text:
    DETROIT LUMBER CO. v. AUXILIARY YACHT “PETREL.”
    1. Courts — Jurisdiction—Circuit Courts —Power of Legislature.
    It is within, the power of the legislature to confer jurisdiction upon the circuit court in cases involving any amount.
    2. Same — Justices of the Peace — Jurisdiction—Constitutional Law.
    Under section 18, article 6, of the Constitution, the legislature has the power to withdraw any cause from the jurisdiction of justices of the peace.
    3. Same — Opinions—Dictum—Authority.
    A statement in an opinion of the court which is properly characterized as dictum is entitled to no greater weight than would be given it as an expression of an opinion of the justice writing the opinion.
    4. Maritime Liens — Enforcement — Jurisdiction — Circuit Courts.
    Under sections 10789 and 10790, 3 Comp. Laws, providing for the enforcement of liens on water craft, the circuit court has jurisdiction of proceedings brought for that purpose, notwithstanding the amount of the claim is less than 8100.
    Certiorari to Wayne; Murphy, J.
    Submitted June 16, 1908.
    (Docket No. 120.)
    Decided July 1, 1908.
    Proceedings under the water-craft law by the Detroit Lumber Company against the auxiliary yacht “Petrel.” There was an order dismissing the proceedings for want of jurisdiction, and claimant brings certiorari.
    Reversed.

      E. T. Berger, for claimant.

      Trevor & Bumps, for defendant.
   Montgomery, J.

The proceeding was instituted under the water-craft law, so-called, to recover for certain lumber and materials supplied to the owners and used in the building, fitting out and furnishing the yacht ‘Petrel. ” The amount of the complainant’s claim is $60.93 and interest. When the case came on for hearing before the circuit judge, a motion was made by the defendant to dismiss the proceedings for want of jurisdiction, on the ground that, the amount involved being less than $100, there was no jurisdiction in the circuit court to try the case. This motion was granted, and the ruling on that motion presents the only question for our consideration.

The defendant contends that the case of Dewey v. Duyer, 39 Mich. 509, should control this case. In that case the question presented was whether the mechanics’ lien law conferred jurisdiction upon a court of chancery where the amount involved was less than $100. The statute governing the courts of chancery contains the provision that the courts of chancery shall dismiss every suit concerning property except suits between copartners and suits for the foreclosure of mortgages where the matter in dispute does not exceed $100. In view of the existence of this statute, and of the absence of any express conferrence of jurisdiction in cases involving less than $100 in the lien statute itself, the court held that the court of chancery had not jurisdiction to enforce a mechanics’ lien for less than $100, the court saying: “Implications in favor of jurisdiction cannot be much indulged.”

It is beyond question that the legislature has the power to confer jurisdiction upon the circuit court in cases involving any amount. Section 18, article 6, of the Constitution, provides that in civil cases justices of the peace shall have exclusive jurisdiction to the amount of $100 and concurrent jurisdiction to the amount of $300 (which may be increased to $500) with such exceptions and restrictions as may be provided by law. Any legislation, therefore, which clearly withdraws from the jurisdiction of the justices of the peace any cause is within the constitutional power of the legislature, and the only question presented is whether the water-craft law expresses with sufficient clearness the intention to repose in the circuit court jurisdiction of cases involving a lien against vessels without regard to the amount.

In Milroy v. Mining Co., 43 Mich. 237, it was said that the circuit courts are given jurisdiction in claims against boats and vessels irrespective of the amount claimed. It is properly said in defendant’s brief that this was dictum. It is therefore entitled to no greater weight than would be given it as an expression of an opinion of the justice writing the opinion.

The real question is, What was the intent of the legislature, as expressed by the act? Undoubtedly the language of the statute, section 10790, 3 Comp. Laws, is broad enough to confer jurisdiction in the circuit court over the claim of any person claiming to have a lien specified in section 2 of the act (section* 10789). In fact it would be necessary to introduce an exception by implication in order to exclude from the jurisdiction of the circuit court claims involving less than $100. But when we take into account the purpose of the act, which was to protect labor and seamen’s wages, as well as subcontractors and materialmen, and when the fact — of which we may take judicial notice — is considered, that accrued seamen’s wages very rarely aggregate $100, the inference is strong that the purpose was to confer jurisdiction in this class of cases without regard to the amount. It is specially provided by section 10833 that in suits for seamen’s wages, no security for costs shall be required except by special order of the court or judge thereof upon motion and notice and for good cause shown, thus showing that one of the first objects of the statute was the protection of seamen. We think that the terms of the act do not render it necessary to give it a construction which shall defeat the purpose of the legislature, but, on the contrary, that all claims under this statute are by section 10790 brought within the jurisdiction of the circuit court, and that there is nothing in any other provision of the act or in any other statute which should, in view of the special purpose of this act, be held to exclude by implication claims of less than $100.

The judgment is reversed, and a new trial ordered.

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


source: Caselaw Access Project

author: Blair, J.

license: Public Domain

text:
    PEOPLE v. ANDRE.
    1. False Pretenses — Ownership of Property — Mortgages — Deeds — Contracts—Effect—Instructions.
    In a prosecution for false pretenses, the evidence showed that respondent, being indebted to his father, conveyed to him a half interest in certain real estate as security. Thereafter, at the request of certain other creditors, the father and son conveyed the property to the wife of one of the creditors, taking a contract in the name of the son which provided for payment of the indebtedness and that he should remain in possession of the premises. Held, that the title to the property was in the respondent, and that an instruction submitting the question of ownership, and the falsity of his representations as to his ownership of the property to the jury as an open one was reversible error.
    2. Sales — Remedy of Vendor — Stoppage in Transitu.
    Though the delivery of goods by a vendor to a common carrier is, in law, a delivery to the vendee, the vendor retains the right of stoppage in transitu.
    3. False Pretenses — Evidence—Admissibility.
    In a prosecution for false pretenses inducing a sale of goods on credit, it appeared that respondent referred the complaining witness to a bank, where he had filed a financial statement. The complaining witness, after he had delivered the goods to a carrier for transportation to respondent, and before delivery by the carrier to him, made inquiry of the bank and was informed that respondent had filed a statement showing he was worth a large sum specified above his liabilities and exemptions. Held, that the statement, together with evidence that it was false, was admissible as bearing upon respondent’s intent in making the representations.
    4. Same.
    If the jury found, in accordance with his testimony, that, except for said statement on file in the bank, the complaining witness would have stopped the actual delivery to respondent, they would have been authorized to find that the shipment was made in reliance upon that statement.

