author: Hooker, J.

text:
    VAUGHAN v. WAYNE CIRCUIT JUDGE.
    Action — Stay op .Proceedings — Courts—Powers.
    A court has general power to postpone the hearing of an action at law until after the hearing of a suit in chancery involving the same matters when both causes are before it, and the determination of the chancery suit will conclude all of the parties to the action at law, while the determination of the law case would not bind all of the parties in the chancery case.
    Mandamus by Jay W. Vaughan and Joseph C. Dumont, copartners as Vaughan & Dumont, to compel Flavius L. Brooke, circuit judge of Wayne county, to set aside an order denying a motion to advance a law case upon the docket.
    Submitted May 26, 1908.
    (Calendar No. 22,884.)
    Writ denied July 1, 1908.

      Choate & Webster (Leo M. Butzel, of counsel), for relators.

      C. K. Latham and W. O'. Stuart, for respondent.
   Hooker, J.

The relators were subcontractors under-Goddard, who was principal contractor, in relation to certain work upon the Ford building in Detroit. They claim to have performed that work, and on March 19, 1907, they filed a claim of lien. On March 21, 1907,. they filed a bill to enforce said lien. The defendants in that proceeding were Goddard, the contractor, and Ford, the owner of the premises. Goddard answered April 30th, Ford May 27th. Replications to these answers were filed May 3d and June 7th, respectively. On June 7th a notice of taking testimony in open court was filed.

On March 22d relators began an action at law against Goddard for $39,879.01 for the same claim, and plea was filed on May 18, 1907. Both cases were in the Wayne circuit.

■ On April 10, 1908, there was a call of the chancery docket, and the lien case was called in its regular order for hearing, when relators’ counsel stated that he thought that it would be impossible for Dumont, one of the complainants, to be present, and that he was a material witness. Defendant’s counsel then stated that they were ready to proceed to the hearing of the chancery case, but did not wish to force the case to a hearing until Dumont could be present, and the court then passed the case to the next call.

Four days later, Dumont having returned to the city, relators filed a motion to have the law case advanced on the docket, and set for trial before May 1, 1908. The motion was based on an affidavit of said Dumont, stating that he was soon to go west and would not be able to return for the trial of said cause. The presiding judge thereupon stated that, under the facts as they appeared, he was of the opinion that relators should either first try the chancery case or discontinue the same, and that he would deny the motion to'advance the law case and set it for trial before May 1st.

On April 80, 1908, the law pase was called in its regular order to be set for trial, and respondent refused to set the same for trial, without first dismissing or trying the chancery cause. On May 15, 1908, relators’ counsel insisted that as the case had been reached in its regular turn to be set for trial, they had a right to proceed to judgment therein, without first trying or dismissing the chancery cause, and the respondent then took the question up with all of his associates, except one who was absent, and all being of the opinion that the chancery cause should be tried first, respondent then refused to set said law case for an early date. Thereupon the chancery cause was set for hearing by Judge Bohnert on May 19, 1908. Afterwards a stay of proceedings was granted in that cause, pending the determination of this proceeding, which is an application for mandamus to compel the trial court to set aside the order made by respondent, and to bring on said law case for trial forthwith.

The return shows that relators seek a personal decree against defendants, and that in the law case relators commenced garnishment proceedings and defendant Goddard gave a surety company’s bond in double the amount claimed by relators to release such garnishment proceedings and pay any judgment recovered by them. Also that a judgment in the law case will not determine the controversy in the chancery proceeding.

That a judge may postpone the hearing of an action at law until after the hearing of a cause in chancery involving the same matter, has been frequently held when both causes are before him, and in many cases the same power has been exercised when the chancery cause is before another court, — a very different proposition from an order attempting to stay the proceedings pending in another court. This is a case warranting such procedure, if any case is, for the reason that every question involved in the law case is also before the court of chancery, and while the determination of the law case would not bind all of the parties in the chancery cause, all parties in both cases will be concluded as to every question decided in the chancery cause. This power is a general one and extends beyond the class of cases of which this is a sample, as will be seen from the authorities hereinafter cited. It is unnecessary to discuss its limitations, it being sufficient to say that the authority covers this case. The case of Purington v. Frank, 2 Iowa, 565, is a similar case to this in many respects. See, also, Hammond v. Baker, 3 Sandf. (N. Y.) 704; Flanagan v. Flanagan, 13 N. Y. St. R. 432; Scule v. Corning, 11 Paige Ch. (N. Y.) 412; Burlingame v. Parce, 12 Hun (N. Y.), 149; Brown v. May, 17 Abb. N. Cas. (N. Y.) 205; Cushman v. Leland, 93 N. Y. 652; Den v. Matlack, 17 N. J. Law, 354; Hutchins v. Riddle, 12 N. H. 464; Adams v. Manning, 17 Mass. 179, 180; Parmalee v. Wheeler, 33 Wis. 439; Jones v. Pritchard, 6 D. & L. Pr. Cas. 539; Carne v. Legh, 6 B. & C. 124.

See Joslin v. Millspaugh, 27 Mich. 517, which recognized the doctrine of election of remedies; McGunn v. Hanlin, 29 Mich. 476, 479.

The writ is denied.

Montgomery, Ostrander, Moore, and McAlvay, JJ., concurred.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    GLAZIER v. INGHAM CIRCUIT JUDGE.
    1. Mandamus — Change of Venue — Matters Considered — Matters not Presented Below.
    On mandamus to compel a circuit judge to set aside an order denying a change of venue, matters contained in the petition and brief for relator that were not presented to the circuit judge, and were not within the grounds assigned in the motion, will not be considered.
    3. Criminal Law — Venue—Change—Right of Accused.
    The defendant in a criminal case has no absolute right to a change of venue; such right depending upon a showing of cause.
    3. Same — Denial—Discretion of Court — Control by Mandamus.
    Where the showing made to secure a change of venue in a criminal case is met by counter affidavits which call for the exercise of the sound judgment and discretion of the circuit judge, his decision ought not to be disturbed by this court by mandamus except in case of a clear abuse of discretion.
    4. Same — Sufficiency of Showing — Abuse of Discretion:
    Where the most of the showing in support of a motion for a change of venue in a criminal case would apply to all the populous counties of the State, and the showing of actual prejudice is met by counter affidavits which call for an exercise of sound judgment on the part of the circuit judge, no abuse of discretion in denying the motion appears.
    Mandamus by Frank P. Glazier to compel Howard Wiest, circuit judge of Ingham county, to vacate an order denying a change of venue.
    Submitted May 36, 1908.
    (Calendar No. 33,864.)
    Writ denied July 1, 1908.

      J. 8. Gorman and A. J. Sawyer, for relator.

      WalterS. Foster, Prosecuting Attorney, for respondent.
   Per Curiam.

Three indictments have been returned and filed against relator upon presentment by a grand jury for the county of Ingham charging him with criminal violations of his official duties as State treasurer.

For the purpose of obtaining a. change of venue, relator applied to respondent, by motion supported by affidavits of his son, of Mr. Gorman, his attorney in the criminal cases, and of Mr. Kirkby, attorney, of the city of Jackson, requesting that the venue be transferred to Jackson county. The grounds of the motion are as follows:

“1. Because the defendant cannot have a fair and impartial trial in the circuit court for the county of Ingham aforesaid, upon the three indictments filed against him for that Fred M. Warner, the governor of the State of Michigan, has, by his personal, official and political influence, prejudiced and poisoned the people of the county of Ingham against this defendant.
“2. This defendant cannot have a fair and impartial trial on the three above named indictments, in the said county of Ingham, because of the inaccurate, partial and prejudicial accounts of the defendant’s transactions involved in each of said prosecutions under each of said indictments, published by the newspapers of Ingham county and the newspapers published outside of said county and circulating therein.
“3. This defendant cannot have a. fair and impartial trial in the said county of Ingham because of the fact that the three indictments found against this defendant by the grand jury of Ingham county at the January term, 1908, consisting of, to wit: twenty men, selected from all parts of the county of Ingham and residents of said county, have aroused public attention and caused such comment, not only in the public newspapers circulated in said county, but in the immediate neighborhood and among the friends and associates of each of said jurors respectively, causing said people to form fixed opinions on the subject of the guilt of defendant as charged in each of said indictments respectively.
“4. This defendant cannot have a fair and impartial trial in said county of Ingham because of the suspension of the Glazier & Gay bank at Stockbridge, in said county, in which many residents of said county were depositors in said bank, who, bearing great loss of their deposits, believe said defendant guilty as charged in each of said indictments respectively.
“ 5. This defendant cannot have a fair and impartial trial in said Ingham county because of the personal, official and political influence of Governor Warner against this defendant; because of the prejudice and bias occasioned by the actions of the grand jury towards this defendant; because of the newspaper publications in Ingham county and papers circulated in Ingham county, giving inaccurate and prejudiced statements with reference to defendant’s official conduct; because of the failure of the Glazier & Gay bank at Stockbridge, which occasioned much comment and criticism by the people in that part of Ingham county against this defendant, causing great local prejudice therein, and causing much odium attached to this defendant.”

