text:
    PEOPLE v. NORMAN.
    Intoxicating Liquors — Sunday Opening — Criminal Law.
    A saloon which is accessible on Sunday from the living apartments of its proprietor, and used by boarders as a means of egress, is open in violation of the Sunday closing law.
    Exceptions before judgment from Delta; Stone, J.
    Submitted June 17, 1909.
    (Docket No. 123.)
    Decided July 15, 1909.
    Henry Norman was convicted of violating the liquor law.
    Affirmed.

      Gummiskey & Spencer, for appellant.

      John 13. Bird, Attorney General, and A. H. By all, Acting Prosecuting Attorney, for the people.
   Montgomery, J.

The respondent was convicted of the offense of keeping his saloon open on Sunday. The people offered testimony showing that the saloon was open on that day, and that a number of people were in the saloon, and that some person was behind the bar dispensing liquor to those assembled. To meet this case, the respondent testified that he himself was not in the saloon, and that he had but one man in his employ as bartender, Oscar Johnson, who was also called, and testified that he was not in the saloon on that day. The respondent, on cross-examination, testified to the arrangement of his saloon as follows:

“This building that I occupy as a saloon is a long, narrow building, and faces on Ludington street, with the main entrance on Ludington street. There is a partition a little ways back in the building, about six feet from the front door. Back of that is the bar. There are no stoves, chairs, or tables in the barroom. Beyond the back of the bar there is a partition again. Then there are tables, chairs, and a stove. From there the stairs run upstairs. Back of this second room is where I lived, on the ground floor. The barroom enters into this room where the chairs and tables and that sort of stuff are. The side door goes right into the barroom. If you wanted to go upstairs, you would come from the west side into the barroom, and step out into the other room, if you wanted to go upstairs. I kept boarders and roomers upstairs. The dining room was downstairs on the other side of the stairway. Back of the dining room there is a bedroom, where I lived. The next bedroom is my bedroom, and back of that to the north is the kitchen, so that between my bedroom and the barroom was the big room and the stairway. Then there is the dining room and the kitchen, and then my bedroom. Dr. Groos and Dr. Fenelon were there on that Sunday. My wife died on February 7th. I was not out of the building at all on that day. I slept in the same room where my wife was sick. I was in her bedroom and in the other part of the house, but not outside that day. I took my meals in the kitchen. I didn’t go to the dining room to eat anything, and I was not upstairs that day. I was not in the room where these chairs, tables, and stove are or in the barroom. My wife had been sick for about a month and a half before. I had been going about my business in the ordinary way, but this particular Sunday I stayed in that room all day. This bartender had a key to the front door. On this side door I have an iron bar put across. I didn’t have any key for the side door. I had boarders, and the only way they could get out was to go down through this room and out through the barroom. That day, of course, my wife was sick, and I don’t know where they were keeping themselves. At that time I had at least two boarders. They stayed there the night before. I got a snap lock on the door that goes up the stairway, so that we can go in that way to and from the stairway, right from the dining room into the stairway. There were three outside doors on the west side. One is for the saloon, one is for the stairway, right into the dining room, and then one for the kitchen; and they are all on the west side.

“Q. But the general way of going out was through the barroom and out. That was the usual way ?

“A. To go into the barroom. The side door, the first door, on the west side goes into the barroom. The second door goes for the upstairs and for the dining room, and into this back room. ”

The circuit judge, while not directing a verdict for the people, stated that the case made by the prosecution had not been met by the proof offered on the part of the defendant. There was no error in this if the facts, taken as a whole, show that the saloon was not kept closed on that day. See People v. North, 153 Mich. 612 (117 N. W. 63). It is the settled law in this State that the proprietor of a saloon must see that it is kept closed on Sunday and during certain hours of the night. See People v. Waldvogel, 49 Mich. 337 (13 N. W. 620); People v. Cummerford, 58 Mich. 328 (25 N. W. 203); People v. Cox, 70 Mich. 247 (38 N. W. 235); People v. Hughes, 97 Mich. 543 (56 N. W. 942); People v. Schottey, 116 Mich. 2 (74 N. W. 209).

Reading the testimony of the respondent in the present case, it is apparent that this room connecting with the barroom and between which and the barroom there was no door fastened was the usual means of egress of the boarders. In other words, that it was open and accessible to any of the boarders and employes. It is true the testimony tends to show that the side door was kept fastened by a bar, but the access to this room from the other rooms of the building is not shown by the testimony to have been cut off. If it was open so that these boarders and employés could go into the room, it was not kept closed within the meaning of the law as laid down in the cases cited above. The court was therefore not in error in saying to the jury that the testimony of the respondent had not overcome the testimony offered by the people.

The conviction is affirmed.

Blair, C. J., and Grant, McAlvay, and Brooke, JJ., concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    PERE MARQUETTE RAILROAD CO. v. KALAMAZOO, LAKE SHORE & CHICAGO RAILWAY CO.
    Taxation — Railroads—Statutes.
    A lessee who agrees to pay the taxes for 1907 on railroad property, under a provision that the lessee should pay all taxes for the year and should be repaid that proportion based on the part of the year prior to April 15,1907 (the date of the lease), may not recover in set-off, a proportion of the tax from July 1, 1906, to April 15, 1907, on the theory that the statute creates a fiscal year from July 1, 1906, to June 30, 1907, but may be reimbursed such proportion only as would be based on a calendar year, the tax being levied for the year 1907.
    Error to Kalamazoo; Knappen, J.
    Submitted June 18, 1909.
    (Docket No. 53.)
    Decided July 15, 1909.
    Assumpsit by the Pere Marquette Railroad Company against the Kalamazoo, Lake Shore & Chicago Railway Company upon an account stated. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      Osborn & Mills, for appellant.

      McPherson, Bills & Streeter (Boudeman, Adams & Weston, of counsel), for appellee.
    This case, an action in assumpsit, was tried before the court without a jury upon stipulated facts. The facts material to the single question involved are these: On March 23,1907, plaintiff executed to the defendant a lease of that portion of its road lying between South Haven and Lawton for a period of 25 years. The lease took effect April 15, 1907, and, after providing that the lessee should pay the taxes during its life, it contains the following clause:
    “As to the taxes on the leased property for the year 1907, payable in May, 1908, the lessee shall, in the same case, pay the full amount thereof to the proper public authorities, but shall be reimbursed by the Pere Marquette a pro rata portion thereof to cover the period of 1907 prior to the taking effect of this lease.”
    On April 30, 1908, defendant paid the taxes, $4,405.59. These taxes were spread upon the rolls in February, 1908. Plaintiff claims that it is liable only for its proportion of the taxes from January 1, 1907, to April 15, 1907. Defendant claims that plaintiff is liable for the taxes from July, 1906, to April 15, 1907. The circuit judge held in favor of plaintiff, and'entered judgment accordingly.
   Grant, J.

(after stating the facts). The statute (1 Comp. Laws, § 50, subd. 10) provides that—

“The word ‘month,’ shall be construed to mean a calendar month; and the word ‘year,’ a calendar year; and the word ‘year’ alone, shall be equivalent to the words ‘ year of our Lord.’ ”

The lease contains no language to indicate that any other time than the calendar year 1907 was intended. The learned counsel for defendant bases his contention upon the language of section 6, Act No. 282, Pub. Acts 1905, providing for the assessment and collection of taxes of railroad and certain other corporations. That section reads as follows:

“Sec. 6. The several corporations enumerated in this act, doing business in this State, shall annually, between the first day of July and the thirty-first day of August in each year, under oath of their president, secretary, treasurer, superintendent or chief officer of such company, make and file with the State board of assessors, in such form as said board may provide, upon blanks to be furnished by said board, a statement containing the following facts,” etc.

It then provides that such statement by railroad companies shall contain a description of its real and personal property, the value thereof, and certain other things unnecessary to mention. Counsel insists that the statute contemplates á fiscal year extending from July 1st to June 30th. This contention cannot be sustained. The sole purpose of this statement is to furnish information to the assessing officers as a basis for the assessment of the calendar year in which it is made. By section 13 of the same act it is the duty of the State board of assessors not later than the 15th of January to review the assessment, determine the cash value of the property, and correct its computation of the average rate as therein provided. By section 14 it is the duty of said board to fix the amount of the tax and extend it upon the assessment roll, and by the same section the taxes are made payable on the first day of April following. Our entire tax law provides for taxes for each calendar year. This was true of corporations when they paid specific taxes. By Act No. 173, Pub. Acts 1901, these specific taxes were abolished, and railroad corporations brought under the ad valorem system. Section 17 of that act expressly provided that the first assessment under it should be made in 1902, and that the law as to specific taxes should continue in force for the collection of the specific taxes “for the year nineteen hundred and one and previous years.” Section 6 of that act and section 6 of the act now under consideration are identical in language. The act of 1901 clearly did not provide a fiscal year from July 1st to June 30th. It provided a calendar year as determined by the statute. It is also significant that the taxes for one year are not fixed or payable until the first of the following year.

The judgment is affirmed.

Blair, C. J.s and Moore, MoAlvay, and Brooke, JJ., concurred.


text:
    SKUTT v. IONIA CIRCUIT JUDGE.
    Equity Practice — Injunction to Stay Action at Law —Statutes.
    No bond is required by 1 Comp. Laws, § 507, before issuing an injunction to stay proceedings at law for the recovery of the possession of lands, until after verdict.
    Mandamus by Henry Skutt to compel Frank D. M. Davis, circuit judge of Ionia county, to vacate a temporary injunction.
    Submitted June 22, 1909.
    (Calendar No. 23,448.)
    Writ denied July 15, 1909.

      Smedley & Corwin, for relator.

