 4 Com. Dig. tit. ‘Fait (A 3) Delivery,’ and notes; 4 Cruise, Dig. 36; 1 Shep. Touch. 58.”

See Beers v. Beers, 22 Mich. 42.

In Taft v. Taft, 59 Mich. 185 (26 N. W. 426, 60 Am. Rep. 291), where a deed had been delivered to a third party, to be delivered at the death of the grantor, the court said, at page 193:

‘ ‘ The other deed held by Mallory depends on other considerations. If the deed had been delivered to him irrevocably, on the simple condition that he should transfer it to defendant on the death of Aden Taft, it would come within several of our own decisions, and might, therefore, be valid upon their authority. Latham v. Udell, 38 Mich. 238; Wallace v. Harris, 32 Mich. 380. There is much authority elsewhere in favor of the same doctrine. But it has not been decided here, or in most of the cases elsewhere, that this rests on the doctrine of escrow. It was said in Foster v. Mansfield, 3 Metc. (Mass.) 412 (37 Am. Dec. 154), that, where a deed is deposited with a third person, and ‘ the future delivery is to depend upon the payment of money, or the performance of some other condition, it will be deemed an escrow. Where it is merely to await the lapse of time, or the happening of some contingency, and not the performance of any condition, it will be deemed the grantor’s deed presently. Still it will not take effect as a deed until the second delivery; but, when thus delivered, it will take effect, by relation, from the first delivery.’ The same distinction is suggested in other cases, where sucha delivery is held valid. Wheelwright v. Wheelwright, 2 Mass. 447 (3 Am. Dec. 66); Hatch v. Hatch, 9 Mass. 307 (6 Am. Dec. 67); Fairbanks v. Metcalf, 8 Mass. 230.”

See Gage v. Gage, 36 Mich. 229.

In Darling v. Butler, 45 Fed. 332 (10 L. R. A. 469), it is said:

“The rule is ancient and familiar that a deed cannot be delivered in escrow to the grantee. When there is a valid delivery of a deed by the grantor to the grantee, it is impossible to annex a condition to such delivery; and the delivery vests the title in the grantee, although it may be contrary to the intention of the parties. ‘When the words are contrary to the act which is the delivery, the words are of none effect.’ Co. Litt. 36a. ‘If I seal my deed, and deliver it to the party himself to whom it is made, as an escrow upon certain conditions, etc., in this case, let the form of the words be what it will, the delivery is absolute, and the deed shall take effect as his deed presently.’ 1 Shep. Touch. 59. The modern cases recognize the doctrine fully, and apply it wherever it appears that the grantor intended to deliver and the grantee intended to accept the instrument as a conveyance without further act on the part of the grantor. Worrall v. Munn, 5 N. Y. 229 (55 Am. Dec. 330); Brackett v. Barney, 28 N. Y. 333; Braman v. Bingham, 26 N. Y. 483; Hinchliff v. Hinman, 18 Wis. 138; Ordinary v. Thatcher, 41 N. J. Law, 407 (32 Am. Rep. 225).”

There is nothing in the testimony indicating the parties to the deed expected that Mrs. Dyer might control the deed during the lifetime of her husband, or that she could recall it. The most favorable view for the defendants that can be taken of the testimony is that Mr. and Mrs. Dyer both supposed that, if the deed was Hot recorded by Mr. Dyer, in the event of his death all it was necessary to do to reinvest the title in Mrs. Dyer was to destroy the deed. Whether it is said there was an unconditional delivery of the deed to the grantee, expecting it would take immediate effect, as claimed by Mr. Dyer, or whether it was expected the deed would not take effect until the death of the grantor, cannot, we think, under the authorities, make any difference with the result. The testimony shows the deed was delivered to the grantee, the grantor not reserving any right of control over it. In the one case the title would pass at once. In the other case the grantee would not be in a less favorable position than he would have been had the deed been delivered to a third party with directions to deliver it upon the death of the grantor. We have already seen that, in the last-mentioned case, the title would take effect when the deed was delivered by the third party, and, except as to intermediate rights, when thus delivered it would take effect by relation from the first delivery. We think the deed should have been restored as prayed for in the bill of complaint.

Under the testimony in the case we are not prepared to pass upon the question of the title to the personal property. We decline to make any decree in relation thereto, but leave the parties to any remedy which they have at law.

The decree of the court below is reversed, and one may be entered here in accordance with this opinion.

The other Justices concurred.


author: Long, J.

text:
    ATTORNEY GENERAL, ex rel. MAYBURY, v. BOLGER.
    1. Constitutional Law — Title to Aot — Amendment of Statute.
    Any provision that might have been included in a legislative enactment under its existing title may be incorporated therein by amendment under the same title.
    2. Same — Municipal Corporations — Local Self-Government.
    The right of local self-government is none the less effectively preserved because certain powers are vested in the common Council rather than in the mayor.
    3. Same — Appointments to Office — Nature of Power.
    The power of appointment to office is not essentially an executive function, and, in the absence of constitutional restriction, may be vested in departments of government other than the executive.
    4. Same — Division of Governmental Powers.
    Neither section 1, art. 4, of the Constitution, vesting the legislative power in a senate and house of representatives, nor any other constitutional provision, operates to prevent the legislature from conferring on the common council of a city the power to appoint administrative officers; and such has long been the practice.
    5. Same — Detroit Charter Provisions.
    The contention that the power of appointment of administrative officers in the city of Detroit was vested exclusively in the mayor at the time of the adoption of the Constitution, and is therefore beyond legislative interference, is not sustained by the facts.
    6. Same — Title to Statute — Local Self-Government — Appointments to Office —Detroit Park and Boulevard Commissioner.

