author: Steers, J.

text:
    ATTORNEY GENERAL, ex rel. McRAE, v. THOMPSON. DETROIT LIBRARY COMMISSION v. HEINEMAN.
    1. Constitutional Law — Municipal Corporations — Home Rule Act — Detroit Charter — Limitation of Indebtedness — Special Act — Local Legislation.
    Act No. 302, Local Acts 1911, amending the existing charter of the city of Detroit by extending the limit of municipal indebtedness from two to three per cent, of the assessed valuation, is invalid: under the Constitution the charter may only be amended by general revision, and the statute, being a local act, is in excess of the legislative authority, since a general act could be made applicable. Const, art. 5, § 30.
    2. Schools and School Districts — Libraries—Cities—Detroit Library Commission.
    Free public libraries are within the proper range of school apparatus and are supplemental to, and a part of, the educational system of the State.
    3. Same — School Boards — Municipal Corporations.
    School boards are separate and distinct municipal corporations and State agencies.
    4. Same — Education—Finance.
    Education in Michigan is not a part of the local self-government inherent in the townships or municipalities except in so far as the legislature may choose to make it so.
    5. Same — Constitutional Law — Cities.
    It was the intent of the Constitution to separate the school organization from the general municipal government.
    6. Same.
    Though municipal corporations, organized for the same purposes, with like powers and duties, cannot exist in the same territory, those having different purposes, rights, and duties may, and often do, occupy the same territory.
    7. Same — Statutory Construction — Charters.
    Construing the provisions of the Detroit charter limiting the municipal indebtedness, in connection with the evident purposes of the legislature, with the other provisions of the instrument and with reference to the title, which omits any reference to the educational system, the limitation applies only to the indebtedness for general municipal purposes.

    8. Same.
    The application of particular provisions is not to be extended beyond the general scope of a statute unless such extension is manifestly designed.
    9. Same.
    Taxes and bonds for school and educational purposes are not for city and municipal purposes.
    Appeal from Wayne; Hosmer, J.
    Submitted January 30, 1912.
    (Calendar No. 24,990.)
    Decided February 16, 1912.
    Bill by Franz C. Kuhn, attorney general of the State of Michigan, on the relation of Milton A. McRae, against William B. Thompson, mayor of the city of Detroit, and others, to restrain the issuance of library, sewer, school, and waterworks bonds duly authorized. From a decree for complainant, defendants appeal. This cause was consolidated with the mandamus proceedings above mentioned in the Supreme Court and both were argued and submitted as one cause.
    Reversed.
    Certiorari to Wayne; Hosmer, J.
    Submitted January 30,1912.
    (Calendar No. 24,985.)
    Decided February 16, 1912.
    Mandamus by the Detroit library commission, the board of education of the city of Detroit, and the board of health of said city, by separate petitions against David E. Heine-man, city controller, to compel respondent to issue bonds duly authorized at a special election and by the common council. The proceedings were heard as one case by the circuit court by which the writ was denied.
    Reversed.

      In chancery case: Franz O. Kuhn, Attorney General {Fred A. Baker, of counsel), for complainant.

      Bichard I. Lawson, for defendants.
    In second case: Divie E. Duffield, for appellant Detroit library commission.

      Edmund Atkinson, for appellant board of education.

      Fred A. Baker, for appellant board of health.

      Bichard I. Lawson and David E. Heineman, for appellee.

       What constitutes an “indebtedness” within meaning of constitutional and statutory restrictions of indebtedness of municipal corporations, see note in 23 L. R. A. 402.

   Steers, J.

These proceedings have been equitably consolidated by common consent and, by permission of the court, argued and submitted together. They involve the validity of certain proposed bond issues of the city of Detroit. Said proposed issues, delayed by and directly involved in this contention, are: Sewer bonds, $730,000; school bonds, $656,000; library bonds, $216,000; waterworks bonds, $250,000. They were authorized by popular vote, action of the city council and board of estimates, and all proceedings leading up to their issue have been cared for by skilled counsel and appear regular. It is not necessary to review those details here, as no question is raised against their validity except the general limit on the city’s indebtedness.

The case of Attorney General, ex rel. McRae, v. Thompson, was recently before this court (167 Mich. 507 [133 N. W. 532]). The information then averred that the bonds in question were valid, and certain of the defendants were publicly proclaiming their invalidity. It prayed that the court pass upon, and certify to the legality of, these bonds, and restrain defendants from further asserting to the contrary. Twelve propositions which are set out in the opinion referred to were propounded to the court for consideration. Answers were filed by three of the defendants asserting the validity of the bonds they represented and joining in the prayer that all questions touching the legality of the budget and the bond issues be definitely determined. Other defendants demurred to the information “because it does not show a legal injury.” The trial court held it had “no jurisdiction to render an opinion upon the twelve questions asked ” and sustained the demurrer, dismissing the information. In the form the matter was then presented, the action of the trial court was sustained by this court; it being the opinion that the questions were purely academic, there being in the information “a mere statement of the proceedings taken to issue said bonds and the importance of a determination of their validity, without any averment of illegality in the proceedings or breach of any official duty.” Following this opinion, after the record was remanded, the information was amended, by permission of the court; the general demurrer being allowed to stand as originally filed, and the matter was again submitted to the court below. The amendment was in part as follows:

“To make this information intelligible and to invoke the jurisdiction, of the courhto declare said tax levy and bond issues legal or illegal, the attorney general, on the relation aforesaid, gives the court to understand and be informed that said proposed bond issues and each of them are excessive and illegal, including the water bonds prepared to be issued by the board of commissioners.
“(10) That the said bond issues, so far as they are found excessive and beyond the limits fixed by charter or law or are otherwise illegal, may be declared invalid, and that the city of Detroit, the common council, the city controller and the board of water commissioners may be enjoined from selling or in any way negotiating a sale of said bonds.”

The circuit court held most of the proposed bond issues to be illegal for the reason that they were in excess of the 2 per cent, limit of indebtedness fixed by law, and granted an injunction restraining their sale except in so far as they are now authorized to the amount of $120,000 found to be within the limit. From this relator appealed. In this appeal a brief has been filed and argument made in support of the bonds proposed to be issued by the board of water commissioners.

