text:
    ADSIT v. SMITH. GROVE v. SAME.
    1. Circuit Judges — Compensation—Reduction—Power of Boaru of Supervisors.
    Under section 6, art. 6, of the Constitution, providing that the judges of certain circuits, in addition to the salary of $2,500 provided for by article 9, “shall receive from their respective counties such additional salary as may from time to time be fixed and determined by the boards of supervisors,” the power of such board is not exhausted when it has once voted additional compensation, but it may afterwards revoke the same, even during the term of an incumbent.
    2. Same — Construction of Resolution.
    Where, pursuant to such provision, a board of supervisors had granted an additional salary of $1,000, a subsequent resolution “ fixing the salaries of the county officers and employes as follows: * * * For each of the circuit judges a salary of $2,500, as provided by statute; instead of $3,500, as heretofore ordered by the resolution of this board,” — sufficiently manifested an intention to rescind the former action.

      Certiorari to Kent; Davis, J., presiding.
    Submitted September 24, 1901.
    Decided December 3, 1901.

      Mandamus by Allen C. Adsit and William E. Grove to compel Connor H. Smith, county clerk of Kent county, to issue orders for the payment of salary claimed to be due to relators. From an order granting the writ in each case, respondent brings certiorari.

    Reversed.

      William E. Grove, for relator Adsit.

      Allen C. Adsit, for relator Grove.

      Ward & Brown, for respondent.
   Moore, J.

The two cases are exactly alike, both as to the facts and the law. At the April election, A. D. 1889, an amendment to the Constitution of this State was adopted, which provided for an additional circuit judge for the county of Kent, and also provided that the circuit judges for said county of Kent and other counties named, “in addition to the salary provided by this Constitution, shall receive from their respective counties such additional salary as may from time to time be fixed and determined by the boards of supervisors of said counties.” Const, art. 6, § 6. Acting pursuant to this amendment of the Constitution, the board of supervisors of Kent county, at its October session, A. D. 1891, passed a resolution whereby it was resolved by said board that the “additional salary contemplated by said amendment to the Constitution be and the same is fixed and determined by this board to be the sum of $1,000 per annum to each of said judges from and after the 1st day of November, 1891.” Relators at the April election, 1893, were both re-elected circuit judges for the term of six years commencing on the 1st day of January, A. D. 1894. The said resolution of the board of supervisors, whereby the said salaries of relators had been so fixed and determined, was in force, and they Were receiving their said additional salaries under it, at the time when they were re-elected, and at the time they entered upon the duties of their offices for the second term, At the October session of said board of supervisors in the year 1894, the same being the first regular session of said board after relators entered upon their second terms, the salaries were again fixed and determined at the sum of $1,000 for each of said judges, payable as provided in the first resolution of 1891.

At the October session of said board in the year 1896, the matter of said additional salaries of relators was brought to the attention of said board by a petition, when Mr. Dodge offered the following:

“ I move that the report of the committee on salaries be amended by fixing the salaries of the county officers and employés as follows: *. * * For each of the circuit judges a salary of twenty-five hundred dollars ($2,500), as provided by statute, instead of thirty-five hundred dollars ($3,500), as heretofore ordered by the resolution of this board,”—

Which was adopted.

On the 1st day of November, 1896, the relators each applied to the county clerk of said county for the customary vouchers, in the form of orders made and signed by him, drawn on the said county treasurer, for the payment of their respective salaries for the month preceding, and were informed by him that their salaries would be paid as before until the end of that year, but that no more orders would be given after the said year 1896. Said salaries were so paid until the end of said year 1896, but have not been paid since that time, nor any orders given to relators therefor.

On the 15th day of April, A. D. 1901, relators applied to the respondent, county clerk, and requested him to give to them the proper vouchers to enable them to receive from the said county treasurer their said unpaid salaries, namely, orders to be drawn upon said treasurer, and signed by said clerk, for the payment to relators of their said unpaid salaries then due to them from the 1st day of January, A. D. 1897, to the 31st day of December, A. D. 1899, inclusive, which application respondent denied, and refused to make and deliver to them any voucher or vouchers for their unpaid salaries. The relators claim there is due to each of them, on account of unpaid salary, the sum of $3,000, with interest thereon from the respective times when the same became due in monthly installments as aforesaid. The term of office of these judges expired December 31, 1899, and April 15, 1901, a petition was filed in the circuit court asking that the clerk be compelled to issue an order for the unpaid salary. The matter was submitted to Judge Davis, who ordered the writ issued. The board of supervisors subsequently, by resolution, directed that the case be removed to this court.

The question involved is, What construction shall be put upon the words of the amendment, which provided the circuit judges, “in addition to the salary provided by this Constitution, shall receive from their respective counties such additional salary as may from time to time be fixed and determined by the boards of supervisors of said counties ?” It is the claim of relators “that this provision is mandatory to the extent of imposing the duty to pay some additional salary to the circuit judges on the counties named; that the respective boards of supervisors are clothed by it with the power to fix and determine the amount of such additional salary in their respective counties, and with no other or greater authority; that they are not given the power to say whether the judges shall receive any additional salary or not; that that question is determined by the Constitution, — that they shall receive an additional salary; that the board of supervisors is made the agent to fix and determine the amount, which power is exhausted when the agent has once acted,”— citing Douvielle v. Manistee Co. Sup’rs, 40 Mich. 588; Chapman v. Berrien Co., 50 Mich. 311 (15 N. W. 489); and Wagar v. Bowley, 104 Mich. 38 (62 N. W. 293).

It is contended:

“The Constitution fixes the salaries of the circuit judges, and the power to change those salaries has been withheld from the legislature. The power to change them is reserved to the people, and has never been delegated to any agent. Those salaries can only be changed by amending the Constitution in the manner provided by that instrument. By the Constitution the salaries of the circuit judges are fixed at $2,500 each, and in certain counties, including Kent, it declares that they shall receive salaries in addition to the salary fixed by the Constitution, and the power to fix and determine the additional salary to be paid to each judge is delegated to the boards of supervisors of those counties, respectively. They are made agents of the State to fix and determine the amount of the additional salary which the Constitution declares shall be paid. Pursuant to the provisions of the constitutional amendment of 1889, the board of supervisors of the county of Kent fixed and determined the salaries of the Kent circuit judges at $1,000 each, and, having done that, the board, according to the Douvielle Case, exhausted the power conferred upon it by the amendment to the Constitution. There was no power given to the board to alter, revoke, or change, but only to fix and determine, and those words do not mean change. The judicial business is a public business, not local. The judges are State, not county, officers. Their services are rendered to the State, and not to the counties of their respective districts, and the illegality, as well as the impropriety, of allowing local control or interference is emphatically declared in the Douvielle Case, and pointed out and discussed in the earlier case of People v. Wayne Co. Auditors, 13 Mich. 233, wherein it is said:
“ ‘ Upon an examination of our State polity before and since the adoption of the new Constitution, it will be found that many charges have been laid on counties, as such, where no benefit accrued to them in their corporate capacity, but where it was deemed a fair way of apportioning the public expenses.’ ”

We do not think an examination of the cases will support the conclusions drawn from them by the counsel. In the cases cited the authority conferred was “ to fix and determine ” the amount of salary, and the court held that, when this was done, the board of supervisors had exhausted its authority.

The rule of law in relation to the compensation of public officers has been stated as follows:

“ The emoluments of an office are prescribed and allowed by law, and may be altered, increased, reduced, and regulated by law at all times, except where the constitution has expressly forbidden it.” 19 Am. & Eng. Enc. Law (1st Ed.), 526.

See, also, the long list of cases cited in the note.

Mr. Mechem, in his work on Public Officers, says:

“Unless restrained by the constitution, the power authorized to • fix the compensation may, even during the term of an incumbent, alter or diminish his future compensation, or terminate it altogether.” Mechem, Pub. Off. § 857.

See, also, People v. Common Council of Detroit, 38 Mich. 636; Knappen v. Barry Co. Sup’rs, 46 Mich. 22 (8 N. W. 579); City of Wyandotte v. Drennan, 46 Mich. 478 (9 N. W. 500); Attorney General v. Jochim, 99 Mich. 358 (58 N. W. 611, 23 L. R. A. 699, 41 Am. St. Rep. 606).

We are confronted, then, with the question whether a limitation is placed upon the boards of supervisors to change the additional compensation when it has once been fixed. Section 1, art. 9, of the Constitution fixes the salaries of the circuit judges at the sum of $2,500 a year. Neither the board of supervisors nor the legislature could change the amount fixed in this section, unless authorized to do so by some other provision of the Constitution. The other provision of the Constitution we have already quoted. It does not provide the salary may be made less than $2,500, but, apparently recognizing there may be more work for the judges to do in some circuits than in others, it confers upon the boards of supervisors in these circuits the right to give additional compensation. It does not suggest that, when the board of supervisors has “fixed and determined” the additional salary once, it has exhausted its powers, but, apparently recognizing that the amount of work to be done in a given circuit may change, it provides that the judges in these circuits shall have such “ additional salary as may from time to time be fixed and determined by the boards of supervisors.” Not only is this not a limitation upon the board to act more than once, but it gives them, in express terms, authority to act from time to time.

It is claimed the resolution of October, 1896, does not manifest an intent to rescind the former action of the board in fixing the additional salary. It is said:

“The circuit judges were classed in the Dodge resolution as county officers or employés. The resolution was not aimed at the additional salary, and the only interpretation that can be given to it, if it can be interpreted, is to say that the intention was to fix the salary generally, and say that the circuit judges shall receive only what the State pays, or, to use the language of the Dodge resolution, to fix the salaries of the circuit judges at $2,500 each, as provided by statute.”

