author: Moore, C. J. Ostrander, J.

text:
    PAUL v. BENZIE CIRCUIT JUDGE.
    1. Intoxicating Liquors — Local Option — Board op Supervisors — Counties.
    A resolution of the board of supervisors of Benzie county without such preamble as is required, by law (section 13, Act No. 207, Pub. Acts 1889; 2 Comp. Laws, § 5424; Act No. 183, Pub. Acts 1899), settingup the fact of election, canvass and result, was a sufficient compliance with the ministerial duty imposed by statute, to prohibit the liquor traffic within Benzie county.
    2. Same — Evidence.
    While the defective resolution and preamble, as adopted by the board of supervisors, would not be evidence of the adoption of prohibition under the local-option law, proof of the facts may be made dehors the records of the board.
    3. Same — Appidavit op Publication.
    Nor is the failure of the printer to file with the clerk of the board an affidavit of publication, as required by the subsequent section, a fatal defect.
    Ostrander, Blair, and Stone, JJ., dissenting.
    Mandamus by Marion G. Paul, prosecuting attorney of Benzie county, against Fred S. Lamb, presiding in the stead of the circuit judge for the county of Benzie, to require respondent to vacate an order discharging from custody a prisoner charged with violation of the local-option statute.
    Submitted January 16, 1912.
    (Calendar No. 24,485.)
    Writ granted March 29, 1912.

      Marion G. Paul, in pro. per.

      D. G. P. Warner, for respondent.
   Moore, C. J.

One James Culver was complained of, arrested, bound over to the circuit court, and in the circuit court informed against for a violation as of December 15, 1910, of Act No. 207 of the Public Acts of 1889, as amended. On the first day of the January, 1911, term of said court, the said James Culver was arraigned, and before any plea to the information had been asked for or had been entered, and before any other proceedings had been taken in the cause, the circuit judge quashed the information and discharged the respondent; the said judge being of opinion that the local-option law,” so called, was not in force in said county at the time the alleged offense was committed. Thereafter the prosecuting attorney produced the record of the board of supervisors of said county containing the action of the said board of supervisors with respect to the adoption of the said local-option law in said county, and moved the court to set aside the order discharging the said Culver. This the court declined to do, and the prosecuting attorney applied to this court for an order to show cause why a writ of mandamus should not issue requiring the court to vacate the said order. An order to show cause having been granted and an answer to the petition filed, the matter is before the court upon the said petition and answ.er.

It appears that at a meeting of the board of supervisors of Benzie county, held at the county seat April 12, 1909, the clerk presented the returns from the several townships of the county showing the vote upon the local-option question. The chair appointed a committee on equalization, to which committee, upon motion, the said local-option returns from the several townships were referred for a canvass and report. By the next day, the board being in session, the committee on equalization made a report, which report, together with the action of the board respecting the same, is as follows:

“To the Hon. Chairman and Members of the Board of
Supervisors of Benzie County—
Gentlemen: Your committee, to whom was referred the canvass of the votes upon the question of local-option in Benzie county held at the last annual township election, April 5, 1909, find from the inspectors’ statements from the various townships in said county to be as follows, viz., the whole number of votes cast in the affirmative and negative of the proposition whether or not the manufacture of liquor and the liquor traffic should be prohibited within the county, was two thousand five hundred ninety-nine (2,599) and they were given as follows: Nine hundred seventy-seven (977) votes contained the words, ‘Should the manufacture of liquor and the liquor traffic be prohibited within the county No. ’ One thousand six hundred twenty-two (1,622) votes contained the words, ‘Should the manufacture of liquor and the liquor traffic be prohibited within the county Yes.’ That a majority of six hundred forty-five (645) voted for prohibition within said county of the manufacture of liquors and the liquor traffic, all of which is respectfully submitted.
“Dated Honor this 18th day of April, 1909.
“ J. H. Woodward.
“Harry Lath well. “John L. Chandler.
TABLE OF VOTES.
Townships. Whole Number Votes Cast Yes. No.
Almira..................... 169 120 45
Benzonia............ - 315 299 66
Blaine..................... 125 98 27
Colfax......... - 174 111 63
Crystal Labe_______________ 466 Gilmore ---- 234 256 135 210 99
Homestead................- 375 208 168
Inland .................— 163 119 47
Joyfield- -........ 90 71 16 Labe......................- 48 71 23 19 26
Platte..............-....... 112 67 46
Weldon.................... 348 169 158
2,599 1,622 977

Majority for said proposition 645.

“Moved by Supervisor Worthington, supported by Supervisor Bolton that the board accept and adopt the report of the committee on equalization on the canvass of the local-option vote and also that the board declare the proposition carried in the affirmative. Carried by thefoling ‘ yea ’ and * nay ’ vote: Ayes, Supervisors Gray, McDonald, Smeltzer, Bolton, Woodward, Chandler, Rockwell, Case, Lathwell, Batz, Worthington and Stockhill. Nay, None.
“Resolved: That prohibition within the limit of Benzie county of the manufacture and sale, keeping for sale, giving away or furnishing of any vinous, malt, brewed, spirituous or intoxicating liquors or any beverage any part of which is intoxicating, and to prohibit the keeping of any saloon or any place where such liquors are manufactured or sold or stored for sale, given away and furnished. Moved by Woodward, supported by Supervisor Rockwell, that the said resolution be accepted and adopted. Carried by the following ‘ yea ’ and ‘ nay! vote. Ayes, Supervisors Gray, McDonald, Smeltzer, Bolton, Woodward, Chandler, Rockwell, Case, Lathwell, Batz, Worthington and Stockhill. Nay, None.
“ Moved by Supervisor Woodward, supported by Supervisor Chandler, that the report, canvass and resolution of said committee on equalization be printed in three newspapers within the said county each week until May 1, 1909, the same to be designated by the clerk of this board as follows: Thompsonville, Honor and Frankfort. Carried.”

It also appears that the matter hereinbefore set out was published in the Thompsonville News, the Benzie County Patriot, and the Benzie County Leader three times in the month of April, 1909; the last issue of two of said papers being upon the 29th of April, 1909, and the last issue of the other paper the 80th day of April, 1909. The affidavits showing the publications of said notice were made, respectively, September 17, 1910, September 20, 1910, September 19, 1910. They were thereafter filed by the clerk and were pasted in the record book of the board of supervisors with the other local-option proceedings at the time of filing.

The circuit judge assigned as reasons for quashing the information and for holding that local option, so called, was not in force in Benzie county:

“(a) That there is no resolution declaring that local-option shall prevail and reign in Benzie county, made or adopted by the board of supervisors of Benzie county as required by Act 207 of the Public Acts of 1889 as amended by Act 188 of the Laws of 1899.
“(6) That the pretended resolution found upon the records that are here in evidence does not follow a preamble, as is required by law.
“(c) That the board of supervisors did not designate any newspaper as required by law in which to publish the resolution, and the fact that the same had been passed and adopted in Benzie county.
“(d) That there is no evidence or showing that any publication was ever made as required bylaw. Generally, that there is nothing generally or specifically that there was any undertaking to carry out the law.”

The local-option law, so called, being Act No. 207 of the Public Acts of 1889 (2 Comp. Laws, §§ 5412 et seq.), is entitled:

“An act to prohibit the manufacture, sale, keeping for sale, giving away or furnishing of vinous, malt, brewed, fermented, spirituous or intoxicating liquors, or any mixed liquor or beverage, any part of which is intoxicating, and to prohibit the keeping of any saloon or other place for the manufacture, sale, storing for sale, giving away or furnishing of such liquors or beverages, and to suspend the general laws of the State relative to the taxation and regulation of the manufacture and sale of such liquors in the several counties of this State under certain circumstances; to authorize the qualified electors of the several counties in this State to express their will in regard to such prohibition by an election, and to authorize and empower the board of supervisors of the several counties, after such election, if they shall determine the result to be in favor of such prohibition, to prohibit the manufacture, sale, keeping for sale, giving away or furnishing of any such liquors, or the keeping of a saloon or any other place for the manufacture, sale, storing for sale, giving away or furnishing of the same within their respective counties; and to provide for penalties and rights of action in case of its violation.”

This act, and the amendments made thereto, provide for submitting to the electors of counties the question whether the manufacture of liquor and the liquor traffic shall be prohibited within the county, for a canvass of the votes upon the question by the board of supervisors, and for a determination by the board of supervisors that the vote of the electors was, or was not, in favor of the proposed prohibition. When the vote favors prohibition and the board has so determined and declared, it was formerly, under section 13 of the act of 1889—

“Lawfulfor such board of supervisors in any county having so voted in the affirmative of the proposition, * * * and such board of supervisors is hereby authorized and empowered, to order, by a majority vote of all the members elect, the prohibition within the limits of such county of the manufacture, sale,” etc., “by resolution, adopted at that same meeting of the board, or at a meeting to which the same may be adjourned, not more than ten days after such canvass.”

