author: Fellows, J.

text:
    PORTER v. EAST JORDAN REALTY CO.
    1. Negotiable Instruments — Demand oe Payment — Refusal to Pay.
    A conversation in the office of defendant between the cashier of a bank with whom a note had been left for collection, and the secretary and manager of defendant corporation, the maker of the note, wherein the latter was informed that the bank had the note, and that it was due, and he replied that defendant could pay the interest, but could not pay the principal, because it did not have the money, held, to amount to a sufficient legal demand, and, on failure to pay, the note was dishonored.
    2. Same — Production of Instrument — Watver.
    The provision in the negotiable instruments act (2 Comp. Laws 1915, § 6115) that the instrument must be exhibited to the person from whom payment is demanded, held, to be for the benefit of the maker, and that it might be waived by him.
    3. Same.
    Where the maker of a note, when informed that it was due and payable, made no request for its production, and based his refusal to pay solely on other grounds, held, that he waived his rights under the provisions of said section requiring the production of the note, since the law will not require the doing of an idle thing.
    4. Appeal and 'Errort — Question Not Raised in Court Below.
    Where the sufficiency of the declaration was not raised in the court below it cannot be raised in this court.
    5. Same — Directed Verdict — Conflicting Testimony.
    On appeal from a directed verdict, where the testimony was in conflict, this court will treat it in the light most favorable to appellant.
    On necessity, of actual presentatión of commercial paper to effect its dishonor, see note in 13 L. R. A. (N. S.) 303.
    On banking custom as to demand and notice, see note in 21 L„ R. A. (N. S.) 441.
    Error to Charlevoix; Mayne (Frederick W.), J.
    Submitted April 14, 1920.
    (Docket No. 58.)
    Decided June 7, 1920.

      Assumpsit by William P. Porter against the East Jordan Realty Company, Carl Stroebel, and William Stroebel on a promissory note. Judgment for plaintiff against defendant company alone. Plaintiff brings error.
    Reversed.

      Clink & Williams, for appellant.

      Dwight L. Wilson (A. B. Nicholas, of counsel), for appellees.
    Carl Stroebel and William Stroebel are co-partners engaged in the hardware business at East Jordan. William. Stroebel is the vice president of defendant East Jordan Realty Company and Claude Mack, who is there engaged in the jewelry business, is its secretary and general manager. On January 28, 1913, the realty company was indebted to tne defendants Stroebel in the sum of $1,413.22. On that day it executed its promissory note in the usual form to the Stroebels for this amount payable on or before five years after date with 7 per cent, interest payable annually. Subsequently the defendants Stroebel sold the note and indorsed it to one B. E. Waterman who later sold it to the plaintiff, indorsing it without recourse to him. Some time before the note was due the plaintiff left it for collection at the State Bank of East Jordan of which Mr. Suffern was cashier. Mr. Suffem and Mr. Mack talked about the note before it was due and Mr. Mack informed Mr. Suffern that they could pay the interest but could not pay the principal.
    January 28, 1918, the day the note was due, was fuelless day and the business places at East Jordan were closed. Mr. Suffern had arranged with Mr. Mack to come to Mr. Mack’s store two doors from the bank that day on'business connected with the realty company. They met at Mr. Mack’s store. While there Mr. Suffem said to Mr. Mack that the note was due and Mr. Mack told him again that they could pay the interest but could not pay the note.
    Mr. Suffern testifies:
    “I went in there to keep an appointment with him for looking over the realty company’s books — or to talk with him about it — a report that he wanted to make and when I was there I just told him that the note was due, which is all the demand we ever make; we don’t go at it very rough when we ask payment on anything. * * *
    “Why, we had talked this note over several times and neither one of us considered it necessary to be formal about the conversation, we both knew what note we had in mind all right.”
    At this time the note was at the bank and Mr. Mack did not demand its production and it was not produced by Mr. Suffern. Mr. Mack’s refusal to pay was based entirely on the lack of funds. There is testimony that notice of dishonor of the note was given to defendants the following day. The testimony was somewhat in conflict but the trial court disposed of the case on the ground that plaintiff had failed to make a case against defendants Stroebel. We must, therefore, accept the testimony most favorable to the plaintiff and shall not set out all the conflicting claims on the facts.
    This action was brought against the realty company and the Stroebels. Judgment passed by default against the company and for the defendants Stroebel, the trial judge holding that the presentment and demand for payment were insufficient to charge the indorsers. There are numerous assignments of error but counsel for plaintiff quite properly say in their brief:
    “The case, as presented, has two questions:
    ► “1. Did the conversation between Mr. Mack and Mr. Suffern constitute a legal presentment and demand of payment of the note, Exhibit A?
    “2. Was it necessary that Mr. Suffern actually exhibited the note to Mr. Mack when demand was made, its exhibition not being requested at the time, and payment being refused solely on the ground of lack of funds?”
   Fellows, J.

(after stating the facts). We shall first consider whether what was said and done by the parties on January 28th amounted to a demand of payment. We have not quoted all the testimony on the subject; it is to the effect that the cashier, Mr. Suffern, called the attention of Mr. Mack to the fact that the note was due that-day. This was what was usually done by him in demanding payment. Mr. Mack understood full well, we think, that payment of the note was demanded. He explained to Mr. Suffern that the company did not have funds to pay the. note but could pay the interest. The question is not without authority. In the leading case of Gregg v. George, 16 Kan. 546, the instrument involved was a check. The indorsee had taken it together with some money to the bank to buy St. Louis exchange. He was told .that they were not selling exchange. He asked to have the check passed to his credit which was refused. He did not demand the cash and testified that he did not want money. The opinion in the case was written by Justice Brewer, then a member of that court. We quote from what was there said by him, speaking for the unanimous court:

“Waiving all question as to the matter of exchange on St. Louis, it appears that he asked the bank to credit the check to his account, and it refused. This was a dishonor of the check. It was unnecessary after that to go through the form of specifically demanding its payment in cash over the counter. Demand and refusal may be necessary; but no particular form or expression is essential to either. It is sufficient if it clearly appears that the bank, after a demand, refuses to accept the check as of the value its face indicates.”

In the case of Gilbert v. Dennis, 3 Metc. (Mass.) 495, the maker of the note called on the holder on the day it was due and told him he was unable to pay it, should not pay it, and" desired the holders to give notice to the indorser. It was held that this was a sufficient demand. Chief Justice Shaw, speaking for the court, said:

“A note is payable at any reasonable time on demand, on the last day of grace, and if not then paid, it is dishonored, and notice may be immediately given to the indorser. Staples v. Franklin Bank, 1 Metc. 43. Shed v. Brett, 1 Pick. 401. It appears by the report, in the present case, that on the last day of grace, the promisor went to the store of the holder, where the note was, and stated that he was unable to pay, and should not pay the note, and wished the plaintiff to notify the indorser. The court are of opinion that this was a sufficient demand and refusal to constitute a dishonor of the note. There are many cases in which it is. held that it is not necessary to produce and exhibit the note. As where a note is in terms, or by the tacit or express consent of the parties, payable at a bank, it is sufficient that the note is there ready to be given up on payment, should the promisor come to pay it. State Bank v. Hurd, 12 Mass. 172; Whitwell v. Johnson, 17 Mass. 449; Saunderson v. Judge, 2 H. Bl. 509. If the promisor does not go to the bank and pay the note, it is dishonored, and it would be but an idle ceremony to take the note from the files and make a demand, when there is no one on whom to make it. And should the promisor come and declare his inability to pay, his intention not to pay, and leave without payment, it is surely not less a dishonor, than if he had stayed away. The default of the promisor, in such cases, is his not paying the note at the bank; and the default of the promisor, in whatever it consists, constitutes the dishonor, of the note, upon, which the indorsee, if duly notified, may be legally charged. Even under the law of tender, which is extremely strict, it is held that when the party, to whom a tender is to be made, declares that he will not accept it, an actual production and offer of the "money, or any other thing to be tendered, is unnecessary. In the present case, the plaintiff held the note, the promisor knew it, knew it was due, and instead of waiting for the holder to come to him, he went to the holder, declared by his conduct that he knew the note was due and payable, and that the holder had the note ready to be given up, and expected and had a right to expect payment of him as promisor; and in anticipation of a presentment and express demand, declared that he could not pay the note, and departed without paying it. It does not appear that the holder did not request him to make payment; and the circumstances are such as to warrant the inference that he did. The declaration of the promisor, that he could not pay, implies that he considered the holder as looking to him for payment, which is all that was necessary, and that he anticipated a more formal offer of the note and demand of payment, by a declaration which rendered it unnecessary.”