      Therefore: Act No. 417, Local Acts 1901, entitled “An act to amend” certain sections of an act entitled "An act supplemental to the charter of the city of Detroit, and relating to parks, boulevards, and other public grounds in said city," etc., which abolished the board of commissioners of parks and boulevards, appointed by the mayor with the approval of the common council, and provided for a single commissioner, to be appointed by the council, is not unconstitutional (1) because of an insufficient title, (2) as an invasion of the right of local self-government, or (3) as vesting executive power in a legislative body.

      Quo warranto proceedings by Horace M. Oren, attorney general, on the relation of "William C. Maybury and others, to determine the right of Robert E. Bolger to hold the office of commissioner of parks and boulevards of the city of Detroit.
    Submitted September 24, 1901.
    Judgment for respondent October 1, 1901.

      Jasper C. Gates (Alfred Russell, of counsel), for relators.

      John J. Speed and Robert T. Speed (Fred A. Baker and John W. Beaumont, of counsel), for respondent.
   Long, J.

This proceeding is brought in this court by the attorney general by information in the nature of quo warranto on the relation of William 0. Maybury, mayor of Detroit, and others, to oust the respondent from the office of commissioner of parks and boulevards of the city of Detroit.

Prior to 1901 there existed in the city of Detroit a board of commissioners of parks and boulevards, consisting of four persons nominated by the mayor and approved by the common council. The legislature in 1901 abolished this board, and provided for a single commissioner, to be appointed by the common council. Act No. 417, Local Acts 1901. It is claimed by counsel for relators that the body of the act of 1901 provides for radical changes not mentioned in the title, thus rendering the act void under the provisions of section 20, art. 4, of the Constitution of this State, which provides that “no law shall embrace more than one object, which shall be expressed in its title.”

The title of the act is:

“ An act to amend sections one, two, three, four,” etc., “of an act entitled ‘An act supplemental to the charter ■of the city of Detroit’, and relating to parks, boulevards, and other public grounds in said city, and to repeal act number three hundred and seventy-four of the local acts of eighteen hundred and seventy-nine, entitled “An act to provide for the establishment and maintenance of a broad street or boulevard about the limits of the city of Detroit,” ’ ” etc.

The act fixes the term of the office of the commissioner at four years. It also provides that at the end of that term, or in case of a vacancy, the mayor shall appoint. We find nothing in the act that might not have been incorporated in the original act. The power granted to the council under the new act is fairly within the title of the act amended. The act giving the council the power to appoint the commissioner of parks and boulevards has a natural connection with, and is not foreign to the act amended, “ relating to parks, boulevards, and other pub-lie grounds in said city.” It was said in Holden v. Osceola Co. Sup’rs, 77 Mich. 204 (43 N. W. 970):

“Most of the great changes in our city organizations have come in under laws which did no more than to indicate by their titles a purpose to incorporate, or reincorpórate, or revise the corporate charter of the municipality dealt with. Anything which is meant to form a perma- ' nent element in municipal arrangements is pertinent to the1 incorporation.”

It was held in City of Detroit v. Wayne Circuit Judge, 112 Mich. 319 (70 N. W. 894), that “it is competent to introduce by amendment anything which might have been introduced in the original act;” and the same' rule was also laid down in Fort Street Union Depot Co. v. Commissioner of Railroads, 118 Mich. 340 (76 N. W. 631). The contention made cannot be sustained.

It is contended by relators :

“That the city of Detroit enjoys the right of local self-government by means of a mayor, vested with the executive power of nomination of all city officers other than ministerial, and by means of a council, vested with legislative powers, but not with the power of appointment of city officers other than ministerial; that the city of Detroit enjoyed this right of local self-government, with this division of powers, at and before the time of the adoption of the Constitution of 1850, which instrument recognizes and confirms this right, and was adopted subject to that right; so that the legislative power of the State cannot be exer-' cised to take away that right, and to take away from the mayor any part of the executive power, and bestow it upon the council; that, consequently, the act under which the respondent claims title to his office by appointment of the council is not of constitutional validity.”

The legislature has not attempted by the act to deprive the citizens of Detroit of their right to local self-government. The members of the common council of the city, as much as the mayor, are the immediate representatives of the citizens. They are elected by the direct vote of the people, and represent the people, and are in as close touch with the people as is the mayor; and since the citizens of any community cannot perform any function of government in a collective capacity, and can act only through their agents, it would seem impossible to confer the power to act upon any municipal agents more nearly representative than the common council. It was said by Mr. Justice Campbell in Board of Park Com'rs of Detroit v. Common Council of Detroit, 28 Mich. 228 (15 Am. Rep. 202):

“ A city is, and must be, as I conceive, a unit for purposes of government; and all bodies employed in the service of the municipality, and not directly representing the freemen, must act as agencies subordinate to the council.”