We think this a strained construction of the language used. The resolution is not very skillfully worded, but it indicates a clear intention on the part of the board not to give any salary to the judges in addition to the salary conferred upon the circuit judges generally. The wisdom of this action upon the part of the board of supervisors is not for our consideration. We think the Constitution authorized them to act, and the order.of the court below must be reversed.

The other Justices concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    BLISS FURNITURE CO. v. NORRIS.
    1, Contracts — Sale— Mutuality.
    An agreement by A. to furnish certain materials to B. within a stated time in case B. should give an order therefor is void for want of mutuality.
    2. Same — Order and Acceptance — Time of Delivery.
    Where B. ordered certain materials of A., to be delivered by a specified date, and A. replied that he could not guarantee as to time, but would do the best he could, there was no contract to deliver within the time mentioned in the order, and hence A. was not liable in damages because shipment was delayed beyond that time.
    Appeal from Kent; Wolcott, J.
    Submitted October 9, 1901.
    Decided December 3, 1901.
    Petition by the Bliss Furniture Company against Mark Norris, receiver of the. I. L. Quimby Factory, to establish an equitable set-off. From a decree for petitioner, respondent appeals.
    Reversed.

      Walter I. Lillie, for petitioner.

      Crane, Norris & Drew, for respondent.
   Moore, J.

In May, 1900, Mr. Norris, as receiver, brought two suits in justice’s court against the Bliss Furniture Company. A judgment was entered in both cases against the Bliss Furniture Company. The defendant in those cases appealed them to the circuit court, where they are still pending. Thinking it could not avail itself of its claim of set-off in the law cases, this bill was filed, asking for an accounting with the receiver, and to have its claim of set-off allowed, and the prosecution of the law cases restrained. The receiver answered the bill, denying the right of the complainant to any recoupment for several reasons. The answer, among other things, says:

“That, although said set-off as claimed by petitioner is fully cognizable at law, yet the respondent, as an officer of the court, is willing that the question of the allowance of said set-off be determined by the equity side of the court.”

The case was heard in open court, where the circuit judge entered a decree allowing the claim of complainant’s set-off. The receiver, by permission of the circuit judge, has brought the case here by appeal.

There are many questions raised by counsel, but, as one of them is decisive, the others will not be discussed. Prior to September, 1899, the I. L. Quimby Factory, of Grand Rapids, was in the hands of Mr. Uhl as assignee. Mrs. Morley was manager of the business for the assignee. September 6, 1899, the Bliss Furniture Company made a contract with the Macey Company to furnish it certain bookcases and desks for its holiday trade. It is the claim of the Bliss Furniture Company that, previous to making this contract, it had made an agreement with Mrs. Morley, acting for the Quimby Company, to furnish it with certain material to enable it to fulfill the contract, then in contemplation, to be made with the Macey Company, which was made, as tbefore stated, September 6th; that the Quimby Furniture Company failed to furnish this material* in time to enable the Bliss Furniture Company to furnish the Macey Company with the desks and bookcases according to the terms of the contract, making it necessary for the Macey Company to incur expenses for telegraphing to their customers to whom they sold desks and bookcases, and compelling them to send goods by express where they otherwise could have shipped by freight. It is claimed this additional expense amounted to $241.81, and was allowed the Macey Company by the Bliss Furniture Company, and the claim is it should be allowed the Bliss Furniture Company as a set-off against the claim of the receiver.

We think, giving the most liberal interpretation to the testimony of Mr. Bliss as to what occurred between him and Mrs. Morley, it did not constitute a contract. The conversation occurred in August'. It was had in view of the fact that negotiations were then going on looking to a contract with the Macey Company. Mr. Bliss did not then know he should make the contract. He did not agree with Mrs. Morley to take any material. She did not agree to furnish any, but, in reply to his inquiry as to whether she could furnish the material if the contract was made, to use the language of Mr. Bliss, “she said she could take care of us nicely.” No order was then given or accepted. The talk did not constitute a contract, for it lacked mutuality. Mr. Bliss says that Mrs. Morley agreed to get the goods out at a certain time if he gave her the order. "What did he agree to do ? Nothing. He was under no obligation to give an order, or to take and pay for a stick of material, by virtue of that talk. Wilkinson v. Heavenrich, 58 Mich. 574 (26 N. W. 139, 55 Am. Rep. 708); Bailey v. Austrian, 19 Minn. 535; Campbell v. Lambert, 36 La. Ann. 35 (51 Am. Rep. l); Houston, etc., R. Co. v. Mitchell, 38 Tex. 85.

The contract with the Macey Company was, as before shown, made September 6, 1899. No order was sent to Mrs. Morley until September 25, 1899, nearly a month after the talk in August, when the Bliss Company sent a written order to the Quimby Company. This order covers four sheets of paper, and minutely specifies the sizes, dimensions, quantities, style, and dates of delivery of the different materials ordered. The dates specified are November 1, November 15, and December 1, 1899. The Quimby Company acknowledged receipt of this order the same day by a letter in part as follows:

“ Oeeice oe I. L. Quimby Factory.
“C. S. Morley, Manager.
“Grand Rapids, Mich., Sept. 25, 1899.
“Grand Haven, Mich.
Gentlemen: * * * We have also your orders of the 25th for desk falls and backs and dr. bots., and we will do our best to fill the order as quickly as possible; but as. you did not place the order as soon as you intended, we cannot guarantee to get it out complete by the 1st of November ; but, as wte said before, we will do our best. * * *
“Yours very truly,
“C. S. Morley.”

The Bliss Company acknowledged receipt of this letter on September 26, 1899, and do not object to the modification of their order as to date of delivery. Other correspondence followed. In a letter dated November 21, 1899, the Bliss Furniture Company said to the I. L. Quimby Factory:

“You are aware that we are under contract to supply these goods to Mr. Macey at a given.date, and, although we did not place our order as soon as expected, yet we feel that you have had time enough to have done something for us on this particular stock. We do not wish to complain, but we do wish you to realize how important it is for us to have these goods. We trust you will do something for us immediately, and not only send us the 50 sets at once, but send us 300 sets.”

The goods were manufactured and sent on from time to time, but not soon.enough to enable the Bliss Furniture Company to fulfill its contract with the Macey Company. On the 15th of February, 1900, a statement was sent by the receiver to the Bliss Furniture Company, showing $332.57 to be due. Mr. Bliss indorsed upon the same a claim for maple furnished and for damaged goods and repairs, amounting to $31.67, and sent the note of the company for the balance, amounting to $300.90, which is the note sued upon in one of the suits in justice’s court.

As before said, we do not think the oral conversation between Mr. Bliss and Mrs. Morley amounted to a contract. The agreement between these two companies is to be found in the correspondence; and, in reply to the letter giving the order, the Bliss Company were told that, because of their delay, the Quimby Company would not guarantee to furnish the material at the time mentioned in the letter. We think the court erred in allowing the set-off.

The decree will be modified to that extent, and affirmed, with costs of both courts to the receiver.

Montgomery, C. J., Hooker and Long, JJ., concurred. Grant, J., did not sit.


author: Long, J.

text:
    CADILLAC STATE BANK v. CADILLAC STAVE & HEADING CO.
    Corporations — Authority op Agents — Liability on Notes— Evidence.
    In an action against a corporation on certain- promissory notes, the execution of which it denied, it appeared that the corporate name was affixed to the notes by a rubber stamp, “per ” the manager, or “per” a clerk in the company’s office; that such manager was the only member of the corporation residing within the State; that the notes were duly entered on the books of the corporation, and listed in its annual statement; that payments were made thereon from corporate funds; and * that, for three years previous to their execution, notes similarly executed were discounted at the plaintiff hank, and the proceeds used in the company’s business. Held, that a verdict was properly directed for plaintiff.
    Error to Wexford; Chittenden, J.
    Submitted October 10, 1901.
    Decided December 3, 1901.

      Assumpsit by tbe Cadillac State Bank against the Cadillac Stave & Heading Company, impleaded with Nathan E. Staples, on certain promissory notes. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.

      Sawyer & Bishop, for appellant.

      D. E. McIntyre, for appellee.
   Long, J.

This action is brought on eight promissory notes purporting to be executed by the Cadillac Stave & Heading Company; six of them running to the plaintiff, and the other two purchased by plaintiff as trade paper, and all guaranteed by Nathan E. Staples. One of the last two notes was given to Charles L. Ballard as part purchase price for a sawmill bought by Nathan E. Staples and Charles A. Bidlon for their own use, and the other of the two notes was given to James E. Beckwith to enable him to purchase some land. Neither of these two notes was in any way connected with the corporate business, or of any direct or indirect benefit to the corporation. The note to Ballard was for $250, and the one to Beckwith was for $160. The other six notes were all given to Henry Knowlton, cashier of the plaintiff bank, and, including the first two described, amount to the sum of $5,510. On the last of these notes are indorsements which reduce the total amount claimed on all the notes to $4,579.12, and for which amount the court directed a verdict in favor of plaintiff. Defendant corporation brings error.

The defendant corporation pleaded the general issfte, filing an affidavit made by its president, denying the execution of the notes. Defendant Staples did not appear, and his default was duly entered, though he was produced as a witness for the plaintiff during the trial. It appears that the corporate name to all these notes was impressed upon them with a rubber stamp. On three of them the signing of the corporate name was “per N. E. Staples, Manager. ” On the others the corporate name was stamped on “per Charles J. Staples,” a brother of N. E. Staples, who held no official position with the corporation, but who was a clerk in its office.