As amended in 1899, this section of the act provides that, when the board of supervisors shall have determined and declared that a majority of all the legal voters voting on such proposition have voted in the affirmative, “it shall be the duty of such board of supervisors to order the prohibition,” etc., by resolution. In respect to the form of the said resolution of the board of supervisors, the law remains as it was in 1899, and to the following effect:

“ Such resolution shall be spread in full upon the journal of their proceedings and shall set forth in a preamble the fact that an election submitting the proposition of prohibition as aforesaid was duly held in the county; that sufficient returns and statements have been canvassed by them and the result thereof ascertained; that such result was in the affirmative of such proposition, giving the majority, and that the same has been so determined and declared by them. Such resolution of prohibition shall take full effect in such county on the first day of May next following its adoption, and shall not be subject to repeal by the board of supervisors within two years next thereafter.”

It is made the duty of the clerk of the board of supervisors—

“To publish without delay, once in each week until the first day of the next May, in a newspaper published and circulating in such county, to be designated by the board, a copy of the preamble and resolution adopted by the board, as provided by section 18 of this act. * * * Such original affidavit of publication shall be filed with the clerk of the board of supervisors, and he shall spread the same on the records of the board, following the record of the adoption of the resolution of prohibition, and the said clerk shall state next on the record the date when said notice and affidavit of publication was entered for record, and shall then sign the record officially. The record of such resolution of prohibition and the publication of notice, and all duly certified copies thereof, shall be the evidence of the facts therein stated so far as relates to the territory and municipalities within the limits of said county; and the regularity of any proceedings prior to the adoption of such resolution by the board of supervisors shall not be open to question on the examination or trial of any person for the violation of any of the provisions of section one of this act.” Act No. 183, Pub. Acts 1899, §M.

It is also provided that the prohibitory provisions of the act shall take effect and have full force within such county of this State on and after the first day of May immediately following the adoption by the board of supervisors of such county of the adoption of such resolution and upon publication of the notice of the adoption of such resolution. Same act, section 15.

The important question for determination is whether or not the resolution of prohibition set out in the proceedings of the board of supervisors can be held to be a sufficient compliance with the statutory requirements of section 13, supra. An examination of the so-called resolution discloses the fact that it is an excerpt from section 13. Taken as it is verbatim, from the middle of the section, with neither a proper beginning nor end, it clearly lacks the statute formalities, though it is entirely obvious that it was intended to be a resolution ordering prohibition within the limits of Benzie county. This criticism is quite apart from, and independent of, the fact that it wholly lacks the preamble required by section 13. The failure to include in the resolution of prohibition the preamble provided for by this section was held by this court to be fatal to the legislation in the case of People v. Murphy, 93 Mich. 41 (52 N. W. 1042). If, therefore, the situar tion as it exists now is the same as it' was when that opinion was "written (1892), we must hold that the learned circuit judge was correct in determining that the proceedings of the board of supervisors were, in this particular, fatally defective.

Section 13 as it was passed in 1889, and as it stood in 1892, provided that, after the board had determined that the affirmative of the proposition had received a majority of all legal votes cast—

“It shall be lawful for such board of supervisors in any county having so voted in the affirmative of the proposition to so prohibit as aforesaid, and such board of supervisors is hereby authorized and empowered, to order, by a majority of all the members elect, the prohibition within the limits of such county * * * by resolution.”

It will be noted that by this language the legislature of the State delegated the board of supervisors the power to legislate upon this question under certain conditions, i. e., when a majority of the electors had voted affirmatively upon the proposition. In the exercise of this power, it is clear that the board was bound strictly to follow the provisions of the statute under which it acted, and that, in effect, is the holding of this court in People v. Murphy, supra. See, also, Feek v. Bloomingdale Township Board, 82 Mich. 393 (47 N. W. 37, 10 L. R. A. 69). By the amendment to section 13, contained in Act No. 183, Public Acts 1899, the board of supervisors was shorn of its legislative power. It is there provided that, when the canvass shows that a majority of the voters have voted to prohibit—

“ It shall be the duty of such board of supervisors to order prohibition within the limits of such county * * * by resolution,” etc.

The section then provides what the resolution shall contain. No discretion is lodged in the board, no legislative power conferred. Plain and simple ministerial duties are imposed.

Can it be said that, having determined and declared the vital fact that a majority had voted in favor of prohibition, the board could, through carelessness, ignorance, or fraud, in the performance of a ministerial act, thwart the clearly expressed will of the people? We think not. Suppose that, after a majority for prohibition had been duly determined and declared, the board of supervisors should refuse to pass the resolution which they are commanded to do by the express terms of the statute. It is clear that mandamus would lie to compel the performance of this purely ministerial act. The fact that, in attempting to perform, the board, through ignorance or inadvertence, failed to follow the provisions of the statute, cannot be permitted to nullify the whole proceeding and invalidate the election. Madill v. Midland Common Council, 156 Mich. 56 (120 N. W. 355); Bauer v. Township Board of Denmark, 157 Mich. 395 (122 N. W. 121).

Section 17 provides:

“Upon the trial for any violation of the provisions of section 1 of this act, it shall be competent to introduce the record, or a certified transcript thereof, of the preamble and resolution of the board of supervisors of such county, required by section 13 of this act, and such record and transcript shall be the evidence that the provisions of this act are in full force within such county.”

The faulty character of the resolution here under consideration precludes the possibility of its acceptance as evidence of the facts which should have been recited in the preamble. Abundant evidence of those facts exists, however, and we can perceive no reason why proof thereof may not be made outside the record of the resolution.

The foregoing reasoning applies with equal force to respondent’s objection as to the failure to file affidavits of publication. That question was before the court in Madill v. Midland Common Council, supra, and was determined contrary to his contention.

We conclude, therefore, that though the resolution is faulty and fails to comply with the statute requirements, it nevertheless must be considered as effective to accomplish its purpose, which was simply to record the express will of the people which had already been determined and ■declared.

The writ of mandamus will issue as prayed.

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

Ostrander, J.

(dissenting). One James Culver was complained of, arrested, bound over to the circuit court, and in the circuit court informed against for a violation as of December 15, 1910, of Act No. 207 of the Public Acts of 1889, as amended. On the first day of the January, 1911, term of said court, the said James Culver was arraigned, and before any plea to the information had been asked for or had been entered, and before any other proceedings had been taken in the cause, the circuit judge quashed the information and discharged the respondent; the said judge being of opinion that the local-option law, so called, was not in force in said county at the time the alleged offense was committed. Thereafter the prosecuting attorney produced the record of the board of supervisors of said county containing the action of the said board of supervisors with respect to the adoption of the said local-option law in said county, and moved the court to set aside the order discharging the said Culver. This the court declined to do, and the prosecuting attorney applied to this court for an order to show cause why a writ of mandamus should not issue requiring the court to vacate the said order. An order to show cause having been granted and an answer to the petition filed, the matter is before the court upon the said petition and answer.

It appears that at a meeting of the board of supervisors of Benzie county, held at the county seat April 13, 1909, the clerk presented the returns from the several townships of the county showing the vote upon the local-option question. The chair appointed a committee on equalization, to which committee, upon motion, the said local-option returns from the several townships were referred for a canvass and report. By the next day, the board being in session, the committee on equalization made a report, which report, together with the action of the board respecting the same, is as follows:

“To the Hon. Chairman and Members of the Board of
Supervisors of Benzie County—
“Gentlemen: Your committee, to whom was referred the canvass of the votes upon the question of local option in Benzie county held at the last annual township election, April 5, 1909, find from the inspectors’ statements from the various townships in said county to be as follows, viz., the whole number of votes cast in the affirmative and negative of the proposition whether or not the manufacture of liquor and the liquor traffic should be prohibited within the county, was two thousand five hundred ninety-nine (3,599) and they were given as follows: Nine hundred seventy-seven (977) votes contained the words, ‘Should the manufacture of liquor and the liquor traffic be prohibited within the county No.’ One thousand six hundred twenty-two (1,633) votes contained the words, ‘Should the manufacture of liquor and the liquor traffic be prohibited within the county Yes.’ That a majority of six hundred forty-five (645) votes voted for prohibition within said county of the manufacture of liquors and the liquor traffic, all of which is respectfully submitted.
“ Dated Honor this 13th day of April,. 1909.
“ J. H. 'Woodward.
“ Harry Lathwrll.
“John L. Chandler.
TABLE OF VOTES.
Townships. Whole Number Yes. Votes Cast No.
Almira...........-......... 169 120
Benzonia.................. 315 299
Blaine_________ 125 98
Colfax..................... 174 111
Crystal Lake.............. 466 256
Gilmore.................... 234 135
Homestead............ 375 208
Inland.......... — ........ 163 119
Joyfield........ — ......... 90 71
Lake................ 48 23
.Platte...................... 112 67
Weldon.................... 348 _69
2,599 1,622 977
Majority for said proposition 645.
“Moved by Supervisor Worthington, supported by Supervisor Bolton that the board accept and adopt the report of the committee on equalization on the canvass of the local-option vote and also that the board declare the proposition carried in the affirmative. Carried by the following ‘ yea ’ and ‘ nay ’ vote: Ayes, Supervisors Gray, McDonald, Smeltzer, Bolton, Woodward, Chandler, Rockwell, Case, Lathwell, Batz, Worthington and Stock-hill. Nay, None.
“Resolved: That prohibition within the limits of Benzie county of the manufacture and sale, keeping for sale, giving away or furnishing of any vinous, malt, brewed, spirituous or intoxicating liquors or any beverage any part of which is intoxicating, and to prohibit the keeping of any saloon or any place where such liquors are manufactured or sold or stored for sale, given away and furnished. Moved by Woodward, supported by Supervisor Rockwell, that the said resolution be accepted and adopted. Carried by the following ‘yea’ and ‘nay’vote. Ayes, Supervisors Gray, McDonald, Smeltzer, Bolton, Woodward, Chandler, Rockwell, Case, Lathwell, Batz, Worthington and Stockhill. Nay, None.
“Moved by Supervisor Woodward, supported by Supervisor Chandler, that the report, canvass and resolution of said committee on equalization be printed in three newspapers within the said county each week until May 1, 1909, the same to be designated by the clerk of this board as follows: Thompsonville, Honor and Frankfort. Carried.”