In the meantime the Detroit library commission, the board of education, and the board of health of the city of Detroit, in separate suits, petitioned the circuit court of Wayne county for writs of mandamus to compel the respondent David E. Heineman, city controller, to advertise and sell their respective bonds, which had been authorized by the electors, common council, and board of estimates, under regular proceedings taken according to law; said respondent having declined to do so under advice obtained from the corporation counsel. So-called answers, amounting in effect to demurrers, admitting the facts but denying the legal conclusions, were filed. The three petitions were then by stipulation and order of the court merged and submitted together as one proceeding. The trial court again held the bond issues in excess of $120,000 illegal, for the reason that they would raise the bonded indebtedness of the city above the 2 per cent, limit. The proceedings were then removed to this court by writ of certiorari and the various entanglements which surround the proposed bond issues of the city of Detroit are now before this court. The vital question is whether or not the proposed issues swell the gross debt of the city of Detroit beyond the 2 per cent, limit based on the assessed valuation of its real and personal property to which it is restricted by the city charter and the so-called home rule” act of 1909.

In support of the legality of said issues, it has been urged that the limit was raised by Act No. 802 of the Local Acts of 1911 to 3 per cent., which is not exceeded by the proposed increase of indebtedness. The constitutionality of said Act No. 302 being in doubt, it is further urged, in support of the various issues by their respective representatives, that the board of education of the city of Detroit and the Detroit library commission are distinct and independent corporations, for educational purposes only, created by acts of the legislature under its general powers to maintain and enforce a free school system throughout the State; that said acts are not part of the charter of the city in the usual and legal meaning of the term; and that therefore their bonds should not be included in computing the bonded indebtedness of the city for municipal purposes. This contention is relied upon by the board of health, which points out and urges that, if the school bonds and library bonds outstanding are not included in the gross indebtedness of the city, the 2 per cent, limit would ■ not be exceeded by all the issues proposed; also urging that the bonds of the board of health are for necessary improvements to preserve and promote the public health. On behalf of the board of water commissioners it is also asserted that it is an independent corporation, created by an act of the sovereign legislature of this State in its early history (1853); that its rights and duties are independent of municipal interference and well defined by the law creating the board, and subsequent amendments, which have been upheld in numerous decisions of this court. It is also pointed out that its authority to bond comes by direct legislation, distinct from the city charter, for which reason its indebtedness is not to be included in the restriction placed by the charter on the amount to which the city is limited.

The important questions before us are:

First, the constitutionality of Act No. 302, Local Acts of 1911.
Second, Are the library board, board of education, and board of water commissioners independent corporations, distinct in character from the municipal corporation of the city of Detroit to the extent that the 2 per cent, limit does not apply to their bonds ?

At the time of the adoption of the Constitution of 1909, the existing city charter of Detroit (section 7, chap. 11 [Act No. 326, Local Acts 1883]) limited the gross debt of the city to 2 per cent, of its assessed valuation. The Constitution of 1850 authorized special legislation, or local acts, for the incorporation of cities. This came to be regarded as objectionable and a growing evil, which the Constitution of 1909 sought to remedy by the following provisions on the subject (art. 8):

“Seo. 30. The legislature shall provide by a general law for the incorporation of cities, and by a general law for the incorporation of villages; such general laws shall limit their rate of taxation for municipal purposes, and restrict their powers of borrowing money and contracting debts.
“ Sec. 31. Under such general laws the electors of each city and village shall have power and authority to confirm, adopt and amend its charter, and, through its regularly constituted authority, pass all laws and ordinances relating to its municipal concerns, subject to the Constitution and general laws of this State.”

Under this constitutional mandate the legislature of 1909 passed what is known as the “ home rule ” act. Act No. 379, Pub. Acts 1909. Being required by the Constitution to “restrict powers of borrowing money and contracting debts,” the act fixed the limit at 8 per cent, of the assessed valuation, but provided that in cities where the amount of money which may be borrowed is now limited by law, such limit shall continue until it shall be raised or lowered by a two-thirds vote of the electors, and that each existing city should continue with all its present rights and powers until otherwise provided. By Act No. 303 of the Local Acts of 1911, it was sought to amend section 7 of chapter 11 of the Detroit city charter increasing the limit of indebtedness to 3 per cent. This palpable attempt to amend the charter in violation of the constitutional inhibition has no suggestion of justification beyond section 30 of article 5 of the Constitution, which provides:

“ The legislature shall pass no local or special act in any case where a general act can be made applicable, and whether a general act can be made applicable shall be a judicial question.”

Counsel do not now seriously contend that a genera Jact could not be made applicable, and we have no hesitation in holding that it could. The law is clearly unconstitutional and void.

The limit of the gross debt of the city of Detroit for strictly municipal purposes was and is fixed by the charter at 2 per cent, of the assessed valuation, and under the Constitution and home rule act it can only be changed by a general revision of the city charter made pursuant to the provisions of the home rule act.

We then come to the question: Must the school and library bonds be included in computing and limiting the gross indebtedness of the city of Detroit as contemplated by its charter ?

With reference to the library and school bonds, the same laws and rules of construction apply. The act incorporating the Detroit library commission provides that its commissioners shall be elected by the members of the board of education. Both the Constitution of 1850 and the new Constitution of 1909 require the legislature to establish at least one library in each township and city. It is held that libraries are a recognized factor of civilization, a valuable instrumentality in education, that they enlarge and supplement the work of schools, are within the proper range of school apparatus, and free public libraries are supplemental to, and a part of the educational system of the State. Maynard v. Woodward, 36 Mich. 423.

. Early in the history of this country the foundation of our free school system was laid in the ordinance of 1787, providing fundamental laws for the region northwest of the Ohio river and setting it apart for future division into States. Special emphasis was given to the subject of general education in the familiar declaration that religion, morality, and knowledge, being essential to good government and the happiness of mankind, “ schools and the means of education shall be forever encouraged.” This language has been preserved and perpetuated in the Constitutions and statutes of our State, and our free school system has been organized, fostered, and supported by constitutional provisions and legislative enactment, as a primary and distinctive function of State government held under State control. Its administration, however, has been committed in its details to local agencies of limited territory, designated district boards or boards of education, co-operating with, and more or less closely allied to, municipal corporations for local government which exist in the form of cities, villages, and townships covering the same territory; but the matter of universal and compulsory education, and the support of free schools to that end, has been held apart from the organization and maintenance of cities and villages for strictly local government and municipal conveniences.

The contention was early made that the general State policy is opposed to all connection between State and village government and school administration; but it was held that such was not the case, there being no natural antagonism or incongruity, though “strict regulations are necessary to prevent our city and village organizations from drawing to themselves the supervision of the common schools within their borders.” Hatheway v. Sackett, 32 Mich. 97. The close relations existing between the educational system and general municipal system are discussed and various decisions upon that subject are reviewed by Justice Campbell, in an opinion filed in Belles v. Burr, 76 Mich. 1 (43 N. W. 24). In that case the learned Justice was not in harmony with the majority on the main issue, which involved the right of a female guardian of a child included in the school census to vote at a school meeting, but we can profit by, and well indorse, that portion of his opinion wherein he notes a tendency in some of the decisions to so closely blend the two systems as to subordinate the school system to the position of a municipal adjunct or agency of the local government, and further points out that, by an amendment in 1879 of section 12 of article 13 of the Constitution, if there was any ambiguity before, now—

“City boards of education are as distinctly recognized constitutional bodies as any other elective bodies. There is no city in the State where the board of education has not power to affect the property of nonresidents as well as of residents, by public burdens; and under the Constitution all powers of government must come from the electors made such by the Constitution itself. The board of city school authorities is a body having a larger control than township boards. It has all their powers, and more, and it is by the Constitution made the correlative body to the township board.”