      B. A. Hawley, for respondent.
    Relator became the purchaser at foreclosure sale of certain lands the title to which, when the mortgage was given November 1, 1880, was in Jude R. Spencer. After the mortgage was given, Mr. Spencer and his wife conveyed the title to a third party, who reconveyed the same to Mr. and Mrs. Spencer and their son, Charles, as joint owners of the entirety, with full rights of survivorship. The mortgage which was executed by Mr. and Mrs. Spencer was foreclosed by advertisement, and the proceedings are conceded to be regular. Mr. Jude R. Spencer had died before the foreclosure proceedings. The time of redemption having expired, the sheriff’s deed given upon the sale became absolute September 80, 1908. Relator demanded possession of the premises, which was refused. On February 5, 1909, he commenced summary proceedings to recover possession of the premises before a circuit court commissioner, making the widow and the son, Charles, defendants. On the return day the case was adjourned by consent to February 23, 1909. On February l?th of the same month the defendants Sarah and Charles filed a bill in chancery, making relator party defendant thereto, asking that the foreclosure sale be set aside, and that they be allowed to redeem from the mortgage, and that the suit at law be enjoined. The court granted an injunction, without requiring a bond to cover damages and costs in case the final decision should be against them. The relator answered, denying all the material allegations in the bill. The sole defect in the foreclosure proceedings relied upon in the bill is that the land, which constituted three parcels, was sold in one body, and not in three parcels. The claim of the relator is that the land constituted one small farm, and that the sale as one parcel was legal. Relator moved to dissolve the injunction because no bond was given, as was required by the statute. This motion was denied. Relator then made a motion to set aside the order denying the first motion, which was likewise denied. Relator now asks the writ of mandamus to compel the respondent to vacate said order, and to dissolve the injunction.
   Grant, J.

(after stating the facts). The statute controlling the issuing of injunctions to stay suits at law is section 50?, 1 Comp. Laws, and reads as follows:

“No injunction shall issue to stay proceedings at law, in any action for the recovery of lands, or the possession thereof, after verdict, unless the party applying therefor shall execute a bond, with one or more sureties, to the plaintiff in such action at law, in such sum ag the circuit judge or officer allowing the injunction shall direct, conditioned for the payment to the plaintiff in such action, and his legal representatives, of all such damages and costs as may be awarded to them, in case of a decision against the party obtaining such injunction.”

The respondent contends that this statute does not require a bond prior to the issuing of an injunction to enjoin suits at law before verdict.

Were it not for the decision of Jenness v. Smith, 58 Mich. 280 (25 N. W. 191), wherein the court said: “We are not informed by the printed record what steps were taken to give the security, without which proceedings at law cannot be enjoined. The statute is imperative”— we should not hesitate to construe the statute as applicable only to a case where a verdict had been rendered. An examination of the briefs in that case shows that the point was not raised, and that the case was decided upon other points. We must therefore hold that it was dictum. The punctuation in the statute, which places a comma after “lands,” and another after “thereof,” clearly indicates that the words “after verdict ” apply to both actions for recovery of lands, and to actions for the possession thereof. There is no good reason for supposing that the legislature did not intend to apply the words “after verdict ” to both actions. Neither is there any good reason for providing that it should apply to one case and not to the other. We are therefore constrained to hold that the statute does not apply to suits for recovery of land before verdict.

The writ must therefore be denied.

Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.


author: Blair, C. J.

text:
    McQUATER v. WAYNE CIRCUIT JUDGE.
    Mandamus —Equity Practice — Dissolution of Temporary In- . junction — Conolusiveness of Return to Writ.
    The dissolution of a temporary injunction, on the coming in of the answer to a bill in chancery, will not be vacated in mandamus proceedings, in which the trial judge returned that he exercised his judicial discretion, and that the answer denying the averments of the bill seemed to the court the more probable.
    Mandamus by James McQuater to compel Henry A. Mandell, circuit judge of Wayne county, to vacate an order dissolving a temporary injunction.
    Submitted June 22, 1909.
    (Calendar No. 23,318.)
    Writ denied July 15, 1909.

      Walter E. Martin, for relator.

      Joseph T. Belanger, for respondent.
   Blair, C. J.

Relator filed his bill of complaint in the Wayne circuit court, in chancery, against Fred W. Malone as defendant, alleging, in brief, that the parties, on July 25, 1908, entered into a copartnership in the laundry business by verbal agreement, whereby complainant put into the business his experience “as an expert machinist and builder of laundry machinery, and also agreeing to and giving his entire time and attention to said business, and said defendant agreed to and did bring into said business the machinery and fixtures necessary to carry on said business ;” that complainant acquired by said agreement a one-half interest in said business, and was to share equally in the profits and bear one-half the losses thereof; that the parties did business under the agreement until February 2, 1909, when defendant refused to recognize complainant further as a partner, and employed a man to take charge of the business; that complainant never drew more than $5 per week from said business, although he was earning theretofore at his trade $20 per week; that defendant refuses to account to complainant, and has informed him that he is going to sell the said machinery and fixtures; and that complainant is in danger of losing the' amount due him from said business. The bill prays for an accounting, a temporary injunction, and a receiver. A temporary injunction was issued, reserving the right to the defendant to move to modify or dissolve it. Defendant filed his answer, and moved to dissolve the injunction. The answer is under oath, and denies every material allegation of the bill. As to the verbal agreement for a partnership, the answer avers that, about June 25, 1908, complainant approached defendant with a proposition to purchase certain laundry machines and equipment, and to start a laundry, representing that he would obtain $250, and that they would purchase said machines and start said laundry together; that, relying upon this representation, defendant, on June 26,1908, purchased the machines for $250, and took a bill of sale thereof in his own name; that complainant never produced the $250, or any part thereof; that, on or about July 25, 1908, defendant rented a two-story brick building, and employed complainant to take charge of his engine, boiler, and washing machines, agreeing to pay him therefor the sum of $5 per week, and to give him, rent free, the use of three rooms on the second floor of said building and his artificial light and heat free; that complainant worked for defendant under said agreement till February 8, 1909, when he left defendant’s employ voluntarily; that defendant paid all of the expenses, and put in the entire capital of the business; that defendant told complainant, during the entire period of his employment, that he would give him, at any time he should put in capital, an interest in the business in proportion to the amount he should invest, and complainant repeatedly told defendant he was going to put in money, but never did; that defendant is an expert machinist of 22 years’ experience, capable of operating laundry machinery, and gave his entire time to the business, frequently working 18 and 19 hours a day.

The circuit judge dissolved the injunction, and complainant applies for a writ of mandamus to compel him to vacate such order and reinstate the injunction, alleging that in entering such order the respondent “in no way exercised his discretion in making said order, but, himself referring to the case of Goldman v. Manistee Circuit Judge, 155 Mich. 47 (118 N. W. 600), stated that he was bound by this decision, and on the strength of said decision granted an order dissolving the injunction;” that, on the hearing of the motion to dissolve, complainant “agreed to consent that the injunction be modified so that defendant would merely be restrained from selling, or otherwise disposing of, the machinery used for carrying on the laundry business;” and, further, that complainant would lose all his protection from loss if the injunction were dissolved.

Respondent in his return admits that he did state that, in his opinion, the decision in the Goldman Case—

“Applied with equal force to the facts in the case before him, and that, independently of the equities and other features in the said case before him, said decision made it incumbent upon him to dissolve said injunction, but that he exercised his discretion in making said order, and, before making same, he entered into a discussion of the merits of the case with the said solicitors for the respective parties, and heard, considered, and discussed the contentions of said McQuater’s solicitor, the same as set forth in his brief filed herein, and, in view of the fact that said McQuater never put any money into the partnership alleged by him to exist between him and said Malone, and never contributed any money to meet the expenses of operating and maintaining the laundry alleged by him to be the subject of said alleged partnership; and the terms of his alleged partnership agreement make no mention of the contribution of cash necessary to conduct the laundry, pay the rent of the premises occupied by it, and the expenses of starting and running it; and the fact that the alleged contribution by McQuater of his expert knowledge of laundry machinery and his entire time and attention to the business is equalized by the allegation of Malone that he, too, is an expert machinist, and that he has given his entire time and attention to said business; and the fact that Malone equipped said laundry with all the machines and equipment used by it entirely at his own expensa, and that said laundry represented, at the date of his answer, an investment on his part of the large sum of $1,177.58; and the belief of your respondent that the acceptance by McQuater from Malone of the süm of $5 per week, and the free use of three rooms and artificial light and heat for his services shows that there was no partnership between them, and, particularly under the circumstances alleged in said answer, is not inconsistent with said Malone’s denial of the existence of a partnership — your respondent is of the opinion that the theory and contention of McQuater are not so probable as those of Malone, and that it is unreasonable to suppose that said Malone, entirely at his own expense, would have started said laundry, equipped it, and operated and maintained it this long period of time if he was not the sole owner of said laundry, and its business and all the machines and equipment used by it, or that said Malone would have started said laundry under a partnership agreement with said McQuater without any provision made for operating and maintenance expenses, or without any obligation or agreement on the part of said McQuater to furnish his share thereof, and without the knowledge and certainty that said McQuater had the necessary money so to do, and, being of such opinion, and exercising his discretion in the matter, your respondent accordingly made the said order dissolving the said injunction.”

We must accept the return of the respondent that he did exercise his discretion in dissolving the injunction, and we are satisfied that there was no such abuse of discretion, if any, as to warrant us in ordering the injunction reinstated. Grand Rapids Electric R. Co. v. Calhoun Circuit Judge, 156 Mich. 419 (120 N. W. 1004).

Grant, Montgomery, Ostrander, and Hooker, JJ., concurred.


author: Brooke, J.

text:
    BARENDSEN v. WILDER.
    Brokers — Evidence—Trial—Error in Indicating to the Jury the Opinion of the Court.
    In an action for commissions, wherein the broker testified that he sent a purchaser to the defendant, testimony that the broker had, after the sale, stated to the defendant that he did not know the purchaser, tends to contradict the plaintiff and renders the charge of the court erroneous in that he indicated to the jury his opinion that the evidence of the plaintiff was undisputed.
    Error to Kent; Perkins, J.
    Submitted June 23, 1909.
    (Docket No. 100.)
    Decided July 15, 1909.
    Assumpsit by Benjamin F. Barendsen against Edward M. Wilder for a commission on the sale of certain real estate. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed.

      Maher & Barnard, for appellant.

      McKnight & McAllister and Horace L. Barnahy, for appellee.
   Brooke, J.

Plaintiff recovered a judgment for $27.50 in justice’s court for Kent county, against defendant, as a commission upon the sale of a piece of real estate. The defendant appealed the case to the circuit court, where a trial by jury was had, resulting in a verdict and judgment of no cause of action. The plaintiff then moved for a new trial, which was granted. The third trial resulted in a verdict for plaintiff for $27.50, upon which judgment was entered. This judgment is now here for review.

