author: Ostrander, J.

text:
    GRAND RAPIDS LAW LIBRARY v. CARPENTER.
    Contracts — Termination — Notice Required — Library Association.
    Where defendant gave a bond to secure his conformance with the regulations and payment of dues of a library association, and where the rules provided that permission to use the' library and the agreement of the subscriber should continue for a year from the date of the application, and thereafter until terminated by a written notice, and he only claimed that he orally notified the librarian of his intention not to use the library during one year, which testimony was disputed by plaintiff’s witness, findings in plaintiff’s favor by the court without a jury were supported by the testimony, in an action for the dues for the said year.
    Error to Kent; Brown, J.
    Submitted June 7, 1916.
    (Docket No. 21.)
    Decided July 21, 1916.

      Debt by the Grand Rapids Law Library, a .corporation, against Eugene Carpenter and another, in justice’s court, upon a certain bond. From a judgment for plaintiff defendants appealed to the circuit court. Judgment for plaintiff by the court sitting without a jury. Defendants bring error.
    Affirmed.

      Eugene Carpenter, for appellants.

      Oscar E. Waer, for appellee.
   Ostrander, J.

This cause was begun and tried in justice’s court, where plaintiff had judgment. Upon appeal it was tried by the court, a written finding of facts and law made, and judgment was entered for the plaintiff. In this court it is not claimed that the findings of fact are not supported by testimony, and is claimed that the questions presented are questions of law, stated in appellants’ brief to be, first, whether the declaration states a cause of action; second, the effect to be given to an alleged oral notice given by defendant Carpenter to plaintiff’s librarian in June, 1912, that he did not intend to use the library after January 1, 1912; third, whether a written notice was required to terminate whatever relation existed between defendant Carpenter and the plaintiff.

The court found:

“Findings of Fact.
“I. The plaintiff is a corporation duly organized under the laws of the State of Michigan and duly authorized to bring suit in the courts of this State.
“II. On July 24, 1909, the defendant Eugene Carpenter made application to the Grand Rapids Law Library, the plaintiff, for permission to use the Grand Rapids Law Library, the terms of his said application reading as follows:
"“To the Grand-Rapids Law Library:
“ ‘I hereby apply for permission to use the Grand Rapids Law Library, and agree to keep all the rules and regulations thereof, and pay all dues, fines, and penalties accruing thereunder. This agreement shall continue for one year from date and thereafter from year to year until terminated by written notice fit the end of the then current quarter. Inclosed find $6.25 dues to October 1, 1909, and bond as required by the rules.’
“III. At the time of the filing of said application with said Grand Rapids Law Library, the said Eugene Carpenter also filed with said law library a bond in which he was principal, and in which Elijah Haney was surety, which bond was in the words and figures following:
“ 'Know All Men by These Presents, That Eugene Carpenter, of the city of Grand Rapids, Kent county, Michigan, as principal and Elijah Haney, 358 North Front street, of the city of Grand Rapids, Michigan, as surety, are held firmly bound unto the Grand Rapids Law Library, in the sum of one hundred dollars, lawful money of the United States of America, to be paid to the said Grand Rapids Law Library, or to its certain attorney or assigns, to which payment, well and truly to be made, we bind our heirs, executors, and administrators, and each and every one of them, firmly by these presents. Sealed with our seals, dated the 24th day of, July one thousand nine hundred and nine. Whereas, the above bounden Eugene Carpenter has been granted permission to use the library of said Grand Rapids Law Library: Now, therefore, the condition of this obligation is such that if the said Eugene Carpenter shall keep the rules and regulations of said library, pay all dues, fines, and penalties under the same, and pay for or replace all books lost or damaged by him, then this obligation to be void- otherwise to remain in full force and virtue.
“ ‘Eugene Carpenter. [L. S.]
“ ‘E. Haney. [L. S.]
“ ‘The surety on the bond approved by the board of directors this-day of-, 19 — .’
“IV. The rules and regulations or by-laws of the Grand Rapids Law Library provide in part as follows:
“ ‘Such permission to use the library and agreement of the subscriber shall continue for one year from the date of the application, and thereafter until terminated by a written notice given by the subscriber at the end of the then current quarter.’
“The defendant Eugene Carpenter had notice of the existence of this by-law and became bound by it upon. becoming a member of the Grand Rapids Law Library.
“V. At the time of the filing of said application and said bond with the Grand Rapids Law Library the Grand -Rapids Law Library accepted the same, and the said defendant Eugene Carpenter thereupon became a member of said library in accordance with the terms of his application and bond, and in accordance with the rules and regulations of said library. The said defendant Eugene Carpenter continued as a member of said Grand Rapids Law Library under the terms of his said application and bond, and under the rules and regulation of said law library, from July 1, 1909, up to and including December 31,1911, and prior to the 1st day of January, 1914, never gave to the Grand Rapids Law Library any written notice, nor any oral notice, terminating his membership in said library.
“VI. The said defendant Eugene Carpenter paid his dues in said Grand Rapids Law Library from July 1, 1909, up to and including December 21, 1911, at the rate‘of $25 per year; that sum being the annual dues of said library. The said defendant Eugene Carpenter did not pay any of the dues owing by him for the year 1912 and for the year 1913, though he was frequently requested so to do, and though written notice was sent him by plaintiff every three months during 1912 and 1913 that the said dues were due and payable. The said defendant Eugene Carpenter is therefore indebted to the Grand Rapids Law Library for his annual dues for the years 1912 and 1913, amounting to $50; together with interest on the said sums of $25, respectively, from January 1, 1913, and from January 1, 1914, which interest amounts to $5.61.
“VII. During the year 1912 and the year 1913 the Grand Rapids Law Library was at all times willing to extend and did extend to the said Eugene Carpenter all of the privileges of membership in said library, and the said Eugene Carpenter was at liberty at all times during the said years of 1912 and 1913 to avail himself of the same.
“VIII. The said Eugene Carpenter never gave to the said Grand Rapids Law Library any notice, in writing or otherwise, during the years 1912 and 1913, that he desired his membership in said law library to be terminated, and never at any time during the years 1912 and 1913 did he refuse to pay the dues accruing during said time, and it was not until after December 31, 1913, that the said defendant Eugene Carpenter terminated his membership in said Grand Rapids Law Library.
. “IX. During the years 1912 and 1913 the Grand Rapids Law Library fully performed the contract created between it and the said Eugene Carpenter by the. filing of the said application and bond by the acceptance of the same.
“X. The defendant Eugene Carpenter is at the present time indebted to the Grand Rapids Law Library in the sum of $55.61 for dues during the years 1912 and 1913, and for interest thereon, and the said Eugene Carpenter and Elijah Haney are liable for that amount as principal and surety under the bond given by Eugene Carpenter, with himself as principal and with Elijah Haney as surety, at the time he became a member of said Grand Rapids, Law Library.
“Conclusions of Law.
“I. The contract created between the Grand Rapids Law Library and Eugene Carpenter by the filing of the application and bond hereinbefore referred to in the findings of fact was fully performed by the Grand Rapids Law Library during the years 1912 and 1913, and there is due to the Grand Rapids Law Library on account of said contract the sum of $55.61, being the dues of said Eugene Carpenter for the years 1912 and 1913, and interest thereon to date.
“II. The said defendant Eugene Carpenter became a member of said Grand Rapids Law Library on July 1, 1909, and continued as such member until and including December 31, 1913. The said Eugene Carpenter did not terminate his, membership in said library in any way until after December 31, 1913.
“The plaintiff is entitled to recover from the defendants the sum of $55.61, together with the costs of suit to be taxed.”

The court was, requested to find that in June, 1912, the defendant Carpenter told plaintiff’s librarian, who had called upon him to collect dues, that he had not used and did not intend to use the library during the year 1912. Such a finding, if material, could have been made only upon weighing testimony. The librarian testified that she did not receive oral notice from defendant that he had terminated his membership; the defendant testifying that he gave her such notice in June, 1912, upon an occasion when she called upon him for payment of dues. What the court found already appears.

No reason is assigned in appellants’ brief for declaring the declaration insufficient, and reference to the reasons assigned in the court below, upon the motion to dismiss, are not convincing. The plaintiff declared upon the bond, stating, generally, its condition and the breach thereof. The only remaining question of law suggested in the brief is whether written notice was necessary to terminate whatever relations existed between plaintiff and defendant Carpenter. The agreement called for a written notice if the member terminated the relation. Some notice, oral or written, would be necessary to relieve the member from the obligation to pay dues. No notice was given, and forbearance to collect the dues by suit did not terminate the relation. It therefore continued.

The judgment is affirmed, with costs to appellee.