School boards have been uniformly held to be separate and distinct corporations. It has also been held that they are municipal corporations and State agencies. Maynard v. Woodward, supra; Board of Education v. City of Detroit, 30 Mich. 505; School District v. Gage, 39 Mich. 484 (33 Am. Rep. 421); Tibbals v. Board of Education, 39 Mich. 635; Pingree v. Board of Education, 99 Mich. 404 (58 N. W. 333); Attorney General v. Lowrey, 131 Mich. 639 (92 N. W. 289); Attorney General v. Board of Education, 154 Mich. 584 (118 N. W. 606). It was said by Justice Cooley, in Board of Education v. City of Detroit, supra:

“And the board of education, though existing for purposes strictly public, is nevertheless a distinct corporation from the city, having its distinct property and funds, and entitled to demand for them the same protection which may be demanded by other corporations or individuals.”

In Attorney General v. Board of Education, supra, this court said:

“Education in Michigan belongs to the State. It is no part of the local self-government inherent in the township or municipality except so far as the legislature may choose to make it such. The Constitution has turned the whole subject over to the legislature.”

The question now is to what extent the legislature has chosen to make it such in the case under consideration.

The Constitution of 1909, like that of 1850, treats education and local government as distinct subjects, in separate articles independent of each other. Article 11 is devoted to “Education,” and article 8 to “Local Government.” These separate articles impose on the legislature the duty of providing, in one instance for á free school system, and in the other for the organization of cities, villages, and other entities of local government for the convenient administration of local affairs. The home rule act, passed pursuant to the provisions of the new Constitution, simply keeps the city of Detroit, where it was under its former charter, subject to all its provisions and restrictions until proper steps have been taken in conformity with the act to revise the charter. Beyond that the construction of the act is unimportant here, except to note that the distinct entity of the school system is carefully observed by language of exclusion. Each city incorporated under that act is required to provide “for the levy, collection and return of State, county and school taxes in conformity with the general laws of the State.” It is further provided that “the subjects of taxation for municipal purposes shall be the same as for the State, county and school purposes under the general law,” thereby sharply distinguishing taxation for municipal purposes from taxation for school purposes. The intent to keep school organization distinct is further shown in the following language wherein a city is authorized to provide—

“ For the establishment of any department that it may deem necessary for the general welfare of the city, and for the separate incorporation thereof: Provided, however•, that these provisions shall not be construed to extend to public schools.”

As to education and local government the new Constitution and the home rule act but follow the general scheme of former Constitutions and former acts, only emphasizing and more freely opening the way for local self-government. We therefore, in the light of this well-settled and long-continued policy of distinct school organization, must inquire whether the legislature, in enacting a charter for the city of Detroit under one article of the Constitution, intended that the restrictions placed on indebtedness for municipal purposes should be extended beyond the subject of such article and control the finances of the public school system, another subject provided for in a different and distinct article.

The school district of Detroit is co-extensive in geographical limits with the city. Each is an independent public corporation. Public corporations organized for the same purpose, with the same rights, powers, and duties, could not exist in the same territory (Scrafford v. Gladwin County Sup'rs, 41 Mich. 647 [2 N. W. 904]); but where they are organized for different purposes, have different rights and duties relating to entirely distinct matters, they may and often do occupy the same territory, working in harmony each within the scope of its authority. In such cases the burden of maintenance falls, as a rule, on the same persons and property, and for such corporations to be so organized as to co-operate in the conduct of their several affairs and avoid duplication of agencies essential to each tends to economy and convenience. It is well settled that making a personan ex officio officer of one organization by virtue of his holding office in another does not tend to merge the two organizations. People v. Edwards, 9 Cal. 286; People v. Ross, 38 Cal. 76; Hemingway v. Stansell, 106 U. S. 399 (1 Sup. Ct. 473).

The school system of the city of Detroit was created by separate enactments under that article of the Constitution relating to education. Early provision was made by special legislation for a system of public schools in the city of Detroit. The present law, entitled “ An act relative to free schools in the city of Detroit,” approved February 24,1869 (Act No. 233, Laws 1869), as amended, provides that the city of Detroit shall be considered one school district under the direction and regulation of the board of education, free to all children residing within the limits thereof between the ages of 5 and 25 inclusive. The members of the board of education are elected every alternate year when the judges of the Supreme Court are required to be elected. Votes cast for them are deposited in separate. ballot boxes from those used for other city officials. The school inspectors, together with the mayor, controller, and recorder of the city (who are declared to be ex officio school inspectors with a right to a seat at the meetings of the board but no power to vote) are a body corporate, known and distinguished by the name of the “ Board of Education of the City of Detroit,” and in that name have power to sue and be sued, hold and sell prop»erty, and transact such other business as the interests of the school require. Said board has full control over the school funds and authority to apply for and receive all moneys appropriated for primary schools and the Detroit library. Elaborate provision is made for the control and management of the school system, accumulation of property and erection of buildings necessary for school purposes, for hiring superintendents and teachers and other necessary employes, providing for retiring, and pensioning superannuated teachers, and for all other things necessarily and naturally appertaining to the conduct of a large school system.

The act contains a scheme of finance and taxation which provides that the board of education shall transmit to the common council, through the city controller, each year an estimate of the amount of money which the board deems necessary for the proper maintenance of the public schools of the city during the fiscal year next ensuing, which estimate, so far as practicable, shall be made in detail. Said board is required at the same time to transmit such estimates as are deemed necessary for the purchase of lots, the erection and remodeling of school buildings, the purchase of necessary furniture, fixtures, etc. So much of these estimates as the common council and board of estimates of the city of Detroit approves is to be levied and collected “in addition to all other taxes authorized by law to be assessed in said city.” The city treasurer is made the custodian of the moneys for the board of education, and is required to give bonds for the safe handling of the same. School taxes are to be put upon the roll of the city in a separate column distinct from other city taxes. The law also provides that every resolution or proceeding of the board of education, whereby any liability or debt may be created, etc., shall, before it takes effect, be presented by the secretary of the board to the mayor of the city of Detroit. If he approves the same, said resolution goes into effect. The law also provides that the common council, with the consent of the board of estimates, may cause the whole or any part of the appropriation for the purchase of lots and erection of school buildings to be made by issue of bonds in lieu of raising the same by taxation. While certain of the city officials ex officio act for and with the board of education in carrying out its scheme of finance, all these provisions are separate and distinct from any provisions in the city charter, which deals with strictly municipal expenses and indebtedness. While the mayor and common council of the city have a restraining control over the estimates made by the school board and may reduce the same, even though the charter limit of 2 per cent, is not reached, it may be regarded as a discretionary power, conferred by the school act for the common interest, to harmonize and balance expenditures between two coextensive and co-ordinate corporations of the same territory supported by the same community.