After the trial judge had submitted the caseto the jury, and it had deliberated for some time thereon, it was brought into court by the learned judge (apparently upon his own motion), and the following additional charge was given:

The Court: Gentlemen, what seems to be the difficulty ? Do you require any further instructions in this case ?

The Foreman: There has not been any asked, your honor, in any way.

The Court: No further instructions have been asked?

The Foreman: No; not yet.

_ ‘e The Court: I do not see why you take such a long time in deciding it. It is a simple question. You must consider the interest of the parties, and I cannot understand why you were so long in determining this case unless it was because some of you need some further instructions.

“The facts are that this property was placed in the plaintiff’s hands to sell, not exclusively, but to sell or to secure a purchaser therefor, and the simple question is whether or not this man Armstrong, who testified in behalf of the plaintiff, went to Mr. Barendsen’s office in response to an advertisement, and was sent by Mr. Barendsen to the defendant’s home, and was left to negotiate with the defendant for the purchase of these premises. That is all there is to it.

“The defendant testified that Armstrong, when he came to his house, told him that Mr. Barendsen had not sent him. These two ladies, the wife of the defendant and the other lady, testified to substantially the same thing. I told you that that testimony only bore upon the credibility of Armstrong’s testimony. It is not substantive proof. It would be wholly inadmissible except as bearing upon the credibility of Armstrong’s story. It would not make any difference to Barendsen, the plaintiff, what Mr. Armstrong might have believed Armstrong said. _ The question is: Did Armstrong go there under the direction of the plaintiff ? That is all there is of it.

“ Now, if you find any testimony in the record to the contrary of the plaintiff’s assertion, why, you are at liberty to find it; but, if you cannot, then you are bound to take the testimony as it stands. You examine this evidence and find wherein or whereby there is any testimony to the effect that Armstrong did not go to Wilder’s house under the direction of the plaintiff. If you find there is any such testimony, then you can consider it; but, if you find there is not any such testimony; your duty is plain.

“You may retire with the officer.”

To which charge the defendant excepted. The defendant assigns error upon this action of the circuit judge. The record shows that the defendant testified as follows:

I told Mr. Barendsen before the papers were made out that the property was sold, and I showed him the $25 that I got down. I told him who I sold it to.

“Q. Did he at that time say anything about Mr. Armstrong or his wife being the customer ?

"A. He said he did not know the man.”

This is certainly testimony tending to contradict the plaintiff’s assertion that he knew Armstrong, and had sent him to defendant’s place. Its value as evidence should have been determined by the jury under proper instructions. We are of the opinion that the last paragraph of the charge above quoted must have carried the conviction to the minds of the jury that, in the opinion of the court, there was no testimony in the record contrary to the plaintiff’s assertion. This was error. See Cronkhite v. Dickerson, 51 Mich. 177 (16 N. W. 371); Letts v. Letts, 91 Mich. 596 (52 N. W. 54); Valin v. McKerreghan, 104 Mich. 213 (62 N. W. 340).

Judgment reversed, with costs, and a new trial granted.

Ostrander, Hooker, Moore, and McAlvay, JJ., concurred.


text:
      In re RICE’S ESTATE.
    1. Certiorari — Appeal from Probate — Trial de novo — Return ■ to Writ.
    Allegations of a petition for the writ of certiorari that an appeal from probate was not heard and tried de novo are conclusively answered by the return disputing the allegations.

      2. Executors and Administrators —Estates of Decedents — Cause for Removal.
    Failure of an executor, for two years, to account, coupled with his change of residence to another State, and withdrawal of funds of the estate from the jurisdiction, warrant his removal, which is not precluded by any estoppel arising from the fact that the party asking such removal knew he intended to leave the State, when she petitioned for his appointment.
    3. Same — Appointment—Disqualification.
    An attorney for one of the persons interested in an estate as its sole creditor may properly be appointed executor.
    Certiorari to Muskegon; Sessions, J.
    Submitted June 23, 1909.
    (Docket No. 62.)
    Decided July 15, 1909.
    Emily G. Darby, a legatee, petitioned the probate court for the removal of Robert B. Rice as executor of the last will and testament of Robert Rice, deceased. The petition was granted, and said executor appealed to the circuit court. A judgment affirming the order of the probate court is reviewed by defendant on writ of certiorari.
    Affirmed.

      Nims, Hoyt, Erwin, Vanderwerp & Foote, for appellants.

      Stephen H. Clink, for appellee.
   Brooke, J.

This is certiorari to review an order made by the circuit court for the county of Mluskegon affirming an order of the probate court removing Robert B. Rice as executor of the will of Robert Rice, deceased, and appointing Stephen H. Clink as administrator of the estate.

Robert Rice died November 38, 1904, leaving a will, whereby his estate was devised to his five children. Emily G. Darby, one of his children, petitioned the probate court for letters testamentary to be issued to her brother, Robert B. Rice. The will was probated in April, 1905. At that time Robert B. Rice had some business interests in Oregon, and spent part of his time there. Later, he removed his family to Oregon, and became a resident of that State. The estate was by him converted into cash, and the money resulting therefrom was withdrawn by the executor from the Muskegon bank and deposited in an Oregon bank, which failed shortly after such deposit was made.

It appears that Emily G. Darby, a widow, had resided with her father and mother for five years prior to the death of her father, and had taken such care of them as their age and infirmities demanded. The mother died about one year before the death of the father. Mrs. Darby filed a* claim in the probate court for her services, which was allowed in March, 1906, at the sum of $3,-558.91. This claim, with interest, now amounts to about $4,000, the estate, to about $5,000. The executor has never filed an account in the probate court and has never paid the said claim or any part thereof. The learned circuit judge filed written findings of law and fact. He held that the order of the probate judge removing Robert B. Rice as executor and appointing Stephen H. Clink as administrator was properly made and should be affirmed.

Counsel for the executor urge four reasons for reversing the action of the court below, as follows:

(1) The circuit judge did not decide the case as upon a hearing and trial de novo, but decided it upon the question as to whether the probate court had the right and authority to remove the executor, and as to whether the order of removal was rightfully made, and as to whether the appointment made by the probate court should be disturbed.

(2) No showing was made in the circuit court for the removal of the executor, as Mrs. Darby was estopped from asking for the removal on the ground of nonresidence.

(3) There was no other showing before the circuit court authorizing the executor’s removal.

(4) If the executor should have been removed, some one other than Mrs. Darby’s attorney should have been appointed.

The first contention is answered by the return to the writ wherein the learned circuit judge says:

“ This respondent further returns that the judgment in this cause was made and entered by him upon the testimony and showing made upon the trial of the appeal of said matter on behalf of the petitioner Emily G. Darby, and that he did try said matter de novo and entered judgment accordingly.”

We are of the opinion that the second ground is untenable. It is true that at the time the will was admitted to probate Robert B. Rice spent a part of his time in Oregon, but the record shows that he did not take up his residence there with his family until some time after he became executor. We think that his change of residence, coupled with the fact that the funds of the estate were by him withdrawn from the jurisdiction of the court, and the further fact that for more than two years he had failed to file with the probate court any account of his dealings with the éstate, afforded ample ground for his removal as executor.

As to the third reason urged, we are of the opinion that no good reason is shown why the appointment of Stephen H. Clink should be disturbed. He is attorney for Emily G. Darby, who. is entitled to somewhat more than four-fifths of the estate, nearly all of which belongs to her in her character as sole creditor of the estate. She being the one most largely beneficially interested, and the appointment of Clink being satisfactory to her, it should stand in the absence of other reasons militating against it. See In re Sprague’s Estate, 125 Mich. 357, 365 (84 N. W. 293), and cases cited in that opinion.

Judgment affirmed.

Ostrander, Hooker, Moore, and McAlvay, JJ., concurred.


author: Moore, J.

text:
    PATTINSON v. FLAYER.

    1. Statutory Construction — Justice’s Transcripts —Justice’s Courts — Appeal and Error.
    A local act which authorizes the taking of an appeal from justice’s court in the city of Detroit after motion for a new trial forms an exception or modification to 1 Comp. Laws, § 845, providing for transcripts to the circuit court after judgment in justice’s court.
    2. Transcript prom Justice’s Court — 'Vacating.
    On an appeal being taken from judgment in justice’s court, an order may be entered vacating a transcript of the judgment taken to the circuit court under 1 Comp. Laws, § 845, pending a motion for a new trial in justice’s court.
    Certiorari to Wayne; Murphy, J.
    Submitted June 23, 1909.
    (Docket No. 84.)
    Decided July 15, 1909.
    Case in justice’s court by Nellie M. Pattinson against Solomon P. Flayer for damages to personal property. Plaintiff recovered judgment, and defendant appealed to the circuit court. Plaintiff took a transcript from the judgment to the circuit court, pending the appeal. An order vacating the transcript judgment is reviewed by plaintiff on writ of certiorari.
    Affirmed.

      G. Lewis Carter (A. W. Sempliner, of counsel), for appellant.

      Friedman & Smilansky, for appellee.

       Rehearing denied December 10, 1909.

   Moore, J.

Plaintiff sued the defendant in the justice’s court for the city of Detroit, and obtained judgment for $109.25 on the 21st day of January, 1908. On the 28th day of January, 1908, she filed a proper affidavit under the general statute, and obtained a transcript of said judgment, which was docketed with the clerk of the circuit court for the county of Wayne. Upon the 25th day of January, 1908, a motion for a new trial was made in the justice’s court in said cause- by defendant, which motion was on January 31, 1908, denied. On January 31, 1908, the defendant appealed said cause to the circuit court for the county of Wayne. An execution and an alias execution were issued under said transcript, but no proceedings were had thereunder, as action was stayed by the circuit court. Two motions were made to stay the execution, and, under a stipulation filed, they were regarded as a motion made to vacate the judgment entered upon the transcript, and the said judgment transcript and the transcript were vacated. It is sought to review this action in this proceeding. Counsel for plaintiff say the only question in issue is whether a valid transcript could be taken on. January 28th, and, if taken, should have been , set aside.

