text:
    JOHNSON v. COOK
    1. Equity — Laches—Bills and Notes.
    Where complainant loaned funds on the advice of her banker, who indorsed a note of the debtors before delivery, and at different times assured her that she need not worry about the matter when the makers defaulted, and told her he was in a position to see that she got her money, acting as her adviser, and afterwards taking a conveyance as security for his advances of all the property of the debtors which was liable to execution, and where complainant delayed to bring suit in reliance on his assurances, he was not entitled to complain of her laches as a defense to her suit to set aside the transfer or deed as void in part.

      2. Same — Delay.
    Not mere delay, but delay which works prejudice to another, is required to constitute laches.
    3. Same — Change of Defenses — Amendments Considered as Made — "Waiver of Variance. .
    ■On appeal, the objection could not be raised for the first time that the claim and evidence in support of the same offered by defendant that a portion of the property was transferred to him absolutely, and not as security, although he claimed no part thereof in his answer, as an absolute conveyance; an amendment of the answer might have been made in the lower court if the point had been presented in due time, and in any event the amendment was merely matter of form.
    4. Same — Consideration — Mortgage, Deed Intended as Security.
    An agreement that the grantee in a deed was to receive a third interest in property conveyed to him, as payment for his services in financing the grantee, sufficiently supported the transfer of that interest as agreed, and was a valuable consideration.
    5. Frauds, Statute of — Parol Agreement — Performance.
    A parol agreement for the transfer of land in consideration of services to be rendered, was taken out of the provisions of the statute of frauds when the conveyance was executed.
    6. Mortgages — Deeds — Record, Effect of — Vendor and Purchaser — Execution Levy.
    Under the registration acts (3 Comp. Laws, § 8980; 4 How. Stat. [2d Ed.] §10842), requiring separate registration of mortgages and deeds, the recording of a deed given as security for a debt does not operate as constructive notice of the grantee’s interest as to a party levying a writ of attachment without actual notice of the existence of the deed.
    7. Same — Notice.
    Evidence that counsel for the complainant, in the course of prior litigation between the parties, had notice of the existence of the conveyance under which complainant claimed, from the fact that the record of the instrument as a deed was offered in evidence, did net charge complainant with notice of the mortgage.

      8. Guardian and Ward — Incompetent Persons — Insanity.
    The property of an insane person resident in Michigan • and under general guardianship is not subject to execution. ■
    9. Insane Persons — Judgment—Competency.
    In a suit in aid of execution based on a judgment obtained in attachment proceedings against a nonresident copartnership, of which one of the members was insane, the action being defended by counsel employed by a competent member of the firm, the judgment was only voidable, not void, and the court of equity would not set it aside except upon a showing of a meritorious defense.
    10. Corporations — Fraudulent Conveyances — Knowledge.
    A corporation, formed by the defendants for the purpose of hindering and delaying their creditors, was not a purchaser in good faith of property of the defendants conveyed to it for shares of its capital stock.
    Appeal from Iron; Flannigan, J.
    Submitted November 17, 1913.
    (Docket No. 20.)
    Decided March 26, 1914.
    Rehearing denied June 4, 1914.
    Bill by Nettie Johnson against Wallace P. Cook and others in aid of an execution at law. From a decree for complainant, denying part of the relief prayed, both parties appeal.
    Affirmed.

      A. L. Sawyer (Allan V. Classon, of counsel), for complainant.

      Ball & Ball, for defendants.
   Kuhn, J.

The facts in this controversy, as found by the circuit judge, and which we are satisfied find support in the evidence, are stated in his opinion as follows:

“Some time previous to March 7, 1891 (the exact time is immaterial), Mrs. Johnson, a widow, residing at Oconto, Wis., intrusted her money to the defendánt Beyer, a banker and dealer in real estate, and he negotiated a loan for her of $2,000 to one Ford, and as security, took from Mr. Ford an assignment to Mrs. Johnson of a land contract held by Ford for the purchase from one Comstock of a certain farm, located in Oconto county, Wis., and later known as Cook Bros.’ farm. Subsequently the defendant Wallace P. Cook and decedent, Willard P. Cook, purchased Ford’s rights under the Comstock land contract, and, as part consideration for the purchase from Ford, they assumed the payment of the loan made by Mrs. Johnson to Mr. Ford through Mr. Beyer. Desiring to obtain the legal title to the farm, the Cooks arranged with Mrs. Johnson for a surrender by her of the land contract which Mr. Ford had assigned to her as security for the loan, and in lieu thereof gave her their promissory note for $2,000 which was indorsed before delivery by Mr. Beyer. The note, except the interest thereon up to August, 1896, being unpaid, Mrs. Johnson brought suit thereon in the circuit court for the county of Oconto, Wis., July 3, 1903, against the Cooks and Mr. Beyer. Mr. Beyer filed an answer in that suit, admitting he indorsed the note, but set up the statute of limitations as a bar to the action against him. The plea of the statute of limitations was sustained, and the action as to Mr. Beyer was dismissed. On December 29, 1903, the Wisconsin court entered judgment in favor of Mrs. Johnson and against Wallace P. Cook and Willard P. Cook for damages and costs amounting to $3,060.34. Being unable to make the execution issued on the judgment in the Wisconsin court, Mrs. Johnson commenced a suit against the Cooks in the circuit court for the county of Iron, Mich., by attachment. The writ was levied January 4, 1909, on the lands described in the bill of complaint. The Cooks appeared, and judgment was rendered in the Michigan court in favor of Mrs. Johnson for damages and costs amounting to $4,131.89. The Michigan judgment was rendered July 19, 1909, the costs were taxed August 28, 1909, and execution was issued August 30, 1909. The execution was levied on the lands, and notice of such levy was duly filed as required by 3 Comp. Laws, § 9224, on September 3, 1909. May 8, 1896, Wallace P. Cook and wife and Willard P. Cook and wife executed and delivered to Mr. Beyer an instrument which, on its face, purports to be a warranty deed of the lands taken in execution, and on August 19, 1903, the Cooks and Beyer, being joined by their respective wives, executed and delivered a deed of the same lands to the defendant the Cook Land, Construction & Producing Company. The bill of complaint herein was filed in aid of the execution issued on the Michigan judgment; the complainant claiming that the Beyer instrument and the deed to the construction company are void as against her execution lien. At the time of the execution and delivery of the instrument to Beyer, the Cooks were indebted to him in the sum of about $60,000, and the deed to Mr. Beyer was intended between the parties to convey absolutely to Mr. Beyer an undivided one-third interest in the land, and as a mortgage of the remaining undivided two-thirds, to secure the payment to Mr. Beyer of the existing indebtedness of the Cooks, and any future advances which Mr. Beyer might make to them. At the time of the levy of the writ of attachment, by which the Michigan suit was commenced, the Beyer instrument was not on record in the office of the register of deeds of Iron county. After the levy of the attachment, but before the levy of the execution, Mr. Beyer caused his instrument to be recorded as a deed in the register’s office in Iron county, and it was there recorded in volume 9 of Deeds, at page 606, on March 13, 1909.”

From a decree which held that an undivided two-thirds interest of the property described in the bill of complaint is held subject to the lien of the execution, and to a sale thereunder, both complainant and defendants have appealed.

The errors relied upon by the defendants are stated as follows:

“(1) The court erred in not dismissing the complainant’s bill on account of laches.
“(2) The court erred in holding that the deed from Wallace P. Cook and Willard P. Cook to George Beyer of May 8, 1896, was a mortgage as to the undivided two-thirds of the land.
“(3) The court erred in holding that the record of said deed was not constructive notice, and that the execution levy took precedence thereof, and in deciding, contrary to the evidence, that the complainant did not have actual notice of the existence of said deed at the time of the levy of the execution on said lands.
“(4) The court erred in holding that the deed of August 19, 1903, to the Cook Land, Construction & Producing Company was not given upon a valuable and sufficient consideration.
“(5) The court erred in holding that said corporation was formed and said deed of August 19, 1903, was given for the purpose of hindering and delaying creditors, and that the same was fraudulent.
“(6) The court erred in holding and decreeing that the undivided two-thirds of the land described in said bill be sold on execution, free and clear from any claim, lien, or title of the defendants George Beyer and the Cook Land, Construction & Producing Company.
“(7) The court erred in not entering a decree to dismiss the complainant’s bill upon all the evidence in the case.”

In addition to claiming that these contentions of the defendants are not well founded, the complainant also claims that the court erred in holding that the conveyance from the defendants Cook to the defendant Beyer, of May 8, 1896, was an absolute conveyance of the title of the undivided one-third interest in the land, and that the entire interest in the land should be held to be subject to complainant’s execution.

The question of laches is argued- at considerable length in briefs of counsel. The note representing the indebtedness of Cook Bros, to the complainant became due December 7, 1891. It is defendants’ claim that the laches arose because complainant did not attempt to enforce payment of the note until July 3, 1903, when she commenced suit in the Wisconsin courts, because she surrendered security that she held for the payment of the indebtedness represented by the note; that she neglected to attack the conveyance made to the Cook Land, Construction & Producing Company in August, 1903, for more than six years after said conveyance was made and recorded, and after the defendant Beyer had for years prior to the filing of her bill made large money advances to the defendants Cook, in reliance upon the security furnished him. Complainant urges that the defense of laches should be expressly raised either by the answer or demurrer. The defendants say that all the facts they rely upon appear on the face of the bill. It is unnecessary to pass on this question, as, in our opinion, there is no merit in the claim of laches. The complainant testified, as follows:

“On the 7th of December, 1891, when the note came due, I took the note and went down to Mr. Beyer, and he told me to be patient; that it was going to be paid soon; that he was on the back of the note, and I should not worry; all loans that he made would be made good. That was always the winding up— all loans he made for me he would make good. I did not see the Cooks after that; I never could find them. My last visit to Mr. Cook was on the day he gave me that note. I never saw him but once on the street, and he simply said he would fix that up, and that was all. I never had any conversation with him. My business was with Mr. Beyer, as he made my loans, and I trusted him with my loans. I was a widow at that time, and that is how he got my money, every dollar I had. Mr. Beyer at one time— I went to the office; that was when I still held the note, and I told him I couldn’t live like- this; I had to have money. He says, ‘Have you got the'note with you?’ I said, T should say I have.’ He took the note and he said, ‘Let me take it.’ And he took it and handed it to Lawyer Trudell, and he collected $200, and he held me up; he robbed the till. That was before the judgment.”

