author: Christiancy J. G-raves J. Campbell J.

text:
    The People ex rel. the Regents of the University v. The Auditor General.

      Mandamus: Regents of the University: Professorship of homeopathy. The legislature having provided for the payment, to the Regents of the University, of a tax of one-twentieth of ft mill on the dollar, upon all the taxable property in the state, “ Provided, That the Regents of the University shall carry into effect the law which provides that there shall always be at least one professor of Homoeopathy in the Department of Medicine, and appoint said professor at the same salary as the other professors in this department.” And the regents having adopted certain resolutions “that there be organized in the Department of Medicine a school to be called the Michigan School of Homoeopathy, to be located at such place (suitable in the opinion of the Board of Regents) other than Ann Arbor, in the State of Michigan, as shall pledge to the Board of Regents by June 20th next, the greatest amount for buildings and endowment of said school,” and appropriating $0,000, besides the salaries of Professors, out of said tax, to be expended in establishing said School of Homoeopathy, and appointing, for the present, one Professor in said school at the same salary as the other Professors, the Auditor General refused to issue his warrant on the State Treasurer for the payment of any of the money raised by said tax, on the ground that the resolution of the Regents did not constitute performance of the condition, upon which the aid was granted to the University; and insisting that the condition required the appointment of such Professor in the existing Medical Department of the University at Ann Arbor, and not elsewhere. On motion for a mandamus to compel him to issue his warrant, the writ was not granted, a majority of the court not assenting to the issuing of the writ.

      Heard June 2d.

      Decided July 13th.

      Mandamus.

    This ivas an application, by the Board of Regents of the Michigan University, to compel the Auditor General to pay the sum of $3,000, which they had appropriated by resolution to establish a school of Homoeopathy.
    The petition set forth that, by the - act of the legislature — Sess. L. 1855, p. 23£— it was provided that there shall be “ at least one professor of Homoeopathy in the department of medicine” in the University. That, by the act of 1867, it was further provided that the Board of Regents of said University should appoint said professor in the department of medicine, at the same salary as the other professors in. said department. That subsequently the said regents passed the resolutions stated in the opinion of Ohristiancy J.

      The respondent declined to pay the said money, for the reason that the Regents proposed to establish said school at a place other than Ann Arbor, the present seat of the University, and that their action did not constitute performance of the condition of the grants.

      Walker <& Kent, for the relators.
    There is but one question here. Is there a professor of Homoeopathy in the department of medicine in the University of Michigan?
    The regents claim that they have fully and. fairly complied with the law, and made the appointment contemplated.
    The Auditor General takes the ground that the location of the school at some other place than at Ann Arbor is illegal. It must be conceded that the regents have entered upon the purpose of establishing the-school of homoeopathy in good faith. As to the question of policy we have nothing to do; we have merely to consider the right construction of the law.
    It is a question of power. Have the regents the power to so locate the school? There is nothing in the law itself which indicates that the departments must all be confined to one place.
    (Mr. Kent here referred to several statutes providing for branches of the University in different congressional and judicial districts of the state. One of these provided that such branches shall not have the right of conferring degrees.)
    It was not at all necessary that the University, in all its parts, be located at Ann Arbor. The word University properly applies to a union in one whole, of many parts; as universe, comprehending parts in one; a collection or union of a number of colleges in one corporate body: as the University of London, a corporation of London, but including associate colleges in Canada and other British possesions. The University of Cambridge is located at Cambridge, but its medical school is at Boston. At Paris the University of France is a corporate body, having branches everywhere through France.
    As a matter of convenience, the location should be left to the discretion of the Board of Begents. Departments should be located where the best practical advantages can be had. There might be good reason for the location of a department of mining in a mining district, and equally good reasons why medical departments should be located where there is a large population.
    There is nothing in the law limiting the Board of Be-gents from establishing different departments in different places. Can the court decide that the regents have exceeded their powers?

      Wm. L. Stoughton, Attorney General, and Wm. Jennison, for respondent.
    The law of 1851 — Comp. L. p. 711 — declares that the University shall consist of at least three departments: first, a department of literature, science and arts; second, a department of law; third, a department of medicine; fourth, such other departments as the regents shall deem necessary.
    The law of 1855 provides that there shall be at least “one professor of homoeopathy in the department of medicine.” By the law of 1867 it is provided that the regents shall “appoint said professor in the department of medi'cine, at the same salary as the other professors in this department.” The Constitution, Art. 12, §£, provides that the Board of Begents shall have the general supervision of the University, and the direction and control of all expenditures from the University interest fund. '
    1. The regents have no such controlling power outside of the act of the legislature as justifies them in establishing a school of homoeopathy in a place separate and apart from the place where the “department of medicine” in the University is established — to wit, at Ann Arbor.
    The entire legislation concerning the University shows that the legislature gives to the Board of Begents but limited control. The corporation is a public one, created for a public purpose, and supported by the public fund. The corporators have no private interest whatever.
    The Legislature is the guardian. The Begents are instruments.— Laws 1817; Id. 1821, p. 448; Id. 1827; Id. 1837, p. 234; Id. 1867, p. 85; 4 Mich. 222; 12 Id. 166.

    2. They are therefore governed by the limitations of the act. That act provides that there shall be three departments, one of which shall be the “department of medicine,” consisting of its various professorships, but an entirety in itself. A division or separation of the parts of the department is inconsistent with the language of the act, and the object of its establishment. A medical education can only be obtained through the means of the facilities offered by the department. Section 11 of the act provides that the government of the several departments be entrusted to the president and faculties of the University; clearly showing that it was never intended that the said “departments” should be separated from the seat of the University, the residence of the president and faculties. The law of 1867, under which the regents seek to obtain this money, provides that a professor of homoeopathy shall be appointed in the “department of medicine, at the same salary as the other professors in this department.”
    This language surely can only mean that a new professor is to be added to the professorships already existing in the “department of medicine” in the University at Ann Arbor. As it is admitted that the professorship is to be established at a place other than where the department of medicine already is, the Auditor General has no authority to pay out money for such a purpose.

      It can not be claimed that the “school” is established as a branch of the University.

      a. It does not appear that the income of the University will admit of establishing branches.— Comp. L. §2200.

      b. The fact that branches of the University can not confer degrees, Avould defeat the very object the legislature had in view — the placing both systems of medicine on an equality so far as public instruction is concerned.

      c. The fact that the resolutions appropriate over §1,500 per year shows conclusively that it is not a branch, — 2 Comp. L. §2200, subd. 18.

      d. The regents have neither selected a trustee or a chartered institution of the state. — Id. §2201.

    The defendant has no desire to keep the money in question from the University. But it is his duty to see that money is not paid out of the treasury in violation, or without authority, of law.
   Christiancy J.

The controversy in this case grows out of the conflict between two hostile schools or theories of medicine, both claiming the public patronage and the. aid of the public funds for their promulgation in the medical department of the University. The adherents of the allopathic theory, which is the oldest and most generally recognized, having obtained a legal recognition from the regents in the establishment of the medical department, have continued to keep the exclusive control of it to the present time. While the adherents of the opposite, or homoeopathic school, claiming equal rights in an institution supported alike by the common funds of the whole people, have been unable to obtain any recognition from the board of regents, or, up to this time, any aid from the public funds for teaching their theory of medicine in this public institution. Fortunately, the present case does not call upon us to determine the merits of the respective theories or systems about which the “ doctors disagree.”

■But the question whether the homoeopathic theory should be recognized and taught in the medical department of the University as well as the allopathic, and both thereby be placed upon substantially the same fair grounds of competition, and allowed to test by results their respective claims to popular patronage, has twice been presented to the legislature and deliberately considered and decided by them, so far as they have any power over the question, in a manner which can leave no reasonable- doubt of their intention.

First, in 18.55, when the act of 1851, for the government of the University, was amended by adding at the end of the fifth section the following words: “Provided that there shall always be at least one professor of homoeopathy in the department of medicine”; so that the section, when amended, should read as follows: “The regents shall have power to enact ordinances, by-laws and. regulations for the government of the University, to elect a president, to fix, increase and reduce the regular number of professors and tutors, and to appoint the same, and to determine the amount of their salaries: Provided, That there shall always be at least one professor of Homoeopathy in the department of medicine”— Laws 1855, p. 2S2. This act was approved February IS, 1855.