Counsel for defendant suggest that there is another question, to wit: Can a transcript of a justice’s court judgment, issued by virtue of section 845, 1 Comp. Laws, cut off the right to appeal or render nugatory an appeal even though taken by virtue of, and in strict accordance with, Act No. 475, Local Acts 1903 ?

The provisions of the general law in relation to transcripts from justice’s court which have been in force a great many years are to be found in sections 845, 846, 847, 1 Comp. Laws.

Sections 755, 860, 861, 1 Comp. Laws, provide for the immediate issue of execution after the judgment is entered in certain cases. Our attention has not been called to any case holding that the sections of the statute last above named would cut off the right of appeal given by the general statute.

Act No. 475, Local Acts 1903, relates to the justices’ courts in the city of Detroit. Section 21 provides as follows :

“ The justice before whom any case has been tried, and verdict or judgment rendered, shall have the same power and authority to set aside the verdict or judgment, and grant a new trial therein upon legal cause shown therefor, as the circuit courts of the State possess: Provided, That a motion in writing be made and filed with the clerk of said justices’ courts within five days after the rendition of verdict or judgment in said case. Said motion shall briefly and plainly set forth the reasons and grounds upon which it is made. Affidavits upon which the motion is founded shall also be filed at the time of filing said motion, and notice of the hearing of such motion, with copy of the motion and affidavits filed as aforesaid, shall be served upon the adverse party, or his attorney, at least two days before the hearing thereof. Such motion shall be determined within two days after the same shall have been heard and submitted, and such motion shall be submitted within one week after the same shall have been filed. The time for taking an appeal from judgment, in case such motion be not granted, shall begin to run from the time when such motion shall be overruled. In no case shall the pendency of such motion stay the issuing and levy of an execution in such ease; but in case of a levy under execution pending such motion, no sale of the property so levied on shall be advertised or made until the final determination of such motion.”

There is no ambiguity in this language. The contention of the plaintiff involves the holding that there is an inconsistency between the provisions of the general law and of the local act which is the later act. In such a case the later statute would be regarded as a modification or exception to the earlier one.

See 1 Lewis’ Sutherland on Statutory Construction (2d Ed.), at page 465.

“Inconsistency between two statutes, or statutory provisions, in order to avoid a repeal by implication, is sometimes so treated that the later statute or provision is regarded as modifying the earlier in some particular respect, or taking certain things out of its operation, as an exception to it. * * *

“ Upon the ground of clearly express intention, it is obvious that the terms of a later special act must control those of a prior general one; and that where they are positively repugnant, not merely cumulative or auxiliary, the former must repeal the latter to the extent of such repugnancy and within the limits assigned to the operation of the special law.” Endlich on Interpretation of Statutes, §§ 215, 216.

It is not necessary to say, and we do not say, that a transcript from the justice’s court in Detroit, taken according to the terms of the general law, and before the time in which a motion for a new trial might be made and decided, is prematurely taken, but we do hold that a judgment based upon such transcript may be vacated when an appeal is taken within the terms of the local act.

The order made by the circuit judge is affirmed.

Ostrander, Hooker, MoAlvay, and Brooke, JJ., concurred.


author: Hooker, J.

text:
    TOWNSHIP OF WYOMING v. JUDGE OF SUPERIOR COURT OF GRAND RAPIDS.
    1. Mandamus — Equity—Temporary Injunction — Drains and Sewers.
    The discretion of the trial judge in issuing or denying a temporary injunction will not be lightly interfered with, it being in no sense a writ of right.
    2. Same — Waters and Watercourses — Drains.
    A temporary injunction to restrain the city of Grand Rapids from discharging its sewage into Grand River was properly refused by the trial court, in view of the inconvenience to the public which would ensue.
    Mandamus by the township of Wyoming and others to compel William J. Stuart, judge of the superior court of Grand Rapids, to vacate an order denying a temporary injunction.
    Submitted July 6, 1909.
    (Calendar No. 23,473.)
    Writ denied July 15, 1909.

      Roger I. Wykes, for relators.

      Moses Taggart and Raymond Ferguson (Taggart & Taggart, of counsel), for respondent.
   Hooker, J.

The attorney general, upon the relation of the officers of the township of Wyoming and two private persons, residents of said township, filed an information to restrain the city of Grand Rapids from making use of a sewer recently constructed in said city for the purpose of conveying garbage and night soil, systematically collected by said city from districts not provided with sewers, and from extending its sewer system, and to restrain it from continuing to discharge its sewage through existing sewers into Grand River. The information prayed a temporary injunction, which, upon the hearing of an order to show cause, the learned judge of the superior court denied. Counsel for the informant asks a mandamus to compel the judge of the superior court to vacate such order, and allow an injunction preventing the further extension of sewers and the use of said Prescott sewer for the purpose mentioned pending this litigation.

Counsel for the informant contends that his clients are entitled to the allowance of a preliminary injunction as matter of right; arguing that the preservation of the status quo is no hardship. A preliminary injunction is in no sense a writ of right. Its allowance is a matter within the discretion of the trial judge, and as was said by Mr. Justice Campbell in Torrent v. Common Council of Muskegon, 47 Mich. 115 (10 N. W. 132, 41 Am. Rep. 715), and quoted approvingly in the late case of Siegel v. Wayne Circuit Judge, 155 Mich. 459 (119 N. W. 645):

“We feel it our duty to refer to the danger of interfering in the outset of a case by injunction, with interests where delay may work great damage, without making full provision for redress by an adequate injunction bond. Defendants ought not to be subjected by the machinery of the law to irreparable mischief.”

And in the latter case Mr. Justice Brooke said,that

“ The discretion of a circuit judge in the issuance and continuance in force of a temporary injunction ought not to be lightly interfered with.”

While we have interfered to compel the vacation of orders allowing injunctions, where the discretion was clearly abused, the cases have been rare in which we have compelled the allowance of such writs.

But aside from this question, the effect of the allowance of this injunction would subject the people of Grand Rapids to a most serious inconvenience, and we agree with the learned judge who denied the order that the relief prayed should not have been granted, and he did not err in denying it.

The writ is denied, with costs against the relators.

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


author: Ostrander, J.

text:
    SUCHOCKI v. CALUMET INSURANCE CO.
    Appeal and Error — Bill op Exceptions — Amendment.
    On a motion to amend a bill of exceptions accompanied by a showing that the circuit judge required an exhibit to be attached which had been omitted by counsel, the amendment may be granted.
    Assumpsit by Wladislaus Suchocki against the Calumet Insurance Company on a policy of insurance: On motion of defendant to amend the bill of exceptions.
    Submitted July 6, 1909.
    (Calendar No. 23,457.)
    Motion granted July 15, 1909.

      Russel, Campbell, Bulkley & Ledyard, for the motion.

      Dohany & Dohany, contra.

   Ostrander, J.

This is a motion made by the appellee to compel the plaintiff and appellant to add to the return to the writ of error and to the printed record a bill of sale, copy of which is attached to the motion. In the court below a verdict was directed for the defendant. It was directed because the bill of sale in question had been given by the plaintiff and his wife after the policy was issued, and before the fire; it being a conveyance of some of the insured property to secure the payment of a loan. When the bill of exceptions was presented for settlement, counsel for appellee objected to its settlement unless the bill of sale was included. Counsel for both parties were heard upon the subject, and the circuit judge refused to sign the bill of exceptions unless said bill of sale was incorporated therein. Thereupon counsel for the appellant agreed to incorporate the bill of sale in the bill of exceptions, relying upon which the circuit judge, in his certificate to the bill of exceptions, employed the words: “ With entire Exhibit D attached ” — meaning, and counsel could not have misunderstood it, the bill of sale and the affidavit attached thereto. The record' has been brought into this court by the writ of error, and has been printed. The said bill of sale does not appear in the return or in the printed record. An affidavit which was attached to a copy of the bill of sale, and which was marked “ Exhibit D ” by the stenographer in the court below does appear in the printed record, and it is claimed that the agreement of counsel to attach all of Exhibit D to the bill of exceptions has been performed by attaching the affidavit. It is true that the bill of sale to which the affidavit was attached was marked in the court below “ Exhibit B,” and that the plaintiff, upon its being exhibited to him, declined to admit that it was ^n instrument executed by himself, but did admit his signature to the affidavit marked “ Exhibit D ” attached to the said instrument.

The merits of the case are not before us. We are satisfied that the bill of exceptions returned to this court and printed is not the bill of exceptions which the circuit judge settled. We are satisfied, also, that counsel for the appellant understood that in using the term “ Exhibit D” in the certificate to the bill of exceptions the court meant, not the affidavit alone, but the affidavit and the bill of sale to which it was attached.

The motion is granted, with costs.

Hooker, Moore, McAlvay, and Brooke, JJ., concurred.


author: Blair, C. J. Ostrander, J.

text:
    DEROSIA v. LOREE.
    , Local Option — Records of Boards of Supervisors —Collateral Attack.
    The record of the board of supervisors evidencing the action of the board upon a petition to submit to the voters the question of the adoption of local option, may not be collaterally attacked because of the failure of the clerk to sign the record before the final adjournment, where the record had been signed by the clerk during his term of office, and had been read and approved at a subsequent meeting, the record of which was properly authenticated.
    Certiorari to Sanilac; Beach, J.
    Submitted May 25, 1909.
    (Calendar No. 23,423.)
    Decided July 15, 1909.
    Mandamus by Charles Derosia to compel Richard J. Loree, treasurer of Sanilac county, to accept a liquor dealer’s bond. .An order granting the writ is reviewed by respondent on writ of certiorari.
    Reversed, and writ dismissed.

      Charles F. Gates (Harrison Geer, A. F. Bunting, William C. Manchester, and Fred A. Baker, of counsel), for relator.

      Fred A. Farr and W. H. Burgess (William H. Aitkin and Pliny W. Marsh, of counsel), for respondent.
   Blair, C. J.

On the 24th day of April, 1909, relator presented to respondent a liquor dealer’s bond in proper form and properly approved, tendered $500 in money, and demanded the usual receipt in accordance with Act No. 313, Pub. Acts 1887. Respondent refused to receive the bond and money, or to give the receipt, upon the ground that the manufacture and sale of intoxicating liquors had been prohibited after the 1st day of May, 1909, by a vote of the electors of the county at the local-option election held on the first Monday in April, 1909. Relator applied to the circuit court for Sanilac county for a writ of mandamus, upon the ground that such election was invalid. The petition set forth, among other things, the following:

“ (9) That all the proceedings had before said board in relation to said petition as to the submission of the same to the voters of said county of Sanilac, and the order or resolution made in pursuance thereof by said board, were made upon said 21st day of October, 1908, as appears by the record of said board.