The defendant corporation was organized under the laws of this State in January, 1894, with only three stockholders, to wit, Job A. Staples, of Elba, N. Y., and his two sons, George K., of Buffalo, N. Y., and the defendant Nathan E. Staples, who alone resided at Cadillac, this State, where the business of the corporation, was carried on. Subsequently portions of the stock were transferred to others by the original owners, but the exact amount so transferred and held by others does not appear. The factory was burned in December, 1899. It also appears that, during all but one year of this time, N. E. Staples was the secretary, treasurer, and general manager of the business of the corporation, and conducted all the Michigan end of the business, with an occasional visit from his father and brother from New York.

■At the inception of the business there was an arrangement made with Tyndall & Jackson, a Buffalo jobbing house dealing in cooperage stock, to take the entire cut of the company, and to furnish a sufficient amount of money to operate the business. This money was furnished monthly; the corporation making a draft upon Tyndall & Jackson, who accepted the same, whereupon the drafts were deposited with the plaintiff bank, and constituted the fund upon which checks were drawn by the corporation to pay operating expenses. These checks were signed with the same stamp with which the corporate name of the corporation was signed to the notes in controversy. These checks were mostly signed by the secretary and treasurer of the corporation, though the custom was not entirely uniform. These acceptances seem to have furnished all the funds used by N. E. Staples in the business of the corporation until the fall of 189?, when it appears he began discounting promissory notes at the plaintiff bank signed by the rubber stamp with which checks and drafts had previously been executed. There was no evidence offered to prove that the other members of the corporation had any knowledge of this practice, or that this fact was ever brought to the attention of the members of the board of directors, or passed upon by them in their official character or otherwise, until the factory had been destroyed by fire, and the notes in controversy were being pressed for payment. After the fire, it appears that the notes in controversy were presented to N. E. and G. E. Staples. There is some evidence, which is not disputed, that G. K. Staples, who was- then vice-president, acknowledged them as valid claims against the corporation; but no evidence was given that the act of the vice-president was authorized by the board of directors, or that the act. was ever ratified by it.

It appears, also, that in February, 1900, the annual statement of the resources and liabilities of the corporation was prepared by the secretary, and by him forwarded to Buffalo to the stockholders. It was thereafter returned to the secretary at Cadillac, accompanied by a letter from J. A. Staples, president of the company, saying: “Report accepted. You are authorized to sign George’s name and mine. File report at once.” This statement was put in evidence by the plaintiff, and showed a detailed statement of the notes held by the plaintiff bank that are in controversy here. The ‘ ‘ George ” referred to in the letter was George K. Staples, vice-president of the company. It also appears that the notes in controversy were duly entered upon the books of the corporation in the due course of business. The corporation afterwards paid upon this indebtedness to the bank the sum of $1,600. The plaintiff, to prove the authority of N. E. Staples to execute the notes, introduced in evidence, under objection, 46 other notes, executed in like manner to the ones in controversy, and which had been discounted by the plaintiff bank. Thereupon, and without any further proof of the authority of the secretary and manager to execute notes or to borrow money for the corporation, the notes in controversy were introduced in evidence, and the amount due upon them proved to be $4,579.12.

At the close of the testimony, counsel asked the court to direct a verdict for defendant. This was refused, and the court directed a verdict in favor of plaintiff, as before stated. We think there was no error in this. It appears that the whole management of the business was left to the secretary and manager, Nathan E. Staples. For nearly three years he gave notes in the name of the corporation, and discounted them at the plaintiff bank. Annual statements were made, and, so far as appears, no fault was found with this management of the business. In February, 1900, the annual statement for the year was forwarded to Buffalo to the stockholders. This statement showed the indebtedness to the bank, and was accepted by the president and vice-president without question. The stockholders, or most of them, lived in Buffalo. The board of directors was there, also. There was no one located in Cadillac who could be inquired of as to the general affairs of the company, except Nathan E. Staples. He was permitted by the president and board of directors to raise money for the corporate business, and for three years, at least, to sign the name of the corporation to notes, and discount them at the plaintiff bank; and this money was put into the business of the corporation. It was said in Hirschmann v. Railroad Co., 97 Mich. 396 (56 N. W. 846):

‘ ‘ The corporation must be deemed to have clothed the agent with authority to do what it has permitted him openly and notoriously to do without rebuke.”

In Olcott v. Railroad Co., 27 N. Y. 546 (84 Am. Dec. 298), it was said:

‘ ‘ The powers of the agent of a corporation are such as he is allowed by the directors or managers of the corporation to exercise, within the limits of the charter; and the silent acquiescence of the directors or managers may be as effectual to clothe the agent with power as an express letter • of attorney.”

It was said by this court in Whitaker v. Kilroy, 70 Mich. 635 (38 N. W. 606):

“We think that persons dealing with such a corporation for work have a right to get their information from the person whom the corporation has put in charge, and cannot be required to go elsewhere, and that contracts so niade are valid contracts, when relating to the ordinary concerns of such business. And, if persons are not sustained in contracting with such superintendents, they can never be safe. They have no means of knowledge except inquiry somewhere, and the person put by the corporation in open charge of the business must have power, as to third persons, to represent it. ”

It was said by this court in the Hirschmann Case, supra:

It is well settled that if an agent of a corporation is allowed to exercise general authority in respect to the business of the corporation, or a particular branch of it, for a considerable time,- — -in other words, if he is held out to the world as having authority in the premises, — the corporation is bound by his acts in the same manner as if the authority were expressly granted.”

See, also, Michigan Slate Co. v. Railroad Co., 101 Mich. 14 (59 N. W. 646), and cases there cited.

We think the court was not in error in directing the verdict in favor of the plaintiff.

The judgment must be affirmed.

Montgomery, C. J., Hooker and Moore, JJ., concurred. Grant, J., did not sit.


author: Grant, J. Hooker, J.

text:
    BEATTIE v. CITY OF DETROIT.
    Municipal Corporations — Paving Contract — Temporary Street Crossings — Personal Injuries — Liability of City.
    Where a paving contract provided that the work should be done so as to interrupt as little as practicable the free use of the street by the public, that street crossings should be kept open so far as practicable, and that no portion of the street should be wholly obstructed without permission of the board of public works, under -whose supervision the work was to be done, and temporary plank bridges were built by the contractor over excavations at various street crossings, it could not be said that, in providing such means of crossing, he acted outside of his contract, notwithstanding a further provision thereof requiring him to guard against accidents by erecting barriers around all excavations; and hence the city was liable to a pedestrian for injuries sustained by reason of the negligent construction of one of such bridges. Grant, J., dissenting.
    Error to Wayne; Carpenter, J.
    Submitted October 11, 1901.
    Decided December 3, 1901.
    Case by Eva M. Beattie against the city of Detroit for personal injuries., From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      jRowland M. Connor, for appellant.

      A. B. Hall and B. J. M. Hally (T. E. Tarsney, of counsel), for appellee.
   Grant, J.

(dissenting). The city of Detroit, through its board of public works, made a contract with one Julius Porath to repave National avenue “in conformity with the specifications and estimates hereto attached and made part of this contract, * * * and according to all the conditions herein named.” The other parts of the contract, so far as plaintiff’s counsel has considered it material to state them, are as follows:

1. “To erect and maintain a good and sufficient fenco, railing, or barrier around any and all excavations necessary for said work, in such a manner as to prevent accidents.”
2. “To do all work * * * in a manner to interrupt as little as practicable the free use of the street by the public.”
3. “Private drives and street crossings to be kept open, as far as practicable, to the satisfaction of the board, of public works.”
4. “Travel upon the street or upon any intersecting street * * * shall not be hindered or inconvenienced needlessly.”
5. “No portion of the roadway or street * * * shall be wholly obstructed without the direction of the board of public works, in which latter case the contractor shall cause plain and properly worded signs, ‘Street Closed,’ announcing such fact, to be placed with proper barricades at the nearest cross street upon each side of such obstructed portion, and upon intersecting streets.”

The further conceded statement of facts is as follows: In July, 1899, the plaintiff was a stranger in the city, visiting her aunt on Elm street. Elm street runs east and west, and crosses National avenue at right angles. The city was repaving National avenue. The work of tearing up the old pavement had been commenced several blocks south of the Elm-street crossing, and was progressing towards Elm street. A trench for the resetting of the new curbstone had been excavated along the easterly line of the National-avenue roadway to a point north of the south crosswalk of the Elm-street intersection. There is a conflict in testimony as to the width of this trench, running from 18 inches to 3 or 4 feet. The depth of the trench was about 3 feet. The old paving blocks in the roadway outside of the excavation had not been disturbed. The roadway of Elm street across National avenue had been left open for the use of the public. Barricades bearing signs of “Street Closed” had been placed, facing north and south, across the roadway on National avenue at the Elm-street intersection, to prevent the passage of teams up or down National avenue. There were no barricades or signs to prevent the passage either of teams along the roadway of Elm street across National avenue, or of pedestrians along the Elm-street sidewalks across National avenue; on the contrary, planks were placed across the trench at the intersection of the south Elm-street sidewalk, for the use of the public desiring to cross National avenue along the south side of Elm street. These planks were placed over the excavation by order of the contractor. There is no testimony that the city either knew, authorized, or sanctioned their use. Plaintiff walked along the south sidewalk of Elm street towards National avenue, and, in walking over these planks, fell, and was injured. She might have passed over to the other side of the street, or passed around the excavation in the street. Her claim is that the planks were unsafe; that, when she stepped upon one of them, it turned and threw her. The court directed a verdict for the defendant, upon the ground that the contractor was acting outside of his contract in providing these planks for travelers to pass over; that the placing of the planks was not obligatory upon him, but was collateral to the contract which he undertook.