It also appears that the matter hereinbefore set out was published in the Thompsonville News, the Benzie County Patriot, and the Benzie County Leader three times in the month of April, 1909; the last issue of two of said papers being upon the 29th of April, 1909, and the last issue of the other paper the 30th day of April, 1909. The affidavits showing the publications of said notice were made, respectively, September 17,1910, September 20,1910, September 19,1910. They were thereafter filed by the clerk and were pasted in the record book of the board of supervisors with the other local-option proceedings at the time of filing.

The circuit judge assigned as reasons for quashing the information and for holding that local-option, so-called, was not in force in Benzie county:

(a) That there is no resolution declaring that local-option shall prevail and reign in Benzie county, made or adopted by the board of supervisors of Benzie county as required by Act 207 of the Public Acts of 1889 as amended by Act 183 of the Laws of 1899.
“ (&) That the pretended resolution found upon the records that are here in evidence does not follow a preamble, as is required by law.
“ (c) That the board of supervisors did not designate any newspaper as required by law in which to publish the resolution, and the fact that the same had been passed and adopted in Benzie county.
“(d) That there is no evidence or showing that any publication was ever made as required by law. Generally, that there is nothing generally or specifically that there was any undertaking to carry out the law.”

The local-option law, so-called, being Act No. 207 of the Public Acts of 1889, is entitled:

“An act to prohibit the manufacture, sale, keeping for sale, giving away or furnishing of vinous, malt, brewed, fermented, spirituous or intoxicating liquors, or any mixed liquor or beverage, any part of which is intoxicating, and to prohibit the keeping of any saloon or other place for the manufacture, sale, storing for sale, giving away or furnishing of such liquors or beverages, and to suspend the general laws of the State relative to the taxation and regulation of the manufacture and sale of such liquors in the several counties of this State under certain circumstances; to authorize the qualified electors of the several counties in this State to express their will in regard to such prohibition by an election, and to authorize and empower the board of supervisors of the several counties, after such election, if they shall determine the.result to be in favor of such prohibition, to prohibit the manufacture, sale, keeping for sale, giving away or furnishing of any such liquors, or the keeping of a saloon or any other place for the manufacture, sale, storing for sale, giving away or furnishing of the same within their respective counties; and to provide for penalties and rights of action in case of its violation.”

This act, and the amendments made thereto, provide for submitting, to the electors of counties the question whether the manufacture of liquor and the liquor traffic shall be prohibited within the county, for a canvass of the votes upon the question by the board of supervisors, and for a determination by the board of supervisors that the vote of the electors was, or was not, in favor of the proposed prohibition. When the vote favors prohibition and the board has so determined and declared, it was formerly, under section 13 of the act of 1889—

“Lawful for such board of supervisors in any county having so voted in the affirmative of the proposition, * * * and such board of supervisors is hereby authorized and empowered, to order, by a majority vote of all the members elect, the prohibition within the limits of such county of the manufacture, sale,” etc., “by resolution, adopted at that same meeting of the board, or at a meeting to. which the same may be adjourned, not more than ten days after such canvass.”

As amended in 1899, this section of the act provides that, when the board of supervisors shall have determined and declared that a majority of all the legal voters voting on such proposition have voted in the affirmative, “ it shall be the duty of such board of supervisors to order the prohibition,” etc., by resolution. In respect to the form of the said resolution of the board of supervisors, the law remains as it was in 1899, and to the following effect:

“ Such resolution shall be spread in full upon the journal of their proceedings and shall set forth in a preamble the fact that an election submitting the proposition of prohibition as aforesaid was duly held in the county; that sufficient returns and statements have been canvassed by them and the result thereof ascertained; that such result was in the affirmative of such proposition, giving the majority, and that the same has been so determined and declared by them. Such resolution of prohibition shall take full effect in such county on the first day of May next following its adoption, and shall not be subject to repeal by the board of supervisors within two years next thereafter.”

It is made the duty of the clerk of the board of supervisors—

“To publish without delay, once in each week until the first day of the next May, in a newspaper published and circulating in such county, to be designated by the board, a copy of the preamble and resolution adopted by the board, as provided by section 13 of this act. * * * Such original affidavit of publication shall be filed with the clerk of the board of supervisors, and he shall spread the same on the records of the board, following the record of the adoption of the resolution of prohibition, and the said clerk shall state next on the record the date when said notice and affidavit of publication was entered for record, and shall then sign the record officially. The record of such resolution of prohibition and the publication of notice, and all duly certified copies thereof, shall be the evidence of the facts therein stated so far as relates to the territory and municipalities within the limits of said county; and the regularity of any proceedings prior to the adoption of such resolution by the board of supervisors shall not be open to question on the examination or trial of any person for the violation of any of the provisions of section one of 'this act.” Act No. 183, Pub. Acts 1899, § 14.

It is also provided that the prohibitory provisions of the act shall take effect and have full force within such county of this State on and after the first day of May immediately following the adoption by the board of supervisors of such county of such resolution and upon publication of the notice of the adoption of such resolution. Same act, section 15.

It is evident that the resolution of the board of supervisors of Benzie county in question here does not comply with the provisions of the law. There is no preamble; there is no resolution of prohibition. And the record of the board hereinbefore set out is the only evidence presented of the fact that the local-option law, so-called, was in force in Benzie county. In People v. Murphy, 93 Mich. 41 (52 N. W. 1042), decided in 1892, it is said with respect to a resolution which lacked a preamble:

“Dealing with the resolution as we find it, it was not sufficient evidence to warrant the court in finding that the act was in force.

It has been suggested that the decision in People v. Murphy is not controlling because, when the decision was handed down, the law (section 13 of the act of 1889) delegated to the board of supervisors the power to legislate upon the question, and in exercising this delegated legislative power the board was bound to strictly follow the provisions of the statute under which it acted; that it is now the duty of the board of supervisors, after an affirmative vote of the electors, to make and enter in the records the required preamble and resolution, and no discretion is lodged with, or legislative power given to, the board. The effect of the suggestion is that the provisions detailing what actions shall follow an affirmative vote of electors are directory merely. It must be clear, I think, although there is language employed in the opinion in Feek v. Bloomingdale Township Board, 82 Mich. 415 (47 N. W. 37, 10 L. R. A. 69), to the contrary, that legislative power was not delegated to the board of supervisors by the original act, and that it never had, and has not now, any legislative power in the premises. The law, and all of it, was made by the legislature. Whether it should be effective in a particular locality was left to the judgment of the people of the locality.

“ The legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, of intends to make, its own action depend.” Locke's Appeal, 72 Pa. 498 (18 Am. Rep. 716).

See, also, Field v. Clark, 143 U. S. 649 (12 Sup. Ct. 495); Attorney General v. Springwells Township Board, 143 Mich. 523, 529 (107 N. W. 87); King v. Insurance Co., 140 Mich. 258, 268 (103 N. W. 616, 6 Am. & Eng. Ann. Cas. 87). And in Feek v. Bloomingdale Township Board, supra, in the headnote it is correctly stated that, when such order (declaring prohibition in force) is made, it is the law that prohibits, and not the board of supervisors.

There are two grounds only upon which the decision of the lower court may be reversed. We must hold either that the provisions of the law for preserving and declaring the vote, and requiring an affirmative preamble and resolution, are directory merely, and that the law becomes effective when an affirmative vote of electors has occurred, or else we must find in the record of the board of supervisors the equivalent, in fact, of what the law requires. Upon the last proposition it seems clear that People v. Murphy, supra, is controlling. It was said in the opinion in that case:

“ It is contended by the prosecution that the court was authorized to take judicial notice that prohibition was in force in Van Burén county. Without passing upon the question of whether it would be competent for the legislature to provide that the resolution or enactment of the board of supervisors be treated as a general law, of which courts may take judicial cognizance, it is sufficient to say that by the very clear provisions of the act in question the legislature negatived any such purpose, but has prescribed what shall constitute the evidence of the fact that the provisions of the law are in force in a particular county.”