But counsel for relators contend that the common council of Detroit is' a legislative body, and cannot constitutionally be vested with the power to appoint an administrative officer; that the power to appoint to office is an executive function, and can be exercised only by the mayor. That question was discussed in People v. Hurlbut, 24 Mich. 44 (9 Am. Rep. 103). Mr. Justice ChrisTIANCY, speaking for the court, said:

“As to this mode of appointment being the exercise of a power essentially executive in its nature, it is sufficient to say that executive power cannot always be defined by any fixed standard in the abstract. What would come within the executive power in our form of government would fall within the legislative in another, and vice versa. The question here is whether, under our Constitution, it is executive or legislative; and, as the Constitution has not confided the appointment of these or the like officers to the executive authorities, and has left it to the legislative discretion whether to create such offices, and how they shall be filled, it cannot be truly said that such an appointment is any more in the nature of the exercise of an executive than of a legislative power.”

It has been repeatedly held in other States that the power of appointment to office is not essentially an executive function, and may, therefore, in the absence of constitutional restriction, be vested in departments other than the executive. State v. Swift, 11 Nev. 128; People v. Morgan, 90 Ill. 558; People v. Freeman, 80 Cal. 233 (22 Pac. 173, 13 Am. St. Rep. 122); People v. Langdon, 8 Cal. 16; Mayor, etc., of Baltimore v. State, 15 Md. 376, 455, 456 (74 Am. Dec. 572); Fox v. McDonald, 101 Ala. 51 (13 South. 416, 21 L. R. A. 529, 46 Am. St. Rep. 98); People v. Woodruff, 32 N. Y. 355, 356; Biggs v. McBride, 17 Or. 640, 648 (21 Pac. 878, 5 L. R. A. 115); State v. George, 22 Or. 142, 151 (29 Pac. 356, 16 L. R. A. 737, 29 Am. St. Rep. 586); People v. Hoffman, 116 Ill. 587, 601 (5 N. E. 596, 8 N. E. 788, 56 Am. Rep. 793); State v. Boucher, 3 N. Dak. 389 (56 N. W. 142, 21 L. R. A. 539). These cases support the rule laid down by Mr. Justice Christiancy in the Hurlbut Case.

The legislature of this State has many times conferred upon the common council of Detroit the absolute right to appoint administrative officers independently of any action of the mayor. The act creating the board of water commissioners, passed in 1853, vested in the common council the authority to appoint members of the board. Act No. 90, Laws 1853. At this time the mayor was a member of the common council, but in 1857 he ceased to be a member. Notwithstanding this, the appointment of the members of the water commission was still retained in the hands of the common council, and the mayor had no voice in the appointment. Act No. 55, Laws 1857, chap. 2, § 3. This was the condition of the city charter up to 1880. Charter 1880, § 77. In 1881 an act was passed for the express purpose of giving the mayor the right to nominate the members of the water commission. Act No. 418, Local Acts 1881. It also appears that, under the city charter of 1857, the common council was authorized to appoint a city controller. Act No. 55, Laws 1857, chap. 2, § 2. At this time the mayor was not a member of the council. Id. chap. 5, § 1. The common council continued to appoint the city controller by resolution, and independently of the right of the mayor to nominate, up to 1880. In 1881 an act was passed giving the mayor the right to nominate the city controller. Act No. 405, Local Acts 1881, § 2. But up to 1881 the authority to appoint the city controller and the members of the board of water commissioners was vested absolutely in the common council. The mayor had no voice in the selection of these administrative officers. The common council was also authorized to appoint one or more street commissioners anda marshal. Act No. 55, Laws 1857, chap. 2, § 2; Act No. 136, Laws 1861, § 2.

There is no provision of the Constitution which makes it imperative that the selection of these administrative officers must be confided to the executive officer of the city. The Constitution does provide, by section 14, art. 15, that “judicial officers of cities and villages shall be elected, and all other officers shall be elected or appointed, at such time and in such manner as the legislature may direct.” The Constitution does not provide, however, either directly or indirectly, the manner in which city and village officers shall be appointed. People v. Hurlbut, 24 Mich. 63 (9 Am. Rep. 103). It follows that the right to appoint them is not inherent in the executive or any other branch of the city government. That question is left to the discretion of the legislature to determine which branch of the local government shall exercise the power of appointment.

Counsel for relators cite the case of Commissioners of Parks & Boulevards of Detroit v. Common Council of Detroit, 80 Mich. 663 (45 N. W. 508), as sustaining the contention that the power of appointment could not be, given by the legislature to the common council. That case does not sustain such contention. There the authority had been conferred by the legislature on the park commission, and under the act could not be directly exercised by the council; but the power of the legislature to confer upon the- common council appointive power was not questioned.

Section 1, art. 4, of the Constitution, provides that “the legislative power is vested in a senate and house of representatives. ” Counsel for relators contend that this includes the whole legislative power within the State, including that delegated to the legislative bodies of municipal corporations ; and that, as the legislature cannot exercise any but legislative powers, it can delegate only such powers to a common council, and that an act conferring administrative functions upon it would be void under the provision of the Constitution above quoted. The history of legislation in this State shows that the legislature has'never so construed this provision, and any such construction would overturn most of the city charters in the State. ' The general act for the incorporation of cities provides: “The following officers shall be appointed by the council, viz.: A city attorney, city surveyor, engineer of fire department, and three school inspectors.” 1 How. Stat. § 2427. It is true that in most cases the mayor is the presiding officer of the council, but he is allowed to vote only in case of a tie. It is also true that during a long period the mayor of Detroit was a member of the common council, but as such he was a member of the legislative body of the municipality, and was not then performing executive duties.

Mr. Justice Cooley said in Board of Park Com'rs of Detroit v. Common Council of Detroit, 28 Mich. 228 (15 Am. Rep. 202):

“The Constitution has not pointed out the precise extent of local powers and capacities, but has left them to be determined in each case by the legislative authority of the State, from considerations of general policy, as well as those which pertain to the local benefit and local desires.”