      5. Same — Harmless Error.
    Where, in a prosecution for false pretenses, respondent admitted his insolvency at the time the representations complained of were made, the error, if any, in admitting in evidence a circular, subsequently made by respondent’s attorney in involuntary bankruptcy proceedings, showing a statement of respondent’s financial condition, was not prejudicial.
    6. Witnesses — Competency—Privileged Communications — Attorney and Client.
    Statements made by respondent at a conference between respondent, his attorney, and others were not confidential, and hence not privileged, and the attorney may testify thereto.
    Exceptions before judgment from Eaton; Smith, J.
    Submitted June 12, 1908.
    (Docket No. 117.)
    Decided July 1, 1908.
    William Andre was convicted of obtaining money by false pretenses.
    Reversed.

      Frank A. Dean, for appellant.

      Elmer N. Peters, Prosecuting Attorney, for the people.
   Blair, J.

Exceptions before sentence to review conviction of obtaining money by false pretenses. Defendant Andre was engaged in the business of buying and selling eggs, poultry, etc., at Grand Ledge, under the title of the Grand Ledge Cold Storage Company. The complaining witness, George J. Scoefield, of Eaton Rapids, having seen Mr. Andre’s advertisement for the purchase of eggs, went to Grand Ledge on the 28th of April, 1906, and proposed to sell eggs to Andre. In the course of this interview, it is alleged, the false representations relied upon were made. The information sets out the false pretenses and the furnishing of the eggs in reliance thereon, as follows:

“That he, said William Andre, was the owner of the Grand Ledge Cold Storage plant, located at Grand Ledge, Michigan, and that he, the said William Andre, desired to purchase eggs for the purpose of storage, which said eggs were to be stored in the east by said William Andre; that he desired to secure as many eggs as possible, and was, therefore, willing to spring the price in order to secure early eggs for said purpose of storage; that the storage at Grand Ledge was to be used by him, the said William Andre, later for the purpose of storing butter; that he, the said William Andre, on the date aforesaid, also gave to said George J. Scoefield the name of the Grand Ledge State Bank as a party to whom he could refer to make inquiry as to said William Andre’s financial condition and responsibility; that thereafter, and on, to wit, the seventh day of May, A. D. 1906, the said George J. Scoefield inquired of the said Grand Ledge State Bank as to the financial standing and responsibility and honesty of the said William Andre, and was then and there informed by the cashier of said Grand Ledge State Bank that it, the Grand Ledge State Bank, had on file a statement made by the said William Andre, which showed that the said William Andre was worth the sum of eighteen thousand dollars over and above all debts, liabilities and exemptions; and believing the false pretenses and representations so made as aforesaid by the said William Andre, he, the said George J. Scoefield, was then and there deceived thereby, and was then and there induced by means of said false pretenses and representations so made as aforesaid to deliver, and did thereafter and on, to wit, the 11th day of May, A. D. 1906, deliver to said William Andre 18 cases of eggs of the value of $111, and did on the 12th day of May, A. D. 1906, deliver to said William Andre 150 cases of eggs of the value of $?00, all of the value of $811 of the property of him the said George J. Scoefield; that the said William Andre did then and there, designedly and by means of said false pretenses and representations made as aforesaid, unlawfully and fraudulently obtain from the said George' J. Scoefield the said 168 cases of eggs, of the goods and property of the said George J. Scoefield with intent then and there to cheat and defraud him, the said George J. Scoefield, of the same; whereas in truth and in fact the said William Andre was not, on said 28th day of April, A. D. 1906, the owner of the said Grand Ledge Cold Storage plant, and did not desire to purchase eggs for the purpose of storage, and said eggs were not to be stored in the east by said William Andre, and the said William Andre was not springing the price in order to secure early eggs for the purpose of storage, and the said William Andre was not worth the sum of $18,000 over and above all debts, liabilities and exemptions, all of which pretenses and representations so made by the same William Andre as aforesaid, were false in fact, and were, at the time and place aforesaid, well known by the said William Andre to be false and fraudulent.”

On the 12th day of May, 1906, Mr. Scoefield shipped to Andre from Eaton Rapids 150 cases of eggs at a value of between eight or nine hundred dollars, for which he received checks on the 16th or 17th of May, which were protested for nonpayment. On the 14th of May, Mr. Scoefield, having become suspicious, called up the Michigan Tradesman at Grand Rapids, who informed him:

“They were not thoroughly convinced about his being all right and that he had no authority to use them as reference. I then called up the cashier of the Grand Ledge State Bank thinking that he would know more about it than anybody else, he being near by. He told me that Andre had a statement on file which he had every reason to believe was true to the effect that he, Andre, was worth $18,000 over and above everything and that his reputation for honesty and so forth was good. My intention was if I received an unfavorable report to stop the eggs en route or to have them replevied if he had them in his possession. I never received my pay for those eggs shipped on those two days. I was deceived by those representations that Mr. Andre had made to me as to his ownership of the property and purpose in buying them and paying that price as I have testified; and I was deceived by the report made to me by th¡e cashier of the Grand Ledge State Bank.”

The car of 150 crates of eggs shipped by Scoefield to Andre was consigned to the Grand Ledge Cold Storage Company, which, according to Andre’s testimony, was composed of himself, and arrived at Grand Ledge on May 15 at ten o’clock p. m.

The court, after reading the information to the jury, instructed them that they could not consider the statement of the respondent filed with the bank and the representations made by the bank to the complainant Scoefield as causes which induced Scoefield to deliver his eggs to the respondent:

“For the reason that it is undisputed that the eggs were delivered to respondent before complainant Scoefield had any knowledge of the said statement in the bank; mother words, such bank statement cannot be considered as false representations on the part of the respondent by which Scoefield was induced to part with his property. You should, however, gentlemen, consider that proof with the other proof in the case on the question of his intent, that is, you should consider it with all the other proof in the case to determine whether the statements made by respondent as to his ownership of the cold storage plant at Grand Ledge and his desire to purchase eggs for the purpose of storage in the east and statements connected therewith, should you find from the proof he made such statements as to the ownership and the other statements connected therewith, you should consider them to determine whether they were designedly false and made to induce Scoefield to part with his property and were successful.”

The only false representations submitted to the jury, as appears from the charge of the court and as stated by the prosecuting attorney, were: (1) that Andre was the owner of the cold storage plant; (2) that he was springing the price of eggs for the purpose of securing early eggs to be stored in the east and that he was storing them in the east.

Numerous assignments of error are presented, several of which are abandoned by counsel for respondent, and we shall only consider those which we deem important for the purpose of disposing of the case.

It is argued that the representation by respondent that he owned the property on the 28th day of April, 1906, was not false, and that the court erjred in submitting that question to the jury as an open question. It appears from the record that in February, 1906, the title to the real estate in question stood in the name of respondent Andre and his father, Herman Andre. Respondent testified, and his testimony was the only testimony upon the subject in the record, that, prior to the deed to Mrs. Berry hereinafter referred to, he deeded to his father, Herman Andre, a half interest because “he said I ought to be protected, and I said, ‘ I will deed you a half interest in this property,’ which was some time in January, 1905, ‘to secure you for what I owe you.’ He said, all right, and I deeded him a half interest in the property.”