Upon the first proposition it is to be considered that it is of the essence of this highly penal statute, indicated clearly by its terms, that the act shall be in effect in a particular locality when, and only when, certain things have been done. A certain record is made conclusive evidence of the fact that the law is and has been properly put in force. According to what theory may the court declare that other and different evidence than the law calls for shall be sufficient ? It would seem that to do so would be to make a law. One prosecuted for disobedience of the law may not, if it has been regularly put in force, inquire into the proceedings for its adoption; but if that which the statute makes conclusive evidence is wanting, why may he not attack the regularity of the proceedings taken to put the law in force ? Can anything be clearer than that the legislature intended that no such attack should be permitted, and that whether the law was or was not in force should be determined by the evidence indicated by the statute ? This court has not permitted minor deviations from the prescribed statute course or technical failure to comply with the provisions of the law to prevent its enforcement. Madill v. Midland Common Council, 156 Mich. 56 (120 N. W. 355); People v. Fisch, 164 Mich. 680 (130 N. W. 341); Bauer v. Township Board of Denmark, 157 Mich. 395 (122 N. W. 121). But unless we are prepared to say that the law is in force in a county on the first of May succeeding a favorable vote of the electors of the county, and that the statute provisions for the canvass of votes, the preamble, and resolution and the publication of the resolution, are unimportant, the law is not in force in Benzie county.

It is still true, although it is now the duty of the board of supervisors to adopt the necessary preamble and resolution, that the legislature has prescribed what shall be the evidence of the fact that the general liquor law is not, and the local-option law is, in force in .a county. Such evidence is not presented in this case, and does not exist. Courts may not hold that legislation is effective in a particular locality upon less evidence than such legislation itself requires.

The writ should be denied, without costs.

Blair and Stone, JJ., concurred with Ostrander, J. Bird, J., did not sit.


source: Caselaw Access Project

author: Blair, J.

license: Public Domain

text:
    BOARD OF EDUCATION OF CITY OF HOLLAND v. VAN DERVEEN.
    1. Eminent Domain — Schools and Colleges— Acquiring Sites —Powers op School Board — Holland Charter — Municipal Corporations.
    Under a charter authorizing the school board of the city of Holland to establish sites for schools and to purchase and procure land therefor, and further constituting the city a school district with corporate name and the usual powers of public corporations,the board of education could maintain proceedings to take private property for a school site.
    2. Same — Parties—Notice.
    A notice given to the owner as of the date of filing the petition was sufficient. One to whom he subsequently conveyed title was not a necessary party and could not oomplain of being brought into the case by supplementary proceedings.
    3. Same — Appeal and Error — Certiorari.
    Assignments of error not discussed in the brief of appellant in certiorari, and argued only in the petition for the writ, will not be considered.
    Certiorari to Ottawa; Padgham, J.
    Submitted January 11, 1912.
    (Docket No. 55.)
    Decided March 29, 1912.
    Rehearing denied June 1, 1912.
    Petition in justice’s court by the board of education of the city of Holland against Engbertus Van Der Veen and another to condemn land of respondents for schoolhouse site. Erom a judgment for petitioner, respondents appealed to the circuit court which affirmed the judgment. Respondents bring certiorari.
    Affirmed.

      Mortimer A. Sooy (Lillie & Osterhous, of counsel), for appellants.

      Diekema, Kollen & Ten Cate, for appellee.
   Blair, J.

The board of education of the city of Hoiland, at its meeting held May 13th, passed a resolution designating and determining the property described in said resolution as a necessary site for a high school building in the city of Holland, and, further, appointed a committee to confer with the owner, Engbertus Van Der Veen, and other owners, if any there were, with a view of agreeing upon the compensation to be paid therefor to him. On the 18th day of May, at a meeting of said board of education, said committee reported that they had taken up the matter with Engbertus Van Der Veen, the owner, and that they could not agree with him upon the price to be paid for said property. Thereupon, and after said negotiations had taken place, a committee was appointed and instructed to commence these condemnation proceedings before the circuit judge, if there be one in the county, a circuit court commissioner of the county, or a justice of the peace of the city of Holland. Said property thus desired by said board of education was vacant property and at that time belonged to, and of record was in the name of, Engbertus Van Der Veen3 one of said defendants. A petition was prepared by said committee appointed by said board of education, May 20th, and filed with a justice of the peace, and said justice thereupon, on said 20th day of May, executed a summons and venire directed to the sheriff or any constable of said county and commanding him to summon eighteen freeholders and to summon Engbertus Van Der Veen, the owner; the return day named in said summons being the 14th day of June, A. D. 1911.

When this petition was filed with the justice and the summons issued directed to Engbertus Van Der Veen, he was the sole owner of record of this property, and there was no record evidence of any kind showing that his son John, or any one else, had any interest therein. Shortly after all these steps had been taken, and on the 23d day of May, a deed was filed with the register of deeds of Ottawa county, wherein and whereby Engbertus Van Der Veen conveyed to his son John A. Van Der Veen a part of this land. Said deed appeared on its face to have been dated and executed on May 15 th in the presence of M. A. Sooy, one of defendants’ counsel, and to have been acknowledged before him on the same day. On the hearing of said cause, however, it developed, and Mr. Sooy made the statement, that, although the said deed from Engbertus Van Der Veen to his son John A. Van Der Veen was dated May 15,1911, it was actually executed on May 23, 1911, and acknowledged before him on May 23, 1911.

A trial was had, and the jury found the necessity and determined the damages and compensation to be paid. The proceedings were affirmed and found regular by Hon. Philip Padgham, circuit judge of Ottawa county, Mich., and the matter taken to this court by certiorari.

Only two questions are argued at length in the brief for defendants:

First. That there is no express authority by statute for a board of education of a city or village to pass a resolution determining, establishing, or enlarging a schoolhouse site, and no such authority can be implied.
Second. That an attempt to agree with John A. Van Der Veen was a condition precedent to the exercise of the right of eminent domain.

First. The authority for condemnation proceedings is found in the city charter of the city of Holland, being Act No. 271 of the Local Acts of 1893, as amended by Act No. 427 of the Local Acts of 1899. Title 30 of said act incorporating the city of Holland is devoted to education. Section 1 provides:

“The city of Holland shall constitute a single school district. Such school district shall be a body corporate, by the name and style of the “ Public Schools of the City of Holland,” and shall possess the usual powers of corporations for public purposes; and in that name may sue and be sued, and purchase, acquire, hold and dispose of such real and personal property as is authorized to be purchased or acquired by this act.”

Section 10 provides:

“The board of education shall have the control and management of the property, interests and affairs of the district, and of the schools organized or that may be organized therein. Said board of education shall have and exercise all the powers conferred upon the district boards and boards of trustees of school districts by the primary school laws of this State. * * * They shall establish and maintain a high school when deemed expedient for instruction in the higher branches of education.”

Section 12 provides:

“The board of education shall have authority and it shall be their duty to designate and establish such number of sites for schoolhouses in the district as may be necessary, and to purchase and procure the lands therefor; and to erect * * * schoolhouses and buildings for the use of public schools,” etc.

Section 12 expressly confers the power exercised in this case. There was no such provision in the Detroit charter, which distinguishes the case of Detroit Board of Education v. Moross, 151 Mich. 625 (114 N. W. 75), from, the present case.

Second. The statute requires that notice must be given to owners or occupants. At the time the petition was filed, Engbertus Van Der Veen was the sole owner, and the proceedings as to him were regular. John A. Van Der Veen having acquired his interest after the filing of the petition, it was unnecessary to treat with him or make him a party to the proceedings. Plumer v. Boom Co., 49 Wis. 449 (5 N. W. 232); Houston v. Traction Co., 69 N. J. Law, 168 (54 Atl. 403); Ft. Wayne, etc., Traction Co. v. Railway Co., 170 Ind. 49 (83 N. E. 665, 16 L. R. A. [N. S.] 537). If, therefore, as contended by counsel for defendants, John A. Van Der Veen was improperly brought into the case by supplementary petition, neither he nor his codefendant has any legal cause for complaint, so far as the point under consideration is concerned.

At page 16 of defendants’ brief appears the following:

“No assignments of error, other than those set forth in the petition for certiorari, have been filed, of course, and, as the most of those were discussed separately in the petition, we have considered this general brief on the main issues sufficient, and will only take up the assignments not discussed in the petition. Those not discussed in the petition are found on page 15 of the record, and are numbers 9, 10, 11, 12, 13, and 14.”

We find no merit in the assignments referred to by number, and must decline to consider those argued in the petition. Carmer v. Hubbard, 123 Mich. 333 (82 N. W. 64); Walker v. Mack, 129 Mich. 527 (89 N. W. 338).

The writ is dismissed, and the judgment affirmed.

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


text:
    NILES v. LEE.
    1. Pleading— Equity Practice— Replication— Judgment— Degree Sustaining Plea.
    The effect of filing a replication to a plea in equity, after a decree sustaining the sufficiency of the plea, is to admit its sufficiency. When issue is taken upon a plea, either in the first instance or after it has been allowed upon argument, if the truth of the matters pleaded is established, the suit is barred so far as the plea extends.
    2. Res Judicata — Equity—Jurisdiction of Real Property.
    Complainant, having submitted to the court of a sister State a cause of action involving realty in Michigan, was bound by the decree of the court finding that there was not partnership in the real estate and that a deed executed by complainant was not obtained by fraud.