Stone, C. J., and Kuhn, Bird, Moore, Steere, Brooke, and Person, JJ., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    BLOOMSHIELD v. CITY OF BAY CITY.
    1. Municipal Corporations — Public Officers — Salary — Engineer.
    Act No. 720, Local Acts 1907, authorizing the park commissioners of Bay City to employ engineers, agents and other assistants as it may deem necessary, grants the power to hire an engineer for the city parks, though the city engineer is by the same statute required to perform the duties of the engineer of said board.
    2. Same — Mandamus.
    And where the park commissioners declined to approve the engineer’s claim for compensation and the common council declined to grant it, on the ground that the park board’s action was conclusive, an action for the account, which was undisputed, fo-r services at a per diem rate, kgreed upon in his contract of hiring, was properly brought against the city, and mandamus which 'would have been the proper remedy in case the board had authenticated his account, was not the correct or sole form of action.
    Error to Bay; Collins, J.
    Submitted June 12, 1916.
    (Docket No. 43.)
    Decided July 21, 1916.
    Assumpsit by John H. Bloomshield against the city of Bay City for services rendered. Judgment for defendant on a verdict directed by the court. Plaintiff brings error.
    Reversed.

      Stoddard & McMillan and H. M. Ready, for appellant;

      S. G. Stoughton, City Attorney, for appellee.
    The defendant city is existing‘under the provisions of Act No. 514, Local Acts 1903. It has a board of park commissioners, organized under Act No. 720, Local Acts 1907, the title of which act is
    “An act to provide for the appointment of a board of park commissioners, to take charge of the public narks and public grounds of Bay City, and to procure additional lands for park purposes, and to control and manage all the parks and public grounds of said city.”
    Sections 3, 4, 5, and 6 of the act are:
    “Sec. 3. All the powers and duties now vested in the common council of Bay City, and the committee of said council, pursuant to the charter and ordinances of said city, or the rules of the common council, so far as they relate to public parks, are hereby conferred upon the said board of park commissioners, and all the official records, books, papers and property pertaining to the parks of said city are hereby placed in their custody and under their control. * * *
    “Sec. 4. Said board shall organize by electing one of its members as president, who shall be elected annually at the first meeting of the board in the month of April of each year. The recorder of said city shall be clerk of said board, and perform the duties thereof, without additional compensation. * * *
    “Sec. 5. Said board shall have power to, and shall make all needful general rules and regulations for the transaction of its business, and may employ and discharge at its pleasure, such superintendents, engineers, clerks, agents, subordinates and laborers as it may deem necessary, and fix their compensation. The city engineer of Bay City shall perform the duties of engineer of said board without additional compensation. Any officer or appointees, or employees of said board, shall give such security for the faithful performance of their duties as such board may require.
    “Sec. 6. Said board of park commissioners shall have the control and management of all the parks and public grounds of said city, now or hereafter acquired and established, and of all the improvements.”
    In August, 1911, pursuant to a resolution adopted by the board, the president of the board engaged plaintiff, who is an engineer of experience, to take charge of the grading of the parks, the putting in of certain walks in one of them, the compensation being agreed upop as at the rate of $8 per day for field work and $7 per day for office work. Thereafter- as engineer and as superintendent of construction plaintiff rendered services as employed, purchased material, certified accounts therefor, and was paid bills rendered by him for his services, approved by the park board and audited and allowed by the common council. In April, 1912, a succeeding president of the board re-engaged him upon the same terms to render similar services. Plaintiff performed services, hired men, superintended work, audited accounts for work and for material, and they were approved by the commission and paid by the common council. Plaintiff’s accounts for services, approved by the president of the commission, were allowed and paid by the common council, from time to time. The last one was allowed and paid June 24, 1912. Thereafter services were performed, in June, July, and August, 1912, which at the agreed price were worth $217.50. An account for these services was disallowed by the board. Thereafter, in the verified form required by the city charter, the account was again presented to the board without action and to the common council. A committee to whom it was referred reported, recommending that it be not allowed, and the report was adopted by the common council and referred to the board of park commissioners. Then this suit was brought — an action of assumpsit — and the defendant city gave notice with the plea that it would insist that the park commissioners had no authority to contract with plaintiff for his services as engineer because the act under which they were existing provided that the city engineer should perform the duties of engineer of said board without additional compensation. It gave notice of the further claim that the account had not been audited and certified by the said park board as provided for in said act. It appeared that there were considerable public improvements, requiring the attention of the city engineer, and that his services were not at once and always at the disposal of the park board.
    The learned trial judge after hearing the testimony, which leaves no room for doubt that the services were rendered and the contract relied upon by plaintiff was made, and which proves, too, that during the entire period covered by the plaintiff’s services there was a city engineer of Bay City, with assistants, of whom plaintiff was not one, was of opinion that the employment of plaintiff was unauthorized, and directed a verdict for defendant, upon which a judgment was entered. The ruling was not apparently based upon the fact that the account had not been audited by the park board, although the language of the charge leaves this point in some doubt. The exceptions taken by plaintiff challenge the correctness of the ruling upon either ground.
   Ostrander, J.

(after stating the facts). 1. In construing statutes, courts, following a familiar rule, seek to find a meaning which is reasonable and which gives effect to all parts, all provisions, of the law. Here is a law plainly intended to turn over to a commission the care and control of the city parks, to exercise all powérs and perform all duties theretofore vested in the common council and its committee by the charter and ordinances of the city and the rules of the council. This is the general purpose of the law. In addition, certain powers are specifically mentioned as being conferred upon the commission, among them the power to employ superintendents and engineers. This specification of powers must be read with the declaration that:

“The city engineer of Bay City shall perform the duties of engineer of said board without additional compensation”

—and all the language be given, if it is possible, a reasonable meaning and effect. Broadly, the argument for the city leads to the result that the board had no power to employ an engineer, at least not a civil engineer, because, it is said, the legislative declaration, later found in the same section, and which I have quoted, must prevail over any preceding statement with which it seems to be inconsistent. We are. referred to the case of Willsie v. Common Council, 187 Mich. 445 (100 N. W. 605), as supporting this contention, a case in which the court applied the general rule I have referred to and gave effect to all of the provisions of the law. I cannot suppose, after reading the law, that the legislature first conferred upon the park board the power to employ engineers and in the same section reversed itself and limited the board to the services of the city engineer. Such a conclusion appears to be so unreasonable that one should reach it only if compelled to do so. Something was confided to the board of park commissioners — questions of convenience and necessity — and presumptions all favor the conclusion that it employed plaintiff because it needed his services although the city engineer was officially engineer of the board and bound to perform the duties of engineer of - the board without additional compensation. What, if any, duties he discharged as engineer of the board does not appear. It is apparent, however, that he may have been consulted, but that details of improvements were better, perhaps unavoidably, put in charge of the plaintiff. The question presented is one of the power of the board to employ an engineer, and a reasonable construction of the act does not deny the power. Its exercise may have been faulty or even unnecessary in the particular case, which is another question.

2. If defendant’s board had performed its legal duty, there being here no question of the amount of the demand, and authenticated the demand of plaintiff, so that it became liquidated, payment by the city would be enforced only in mandamus proceedings. So nothing was sought for but performance of a plain legal duty by a public officer, or board. But here the public board declined to authenticate the demand, and it will be assumed that the common council regarded the action as final, and therefore refused to allow the claim. Defendant must therefore rest upon the proposition that the determination of the board was final, and that the matter can be liquidated in no way except by suit. Van Wert v. School District, 100 Mich. 332 (58 N. W. 1119).

The judgment is reversed with costs to appellant, and a new trial granted.

Stone, C. J., and Kuhn, Bird, Moore, Steere, Brooke, and Person, JJ., concurred.


author: Moore, J.

text:
    MAYNARD v. SCHRUMPF’S ESTATE.
    1. Estates of Decedents — Claims—Services Rendered.
    On. the hearing of a claim by decedent’s daughter against the estate of her mother for care rendered to the mother, testimony of acquaintances of the decedent, giving their opinions as to the value of services of claimant, was not incompetent, and the court properly declined to exclude it.
    2. Same — Implied Contract. ■
    An express contract was not essential to claimant’s right to compensation, and if the accompanying circumstances were such as to rebut the presumption that the services were gratuitous, and to tend to prove that both parties knew or understood the work was not to be done without pay, the estate was properly held responsible.

    Error to Oceana; Sullivan, J.
    Submitted June 12, 1916.
    (Docket No. 47.)
    Decided July 21, 1916.
    Matilda Maynard presented her claim for services rendered against the estate of Caroline Schrumpf, 'deceased. It was disallowed in part by the probate court. Claimant appealed to circuit court. From a judgment for a larger amount, defendant brings error.
    Affirmed.

      F. E. Wetmore, for appellant.

      Turner & Turner and R. R. Gale, for appellee.

      For authorities passing on the question of implication of agreement to pay for services rendered by child to parent, see comprehensive note in 11 L. R. A. (N. S.) 879.

   Moore, J.

Mrs. Caroline Schrumpf lived for 17 months or more before her death, at the home of her daughter, Mrs. Matilda Maynard. After the death of Mrs. Schrumpf, the daughter, Mrs. Maynard, presented a claim against her estate for care and board amounting to upwards of $500. The claim was contested. It was allowed by the judge of probate in the sum of $39.15, from which allowance an appeal was taken to the circuit court by Mrs. Maynard. The claim was contested in the circuit court. In his charge to the jury the judge stated, when speaking of the claim, in part, as follows:

“It says ‘To card and board/ This claimant is not entitled to any charge for board. This is a married woman, as appears from the undisputed testimony here of Mrs. Matilda Maynard, and at the time that she makes her charge she was living with her husband in Pentwater, and while she has got upon her bill here, ‘To care and board/ she cannot recover for the expense of the board or lodging, but can only recover for' her persona! care if she can recover at all. The personal care that the wife gives in a case of this kind may be recovered by her as her own property, but not for the board furnished by her husband, so while the bill says for care and board, the real claim is for the care given by the daughter to her mother."