We find no provision of the Constitution which prohibits the legislature from conferring upon the common council of Detroit the power to make this appointment, and certainly the legislative construction of the Constitution from 1850 to the present time has been in favor of such power.

But it is contended by counsel for relators that the city of Detroit enjoyed the right of local self-government at the time of the adoption of the Constitution of 1850, with the division of powers vesting the mayor with the executive power of nomination of all city officers other than ministerial, and vesting the council with legislative powers, but not with the power of appointment of city officers other than ministerial; that, therefore, the mayor’s power of appointment then existing must now be recognized, and the legislature cannot, by legislative enactment, take such power from him. We think there is no force in this contention. As early as 1824 the territorial legislature placed the power of appointment of administrative officers in the city of Detroit in the common council. At that time the common council consisted of the mayor, recorder, and the five aldermen of the city; and the majority of the council was given the power to make by-laws and ordinances, and was also empowered to appoint the administrative officers of the city. This power continued in the council at the time of the adoption of the Constitution of 1850. The mayor was a member of the legislative body, and in the naming of the administrative officers of the city was not acting in any executive capacity. It cannot be said that the people, in adopting the Constitution, recognized the exclusive right in the mayor of Detroit to appoint the administrative officers of the city. It would be as logical to claim that the right in 1850 to make such appointment rested in the common council, and that the legislature could not take away that right from it. That question, we think, needs no further consideration.

We are satisfied that the act is valid, and that it was the legitimate exercise of legislative discretion in taking the power of appointment from the mayor and placing it in the common council. The respondent’s title to the office must be confirmed, with costs.

The other Justices concurred.


text:
    HALLETT v. GORDON.
    1. Appeal — Reversal of Judgment — Res Judicata.
    The reversal of a judgment for a breach of contract, on the ground that there were no contract relations between the parties, is not res judicata of the right to maintain an action for fraud and deceit growing out of the same transaction.
    2. Fraudulent Representations —Assumpsit—Sufficiency of Declaration.
    A declaration in assumpsit for fraudulent representations, authorized by 3 Comp. Laws, § 10421, need not set up the statute, though it would be better pleading to do so.
    3. Same — Fraud of Agent.
    Under said statute, assumpsit may be maintained against an agent for fraudulent representations by which plaintiff was induced to enter into a contract with the principal.
    Error to Livingston; Smith, J.
    Submitted June 5, 1901.
    Decided October 1, 1901.

      Assumpsit by Jennie Hallett against Thomas Gordon, Jr., for fraud and deceit. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      William P. Van Winkle and Fred H. Warren, for appellant.

      E. A. Stowe and Louis E. Howlett, for appellee.
   Moore, J.

This case has been in this court once before, and is reported in 122 Mich. 567 (81 N. W. 556). In an opinion by Hooker, J., it was held the contract sued upon was void under the statute of frauds; that the action being assumpsit for the breach of an alleged warranty, and no contract relations ever having existed between the parties to the record, the defendant could not be sued in this form of action, but plaintiff’s only remedy, if any, against this defendant, was an action on the case for the alleged fraud and deceit. Judgment having passed for the plaintiff below, it was reversed, and no new trial ordered. On a motion for a rehearing, counsel for appellee called the court’s attention to a recent statute (3 Comp. Laws, § 10421) which provides for an action of assumpsit in certain cases where formerly only an action on the case could be brought. In an opinion reported in 122 Mich. 573 (82 N. W. 827), the court directed a new trial. The case was remanded to the circuit court, where, on a second trial, with the same declaration, plaintiff recovered another verdict and judgment. The general history of the case is so nearly alike in both trials that a detailed statement will be made unnecessary by a reference to the opinion of the court in 122 Mich. 567 (81 N. W. 556).

The defendant claims that, upon the record as it stands, no recovery can be had, and the circuit judge should have directed a verdict in his favor:

1. Becausó, as to all questions affecting the real merits of the case, the matter is res adjudicata.

2. Because 3 Comp. Laws, § 10421, did not warrant a retrial of the case upon the same declaration.

3. Because 3 Comp. Laws, § 10421, does not authorize an action of assumpsit for a mere naked tort.

As to the first of these reasons, the record discloses that, upon the former trial, the plaintiff sought to recover for a breach of the contract, and this court held that,' as there were no contract relations between the parties, defendant could not be guilty of a breach of the contract. Upon this trial the plaintiff sought to recover, not for a breach of the contract, but for fraud and deceit, which was not the same issue which was litigated before.

It is insisted by defendant that, before he could be held liable, the declaration should have been amended so as to bring him within the terms of the statute. The statute reads:

The People of the State of Michigan enact, that in all cases where, by the fraudulent representations or conduct of any person, an injury has been or shall be produced, either to the person, property, or rights of another, for which an action on the case for fraud or deceit may by law be brought, an action of assumpsit may be brought to recover damages for such injury, and in all such cases a promise shall be implied by law to pay all just damages arising from such fraud or deceit, and may be so declared upon.”

It would doubtless be better pleading to refer to the statute in the declaration in such a way as to advise the defendant that plaintiff claimed he was within its provisions. In this case the declaration set up the representations made by the defendant, which she claimed were false and fraudulent, and for which she might bring an action on the case for fraud and deceit. Having done this, she brought herself within the terms of the statute, and, if the proof warranted it, would be entitled to recover.