    3. Same.
    An injunction of the foreign court will be respected here.

      Appeal from Monroe; Golden, J.
    Submitted January-17, 1912.
    (Docket No. 91.)
    Decided March 29, 1912.
    Bill by William E. Niles against Andrew E. Lee for an injunction and to establish an alleged interest of complainant in certain property. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      William U. Murray, for complainant.

      Charles Scribner Eaton, Frazer, Griswold & Sly-field, Willis Baldwin, and John O. Zabel, for defendant.

       Jurisdiction over suits affecting real property in another State or country, see note in 69 L. R. A. 673.

   Blair, J.

In June, 1909, complainant filed his bill of complaint in the circuit court for Monroe county, in chancery, alleging, among other things, that on or about November 12, 1908, he purchased at a receiver’s sale all of the property of the Toledo, Ann Arbor & Detroit Railroad Company, in the State of Michigan, “ for and in behalf of himself and Andrew E. Lee of Yermillion, South Dakota, jointly”—

“That after and during the months of January, February, and March, 1909, your orator purchased and contracted for the purchase for a railroad, rights of way, etc., from Dundee to Jackson, Mich., as trustees for your orator and said Andrew E. Lee. * * * That on May 1st, 1909, * * * said Andrew E. Lee stated to your orator at that time that he had a good chance to dispose of the properties above mentioned, to the mutual advantage of your orator and himself. .* * * Mr. Lee stated that he would be able to take care of the matter personally alone, and that he would be able to handle the matter more expediently in that way, and that he had already prepared a deed from your orator to himself, which would save him time and trouble of coming to your orator to sign papers when he had the deal closed. * * * Your orator stated to said Andrew E. Lee that before executing any such deed that they should have a contract drawn up so that they would know what their respective rights were, and said Lee said, ‘ I have trusted you five or six months, and now you can’t trust me?’ Your orator stated, ‘Yes; I can if you will give me your word of honor that you will protect me in this matter in the same manner as I have you, and also protect my wife in case of my death.’ And said Lee stated that he would do so. Your orator, relying upon and believing the representations and statements of said Andrew E. Lee, went across the hall with said Andrew E. Lee to the office of a notary public, and executed, acknowledged, and delivered to said Andrew E. Lee a deed, a copy of which is hereto attached marked ‘Exhibit A,’ and made a part of this bill of complaint; that at the time of the execution, acknowledgment and delivery of said deed, and in the presence of said Andrew E. Lee, your orator stated to the notary public who took said acknowledgment and to the witness to the same that said deed was simply a trust instrument between your orator and said Andrew E. Lee. * * * That said Andrew E. Lee, as your orator is informed and believes, and therefore charges the truth to be, previous to May 1st stated to divers persons that he was the sole owner of said lines of railroad in the part heretofore mentioned, and that Mr. Niles would have no more to do with the road, clearly showing that said Lee intended to secure this deed from your orator, not for the purpose of making it convenient for him to close a deal for the sale of the property, but to cheat and defraud your orator out of the same and appropriate it to his own sole use and benefit.”

The bill prayed:

“(2) That he may be restrained from in any manner selling, assigning, transferring, incumbering, or in any manner disposing of the property herein referred to until the further order of this court.
“ (3) That the deed hereinbefore referred to from your orator to said Lee may be by this court declared to be null and void, and that said Lee be required to reconvey the interest conveyed by said deed back to your orator, or that in default of such conveyance on his part that a copy of the decree of the court herein may be recorded in the office of the register of deeds of the counties of Monroe and Washtenaw may have the same effect as such reconveyance.”

The deed executed by “William E. Niles, trustee, and William E. Niles in consideration of Andrew E. Lee assuming the payment of two notes made,” etc., and the payment by Lee of all unpaid installments of the purchase price of the property, conveys—

“ To Andrew E. Lee, trustee, the undivided half interest of said William E. Niles, trustee, and all the right, title and interest of said William E. Niles in and to the right of way and all other property,, whether real or personal, of said the Toledo, Ann Arbor & Detroit Railroad Company, situate in the State of Michigan which property was, on the 12th day of December, 1908, sold by said receivers of said the Toledo, Ann Arbor & Detroit Railroad Company to said William E. Niles and Andrew E. Lee, trustee, and all rights of way purchased by said William E. Niles for a line of railroad from Toledo, Ohio, to Jackson, Michigan, and all interest in or options for such rights of way purchased or contracted for by said William E. Niles.”

The defendant pleaded in bar a former adjudication in the circuit court for Clay county, South Dakota. The plea was sustained, and a decree entered dismissing the bill of complaint. Complainant appeals to this court.

The suit in South Dakota was instituted May 22, 1909, the complaint alleging that the plaintiff, Niles, and the defendant, Lee, on or about the 10th day of December, 1908—

“Formed a partnership for the purpose of purchasing, holding, improving, operating, and mortgaging, selling, and conveying a certain line of railroad known as the Toledo, Ann Arbor & Detroit Railroad located in the State of Michigan, together with the appurtenances, rights, privileges and franchises appertaining thereto, or which might thereafter be secured in connection with said railroad business; that by said copartnership agreement it was provided that the plaintiff and defendant should contribute jointly and ratably their time, skill, labor, and money, so far as might be necessary to carry out the aforesaid purposes of said copartnership, and should cooperate in the care and labors of the business, and that they should share equally in the net profits of said enterprise upon a sale of said railroad property or upon the dissolution of said copartnership;” that, in pursuance of said agreement, they purchased said property; “that on or about the 1st day of May, 1909, the plaintiff and defendant mutually agreed to dissolve said copartnership, and the defendant thereupon offered and agreed to withdraw from the firm and to assign, transfer, and set over to the plaintiff, or to whomsoever said plaintiff might designate, all his, the said defendant’s, right, title, and interest in and to said partnership property, and especially to the property hereinbefore mentioned and described, and terminate said partnership relation if plaintiff would pay or cause to be paid to the defendant the amount of money which he had previously expended in connection with said partnership business; that the plaintiff acted in reliance upon said agreement, and has offered and still offers and hereby tenders to the defendant the total amount of defendant’s expenditures in connection with said business, and said plaintiff is ready, able, and willing to carry out the terms of said agreement, but that the defendant, wrongfully and fraudulently disregarding his said agreement, has refused, and still refuses, to carry out the terms thereof, and to make a conveyance and assignment of his interest in said business, and that defendant wrongfully, fraudulently, and unlawfully now claims to be the sole and absolute owner of the property hereinbefore described, and threatens to sell and convey the same and to convert the proceeds to his own use to the plaintiff’s great damage and injury.”

For a second cause of action, the complainant alleges the' formation of a partnership and the purchase of the property substantially as in the first count:

6t That on or about the first day of May, 1909, the plaintiff was induced to and did make a purported assignment of his interest in the above-described property to the defendant; that said assignment was procured by the defendant by reason of his false and fraudulent representations, to the effect that he desired the same as security for certain obligation of the partnership, for which he was liable, and also for the purpose of enabling him, the said defendant, to negotiate a sale of the partnership property for the benefit of the said copartnership; that the defendant at that time expressly stated and represented to the plaintiff that he would in all things protect the plaintiff’s interests in relation to said property, and would share equally with him in the net proceeds of any sale which he might be able to effect; that the plaintiff relying upon the promises and representations of the defendant, above mentioned, did execute and deliver said assignment, as aforesaid, and for the purposes hereinbefore stated; that said assignment was wholly without consideration, and was executed and delivered, as the said defendant well knew, for the purpose of facilitating the transaction of the partnership business, as aforesaid. That the said defendant wilfully disregarding his aforesaid promises and agreements with the plaintiff, and with the wrongful and fraudulent intent to cheat and defraud the plaintiff, and deprive him of his interest in the assets of said copartnership, now claims to be the sole owner of said partnership property, and threatens to sell and dispose of the same, and to apply the proceeds thereof to his sole use and benefit thereby defrauding the plaintiff to his great damage and injury. * * *
“Wherefore, the plaintiff demands judgment:
“(1) That the said copartnership be adjudged to have been dissolved, and that the defendant be required, by the judgment of this court, to assign and convey to the plaintiff all his rights, title, and interest in and to the above-described property and assets of said copartnership in conformity with the terms of the agreement of dissolution as set forth in plaintiff’s first cause of action herein.
“(2) That if it shall be determined by the court that said copartnership has not heretofore been dissolved that the same be forthwith dissolved by judgment of this court.
“(3) That an account be taken of all of the said co-partnership dealings and transactions from the commencement thereof, and of the moneys received and paid by the plaintiff and defendant, respectively, in relation thereto, and of the value of the time and services of the plaintiff and defendant in and about said copartnership business.
“ (4) That, if necessary, the property of the firm, real and personal, including all claims, rights, and franchises, be sold and the copartnership debts and liabilities be paid off, and the surplus, if any, divided between the plaintiff and defendant according to their respective interests.
“ (5) That in the meantime the defendant may be enjoined from collecting or receiving or in any manner interfering or intermeddling with or mortgaging or incumbering or assigning and disposing of any of the partnership debts, moneys, property, franchises, appurtenances, or other property or effects of said partnership.
“ (6) That a receiver of the partnership moneys, property, credits, effects, rights, and franchises may be appointed with the usual powers and duties.
“ (7) And for such other and further relief as may be just, with the costs of this action.”