Thus it appears that the defendant Beyer acted as her adviser and counsel in the matter; reassured her when she worried about it; told her that he was in a position to see that she got her money; and in 1897, after he had been, in 1896, a party to the transfer of all the Cook property, and while he was still liable as an indorser thereon, he took the note from her and gave it to a lawyer of his own selection to collect. The fact that all of the Cook property was covered by the transfers mentioned, so as to make the Cooks apparently execution proof, together with the complainant’s reliance upon Beyer’s promises, are, to our mind, complete and sufficient justification for her delaying the suit until action became necessary in order that it be not barred by the statute. There is no force to the claim that the defendant Beyer, because of the inaction of complainant, was induced to make large loans to the Cooks. He gave his reason for advancing money to the Cooks in the following testimony:

_ “After the giving of that deed in May, 1896, I continued to advance money to the Cooks, and am helping them still. I am advancing them money because I think the property up here is worth enough to pay up, will be enough to square „up everything. They have been and_ are still carrying on business, with my help. Those judgments that have been referred to, many of them they have been straightening up; they have been paying up everything as fast as they can, and Mr. Cook told me he would pay up this matter here, pay it just as' soon as he was able to.”

He testified that he had confidence in the Cooks, and that they would, with help, work their way out and pay their debts. We are satisfied that the various delays complained of did not result in injury or prejudice to the parties now urging this defense. The laches which causes a court of equity to look with favor on this defense is not mere delay, but delay that works disadvantage and prejudice to another. Boyce v. Danz, 29 Mich. 146.

It is the claim of the defendants, and it is supported by the testimony as a whole, as found by the circuit judge, that the Cooks deeded to Mr. Beyer one-third of the land in question in part compensation for the loans made, and to be made, to them by Mr. Beyer. It is the contention of the 'complainant that the answer did not make such a claim, and that the defendants are bound by their answer, to the effect that the instrument was taken as security; that it was an afterthought to claim that as to a one-third interest it was a deed. The testimony of both Mr. Beyer and Mr. Cook sustained the claim that .the transfer to Beyer of a one-third interest in the land was absolute. At the time this testimony was received, no objection was made on the ground that there was a variance. If objection had been made on that ground, the defendants might have applied to the court, and undoubtedly would have been granted leave to amend the answer in that regard; and, if a claim of surprise had been made, further time might have been granted to meet the evidence. We think the objection was waived, and should not be raised for the first time on appeal. The failure to make the amendment was a mere matter of form. See Miller v. Supply Co., 150 Mich. 292 (114 N. W. 61); Williams v. City of Lansing, 152 Mich. 169 (115 N. W. 961).

We are also satisfied that the consideration for this transfer of the one-third interest was ample. The agreement was that Mr. Beyer was to receive this interest for loaning money, and for indorsing the Cooks’ paper for a long term, to a large amount, and for generally financing their operations. It is urged that the original parol agreement could not be enforced on account of the statute of frauds, but the agreement was carried out by making the conveyance, and is therefore binding. Barber v. Milner, 43 Mich. 248 (5 N. W. 92).

The proofs are convincing that the instrument did not convey to Beyer the remaining two-thirds interest. It was given as security. It having been recorded as a deed, and not as a mortgage, nothing else can now be claimed for it as against the complainant’s equities. Section 9224, 3 Comp. Laws (4 How. Stat: [2d Ed.] §11386), provides that an execution levied as provided for by statute shall become a lien upon the land, and the “lien thus obtained, shall, from the filing of such notice, be valid against all prior grantees and [mortgagees] mortgages of whose claims the party interested shall not have actual or constructive notice.”

As to the two-thirds interest in the land, holding as we do that the conveyance was not a deed and being recorded only as such, it was subrogated to complainant’s levy. First Nat. Bank of Durand v. Phillpotts, 155 Mich. 331 (119 N. W. 1). The complainant did not have actual notice until long after the levy of the execution. The deed being given as security as to the two-thirds interest, the statute (section 8980, 3 Comp. Laws (4 How. Stat. [2d Ed.] § 10842), required that it be recorded as a mortgage, and, having failed to do this, the complainant cannot be charged with constructive notice of its being such. Grand Rapids Nat. Bank v. Ford, 143 Mich. 402 (107 N. W. 76, 114 Am. St. Rep. 668, 8 Am. & Eng. Ann. Cas. 102). The deed does not show on its face that it was given as security, and the recording of it as a deed is notice of no more than it shows. Defendants’ counsel claim that, when the judgment was obtained by the plaintiff against the defendant Cook in the circuit court for Iron county, there was proof of the existence of this deed of 1.896, and the counsel who now represents complainant represented her in that litigation. The notice that counsel for complainant received was when the record of the instrument as a deed was introduced in evidence. The original deed was not produced. As this is not constructive notice of a mortgage, it necessarily follows that it is not actual notice of a mortgage.

It is contended that the judgment in the law case is void as against William P. Cook because he was insane at the time the judgment was rendered, and no guardian ad litem was appointed for him. This suit was started by attachment on January 4, 1909. The defendants appeared by counsel and interposed a plea of abatement and general issue. Judgment was h'ad, and execution issued, and it was not until after the filing of the bill in this cause that the attorneys for the defendants made a motion in the law action to vacate the judgment because of having learned that the defendant Willard P. Cook was insane, and that therefore they had no authority to appear for him. The regularly appointed guardian in Wisconsin appeared upon the hearing of said motion and ratified the action of the attorneys in appearing for the insane person at the trial. The motion was overruled, and no appeal taken from the proceedings in the law case. The question of the insanity of Willard P. Cook is raised in this proceeding by the answer of his guardian ad litem. Willard P. Cook having died, Kate E. Cook, administratrix of his estate, was, by consent of the parties, substituted as administratrix defendant in his place It appears clearly from the record that the Cook Bros, were copartners from and after 1887. The debt sued upon was a partnership debt, that of W. P. Cook & Bros., as shown by the note, and the land attached was partnership property, which was shown by the statement of Kate E. Cook, the general guardian of the insane defendant. Counsel who appeared for the defendants were authorized to do so, as shown by the affidavit of one of the counsel, who stated “that said attorneys were retained by Wallace P. Cook to represent the defendants ; said Wallace P. Cook assuming to authorize said firm to enter the appearance not only of himself but of said Willard P. Cook.”

Without question the interest of Wallace P. Cook was legally attached, and as a member of the firm he could employ counsel to appear for the firm, which included both defendants, and defend against the prosecution upon the firm debt. The insane defendant did not have, and could not have, a general guardian in Michigan, because he was a resident in Wisconsin. Had he been a resident of Michigan and under general guardianship here, his property would not have been subject to execution, as held in Nolan v. Garrison, 156 Mich. 397 (120 N. W. 977).

In the law proceedings, the interests of the insane defendant were ably defended by the attorneys who at the time considered themselves employed in his behalf, and, on motion to vacate the judgment, the general guardian from Wisconsin ratified the appearance of the attorneys who had made the defense. We are of the opinion that, under these' circumstances, the judgment, at most, was voidable upon a showing of merits, and not void. There is no such showing in this case. The debt is not denied, and the defense is a technical one. As was said in Mueller v. Marsh, 116 Mich. 375, 378 (74 N. W. 513, 514):

“It is well understood that before a chancery court will interfere with a judgment at law it must be made very clearly to appear that an injustice has been done”—

which was cited with approval in Godde v. Marvin, 142 Mich. 518 (105 N. W. 1112); See, also, Finn v. Adams, 138 Mich. 258 (101 N. W. 533, 4 Am. & Eng. Ann. Cas. 1186); Godde v. Marvin, supra; Eggert v. Eggert, 144 Mich. 182 (107 N. W. 920); 22 Cyc. p. 1244. There being no claim made that there is any defense available which was not interposed, and no showing of injustice, we are of the opinion that the judgment in the law action should not be vacated.

The complainant, in order to show that the deeds from the Cooks to Beyer in 1896 and from the Cooks and Beyer to the defendant corporation in 1903 were void as to the complainant’s levy, made a prima facie case by showing the judgment, the levy of execution, and the record of the conveyances (3 Comp. Laws, §10203, 5 How. Stat. [2d Ed.] §12864), and also the fact that the debt upon which the judgment was issued was in existence before the execution of either conveyance. The burden of proof being then upon the defendants, by virtue of the statute, they attempted to show that these transactions were in all respects bona fide. The circuit judge’s finding with reference to the transaction in 1903 was as follows:

“The Cook Land & Construction Company was organized by the Cooks and Beyer under the laws of Wisconsin. One-third of its capital stock was issued to Mr. Beyer, one-third to-Wallace P. Cook, and one-third to Willard P. Cook. One share of the Beyer stock was issued to one Cleary, an employee of Mr. Beyer, to enable him to qualify as an officer for organization purposes only. The company was organized, and these lands and other property conveyed to it, for the express purpose of hindering and delaying creditors of the Cooks. That such was the object of the conveyance was known to all stockholders and all the officers, and consequently to the corporation itself. To say that the corporation bought the lands and paid full consideration therefor by issuing its stock to the Cooks and Beyer, and is protected in its title against the creditors which the corporation, its stockholders, and officers set out to hinder, delay, and defraud is to trifle with common sense. It is contended that, the corporation being an innocent purchaser for value, its title cannot be divested, and, if the acts and conduct of the Cooks and Mr. Beyer was fraudulent as to the creditors of the Cooks, the complainant’s remedy is to subject the stock of the corporation held by the Cooks and Beyer to the execution. There might be force in this position if the corporation was an innocent purchaser for value, which it is not.”