And the same court in Whitwell v. Johnson, 17 Mass. 449, said:

“Certainly an indorser is not bound to pay,, without evidence of a legal demand upon the maker; but when such demand has been made, his liability occurs. Now, if the indorser has seasonable notice of the fact of non-payment, when the note is due, it must be immaterial to him in what form the demand upon the maker was made. If there had been no demand, he would not be liable; because it does not appear but that the note would have been paid, if demanded; and it is within the terms of the stipulation that such demand shall be made. But if there has been such a demand as the maker was bound by, so that he had no right to refuse payment, it is not easy to see how it concerns the indorser, whether the legal forms had been complied with, or waived by the promisor.”

See, also, In re Swift, 106 Fed. 65; Minturn v. Fisher, 7 Cal. 573; Tucker Manfg. Co. v. Fairbanks, 98 Mass. 101; 8 C. J. p. 557; 3 R. C. L. p. 1171.

We reach the conclusion from an examination of the authorities that the evidence was sufficient to justify a finding that there had been a demand. Mr. Suffem and Mr. Mack met on the day the note was due at Mr. Mack’s store, which was the office of the realty company, on business of the realty company. When Mr. Suffern said to Mr. Mack that the note was due that day, Mr. Mack clearly understood this was a demand for payment; he so treated it and explained that payment of the note could not then be made, due.to lack of funds. .Both parties considered and treated it as a demand and the fact that it was couched in courteous language does not deprive it of its legal effect, or of the effect given it by both parties.

At the time payment was demanded the note was at the bank two doors away and was not produced and exhibited to Mr. Mack. He did not request its production, and placed his. refusal of payment solely on the ground of inability of the company to pay. The trial judge was of the opinion that under section 76 of the negotiable instruments act (2 Comp. Laws 1915, § 6115) it was imperatively necessary that the note be physically present and exhibited to the maker in order to charge the indorser. This, section provides:

“The instrument must be exhibited to the person from whom payment is demanded, and when it is paid must be delivered up to the party paying it.”

But the adoption of this section of the negotiable instruments act, the making of this provision statute law, wrote no new law into the law of negotiable instruments of this State. This was the. well recognized law long before the negotiable instruments law was adopted. Professor Bunker in his work on Negotiable Instruments, p. 5, well said:

“These facts are a guaranty that we have in the negotiable instruments law the legislative expression of the law theretofore determined by the courts, through a long series of years and in a multitude of decisions, barring, of course, those conflicting decisions and diverse statutes which had led to embarrassment and confusion in the administration of the law of commercial paper. It may be said, probably without serious question, that in the enactment of this statute no essential feature of the law of negotiable instruments as theretofore determined has been eliminated.”

Our inquiry with reference to this provision is as to whether it is for the benefit of the maker or the indorser, whether it is personal to the maker and may be waived by him, and upon this question the holdings of the courts before this provision was made statute law are as important as those which have been handed down since.

In King v. Crowell, 61 Me. 244, it was said by the court:

“It is true that the rule requiring the person making the demand to exhibit the evidence of debt is well settled, and well grounded in reason; and, although applicable to all written contracts on which a demand is necessary, it is, as has been well said, especially applicable to negotiable securities, which may be legally transferred to another at the very time the original payee makes the demand. But the reasons applicable to cases in which the maker offers to pay cannot apply to cases in which he not only does not offer, but absolutely refuses, to pay, and does not even express any desire to see the note.
“The idle ceremony of producing the note when the maker unqualifiedly refuses to pay is well illustrated by Chief Justice Shaw in Gilbert v. Dermis, 3 Mete. (Mass.) 497, where he says:
“ ‘Even under the law oí tender, which is extremely strict, it is held that when the party, to whom a tender is to he made, declares that he will not accept it, an actual production and offer of the money, is unnecessary.’ ”

In Lockwood, v. Crawford, 18 Conn. 361, the question was before the court and it was said:

“But it is still claimed, that no sufficient presentment or demand of payment of the makers of the note was ever made; and that B. W. Lockwood’s deposition does not conduce to prove any. We think otherwise. It is true, that it does not directly appear that the deponent, who was the payee, presented the note in form and demanded payment; but as he had. not at that time transferred it, the maker might well presume it continued in his possession, ready to be delivered up upon payment. When called upon for the balance, they did not inquire for it, nor refuse to' pay, because the note was not shown to them; on the contrary, they said that they could not conveniently pay any more then, and requested the payee to draw upon them at a future time; thereby waiving, as they had right to do, a more formal demand.
“We are satisfied, therefore, that the demand of payment was legal; and that, at the time mentioned by B. W. Lockwood, the note in question, by reason of the neglect and refusal of the makers to pay it, then became dishonored.”

In Union Bank of Louisiana v. Lea, 7 Rob. (La.) 75, demand was made for payment and refused because there were no funds in. the bank for the purpose. The court, speaking through Justice Martin, said:

“When the notary of a bank receives a note to be protested, he goes to the drawer and demands payment; if he is answered that it will not be paid, he does not take it out of his pocket-book or out of the bundle which contains it, to present it, for that would be a vain ceremony. Lex neminem eogit ad vana. The cashier having said that there were no funds to pay the note, no presentation was necessary.”

And in the recent case of Hodges v. Blaylock, 82 Ore. 179 (161 Pac. 396), it was said:

“If, therefore, the note should have been presented in order to constitute a valid demand for its payment, and if the plaintiff’s testimony is to be believed, which, was for the jury to determine, the defendant S. E. Blaylock waived an exhibition of the negotiable instrument by not asking for it, and by refusing payment on the ground that he did not then have the money, and that he needed that sum with which to support his family.” ■

The supreme court of Virginia in Waring v. Betts, 90 Va. 46 (17 S. E. 739), said:

“Presentment of the bill or note and demand of payment should be made by an actual exhibition of the instrument itself; or at least the demand of payment should be accompanied by some 'clear indication that the instrument is at hand ready to be delivered, and such must really be the case. This is requisite in order that the drawer or acceptor may be able to judge (1) of the genuineness of the instrument; (2) of the right of the holder to receive payment; and (3) that he may immediately reclaim possession of, upon paying the amount. If, on demand of payment, the exhibition of the instrument is not asked for, and the party of whom demand is made decline on. other grounds, a formal1 presentment by actual exhibition of the paper is considered as waived.”

Ruling Case Law (3 R. C. L. p. 1204) thus states the rule:

“It certainly is essential to a proper presentment that the person making demand for payment have the instrument in his possession at the time and place of demand. The negotiable instruments law provides that ‘the instrument must be exhibited to the person from whom payment is demanded, and when it is paid must be delivered up to the party paying it/ It may not be necessary actually to produce the instrument, if the person having it in possession demands payment and is answered by the maker or acceptor that it will not be paid. The notary or other person need not take the instrument out of his pocket-book or portfolio and make exhibition of it, for this would be an idle ceremony if the maker or acceptor assures him in advance that payment will not be made. The production of the instrument is for the benefit of the obligor, in order that he may determine its genuineness and take it in possession, and there seems to be no sound reason why he may not waive his rights in this respect.”

Corpus Juris (8 C. J. p. 560) states the rule in this language: .

“The negotiable instruments law expressly provides that the instrument must be exhibited to the person from whom payment is. demanded, and, when it is paid, must be delivered up to the party paying it. But this right to have the paper produced may be waived by failure to request its production, the same as under the law merchant.”

See, also, Gallagher v. Roberts, 11 Me. 489; Maine Bank v. Smith, 18 Me. 99; Freudenberg v. Lucas, 38 Cal. App. 95 (175 Pac. 482); Legg v. Vinal, 165 Mass. 555 (43 N. E. 518); Selover on Negotiable Instruments (2d Ed.), p. 263.

We do not think the cases cited by defendant’s counsel militate against the rule announced in the authorities considered and cited by us. Gilpin v. Savage, 201 N. Y. 167 (94 N. E. 656, Ann. Cas. 1912A, 861), involved a demand made by telephone. The case will be found reported in 34 L. R. A. (N. S.) 417, where the editor points out that it is the only case disclosed where that question was involved. Bayless v. Harris, 124 Mo. App. 234 (101 S. W. 617), involved a demand by mail, while in Eastman v. Potter, 4 Vt. 313, the maker had asked the holder of the note to produce it. The other cases cited are equally distinguishable.