Porath’s contract obligated him to protect travelers against excavations he was authorized to make by putting up fences, railings, or barriers to warn travelers, and to keep them from attempting to cross the excavations. It contains not a sentence indicating any authority on his part to bridge these excavations, either for travelers on foot or in carriage. Such temporary bridging was not contemplated by the contract. The negligence of the contractor for which the city is responsible in the first instance must be an act either of omission or commission naturally incidental to the work agreed to be done. For acts of the contractor not thus incidental to the work the city cannot be held liable until it has knowledge, either express or implied, of such acts. Was it understood by this contract that Porath might place planks over the excavations in the street for teams to pass over, in order to interrupt as little as possible the free use of the street by the public ? Clearly not, for the contract expressly contemplated the interruption of public travel by the excavations, • and expressly provided means to prevent travelers from crossing. If Porath had obstructed the street or sidewalk ,by leaving a wagon or piece of machinery in or upon it at night, or by putting his tools or machinery upon the sidewalk or in the street near the excavation, would the city be liable until it had notice of such obstructions? These are not acts of negligence provided against by the contract. They are independent acts of negligence, for which the city is not liable without notice. Could Porath bind the city by his act in inviting travelers to pass over the excavation on two loose plapks, while the contract required him to prevent such crossing by putting up barriers ? No bridge was necessary in order to interrupt as little as possible public travel. A few feet would take the traveler around without any substantial delay or interruption. Besides, delays and interruptions are inevitable in such cases, and the public understand it. Plaintiff testified that “these boards were about four inches apart and about a yard long, and it occurred to me that at night it would be dangerous to walk across those boards on account of their being separated.” No case is cited which involves this question. Cases of liability of municipalities for obstructions and defects in streets and sidewalks are numerous. All of them, so far as I have been able to examine, are cases where the contractor has failed to warn travelers by neglecting to put up signals, lights, or barriers, or to do something to warn travelers of the dangerous character of the situation. I find none where the contractor has assumed to make a temporary bridge for the passage of travelers.

The circuit court was right, and the judgment should be affirmed.

Hooker, J.

In excavating for the setting of the curb, the contractor had not found it necessary to wholly stop public travel across the street. It was only necessary to make a temporary walk, bridging the excavation at that' point, which could be used at all times during the prosecution of the work of setting the curb, except when work was being done at that particular point. Had not the contractor provided a bridge at this point, the city might have complained of a breach of his contract, which provided that he should “do all work * * * in a manner to interrupt as little as practicable the free use of the street by the public.” It provided that even “private drives and street crossings should be kept open so far as practicable,” and expressly stipulated that “travel upon the street [being paved] or upon any intersecting street should not be hindered or inconvenienced needlessly.” Again, it was provided that “no portion of the roadway or street shall be wholly obstructed without the direction of the board of public works.” The foregoing quotations indicate that the city had every reason to suppose that the crossing would be kept open so far as it was practicable, and, as the excavation was somewhere between 18 and 48 inches in width only, the feasibility of a plank bridge would seem palpable; and such a bridge would, if apparently stable, justify a pedestrian in crossing the gutter upon it, instead of walking around the corner in the roadway, to avoid crossing the excavation.

The law imposes upon the city the duty of keeping its ways in a condition reasonably safe for public travel. Necessarily, there must be times when they cannot be in good condition, — as when they are undergoing repairs,— and at such times travelers must heed the obvious dangers. But the city is not absolved from all care and responsibility at such times, nor can it absolve itself by turning the highway over to a contractor. As between it and the public, it must see that such portion of the way as is open for use • — at least where it is so under the terms of its contract with the contractor — is kept in a condition reasonably safe under the circumstances; and if it should be kept open under the contract, it should see that the contract is performed in that respect. In other words, a city cannot, by merely contracting with somebody that he will keep the street in a condition reasonably safe (whether the contract specifies the method or not), relieve itself from the statutory liability, and impose it upon another. Thus a contractor may promise to keep a trench fenced, or signal lamps in it at night, and do neither. One injured in consequence is not without remedy against the city, for the statutory responsibility rests there. Pettengill v. City of Yonkers, 116 N. Y. 558 (22 N. E. 1095, 15 Am. St. Rep. 442); Monje v. City of Grand Rapids, 122 Mich. 645 (81 N. W. 574); Baker v. City of Grand Rapids, 111 Mich. 447 (69 N. W. 740); 2 Dill. Mun. Corp. § 1027, and note; City of Detroit v. Corey, 9 Mich. 165 (80 Am. Dec. 78); Southwell v. City of Detroit, 74 Mich. 438 (42 N. W. 118). It is true that a temporary bridge need not be as well built and safe as a permanent one, and it may be that one or more planks loosly laid over an excavation, to be used for a few minutes, or an hour, day, or week, may be a reasonably safe substitute, for the pedestrian can see the character of the temporary structure, and must act accordingly, and will be held to a corresponding degree of care.

The learned circuit' judge construed the contract to mean that it was the duty of the contractor to interrupt travel for as short a time as possible at a particular point, but was of the opinion that it did not require or authorize him to substitute temporary structures for the more stable ones in common use, and, if he did so, and persons used them, they could only look to him for redress; and hence that, under the circumstances of the case, the contractor should have built no bridge, and that the public would not then have been justified in attempting to cross the gutter, and, if one chose to do so, he would assume the risk, so far as the city is concerned. This is a construction not without force, but we think it loses sight of the provisions of the contract requiring that the roadway should not be wholly obstructed at a given point without authority, and the fact that all of the work was done under the supervision of the city’s board of public works, and also that these bridges were made at the different street crossings during the progress of the work, and the city must have known it. At the very least it would seem to be a question whether the parties did not place upon the contract the construction contended for by the plaintiff. When we take into consideration the fact that the usual, and perhaps necessary, method of setting curb is to complete the excavation for the given section, and follow it by setting the curb, commencing at one end and going to the other, and at a later time completing the gutter, thus necessarily preventing completion at one point in a short time, the construction of the contract contended for by the plaintiff’s counsel does not seem to us unreasonable.

I am of the opinion that the judgment should be reversed, and a new trial ordered.

Montgomery, C. J., Moore and Long, JJ., concurred with Hooker, J.


text:
    MOROSS v. MOROSS.
    1. Divorce — Alimony—Subsequent Allowance.
    Under 3 Comp. Laws, § 8641, providing that, in a suit for divorce, after a decree for alimony or other allowance for the wife and children, the court may, from time to time, revise and alter such decree, where, on entering a decree of divorce, no alimony is allowed, nor the question thereof reserved in the decree, such allowance cannot afterwards be made.
    2. Same — Fraud on Court.
    Where, pending a suit for divorce, defendant voluntarily conveyed his real estate to his father, to put it out of reach of his wife, such action was not such a fraud on the court as would authorize an original bill for alimony 12 years after decree of divorce was entered.
    Appeal from Wayne; Hosmer, J.
    Submitted October 22, 1901.
    Decided December 3, 1901.
    Petition by Louisa Moross against Victor J. Moross for an allowance of alimony. From a decree dismissing the petition, petitioner appeals.
    Affirmed.

      William E. Walsh (George Gartner, of counsel), for petitioner.

      William B. Jackson (Gutcheon, Btellwagen & McKay, of counsel), for defendant.
   Long, J.

It appears that in February, 1889, Louisa Moross filed her bill for divorce against defendant. The ground alleged was extreme cruelty. There was a child, a girl three years old. The bill alleged that the complainant was destitute, and without means of support; and that “the defendant is seised and possessed of real estate in the city of Detroit to the value of at least, as she is informed and believes, $1,200, and that he has an annual income, as she is informed and believes, from said property, of at least $6 per month.” The prayer of the bill was for the custody of the child, and also for permanent alimony. On February 13, 1889, subpoena was served on defendant personally. The underwriting on the subpoena stated, “A personal decree is sought against the defendant,” etc. On July 29, 1889, a decree of divorce was granted complainant, which gave her the custody of the minor child. No provision or allowance for alimony was made in the decree. The child died in 1896. From the time of granting the decree until the death of the child she was taken care of and provided for by complainant, no part of the expense being borne by defendant, nor has he since the granting of the decree in any way contributed to the support of the complainant.

In January, 1901, the complainant filed her petition in the same court, alleging that, at the date of filing her bill for divorce, the defendant was the owner of real estate oi the value of $1,500, which, on the date of the service of the subpoena upon him, was by him conveyed to his father for the pretended consideration of $1,200; that, when the divorce was granted, complainant believed that such conveyance had been made in good faith, and that by reason thereof her permanent alimony could not be enforced and collected; and that, therefore, the question of her permanent alimony at the time of granting such decree was not considered, but left for further adjudication. It is also alleged in the petition that complainant has but lately learned that the conveyance of defendant to his father was fraudulent, and made for the purpose of defeating and defrauding complainant in obtaining alimony. The petition also sets up the mental and physical condition of complainant, brought about by the cruel treatment of defendant. It also alleges, in substance, that, at the time of the divorce, defendant expected to come into possession of property as one of the heirs of his father, and that lately he has come into possession of considerable wealth by reason of the death of his father, as well as into the possession of the real estate" fraudulently conveyed at the time of the service upon him of the subpoena in the divorce case.