Respondent denied the motion, making the following statements orally in connection therewith:

“ It should be kept in mind that the respondent is not and has not been a resident of Ingham county and that the indictments against him relate to his doings while he was State treasurer and the venue is here because the Capitol is in this county.
“ The cases are local, only because the venue must be laid here at the seat of government. The principal affidavit in support of the motion is that of the respondent’s son who lives in Washtenaw county, and who neither deposes on actual knowledge of local conditions here, nor discloses the sources of the information upon which he bases his conclusion — at least, that is the opinion I get from his affidavit.
“This court cannot take judicial notice that the governor of this State, by personal, official or political influence, moves the people of this county any more than those of Jackson or any other populous county, and can give little or no weight to respondent’s son’s conclusion that the governor has poisoned the minds of our people against his father.
“The newspaper clippings are from a Detroit paper of State-wide circulation and of which the people here are no more partial than those in Jackson county.
“The failure of the Glazier & Gay private bank at Stockbridge affected the people in the extreme southern part of the county, and socially and commercially, it is safe to say, the people there are, by reason of direct railroad communication, more closely allied to Jackson than Lansing or Mason, and the three jurors from Stockbridge, White Oak and Ingham can easily be excused from sitting in the case. That because twenty grand jurors from all parts of the county presented the indictments should cause the trial to be held in some other county would be so novel a ground, if considered good cause, as to astound the States where all persons must be put on trial by way of indictment, and cannot be taken as good cause.
‘ ‘A statutory proceeding by the people, and once the only method of procedure, and yet maintained by the Federal government and many States, cannot be considered prejudicial to the right of fair and impartial trial. The respondent is of right entitled to a fair and impartial trial and no good causeas shown to exist to prevent him from enjoying such right in this county.”

Relator applied to this court for the writ of mandamus to require respondent to grant his motion, and the matter is now before us upon respondent’s return to the order to show cause. Such matters contained in the petition and brief for relator as were not presented to the respondent and not within the grounds assigned in the motion are not proper for our consideration, and are, therefore, disregarded.

Thirty counter affidavits were filed in behalf of the prosecution, from residents of the cities of Lansing and Mason and from each of the townships in the county, in which each of the affiants swore as to his community:

“ That in said community there has been some discussion of the indictments against said Frank P. Glazier, now pending in the said court and that he is familiar with the public sentiment in said community toward said Frank P. Glazier; that the people of said community have not, by reason of the personal, official or political influence of Fred M. Warner, by the publishing of the newspaper accounts referring to said indictments, by the action of the recent grand jury in said county, by the suspension of the Glazier & Gay bank at Stockbridge, nor for any other reason, become so prejudiced, biased or poisoned against Frank P. Glazier that it would be impossible to give said Frank P. Glazier a fair and impartial trial in said county of Ingham upon said indictments.
“ Deponent further says that he has good reason to believe and does firmly believe that a fair and impartial jury for the trial of said Frank P. Glazier on said indictments could be readily obtained in said Ingham county.”

The strongest showing as.to local prejudice is that contained in the affidavit of Mr. Kirkby, relating to the sentiment in the village of Stockbridge. This affidavit is met by the affidavit of William Craig of the township of Stockbridge, and, even if its force were unimpaired, would not alone be sufficient to require this court to reverse the ruling of the respondent. 4 Enc. PI. & Prac. p. 398 (3).

The defendant in a criminal case has no absolute right to a change of venue. Such right depends upon a showing of cause to be made by him. And where, as in this case, most of the showing made would apply to-all of the populous counties in the State, and the showing of actual prejudice is met by counter affidavits which call for the exercise of the sound judgment and discretion of the circuit judge, his conclusion ought not to be disturbed by this court except in case of a clear abuse of discretion. People v. Peterson, 93 Mich. 27; 12 Cyc. p. 243 d.

We find no evidence of any abuse of discretion on the part of respondent, and the writ is denied.


author: Ostrander, J.

text:
    ALLPORT v. MURPHY.
    1. Mandamus — Return—Conolusiveness.
    Where a mandamus ease is heard on the petition and answer to the order to show cause, averments of the answer must be assumed to be true.
    2. Hawkers and Peddlers — Meaning of Terms — Who Are Included.
    The popular meaning of the words “hawker” and “peddler,” and the meaning indicated by the derivation of the words, involves ideas both of the carrying of goods for sale and of an itinerant vender.
    3. Same — Ordinances — Legal Terms — Validity — Muskegon Charter.
    The charter of Muskegon empowers the common council “to license hucksters, peddlers * * * in the business of hawk, ing and peddling, and to regulate the sale by peddling (directly or by canvassing for subscription) of goods, wares, merchandise * * * by persons going about from place to place in the city for that purpose.” (Act 469, Local Acts 1895, title 7, § 24, subd. 8.) Ad ordinance of the city provided: “Any person or persons who shall go about from house to house or place to place and sell or offer to sell any article of trade or commerce to be delivered then or in the future shall be deemed a hawker and peddler within the meaning of this ordinance.” A warrant for the arrest of one charged with going about from place to place in the city taking orders for teas, coffees and baking powders, etc., from persons who were not dealers in these commodities, was refused upon the ground that such person was a citizen merchant who solicited orders and filled the same from goods kept in his store, and that such method of conducting his business did not make him a hawker and peddler under the general statutes, the charter or the ordinance. Held, that the common council did not attempt to prescribe by the ordinance a new definition for the legal terms “hawker” and “peddler,” but the ordinance was only an exercise of its charter power, and, applying alike to all persons, was valid.
    Certiorari to Muskegon; Sessions, J.
    Submitted June 2, 1908.
    (Calendar No. 22,782.)
    Decided July 1, 1908.
    Mandamus by Jobn C. Allport to compel Patrick Murphy, a justice of the peace, to issue a warrant for the violation of an ordinance. There was an order denying the writ, and relator brings certiorari.
    Reversed, and writ granted.

      James E. Sullivan, for relator.

      Cross, Lovelace & Boss, for respondent.
    The respondent, justice of the peace and police justice of the city of Muskegon, refused to issue a warrant upon the complaint of relator, charging one Archibald Bryant with violation of an ordinance entitled: ‘ ‘An ordinance
    relative to hucksters, peddlers, hawkers and street venders.” Relator is license collector for the city and respondent the only judicial officer of the city not disqualified to hear the matter. An order to show cause why he should not receive the complaint and issue a warrant was made by the circuit court for Muskegon county; cause was shown, and, upon a hearing upon the petition and return, a writ of mandamus was refused.
    Section 1 of the ordinance reads:
    “ No person or persons shall engage in the business of hawking, pack or other peddling in the streets or other public places or from door to door, or in selling any article of trade or commerce whatsoever from a stand, stall, cart, wagon, pack, basket, or in any manner on any public street, parks, grounds, alleys, or places in the city of Muskegon, without first having obtained license therefor.”
    After setting out the method of obtaining a license, it is provided in section 6:
    “Any person or persons who shall go about from house to house or place to place and sell or offer to sell any article of trade or commerce to be delivered then or in the future shall be deemed a hawker and peddler within the meaning of this ordinance.”

      The penalty for violation of the ordinance is a fine and costs, and, in default of payment of such fine, imprisonment in the county jail, and there may be imposed a sentence of both fine and imprisonment. The complaint filed with the magistrate set out that the said Bryant was a resident and taxpayer of the city of Muskegon and owner of a small store on Washington avenue in that city, where he kept teas, coffees, and baking powders for sale in the usual course of trade; that the wife of said Bryant or someone else had charge of the store during his absence; that the store had been established since May 1, 1907. It is alleged in the complaint that for a period of three months next after July 5, 1907, the said Archibald Bryant—
    “ Did go from door to door and from house to house in said city of Muskegon taking orders for teas, coffees, and baking powders, in small quantities, to wit: for two pounds, one pound, and half pound quantities, from persons who were not dealers in such teas, coffees or baking powders. That the said teas, coffees, and baking powders were not delivered at the times in which the orders were taken but were afterwards put up by the said Archibald Bryant or under his direction from his stock of trade in the store aforesaid in the quantities so ordered by the different persons aforesaid, and thereafter delivered * * * to the persons so ordering them at their residences. * * * That the said Archibald Bryant did not confine his business as aforesaid to old customers but went from house to house and door to door in said city during the time aforesaid serving old customers and getting new customers. * * * That the said teas, coffees, and baking powders, in packages as ordered, were carried in a wagon and delivered to the persons that had ordered the same, by the said Archibald Bryant.”
    It is set out that this was the principal business of the said Bryant, in which his time was principally employed, and that he had not obtained a license and had not paid the fee necessary to obtain a license, and that he was engaged in the business of peddling teas, coffees, and baking powders without first having obtained a license therefor. In the answer to the order to show cause, respondent set out various reasons for his refusal to issue the warrant. He averred that the complaint stated no offense because it was not a violation of the ordinance for a citizen and taxpayer to solicit orders and fill the same from goods kept in his store in the manner mentioned in the complaint, and that such a method of conducting his business did not make him a hawker or peddler under the laws of the State, the charter, or the ordinance; that the said Bryant not only sold .at retail in his store teas, coffees, and baking powders, but also, and in the usual and customary manner of retail merchants, he kept and sold bottled mustard, cocoa, all kinds of spices and extracts, starch, tapioca, soda, rice, canned goods, breakfast foods, oatmeal, soaps, bluing, ammonia, crockery, tin and glassware, furniture, rugs, curtains, baked goods and candies, and that the taking of orders for and the delivery of goods sold in the manner set out in the complaint was a mere incident to the conduct of the retail store business.
    He further set up that at the January, 1908, term of the circuit court for the county of Muskegon, the said Archibald Bryant was acquitted of a similar charge upon a similar state of facts except that the time during which it was charged he violated the ordinance was a time preceding instead of subsequent to the 5th day of July, 1907; the court directing a verdict in favor of said Bryant upon the ground that he was not a hawker or peddler in fact or within the meaning of said ordinance. Respondent also asserts that if the ordinance requires the said Bryant to obtain a license as a hawker and peddler, it is invalid because in conflict with, and in violation of, section 33, article 6, of the Constitution of this State, and in conflict with, and in violation of, section 1 of the 14th Amendment of the Constitution of the United States.
   Ostrander, J.