As to the third proposition, counsel says:

“If this suit had been planted against Newcomb, I can very well see how an action of assumpsit for fraud and deceit, if any, might be maintained under this statute. As against him the plaintiff would have her choice of three remedies: Assumpsit for breach of warranty; an action on the case for fraud and deceit; or, waiving the tort, an action of assumpsit for the latter. But by what fiction of law a promise can be implied against this defendant, when in all he said and did he was simply the mouthpiece of Newcomb, is beyond my power to discern. That he is liable for his own tort, if any, no one will dispute; but that you can turn a contract, to which he was not a party, into a tort, and then shift it back into a new implied contract, and by virtue of the alleged tort make him a party to it, thereby laying the foundation for an action of assumpsit, is a species of legal legerdemain which is not easily understood, and ought not to be tolerated,” — citing Emerson v. Spring Co., 100 Mich. 133 (58 N. W. 659), and Bedier v. Fuller, 116 Mich. 128 (74 N. W. 506).

The first of these cases arose before the statute of 1897 was passed. The litigation in the other case began long before the statute was passed. The opinions in both cases were based upon the law as it existed before the enactment of the statute. The language of the statute is not ambiguous, and, while it is anomalous to say that one who perpetrates a fraud or practices deceit by implication promises to pay any damages that may result therefrom, we are not prepared to say the legislature may not provide that, for damages growing out of fraud and deceit, assumpsit may be maintained. Hallett v. Gordon, 122 Mich. 573 (82 N. W. 827).

Complaint is made of the rule of damages the court gave to the jury. His statement of the rule was not such a statement as was calculated to prejudice the rights of the defendant.

Judgment is affirmed.

The other Justices concurred.


text:
    MERRITT v. FOOTE.
    Street Railways — Injury to Traveler — Contributory Negligence.
    Plaintiff was injured by a collision with an electric car while attempting to drive across the track. The accident occurred on a clear morning, and plaintiff was familiar, in a general way, with the manner of running street cars. When some 60 feet from the track, which he was approaching on an intersecting street, he looked eastwardly, but, by reason of intervening objects, could see only about 9 rods down the track. He then looked to the west, and, although the view in that direction was unobstructed, continued so to look until struck by the car, which .came from the east. His horse was gentle, and was being driven on a walk; and, after it had reached a point 15 feet from the track, there was nothing to obstruct plaintiff’s view to the east. Held, that plaintiff was guilty of contributory negligence in failing again to look eastwardly, precluding a recovery for the injury; there being nothing in the case to warrant the application of the doctrine of precedent negligence, discovered by defendant in time to have averted the accident.