Defendant answered the complaint, denying that the parties ever entered into a partnership, setting forth his version of the agreement at length, denying any fraud whatever on his part, alleging that the only assignment made was the deed hereinbefore referred to, which was taken in good faith and for the consideration therein stated, and praying as a counterclaim:

“(1) That the plaintiff’s action be dismissed.
“(2) That the title of this defendant be confirmed in the defendant.
“(3) That the plaintiff and all persons claiming by, through, or under him be forever enjoined and restrained from in any manner interfering with the title of defendant to the property in question and to every part thereof.
. “(4) That the defendant have such further and other relief as the facts considered may seem to the court just and equitable, besides costs of this action.”

Plaintiff filed an answer to the counterclaim, containing, among other paragraphs, the following:

“ The plaintiff denies that he ever intended to or did convey to the defendant his right, title, and interest in and to said railroad property and its appurtenances, but realleges that the assignment or conveyance, mentioned in the complaint and answer herein, was procured from him by false and fraudulent representations on the part of the defendant and in trust for a specific purpose, as set forth in the plaintiff’s complaint herein, and that plaintiff is still the equitable owner of an undivided one-half interest in said railroad property and its appurtenances.”

The cause came on for trial before the court and a jury November 1, 1909. Plaintiff testified as a witness on his own behalf. The jury found a special verdict as follows:

“First. Did the plaintiff, William E. Niles, and the defendant, Andrew E. Lee, in November or December, 1908, form a partnership for the purpose of purchasing the railroad referred to in the complaint in this action ? ” Answer: “No.”
“Second. Was the transfer of the plaintiff, Niles, to the defendant, Lee, of May 1, 1909, of said Niles’ interest in said railroad property merely for the purpose of securing said Lee for obligations for which the said Lee had become liable ? ” Answer: “ No. ”
“Third. Was the said transfer referred to in the last question for the purpose of enabling said Lee to negotiate a sale of said railroad property ?” Answer: “No.”
“Fourth. At the time of the transfer referred to in the foregoing question, did the defendant, Lee, state or represent to the plaintiff, Niles, that he, Lee, would protect the plaintiff’s (Niles’) interest in said railroad property?” Answer: “No.”

The court found the facts as claimed by defendant and in accordance with the special verdict, with the following conclusions of law:

“ (1) That the deed herein referred to, a copy of which is above set forth, is a good and valid deed and transferred to the grantee therein named all the right, title, and in* terest of every kind and nature whatsoever that the said William E. Niles had in the property in said deed mentioned and described individually and as trustee.
“(2) That the defendant is entitled to judgment quieting and confirming his title to all of said property, and a judgment restraining plaintiff from in any manner interfering with the title of the defendant to the property in question, and every part thereof, or in any manner interfering with said property, or any part thereof, and to a judgment dismissing the plaintiff’s complaint and for costs of this action.”

On the 30th day of November, 1909, judgment was duly entered, whereby it was—

“ Ordered, adjudged, and decreed that the deed, a copy of which is set forth in said findings of fact, dated May 1, 1909, executed by the plaintiff under the name of W. E. Niles and W. E. Niles, trustee, to Andrew E. Lee, trustee, and purporting to convey to the defendant under the name of Andrew E. Lee, trustee, the undivided half interest of said William E. Niles, trustee, and all the right, title, and interest of said William E. Niles in and to the right of way and all other property whether real or personal of the Toledo, Ann Arbor & Detroit Railroad Company, situate in the State of Michigan, which property was on the 12th day of December, 1908, sold by Willis Baldwin and Isadora R. Burgoon, receivers of said railroad company, to said William E. Niles and Andrew E. Lee, and all rights of way purchased by said William E. Niles for a line of railroad from Toledo, Ohio, to Jackson, Mich., and all interests in or options for such rights of way purchased or contracted for by the said William E.Niles, was and is a good and valid deed, and the same was executed and delivered for the purpose of transferring and the same did transfer to the defendant, the grantee therein named, all the right, title, and interest of every kind and nature whatsoever that the said William E. Niles individually and as trustee had or owned at that time in the property mentioned and described in said deed.
“And it is further ordered, adjudged, and decreed that the title and ownership of all said property be, and the same is hereby, confirmed in the grantee named in said deed, and the plaintiff individually and as trustee, and all persons claiming or to claim by, through, or under him are hereby perpetually enjoined and restrained from in any manner interfering with said property, and every part thereof, and with the defendant’s possession thereof.”

On April 28th the plea was sustained as to its sufficiency by the circuit judge and 10 days allowed to join issue. On May 8th complainant filed a replication to the plea on the merits.

Complainant’s brief presents two points for our consideration, viz.:

(1) As to the sufficiency of the plea in form.
(2) As to the truth and merits of the plea.

The first question is disposed of by the replication to the plea on the merits (Hurlbut v. Britain, Walk. Ch. 454; Hurlbut v. Britain, 2 Doug. 191; Little v. Stephens, 82 Mich. 596 [47 N. W. 22]; Flagg v. Bonnet, 10 N. J. Eq. 82).

“For it is well-settled that when issue is taken upon a plea either in the first instance, or after it has been allowed upon argument, if the truth of the matters pleaded is established, the suit is barred, so far as the plea extends.” Bogardus v. Trinity Church, 4 Paige (N. Y.), 178. Vide page 195.

Second. As to the merits of the plea. Complainant’s contention, as stated in the brief, is as follows:

“The South Dakota court found there was no partnership, nor would there have been under the laws of Michigan. The foreign court having found there was no partnership, it had no further jurisdiction. The case then resolved itself into a dispute between two individuals over title to real estate in Michigan. It is a primary principle supported by a long line of decisions that, if a suit relates to a mere question of title, it must be tried in the district where the land lies, for, if the subject-matter of the controversy lies without the limits of the court’s control and where its process cannot reach the locus quo, it has no jurisdiction.”

Complainant voluntarily instituted suit in South Dakota, and submitted his rights with reference to the property in question to the jurisdiction of the proper court in that State. The essence of his claim was that the defendant procured from him, by fraudulent and false representations, an assignment of his interest in the property in question, on account of which he prayed to be restored to his rights therein. The defendant answered, denying all of the material allegations of the complaint and also asked for affirmative relief. A full and fair trial was had and all of the material facts were found against complainant’s contentions, and, among others, that no fraudulent representations were made as alleged but the deed was intended to be, and was, a good-faith transfer of complainant’s interest. Complainant filed notice of appeal, but failed to perfect it, and the judgment is a final judgment.

The case presented to the South Dakota court was one proper for equitable cognizance, not only as involving partnership transactions, but also upon the ground of fraud and breach of trust. And, if complainant had succeeded in sustaining his allegations of fraud, he would have been entitled to a decree for a reconveyance, which would have been binding upon the conscience of the defendant. Noble v. Grandin, 125 Mich. 383 (84 N. W. 465); Sullivan v. Kenney, 148 Iowa, 361 (126 N. W. 349); note to Proctor v. Proctor, 69 L. R. A. 673. It logically follows that the decree finding that the deed was not obtained by fraud, but was a valid conveyance, was binding upon complainant.

It is also clear that the -provision in the decree for an injunction is valid as a decree in personam, and should be respected by the courts of other States. Hart v. Sansom, 110 U. S. 151 (3 Sup. Ct. 596); Dunlap v. Byers, 110 Mich. 109 (67 N. W. 1067); Burnley v. Stevenson, 24 Ohio St. 474 (15 Am. Rep. 621).

The decree is affirmed.

Moore, O. J., and Steebb, MoAlvay, Brooke, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


author: Steere, J.

text:
    HOLSER v. SKAE.
    1. Amendment — Justices of the Peace — Appeal from Justice’s Court — Trial—Recoupment.
    A motion to amend defendant’s bill of particulars of his recoupment, made at the trial of an appeal from justice’s court, after due notice to plaintiff who made no claim of surprise, was properly granted, in the discretion of the court, under 3 Comp. Laws, § 10268.
    2. Same — Evidence—Pleadings—Bill of .Particulars.
    In allowing such amendment, tne court did not pass on the competency of the several items of the amended bill of particulars.
    3. Appeal and Error — Recoupment—Directing Verdict.
    The refusal to direct a verdict for plaintiff as to certain items of recoupment claimed by defendant was harmless error, where the jury disallowed the claim.
    4. Set-Off and Counterclaim — Recoupment—Contracts—Open Account.
    In an action for various items of labor and materials furnished on open account, and including the installation of a heating plant, defendant was authorized to recoup his damages for failure to install the heating system in a proper manner, notwithstanding that other items claimed by plaintiff were included in a general claim, under his pleadings, for a balance due.
    5. Same.
    Damages resulting from a breach of a contract may be recouped as of the date of the trial; defendant is not restricted to the time of commencing suit.
    O. Same.
    The evidence as to the alleged breach of contract, being contradictory, raised an issue for the jury.
    7. Same — New Trial.
    A new trial on the ground of newly discovered evidence was properly refused by the trial court who found that it was merely cumulative and would not be likely to change the result.
    Error to Oakland; Smith, J.
    Submitted January 17, 1912.
    (Docket No. 88.)
    Decided March 29, 1912.
    Assumpsit by Louis J. Holser against Edward A. Skae for work and materials furnished by plaintiff to defendant. Defendant gave notice of recoupment. Judgment for plaintiff for $81.79. Plaintiff brings error.
    Affirmed.