{after stating the facts). I do not find in the record support for the claim that the warrant was refused and the case presented by collusion of the justice and the city attorney or that the person sought to be charged in the warrant which was applied for could, or would, if greater privileges had been extended to him, have presented in the return to the order to show cause any other or different reasons for refusing the warrant. There is precise precedent for the practice pursued, in Chaddock v. Day, 75 Mich. 527 (4 L. R. A. 809). Counsel seem to agree that the question is presented whether Archibald Bryant is a hawker and peddler within the meaning of the ordinance. It is averred in the answer to the order to show cause, and must be assumed to be true, that the conduct complained about was incident to the general retail business carried on by Bryant at his store.

The charter of the city empowers the common council to enact ordinances, etc.,—

“ To license hucksters, peddlers * * * in the business of hawking and peddling, and to regulate and license the sale by peddling ( directly or by canvassing for subscription ) of goods, wares, merchandise, refreshments or any kind of property or thing, by persons going about from place to place in the city for that purpose, or from any stand, cart, vehicle or other device in the streets, * * * open places or spaces, stores, offices and business blocks and places, public grounds or buildings in said city.” Act No. 469, Local Acts 1895, tit. 7, § 24, subd. 8.

The popular meaning of the words hawker and peddler and, perhaps, the meaning indicated by the derivation of the words, involves ideas both of the carrying of goods for sale and of an itinerant vender. Expressions of this conception of the meaning of the words are found in legislation and in judicial utterance. See 2 Rawle’s Bouvier, p. 642; Com. v. Ober, 12 Cush. (Mass.) 493; Village of Stamford v. Fisher, 140 N. Y. 187; Emmons v. City of Lewiston, 132 Ill. 380 (8 L. R. A. 328); Rex v.McKnight, 10 B. & C. 734; State v. Hogdon, 41 Vt. 139; City of Chicago v. Bartee, 100 Ill. 57; People v. Baker, 115 Mich. 199.

Our own statute, after describing those who must obtain a license (2 Comp. Laws, section 5324) excepts certain persons whose acts may bring them within the class (section 5330), and the excepted class has been recently enlarged (Act No. 120, Public Acts 1905; Act No. 225, Public Acts 1907). Whatever meaning may have been given to the words, anciently or in later times, it will be observed that the charter powers above recited extend to licensing and regulating the sale of any kind of property by persons going about from place to place in the city for that purpose. It may be admitted that the common council of Muskegon has not the power to prescribe new definitions for terms which already have legal definitions. It has not attempted to do so. It has, for the purpose of the exercise of a power to regulate sales made from house to house, provided (section 6):

“Any person or persons who shall go about from house to house or place to place and sell or offer to sell any article of trade or commerce to be delivered then or in the future shall be deemed to be a hawker and peddler within the meaning of this ordinance,” which is entitled, generally, as is above stated.

It is inaccurate, therefore, to say that the case turns upon the question of who is a huckster, or hawker, or peddler, as the words have been judicially defined, and decisions which rest upon a judicial construction of statutes or of ordinances in which the words are employed without qualification are not necessarily controlling or helpful.

The particular ordinance has been considered by this court in two cases,—City of Muskegon v. Zeeryp, 134 Mich. 181; City of Muskegon v. Hanes, 149 Mich. 460, —in the first of which it was held that the charter powers were sufficient to sustain this section of the ordinance and in both that it was violated by acts similar in character to those stated in the complaint in this case. See, also, City of Alma v. Clow, 146 Mich. 443. If these cases are not decisive of the case at bar, it is because the person who is here sought to be charged with a violation of the ordinance is a local, retail merchant, who keeps a store and who also does what the ordinance, in terms, prohibits. If section 6 of the ordinance does not apply to resident storekeepers, it is invalid upon the authority of City of Saginaw v. Saginaw Circuit Judge, 106 Mich. 32; Brooks v. Mangan, 86 Mich. 576. See James v. Sweet, 125 Mich. 132, 137; Chaddock v. Day, 75 Mich. 527 (4 L. R. A. 809). In terms it applies to residents and nonresidents alike, to storekeepers and those not storekeepers. The right of the city to exercise the power with respect to others than resident merchants is not denied. It is not claimed that the fee exacted is unreasonable. The constitutional questions raised by the return to the order to show cause are not argued in the brief. To sustain the order of the court below, we must read into the section the words, or their equivalent in meaning, “except resident merchants who have an established place of business.” Aside from rendering the section invalid, such an interpolation of words would be, in my opinion, bald judicial legislation.

The determination of the court below is reversed, with direction to grant the writ of mandamus. No costs are awarded.

Hooker, Moore, Carpenter, and McAlvay, JJ., concurred.


author: Grant, O. J.

text:
    GORDON v. TOWNSHIP OF BURLEIGH.
    Execution — Bill in Aid — Equitable Interest — What Constitutes — Quieting Title — Propriety of Remedy.
    Where, prior to the levy of an execution on certain lands as the property of complainant, he had conveyed the same by quitclaim deed, taking a mortgage for a part of the purchase money, which deed was, but the mortgage was not, recorded at the time of the levy, complainant’s interest in the land was an equitable one, within the meaning of section 9167, 3 Comp. Laws, and the failure of the execution creditor to take proceedings to determine complainant’s interest within one year, as provided by the statute, rendered the levy and sale ineffective ; and complainant having subsequently taken possession under his mortgage, the levy and sale constituted a cloud upon his title which he was entitled to have removed upon a bill filed for that purpose.
    Appeal from Iosco; Connine, J.
    Submitted June 8, 1908.
    ( Docket No. 40.)
    Decided July 1, 1908.
    Bill by Charles F. Gordon against the township of Burleigh to remove a cloud from title to certain land. From a decree for complainant, defendant appeals.
    Affirmed.

      Albert W. Black, for complainant.

      Jahraus & Bawden, for defendant.
    Complainant filed his bill in this case to remove a cloud from the title to his land, consisting of a levy under execution, a sale of the land and sheriff’s deed to the defendant township. The facts are conceded, and, briefly stated, are as follows:
    Complainant acquired title in 1878. In 1882 he gave two mortgages upon it which were afterwards discharged. On July 2, 1883, he conveyed said land by quitclaim deed to one Frank Pierce, the consideration named therein being $1,500. The deed was recorded January 30, 1884. On the date of the deed Pierce executed to the complainant a mortgage for $1,200, the balance of the purchase price. This mortgage was recorded in February, 1892.
    July 5, 1883, defendant township commenced suit in attachment against complainant, attaching the land here in controversy, obtained a judgment and took out an execution and levied upon the property March 7,1884. The defendant purchased the land at the sale and obtained a deed August 10, 1885. On February 20, 1892, complainant assigned to his wife the mortgage given by Pierce. She is now the holder of the same. Complainant has been in almost continuous possession of the land since -.1878. The court made a finding and found, in addition to the above facts, that Gordon took possession of the land in 1886, apparently under his mortgage; that he has since occupied it, rebuilt the buildings, which were burned, and purchased tax titles which had meanwhile accumulated against the land. Defendant’s answer alleges that the conveyance by complainant to Pierce was without consideration and made with intent to hinder, delay, and defraud defendant out of the collection of its claim. Defendant took no steps to obtain possession of this land except to institute a summary proceeding for that purpose, which was decided against it October 13, 1885.
    The court entered a decree for the complainant.
   Grant, O. J.

(after stating the facts). The sole question presented to the court is, Does section 9167, 3 Comp. Laws, apply, and under that statute was it the duty of the defendant to commence proceedings within one year after sale to determine complainant’s interest in the land ? The statute will be found quoted in full in Daniel v. Palmer, 124 Mich. 335.

It is insisted by counsel for the defendant that the levy was made upon a legal, and not an equitable, interest in the land, and that therefore the statute does not apply. Complainant had no legal title upon which a levy could be made. He had parted with it. He had taken a mort-' gage from his grantee, which gave him an equitable interest in the land. How could there be a levy upon the legal title of complainant, which had passed from him to another ? If complainant had any interest, it must have been an equitable one under some arrangement with his grantee.

We think the ease comes within the statute, and that it was the duty of the defendant to file its bill in equity within one year after the sale to determine what interest, if any, the complainant had in the land. Daniel v. Palmer, 124 Mich. 335; Kunze v. Soloman, 126 Mich. 290; Tiedemann v. Kroll, 144 Mich. 308.

The purpose of this statute is well stated in Daniel v. Palmer, in which the circumstances are very closely allied to those in the case at bar.

Decree affirmed, with costs.

