author: Steere, J. Ostrander, C. J.

text:
    PEOPLE v. LABBE.
    1. Indictment and Information — Sufficiency — Intoxicating Liquors — Criminal Law.
    An information charging defendant with a violation of section 4 of Act No. 381, Pub. Acts 1913 (2 Comp. Laws 1915, § 7121), in keeping and storing intoxicating liquors in “a garage, other than and not being the private residence” of said defendant, was sufficient; it not being necessary to specify whether the place was one of public resort or not, since it was not a private residence.
    2. Statutes — Construction—Conferring Privilege.
    While a statute directed to protecting an absolute right of person or property from criminal attack or invasion may sometimes justify resort to technical definitions and strained construction beyond its popular meaning to compass its manifest purpose, statutes which merely confer a privilege are to be construed, as far as possible, according to their common meaning, so as not to invite public mischief or authorize the individual to overreach the conferred privilege.
    3. Same — Privilege.
    The provision in section 4 of Act No. 381, Pub. Acts 1913, excepting a private residence from the inhibition of the statute, merely extends a privilege to the owner. Ostrander, C. J., dissenting.
    4. Same — Private Residence — Construction. •
    The words “private residence,” as used in said section 4, construed, and held, not to have the technical meaning of “dwelling house,” as applied under the common law to cases of burglary, etc.
    5. Intoxicating Liquors — Local-Option Law — Construction— Private Residence — Garage.
    In a prosecution for the violation of section 4 of Act No. 381, Pub. Acts 1913, in keeping and storing intoxicating liquors in a garage located on an alley at the rear of defendant’s lot upon which his dwelling house stood, distant some 40 feet from it, and in no way connected with it, said garage held, not to be included in the “private resideuce” of defendant, as used in said section 4 exempting a private residence from the inhibition of the statute.
    Exceptions before judgment from Wexford; Lamb, J.
    Submitted June 14, 1918.
    (Docket No. 105.)
    Decided July 18, 1918.
    Harold Labbe was convicted of violating the local-option law.
    Affirmed.

      Gaffney, Miltner & Millington, for appellant.

      A. W. Penny, Assistant Prosecuting Attorney, for the people.
   Steere, J.

Defendant was prosecuted and convicted in the circuit court of Wexford county of violating section 4 of the so-called Pray law (Act No. 381, Pub. .Acts 1913, 2 Comp. Laws 1915, § 7118 et seq.), by keeping intoxicating liquors stored in his garage, and brings this case for review upon exceptions before sentence attacking the legality of his conviction on the following grounds:

First. The information fails to state that the building in which he is charged with having kept intoxicating liquors was not used as a place of public resort.

Second. That said garage is a part of his private residence within the meaning of that term as used in the section of the act under which he was convicted.

The facts are not in dispute, and as stated in the brief of defendant’s counsel stand stipulated as follows:

“It appears that on the 6th day of July, 1917, the local-option law was in force in the county of Wexford; that the defendant was not then and there a druggist or registered pharmacist; that he did not then and there keep, store and possess liquor for medicinal, mechanical, scientific or sacramental purposes, not in the process of transportation, nor as a common carrier; that the liquor, consisting of 126 pints of beer, was kept, storéd and possessed by defendant in his garage, situated and being on the alley at the rear end of the lot upon which his dwelling house is located about 40 feet distant from the dwelling house property and not connected in any way therewith; that there was no cellar under the house, nor store-room; that the liquor so kept, stored and possessed by the defendant was for his own private use, and that the offense charged in the information, if an offense, is admitted to be a second offense against the local-option law.”

Upon defendant’s arraignment a motion was interposed in his behalf to quash the information on the ground “that it does not allege that the defendant kept, stored or possessed the liquor mentioned in the information in a place which was a place of public resort.” This motion was denied. Upon the trial both sides asked for a directed verdict upon the conceded facts. After argument of counsel and discussion of the meaning of the term “private residence” in the connection used, the court said to the jury:

“I charge you, gentlemen of the jury, that it would be a violation of the law, under the conceded facts, and it is your duty to find the respondent guilty as charged.”

Following some further discussion of the question the court directed that the jury retire to the jury room, saying in conclusion :

“Now, in order that there may be no mistake, I want you all to understand that the direction of the court is that it.is your duty to find this respondent guilty as charged. I leave it to you to bring in your verdict, and will take care of it afterward. I don’t want you to misunderstand what I say but I am leaving it to you to say whether under this stipulation as to the facts and the law as I look at it and_ declare it to you, respondent is guilty or not.”

After being absent for a time the jury returned into court in charge of the sheriff and rendered a verdict of guilty as charged.

A motion was thereafter made for a new trial and the questions now presented were saved for review by proper objections and exceptions.

The act under which the prosecution was brought is entitled, so far as material:

“An act to regulate the sale, * * * purchase, acceptance, receipt and possession by any person, * * * of any' vinous, malt, brewed, fermented, spirituous or intoxicating liquor when such person * * * resides in territory where the manufacture and sale of such liquors for beverage purposes is prohibited ; to prohibit the same in certain cases; to prescribe the means for the enforcement of the provisions of this act;” etc.

Section 4 provides, so far as material here:

“In any township, municipality or county in this State where the manufacture or sale of any of the liquors mentioned in section 1 is prohibited, it shall be unlawful for any person to keep, store or possess any such liquors in any room, building or structure other than the private residence of such person and which is not used as a place of public resort.” * * *

The information charges at length a previous conviction for storing and keeping intoxicating liquor in the basement of a certain building on another street than where defendant resided, and charges as a second offense (so far as pertinent to the question raised as to its sufficiency) that—

“ — in a certain building, á garage, other than and not being the private residence of him, said Harold Labbe, in the rear of what is known as 204 Crippen street in said city of Cadillac, did then and there keep, store and possess a certain quantity of malt, brewed, fermented, spirituous intoxicating liquor, to wit,” etc.

Under the act a private residence is the only exception to the provision prohibiting the storing and possession of intoxicating liquors in territory where the local-option law is in force, and not even in private residences if they are used as places of public resort. If this information charged defendant with violating the provisions of section 4 by keeping intoxicating liquors stored in his private residence which was aiso used as a place of public resort it would be necessary to charge that such private residence was also a place of public resort, but where the charge is storing in a place other than a private residence it makes no difference under the statute whether the place is one of public resort or not, and therefore it is not necessary to specify.

The building where this liquor was stored was located on an alley at the rear of defendant’s lot upon which his dwelling house stood, distant some 40 feet from it and in no way connected with it. Conceding it was within what is known as the curtilage, it may be likened to a barn or carriage house used for the shelter of animals and vehicles. So regarding it the vital question presented by the undisputed facts is whether or not the words “private residence” in the connection used and for the purpose used was intended by the legislature to have the technical meaning of “dwelling house” as applied under the common law to cases of burglary, etc., thereby including any other disconnected buildings within the curtilage, or home inclosure.

It is correctly'stated in defendant’s brief that the expression “ ‘private residence’ is not a familiar and common legal term,” but authority is offered to the effect that in its ordinary use and popular sense it signifies the same as “dwelling house” and the two terms are synonymous. From this it is argued that in its technical, legal meaning as applied in criminal cases it includes as part of a dwelling house all appurtenant buildings within the curtilage, in support of which numerous authorities are cited, from which it is argued that the garage in question should be construed to constitute a part of defendant’s private residence. From our own jurisdiction counsel cites to that proposition, People v. Taylor, 2 Mich. 250; Pond v. People, 8 Mich. 150; Pitcher v. People, 16 Mich. 142; Stearns v. Vincent, 50 Mich. 219, and People v. Aplin, 86 Mich. 393; to which might be added others including People v. Nolan, 22 Mich. 228; Curkendall v. People, 36 Mich. 309; People v. Fairchild, 48 Mich. 31. It may be noted that in these cases the comprehensive and strictly legal meaning of the term contended for is adopted in that class of offenses against the habitation which involve criminal invasion of or an attack upon the home by a stranger imperiling the peace and safety of its occupants, an element of crime which has no relation to and is not involved in the unlawful use of a private residence or its appurtenances by the owner or tenant rightfully in possession of and occupying the dwelling.

It is particularly pointed out that in Pitcher v. People, supra, which involved a charge of burglary, this court held that the common law definition should control since the statutory definition of the crime charged was the same as that of the common law and it must be assumed in the absence of any provision to the contrary that the statute intended no "change in the offense. That this technical definition is limited in its application to cases involving the reasons which gave rise to it is made clear in Stearns v. Vincent, supra, by Justice Cooley, who wrote both cases, as follows:

“In the law of burglary the dwelling house is deemed to include whatever is within the curtilage even if not inclosed with the dwelling if used with it for domestic purposes. People v. Taylor, 2 Mich. 250; Pitcher v. People, 16 Mich. 142. This construction of the term is for the peace, repose and safety of families in the night-time and it is made to include all those buildings, the forcible breaking of which for felonious purposes during the hours which peaceable and law-abiding persons give up to rest, would naturally cause alarm, distress and danger.”

Vide, also State v. Clarke, 89 Mo. 423, as to the policy of the law in adopting such definition.