“ (10) Your petitioner further shows that the clerk of said board did not sign the journal of the proceedings for said 21st day of October, 1908, where said resolution or order was recorded at any time before the final adjournment of said board of supervisors, as required by section 6 of said act, and neither did he sign said proceedings at any time before the expiration of his then term of office, and said proceedings were not signed by any person acting, or claiming to act, as clerk of said board of supervisors during any of the aforesaid time.

“(11) That said journal containing said proceedings remained unsigned until, to wit, the 29th day of March, A. D. 1909, at which time the said Fred J. Kemp, who had been elected at the regular election held in said county in November, 1908, to succeed himself as such clerk, signed said proceedings as such clerk. * * *

. “ (13) An examination of the records was made in the office of the county clerk upon, to wit, the 27th day of March, A. D. 1909, at which time said records were still unsigned by any clerk or any person purporting to act as clerk. * * *

“ (18) Your petitioner shows that by reason of the failure of said clerk to sign the records of the proceedings of said board of supervisors before the final adjournment of said board of supervisors, which occurred in the month of December, 1908, all the proceedings were void, and said so-called local-option act is not in force, and will not be in force on the 1st day of May, 1909, but that Act No. 313 of the Public Acts of 3 887 is in force in said county, and will continue in force after the 1st day of May, 1909.

“ (19) Your petitioner further shows that the said Richard J. Loree has, and did have at the time of the refusal to accept said bond and money and to issue said receipt, good and reliable information, and from such information the said Richard J. Loree had knowledge that the said Fred J. Kemp, as such county clerk, did not sign said record of the board of supervisors, whereon was recorded said proceedings, including the order and resolution submitting said question of the voting upon said prohibition of the manufacturing and sale of intoxicating liquors in said county of Sanilac until said 29th day of March, A. D. 1909.”

Respondent’s answer contained, as to the allegation of the petition above quoted, the following:

Ninth. This respondent admits the allegations set forth in paragraph 9 of said petition, but he alleges that the proceedings referred to therein were read, corrected, and approved by said board on the 22d day of October, A. D. 1908, as also appears by the records of said proceedings.

Tenth. Answering paragraph 10 of said petition, respondent says that he has no personal knowledge of the facts alleged therein; and, while he has been informed that they are true, he can neither admit nor deny them, and will leave petitioner to his proofs.

Eleventh. This respondent admits that Fred J. Kemp was elected county clerk of said county at the regular election held in November, 1908, to succeed himself as such clerk; and, while respondent has been informed that the record of the proceedings of the board of supervisors of said county for the 21st day of October, 1908, was not signed by said Kemp until the 29th day of March, 1909, he has no personal knowledge of that fact, and since he has also been informed that said Fred J. Kemp, county clerk, on the 22d day of December, 1908, under his official seal, certified the said proceedings of said board for October 21, 1908, as countersigned by him, he will neither admit nor deny the date when the said proceedings for October 21, 1908, were signed by said Kemp, and will leave petitioner to the proofs. * * *

Thirteenth. Answering paragraph 18 of said petition, fthis respondent says that he has been informed that the facts stated therein are true, but he has no personal knowledge thereof, and in answer thereto he avers that the official proceedings of said board of supervisors, copy of which is hereto attached, marked ‘Exhibit A’ and made a part hereof, shows the signatures of both the chairman and clerk of said board to said proceedings for October 21, and also October 22, 1908. * * *

Sixteenth. Answering paragraph 18 of said petition, this respondent denies the allegations contained therein, and the conclusions drawn therefrom as therein stated.

Seventeenth. Answering paragraph 19 of said petition, this respondent admits that at the time the petitioner presented his bond and the said sum of $500, as set forth in paragraph 16 of said petition, he had been informed that Fred J. Kemp, said county clerk, did not sign the record of the proceedings of the board of supervisors of said county, whereon was recorded the order and resolution submitting the question of the prohibition of the manufacture and sale of intoxicating liquors in said county to the vote of the people, until the 29th day of March, 1909, but of these facts this respondent had no personal knowledge.”

The matter coming on to be heard, the following occurred :

The Court: The answer as to the material facts is principally upon information and belief, and probably ought not to be treated as admitting away the rights that the public obtained, if they have obtained them; but it admits enough so that this court, as a matter of right and public justice, ought to make an inquiry to ascertain if there is an undisputed fact. If you have any testimony to offer, you may offer it.

Mr. Cates: We would ask to call the present acting clerk, the deputy clerk, Mr. Allen.

"Mr. Burgess: Does the court propose to take up the question of fact now ?

“The Court: Not conclusively. I permit them to supplement their petition and the answer with sufficient testimony from which, if uncontradicted, the court can determine whether there is a doubt and an issue of fact to be submitted to the jury; that is, the petition and answer leaves the impression with the court that there is something about that record that ought to be the subject of public inquiry.”

In accordance with the ruling of the circuit judge testimony was taken with reference to the date of the clerk’s signature. This testimony was objected to by respondent’s counsel, and at the close of the testimony counsel moved to strike out the testimony so far as it tended to change or correct or impeach the record. The court overruled the motion, on the ground that the case of Auditor General v. Hill, 97 Mich. 81 (56 N. W. 219), authorized such impeachment as to the signature of the clerk. The court granted the peremptory writ, and respondent brings the case before us for review by writ of certiorari.

Section 29 of the act to define the powers and duties of the boards of supervisors, etc. (Act No. 156, Laws 1851), being section 2502, 1 Comp. Laws, provides as follows:

“Every order, resolution and determination of such board of supervisors, made in pursuance of this act, shall be recorded in the records of such board, and signed by the chairman and clerk of such board.”

It was held in Pearsall v. Board of Sup’rs of Eaton Co., 71 Mich. 488 (39 N. W. 578), that this section was mandatory, and that, in the absence of such authenticated record, the presumption that public officers perform their duty cannot sustain the action taken.

In Weston v. Monroe, 84 Mich. 341 (47 N. W. 446), it was held that the failure of the chairman to sign the record of the proceedings of the board in equalizing the assessments and apportioning the State tax is fatal to the validity of a tax deed based thereon.

In Covert v. Munson, 93 Mich. 603 (53 N. W. 733), an application for the writ of mandamus to compel the county treasurer to accept an approved bond and the amount of the tax, and give the receipt therefor, was under consideration. In that case it was conceded that the statute had not been complied with; that the proceedings of the board—

“Were not even entered upon the journal until ‘perhaps in two or three weeks after final adjournment,’ and that the chairman of the board of supervisors did not sign, or pretend to sign, the record until May 6, 1892, which was after the time when the petitioner made his demand on the respondent in this case, and after the time when the respondent claimed that the local-option law was in force in Gratiot county under and by virtue of these unsigned and unverified proceedings, and at which time also, as appears from the record, the chairman was out of office, and had no authority, under any of the provisions of this act, to perform a duty which the law required him to perform at the very time the proceedings were had, and before the final adjournment of the board.”

It was held, upon the basis of the conceded and undisputed facts, that the local-option law was not operative in the county.

In Thomas v. Abbott, 105 Mich. 687 (63 N. W. 984), it was held that it was sufficient if the journal entry of the order was signed below the record of adjournment to the next day.

In Shelden v. Township of Marion, 101 Mich. 256 (59 N. W. 614), the validity of the State and county taxes was assailed for want of the signature of the clerk of the board of supervisors to the record of the board in relation to the equalization of the assessment rolls and the apportionment of taxes for the year in question. At the trial the person who had been clerk, and was then deputy clerk, was permitted to sign the record nunc pro tunc, but later on the trial court held that he had no authority to make such amendment. Speaking upon this question, this court said:

“It is, we think, generally held that the clerk whose duty it is to make the record may make amendments of the same while in office, and when no rights have been built up on the faith of the imperfect record. See 1 Dillon on Municipal Corporations (4th Ed.), §§ 294, 295; 1 Beach on Public Corporations, § 1300. See, also, Boyoe v. Auditor General, 90 Mich. 314 (51 N. E. 457). There is respectable authority for holding that the clerk may make such an amendment after having retired from office (Gibson v. Bailey, 9 N. H. 168; Kiley v. Cranor, 51 Mo. 541); and, where this is not permitted, it has been held that one who has retired from office, and has been since re-elected, and has custody of the record, may properly make the amendment. Welles v. Battelle, 11 Mass. 477; Mott v. Reynolds, 27 Vt. 206. In the present case the amendment consisted simply in affixing the signature of the clerk. He was at the time in the sworn custody of the records as deputy clerk, and could act, within the reasoning and principle of the cases which permit a clerk on reelection to amend a record made up during a former term. He was properly permitted to make the amendment. We do not decide what would be the effect if a third person had acquired rights to the property taxed before the attempted amendment. But such is not the case here. As before stated, this is an equitable action for money paid, and no hardship is done to plaintiff in permitting the amendment. In Boyce v. Auditor General, supra, we held that the chairman and clerk could, while still in office, affix their signatures. The case of Auditor General v. Hill, 97 Mich. 80 (56 N. W. 219), is cited as supporting the doctrine that, after having retired from office, the chairman and clerk could not properly affix their signatures to the record. Such a holding is not necessarily in conflict with the views herein expressed, but it should perhaps be stated that the point was not argued or considered inthecaseof Auditor General v. Hill, On the contrary, as appears by the opinion, it was admitted that, if the proceedings were not signed until after the chairman and clerk had retired from office, the record was void. The court, therefore, determined the case solely upon the question of fact. The case of Weston v. Monroe, 84 Mich. 342 (47 N. W. 446), was a case in which no attempt was made to correct the omission, and was also a case in which the rights of third persons had arisen, which distinguishes it from the present. The amendment here was made before the rights of any third parties had intervened, and was made by a lawful custodian of the record, and upon his own knowledge. See, as further bearing upon this question, Cooley on Taxation (2d Ed.), pp. 320,321; Parish v. Golden, 35 N. Y. 462.”