      Andrew L. Moore, for appellant.

      human W. Goodenough, for appellee.
   Steere, J.

This action was begun in justice’s court. Plaintiff declared orally on the common counts, especially for goods, wares, labor, and merchandise, filing a bill of particulars charging defendant with items aggregating $5,153.47 and crediting him with payments which left a balance, including interest, of $353.87. One item of charge, which was for “plumbing and heating as per contract,” amounted to $3,151.35. Defendant orally pleaded the general issue and gave notice of set-off and recoupment, especially for damages on account of the plumbing and heating contract, filing a bill of particulars under such notice, consisting of two concrete items, one for increased coal consumption due to plaintiff’s failure to comply with the contract, amounting to $563.50, and one for cost of altering the heating system to conform with the contract, amounting to $150. A trial of the case in justice’s court resulted in a judgment in plaintiff’s favor for the sum of $338.83. The same was appealed by defendant to the circuit court, where a retrial by jury resulted in a verdict and judgment for plaintiff amounting to $81.79. Plaintiff made a motion for a new trial which was denied, after which he removed the case to this court, for review, by a writ of error.

At the commencement of trial in the circuit, the court, against plaintiff’s objection “because of the competency of the items,” permitted defendant to amend his bill of particulars by increasing the item for altering the heating system from $150 to $371.48, previous notice having been given of the proposed motion for leave to amend, with a further itemized statement of the charges comprising the total of $371.48. On allowing the amendment the court said:

“The plaintiff having announced himself, through his counsel, as ready for trial on calling the docket on the first day of term, with full knowledge that the motion has been made, would be pressed, I think he cannot be heard now to object to the amendment.”

Error is assigned on this ruling of the court. Notice had been given of this motion to amend, and no surprise was claimed or objection made to the case proceeding to trial after the motion was granted. The amendment neither surprised plaintiff nor deprived him of any substantial right. The court, in allowing the amendment, did not pass upon the competency of the items. Plaintiff’s right to object to their competency remained unimpaired. That question could be, and was, raised when proof of the items was offered on the trial, with the same force and effect as though they had originally been in defendant’s bill of particulars. The ruling was within the discretionary power of the court, under the statute of amendments, section 10368, 3 Comp. Laws.

Error is assigned on the rulings of the court in admitting in the first instance, refusing to strike out, refusing to give plaintiff’s requests in relation thereto, and leaving to the jury testimony offered by defendant in support, of his claim of recoupment relative to the excessive amount of coal alleged to have been consumed by the heating plant plaintiff installed. The total of plaintiff’s claim was for a balance of $336.07 and interest amounting to $16.80. The only matter disputed and put in issue by defendant was the heating and plumbing contract

There were two distinct items of recoupment urged against plaintiff’s balance by reason of failure to properly perform the contract. One was the cost of altering the heating system to conform with the specifications and make it operate as guaranteed, amounting to $371.48. This the jury allowed and deducted from plaintiff’s full claim, rendering a verdict for the balance in his favor. The other item was for excessive coal used, amounting to $563.50, which they manifestly rejected and disallowed. In view of this result, the ruling of the court was harmless error. It was said in Commercial Bank v. Chatfield, 127 Mich. 407 (86 N. W. 1015):

“ Complaint is made of the refusal of the court to strike out an item of $1,000. It clearly appears that the jury disallowed this item, and, if it was error to deny the defendant’s motion to withdraw this item from the jury, it was error without prejudice.”

The only question in the case decided adversely to the plaintiff was defendant’s counterclaim of recoupment for cost of repairing and altering the heating system to make it conform to the requirements of the contract and work successfully. In behalf of the plaintiff, it is claimed there could be no recoupment, for the reason that this action is to recover a balance due on an open account between the parties and not on a part of the contract; that payments were made and credited from time to time on such open account as a whole, and plaintiff now sues on such account to recover a general balance remaining unpaid. One item of plaintiff’s bill of particulars going to make up his account is this contract for plumbing and heating. He must prove it in order to recover. Defendant’s counterclaim is comprehended in, and connected with, and grows out of, said contract. It is a familiar rule that any damages may be recouped for which a cause of action growing out of the same transaction lies at the time of pleading. Plaintiff cannot defeat a right to recoup on a contract which he must prove in order to recover, by including other items with it in his declaration and making a general claim for balance due on the whole under an open account. Defendant’s pleadings and proofs both limit the contention to the contract.

It is urged that defendant cannot enlarge his claim after action is begun, as he has done by his amended bill of particulars, based on repairs made subsequent to that time, and it is asked if—

“After payment is refused, and suit begun for recovery of the same, whether the defendant can then proceed to demolish the outfit, reinstall it, make his bill as large as he pleases, all of which is contracted after suit is begun for the original claim, and then come in and offset it against plaintiff’s bill ? ”

The performance or breach of the contract must have occurred, and the right to recover for performance, or by recoupment for nonperformance, must have arisen before the action was begun; but the right to recoup does not depend on whether or not the repairs were made either before or after commencement of action. If work was done after, then the actual and necessary cost to complete it would be evidence of damage resulting from its breach and nothing more. Damages by way of recoupment differ from damages by way of set-off in the particular that they are not required to be liquidated. Damages resulting from breach of a contract to a party sued upon it may be recouped and are not restricted to the time of commencing such suit, but to the time of the trial. Martin v. Hill, 42 Ala. 275.

Defendant claimed, and introduced testimony tending to show, that the heating system was improperly installed and the work not according to the contract; that plaintiff promised repeatedly to remedy the defects, and afterwards did some work to that end, but unsuccessfully; that, under plaintiff’s repeated promises, defendant refrained from having others make the necessary alterations until this suit was brought, after which he employed competent men to do it; that, while the material in the system was sufficient and good, it was necessary to do much of the work of installation over again, and, after it had been done according to the specifications of plaintiff’s contract, the plant worked successfully and economically. There was much testimony as to what the trouble was, it being claimed by defendant that the pipes had an improper slant and contained numerous pockets which prevented proper circulation; that the furnace was not put together right, the back grates being in front and front grates at the back, and a general inharmonious installation prevented successful operation. On the other hand, and in direct contradiction of this, it was the contention and testimony of the plaintiff that the system was, in the first instance, perfectly and properly installed by him according to specifications of his contract, that he tested it thoroughly and it operated successfully, and if it subsequently failed to do so it was owing to bad management and improper firing. These questions were square issues of fact properly left to the jury.

Error is alleged on the refusal of the court to grant a new trial on the ground of newly discovered evidence. It was the opinion of the court that this evidence was, in its nature, cumulative, would not in his opinion change the result of the trial, and that the ends of justice did not require setting aside the judgment for that reason. We think his reasons given in relation thereto show that he did not abuse the discretion which he had in the matter.

Taking the record as a whole, we find no prejudicial error in the rulings of the court which require a new trial.

Judgment is affirmed.

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


text:
    GELDER v. WELSH.
    1. Evidence — Secondary Proof of Written Instrument — Bills and Notes.
    Whether a copy of a lost note was admissible in evidence after plaintiff’s witnesses testified to making search for it in places where it was likely to be, was for the trial court.

      2. Same.
    Preliminary evidence that plaintiff gave the note, on which action was brought, to his attorneys, who forwarded it to a correspondent in Detroit, and the testimony of such attorney that he had searched for the note in his safe and in files in his office but oould not find it, and other testimony tending to show diligent effort to find the document, furnished a sufficient foundation as to the loss of such writing.
    a Bills and Notes — Waiver of Protest — Presentment.
    Where a promissory note was not protested at the time it was sent to the place of payment, and defendant, an indorser and secretary of the maker, who was notified of the presentment, wrote requesting an extension of time, stating that he had asked the bank to hold the note until plaintiff replied, defendant knowing that the maker had no funds in the bank with which to pay the obligation, there was evidence for the jury on the question of waiver.
    ■4. Evidence — Letters—Identification.
    Letters which were not properly proved before being admitted in evidence, but later identified, or shown to have been received in due course of mail in answer to previous correspondence, were not erroneously reoeived.

      8. Same — Books—Notice.
    Books of the maker, a corporation, used on cross-examination and offered to show that defendant knew the maker had no funds in the bank to meet the note, were competent.
    Error to Wayne; Hosmer, J.
    Submitted January 17, 1912.
    (Docket No. 106.)
    Decided March 29, 1912.
    Rehearing denied June 1,,1912.
    Assumpsit by Daniel Gelder against Allie R. Welsh upon a promissory note. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Corliss, Leete & Joslyn, for appellant.

      Jackson, Millis, Culver & Griffin, for appellee.
   Steere, J.