A statute directed to protecting an absolute right of person or property from criminal attack or invasion may sometimes justify resort to technical definitions and strained construction beyond its popular meaning to compass its manifest purpose, but statutes which merely confer a privilege are to be so construed, as far as possible, according to their common meaning, as not to invite public mischief or authorize the individual to overreach the conferred privilege. The provision in section 4, excepting a private residence from the inhibition of the statute, merely extends a privilege to the owner. The technical definition of a dwelling house by which defendant seeks to enlarge the provided privilege to include all structures or buildings upon his lot, or within the curtilage, gives to “private residence,” or even to “dwelling house,” a different meaning from that commonly understood and as it is generally used. Outside the legal profession, the average citizen of recognized education, intelligence and standing would be surprised if not offended on being told his hog house and cow stable, or other structure in his barnyard, were part of his private residence. In many adjudicated cases not involving criminal invasion of the home by a stranger various definitions of a dwelling house in harmony with general understanding and common use are recognized as expressing its meaning in the connection used, such as the house or the building in which a person lives or which is inhabited by man; the house in which one dwells; the house in which one resides — the house of his present abode; a place of habitation; a place of abode; a domicile or mansion; a house in which the occupier and his family usually reside; a house designed to be occupied as a place of abode by night as well as by day, etc. 14 Cyc. p. 1126 et seq.

Both dwelling house and private residence are popular terms in general use, with a well defined, ordinary and popular meaning. To this can be added that they sometimes are given, as applied to certain crimes and legal rights, an uncommon and more comprehensive technical, legal meaning also. In statutory construction it is the rule that unless some expression in the statute clearly indicates otherwise, words in general use should be given a common construction according to their generally accepted meaning.

“As a general rule the words of a statute are to be taken in their ordinary and popular sense, unless it plainly appears from the context or otherwise that they were used in a different sense. In the construction of statutes a word which has two significations should ordinarily receive that meaning which is generally given to it in the community; but when this construction would contravene the manifest intention of the legislature, we must depart from this rule and give effect to the intention. * * * The words of a statute are to be read in their ordinary sense unless so construing them will lead to some incongruity or manifest absurdity.” 2 Lewis’ Sutherland Stat. Con. (2d Ed.) § 390.

The construction placed upon the provision in question by the trial court leads to no hardship, incongruity, or absurdity, and is in harmony with the general rule of construction that all words and parts of a provision should be given a meaning where possible. The legislature avoided the adoption of any well-recognized common law term and applied the prohibition to “any room, building or structure, other than the private residence of such person,” etc., indicating that the exception is intended to apply to the single building or structure in which the possessor actually resides. To construe “private residence” as including all disconnected outbuildings or structures upon a city lot, or within a curtilage, as appurtenances or parts of the distinct building in which the owner or tenant in fact lived and made his domicile would render the distinguishing words “room, building or structure” meaningless. We conclude that the purpose of the statute and policy of the law as well as fair rules of statutory construction indicate an intent to confine the conferred privilege to the distinct building or structure in which the possessor privately resides, occupying it only as his habitation for strictly domestic purposes.

The conviction is affirmed, and the case remanded for such further action as the law provides in harmony with this opinion.

Bird, Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred with Steere, J.

Ostrander, C. J.

I do not think the statute confers a privilege upon any one, but that it defines a crime. I agree to the conclusion.


source: Caselaw Access Project

author: Ostrander, C. J.

license: Public Domain

text:
    PEOPLE v. VAIL.
    Intoxicating Liquors — Local-Option Law — Construction—Private Residence — Garage.
    In a prosecution for the violation of Act No. 381, Pub. Acts 1913 (2 Comp. Laws 1915, § 7118 et seq.), prohibiting the keeping and storing of intoxicating liquors in any building other than a private residence, where it was admitted that the liquor was found in a room used by respondent as a garage in the rear oí his pool room, the second floor over the pool room being occupied by defendant as living rooms, tbe conviction of defendant for violation of tbe act was justified, since tbe garage was no part of tbe “private residence” of defendant. People v. Labbe, ante, 513.
    Exceptions before judgment from Van Burén; Des Voignes, J.
    Submitted June 18, 1918.
    (Docket No. 100.)
    Decided July 18, 1918.
    George Vail was convicted of violating the local option law.
    Affirmed.

      James H. Kinnane and W. J. Barnard, for appellant.

      Horace H. Adams, Prosecuting Attorney (Earl L. Burhans, of counsel), for the people.
   Ostrander, C. J.

The information charges that respondent kept, stored and possessed certain liquor • — whisky—

“in a certain room in the rear of a certain room used and occupied by the said George Vail as a billiard and pool room,”

—not then and there the private residence of said respondent nor of any other person. That respondent was not a druggist nor a registered pharmacist, and that the manufacture and sale of such liquor is prohibited in yan Burén county, are other allegations. The' statute, the provisions of which are alleged to have been violated, is Act No. 381, Pub. Acts 1913 (2 Comp. Laws 1915, § 7118 et seq.).

It is not disputed that the sheriff found the liquor in a room used by respondent as a garage in the rear of his pool room, some of it in a motor car and some standing in the garage. That found in the car had just been brought in from Indiana, the other bottles were partly emptied, and there is no claim made that they had not for some time been standing in the garage where they were found. The pool room occupies the front of the building on the ground floor. In the rear are two rooms, one of them the garage, both of which open on an alley, and they open into each other. Between1 one of these rooms (not the garage) and the pool room is a door. People can and do enter the pool room from the alley. The second floor is occupied by respondent for living rooms and is used by himself and wife for housekeeping. A stairway leads from the rear room below — not the garage — to the second floor. There is some testimony tending to prove that' some kerosene oil was, or had been, stored in the garage for use in the living rooms and that coal for similar use had sometimes been kept in the garage.

It is claimed that the garage and the other rear room, also, are parts of respondent’s private residence, that in the statute “private residence” means what “dwelling house” meant at the common law, when crimes such as burglary and arson were charged. The court was asked to so interpret the law, and refused to do so. We have before this considered this statute and have denied this contention. People v. Labbe, ante, 513, and see People v. Wheeler, 185 Mich. 164,

Other alleged errors based upon exceptions to rulings admitting and rejecting testimony, the charge of the court and refusals to charge have been examined. All of them become unimportant in view of admitted facts and the view we take of the meaning of the law. It was the duty of the jury to return a verdict of guilty.

The exceptions are overruled, and the court below ordered to proceed to judgment.

Bird, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


text:
    MITTELSTADT v. KELLY.
    1. Appeal and Error — Dismissal—Court Rules — Irregularity.
    Where the bill of exceptions was settled “by consent," although apparently not conforming to Circuit Court Rule No. 66, § 5, in that the assignments of error did not accompany the bill of exceptions, although it is possible they were in fact before the judge when it was settled, and were not returned to this court with the exceptions, the writ of error will not be dismissed, where no motion to dismiss was made, the question being raised at the hearing, and it is possible that, seasonably made, upon a dismissal a new writ of error could have been sued out and the irregularity cured.
    2. Aliens — Right to Courts.
    While an alien enemy residing in his own country cannot maintain an action in the courts of this State, an alien residing here, and conducting himself properly under the law of our land, has the right to the protection of the law and may assert that right in our courts.
    3. Automobiles — Personal Injuries — Pleading—Appeal and Error — Amendments.
    In an action for personal injuries alleged to have been caused by the negligent driving of defendants’ automobile, where Act No. 318, Pub. Acts 1909, referred to in plaintiff’s declaration, had been repealed, and it should have referred to Act No. 302, Pub. Acts 1915, but the point was raised for the first time on motion for a new trial, the court below was not in error in denying the motion, since, if the point had been raised at the trial, an amendment would have been allowable.
    4. Same — Joint Owners, Liability for Acts of — Statutes — Intent.
    Where, in such action, the defendants, father and son, were joint owners of the automobile, and at the time the accident occurred it was being driven by the son, who was of age, and it is not evident that the legislature intended to make each part owner of an automobile liable for ^the consequences of the negligent operation of it by a co-owner or his agent, held, that the father was not liable under the act, and the judgment as to him should be reversed.

      Error to Wayne; Dodds, J., presiding.
    Submitted June 14, 1918.
    (Docket No. 74.)
    Decided July 18, 1918.
    Case by William Mittelstadt against George Kelly and Ira J. Kelly for personal injuries. Judgment for plaintiff. Defendants bring error.
    Affirmed as to defendant Ira J., and reversed as to defendant George Kelly.