We think this conclusion of the learned judge is justified by the evidence. The company was composed of Beyer and the Cook Bros. The transaction was arranged by them. According to their own testimony, the company has given Beyer more stock than he paid for, and gave Cooks much less stock than they contributed in property. He gave no credit to the Cooks on his books, at any time, for any of the property conveyed to him, either by the deed of 1896 or that of 1903, and claimed that they still owed him the entire account. The one-third of the stock issued to Beyer was held by him as collateral security for the entire account due him from the Cooks. Beyer testified as to the organization of the company as follows:

“Q. What was your object in organizing that company in June, 1903? (This question was objected to by defendants’ counsel as immaterial.)
“A. Simply to enable Cook to go on and do business, so that he could make money enough to pay up his indebtedness. He was embarrassed at that time, and couldn’t carry on business very well in his own name.
“Q. You organized the company so that he could carry it on?
“A. The company was organized so that he would not be harassed to death, so he could do business.”

It seems clear that the purpose of the organization of the company was to prevent the Cooks from being annoyed by their creditors, and necessarily resulted in delaying and hindering them.

We are satisfied that the circuit judge reached a just and equitable conclusion, and the decree is therefore affirmed, with costs to the complainant.

McAlvay, C. J., and Brooke, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


source: Caselaw Access Project

author: Kuhn, J.

license: Public Domain

text:
    CLARK v. NORTH AMERICAN UNION.
    1. Insurance — Fraternal Beneficiary Associations — Fraud— Application.
    In an action on an insurance certificate' defended on the ground of fraud, testimony of the examining physician that he had no recollection whether the insured was asked one question which defendant claimed the insured answered falsely, also that he sometimes did not ask all of the questions set forth in the application blank, was enough to raise a doubt whether the question was asked of the insured and presented an issue for the jury.
    2. Same — Rules—Contract.
    Where a benefit association notified its medical examiners of its rule requiring applicants to sign a waiver of benefits, if pregnant, otherwise to reject the application, which in all cases provided that admission should be subject to all rules and regulations of the society, evidence was admissible to show the provisions of the rule.
    3. Same — Waiver of Defenses — Remedies.
    Having rejected a claim under the policy of insurance, defendant association did not waive its defense by notifying plaintiff’s attorney that he had a right to appeal to the executive committee which would meet at a designated place in Chicago, although plaintiff and his attorney attended at the time and place specified and no one representing defendant appeared.
    Error to Muskegon; Barton, J., presiding.
    Submitted November 17, 1913.
    (Docket No. 137.)
    Decided March 26, 1914.
    Assumpsit by Fred A. Clark against the North American Union upon a benefit certificate. Judg-. ment for defendant, upon a directed verdict. .Plaintiff brings error.
    Reversed.

      Turner & Turner, for appellant.

      Cross, Vanderwerp, Foote & Ross (Robert S. lies, of counsel), for appellee.
   Kuhn, J.

The defendant is an Illinois fraternal benefit society authorized to do business in Michigan. Plaintiff brings this suit to recover the sum of $500 upon a policy issued by the defendant on the 13th day of January, 1911, to Effie B. Clark, the wife of plaintiff, in which the plaintiff was named as beneficiary. At the time Mrs. Clark made application for membership in the association, she signed what was termed a “medical examiner’s blank.” The certificate issued by the company provided that the representations, statements and agreements made and subscribed to by the applicant in the medical examiner’s blank were to be warranties, and were to be made a part of the contract. The medical examiner’s blank contained 186 questions, of which 141 were to be answered by the applicant, and the remaining questions by the examining physician. This blank concludes with the statement:

“I hereby warrant and agree that the above answers are true in every particular, and hereunto affix my name this 22d day of December, 1910.
“[Signature of Applicant] Mrs. Effie B. Clark.”

Printed question No. 127 in this blank is, “Are you now pregnant?” and the written answer was, “No.” This blank remained in the possession of the association. Men and women are eligible to membership in the association, but a woman is not admitted to membership while she is in a state of pregnancy, unless she signs a special waiver of benefits, which releases the company in case death or disability occurs on account of the pregnancy. This was in accordance with a rule of the association, which was not promulgated, but which was to be observed by their medical examiners.

It is the claim of the defendant that on December 22, 1910, when Mrs. Clark affixed her signature to the blank, she was advanced between four and five months in pregnancy, as on May 13, 1911, she gave birth to a healthy and normal child. She died on May 18, 1911, the immediate cause of death being peritonitis, and it is claimed the predisposing cause was probably the childbirth. The defense relied on a breach of the warranty, and, at the close of the proofs, on motion of the counsel for defendant, the court directed a verdict in its favor.

It is the principal claim of the plaintiff in this court that the trial court erred in directing a verdict, because, under the circumstances disclosed by the testimony, the question of whether Mrs. Clark answered the question as stated in the medical examiner’s blank should have been submitted to the jury.

Dr. Cooper, the medical examiner of the defendant association, was produced as a witness by the defendant. On cross-examination, he testified as follows:

_ “Q. Now, all these questions here, some 186 questions — you don’t ask the patient, the party, all these questions, do you?
“A. That is not the general rule.
“Q. Well, you don’t, as a matter of fact, do you?
“A. No, sir.
“Q. Now you don’t have any recollection now whether the question was asked Mrs. Clark as to whether she was pregnant or not, have you?
“A. I don’t know as I asked the question; no, sir. I couldn’t recollect that.
“Q. You don’t recollect any of these other 186 questions, whether they were asked and answers put down or not?
“A. No, sir; I don’t remember that.
“Q. Some of these questions that are put down on the blank are answered by the party making the examination without questions to the party?
“A. I think that is the general rule amongst physicians.
“Q. You can’t remember whether that was the fact in regard to the question of pregnancy or not?
“A. I cannot.
“Mr. Turner: I think that is all.
“Redirect examination by Mr. Cross:
“Q. Doctor, the answers to these various questions are all in your handwriting, are they not?
“A. Yes, sir; I think so.
“Q. They are supposed to be?
“A. Yes, sir.’’

The execution of the written contract was established by sufficient and undisputed evidence. The question therefore is whether the testimony of the physician above set forth raised sufficient doubt as to whether Mrs. Clark ever' made a statement concerning her being, pregnant as to warrant its submission to the jury. In considering this question, it must be borne in mind that Mrs. Clark is dead and cannot speak. The physician says that he is unable to say that he asked her the question upon which this controversy hinges, and that, as a matter of fact, he does not ask all the questions in the blank. Should it be conclusively presumed, in the light of this statement, that the question was asked her? In view of the well-established rule that, in directing a verdict for the moving party, the testimony should be viewed in the light most favorable to the opposing party (Barschow v. Railway Co., 147 Mich. 226 [110 N. W. 1057]), we think an inference of fact could easily be drawn that the question was not asked her, and, where this is true, the question should be submitted to the jury. Fox v. Iron Co., 89 Mich. 387 (50 N. W. 872); Strepanski v. Plaster Co., 162 Mich. 696 (127 N. W. 706). It is not necessary that testimony be expressly denied to raise a question for the jury. It is sufficient if it is disputed by indirection, or is subject to doubt in view of cross-examination of witnesses for the party making the motion. Wilson v. Royal Neighbors of America, 139 Mich. 423 (102 N. W. 957). While it is true that every person is presumed to have read what he has signed, we think this case comes within the rule laid down in Temmink v. Insurance Co., 72 Mich. 388 (40 N. W. 469). See, also, Pudritzky v. Knights of Honor, 76 Mich. 428 (43 N. W. 373); Brown v. Insurance Co., 65 Mich. 306 (32 N. W. 610, 8 Am. St. Rep. 894); Van Houten v. Insurance Co., 110 Mich. 682 (68 N. W. 982).

Error is assigned because testimony was admitted to show the rule which was to be followed by the medical examiners in rejecting applicants unless they signed waiver in case of pregnancy. It was not necessary for this rule to be in writing and that it be promulgated. The application for membership was made subject to all laws, rules, and regulations governing the association, and it was not error to allow testimony to show the rule in question.

After the death of Mrs. Clark, the supreme president of the association advised the attorney for Mr. Clark that the claim was rejected, but that, under the laws of the association, Mr. Clark had a right to appeal to the executive committee, who would meet on the last Friday of each month at a designated place in Chicago. Accordingly Mr. Clark and his attorney went to the designated office in Chicago on the last Friday of the succeeding month, but no one appeared. Plaintiff refused to attend any other meeting, and brought suit. It is contended that this amounted to a waiver, and the case of Reimold v. Insurance Co., 162 Mich. 69 (127 N. W. 17), is relied upon. The instant case does not come within the principle of law applicable to that case. There, after a full personal knowledge of the facts, the secretary and other officers of the company, without repudiating the claim of plaintiff, continued to deal with him as if they intended to pay the loss he claimed. This court held, where the knowledge of the claimed breaches of the policy came to the officers of the company, it was their duty to promptly repudiate liability. Here the defendant association promptly rejected the claim, and the doctrine of waiver does not apply.

We have discussed such questions as have been raised by proper assignments of error.

For the reason given, the judgment of the trial court will be reversed, and a new trial granted.

McAlvay, C. J., and Brooke, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


text:
    BROOKS v. HARGRAVE.
    1. Equity — Estates oe Decedents — Accounting — Probate Courts.
    As to matters relating to the settlement of estates of deceased persons, the probate courts of this State have exclusive jurisdiction, unless the remedies provided are inadequate. Act No. 271, Pub. Acts 1905 (5 How. Stat. [2d Ed.] § 12099), was not intended by the legislature to confer upon the court of chancery the powers originally vested in that court, but to leave to such court the inherent equitable powers as theretofore exercised here.
    2. Same — Executors and Administrators — Estates oe Decedents.
    Courts of equity will not interfere with the proceedings of courts exercising special and peculiar jurisdiction, created for particular purposes; and the rules which give chancery courts jurisdiction in matters of accounting as against courts of law do not apply to probate courts.
    3. Same — Courts—Accounting.
    Courts of probate are not strictly courts of law; they exercise equitable power.