The limit of indebtedness under consideration is found in section 7, chap. 11, of the Detroit charter, and provides that—

“The gross debt of the city after deducting the means in the sinking fund of said city and not including the water debt, shall never exceed two per cent, of the assessed value of all the real and personal property in said city.”

By section 11 of the same chapter it is declared:

“The common council shall not have authority, except as herein specially provided, to borrow any sums of money whatsoever on the credit of the corporation.”

By section 14 of the same chapter it is provided:

"All bonds and evidences of debt issued, and all contracts made or entered into contrary to or not authorized by the provisions of this act shall be absolutely void.”

Culling out these limitations and taking them literally, giving the words general application and their " natural and ordinary meaning ” as such, no money could be raised in the city of Detroit for educational purposes either by taxation or bonds. Manifestly such was not the intent. Such language must be interpreted, and its .meaning ascertained, not only from the words used, but the subject-matter to which they relate, and in the light of other provisions of the charter and other laws in existence at the time.

The purpose of a statute must be indicated by its title. The title of the charter of the city of Detroit gives no notice that the educational system is involved. It makes no provision for it.

" The application of particular provisions is not to be extended beyond the general scope of a statute unless such extension is manifestly designed. Legislatures, like courts, must be considered as using expressions concerning the thing they have in hand; and it would not be a fair method of interpretation to apply their words to subjects not within their consideration, and which, if thought of, would have been more particularly and carefully disposed of.” Estate of Ticknor, 13 Mich. 44.

It is a rule of construction that the meaning of the legislature is to be obtained from the subject-matter being dealt with, as well as the meaning of the words used, and the words used are to be limited to the object the legislature intended to apply them to. Lessee of Brewer v. Blougher, 14 Pet. (U. S.) 178;. United States v. Palmer, 3 Wheat. (U S) 610.

We think fair rules of construction limit the phrase “gross debt of the city of Detroit,” found in the charter provisions relating to taxation and finance, to the specific object which the legislature had in mind, which was the power of the city authorities to incur indebtedness for strictly municipal purposes and activities, and not a limitation on one of the sovereign powers of the State of general jurisdiction and application. Taxes and bonds for school and educational purposes are not for city or municipal purposes. The legislature, enacting a Comprehensive scheme of local government for a large and rapidly growing city, omitted absolutely from its charter any provision for the maintenance of the public schools and wholly ignored the subject. We must conclude this was intentional, done with the knowledge that other laws controlled the subject of education and other provisions had been and would be made for financial support of the school system; hence the charter was confined strictly to “local government,” to the exclusion of “education,” and the limit of indebtedness was directed strictly to expenditures for local government, its necessities and conveniences.

We think this case distinguishable from those decisions in other States where, under other statutes, certain indebtedness for school purposes has been aggregated with that for city purposes to determine the debt limit as fixed by comprehensive, constitutional provisions of g'eneral application, which declare that no political or municipal corporation shall become indebted in any manner for any purpose to any amount in the aggregate exceeding a certain sum. Here a city charter, dealing with a particular subject, fixes a limit as to that subject.

Guided by the foregoing considerations, we are constrained to hold that the school bonds and library bonds of the city of Detroit were not intended to be, and are not, included in the 2 per cent, limit of indebtedness for municipal purposes specified in the charter

As these conclusions relieve the other bonds involved in this controversy from the imputation of exceeding the debt limit, the special questions relating to them become unimportant and need not be further considered.

Judgment is reversed, and the proceedings are remanded for such further action as may be necessary in the premises under this opinion.

Moore, C. J., and Brooke, Blair, and Stone, JJ., concurred.

Mo Alva y, Ostrander, and Bird, JJ., did not sit.


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
      In re PRICE.
    Abandonment — Criminal Law — Venue—Husband and Wire — Desertion — Jurisdiction.
    Desertion of a wife by tbe husband takes place in the county of which the wife is a legal resident, and in which she becomes dependent, so that a prosecution under Act No. 144, Pub. Acts 1907, is properly brought in the county of her legal residence although the husband never lived there.
    Habeas corpus by Herbert W. Price against Leo J. Rimmele, sheriff of Saginaw county, to secure his discharge from custody after conviction.
    Submitted February 27, 1912.
    (Calendar No. 25,034.)
    Writ denied February 29, 1912.

      Thomas W. Payne, for petitioner.

      Bird J. Vincent, Assistant Prosecuting Attorney, for respondent sheriff of Saginaw county.
   Stone, J.

The return of the sheriff of Saginaw county shows that the petitioner, after criminal proceedings taken against him for desertion and abandonment of his wife, has been convicted of that offense in the circuit court for the county of Saginaw, and after conviction was remanded, by order of the said court, to the custody of the said sheriff to await sentence, and is now in such custody; the proceedings being substantially as follows: After due arrest upon a warrant issued upon complaint of his wife, and after due examination under the statute, and after having been duly held for trial in the circuit court aforesaid, an information was duly filed, charging that the petitioner, on, to wit, the 2d day of April, 1911, at the city and county of Saginaw, unlawfully and feloniously did desert and abandon one Amy V. Price, she, the said Amy V. Price, being then and, there, and from thence hitherto until the 3d day of July, 1911, the wife of the said Herbert Price, without providing her, the said Amy V. Price, with proper food, care, and clothing, and did then and there feloniously and unlawfully leave said Amy Y. Price, his said wife, as aforesaid, a burden upon the public, within the meaning of Act No. 144 of the Public Acts of the State of Michigan of 1907, contrary, etc The petitioner, upon arraignment, having stood mute, a plea of not guilty was entered by order of the court, and a trial by jury was had, resulting in a verdict of guilty, and said petitioner is now in the custody of the sheriff, by order of said court, awaiting sentence

In his petition for the writ of habeas corpus, the only illegality complained of by petitioner is:

“ That the circuit court for the county of Saginaw has not got jurisdiction for wife abandonment by your petitioner, inasmuch as your petitioner never lived with the complaining witness in the city of Saginaw, county of Saginaw, that your petitioner was married to the complaining witness when she was a resident of Grand Rapids, county of Kent, and your petitioner, at the time of said marriage, was a resident of Marquette county, State of Michigan. That your petitioner, at the time of his arrest, was a resident of Wayne county, State of Michigan, and never was a resident of Saginaw county. That if your petitioner is guilty of abandonment he did not commit abandonment in the county of Saginaw, as alleged.”