Blair, Moore, Carpenter, and McAlvay, JJ., concurred.


author: Blair, J.

text:
    CLEMENS v. GEM FIBRE PACKAGE CO.
    1. Master and Servant — Personal Injuries — Defective Machinery — Evidence—Sufficiency—Question for Jury.
    In an action by a servant for personal injuries, the testimony of plaintiff and his witnesses, if credited by the jury, established the fact that the stamping machine which plaintiff was operating at the time of the injury repeated and was defective, causing the injury. Defendant offered testimony tending to prove that it was mechanically impossible for the machine to repeat, and had the machine in operation before the jury and before this court. Held, that whether the machine was defective and repeated was a question for the jury.
    2. Same — Defects in Machinery — Evidence—Admissibility.
    Objections to the testimony of a witness as to the condition of a machine at the time he repaired it some two months after an accident, on the ground that he first saw the machine at the time he repaired it, were properly overruled where defendant claimed that no repairs had been made subsequent to the accident which affected the operation of the machine, introduced testimony tending to prove that the parts of the mechanism complained of were quite hard and not likely to wear seriously in two or three months, and had the machine in court and operated it before the jury, manifestly on the theory that its then condition was not materially different from that at the time of the accident.
    3. Evidence — Experts—Competency.
    Where the secretary-treasurer of defendant corporation and the superintendent of its factory testified that a certain person was employed to look after certain machines, the corporation cannot contend that that person is not qalified to testify as an expert regarding the condition and operation of the machines.
    4. Master and Servant — Personal Injuries — Warning and Instructing Servant — Sufficiency of Warning — Question for Jury.
    Where, in an action by a servant for injuries received while operating a stamping machine, there is a conflict of testimony as to the character of the warnings and instructions given plaintiff at the time of setting him to work, and the instructions, if plaintiff’s testimony is believed, were insufficient, the question is one of fact for the jury.
    5. Same — Warnings and Instructions — Necessity.
    Where plaintiff, an inexperienced servant, without knowledge as to the proper method of operating the stamping machine at which he was set to work, and which was alleged to have been defective, was instructed to operate it in the most dangerous way, and was hurt within a few minutes after he commenced the work, the question whether, in view of his inexperience, he was likely to appreciate the danger of following the instructions, was a question of fact for the jury; and if they determined he was not, then, regardless of the condition of the machine, the giving of instructions by the person charged with the duty of giving them to do the work in a dangerous way, when there was a safe way, was actionable negligence.
    6. Same — Risks Assumed — Insufficient Warnings.
    Where an-inexperienced servant was set to operate a dangerous machine, his assumption of the ordinary risks thereof was dependent upon his being properly warned and instructed in its use.
    7. Same — Defective Machinery.
    Where an inexperienced servant was set to work upon a dangerous machine which was in a defective condition, he assumed only such risks as the jury find he knew of or ought to have known of and appreciated their dangerous character.

      8. Same — Contributory Negligence — Question for Jury.
    Whether an inexperienced servant was guilty of contributory negligence in operating a dangerous machine in the manner in which he was instructed by the superintendent of the factory when set to wort, is at most, from defendant’s standpoint, a question for the jury.
    9. Damages — Personal Injuries — Loss of Earning Power.
    Where plaintiff, suing for damages for a personal injury consisting of the loss of two fingers of his right hand, was 16 ^ years old at the time of the injury, and was injured on the second day of his employment with defendant, the first he ever had, he had acquired no status as a wage earner, and-it was not error to refuse an instruction that as a matter of law there was no evidence that plaintiff’s injuries had “affected his ability to earn money.”
    10. Same — Instructions—Harmless Error.
    Where á boy of 16, suing for damages for a personal injury consisting of the loss of two fingers of the right hand, recovered a verdict of $1,500 under an instruction to award such an amount as would fairly compensate him for his injury, the amount awarded is not unreasonable aside from any loss of earning power; and if any error was committed in refusing an instruction not to include any damages for loss of earning power, such error was not prejudicial.
    Error to Wayne; Hosmer, J.
    Submitted June 9,1908.
    (Docket No. 26.)
    Decided July 1, 1908.
    Case by George F. Clemens, by next friend, against the Gem Fibre Package Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      JPeena, Lightner & Oxtoby, for appellant.

      George F. & Peter J. Monaghan, for appellee.
   Blair, J.

Plaintiff brought this action to recover damages for the loss of two fingers while operating a metal stamping press, designated in the record ,as a Rudolphi & Nrummel press, No. 2, in forming tin boxes. He secured a verdict of $1,500, and defendant prosecutes this writ of error to review the judgment entered thereon.

At the time of his employment by defendant, plaintiff was 16 years old, and was the only witness of the accident. His testimony as to his employment, his work, and the • accident, was as follows:

“I was first employed a day and a half before the accident. Tom Neal, the superintendent, employed me. He gave me work picking up paper off the floor, and sweeping the floor and putting it in boxes. I worked at this for ode day. He then placed me in the dry room, dipping • the tins. I dipped the tins into a sort of a black fluid or liquid and placed them in the oven. I worked at this about half a day. I then was engaged on a machine; the machine that caused the accident. The foreman found me in the dry room, when he got me to work on the machine. He called me and said: ‘ I have another position for you to fill — on a machine.’ I told him I did not like to work on a machine; I did not know anything about it. And he said that he would show me how to run the machine. I did what he told me to do. I went with him to the machine; he took a piece of tin. First he told me to put my foot on the lever and have the stamp come down and to take it off and the stamp would go up and stay up; and put my foot on the lever again and have the stamp come down again; and he fed a piece of tin — fed about four or five, and about the fifth piece stuck in the machine, and he knocked it off with his finger. He told me to feed the machine and to do as he had done until he fetched me an instrument. I put in about four pieces of tin while he was there watching. After watching me do the work about two minutes, the foreman left me. He gave me no warning about the dangerous character of the machine, nor was anything said about any defects in the machine. I had never worked on any machine before. The accident happened about 10 minutes after the foreman left me.
“The accident happened in this manner: I was feeding them in the machine; feeding about four pieces and the fifth piece stuck in the machine. After I would stamp a piece of tin, I would always take my foot off the lever and put it back from the lever. After I stamped the fifth piece of tin and withdrew my foot away from the lever, knocked it off the die — it stuck — the punch came down on my hand and came down so fast that the belt flew off and it stuck right there and my fingers in the machine. * * *
“When I was put at work on the machine, I was not instructed as to the brake. I did not know where the brake was or what it was. I knew nothing about the various parts of the machine, nor had I been instructed about the clutch or the brake or how to cure defects in them.
“ On the day that I was injured, I was first put to work on another machine by Mr. Neal. That was a punching machine to stamp out the covers for the butter crocks. After working on that machine for a short time, I told Mr. Neal that I did not want to work on the machine ; that it jumped. Then he took me off that machine and put me on this one. * * *
‘ ‘ I knew if I put my fingers in that machine and put my foot on the lever it would crush them. * * *
“Q. Now, you say that after you had worked on the paper machine for about half an hour then you stopped, did you ?
“A. I stopped.
“Q. And what did you do ?
“A. I told Mr. Neal I did not want to work on the machine.
“Q. And where was Mr. Neal at that time?
“A. He came around to see — he came around — I got off the machine and I went and found Mr. Neal and told him I did not want to work on the machine, that it was not in good order. The plunger came down about six times without putting my foot on the lever.
“Q. You told Mr. Neal all that?
“A. Yes, sir.
Q. Now tell me the time you got hurt on this machine; do I understand that the die came down without your having your foot around the treadle ?
“A. On which machine — on that machine ?
"Q. Yes.
“A. The die came down without my foot on the lever.
. “Q. And the die came down. I think you were telling us that you got a piece of tin, or whatever they were, ana one of the pieces of tin had rested on the die and you struck it off ?
“A. I knocked it off with my fingers.
Q. Knocked it off with your fingers ?
“A. And just as I was under knocking it down the plunger came down. * * * It had gone right up and came right down again without my foot on the lever — ■ came down unexpectedly I will tell you. * * *
“Q. And you took your fingers to get it off ?
“A. I took my fingers to knock it off just as Mr. Neal done when he was running the machine.”

Defendant’s superintendent, Neal, who had charge of the presses when plaintiff was hurt, testified:

“ I recollect plaintiff coming for work, and of his being placed upon a paper stamping machine. That was the day before he was injured. I took him to Charles Dew-stow and he instructed him as to running the machine. He worked nearly a day on the paper press — I would not be sure, but he worked a great part of the day before he was injured. He was transferred onto the tin press because work enough had been done on the paper press to last us awhile and he was taken off that work. If I remember right, he was taken off the paper press and put in the lacquer room by myself and from there to the tin room. Mr. Clemens at no time, while he was working on the paper press or later, complained to me about the paper press jumping, or his not wanting to work on it because of danger. I never heard of that before. I put plaintiff to work on this particular press I would say it was less than half an hour before he was injured. The operation of the paper press and of this press is similar. They both work by treadle. I took plaintiff over to the press and started to operate it and I was very particular to tell him to be sure and take his foot off the pedal while feeding it, and I ran it a little while and showed him just how to do it, and then he went to work at it and I stood and watched him. I watched him until I felt that he understood it and then I left. I think I operated it myself anyway 5 minutes and I suppose that I stayed there for 5 or 10 minutes while he operated it. I struck off probably 50 can tops there. The press worked all right; it worked perfectly. It did not repeat at all during that time. If the press at that time had shown any weakness or defect in its operation or otherwise, I would have stopped the machine and examined it and looked at the defective part. It would be my duty to attend to the press, if there were any such thing the matter. The press is geared up to run about 125 strokes a minute. * * *
“ If a piece of tin had stayed on the die and the operator had wanted to get it off, there were plenty of tins around there that could be used to get it off with. I told plaintiff to do it in that way. I told him to take it off with the tins. I did not say anything about providing him with anything else. It would be just as easy to take it off with the tins as with the fingers.”

The Rudolphi & Krummel press works as follows: By pressure upon the foot treadle, the clutch fork is pulled down, allowing the clutch pin to be thrown by a spring so that the pin engages the wheel which carries the power. The wheel is constantly revolving while the engine is going and the belt is on the pulley. When, by pressing on the foot treadle, the clutch pin is made to engage with the wheel, the shaft revolves, and by eccentric action, the stamp or plunger is forced down, the dies meet and perform their work and the stamp or plunger is brought up to its former position. This action necessarily occurs with each revolution of*the shaft. If the foot treadle is held down, this action continues. Upon removal of pressure from the foot treadle, the clutch pin releases the wheel and the shaft carrying the stamp or plunger stops after the first revolution. A friction brake applied to the shaft by a small hand wheel regulates to some extent the action of the shaft. On the Rudolphi & Krummel press, a safety pin is provided which is designed to prevent the machine, even when the friction brake is entirely removed from contact with the shaft, from revolving more than once unless the foot treadle is kept down.