      Error to Jackson; Peck, J.
    Submitted June 5, 1901.
    Decided October 1, 1901.
    Case by- Levi Merritt against William A. Foote, receiver of tbe Jackson Street-Railway Company, for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.
    The plaintiff sued defendant to recover for injuries received by him when attempting to cross the street-car track of the defendant. The circuit judge directed a verdict in favor of defendant. A sufficient statement of the case is found in the following instruction of the court:
    “To entitle the plaintiff to recover in this action, it is necessary that he should show, by a preponderance of the evidence, that the defendant was guilty of the negligence alleged in the declaration; and, second, that he was himself, as he avers in his declaration, in the exercise of due care. Now, if we assume — as I do in this disposition of the case — that the plaintiff has established the first of these propositions, viz., that the defendant was guilty of the negligence charged, still he cannot recover unless he also established by a preponderance of the evidence the second of the propositions, viz., that he was himself in the exercise of due care, and did not, by his own negligence, at the time and under the circumstances, contribute to the accident and consequent injury. In my judgment, no view of the testimony which could be fairly taken by the jury would justify you in finding that the plaintiff was himself free from contributory negligence. Such parts of the evidence as it is necessary to refer to in giving my reasons for this instruction are substantially as follows:
    “The accident occurred.on the morning of September 28, 1899. It was a clear morning, and the collision happened about 10 o’clock. The plaintiff, who appears to be a man of good intelligence, and in middle life, had lived some years in this city. His business required him to travel about the city considerably. He was familiar, in a general way, with the manner in which cars were run upon the street railway; had seen them run at a high, and what he regarded as a dangerous, rate of speed, before the accident occurred. During a portion of his residence in Jackson he had lived at two different places for a short time on the line of the railway. At other times he had lived not far removed from the tracks. His present home, where I think he has resided about eight years, is not far removed from the street-car track. On the morning in question he was approaching Main street on Elm avenue, which crosses Main street in the eastern part of the city at about right angles. His horse was a fair traveler, was accustomed to the cars, and was not afraid of them. He was easily manageable, and subject to the control of the plaintiff. He was walking. When he arrived at about one rod south of the south line of the sidewalk on the south side of Main street, the plaintiff, for the purpose of seeing whether any cars were approaching, and it .was safe to make the crossing, looked eastwardly. By reason of obstructions that existed there, — trees and a house on the southeast corner, — he could only see eight or nine rods east of Elm avenue, and saw no car within his range of vision. He continued to drive towards the crossing on a walk, and looked west, and continued to look west until at or about the time the accident occurred. When he reached the sidewalk, probably, certainly when he reached the curb on the south side of Main street, he could easily see west to the Michigan Central passenger house, a distance of three-quarters of a mile. There was nothing to interrupt his vision at that time, and he saw that no cars were approaching from the west. He could, from that position, have looked east to the east end of the street-car tracks, a distance of half a mile, and could have seen any car approaching there within that distance. He did not look east, but, after satisfying him.self that no cars were approaching from the west, he continued to look west, at the people, he says, and did not turn his view to the east until just about the time that the car struck him. Now, the distance from the south rail of the street-car tracks to the curb on the south side of the street was 25 feet, and it was 44 feet to the south line of the sidewalk. His vehicle, from the nose of the horse to the extreme rear end of the wagon, was about 18 feet. His seat was about 10 feet from the nose of the horse, and about 8 feet from the rear end of the wagon; so that, when his seat reached the curb, where he would have a perfect view both up and down Main street, the head of the horse would be about 15 feet from the south track of the street-railway company.
    “Now, it was the plaintiff’s duty to use his eyes and ears to avoid danger. It was his duty to look and listen in both directions, and if he failed to do so, and his failure to perform that duty, to exercise that care, contributed to the accident which followed, and resulted in the injury, he cannot recover. In my judgment, the proof plainly and indisputably shows that the plaintiff failed to perform that duty. He did not look east at all after he could see more than eight or nine rods. He did not at least after he came out onto the street, and when he might have seen any car approaching within half a mile. Now, if his carelessness in that regard contributed to his injury, to the accident, it will bar his recovery; and I think there is no room for a difference upon these proofs that it did contribute to the accident. If he had looked, he positively, under the evidence, would have seen the approaching car, and would have seen it approaching at rapid rate. * * * It was imprudent for him to cross, or to attempt the crossing, under the circumstances, wherever the car might have been, and approaching at such arate of speed. * * *
    “Under the testimony, this car was approaching at a rapid rate of speed. It has been argued to me upon this motion by the plaintiff’s counsel that the testimony justified the jury in believing that it was approaching at certainly 20 miles an hour, probably 30 miles an hour. When he should have looked east to see it, he must have been within the distance between the curb and the south rail, which could not have exceeded 25 feet, and his horse’s head must have been within 15 feet of the rail. The danger of injury would exist whenever either the horse, or any part of it, or the wagon, or any part of it, was on the track as the car came; so that at the utmost the horse’s nose must have been within 15 feet, at least (probably less), of the track, when the plaintiff ought to have looked east to see whether the car was coming. Now, if he had looked east at that time, he would have seen a car approaching, and would have seen it approaching at a rapid rate of speed, very rapid. Now, he did not stop his horse; he let him walk along; made no effort to stop him, or to accelerate his speed, until the horse got on the track. The interval that elapsed there would aid in determining how far the car was away when he might have seen it if he had looked. Its distance away might, to some extent, be determined also by the effect of the collision and the distance the car went after the collision. This is the evidence, substantially, upon which reliance may be placed in determining how far back of the actual place of collision the car was when he might have seen it; and his distance from the car track, and the rate of speed which he was driving, also would determine that question. Substantially the question of fact to be determined by the jury would be this: Whether, in the exercise of ordinary prudence, under the circumstances, at the time he should have looked and seen the car approaching, whether it was a reasonable thing for him to attempt to make the crossing in the manner he did, or otherwise.
    “Now, if he had seen the car coming, he would be entitled, if he could reasonably expect to make the crossing in safety, to attempt to do it, considering the rapidity with which the car was coming, and his own position with reference to it. If such an attempt would not be reasonable, he should have stopped. Under this evidence I am satisfied that Mr. Merritt could not reasonably expect to make that crossing if- he had seen the car coming at the rate of speed that it must have been coming, and the rate of speed he was traveling, and the distance he was from the street-car track. In fact, I think that no reasonable man, under the evidence, could have reached the conclusion that it was a safe thing for him to do, a prudent thing for him to do. On the other hand, it was certainly, under all the evidence, an imprudent thing for him to do. Therefore I think that it leaves no question to be submitted to the jury in that respect. Now, the car struck his front wheel just after the horse had cleared the track on the north side. That indicates also the distance he must have had to travel from the time when he could have seen the car if he had looked; and his rate of speed and manner of driving are also evidence, which, with all the other testimony in the case, makes it conclusive to my mind that he attempted that crossing imprudently, incautiously, and carelessly; and the effect of that was to contribute to the accident, and therefore it cannot be said that he was himself in the exercise of due care, and for that reason he cannot recover.”

      Blair, Smith & Townsend, for appellant.

      Wilson & Cobb, for appellee.
   Grant, J.

(after stating the facts). I think the court was correct in directing a verdict for the defendant, and in the instruction quoted gave the sound rule of law applicable to the case. In addition to the facts stated in the opinion of the circuit judge, the plaintiff testified that, when he had reached the curb, there was nothing to hinder his seeing the car a long way; that there was nothing to obstruct his vision; that he might have seen the car if he had looked. If he had looked, and seen the car approaching in such close proximity, it is conceded that he would have been guilty of contributory negligence in attempting to cross in front of it. The distance from the curb line to the south rail was 25 feet. A glance to the east, occupying but a fraction of a second, would have shown him the approaching car. His view to the west was unobstructed as he approached the street. He knew there was no car coming from that direction. He knew that his only danger was from the east. He chose to rely upon his glance to the east, when he could see a few feet only of the track. It is clear from the testimony that he should have expected a car from the east about that time.