      A. B. Hall and Frank W. Atkinson, for appellants.

      Charles Bowles, for appellee.
    The cause of action arose October 3, 1915, the declaration (suit having been begun by summons, the date of which does not appear) was filed January 22, 1916, and the cause came on for trial June 28, 1917. Negligent management of an automobile by defendants is charged, resulting in a collision in which plaintiff was injured and some of his property destroyed. Among other things, it is alleged that the precautions required by subdivisions 1 and 2 of section 7 of Act No. 318, Pub. Acts 1909, were not taken, and in conclusion it is said—
    “that by reason of the premises, and by virtue of the statute, and by reason of the neglect and default of the said defendants, as above set forth, this plaintiff has been damaged, etc., etc.”
    The plea is the general issue.
    Plaintiff was born in Germany, coming to this country when about four years old. He testified that his father was naturalized here, and that he was himself a citizen of the United States; this upon his cross-examination and in answer to direct questions. He had been a fireman in Detroit for 18 years, and had lived upon a farm in Wayne county for 13 years.
    The testimony for plaintiff tends to prove that he had purchased a farm and was moving from the one he formerly owned. Driving a team of horses, seated on a wagon in which was a quantity of dishes, canned fruit and other personal property, upon the rear of which was suspended a lighted lantern, he left his old home Sunday morning, October 3, about half past one o’clock, to go to his new home. His road lay by way of Gratiot avenue into Detroit. While driving on Gratiot avenue, an automobile was driven into the rear of his vehicle.
    The driver of the automobile was defendant Ira J. Kelly, a man 22 years old, who, with four male companions, had, during the evening, visited and drunk liquor at various roadhouses and saloons and were driving back to Detroit. The results of the collision and other testimony support the inference that he was driving his car carelessly and at á high rate of speed.
    Defendant George Kelly is the father of Ira J. Kelly. The declaration alleges that the defendants owned, used, operated and controlled an automobile, which, upon the occasion in question, was driven by Ira J. Kelly. Otherwise, the allegations proceed as though both defendants did whatever is alleged to have been done. It is plaintiff’s theory that defendants were joint owners of the car and therefore defendant George Kelly is liable as Ira J. Kelly is liable. And the jury was instructed that—
    “unless the title or some portion of it at the time of the accident was in George Kelly he is not liable at all.”
    Among other requests to charge preferred by defendants are the following:
    “2. The evidence shows that the plaintiff was born in Germany and there is no evidence that he ever became a citizen of the United States of America, or of any State thereof. The United States being at war with Germany, the said plaintiff is an alien enemy and has no standing in the courts of this State. As an alien enemy he cannot recover a verdict in this court and you are directed to render a verdict of no cause of action as to both defendants. :
    “3. There is no evidence that George Kelly was the owner of the automobile in question at the time of the accident and you must therefore return a verdict of no cause of action as to the defendant George Kelly.
    “4. The testimony is conclusive that the automobile was owned by defendant Ira J. Kelly at the time of the accident and any liability for the accident, if there be any, would be upon Ira J. Kelly alone.”
    There was a verdict for plaintiff against both defendants, and judgment was'entered upon the verdict. A new trial was refused, the opinion being filed December 31, 1917, and the certificate of the court to the bill of exceptions is dated March 2, 1918. The appellants’ assignments of error appear to have been filed March 4,1918. It does not affirmatively appear whether they were or were not before the court when the bill of exceptions was settled, but does appear, by the said certificate, that exceptions were settled “with the consent of the respective parties.” The return in the office of the clerk of this court indicates that the assignments of error were filed, not March 4, 1918, but June 5, 1918, and were not attached to the bill of exceptions.
    Appellants’ contentions are:
    “1st. The right of an alien enemy to maintain an action.
    “2d. The right to recover under the provisions of section 27, Act No. 302, Pub. Acts 1915, no violation of this act being set up in the declaration of plaintiff.
    “3d. The constitutionality of Act No. 302, Pub. Acts 1915,' and particularly of section 29 of this act.
    “4th. The liability of a part owner under section 29, Act No. 302.
    “5th. Whether or not there was competent evidence on which to submit the question of ownership as to defendant George Kelly.
    “6th. The court erred in allowing counsel for the plaintiff in his argument to refer to the financial condition of the defendants.”
   Ostrander, C. J.

(after stating the facts). Plaintiff, referring to Circuit Court Rule No. 66, section 5, and Supreme Court Rule No. 8, raises the point that because assignments of error did not accompany the bill of exceptions when it was settled, and were not returned here with the exceptions, there are no alleged errors to be reviewed and the judgment should be affirmed. Apparently, the practice was irregular; but the bill was settled “by consent” and it is possible that the assignments of error were in fact before the court when it was settled. Nor was a motion made here to dismiss, but the point is made at the hearing. Seasonably made, it is possible that upon a dismissal a new writ of error could have been sued out and the irregularity cured. Under the particular circumstances, we are not disposed to now dismiss or to affirm without consideration of the questions presented.

In refusing a new trial, the learned trial judge said:

“I am satisfied that the great weight of authority is to the effect that an alien enemy residing in his own country cannot maintain an action in this forum, but that an alien residing here and conducting himself properly under the law of our land has the right to the protection of the law and may assert that right in our courts.”

In this conclusion we agree. Clarke v. Morey, 10 Johns. (N. Y.) 68; Seymour v. Bailey, 66 Ill. 301; Hutchinson v. Brock, 11 Mass. 122; Rothbarth v. Herzfeld, 179 App. Div. 865; Arndt-Ober v. Metropolitan Opera Co., 169 N. Y. Supp. 944. See, also, Viola v. Mackenzie, Mann & Co., 24 Dom. Law Rep. 208.

The declaration refers to the law of 1909, a law which had been repealed, when it should have referred to the generally similar act of 1915. It is said the-court was in error in submitting the case to the jury as though, the act of 1915 had been declared upon. On the motion for a new trial, the point was first raised and in denying the motion the court said, aptly we think:

“No such question was raised at the trial. If it had been, it would have been an abuse of discretion on the part of the court if an amendment were not allowed, if claimed by the plaintiff. While as I remember it the court’s attention was not challenged to the declaration, I do not see but that it gave the defendant reasonable notice of the plaintiff’s claim.”

In our view of the responsibility of defendant George Kelly, it is not necessary to determine whether anything in section 29 of the act of 1915 offends the Constitution of the State.

The defendant George Kelly was held to be liable for the consequences of the actions of his son in driving the car, because he was a part owner, joint owner, of the car. It is, in the first place, doubtful if there is any testimony to support the proposition that the father and son were joint owners. It appears that the son bargained for the car with the former owner, and agreed with him about the purchase price, which was $1,200. It was a part of the bargain that the son should pay, and he did pay, $500 of the purchase price, and that the vendor should take for the balance of $700 a half acre parcel of land, the title of which stood in the father, but which the father had promised before then to give to his son. The money was paid and the car delivered, but the land, part of a larger parcel, had not then been surveyed. Later it was. surveyed and the father, defendant George Kelly, conveyed it to the vendor instead of conveying it to his son, to be by him conveyed to the vendor. The jury found, however, evidently because of some statements made by the father, that he had paid a part of the purchase price and was a part owner. The license for the car was obtained by the son and is in his name. Repairs to the car and expenses for maintaining it were paid for by the son. The father never drove it and rarely rode in it. No one but the son ever drove it.

But assuming that George Kelly was part owner of the car, he is not liable to the plaintiff in this action. The statute, Act No. 302, Pub. Acts 1915, is a part of chapter 89 of the Compiled Laws of 1915, entitled “Motor Vehicles.”

Section 29 of the act (section 4825) reads:

“Civil actions. Nothing in this act shall be construed to curtail or abridge the right of any person to prosecute a civil action for damages by reason of injuries to person or property resulting from the negligence of the owner or operator or his agent, employee or servant, of any such motor vehicle, or resulting from the negligent use of the highway by them or any of them. The owner of a motor vehicle shall be liable for any injury occasioned by the negligent operation of such motor vehicle, whether such negligence consists in violation of the provisions of the statutes of this State or in the failure to observe such ordinary care in such operation as the rules of the common law require: Provided, That the owner shall not be liable unless said motor vehicle is being driven by the express or implied consent or knowledge of such owner. In the event said motor vehicle is being driven at the time of said injury by the father, mother, brother, sister, son, daughter, or other immediate members of the family of the owner of said motor vehicle, then it shall be conclusively presumed that said motor vehicle is being driven by the consent or with the knowledge of such owner.”

It is said by the plaintiff, appellee, that this section makes .the owner liable if the car is driven with his knowledge and the defendant does not contend that this provision is unconstitutional. It is further argued that if George Kelly was a part owner he would be liable under this section—

“without any reference whatever to the question of his relationship to Ira Kelly, the other defendant, for the reason that George Kelly, as above stated, had constant knowledge that his son, Ira Kelly, was driving the car. This being true, the remaining portion of the section wherein it is provided that the owner’s consent shall be conclusively presumed if the car is being driven by the son, as in this case, would in no wise affect the interests of the defendant, George Kelly, for the judgment against him was not predicated upon that provision of the act.”

It is a lawful thing for two persons to buy and own an automobile. Either owner has the right to use the car, the consent of the other being implied if there is no express agreement respecting the use to be made of it. Either owner could .use it by driving it himself, or he could have an agent, employee or servant to drive it. It is evident that the legislature intended that the owner of a car .should be liable for the consequences of his own negligent driving and for the negligent driving of those whom he permits to drive it. In the main, the statute declares the rule of the common law and there lies at the foundation of the statute and of the common law rule the fact that the owner of a car may choose his agents and employees and may control possession of the vehicle. It is not evident that the legislature intended to make each part owner of a car liable for the consequences of the negligent operation of it by a co-owner or his agent or employee. In the first place, the foundation for such a rule does not exist, since a part owner of an automobile may not choose the agents or employees of the other owner nor control possession of the car by the co-owner. In the second place, the language of the law, fairly interpreted, does not evidence a purpose to visit upon an owner the consequences of negligence committed by persons whose custody and possession of the car he may not and cannot control. In the third place, it may be said that it is at least doubtful whether the legislative power extends to visiting upon the citizen consequences of tortious actions which he cannot prevent or control.

In the case at bar, an owner had possession of and was operating the car. He is liable for the consequences of his own negligent driving, and as to him we find no reason for disturbing the judgment. As to the other owner, we are of opinion that the judgment should be reversed.

Bird, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


author: Moore, J.

text:
    MEDLAND v. HOULE BROTHERS.
    1. Master and Servant — Workmen’s Compensation Law — Common-Law Marriage.
    In proceedings under the workmen’s compensation law, where' plaintiff’s claim was based upon the ground that she was the common-law wife of deceased, evidence held, „ sufficient to support plaintiff’s claim.
    2. Same — Basis oe Compensation — Earnings oe Deceased.
    Testimony that deceased’s wages were $14 a week and his board, and that the board was worth $4 a week, held, sufficient to justify an award by the industrial accident board of $9 a week for 300 weeks.
    See notes in L. R. A. 1916A, 23; L. R. A. 1917D, 80.
    Certiorari to Industrial Accident Board.
    Submitted June 12, 1918.
    (Docket No. 94.)
    Decided July 18, 1918.
    Rehearing denied January 31, 1919.