Defendant’s counsel distribute their argument under five principal heads. We shall consider the points made somewhat out of their order as presented by the brief.

The record does not show that plaintiff’s injuries were due to any negligence on the part of the defendant. As stated by defendant’s counsel:

“The circuit judge submitted the question of defendant’s negligence to the jury, upon two items:
“First. Whether the defendant failed to give plaintiff proper instruction, and,
“Second. Whether the press was defective. The other allegations of negligence were not proven, or, at all events, the circuit judge so decided.
“The defendant’s claim on this branch of the case is:
“(a) That there was no proper evidence submitted on the trial tending to prove any defect in the press.
“ (6) That plaintiff had sufficient warning and knowledge of the danger connected with using the press, and that therefore defendant was not negligent in this respect; and finally
“ (c) That the court erred in not eliminating from the consideration of the jury the other alleged grounds of negligence, which were set forth in the declaration, but were not proven.”

The witness Jolly testified that prior to the plaintiff’s injury: .

“ I told Tom Neal, the foreman, that the brake worked loose, and he told me to tighten it up. I don’t know exactly how many times I told him, but I think it was more than once. I have tightened the brake myself without notifying him. * * *
“Q. Now, did it, while working with you, remain up when you took your foot from the lever ?
“A. Well, it came down a couple of times when I was not expecting it; but then I did not pay any attention to it. * * * The only thing that I told Mr. Neal was that the brake was loose; sometimes he would come over and tighten it, or he told me to tighten it, and it was all right after I tightened it. * * * An experienced man could tell of the looseness of the brake by the sound of the press. A new hand would not be able to tell.

Samuel Keys testified:

“I noticed that the brake occasionally worked loose.
“Q. And what was the effect upon the machine when the brake worked loose ?
“A. Well, put your foot upon the lever and it would come loose, and if the brake was very loose, it would go up and trip and come right over and come down again; repeat. * * * If the brake was very loose, when you put your foot on the lever it would come down and would go up again and trip and come right over and down again; that is, repeat. When this would occur, the person who is at work on the press generally fixed it if they were experienced enough to know. Sometimes I did it if I noticedit; sometimes Mr. Neal would doit. He generally saw it himself when I first started on the press, but after I got used to it, if I noticed it myself, why, I tightened it up. * * * I ran the machine the evening after the plaintiff was injured and it tripped perfectly; I told Mr. Harbeck that, and that is the truth.
“ Q. And you told him the machine was not changed or fixed between the time of the accident and when I was working on it after supper, did you tell him that ?
“A. To my best knowledge.
"Q. To your best knowledge, you told him — you were telling him your best knowledge ?
“A. Yes, sir. * * * I saw this machine repeat when I was on the machine. It repeated with me after I was an experienced hand. So far as I was concerned, there was no warning given by the machine before it repeated. I cannot say how many times or how long before the accident it repeated. I have seen the machine come down several times with others and when it repeated for me, I had my foot off the lever.”

Edward Mohr testified that he lost two fingers on this same machine a week or two before plaintiff’s injury:

“I was hurt by the brake being loose and the machine repeating. All the time the machine repeated, I did not have my foot on the lever. * * * I put a piece of tin under the die and bumped it and it went up, and when I went to put another piece, when I was putting the other piece on, the die came down on my fingers and a piece was under my fingers yet. I.had not put my foot on the-lever to make it come down the second time. I put my foot on the lever and it came down, and just as I was putting a piece of tin in the die, it came down again without my putting my foot upon the lever.”

Mr. Neal testified for defendant:

“ I heard the testimony of Mr. Jolly. He told me once that the press repeated. I examined the machine and tried it and could not — I never saw it repeat. Mr. Jolly was working on the machine at the time and he came to me, as foreman, and told me the machine repeated and I went over and tried it and found that it did not repeat.
“Q. In testing this machine, or operating this machine after Mr. Jolly reported to you that it wouldn’t work right and that it repeated, what did you do ?
“A. Tripped the machine. * * *
“Q. Just put your foot on the lever and kept on doing that a few times to see whether it repeated or not with you?
“A. Yes, sir,
“Q. That is all you did ?
“A. Yes, sir.”

Hugo Gressman testified for plaintiff:

“I am experienced in machinery for stamping sheet metal and have been engaged, in that kind of work off and on for 12 or 13 years. I began working for the Gem Fibre Package Company, the defendant, I think it was in August, 1904. I was hired to set dies and take care of' presses. The press in court came under my line of work. I found defects in that machine which I repaired.
“Q. Tell what those defects were which you repaired a year ago last August ?
“A. I came into the factory and the first thing I did I looked over the machines; I looked at them and tried them and I saw that some of the parts were worn. And I tried the slides first. I found the slides worn slightly and loose. * * * The first thing I did was to adjust the slides, and it ran along, I think, for a day or two and there was something defective in the clutch — I noticed that. * * * I took the wheel off and examined it and I found the edges of the pin were worn off round.
‘ ‘ Q. Did you repair that ? '
“A. Yes, sir.
“ Q. Did you see if the brake was properly tightened ?
“A. Well, I found out in a day or two that it worked loose. I did not know it at the time, just the same day I started to work, I didn’t find that out; I found out little by little. I had never seen a machine of that manufacture before until I came to work for them. * * * I am not exactly a machinist. * * * My chief work was changing the dies and getting the machine ready for work. I had done that work in other shops. After I became employed there, I had this machine apart several times. I had the pin out. I ground off the face of it to square it, so that it did not have so much chance to slip out. * * * I did not put in a new pin. So far as I know, the same pin is now in the machine that has always been there; I ground the pin off which would make the edges a little sharper. That would make the pin remain there more certainly when it became engaged. If the pin came out, the machine would stop. If the pin did not engage, the machine would not work. If the clutch lets go entirely, it can’t repeat, but if the clutch may remain half way in, it would cause it to. * * *
"Q. Is that the dog that shoves up there in front of the hole there; did you ever tinker with that dog ?
“A. Yes, I think I did grind off that place in there and made a point on it, or put a point on it by grinding this beveled side.
“Q. How much did you grind ?
“A. Oh, perhaps, well, not an eighth of an inch. * * *
“Q. Were the conditions which you found in the machine at the time of your repairing it, such as might cause this repetition that is complained of in this case ?
“A. Yes, sir. * * *
“Q. Well, if the dog was worn away, then it would repeat eternally, wouldn’t it ?
“A. Not necessarily.
“Q. Why not?
“A. Because it would not always strike the same way. There might be a little defect in there that would not cause a continuous defect in the machine; it may work this time and the next time you put your foot on it may not work.
“Q. Now, is that the only thing that you repaired that would be likely to cause a repeating ?
“A. Yes, sir.”
Neal testified:
“I remember witness Gressman saying he ground the clutch pin on this machine which was all right; I think he did. That was about two months after the accident; * * * I have been in charge of the machines at the factory since this press was purchased and put in place, although the presses have not been directly under me of late. There is more work now and I have more help and at the present time other men look after the machines under my directions. Back of that time, I did it myself. Mr. Gressman was employed to relieve me of what I had done previously.”

Mr. Harbeck, secretary and treasurer of defendant, testified :

"I can’t say whether Mr. Gressman repaired this particular machine. I presume that he did. That is what we had him for; but the nature of the repairs had nothing to do with the repeating of the press.”

Defendant’s testimony tended to show that the mechanical construction of the machine was such that it was impossible for it to repeat.

“On the Rudolphi & Krummel presses and on this particular press, there is an appliance which is designed to and which does prevent a repeating of the machine, whether the friction brake is on or not. It is a pin right above the fork. That pin is put on there in case the brake would be loose — slides loose or anything, and you have got a die in there, possibly with a big rubber where there is considerable rebound — if your brake is loose— slides loose that throws it around as quick as that pin was out, the rebound of the rubber bringing it up the slide would throw that over center, and if it does this, with this pin in there, this pin will strike the fork and that pin has either got to break or the fork has got to break to let it pass over, provided the thing is in shape, without there is something broke off of it before. That pin is on this machine, and in my experience it works in the way that I have described. I have never known it to fail.”

a. The testimony of plaintiff and his witnesses, if credited by the jury, established the fact that the machine repeated and was defective, unless we must hold that the jury were bound to find that it was mechanically impossible for the machine to repeat, under the testimony, and that the witnesses to that effect either committed perjury or were certainly mistaken as to the fact. Notwithstanding the persuasive argument of the able counsel for defendant, illustrated by the operation of the machine in question in our presence, we think it would have been improper for the trial judge and equally improper for us, upon the basis of our judgment as to mechanical possibilities, to invade the province of the jury and determine as a matter of law that there was no question of fact for their consideration. Dupuis v. Traction Co., 146 Mich. 151.

By assignments of error 1st, 16th and 17th, defendant’s counsel sought to have the court exclude from the jury as bearing upon the question of defendant’s negligence, any testimony of Gressman, first, because he never saw the machine until some two months after the accident; and, second, because he was not an expert. Prior to the testimony of Gressman, the following colloquy occurred between counsel:

Mr. Monaghan: Is it your contention that this machine was not repaired from the time that that accident happened up to the present time ?
“Mr. Lightner: My contention is that if there were any changes of any kind, they were not with regard to the operating of the machine.
“Mr. Monaghan: Were not regarding any part which ■concerned the operation ?
“Mr. Lightner: Which affects the operation of the machine.
‘ ‘ Mr. Monaghan: Either the clutch or the dog or anything else ?
“Mr. Lightner: Yes.”