It requires no argument to show that greater diligence is required by travelers crossing highways on which are street cars than upon those where there are none. The public demands rapid transit, and ponderous cars are required and permitted to be used. They must go faster than the ordinary vehicles, and are permitted to do so by the ordinances of every city, unless it be in the most crowded thoroughfares. They cannot be stopped as speedily as vehicles drawn by horses. There is a reciprocal duty on the part of the street-railway companies, through their motormen, to watch and keep their cars under control as far as practicable.

Is it reasonable to permit plaintiff to recover when the slightest care upon his own part would have avoided the accident? There is no claim of intentional or willful wrong on the part of the motorman. I find no probative evidence in the record that the gong was not sounded. Two or three witnesses say they did not hear it, but they do not testify that they were listening, or paying any attention; on the contrary, it is evident they were not. The whole affair happened in a few seconds from the time the plaintiff reached the line of vision so that he could see the car and the motorman could see him. The nose of his horse was then 15 feet from the track. At what point was this motorman chargeable with knowledge that plaintiff intended to drive across the track in front of him? Not until the motorman had reason to believe that plaintiff did not intend to stop was he called upon to apply his brakes and shut off the current. Plaintiff’s horse was on the walk. He could have stopped his horse with perfect safety when his nose was within three feet of the line of the car. The negligence of the plaintiff is conceded, and, in my judgment, it is nothing short of gross negligence. His negligent act, which resulted in his injury, was almost simultaneous with the act of the motorman, if he was guilty of any; and the two negligent acts caused the disaster. This is a case of simultaneous negligence. If it be held that the motorman should have seen and known that this plaintiff was unconscious of danger, — unconscious of the approaching car, — and therefore guilty of willful negligence in running him down, what becomes of the doctrine of contributory negligence, which is firmly established by the numerous decisions of this court ? We have distinctly repudiated the doctrine of comparative negligence. I think the case falls squarely within that of Richter v. Harper, 95 Mich. 221 (54 N. W. 768), written by my Brother Montgomery, in which he said:

“It is urged by plaintiff’s counsel that the negligence of defendants was so gross and willful as to excuse concurring negligence on the part of the plaintiff; it being claimed that, where the negligence of the defendant is gross or willful, the contributory negligence of the plaintiff is not a defense. This is but another way of stating the doctrine of comparative negligence, which has never obtained in this State.”

The case, in my judgment, comes expressly within the doctrine established by the following decisions of this court: Hine v. Railway Co., 115 Mich. 204 (73 N. W. 116); Fritz v. Railway Co., 105 Mich. 50 (62 N. W. 1007); McGee v. Railway Co., 102 Mich. 107 (60 N. W., 293, 26 L. R. A. 300, 47 Am. St. Rep. 507); Bennett v. Railway Co., 123 Mich. 692 (82 N. W. 518); Hills v. Foote, 125 Mich. 241 (84 N. W. 139).

This is not a case for the application of the doctrine that plaintiff may recover, notwithstanding his own negligence exposed him to risk, if the injury was caused by the negligent act of the defendant after he had become aware of plaintiff’s danger. Such a case was that of Laethem v. Railway Co., 100 Mich. 297 (58 N. W. 996), where plaintiff’s milk sleigh stood close to the track while he was engaged in lifting a can out of his sleigh to transfer it to the sleigh of another. Neither is it the case of Ryan v. Railway Co., 123 Mich. 597 (82 N. W. 278), in which the plaintiff looked 75 or 80 feet, and judged that he had time to cross before a car would come. When one can readily see danger immediately threatening, and can easily avoid it, it is his duty to do so; and, if he is injured, he alone must bear the consequences.

The judgment is affirmed.

Montgomery, C. J., Hooker and Long, JJ., concurred. Moore, J., took no part in the decision.


author: Montgomery, 0. J.

text:
    WESTON v. GRAND RAPIDS PUBLISHING CO.
    1. Libel — Evidence—Provocation.
    In an action for libel, articles published by plaintiff as editor of a rival paper, reflecting on stockholders in defendant company, none of which related to the subject-matter of the libel complained of, and to which the libelous article could not be deemed a reply, were inadmissible to show provocation or to excuse the libel.
    2. Same — Misconduct in Office.
    An article referred to plaintiff as president of the police and fire commission, and his statement that the people of the city had lost much money in slot-machine gambling during the past two years; inquired why he had not stopped it before; and concluded thus: “Who stopped ‘putting up?’ Who purchased immunity for this vice ? How much did they pay? To whom was it paid?” No other person was mentioned in the article. Held, that it charged plaintiff with misconduct in office in accepting bribes, and that evidence of misconduct on the part of other members of the board, and of plaintiff’s predecessors, was properly excluded.
    Error to superior court of Grand Rapids; Wolcott, J., presiding.
    Submitted June 6, 1901.
    Decided October 1, 1901.
    Case by William B. Weston against the Grand Rapids Publishing Company for libel. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      T. F. & W. R. Me Garry (Kingsley & Wicks, of counsel), for appellant.

      Burlingame & Belden {William E. Grove, of counsel ), for appellee.
   Montgomery, 0. J.