At the January term of the late Supreme Court for 1856, the regents not having complied with the injunction of this act, to appoint a “professor of homoeopathy in the department of medicine,” one Drake, a private citizen, moved the court for a mandamus to compel the regents to perform this duty. To this the Regents, after some preliminary objections, answered in substance that, owing to the antagonism between the two systems of medicine, they could not act wisely upon the subject without full deliberation; that they had, in the previous March, appointed a committee to take the subject into consideration, and correspond with the various institutions in Europe and America to ascertain the feasibility of uniting such a professorship with-the existing college, and how, if possible, it could best be done, and where the best man could be found, and that this committee had not concluded its labors.

To this the relator demurred. The majority of the court, after deciding that the proceedings for a mandamus could not be maintained at the instance of Drake, the relator (who showed no particular interest affected), without the action of the Attorney General or the Prosecuting Attorney — a decision which disposed of the case and left nothing for adjudication — nevertheless proceeded to give their opinion upon the question raised by the demurrer: and after intimating that they could not “discover in the answer of the Regents, or in the visible result of their labors any clear evidence of activity or zeal in the prosecution of this duty,” they declare that they can not, on the other hand, clearly perceive, under all the circumstances of the case, that there had been any unnecessary delay or lack of good faith in their proceedings. They further remark that the regents “aver that they have acted in good faith, but, at the same time, under the influence of much uncertainty as to the constitutionality of the law,” “ and we are compelled (say the majority of the court) to recognize in this question what might well suggest doubts of the binding force of the law, and occasion some hesitation in their action.”

This remark seems to have been understood, and was probably intended as the intimation of a doubt of the constitutional power of the legislature to control the action of the regents in the manner attempted in the act. Owing to the expression of this doubt, or to some other cause, we hear nothing more of any attempt on the part of the regents for more than eleven years to carry the act into effect. Whether their committee ever made a report wre are not informed. But probably the regents would not claim to have been endeavoring in good faith to carry into effect this statute for the whole or any part of the eleven years succeeding: believing their duty to the University required them to disregard the act. After that decision the probability is that no further effort was made to give it effect. And, owing probably to the same intimation of the court, no further attempt seems to have been made to compel their obedience by mandamus.

But during the session of 1807 an application was made to the legislature for a grant of further pecuniary aid to the University beyond the income of the University fund. This legislature, like that of 1855, still determined that students in the medical department should have the opportunity and the option of studying medicin'e, as well upon the homoeopathic as the allopathic system, were not willing to grant the pecuniary aid asked, unless they could at the same time secure this object. And seeing that the regents had disregarded their wishes as expressed in the act of 1855, and perhaps doubting their power to control the action of the regents in this matter by direct legislative injunction, they determined to grant them further pecuniary aid upon the condition precedent, that the regents should first carry into effect the act of 1855, before any of the money to be raised for this purpose should be paid to them; thus avoiding all question of constitutional power. To accomplish this purpose, the act of March, 1867, imposing a tax of one-twentieth of a mill upon the dollar of all taxable property in the state, was made subject to the express proviso, “That the Regents of the University shall carry into effect the law which provides that there shall always be at least one professor of homoeopathy in the department of medicine; and appoint said professor at the same salary as the other professors in this department; and the state treasurer shall not pay to the treasurer of the Board of Regents any part or all of the above tax, until the regents shall have carried into effect this proviso.”

Under this act of 1867, (even admitting the act of 1855 not to have been obligatory upon the Regents,) it was for the Regents to elect whether they would comply in good faith with the act of 1855, and this proviso in the act of 1867, according to the true intent and understanding of the Legislature, or forego all advantages of this appropriation, which was only made them on this express condition.

The Regents claim thus to have complied with this condition by the adoption on the 25 th of March last of the following resolutions:

Resolved, That the Board of Regents accepts the aid proffered by the Legislature of Michigan, by the act approved March 15, 1867, with the terms and conditions thereof.
Resolved, That in order to comply with the conditions imposed by said act, there be organized in the department of medicine a school, to be called the “Michigan School of Homoeopathy,” to be located at such place (suitable in the opinion of the Board of Regents) other than Ann Arbor, in the State of Michigan, as shall pledge to the Board of Regents, by June 20 next, the greatest amount for the buildings and said endowment of school.
Resolved, That two professors be appointed for said school, one at this time, and another prior to the opening of said school, and others as may be necessary.
Resolved, That the sum of $8,000 be appropriated, besides the salaries of the professors, out of the state tax, so donated to the University, to be expended in establishing said School of I-Iomceopathy.
Resolved,. That Dr. Chas. J. Hempel, be apppointed Professor of the Theory and Practice of Homoeopathic Medicine in the Michigan School of Homoeopathy, at the salary of $1,000 per annum, from this date, to be paid out of said fund so donated.”

Claiming that these resolutions constitute a full performance of the condition of the appropriation, the Regents, by their treasurer, have applied to the Auditor General for his warrant upon the state treasurer for the money, or a part of it, raised by the act of 1867. The Auditor General, not satisfied that this action constitutes a performance of the condition, has refused his warrant; and the Regents now move for a mandamus to compel him to issue it.

Whether this action of the Regents constitutes a full performance of the condition of the appropriation, is the only question necessary to the decision of this case.

The power of the Regents, independent of these acts of 1855 and 1867, to establish such a .professorship in the medical department at Ann Arbor, where that department has from the first been established, and was in successful operation at the time of these acts, is not denied. On the other hand, the regents do not claim the power of establishing this, or any other professorship, as a part of the University, at any other place,'from either of these acts. But they claim that, under the general powers of supervision and control of the University, by the Constitution and the act of 1851, they have the right to establish professorships, as a part of any department of the University, as well at any other place as at Ann Arbor; and hence that they are at liberty, under these acts of 1855 and 1867, to establish this particular professorship elsewhere; and that this will constitute performance of the condition upon which this appropriation. was granted.

While I do not concur in this view, but hold that the University, having been located at Ann Arbor by the act of 1837, Sess. L. p. 102, however desirable it may be to establish a department or professorship elsewhere, a legislative permission to that effect must first be obtained— see Underwood v. Waldron, 12 Mich. 73; People v. Trustees of Geneva College, 5 Wend. 211; People v. Oakland County Bank, 1 Doug. Mich. 282; Comp. L. § 2192 — though doubtless the Regents may perform their functions any where in the state, and all the powers of the several faculties are not necessarily confined to that locality — yet I do not, for the purposes of this case, consider it necessary to discuss this question of power in any way: and shall therefore proceed to consider the question now before ns, upon the assumed hypothesis that the Regents, independent of these acts, had, prior to and at the time of their passage, an implied power to establish professorships elsewhere than at Ann Arbor; and I proceed to inquire whether, upon this admission, these resolutions of the Regents looking to the establishment of a Michigan School of Homoeopathy at some place not yet determined upon, other than Ann Arbor, constitute a performance of the condition which the legislature intended to impose by the adoption of the proviso.

It is essential to the fair understanding of this question to bear in mind the circumstances under which the acts containing the condition was passed.

It must be recollected that at the time of the passage of both these acts of 1855 and 1867, the University, with all its departments and professorships; its buildings, libraries, cabinets, laboratories, apparatus, and all the other conveniences and property of, the institution, had been for years existing, in fact, upon the University grounds at Ann Arbor; where the medical department and that of literature, science and the arts, had already, in 1855, been for years in successful operation, and that these and the law department were all in still more successful operation at the same place in 1867; that the University as a whole, had been by law, located there for thirty years, and that none of the departments or professorships had, from its first establishment there, ever been located elsewhere. We must also recollect that large and commodious buildings had for some years been erected upon the University grounds, at the same place, for the special use of, and occupied by the department of medicine; that in these buildings had been provided, at large-public expense, such apparatus, furniture and conveniences as are essential to their use, in the attainment of an education in the medical profession in all its branches. We must also bear in mind that in the acquisition of the scientific knowledge necessary alike to the profession .under both theories of practice, the same preliminary studies are required, the same knowledge of all cognate sciences; that in most branches of the science of medicine itself — .such as anatomy, physiology, surgery, obstetrics, and even for the most part pathology — the course of instruction is the same, and the books and authorities the same: the two systems differing mainly in their theories of the principles upon which medicines are supposed to operate in the cure of diseases.; that in fact four-fifths of the entire course of professional instruction are the same under both systems; and all the same apparatus, the anatomical demonstrations, and surgical operations, the same material, collections of specimens and other conveniences for instruction, and therefore most of the same professorships and lectures are required alike by the students of each system.