Upon the hearing before this court, it was conceded by the petitioner that the said Amy V. Price became a legal resident of the city and county of Saginaw in the month of September, 1910, and so continued to the time of his trial, as aforesaid. The single question for our consideration, therefore, is whether, under the circumstances above disclosed, the circuit court for the county of Saginaw had jurisdiction to hear and determine said criminal case.

The statute provides that:

“Any person who deserts and abandons his wife, or deserts and abandons his minor children under fifteen years of age and without providing necessary and proper shelter, food, care and clothing for them, shall upon conviction be deemed guilty of a felony,” etc.

After making provision for suspended sentence upon the giving of a bond, and providing for a modification of the order in certain cases, the statute provides that, in case of sentence to one of the State prisons, the warden where such convicted person is confined shall pay over to any of the superintendents of the poor of the city or county in which the wife or children of such person resides a certain sum for her or their support, said sums to be expended by said superintendents of the poor for the care and support of the wife or children of said person, as the case may be; and it is made the duty of the superintendents of the poor of the city or county from which such person shall be committed to furnish the warden of the prison in which such person is confined with a sworn statement, showing the names of the wife and children who are left dependent upon the city or county for support, etc.

Section 4 of the act provides that;

Any of the superintendents of the poor of the city or county, or the county agent of the State board of corrections and charities for the county wherein the wife or minor children of the person complained of reside, may make the complaint.”

It seems clear to us that, the wife being a legal resident of Saginaw county, the offense is committed in failing to perform the duty of support imposed by law, in that county. That is the proper county of the venue.

In 12 Cyc., at page 237, it is said;

“ It has been held that the crime of abandoning one’s family is properly laid in the county where the accused sent his wife and children, and where they became dependent, although he may never have been in that county ” — citing Johnson v. People, 66 Ill. App. 103.

In 29 Cyc. p. 1678, the author says:

“In order to warrant a conviction for abandonment, the desertion must have taken place within the State; but the place where the children were, and not where the father was, at the time or during the period complained of, fixes the venue of a prosecution for nonsupport of the children” —citing Bennefield v. State, 80 Ga. 107 (4 S. E. 869); State v. Peabody, 25 R. I. 544 (56 Atl. 1028).

In Johnson v. People, supra, the court said:

“It may be conceded that under the laws of this State a defendant can only be tried in the county where the offense was committed. Hence, if the defendant in this case did not abandon his wife and children in Peoria county, he was improperly tried and convicted there. But it is to be observed that the personal presence of the offender is not always an indispensable element in fixing the local-jurisdiction of a criminal offense. A crime is, in legal contemplation, committed in the place where the doer’s act takes effect, whether he is himself in such place or not; in this way one may even perpetrate an offense against a State or county upon whose soil he never set foot. 1 Bishop’s New Grim. Proc. § 53; 1 Bishop’s New Grim. Law, §§ 110, 111.”

To the same effect are the following cases: Cleveland v. State, 7 Ga. App. 622 (67 S E 696), where it was held that the offense of abandoning one’s child and leaving it in a dependent condition is consummated, and in the legal sense committed, in the county where the state of the child’s dependency upon others begins, on account of the withdrawal by the father of his presence and aid in the way of support State v Sanner, 81 Ohio St. 393 (90 N. E. 1007, 26 L. R. A. [N. S.] 1093), where it was held that, as to some crimes, the physical presence of the accused at the place where the crime is committed is not essential to his guilt; citing Burton v. United States, 202 U. S. 344-387 (26 Sup. Ct. 688, 6 Am. & Eng. Ann. Cas. 362); Norris v. State, 25 Ohio St. 217 (18 Am. Rep. 291); Lindsey v. State, 38 Ohio St. 507. To the same effect is the case of State v. Dvoracek, 140 Iowa, 266 (118 N W. 399), where it was held that one who neglected to provide for his wife and children, in violation of the statute, was properly indicted in the county in which the duty to provide for them should be discharged; that is, in the county where they resided.

We are of opinion that the circuit court for the county of Saginaw had jurisdiction to hear and try the case; that the petitioner is not entitled to be discharged from cus tody; and it is the order of the court that he be remanded to the custody of the sheriff who produced his body in court.

Moore, C. J., and Steere, McAlvay, and Brooke, JJ., concurred.


author: Brooke, J.

text:
    HUBER v. TWIN CITY GENERAL ELECTRIC CO.
    1. Evidence — Master and Servant — Electricity — Repairs— Defective Insulation.
    It was competent, in an action by a lineman for injuries caused by defective insulation, to show that a guy wire, of which plaintiff took hold, became charged on two previous occasions, that the defendant was notified of the situation and made repairs which were insufficient to obviate the alleged imperfect insulation.

      3. Master and Servant — Degree of Care.
    That defendant was contemplating an immediate alteration in its entire construction did not change its duty to employés.
    3. Same.
    An electric power company, engaged in producing currents of high voltage, is charged with the duty towards its employés of exercising a very high degree of care because of the extremely hazardous nature of the business.

    4. Same — Risks Assumed — Insulation of Wires — Eleotrioity.
    While a lineman was chargeable with the assumption of such risks as are incident to the business, and such as grow out of dangers that he knew, or in the exercise of due care should have known, he did not assume the risk of a danger as to which the employer had actual notice and neglected to warn the employé.
    5. Same — Contributory Negligence.
    Whether he should have anticipated that a guy wire not usually charged might conduct a charge of electricity from an adjacent high voltage wire was a question for the jury.
    6. Same — Damages.
    A verdict of §3,500 for dislocation of an arm, resulting in weakness of the muscles and occasional pain nearly a year after plaintiff’s injury, by which he was disabled from work for about 30 days, should not be set aside as excessive.
    Error to Gogebic; Cooper, J.
    Submitted November 10, 1911.
    (Docket No. 85.)
    Decided March 12, 1912.
    Case by Bartholomew Huber against the Twin City General Electric Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Charles M. Humphrey, for appellant.