This action was brought to recover upon an alleged promissory note, a copy of which, attached to the plaintiff’s declaration upon the common counts, reads as follows:

“ Chicago, III., July 18, 1903.
“November 9, 1903, after date for value received we promise to pay to order of A. R. Welsh $1,000.00 at Chelsea Savings Bank, Chelsea, Mich., with interest at 6% after date till paid.
[Signed] “Chelsea Meg. Co., Ltd.
“A. R. Welsh, Sec’y.
“ J. D. Watson, Treasr.”
Indorsed: “A. R. Welsh.”

Defendant’s plea is the general issue, with a lengthy notice stating that the copy attached to plaintiff’s declaration is not a true copy of a note executed by the Chelsea Manufacturing Company, Limited, on July 18, 1903; that defendant never indorsed a note like said copy; that the note actually executed on that date by said company, purporting to be indorsed by defendant, was never presented and protested for nonpayment; that an automobile was given as collateral security to the note given on that date, which plaintiff subsequently sold, after maturity of said note, realizing the full consideration of the note therefor, which he failed to apply in payment of said note; that plaintiff filed a claim in the United States District Court for the Eastern District of Michigan in bankruptcy against said manufacturing company, making proof of claim under the original note executed on July 18, 1903, fraudulently failing to give credit for the proceeds of the sale of said automobile; that in the first instance, at the time of receiving said automobile as security, said plaintiff only advanced $900 on said note and collateral, and that said note has been fully paid.

In 1903 the Chelsea Manufacturing Company, a limited partnership, was engaged in manufacturing sheet metal novelties and automobiles at Chelsea, Mich. A. C. Wiener, of Battle Creek, was president and chief owner. J. D. Watson was treasurer. Defendant, a mechanical engineer, was secretary and one of the managers. P. W. Strong was agent for the sale of the company’s automobiles in Chicago, and R. F. Beardsley was assisting him. The company was short of funds, and Beardsley, in its behalf, applied to plaintiff in Chicago for a temporary loan to be used in repairing an automobile and promoting sales in his agency. Defendant was in Chicago at the time trying to get said automobile in running order. A loan was finally negotiated, for which a note was given for $1,000 indorsed by Beardsley, and signed by defendant as secretary of the company. It is claimed and denied that defendant also indorsed it personally. The note was also secured by a bill of sale of the automobile, which belonged to the manufacturing company. Plaintiff advanced on said note $900, giving defendant a check for the amount. The original note was payable 90 days from date, and was not paid, but in November, 1903, a renewal note dated July 18, 1903, and payable November 9, 1903, at Chelsea Savings Bank, was sent to the plaintiff, which he kept, retaining, also, the original, for the reason, as he claims, that the renewal note was not indorsed by Beardsley. Neither of these notes was ever paid. Subsequently the Chelsea Manufacturing Company went into bankruptcy. Plaintiff made proof of his claim in that court against the said company, and the same was allowed by the referee in bankruptcy at $750. This case was tried in the circuit court of Wayne county before a jury, a verdict being rendered in favor of the plaintiff for $664.50 on the basis of the amount of said claim as fixed in the bankruptcy court against the Chelsea Manufacturing Company, less dividends paid through the bankruptcy proceedings. This suit is brought to recover on the renewal note. The note itself was not produced in court, the claim being that it was lost while in the hands of an attorney during proceedings before the bankruptcy court. There was no proof that the note was protested when due.

Testimony was introduced under which it was claimed protest had been waived, and it was sought to prove the note by a sworn copy, supported by other secondary evidence. Defendant’s assignments of error chiefly center around rulings of the court in relation to these two questions. It is urged the judgment should be reversed for the following reasons:

(1) That there is no evidence in this record that defendant indorsed the alleged renewal note involved in this case.
(2) That there was insufficient proof of the loss to permit the alleged copies made by Butzel to be admitted in evidence.
(3) That, even if defendant had indorsed the notes, the neglect of plaintiff to have the note protested released defendant from liability.
(4) That the admission of exhibits, letters, ledger of Chelsea Manufacturing Company, showing account with the Chelsea Savings Bank was clearly error, and most prejudicial.

The first three reasons urged are contingent on there being evidence in the record which raised issues on the propositions stated for the trial court or jury to decide.

It was for the court to determine whether secondary evidence of the note was admissible. In Thomson v. Railroad Co., 131 Mich. 95 (90 N. W. 1037), it was said:

“The question whether the loss has been sufficiently proved must be decided by the court at the trial. It is not a question for the jury. Those relying upon a lost document must establish the execution of the document, its loss, and a diligent but unsuccessful search for it in places where it is most likely to be found.”

The court in ruling on the admission of secondary evidence does not necessarily decide the foundation issues of the case presented by the pleadings, though some of them may be directly involved, but, when a copy or other secondary evidence of a document is offered, it presupposes the existence of an original, which would be the best evidence. It must therefore be shown that the original is lost or destroyed, or otherwise beyond the power of the party to produce it, before secondary evidence can be admitted. This preliminary proof of inability to produce an original document is addressed to the trial judge, who decides from such proof whether the evidence offered is the best evidence obtainable. If so, it is admitted, and is for the jury to pass upon.

Plaintiff testified he gave the note sued on, together with the one given when the loan was negotiated, to his attorneys in Chicago to prepare proof of his claim to be filed in the bankruptcy court in Detroit. Mr. Butzel, an attorney of Detroit, testified to receiving such notes attached to the proof of claim from the Chicago attorneys; that he made proper proof of them in the bankruptcy court, left copies there, and was allowed to withdraw the originals; that he cannot find the originals, has no letter or trace of having returned them, has been insistently written to by plaintiff and the Chicago attorneys for them; that, after careful investigation and diligent search and research, he and his brother signed a bond for the lost note in question, he stating in that connection, “My recollection is that they were lost in our office.” Plaintiff testified to having made repeated diligent, but unsuccessful, search and inquiry in every place where the note had been or was most likely to be found, among his own papers, and among the papers of the attorneys in Chicago. This testimony being undisputed, the court was justified in holding that reasonable search had been made and the loss proven. Two copies of the note were introduced in evidence, one of which plaintiff testified he made, with the original before him, at the time proofs were prepared for the bankruptcy court, and one made by attorney Butzel at the time of the hearing before the referee in bankruptcy. Butzel first testified that his copies had been made from the original, and later on that, if not so made, from a copy attached to the proof of claim, which is the copy plaintiff testified was made by him from the original. A compared copy of the note, with oral testimony of the genuineness of the signatures to the original, were before the court with the proof of loss and diligent but unsuccessful search. We think under such testimony the copies were admissible as secondary evidence, to be considered by the jury. Phillips v. Benevolent Society, 125 Mich. 186 (84 N. W. 57).

There was a square issue of fact as to whether or not defendant indorsed the note in question. He denied doing so. Plaintiff testified that he knew defendant’s signature and had seen him write; that the note came as renewal of a former note indorsed by defendant, following correspondence with defendant upon that subject; and that it was not only signed by defendant as secretary of said company, but personally indorsed by him in his own handwriting, identified as such by plaintiff. There was much other testimony in the case bearing directly and indirectly upon that particular issue, which it is not necessary to detail, but was properly for the jury to consider and was submitted to them by the court in a correct and carefully guarded charge.

It is admitted that the note in question was not protested when due, but evidence was introduced showing that it was sent to the Chelsea Savings Bank, the place of payment, and defendant notified that it was presented for payment; that he wrote requesting an extension of time on the note, stating that he had asked the bank to hold it until they heard from the plaintiff “or ourselves to the contrary,” adding:

“We trust, however, we can close matters up this week, but don’t believe it will be in time to take care of the note on the 12th.”

Defendant was secretary and a manager of the company, and knew of its financial affairs He had notice that this note was presented at the place of payment when due, that the company had no funds on hand to pay it and could not pay it, and he asked for time. We think, under such testimony, there was evidence of waiver sufficient to submit the question to the jury under the authorities reviewed in Bessenger v. Wenzel, 161 Mich. 61 (125 N. W. 750, 27 L. R. A. [N. S.] 516).

A quantity of correspondence, mostly between plaintiff and the manufacturing company, was introduced in evidence under objection. Much of this correspondence was dictated by defendant. We do not deem it necessary to review these objections in detail, but conclude that the letters, if not properly proven at the time, were later identified by defendant or the stenographer of the company, or shown to have been received in due course of mail in answer to previous letters. Several letters, not signed by defendant, were shown by the testimony of the stenographer to have been dictated by him. While some of these have slight bearing upon the issues involved, we do not consider them incompetent, as they tended to show the general history of the transaction, and do not appear to contain anything prejudicial to the defendant.

A page of the ledger of the manufacturing company was used by plaintiff to refresh defendant’s recollection when examining him as a hostile witness, and, after being identified by him, was introduced in evidence for the purpose of showing his knowledge of the financial condition of the company and the fact he knew it had no money in the Chelsea. Savings Bank to meet the note when due and presented for payment. For that purpose we consider its admission was not error. Defendant was a manager of the company, acquainted with its financial condition, assisted in the endeavor to raise money for it, and asked for an extension of time on its paper.

The issues involved in the case were submitted to the jury under a full and careful charge, explaining the principles of law applicable to such issues, and we find in the record, taken as a whole, no prejudicial error.

Judgment is affirmed.

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