The rule of the law merchant now made statute law by the negotiable instruments act is for the benefit of the maker — that he may examine the instrument to determine its genuineness, the right of the holder to payment, and upon payment may take it up and destroy it or keep it in his possession. It is a provision personal to him and may be waived by him' and is waived where he makes no request for its production and his refusal to pay is solely based on other grounds, i. e., lack of funds. The law does not require the doing of idle things, and such requirements as are for the sole benefit of the maker of the note may be waived by him.

There is some discussion in defendant’s brief of the question of the sufficiency of the declaration; but this question was not raised in the court below and cannot be considered here.

We do not, of course, pass upon the credibility of the testimony. As we have stated, there is a conflict in it, but as the case was disposed of as matter of law in the court below, it became our duty to treat it in the most favorable light to plaintiff. The judgment must be reversed and a new trial granted. Plaintiff will recover costs of this, court.

Moore, C. J., and Steere, Brooke, Stone, Clark, Bird, and Sharpe, JJ., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    GROVES v. GRAND TRUNK WESTERN RAILWAY CO.
    1. Railroads — Negligence — Crossing Accident — Contributory Negligence — Directed Verdict.
    In an action for damages to plaintiff’s automobile, caused by a collision on a highway crossing with a motor car used by defendant’s section men, where plaintiff, on a clear, bright day, drove a distance of 50 feet at a rate not faster than 5 miles an hour, when he could have stopped in 6 or 8 feet, and failed to see the motor car coming from the north, although he had an unobstructed view of the track for more than half a mile in that direction, he was guilty of contributory negligence precluding recovery.
    2. Same — Duty to Look and Listen.
    It was plaintiff's duty to look just before entering the danger zone, and the fact that the view to the south was obstructed by a curve in the track was not a sufficient reason for his failure to again look to the north just before going upon the track.
    On duty of driver of automobile at railroad crossings generally, see notes in 21 L. R. A. (N. S.) 794; 29 L. R. A. (N. S.) 924 and 46 L. R. A. (N. S.) 702.

      3. Appeal and Error — Question Not Raised in Court Below— Discovered Negligence.
    The question of subsequent or discovered negligence, not having been raised in the court below, cannot be considered in this court.
    4. Railroads — Owner Not Liable for Negligent Acts op Agents
    op Director General.
    The cause of action having arisen when defendant's property was being operated by the director general of railroads, defendant railroad company cannot be held liable, and the case as to it must be dismissed, with leave to amend within 30 days.
    Error to Cass; Des Voignes (L. Burget), J.
    Submitted April 20, 1920.
    (Docket No. 106.)
    Decided June 7, 1920.
    Case by George Groves against the Grand Trunk Western Railway Company for damages to plaintiff’s automobile. Judgment for plaintiff. Defendant brings error.
    Reversed.

      C. M. Lyle (W. K. Williams, of counsel), for appellant.

      Charles O. Harmon and Thomas J. Cavanaugh, for appellee.
    Leading into Edwardsburg, Cass county, is a highway called “Cassopolis road.” It runs in a northeasterly and southwesterly direction and crosses the double tracks of defendant near the village. Defendant’s tracks here run nearly but not due north and south. The crossing is an unobstructed one and travelers on the highway going to Edwardsburg have for several hundred feet from the crossing an unobstructed view of defendant’s track to the north for at least half or three-quarters of a mile. South of this crossing the railroad has a curve so that the view is not so extended. Coming towards Edwardsburg the highway is upgrade for about 20 rods.
    Plaintiff lives at Cassopolis where he operates a team and auto livery. He has been familiar with this crossing for 30 years. On December 19, 1918, he was driving into Edwardsburg on the Cassopolis road in a Ford car with “a closed, glass, winter top on it.” It was a bright clear day and the sun was shining. When about 30 rods from the crossing, plaintiff looked to the right and saw no train coming. When two or three rods back from the tracks he says he stopped or halted and looked again. From this point on he proceeded without again looking to the right. He testifies that at the rate he was then going, “not faster than five miles an hour,” he could have stopped his car in six or eight feet.
    Upon the second track plaintiff’s machine collided with a motor car used by defendant’s section hands and which came from the north on that track. He suffered no personal injuries but the machine was damaged and he expended $20.85 in its repair. He claims the automobile was damaged beyond the-costs of such repairs and recovered a judgment for $100 in both the justice’s and circuit courts.
   Fellows, J.

(after stating the facts). Should the court have directed a verdict for the defendant on the ground of plaintiff’s contributory negligence? We think this question must be answered in the affirmative. If plaintiff looked to the right when 2 rods back from the first track and about 50 feet back from the point of collision, he must have looked indifferently, carelessly, as the motor car was then coming from the north. The section hands testify that they “hollered” to him and this is corroborated by one of plaintiff’s witnesses who heard them “screaming” 20 rods away. Plaintiff testifies that he did not hear them. But laying this aside, for a distance of about 50 feet plaintiff drove his machine at not faster than 5 miles an hour, and could have stopped it in 6 or 8 feet, on a bright clear day with an unobstructed view, onto a railroad crossing, without once glancing to the right. The case is not like those cases where the traveler is. put in a position of peril through the negligence of the defendant and must choose between two courses; nor is it like those cases where the traveler looks and sees the car coming and prudently estimates that he can safely cross;.nor is it a case of an obstructed crossing. In the case of Gillett v. Traction Co., 205 Mich. 410, Mr. Justice Kuhn quite fully reviewed the authorities, and, speaking for the unanimous court, said:

“It was his duty, under the circumstances, not only to look, but to look just before entering the danger zone, so as to make sure that it was safe to cross the track.”

And in Colborne v. Railway, 177 Mich. 139, Chief Justice Steere, speaking for the court, said:

“He could and should have made sure of the safety of proceeding, by looking just before entering upon the track, and at such a point that he could stop his machine if necessary in order to avoid a collision. This rule should be as strictly applied to an automobile as to a pedestrian, and the reasons for its application are more impelling.”

See, also, Manos v. Railway, 168 Mich. 155; Malta v. Railway Co., 69 Mich. 109; Kwiotkowski v. Railway Co., 70 Mich. 549; Miller v. Railway, 200 Mich. 388; Strong v. Railway Co., 156 Mich. 66; Pershing v. Railway Co., 206 Mich. 304; Hardy v. Railway Co., 208 Mich. 622.

But it is said that there was a curve in the track at the left so as to obstruct plaintiff’s vision and he was looking in that direction. In Otto v. Railroad Co., 189 Mich. 463, it was said by this court, speaking through Mr. Justice Person :

“The fact that the view to the south was obscured was not a sufficient reason for his failure to cast his eyes again to the north before going upon the track.”

The case was not disposed of in the court below upon the theory of discovered or subsequent negligence. So far as this record discloses no claim.was there made of subsequent or discovered negligence or gross negligence. We therefore cannot consider the question.

At the time of the accident the defendant was under Federal control. Its property was being operated by the director general of railroads for the government. In Peacock v. Railway Co., 208 Mich. 403, we fully considered this situation and there held that the company was not liable for the negligent acts of the agents of the director general of railroads and dismissed the case as to the railway company. But as the trial there had been conducted without error except as to this question we permitted an amendment substituting the director general of railroads as defendant. In the instant case the judgment must be reversed for the error pointed out. The railway company must also be dismissed. If the plaintiff desires to amend he may make such application to the trial court within 30 days, otherwise the reversal will be without a new trial.

Reversed and remanded for proceedings not inconsistent herewith. Defendant will recover costs of all courts.