      Grace Medland presented her claim for compensation against Velo Houle and Fred Houle, copartners as Houle Brothers, for the accidental death of her husband in defendants’ employ. From an order awarding compensation, defendants and the Chicago Bonding & Surety Company, insurer, bring certiorari.
    Affirmed.

      Frederick J. Ward, for appellants.

      Cross, Foote & Sessions, for appellee.
   Moore, J.

James Medland, the husband of the claimant, was, on the 22d day of May, 1917, in the employ of Houle Brothers. While working in the course of his employment he got a steel sliver in his finger. He received treatment and was removed to a hospital. On May 26, 1917, he died at the hospital. Later the appellee made claim upon the respondent for compensation as the widow and dependent of the deceased under the workmen’s compensation act. The respondent denied the claim of the appellee. The board of arbitration made an award of $9 a week for 300 weeks to the claimant.

It is claimed:

1. That claimant was not the widow of James Med-land, deceased, and therefore has no right to compensation as a dependent under the workmen’s compensation act of the State of Michigan.

2. That James Medland did not meet his death as the result of an accident arising out of and in the course of his employment.

3. That James Medland met his death from a disease known as delirium tremens, which was independent of and not in any way connected with his employment or with any injury that he may have received.

4. That death from delirium tremens is not an accident within the meaning or contemplated by the workmen’s compensation act of the State of Michigan.

5. That claimant is not entitled to compensation from said respondents at the rate of $9 per week.

We quote from the brief:

“The claimant bases her entire claim on the ground that she was a common-law wife of James Medland. If she was not the common-law wife then the case must fall as she has absolutely no grounds to base a claim of dependency. The common-law marriage is alleged to have taken place in May, 1907, and according to the testimony offered by the appellee herself the deceased at that time had a wife named Agnes Medland living in the city of Grand Rapids from whom he had never been divorced. That being the case the deceased and the claimant were not in a position to contract a common-law marriage because the Supreme Court of this State has held that such marriage would not be valid.”

Claimant admits that what was done in May, 1907, did not constitute a common-law marriage, but insists that a divorce was obtained by Agnes Medland from her husband in March, 1909, thus removing any impediment to a marriage between the claimant and Mr. Medland, and that what was done after that constituted a common-law marriage. 'Her testimony is to the effect that after the divorce she and Mr. Medland agreed to live together as husband and wife and that they did so with the exception of a short time, until his death in. May, 1917.

“Q. Do you mean by that you have met the people who Mr. Medland• worked for during this time?
“A. Yes, and other people, too; he has always called me his wife.
“Q. You were presented as his wife?
“A. Yes, always.”

One witness testified that four years before the hearing he rented to Mr/ Medland a house.

“They both came and rented the house.
“Q. State the circumstances of that meeting, if you will, Mr. Gudelsky?
“A. They came in and Mr. Medland asked me if I had that house for rent. I told him, ‘yes, sir,’ and I asked him if he has got any family any children. He said ‘only just me and my wife.’ I said ‘All right I will rent you the house’; so I rented them the house. * * * The last time when he went to the border he come in the store and he said to me, ‘Mr. Gudelsky,’ he said, T am going away,’ he said— * * * So he said to me he said, T am going away,’ he said, ‘and the first money, that I get,’ he said, T will send my wife the money and she will pay you the rent,’ and that is the way it was. When he sent her the money she came and paid the rent.”

Other witnesses gave testimony of a similar kind. In December, 1916, Mr. Medland wrote the claimant from New York commencing his letter, “My Dear Wife,” and telling her in detail of his army life and an offer that had been made him saying:

“Well my dear girl I wold not take the job and stay away from you that long if they gave me 200 pr month becaus I love you to much old sweet hart.”

The instant case is distinguishable from Judson v. Judson, 147 Mich. 518, and Duff v. Judson, 160 Mich. 386, cited by appellant, as a reference to those cases will show. It is controlled by Barker v. Valentine, 125 Mich. 336, and the authorities cited therein.

It was conceded on the oral argument that there was some testimony upon which the industrial accident board could base its finding that death resulted from the injury, making a discussion of groups 2, 3 and 4 unnecessary.

5. Was the award too large? The contention that it is arises from the claim that. Mr. Medland’s wage was $14 a week and that the meals furnished was no part of his pay.

There was testimony that Mr. Medland’s wages were $14 a week and his board and that he took all his meals where he was employed except occasionally taking his supper with claimant. Mr. Velo Houle testified : “We always considered that the meals amounted to abo.ut $4 a week with all our help.”

We think there was testimony upon which to base the conclusions of the industrial accident board.

. The award is affirmed, with costs.

Ostrander, C. J., and Bird, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


author: Steere, J.

text:
    COMMON COUNCIL OF THE CITY OF DETROIT v. ENGEL.
    1. Schools and School Districts — Constitutional Law — Local Acts — Referendum.
    Act No. 322, Local Acts 1915, amending section 13 of Act No. 233, Laws 1869, entitled “An act relative to free schools in the city of Detroit,” and raising the authorized rate of interest to be paid on school bonds in said city from four to six per cent., helé, to be a local act and therefore unconstitutional, (1) in that it violated section 30, Art. 5, Const. 1909, in not containing a referendum clause and was never submitted to, or approved by, the electors of the school district; (2) in that a general act fixing the maximum rate of interest for school bonds for all school districts can be made applicable, rendering local legislation unnecessary.
    2. Same — Powers of Legislature.
    Although, under the policy of this State, education belongs to the State, and the Constitution has turned all matters of education over to the legislature with broad powers of provision and control, helé, such powers are subject to the limitations imposed by section 30, Art. 5, of the Constitution.

      3. Same — Emerqency—Imminent Necessity — Statutes — Appeal and Error.
    The fact that there was no emergency or imminent necessity at the time the act was passed, more than two years ago, and that at that time this country was not at war, held, to preclude their consideration by the appellate court, even if the fact of their existence be conceded.
    Certiorari to Wayne; Mandell, Williams, and Gil-day, JJ.
    Submitted June 11, 1918.
    (Calendar No. 28,410.)
    Decided July 18, 1918.
    Mandamus by the common council of the city of Detroit to compel George Engel, city controller, to prepare, countersign and transmit certain school bonds to the city treasurer in compliance with Act No. 322, Local Acts 1915. From an order granting the writ, defendant brings certiorari.
    Reversed.

      Edmund Atkinson (Divie B. Duffield, of counsel), for plaintiff.

      Donnelly, Hally, Lyster & Munro and Walter C. McNiel, for defendant.
   Steere, J.

In this proceeding plaintiff filed its petition in the circuit court of Wayne county for a writ of mandamus to compel defendant in the performance of his prescribed official duties to prepare, countersign, and transmit to the city treasurer certain school bonds which plaintiff had authorized and negotiated at a rate of interest exceeding four per cent, per annum.

While in defendant’s formal answer to an order to show cause other questions are raised, the direct and controlling reason for refusal involved and argued here is that the proposed issue of bonds authorized by plaintiff bore a rate of interest in excess of the limit fixed by law.

Whether the proposed rate of interest is forbidden depends upon the validity of Act No. 322, Local Acts 1915, purporting to amend section 13 of Act No. 233, Laws 1869, entitled “An act relative to free schools in the city of Detroit,” which followed under the same title and was in effect a revision and elaboration of Act No. 70, Session Laws of 1842, under which the Detroit schools had previously operated. Section 13 of the 1869 act, amended 1903 (Act No. 392), relates to financing the Detroit school system and makes provision for raising by taxation and bonding, through co-operation of the school board and common council, necessary funds to equip and maintain the public schools of the city, with the restriction, however, that in case funds are raised by the issuance of bonds they shall “bear interest at a rate not exceeding four per cent, per annum.” The only change in the law of 1869, as previously amended, made by said Act No. 322, is that bonds issued by authority of section 13 shall “bear interest at a rate not exceeding six per cent, per annum.” This amending act contained no referendum, and defendant contends that it is essentially a local or special act, never submitted to or approved by the electors and promulgated in direct violation of the prohibition specified in section 30 of article 5 of the Constitution of 1909 that:

“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. No local or special act shall take effect until approved by a majority of the electors voting thereon in the district to be affected.”

This law is both localized and specialized in its application to the amendment of an act stamped with those attributes. Aside from the contention of plaintiff that its relation to the subject of education operates to entirely relieve it, as a matter of law, from its local and special characteristics, it cannot in reason be regarded as otherwise than a local or special, act, locally applicable only within the territorial boundaries of Detroit and especially directed to its school bonds. Neither from the nature of the subject can we conceive, judicially or otherwise, why a general act fixing the maximum rate of interest for school bonds cannot be made applicable, or any difficulty in formulating a law authorizing every public school district within the State to issue its bonds according to existing or provided methods and limitations, at a rate of interest not to exceed a specified per cent, per annum, either as a whole or by classification, if size, population, wealth, or other distinctions are shown to furnish a legal basis for such course.

That laws analogous in purpose and provisions to the one under consideration have, though dealing with education, generally been regarded as local and special both in litigation and legislation, is evidenced in many ways — by numerous decisions of this court, many briefs filed by able counsel in which they are so treated without controversy, and as a general rule by the legislature when dealing with them. The act of 1869 “relative to free schools in the city of Detroit,” with its amendments, has been carried under that title as a local act in the. volumes of local laws published “by authority” since its enactment. A concurrent resolution of the legislature of 1869 required that its acts should be printed and bound in two volumes, the first to contain all acts of a general nature, with joint and concurrent resolutions, the second volume to contain charters, etc., and other acts of a local character. This act relative to the schools of Detroit is in the second volume. In that year the case of People v. Board of Education of Detroit, 18 Mich. 409, was decided, and in an able opinion by Chief Justice Cooley the position under the general school laws of the State of specially provided city or municipal schools is discussed and declared. It was there said “the city of Detroit is one of the towns provided for by special legislation,” the conclusion being reached that “at every point the general law is complementary to the special legislation, and is necessary to give it complete operation,” and all parts of the general law “not inconsistent with the free school act apply to the city of Detroit.” Referring to the fact that the law had just been “revised throughout” the court said, “but the city is still declared to be one school district in the same language we have quoted from the original act.” In Keweenaw Association v. School District, 98 Mich. 437, referring to the enlarged powers given cities and villages in relation to their schools, it is said:

“These are conferred by special acts, and in all other particulars the primary school law controls the union school districts iñ such localities.”