There was no evidence of any repairs made after the accident by anyone but Gressman, and defendant had the machine in court and had it operated in the presence of the jury, manifestly on the theory that its then condition was not materially different from that at the time of the accident. The testimony of defendant’s expert, Wood, indicated that the parts of the clutch mechanism were quite hard and not likely to wear seriously in two or three months. Under such circumstances and the concession of counsel, the court did not err in admitting the testimony of Gressman as to the condition of the mechanism. Fuller v. Mayor, etc., of Jackson, 92 Mich. 197.

The testimony of Mr. Harbeck and Mr. Neal, previously quoted, is a sufficient answer to the contention that Gressman was not qualified to testify as an expert.

b. Plaintiff’s testimony, if believed by the jury, would warrant a finding not only that he was given no instructions about the brake or its liability to become loose and the necessity for tightening it; or as to the promptness with which he should remove his foot from the treadle; or as to the reports that the machine had repeated and the necessity for removing the work with a tin and not with his fingers; but that, on the contrary, he was instructed that when he took his foot off the treadle “the stamp would go up and stay up,” and to remove the tins with his fingers, “just as Mr. Neal done when he was running the machine.” There was a conflict of testimony as to the instructions given and the court did not err in submitting the question to the jury.

Under this subdivision of the brief for defendant, it is said:

"By the defendant’s 9th request, it asked the court ta advise the jury that if the press was all right, their verdict would have to be for the defendant; also, that if the press was all right, and had been properly inspected, a verdict should be rendered for defendant, even if, as a matter of fact, the machine did repeat.
‘ ‘ The court modified these and other requests, by adding that they would not apply if the plaintiff had not received sufficient instruction or warning, and the court emphasized the error which we are now considering, by instructing the jury that they were to consider whether the proximate cause of the injury was the failure to give plaintiff instruction; and again, whether the proximate cause of the accident was the failure of plaintiff to appreciate the danger incident to handling the machine.”

In considering the propriety of the modifications of the instructions, the inexperience of the plaintiff and all of the surrounding circumstances must he borne in mind. The mere fact that he knew that if his hand was under the die when he put his foot upon the treadle it would be crushed was not sufficient to relieve the defendant. Allen v. Jakel, 115 Mich. 484.

There was a safe way of using the machine, which Neal testified he directed plaintiff to follow, and the following of which would have prevented any injury. Plaintiff testified that Neal knocked the tin off with his fingers and instructed him to do the same way till he brought him an instrument. Plaintiff had worked for a short time on the paper machine and had been relieved at his own request because it repeated and was then put at work upon the machine in question, which Neal told him would not repeat if his foot was taken off the treadle. He knew nothing about the machine except the feeding of the tin and was instructed to feed the tin in the most dangerous way and was hurt within a few minutes after he commenced the work.

Whether, in view of plaintiff’s inexperience, he was likely to appreciate the danger of following the instructions given him, was a question of fact for the jury, and if they determined that he was not, then, regardless of the condition of the machine, the giving of instructions by the person charged with the duty of giving them to do the work in a dangerous way when there was a safe way was actionable negligence. Kolodziejski v. Seestadt, 143 Mich. 38.

c. The other allegations of negligence were sufficiently eliminated by the charge of the court confining the jury to the consideration of the two submitted. We do not think there was any prejudicial error, if any at all, in refusing the request.

Assumed risk and errors in the record upon this proposition. The court instructed the jury upon this subject as follows:

“ I am asked to charge you, if you find that the press machine was in good condition and that there were none of the defects in it as claimed by the plaintiff, your verdict will be for the defendant, because the plaintiff assumed the ordinary risk attendant on the ordinary operation of the machine. I think that is so, gentlemen of the jury, but at the same time I qualify it only, as I said before, by saying to you that, if he had not sufficient appreciation of the danger or sufficient instructions to warn him in that regard, why, under those circumstances, you may find that that was the proximate cause of the injury. But it presents, as I said before, wholly a question for the jury and not a question for the court.”

We think it clear that the court would not have been justified in directing a verdict for the defendant on the ground that if the machine was in proper condition plaintiff assumed all of the ordinary risks, since his assumption of the ordinary risks would depend upon the finding of the jury as to the instructions given to him. If the machine was not in proper condition, plaintiff would only assume such risks as the jury should find he knew of or ought to have known of and appreciated their dangerous character. Our previous discussion obviates any further consideration of this head.

Plaintiff was guilty of contributory negligence. The question of plaintiff’s contributory negligence was, under the alleged instructions, at most, a question for the jury.

Error relating to measure of damages. The assignment under this head is based upon the refusal to give the defendant’s 17th request to charge, as follows:

“17. If you consider the question of damages, you will not include in your verdict any amount for loss of earning power, because it does not appear that plaintiff’s injuries have affected his ability to earn money.”

We do not think that the judge erred in refusing to instruct the jury that as a matter of law the loss of two fingers of the right hand was no evidence that plaintiff’s injuries had “affected his ability to earn money.” The only testimony on the subject of damages, aside from that relating to the accident, was that of the plaintiff, who testified:

“After the accident, I was taken to the sanitarium and suffered great pain, which continued for about a month. I am troubled with pain in that hand at the present time, if I write too long, say half an hour, and on cold days the fingers feel numb. They have no feeling in them at all.
“The plaintiff showed the right hand to the jury, from which it appeared that the first and part of the second joint of the first and second fingers had been entirely cut off. * * *
“ I am in the tenth grade at the Western High School. I have been there two years, I guess. This accident happened during vacation, and I entered the high school the next fall.”

So far as the record discloses, the employment by defendant was the only employment the boy had ever had. His business was attending school, to acquire an education preparatory to future employment; he had acquired no status as a wage earner; and the case is to be distinguished from cases where evidence can be given of actual earning capacity and its subsequent diminution. See Black v. Railroad Co., 146 Mich. 568.

The defendant’s 16th request to charge was as follows:

“If you consider the question of damages, you will award to plaintiff such an amount as will fairly compensate him for the injuries resulting from the accident.”

The trial judge gave the substance of this request and nothing else upon the subject of damages. The jury were not instructed that they might consider the question of loss of earning power or that such loss was an element of the damages to be awarded, but simply to award to the plaintiff “such damages as he suffered by reason of the injury.” The amount awarded by the jury is not an unreasonable compensation for plaintiff’s injuries, aside from any loss of earning power; the instruction as to the damages recoverable was substantially as requested by defendant, and if the court erred in refusing the 17th request, we think such error was not prejudicial.

We are of the opinion that the case was fairly submitted to the jury and that the assignments of error are not well founded.

The judgment is affirmed.

Grant, O. J., and Moore, Carpenter, and Mc-Alvay, JJ., concurred.


author: Moore, J.

text:
    MORSE v. RESSLER.
    Assumpsit — Action— Issues— Sales— Contract— Question por Jury.
    Where, in an action on the common counts in assumpsit, to which the general issue is pleaded, plaintiff claims the right to recover on the count for money had and received on the theory that he paid $10 to defendant for $10 worth of steel, which defendant refuses to deliver or repay the money, and defendant denies his right to recover on the ground that plaintiff bought a larger quantity of steel, paying $10 on the purchase price, and that he is ready to deliver the steel on receipt of the balance due, the pleadings and evidence raise a question of fact for the jury.
    Error to Ingham; Wiest, J.
    Submitted June 9, 1908.
    (Docket No. 51.)
    Decided July 1, 1908.
    Assumpsit by Rufus R. Morse and Samuel H. Davis against George S. Ressler for money had and received. There was judgment for defendant, and plaintiffs bring error.
    Affirmed.

      Morse & Davis, in pro. per.

      John J. Zimmer, for appellee.
   Moore, J.

This case was commenced in justice’s court. The plaintiffs declared orally upon all the common counts in assumpsit.. The defendant pleaded the general issue. The case was appealed to the circuit court where it was tried by a jury which returned a verdict in favor of defendant. The case is brought here by writ of error.

The contention of the plaintiffs is well stated in a motion they made after the testimony was all in, which is as follows:

“ The plaintiffs moved to strike out all the evidence that was introduced on the part of defendant, and to direct a verdict for the plaintiffs * * * for the following reasons:
“This is an action on the common counts in assumpsit for money had and received, and whether or not plaintiffs have broken their contract or whether or not the defendant has suffered damages is immaterial under the pleadings, for to the common counts is interposed the general issue alone. There is no notice of recoupment or set-off. There is no dispute that the money has been paid and that nothing has been received therefor. There is no evidence that the money paid was stipulated damages. The contract was not pleaded in this case.”

The judge denied the motion and charged the jury in part as follows:

“ Gentlemen of the jury: This is an action brought by the plaintiffs against the defendant to recover $10 they claim they paid to the defendant on the 8th day of October, 1906, for some steel, $10 worth of steel, and they claim that defendant has refused to give them $10 worth of steel, and therefore they are entitled to their money.
“ The defendant claims that the plaintiffs ordered 500 pounds of steel at an agreed price, and that the $10 was paid upon such order, and that there is a balance due after crediting the plaintiffs with the $10; there is a balance due to him, and he stands ready at any time to deliver to the plaintiffs the 500 pounds of steel when they pay him what they agreed to pay him.
“ So the issue in this case, gentlemen of the jury, is for you to determine what the contract in fact was between these parties. Was the contract for $10 worth of steel ? If it was, then the plaintiffs have paid all they agreed to pay, and the defendant, by refusing to let them have the $10 worth of steel, must return their money. He has not returned it, and if you find that to be the contract, then the plaintiffs are entitled to recover their money, in this case $10.
“On the other hand, if that was not the contract, but the contract was for 500 pounds of steel, which was according to the defendant’s claim, it would amount to $29.75, and the $10 was paid upon that account, and there is a balance due the defendant, then the defendant was not bound to deliver the steel until he had his money, unless the contract provided that it should be delivered and credit extended, but there is no such testimony.”