Moore, C. J., and Steere, Brooke, Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    DABITS v. HAUSER.
    1. Amendments — Appeal and Error — Pleading.
    On appeal from the dismissal of a bill for the specific enforcement of an oral lease because the date of said alleged lease was Sunday, where there was no claim of mistake in the date, and no request for leave to amend, a motion to amend in this court, relying on an agreement of another date, must be denied, and the case disposed of on the record made in the court below.
    2. Same — Changing Character of Case.
    While the Supreme Court has frequently allowed amendments to prevent reversals for technical errors, it cannot allow amendments which would so change the character of the case and so alter the record as to render a correct disposition of the case by the trial judge an irregular, improper, incorrect, and reversible proceeding.
    8. Evidence — Judicial Notice — Sunday Contract.
    Courts will take judicial notice of the fact that the date of the making of an alleged contract (August 3, 1919), sought to be enforced, was Sunday.
    4. Sunday Contract — Void Contract Cannot be Ratified by Subsequent Acts.
    A contract made on Sunday is not voidable merely, but is absolutely void, and cannot be ratified or validated by subsequent acts.
    5. Same — Equity.
    A court of equity will not enforce a contract made on Sunday.
    6. Equity — Jurisdiction—Disposing of Case.
    Where all the parties were before the court and it had jurisdiction of the subject-matter, it was proper for the court to dispose of the entire case and enter a decree on defendants' cross-bill, although plaintiff’s bill was dismissed because it sought the enforcement of a void contract.
    Appeal from Wayne; Goff (John H.), J.
    Submitted April 8, 1920.
    (Docket No. 30.)
    Decided June 7, 1920.
    Bill by Milos Dabits against Sam Hauser and others to enforce a lease. Defendants filed a cross-bill to obtain possession of the premises. From a decree for defendants, plaintiff appeals.
    Affirmed.

      Joseph H. Primeau, Jr. (Howard H. Campbell, of counsel), for plaintiff.

      Thomas L. Dalton (Frederick P. Hempel, of counsel), for defendant Hauser.

      Edward Pokorny, for other defendants.
   Fellows, J.

It is alleged in the bill filed in this case that on the 3d day of August, 1919, plaintiff and defendant Hauser entered into an oral agreement whereby defendant agreed to enter into a lease for two years from August 1st of certain premises on Clairpointe avenue, Detroit, owned by him, at a monthly rental of $60. Certain acts and expenditures are alleged to have been done and made by plaintiff, claimed by him to be sufficient to take such oral agreement out of the statute of frauds. Defendants Gazivoda and Kosom are vendees of defendant Hauser, having contracted with notice of plaintiff’s rights. By way of cross-bill they seek to be put into possession of the premises.

Upon the hearing it developed that August 3, 1919, was Sunday, and the trial judge held that he should take judicial notice of that fact, that such Sunday contract was void and could not be enforced. He apparently gave plaintiff’s counsel time to consider the matter and to file a brief but eventually entered a decree dismissing the bill and granting the relief prayed in the cross-bill. No claim was made that there had been a mistake of date and no request was made for leave to amend the bill setting up any other or different contract or any other or different date. From this decree plaintiff appeals.

There was testimony on the part of the plaintiff that he bought out one Zarkovich who was then running a pool room on the premises on the 29th day of April, and that he then had an oral agreement with defendant Hauser for a two-year lease at $50 per month; that afterwards Mr. Hauser made some improvements on the premises and insisted that the rent should be advanced $10 per month, and that the agreement of August 3d was then made. There is also testimony of some work being done by plaintiff to put the premises in proper condition, and of the expenditure of money for that purpose and for necessary purchases for the business. Defendant Hauser denies any agreement for a lease or any arrangement for occupancy other than from month to month. In this court plaintiff asks to amend his bill by setting up and relying on the claimed agreement of April 29th. There is a decided conflict in the testimony as to whether an oral agreement for a lease was made April 29th. We shall not consider the conflicting claims of the parties on this question. We must dispose of the case as made by the record unless the plaintiff may here amend his bill and set up a different contract than the one relied upon in the court below. In the recent case of Johnson v. County of Muskegon, 195 Mich. 722, we considered the question of permitting an amendment in this court which would convert a correct result in the trial court into an erroneous proceeding. Speaking of the statute of amendments (3 Comp. Laws 1915, § 12483), we there said:

“This statute has been frequently invoked in. this court to prevent mistrials, and on numerous occasions it has been held that, inasmuch as the amendment might have been made in the court below, this court would make the amendment here on its own motion. * * * But this is done to work an affirmance, .not a reversal; to cure an error, not to create one.”

And we there held that the statute of amendments should not be invoked by this court to defeat a valid judgment; that we could not by permitting an amendment here create error and then reverse for that error. This court has been most liberal in the application of the statute of amendments and has frequently allowed amendments here to prevent reversals for technical errors. But this court is here exercising appellate jurisdiction and it cannot allow amendments which would so change the character of the case and so alter the record as to render a correct disposition of the case by the trial judge an irregular, improper, incorrect and reversible proceeding. We must dispose of this case upon the bill found in this record.

The trial judge was correct in taking judicial notice that August 3, 1919, was Sunday. Hoard v; Stone, 58 Mich. 578. There was also 'testimony given by a witness that the arrangement and agreement, whatever it was, was made on Sunday. The contract sought to be enforced was a Sunday contract. There is no claim that it was actually made on another day or that plaintiff was mistaken as to the daté. The contract being a Sunday contract was not voidable merely but was absolutely void; it was not and could not be ratified by the monthly payment of rent at the rate of $60 per month for two or three months. 2 Comp. Laws 1915, § 7764; Brazee v. Bryant, 50 Mich. 136; Costello v. Ten Eyck, 86 Mich. 348; Aspell v. Hosbein, 98 Mich. 117; Pillen v. Erickson, 125 Mich. 68; Berston v. Gilbert, 180 Mich. 638. The trial judge correctly held that a court of equity would not enforce a contract made on Sunday.

The parties were all before the court and it had jurisdiction of the subject-matter; under such circumstances it was. proper for the court to dispose of the entire case and to enter the decree it did. It is affirmed, with costs of this court.

Moore, C. J., and Steere, Brooke, Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    CHICAGO, DETROIT & CANADA GRAND TRUNK JUNCTION RAILROAD CO. v. SIMONS.
    1. Appeal and Error — Appeals Are Statutory.
    Appeals are statutory, do -not exist at common law, and the legislature in its discretion may prescribe in what cases and under what circumstances appeals may be taken.
    2. Same — Eminent Domain' — Jurisdiction of Appellate Court After Remanding Case.
    Where, upon appeal from an award in condemnation proceedings in the probate court, the Supreme Court set
    . aside the award and remanded the case for a second inquest, it no longer had jurisdiction except to entertain a motion for rehearing or modification, or to tax the costs awarded by its own judgment.
    3. Statutes — Construction.
    In construing a statute all parts should be considered and if possible given force.
    4. Eminent Domain — Second Appeal Not Authorized — Statutes.
    An appeal from a second award in condemnation proceedings in the probate court is not only not given but is by express terms prohibited; the statute (2 Comp. Laws 1915, § 8257) providing that “the second’ report shall be final and conclusive upon all parties interested.”

      5. Same — Appeal prom: Allowance ge Attorney’s Fees.
    Nor is there any provision for an appeal from the amount allowed for attorney’s fees to the owner of the land condemned, independent of an appeal from the award.
    Appeal from Macomb probate court; Reid (Neil), J.
    Submitted April 27,1920.
    (Docket No. 46.)
    Decided June 7, 1920.
    Condemnation proceedings by the Chicago, Detroit & Canada Grand Trunk Junction Railroad Company against David W. Simons and others to acquire certain land for railway purposes. From an order confirming an award of the'jury, plaintiff appeals.
    Affirmed.

      Harrison Geer (H. R. Martin, of counsel), for appellant.

      Lungerhausen & Lungerhausen and William T. Hosner, for appellees.
   Fellows, J.

When this case was here before (200 Mich. 76) we set aside the awards and directed another inquest before a new jury. A second inquest has been had before another jury and plaintiff appeals from the awards to the defendants and the amount allowed for their attorneys. No question of jurisdiction of the trial court is here involved. In taking this appeal, plaintiff has followed the provisions of section 8257, 2 Comp. Laws 1915.

We are met at the threshold of the case with the contention of defendants’ counsel that an appeal does not lie from the awards- made by the second jury; counsel’s contention being that appeals are statutory and unless provided for by statute may not be allowed; that the statute here involved by its terms refuses an appeal from the second award and that this appeal must be dismissed. We shall not quote the inapplicable portions of the section of the statute above cited. After providing for an appeal to this court and, directing how and within what time it shall be taken, it is provided:

“* * * such appeal shall be heard by the Supreme Court at any general or special term thereof, on notice thereof being given according to the rules and practices of the court. On the hearing of such appeal, the court may direct a new appraisal before the same or new commissioners or jury, in its discretion. The second report shall be final and conclusive upon all parties interested,”

—the words in italics being relied upon to support defendants’ contention.