      4. Same — Executor’s Account — Injunction.
    Having assumed jurisdiction of an estate by admitting to probate tbe will of a decedent, the probate court does ■not lose jurisdiction until tbe estate is finally closed: no other court save an appellate- court should proceed further with a suit against an executor for an accounting after the priority of jurisdiction has been brought to its attention.
    5. Same — Partnership—Final Accounting.
    Where decedent by his will appointed one of his sons as executor of his estate which included a partnership business that the executor had been interested in as partner before his father’s death, and where it was provided by the will that decedent’s widow might dispose of the homestead and purchase a smaller one, the surplus to be held in trust for other persons interested, and it was averred in the bill of complaint that the executor received from the sale of the homestead $6,000 which with other funds of the estate he employed in the business of which he was a partner, the matter was one for the determination of the probate court, and the case should be referred to that tribunal in which the executor had filed his account.
    Appeal from Saginaw; Gage, J.
    Submitted November 12, 1913.
    (Docket No. 94.)
    Decided March 26, 1914.
    Bill by Rae H. Brooks and Helen II. Brooks against Edward C. Hargrave, executor of the estate of Edward J. Hargrave, deceased, and others, for an injunction, accounting and other relief. From a decree for complainants, defendant Hargrave appeals.
    Reversed.

      Weadock & Weadock (Miles J. Purcell, of counsel), for complainants.

      Gillett & Clark and Fred W. De Foe, for defendant E. C. Hargrave.
   Kuhn, J.

Edward J. Hargrave, father of the defendant Edward C. Hargrave and grandfather of the above-named complainants, died in the country of Wales on February 1, 1887. He left a last will and testament, which in terms was as follows:

“I, Edward J. Hargrave, of the city of Bay City, State of Michigan, being of sound and disposing mind and memory, do hereby make and declare this my last will and testament, hereby revoking all former wills by me made.
“1. I give and bequeath unto my son, Edward C. Hargrave, of Bay City, Michigan, such portion of my undivided interest in saw mill, salt block and farm owned by myself, and the said Edward C. Hargrave, as will at the time of my decease, increase the present undivided one-third ownership of said Edward C. Hargrave in saw mill, salt block and farm property, to an undivided one-half interest therein.
“2. I give and bequeath unto my beloved wife, Elizabeth W. Hargrave, an undivided one-half of the mill and salt block, and the farm, if unsold, and an undivided one-half of all the personal property used in connection with the carrying on of said mill, salt block and farm, hereinbefore designated, at the time of my decease, for the period of her natural life, subject to the limitation hereinafter contained.
“3. I hereby direct that my said farm, known as the Oaklawn farm, shall be sold and the proceeds arising therefrom be put into and used in carrying on the firm business E. J. Hargrave & Son.
“4. It is my will that after my decease, the said mill, salt block and farm business shall be carried on by my said son, Edward C. and Elizabeth W. Hargrave, my said wife, in copartnership as equal co-partners, under the firm name of E. J. Hargrave & Son, the care and management thereof to be under the personal supervision and direction of Edward C., he to give his time and personal attention to the carrying on of said business, and to receive from said firm the sum of one thousand five hundred dollars per year as salary.
“5. It is further my will and I do hereby direct that my said wife during her lifetime have the profits arising from her half of said business for her maintenance, subject to the limitations herein contained, out of which it is my direction that she shall pay such balance as there may be due or to become due upon an incumbrance upon property owned by me known as the Marston property, situate in Bay City, and that she shall also maintain and care for my son, Frank F. Hargrave, until he shall reach the age of twenty-one years, and furnish and provide him with a good English business education.
“6. It is further my will, and I do hereby give and bequeath unto my said son, Frank F. Hargrave, at the death of my said wife, Elizabeth W., all the undivided half hereby willed to her of said mill, salt block and farm, and the personal property used in connection therewith, and do hereby further direct that if _my said wife shall remain living at the time my said son, Frank F., reaches the age of twenty-one years, he shall be entitled to and shall receive an undivided one-third of the interest hereinbefore bequeathed to said Elizabeth W. in the mill, salt block and farm propérty, and other property connected therewith, and that the said Frank F. shall then become a member of said firm, and shall give his time, attention and energies in and about the carrying on of said business, together with the said Edward C. Hargrave, and shall be entitled to his proportion of the business and the profits thereof.
“7. I do hereby give and bequeath unto my daughters, Emma J. Vance and Laura M. Brooks, one thousand ($1,000.00) dollars each from the moneys owing to me from my said son, Edward C. Hargrave.
“8. I do hereby further give and bequeath unto my said wife, Elizabeth W. Hargrave, for and during the period of her natural life all my real and personal property not hereinbefore mentioned of whatsoever the same may consist, and wheresoever the same may be situate.
/‘9. And I do further direct that should my said wife desire a smaller house than my present homestead, she shall have the privilege of selling the same and purchasing another, the surplus arising from such transaction to be held in trust for the heirs hereinafter mentioned.
“10. After the death of my said wife, Elibabeth W. Hargrave, I do direct that all my real and personal property bequeathed herein to her, save the said mill, salt block, farm and the personal property used in connection therewith, be sold, and the proceeds arising therefrom I do give and bequeath to my grandchildren then living, to be divided equally among them.
“11. I do hereby nominate and appoint my said son, Edward C. Hargrave, and my old friend, Louis R. Russell, executors of this my last will and testament.
“In witness whereof I have hereunto set my hand and seal at the city of Bay City, Michigan, this twenty-second day of November, in the year of our Lord, one thousand eight hundred and eighty-six.
[Signed] “Edward J. Hargrave.”

The defendant Edward C. Hargrave, named as one of the executors in the will, was appointed by the probate court of Bay county, Mich., sole executor on April 27, 1887, the other executor named in the will having refused to act. He was required to, and did, execute a bond in the sum of $20,000 for the faithful performance of his duties as such executor. He shortly thereafter filed an inventory and appraisal of the property of said estate. The executor did not render or file any account in connection with his executorship until after the institution of this suit. No commissioners on claims were appointed nor has there been a hearing on claims by the court. Frank F. Hargrave, the son mentioned in the will, died in March, 1901, and his estate has never been probated. Elizabeth W. Hargrave, the widow of Edward J. Hargrave, died in Wales on October 29, 1897.

The bill of complaint in this case was filed January 18, 1908, and prays for the following relief:

“A. That said Edward C. Hargrave, as executor of the last will and testament of Edward J. Hargrave, and in his individual capacity, be decreed by this honorable court to account to them for all property, both real and personal, coming into his hands as executor of the last will and testament of said Edward J. Hargrave, in and to which by reason of their right, title, and interest therein as residuary legatees of said Edward J. Hargrave, and as heirs at law of said Laura M. Brooks, and as heirs at law of said Frank F. Hargrave, they are legally and lawfully entitled to.
“B. That said Edward C. Hargrave may be compelled as such executor and individual to account to these complainants for all the increase, profits, and proceeds and property coming into his hands or arriving out of or belonging to said estate of Edward J. Hargrave and to which these complainants are entitled, and for an interest, and that said Edward C.' Hargrave may be decreed to pay over to these complainants each, every, and all sums that may be found due to them on such accounting; that these complainants may have such other and further relief to which they may be deemed entitled.”

It is conceded that the homestead referred to in paragraph 9 of the will was sold for the net sum of $6,000, and that the proceeds thereof were never invested in another home, as might have been done under the will, but were deposited by Edward C. Hargrave in the bank account of Edward J. Hargrave & Son. It is also conceded that there was received by Edward C. Hargrave, as executor, the sum of $2,020.55, life insurance upon the life of Edward J. Hargrave payable to his estate, which sum was likewise deposited in the bank account of Edward J. Hargrave & Son.

After this cause was at issue and noticed for hearing, Edward C. Hargrave filed what purported to be his final account as executor of the last will and testament of Edward J. Hargrave in the probate court for the county of Bay, and an order for hearing was made thereon. A petition was also filed in this cause ■ to dismiss the bill of complaint upon the ground of lack of jurisdiction of the said court in chancery to enter into an accounting with him as executor or otherwise. Upon the hearing of this petition, the same was dismissed by the circuit judge, and a general appeal taken to the Supreme Court from' the order dismissing the said petition. ' Upon motion subsequently made by the complainants, the appeal was dismissed by this court for the reason that the order was not a final and appealable order. See Brooks v. Hargrave, 162 Mich. 599 (127 N. W. 689). Pending this decision on the motion to dismiss the appeal, the defendant Edward C. Hargrave insisted upon a hearing of his final account in the probate court for the county of Bay and a time of hearing thereon was fixed by the probate judge. Complainants thereupon filed a petition in this suit, asking for an order to restrain said probate court proceedings, and a restraining order was granted by the circuit court in chancery. A hearing was had upon the bill of complaint and answers filed, and, on November 29, 1912, a decree was duly entered in favor of the complainants, from which decree the defendant Edward C. Hargrave has taken an appeal to this court. The decree provides as follows:

“First. That the defendant, Edward C. Hargrave, did receive, while acting as executor of the estate of Edward J. Hargrave, the sum of $6,000 from the sale of the homestead of said Edward J. Hargrave, and referred to in the will of said Edward J. Hargrave, and the evidence in the case, and also the sum of $2,020.55, the proceeds of an insurance policy upon the life of said Edward J. Hargrave, both of which sums of money came into the hands of the said Edward C. Hargrave as a trust fund, and was used by bim in connection with the general business of Edward J. Hargrave & Son, and remains unaccounted for by him, either as executor, trustee, or otherwise.
“Second. That in accordance to the terms of the will of said Edward J. Hargrave, and the evidence in the case, Elizabeth W. Hargrave, widow of said Edward J. Hargrave, was entitled, in the first instance, to the use of and income from said sums aforesaid during her life, and that upon her death the same was to be divided equally among the grandchildren of said deceased, then living.
“Third. That said Elizabeth W. Hargrave died upon October 29, 1907, and there were seven grandchildren of Edward J. Hargrave then living, said complainants being two thereof.
“Fourth. That the amount due said complainants and remaining unpaid at the date hereof, with accrued interest at the rate of 5 per cent, per annum, is the sum of $2,875.26.
“Fifth. That this decree fixes and determines the amount found, upon an accounting, to be due and unpaid by the said Edward C. Hargrave in the capacity of executor of the last will and testament of Edward J. Hargrave, and as trustee of said fund made up as aforesaid, to complainants, and that the said complainants have execution therefor, and they are hereby authorized to take any and all legal actions and proceedings in the matter of the estate of Edward J. Hargrave, or otherwise, and against the bondsmen of Edward C. Hargrave in the matter of said estate, or any different or other proceedings as may be necessary to collect said sum, and which the law permits.
“Sixth. That the restraining order heretofore made by this court with reference to the final account of said executor, presented to the probate court in Bay county, in so far as any action of said court may affect the rights of said complainants as herein specified and determined, is made permanent.”