(•riving due weight to these considerations, which we must naturally suppose would operate upon the minds of legislators endowed with plain common sense; bearing in mind the history of' the conflict between the two systems in the legislature and in court; the persistence with which the legislature adhered to their determination to secure instruction in homoeopathy in the department of medicine; is it not most natural to infer that the legislature when they spoke of a “professor of homoeopathy in the medical department,” used the language in the ordinary popular sense, as intended to designate the medical department as it was already established and in operation at Ann Arbor; and that they intended such professorship to have a real and actual rather than ‘a merely metaphysical and purely nominal connection with the. department of medicine? Is it not reasonable to infer that they intended to give to the professorship of homoeopathy the same essential advantages growing out of an immediate and real connection with the department of medicine, as already established, that were enjoyed by the other professorships in that department?- that' they intended to give to the students in that department, if they should so elect, an equal opportunity of studying the profession upon the homoeopathic system, with the like substantial •advantages . to be derived from the other professorships in the department, and the other advantages incident to a direct and intimate connection with the department and with the University ?

Would it not, in fact, border upon absurdity, to undertake to account for the solicitude and persistency of the legislature in this matter, if, after all, they only intended to secure the establishment of a single professorship (for this is all that is required), at some place other than Aun Arbor, having no real- connection with the University or the department of medicine, and none of the advantages to be derived from such a connection — ho aid from the other professors — when more than four-fifths of the studies essential even to the homoeopathic physician, could not be pursued with any advantage in such a separate school of homoeopathy alone?

If this had been their purpose, why call upon the Regents of the University to help them accomplish it? For, upon this idea, the Regents might almost as well be called upon to mingle in the affairs of a railroad corporation, or any other institution having no real or natural connection with the University.

The homoepathic theory constitutes but a small part of the study essential to the homoeopathic physician. Did the legislature seek to confine all the students to the study of that theory alone, who should choose to study it at all? Was the purpose of this apparently careful and persistent course, of legislation intended only as a solemn mockery — as a dismal practical joke ?

It seems to me very evident that the legislature could not have contemplated a separate school of homoeopathy alone; and .yet it is equally clear that if, as the Regents seem to suppose, they contemplated a separate school at all, they must have contemplated a school for the study of homoeopathy alone; for they have made no provision for giving instruction to such students in any other branch of medical science, if the school is to be elsewhere than in the medical department at Ann Arbor.

It will be conceded that the legislature contemplated a professorship in which students might actually receive instruction; they must therefore have contemplated a professorship which should have a potential existence somewhere ; so established, at some place, as to be able to enter upon the practical business of 'giving instruction to students. But these resolutions establish no such professorship anywhere. At most they look only to the future and contingent establishment of a “Michigan School of Homceopathy,” at such place other than Aun Arbor, as, in the opinion of the regents shall be suitable, and “as shall by the twentieth day of June (then) next, pledge to the Board of Regents the greatest amount for buildings and endowments for said school.” Now it does not appear that any place has yet pledged any sum for those purposes; and certainly it can not be conclusively presumed that any place will do so. Until this is done, it is not to be established at any place, or rather, in plain English, it is not till then to be established at all, even in these paper resolutions. I am therefore inclined to think the regents are at least premature in this application; and that, under any vierv that can be taken, they ought to have waited until this professorship should be established as a practical entity, capable of vital action.

Suppose a student wishes to resort to this “Michigan School of Homoeopathy” for instruction. Where will he find it? It is yet to be found only in the state at large, as much in one place as another; omnipresent except at Ann Arbor, but no where visible or palpable to the senses. Will he find it any the more readily by being told, in the language of this resolution, that it is “ organized in the Department of Medicine,” not where the department is, but at some place not yet determined, outside of. Ann Arbor? Can it be for a moment seriously contended that this was all that was contemplated by the Legislature?

Have the legislature at two separate sessions been making all this ado about a professorship of homoeopathy, for no other purpose than to enable such professor to draw a salary, without the performance of any duty?

These considerations, with many others which might be urged, produce upon my mind a very strong conviction that the legislature intended to require, by this condition, that the professorship of homoeopathy should be established practically, and in fact in the medical department, where that department is already established and in operation, at Ann Arbor.

Upon the policy or impolicy of attempting to establish it there, I express no opinion. It is not a question for this court. Of the good faith of the Begents, however, and their desire to act as may be best for the interest of the University, there can be no reason to doubt. But I think they have mistaken the true intent of the condition upon which this appropriation was made, and that they have mistaken in some measure their constitutional powers. The mere power of “supervision” given by the constitution, whether subject to, or independent 'of, legislative control, should not, I think, be confounded with -the power to create or establish a University, or to change its location, in Avhole or in part, as previously fixed by the legislature and recognized by the constitution.

G-raves J.

The act of 1851, for the government of the University, provided that there should be three departments, one of which should be a department of medicine, and that such other departments should be added as the Begents should deem necessary, and the state of the ’University fund should allow. As originally adopted, the fifth section of the act was as follows: “ Section 5. The ’Begents shall have power to enact ordinances, by-laws and regulations for the government of the University; to elect a President; to fix, increase and reduce the regular number of professors and tutors, and to appoint the same, and to determine the amount of their salaries.”

' In 1852, the Board of Regents made their fourteenth annual report, and therein made the following representations :

“In the University it is designed to organize all the Faculties, with the exception of the theological, which will be left to the different denominations. It is to be hoped, however, that schools of theology will be established at Ann Arbor. In some departments of theological science, it may be possible for the different denominations to unite in establishing common professorships. In others they will naturally choose to have separate professorships. But every one will perceive, at once, the advantages to be derived from collecting all the learned Facilities in one place, where the students can enjoy the common benefit of the University library, and attend, at their pleasure, while engaged in particular professional studies, lectures on other branches of literature and science. Thus, too, a more general spirit of scholarship will be awakened, and a generous competition kept alive. There are already organized two Faculties: that of science, literature and the arts, and that of medicine. The medical department already established belongs to the University proper. Here instruction is carried on by lectures, the design of which is to present to students a complete outline of medical science, and to direct them in their studies. By the study of learned works, and by availing themselves of all the preparations made for the thorough study of their profession, they shall be enabled to compose the thesis, and pass the examinations which are to tost their scholarship and prove them worthy of being admitted as Doctors of Medicine.”

This report having been made in December, 1852, the legislature, in the winter of 1855, amended Section 5 above quoted by adding thereto the following proviso: “Provided that there shall always be at least one professor of homoeopathy in the department of medicine.” The Regents omitting to make any appointment under this proviso, an application was made to this court, at the January term, in 1856, on the relation of a private citizen for a mandamus to compel such appointment.

The application was resisted upon several grounds; but among the most prominent were the following: First, That the Regents had a discretion, under the constitution, in the administration of the University,.and in the application of its funds, with which the legislature could not interfere in the manner attempted; and, second,, That a committee appointed for the purpose by the Regents were then conducting an inquiry as to the feasibility of uniting such a professorship as that proposed with the existing college, and, if found practicable, then in what way the project could be most advantageously carried out, and where the most suitable person for the position could be found; and that the committee had not had sufficient time to complete its labors.

Although the court refused the application without finding it necessary to pass distinctly upon the constitutional question, it seems proper to quote a considerable portion of the opinion delivered on that occasion, in order to understand the real significance of subsequent events.