The trial judge made a further and detailed charge

but we have quoted enough to show the issues involved. We think the case was properly submitted to the jury. Ketchum v. Evertson, 13 Johns. (N. Y.) 359; Webb & Kinne v. Steiner, 113 Mo. App. 489; Day v. Farley, 100 Mo. App. 633.

The testimony of the parties was in sharp conflict. The jury evidently believed the evidence offered on the part of the defendant.

The judgment is affirmed.

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


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      In re VITALI.
    1. Criminal Law — Illegal Sentence — Power to Resentence.
    Where the trial court has imposed an illegal sentence, it has the power to ■substitute for it a legal sentence, notwithstanding the illegal sentence has been partly executed.
    2. Habeas Corpus — Irregular Sentence — Propriety op Remedy.
    When there is a valid conviction and an irregular sentence, which, under the law, may be corrected by a new sentence, habeas corpus will not be permitted to perform the office of a writ of error.
    Habeas corpus proceedings by Andrea Yitali to obtain his release from imprisonment in the State prison at Jackson.
    Submitted June 9, 1908.
    (Calendar No. 22,898.)
    Prisoner remanded July 1, 1908.

      Joseph T. Schiappacasse, for petitioner.

      John M. Bird (George S. Law, of counsel), for respondent warden.
   Moore, J.

The petitioner was convicted of murder in the second degree. He was sentenced to the Michigan State prison at Jackson for life and is now serving sentence. It is his claim that he is entitled to be discharged because section 3 of Act No. 184 of the Public Acts of 1905, known as the indeterminate sentence law, repeals that part of the statute allowing a sentence for life as punishment-for the crime of murder in the second degree. No claim is made that the proceedings leading up to and including the conviction were not proper, but it is said that the sentence does not comply with the provisions of the indeterminate sentence law and is void and the prisoner should be discharged.

The case of People v. Farrell, 146 Mich. 264, is authority for the proposition that where the trial court has imposed an illegal sentence it has the power to substitute for it a legal sentence notwithstanding the illegal sentence has been partly executed.

In re Butler, 138 Mich. 453, and the cases there cited, sustain the rule that when there is a valid conviction and an irregular sentence which may, under the law, be corrected by a new sentence, habeas corpus will not be permitted to perform the function of a writ of error. It follows logically that the prayer of the petitioner cannot prevail.

His petition is denied and he is remanded to the custody of the respondent.

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


author: Mgore, J.

text:
    MARTIN v. THISON’S ESTATE.
    Executors and Administrators — Estates of Decedents — Claims — Allowance—Alimony.
    An award of alimony is a valid claim against the estate of claimant’s divorced husband, deceased, for the time elapsing between the date of the decree and the subsequent remarriage of claimant, where decedent in his lifetime took no steps for a modification of the award.
    Error to Wayne; Donovan, J.
    Submitted June 9, 1908.
    (Docket No. 50.)
    Decided July 1, 1908.
    Maggie Martin presented a claim against tbe estate of John Thison, deceased, for an amount due under an award of alimony. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. There was judgment for claimant on a verdict directed by the court, and defendant brings error.
    Affirmed.

      Walter Barlow, for appellant.

      Julius J. Thiede and Ari E. Woodruff (Frank W. Atkinson, of counsel), for appellee.
   Mgore, J.

In September, 1887, the claimant married John Thison, now deceased. On March 10, 1897, she filed her bill of complaint against him in the Wayne circuit court, in chancery, for divorce. He was duly served with process. A decree of divorce was granted the claimant, and she was awarded permanent alimony in said cause to the amount of $1,200, to be paid to her in installments of $15 a week. The decree was filed August 6, 1897.

The claimant married Mr. Martin, December 20, 1897. After this Mr. Thison made two payments to her of $50 each to apply on the decree for alimony. At the time the decree of divorce was granted her, Mr. Thison owned no real estate, but had in the neighborhood of $900 in the bank. He was a saloon keeper. John Thison died intestate on January 25, 1906, leaving Peter Thison, his father, and Theresa Thison, his mother, as his only heirs at law. Administration of his estate was granted March 21, 1906, and commissioners on claims appointed therein.

The claimant filed a claim against the estate for $1,668.40 as the amount due her on said decree. The commissioners on claims disallowed the claim in full and an appeal was taken to the circuit court. At the conclusion of the testimony, the court directed the jury to return a verdict in her favor for $390.91, the amount claimed to be due from the date of the decree of divorce to the date of her marriage to her present husband. The case is brought here by writ of error.

The question involved in the case, as stated by counsel, is, Has a court at law jurisdiction to determine questions arising over the nonpayment of alimony granted a wife by a court of chancery in a divorce case? We quote from the brief:

“Our statute, 3 Comp. Laws, § 8641, provides:
“ ‘After a decree for alimony or other allowance for the wife * * * the court may, from time to time, on the petition of either of the parties, revise and alter such decree respecting the amount of such alimony or allowance and the payment thereof, * * * and may make any decree respecting any of the said matters which such court might have made in the original suit.’
“This statute confers exclusive jurisdiction on the court of chancery, granting a decree for alimony to a wife in a divorce case, to conserve the interests of the parties, by exercising its power to alter and revise at any time a decree for alimony granted for her support.
“The statute takes away from a decree for alimony the element of a fixed judgment for money — a debt — such as will sustain an action at law, or separate suit to recover the amount claimed to be due upon such decree. The amount claimed to be due on a decree for alimony must be enforced or modified on the petition of either of the parties filed in the original suit wherein the decree for alimony was granted. The original suit on the question of alimony is always pending and subject to an application on the petition of either of the parties to alter, revise and even vacate the decree upon a sufficient showing being made for that purpose. No other court has any jurisdiction over the matter of the collection of the amount due on such decree for alimony, nor over the modification or revision of it. This question is well settled in this State. Nixon v. Wright, 146 Mich. 231.” And also citing other cases to be found in the brief.

A reference to the cases will show them to be distinguishable from the case at bar.

The case of Nixon v. Wright, supra, was commenced as an action at law in the circuit court during the lifetime of the husband who might at any time have moved the court for a modification of the decree. In the case at bar the claim was presented to the probate court after the death of the husband, who during his lifetime did not seek a modification of the decree. Counsel has not called our attention to, and we have been unable to find, a case on all fours with the one before us. At the end of a chapter, in relation to procedure in alimony, it is said:

“The practice of the courts in awarding, securing and enforcing the payment of alimony differs in our States as respects mere form, but in substance it is the same in all. The needful facts must be set out in pleadings, they must be proved, and due steps must accompany,the rendition of the decree. The processes for enforcing it are not quite identical in our States, and commonly there is a considerable election among them. In most of the States there is the attachment for contempt. In some, there may be an execution. Quite widely a suit will lie on the decree regarded as a judgment; sometimes there may be scire facias; sometimes a bill in equity.” 2 Bishop on Marriage, Divorce and Separation, § 1114.

In O’Hagan v. O’Hagan’s Executor, 4 Iowa, 509, the wife was granted a decree for alimony. Later she filed a bill asking for a modification of the decree so as to allow her a larger sum as alimony. While this bill was pending the husband died and his executor was made a party. The court stated that the only question involved was whether the death of the husband abated the proceedings, and, in deciding that it did, the court used the following language:

“But it is said that a decree may be made giving to the wife an annual or other allowance during her life, which may extend, and be enforced against his estate beyond the life of the husband; and if so, a court may also modify a former decree, either in favor of or against the husband, after his death. The answer to this is, that in such a case, the court has acted upon the whole question, during their joint lives, and has decreed to her a definite and fixed sum. This decree has the same force and validity as any other judgment, and may be collected in the same manner. It is a fixed, ascertained, and subsisting debt against him, and, upon his death, against his estate. Not so, however, with a claim for alimony which never has been settled; or where the wife after his death, seeks to increase the amount allowed in his lifetime. It is not a demand, definite in its character, to which she has an absolute right. By the decree giving her an absolute sum during her life, she stands as any other creditor, and her right to payment does not depend upon the amount of his estate, whereas the ability of the husband, and their condition in life, are important to be considered in awarding alimony, or in changing a dower for the same. The case of Gaines v. Gaines, 9 B. Mon. (Ky.) 395, expressly decides that the claim to alimony, as such, ceases at the death of the husband, and the petition of the wife therefor, was refused, though pending at his decease —the court saying: ‘We are of opinion that such claim, though asserted before his death, will cease by that event, and cannot be afterwards availably asserted, unless it has been before ascertained and fixed by decree.’ And to the same effect, see Bishop on Marriage and Divorce, § 559.”

See, also, Ulman v. Ulman, 147 Mich. 353, and the cases cited therein.

In Knapp v. Knapp, 134 Mass. 363, it was held that, the writ of scire facias was an appropriate process to obtain execution against the estate in the hands of an executor for arrears of alimony awarded against the testator in his lifetime.

Section 9367, 3 Comp. Laws, reads in part as follows:

“When letters testamentary or of administration shall be granted by the judge of any court of probate, such judge may, in his discretion, appoint two or more suitable persons to be commissioners, to receive, examine and adjust all claims and demands of all persons against the deceased except in the following cases.”

The exceptions do not affect the question at issue here. It will be observed that the statute refers to “all claims and demands of „all persons against the deceased.” We think it very clear that the decree obtained by the claimant constituted a claim or demand against the deceased. As the defendant did not seek to have it modified in his. lifetime, and as no showing was made why the installments which had accrued between the date of the decree and the marriage of the claimant should not be paid in full, we think the judge did not err in directing a verdict for the amount.

Judgment is affirmed.