This court, in consonance with other courts of last resort, has uniformly held that appeals are statutory, do not exist at common law, and that the legislature in its discretion may prescribe in what cases and under what circumstances appeals may be taken. Sullivan v. Haug, 82 Mich. 548 (10 L. R. A. 263); Messenger v. Teagan, 106 Mich. 654; Kundinger v. City of Saginaw, 59 Mich. 355; J. F. Hartz Co. v. Lukaszcewski, 200 Mich. 230. Plaintiff must, therefore, look to the statute and to the statute alone for its right to be here heard. We note but disagree with plaintiff’s argument that the first appeal brought the case here and that it has since remained here and that this court should now treat this present appeal as a motion to set aside the second award. We were exercising appellate jurisdiction when the case was here before, and then disposed of it by entering a judgment remanding it for a second inquest. Upon such remand being made the case was no longer here and we no longer had jurisdiction except to entertain a motion for rehearing or modification, and if it had not before been done, to tax the cost awarded by our own judgment. This has been plaintiff’s theory until this question was suggested. It prepared its appeal and brought the case to our attention by following the requirements for an appeal found in the section above cited. It is pretty late in the day to now claim that the case has been here all the time since the first appeal.

We disagree with defendants’ counsel in tjieir claim that the. New York cases cited by plaintiffs counsel in their reply brief (In re New York, etc., R. Co., 64 N. Y. 60; In re Daly, 189 N. Y. 34 [81 N. E. 560] ; In re Board of Water Supply of New York, 167 N. Y. Supp. 529) are distinguishable from the instant case. We think they support in their reasoning the claim made for them by plaintiff’s counsel, but we find ourselves unable to follow them. Their reasoning is this: that where the first award is set aside for irregularities, it is as though no award had been made. And it necessarily follows, we think, under these holdings of the New York courts, that there is no award until one has been had that is free from irregularities and proof against all assaults. But such an award from its very nature is final, binding, and conclusive on the parties, and the provision of the statute there and. here under consideration, as construed by the New York courts, has no meaning and might as well have been omitted from the statute. If only an award is to be considered as the first award which is final and conclusive on the parties we can perceive no occasion for providing that “the second report shall be final and conclusive upon all parties interested.” It is a well recognized rule of statutory construction that all parts of a statute shall be considered and if possible given force. The construction indulged in by the New York courts reads out of the statute the language just quoted, and we are not inclined to follow them. Indeed we are impressed that this court is foreclosed from following such construction by its former holding.

In at least two cases (Soller v. Township of Brown, 67 Mich. 422; Brown v. Greenfield Township Board, 109 Mich. 557) this court had under consideration the provisions of 3 How. Stat. (1st Ed.), § 1303, which provided for a hearing by the township board of an appeal from the decision of the highway commissioner in laying out a highway and awarding damages for the lands taken. The statute provided that the decision of the township board “shall be conclusive and final.” In each of these cases this court gave effect to this provision of the statute and dismissed writs of certiorari brought to review such proceedings. In United States Gypsum Co. v. Kent Circuit Judge, 150 Mich. 668, an appeal had been taken to the circuit court of Kent county from an order of the probate court dismissing a condemnation proceeding. This court held that appeals are statutory and that there being no statutory provision for such an appeal to that court the appeal should be dismissed. In Appeal of S. O. Houghton, 42 Cal. 35, where the court had under consideration a statute of similar purport to the one here involved, it was held that the trial court might under its inherent power entertain a motion for a new trial but that appeals were statutory and no appeal would lie from the second report. We quote from the syllabus:

“The acts of 1868 and 1870, to modify the grades of streets in San Francisco, in declaring that the judg- • ment of the county court on the second report of the commissioners' shall be ‘final and conclusive,’ means that there shall be no appeal from the judgment, and that it shall not be reviewed by the court, except by motion for a new trial.”

Mr. Justice Crockett, who wrote the prevailing opinion, said:

“It is our duty to give effect, if practicable, to every portion of the statute; and we cannot presume that, in declaring the final and conclusive effect of the judgment, the legislature intended to announce only what would have been equally apparent without that clause. We must seek for some other and more effective meaning in the phrase ‘final and conclusive,’ and none other has been suggested or occurs to me than that the judgment shall be final and conclusive for all purposes whatsoever, and shall end the litigation. This, in effect, is to deny an appeal from the judgment, and to make it absolutely conclusive on the parties. > It is not our province to discuss the wisdom and policy of such legislation. This belongs solely to the legislative department, whose enactments it is our duty to expound, in accordance with the expressed will of the legislature.”

And in Bowman v. Jobs, 123 Ind. 44 (23 N. E. 976), it was said:

“But, as we have already said, under the statute of 1881, when the second viewers reported adversely to the utility of the highway the petitioners had reached their rope’s end, and the board of commissioners could take no further step, except to approve the- report and render a judgment for costs.”

If any effect is to be given the language under consideration we must sustain defendants’ contention that the right of appeal from a'second award is not given by the statute and is by express terms prohibited. This court cannot read out of the act the language quoted. It was placed there by the legislature and with its wisdom we are not concerned. Our duty requires us to give it force if possible. We are constrained to sustain defendants’ contention.

We do not understand that plaintiff contends that we may consider the reasonableness of the amount allowed for defendants’ attorneys independent of an appeal from the awards. If such contention is made it is effectively answered, and indeed our right to review such an allowance is settled by the case of Detroit, etc., R. Co. v. Hall, 135 Mich. 302, where it was said:

“It will be observed there is no provision in the statute for an appeal from the order of the judge making an allowance for an attorney fee. This would indicate the legislature deemed the judge before whom the proceeding was had better qualified to pass upon that question than would be a tribunal before whom all of the proceedings would not appear in the record, and intended to make the action of the trial judge final.”

The appeal will be dismissed with costs of this court to defendants.

Moore, C. J., and Steere, Brooke, Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    TIERNEY v. UNION SCHOOL DISTRICT OF BAY CITY.
    Appeal and Error — Moor Case — Dismissal.
    Where it appears that an appeal presents simply abstract questions of law which do not rest on existing facts or rights, and is therefore a moot case, and that action by the appellate court would be futile, the case will be dismissed.
    Appeal from Bay; Houghton (Samuel G.), J.
    Submitted April 7, 1920.
    (Docket No. 7.)
    Decided June 7, 1920.
    Bill by Harry J. Tierney against the Union School District of Bay City to enjoin the expenditure of certain money. From a decree dismissing the bill, plaintiff appeals.
    Dismissed.

      Coumans & Gaffney, for plaintiff.

      Lewis J. Weadock, for defendant.
   Fellows, J.

On June 11, 1919, the board of education of defendant Union School District of Bay City adopted a resolution submitting to the qualified electors of the district the question of issuing the bonds of the district in the sum of $1,000,000, such sum to be used in the erection of suitable school houses. A special election was called for July 2d. On June 13th the board appropriated from its contingent fund certain moneys to be used in conducting an advertising and educational campaign upon the needs of the district for additional school facilities. Plaintiff, a large taxpayer of the district, thereupon filed this bill for an injunction to restrain such use of the district funds upon the ground that such action was ultra vires. The bill as filed made the district and certain individuals defendants, but at the hearing in the trial court plaintiff dismissed as to the individual defendants. The opinion of the trial judge dismissing the bill was filed June 25th and the formal decree was entered a few days later. On July 7th, and after the election had been held, an appeal was taken to this court.

The plaintiff having voluntarily dismissed his bill as to the individual defendants, no relief can be had against them for the money expended if we should conclude the action was ultra vires; the election having occurred many months ago, the granting of the injunction prayed for would be an idle act. The case presents simply abstract questions of law which do not rest on existing facts or rights, and is therefore a moot case. Where it appears from the record that action by this court would be futile by reason of the lapse of time, the case will be dismissed. Schouwink v. Ferguson, 191 Mich. 284; Carlson v. Wyman, 189 Mich. 402; Howe v. Doyle, 187 Mich. 655; East Saginaw R. Co. v. Wildman, 58 Mich. 286; Hides v. J. B. Pearce Co., 158 Mich. 502; Brown, ex rel. Van Buren, v. Lawrence, 197 Mich. 178; Ideal Furnace Co. v. International Holders’ Union, .204 Mich. 811; Blickle v. Board of Education, ante, 196; 2 High on Injunction (4th Ed.), § 1701a.

As this conclusion is reached by the court sua sponte the appeal will be dismissed without costs.