The jury was told:

“It is not necessary that there should have been any express contract in so many words, between the parties, but beside the care of the mother by the daughter the jury must believe that when the work was done there was an expectation of receiving pay on the part of the claimant and an intention on the part of the mother of paying her. It is not enough just to prove that the care was rendered; that is not enough, but there must go with that something from which there can be implied a contract, an implied promise to pay at that time and an expectation upon' the part of the daughter to receive pay for the services that she rendered., And if you find there was that, then this claimant can recover what her services were reasonably worth from the time such expectations existed, from any date that such expectations existed on the part of the mother and daughter.”

The jury returned a verdict in the sum of $164. From a judgment for that amount the case is brought here by writ of error.

The husband and some of the neighbors of Mrs. Maynard were sworn as witnesses. Some of the assignments of error relate to this testimony. Counsel say in the brief:

“I do not care to specifically argue or cite authorities upon the matter of admitting the testimony of opinion of the witnesses as to the value of the services of the claimant. It was my opinion at the time of the trial, and it is. now, that these witnesses were wholly incompetent under their own testimony to express an opinion upon the subject. The testimony of the witness Maynard was a conclusion merely, and should have been stricken out upon our motion, and upon this, as said before, we base our eighth assignment of error.”

We have examined the testimony. We think it admissible under In re De Spelder’s Estate, 181 Mich. 153 (147 N. W. 589).

A motion for a directed verdict was made on the ground that claimant had failed to make a case. The rule that should govern cases like the one before us. has been stated as follows:

“I do not understand that it is necessary, in this class of cases, to show that, at a given time before the rendition of the services, a formal contract was entered into, on the one part to work, and on the other to pay, in order to authorize a recovery. If the facts and circumstances attending the performance of the work and its acceptance are sufficient to .rebut the presumption which obtains in such cases, and authorize the inference that both parties acted upon the understanding that the services were to be paid for, that would be equivalent to a promise to pay for such services.” Sammon v. Wood, 107 Mich. 506 (65 N. W. 529).

And in a later case it is said:

“It is not essential to a recovery by a child for services rendered to a parent that a formal contract be established in relation thereto, but if the facts' and circumstances attending the performance of the work and in its acceptance are sufficient to rebut the presumption that the services were gratuitous, and to authorize the inference that both parties acted upon the understanding that they were to be paid for, the parent is liable.” In re Abel’s Estate, 173 Mich. 93 (138 N. W. 325).

The testimony on the part of claimant fully met the requirement of the rule.

Judgment is affirmed, with costs.

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


text:
    MARX v. WILLIAMSBURGH CITY FIRE INS. CO.
    1. Insurance — Vendor and Purchaser — Insurable Interest — Intoxicating Liquors — Land Contracts.
    Where plaintiff, who was interested in a brewery, furnished the money for the purchase of a saloon and personal property connected therewith, and took the title to the property in his name, selling the saloon and equipment by land, contract to the liquor dealer, who agreed to sell no beer except that manufactured by the brewing company with which plaintiff was associated, held, in an action on a policy of insurance covering the property, that under the statute (Act No. 313, Pub. Acts 1887; 2 Comp. Laws 1915, § 7032) forbidding any wholesaler from entering into any contract or agreement with a retail liquor dealer to handle exclusively the brand of liquors manufactured by the wholesale dealer, the transaction between plaintiff and the saloon keeper was not void; that the latter had an insurable interest in the premises and the policy was valid and enforceable.

      2. Vendor and Purchaser — Contracts—Illegality—Partial Invalidity. .
    A land contract that by express provisions was to be invalidated if the vendee sold other beer than a certain product described in the writing was not avoided by a breach of the condition if the agreement was severable and if, after eliminating the illegal portions, the remainder of the contract was lawful and supported by sufficient consideration.
    3. Same — Severable Agreement — Conditions.
    A contract for the sale of land which involved the purchase of the property by plaintiff, by whom the necessary funds were advanced, and the realty resold on instalment payments to the liquor dealer, was based on severable conditions and, hence, not rendered void by the breach of one of1 the conditions, where the same did not necessarily influence the plaintiff to make the agreement and was not the essential part of the land contract.
    4. Same — Waiver—Explosives—Illuminating Gas.
    Where the agent who secured the policy knew of the use of illuminating gas on the property, and that the gas was generated thereon, a change made in the manner of generating the gas, after the insurance was taken out, so as to produce the gas at a generator instead of at the burner, did not breach the condition of the agreement; the effect of such notice or knowledge imputed to the insurer was to waive the condition and to authorize the insured to make the change without invalidating the insurance.
    5. Same — False Report — Origin of Fire — Proof of Loss.
    Where the insured stated in his proofs of loss that the cause of the fire was unknown, but, in fact, he had lighted a match from which a species of explosion followed, that might or might not have been caused by the fault of the gas generating plant, he was not chargeable with such deception or false representation as to forfeit his rights, and especially where defendant was not misled or injured and was not deprived of essential information to which it was entitled.
    Error to Wayne; Hosmer, J.
    Submitted June 6, 1916.
    (Docket No. 1.)
    Decided July 21, 1916.

      Assumpsit by Frank Marx against the Williams-burgh City Fire Insurance Company upon a policy of fire insurance. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Ward N. Choate and Clifford N. Longley, for appellant.

      Woodruff & Woodruff (Frank W. Atkinson, of counsel), for appellee.
    One Jacob Wahl owned certain premises upon which he conducted a saloon. In the saloon were goods used in the business. Otto D. Neifert had $1,000 in money and wanted to buy the property, the purchase price of which, including the personal property, was $3,500. An arrangement was made according to which the property was conveyed by Wahl to plaintiff, who paid for it, and plaintiff and Neifert made an executory contract for the sale of the realty to Neifert. Plaintiff was an officer of and interested in a concern which manufactured and sold beer. In the Marx-Neifert contract there was a clause reading:
    “It is further provided and agreed as a part hereof that no beer except that manufactured by the Marx Brewing Company, or its successors or assigns, shall be sold, handled, or dealt in by said second party, his heirs, or assigns, on said premises, so long as- said premises shall be used for saloon purpose; the deed provided for in this contract to contain the same provision.”
    Neifert contributed $1,000 and Marx $2,500 in the purchase from Wahl, and the contract sale price was $3,500; it being recited therein that $1,000 was payable at its date and that $2,500 remained unpaid. By its policy, issued May 8, 1913, expiring May 8, 1914, issued to Neifert, defendant insured the building in which was the saloon, including permanent fixtures for heating and lighting, for $600, a barn for $200, cer-' tain saloon fixtures for $200, and the stock of merchandise for $400, "loss, if any, payable to Frank Marx, mortgagee, as his interest may appear.” Application was made to and the policy issued by a local agent of defendant at Flat Rock, where the property is.
    When the policy was issued the saloon was lighted by gas generated from gasoline, the system being what is known as a hollow wire gasoline lighting system, in which gasoline was carried to burners in a hollow copper wire and gas generated at the burners. The policy did not permit gasoline lighting, but the agent of defendant who issued the policy knew that for some years the system was employed in lighting the saloon. On October 16, 1913, the system of lighting was changed; gasoline being thereafter forced from the tank to a generator, where it was generated by heat into gas, the gas being then forced through 1%-inch galvanized iron pipes to the burners. Of this change the agent and defendant had no notice or knowledge. On October 18, 1913, the insured property was destroyed by fire, immediately preceded, it seems, by an explosion caused by a lighted match in the neighborhood of the. generator. Neifert, in his proofs of loss, stated the origin of the fire to be unknown. He testified that in his opinion it was gas in the building and the lighted match. The insured assigned his policy and cause of action after the fire to plaintiff, in whose favor a jury returned a verdict for the value of the policy, upon which verdict a judgment was entered.
    When the land contract was offered in evidence, it was objected that it was void under the provisions of Act No. 1, Second Extra Session 1912 (2 How. Stat. [2d Ed.] § 5056 [2 Comp. Laws 1915, § 7032]). The objection being overruled, defendant excepted. Defendant presented various requests to charge, including requests for a peremptory instruction, and the exceptions to refusal of the court to charge as requested and to the charge as given raise three points urged in this court. The first point is that the land contract is absolutely void, and therefore Neifert was not sole and unconditional owner of the insured property, unless of the personal property only. The second point is that the lighting system in use was by the policy a prohibited system; if knowledge of the system employed when the policy was issued would be a waiver of the condition, there was no knowledge of the change made after the policy was issued. It is a part of this contention that the use of the prohibited system caused or contributed in causing the fire. The third point is that plaintiff’s assignor falsely swore in the proofs of loss that the cause of the fire was unknown. These points having been argued in the briéf for appellant, there is added the following:
    “There is also presented three other questions, namely: That the contract was in truth and in fact (if valid here for any purpose) a chattel mortgage (requests 12 and 13, assignment of error 17) ; that plaintiff may not recover more than the actual money interest which plaintiff’s assignor had in the property, namely, $1,000 (request to charge 14, assignment of error 16) ; and that the court erred in his remarks to the jury in the charge covered by assignments of error 18 and 19.”
   Ostrander, J.