It is the claim of the defendant that there was nothing left in the residuary estate, as all its assets were required for the payment of the debts of the deceased, expenses of administration, and specific legacies. It is his claim that he should be entitled to offset as against the receipt by him of the two items for which he was held in the decree the funeral expenses of the deceased, the support of the widow, the administration expenses, and miscellaneous debts of the deceased, which, it is claimed, were all paid by the firm after the testator’s death and amounted to $4,157.92, also the executor’s commission of $249.41, also the disbursements, of the'firm for the testator prior to his death, $9,675.12, all of which items were disallowed by the circuit judge upon the hearing in the chancery case.

Upon the hearing of the case no claim was made for a distributive share or interest in the estate or property of Frank F. Hargrave, for the reason that his estate was not probated and was, in any event, first chargeable with his debts, if any.

The first and important question to be determined 'is whether or not the circuit court in chancery has jurisdiction to hear the matters in controversy. The learned circuit judge, at the time that the petition to dismiss for lack of jurisdiction was before him, did not consider the matter entirely free from doubt, but came to the conclusion that in view of the circumstances1 of this particular case Edward C. Hargrave, as a surviving partner, became a trustee for all concerned in the partnership business, and as such surviving partner it was his duty to account to the representatives of his deceased partner for all of the partnership assets, and for this reason the circuit court in chancery had jurisdiction. A careful examination of the bill of complaint and of the relief asked for is convincing that it asks for an accounting by the defendant as the executor of the estate of his father

It is well established in this State that the probate court has exclusive jurisdiction of all matters relative to settlement of estates of deceased persons, except in cases where its remedies are inadequate. People, ex rel. Campan, v. Wayne Circuit Judge, 11 Mich. 393 (83 Am. Dec. 754); Holbrook v. Campau, 22 Mich. 288; Dickinson v. Seaver, 44 Mich. 624 (7 N. W. 182); Church v. Holcomb, 45 Mich. 29 (7 N. W. 167); Morford v. Dieffenbacker, 54 Mich. 593 (20 N. W. 600); Schlee v. Darrow’s Estate, 65 Mich. 362 (32 N. W. 717); In re Andrews’ Estate, 92 Mich. 449 (52 N. W. 743, 12 L. R. A. 296); Nester v. Ross’ Estate, 98 Mich. 200 (57 N. W. 122); Cole v. Cole’s Estate, 125 Mich. 655 (85 N. W. 113).

Act No. 271, Public Acts of 1905, being an amendment of section 651, 1 Comp. Laws (5 How. Stat. [2d Ed.] § 12099), prescribes the jurisdiction of probate courts and courts of chancery in connection with settlement of estates. The proviso “that the jurisdiction hereby conferred shall not be construed to deprive the circuit court in chancery, in the proper county, of concurrent jurisdiction as originally exercised over the same matters,” was construed by this court in the case of Nolan v. Garrison, 156 Mich. 397, 401 (120 N. W. 977), where the court said:

“We are of the opinion that it was not the intention of the legislature by the amendment to confer upon the court of chancery the powers originally exercised by that court, but that it was the intention, as declaratory of the existing law, to remove any doubt as to the power of the court to exercise its general inherent equity powers where the remedies in the probate court were inadequate, and that the expression, 'originally exercised over the same matters,’ should be construed as referring to the exercise of the inherent equitable powers of the court as theretofore exercised in Michigan. State v. Ueland, 30 Minn. 277 [15 N. W. 245].”

See, also, Davis v. McCamman, 165 Mich. 287 (130 N. W. 691). Can it be said, under the facts of this case, that the remedies of the probate court are inadequate?

The rules which give chancery courts jurisdiction in matters of accounting as against courts of law are not applicable to the probate courts. It has been laid down as a general rule that courts of equity will not interfere with the proceedings of courts of special and peculiar jurisdiction created for particular purposes or with special and peculiar powers. 1 High on Injunctions (4th Ed.), § 50, and cases cited. Probate courts are not courts of law, strictly speaking. Rodgers v. Huntley, 166 Mich. 129 (131 N. W. 524). They exercise equitable powers as well. As was said in Brown v. Forsche, 43 Mich. 492, 501 (5 N. W. 1011):

“A probate case on appeal is to be tried, and determined on the same principles that would be administered by the probate court itself. That court, in adjusting the accounts of administrators, is governed by broad principles of equity.”

See, also, Gott v. Culp, 45 Mich. 265 (7 N. W. 767); Loomis v. Armstrong, 63 Mich. 355 (29 N. W. 867); Ward v. Tinkham, 65 Mich. 695 (32 N. W. 901); Duvernois v. Kaiser, 75 Mich. 431 (42 N. W. 848). A great part of the time of probate courts is given to matters of accounting, and estates cannot be closed and the executor or administrator discharged until a proper account has been filed and the court satisfied that the disbursements claimed to have been made are proper and legal. A mere complexity of accounts should not, and does not, oust that court of jurisdiction. It is only when other interests than those of the estate and the executor are involved that the chancery court assumes jurisdiction, rather because of the complexity of parties than because of the complexity of the accounting.

The defendant was appointed and qualified as executor, giving a bond of $20,000 to properly account to the probate court for such property as came into his hands as executor. Complaint is made that he has failed to account in the probate court, and when he attempts to do this he is enjoined by the chancery court from having his account heard. There can be no question that the probate court assumed jurisdiction of the subject-matter in controversy when the will was admitted to probate and the defendant qualified as executor. It does not lose jurisdiction until the estate is finally closed. Having assumed jurisdiction, it has exclusive jurisdiction and no other court, save an appellate one which subsequently assumes to act in the matter, should proceed further when the priority of jurisdiction is called to its attention. E. T. Barnum Wire & Iron Works v. Speed, 59 Mich. 272 (26 N. W. 802, 805).

The more appropriate place for the accounting by the executor in the first instance is in the probate court, from which court he obtained his authority to administer and to which he expressly bound himself to account by giving a bond.

In Rhode Island the jurisdictions of the municipal court (corresponding to our probate court) and the chancery court are concurrent. In the case of Dean v. Rounds, 18 R. I. 436 (27 Atl. 515, 28 Atl. 802), the court held that the jurisdiction of the probate court dated from the issuance of the letters of administration and the filing of the bond, and not from the filing of the account, and stayed chancery proceedings until the settlement of the probate account.

In the case of Rutherford v. Myers, 50 App. Div. (N. Y.) 298 (63 N. Y. Supp. 939), in which State the chancery courts and surrogate courts also have concurrent jurisdiction in the settlement of estates, the court said:

“If, upon the determination of the accounting proceeding, it appeared that the plaintiff was denied any relief to which, upon equitable principles as administered in courts of equity, he was entitled, he could then apply to a court of equity for such relief; but at this stage of the proceeding there is nothing to prevent the surrogate’s court from proceeding with the .accounting, or that would justify the interference of the Supreme Court.”

In the instant case, the will did not name the executor as a trustee. By paragraph 8 of the will, a life estate is created in the widow, with a remainder over. The will in terms creates a trust fund of the proceeds of the sale of the homestead, but the trustee of this fund was Elizabeth W. Hargrave. It is true the defendant Edward C. Hargrave actually took the funds and deposited them in the firm accounts, as he claims, to reimburse the firm for the advancements made to pay the funeral expenses, support of the widow, and administration expenses, and applying the balance on the indebtedness of the father. It is urged that this is simply an afterthought and a subterfuge on the part of defendant, as it appears that these disbursements were actually charged on the books of the firm to .the account of Mrs. Hargrave. Whatever merit there may be to these contentions, it is our opinion that these matters should have been first submitted to the probate court for adjudication, and if, after an accounting there, it appeared that the complainants had been denied relief which they were entitled to, which the probate court could not give, application might then very properly have been made to the chancery court for relief.

The decree of the circuit court will be reversed, and further proceedings in that court will be stayed until the hearing by the probate court of the final account of the executor and an order made thereon, with costs to appellant.

McAlvay, C. J., and Brooke, Stone, Ostrander, Bird, and Steere, JJ., concurred. Moore, J., did not sit.


author: Bkooke, J.

text:
    YOUNG v. YOUNG.
    Divorce — Husband and Wife — Estates by Entireties — Alimony.
    A decree of divorce in favor of complainant husband, giv- . ing to bis wife one-half interest in certain real estate held by the entirety and worth about $1,200 over and above a mortgage thereon, held, to be equitable.
    Appeal from Kent; Perkins, J.
    Submitted January 15, 1914.
    (Docket No. 87.)
    Decided March 26, 191
    Bill by Gaylord T. Young against Elizzie Young for divorce. From a decree for complainant, defendant appeals.
    Affirmed.

      M. H. Walker, for complainant.

      Poivers & Dombrowski, for defendant.
   Bkooke, J.

Complainant secured a divorce from defendant upon the grounds of desertion and extreme cruelty.

It appears that complainant had been married once before, his first wife dying in the year 1900. By her he had eight children, seven of whom grew to maturity. In 1906 he married defendant, with whom he had been acquainted for a great many years. At the time of the marriage, complainant seems to have been possessed of but little property. Shortly after that event, one of his six sons died, and complainant received some $1,280 of life insurance. This sum he invested in an 80-acre farm, the title to which was taken in the names of himself and wife by entirety. A mortgage of $300 remained .upon this property.' Complainant’s mother, a very old lady, resided upon and owned a farm of 40 acres, adjoining which was a plot of 18 acres belonging to complainant and a crippled brother, Robert. With the old lady lived her crippled son, Robert, and complainant’s son, Charles. The 58 acres was worth about $1,200, and was mortgaged for $600. Complainant’s mother died in 1909, and it was decided that this farm should be sold. Complainant asked defendant to join in a deed of the place to a Mrs. Austin, who had offered $1,200 for it. This she flatly refused to do, because she disliked Mrs. Austin very much, and believed that Mrs. Austin was, to some extent, responsible for the fact that her husband’s relatives had, as she claimed, always treated her badly. Starting with this difference, matters went from bad to worse, until in 1910, when complainant, claiming that life with defendant was no longer tolerable, left her, and in 1912 filed his bill of complaint. Defendant filed an answer and cross-bill, but prayed for no relief, except that she asked for alimony and an additional solicitor’s fee.