In the case now before us, it is undisputed that the record was properly signed by the chairman, and was also signed by the clerk at some time during his then or immediately succeeding term of office; and, if the rule of the Shelden Case is applicable to this case, the record was properly authenticated. There is much force, however, in the contention of counsel for appellee that there is a clear distinction between the statutes, which renders that rule inapplicable, in that the local-option statute limits the time for signing the record to the time “ before final adjournment.” We do not find it necessary, however, to determine this question, since, in our judgment, the case must be determined against appellee upon another point.

The record of the board of supervisors in question is fair upon its face. The record of the board for October 21, 1908, contains the report of the committee to whom the local-option petitions were referred; the resolution submitting the question to the electors and its adoption. Immediately following the adoption of the report and resolution appears the following:

“Moved by Sup. Bishop, seconded by Sup. Auslander, that we adjourn until tomorrow morning at 8 o’clock. Motion carried and board adjourned. Bead, corrected and approved, October 22, A. D. 1908.

“Jas. Cubby, Chairman.

“Countersigned: Feed J. Kemp, Clerk.”

In the record of the proceedings for Thursday, October 22, 1908, among other things, the following appears:

“Thursday, October 22, A. D. 1908.

. “At a regular session of the board of supervisors of the county of Sanilac, continued and held at the courthouse, in the city of Sandusky, on Thursday, October 22, A. D. 1908. Board called to order by chairman. Boll called, quorum present. Minutes of yesterday’s proceedings read and approved. * * *

“Moved by Sup. Erwin, seconded by Sup. Murphy, that we adjourn until tomorrow morning at eight o’clock. Motion carried and board adjourned. Bead, corrected and approved, Oct. 23, 1908.

Jas. Cubby, Chairman.

“Countersigned: Feed J. Kemp, Clerk.”

The proceedings of each succeeding day of the session are similarly authenticated up to the date of final adjournment on December 18, 1908. A transcript of the record as to the proceedings for December 18th, together with the clerk’s certificate, were received in evidence against relator’s objection, and read as follows:

“Saturday, December 18, 1908.

“At a regular session of the board of supervisors of Sanilac county, State of Michigan, continued and held, at the courthouse in the city of Sandusky, on Saturday the 18th. day of December, A. D. 1908. Board called to order by the chairman. Roll called, quorum present. Minutes of yesterday’s proceedings read and approved. * * * Minutes read and approved in open session, Friday, December 18, A. D. 1908. Moved by Sup. Murphy, seconded by Sup. Beckett, that we adjourn sine die. Motion carried, and board adjourned.

“Jas. Curry, Chairman.

“Countersigned: Fred J. Kemp, Clerk.

“ State op Michigan,

“County of Sanilac.

ss.

“I, Fred J. Kemp, clerk of the said county of Sanilac and clerk of the board of supervisors for said county, do hereby certify that I have compared the foregoing copy of the proceedings of the board of supervisors of said county for the year 1908, with the original record thereof, now remaining in my office, and that it is a true and correct transcript therefrom, and of the whole of such original record.

“In testimony whereof, I have hereunto set my hand and affixed the seal of the circuit court of said county this 22d day of December, A. D. 1908.

“Fred J. Kemp, Clerk.”

Such being the condition of the record, is it subject to collateral attack and impeachment by parol testimony ? It is contended by counsel for appellee that they are not seeking to attack the record, but leave it as actually made. In the language of counsel:

“We are not attempting to contradict the record in any respect. We are not seeking to change one word of, or to add one word to, the record. We raise no question that the record of October 21st as produced is a true transcript of the proceedings of the board for that day; that the board did on that day pass the resolution and order therein recorded. What we claim, and all we claim, is that the record as written up was not signed by the clerk within the time prescribed by the statute; that is, before the final adjournment of the board.”

This contention is more specious than logical. The object of the authentication is to determine with certainty what the board actually did, and without it the record is a mere nullity, and no evidence whatever of their action. We are of the opinion, therefore, that the effect of relator’s proceedings was to attack the record, and seek to impeach it in a collateral manner, as against which attack the record imports absolute verity.

In Stevenson v. Bay City, 26 Mich. 44, an offer was made, and overruled, to show by parol evidence that an ordinance was passed by less than a majority of all the aldermen, and was therefore void. In discussing this ruling, Mr. Justice Campbell, speaking for the court, said:

“When the law requires municipal bodies to keep records of their official action in the legislative business conducted at their meetings, the whole policy of the law would be defeated if they could rest partly in writing and partly in parol, and the true official history of their acts would perish with the living witnesses, or fluctuate with their conflicting memories. No authority was found, and we think none ought to be, which would permit official records to be received as either partial or uncertain memorials. That which is not established by the written records, fairly construed, cannot be shown to vary them. They are intended to serve as perpetual evidence, and no unwritten proofs can have this permanence. See Hall v. People, 21 Mich. 456.”

In Sweet v. Gibson, 123 Mich. 699 (83 N. W. 407), one' question before the court was whether the filing date placed upon a return of the sheriff by the clerk of the court could be contradicted by parol testimony. In the course of the opinion it is said:

“The court allowed the plaintiff to contradict by affidavits the date of the return of the sheriff and the filing made by the county clerk. On one side of this issue is the affidavit of the deputy sheriff that he retained the writ until September 2d, but, supposing it should have been filed September 1st, he requested the clerk to file it as of that date, and it was so filed. The sheriff also testified that the writ was in the hands of his deputy on September 2d. On the other hand, the return is dated by the sheriff, ‘ Sept. 1, 1899.’ The return is indorsed with the file mark of the county clerk, ‘Sept. 3, 1899.’ The county clerk made an affidavit that the return was filed in his office September 1, 1899. The county clerk’s. assistant made affidavit that the file mark, ‘ Sept. 1, 1899,’ is in her handwriting, and that she verily believes that the return was actually filed and indorsed by her September 1,1899. Circuit Court Rule No. 38 requires the clerk to indorse on every paper the day on which the same is filed. As is made apparent in this case, it is important that the evidence of when papers relating to litigation are filed in the clerk’s office shall be of a fixed and permanent character, and shall not rest in the recollection of interested parties. The filing placed upon the papers by the clerk becomes part of the records of the court, and cannot be contradicted by parol. Stevenson v. Bay City, supra; Mudge v. Yaples, 58 Mich. 307 (25 N. W. 297); Weaver v. Lammon, 62 Mich. 366 (28 N. W. 905); Attorney General v. Rice, 64 Mich. 385 (31 N. W. 203); Auditor General v. Board of Sup’rs of Menominee Co., 89 Mich. 552 (51 N. W. 483); Toliver v. Brownell, 94 Mich. 577 (54 N. W. 302); Holmes v. Cole, 95 Mich. 272 (54 N. W. 761).”

Our decisions in Covert v. Munson and Auditor General v. Hill, supra, are not in conflict with this opinion. In Covert v. Munson the facts were all admitted, and in Auditor General v. Hill, the question does not appear to have been presented, and the case was heard on appeal from the decree rendered in the tax proceedings.

In Ball v. Fagg, 67 Mo. 481, plaintiff offered parol evidence to prove that a certain ordinance was neither approved by the mayor, nor attested by the clerk, until a month later than the date it purported to have been approved. The trial court rejected the proof, and the ruling was sustained by the supreme court. To the same effect see State v. Main, 69 Conn. 123, 139 (37 Atl. 80, 36 L. R. A. 623, 61 Am. St. Rep. 30); Weir v. State, ex rel. Axtell, 96 Ind. 311, 316; West Chicago Street R. Co. v. Morrison, Adams & Allen Co., 160 Ill. 288 (43 N. E. 393); Walker v. Smith, 50 Ga. 487; Bennett v. Tiernay, 1 Ky. Law Rep. 312. We do not intend to intimate that direct proceedings may not be instituted in behalf of the public to correct the records in question.

In view of the importance to the public of the questions involved, we have felt it to be our duty to determine them (although the petition for the writ of certiorari does not contain, nor is it accompanied by, assignments of error), following the course we have occasionally adopted heretofore. Thomas v. Abbott, 105 Mich. 687 (63 N. W. 984); Lewis v. Board of Education of Detroit, 139 Mich. 306 (102 N. W. 756).

The order of the circuit judge is reversed, and the writ denied, but without costs to either party.

Grant, Moore, and McAlvay, JJ., concurred with Blair, 0. J. Hooker, J., concurred in the result.

Ostrander, J.

(concurring). I concur in reversing the order and determination of the circuit court, and in denying to relator the writ of mandamus. At the time relator tendered his money and bond to the respondent and demanded his license, an election had been held in Sanilac county, the votes had been canvassed and the supervisors had made the determination, declaration, and resolution required by section 13, Act No. 183, Pub. Acts 1899. By section 14 of this act it is provided that—

“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.”

Section 1 of the act makes it unlawful for any person, directly or indirectly, to manufacture, sell, give away, or furnish any liquors, or keep a saloon on and after May 1st next following after the adoption by the board of supervisors of the county of a resolution prohibiting the same as provided in section 13. Section 2 of the act provides that after said May 1st, and after the adoption of said resolution, the provisions of the general liquor law shall be suspended and superseded in the county. It is evident that the legislature did not intend that interested persons might lie still until after an election had been held and the results thereof had been declared, and then avoid that result in a proceeding between parties neither of whom owed any duty, public or private, except to obey the law. So long as the law stood, the respondent owed no duty to any person under the suspended and superseded law. Suppose that the respondent, instead of refusing, had accepted relator’s money and bond, and had issued to him the red card — had done just what it is sought in this proceeding to compel him to do. In a prosecution for violation of the local-option law relator would not be permitted to show in his defense the matters now presented as a reason for compelling respondent’s action. The fact that he had paid the tax and had possession of the card Would be no protection. It is clear, therefore, that until, in some proceeding brought for that purpose, the general law is declared to be operative and not superseded in Sanilac county notwithstanding the proceedings and the election which have been had, respondent does not owe relator the legal duty to comply with his request.