(after stating the facts). 1. The statute relied upon is an amendment of section 2 of Act No. 313, Pub. Acts 1887, entitled:

“An act to provide for the taxation and regulation of the business of manufacturing, selling, keeping for sale, furnishing, giving, or delivering spirituous and intoxicating liquors, and malt, brewed, or fermented liquors and vinous liquors in this State, and to repeal all acts or parts of acts inconsistent with the provisions of this act.”

It contains the following (2 Comp. Laws 1915, § 7032) :

“Nor shall such wholesaler enter into any contract, agreement or other understanding with any person or firm authorized to sell such liquors at retail, by virtue of which contract, agreement, or other understanding or agreement such retailer shall be required to handle the brand of liquors manufactured or sold by such wholesaler to the exclusion of any or all other brands of liquor; * * * and all such agreements, contracts, or other understanding * * * shall be null and void and of no effect whatsoever.”

It is not clear that the statute, or the principle of which it is declaratory, has any application here because plaintiff is not, strictly, a manufacturer or wholesaler of liquor, and it does not appear that the corporation, of which he is an officer, was in any manner interested in, authorized, or approved the contract made by plaintiff and Neifert. Assuming that the particular clause of the contract relating to the purchase and sale of beer upon the premises is void, because obnoxious to the statute, whether the entire contract is void depends upon whether it is' severable, so that, the illegal agreement being eliminated, there remains a lawful agreement, supported by a lawful consideration. The identical question was presented and decided in Koppitz-Melchers Brewing Co. v. Behm, 130 Mich. 649 (90 N. W. 676), and Dierkes v. Wideman, 143 Mich. 181 (106 N. W. 735), in each of which cases it was held that the contract considered was not severable.

The contract now before us is, I think, plainly a severable one. The owner asked $3,500 for the property. Plaintiff bought it from the owner, at the solicitation of Neifert, who contributed $1,000 of the purchase money, and with plaintiff agreed to pay^the remainder, with interest, to cause the property,;,.to be listed for taxation in his own name, to pay the taxes,' keep up the premises, and keep them insured. There is a provision for forfeiting the contract for nonperformance of its covenants, but breach of the promise to sell only Marx Brewing Company beer is not a ground for forfeiture. The testimony does not disclose that the obnoxious stipulation influenced either plaintiff or defendant in making the original arrangement by which plaintiff agreed to buy the property, advance a part of the purchase money, and resell to Neifert.

In the cases I have cited the illegal arrangement was the real arrangement, to which the matters in dispute related and out of which they grew. ¡ I conclude that by the land contract Neifert acquired an insurable interest in the premises, and as between himself and the defendant the policy, when issued, was valid.

2. The policy of insurance, no agreement to the contrary being thereon indorsed, was by its terms void “if illuminating gas or vapor be generated in the described building or adjacent thereto for use therein.” It is conceded that the indicated forbidden thing existed when the policy was issued and that the defendant’s agent knew it. It is not claimed that, if no change had been made in the method of generating gas, or vapor, for lighting, the policy would be avoided.'^' But as the defendant’s knowledge of the situation was imputed, and its knowledge of the change in method is not and cannot be imputed, the contention is that the condition stands, violated, with the same effect as though no knowledge of conditions had ever come to defendant. The obvious, and in my opinion the conclusive, answer to this reasoning is that the condition, relied' upon was waived when the policy was issued; that is, it was agreed, in essence, that generating illuminating gas, or vapor, in the described building or adjacent thereto, would not avoid the policy. Defendant is charged with knowledge of the condition existing when the policy was issued, and the condition had not changed when the fire occurred. There was no new, or other, or different, breach of the policy condition after the policy was issued.

3. No one who testified at the trial claimed to know how the fire originated beyond this: That the atmosphere seemed to be charged with gasoline fumes, and that the lighting of a match was followed by some disturbance described as an explosion. There is testimony to the effect that it was not, probably, the fault of the lighting apparatus. In filing proofs of loss the insured might have described in detail what occurred, since he was present and lighted the match, instead of saying that the cause was unknown. There were several persons in the room at the time, and support for the charge that the insured was guilty of such fraud and false swearing as to avoid the policy, because he gave neither the details as he saw them nor his own opinion of the cause of the fire in his proofs of loss, seems to me to be lacking. It is not pointed out in what respect he thus deceived defendant, or deprived it of the necessary or convenient knowledge that is supposed to be afforded by formal proofs of loss.

These conclusions relieve me from examining other suggested points.

The judgment is affirmed, with costs to appellee.

Stone, C. J., and Kuhn, Bird, Moore, Steere, Brooke, and Person, JJ., concurred.


author: Bird, J.

text:
    RAMLOW v. MOON LAKE ICE CO.
    1. Master and Servant — Workmen’s Compensation — Industrial Accident Board — Proximate Cause op Death.
    Decedent received a serious fracture of his leg and later experienced an attack of delirium tremens, from which he died. Several medical experts stated their opinion that the attack of tremens was caused by the injury and it was not uncommon for this kind of attack to occur about 60 hours after an injury, at the time the secondary shock sets in. The evidence supported claimant’s contention that the decedent would not have developed the attack if the injury and resultant shock had not occurred. Held, that the widow was entitled to an award of compensation, granted by the board on the theory and finding that the proximate cause was the injury.

    2. Same — Intentional and Wilful Misconduct.
    It was not conclusive, as a matter of law, against claimant’s recovering an award, that decedent, in replying to the question of his physician whether or not he had been an alcoholic, stated he had not been, the proofs as to his drinking habits not being undisputed, where there was no testimony to show that he knew the question bore upon the matter of treatment, and nothing to indicate that he knew to what extent a person must be addicted to the use of alcohol to become an alcoholic; on certiorari the court could not determine that he was guilty of wilful and intentional misconduct under Act No. 10, Extra Session 1912, pt. 2, § 2; 2 Comp. Laws 1915, § 5432.
    Certiorari to the Industrial Accident Board.
    Submitted June 12, 1916.
    (Docket No. 36.)
    Decided July 21, 1916.

      Myrtle Ramlow presented her claim for compensation against the Moon Lake Ice Company for the death of her husband in respondent’s employ. From an award granting compensation respondent ice company and the Ocean Accident & Guaranty Corporation, Ltd., its insurer, bring certiorari.
    Affirmed.

      Kleinhans, Knappen & Uhl, for appellants.

      Hatch, McAllister & Raymond, for appellee.

      As to application and effect of workmen’s compensation acts, generally, see comprehensive note in L. R. A. 1916A, 23. And as to effect of pre-existing disease on recovery from one negligently causing personal injury, see note in 48 L. R. A. (N. S.) 119.

   Bird, J.

William Ramlow, husband of claimant, was an employee of the defendant Moon Lake Ice Company, of Grand Rapids. On June 3, 1914, while attempting to remove a burr from the axle of one of the company’s wagons, he slipped and fell, causing a severe fracture of two bones in his right leg just above the ankle. He was removed to the hospital, where the fracture was reduced and he was placed in bed. There was nothing unusual about his condition until the evening of June 5th, when he suffered an attack of delirium tremens, and died on the following morning. Application was made by the widow for an allowance, and the same was granted at the rate of $6.40 a week for 300 weeks.

1. Counsel for the ice and insurance companies contend that the award should not have been made, for the reason that the testimony shows that the attack of delirium tremens, and not the injury, was the proximate cause of his death. The record contains the testimony of four physicians, who appeared to be qualified to speak on such matters, and they gave it as their opinion that the attack of delirium tremens was caused by the injury; further, that it was not unusual for delirium tremens to develop about 60 hours after an injury, when the secondary shock sets in, with patients who had been in the habit of using alcoholic liquors. Two physicians who testified for the defendants disagreed with this view, but the record, taken as a whole, is very persuasive that ,the deceased would not have developed delirium tremens when he did, had it not been for the injury and the shock which followed it. The fact that his system had been so weakened by his intemperate habit that it was unable to withstand the effects of the injury does not thereby shift the proximate cause of death from his injury to his intemperate habit. McCahill v. Transportation Co., 201 N. Y. 221 (94 N. E. 616, 48 L. R. A. [N. S.] 131, Am. & Eng. Ann. Cas. 1912A, 961). It is said by counsel that this case is similar to that of McCoy v. Screw Co., 180 Mich. 454 (147 N. W. 573, L. R. A. 1916A, 323). The cases are dissimilar in the material respect that in the case cited the claimant by his own act, after receiving the injury, communicated gonorrhoeal germs to his eye by rubbing it, in consequence of which he lost the use of it. It was clearly his own act after the injury which caused the loss of his eye. We are of the opinion that the finding of the board upon this question should not be disturbed.