The court below granted to complainant the relief sought, and by the decree changed the tenancy of the parties in the farm to one in common, awarding to each an undivided one-half interest therein. Defendant’s counsel urge that complainant is not entitled to a decree of divorce and that, if he is, an insufficient allowance of alimony was made. In support of their contention, they cite Cooper v. Cooper, 17 Mich. 205 (97 Am. Dec. 182); Johnson v. Johnson, 49 Mich. 639 (14 N. W. 670); and Morrison v. Morrison, 64 Mich. 53 (30 N. W. 903). The principles announced in these cases have been consistently followed by this court. The question is: Are they ápplicable to the case at bar?

An extended review of the evidence would be of no profit to the profession. It is sufficient to say that, if any doubt might exist as to complainant’s right to the relief granted, based upon his evidence and' that offered in his behalf, that doubt at once disappears upon a perusal of defendant’s testimony. Complainant is an old man, and, in our opinion, is entitled to pass his remaining days in peace. Complaint is made of the award of alimony. We think it is equitable. One-half of all complainant has is awarded to defendant. She did not assist in earning any part of the joint estate.

The decree of the court below is affirmed, but without costs.

McAlvay, C. J., and Kuhn, Stone, Osteandee, Bird, Moore, and Steere, JJ., concurred.


author: Brooke, J.

text:
    COVELL v. COMMON COUNCIL OF VILLAGE OF FIFE LAKE.
    1. Intoxicating Liquors — License—Villages—Revocation.
    The provisions of Act No. 321, Pub. Acts 1907 (3 How. Stat. [2d Ed.] §8165), providing that when a majority of the qualified electors of a village equal, to the majority of votes cast for governor at the last general election shall file a petition protesting against the acceptance of any retail liquor bond, given by a surety company, the council shall not accept such bond, is enforceable and valid. The court is entitled to determine the question as to the sufficiency of number of signers from the poll list and testimony of witnesses that are familiar with the residence of the electors and such other evidence as is available.
    2. Same — Evidence—Elections.
    In the absence of evidence tending to prove that the poll list was inaccurate, it cannot be said that the evidence offered was insufficient or that it should have been supplemented by the registration lists.

      3. Same — Parties—Prosecuting Attorney.
    The prosecuting attorney was a proper party to institute mandamus proceedings to prevent the acceptance of a bond in violation of statute.
    4. Same — Bonds—Petition of Protest.
    The filing of a petition favoring acceptance of a surety company bond and the fact that some of the names signed to the petition of protest also appeared on the petition favoring the acceptance of a surety company bond, could not be considered. The common council was required to act on the petition of protest authorized by the statute.
    Certiorari to Grand Traverse; Mayne, J.
    Submitted January 20, 1914.
    (Calendar No. 25,871.)
    Decided March 26, 1914.
    Mandamus by George G. Covell, prosecuting attorney of Grand Traverse county, against the common council of the village of Fife Lake, to require defendant to convene and vacate its action approving a liquor bond. An order granting the writ is reviewed by defendants on certiorari.
    Affirmed.

      Ernest C. Smith and Parm C. Gilbert, for appellants.

      Claude H. Stevens (John W. Patehin, of counsel), for appellee.
   Brooke, J.

This action is certiorari to review proceedings in the circuit court for the county of Grand Traverse, in which a writ of mandamus was issued directing the respondent village council to meet and vacate the proceedings, whereby the liquor bonds for the year 1913-14 of ■ the respondent Miller Hobbs, signed by the Michigan Bonding & Surety Company as surety, were approved and directing respondent John Hoxie, treasurer of the county of Grand Traverse, to revoke the license for the year 1913-14 issued to said Hobbs upon the strength of said bonds unlawfully approved.

The finding of the learned circuit judge follows:

“Act No. 321, Public Acts of 1907, provides:
“ ‘That whenever a majority of the qualified electors of any township, village or city, equal to a majority of the votes cast for governor at the last general election, shall file a petition * * * - protesting against the acceptance of the bonds offered by any individual, firm or corporation proposing to engage in the sale of intoxicating liquors at retail, it shall be unlawful for such township * * * to accept such bonds’ (surety company bonds).
‘Such a protest signed by the required number of electors was presented to the village of Fife Lake. The only requirement of the individual signer to such protest is that he is a qualified elector, and the number of such electors shall equal the majority of the votes cast for governor at the last general election. The signer may not have voted at the last election; in fact, he may never have voted. He may have come of age or moved into the election precinct subsequent to the last election and be a competent signer. The statute does not designate the proof required as to the qualifications of the signers. I therefore conclude that any competent proof of the fact is sufficient. In my opinion the admission of counsel and the proofs submitted establish the fact that a majority of the qualified electors of the village of Fife Lake, equal to the majority of the votes cast for governor at the last general election, signed the petition, and that the council could not ignore the same. If a question as to the qualifications of the signers was presented, such fact should appear. This would enable the petition-. ers to establish the qualifications of the signers, or to obtain the signatures of other electors, if necessary.
“Another petition was presented at the same time asking respondents to accept surety company bonds. The names of certain signers appeared upon both petitions. Deducting the names of those signing both petitions, the required number of electors would not appear upon the petition of protest. The time when this second petition- was circulated and the signatures obtained, and the circumstances under which it was obtained, do not appear in evidence. As far as anything in relation to the circulation and signing of the second petition does not appear, the fact is established that the so-called second petition antedated the petition of protest as to the time of its circulation. I do not consider, however, that this second petition, so called, nullifies the act of the first or petition of protest. A legal petition was filed, and the results provided in the statute must follow such filing. This particular act has been considered by our Supreme Court, and no intimation given that the same was unconstitutional, or that it was subject to the infirmities suggested by counsel for respondent. Village of Wolverine v. Cheboygan Circuit Judge, 162 Mich. 713 [127 N. W. 744]. Prayer of petitioner will be granted and writ issue.”

The respondent village council has removed the proceeding to this court for review by writ of certiorari.

Respondent contends:

First. That the provisions of Act No. 321 of the Public Acts of 1907 (3 How. Stat. [2d Ed.] § 8165), with reference to the filing of petitions of protest with village councils are incapable of enforcement.

It is argued that, because villages are not separate voting precincts at general elections, the electors thereof at such elections voting in common with the electors of the township, there can consequently be no separate canvass of village votes at a general election and no records made from which it can be certainly determined how many village votes were cast for governor at the last general election.

It will be noted that the statute indicates no method by which the village council is to determine whether the petition of protest is in fact signed by the requisite statutory number of electors, but upon the filing of such a petition it is made the duty of the council to reject such bonds. This, of course, presupposes that the council must determine the fact from such legal sources as are available. Ordinarily the number of electors in a village is not large, and an examination of the poll list of the township at the last general election would seem to affiord a reasonably accurate method of determining how many electors of the village voted for governor. With knowledge of the limitations under which the village counsel would necessarily act, it may be presumed that the legislature did not intend to impose absolute and impossible accuracy.

From such an examination, supplemented by evidence of those familiar with the residence of the electors, it is apparent that the learned circuit judge found no difficulty, in arriving at a conclusion which we believe to be correct.

Second. It is contended that there was no competent proof offered that the persons who signed the petition of protest were qualified electors of the village. It is urged that the registration list instead of or in addition to the poll list should have been produced. Again we note that the statute is silent as to the method to be employed in determining this fact, and we cannot say that the evidence relied upon (in the absence of all evidence to the contrary) was insufficient.

Third. The prosecuting attorney is not authorized to prosecute or conduct these proceedings.

This point is decided adversely to the claim of the respondent in the case of Village of Wolverine v. Cheboygan Circuit Judge, 162 Mich. 713 (127 N. W. 744).

Fourth. It appears that on April 14, 1913, there was presented to the village council two petitions, one against and one in favor of accepting bonds of surety companies. The one against was signed by 48 electors. The one favorable was signed by 59 electors. Eight names appeared upon both petitions.

Though both were presented to the council upon the same day, the favorable petition was filed on March 3d, while the one against was not filed until the day it was considered, April 14th. It is claimed that consideration should have been given to the favorable petition. A sufficient answer to this claim is to be found in the fact that there is no provision in the statute for such a petition. The council must act upon the filing of a petition of protest bearing the signatures .of a statutory number of electors. It might easily happen that the petition of protest would comply with the statutory requirements, and yet that a majority of the electors of the village favored the acceptance of the bonds in question. It may have so happened in the case at bar. That fact, however, does not permit the council to ignore a valid petition of protest.

It is urged that the eight names appearing upon both petitions should be discarded. The favorable petition not being entitled to consideration, that contention is untenable.

The writ of certiorari is dismissed, and the action of the circuit court is affirmed.

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


author: Stone, J.

text:
    VERNOR v. SECRETARY OF STATE.
    1. Constitutional Law — Automobiles—Regulation.
    The object and purpose of a statute for the regulation, registration, etc., of motor vehicles, cannot be changed by an amendatory act from an exercise of the police power to the exercise of the power of taxation without changing the title of the act. Act No. 181, Pub. Acts 1913.
    2. Same — Title—Object of Act.
    The title must embrace the object of the act and the body of the statute must not be inconsistent with the title; the requirement of the Constitution is that the title shall indicate the purpose of the legislation, that it shall be a fair index of the provisions and shall fairly inform the public of its purposes as a whole. Art. 5, § 21, Constitution.
    3. Same — Motor Vehicle Law — Taxation.
    The amendment of 1913 to the motor vehicle law, Act No. 318, Pub. Acts 1909 (2 How. Stat.' [2d Ed.] §§2487-2504), so changes the character and purpose of the original act by providing for a system of taxation, and requiring the payment of $720,000 to $900,000 to be used for highway purposes and exempting automobiles from other assessments, etc., that the amendatory provisions are not within the title. The courts cannot enlarge the scope of the title. And it is no answer to say that the title might have been.made more comprehensive if the legislature had seen fit to make it so.
    4. Automobiles — Taxation—Regulation.
    Since it imposes a license fee in excess of the cost of registering and identifying motor vehicles, and withdraws automobiles from other taxation, Act No. 181, Pub. Acts 1913, must be construed as a tax law, the fees imposed are excessive and beyond any reasonable amount that might be required as license fees, and the statute takes property from local tax rolls and subjects it to a State tax.