      M. M. Riley and L. 8. Rice, for appellee.
    Plaintiff, a man 40 years of age, had for 20 years been following the occupation of an electric lineman. He was experienced in the handling of live wires. In his work he customarily repaired electric light, telephone, and telegraph wires. These wires sometimes carried a high voltage. He had handled those carrying as high as 4,000 volts. In the spring of 1909 the defendant was engaged in changing the character of its transmission line to a more modern and economic system. In so doing it became necessary to remove the live wires from the old poles to the new, and to take down and remove the old ones. Plaintiff secured employment upon this job as a man of experience, and had worked thereon for about two months prior to the date of his injury, July 6, 1909. On the morning of that day he came to a pole which carried the wires around a corner. This pole was sustained by two guy wires which ran from the pole at different heights to anchors in the ground. Plaintiff had removed the two lower arms from the pole as well as the lower guy wire. He was ascending the pole to get into position to take off the next arm, when, in order to get in front of his work, he seized the upper guy wire, and received through his body an alternating current of electricity of 1,100 volts. He was unable to release himself from the guy wire for a short time, but finally became unconscious, and would have fallen to the ground but for the fact that his life belt prevented. His companions lowered him by means of a rope, when it was found he had suffered a dislocation ,of the shoulder. This dislocation was, with considerable difficulty, reduced after plaintiff had been rendered unconscious by the use of an anesthetic. After 20 days plaintiff resumed his work, but claimed that his shoulder pained him at times, and that his arm was weak up to the time of the hearing in the court below, which was May 17,1910. The guy wire which caused plaintiff’s injury had become charged by reason of the fact that the live wire had become released from the pin, or the pin had broken, thus permitting the wire to be drawn against the brace supporting one of the arms. The wire rubbing against the brace destroyed the insulation, and the brace, in turn, carried the current to the guy wire. There was at this corner a strain which had a tendency to break the pins carrying the live wires, and the upper guy wire was so placed as to receive the current if the pins broke and permitted the live wire to reach the brace. This particular guy wire had become charged upon at least two occasions previous to the day on which plaintiff was injured. One of these occasions was about two weeks before the day of the injury. Upon each of these occasions the defendant upon being notified sent a man to remedy the defect. The declaration charges negligence, in that the line was improperly constructed, in that the live wires were hot properly insulated, and in that defendant, having knowledge of the dangerous and unsafe condition of the wires upon the pole in question, failed to warn the plaintiff of such danger. Plaintiff having recovered a judgment, defendant reviews its case in this court by writ of error.

       Liability of electric company to employé for injury caused by electric shock, see note in 32 L. R. A. 351.

   Brooke, J.

(after stating the facts). Defendant contends that the judgment should' be reversed for several reasons:

(1) Because the court erred in admitting evidence of the fact that the guy wire had become charged upon two former occasions; it appearing that the defendant upon being notified had at once caused repairs to be made.
(2) Because the court erred in admitting testimony that when repairs were made before the accident they were not made properly.
(3) Because the court erred in admitting testimony that the lines at the place of the accident were not originally properly constructed.
(4) Because the court erred in his charge to the jury.
(5) Because plaintiff was guilty of contributory negligence.
(6) Because plaintiff assumed the risk.

With reference to the first, second, and third reasons assigned, we content ourselves with saying that no error was cqmmitted in admitting the testimony of which complaint is made. It must be borne in mind that through the operation of natural laws the strain upon the mechanism used to hold in place the line carrying the deadly current around a corner was much greater at that point than upon a straight line. It was, of course, the duty of defendant to so construct its line as to reasonably meet this condition. The fact that through the improper location of the guy wire or the breaking of the pin holding the live wire the guy wire had become charged upon at least two previous occasions, was important, and we think competent, evidence tending to show notice to defendant of the dangerous situation at this point, and such evidence does not become incompetent or immaterial as soon as it is shown that the defendant undertook repairs which the event proved to be inadequate. The character of the repairs made was in our opinion likewise the subject of proper inquiry. It appears that, upon the occasion -about two weeks before the day of plaintiff’s injury, Boden, who made the repairs for defendant, found (so he testifies) that the insulation on the live wire was cut or rubbed off, he supposed by swaying and coming into contact with the guy. The repairs made consisted in winding some tape about the guy wire which at that point was very close to, but not touching, the live wire. In view of the facts that the guy had become charged, that it was located in a public street, and that when charged it carried a current of high voltage, we think the question of the sufficiency of the repairs made was clearly one for the jury. It was shown by the plaintiff that the pin carrying the live wire was broken, and that the break was an old one. Boden testified that he did not notice the broken pin when he made his repairs. The jury might very well conclude, however, from the other testimony that the pin was broken at that time.

The contention made that, because defendant was about to change its entire construction it owed a less imperative duty in the premises, cannot be maintained. The handling of electrical currents of high voltage is a business extremely hazardous, and those engaged in that business are charged with the duty of exercising a very high degree of care for the protection of life. The charge, to parts of which objection is made, when read as a whole, is, in our opinion, not open to criticism. Assuming that no error was committed in the admission of the testimony of which complaint is made, it correctly sets out the claims of the parties and the applicable law.

A more serious question is raised in reference to the assumption of risk. In Chisholm, v. Telegraph Co., 176 Mass. 125 (57 N. E. 383), it is said:

“ The danger from an imperfectly insulated wire is the most characteristic risk which a lineman has to encounter. * * * Everybody knows that there always is a chance that the insulation of a wire may become worn off or defective from some cause.”

Again, in Britton v. Telephone Co., 131 Fed. 844 (65 C. C. A. 598), the court says:

“Linemen must, in the very nature of the occupation, be often required to work alone, or in association with other linemen, and it would seem quite impracticable and unreasonable to send one man as an inspector with another of equal fitness to test a pole before climbed by the latter.”

The case of Anderson v. Telegraph Co., 19 Wash 575 (53 Pac. 657, 41 L. R. A. 410), is a case which upon the facts much resembles the case at bar. In that case a lineman of the defendant was injured by coming into contact with a guy wire which had become charged through the breaking of an insulator. It was held that he could not recover, because by the exercise of care he could have discovered the danger In the case of De Kallands v. Telephone Co., 153 Mich. 25 (116 N. W. 564, 15 Am. & Eng. Ann. Cas. 593), this court held that a lineman assumed the risk of all dangers incident to his employment which he actually knew or should know. Again, in Lynch v. Traction Co., 153 Mich 174 (116 N W. 983), it was held that an experienced lineman assumed the risk of injury resulting from his employer’s method of inspection with which he was familiar.

The case at bar, however, we think, is distinguishable from those cited and relied upon by defendant. Here the defendant had actual notice of the faulty character of its appliances at the point in question. It is true that the plaintiff by his contract of employment assumed the risk of injury from those dangers which he knew existed, or which in the exercise of care he should have apprehended. The record, however, shows that the office of the guy wire is to maintain the pole in an upright position, and it is supposed to be free from the electrical current. Whether plaintiff should have apprehended the possibility of its being charged and governed his actions accordingly was a question for the jury which was properly submitted. We think, moreover, that the jury might well conclude that, possessing the knowledge which it did possess, it was negligence on the part of the defendant to fail to warn plaintiff of the extraordinary hazard he encountered in climbing the pole in question.