The defendant filed an answer to this petition. The proceedings in the divorce case were admitted in evidence. The answer alleges that the conveyance to the father was made in good faith. The other matters alleged in the petition are left by the answer for the complainant to prove, and the statute of limitations is alleged as a bar. The case made by the petition, answer, and replication \yas brought on for hearing upon proofs taken in open court. The court refused to grant the alimony, and dismissed the petition, for the reason, as stated by him,.that:

“ I do not think that this case comes within the terms of the statute, and for this reason, and this alone, I am constrained to hold that no powér now exists to grant alimony, although I feel from the testimony that this is a case where alimony should be given were it within the power of the court.”

Complainant has appealed from this order.

The statute referred to by the court provides:

“After a decree for alimony or other allowance for the wife and children, or either of them, and also after a decree for the appointment of trustees to receive and hold any property for the use of the wife or children, as before provided, the court may, from time to time, on the petition of either of the parties, revise and alter such decree respecting the amount of such alimony or allowance, and the payment thereof, and also respecting the appropriation and payment of the principal and income of the property so held in trust, and may make any decree respecting any of the said matters which such court might have made in the original suit.” 3 Comp. Laws, § 8641.

Had any provision for alimony been incorporated in the original decree, there can be no doubt that, under this statute, the court would have the power to grant a further allowance now. It is the contention of counsel for complainant that, under the circumstances shown by the proofs, the court has the power to make further allowance, as it is shown that defendant perpetrated a fraud upon the complainant and upon the court. It is also contended that the present petition or bill may be treated as a bill of review, or as an original bill to impeach the decree for the fraud used in obtaining it.

In Adams v. Seibly, 115 Mich. 402 (73 N. W. 377), it appeared that the court in the original proceedings for the divorce expressly reserved the question of alimony, and in the subsequent proceedings, commenced in 1895, alimony was allowed. The holding of the circuit court was affirmed in this court, but it was expressly stated that the question of alimony had been reserved in the original proceeding. In the' present case the original bill contained a prayer for permanent alimony, but no mention of alimony was made in the decree; and we are not prepared to say that, after this lapse of time, the matter can now be opened. If it could, under any circumstances, now be litigated, we think the facts would not warrant it. It is shown in the petition that the defendant was possessed of about $1,500 worth of land, and that, on or about the day the subpoena was served on him, he deeded the same to his father, and that, therefore, the complainant did not press the question of alimony, which is the reason the decree did not provide for alimony, but that she has lately discovered that this deed was given without consideration. We think this is no showing that the transfer was a fraud upon the court. If the complainant had desired a decree for alimony at that time, undoubtedly the court would have considered the fund arising from the sale of the land sufficient to base the decree for alimony upon. Defendant had none the less property to pay alimony with if he had the avails of the sale to his father than he would have had if he had kept the land. The fact that he has come into considerable property since that time can have no weight in determining the question of the fraud upon the court. We think the court was not in error in holding that, under this statute, he had no power to grant alimony. From the same consideration it must follow that the bill cannot be treated as a bill for review and further relief granted thereunder.

Counsel for petitioner, however, relying upon the rule laid down in Adams, Eq. (4th Am. Ed.) p. 833, contend that this bill or petition may be treated as an original bill, and the relief granted. Were we able to find in the case any facts or circumstances showing a fraud upon the court, or fraud used in obtaining the decree, we might feel like treating this as an original bill, and allow the question of alimony to be determined, even after this lapse of time. That question will not, however, be determined here, as we are well satisfied that such fraud is not shown. In any view of the case, we think the court was not in error in his conclusions.

The order below must be affirmed.

The other Justices concurred.


text:
    OVERSEER OF HIGHWAYS OF ROAD DISTRICT NO. 4 OF ST. IGNACE TOWNSHIP v. PELTON.
    1. Injury to Bridge — Treble Damages — Liability.
    2 Comp. Laws, § 4160, giving treble damages for injuries to bridges, does not apply to cases of mere negligence, but only to those involving something of willful misconduct.
    2. Same — Misconduct of Contractor.
    One who contracts for logs to be delivered to himself at the mouth of a stream cannot be held liable under 2 Comp. Laws, § 4160, for injuries to a bridge over the stream, due to the wrongful acts of the contractor.
    Error to Mackinac; Shepherd, J.
    Submitted October 25, 1901.
    Decided December 3, 1901.

      Case by the overseer of highways of road district No. 4 of St. Ignace township against David Pelton and William Reid for injury to a public bridge. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Affirmed.

      James McNamara, for appellant.

      Henry Hoffman, for appellees.
   Long, J.

This action was brought under section 4160, 3 Comp. Laws, for the alleged willful destruction of a bridge over Pine river, in St. Ignace township. The statute reads:

‘ ‘ Whoever shall injure any bridge maintained at the public charge, or any public road, by drawing logs or timber on the surface of any such road or bridge, or by any other act, shall be liable in damages to three times the amount of the injury, to be recovered in an action of trespass or on the case by the overseer of highways of the road district within which the injury was done, in his name of office, to be expended by him in the repair of roads in his district,” etc.

It appears that the defendants are lumbermen, and operate a sawmill at Cheboygan. Pine river has its head waters in Chippewa county, and flows southerly through the eastern portion of Mackinac county, and empties into Lake Huron. The bridge in question crosses Pine liver in St. Ignace township, some two or three miles from the mouth of the river. During the winter of 1898 and 1899 one Robert Bolton cut about 1,000,000 feet of logs near the river, under a contract with defendants, by the terms of which Bolton was to cut and deliver them into a boom at the mouth of Pine river. Other parties were also cutting and putting logs into the river above where Bolton was putting his in. In the latter part of April, 1899, Bolton took a raft of pine logs that were cut under the contract with defendants down the river, under the bridge, and delivered them, to defendants. The defendants took no charge of this raft. There were logs left along the banks, some belonging to defendants, which had been cut by Bolton under the contract, and some belonging to other parties, and these logs became somewhat jammed above the bridge. The attention of one R. M. Woods, foreman of defendants, was called to the condition of this jam by the overseer of highways, but nothing was done by him about removing the jam, though the overseer at that time made a passage through the pulp wood that formed part of the jam, and put some logs through under the bridge. Some 30 days after this a heavy freshet occurred, raising the water in the stream to about the height of 12 feet. The witnesses seem to agree that, by reason of this sudden freshet, the logs, some belonging to the defendants and some to other parties, were piled up and cast against the bridge, carrying away the center abutment, and destroying the bridge.

Counsel on the trial below asked the court to direct the verdict in favor of defendants for the reasons:

“1. Because, under the declaration and the testimony in this case, the plaintiff is not entitled to recover. The testimony, if it has any tendency whatever, only tends to show a mere negligence on the part of the defendants, and the statute not being applicable to cases of that kind.
“2. Because there is-a variance between the declaration and the proofs.
“3. Because, on the undisputed evidence in this case, it appears that the proximate cause of the injury was not the logs at Pine river, but the extraordinary and unusual flood and freshet that occurred at that time, bringing with it large quantities of pulp wood and driftwood, and forming a jam at the bridge.
“4. Because the undisputed evidence shows that what-' ever logs were driven on this river in the spring of 1899 were driven by one Bolton, who was a jobber, and had full control of the logs until they were delivered in booms1 at the mouth of Pine river.”

The court directed the jury as follows:

Gentlemen of the Jury : The court has decided to relieve you of all responsibility in this case, and direct a verdict of no cause of action. For the purpose of getting it upon the record, I will say that the reason is based upon the statute itself, which is, I may say, semi-criminal; that is, it is a punitory.statute, — that is, it is one of these statutes that seeks to punish people for an injury to a highway. The court holds that it is intended thereby to punish active injury and interference with the highways, or injury which follows from such gross negligence as to amount to a culpable and wanton negligence. Th6 court fails to find from the testimony in this case that there is any testimony tending to show that the defendants actually trespassed upon this bridge or injured it, or that they were guilty of such gross negligence as amounts to a culpable and wanton negligence; and for that reason you will, without leaving your seats, render a verdict of no cause of action.”

We think the court was not in error in this ruling. It is apparent that, if any action could be maintained under this statute for the injury or demolition of the bridge, it could not be against the defendants. Their contract with Bolton was that he should drive these logs to the mouth of the river. The stream is a navigable highway for the purpose of floating logs, and the defendants could not be held personally liable for the willful negligence of Bolton in driving them. This statute was before this court in Shepard v. Gates, 50 Mich. 495 (15 N. W. 878). It was there said:

“Inasmuch as'treble damages are in their nature punitory, it cannot be assumed they were designed to be inflicted in any case not clearly defined, or in any case not involving something like willful wrong. The statute applies to nothing but active injuries proceeding directly from unlawful acts. * * * It also follows that such damages cannot arise from mere neglect, but must come from active misconduct. ”

The mere fact that defendants’ foreman, R. M. Woods, was notified of the jam of logs some 30 days or more before this freshet, and was asked to remove it, would not make the defendants liable. They had nothing whatever to do with running the logs, nor was the foreman employed in doing so. The contract was with Bolton. The defendants are not shown to have been guilty of any willful misconduct in the premises.

The judgment must be affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    KLASS v. CITY OF DETROIT.