That the legislature regarded school legislation of this nature as local and special is indicated by the language found in other enactments. In Act No. 61, Pub. Acts 1911 (2 Comp. Laws 1915, § 5766), which provided for changing the boundaries of school districts, certain action is authorized “regardless of whether such school districts were formed * * * or created under any local or special law.”

Many similar authoritative utterances are to be found in the statutes and decisions of this State answering negatively the proposition of plaintiff’s counsel that Act No. 322 of 1915 is not to be regarded as a local or special act as either term is generally used and legally construed, unless it can be said some provision in the Constitution of 1909 expressly or by implication puts the legislature above and beyond constitutional limitations when dealing, with education.

As counsel point out, it was early said and has been consistently held, that under the policy of this commonwealth education belongs to the State, and the Constitution has turned all matters of education over to the legislature with broad powers of provision and control. Cases may be pointed out where it is indicated that certain provisions of the Constitution in other articles dealing with subjects foreign to “education,” which is in an article by itself, are not always regarded as a limitation upon the legislature in educational matters, but we cannot find that this court has ever held, or, intentionally at least, used language indicating that the legislature, when enacting laws upon the subject of education, is endowed with powers-beyond the limitations of those conferred in the very article of the Constitution which created it as one of the departments of State government. Without the Constitution which the people in their sovereign' power have ordained and established as the form of government for the State, delineating in it certain first principles of our fundamental laws, there would be no legislature or other State governmental departments as they now exist. In appropriate sequence, following the preliminary articles relative to boundaries and seat of government, declaration of rights and elective franchise, the Constitution lays the foundation for and adopts a scheme or form of State government dividing its powers into three departments, and in the three succeeding articles separately provides for and defines in general terms the duties and powers of each with their limitations, first taking up the legislative department, in article 5, and vesting its powers in a legislative body composed of a senate and house of representatives, whose qualifications, field of action, duties and governmental limitations are then outlined. This article dealing directly with the general powers of the legislature, without reference to or exception of any particular subject of legislation, declares in section 30 the prohibition against local or special legislation quoted. Having next in sequence provided for and defined the powers vested in the executive and judicial departments, the Constitution proceeds to deal with various other subjects of governmental concern in separate articles — such as “local government,” “finance and taxation,” “education,” “corporations,” “eminent domain,” etc. To whatever extent the provisions of those articles may affect each other, we find no such qualifications in any of them as override the plain and comprehensive prohibition in section 30 of article 5 dealing directly with the general powers of the legislative department.

While it can with truth be broadly said that in its chief essentials the Constitution has committed the whole subject of education to the legislature, that statement is qualified to a degree by direct mandates in the article on “education” and no exception appears in that article or elsewhere in the Constitution providing that the legislature in enacting laws upon that subject can ignore the requirements and limitations prescribed in the article dealing directly with the legislative department. Plaintiff's contention carried to its logical conclusion places the legislature in matters of education outside the pale of all such mandates and restrictions.. In Burton v. Koch, 184 Mich. 250, cited by plaintiff, where numerous cases are referred to, “upon the point that the legislature under the Constitution has substantially complete control over school districts,” it is not said and cannot be construed as meaning that those plenary powers, though recognized as broad and comprehensive, are independent of express constitutional limitations, for it is said later in the opinion of the act under consideration, which relates to education:

“The court has nothing to do with the wisdom of this legislation. The legislative power, with certain constitutional limitations, is vested elsewhere.”

It cannot in reason be otherwise than that all powers of the legislature, whatever they may be, are, under and by virtue of the Constitution, subject to general constitutional mandates and limitations imposed on legislation without reservation.

In the official address issued by the constitutional convention to the people of the State explaining proposed changes in the Constitution and the reason for each, as the law required, it is said of the inhibition this act disregards that:

“It is intended to eliminate the vast volume of local legislation which has burdened the legislature in recent years and in many instances brought discredit upon it. * * * It will not only relieve the legislature, but will also remove one of the greatest sources of evil in modern legislative bodies.”

Prepared and presumably adopted with such intent and purpose the generalized negative mandate against any local or special legislation except as defined,- without attempt to enumerate any particular subjects of legislation which are prohibited, or excepted, indicates an éxpansion rather than restriction of the scope of limitation, to the exclusion of implied exceptions. Anderson v. Cloud County, 77 Kan. 721.

This very question of local legislation as applied to education was under consideration in the constitutional convention and debated (Vol. 1, page 193, Cons. Conv. Debates). Had it been the sense of the convention that so important subject as education should be excepted from the inhibition of section 30, it could, and presumptively would, have been so provided in unequivocal terms. So far as a failure to do so after the attention of the convention was called to the subject aids construction, it is persuasive that such was not the intention.

Conceding all that is urged as to the meritorious purpose and necessity of the proposed issue of bonds, and accepting without qualification all representations relative to the emergency which unforeseen conditions in the money market have given rise to as a result of the present war, and even conceding those facts should have any contemporaneous bearing upon the constitutionality of a statute passed to meet such existing emergency, the fact that this law was enacted more than two years ago, in 1915, when, so far as shown, there was no emergency or imminent necessity and this country was not at war, precludes their consideration here.

For the reasons stated we are impelled to conclude that the order of the lower court granting a writ of •mandamus herein must be reversed, but without costs, as the issue is between officials acting in good faith to test a legal question of public interest.

Ostrander, C. J., and Bird, Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


author: Moore, J. Fellows, J.

text:
    COMMON COUNCIL OF THE CITY OF DETROIT v. ENGEL.
    1. Constitutional Law — Local Acts — Detroit Library Bonds —Validity.
    Act No. 323, Local Acts 1915, entitled “An act to authorize the common council of the city of Detroit to borrow money for the purpose of completing the erection and equipping the new main library building in the city of Detroit,” and containing provision for submitting same to the electors of the city of Detroit, held, to be a local act.

      2. Same — General Legislation — Local Acts — Detroit Library Bonds — Validity.
    Said act being on the border line which divides general from special legislation, and it being within the contemplation of the framers of the Constitution that situations might arise where local legislation might be necessary, and since all the material requirements of the act itself have been met by the electors at a general election, by the common council, and by the board of estimates, "held, not to be in contravention of section 30, Art. 5, Const. 1909. Ostrander, C. J., and Fellows and Stone, JJ., dissenting.
    Certiorari to Wayne; Mandell, Williams, and Gil-day, JJ.
    Submitted June 11, 1918.
    (Calendar No. 28,408.)
    Decided July 18, 1918.
    Mandamus by the common council of the city of Detroit to compel George Engel, city controller, to prepare, countersign and transmit certain library bonds to the city treasurer in compliance with Act No. 323, Local Acts 1915. From an order granting the writ, defendant brings certiorari.
    Affirmed.

      Divie B. Duffield and Edmund Atkinson, for plaintiff.

      Donnelly, Hally, Lyster & Munro and Walter C. McNiel, for defendant.
   Moore, J.

This is certiorari to review a mandamus proceeding in the circuit court for Wayne county in which the controller of the city of Detroit was ordered to issue library bonds to the amount of $750,000. It is claimed the bonds are illegal and should not be issued. The argument against their validity is summarized by counsel in the brief as follows:

“(1) That the Detroit library commission is a municipal corporation separate and distinct from said school district of Detroit and from the said city of Detroit.
“(2) That as compared with said city of Detroit, a full-fledged municipal corporation, said Detroit library commission is but a quasi municipal corporation.
“(3) That the boundaries of said Detroit library commission are the boundaries of said commission at the time of its incorporation, i. e., the boundaries of said school district of Detroit and of said city of Detroit as they existed on March 29, 1901.
“(4) That the boundaries of said library commission have never been extended by legislative act.
“(5) That any act of the legislature extending the boundaries of said full-fledged municipal corporation of Detroit did not or could not automatically extend the boundaries of said quasi municipal corporation, the Detroit library commission, especially when neither of the separate acts incorporating said two municipal corporations so provided.
“(6) That since said city of Detroit is incorporated for city and full-fledged municipal purposes only, and since it has become subject to the provisions of said Act No. 279, Pub. Acts 1909, it can legislate only for city and full-fledged municipal purposes. Consequently any extension of boundaries by said city under said Act No. 279 affects the boundaries of said city only and does not and cannot affect the boundaries of said school district of Detroit or said Detroit library commission.
“(7) That bonds issued for library purposes are not bonds issued for full-fledged municipal purposes ; and inasmuch as Detroit can levy and collect taxes for only city and full-fledged municipal purposes, it cannot levy and collect taxes to pay the principal and interest of bonds issued, not for city and full-fledged municipal purposes, but for library purposes.
"(8) That said Act No. 323' is unconstitutional under the provisions of section 30 of article 5 of said new Constitution because it is a special act and a general act might have been made applicable.
“(Í0) That said Local Act No. 323 is not effective in said Detroit library commission because said act was not properly and legally submitted to the voters of said Detroit library commission, the district to be affected by said Local Act No. 323, as required by the second and last provision of section 30 of article 5 of the Constitution.
“(11) That the act is an act entitled in part, ‘An act to authorize the common council of the city of Detroit to borrow money.’ Said act is therefore unconstitutional under sections 20 and 21 of article 8 of said Constitution, which prohibit the passage of special acts granting power to cities. The balance of said title reads as follows: ‘ — for the purpose of • completing the erection of and equipping the new main library building in the city of Detroit.’
“The purpose of said Act No. 323 is not a city or full-fledged municipal purpose and therefore said act fails under the provision of said section 21 of the Constitution.”