Defendant published the following article, referring to the action of plaintiff as president of the police and fire board of Grand Rapids:

“WHO CAN EXPLAIN?
“President Weston, of the police and fire board, tells, in his personal organ, the Chronicle, how the poor people of this city have lost hundreds of thousands of dollars a year in slot-machine gambling during the past two years. Mr. Weston states that there have been at least 600 of these slot machines in use, and that some of them have made for their owners as high as $1,200 a year. Mr. Weston admits that practically this condition of affairs has existed for at least two years. He tells tearfully of laborers losing their money in these slot machines ‘until their families have been left in need,’ and of ‘children wasting pennies and nickles upon the selfish little tempters/ Then he tells how board, grocery, and market bills have gone unpaid because of the slot machines. This may all be true; but what the people on the streets and in the shops are wondering and talking about is why, if it was all so terrible, it was not stopped before. How could President Weston allow such a terrible state of affairs to run along month after month, when he could have stopped it months or years ago, as well gs this month ? Who stopped ‘ putting up ? ’ Who purchased immunity for this vice ? How much did they pay ? To whom was it paid ? ”

A large number of articles were admitted in evidence, which were published by plaintiff, as editor of a rival paper, which cast aspersions upon the defendant company, its stockholders and managers. These articles in no way referred to slot machines, and the court admitted them only as bearing upon the question of malice. Other articles published by plaintiff, reflecting on individual stockholders in defendant company, were offered by defendant, but were excluded. None of these articles related to the same subject-matter as that contained in the libel complained of. The libelous article could in no sense be deemed a reply to the articles offered in evidence. The articles, therefore, were not admissible as tending to show provocation or to excuse the libel. See Brewer v. Chase, 121 Mich. 526 (80 N. W. 575, 80 Am. St. Rep. 527); Smurthwaite v. Publishing Co., 124 Mich. 377 (83 N. W. 116); Maynard v. Beardsley, 7 Wend. 560 (22 Am. Dec. 595); Newell, Defam. p. 519.

The court charged the jury that the article charged plaintiff with misconduct in office, and refused to admit testimony tending to show misconduct on the part of other members of 1 the board and of plaintiff’s predecessors. This ruling was correct. No other name is mentioned in the article, and it is difficult to conceive how any body could read it without understanding that it charged the acceptance of bribes by the plaintiff.

This discussion covers all the points made in appellant’s brief requiring special notice.

The judgment will be affirmed.

The other Justices concurred.


text:
    FOSTER v. INGHAM CIRCUIT JUDGE.
    Circuit Court Commissioners — Master in Chancery — Compensation.
    3 Comp. Laws, § 11219, provides that circuit court commissioners shall toe allowed a certain amount per folio for drawing every report, and the schedules annexed thereto, under an order of reference, and a certain amount for certifying each exhibit shown to a witness. A commissioner was appointed master in chancery to examine the account of a bank receiver, and make report to the court of his conclusions in relation thereto. There was no contest, and all the vouchers and exhibits had been filed with the court, and were part of the records. The commissioner swore the receiver, and took down his testimony, which he returned with his report, but which he was not required to do under the order. Held, that the commissioner acted in a judicial, and not in a ministerial, capacity, his duty being to pass on the receipts and expenditures, and determine their legality; and that he was not entitled to the compensation fixed by the statute for taking such testimony and certifying to the exhibits.

      Mandamus by Charles W. Foster, circuit court commissioner of Ingham county, to compel Howard Wiest, circuit judge of said county, to allow a claim for compensation.
    Submitted September 24, 1901.
    Writ denied October 1, 1901.
    The receiver of the Central Michigan Savings Bank tendered his resignation, and filed his account with the circuit court for the county of Ingham, in chancery. His resignation was accepted, and the relator, a circuit court commissioner, was appointed as master in chancery to examine said account, and make report to the court “of his doings in the premises, and of his conclusions as to such matters of account.” He was authorized by the order to examine witnesses, if necessary. The account extended over several years, and involved an examination of many vouchers and exhibits, — 1,002 in number. There was no contest. The relator swore the receiver and his clerk, and took 951 folios of testimony, which he returned, with his report. The vouchers and exhibits had all been filed with the court, and were part of the records in the case. Upon filing his report, the court, through Judge Person, the then circuit judge, entered an order allowing relator $315 for his services. Subsequently he presented to the court a petition for further compensation. This claim consisted of the following items:
    951 folios in the commissioner’s report, at 20 cents per folio........................-...............$190 20
    Certifying to 1,002 exhibits, at 25 cents each______ 250 50
    Swearing four witnesses, at 25 cents each......... 1 00
    Issuing and serving seven citations................ 2 50
    Two adjournments, at 50 cents each_______________ 100
    Total.......................................$445 20
    The court refused to allow the two items for 951 folios and for certifying 1,002 exhibits. The relator asks the writ of mandamus to compel their allowance.

      Charles F. Hammond, for relator,

      jRollin H. Person, for respondent.
   Grant, J.

(after stating the facts). The court held that the $315 was a reasonable allowance for the services rendered. Kelator claims that his fees for these two items are fixed by section 11219, 3 Comp. Laws. The clauses of the statute relied on are that the commissioner shall be allowed “for drawing every report, and all schedules to be thereto annexed, in pursuance of an order of reference to him (except in case of reference to compute amount due on mortgage), 20 cents for each folio,” and “for certifying each exhibit shown to a witness, 25 cents.”

The relator, as master in chancery, was not acting in a ministerial, but' in a judicial, capacity. He was not directed by the order to take and return to the court testimony for its action. It is doubtful if he was required to reduce to writing any testimony which he deemed it proper to take. He was to pass upon the various receipts and expenditures of the receiver’s account, and determine whether they were legal, correct, and proper. All the exhibits were already in court, and were not shown a witness, within the meaning of the statute.

The order denying the petition was correct, and the writ is denied.

The other Justices concurred.