Moore, C. J., and Steere, Brooke, Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    ROSSMAN v. WARD.
    1. Bona Fide Purchaser — Personal Property — Notice.
    Where the purchaser of personal property has notice of facts which would put an ordinarily prudent man upon inquiry, he cannot be considered a bona: fide purchaser if he neglect to take such care of his own interests as an ordinarily prudent man would.
    2. Replevin — -Bona Fide Purchaser — Actual Notice — Question oe Law.
    Where defendant, in replevin proceedings for the possession of an automobile, purchased it from a stranger without making any inquiry as to whether plaintiffs’ claim, of which he had actual notice, had been discharged or not, he was not, as a matter of law, a bona fide purchaser.
    Error tq Mecosta; Lamb (Fred S.), J., presiding.
    Submitted April 21, 1920.
    (Docket No. 80.)
    Decided June 7, 1920.

      • Replevin by Manning Rossman and others against Alfonzo Ward for the possession of an automobile. Judgment for plaintiffs. Defendant brings error.
    Affirmed.

      J. Claude Youdan (Frank J. Powers, of counsel), for appellant.

      Cogger & Dumon, for appellees.
    Plaintiffs are farmers, owning and operating a farm near Lakeview, Montcalm county. For several years they had in their employ a man named Harry Stroup. There is no dispute as to the terms of his employment except for the season of 1918. While in the employ of plaintiffs in 1917, Mr. Stroup concluded he wanted an automobile but did not have the money to pay for it and approached plaintiffs for financial assistance in the matter. These negotiations resulted in the purchase by Mr. Stroup of a second hand Ford for $300. To pay for the car he gave his note for $50 indorsed by one of the plaintiffs, and they furnished the balance of $250 in cash, taking a paper which amounted to a chattel mortgage on the machine to secure the payment of this sum. Mr. Stroup made but few payments on the amount due on this chattel mortgage during the balance of that season. The parties disagree as to the arrangements for the season of 1918. The plaintiffs claim they were to pay Stroup $30 per month in cash and credit him with $20 per month on the amount due and if he remained the full season of 8 months, they were to. credit him with the further sum of $80 which was to be treated as a bonus. He insists he was to have $60 per month if he stayed the full season, and $50 per month if he quit before the season ended. It is undisputed that Stroup did not work the full season but it is a disputed question as to whether he was discharged or quit of his own accord.
    Stroup and one of the plaintiffs took the car to the garage of one Bollinger at Lakeview, the idea being to have some repairs made upon it and to have it sold by Mr. Bollinger in order that both parties might get their money out of it. Bollinger was informed both orally and in writing of plaintiffs’ claim on the car. He advertised the car for sale. Defendant saw the advertisement and went to the Bollinger garage to see the car. It suited him and the price was satisfactory but he did not want to pay all cash, was willing to pay $150 in cash and give a property note for the balance of $100. Bollinger told him plaintiffs owned the car or had a claim on it, the testimony varies as to the exact language used, and referred defendant to them to see about the terms of payment. Shortly after this defendant went to plaintiffs’ place and there had a talk with one of them about buying the car and about giving a property note. They were willing to accept any note they could use at their bank but did not want to take a property note. About two weeks after this Mr. Stroup went to the Bollinger garage at Lakeview and, while Mr. Bollinger was in the back room, took the car out although he had been forbidden by Bollinger so to do. He drove to Morley where he left the car in a garage and went over to see the defendant. Defendant was not acquainted with Mr. Stroup< until he came to his place. Mr. Stroup told defendant he had the car in his possession; that he would sell the car to him. Some of defendant’s testimony is significant. He testifies on cross-examination:

      “Q. * * * Why did you tell him you didn’t want to get in any mix-up?

      “A. On the garage at Morley.

      “Q. Why did you do that?

      “A. His saying it was the same car. I didn’t know whether he owned the car or not.

      “Q. Didn’t you know it was the same car you tried to buy of Rossmans?

      “A. He told me it was.”
    Defendant claims to have then bought the car of Stroup, paying him $150 in cash and giving him his note for $90.
    Plaintiffs brought this action of replevin and defendant gave the required bond and retained possession of the car. The trial judge submitted the case to the jury upon the question of the plaintiffs’ lien, they claiming it to be $147, and Mr. Stroup claiming it to be but $90, which amount had been tendered by him before the trial. The trial judge was of the opinion that inasmuch as the undisputed testimony and the’ admissions of the defendant established the fact that: defendant had actual notice of plaintiffs’ claim before.' he purchased the car he could not claim the benefits of a bona fide purchaser. He therefore withdrew the question of whether defendant was a bona fide purchaser from the jury. The jury found the lien to be $147, and to review a judgment entered in accordance with the verdict defendant brings the case here.
   Fellows, J.

(after stating the facts). There are numerous assignments of error but under the well recognized rule we shall only consider those relied upon by appellant in his brief. We need not consider the effect to be given the filing of the chattel mortgage without having attached to it the affidavit required by the statute (8 Comp. Laws 1915, § 11988), or whether the proof sufficiently established that the original mortgage as filed did not have such affidavit attached, as the trial judge disposed of this feature of the case upon the ground that defendant had actual notice and therefore whether he had constructive notice or not was unimportant. Defendant, in answer to a question asked by a juror as to whether he made any attempt to find out whether the Rossman claim had been satisfied, replied that he did not, and added that he never thought of it until after he had paid the money. While this answer was not in strict accord with other testimony given by defendant, it is urged by defendant’s counsel that, when taken in connection with other testimony, it makes the question of bona fides a question for the jury. The difficulty with defendant’s contention lies in the fact that he is invoking the rules of the law merchant, of negotiable instruments, to a case not involving commercial paper. We are not here dealing with the purchase of a promissory note in due course or with what constitutes mala fides in such purchase. We are here dealing with the purchase of personal property upon which the plaintiffs had a lien, of which lien defendant had actual notice before he purchased the property. That the rule is different is settled by this court. In Detroit Nat. Bank v. Union Trust Co., 145 Mich. 656, it was said:

“It is a general rule applicable to transactions not involving commercial paper, that where one has notice of facts which would put an ordinarily prudent man upon inquiry, he cannot be considered a bona, fide purchaser, if he neglects to take such care of his own interests as an ordinarily prudent man would do, but that rule has not been applied to commercial paper.”

In the instant case the proofs are undisputed and it is admitted that when defendant first saw the car and negotiated for its purchase he was informed that plaintiffs owned it or had a claim upon it; he saw one of plaintiffs and was unable to make satisfactory terms of payment; about two weeks later a stranger offered .'him the same car he had tried to purchase of plaintiffs and told him it was the same car. He says he did not know whether this stranger owned the car or not. He claims to have then bought it without inquiry as to whether plaintiffs’ claim had been. discharged or not. Under such circumstances he is not a bona fide purchaser, and the fact, if it be a fact, that in his anxiety to acquire the car on favorable terms he forgot the plaintiffs’ claim, his negotiations with them, or that he had notice of such claim, does not alter the situation. He was not a bona fide purchaser and the trial judge correctly disposed of the case.

The judgment is affirmed.

Moore, C. J., and Steere, Brooke, Stone, Clark, Bird, and Sharpe, JJ., concurred.


author: Bird, J.

text:
    PEOPLE v. URCAVITCH.
    1. Constitutional Law — Statutes—Mandatory Constitutional Provisions — Intoxicating Liquors.
    In a prosecution for the illegal possession of intoxicating liquors in violation of Act No. 53, Pub. Acts 1919, amending Act No-. 338, Pub. Acts 1917, defendant’s contention that said act is unconstitutional because it makes no provision for a person to possess, import, or transport intoxicating liquors for medicinal purposes, as required by section 11, Art. 16, Constitution of Michigan, held, not tenable, since the provisions of sections 9, 11, and 19 open the way to one who is in need of intoxicating liquors for medicinal purposes to obtain the same.
    2. Same — Statutes—Immediate Effect — Judicial Review.
    The question as to whether the legislature is within its rights in giving immediate effect to a statute, limited by the State Constitution. (Art. 5, § 21) to appropriation» and to the preservation of the public peace, health or safety, is reviewable by the courts.
    3. Same — Legislative Discretion — Abuse.
    Before declaring a statute inoperative because given immediate effect it should clearly appear that the legislature has abused its prerogative in this respect.
    4. Same — Intoxicating Liquors- — Statutes—Judicial Notice.
    The court will take judicial notice of the fact that the “Wiley Act" (Act No. 338, Pub. Acts 1917), prohibiting the manufacture and sale of intoxicating liquors within the State, had only recently gone into effect when amended by Act No. 53, Pub. Acts 1919, presumably to correct some defect in the provisions provided for its enforcement.
    5. Same — Intoxicating Liquors — Regulation — Prohibition — ' Statutes — Judicial Notice.
    The court will also take judicial notice of the fact that in ■passing from a State policy of regulation of the liquor ' traffic to one of prohibition, much legislation would bo necessary to provide for its enforcement.
    6. Same — Statutes—Immediate Effect — Evidence— Sufficiency —Legislative Discretion.
    The showing on this record held, insufficient to warrant this court in holding that under the necessities of the-situation, the legislature was not justified in giving immediate effect to Act No. 53, Pub. Acts 1919, amending the “Wiley Act."
    Exceptions before judgment from Berrien; White (Charles E.), J.
    Submitted April 16, 1920.
    (Docket No. 117.)
    Decided June 7, 1920.
    John Urcavitch was convicted of violating the liquor law.
    Affirmed.