2. A further contention is made that the conduct of Ramlow was unreasonable, amounting to wilful and intentional misconduct within the meaning of section 2, pt. 2, of the compensation act (Act No. 10, Extra Session 1912 [2 Comp. Laws 1915, § 5432]). This is based upon the claim that deceased, when asked by his attending physician if he was an alcoholic, replied that he was not; that, had he answered truthfully that he was, the treatment would have been different, and the attack might have been averted. Touching the habit of deceased in this respect, his foreman testified that he had known deceased for 23 years, and that he had worked with him off and on for about 16 years, and that the deceased “used to take a drink once in a while, and sometimes quite often,” but that he never saw him In a state when he thought he had been drinking while on duty, and that his drinking did not interfere with his work, and that during the 16 years he had not known him as a drinking man. There is nothing in the record to show that the deceased understood to what extent a person must be addicted to the use of intoxicating liquors to become an alcoholic, neither is there anything to show that, he knew that the question propounded had any bearing upon the treatment of his injury. We cannot say as a matter of law that the record discloses any wilful or intentional misconduct concerning his answer to the doctor’s question. The extent to which he was addicted to the use of intoxicating liquors was a question of fact, and, the same having been determined by the board, it is not within our power to review it. Bayne v. Storage & Cartage Co., 181 Mich. 378 (148 N. W. 412); Redfield v. Insurance Co., 183 Mich. 633 (150 N. W. 362).

The award must be affirmed.

Stone, C. J., and Kuhn, Ostrander, Moore, Steere, Brooke, and Person, JJ., concurred.


text:
    TIMM v. CASS CIRCUIT JUDGE.
    1. Arrest — Capias—Sufficiency of Affidavit — Conversion.
    An affidavit, in an action for conversion, that the deponent rented to the defendant a horse for the purpose of driving to a place named and back, and the bailee did not return the animal as agreed, and failed to deliver it to the affiant when requested so to do, sufficiently stated a prima facie case in trover.

      2. Same — Demand—Prima Facie Case.
    While a demand and refusal are not in themselves a conversion, they are evidence of one and usually make a prima facie case, and on making proof thereof, the writ of capias will lie.
    3. Same — Bail—Circuit Judge.
    It was not a sufficient jurisdictional objection that the judge was not present in the county in which the writ issued when he fixed the bail and indorsed it on the writ, being in another county of the circuit to which he was officially assigned.
    4. Notary Public — Attorneys—Husband and Wiee.
    The statute prohibiting attorneys from acting as notary in any cause in which they are professionally interested, does not prevent the wife of such an attorney from certifying the jurat as notary. 1 Comp. Laws, § 2640; 3 Comp. Laws 1915, § 12082.
    Mandamus by Floyd Timm against L. Burget Des Voignes, circuit judge of Cass county, to compel respondent to set aside a writ of capias ad respondendum.

    Submitted June 20, 1916.
    (Calendar No. 27,173.)
    Writ denied July 21, 1916.

      Elias P. Harmon, for relator.

      Thos. J. Cavanaugh, for respondent.
   Bird, J.

A writ of mandamus is asked to compel respondent to set aside a writ of capias ad respondendum on which relator was arrested, because of the insufficiency of the affidavit upon which it was issued. The affidavit was made by William R. Clendenin of Cass county, and filed in the circuit court for that county.

Objection is made to the affidavit because the affiant had no personal knowledge of the facts sworn to; that, while the affidavit appears to contain positive statements of fact, “when carefully examined with reference to its objects and purpose, it is so in form only.”. Many of the statements in the affidavit are within counsel’s objection, but there are some positive statements of facts, namely: That relator, on the 11th day of January, 1915, hired a valuable horse of affiant at the village of Jones, for a consideration to drive to the home of Russell Glass and back to the village; that the horse was delivered to relator by affiant, and that he drove it away, and did not return it in accordance with his agreement, and that he did not return it when requested to do so. If we treat as surplusage statements which affiant could not have known of his own personal knowledge, and those which he may or may not have had personal knowledge of, we have left statements, which, if sworn to by affiant.in an action of trover, would make a prima facie case.

But it is argued that no conversion is shown; that if the horse were dead, or it was impossible to redeliver it, relator would not be guilty of conversion. This might or might not be true. Relator might be able to show a state of facts, which would be convincing, that he had not converted the horse, but this showing, whatever it might be, would be by way of defense. While a demand for and a refusal to deliver are not ipso facto a conversion (Felcher v. McMillan, 103 Mich. 494 [61 N. W. 791]), they are evidence of a conversion, and usually make a prima facie case. 38 Cyc. p. 2031. If a prima facie case of trover is made out by the affidavit, a writ of capias ad respondendum will lie. 3 Comp. Laws, § 9998 (3 Comp. Laws 1915, § 12415).

2. The jurisdiction of the proceedings is questioned on the ground that the judge was not present in the county of Cass when he fixed and indorsed the bail on the writ, but was in Van Burén county, which county is also a part of his judicial circuit. 3 Comp. Laws, § 9998 (3 Comp. Laws 1915, § 12415), authorizes the "judge of the court from which the writ issues” to fix the bail and indorse the same on the writ. The judge who indorsed the writ was the judge of the court from which the writ issued. The mere fact that he was out of the county of Ca^s, but elsewhere in his judicial district, is of no importance. There is nothing in the statute which makes it incumbent upon him to be present within the jurisdiction of the particular court when he acts in such matters.

3. A further objection is made that the affidavit for the writ was sworn to before the wife of the attorney for plaintiff. The objection in short is that the statute prohibits attorneys from acting as. notaries in causes in which they are professionally engaged (1 Comp. Laws, § 2640 [3 Comp. Laws 1915, § 12082]), and that, by analogy the wives should be prohibited from so doing by reason of the confidential relation existing between them. We do not think there is any merit in this point. The statute has conferred the authority on her to act as notary public, and unless that right is restricted, as in case of attorneys acting as such in their own cases, we see no legal reason why she may not act in such cases, even though she be the wife of one of the attorneys interested in the case. The question is an appropriate one for the consideration of the legislature.

We think the objections to the writ are not well taken. The writ will be denied, with costs to the respondent.

Stone, C. J., and Kuhn, Ostrander, Moore, Steere, Brooke, and Person, JJ., concurred.


author: Person, J.

text:
    THOMPSON v. SECRETARY OF STATE.
    1. Constitutional Law — Referendum—Elections.
    The referendum provisions of the new Constitution are self-executing.
    2. Same — Filing of Petition — Secretary of State — Fraud .
    Section 1, Art. 5, of the Constitution relating to the initiative and referendum does not authorize the secretary of State to go behind the petition: his action must be based upon the face thereof as it is received and filed, and that official cannot investigaté the truth of averments that many frauds and irregularities were perpetrated before the filing and that people were allowed to sign it who were not electors, etc.
    3. Same — Mandamus—Ministerial Duties.
    His duties being of a ministerial character, he may be required to perform them by the writ of mandamus. They are not political in their nature: the jurisdiction of the court does not so much depend upon whether the duty is prescribed by the legislature, instead of the Constitution, as it does upon the nature of the duty imposed.
    4. Same — Parties—Electors.
    The interest which the electors have in the determination of an important public question may in the discretion of the court be held to be sufficient to warrant them in becoming relators in mandamus to require the secretary of State to properly perform his official duties in submitting or refusing to submit to the voters a referendum petition.
    5. Same — Petition—Number of Signers — Election.
    One-twentieth of the voters may suspend the operation, until the next general election,. of any act of the legislature, except those making an appropriation, and acts necessary to preserve the public peace, health, etc. Accordingly, every safeguard provided by law against its irregular exercise should be carefully maintained. The official should be careful to observe that the various sections of the petition comply with the requirements of the Constitution, fairly construed: each of which is mandatory.

      6. Same — Origin—Sections of Petition.
    The sections of the petition must come from the various county clerks of the counties in which they were circulated. The secretary of State has no authority to receive sections that have not been so filed. All sections of the original petitions circulated in any county must have been filed at the same time.
    7. Same.
    But where the various sections of a petition coming from any county show upon their face that some were filed at one time and some at another, all subsequent to the first filing should be rejected. The sections must be valid and must have been first filed with the several county clerks.
    8. Same — Irregularity.
    Those that show on their face that they were filed in violation of the Constitution are as ineffectual as if they had never been filed at all.
    9. Same — Petition.
    The Constitution contemplates but two petitions on any referendum, an original petition and a second petition, which is supplemental and distinct. The sections going to make up the supplemental petition cannot be filed in the office of the county clerk until after the original petition has been transmitted to the secretary of State.
    10. Same — Referendum—Petitions—Residence—Other Requirements.
    It is required by the Constitution, Art. 5, § 1, that the sections bear the name of the county or city in which they are circulated and each signer shall add the street number and election precinct to his name, the evident purpose of the provisions being to prevent duplication of signatures and fraudulent use of the referendum by persons not electors: accordingly, strict compliance with the constitutional requirements is imperative. The place of residence and of circulation must be shown on every section: names cannot be counted which do not conform to these provisions.
    11. Same — Petition—Abbreviations—Fraud.
    In giving his residence a petitioner may make use of common and well known abbreviations: ditto marks are admissible; but the fact that several names on a section appear to be in tbe same handwriting does not sufficiently show fraud to permit tbe secretary of State to reject them in canvassing tbe petitions.
    12. Same — Affidavit—Sufficiency.
    Without tbe constitutional affidavit attached to tbe sections of tbe petition it can have no validity.
    13. Same — Residence.
    Tbe solicitor must be an elector of tbe county in which be secures signatures to tbe petition.
    14. Same — Alterations.
    Since sections of a petition that have been filed with tbe county clerk have passed out of tbe control of tbe promoters of tbe petition they may not afterwards be amended by opponents or by signers who favor tbe petition.
    15. Same — Recanvass—Mandamus.
    Evidence that several thousand alterations were made in tbe petitions from Wayne county filed in tbe office of tbe secretary of State, who for a time returned them to tbe county clerk, was enough to prevent tbe respondent from canvassing those sections of tbe petition and a mandamus of this court will prohibit him from including them in tbe recanvassing.
    Mandamus by Ethan W. Thompson and others against Coleman C. Vaughan, secretary of State, to compel a recanvass of petitions for a referendum filed in the office of the secretary of State, and to secure a lawful submission of the question to the electors.
    Submitted July 22, 1916.
    (Calendar No. 26,993.)
    Writ granted September 2, 1916.