The observations to which allusion is here, made were as follows:

“The views we have expressed would seem to make it unnecessary to decide the other questions presented, particularly the constitutional question, but we have thought it would be proper to pass upon the questions presented by the answer and demurrer. 'We- will, therefore, proceed to an examination of the answer. The facts being admitted, their sufficiency in law to defeat this proceeding is alone to be considered. The respondents state their belief, that the law requiring them to appoint a Homoeopathic Professor in the Medical Department of the University, is unconstitutional. Yet, being desirous of treating with proper respect the expression of the legislative will in the section quoted, they did, on the 30th of March last, appoint a committee to enter into correspondence with other universities in Europe, -and in this country, to determine the feasibility of establishing such a professorship, and the most eligible person to fill such a chair, when established, and, that the committee has been actually engaged ever since in conducting such correspondence, and in gathering information from all sources, and are still engaged diligently in the same work.
The respondents are constitutional officers, to whom are confided by the Constitution, Art. IS, Sec. 8, “the general supervision of the University, and the direction and control of all expenditures from the University Interest Fund.” They are elected by the people. They come, at short intervals, fresh from the body of the people, and can not be supposed to be influenced by sentiments not common to those 'they represent. To their judgment and discretion, as a body, is committed the supervision of the financial and all other interests of an institution in which all the people of this state have a very great interest. In the words of the law in question, they are required to enact ordinances, by-laws, and regulations for the government of fhe University; to reduce and increase the regular number of professors, and to appoint the same, and to determine the amount of their salaries. To this body of men, possessing such powers, and upon whom such duties are incumbent, this proviso is directed. They had already provided professors for the medical department, under a system which had been in successful operation many years, and they were required to introduce a new, and as they say, an antagonistic element into that department, which in their judgment was likely to clash with the system already established, and produce embarrassment to the Board, and the institution under their control, not easily to be surmounted, and which it required time and investigation to harmonize and adjust. They, nevertheless, entered upon the proper investigations, with a view to 'accomplish the duty devolved upon them by the law. They aver, that in the month of March, of last year, and before the law took effect, they entered upon the active discharge of duties, which must precede the actual appointment of the new professors; and, though we have not been able to discover in their answer, or in any visible result of their labors, any clear evidence of their' activity and zeal, in the prosecution of their duty, neither are we able clearly to perceive, under all the circumstances of the case, that there has been any unnecessary delay, or lack of good faith in their proceedings. They aver that they have acted in good faith, but, at the same time, under the influence of much uncertainty, as to the constitutionality of the law, and we are compelled to recognize, in this question, what might well suggest doubts of the binding force of the law, and occasion some hesitation in their action. ■
The relator suggests no pressing necessity for the immediate action of the Board, neither does he show that the rights of any individual or class of persons is jeoparded or injuriously affected by the delay that has occurred in their action. All that is averred, or that can be inferred from the affidavit of the relator, is, that the Board of Begents have hitherto, and unnecessarily, neglected to obey the behests of the law, which is claimed to be binding upon them, and which demands a more speedy obedience to its requirements than has been yielded to it by the respondents. The real question is one of time. The respondents have not refused to act, but they have acted tardily, and, as the relator suggests, in bad faith, if at all. We, however, are of the opinion, upon a full view of all the facts presented for our consideration, and which are admitted by the relator, that the case made out is not one which would authorize the further action of this court, at this time. We admit, that a mandamus, though a prerogative writ, is demandable of right in a proper ease, yet it is only to be granted by this court in the exercise of a sound legal discretion; and, hence, ought only to be invoked in cases of the last necessity. This necessity we have been unable clearly to discover in this case. The Board of Regents have a sound discretion to exercise, and until it is made apparent that they seek to evade the law, by unnecessary and willful delays, the exercise of our discretionary power can not be called into action.”— The People v. The Regents, 4 Mich. 98.

The opinion from which this citation is drawn was pronounced more than twelve years ago, and received the unqualified assent of all the members of the court.

No appointment, however, being made in conformity with the requirements of the act of 1855, the legislature, in 1867, passed an act in aid of the University, which provided “that there shall be assessed, upon the taxable property of this-state, in the year 1867, and in each year thereafter, for the use, aid and maintenance of the University of Michigan, the sum of one - twentieth of a mill on each dollar of said taxable property, assessed and paid into the treasury of the state, in like manner as other state taxes are by law levied, assessed and paid; which tax, when collected, shall be paid by the state treasurer to the treasurer of the Board of Regents of the University, in like manner as the interest on the University fund is paid to said treasurer of said board: Provided, That the Regents of the University shall carry into effect the law which provides that there shall always be at least one Professor of Homoeopathy in the Department of Medicine, and appoint said professor at the same salary as the other professors in this department, and the state treasurer shall not pay to the treasurer of the Board of Regents any part or all of the above tax until the Regents shall have carried into effect this proviso.”

On the 25th day of Mareh, 1867, the following resolutions were adopted by the Regents:

“ Resolved, That the Board of Eegents accepts the aid proffered by the Legislature of Michigan, by the act approved March 15, 1867, with the terms and conditions thereof.
Resolved, That, in order to comply with the conditions imposed by said act, there be organized, in the department of medicine, a school, to be called the “ Michigan School of Homoeopathy,” to be located at such place (suitable in the opinion of the Board of Eegents) other than Ann Arbor, in the State of Michigan, as shall pledge to the Board of Eegents, by June 20th next, the greatest amount for the buildings and endowment of said school.
Resolved, That two professors be appointed for said school, one at this time, and another prior to the opening of said school, and others as may be necessary.
Resolved, That the sum of $8,000 be appropriated, besides ihe salary of the professors, out of the state tax, so donated to the University, to be expended in establishing said school of Homoeopathy.
Resolved, That Dr. Chas. J. Hempel be appointed Professor of the Theory and Practice of Homoeopathic Medicine in the Michigan School of Homoeopathy, at the salary of $1,000 per annum, from this date, to be paid out of said fund so donated.”

Dr. Hempel, having accepted the appointment, a formal application was made to the Auditor General, for his warrant upon the Treasurer, for the money raised under the act of 1867, which was refused, upon the ground, among others, that the establishment of the professorship, at a place distant from Ann Arbor, was not a compliance with the legislation of 1855 and 1867. It is understood, also, that the State Treasurer, under the advice of the Attorney General, concurred with the Auditor General in this opinion.

Under these circumstances, an application is made to this court, at the instance of the Eegents, for a -peremptory mandamus, to require the Auditor General to issue the warrant.

The manifest object of this proceeding, is to draw from the State Treasury, by the compulsory power of this court, the money raised under the act of 1867, and as the constitution declares that “no money shall be paid out of the Treasury, except in pursuance of appropriations made by law,” the application ought not to be granted except upon the clearest conviction of its propriety.

But the peculiar nature of the object sought in this instance does not present the only reason for judicial circumspection.

The law applicable to the writ of mandamus, as expressly declared by this court, determines that the writ should only be issued where the legal right is clear.— The People v. The Judges, 1 Doug. 319. The whole current of authority is to the saíne effect. “ A mandamus will only lie to give effect to a clear legal right.” — The People v. Supervisors of Chenango County, 1 Kernan, 563, 574 “It ought not to be issued in cases of doubtful right.”— Life and Fire Insurance Co. v. Wilson’s Heirs, 8 Peters, 291, 302, 303; 2 Selwyn’s N. P. by Wheaton, 6 Ed. 1094 The writ “may be compared to a bill in equity for a specific performance,” — 1 Chitty’s Gen. Prac. 789 — and it “will not be granted unless the act required to be done be clearly within the act or duty to be performed.” — Id. 796.

Let it be conceded that, by their general authority, the Regents were authorized to establish branches of the University at places remote from Ann Arbor, and possessed the most ample power to apply, in their discretion, all the funds absolutely provided for the administration of the University. The question as to whether their action in the present ■ instance has been such as to warrant them in demanding, and justify the court in granting the particular remedy invoked must still remain. It is by no means determined by such concession.

The statutes relating to the establishment of a Homoepathic professorship, are considered by the Regents as a legislative offer, to be accepted or refused, and not as making an unqualified appropriation for the use of the University. They have distinctly placed themselves upon this ground in their corporate proceedings and in their opposition to the motion for a mandamus in 1856, and in their present application. It is quite appropriate to consider their present petition upon that basis.

In order to dp this, however, it is expedient to put aside all reasoning founded on an imputed power in the Begents, to use, according to their discretion, all funds uncondition-, ally appropriated, since, from the nature of the case, and the position taken by them, such an inquiry would be quite irrelevant.