After this case was submitted, a motion was made for leave to amend the record in order that the court might consider the question .of the alleged excessive character of the verdict.

The motion may be disposed of by saying that, though not properly before us, we have examined the testimony bearing upon the damages, and are of the opinion that a verdict in the sum of $2,500 is not so excessive as to warrant this court in disturbing it.

The judgment is affirmed.

Moore, O. J., and Steere, Stone, and Ostrander, JJ., concurred.


author: McAlvay, J.

text:
    HIGHLAND v. TOWNSHIP OF GARFIELD.
    Highways and Streets — Defects in Roads — Townships — Contributory Negligence.
    Whether plaintiff was guilty of contributory negligence in attempting to return home from market in the evening along a road which was dangerously narrow and slippery with recent rains, as he knew, where his wagon slid into the ditch, injuring his horse, was a question for the jury.

    Error to Mackinac; Shepherd, J.
    Submitted November 13, 1911.
    (Docket No. 95.)
    Decided March 12, 1912.
    Case by James Highland against the township of Garfield for injuries to plaintiff’s horse resulting from a defective condition of the highway. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Henry Hoffman, for appellant.

      James J. Brown, for appellee.

       Contributory negligence as affecting liability of municipal corporation for defects and obstructions in street, see note in 21 L. R. A. (N. S.) 614

   McAlvay, J.

Plaintiff recovered a judgment in this case against defendant township in an action for damages on account of the loss of a horse, caused, as is claimed, by the negligence of the township in not maintaining a certain highway within its limits in reasonable repair, and in a condition reasonably safe and fit for travel. Defendant offered no witnesses, and at the close of the proofs in the case moved for an instructed verdict on the ground of contributory negligence of plaintiff. This motion was denied. Error is assigned upon such refusal, and this is the only question discussed on the part of defendant and appellant.

The material facts are that plaintiff has resided in the township for 16 years. This highway, known ás the “ Newberry road,” is the main traveled road between Engadine and Newberry, and necessary to be used by plaintiff in going from Donald, the name of the post office near which he lives, to Newberry. This road runs north and south, and plaintiff travels upon it from his home north to reach Newberry. There are hills on this road known as “Eckley Hills,” over which it passes. On the east side of the track on the first hill going north is a ditch downhill, the upper portion of which is filled with stone, and the lower part open, which, crowding to the west, encroaches upon the track. It is from a foot to 18 inches wide, and from 8 to 18 inches deep. There were no drains constructed to carry off the rainfall upon the hill, and this one was cut by the water running downhill. The soil is red clay, and recent rains had made the hill slippery. The ditch at the place where the accident occurred runs about in the center of the track, leaving a space on the west side of it of eight or nine feet between it and the embankment on the west side of the road, and side of the hill. It is necessary to go upon this eight or nine feet and pass along in order to avoid getting into the ditch.

On the morning of October 26,1910, the plaintiff started from home early, driving his team with an empty wagon, bound for Newberry for the purpose of obtaining a load of grain. He came down this hill with care, avoiding this ditch, and, after he had arrived at the foot of the hill, left his team, and went back,, as he testified—

“ And examined it to see how I was going to get back by it at night, and whether I had better turn back home, and I made up my mind by going to the west as close as I could to the embankment, if the wagon stayed there, that I could go by, keeping as tight to the west side of the road as I could.”

He proceeded to Newberry, got his load, and started on his return home at 3 o’clock in the afternoon. He arrived at this hill about 9 o’clock. It was very dark, and, when he came to this place, he got off the wagon, and felt with his feet on the west side to know how close he was to the west side of the cut in order to keep clear of the ditch. He says:

“ This turn was the only turn to use. It was the beaten track that had been made by teams passing this ditch.”

He then mounted his wagon, and drove about two wagon lengths. The ground was sloping and the wagon slipped sideways into the ditch, throwing the horse and injuring it so severely that it became worthless. Plaintiff had gone over this hill several times that season, and knew its condition. He and other witnesses say that it was unsafe and dangerous. He had no lantern with him that night. The record shows that the road had been in this condition from one to three years, of which the authorities had actual notice. The dangerous conditions were during the break-up in the spring and after considerable rains. It was used by the public at all seasons, and for the most of the time was in a reasonably passable condition.

Appellant contends that the case is controlled by Black v. City of Manistee, 107 Mich. 60 (64 N. W. 868); Church v. Village of Howard City, 111 Mich. 298 (69 N. W. 651, 66 Am. St. Rep. 396), and like decisions. We think that the instant case is distinguishable from that line of cases. In the first case cited plaintiff was perfectly familiar with conditions. She saw the icy sidewalk, and knew that it was dangerous, yet she proceeded without using any care whatever, refusing and neglecting to take hold of the handrail, and the court says:

“It was not a case where to proceed was the only alternative.”

In other words, she made no attempt to avoid injury. In the second case cited, supra, the court said:

“ The case is ruled by Black v. City of Manistee, 107 Mich. 60 [64 N. W. 868]. In that case plaintiff neglected to guide herself by the handrail when passing over an icy sidewalk.”

The learned trial judge held that it could not be said as a matter of law that plaintiff was guilty of contributory negligence, and submitted the case to the jury under a charge upon which no specific error has been assigned by appellant. By this charge the question of contributory negligence of plaintiff was submitted to the jury as a question of fact. Upon this record our opinion is that the court was not in error in refusing to instruct a verdict for appellant. The case is within the line of cases where this court has held against the contention of appellant. Harris v. Township of Clinton, 64 Mich. 447 (81 N. W. 425, 8 Am. St. Rep. 842); Schwingschlegl v. City of Monroe, 113 Mich. 683 (72 N. W. 7); Handy v. Township of Meridian, 114 Mich. 454 (72 N. W. 251); Gage v. Township of Pittsfield, 120 Mich. 436 (79 N. W. 687).

The judgment of the circuit court is affirmed.

Steere, Blair, Stone, and Ostrander, JJ., concurred.


author: Me Alva y, J.

text:
    FLEMING v. GEMEIN.
    1. Intoxicating Liquors — Civil-Damage Action — Nominal Damages — Habitual Drunkard.
    Under undisputed evidence that defendant sold plaintiff’s husband, an habitual drunkard, intoxicating liquors, after having been notified not to do so, that plaintiff was injured in the matter of her support, suffered personal violence at his hands, that her property was destroyed and she suffered in her feelings, a verdict of six cents damages was against the weight of the evidence and should have been set aside on motion for a new trial.