Mr. Briggs, one of the three owners of the Loan & Deposit Bank of Grand Ledge, a private bank, testified:

“ Mr. Andre has been a borrower at my bank and did. business with us 8 or 10 years, stopping on the 1st of February, 1906. At that time he was indebted to Mr. Berry, the president of the bank, to the amount of about $9,600 which was secured by a real estate mortgage and also a trust deed to Mrs. Berry, wife of the president of the bank, subject to mortgage. Deed from William Andre and wife and Herman Andre and wife to Jennie M. Berry, introduced, marked Exhibit A and read in evidence, the description of the property in said deed being the same as the description of the property contained in Exhibit B. At the same time the deed was executed a contract was executed to Mr. Andre which is marked Exhibit B and reads as follows.”

The contract was in most respects the usual form of land contract, in which respondent agreed positively to pay—

“ Nine thousand six hundred twelve and ninety-six one hundredths ($9,612.96) dollars, in the manner following, to wit: On or before October 1st, 1906, with lawful interest from the date hereof, at the rate of six per cent., payable every thirty days upon so much of the purchase money as remains unpaid.”

It also contained the following clause:

“ It is mutually agreed by and between the parties hereto that in case of the payment of the said sum of nine thousand six hundred twelve and ninety-six one hundredths dollars, or any part thereof, by the said second party, that first party will promptly apply any and all payments on said second party’s indebtedness to the banking firm of Berry, Briggs & Berry, and it is also understood that said second party has the right to make payments of any amount on this contract. ”

Mr. Briggs further testified:

“ The purpose of having this contract and deed executed was to get possession of the property and save the time and expense of a foreclosure of the mortgages.”

This contract was executed on the 16th day of February, 1906. It further appears from Mr. Briggs’ testimony that the bank held a chattel mortgage as additional security.

Mr. Alexander, attorney for the Loan & Deposit Bank, testified:

‘' I commenced proceedings before a circuit court commissioner to oust him from the property after the expiration of the contract and you, Mr. Zimmer, appeared as attorney for Mr. Andre and raised the objection that the circuit court commissioner had no jurisdiction and that proceedings must be had by foreclosure. I took judgment by default and proceeded to oust Mr. Andre but have since commenced proceedings by foreclosure, in chancery, to get possession of the property. The title to the property was not in Mr. Andre on the 28th of April last. It was in Jennie M. Berry. It did not pass to her absolutely, but passed to her subject to the condition of the contract October 1, 1906.”

We are of the opinion that the respondent’s assignment of error is well founded and the court should have instructed the jury, as a matter of law, upon this record, that the title and ownership of this property was in the respondent. The case falls directly within the case of Clark v. Landon, 90 Mich. 83, and is even stronger, because in the case at bar the contract provided^ that respondent was to remain in possession of the premises. See, also, Flynn v. Holmes, 145 Mich. 606.

The case is entirely dissimilar from Reed v. Bond, 96 Mich. 134; Blumberg v. Beekman, 121 Mich. 647, and like cases. In the case at bar, the indebtedness was kept on foot and was not discharged nor intended to be discharged by the contract.

The fact that the title originally stood of record as in respondent and his father, Herman, is of no consequence, if his interest was conveyed to him as a security, as testified to by respondent, and under the facts of this case ceases to be of consequence for the reason that Herman agreed to the transaction and conveyed the property to Mrs. Berry, the wife of the president of the bank, with reference to the contract placing the entire title in the name of respondent.

Defendant’s counsel contend with reference to the introduction of the financial statement filed by respondent with the bank:

“Its introduction in evidence was flagrant error and laid the foundation for the subsequent testimony of Kilbourne, Briggs, Alexander, and the circular letter of T. Rogers Lyons, attorney for Andre in bankruptcy hereafter to be noted. It had no relevancy to the issue, but raised a false issue to prejudice the jury and allowed the prosecution to introduce testimony of the financial status of the bankrupt’s estate months after the offense was committed.”

We do not think the judge erred in his instruction to the jury that this financial statement could be considered by them in determining respondent’s intent in making the alleged representations to Scoefield nor in permitting testimony to show that the financial statement was false. Moreover, we are of the opinion that the prosecution were entitled to go to the jury upon the question whether Scoefield relied upon this financial statement and was induced thereby to make the shipments of eggs in question. The mere fact that the information alleged dates earlier than the delivery to the common carrier as the dates upon which Scoefield relied upon the false representations in making shipments is not controlling. While a delivery to the railway company was, in law, a delivery to the respondent, still, the vendor retained the right of stoppage in transitu, and if the jury found, as the agent of the Pere Marquette railroad testified, that “that car arrived at 10 p. m. May 15,” Scoefield could have stopped its delivery at anytime, at least prior to that hour. And if the jury found, in accordance with his testimony, that, except for the statement from the bank of the financial standing of respondent as shown by his statement on file obtained in the meantime, Scoefield would have stopped the actual delivery to respondent, then we think they would have been authorized to find that the shipment really was in reliance upon that statement.

That the court erred in admitting in evidence a circular letter issued to the creditors of William Andre, against whom involuntary bankruptcy proceedings had been instituted, by his attorney, Mr. T. Rogers Lyons, for the purpose of informing them that a composition had been offered and. furnishing a statement of the affairs and condition of the bankrupt estate. This circular was offered with the following statement by the prosecuting attorney:

“ I claim this circular states — showing an indebtedness of $50,000 and assets of $18,000, 25 per cent, of the fifty would be $12,500. It shows they are seeking even now to get a compromise of the creditors by means of the representations they made in this and there would be a difference between $12,500 and $18,000.
“The Court: I think that may be admitted.”

Although it appears that respondent knew of the contents of this circular and distributed several of them, we do not think the circular prepared and signed by the attorney for the purpose of obtaining a composition sometime after the making of the alleged false representations was admissible for the purpose alleged, although it is not apparent how the introduction of the circular could have prejudiced the respondent, who admitted an indebtedness largely in excess of his assets existing at the time the representations were made.

That the court erred in permitting the testimony of Mr. Kilbourne to be given, who, at the time to which his testimony related, was acting as attorney for Mr. Andre. The testimony related to a conference at the office of Mr. Alexander between Mr. Andre and his attorney, Mr. Kilbourne, on the one side, and Mr. Alexander and Mr. Briggs, upon the other. The statements made at this conference were evidently not confidential in any respect and were, consequently, not privileged. Cady v. Walker, 62 Mich. 157; 23 Am. & Eng. Enc. Law (2d Ed.), 73. We are also of the opinion that the testimony was admissible as against the grounds of incompetency, immateriality, and irrelevancy.

For the error in submitting the question of ownership of real estate to the jury, the conviction is reversed, and a new trial granted.