      Carroll, Kirwin & Hollway and Brown, Walbridge, Kelley & Seelye, for relators.

      Grant Fellows, Attorney General, and L. W. Carr, Assistant Attorney General (Arthur P. Hicks and Stuart E. Knappen, of counsel), for respondent.
   Person, J.

This is an application for a writ of mandamus by which the secretary of State shall be required to recanvass a petition filed with him under the referendum clause of the Constitution. Some phases of the ease were necessarily considered by this court in the framing of an issue of fact under the pleadings. 191 Mich. 303 (157 N. W. 1067). That issue, namely, “Do the petitions from Kent and Wayne counties, on file with the secretary of State, appear, upon their face to be regular and to comply with the constitutional provision, article 5, section 1?” was reserved by this court to be determined through an inspection of the petitions themselves. Such inspection has been had, and the case is now before us for final determination. The important facts from which the contest has arisen, and which are without dispute, are as follows:

At the session held in the year 1915, Senate Enrolled Bill No. 93 passed both branches of the legislature, received the approval of the governor, and became Act No. 304 of the Public Acts of 1915 (2 Comp. Laws 1915, § 9388). Its title shows its general purpose:

“An act to amend section one of act number one hundred sixty-nine of the Public Acts of nineteen hundred thirteen, entitled ‘An act to define what shall constitute fraternal beneficiary societies, orders or associations ; to provide for their incorporation and the regulation of their business, and for the punishment for violations of this act, and to repeal all existing acts or parts of acts inconsistent therewith,’ approved May two, nineteen hundred thirteen.”

The final adjournment of that session~of the legislature took place on the 25th day of May. Before the expiration of ninety days thereafter a petition under the provisions of section 1, art. 5, of the Constitution, as amended in 1913, was filed with the secretary of State, asking that the‘aforesaid act be submitted to' the electors for approval or rejection. Upon a canvass of this petition the secretary of State decided that it had been signed by the requisite number of qualified electors; and on the 24th day of August, 1915, he made his proclamation to that effect. A copy of the material portion of this proclamation appears in Thompson v. Secretary of State, supra. The consequences of the petition, if sufficient, and of the proclamation, if warranted by the petition, will more fully appear upon a consideration of section 1, art. 5, of the Constitution, which, so far as material to this case, reads as follows:

“The legislative power of the State of Michigan is vested in a senate and house of representatives; but the people reserve to themselves the power to propose legislative measures, resolutions and laws; to enact or reject the same at the polls independently of the legislature; and to approve or reject at the polls any act passed by the legislature, except acts making appropriations for State institutions and to meet deficiencies in State funds. The first power reserved by the people is the initiative. * * *
“The second power reserved to the people is the referendum. No act passed by the legislature shall go into effect until ninety days after the final adjournment of the session of the legislature which passed such act, except such acts making appropriations and such acts immediately necessary for the preservation of'the public peace, health or safety, as have been given immediate effect by action of the legislature.
“Upon presentation to the secretary of State within ninety days after the final adjournment of the legislature, of a petition certified to as herein provided, as having been signed by qualified electors equal in number to five per cent, of the total vote cast for all candidates for governor at the last election at which a governor was elected, asking that any act, section or part of any act of the legislature, be submitted to the electors for approval or rejection, the secretary of State, after canvassing such petition as above required, and the same is found to be signed by the requisite number of electors, shall submit to the electors for approval or rejection such act or section or part of any act at. the next succeeding general election; and no such act shall go into effect until and unless approved by a majority of the qualified electors voting thereon. * * *
“Any initiative or referendum petition may be presented in sections, each section containing a full and correct copy of the title and text of the proposed measure. Each signer thereto shall add to his signature, his place of residence, street and number in cities having street numbers, and his election precinct. Any qualified elector of the State shall be competent to solicit such signatures within the county in which he is an elector. Each section of the petition shall bear the name of the county or city in which it is circulated, and only qualified electors of such county or city shall be competent to sign such section. Each section shall have attached thereto the affidavit of the person soliciting signatures to the same, stating his own qualifications and that all the signatures to the attached section were made in his presence, that each signature to the section is the genuine signature of the person signing the same, and no other affidavit thereto shall be required. Such petitions so verified shall be prima, facie evidence that the signatures thereon are genuine and that the persons signing the same are qualified electors.
“Each section of the petition shall be filed with the clerk of the county in which it was circulated, but all said sections circulated in any county shall be filed at the same time. Within twenty days after the filing of such petition in his office, the said clerk shall forward said petition to the secretary of State. Within forty days from the transmission of the said petition to the secretary of State, a supplemental petition identical with the original as to the body of the petition, but containing supplemental names, may be filed with the county clerk, and such supplemental petition shall be forwarded to the secretary of State by said clerk within ten days after the filing of the same.”

Following the proclamation by the secretary of State, and in the following October, relators filed their petition herein, praying that a writ of mandamus issue from this court to the secretary of State, requiring him:

“(A) To recount and recanvass on said referendum petitions filed from the counties of Kent and Wayne, only those signatures of signers thereof who added to their respective signatures their place of residence, street and number in cities having street numbers,, and their election precinct.
“(B) To recount and recanvass on said referendum petition only these sections, which bear the name of the city or county in which it was circulated.
“(C) To recount and recanvass on said referendum petition only the signatures of such qualified electors, of the city or county where such section was circulated.
“(D) To recount and recanvass only those sections which have attached thereto an affidavit of the circulator or solicitor who circulated the said section, which complies with the requirements and provisions of section one of article five of the Constitution of this State.
“ (E) To recount and recanvass only those sections of said referendum petition which were filed with the clerk of the county in which it was circulated, and to count and canvass only the names on such section circulated in the counties qf Kent and Wayne which were filed at the same time as provided in section one of article five of the Constitution.
“(F) To reject and throw out of the said referendum petition all of the said sections thereof filed from the counties of Kent and Wayne which were returned to said counties for correction as set forth herein.
“(G) To reject and throw out of the said referendum petition all and each and every section thereof filed from the counties of Wayne and Kent and shown to be defective and illegal in this petition.
“(H) That such other and further order may be made in the premises as justice may require.
“And your petitioners will ever pray,” etc.

And in their petition relators aver, among other things, that of the 32,809 signatures counted by the secretary of State on the referendum petition, 14,295 were on sections forwarded from the office of the county clerk of Kent county, and 10,589 were on sections foi’warded from the office of the county clerk of Wayne county; that the first 118 sections from Kent county were filed in the office of the county clerk on the 4th day of August, and forwarded to the secretary of State on the 12th day of August; that when forwarded to the secretary of State they did not, in many instances, show the county or city in which they had been circulated, nor the residences or election precincts of the signers, and that they were, in other respects, irregular and insufficient; that they were returned to the office of the county clerk, at his request, and by him turned over to interested parties who, without the knowledge of the signers, added their supposed residences and election precincts, and made other corrections and additions; that these sections were refilled in the clerk’s office as of the 21st day of August, and again forwarded to the secretary of State with 93 additional sections containing more than 6,000 additional names, many of which had been written in without the knowledge of the purported signers. They also aver that the sections from Wayne county were in like manner returned to the county clerk of that county where they passed into the hands of interested parties, who filled in residences, election precincts, and other necessary data, as was done in Kent county, before their return to the secretary of State. They also aver that of the 149 sections from Wayne county the first 52 were filed in the office of the county clerk on the 4th day of August, and that the balance of the sections were filed in that office on the 5th day of August. And relators further aver that many of the names counted by the secretary of State are forgeries; that many others are names of men who are not electors; that many names were counted which on the face of the petition should be rejected, and that if only those names were counted that are entitled to be counted, the number would fall far short of 5 per cent, of the vote cast for governor at the last election. It is also insisted by relators that section 1, art. 5, of the Constitution, as amended, is not self-executing, and that further legislation is required before it can become effective.

As to the last proposition, it cannot be held that this section of the Constitution is not self-executing. There is nothing in its language to indicate that it was to remain in abeyance until given life by legislative enactment. It is said in Cooley on Constitutional Limitations (7th Ed.), p. 121:

“A constitutional provision may be said to be self-executing, if it supplies a sufficient rule, by means of which the right given may be enjoyed and protected, or the duty imposed may be enforced; and it is not self-executing when it merely indicates principles, without laying down rules by means of which those principles may be given the force of law.”