Montgomery and Brooke, JJ., concurred with Ostrander, J.


author: Moore, J. Ostrander, J. Hooker, J. Brooke, J. Grant, J.

text:
    SCHARMAN v. BAY COUNTY BRIDGE COMMISSION.
    1. Negligence — Highways and Bridges — Statutes.
    The bridge commission created by the legislature to control the bridges of Bay county is not liable in an action on the case for negligence to the father of a minor killed by riding off the end of an open and unguarded drawbridge in the city of Bay City, under 1 Comp. Laws, § 3441, or 2 Comp. Laws, §§ 5516-5521. By an equally divided court. Moore, J., and Blair, C. J., and Montgomery and Mo Alva y, JJ., dissenting.
    2. Same — Contributory Negligence — Open Drawbridge — Neglect to Guard.
    A bicyclist, who, in the dark, rides off the end of an unguarded drawbridge open for the passage of a boat, is not, as a matter of law, guilty of contributory negligence. Brooke and Grant, JJ., dissenting.
    3. Courts — Practice in Supreme Court — Division op the Justices.
    A directed verdict will be affirmed where four of the eight justices of the Supreme Court hold that a verdict should be directed, but for a different reason than that adopted by the trial judge.
    Error to Saginaw; Gage (William G.), J.
    Submitted November 11, 1908.
    (Docket No. 78.)
    Decided July 15, 1909.
    Motion for a new trial denied December 31, 1909.
    Case by Gottfried Scharman, administrator of the estate of Calvin Scharman, deceased, against the Bay County Bridge Commission for negligently causing the death of plaintiff’s intestate. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed by an equally divided court.

      De Vere Hall, for appellant.

      Stoddard & McMillan, for appellee.
   Moore, J.

Bay City is situate on opposite banks of the Saginaw river. The river is about one-half mile wide from bank to bank. In the river is an island called the “Middle Ground.” There is a highway from West Bay City to Bay City. On such highway each part of the river is spanned by a bridge having a draw or swing span for the passage of vessels, and going from the west eastward, in order, the roadway comprises the west bridge, an asphalt or macadam street about one-quarter mile in length over the island, and the east bridge having a span, both bridges having iron frames, with high sides and overhead beams. In dimensions, the east bridge from the west end to the draw or swing span is upwards of 120 feet, the span itself 202 feet, and the remaining length of the bridge from the span to the east end 129 feet. When the span is swung, the westerly end swings to the south. There is no gate or chain or guard or provision of any kind at either end of the span on either bridge, or at any place along the bridges or roadway, to prevent teams or pedestrians from passing off the open draw. The span is swung with a lever operated from near the center of the span, and, before swinging, the bridge tender rings a bell located above the center of the span to give warning. The bridge tenders are on the span, and no person is stationed along the roadway or on the bridges to give warning to the drivers of teams or pedestrians that the span is about to open.

The son of the plaintiff, after attending choir practice in the evening, rode east from West Bay City into the open draw, and was drowned. Plaintiff was appointed as administrator and brought this action; the declaration comprising three counts:

(1) Failure to keep the bridge and street in safe, fit, and convenient condition for travel.

(2) Failure to maintain a gate or gates on the roadway or bridges under sections 5516-5521, 2 Comp. Laws, thus rendering the bridges and roadway unsafe, unfit, and inconvenient for travel.

(3) Failure to maintain a gate or gates on the roadway or bridges under sections 5516-5521, 2 Comp. Laws.

At the conclusion of plaintiff’s proofs, counsel for defendant moved the court to direct a verdict in its favor for three reasons: First, because defendant was not liable, and could not be made liable, under its act of incorporation, for the claim asserted in the declaration; second, because it did not appear that plaintiff had sustained any damages by the death of deceased; third, because deceased was guilty of contributory negligence. The motion was overruled. At the conclusion of the testimony counsel for defendant again moved the court to direct a verdict in its favor. This motion was overruled, and the case was given to the jury. On the evening of the same day, and in the absence and without the knowledge of counsel for either party, the jury were brought into the courtroom and the following proceedings were then had:

The Clerk: Gentlemen, have you agreed upon a verdict?

“Foreman: We have not. * * *

The Court: Are you thoroughly satisfied it is impossible for you to agree upon a verdict ?

“Foreman: I think so.

The Court: It has been a very expensive trial for this county, and a matter we are not interested in locally, and I was in hopes you could agree upon a verdict, but I would rather you should disagree than that any man should violate his conscience in the matter. You are all satisfied you cannot agree, are you ? (Jury answers in affirmative.) The court is satisfied that the deceased was guilty of contributory negligence in the manner in which he approached the bridge on that night, no matter whether it was dark or light. If it was'dark, it was his duty to get off and stop and see what the danger was. If it was light, then he certainly could see what was ahead of him. There can be no question about it. Therefore I take it upon myself to direct you to render a verdict in favor of the defendant of not guilty. You will receive the verdict, Mr. Clerk.”

A verdict was thereupon entered. The case is brought here by writ of error.

The first question demanding consideration is: Was the judge justified in taking the case from the jury upon the ground that it could be said, as a matter of law, deceased was guilty of such negligence as to preclude his recovery. In overruling the motion for a directed verdict the trial judge said:

e c On the point of contributory negligence of the deceased, I think at this stage, anyway, that it is not at all clear that the deceased was guilty of contributory negligence. There is some dispute with regard to the conditions at the bridge and this draw at the time of the accident, and while the plaintiff has not shown that the deceased was without fault on his part, still, in view of the rule established that there is no presumption of negligence upon his part, I think at this time the court is not warranted in directing on that ground.”

There is a printed reeord of upwards of 300 pages, much of it devoted to descriptions of the approach to the draw, the obstructions in the highway, the draw itself, its appearance when the lights were on, the approach to the bridge and on the bridge itself, the way the deceased was riding, his going into the open draw, his knowledge of the situation before the time of the accident, where the body was found, and where the wheel was found. The testimony was not all to the same effect. One of the witnesses who was on the bridge and near the draw testified in part as follows:

“ The swing opened that evening. I heard the signal given before the swing opened. It was a bell, and the occasion of the opening was a boat going through. I never see the boat, but I judge it was an awful slow boat, and it didn’t seem to go through the bridge very fast. I should judge that the swing was open 10 or 15 minutes before the young man rode off. The boat that was going through was not sufficiently large so that it showed any lights to one where we were. I didn’t see any smoke coming from it, and there was no warning or signal or notice of any kind given that the bridge was to be opened other than this bell. I saw the bridge open. I never paid much attention to how they opened it. It was only the second time I ever was on it. The first I saw of young Scharman I and the others got down from the railing, and were going to go and watch the boat come through. .Young Scharman came on his wheel, and he whistled to me, and I got out of his road. With reference to the edge of the end of the bridge, I stood [pointing] along here. This is where he was coming. This is the west fixed span, and I should judge we were right in here [pointing]. * * *

“A. I was walking across from the left-hand side to the right-hand side of the bridge, going east. I was going on to watch the boat come through, and he came up behind me and whistled, and I stepped right out of his road. He was on a bicycle, and, when he whistled, I did not stop or anything. He wasn’t going very fast, and I thought he saw the bridge and was going to stop for it, but he kept right on riding.

‘ ‘ Q. Did anyone stop him ?

‘A. Not to my knowledge.

Q. Did you hear anyone say anything to him at all?

“A. No, sir; I never paid much attention to the electric light until we went to run up there after he went over.

Q. what did you notice, then ?

“A. I noticed it was very dark. I saw him going off over the bridge, and, as soon as he did that, I and Kinsey and Cowan ran up there.

Q. What did you notice as you looked — whether you could see that the swing was open from where you stood ?

“A. Well, sir, I knowed the swing was open.

“Q. Other than that you could see ?

“A. Well, from where I stood we could see the boat on the other side of the swing. They just started through the draw.

Q. But could you see that the swing was open if you hadn’t known it ?

“A. No, sir; I could not.

‘ ‘ Q. Why was that ?

“A. Well, sir, I didn’t seem to pay any attention to it. I knew it was open, and, when I run up there, I went up cautiously. It was pretty dark.

“Q. Was it easy to tell when you got to the place where the swing began ?

“A. No, sir.

“Q. What did you observe or notice?

“A. When we run up there, I couldn’t see that draw myself. * * * There was no person on the bridge that I could see, or did see, between me and the open draw. I guess Tom Paradise and that young lady was the closest of anyone who was on the bridge.

“Q. They were right at the opening ?

“A. Yes; so they say. I could not see from where I was. It was too dark for me to see them.

“Q. When the swing is open, have you noticed the effect that the water has upon absorbing the electric light that is thrown upon it ?

“A. Yes.

“Q. What is that effect?

“A. It is very dark. * * *

Other witnesses testified that the light falling upon the open water made a black looking shadow, and that as deceased approached the west draw, at moderate speed, he looked both up and down the river, and then directly ahead.

It has been held that, in the absence of proof, the presumption is that deceased used due care. Mynning v. Railroad Co., 64 Mich. 93 (31 N. W. 147, 8 Am. St. Rep. 804); Grostick v. Railroad Co., 90 Mich. 594 (51 N. W. 667); Schremms v. Railroad Co., 145 Mich. 190 (108 N. W. 698, 116 Am. St. Rep. 291). Ithas beenheldthat knowledge of a defect in the highway did not necessarily establish negligence on the part of one injured by reason of such defect. Lowell v. Township of Watertown, 58 Mich. 568 (25 N. W. 517). See, also, Dundas v. City of Lansing, 75 Mich. 499 (42 N. W. 1011, 5 L. R. A. 143, 13 Am. St. Rep. 457); Dittrich v. City of Detroit, 98 Mich. 245 (57 N. W. 125); Sias v. Village of Reed City, 103 Mich. 312 (61 N. W. 502). The rule of law was stated by Mr. Justice Christiancy as follows:

“ Courts may not always be able to define precisely all the particulars which would be necessary to constitute diligence under all circumstances, and there may even be cases depending upon a complication of facts and circumstances admitted'or found to be true, in which it would be better to leave the jury to draw the inference of diligence or negligence than to undertake to draw it themselves. * * * It is frequently difficult, perhaps sometimes impossible, to determine how far the question of negligence or reasonable diligence is a question of law and how far a question of fact. It is generally a question of mixed law and fact; and always, when the facts are found or omitted, if they be such that all reasonable men will be likely to draw from them the same inferences, it is a question of law for the court.” Lake Shore, etc., R. Co. v. Miller, 25 Mich. 274, 293.