Grant, O. J., and Moore, Carpenter, and McAlvay, JJ., concurred.


text:
    BOLGER v. COMMON COUNCIL OF THE CITY OF DETROIT.
    1. Municipal Corporations — Detroit Charter — Oeeioers—Removal — Procedure.
    Under section 4, Act No. 417, Local Acts 1901, amendatory of the charter of Detroit, providing the procedure for removal of the commissioner of parks and boulevards, the commissioner can be removed only upon a showing of legal cause, the legal sufficiency of which cause is a question for the court.

      2. Same — Grounds oe Removal — Charges—Sufficiency.
    Charges of gross neglect of duty by the commissioner, consisting of failure to protect the city in contracts let by him and to inspect or provide for proper inspection of public work being done under his direction, examined, and held, legally sufficient, if sustained by the proof, to authorize his removal.
    3. Same — Gross Neglect of Duty — What Constitutes.
    Gross neglect of duty, justifying the removal of a public officer, is not limited to intentional official wrongdoing, but extends to any neglect of official duty which permits the public interests to be injured or endangered, and which, from the gravity of the case, or the frequency of instances, becomes so serious in its character as to endanger or threaten the public welfare.
    4. Same — Reliance Upon Subordinates — Responsibility.
    The commissioner, having authority to “employ and at his pleasure discharge superintendents, engineers,” etc., though entitled to rely to some extent upon their reports, could not rely upon them wholly, nor to the extent that he might if they were appointed by others and not entirely subject to his own discretion; and in proceedings for his removal it was a question for the council whether it was not gross negligence for him to rely upon his subordinates to the extent which the evidence indicated he did.

      5. Same — Evidence—Sufficiency.
    Evidence in proceedings to remove the commissioner for gross neglect of duty examined, and held, to support the finding of guilty, especially as the six judges of the Wayne circuit court unanimously came to the same conclusion.
    6. Same — Trial—View—Propriety.
    The proceedings being based upon charges of gross neglect of duty in respect to public improvements being done under the commissioner’s direction, it was competent for the council to examine the work in order to have a better understanding of the testimony, especially where such examination was made in the presence of counsel for the commissioner and without objection from him.
    7. Same — Review—Certiorari—Scope.
    The action of the council in removing the commissioner, upon charges of gross neglect of duty, was properly sustained upon certiorari, against the objection that the council should have voted separately upon each charge and specification thereunder, and upon the question of removal, since the writ, being largely discretionary, is not granted in such cases upon purely technical grounds, and it is presumable that each alderman who voted for the affirmative upon the resolution of removal passed upon every one of the charges and specifications enumerated therein, and upon the question of removal.
    8. Same — Neglect of Duty — Financial Loss to City.
    The facts that the city was fully protected against financial loss by bonds; that the work had not been finally accepted by the commissioner; that the contractors were bound to make good all defects in work or materials; and that the commissioner, according to his testimony, intended to make an accurate final inspection of the completed work and to require it to conform in all respects to the contract, were not so inconsistent with the charges of gross negligence as to invalidate the findings of the council, since it was the duty of the commissioner to inspect the work as it proceeded, and the bonds and the provisions of the contract did not dispense with the necessity for careful supervision, but furnished an additional remedy in case, with proper inspection during its progress, the improvement was found in any respect imperfect.
    9. Same — Defenses—Lack of Financial Loss — Effect.
    If, acting upon competent evidence, the council were satisfied that the commissioner’s performance of his duties evidenced such gross negligence as to indicate that his further Continuance in office would be a menace to the public, his removal would not be improper for the reason that, in the end, the city would suffer no financial loss.

      10. Same — Loss to Public — Financial Loss.
    Because the contractors had given bonds for the protection of the public against any money loss, it does not necessarily follow that no loss would have been suffered, since the inconvenience of the public during the period when necessary repairs or rebuilding would have to be done, a period in which, had the contract been performed according to its tenor, the publio would have been entitled to the free and unobstructed use of the improvement, is an element of loss quite as important and worthy of consideration as a mere financial loss.
    Error to Wayne; Brooke, Rohnert, Mandell, Donovan, Hosmer, and Murphy, JJ.
    Submitted June 19, 1908.
    (Docket No. 71.)
    Decided July 1, 1908.
    Certiorari by Robert E. Bolger to review proceedings by the common council of the city of Detroit to remove plaintiff from the office of commissioner of parks and boulevards. There was judgment sustaining the proceedings, and plaintiff brings error.
    Affirmed.

      Alex. J. Groesbecic, Edwin Henderson, and John J. Speed, for appellant.

      Frazer, Griswold & Slyfield, for appellee.
   Blair, J.

The record in this case is before us upon writ of error to review proceedings before the full bench of the circuit court for the county of Wayne upon common-law certiorari to the common council of the city of Detroit, to review their action in removing the plaintiff in error from his office as commissioner of parks and boulevards.

On the 30th of January, 1906, the committee on parks and boulevards of said common council preferred certain charges against Mr. Bolger, of which the council found the following were sustained by the proofs:

First Charge. Tour committee charge that Robert E. Bolger, commissioner of parks and boulevards of the city of Detroit, was and is guilty of gross negligence and unlawful conduct in his office, in connection with the contracts let to Thomas Kennedy, for the paving of Lafayette boulevard, and on the Eastern boulevard, St. Aubin to Chene and Mack to Gratiot.
Specification. The contract for said work, the specifications and blue print drawings called for eight inches of concrete behind the curb, six inches below the curb and six inches in front of the curb. These specifications were deliberately and intentionally disregarded by the said contractor, and the men laying the same were instructed not to put in the quantity of concrete required by the said plans and specifications; that in many instances dirt was thrown in behind the curb in the place of concrete, large and unsuitable stone without sufficient quantity of cement to bind them together, and the quantities of stone were greatly in excess in size of that required by the contract and specifications to constitute the concrete, and there was not enough cement used. That this condition of affairs was known to said commissioner, and that he was present upon the work and saw the concrete being put in behind the curb stone contrary to the specifications and blue prints which he had furnished to the contractor.
“Second Charge. We charge the said commissioner with neglect of his duties, unfitness and incompetency in the discharge of his duties in the matter of contracts with Lennane Bros., for paving the Boulevard, Vinewood to the railroad, Visgar to Buchanan and Hancock to Holden, and the speedway, and with Thomas Kennedy, in the matter of contracts as above mentioned.
“First Specification. That he did not furnish a sufficient number of inspectors upon the construction of the Boulevard pavement under the contracts let by him to Kennedy and to Lennane Bros., although he was informed they were needed, and that some of the work was done without any inspection at all. * * *
Third Specification. That the commissioner, Robert E. Bolger, while frequently upon the work himself, made no inspection of the work whatever and that if he had done so he could easily have seen that the work was improperly done; that he did not provide competent men or sufficient number of men to make the inspection in case that he was unable to do so, or provide them with full profiles, drawings, plans and specifications, so that the inspectors could do competent and proper work.
Fourth Specification. That the construction of the roadbed of said Boulevard paving was improperly and negligently done; that the limestone used was larger than the specifications permitted; that said roadbed was not in some places excavated as deep as it should have been excavated. That false amounts of excavation and of square yardage of pavement and of sewer pipe and of curbing were called for in the specification to a large amount on the Lennane and Kennedy contracts above mentioned. That other portions of the road were not constructed in accordance with the requirements of the specifications; that the roadbed was not flooded and rolled, nor the different layers of stone as prescribed in the specifications; that granite or trap rock were not used as specified, screenings were not used to fill up the openings in the limestone, granite or trap rock, and that in other particulars the construction was imperfect and not in accordance with the terms of the specifications thereof, as said commissioner should have known, and might easily have discovered if he had properly discharged his duties, and given that inspection which his position required him to give.
“jFifth Specification. That said commissioner was aware before he let the said contract to Kennedy of his reputation for doing faulty work, and that said Kennedy would not be likely to do the job properly if the job were let to him, and that said commissioner disregarded these warnings. That said commissioner himself well knew said Kennedy’s reputation, and knew the necessity of a close inspection of all the work done by him; that said commissioner, Robert E. Bolger, disregarded this fact and put an inadequate number of inspectors on the job. * * *
“Fourth Charge. Your committee charge that said Robert E. Bolger, commissioner of parks and boulevards, was grossly negligent in letting the contract for the construction of the Boulevard pavement in this: * * *
Fifth Charge. We charge that said commissioner was grossly negligent in accepting the estimates by Ray of work done and material furnished and making payment upon these estimates without proper investigation and scrutiny; that said Engineer Ray was a man of his own appointing and he had power to discharge him at will; and we charge that at no time from the beginning of the work until the end, did the commissioner give such personal attention to the inspection of the work and of the work itself as his manifest duties required him to do, and in this he was guilty of gross negligence. * * *
“Eighth Charge. We charge said Robert E. Bolger with incompetency, unfitness, gross neglect of duty in this:
“Specification, (a) That he adopted and approved plans, specifications, blue prints, and estimates for paving, to be done upon the boulevards which were not designed to and did not protect the best interests of the city of Detroit.
“(b) That in violation of the law, he changed said plans, specifications and blue prints after the bids and proposals on the same were made and received, by cutting off said plans and specifications part of the cement curb; in changing the course of the pavement at Lafayette and the Boulevard, and in the hauling of dirt from the Vine-wood avenue job to Clark Park, instead of to Atkinson Park, as provided in said specification; that said changes were all made in the «interests of the contractor, stifled competition, and were not in the interests of the city of Detroit.
“(c) That he advertised for bids to make a speedway forty (40) feet wide on the Western Boulevard, and let the contract to Lennane Bros, for thirty (80) feet wide, without readvertising the same.
“ (d) That he allowed concrete to be put behind the curbing without in any manner providing for the composition or the component parts of the same, either as to stone, cement or other ingredients.
“(e) That he accepted bids on said work and let the contracts for the same without designating therein the kind of cement and without the bidders naming the kind of cement to be used.
“ (/) That the reinforced cement curb was not constructed according to the specifications, but that the iron pipe of .one inch dimension and the reinforcing rods and wires were not put therein as required by the- specifications ; that in about half of said work the same were entirely omitted, which was well known to said commissioner, or could have been easily known, had he made a personal inspection or provided for adequate and proper inspection of said work. * * *
“Eleventh Charge. That said Robert E. Bolger was and is guilty of unlawful acts in his office as park and boulevard commissioner, of gross negligence in the performance of his duties in said office, maladministration, incompeteney and unfitness therein.”

Certain other charges upon the application of Mr. Bolger for writ of prohibition were stricken out upon the hearing of that application by the court and the council was directed to proceed to a hearing upon the remaining charges.

On the 20th day of February, the common council took up the hearing of testimony in the case and continued said hearing until the 9th of April, when it passed the following resolution:

“It is resolved by the common council of the city of Detroit, and said council finds the facts as follows: That all said charges and specifications so preferred and heard and tried as aforesaid are true, and are hereby declared duly sustained, and established, except the second specification of the second charge, and the third charge, and the specification under the fourth charge. * * * And therefore be it resolved further, that said Robert E. Bolger be and he is hereby removed from the office of and as commissioner of parks and boulevards of the city of Detroit, on account of and by reason of being guilty of the said several charges and specifications as aforesaid.”

All charges reflecting upon the integrity of the commissioner were found to be not sustained and he was exonerated from any intentional wrongdoing.

Section 4 of Act No. 417 of the Local Acts of 1901 provides:

“The said commissioner may be removed by a vote of two-thirds of the members elect of the common council, but only upon written charges and an opportunity to appear and, defend with the aid of counsel.”

Sections 5 and 6 contain the following:

“Sec. 5. The commissioner of parks and boulevards shall appoint a secretary, who shall hold office during his pleasure, and shall make all needful general rules and regulations for the transaction of business of his department, and may employ and at his pleasure discharge superintendents, engineers, clerks, agents and subordinates, and prescribe their compensation. All officers and appointees, or either of them, shall give security for the faithful performance of their trust, as said commissioner may require.
“ Sec. 6. The commissioner of parks and boulevards shall have the control and management, and shall have charge of the improvements of all the parks and public grounds of said city, including the island park, known as Belle Isle park, and of such parks and public grounds as may hereafter be acquired, laid out, purchased or dedicated for public use in said city. And he shall likewise have the control, management and charge of the improvement and maintenance of the boulevard, which was laid out and established by the act creating said board of boulevard commissioners, and of any other boulevard which may at any time be hereafter acquired, laid out, established or located by said city.”

At the hearing in question, Mr. Bolger was present at all the sessions, which occupied some 24 days. He was represented by counsel at all the hearings and testified fully in his own behalf. The resolution of removal was adopted by a majority of 23 to 11, constituting the necessary statutory number.

The same questions which are raised before us now were presented to the full bench of the Wayne circuit court and were resolved against the plaintiff in error by that court in a unanimous opinion, with which we might well content ourselves without further remarks. Inasmuch, however, as counsel for plaintiff strenuously insist that that there was no competent evidence presented before the council to sustain any of the charges or specifications, even if the same were sufficient in form, we briefly consider that question.

We agree with counsel for plaintiff in error that the provision of section 4 of the act of 1901 above quoted requires a showing of legal cause for removal and that the legal sufficiency of the cause of removal is a question for the court. We are of the opinion, however, that with the exception of the 4th and 11th charges, the charges were legally sufficient to authorize the removal of the commissioner, if sustained by the proof. In determining whether the charges were sustained by the proof, reference must be had to the powers conferred upon the commissioner.