    1. Statute of Limitations — Estoppel.
    An estoppel to plead the statute of limitations can only be founded on conduct naturally calculated to induce plaintiff into a belief that his claim would be adjusted if he did not sue.
    2. Same — Municipal Corporations — Actions for Negligent Injuries.
    Under the charter of defendant city, actions for negligent injuries must be brought within one . year after the injury was received. Plaintiff claimed to have been inj ured by a defect in defendant’s street on December 81,1895. In January, 1896, his claim was presented to the common council, who referred it to a committee. In September the committee reported adversely to the claim, which report was on the same day accepted and adopted by the council. The action of the council was duly published, but no personal notice was given to plaintiff, and he did not learn thereof until March, 1897. The committee continued to take testimony from time to time, aided by the city counselor, until March, 1897, when suit was commenced. There was nothing to indicate, however, that the committee knew that plaintiff was ignorant of the council’s action, or knew that he was forbearing to sue by reason of the negotiations. Held, that the city was not estopped to set up the limitation of the statute.
    Error to Wayne; Brooke, J.
    Submitted October 22, 1901.
    Decided December 3, 1901.

      Case by Nicholas Klass against the city of Detroit for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      William, F. Atkinson, for appellant.

      P. J. M. Hally and A. B. Hall (T. F. Tarsney, of counsel), for appellee.

       Rehearing denied December 21, 1901.

   Hooker, J.

The plaintiff claims to have been injured through a failure of the defendant to keep its street in repair on the 31st of December, 1895. On January 7, 1896, his petition was presexxted to the common council in compliance with the statute (section 46 of an act approved June 1, 1895), which provides that:

“No action shall be brought against said city, nor any of its boards, commissions, or officers, for any negligent injury, unless it be commenced within one year from the time when the injury was received, nor xxnless notice shall be given in writing, within three months from the time of such injury, to the head of the law department, or to his chief assistant, of the time, place, and cause of such injury, and of the nature thereof. The provisions of this section shall not be a bar to a suit for any injury for which there is now a lawful cause of action, but for every such injury suit shall be commenced within six months from the time when this act shall take effect.” Act No. 463, Local Acts 1895.

The action in this cause having been commenced on March 23, 1897, the court directed a verdict for the defendant upon the ground that it was barred by the statute, and the plaintiff has brought it to this court by writ of error.

The plaintiff’s testimony shows that in January, 1896, the claim was referred by the council to its committee on claims and accounts, and that testimony was taken before such committee in June, September, October, and December, 1896, and in January, February, and March, 1897; the last being taken about 10 days previous to the time the action was begun, when the city counselor told plaintiff’s counsel that a settlement could not be made. The' committee made a report to the council on September 1, 1896, adverse to the claim, with the recommendation that the prayer of the petitioner be denied, and this report was accepted and adopted on that day. The plaintiff was not aware of the report or its adoption, and his counsel testified that negotiations with the corporation counsel and committee for a settlement were going on up to March, 1897, when he was informed that a settlement could not be-made, and suit was commenced. Counsel for the plaintiff contends that these facts estop the city from claiming- the benefit of the statute. The case of Renackowsky v. Board of Water Com’rs, 122 Mich. 613 (81 N. W. 581), is cited in support of this contention. It holds that where a defendant has, by its conduct, deceived a plaintiff into the belief that a suit to enforce his rights is unnecessary, and thereby lulled him into a feeling of security, and induced him to forego suit in expectation of a settlement, the statute will not bar an action.

Defendant’s counsel urged, and the trial court appears to have been of the opinion, that the action of the council in disallowing the claim in September, 1896, deprived the committee of further power, and that its subsequent action was not the action of the council. The committee never had authority to do more than to investigate and report, and with the acceptance and adoption of its report its authority ended. There is no indication of secrecy on the part of the council. Its action was public, and it was published. There was no obligation upon it to notify plaintiff or his counsel of its action, and there is nothing in the record to show why the committee or city counselor permitted negotiations to continue after such report. We are not informed that these negotiations were more than a listening to importunities of plaintiff’s counsel, and a patient hearing and investigation of what he had to offer, with a view to recommend some recompense for plaintiff’s injury if convinced that he had a meritorious case, notwithstanding the statute had run against his right. of action; and there is nothing to indicate that the members of the committee had a suspicion that plaintiff did not know that the council had taken action, and there is nothing in the record that indicates that the council, or even the committee or city' counselor, supposed that the plaintiff was deferring the commencement of suit in reliance on a supposed intention to adjust his claim.

The statute is an unambiguous limitation on the right to bring an action after the lapse of a year. It was presumably known to the plaintiff and his counsel. The common council was under no obligation to take any action, and, had it pursued that policy, the plaintiff could not maintain an action not begun within the statutory period. But the council did take action, and solemnly resolved that plaintiff had no legal claim, by adopting the report of the committee. It did not notify the plaintiff, and it was under no obligation to. The case is barren of the usual elements of an estoppel, and is therein plainly distinguishable from the Case of Renackowsky, supra. That case was heard upon demurrer to a declaration which alleged that the defendant recognized plaintiff’s right of action, made payments thereon, and adopted a resolution, before the statute had run, to the effect that the plaintiff should receive full pay so long as he was disabled, and that it finally declined to pay after the statute had run. In the case of Armstrong v. Levan, 109 Pa. St. 177 (1 Atl. 204), upon which the Renackowsky Case is based, a distinct promise to pay was made in consideration that the plaintiff would not sue. So, in the case of Voorheis v. Benefit Society, 91 Mich. 474 (51 N. W. 1110), Mr. Justice Long says:

“The company could not delay the party entitled to bring suit by promises of payment and overtures for settlement. beyond the period fixed for bringing the suit, and then set up in its defense that the action was not brought within the limit of time stated in the contract.”

• This case, however, did not involve a statute of limitation.

The-legislature has found reason for requiring actions against cities to be promptly brought, and a strict construction of its enactment would defeat all actions brought after the expiration of the period fixed by law. It is a legal maxim that nothing can interrupt the running of the statute of limitation, and it is commonly stated without any qualification. But the courts have ingrafted upon statutes of limitation an exception based upon estoppel. This seems to be limited to cases involving an intentional or negligent deception, and the remedy used to be a bill in equity to enjoin the pleading of the statute. Holloway v. Appelget, 55 N. J. Eq. 583 (40 Atl. 27, 62 Am. St. Rep. 827). See 13 Am. & Eng. Enc. Law, 719, and notes. In the case of Derrick v. Insurance Co., 74 Ill. 404, it was held that where there was a compromise and settlement of the loss upon an insurance policy within the period prescribed by the policy for a commencement of suit, which compromise was afterwards found to be fraudulent upon the part of the company, and suit was brought upon the policy seasonably after the fraud was discovered, but not within the period prescribed, the company was estopped to make the defense of the limitation provided by the policy, upon the ground that it had waived such right by holding out a reasonable hope of adjustment. See, also, Peoria, etc., Ins. Co. v. Whitehill, 25 Ill. 466; Farmers’, etc., Ins. Co. v. Chesnut, 50 Ill. 111 (99 Am. Dec. 492). Where a prior suit was dismissed upon the promise by the defendant to pay or settle plaintiff’s claim, and the statement that there was no use of proceeding in the courts, the court held that the defendant was estopped from pleading the statute of limitations. Home Ins. Co. v. Myer, 93 Ill. 271. Where parties agreed that the plaintiff should accept the defendant’s account in discharge of all or a part of its claims against the defendant, when they should be afterwards settled or adjusted, and defendant, relying upon this agreement, was induced not to bring his action, it was held that the plaintiff was estopped to plead the statute of limitations. Swofford Bros. Dry-Goods Co. v. Goss, 65 Mo. App. 63. To the same effect is the case of Missouri Pac. R. Co. v. B. F. Coombs & Bro. Commission Co., 71 Mo. App. 299. In Barcroftv. Roberts, 91 N. C. 363, it was held that a party would not be allowed to set up the statute of limitations in bar of the debt where it appeared that the delay in suing was caused by the promise by himself or attorney that the claim would be settled, and no advantage should be taken of the lapse of time. See, also, Gentry v. Barron, 109 Ga. 172 (34 S. E. 349); Union Trust Co. v. Peters, 72 Miss. 1058 (18 South. 497, 30 L. R. A. 829); Lengar v. Hazlewood, 11 Lea, 539; Matthews v. Matthews, 66 Miss. 239 (6 South. 201).

In Moore v. Moore, 103 Ga. 517 (30 S. E. 535), it was held that a mutual mistake does not create an estoppel to plead the statute of limitations. In North Carolina it was held that a request not to sue will not stay the statute, but it must be an agreement, not to plead it. Haymore v. Commissioners of Yadkin, 85 N. C. 268; Hill v. Hilliard, 103 N. C. 34 (9 S. E. 639); Raby v. Stuman, 127 N. C. 463 (37 S. E. 476). In McFaddin v. Prater, (Tex. Sup.) 3 S. W. 306, it was held that an innocent misrepresentation concerning the boundary between the lands of the parties would not estop the pleading of the statute. In Railway Conductors’ Benefit Ass’n v. Loomis, 124 Ill. 560 (32 N. E. 424), where there were no promises to pay, and nothing holding out hopes of adjustment, it was held that there was no estoppel.