      O’Hara & O’Hara, for appellant.

      John J. Sterling, Prosecuting Attorney, for the people.
   Bird, J.

While defendant was en route from Chicago to his home in Grand Rapids he was arrested and taken from the train at Niles, Berrien county, for having imported into Berrien county, and having in his possession, five gallons of whisky.

Upon the trial defendant testified he was a molder by trade. That the dust incident to that business had affected his lungs and chest. That he consulted a physician, who advised him to take daily an admixture of whisky and hot butter or lard as a remedy therefor. Acting upon this advice he went to the city of Chicago and purchased five gallons of whisky and started home with it, but was intercepted and arrested while passing through Berrien county. He testified that he purchased it and had it in his possession for medicinal purposes. The trial court advised the jury that defendant’s testimony, which was uncontradicted, was no defense to the charge in the information. Conviction followed and the proceedings are here for review on exceptions before sentence.

Defendant’s counsel raises two constitutional questions:

(a) That the amendment (Act No. 53, Pub. Acts 1919) to the Wiley law (Act No. 338, Pub. Acts 1917), is unconstitutional, because it makes no provision for a person to possess, import or transport intoxicating liquors for medicinal purposes.

(5) Because the amendment was given immediate effect.

a. The section of the Constitution upon which counsel relies is section 11 of article 16. It reads:

“The manufacture, sale, keeping for sale, giving away, bartering or furnishing of any vinous, malt, brewed, fermented, spirituous or intoxicating liquors, except for medicinal, mechanical, chemical, scientific or sacramental purposes, shall be, after April thirty, nineteen hundred eighteen, prohibited in the State forever. The legislature shall, by law, provide regulations for the sale of such liquors for medicinal, mechanical, chemical, scientific and sacramental purposes.”

It is argued by counsel that if the legislature exercised its prerogative under this section to pass a prohibitory law it was its duty to make provision therein for the sale of intoxicating liquor for medicinal, mechanical, chemical, scientific and sacramental purposes. It is claimed that this was not done by the legislature, and that as a result of the passage of Act No. 53, of the Public Acts of 1919, no one has a right to possess intoxicating liquors even though he has made a lawful purchase of the same from a druggist.

We might be inclined to agree v/ith counsel that the Wiley law, as amended, was unconstitutional if it can be said that the legislature failed to observe therein this constitutional mandate but such decision is not necessary. It is true that section 2 of the act makes it unlawful for one to be in possession of intoxicating liquors, but section 9 provides that the inhibition shall not be construed,—

“to prevent the sale and keeping and storing for sale by druggists * * * of intoxicating liquors for medicinal, mechanical, chemical or sacramental purposes, or of wine for sacramental purposes by- religious bodies.”

Section 11 provides that druggists may sell intoxicating liquors for the excepted purposes, and section 19 provides that physicians may prescribe intoxicating liquors for medicinal purposes.

We are of the opinion that these provisions open the way to one who is in need of intoxicating liquors for medicinal purposes to obtain the same. Of course, it may be said that the acquisition of it is preceded by much “red tape,” but as the legislature has made it possible to secure it, the mere fact that it is hedged about with many safeguards would not result in making the law unconstitutional.

Had the physician who prescribed the remedy of whisky and hot butter or lard for defendant’s malady given him a prescription therefor, he could have obtained the whisky from any qualified druggist in the city of Grand Rapids, and in this way he could have secured possession of it lawfully. But it is argued that after he obtains it in this way he could be -apprehended by the public authorities for having possession of it. We do not think this is a reasonable construction of the act.' When the Constitution commands the legislature to make provision for the sale of intoxicating liquors for medicinal purposes, and it does so, it would be going outside of the realm of reason to say that one who becomes the purchaser of liquor in compliance with these provisions was, the moment he got possession thereof, guilty of violating the act. People v. Harris, 202 Mich. 622. It is quite evident, too, that the legislature contemplated that one might be in the lawful possession of intoxicating liquors as is evinced by the following section:

“It shall be unlawful for any person to import, ship, sell, transport, deliver, receive or have in his possession any intoxicating liquors except as in this act provided.” . Act No. 53, Pub. Acts 1919, § 57

Our conclusion is that the act is not unconstitutional for this reason.

b. Was the legislature within its rights in giving the amendment immediate effect? We held in Attorney General v. Lindsay, 178 Mich. 524, that this question was reviewable by the courts. We are of the opinion, however, that before declaring a law inoperative for this reason it should clearly appear that the legislature has abused its prerogative in this respect. The court will take notice of the fact that the act prohibiting the manufacture and sale of intoxicating liquors within the State had only recently gone into effect when this amendment was added to the Wiley law, presumably to correct some defect in the provisions provided for the enforcement thereof. We may also take notice that in passing from a State policy of regulation of the liquor traffic to one of prohibition, much legislation would be necessary to provide for its enforcement. The necessities of the situation which prompted the passage of the amendment were doubtless then before the legislature, and we do not feel that the showing on this record would warrant us in holding that the situation of affairs at that time did not justify giving it immediate effect.

Finding no error in the record the judgment of conviction will be affirmed. The court will proceed to sentence.

Moore, C. J., and Steere, Brooke, Fellows, and Stone, JJ., concurred. Clark and Sharpe, JJ., did not sit.


author: Steeee, J.

text:
    PEOPLE v. STAMBOSVA.
    1. Constitutional Law — Statutes—Police Power — Intoxioatinq Liquors — Due Process of Law.
    The provision, in Act No. 53, Pub. Acts 1919, amending Act No. 338, Pub. Acts 1917, prohibiting the possession of liquor by a private person for his own use, held, not in violation of the constitutional inhibition against depriving a person of his liberty and property without due process of law. but to be a proper exercise of the police power of the State to make more effective the prohibition of the liquor traffic under the constitutional mandate.
    2. Same — Judicial Notice of Litigation Before the Court— Intoxicating Liquors.
    The Supreme Court will take judicial notice of the sequence of legislation and litigation which prevailed, and the cases which came before it in official efforts to enforce and put into effect the constitutional amendment prohibiting the liquor traffic.
    3. Same — Statutes—Immediate Effect — Presumptions.
    Following the holding by this court that the “Damon Act” was repealed by the “Wiley Act” (204 Mich. 559), the emergency of passing effective legislation for the enforcement of State-wide prohibition became a legislative question, and under the legitimate intendment, presumption, or inferences to be made and drawn from the situation disclosed in favor of the propriety of such legislative action, this court cannot say that the giving immediate effect to Act No. 53, Pub. Acts 1919, amending the “Wiley Act” (Act No. 338, Pub. Acts 1917), constituted a clear violation of the limitation imposed by Article 5, § 21, of the State Constitution.
    Exceptions before judgment from Muskegon; Vanderwerp (John),-J.
    Submitted April 16, 1920.
    (Docket No. 112.)
    Decided June 7, 1920.
    Spyros Stambosva was convicted of violating the liquor law.
    Affirmed.

      Macdonald & Macdonald, for appellant.

      Alex. J. Groesbeck, Attorney General, Christian A. Broek, Prosecuting Attorney, and Harry W. Jackson, Assistant Prosecuting Attorney, for the people.
   Steeee, J.