It is contended by counsel for plaintiff in error:

“ Only gross negligence resulting in damage will justify the removal of the incumbent of an office of the dignity and importance of the commissioner of parks and boulevards. Gross negligence is the intentional failure to perform a manifest duty. Schindler v. Railway Co., 87 Mich. 411.
“ Negligence is the unintentional failure to perform a duty implied by law, whereby damage naturally and proximately results to another. 21 Am. & Eng. Enc. Law (2d Ed.), p. 457.”

In Attorney General v. Jochim, 99 Mich. 358, it was held that the secretary of State, State treasurer, and commissioner of the State land office, while acting as members of the board of State canvassers, were guilty of gross neglect of duty in certifying as correct a tabulated statement prepared by their clerks in reliance solely upon the statement of said clerks that said tabular statement was correct. In the course of the opinion by Mr. Justice Hooker, he said:

“We come next to the charges. It is contended that they are insufficient, because the act is not alleged to have been intentional, and because it was not gross neglect to permit an erroneous canvass by clerks. * * * A mere failure to certify could be called ‘neglect.’ YvHhat shall be said of it when the certificate is made without knowledge of, or any attempt to ascertain, the fact ? * * * Looking at the circumstances from his official standpoint, thq governor may well have said this, though not willful, was only possible by reason of the grossest neglect of official duty. It certainly was someone’s duty to move at once with a view to the correction of the error, and the prevention of its recurrence. While there is an inclination upon the part of the average American to accept good intentions as an excuse for mistakes, it is not for the general public good that responsible public offices shall be confided to, or remain in the custody of, those whose duties and responsibilities rest so, lightly upon them as to permit the public interests to be injured or endangered through neglect; and when such neglect, from the gravity of the case, or the frequency of the instances, becomes so serious in its character as to endanger or threaten the public welfare, it is gross, within the meaning of the law, and justifies the interference of the executive, upon whom is placed, by this amendment, the responsibility of keeping the affairs of State in a proper condition. We cannot think that the term ‘gross neglect ’ means only intentional official wrongdoing. Such acts would hardly be described by the word ‘neglect.’”

While it is true that the act held to be gross neglect in the Jochim Case was one required to be personally performed by the officer himself, we think the definition of gross neglect given in the case is applicable to this case. It will be seen from the provisions of the statute relative to his office, that the commissioner is given very extensive powers,

“And may employ and at his pleasure discharge superintendents, engineers, clerks, agents and subordinates and prescribe their compensation.”

While we agree with counsel for plaintiff in error that the commissioner was not required to abandon the performance of his other duties and give his entire time to the performance of the - Boulevard work, and while he might, to a certain extent, rely upon the reports of his engineer as to scientific matters, which would not be expected to be within his knowledge, and, to a certain extent, upon the reports of his inspectors, it was not competent for him to rely wholly upon them or to the same extent that he might rely upon them if they were appointed by others and not entirely subject to his own discretion. They were his employés and agents and not the municipality’s, subject to his arbitrary will, aiding him in the performance of the duties required of him, and he may justly be held responsible, to a large degree, for their performance of the duties delegated to them. We think it was a question for the council in this case, whether it was not gross negligence in him to rely upon these officers to the extent to which the record indicates he did.

The testimony in this case is too voluminous for us to undertake to set forth those portions tending to sustain the several charges, but, as an illustration, we quote certain portions of the evidence in support of the third specification of the second charge.

Inspector Benedict, appointed by Mr. Bolger, testified:

“ I didn’t have the specifications for a week or ten days after I was there, and I went to Mr. Busch and he says: ‘Have you got the contract, I mean the specifications,’ and I said, ‘ No,’ I said, ‘ I have not, and I do not know much about what is to be done,’ and he said, ‘ I will see to that.’ The next day he brought me up a contract; I mean the specifications. He did not bring me any blue print. Some days after I asked him about that. I says, ‘ I want something to show the grade and measurements,’ and he said: ‘I will bring you one,’and he did. He brought me a blue print and a cross cut of the work bn the road and the curb. In a week or ten days before I got the specifications. Up to that time they had not been laying any curb. * * * When I went up on to the St. Aubin job no one was left on the Mack job as inspector. When I was down on the Mack job no one was up on the St. Aubin job as inspector. * * * I should say I was two or three weeks up there on that job before I came back again.
“Q. While you were up there two or three weeks there was no one left in your place to inspect the other job ?
“A. No, sir. * * *
“Q. During your absence on the St. Aubin job they would be doing work upon the Mack job ?
“A. Yes.
“Q. And there was no one there to inspect it as an inspector ?
“A. Not to my knowledge. * * *
“Q. Was it possible for you to watch all of that work ?
“A. Not and know that it was done properly. * * *
“Q. How many men were needed there on that work to inspect it properly and see that it was done right ?
“A. At the time, all the time there were two curb setters working there should have been at least three men. The last two weeks or two and a half I was there I told Mr. Busch that I would have to have help in looking after it, and have it done properly, not only the curb setting, but they were leveling down these stones and putting them down, and I said: ‘ I am satisfied you want someone to look after that.’ He said: ‘I will chase somebody up there to help you.’
“Q. The work that you were doing there was really the work of three inspectors, or ought to take, rather, three inspectors to do that work properly ?
“A. To watch it and know that it was done properly, because I knew they were beating me all they could, and to watch it as it should be watched it needed more inspectors.
Q. Then, in your judgment, based on your experience, there was not a sufficient number of inspectors on that work?
“A. I don’t think there was. * * *
“Q. How often did you see Commissioner Bolger on that work ?
“A. Well, at the first, when I went up there, he was up there to the best of my recollection, he was up there two or three times a week.
“Q. Was he ever up there when he could see these conditions were present that you talk about ?
“A. He was up there, if I remember right, once when I was setting the curb. I didn’t see him until he hit me on the shoulder and touched me. I turned around, and saw Mr. Bolger, and he was right there on the ground, and I should say he was about two-thirds of the way from Mack up to Gratiot.
“Q. Was that one of the times when these conditions were present that you talk about ?
“A. Yes, sir. I was working at the two streets and looking after the two men, two curb setters.
“Q. Did he speak anything to you that there was work going on here and over there, and ask you if you could keep track of those different gangs ?
“A. Not in those words, he didn’t. He wanted to know how things were going. I says we are doing the best we can and he told me to have it — to watch it and see that it was right up to the specifications, and see to it and have it done right, and I will stand by you.
“Q. Did you consider that he could see as well as you could how much you could do, or how little ?
“A. I considered that he ought to know how much a man could do, how much he can look after.
“Q. And the conditions were present there where he could see them just as well as you could ?
"A. They certainly were.
“Q. And was that one of the reasons that you did not care to speak to him ?
“A. That was really the only reason. * * * I sup-
posed that the concrete behind the curb was to be 6 inches, but now it turns out that it is 8 inches.
“Q. Did any one tell you that it was to be 6 inches?
“A. Why, I always, I never heard anything but 6 inches. I never heard the word 8 inches mentioned by anybody until the committee came around on the upper north Boulevard, who was investigating, and one of the aldermen showed me that little bit of an 8, that figure 8 down in the cobble stone that I had never seen. * * *
“Q. Now, Mr. Benedict, speaking about this concrete behind the curb, as a matter of fact, in looking at that profile you overlooked the fact that there was 8 inches required behind the curb ?
“A. That is right.
“Q. That is the truth of it ?
“A. That is the truth of it.
“Q. And the fault of not having that concrete up to the requirements of the specifications; 8 inches, is due to an oversight in not seeing that 8 there ?
“A. Yes. * * *
“Q. Didn’t you know that your blue print called for 6 inches of cement in front of the curb, of concrete ?
“A. No, I didn’t know that.
“Q. You don’t know that?
“A. I don’t know that now.
“Q. Asa matter of fact you put in 3 or 4 ?
“A. Yes, I didn’t calculate to have it less than that.”