      5. Same — Constitutional Law.
    Nor can it be said that the legislature would have enacted the statute if motor vehicles had been left subject to an ad valorem tax.
    6. Same — License—Statutory Construction.
    Licenses are issued under the police power; if the fee required for a license is intended for revenue its exaction is an exercise of the power of taxation. Nothing in excess of a fee which will defray the necessary expenses of supervision can be imposed under the police power, because it then becomes a revenue measure.
    7. Same — Presumptions.
    It will be presumed that the fee is reasonable, unless the contrary, appears on the face of the law itself or is established by competent evidence.
    Mandamus by James Vernor and another against Frederick C. Martindale, secretary of State, to compel the respondent to accept the license fee for motor vehicles required before the enactment of Act No. 181, Pub. Acts 1913.
    Submitted January 24, 1913.
    (Calendar No. 25,978.)
    Writ granted March 26, 1914.

      Fred A. Baker and Richard L Lawson, for relators.

      Grant Fellows, Attorney General, L. W. Carr, Assistant Attorney General, for respondent.
   Stone, J.

The relators have petitioned this court for a writ of mandamus to compel the secretary of State to grant them licenses for their automobiles for the year 1914, under the provisions of Act No. 318 of the Public Acts of 1909 (2 How. Stat. [2d Ed.] § 2487), alleging, among other things, that Act No. 181 of the Public Acts of 1913, which is amendatory of Act No. 318, is unconstitutional and void. The suit is brought to test the constitutionality of the act of 1913.

Relators, in their petition, claim that the secretary of State should have granted their application because said amendatory Act No. 181 of the Public Acts of 1913 is unconstitutional and void for the following reasons, among others:

(a) That said Act No. 318 of the Public Acts of 1909 (2 How. Stat. [2d Ed.] § 2487), was designed to be and provides for a system of licensing, registration, identification, and regulation of motor vehicles upon the public highways. That Act No. 181 of the Public Acts of 1913 purports to amend said Act No. 318, and provides for a system of taxation of motor vehicles, both specific and ad valorem, thereby changing the entire purpose and object of the law without changing its title.

(b) That the title of said Act No. 181 does not disclose its object and purpose, inasmuch as the body of the act provides in certain cases an exemption from taxation of motor vehicles upon an ad valorem basis; whereas, the original (No. 318) act provides only for the registration, identification, and regulation of motor vehicles, and extends no further.

Act No. 318 of the Public Acts of 1909 (2 How. Stat. [2d Ed.] §2487), bears the following title:

“An act providing for the registration, identification and regulation of motor vehicles operated upon the public highways of this State, and of the operators of such vehicles.”

Act No. 181 of the Public Acts of 1913 has the following title:

“An act to amend sections two, four, five, fifteen and eighteen of act number three hundred eighteen of the Public Acts of nineteen hundred nine, entitled ‘An act providing for the registration, identification and regulation of motor vehicles operated upon the public highways of this State, and of the operators of such vehicles.’ ”

It is the claim of relators that Act No. 318 of the Public Acts of 1909 (2 How. Stat. [2d Ed.] §2487), was designed as a police measure merely, and provided for the registration, identification and regulation of motor vehicles upon the highways, while Act No. 181 of the Public Acts of 1913, which is amendatory of said Act No. 318, provides, in its body, for a system of taxation of motor vehicles, both specific and ad valorem, thereby changing the entire purpose and object of the law without changing its title; that by its terms property that was theretofore exempt, as in the case of motor vehicles owned by cities, is now taxed, and property is exempted that was theretofore taxed on an ad valorem basis, as is instanced in the case of all motor vehicles, except those owned by municipalities. That the legislation upon this subject before 1913 was regulatory in its nature, and was in the exercise of the police power of the State, has been recognized by this court in a number of cases. People v. Dow, 155 Mich. 115 (118 N. W. 745); Johnson v. Sergeant, 168 Mich. 444 (134 N. W. 468); Daugherty v. Thomas, 174 Mich. 371-390 (140 N. W. 615).

That such legislation cannot be changed in its object and character from the exercise of the police power to the exercise of the taxing power of the State without changing the title of the original act must, we think, be conceded.

Section 21 of article 5 of the Constitution provides as follows:

“No law shall embrace more than one object, which shall be expressed in its title.”

What is the constitutional test? We think it is that a title must embrace the object of the act, and the body of the act must not be inconsistent with the title. The pertinent questions should be: Does the title of the act fairly indicate the purpose of the legislation? Is the title a fair index of the act? Does the title of the act fairly inform the legislators and the public of its purposes, as a whole?

In Brooks v. Hydorn, 76 Mich. 278, 278 (42 N. W. 1122), Justice Morse, speaking for this court, said:

“This purpose of the constitutional direction, which has been disregarded in this act, is that the intent of the bill — its object — shall be clearly shown by its title for the benefit, not only of the members of the legislature who are to vote upon it, but also for the benefit of the State outside of the legislature, who are interested, and have a right to be, in all legislation, whether the same be general or special.”

To the same point, we direct attention to the following cases: Callaghan v. Judge of Superior Court, 59 Mich. 610-614 (26 N. W. 806); Wilcox v. Gratiot Probate Judge, 65 Mich. 23 (31 N. W. 609); Eaton v. Walker, 76 Mich. 579 (43 N. W. 638, 6 L. R. A. 102); Davies v. Saginaw County Sup’rs, 89 Mich. 295 (50 N. W. 862); City of Grand Rapids v. Judge of Superior Court, 93 Mich. 469 (53 N. W. 620); In re Snyder, 108 Mich. 48 (65 N. W. 562); Fish v. Stockdale, 111 Mich. 46 (69 N. W. 92); City of Lansing v. Board of State Auditors, 111 Mich. 327 (69 N. W. 723); Blades v. Water Com’rs of Detroit, 122 Mich. 366 (81 N. W. 271); Citizens’ Sav. Bank of Detroit v. Auditor General, 123 Mich. 511 (82 N. W. 214).

It is urged by relators that the title of this act gives no indication that the whole system of taxing a large amount of personal property in the character of motor vehicles was to be changed entirely, and that property that had been theretofore taxed upon an ad valorem basis was to be exempted from the payment of a tax; that the titles of the original act and the amendatory act are the same, yet the bodies of the two acts are utterly, totally, and entirely distinct from each other; that the subjects are not germane to each other; that one is a taxing measure, and the other is a mere licensing or regulatory measure.

This brings us to the question: Has the act of 1918 changed the character of the legislation from a regulatory and licensing measure to one of taxation? The original act of 1909 was an exercise of the police power of the State, and among the regulations imposed on motor vehicles and their owners and operators was the i-equirement that each machine should be registered, and a license for its use on the highways obtained on the payment of a fee of $8. While the word “license” is not mentioned in the title, it is repeatedly used in the body of the act, and is sufficiently covered by the words “registration, identification, and regulation” in the title.

It is the claim of the relators that the amendatory act of 1913 changes the body of the act without changing its original title, and, as the taxes imposed could not have been included in the original act, the amendatory act is invalid, citing People v. Gadway, 61 Mich. 285 (28 N. W. 101, 1 Am. St. Rep. 578); People, ex rel. Stewart, v. Father Matthew Society, 41 Mich. 67 (1 N. W. 931).

It is also claimed that in the construction of statutes, as well as in municipal charters, it is well settled that the power to regulate and license does not include the power to tax, although reasonable license fees (even for the purposes of revenue as a regulation) may be imposed; and the following gases are cited: City of Saginaw v. Saginaw Circuit Judge, 106 Mich. 32 (63 N. W. 985); O’Hara v. Collier, 173 Mich. 611 (139 N. W. 870), and cases cited.

The amendatory act expressly provides that the registration fees paid “shall exempt such motor vehicles from all other forms of taxation,” with this proviso that “motor vehicles in stock or bond,” in factories or garages not dealers in motor vehicles, are not to be exempt from taxes as personal property. It is urged that these provisions give character to the amendatory act, and render its invalidity a certainty, unless the court can strike out the exemption from taxation, and leave the remaining portions of the act in force as a license law pure and simple, that this would be exercising on the part of the court legislative power, as the legislature clearly intended to exempt from other taxation, and that it cannot be said that the legislature would have passed the act with the exemption from taxation omitted, and that it is only where that which is left of the act is complete in itself, sensible, capable of being executed, and wholly independent of that which is rejected, that the act as emasculated can be sustained, citing Callaghan v. Judge of Superior Court, 59 Mich. 614 (26 N. W. 807). This court there said:

“The principal questions in each case will therefore be whether the act is broader than the title; and, if so, then whether the other objects in the act are so intimately connected with the one indicated by the title that the portion of the act relating to them cannot be rejected,, and leave a complete and sensible enactment which is capable of being executed.”

It is well settled that the courts cannot enlarge the scope of the title. The Constitution has made the title the index to the legislative intent as to what shall have operation. It is no answer to say that the title might have been made more comprehensive if, in fact, the legislature has not seen fit to make it so.

The amendatory act of 1913 clearly requires the payment of a sum largely in excess of what will be required for registration and regulation, and for this reason it is contended it must be regarded as a tax law. The expense to the State of furnishing the number and identification plates, and the corps of clerks and employees in the secretary of State’s office in the registration of motor vehicles, the preparing and filing of lists with the county clerks, it is fair to say, will not exceed the old fee of $3. Neither of these acts imposes upon the State any other expense; no duty of policing or patrolling the highways or supervising the use of them by motor vehicles is assumed by the State. The effect of the amendatory act is to take motor vehicles off the annual assessment rolls and tax rolls of the cities, townships, and villages of the State, and to put them on an annual registration list in the office of the secretary of State. Under the amendatory act the registration fees are charged against each motor vehicle, and exempting them from any other taxation shows that the legislature intended to tax them as articles of personal property, the taxes levied against them being in lieu, and to take the place of the taxes to which they would otherwise be subject. This, we think, is obvious and too plain for argument. The provision that automobiles not in use and held “in stock or bond” by factories and garages not dealers in motor vehicles shall not be exempt from taxation as personal property corroborates this view. We think it must be held that the amendatory act taxes as personal property the motor vehicles that are used and operated on the public highways. It makes a class of that kind of property, and the validity of the act must be determined with this basic fact in view.