We shall not undertake to deal with each of these objections in detail but before considering any of them will refer to what is shown by the record.

The Detroit library commission now in charge of library matters in the city of Detroit, was, previous to 1901, an adjunct of the board of education of the city of Detroit. It is still associated with it to the extent that its membership must be chosen by this board.

At its session in 1901, the legislature passed an act entitled:

“An act to incorporate the Detroit library commission, and to provide means for acquiring land and the erection of a public library building or buildings thereon, and the maintenance of the same.” Act No. 359, Local Acts 1901.

By the provisions of this legislation the money of this corporation, aside from that received from fines, comes from the common council and the board of estimates of the city of Detroit, and it is raised by taxation upon the taxable property of the city. Later proceedings were begun to build a library building. Part of the site was acquired by purchase and the balance of it by condemnation proceedings. The original act as amended authorized the issue of a million dollars .worth of bonds. After the building was under way, it was discovered that the million dollars would not be sufficient to complete the building and equip it, and in 1915 the legislature passed Local Act No. 323, entitled :

“An act to authorize the common council of the city of Detroit to borrow money for the purpose of completing the erection and equipping the new main library building in the city of Detroit.”

We quote portions of the act as follows:

“Section 1. The common council of the city of Detroit is hereby authorized to borrow for the purpose of completing the erection of and equipping the new main library building in the city of Detroit a sum of money not to exceed the sum of seven hundred fifty thousand dollars on the faith and credit of said city, and upon the best terms that can be made, and to issue bonds of said city to an amount not exceeding said sum, pledging the faith and credit of said city for the payment of the principal and interest, but said bonds shall not be negotiated at less than their par value. Said bonds shall be denominated ‘Public library bonds of the city of Detroit.’ ■ * * * No bonds shall be issued under this act until the issue of the same shall have been authorized and approved by the board of estimates of the city of Detroit.
“SEC. 2. * * * The principal realized from the issue and sale of said bonds shall be deposited in the eity treasury to the credit of the public library fund for the purposes hereinbefore mentioned, and shall be applied exclusively to the purpose of completing the erection and equipping the new main library building in the city of Detroit. * * *
“SEC. 3. This act shall not take effect until a majority of the qualified electors of the city of Detroit voting on the question of the approval of this act, at any general or special election to be held in said city, shall so determine, and the common council of said city is hereby authorized and required to give notice of submitting the question of the approval of this act to the qualified electors of said city, by giving due notice thereof.” * * *

Detailed instructions are given in the act of the manner of conducting the election and making a canvass of the votes and issuing a certificate of the result.

On April 16, 1918, a certificate was duly issued from which we quote:

“Certificate of Board of Canvassers.
“This is to certify that at a general election held in the city of Detroit, Michigan, November 7th, 1916, there was submitted to the qualified electors of said city the question of the approval of an act entitled ‘An act to authorize the common council of the city of Detroit to borrow money for the purpose of completing the erection of and equipping the new main library building in the city of Detroit,’ approved May 18th, 1915, being Act No. 328 of the Local Acts of the legislature of the State of Michigan, passed at the regular session of 1915, at which election a majority of the qualified electors of said city voting on said question determined that said act should take, effect.
“That the election was conducted and the votes canvassed and returns made in all respects as the aforesaid election held in said city is by law required to be conducted and immediately upon the conclusion of such canvass the board of canvassers made and signed certificates showing the whole number of votes cast upon said proposition and the number for and against the same, respectively; that said board of canvassers en-, dorsed upon the certificates and declared in writing the result of said election; that such certificate and declaration were then filed with the city clerk of said city and entered and attached upon the records of said city and a copy of said certificate and declaration, certified to by said city clerk, was filed with the controller of said city; that the whole number of votes cast upon said proposition was 68,502 of which 52,714 were for the proposition and 15,788 against.”

The common council and the board of estimates acted as provided in the act.

The most serious argument against issuing the bonds is stated in one of the briefs as follows:

“1. The act of 1915, although submitted to the electors, is unconstitutional because it does not comply with section 30, article 5, of the Constitution of 1909, which reads as follows:
“ ‘The legislature shall pass no local or special act in any case where a general act can be made applicable,’ * * *
which question shall be a judicial one.
“2. The act of 1915 is unconstitutional because it is in contravention of section 1, article 12, of the Constitution of 1909, which reads:
“ ‘Corporations may be formed' under general laws but shall not .be created, nor shall any rights, privileges or franchises be conferred upon them, by special act of the legislature.’ ”

It is argued with much emphasis that the act is a local one, when a general act was applicable, and therefore void.

Article 5 of the Constitution is entitled “Legislative Department.” Section 30 of article 5 reads:

“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. No local or special act shall take effect until approved by a majority of the electors voting thereon in the district to be affected.”

Section 38 of the same article reads:

“Any bill passed by the legislature and approved by the governor, except appropriation bills, may be referred by the legislature to the qualified electors; and no bill so referred shall become a law unless approved by a majority of the electors voting thereon.”

An interpretation was put upon the meaning of these- sections by the official address issued when the Constitution was submitted to the electors, reading in part as follows:

“The legislature is inhibited from passing any local or special act in any case where a general act can be made applicable, and then no local or special act shall take effect until approved by a majority of the electors voting thereon in the district to be affected. This is , an entirely new and very important provision. It is intended to eliminate the vast volume of local legislation which has burdened the legislature in recent years and in many instances brought discredit upon it.”

We may now approach the question, Is Act No. 323 a local act? As we have seen, Act No. 359 of 1901 providing means for acquiring a site and erecting a library building purported to be a local act. The act now under consideration purports to be a local act. It is found in the volume of Local Acts. The proceeds arising from the sale of the bonds are to be deposited in the city treasury of Detroit. The act itself before it can become valid must have the approval of a majority of the electors of the city of Detroit voting in relation thereto before it can become a valid act. We think it must be said the act is local. See the opinion of Justice Steere handed down at this term in Common Council of Detroit v. Engel, ante, 536, involving the legality of the issue of school bonds.

Regarding the act, then, as local legislation, can it be said that it is unconstitutional because a general law might have been passed that would be applicable? We have already seen .that a site for a library building has been acquired .upon which there is an unfinished library building which it is estimated will require an expenditure of approximately $750,000 to finish and equip. Our attention has not been called to a like situation anywhere in the State and it is not likely to arise again in Detroit. The fact that eminent counsel are divided upon the question of whether a general law could be framed that would be applicable to the situation indicates that the legislation is on the border line which divides general from special legislation. We think it is not going far afield to say that the framers of the Constitution were aware that such situations might arise. It is our duty, of course, to construe the provisions of the Constitution so as to give them all effect if possible. We think it not a strained construction to say that, if the legislature was in doubt as to whether a given law would come under the head of general legislation or would be special, if in the act itself there was a referendum to the electors of the district to be affected, it would be valid legislation when approved by the electors. Treating, then, the legislation as special or local, as all the material requirements of the act itself have been met by the electors at a general election, by the common council, and by the board of estimates, it should be said of the library bonds that they are valid and the judgment of the circuit court is affirmed, but without costs to either party.

Bird, Steere, Brooke, and Kuhn, JJ., concurred with Moore, J.

Fellows, J.

(dissenting). “The legislature shall pass no local or special act” without a referendum; nor shall it pass such act with a referendum “in any case where a general act can be made applicable.” Section 30, article 5, Constitution. It is further provided in this section of the Constitution that “whether a general act can be made applicable shall be a judicial question.” I agree with Mr. Justice Moore that the act under consideration is a local act, but I do not agree with him that a general act cannot be made applicable. I discover no obstacle to the enactment of a law by the legislature authorizing all cities of the State to issue bonds for library purposes, within constitutional limits, and fixing the maximum rate of interest thereon. For 41 years we have had a general act ’ authorizing our smaller cities, villages and townships, to maintain public libraries and providing for their management and the levy and collection of taxes for their upkeep. Act No. 164, Pub. Acts 1877 (1 Comp. Laws 1915, § 3431 et seq.). I am unable to discover that the power of the legislature to pass this act has ever been questioned. Nor am I able to discover any reason which would forbid the legislature, by an amendment to this act, extending its scope to all cities; or, as stated, by an independent general act, providing for the issuance of bonds for library purposes by all cities. Nor do I discover any prohibition against classifying the cities of the State, within constitutional limitations, in regard to this subject-matter. By the Constitution itself the legislature is directed to establish libraries in each township and city. Section 14, Art. 11, Constitution of Michigan. This does not mean one city, but all cities. The subject of libraries is of general interest, and general legislation may be enacted applicable to the subject. If a municipality may so involve its affairs as to have its condition differ from other cities of the State, and for that reason successfully appeal for local and special legislation, then the constitutional provision here under consideration is meaningless, and the vice of special legislation is still with us. I think the legislation under consideration is invalid and that the judgment should be reversed.

Ostrander, C. J., and Stone, J., concurred with Fellows, J.