In proceeding to consider the action of the legislature, as the Begents have considered it, as embodying a proposal on the part of the legislature to grant the money on the precedent condition that the Begents should establish a Homceopathic professorship in the department of medicine, it must follow that, in order to enforce payment of the money, the Begents would be bound to show that the condition had been accepted and performed in the same sense in which it was “proffered.” — 1 Parsons on Contracts, 5 Ed. 475 and notes, and 477 and notes; Fry on Specific Performance, 135-145, 2 Am. Ed. and notes; Hartford and New Haven R. R. Co. v. Jackson Conn. 514; Allen v. McKean 1 Sumn. 276, 304-310.

And, as we have seen, that the remedy sought is only allowable in a clear case, it is evident that, in the absence of any other objection to it, it should not be granted unless it should be clear that the acceptance and performance were answerable to the intent of the legislature.

If upon the whole case it be at all doubtful whether or not the course pursued by the Begents constitutes such acceptance and performance, then 'by the hypothesis the writ ought not to issue.

It is maintained, on the part of the petitioners, that they have clearly performed the condition, and according to its just intent and meaning.

The contrary view is understood to be entertained by the respondent, the State Treasurer, and the Attorney General.

Pursuing the theory of the petitioners, that the laws of 1855 and 1867 constituted a proposal to the Regents by the legislature, we may apply the rule of law and ethics, that when the terms of a pronjise admit of more senses than one, it is to be performed in that sense in which the promisor apprehended at the time that the promisee received it. Potter v. Ontario and Livingston Ins. Co. 5 Hill, 147, 149; Hoffman v. Ætna Ins. Co. 32 N. Y. 405, 413.

Is it then clear that the legislature apprehended that the Regents understood their offer as one to be satisfied by'the establishment of the professorship at some other place than Ann Arbor? This question can not be fairly considered without keeping in view the precedent and co-existing circumstances. Before the act of 1851, the University Avas established at Ann Arbor, and grounds there provided for the necessary buildings; and in 1852, much had been done in the improvement of the grounds, in the erection of buildings, and in providing apparatus, a library, and other things requisite for such an institution. The college, in all its departments, Avas there situated, and the Board of Regents reported, for the guidance of the legislature, that the department of medicine belonged to the “University proper,” and that the advantages to be derived from collecting all the learned faculties in one place, could be perceived at once. According to universal understanding, the institution Avas then regarded, and has been since regarded, as having its seat and its orrly seat at Ann Arbor.

Under these circumstances, the act of 1855 was passed, and it did not in terms or by inference suggest or imply that the professorship mentioned should be distinguished from the other professorships of the institution, or of the department of. medicine, as to the place of its establishment. It is, therefore, not unreasonable to suppose that the legislature, in providing for the new professorship, in the department which belonged to the “University proper,” had reference to tire condition of things actually existing, including the local position of such, department, and not to a condition which, so far as is known, had never been proposed or intimated. — -See the opinion of my brother Campbell in Tyler’s case, 7 Mich. 212, 216, 217, and the several opinions in Twitchell v. Blodgett, 13 Mich. 127; also Norris v. Showerman, 2 Doug. 16; Allen v. McKean, 1 Sumn. 276, 304-310.

When the application was made to this court, in 1856, to coerce compliance with the act of 1855, it was not intimated by, or on behalf of, the Regents, or supposed by the court, in so far as appears in the report, that the last named act could be complied with except by the establishment of the Professorship at Ann Arbor; while, on the contrary, the Regents took the ground, which was 'expressly noticed in the opinion of the court, that the law required the introduction of a new and antagonistic element- into the department of medicine likely to clash with the system already established, and produce embarrassment to the board and the institution not easily to be surmounted, and which it would require time and investigation to harmonize and adjust. Indeed, it is very plain that some of the objections were based on the tacit admission, that the proviso required the Professorship to be at Ann Arbor.

It does not appear to have occurred to the Regents or the Court that the whole difficulty could be surmounted, and the law, at the same time, complied with, by the simple expedient of establishing the new Professorship at a distance from Ann Arbor; and it seems hardly possible to reconcile the views their expressed, with the supposition that those who expressed them did, at that time, imagine that the law could be thus executed. The court then said, “the real question is one of time,” and no other place than Ann Arbor appears to have been thought of.

The controversy attracted much attention, and the general public and the Legislature must naturally have inferred, from the ground of opposition on the part of the Regents and tlie opinion of the court, that the law of 1855 was believed and understood to' require the establishment of the new Professorship at the place where the institution and all its Professorships were established, where were accumulated all the instruments of education, and where alone were to be found the buildings provided for the use of the college; and that the difficulty in the execution of the statute, in the view of the Regents, consisted in its requiring that there should be brought together, in the same University, and at the same place, professors of opposing schools in the same department.

The facts which have been mentioned, and the opinion of the court, which has been in part quoted, must have been present to the legislature when the act of 1867 was passed. And when we consider the nature of these facts, and the tenor of this opinion, is it not probable that the legislature then supposed the Regents understood the alleged offer as requiring the specified professorship to be at Ann Arbor?

Is it not probable that those who so persistently insisted upon the new professorship meant and apprehended that the Regents understood that the professorships before established, and that sought to be established, should be placed on terms of substantial equality, in respect to all advantages and opportunities depending upon location, and the instrumentalities of education; and that all students should have access, at all times, to all the sources of knowledge which either school should supply? When we consider all the circumstances, including the representation of the Regents in 1852, that all the faculties ought to be collected at Ann Arbor, is it clear that the legislature, in 1855, intended or supposed they were understood as intending that the new professorship should be established at a distance from that place, and apart from the facilities there provided, pen though such action should result in giving superior advantages to the new school ?

It seems to me that these questions will not admit of an answer favorable to the views of the petitioners. Notwithstanding that it was urged in 185 G that the new professorship, if introduced, would be an antagonistic element in the University, the Legislature, in 18G7, insisted upon compliance with the first act, without any qualification. The Regents at the former time seem to have, understood, and I think that the legislature was authorized to infer, that they understood that the act of 1855 required, the professorship to be at Ann Arbor.

If the thought of another location was not present to the legislative mind, then the legislature could not have intended a location elsewhere, and if none was intended elsewhere, the design must have been that the professorship should be where the University, including the department of medicine, was situated, since a location at some place was inevitably involved in the statutory requirement.

Upon deliberate consideration I can discover nothing in the laws in question to indicate that any separation of professorships, in the department of medicine, was designed or thought of, but, on "the contrary, the purpose appears to have been to supply a new element of instruction for the benefit of all who should attend the college as situated and established.

Whether the action of the legislature in this regard was wise or unwise, Avkether, if consummated it would be likely to result in injury to the institution, is not our province to determine. The case is not one in which that question could be properly debated,'if in any case it could be a proper topic for discussion in this court. The laws in question were enacted in due form; at all events that is not disputed, and the present application is based upon an alleged compliance with them, and not upon an excuse for non-compliance. That the eminent men to whom the people have confided the supervision of one of the noblest educational institutions of this or .of any age, have faithfully endeavored to execute their trust, I have no doubt. But the question for our determination does not depend upon this consideration. We are asked by the petitioners to decide in substance that it is clear that they have accepted and acted upon the offer contained in the acts referred to in the same sense in which the legislature apprehended that the Regents understood it, and such decision I can not concur in making.

The legislature required the establishment of the new professorship at some place; and it is not only not clear, but quite unlikely that they meant, or that they supposed the Regents understood them as meaning that it should be at a point distant from the seat of the University and all its appointments.

I am, therefore, of opinion, upon the grounds stated, that the writ ought not to issue.

To avoid misapprehension, it is proper to say, that I am not prepared to admit that the Regents have the power to establish a professorship at a place other than Ann Arbor, but as the disposition of the present case does not require us to decide that question, I forbear to* discuss it.

Campbell J.

As a majority of the court have not been able to coincide in opinion upon the motion before us, I propose to indicate as briefly as I can the general views on which I think the relators are entitled to relief.