Negligence and contributory negligence depend upon thé circumstances of the particular case. The general rule is that they are questions for the jury, and they do not become questions of law except on undisputed testimony. Burroughs v. Ploof, 73 Mich. 607 (41 N. W. 704); Fox v. Iron Co., 89 Mich. 387 (50 N. W. 872). This has led to the establishment of the doctrine that all reasonable minds must reach the same conclusion before negligence and contributory negligence will be treated as presenting questions of law exclusively. Sadowski v. Car Co., 84 Mich. 100 (47 N. W. 598); Ashman v. Railroad Co., 90 Mich. 567 (51 N. W. 645); Becker v. Railway Co., 121 Mich. 580 (80 N. W. 581). See, also, Detroit, etc., R. Co. v. Van Steinburg, 17 Mich. 99; Teipel v. Hilsendegen, 44 Mich. 461 (7 N. W. 82); Marcott v. Railroad Co., 47 Mich. 1, 6 (10 N. W. 53); Staal v. Railroad Co., 57 Mich. 239 (23 N. W. 795); Klanowski v. Railway Co., 57 Mich. 525 (24 N. W. 801). Applying these cases to the evidence disclosed by the record, we think it cannot be said, as a matter of law, that the negligence of the deceased was such as to preclude a recovery.

It is urged that the conclusion of the circuit judge ought to stand for the reason that the plaintiff suffered no pecuniary loss, as the son had almost attained his majority. We cannot say from this record that the damages of plaintiff were only nominal. The circuit judge took a different view of that question from counsel, and left it to the jury in his general charge. He put his direction of the verdict explicitly upon the ground of contributory negligence. In any event, the plaintiff would be entitled to the earnings of his son until he had attained his majority. It is said:

“ The conclusion finally reached by the circuit judge is also correct for the reason that the defendant is not liable in an action by a third person for damages for failure to keep the bridge in repair.”

It is contended:

“ The bridge in question is a part of the public streets or highways of the city. It is maintained by the defendant for the public benefit, and neither the city nor the defendant derives any revenue or benefit therefrom, and the members of the commission'serve without compensation. The defendant is simply the established municipal or public agency, charged with the duty of maintaining the bridge.”

The record shows defendant had on hand for purposes of repair and operation upwards of $17,000. The act under which defendant is acting was construed in People v. Bridge Commission, 115 Mich. 622 (73 N. W. 901), where it was held to be the duty of defendant to keep the bridge and its approaches in repair. Sections 5516, 5517, 5518, 2 Comp. Laws, contain provisions as to what is required in relation to gates where a draw or swing is to be operated in a bridge. Section 3441,1 Comp. Laws, reads, in part, as follows:

That any person or persons sustaining bodily injury upon any of the public highways or streets in this State,. by reason of neglect to keep such public 'highways or ' streets, and all bridges * * * on the same in reasonable repair, and in condition reasonably safe and fit for travel by the township, village, city or corporation whose corporate authority extends over such public highway, street, bridge * * * whose duty it is to keep the same in reasonable repair, such * * * corporation shall be liable to and shall pay to the person or persons so injured or disabled just damages. * * * ”

"We think it cannot be said, if plaintiff’s contention as to the facts is true, that there is no liability.

Judgment should be reversed, and new trial ordered.

Blair, C. J., and Montgomery and McAlvay, JJ., concurred with Moore, J.

Ostrander, J.

The court below directed a verdict for defendant upon the ground that plaintiff was, as matter of law, guilty of negligence contributing to his injury. The court was asked to so direct a verdict upon two other grounds, viz.: That there was no testimony to support a substantial recovery for plaintiff; and that defendant was not, in any event, liable in this action. The opinion of Mr. Justice Moore, reversing the judgment and ordering a new trial, is, for the purposes of this case, a ruling in favor of plaintiff upon all of these issues. I do not disagree with Mr. Justice Moore upon the proposition that the question of plaintiff’s contributory negligence was for the jury. I have so much doubt concerning the soundness of his conclusions upon the other points that I have reduced to writing my reasons for believing a different result should be reached.

Plaintiff’s intestate was at the time of his death 20 years, 11 months, and 26 days old. He earned $1 a day, and gave his wages to his father, the plaintiff. Four working days intervened his death and his majority. Upon the theory that the plaintiff was bound to support him and was entitled to his services, $4 only could be recovered. I have found in the record no other testimony tending to prove any pecuniary loss to plaintiff resulting from the death of his son. The father was in no manner dependent upon his son’s earnings. Whether he ever would be so dependent is matter of merest conjecture.

The powers and duties of the defendant, so far as they are important here, are stated in section 4, Act No. 278, Local Acts 1889. See, also, Act No. 315, Local Acts 1891. It has no power to raise money, and such money as is furnished to it is required to be expended exclusively for the purpose of building, repairing, and operating bridges and the approaches thereto. The defendant is a public agency, and not merely a private proprietor, although it seems that title to one or more of the bridges was acquired by it from the county of Bay. But clearly it controls the bridges in the public interest, and could neither dispose of them nor exact tolls for their use. Nor could a judgment creditor acquire the bridges by levy and sale on execution. It would seem that the provisions of 2 Comp. Laws, §§ 5516-5521, do not fix a statutory duty to protect the draw. If there is a statute duty imposed, it must be by 1 Comp. Laws, § 3441. But this section must be read with section 3443. Plaintiff is not proceeding upon the theory that the city of Bay City is liable for the carelessness of the bridge commission or its employés, but upon the theory that defendant is a corporation within the meaning of these sections of the statute, and subject to the liability imposed thereby. It is the city of Bay City which must furnish, by the exercise of the power of taxation, the money to pay a judgment if one is recovered. It is not a party to the suit, and no claim was presented to its governing body. It has no control over those who control and operate the bridges. It is to be noted that by section 3443—

“Highway commissioners, street commissioners and all other officers having special charge of * * * bridges * * * and the care or repairing thereof are hereby made and declared to be the officers of the * * * city or corporation wherein they are elected or appointed, and shall be subject to the general direction of such * * * city or corporate authorities in the discharge of their several duties.”

The members of the defendant commission are elected by the inhabitants of Bay City. It is possible that, when Bay county owned and operated the bridges, the effect of the statute was to impose upon the county a liability, and that the words “corporation” and “ corporations” meant such a municipal corporation as a county. I do not believe it was intended that the defendant should be governed at all by the provisions of the general law. I conclude that, neither at common law nor by statute, is it made liable to answer plaintiff’s demand.

Hooker, J., concurred with Ostrander, J.

Hooker, J.

The plaintiff appeals from a directed verdict in a cause where defendant was sued for causing the death of plaintiff’s intestate through negligence in the management of a drawbridge. The defendant is a corporation created under the provisions of Act No. 278, Local Acts 1889. Section 3441,1 Comp. Laws, imposes liability on all corporations having duty to keep road, etc., in repair. This act was passed in 1887. The case of O’Leary v. Board of Fire & Water Com’rs of Marquette, 79 Mich. 286 (44 N. W. 608, 7 L. R. A. 170, 19 Am. St. Rep. 169), was decided in 1890, and seems to be practically on all fours with this case, so far as the question of defendant’s liability is concerned, especially as the accidents upon which that case is based occurred after section 3441 had taken effect. Section 4, Act No. 278, Local Acts 1889, provides that “all moneys that shall come under the control of this commission by virtue of this act shall be expended exclusively for the purpose of building, repairing and operating said bridges and the approaches thereto,” and it is not authorized to provide money for any other purpose. The application of such fund to the payment of damages arising from accidents would, to use the language of Mr. Justice Campbell, “be a diminution of the power of the defendant to perform its public duties in regard to public * * * safety.” Bee O’Leary v. Board of Fire & Water Gom’rs of Marquette, supra. The judgment should be affirmed.

Grant, J., concurred with Hooker, J.

Brooke, J.

I concur in the result reached upon the ground that plaintiff’s decedent was guilty of contributory negligence, and the verdict was therefore properly directed.

Grant, J.

I also concur in the opinion that plaintiff was guilty of contributory negligence.

ON MOTION EOR NEW TRIAL.

Per Curiam. Motion is made herein on behalf of plaintiff to enter judgment of reversal in spite of the fact that, according to the opinions filed herein, it was apparent that four of the justices of this court believed, upon different grounds, that the trial judge was correct in. directing verdict for defendant. Consultation reveals the-fact that Justices Grant and Brooke did in fact agree with Justices Ostrander and Hooker that a verdict was properly directed upon the ground stated in the opinion of Mr. Justice Ostrander. They did not, however, agree with Mr. Justice Ostrander upon the ground that the question of contributory negligence was for the jury.

Four of the justices of this court, therefore, are agreed that the verdict was properly directed upon the same-ground. In saying this, we must not- be understood as holding that the contention of the plaintiff should be sustained even though the justices concurred in affirmance upon different grounds.

The motion is denied.


text:
    MICHIGAN CENTRAL RAILROAD CO. v. MILLER.
    Eminent Domain — Review—Certiorari—Appeal and Error.
    An application for the writ of certiorari to review rulings made by the circuit court upon preliminary objections in proceedings in eminent domain is premature before verdict.
    Condemnation proceedings by the Michigan Central Railroad Company against Edwin Miller and others: On motion of relator to dismiss a writ of certiorari.
    Submitted August 14, 1909.
    (Calendar No. 23,541.)
    Motion granted August 17, 1909.

      Gray & Gray, for the motion.

      Albert McClatehey, contra.

   Ostrander, J.

A writ of certiorari was allowed to review the determination of the circuit court for the county of Wayne in condemnation proceedings overruling certain preliminary objections to the proceedings, and ordering a jury to determine the necessity for taking certain property and to fix the damages to be paid therefor. A motion is now made to dismiss the writ upon the grounds: (1) That it was prematurely issued; (2) because the proceedings are not reviewable on certiorari. Upon an examination of the application made for the writ we are agreed that no good reason appears for interfering, at this stage of the proceedings, by certiorari, with the action of the circuit court.

The writ will be dismissed as improvidently granted, without prejudice to either party.

Hooker, Moore, McAlvat, and Brooke, JJ., concurred.