It is apparent from the foregoing that the usual rules pertaining to estoppel should he applied in such cases, and that the defendant will not be precluded from availing himself of such defense unless it can be fairly said that he is responsible for deceiving the plaintiff, and inducing him to postpone action upon some reasonably well grounded belief that his claim will be adjusted if he does not sue. In both of the cases cited by counsel such estoppel rested upon a promise to pay, and in one, if not both, there was an express promise not to sue, induced by the promise to pay. As said in the Armstrong Case, all of the elements of an estoppel were present. Here they were not all present. It does not appear that those assuming to act for the city knew that plaintiff was ignorant of the action of the council,.or knew that the plaintiff was forbearing to sue by reason of the negotiations; and' there is an absence of anything in the nature of a promise to pay as a consideration for forbearance, and of anything in the nature of a recognition of plaintiff’s right of action. Unless we are to say that the statute is a bar in no case when negotiations are continued beyond or renewed after the period of the statute, we cannot sustain plaintiff in his contention, and we find no case justifying so broad a rule.

The judgment of the learned circuit judge is affirmed.

The other Justices concurred.


author: Grant, J.

text:
    RUSSELL v. WHEELER.
    1. Executors and Administrators — Accounting—Mortgages— Validity — Payment—Subrogation.
    An administratrix petitioned the probate court for leave to borrow §1,500 by way of mortgage on land of the estate which was already incumbered to the amount of §1,900. It appearing to the court that she could not negotiate a loan with the existing mortgages undischarged, she was licensed to mortgage the land in a sum not exceeding §3,000; whereupon she gave a mortgage for $2,800, and from the proceeds paid the prior incumbrances, the amount and validity of which were undisputed. On an accounting by the administratrix, held:

    (1) That, conceding the invalidity of the last mortgage, the result to the estate would remain unchanged, as the administratrix was at least entitled to be subrogated to the rights of the prior mortgagees.
    (2) That, if the administratrix was to be charged with, the proceeds of the mortgage given by her, she should be credited with -the amounts paid to satisfy the prior mortgages, though the mortgage debts were not proved as claims against the estate.

      2. Same —Rents and Profits — Widow’s Ocoupanoy op Homestead.
    Where a husband died leaving a farm, and his widow, who was also administratrix, continued to occupy it with their children, and the statute did not, at the time of her appointment, entitle an administrator to the possession of the real estate, her possession will be presumed to have been under her homestead and dower rights, and she should not be charged with rents and profits in her account as administratrix.
    3. Same — Correction op Account.
    Where, by mistake of her attorney, the widow charged herself with such rents in her final account, the account was properly amended on the hearing by striking out such charge.
    Error to Kalamazoo; Adams, J.
    Submitted October 25, 1901.
    Decided December 3, 1901.
    Henrietta Russell appealed from an order of the probate court settling her final account as administratrix of the estate of Charles P. Gage, deceased. She prevailed in the circuit, and Mary Wheeler, an heir, brings error.
    Affirmed.
    One Charles P. Gage died January 28, 1878, leaving a widow (now Mrs. Russell), a son nine years old, and a daughter, Mary, four years old (now Mrs. Wheeler), the contestant here. The widow was appointed administratrix. The property of the estate consisted of a farm of 120 acres, about 80 acres under cultivation, appraised at $4,500, and personal property at $1,178.07, making the total assets $5,678.07. Of the personal property, $288.35 was set apart to the widow under the statute. There were two existing mortgages upon the real estate, amounting to $1,900, and a chattel mortgage upon the personal property of $185. The debts allowed were $2,234.98. The mortgage debts were not proved against the estate, the mortgagees relying upon the security of the liens. The real value of the assets of the estate, after deducting these amounts, was, upon the basis of the appraisal, $1,069.74. This includes the widow’s right of dower and the value of her homestead. Soon after her appointment, , she filed a petition for leave to mortgage the real estate for the sum of $1,500. In it she stated the amount of the debts allowed, and the expense of administration as $100, and that $304 per annum was required to support herself and family. The probate court made an allowance to her of $7 per week for the support of the family pending the settlement of the estate. She could not negotiate a third mortgage, and so reported to the probate court. She could, however, borrow $2,800 from one Warren upon a mortgage, if the other two mortgages could be paid. The probate court entered an order authorizing the mortgage of the farm for a sum not to exceed $3,000. With this she paid the existing mortgages upon the land, amounting to a little over $1,900, and applied the balance, nearly $900, in payment of the debts. An order was entered confirming the mortgage. The proceedings were regular, the only defect alleged being tbe order for a mortgage of $2,800 upon a petition for $1,500.
    Mrs. Russell had no business experience,- and did not appreciate the importance of keeping accounts, and kept none as administratrix. She continued to live upon the place with her children, oftentimes doing fieldwork in addition to the housework; hired help in the field; brought up and educated her children; and continued to pay the debts of the estate as fast as she got money, borrowing some from her mother and son for that purpose. She paid as principal and interest upon the Warren mortgage $3,161.78. She paid the chattel mortgage by selling to the mortgagee some of the property covered by it, and the balance in cash. She finally abandoned all hope of paying the Warren mortgage, and it was foreclosed before the proceedings for an accounting were commenced.
    ' February 1, 1900, she filed her account as administratrix, in which she charged herself with the appraised value of the real estate, personal property, and the cash received upon the Warren mortgage, and with the use of the farm for 22 years, at $150 per year. She credited herself with • debts paid, including the mortgages, taxes, and expenses of administration, and claimed a balance due her of $1,541.73. The probate court found that she was indebted to the estate in the sum of $2,091.02. This was arrived at by charging her with two-thirds of the rental value of the farm for 12 years, at $275 per year, and the cash received on the Warren mortgage, and by not allowing her the payment of the mortgages made by her husband, and which she paid out of the $2,800. Mrs. Russell appealed to the circuit court, where the case was tried without a jury, and a judgment rendered in her favor of $1,361.20. Upon the trial in the circuit court, upon the motion of counsel for the administratrix, the circuit judge struck from the account the item of rent, upon the ground that, under the law as it stood when the widow was appointed, she was not entitled to the use and possession of the real estate as administratrix.

      Howard, Boos & Howard, for appellant:
    Cited, to the point that the administratrix should account for the rents and profits: Wilson v. Wilson, 17 Ohio St. 150 (91 Am. Dec. 125); Conger v. Atwood, 28 Ohio St. 134 (22 Am. Rep. 362); Simpson v. Snyder, 54 Iowa, 557 (6 N. W. 730); Brooks v. Jackson, 125 Mass. 307, and cases there cited.

      Jesse B. Cropsey and Boudeman & Driver, for appellee:
    Cited to the contrary: Griswold v. Chandler, 5 N. H. 492; Lucy v. Lucy, 55 N. H. 9; Conger v. Atwood, 28 Ohio St. 134 (22 Am. Rep. 362); McCoy v. Scott, 2 Rawle, 222 (19 Am. Dec. 640); Schwartz’s Estate, 14 Pa. St. 42; Terry v. Bale, 1 Dem. Surr. 452; Scroggs v. Stevenson, 100 N. C. 354 (6 S. E. 111); Newcomb v. Stebbins, 9 Metc. (Mass.) 540; Bucher v. Bucher, 86 Ill. 377; Hendrix v. Hendrix, 65 Ind. 329; Evans v. Hardy, 76 Ind. 527; State v. Barrett, 121 Ind. 92 (22 N. E. 969); State v. Brown, 2 Har. (Del.) 5; Slaughter v. Froman, 2 T. B. Mon. 95; Oldham v. Collins, 4 J. J. Marsh. 49; Smith v. Bland, 7 B. Mon. 21; Wilson v.
      Unselt's Adm’r, 12 Bush, 215; Mock v. Pleasants, 34 Ark. 63; McPike v. McPike, 111 Mo. 216 (20 S. W. 12), and cases there cited.
   Grant, J.

{after stating the facts). All the assignments of error, which are many-, present only four propositions, and are so discussed by counsel. The four questions are:

1. Is the mortgage authorized by the probate court void because authorized and issued for a larger amount than asked for in the petition ?
2. Should the payment of the mortgage debts be excluded from the administratrix’s account because they were not allowed by the probate court, and she be held liable therefor ?
3. Must she be responsible for the rents and profits ?
4. Was the ruling of the court in striking out the item of rents from her account correct ?

1. I think that the mortgage is valid. It is not, in fact, in excess of the amount asked for in the petition. No claim is made that the two mortgages were not valid, or that the administratrix paid any more money than was due thereon. If the administratrix could have secured a loan of $1,500 subject to the other two mortgages, or if Mr. Warren had bought those mortgages and taken a third for $1,500, the situation of the estate would have been precisely the same as it is now, with the old mortgages paid out of the money received on the new. The result accomplished was the same, viz., the shifting of the security upon the real estate from one party to another. Under a petition to sell, it was held competent for the court to authorize a mortgage to pay debts. Cahill v. Bassett, 66 Mich. 407, 415 (33 N. W. 722). But my Brethren think its validity is doubtful. If, however, the mortgage were void, the administratrix would clearly be entitled to be subrogated to the rights and liens of the former mortgagees. Detroit Fire & Marine Ins. Co. v. Aspinall, 48 Mich. 238 (12 N. W. 214). The contestant would therefore gain nothing by maintaining its invalidity. The cases cited by counsel do not support their contention.

2. The position taken by the contestant is anomalous. She says that the Warren mortgage is void, but is-valid to charge the administratrix with the full amount received thereon. If void, the foreclosure sale is void, and contestant still has her interest in the land. Why should she be charged with this amount, and not be credited with the amounts which she has honestly paid out upon the debts of the estate in an attempt to save something for the heirs ? These mortgage debts were debts due against the estate. In re Lambie’s Estate, 94 Mich. 489 (54 N. W. 173). Contestant’s counsel concede that the administratrix might have petitioned the probate court, setting forth that these mortgage debts had not been proved, that they were valid, and asked authority to pay them. There is no statute upon the subject. We see no reason why she should put the estate to the expense of such proceedings, where no question is raised as to the validity or the amount of the mortgages, or as to the right of the mortgagees to rely exclusively upon their liens. Had she neglected to take care of these mortgages, and loss had been entailed upon the estate, undoubtedly she would be liable for not paying.