As the money in dispute is a mere offer to the Regents of that which would not otherwise belong to them, of course the donors may affix conditions to it. And the condition they have affixed to this grant is that “there shall be at least one Professor of Homoeopathy in the Department of Medicine.” This is a plain and single provision, and leaves but a single question open to decision, which is whether any portion of the Department of Medicine can be established ut a .place outside of Ann Arbor.

The University is divided into three departments, and those are extensive enough to include all branches of human inquiry relating to secular pursuits. ' There are in the collegiate department, and there may be in either of the others, many entirely different courses of study, which no student can pursue at the same time, and which may or may not occupy in part the same ground. In the various courses of instruction which are now, or which may be hereafter, devised for the teaching of specific arts or sciences, there must always be more or less divergence as students fit themselves for the laboratory, the forge, the mine, the farm, or other branches of business or professional pursuits. And it must always be left to the Eegents, as the only body which can lawfully carry on the administration of the University, to parcel out the studies as in their good 'judgment seems best. Any student who enters the University, and selects his course, must confine himself to that course as they have, arranged it, and they must decide what pursuits can profitably be allowed to go on together.

If they should see fit to include in the Medical Department instruction in the theories and practice of any number of conflicting schools, or to provide courses for different special branches, as for dentistry, for diseases of the eye and ear, for nervous diseases, or for the treatment of insanity, it must be obvious that whether these should call for discordant teachings, or should merely require students to follow select but harmonious courses, there must still be some rule which would exclude one student from attempting to learn all at once. If he should attend one course, he must absent himself from others, and this must be regulated by the Eegents.

Whether students of one system could profitably attend at the same time the teachings of two conflicting schools, or whether the professors could be wisely or harmoniously amalgamated into one body, is not a judicial question, but one of administration, to be settled by the authorities of the University; and if students of homoeopathy were to pursue their studies at Ann Arbor, we have, as a court, no means of knowing whether they could or would profitably avail themselves of the teachings now established there. Upon many branches of medical teaching it is very obvious that a lecturer must of necessity inculcate his views upon treatment and curative systems, on which there would be radical differences. To what extent these differences would separate students under the various professorships, it is not for us to determine. But it is at least quite .possible that there should be a general, if not an entire divergence. In other words, it is impossible for a court to assume that the location of a homoeopathic professorship at Ann Arbor would be more desirable or profitable than elsewhere, or that the system could be introduced without an entire division of courses of lectures and other instruction. Such seems to be the conclusion of the Regents, who upon this subject have all the responsibility of determination.

It can not be doubted that where courses of study are different, there is no necessity for conducting them in the same place. And unless there is some rule of law which confines the entire operations of the University to a single place, there can be no objection to the course taken by the Regents in this case.

The only reason given anywhere for denying their power is that under the law, the University is located at Ann Arbor, and that any removal of its place, or any transaction of business away from its place, is unauthorized.

It is beyond dispute that where, by its charter, the business of a corporation is localized, it must be done in the place prescribed. Our own decisions are full on this subject. But it is just as well settled that where the business is not localized no such rule exists.

Thus, for example, we have many corporations where nothing is localized but the business offices. We have several mining charters of this kind. Navigation companies furnish another familiar instance. Insurance companies, companies for scientific and exploring purposes, and many others might be readily suggested.

I think that the purposes expressed in the various provisions concerning the University, preclude the idea that all of its operations must be local. In its origin in 1817, it had no locality prescribed, and its functions were expected to be performed in many places. So when the modifying law of 1821 was passed, it was located in Detroit, but its functions were ubiquitous. While thus established, and after it had been directly recognized both by Congress and the treaty making power, its perpetuity was required by Congress and stipulated for by the state upon its admission into the Union, and also fixed by the first state constitution.

When a new law was passed in 1837, which provided for its location in Ann Arbor, the language used was no broader than that which had before located it in Detroit. And, while some of its functions were narrowed, it Avas expressly designed to' cover the whole field of science, art and learning. Many branches of knowledge can be profitably taught only in favorable localities. It is not supposable that it Avas designed to prevent such teaching as should be profitable. Mining, surveying, geology, and engineering require for their mastery some attendance, either temporary or permanent, at plaqes where such work is being carried on. Medical teaching in its completeness avails itself of hospitals, and must in’ that case be partially given where hospitals are to be found. And when Ave consider that the University is expected to furnish complete teachings, Ave must read all the charter provisions together, and" assume that‘the reference to locality is not designed to localize all its doings.

If the laAV of 1837 means any such thing, then it differs from the ordinary charters of which Ave have any account in the laAV books. It is the first laAV that ever fell under my oavu notice which confined a corporation not to a municipality, but to a single parcel of land, as it directs the buildings to be placed oil a forty acre lot, to be thereafter designated, and contains no other establishment of locality. If this law operates at all to confine the corporation, it can never carry on its operations off of the quadrangle. The Observatory lot, and any other premises, which its growing needs might require, v would all be outside of its legally ordained locality.

It seems to me that the laws locating the University upon a specified tract of land, were not designed to localize all of its educational operations, but simply to malte that the great center, as state buildings, and county buildings, or corporation offices, are made centers for public or corporate purposes, while many functions may be performed elsewhere. Where the purposes of the University are so extensive as to require wider facilities for their complete fulfillment, I do not think such provisions require a construction which would hamper them. And I think the Regents in this case have not gone beyond the fair intent of the scheme of the University.

I think the writ should issue.

Cooley Ch. J. gave no opinion.


source: Caselaw Access Project

author: Christiancy J.

license: Public Domain

text:
    Austin Wright v. Henry W. Wilson.

      Evidence: Conveyance: Defective power of attorney. Where a conveyance was executed, in 1858, by the patentee of the land in dispute, to the plaintiff, reciting that its object was to cure defects in a power of attorney, from the grantor made in 1886, and any defects in the title depending upon deeds executed under and in pursuance of the power (through which plaintiff first went into possession) : Held, that the deed of 1858, from the patentee to the plaintiff, establishing in him a prima facie title, he might have rested till that title was attacked by evidence on the part of defendant. But, plaintiff, having introduced tho defective power, and the deeds dependent upon it, for the purpose of showing that the defects in the prior title actually existed as recited in the deed to him of 1858: Held, further, that this evidence could in no way have prejudiced the defendant, and that its admission, though unnecessary, was not an error of which defendant could complain.

      Witness: Representative of deceased person. Where a plaintiff, in ejectment, testified under objection as to the fact of possession by a defendant and his deceased wife of certain premises, held, that, as the husband was then living, and defending in his own right, as well as of his said deceased wife, the testimony did not fall within the object of the statute of 1861, p. 161, prohibiting a party from testifying in relation to matters which, if true, must have been equally within the knowledge of such deceased person.

      Evidence: Certificate of acknowledgment. Conveyance. The defendant sought to defeat plaintiff’s title, by introducing the record of a deed from one Johnson and wife to one Ellis, purporting to convey an interest in the premises. The plaintiff in reply introduced the record of a deed from Ellis and wife to said Johnson reconveying the same land to him 44 as trustee for and in behalf of Michigan College.” Two certificates of acknowledgment were attached to this deed. One of the acknowledgments was by Ellis, and the other immediately under it by his wife. Both were in due form, except that the signature of the justice appeared only at the bottom of the lower of the said certificates, and which did not state the county for which he was justice. Each certificate contained the caption of the state and county. Held, that the two certificates of acknowledgment were to be treated as one, and that the caption and signature imported that such officer was a justice. Held, further, that if the legal effect of this deed were as claimed, still it was competent evidence, and if not, then the court below should have been required to make such a finding upon its legal effect', and then, if not as claimed by the defendant, he should have excepted to this finding and assigned the error upon that.

      Heard June 2d.

      Decided July 13th.