The section of the Constitution under consideration is not a mere statement of principles. On the contrary, it points out in detail the various steps to be taken in referring an act of the legislature to the electors, and undoubtedly intends that the conduct of the election and the canvass and return of votes shall be in accordance with the general laws of the State. And the legislature in its session of 1915 made certain amendments to the general election laws, with the evident purpose of adapting them more fully to the requirements of the referendum. Perhaps further action by the legislature may be advisable in aid of the constitutional provision; but, so far as the proceedings are under review in this case, the course to be taken is plainly pointed out, and this court should not, at the present time, enter into a minute investigation for the purpose of discovering whether there may not be somewhere in the election laws an inapplicable provision, or a step not clearly provided for. Generally, as to when a constitutional provision is self-executing, see Willis v. Mabon, 48 Minn. 140 (50 N. W. 1110, 16 L. R. A. 281, 31 Am. St. Rep. 626); Ex parte Wagner, 21 Okl. 33 (95 Pac. 435, 18 Am. & Eng. Ann. Cas. 197); Stevens v. Benson, 50 Or. 269 (91 Pac. 577); State v. Langworthy, 55 Or. 303 (104 Pac. 424, 106 Pac. 336); State v. Harris, 74 Or. 573 (144 Pac. 109, Am. & Eng. Ann. Cas. 1916A. 1156; Gherna v. State, 16 Ariz. 344 (146 Pac. 494).

It is averred by relators that the referendum petition was the subject of many gross frauds and irregularities before it was finally received and placed on file in the office of the secretary of State; that people were allowed to sign it who were not electors, and that many names were appended to it .by interested parties without the knowledge or consent of those whose names were so appended; and the serious consequences to the State are pointed out if it should be held that the secretary is required to act upon such petition without making an investigation into the alleged frauds and irregularities. The gravity of these charges is fully recognized, but the law must be construed as it stands. It is clear that the secretary of State is not given authority to enter upon such an investigation. This was practically held in Thompson v. Secretary of State, supra, and we are obliged to adhere to the view taken in that opinion. The duties charged upon the secretary by the referendum section of the Constitution are purely ministerial, and his action must be based upon the face of the petition as it is received at his office. Other evils of a serious nature might result if initiative and referendum petitions could be held up pending investigations of uncertain length, and those evils were undoubtedly in mind when the constitutional amendment was framed and adopted without making provisions for such an investigation.

The duties of respondent being ministerial and not discretionary, he may be required to perform those duties by the issuance of the writ of mandamus. The jurisdiction of the court does not so much depend upon whether the duty is prescribed by the legislature, instead of the Constitution, as it does upon the nature of the duty imposed. Sutherland v. Governor, 29 Mich. 320 (18 Am. Rep. 89); Ambler v. Auditor General, 38 Mich. 746. Nor are the duties required of respondent by this section of the Constitution political in their nature. They are certainly no more political than are the conditions precedent to the submission of a constitutional amendment to a vote of the people, or the canvassing of such vote after it' has been submitted. In regard to each of these matters the jurisdiction of the court has been upheld. Rich v. Board of State Canvassers, 100 Mich. 453 (59 N. W. 181); Livingstone v. Wayne Election Commissioners, 174 Mich. 485 (141 N. W. 122). And see Ayres v. Board of State Auditors, 42 Mich. 422 (4 N. W. 274); Beakes v. Board of State Canvassers, 172 Mich. 408 (137 N. W. 958).

It is also objected that the relators have no such interest as entitles them to institute these proceedings. But, as was pointed out in Ayres v. Board of State Auditors, supra, that is a matter of discretion on the part of the court, and not of law. And whether the attorney general was requested to act, as averred in relators’ petition, or not, the very able brief filed by him in these proceedings is so adverse to relators’ contentions. that it must be assumed he could not well have done so. The relators are electors of this State interested in the proper administration of the law; and, under the circumstances of this case and the public importance of the questions raised,' the objection to their instituting these proceedings will not be sustained.

Under the referendum clause of the Constitution one-twentieth of the electors of the State may suspend the operation, until the next general election, of any act of the legislature, however important, except acts making appropriations and such as are immediately necessary for th¿ preservation of the public peace, health, and safety. And, as in this case, such suspension may be for more than a year. Where a power so great as this is vested in a minority of the people, every safeguard provided by law against its irregular or fraudulent exercise should be carefully maintained. It is true that no issues have been framed to determine the truth or falsity of the charges of fraud made by relators in this case. This is because respondent is not given any power to investigate those charges, and mandamus will issue only to compel the performance' of a plain legal duty. He must canvass the petition as it is filed in his office, and can look no further. But he should be careful to see that its various sections comply with the requirements of the Constitution fairly and reasonably construed. Whatever other purpose these requirements may have, it is plainly to be seen that each and every one was intended to safeguard the honesty of the petition. And each and ¿very one is mandatory and must be complied with.

The sections of the petition must come to the secretary of State from the various county clerks of the counties in which the sections were circulated. The secretary of State has no authority to receive and act upon a petition received from any other source. And these various sections must have been filed with the county clerks of the counties in which they were circulated. The secretary of State has no authority to receive sections that have not been so filed. And all sections of the original petitions circulated in any county must have been filed at the same time. These are plain requirements of the Constitution. Whether sections forwarded to the secretary of State by a county clerk will be presumed to have been rightly received and filed by the latter in the absence of any indication to the contrary is not here determined, because the question is not raised by anything that appears on the face of the petition.

But where the various sections cf a referendum petition, coming from any county to the secretary of State, show upon their face that some were filed at one time and some at another, all subsequent to the first filing should be rejected, and none of the signatures thereon should be counted by the secretary of State in his canvass. By an inspection of the referendum petition under consideration it is found that, of the 149 sections from Wayne county, 52 were filed in the office of the county clerk on the 4th day of August, 1915. The remaining sections were filed in that office at a different time, most, if not all of them, on the 5th day of August. On the canvass of the petition by the secretary of State all of tliese subsequent sections should have been rejected, unless the plain language of the Constitution is to be disregarded. The date of filing in the office of the county clerk is marked on each section, and these dates were stamped thereon when the sections were forwarded by the county clerk. Upon these sections from Wayne county the secretary of State erroneously counted upwards of 6,000 signatures.

It is argued in the briefs for respondent that the secretary of State has nothing to do with the time or manner of filing the sections of the petition with the various county clerks, and that his only duty is to count the signatures upon the petition. But the sections of the petition upon which he is to count the signatures must be valid sections, and must have been first filed with the various county clerks. He can act only upon sections that have been so filed. And sections which show upon their face that they were filed in violation of the Constitution are as ineffectual as if they never had been filed at all.

It is also urged that the sections filed with the county-clerk at later dates may be treated as a supplemental petition. To do this would be to deprive of meaning that clause of the Constitution which says “all sections circulated in any county shall be filed at the same time.” The Constitution contemplates but two petitions on any referendum, an original petition and a supplemental petition. These are separate and distinct. All sections in any county going to make up either petition must be filed at the same time. And the sections going to make up the supplemental petition cannot be filed in the office of a county clerk until after the original petition has been transmitted to the secretary of State. The language of the Constitution is:

“Within forty days from the transmission of the said petition to the secretary of State, a supplemental petition, identical with the original as to the body of the petition, but containing supplemental names, may be filed with the county clerk, and such supplemental petition shall be forwarded to the secretary of State by said clerk within ten days after the filing of the same.”

The evident purpose of a supplemental petition is to supply any deficiency that may have been found in the original petition after it has been transmitted to the secretary of State. The sections from Wayne county were all filed with the county clerk, as parts of the original petition, before any portion of them had been transmitted to the secretary of State, and all were transmitted to the secretary of State at one time.

Relators also insist that respondent counted signatures upon sections of the petition which did not show the county or city in which they were circulated^ and that he counted others where the residence or voting precinct was not given. It is required by the Constitution that:

“Each, section of the petition shall bear the name of the county or city in which it is circulated”

—and also that:

“Each signer thereto shall add to his signature his place of residence, street and number in cities having street numbers, and his election precinct.”

The evident purpose of these provisions is to prevent duplication of signatures, and the fraudulent use of the referendum by persons who are not electors. And to make these results more certain it is required that the sections circulated in any county or city shall be signed only by electors residing in such county or city. To secure the results aimed at by the Constitution each of these requirements must be strictly observed. It cannot be inferred that a section was circulated in a certain county or city from the fact that a majority, or all, of the signers gave their residences as in that county or city. Nor can it be inferred that the signers resided in a certain county or -city from the fact that the section was circulated in such county or city. To permit either inference would defeat the object of the constitutional provisions. The place of circulation and the place of residence must each be shown by itself on every section. And the signatures cannot be counted on a section which does not thus show where it was circulated, nor can a signature be counted on any section unless it is followed by the signer’s residences and voting precinct.