The amendatory act must also be regarded as a tax law, because the claimed registration fees are excessive and beyond any sums that might be regarded as reasonable license fees. Taking this property off the local rolls, and putting it on a State roll in the office of the secretary of State, is, in our opinion, conclusive evidence that the amended act is a tax law, as distinguished from a police regulation. Can it be said that the legislature would have enacted the statute of 1913 had it left motor vehicles subject to the ad valorem tax? We think not. Yet the legislation can only be sustained on the theory that it would have done so.

Section 15 of the amended act reads as follows:

“All fees paid to the secretary of State as provided in this act shall be turned over to the State treasurer, and applied to the State highway fund, five per cent, of which shall constitute a fund to be used for salaries and running expenses of the State highway department, the remainder to be applied to the building and improvement of the highways of the State under such division of said fund and for such purposes as the highway laws of the State shall provide, to be paid out by the State highway commissioner in accordance with the statutory provisions therefor. Any moneys remaining in either fund at the close of any year shall be carried over by the auditor general and added to the funds which become available for the following year.”

Babbitt, in his work on “The Law Applied to Motor Vehicles,” § 91, says:

“The subject of ‘graded’ license fees applied to automobiles has aroused general interest, and in some States has been adopted as the method of computing the fee to be paid for the privilege of operation. It is therefore necessary to inquire upon what principles of law it depends and what limitations surround their application. In the outset it should appear that this form of excise is primarily for revenue, regulation being incidental. It is usual for the act creating the system to provide that the revenue derived be used for the benefit of the highways, after paying the expenses of its collection and the cost of the incidental regulation of the use of motor vehicles.”

In treating the subject, that author refers to most of the cases cited and relied upon by the attorney general. We have examined the cases, and it may be said of them that no such constitutional question as we are here considering was involved in any of them. In most of the cases it appears that the ad valorem taxation was retained in addition to the license regulation. Were the instant case one where the auto vehicles involved were still subject to taxation upon the assessment and tax rolls, and the sums demanded as license fees were consistent with the,idea of regulation only, in the exercise of the police power, we should have a different case before us. But we are dealing with a case where the enactment, impliedly at least, recognizes the fact that the sums imposed are for taxation, and all other taxation is prohibited.

The State of Ohio has a statute very much like our amendatory act of 1913, with the difference that it contains no exemption from other taxation. The court of common pleas in the case of Janes v. Graves, 15 Ohio Nisi Prius Rep. (N. S.) 17, held the act unconstitutional on the ground that the registration' fees were so high that they should be regarded as taxes on motor vehicles as personal property; and, as the law left such vehicles subject to assessment on the tax rolls, it imposed double taxation in violation of the uniformity required by the Constitution of that State. The opinion is well considered, and many authorities are there cited, to some of which we shall refer later.

In State v. Lawrence (Miss.), 61 South. 975, it was held that while, under its police power, the State has a right to regulate the use of its highways, and compel the registration and numbering of automobiles, so that they may be readily identified, and the regulations enforced, and the expenses incident to such regulation may be imposed upon automobile owners, yet the expense imposed must be a reasonable, proper, and fair exaction, when considered with reference to the object to be attained, and any unnecessary expense works a deprivation of due process, and that a statute making the driving of a car without a license tag a misdemeanor, and providing regulation fees running from $5 to $25, was invalid; it appearing that the expense attached to the licensing of such car would not exceed $1.

It is stated by relators, in their brief, that under the 1909 act, requiring the payment of $3 for each motor vehicle, there were 54,000 motor vehicles registered in 1913, producing $162,000; that in 1914 not less than 60,000 motor vehicles will be registered, if the statute is held valid; and that, at the very low average of $12 each, will produce $720,000, and that, at the more probable average of $15 each, the sum of $900,000 will be produced. We have no definite figures before us in this record; but it may be safely said that the sums imposed by the act will reach far beyond any limit of reasonableness of regulation that has ever been sustained by this court.

A license is issued under the police power of the authority which grants it. If the fee required for the license is intended for revenue, its exaction is an exercise of the power of taxation. State v. Hipp, 38 Ohio St. 199.

In some cases courts have taken notice without proof that the fee exacted was unreasonable. For instance, in North Hudson County R. Co. v. Mayor, 41 N. J. Law, 71, the court declared, as a matter of law, that a fee of $15 for each one-horse car, and $25 for each two-horse car, was unreasonable.

To be sustained, the act we are here considering must- be held to be one for regulation only, and not as a means primarily of producing revenue. Such a measure will be upheld by the courts when plainly intended as a police regulation, and the revenue' derived therefrom is not disproportionate to the cost of issuing the license, and the regulation of the business to which it applies. Littlefield v. State, 42 Neb. 223 (60 N. W. 724, 28 L. R. A. 588, 47 Am. St. Rep. 697); Berry’s Law of Automobiles, § 84, and cases cited; Van Hook v. City of Selma, 70 Ala. 361 (45 Am. Rep. 85); Price v. People, 193 Ill. 114 (61 N. E. 844, 55 L. R. A. 588, 86 Am. St. Rep. 306); Baker v. City of Cincinnati, 11 Ohio St. 534.

Anything in excess of an amount which will defray such necessary expense cannot be imposed under the police power, because it then becomes a revenue measure. In re Guerrero, 69 Cal. 88 (10 Pac. 261); Schmidt v. City of Indianapolis, 168 Ind. 631 (80 N. E. 632, 14 L. R. A. [N. S.] 787, 120 Am. St. Rep. 385); Kansas City v. Grush, 151 Mo. 128 (52 S. W. 286); City of New York v. Railroad Co., 32 N. Y. 261.

It is true that it has been held that what is a reasonable fee must depend largely upon the sound discretion of the legislature, having reference to all the circumstances and necessities of the case. It will be presumed that the amount of the fee is reasonable, unless the contrary appears upon the face of the law itself, or is established by proper evidence. 2 Cooley on Taxation (3d Ed.), p. 1138; Gamble v. City Council of Montgomery, 147 Ala. 682 (39 South. 353); Atkins v. Phillips, 26 Fla. 281 (8 South. 429, 10 L. R. A. 158); Spiegler v. City of Chicago, 216 Ill. 114 (74 N. E. 718); Iowa City v. Newell, 115 Iowa, 55 (87 N. W. 739); State v. Snowman, 94 Me. 99 (46 Atl. 815, 50 L. R. A. 544, 80 Am. St. Rep. 380); Willis v. Standard Oil Co., 50 Minn. 290 (52 N. W. 652); Littlefield v. State, supra.

In determining whether a fee required for a license is excessive or not, the absence or amount of regulatory provisions and the nature of the subject of regulation should be considered, and, if the amount is wholly out of proportion to the expense involved, it will be declared a tax. Berry’s Law of Automobiles, § 84; Ex parte Braun, 141 Cal. 204, 206 (74 Pac. 780). If revenue is incidentally derived which is not so disproportionate as to make the fee charged unreasonable, there can be no objection. Berry’s Law of Automobiles, § 86, and cases there cited; State v. Hudson, 78 Mo. 302.

There are cases holding that, where the law expressly directs that the fund derived from the license fee shall be used for purposes other than defraying the expenses of issuing the license and of regulation, it thereby makes of the fee a tax, and converts what was intended to be a police measure into a revenue law. Berry’s Law of Automobiles, § 87; City of Chicago v. Collins, 175 Ill. 445 (51 N. E. 907, 49 L. R. A. 408, 67 Am. St. Rep. 224); Livingston v. City of Paducah, 80 Ky. 656; Ellis v. Frazier, 38 Or. 462 (63 Pac. 642, 53 L. R. A. 454). But the better rule seems to be that the disposition of the fee will not alone determine whether it is a license or a tax. If, upon investigation, the fee is found to be only sufficient to pay the expense that may reasonably be presumed to arise in the supervision and regulation of the automobile licensed, its disposition should not have the effect of converting it into a tax. State v. Hudson, suyra.

The act we are considering provides for no policing or police regulation. The expense of operating the department, including the furnishing of the lists of owners to the county clerks, will be so inconsiderable, compared with the amount collected, that we must take judicial notice that the great amount of surplus (probably more than half a million dollars) renders the imposition of the license fee or tax so wholly and palpably unreasonable as to invalidate the law as a license measure, and to stamp upon it the intention of imposing a tax instead of a license. The clear purpose of the legislature in exacting so large an amount from the owners of automobiles was to produce a fund for highway purposes under the guise of regulation, which makes it a tax measure which clearly is not covered by the title of the act. The obvious purpose of the amendment in the act of 1913, increasing the fees according to horse power, was to increase that fund. There can be no more labor or expense in registering a vehicle of high horse power than in registering one of low power, and the only reasonable purpose in the graduated fee is the increased revenue. This graduated fee - according to horse power must be held to be a mere guise or subterfuge to obtain the increased revenue. The real and controlling purpose of the legislation of 1913, in our opinion, appears on its face, and is found in section 15, above quoted. In our opinion the act is clearly a tax measure when stripped of its guise, and as a tax measure the object is not embraced in the title, and for that reason alone is unconstitutional.

It is sufficient to dispose of this case to hold that the title of the original act, retained by the amendatory act, contains no indication that the act is to make provisions for the taxation of motor vehicles, other than the regulative fees which may be imposed under the police power. We must therefore hold the act unconstitutional upon this ground alone, which renders it unnecessary for us to consider the further grounds urged.

The mandamus’ should issue as prayed for in the petition, and, as the question is a new and public one, no costs will be imposed upon either party.

McAlvay, C. J., and Beooke, Ostrander, Moore, and Steere, JJ., concurred. Bird and Kuhn, JJ., concurred in the result.

      See, also, Janes v. Graves, 15 Ohio Nisi Prius Rep. (N. S.) 193.

       On the question of the validity of license tax on automobiles, see notes in 1 L. R. A. (N. S.) 215; 21 L. R. A. (N. S.) 41; and 27 L. R. A. (N. S.) 440.