    Error to Hillsdale Circuit.
    This was an action of ejectment, brought to recover the possession of certain lands in Hillsdale County.
    Upon the trial, the plaintiff produced and offered in evidence the record of a certain patent, purporting to be the record of a patent from the Hnited States to Oliver Johnson, conveying “The east half of section thirty, in township five, south of range four, west” — said patent being dated August 10, 1839.
    The said plaintiff then produced and offered in evidence the record of a certain deed, purporting to be the record of a deed from Oliver Johnson and wife to Henry W. Wilson, conveying the same premises before described, said deed bearing date of November 23, 1858, duly acknowledged and witnessed. It also stated the object of said deed, viz: “It being the object of the quit claim deed to correct and supply the defect of the title to said land, occasioned, or supposed to be, by reason of there being no witnesses to a power of attorney executed by the parties of the first part, with Wolcott Lawrence and his wife, dated September 1, 1836, and recorded in the Registry of Deeds of said County of Hills-dale, in Liber B, p. 217; also arising from the defective execution of a deed from E. P. Champlin to George C. Munro aird Ransom Gardner, recorded in said Registry Office, in Book B, at pages 405 and 406.”
    The plaintiff then produced and offered in evidence the record of a certain power of attorney, purporting to be the record of a power of attorney from Oliver Johnson and wife, and Wolcott Lawrence and wife, to E¿ P. Champlin, authorizing him to sell and convey the premises with others; which power of attorney had no witnesses, and the certificate of acknowledgment of which, was headed '“State of Michigan, County of Monroe, ss.,” and it was signed “Norman B. Curtis, Justice of the Peace.”
    The defendant objected to its introduction for the following reasons:
    1. There were no witnesses to its execution.
    2. It does not appear to have been properly acknowledged; the person signing the certificate of acknowledgment not appearing to be a justice of the peace of any particular county or state.
    3. That the paper not being entitled to record under the laws of Michigan, the record was not evidence for any purpose.
    , 4. That it contradicts, by its recitals, which are binding-on those claiming under it, the. deed of Johnson and wife to Wilson, heretofore in evidence showing the title in fee to said lands in Lawrence and wife and Johnson and wife.
    The court' overruled the objections.
    The plaintiff then offered in evidence the record of a certain deed from Oliver Johnson .and wife, and Wolcott Lawrence and wife, by E. P. Champlin, their attorney, to George C. Munro and Ransom Gardner, dated December, 1836, and conveying the said land; one seal being opposite all the names, and no state or county being. mentioned in the description.
    The certificate of acknowledgment was as follows:

    Before me, a Justice of tlie Peace, E. P. Cliamplin, as agent for tlie witliin signers of this deed, and acknowledged tlie same to he his free act for the purposes therein mentioned.
    HENRY PACKER,
    December 16, 1836. Justice oj’ the Peace in and for said County.”
    The defendants objected to its introduction, because
    1. There was no authority shown m Champlin to give such deed.
    2. It was not properly acknowledged.
    3. Was not properly sealed.
    4. Was void for uncertainty; no state or county being named in which the land it purported to convey was situated.
    5. That not being entitled to record, the record was not evidence.
    The court overruled the objections.
    The plaintiff then offered in evidence the. record of a certain deed from Ransom Gardner to George O. Munro, dated January 24, 1837, conveying an undivided half of the same land, but not describing the state or county.
    The acknowledgment was certified in the same form as the Power of Attorney.
    The defendant objected to its introduction, because
    1. It was not properly acknowledged, and was not entitled to record.
    2. It did not show that the person taking the acknowledgment was a Justice of the Peace for any county.

      3. It was void, for tbe reason that it did not show in what county or state the land purporting to be conveyed was situated.
    The court overruled the objections.
    The plaintiff then offered in evidence the record of a certain deed from .George C. Munro and his wife to Henry W. Wilson, dated January 9, 1841, which was executed and acknowledged in the ordinary form, but contained the following reservation:
    “The said party of the first part hereby reserves and retains the right of cutting and removing, at any time hereafter, all the cherry, black walnut and white wood trees and logs off and from the southeast quarter of said section number thirty, and the same to be taken and removed within three years from this date.”
    The defendant objected to its introduction, because
    1. It was not properly acknowledged so as to entitle it to record, and the record was, therefore, not evidence.
    2. It was not an absolute deed.
    The objections were overruled.
    The plaintiff then offered in evidence the record of a deed from George O. Munro and wife to Lydia M. Wright, conveying the lands in question.
    The plaintiff then offered to prove by his own oath that he knew the land described in the declaration, that it was on section number thirty, in township number five, south of range number four west, in Litchfield; that he purchased the east half of said section number thirty, January 9 th, 1841, of said Munro, and took immediate possession thereof by chopping a fallow, and that he moved on said east half of section thirty about a year after said purchase, and built a house; that the land thus purchased covered the land in dispute in this suit; that he remained in possession of this until January or February, A. I). 1843 or 1844, when the defendants went into possession, and the defendants had remained in possession ever since; that the defendant Lydia Wright had died since the commencement of this suit, and that the defendant Austin Wright worked the land.
    But to the admission of the said Henry W. Wilson as a witness to prpve said matters, so far as the same must have been equally within the knowledge of the defendant Lydia W. Wright, deceased, and to allowing said Wilson to testify, by referring to the declaration and the deed to him from Munro, the defendant objected, because said plaintiff could not legally testify to the matters above stated, as they were equally within the knowledge of -the defendant Lydia W. Wright, deceased, and because the said witness should not be allowed to read from the declaration and the deed, and thereby adopt the language of the declaration and deed as to dates and description of lands.
    The objection was overruled, and plaintiff then called Reuben C. Ames, who being duly sworn, testified that in January, 1859, Austin and Lydia Wright were husband and wife at the time of the commencement of this suit; that the defendants, Lydia M. Wright and Austin Wright, were upon the premises described in the declaration, being on section thirty, township five south, of range four west, Hills-dale County Michigan.
    Plaintiff also produced, as a witness, George C. Munro, and offered to prove by said George C. Munro, that he was acquainted with the land in dispute; that he and Ransom Gardner purchased of E. P. Cliamplin, as agent for Oliver Johnson and Wolcott Lawrence, the southeast quarter of section thirty, township five south, of range four west; that when he purchased he understood the land to be in Litchfield, Hillsdale County, Michigan, and that he subsequently purchased Ransom Gardner’s part of said land; that he and Gardner resided in Hillsdale County; that he never owned or claimed any other land on section thirty, township five south, of range four west.
    But to the admission of such matters the defendant objected, because it was not proper to give parol evidence as to the purchase of lands: the deeds themselves, or the record of the same, being the best evidence; and because the defects in the deeds already received in evidence on the part of the plaintiff, could not be cured by parol evidence.
    The objection was overruled.
    The defendant showed that the' land was entered by Johnson, November 2, 1835, and that on January 15, 1836, Johnson and wife quit claimed to John M. Ellis, 960 acres, being an undivided share in this as well as in other lands which were described in the deed, and which contained, as set forth, 3,112.14 acres.
    The plaintiff then proved a deed from Ellis to Johnson of the same interest, dated August 6, 1836, which, with the questions arising on it, will be found sufficiently stated in the opinion.
    No exceptions were made to the judge’s written finding in the cause.
    The following are the assignments of error:
    1. That, on the trial of said cause, the court admitted in evidence the record of a certain power of attorney, purporting to be from Oliver Johnson and wife and Wolcott Lawrence and wife to E. P. Ohamplin, dated September i, 1836. <
    2. .That the court admitted in evidence the record of a certain deed, purporting to have been executed by Oliver Johnson and wife and Wolcott Lawrence and wife, by their attorney, E. P. Ohamplin, to George C. Munro and Eansom Gardner, dated December 15, 1836.
    3. That the court admitted in evidence the record of a certain deed, purporting to have been executed by Eansom Gardner to George C. Munro, dated January 23, 1837.
    4. That the court admitted in evidence ’ the- record of a certain deed, purporting to have been executed by George O. Munro and wife to Henry W. Wilson, dated January 9, 1841.

      o. That the court admitted the testimony of Henry Wilson, plaintiff below in reference to matters which had been equally within the knowledge of Lydia Wright, one of the original defendants to said suit, but who deceased before the trial thereof.
    6. That the court admitted the testimony of George O. Jifunro, under the circumstances set forth in the bill of exceptions.
    7. That the court admitted in evidence the record of a certain deed, purporting to be a deed from John M. Ellis and wife to Oliver Johnson, August 6, 1836.
    Judgment was rendered for plaintiff below.