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


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    REED v. LOUDEN.
    Trial — Misconduct or Counsel — Intemperate Argumént.
    In an action for breach of promise to marry, statements by plaintiff’s counsel, in argument, wholly unsupported by the record, amounting to insinuations that defendant had used money to induce his witnesses to testify in his behalf, and that improper methods had been taken by a detective, are so prejudicial as to necessitate a reversal of the judgment.
    Error to Saginaw; Gage (Chauncey H.), J.
    Submitted June 11, 1908.
    (Docket No. 68.)
    Decided July 1, 1908.
    Assumpsit by Florence A. Reed against Frederick Lou-den for breach of promise of marriage. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Beach, O’Keefe & Bockwith, for appellant.

      Harris & Kendrick (B. L. Crane, of counsel), for appellee.
    This is an action to recover damages for breach of promise of marriage. The engagement and preparation for the wedding were admitted. The day was set for the wedding. Three days previous, for some reason, the engagement was broken off. According to plaintiff’s statement, defendant broke the engagement without any excuse valid in the law. Under his statement, she insisted on certain conditions which would justify him in breaking the engagement. He also testified that when she insisted upon the conditions the engagement was mutually canceled. There is no evidence or claim that defendant ever treated plaintiff in any other than a proper and considerate manner except by breaking the engagement. Plaintiff recovered verdict and judgment.
   Grant, O. J.

(after stating the facts). In the course of his concluding argument to the jury, counsel for plaintiff used the following language:

“Who is to blame? There he is, — a man who did to that girl worse than to rob her of her virtue. * * * This defendant did admit the promise to marry. Why ? It would be easier then to satisfy the jury that the promise was broken off. * * * He broke off the engagement, and he can’t give any reason for it to these twelve men. * * * I say this girl is abused and ill-treated by Louden in the way that no man who was a man would treat a girl. Oh, how small he has been in this trial. * * * The time to shoot men down and use violence is past and gone, and we are glad of it; and we come to you. Some of you have daughters; perhaps some have not; but I say to you that defendant wronged a poor, helpless girl.”

Referring to some of the defendant’s witnesses, plaintiff’s counsel said:

“ Well, there they are. Put them down there. Gentlemen, this is all they amount to. There is one thing I will tell you, gentlemen, money sometimes makes a man remember. Detectives sometimes do things that they ought not to do. Was it done here ? I leave it to you. How these men appeared here. It is the most damnable piece of evidence I have ever seen in this court, and I believe that you ever did.”

We think the record in this case does not justify the use of this extravagant language, intended to inflame the prejudices of the jury. A jury is perhaps naturally prejudiced against a man who breaks an engagement to marry. He is, however, entitled to the fair and unprejudiced judgment of a jury and to an assessment of damages which is not increased by unjustifiable and extravagant language on the part of an attorney. Here was a covert insinuation that the defendant had used money to induce his witnesses to testify in his behalf, and that improper methods had been taken by a detective. There was no evidence upon this record to justify the charge. This statement was evidently more damaging than was the statement made by counsel in Selby v. Railway, 122 Mich. 311, wherein counsel said:

I do not want you to go to the jury-room to cut down, on the ground there will be a settlement in this case; they will go to the Supreme Court; they always go there.”

We held that this was an ingenious invitation to the jury to increase damages. So, in this case the language was an ingenious invitation to the jury to believe that the defendant had suborned his witnesses. The above language and other similar to it is so intemperate that we find it impossible to say that it was not prejudicial. For this reason the judgment must be reversed, and a new trial ordered.

There are other assignments of error, but as the questions involved are not likely to arise upon a new trial, it is unnecessary to determine them.

Hooker, Moore, Carpenter, and McAlvay, JJ., concurred.


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    WISNIEWSKI v. NAWROCKI.
    Mechanics’ Liens — Foreclosure—Costs—Solicitor’s Fee.
    Though sections 10721, 10730, and 10736, 3 Comp. Laws, confide the question of costs and solicitors’ fees in mechanics’ lien cases to the discretion of the court, the complainant in a bill to enforce a lien, on establishing his right to a decree, should be allowed his actual disbursements and a reasonable amount for his solicitor.
    Appeal from Wayne; Mandell, J.
    Submitted June 12, 1908.
    (Docket No. 19.)
    Decided July 1, 1908.
    Bill by Frank Wisniewski against Anna Nawrocki to enforce a mechanics’ lien. From a decree for complainant awarding an insufficient allowance for costs, he appeals.
    Modified.

      William Van Dyke, for complainant.
   Moore, J.

The complainant is a carpenter and filed a bill in chancery to enforce a lien for work done by him upon a building erected by defendant. After establishing his lien, his solicitor showed to the court the following items of costs incurred in establishing it:

Lien fee..... $0 75
Lis pendens .. 75
Entry fee____ 5 00
Witness fees . 3 30
Stenographer 4 00
Decree -...... 7 00
$20 80

A decree was rendered for the amount of complainant’s lien but allowing him, against his protest, but $5 as costs.

The case is brought here by appeal. It is the claim of complainant that he should have been allowed his actual disbursements and a reasonable solicitor’s fee. Sections 10721,10730, and 10736, 3 Comp. Laws, contain provisions which apply to this proceeding. The complainant was compelled to resort to the court to obtain his relief. He established his right to a decree. We think he should have been allowed his actual disbursements and a reasonable amount for his solicitor, which amount, in view of the small amount involved here and the comparatively small amount of work required of the solicitor, we fix at the sum of $40 for both courts.

A decree may be prepared in accordance with this opinion.

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


author: Montgomery, J.

text:
    ATTORNEY GENERAL, ex rel. HUDSON, v. CITY OF DETROIT.
    Municipal Corporations — Powers — Ordinances — Detroit Charter — Contracts—Hours of Labor.
    Under section 341 of the charter of Detroit (Compilation of 1904), requiring all contracts involving an expenditure of more than $300 to be let to the lowest responsible bidder, the common council has, in the absence of express delegation of power by the legislature, no authority to limit by ordinance the hours of labor of employés of city contractors or subcontractors where the effect is to increase the bids for city contract work.

    Appeal from Wayne; Mandell, Hosmer, Murphy, Rohnert, and Donovan, JJ.
    Submitted June 15, 1908.
    (Docket No. 101.)
    Decided July 1, 1908.
    Bill by John E. Bird, attorney general, on the relation of Joseph L. Hudson and others, against the city of Detroit to restrain the enforcement of an ordinance. From a decree for complainant, defendant appeals.
    Affirmed.

      Sherman D. Callender, for complainant.

      Timothy E. Tarsney, tor defendant.

       As to validity of limitation of hours of labor on public work, see note to Keefe v. People (Colo.), 8 L. R. A. (N. S.) 131.

   Montgomery, J.

This is a bill filed by the attorney general, on relation of certain taxpayers of the city of Detroit, praying an injunction to restrain the enforcement of an ordiriance of that city, the first section of which reads as follows:

“Section 1. That hereafter eight hours shall constitute a day’s work for all laborers, workmen, mechanics, steam engineers and engineers’ assistants, who may be employed by or in behalf of the city of Detroit, or any of its authorized boards or officers, or who may be employed by contractors or subcontractors in work done or executed under contracts with the said city of Detroit, or its various authorized boards or officers.”

It appears by the bill that two contracts were entered into by the city, one for the job printing for the year ending June 30, 1908, and the other for book binding for the same period. The city first advertised and received bids for the work with no reference to the ordinance in question. Under the first advertisement, the HoughtonJacobson Printing Co. bid 46 per cent, off schedule price. Under the second advertisement, the bid was '25 per cent, off the schedule price for the same work. This latter bid was accepted by the city, although it made an increase in cost to the city for the job printing for the fiscal year of upwards of $3,000 over what the same company had offered to do the same work for under the first advertisement. As to the book binding, a similar discrepancy between the bids of those not agreeing to be bound by the terms of this ordinance and those who did is shown, the difference in the contract upon the different bases being $5,000.

Upon the hearing, the circuit court determined the case in favor of the complainant and enjoined the enforcement of the ordinance. The city appeals.

The solicitor for the city frankly states that he does not think the question involved comes within the rule which involves the exercise of the police power, for the reason that no element of safety or health is involved in the employment. The question may therefore be determined on narrow grounds. We are not called upon to disaffirm the power of the State to limit the number of hours of labor to be permitted by those engaged in public work, as to which question see Atkin v. Kansas, 191 U. S. 207. Nor are we called upon to determine whether the city may by ordinance prescribe the course of its own officers in employing laborers for the city, as to which see Gadd v. City of Detroit, 142 Mich. 683.

But the question is whether the State has delegated to the city the authority to fix the number of hours which a contractor for public work may require of his workmen, or whether, on the other hand, such a provision is inconsistent with the free competition which the charter of the city contemplates and requires among bidders for such work.

Section 241 of the city charter (compilation of 1904) provides as follows:

“No contract for the purchase of any real estate, or for the construction of any public building * * or for any work to be done, or for purchasing or furnishing any material, printing or supplies for said corporation, if the purchase of said real estate, or the expense of such construction, repairs, work, printing, materials, or supplies shall exceed $200, shall be let or entered into except to and with the lowest responsible bidder with adequate security.”

We agree entirely with the view expressed by the circuit judges that power has not been given to the common council to pass an ordinance like that in question so far as it relates to contract work, and that, in the absence of a grant of such power, the council has'no authority to pass the ordinance in so far as it relates to contract work. In our View, such an ordinance is inconsistent with section 241 of the charter, which requires the letting of the contract to the lowest responsible bidder.

The decree is affirmed, with costs.

Ostrander, Hooker, Moore, and McAlvay, JJ., concurred.