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    STURGIS v. SPRENGER.
    Mechanics’ Liens — Questions oe Pact — Equity.
    On a bill- for the enforcement of a mechanic’s lien, where the evidence was very contradictory, and the pivotal questions were ones of fact, the court below having had the great advantage of hearing and seeing the witnesses, the decree will be affirmed.
    Appeal from Wayne; Withey, J., presiding.
    Submitted June 6, 1918.
    (Docket No. 59.)
    Decided July 18, 1918.
    Bill by William J. Sturgis and David E. Sturgis, doing business as D. E. Sturgis & Son, against George Sprenger and another to enforce a mechanic’s lien. From a decree for plaintiffs, defendants appeal.
    Affirmed.

      Monaghan, Monaghan, O’Brien & Crowley, for plaintiffs.

      Frank J. Riggs and J. W. Bennett, for defendants.
   Moore, J.

This is a proceeding to establish a lien for work done by the plaintiffs under a written contract to convert a cottage into a two-family flat, the contract price for which work was to be $300 when the roof was raised and boarded, $600 when the plumbing was roughed in and plastering done, and $610 when the job was completed. The bill of complaint asks for a decree for $628.36 interest and costs. The defendants claim the plaintiffs did not complete the contract and that it required an expenditure of more than $1,800 to complete what the plaintiffs had agreed but failed to do. The case was tried in open court, the judge rendered a decree in favor of the plaintiffs in the sum of $438.32 and interest. The case is brought here by appeal, defendants claiming a decree should have been rendered in their favor in the sum of $1,216.38.

The testimony was as conflicting as could be as is illustrated by the following quotations from the testimony. The plaintiff William J. Sturgis testified:

“The chimneys were run down into the ground and were built of brick.
“Q. How far did they go into the ground?
“A. About three feet six inches.
“Q. Did you see that done?
“A. Yes, sir. * * * The chimneys we built went down in the ground about three feet. There wasn’t any timbers in the chimney.”

Fred Benner, a witness for defendants who did the work on the building after plaintiffs claimed it was completed, testified:

“Part of the chimneys resting on the floors and the chimneys didn’t have any foundations to them, and the chimneys were 2x8 flues, were too heavy, and all the strength was right on the floor, that is, all the weight. I found upon examination a stringer built right into the chimney. The stringer is that part of the building where the joists rest and was on the first floor. . It was built right into the chimney and the foundation around it. I noticed the house was settling in the back where the chimney was coming down. * * *
“I had to tear down both chimneys.' There was no foundation under the chimneys! They were resting on the ground about six inches under the surface. There was a lot of water under the chimneys. They had to come down.”

There are some significant things disclosed by the record. The defendant George Sprenger lived near the building and passed it every morning going to his work. He made the first two payments as the contract required. There is nothing in his testimony to indicate that he made any complaint until he was asked to make the final payment. The following appears in his cross-examination:

“Q. The partitions in the rooms as they were when Mr. Benner started his work were laid out in accordance with these plans and specifications, were they not?
“A. Yes, those plans.
“Q. They were laid out in accordance with these plans and specifications?
“A. That is what Mr. Sturgis brought over to my place.
“Q. The work has been done according to them?
“A. I think so.
“Q. When he quit the job?
“A. I think so.
“Q. And you had accepted these plans and examined them before he went on the contract?
“A. I never examined them at all because I don’t know the first thing about plans.
“Q. Did you have them in your possession?
“A. I had them.
“Q. Do you mean to say you were spending this money, some two thousand dollars on the job and didn’t even look at them?
“A. I looked at them but I don’t know whether they were good or not. I left it entirely with Mr. Sturgis.
“Q. Well, they were to your satisfaction when you signed the contract?
“A. When I signed the contract I thought they were all right. * * *
“Q. And when Mr. Sturgis was through with the work you said you wanted a sworn statement.
“A. Because he told me he didn’t pay that much and I wanted a sworn statement.
“Q. You wanted a sworn statement when the work was done?
“A. Yes. .
“Q. And when you asked for that sworn statement and received this you were satisfied with it, the one jrou got? * * *
“A. He told me he had everything paid but the plumber and I wanted him to pay the plumber first.
“Q. That is the only discussion you had with Mr. Sturgis that time, that you wanted the plumber paid?
“A. Yes, sir.
“Q. And Mr. Sturgis at your request, through the instructions of your attorney, brought the original of this paper with the waiver of the lien of the plumber?
“A. Yes, sir.
“Q. That satisfied you and satisfied your attorney?
“A. Yes.
“Q. You refer to Mr. Riggs?
“A. Yes.
“Q. And you were satisfied?
“A. Yes, I wanted the plumber paid.
“Q. Well, you didn’t tell Mr. Sturgis this was for the completed job wasn’t it?
“A. I suppose so.
“Q. Well now you know, you are an intelligent man. This was for a completed job and when you got this paper you were satisfied?
“A. Not with the job I wasn’t satisfied.
“Q. Well, what did you point out to Mr. Sturgis at the time when he gave you this paper in your attorney’s office?
“A. I told him the interior finish and the outside painting and all that wasn’t in good shape.
“Q. You complained of the painting?
“A. Lots of other things, I don’t remember now, and he said he wouldn’t have anything to do with the building any more.
“Q. Well, you complained that the painting wasn’t done according to specifications?
“A. Yes, sir.
“Q. And that is all your contention?
“A. Oh, sure.
“Q. And the interior finish wasn’t right? That is all that you complained of?
“A. I can’t remember this any more.”

It is the claim of the plaintiffs that the job was substantially completed and that defendants agreed to pay them if they would bring a waiver of his lien from the plumber, and that they did so. It is useless to attempt to reconcile the testimony. It is too conflicting for that. It is impossible to read the record, however, without reaching the conclusion that defendants instead of attempting to, in good faith, complete the contract made by the plaintiffs entered upon an entirely different construction for which plaintiffs should not be held liable. The trial judge made an allowance of nearly $200 for defects in the construction. He had the great advantage of hearing and seeing the witnesses. °

The pivotal questions are those of fact. We are not persuaded the decree is wrong.

It is affirmed with costs.

Ostrander, C. J., and Bird, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


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    CONNELLY v. FORD.
    Cancellation of Instruments — Deeds — Fraud — Husband and Wife.
    On a bill for the cancellation of a certain deed as being in fraud of a prospective wife’s rights, evidence that plaintiff’s husband received the land in question by his father’s will, that one month after the will was probated he deeded it to his mother, and that said deed was recorded the day before his marriage to plaintiff, who had lived with him for 11 years and until his death, held, insufficient to make a case calling for the intervention of a court of equity; the record not disclosing that no consideration passed from the mother to- the son, or. that his being the owner of the land for about a month influenced the engagement in the least. 1
    See note in 48 L. R. A. (N. S.) 512.

      Appeal from Wayne; Sullivan, J., presiding.
    Submitted June 4, 1918.
    (Docket No. 26.)
    Decided July 18, 1918.
    Bill by Edith Connelly against Nellie Ford and another to set aside a deed. From a decree dismissing the bill, plaintiff appeals.
    Affirmed.

      Campbell, Dewey & Stanton, for plaintiff.

      Chawke & Sloan, for defendants.
   Moore, J.

The bill in this case was filed for the purpose of having a deed declared void. From a decree dismissing the bill of complaint the case is brought here by appeal.

John P. Connelly was the son of Martin Connelly and Sarah Connelly. Martin Connelly died prior to December 9, 1903. His will was duly probated. By the terms of the will certain real estate in Detroit came to John P. Connelly. One month after the will was probated John P. Connelly made a deed of the real estate involved in this proceeding to his mother. This deed was acknowledged January 8, 1904, and was placed on record in the office- of the register of deeds January 11,1904. January 12,1904, the plaintiff married John P. Connelly and lived with him until his death in the year 1915. One daughter was bom to them. Sarah Connelly survived John P. Connelly and died a few months thereafter, leaving a will in which she devised the real estate John P. deeded to her to her daughters, the two defendants herein. It is the deed of January, 1904, which it is sought to have set aside by this proceeding commenced June 2, 1916.

The claim is ma^e this suit was begun shortly after plaintiff knew of the existence of the deed.

The case was heard in open court. The chancellor was of the opinion plaintiff had failed to make a case and the result as before stated followed.

We cite from the brief of appellant’s counsel:

“The courts have always guarded and protected the wife’s rights in a case of this kind. The rule was first laid down in this State in Cranson v. Cranson, 4 Mich. 230. The Cranson Case was a bill of equity by the widow to recover dower in a deed of lands conveyed by the deceased husband to his sons in fraud of her marital rights. The conveyance was made secretly on the eve of marriage and not delivered or recorded until after coverture. The deed was held not to debar complainant of dower ‘because (had it been delivered at its date) its execution was fraudulent as to the complainant, being executed secretly for the purpose of cutting off her dower which would be in fraud of law, and in fraud of her rights accrued directly on the marriage. See Swaine v. Perine, 5 Johns. Ch. (N. Y.) 482; Littleton v. Littleton, 1 Dev. & Bat. (18 N. C.) 327; Killinger v. Reidenhauer, 6 Serg. & Raw. (Pa.) 531.’ Opinion, page 235.
“A deed made secretly and without consideration by a man two days before his marriage, of all his property to his children by a former wife, to prevent any dower interest attaching, is held to have operated as a legal fraud upon the woman he was about to marry; and the fact that the deed was given to carry out a previous purpose, which is concealed from the intended wife and from the public, and not brought to light till after the death of the grantor, will not deprive the transaction of its fraudulent character. Brown v. Bronson, 35 Mich. 415. See, also, Greiner v. Klein, 28 Mich. at pages 15 and 16.
“Even before marriage, if a prospective husband transfers his property with the intention to defeat his intended wife of her rights of dower or of any other interest she might have as his wife in his property, such transfers are generally in equity a fraud upon the marital rights of the wife.” 21 Cyc. page 1156. Citing other authorities.