      G. I. Walker, for plaintiff in error.

      G. M. Crosivell, for defendant in error.
   Christiancy J.

The plaintiff below — defendant in error — having introduced the patent from the Hnited States to Oliver Johnson, dated August 10, 1839, and the deed from Johnson to him•self, dated November 23, 1858, had thus established full title in himself, and might properly have rested without further evidence, until that deduction of title had been invalidated by the defendant.

But the deed from Johnson to plaintiff, after conveying the land, went on to declare that its object was to cure the defects in a power of attorney and certain deeds undertaken to be executed under and dependent upon it, by which, if perfect, the title would have been derived to the plaintiff without the deed of Johnson directly to him, above noticed. The plaintiff sought to show that defective power of attorney and the deeds depending upon it, for the purpose, as it would seem (for there could be no other), of showing that the defects referred to in Johnson’s deed to him actually existed. This testimony, though wholly unnecessary, could in no way have prejudiced the rights of the defendant below. It was not offered to show that the title had passed by the power of attorney and the subsequent deeds dependent upon it; but for the opposite purpose, to show that such defects existed, in that power and those subsequent deeds, that the title did not pass. Any defects, therefore, which existed in that power or those deeds, were entirely immaterial, and could' not in any way prejudice the defendants, as they in no way tended to invalidate the deed executed subsequently by Johnson to the plaintiff himself.

This, therefore, disposes of the first, second, third, and fourth assignments of error. And, as the testimony of Geo. C. Munroe, alluded to by the sixth assignment of error, related only to ’the chain of title thus admitted and claimed to be defective, and to the description pf the land, only for the purpose of showing that one of those defective deeds must have been intended to refer to the same lands claimed by the plaintiff under Johnson’s deed to him of subsequent date, the objection to this testimony stands upon the same ground as the objections to the defective power and the defective deeds. Though unnecessary, it could not in any manner have prejudiced the defendant; and there was no error in its admission.

There was no error in allowing the plaintiff to testify to his having gone into possession in 1841, and that the defendants (Wright and his wife) went into possession in 1843 or 1844 and remained in possession ever since, and that the wife died after the commencement of this suit.

This was objected to upon the single ground, that these facts, or some of them, must, if true, have been equally within the knowledge of the deceased wife: and the defendant, Austin Wright, was defending not only in his own right, but as administrator of his deceased wife.

This objection, as is clear from the nature of the testimony of plaintiff, can only refer to that part of his testimony in reference to the two defendants, Austin Wright and wife, going into and continuing in the possession of the premises.

Without undertaking to decide whether the third section of the act of 1861, prohibiting a party from testifying “in relation to matters which, if true, must have been equally within the knowledge of such deceased person,” was intended to apply to facts of this character, which in their nature, must be open and notorious and easy of proof from any source, it is sufficient for the present ease to say that, as the defendant Austin Wright, one of the parties to whom the testimony referred, was still living and defending in his own right, as well as that of his deceased wife, we do not think the testimony falls within the object of the prohibition of this statute. Had the testimony referred merely to a conversation with the deceased alone, or to some fact the knowledge of which had been confined to the plaintiff and the deceased, the result might have been different. But the principal object of this prohibition, we think, was to prevent a living party from obtaining an unequal advantage from his own testimony, upon matters known only to himself and the deceased, or better known to them than to others, and of which the deceased party can, of course, no longer speak. Whether the prohibition was intended to go beyond this in any case, it is not necessary here to decide, as it is quite apparent from the evidence and the nature of the case that this matter of taking and holding possession of this land, by the defendant and his wife together, must have been equally within the knowledge of the surviving party, Austin Wright, as in that of his deceased wife; and he was entirely competent to testify in relation to it.

The only remaining questions are those arising upon the admission of the record of the deed from Ellis and wife to Johnson.

The defendant, on the trial, without attempting to deduce title to himself or his deceased wife, but for the purpose of defeating the plaintiff’s title under the deed from Johnson, introduced the record of a deed from Oliver Johnson and wife to one John M. Ellis, dated January 15, 1836 (long prior to Johnson’s deed to plaintiff), purporting to convey an undivided interest equal to nine hundred and sixty acres in the land in controversy and in other lands, containing, in all, some three thousand one hundred and twelve acres; 'and, therefore, as it would seem, purporting to convey somewhat less than one undivided third of the premises in controversy. This record was objected to by the plaintiff below, but admitted; and, as the judgment was in favor of the plaintiff below, these objections need not be noticed.

But the plaintiff, to counteract the effept of this deed, and to show that whatever title it conveyed had been reconveyed to Johnson prior to Johnson’s deed to himself, introduced the record of a deed from said Ellis and his wife to Oliver Johnson, dated August 6, 1836, purporting to reconvey the same land to said Johnson, “acting as trustee for and in behalf of the Michigan College, his successor or successors, as trustee or trustees for ever; habendum to the said Oliver Johnson and his successors, as aforesaid, in fee simple forever.”

The certificate of acknowledgment attached to this deed was in the following words:

Personally appeared before mo the above named John M. Ellis, to' me known to be the person described as the grantor in tbe foregoing deed, and acknowledged tliat lie signed, sealed and delivered tbe same for tbe uses and purposes therein mentioned as their free act and deed.
Given under my band this sixth day of August, A. D. 1836.

Personally appeared before me Josepbena M. Ellis, the wife of die said John M. Ellis, who being by me examined separately and apart from her said husband, acknowledged that she executed the said deed freely without any fear and compulsion of her said husband.

Given under my hand this sixth day of August, A. D. 1836.

ERASTUS ROOT,

Justice of the Peace.

Eoot also witnessed the execution by both parties.

This record was objected to, first, because the deed did not appear to have been “acknowledged by the said John M. Ellis,” the certificate to his acknowledgment not being signed by the justice; second, taken as a whole it does not conform to the statute so as to entitle it to be recorded; and, third, it does not show that the person taking the acknowledgments was a justice of the peace for.any county.

The Circuit Judge held the certificates of acknowledgment to be in effect one certificate only, and the signature at the end of the last as intended to be a signature to both, and that the caption of the certificate and the signature import that such officer was an officer in and for the county named in the caption.

In this we see no error. The strong probability is that the blank for the deed was one which had the acknowledgment of the wife in form separate from that of the husband ; and the former being placed directly under the latter, was treated by the justice as in effect but a single certificate, the signature to the last being considered by him as a signature to the whole. The fact that such certificates of acknowledgment are generally made as one, that the blank for the date in the first was filled as in the last and with the same date, and that the justice appears to have signed as a subscribing, witness to the execution by both, all tend to confirm this view. And we think the court was entirely right in holding that, when the county is named in the caption of such certificate, and it is signed officially as justice of the peace, the caption, in connection with such official signature, imports that he is such officer in and for the county named in the caption.

But it was further objected to the admission of this record that, “if received in evidence, it conveyed the land to Johnson and his successors as trustees, and so throws the title out of the plaintiff.”

This case having been submitted to us without either a brief or an argument on the part of the plaintiff in error, we are not entirely certain what particular question was intended to be raised by this objection. We do not, therefore, feel justified in going beyond the questions necessarily involved in the case.

If the legal effect of the deed was, as supposed by this objection, we can see no good reason why the defendant below should object to its introduction; since in that event, the case, so far as related to the .undivided interest conveyed by the deed, must have been decided in favor' of the defendant, unless the court in his finding should give a contrary •.effect to the deed. And in .the latter event, supposing the defendant’s view .of its legal effect to be correct, the only error operating to the prejudice of the defendant, would .consist in this erroneous finding, and not in the admission •of the evidence. The deed was relevant to the issue, as, •upon any view of its effect, it tended to show where the title was, and might have been followed by other evidence, tracing it to any party.

To enable the defendant to avail himself of an error of this kind, he should have excepted to the finding, and assigned the error upon that. But no exception was taken nor any error assigned to the finding of the .judge, either as to the facts or his conclusions of law. No question, therefore, upon the legal effect of this deed, as vesting the title in the cestuy que trust or in Johnson, with power of sale, can be properly raised upon this record.

The judgment of the Circuit Court must be affirmed with costs.

Campbell and Graves JJ. concurred.

Cooley Ch. J. did not sit.