      2. Same — Husband and Wipe — Privileged Communications — Witnesses.
    The court erred in refusing to admit testimony of the wife as to her husband’s conduct while he was intoxicated from liquor sold by defendant: the evidence was not of a privileged character.
    Error to Wayne; Donovan, J.
    Submitted November 14, 1911.
    (Docket No. 101.)
    Decided March 12, 1912.
    Case by Jennie Fleming against John J. Gt-emein for unlawful sales of intoxicating liquor to plaintiff’s husband. A judgment for plaintiff for six cents is reviewed by plaintiff on writ of error.
    Reversed.

      Harry H. Wait (William L. January, of counsel), for appellant.

      James H. Pound, for appellee.
   Me Alva y, J.

Plaintiff sued defendant, who was engaged, in the city of Detroit, in the business of conducting a saloon as a retail liquor dealer, under the statute, claiming damages for unlawfully selling malt, brewed, spirituous, and intoxicating liquors to her husband, who became and was an habitual drunkard to the knowledge of defendant, and after the defendant had been notified by her verbally and in writing not to sell to her husband, for the reason that he was an habitual drinker, and an habitual drunkard. There is no question raised as to the sufficiency of the declaration in the case. The case was tried in the Wayne circuit court, and resulted in a verdict for six cents damages for plaintiff. A motion for a new trial was made on the ground, among others, that the verdict was contrary to the weight of the evidence and clearly inadequate. This motion was denied.

Plaintiff asks a reversal on account of error assigned upon the rulings and remarks of the court in excluding testimony offered by plaintiff, upon certain portions of the charge to the jury, and upon the denial of the motion for a new trial.- It will not be necessary to consider all of the errors assigned. Attention will be given to those of material importance.

The material facts appear from this record: That plaintiff was married at Detroit in 1895 to William Fleming, a skillful and competent machinist, at that time and still in the employ of the Railway Steel Spring Company. That he was then earning $2.50 a day, which in a year or two was raised to $2.75 a day, and in December, 1903, he was appointed master mechanic at $85 a month. About six months after the marriage he began to drink moderately, which continued for a year or two, when he began to drink to excess, during which period he would come home intoxicated, and spent practically all his earnings in defendant’s saloon. This continued until 1901, when he Was laid off from his work by the master mechanic. Defendant was notified at that time by the master mechanic not to sell Fleming any more intoxicating liquors. After that Fleming did not drink for about a year. He began again in 1902-1903, and gradually grew worse until May, 1908. During this time he spent all his evenings, sometimes until midnight, at defendant’s saloon, which was located next to the plant where he worked. He came home frequently intoxicated, using vile language towards his wife, and sometimes assaulting her violently, and smashing her furniture. •

Prior to acquiring the habit of becoming intoxicated and during the period when he quit drinking, Mr. Fleming always treated his wife with kindness and great consideration. During that time he turned over to her a large portion of his earnings, with which she paid all the bills and home expenses. In 1903, when he was again drinking hard, he spent practically all his money in defendant’s saloon, not furnishing his wife enough for support and to pay rent, and she was obliged to open a millinery store, from the proceeds of which she supported the family. This continued until 1908. Some time in October, 1906, he once came to the store intoxicated, threw her through the store door, and broke up some of the furniture. On account of this violence, she became sick and was unable to do her work. For three weeks she was afraid to stay in the store, and rented a room or stopped with her neighbors. She notified defendant verbally not to sell her husband liquor, at which time he said it was none of her business how her husband spent his money. She also, October 6, 1906, served a written notice on him forbidding him selling to her husband intoxicating liquors, for the reason that he was in the habit of getting intoxicated and was an habitual drinker. Defendant continued to sell and furnish him liquors to drink until as late as March, 1908. From an account furnished by defendant in a garnishee suit brought against Mr. Fleming for a claimed balance on saloon account of $138.20, it appears that he'had sold and charged plaintiff for liquors about $800. This did not include any drinks for which cash had been paid. It appears that Mr. Fleming quit drinking in 1908, and at the time of the trial in December, 1909, continued to abstain from all intoxicants. There is practically no dispute in the record as to the foregoing facts.

The only witness for the defense was defendant, whose direct examination was brief. He admitted selling to Mr. Fleming both before and after notice. He claimed that Mr. Fleming never became intoxicated, and never lost any time from his work. He admitted that plaintiff and her young son used to come to his place quite frequently after Mr. Fleming to get him to go home.

Of the errors assigned we will first consider the denial of a new trial. From this record it is apparent that the verdict of six cents damages was contrary to the great weight of the evidence, and grossly inadequate. The undisputed evidence tended to show that defendant sold plaintiff’s husband intoxicating liquors after being notified that he was an habitual drinker, and in the habit of becoming intoxicated, and did become intoxicated upon liquors so sold to him by defendant; that this plaintiff suffered materially in the matter of her support; that she suffered personal violence and was made sick by her husband’s assaults; that her property was destroyed; and that she suffered damages to her feelings in shame, humiliation, and disgrace, all by reason of the conduct of her husband, caused by the unlawful sale of liquors made to him by defendant, and there was abundant evidence tending to show that she was entitled to substantial damages for such injuries. The court was in error in denying such motion.

Upon the offer of evidence by the plaintiff relative to the acts and conduct of the plaintiff’s husband when he was intoxicated at the times referred to in the statement of facts, the court refused to allow plaintiff to testify. Several errors are assigned upon such rulings and the interjection of prejudicial remarks by the court, as follows:

“Q. Will you describe what took place on this occasion, how Mr. Fleming acted, and what he did ?”

The court excluded the answer upon the ground that it was a privileged communication; counsel for defendant having made no objection for that reason. In a long statement by the court he refused to change his ruling, because “ such testimony would tend to disrupt the family relation and create interminable litigation.” The examination of the witness proceeded:

“Q. What did he do on these occasions? Counsel for defendant made the same objection.
“Q. Leave out what he said to you, what did he do ?
“A. He struck me.
The Court: You are getting that in. It is inimical to the family harmony.”

The court sustained an objection, and ruled the testimony out. The wife was clearly a competent witness to testify as to the conduct of her husband when intoxicated from the effects of liquor unlawfully sold to him by defendant. The court was in error in excluding such testimony.

We have examined the other material errors assigned, and although we think that they are meritorious, we do not consider it necessary to discuss them, for the reason that it would be of no benefit to the profession, and there is no probability that they will recur upon a new trial.

The judgment of the circuit court is reversed and a new trial ordered.

Steers, Blair, Stone, and Ostrander, JJ., concurred.