Inspector Dilworth testified:

“Q. Now, as a matter of fact, with mixing boards 200 feet apart, Mr. Dilworth, don’t you know that it needs two inspectors and haven’t you said so ?
“A. Why, it might need two inspectors, yes.
“Q. Doesn’t it, as a matter of fact, to get a good job ?
“A. Well, if you want to get it right down to a sixteenth of an inch I suppose you would have to do it. _
_ “Q. But no, to get it down according to the specifications ?
“A. It would be altogether on what kind of men you had on the board.”

Inspector Beyers testified:

“ I only got 5 inches of concrete behind the Berea curb. I was to blame for that. I made a mistake. I did not know they had changed from the usual way of putting it down. The usual way of putting it down is four inches to five, on city work. I inspected it the same as city work. I did not report to Mr. Bolger that we were putting in only five inches of concrete behind the curb. The matter did not occur to me until this investigation came up, that I was doing something there which was outside of the specifications. There might be between 5 and 6 thousand feet of that concrete behind the curb in there, between Hancock to Holden, the average width is 5 inches. * * * At one time I expressed to the superintendent, Mr. Busch, a desire to have an additional inspect- or. They were finishing up the concrete curb, and started in on the Berea, and there is a block’s difference between those two jobs. I reported it to the engineer and superintendent. They said they would send up another inspector, but I guess they forgot it. * * * The first month Mr. Bolger was there almost every day. After that two or three times a week. * * *
“I calculated to put 5 inches of concrete behind the curb. I got that idea from the city work. I was not furnished with a blue print of that curb. If I had been there would have been 8 inches there. I went to work upon that curb and didn’t know it required 8 inches of concrete; the result is, it averaged 5 inches, and 3 inches in front.
“Q. You know that your blue print called for 6 ?
“A. I know it now.
“Q. When did you find it out ?
“A. When the committee came out there.”

It was conceded by counsel for plaintiff in error in his argument to the council that his client had had a fair trial, so far as the council was concerned, and that he was before them for trial upon the charges largely because he was a victim of misplaced confidence. It was also conceded by counsel that the concrete behind the curb would have to come out.

Plaintiff’s witness Chapoton testified:

“ I examined the subgrade from Mack to Gratiot in 20 places about 100 feet apart.
“Q. About that? How did the subgrade run — read off your figures ?
“A. Starting from Gratiot road down, the first is 10, 9£, 8, 9£, 8£, 10, 10, 7£, 9£, 10, 9£, 9, 9£, 10, 8, 9£, 9, 9, 10 and 9, making a total of 187, divided by the 20 places, made it 9£ inches.
“Q. Yery well, now then, the specification, do you know what they require on the subgrade, Mr. Chapoton; do you remember now ?
“A. To be 10 inches down from the top of the curb.
“Q. That is the excavation of the roadway, isn’t it?
“JL- Yes, sir.
“Q. Now then, these specifications require all excavation shall be made to the depth as shown on profile after having been rolled ?
“A. Yes.
"Q. Is that honest, fair work ?
“A. Yes, sir.
“Q. To have a difference, a different depth from what is required by the specifications ?
“A. No, sir.
“Q. It is not honest work, is it ?
“A. No.
“Q. Would there be trouble in a contractor doing honest, square work there, to make that excavation originally ?
“A. No, sir.
“Q. To the depth required by the profile, 10 inches, roll it and have it measured by the engineer ?
"A. No, sir.
“Q. Isn’t that the proper way where your specifications call for that ?
“A. Yes, sir, I am sure.
“Q. That is the proper way? If there are any high places they can be taken off ?
“A. Yes, sir.
“Q. And thrown up on the curb ? These specifications require all filling; there may be depressions, and it takes a little careful work to get the subgrade right ?
“A. Yes, sir.
“Q. These specifications require all filling shall be of earth or cinders and shall be deposited in layers of not more than 4 inches, then rolled; now, then, in view of these specifications, and your examination of this sub-grade, do you mean to tell me, as a contractor, that that work is right, or has been done right ?
“A. No, sir, it has not been done right.
“ Q. In that particular this job from Mack to Gratiot is wrong, isn’t it ?
“A. Yes, sir. * * *
“Q. What you are testifying about, Mr. Chapoton, is not that this is up to specifications, not that it is a good job in that particular, but that you could fix it ?
“A. Yes, sir.
“Q. That is all you mean to say about it, but on the other hand, it is not up to specifications, nor is it a good job ?
“A. No, not unless it was made so.
"Q. So that upon the Mack avenue job the subgrade is wrong, isn’t it ?
“A. Not all over; there is some places it is all right, but they are very few.
“Q. Very few places?
“A. Yes.
“Q. Where it is right? The curbstone, so far as the material itself is concerned, is good ?
“A. Yes, sir.
“ Q. But the concrete under it is not good — I mean, not a sufficient quantity of concrete ?
“A. There is on the bottom, but not on the side.
“Q. Not on the side ?
“A. No, sir.
“Q. You say that has to be torn out ?
“A. Yes, sir.
“Q. So that in that particular this job is not right ?
“A. No, sir.
“Q. That is about all that has been done, isn’t it ?
“JL Yes, sir.
”Q. So that aside from the Berea being good Berea, and the limestone being good limestone, that job is no good?
“A. It can be made good.
“Q. I mean as it is?
“A. No, no.
“Q. It is no good and it is not up to the specifications?
“A. No, sir.”

" There was testimony indicating that the commissioner was quite frequently over the work and it appears from the testimony of Benedict and Beyers that they were, not merely once in awhile but all the time, putting in less than the 8 inches of concrete required back of the curbing and less than 6 inches required by the specifications in front of the curbing, and it was a fair question whether the commissioner could have remained ignorant of these facts unless he were more than ordinarily negligent. There are other matters also in the testimony as to which the jury might infer that a reasonable exercise of diligence would have informed the commissioner that matters were not going on properly with the work.