A reference to the authorities cited will show they are easily distinguishable from the instant case.

The important questions are not questions of law so much as questions of fact. It has already appeared the deed was made and placed of record before the marriage of the plaintiff to Mr. Connelly. If the testimony, which is incompetent under the statute because the lips of the other party interested are sealed in death, is eliminated, there is no such evidence as would justify setting aside a deed to real estate. The deed itself does not appear in the record. Unless the mere fact of making the deed without telling the woman who afterwards became his wife, of his purpose to do so establishes an ulterior purpose, it is not established. The record does not disclose that no consideration passed from Mrs. Connelly to her son. It is not shown when Mr. Connelly and the plaintiff became engaged, or that his being the owner of this real estate for about a month influenced the engagement in the least. The least that can be said of the case of the plaintiff is that she has failed to make a case calling for the intervention of a court of equity.

The decree is affirmed.

Ostrander, C. J., and Bird, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


author: Brooke, J.

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    SOULES v. SOULES.
    Cancellation of Instruments — Deeds—Incompetency.
    On a bill by a son and daughter for the cancellation of certain deeds whereby the title to "a house and lot owned by the father was placed in him and defendant, his second wife, by the entireties, evidence held, insufficient to establish the incompetence of the father to make said .conveyance, and the decree of the court below is reversed.
    See note in 3 L. R. A. (N. S.) 174.

      Appeal from Barry; Smith, J.
    Submitted June 19, 1918.
    (Docket No. 93.)
    Decided July 18, 1918.
    Bill by Archie F. Soules and another against Mary J. Soules to set aside certain deeds. From a decree for plaintiffs, defendant appeals.
    Reversed, and bill dismissed.

      Thomas Sullivan, for plaintiffs.

      Colgrove & Potter, for defendant.
    Plaintiffs who are respectively son and daughter of Friend D. Soules, now deceased, filed their bill of complaint in this case for the purpose, of setting aside two deeds by means of which the title to a house and lot was placed in said Friend D. Soules and his wife, Mary J. Soules, as tenants by the entireties. It appears that said Friend D. Soules on June 3, 1914, being then in the neighborhood of 80 years of age,« intermarried with the defendant whose age is not disclosed by the record but who is shown to have a grandson 20 years old. On August 1, 1914, about two months after the marriage, the deeds in question were executed. The parties lived together until December 20, 1916, when one Alfred M. Nevins was- appointed general guardian of Friend D. Soules and he was removed to the hospital at the Soldiers’ Home at Grand Rapids where he died on the 15th day of February, 1917.
    It is charged in the bill of complaint:
    (1) That the execution of said deeds was brought about through the. exercise of undue influence upon said Friend D. Soules.
    (2) That at the time said deeds were executed said Friend D. Soules was mentally incompetent to exe-. cute said conveyances.
    The answer denies all material averments contained in the bill. Plaintiffs introduced the evidence of some 17 witnesses, neighbors and acquaintances of the deceased, Friend D. Soules, who testified as to his physical and mental condition at and after the time of the execution of said conveyances. On behalf of the defendant 11 witnesses were sworn, including the scrivener who drew the instruments in question. The learned circuit judge who heard the case entered a decree in favor of the plaintiffs, holding that there was no proof of undue influence practiced upon Mr. Soules but that:
    “I am of the opinion that it is conclusively shown that Friend D. Soules at the time the conveyances were made and executed lacked the mental capacity to comprehend the nature of the business he was engaged in.”
    From this decree defendant appeals.
   Brooke, J.

(after stating the facts). As is usual in cases of this character, there is sharp conflict in the testimony. Several of the witnesses sworn for plaintiffs gave testimony tending to show that at the time the deeds were executed Friend D. Soules was old, feeble, and' without memory or power to carry on a connected conversation; that he sometimes failed to recognize his acquaintances and on one occasion failed to recognize his own son.' On the other hand defendant’s witnesses, including the scrivener, testified that, aside from the natural infirmities attendant upon extreme old age, the deceased was competent to understand the nature of the transaction. It is, we think, clear from the record that after the marriage and after the execution of the deeds in question, Friend D. Soules transacted more or less business with ap-. parent intelligence. While it is urged on behalf of plaintiffs that defendant entered into the marriage relation with the deceased from purely mercenary motives, and without any affection or friendship for her husband, we can gather no such impression from a careful perusal of the record. The parties to the contract were both very old. The deceased was a civil war pensioner drawing $30 per month from the government. The house and lot in question, worth less than $2,000, constituted his. entire estate. The disposition of the property effected by the deeds was natural and such an one as is usually commendable.

The plaintiffs’ claim is that this case falls within the following line of decisions: Witbeck v. Witbeck, 25 Mich. 439; Smith v. Cuddy, 96 Mich. 562; Whiteley v. Whiteley, 120 Mich. 30, and Noban v. Shoup, 171 Mich. 191, while the defendant strenuously insists that it falls within the reasoning of Fraser v. Jennison, 42 Mich. 206; Hoban v. Piquette, 52 Mich. 361, and Leffingwell v. Bettinghouse, 151 Mich. 513.

We have carefully perused the testimony of every witness sworn upon the trial of this case and find ourselves unable to agree with the conclusion of the learned circuit judge that the plaintiffs showed “conclusively” or even by a fair preponderance of the evidence that at the time of the execution of said conveyances Friend D. Soules lacked mental capacity to comprehend their nature and significance.

The decree of the court below is reversed and a decree will be entered in this court dismissing said bill of complaint, with costs of both courts to defendant.

Ostrander, C. J., and Bird, Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred.


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    LE BLANC v. SAYERS.
    Replevin — Evidence—Question roe Jury.
    In. replevin by a wife for a piano seized to satisfy a debt of her husband, where the evidence as to the ownership of the piano was very conflicting, and the question of fact was submitted to the jury under proper instructions, the judgment of the court below in favor of the plaintiff will be affirmed.
    See note in 35 L. R. A. (N. S.) 713.
    Error to Chippewa; Fead, J.
    Submitted June 7, 1918.
    (Docket No. 81.)
    Decided July 18, 1918.
    Replevin by Mary J. LeBlanc against Dennis Sayers, deputy sheriff, for the possession of a piano. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      M. M. Larmonth, for appellant.

      Davidson & Hudson, for appellee.
   Moore, J.

From a judgment in favor of the plaintiff this case is brought here by writ of error. The judge charges the jury in part as follows:

“It appears in this case that the defendant, Dennis Sayers, was a deputy sheriff of this county; that as such deputy sheriff, on the 30th day of August last, he seized a certain piano under a judgment rendered in favor of Cameron Brothers, and against Louis J. LeBlanc. The title to that piano is the issue in this case, and the issue is whether the piano belonged to Louis J. LeBlanc or to the plaintiff, his wife. Now if the piano belonged to Mr. LeBlanc, then the defendant is entitled to a verdict here. If it belonged to Mrs. LeBlanc then she is entitled to a verdict and that is the issue in this case as to who owns the piano.
“It appears that the piano was purchased in 1902; that some notes were given which were signed by Mr. LeBlanc. The circumstances under which the purchase was made are in dispute, and I charge you that it is the presumption of law that things brought into the house by the husband and by his purchase are presumptively his property. If Mr. LeBlanc merely purchased this piano for the use of his wife to have in the house in the usual course of household affairs, and no more than that, he would be the owner of the piano. He had, however, a right to give it to her, and if he did give it to her at the time of the purchase, then the piano would be hers. It is incumbent upon her to show in this case, by a preponderance of evidence, that her husband did give the piano to her to be her own separate property, to divest him of any title, if he had any title, or to take title direct from the seller to her— at least that it was to be her piano and not his.
“Some claim has been made that Mrs. LeBlanc paid part of the purchase price out of some earnings which it is claimed she made from commissions on the sale of pianos, and in' other ways. I charge you, gentlemen, that, under the evidence here, as she has testified, her earnings and the right thereto were not given to her by her husband; that -her husband was still entitled to her earnings. In other words, gentlemen, a husband is entitled to his wife’s earnings unless he gives them to her, or permits her to work-and keep her own earnings. Consequently under the evidence here, the fact that she paid part of the purchase price would not give her the .title to the piano itself. It may however be taken into consideration by you, as bearing upon the question of whether her husband did, in fact, give her the piano, to be held as her separate property. Now, gentlemen, that is the issue in this case. * * *
“If you find that the plaintiff, Mrs. LeBlanc, is the owner of the piano, .then, of course, your verdict will be merely for the plaintiff. If you find that Mr. LeBlanc is the owner of the piano, then your verdict will be for the defendant.
“Now, the defendant has waived the return of the property. * * * He claims only a lien upon the piano for the amount of the judgment; if you find that Mr.. LeBlanc owns the piano you will render a verdict in favor of the defendant for the sum of $187.06 with interest. * * *
“To repeat, gentlemen, if you find that the piano belongs to Mrs. LeBlanc you will find a verdict in her favor. If you find the piano belonged to Mr. LeBlanc you will then render a verdict in favor of the defendant for the amount of $137.06, together with interest at 5 per cent, per annum from July 31, 1909.”

The defendant claimed a verdict should have been directed in his favor. His brief concludes as follows:

“As the record discloses title to the piano to be in Mr. LeBlanc and liable for his debts, the judgment should be reversed and a judgment entered in this court for defendant for the amount of the judgment against LeBlanc, amounting to $137.06 with interest at five per cent, from July 31, 1909, and costs of both courts.”

The testimony was conflicting, Mrs. LeBlanc testifying one way and her husband another. There was a question of fact to be submitted. It was properly submitted.

The judgment is affirmed, with costs to the plaintiff.

Ostrander, C. J., and Bird, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.