The material facts in this case are few and practically undisputed. Defendant ran a retail fruit business in the city of Muskegon, also selling canned goods and vegetables, advertising under the name of the White Front Fruit & Vegetable Company. On April 11, 1919, the assistant chief of police of Muskegon made proper sworn complaint on information and belief and obtained a warrant to search defendant’s place of business for intoxicating liquor.. -The officers sent with the search warrant to defendant’s fruit store, which was located on the main business street of Muskegon, found the place in charge of a party who informed them defendant was temporarily absent but would' soon return. Advising the party in charge of their mission they proceeded to search the place for liquor, without results until they discovered a locked trunk in a back room, the heft of which and “chug” they heard from within led them to think it contained liquor, and they waited for a time until defendant would return to have him open the locked trunk. On his return they told him why they were there. He said he had some whisky in there and they told him to “open it up,” which he did. The trunk contained 8 quart bottles of whisky which the officers seized. Upon the trial defendant took the stand and admitted the possession of the whisky, and circumstances at his place of business as told by the officers, said that he had “always been a drinking man” and bought this whisky for his own use; that he had never sold or offered any liquor for sale in his place of business. He was convicted of unlawfully having in his possession as charged 8 quarts of whisky, not held by him for mechanical, scientific, medical or sacramental purposes, “contrary to the form of the statute in such case made and provided.”

Counsel for appellant concisely say in their brief that upon the uncontroverted facts “the question is merely the legality of the law under which the defendant was arrested.” He was arrested and tried under Act No. 338, Pub. Acts 1917, as amended by Act No. 53, Pub. Acts 1919, passed April 1st and by its concluding provision given immediate effect.

The principal contention made for the defense against the validity of the law, as applied to the case in hand under the undisputed facts, is that the legislative attempt to give Act No. 53 of 1919 immediate effect was void, being in contravention of section 21, article 5, of our Constitution which forbids such course except as to acts making appropriations or immediately necessary for preservation of public health, peace and safety. Somewhat auxiliary to that contention it is argued with citation of some supporting authority that legislation prohibiting a person from possession of intoxicating liquors for personal use is unconstitutional, as abridging the immunities and privileges of a citizen without justification, and urged that possession of liquor for one’s own use cannot in any aspect of the question be so inherently dangerous to the public health, peace and safety as to warrant immediate legislation “making it a criminal act.”

Whatever views may in times past have been entertained and in varying degree expressed by some courts and text writers as to the natural and inalienable right of a citizen to make, possess and use for his own comfort intoxicating liquor provided he did not otherwise use or sell any for unlawful purposes, under the present state of the law upon the subject the police power of the State acting through its legislature to control in that particular is well settled. In Mugler v. Kansas, 123 U. S. 623 (8 Sup. Ct. Rep. 273), a leading case in which the subject of prohibition is exhaustively reviewed by Justice Harlan it is said of the right to make for private use:

“And so, if, in the judgment of the legislature, the manufacture of intoxicating liquors for the maker’s own use, as a beverage, would tend to cripple, if it did not defeat, the effort to guard the community against the evils attending the excessive use of such liquors, it is not for the courts, upon their views as to what is best and safest for the community, to disregard the legislative determination of that question. So far from such a regulation having no relation to the general end sought to be accomplished, the entire scheme of prohibition, as embodied in the_ constitution and laws of Kansas, might fail, if the right of each citizen to manufacture intoxicating liquors for his own use as a beverage were recognized.”

In the comparatively recent case of Crane v. Campbell, 245 U. S. 304 (38 Sup. Ct. Rep. 98), directly involving the right of the State to prohibit and punish the possession of intoxicating liquor for personal use, the Mugler Case and various other decisions are cited as to the power of the State to absolutely prohibit, and directly to the point of possession, it is said:

_ “As the State has the power above indicated to prohibit, it may adopt such measures as are reasonably appropriate or needful to render exercise of that power effective. Booth v. Illinois, 184 U. S. 425 (22 Sup. Ct. Rep. 425) ; Silz v. Hesterberg, 211 U. S. 31 (29 Sup. Ct. Rep. 10) ; Murphy v. California, 225 U. S. 623 (32 Sup. Ct. Rep. 697, 41 L. R. A. [N. S.] 153) ; and Rast v. Van Deman & Lewis Co., 240 U. S. 342, 364 (36 Sup. Ct. Rep. 370, L. R. A. 1917A, 421, Ann. Cas. 1917B, 455). And, considering the notorious difficulties always attendant upon efforts to suppress traffic in liquors, we are unable to say that the challenged inhibition of their possession was arbitrary and unreasonable or without proper relation to the legitimate legislative purpose. We further think it| clearly follows from our numerous decisions upholding prohibition legislation that the right to hold intoxicating liquors for personal use is not one of those fundamental privileges of a citizen of the United States which no State may abridge.”

•Before the constitutional adoption of State-wide prohibition and the present supplemental legislation, a somewhat analogous question was before this court under the local option law. Act No. 381, Pub. Acts 1913 (2 Comp. Laws 1915, § 7118 et seq.), made it a criminal offense within prohibited territory to keep, store or possess intoxicating liquor in any structure, building or room “other than the private residence of such person and which is not used as a place of public resort.” In People v. Wheeler, 185 Mich. 164, defendant’s conviction under that provision of the act was unsuccessfully attacked on various constitutional grounds. The provision was held not to be in violation of the constitutional inhibition against depriving a person of his liberty and property without due process of law, but a proper exercise of the police power of the State for effectively accomplishing the purpose of the legislation.

Upon the contention that the legislature violated section 21, article 5, of the Constitution, by giving Act No. 53, Pub. Acts 1919, immediate effect, counsel for both sides refrain from reference to Attorney General v. Lindsay, 178 Mich. 524, where the subject is discussed at some length. It is perhaps sufficient from that case to note the court there fully recognized the rule requiring every intendment to be taken in favor of the propriety and validity of legislative action, and that in case of doubt courts should not interfere to thwart the legislative will. Approaching the question of legislative determination of an emergency with that rule in mind, it seems pertinent to point out in the sequence of events that after adoption of the Statewide prohibition at the November election of 1916, the legislature of 1917 enacted two laws for carrying into effect and enforcing the constitutional amendment, the first being Act No. 161, called the “Damon act,” followed by Act No. 338, called the “Wiley act,” both by their terms becoming effective May 1, 1918, contemporaneous with the constitutional prohibition amendment, and Act No. 53 of 1919 quickly followed a decision of this court holding the Damon act had been repealed.

If not fully at liberty to take judicial notice of the defiant lawlessness and disturbances in certain parts of the State resulting from active violation and official efforts to enforce and put the prohibition law into effect, which were matters of press comment and common knowledge, the court can at least take notice of the sequence of legislation and litigation which prevailed, and the cases which came before it upon that subject following the advent of prohibition. It was strenuously contended for the people before this court in People v. Marxhausen, 204 Mich. 559, that the Damon act (Act No. 161, Pub. Acts 1917), under which defendant was prosecuted, or a law of similar import touching possession of intoxicating liquors, was vital to an efficient enforcement of prohibition under the constitutional mandate, and for that reason the case was removed to this court by the people, underAct No. 159, Pub. Acts 1917, to review a judgment of the circuit court quashing the information and ordering return of liquor seized. The case was submitted in January, 1919, while the legislature of that year was in session, and an early decision requested in the public interest. It was decided February 18, 1919. The somewhat erroneous general impression as to what was decided in that case seems to yet' linger, for we find it cited in defendant’s brief as a supporting case, with argument apparently based on the supposition that the court passed adversely on the constitutionality of the then prohibition law.. That case only decided that the Damon law under which defendant was prosecuted had been repealed by the Wiley act, and that in any aspect neither of the acts conferred the arbitrary right of search and seizure without legal process as assumed and exercised by the officers in the Marxhausen Case; the shown invasion of defendant’s home in his absence, without a search warrant or authority from any court, was commented upon and pronounced an unauthorized trespass and invasion of his constitutional rights. Following the handing down of that decision, Act No. 53, amending the Wiley act, to compass unlawful possession, with the constitutional rights of the citizen in his home safeguarded by proper provisions, was passed by the legislature then in session and given immediate effect. Concededly the emergency or immediate necessity was in the first instance a legislative question, and clearly, we think, under the legitimate intendment, presumption or inferences to be made and drawn from the situation disclosed in favor of the propriety of such legislative action the court cannot hold that the legislation in question constitutes a clear violation of the limitation invoked.

The conviction will stand affirmed, and as the record does not disclose at what stage of proceedings after conviction the case was removed to this court, it is remanded for such further proper proceedings as may be required in harmony with this opinion.

Moore, C. J., and Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.