The inspection of the petition shows that these constitutional provisions were not complied with in all instances in the canvass made by respondent. Undoubtedly a signer to a referendum petition, in giving his residence, may use common and well-known abbreviations, if there are such designating his county or city, but his residence must not be left to guesswork or mere inference. And ditto marks have such a clear and definite meaning that their use cannot be held objectionable. It is also claimed by relators that upon some of the sections of the petition there are many names, places of residence, and voting precincts all apparently in the same handwriting, and that from this it should be concluded that the names were written thereon fraudulently, and that they should be rejected from the canvass. An examination of the petition lends some plausibility to this claim; but similarity of handwriting is too much a matter of opinion, and the whole proposition is too indefinite, to be acted upon in such a canvass as the secretary of State is required to make.

It is also claimed by relators that signatures were counted upon sections of the petition to which no proper affidavit was attached. The Constitution requires that:

“Each section shall have attached thereto the affidavit of the person soliciting signatures to the same, stating his own qualifications and that all the signatures to the attached section were made in his presence, that each signature to the section is the genuine signature of the person signing the same, and no other affidavit thereto shall be required.”

Without such affidavit a section has no validity whatever. It must, among other things, state the qualifications of the solicitor by whom it is made. He is required to be an elector within the county in which the section was circulated. When the Constitution says:

“Any qualified elector of the State shall be competent to solicit such signatures within the county in which he is an elector”

—it impliedly, and by a well-known rule of construction, precludes him from soliciting signatures in any county in which he is not an elector. The signatures upon any section must be excluded from the count unless the affidavit attached thereto affirmatively shows that the person making it was an elector of the county-in which the section was circulated. The affidavit must also have been made before the section was filed with the county clerk, and it cannot be changed after such filing.

After the various sections of the referendum petition from the counties of Wayne and Kent had been received at the office of the secretary of State, they were returned by respondent to the clerks of those counties, respectively. Afterwards they were again transmitted to the office of the secretary of State. Relators claim that this act of respondent in returning such sections of the petition was unauthorized and illegal, and that it destroyed the validity of every section returned, because, relators say, various changes were made by interested parties in the sections after their return to the county clerks, and that places of residence and voting precincts were inserted without the knowledge or consent of the signers. We agree that sections of a referendum petition once filed with a county clerk have passed out of the control of the promoters of the petition, and that the clerk, while' they are in his office, and the secretary* of State, after they have been filed with him, are as responsible for their safety and integrity as for the safety and integrity of any other paper filed with them. After the sections of a petition have once been filed they may not be amended by its friends, nor mutilated by its enemies. To permit the one would lead to the other. And, besides this, the result intended by the requirement of the Constitution that all sections in any county shall be filed at the same time would be frustrated. Respondent, however, in his answer to relators’ petition, says that the sections from Kent had not been filed in his office when they were returned to the clerk of that county; and an inspection of the sections shows no filing mark at that time. They were therefore as if they had not, as yet, been transmitted to the secretary of State.

But the 149 sections from the county of Wayne were filed in the office of the secretary of State on the 9th day of August, 1915. This is shown by the filing stamp of the department on each section, and is not denied by respondent’s answer. And after being so filed, and while in the custody of the secretary of State, they were returned to the office of the clerk of Wayne county. Later these sections were brought back to the secretary of State with a letter from the county clerk, notifying the secretary that more than 3,800 changes and corrections had been made in the various sections while they were absent from his office. Respondent is required to canvass the petition and its various sections as they are filed in his office, and not as they may be afterwards changed for better or for worse. He says, in his answer, in substance, that he does not know what changes, if any, were made in the sections returned to Wayne county, which is the same as saying that he cannot make any assured canvass of these sections as they were filed. Under these circumstances the sections from Wáyne county cannot be canvassed at all, and must be rejected. Their integrity is gone, and the verity of the affidavits attached thereto has been destroyed.

The writ of mandamus will issue, directing respondent to recanvass the referendum petition referred to, in accordance with the principles stated in this opinion, and to amend his proclamation so as to accord with the result of such recanvass, but without costs.

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


text:
    MACIEJEWSKI v. RYCHART.
    I. Libel and Slander — Action—Chastity—Question fob Jury.
    Where defendant, in an action for slander, said to plaintiff, in the presence of others, “You are a black monkey; a dirty pig. You ought to be ashamed of yourself keeping other men. My son-in-law, Ignatz, had nothing to do with his wife, my daughter, for five months. Where was he during that time, only staying with you. You were sitting with him and kissing him an'd tying his necktie, you low, dirty woman” — the trial court properly left the. question to the jury whether the words so uttered by defendant were actionable per se in that they imputed to plaintiff a want of chastity.
    '2. Same — Action—Ambiguous Meaning — Question for Jury.
    Ordinarily this question is for the court to determine, but where the language complained of is ambiguous or open to double construction the question may be submitted to the jury; and in such cases it is for the court to determine whether the words are susceptible of the construction claimed for them, but the jury should determine whether the construction claimed should be given.

    3. Same — Foreign Language — Translation—Question for Jury.
    Where the alleged slanderous words are spoken in a foreign language, it appears to be the rule to submit to the jury the question whether the translation into English is a correct one.
    4. Same — Verdict—Statute.
    Where the jury returned a verdict for plaintiff, “Damage for character, $100. Damage for suffering, $50” — it was a substantial compliance with the statute (3 Comp. Laws, § 10424; 3 Comp. Laws 1915, § 12758) requiring the verdict to state the amount awarded for damages to feelings separately from the amount awarded for other damages.
    Error to Bay; Collins, J.
    Submitted January 14, 1916.
    (Docket No. 70.)
    Decided September 26, 1916.

      Case by Cecelia Maciejewski against Emily Rychart for slander. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      W. A. Collins, for appellant.

      E. E. Anneke, for appellee.

        As to effect of provision that jury shall determine the law and the facts in libel cases, 33 L. R. A. (N. S.) 207; 51 L. R. A, (N. S.L 369.

   Bird, J.

While the police court of Bay City was trying to adjust some trouble which had arisen between Elizabeth Maciejewski and her husband, Ignatz Maciejewski, the defendant went into court and said to the police judge, in the presence of the witnesses and bystanders, of and concerning the plaintiff, who was present in court:

“You (meaning the plaintiff) are a black monkey; a dirty pig. You ought to be ashamed of yourself keeping other men. My son-in-law, Ignatz, had nothing to do with his wife, my daughter, for five months. Where was he during that time, only staying with you.i You were sitting with him and kissing him and tying his necktie, you low, dirty woman.”

The plaintiff afterwards brought this suit, charging defendant with slander. The words were spoken in the Polish language, and were set out in the declaration in that language as well as in English. The plea was the general issue, with a notice of justification.

1. The chief contention is whether these words so uttered by defendant are actionable per se. The trial court was of the opinion that they were ambiguous, and under the rule left the question to the jury. They found that the words charged imputed to plaintiff a want of chastity, and assessed her damages at the sum of $150. Appellant’s counsel in his brief analyzes the language spoken sentence by sentence, and insists that without the aid of innuendoes they do not charge per se a want of chastity. It is true some of the sentences, standing alone, are open to a double construction, but, when considered as a connected whole, we are inclined to the opinion that they impute a want of chastity to the plaintiff. Ordinarily this question is for the court to determine. Hay v. Reid, 85 Mich. 296 (48 N. W. 507); Brewer v. Chase, 121 Mich. 526 (80 N. W. 575, 46 L. R. A. 397, 80 Am. St. Rep. 527). But where the language complained of is ambiguous or is open to a double construction, the question may be submitted to a jury. 25 Cyc. p. 543; Loranger v. Loranger, 115 Mich. 681 (74 N. W. 228).

The question in this case is, however, close to the line, and we are not prepared to say that the trial court erred in submitting it to the jury. In such cases it is for the court to determine whether the words are susceptible of the construction claimed for them by the plaintiff, but the question as to whether the words spoken should be given the construction claimed for them was one for the jury. Schild v. Legler, 82 Wis. 73 (51 N. W. 1099); 25 Cyc. pp. 543-545.

It appears to be the rule, where the alleged slanderous words are spoken in a foreign language, to submit to the jury the question whether the translation into English is a correct one. While there is not much controversy about the translation in the instant case, in view of the leading form of the questions which developed the translation, I think it furnishes an added reason why the question should have been submitted to the jury.

2. The jury were instructed that:

“If your verdict is for the plaintiff, then you will report separately the amounts, if any, you allow for damages on account of injured feelings, and the amount, if any, you allow on account of damages for injury to reputation. You are to consider what the damages are as to each of those items, if any, and make a separate report of them. The law requires that.”

The verdict returned was in the following form:

“Damage for character, $100.
“Damage for suffering, $50.”

Objection is raised that the verdict was not returned in accordance with the provisions of the statute. 3 Comp. Laws, § 10424 (3 Comp. Laws 1915, § 12758). Obviously the words “Damage for character” were meant for damage to reputation, and the words “Damage for suffering” meant damage for injured feelings. We think this is a substantial compliance with the statute.

There are other assignments referred to in the brief, but, inasmuch as they are not argued, they will receive no consideration.

The judgment of the trial court is affirmed, with costs to the plaintiff.

Stone, C. J., and Kuhn, Moore, Steere, Brooke, and Person, JJ., concurred. Ostrander, J., did not sit.