3. Under the statute existing when letters of administration were issued in this case, and for some time thereafter, the administrator was not entitled to the possession of the real estate. The only'authority he had over it was to sell or mortgage it, under the authority of the probate court. Mrs. Gage continued to live with her family upon this farm, without any change in the character of her possession. She had a right to occupy it as a homestead for herself and her children. She had also a dower interest in it. There is not a scintilla of evidence tending to show that she was in possession as administratrix until she filed her account, in February, 1900. It will be presumed that she was in possession in accordance with law, rather than in opposition to law. Her bondsmen did not sign her bond upon condition that she should do things which the law did not permit, but only those things which the law did permit. Where the statute does not give an administrator a right to the possession of the real estate, neither he nor his bondsmen are liable for the rents or profits. In the absence of any agreement, he is responsible only to the heirs. State v. Barrett, 121 Ind. 92 (22 N. E. 969); Newcomb v. Stebbins, 9 Metc. (Mass.) 540; Palmer v. Palmer, 13 Gray, 326.

4. The item of rents was included in her original account for the sole reason that her attorney made no examination of the statute then in force, — supposed that it was the same as the one now in force, which gives the possession of the real estate to the administrator, — and advised her to make an account in accordance with what he supposed the law then was. It was discovered upon the trial in the circuit court that counsel was mistaken, and when so discovered a motion to amend by striking out that item was allowed. In this there was no error. The learned counsel seek to bring the case within Beam v. Macomber, 35 Mich. 457; Thompson v. Howard, 31 Mich. 309; Thomas v. Watt, 104 Mich. 201 (62 N. W. 345). Those cases are where the plaintiff had brought one suit upon one theory, and carried it to a conclusion in the court, and then brought another suit upon another theory. This is an amendment in the same suit, in which the court had jurisdiction to correct any error in the administratrix’s account. McPike v. McPike, 111 Mo. 216 (20 S. W. 12); 2 Woerner, Adm’n, § 513, and note 6.

The judgment is affirmed.

The other Justices concurred.

       Viz.: Ryder v. Flanders, 30 Mich. 336; Edwards v. Taliafero, 84 Mich. 13; Griffin v. Johnson, 37 Mich. 87; Shipman v. Butterfield, 47 Mich. 487 (11 N. W. 283); Cahill v. Bassett, 66 Mich. 407 (33 N. W. 722).


author: Montgomery, C. J.

text:
    COOK v. AUDITOR GENERAL.
    1. Legislative Employés — Compensation—Practice.
    Any long-continued practice on the part of the legislature in relation to compensating its employés cannot be permitted to overturn a clearly expressed statute governing the subject.
    2. Same — Mileage.
    Under 1 Comp. Laws. § 12, providing that the compensation of clerks employed by the legislature shall be 53 per day and 10 cents for every mile actually traveled in going to and returning from the place of meeting, a clerk who was employed at the seat of government when he was appointed, and who has not since returned to the place of his legal residence, is not entitled to mileage.
    3. Same — Amounts Due — How Determined — Authority op Auditor General.
    Under 1 Comp. Laws, § 12, fixing the rate of compensation of the members and employés of the legislature; and section 13, providing that the sums due them shall be certified by the secretary or clerk and presiding officer of the respective houses, and countersigned by the auditor general, — the duty of determining the amounts due devolves upon the certifying and countersigning officers; hence the auditor cannot be compelled to countersign a certificate containing items to which the person in whose favor it is made is not entitled.

      Mandamus by Samuel F. Cook to compel Perry F. Powers, auditor general, to countersign, a certificate for mileage.
    Submitted November 12, 1901.
    Writ denied December 3, 1901.

      Lewis M. Miller, for relator.

      Horace M. Oren, Attorney G-eneral (Charles W. McGill, of counsel), for respondent.
   Montgomery, C. J.

The relator asks for a mandamus to compel tbe auditor general to countersign a certificate issued to relator by the speaker and clerk for mileag'e claimed to be due him as journal clerk of the house of representatives during the regular session of 1901. The facts are undisputed. It appears that the relator has his legal residence at Rock River, Alger county, Mich.; that he was journal clerk of the house during the special session in December, 1900; that from the close of that session until the opening of the regular session he was employed in assisting the clerk of the house; that he has not been at Rock River .since July 15, 1900, except for the purpose of casting his vote at the general election held .in November, 1900. It appears, therefore, that he did not actually travel from Rock River to Lansing for the purpose of attending upon the session of the legislature. The respondent refused to countersign upon the ground that the relator is not entitled to mileage by the terms of the statute (1 Comp. Laws, § 12), which provides, among other things:

“The compensation of the secretary, engrossing and enrolling clerk, and sergeant at arms of the senate, and their authorized assistants, and of the clerk and engrossing and enrolling clerk and sergeant at arms of the house of representatives, and their authorized assistants, and of the clerks employed with the consent of the senate or house of representatives by any standing or special committees of either of said houses, shall be three dollars a day each for actual attendance during the session, and ten cents for every mile actually traveled in going to and returning from the place of meeting on the usually traveled route.”

1 Comp. Laws, § 13, provides:

“ Such sums as may be due under the provisions of this act to the secretary of the senate and the clerk of the house of representatives shall be certified by the presiding officers of the respective houses, and countersigned by the auditor general; and such sums as may be due the president of the senate and speaker of the house of representatives shall be certified by the secretary or clerk of the respective houses, and countersigned by the auditor general; and such sums as maybe due to the members and- other officers of either house shall be certified by the secretary or clerk and the presiding officers of the respective houses, and countersigned by the auditor general; and the state treasurer, upon the presentation of any such certificate, countersigned as provided in this section, is hereby authorized and directed to pay the.same.”

The question presented is whether, upon such a certificate being presented to the auditor general, his duty is purely ministerial, or whether he has the right, if he has a doubt about the service having been rendered, to investigate and proceed according to the fact; to refuse his signature or to grant it, as the law directs. It is the contention of the relator that he has no discretionary power in the matter; that the house of representatives itself determines the amount of the mileage due to each member. And this is based upon long-continued practice, upon the claim of necessity, and upon the claim that each house exercises certain judicial powers, such as are necessary to determine questions arising in matters peculiar to itself.

So far as the practice is concerned, it does appear that •in many instances the house has, by resolution, fixed the mileage of its members and employes at the close of the session. This does not appear to have been done prior to 1867 by the house, nor by the senate prior to 1878. It appears that the early resolutions of both houses, referring the matter to committees, do so “ for the proper guidance of officers.” But, whatever may be said of the force of practice in the absence of any statutory provision, it is clear that the legislature, acting through both branches, and by law approved by the governor, has the undoubted power to limit the exercise of such practice,' and to prescribe what the compensation to employés shall be, and the manner in which it shall be determined. It is the contention of the relator that by 1 Comp. Laws, § 13, the legislature has failed to prescribe the manner in which the mileage shall be determined, and that, out of the very necessity of the case, the duty is imposed upon the legislature to so determine the mileage, and that it would follow that such determination is final. Is this a proper construetion of the statute? The statute prescribes what officers shall certify and what officer shall countersign the certificate which shall entitle the member of the house or the employe to draw his money from the state treasury. But it is said that the statute contains no provision as to how the amount shall be determined. We think the plain implication is that it shall be determined by the officers whose duty it is to make the certificate and to countersign the same. They must determine the fact.

This question can be tested in tbis manner: Suppose the house failed to take any action upon the subject, and the clerk who had served during the term should apply for a certificate for his per diem and mileage, and the officers should refuse to take any action in the matter. Gan it be doubted that some action could be enforced by mandamus ? The duty of certifying this per diem and mileage presupposes the ability to determine, and imposes the duty upon the officers whose duty it is to so certify and countersign the certificate of determining, the amount ■due; and it is significant that the statute provides that the amount so certified shall be such sums as may be due “under the provisions of this act,” which is the statute fixing the compensation.

This is not an isolated instance of legislation of this character. 3 Comp. Laws, § 11229, provides that the compensation of grand and petit jurors shall be paid out of the treasury of the county on the certificate or order of the clerk or judge of such court. Whether the clerk or judge act in the matter, the duty would 'be implied to ascertain the fact before he makes] the certificate. So, in the present case, the duty of certifying implies a duty of certifying the truth. This necessitates an ascertainment of the truth, and, by the language of the statute, it imposes upon the officers whose duty it is to certify and countersign the duty of ascertaining how much is due by the terms of the act. In holding thus we in no way infringe upon the prerogative of a co-ordinate branch of government. We but affirm the law which the legislature has itself enacted. The case of Morgan v. Buffington, 21 Mo. 549, cited by counsel for respondent, is very much in point.

It is suggested that, if the view above indicated is adopted, money has been drawn illegally from the state treasury in a great many instances, for the reason that the legislature has assumed to pass a resolution fixing the mileage of its members at the close of the session. But we assume that in the cases referred to there has been also the certificate of the proper officers, countersigned by the auditor general; and, if this be so, it can hardly be said that the funds were illegally withdrawn from the state treasury. However this may be, and giving due regard to the force of long-continued practice, we are not able to discover in the statute in question any ambiguity.

The writ of mandamus will be denied.

The other Justices concurred.