We do not deem it necessary to go further into detail in support of our view that there was competent evidence in support of the charges, particularly since the six learned judges of the Wayne circuit court have unanimously come to the same conclusion.

The 8th paragraph of the return of the common council is as follows:

“8th. We further certify and return that all the testimony and evidence taken on said hearing and at said trial of said charges cannot be returned for the reason that in addition to the witnesses being brought before the common council, and whose statements are contained in the stenographic record returned herewith as aforesaid, that in_ addition thereto, and as further testimony against said Robert E. Bolger, on Tuesday, the third day of April, 1906, the entire common council in a body visited all the different jobs of paving upon the Eastern and Western boulevards, the same being the paving jobs in controversy. That the said common council and the individual members thereof, having heard all the testimony, and being familiar with all the requirements, specifications and details of said work, carefully and personally examined into the same, their condition and the condition of each of said jobs, and into the matter of carrying out and executing said work, and took such measurements and depths as from time to time and place to place the said council saw fit. From such personal examination of the work and from such evidence as said council and the individual members thereof then and there saw, by being present and examining and viewing said work in detail, and which was apparent to said commissioner had he done his duty, the said common council was satisfied of the incompetency and unfitness of the said Robert E. Bolger, for his office as park and boulevard commissioner. That the said work was not up to the specifications, and said examination, with the other testimony in itself, sustained the charges that had been preferred against Robert E. Bolger, and satisfied defendants in certiorari of his gross neglect of duty, unfitness and incompetency, maladministration, and unlawful conduct in his office of commissioner of parks and boulevards. That said inspection, as aforesaid, was made on three days’ notice, and at said examination and inspection, as aforesaid, the said Robert E. Bolger was represented by one of his counsel, viz., Mr. Edwin Henderson, who accompanied the said common council in said inspection, as aforesaid; and that it appears from said testimony and said inspection that there was legal and competent evidence introduced upon the trial of said charges to support said charges and to warrant and justify the passage of the removal hereinbefore set forth.”

It is contended by counsel for plaintiff that, it appearing from the return that the common council based its determination upon its own view, such fact annuls and vitiates its determination. As to this point and the further point, that the council should have voted separately on each charge and specification thereunder, and upon the question of removal, we quote with approval the language of the circuit bench as follows:

“3. The next point raised by the counsel for the plaintiff and most strenuously argued is, that the action of the council was based, not upon the testimony in the case, but upon a view of the alleged bad work by the council itself. This view was made by the council in a body in the presence of counsel for the plaintiff, and without objection on the part of either the plaintiff or his counsel. The examination was made after testimony had been taken by the council for many days, and it may well be supposed that it was necessary for a full understanding of the testimony, much of which appears to have been technical in its character. We quite agree-with the contention of counsel for the plaintiff that the common council could not substitute information received by a personal view of the alleged faulty work for testimony with regard to the same, or use such information so received as a basis of action in the absence of all competent testimony tending to establish the charges. But it is not apparent to us from the record that this was done, and we are quite of the opinion that it was clearly within the rights of the council to examine the work in order to have a better understanding of the testimony; and especially is this so when such examination was made in the presence of counsel for the plaintiff, and without objection from him. Emphasis is laid upon the remarks made by Alderman Heineman in explaining his vote. But it will be noted that he assigned his reasons for voting as he did, not alone to the effect pf the view of the work upon his mind, but to the testimony regarding the same given before the council.
“4. Should the council have voted separately on each charge and specification thereunder, and upon the question of removal ?
“The Supreme Court has said:
“ ‘ As the granting of a writ of certiorari is largely discretionary, we do not think it consistent with public policy to disturb the action of the bodies entrusted with managing local concerns, unless upon grounds which indicate probability that actual wrong has been done by the course taken. It is not intended by the law that such action shall be delayed by judicial interference where it can be avoided, and it is not the duty of such bodies to tie up their own hands by formalities which have no legal obligation.’ Cage v. Board of Sup’rs of Chippewa Co., 47 Mich. 170.
“ Again:
“ ‘While the proceeding for removal is quasi-judicial, and while it is well settled that the officer is entitled to notice of the charges, and that such charges must be sufficiently specific to apprise him of what he is to meet, yet the technical rules of pleading are not to be applied.’ Burt v. Board of Sup’rs of Iron Co., 108 Mich. 536.
“In the language of the resolution, the plaintiff is found guilty ‘of the said several charges and specifications as aforesaid.’ It must be presumed that each aider-man who voted for the affirmative upon that resolution passed upon every one of the charges and specifications enumerated in the resolution, and upon the question of removal. It is obvious that those of the council who did not so determine voted in the negative, and there were ten of them.”

The fact that the municipality was fully protected against financial loss by bonds; that the work had not been finally accepted by the commissioner; that the contractors were bound to make good all defects in work or materials, and that the commissioner, according to his testimony, intended to make an accurate final inspection of the completed work and to require it to conform in all respects to the contract, would not be so inconsistent with the charges of gross negligence as to invalidate the findings of the common council.

It was the duty of the commissioner to inspect the work as it proceeded, which was obviously the most opportune time for inspection. The bonds and the provisions of the contract did not dispense with the necessity for careful supervision and inspection of the work as it proceeded, but furnished an additional remedy in case, with proper inspection during its progress, the improvement was found in any respect imperfect.

If, acting upon competent evidence, the common council were satisfied that the commissioner’s performance of his duties evidenced such gross negligence as to indicate that his further continuance in office would be a menace to the public, his removal would not be improper for the reason that, in the end, the city would suffer no financial loss. Moreover, as said by the circuit bench:

“ It is insisted that negligence within the true intent of the law touching the removal for cause means such negligence as imports actual loss to the public. It is not clear to the minds of the court, assuming the charges to have been sustained by competent testimony, that there is no loss to the public. Simply because the contractors in question had given bonds for the protection of the public against any money loss, it does not necessarily follow that no loss would have been suffered. The inconvenience of the public during the period when necessary repairs or rebuilding would have to be done, a period in which, had the contract been performed according to its tenor, the public would have been entitled to the free and unobstructed use of the roadway, is to our minds an element of loss quite as important and worthv of consideration as a mere financial loss.”

With the strength or weakness of the case against Mr. Bolger we have nothing to do; our inquiry is limited to ascertaining whether there was any competent evidence, however weak, tending to sustain the findings of the common council. We agree with the circuit bench that there was such evidence, and the judgment is affirmed.

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


author: McAlvay, J.

text:
    RICHARDI v. VILLAGE OF BELLAIRE.
    1. Municipal Corporations — Public Improvements —Waterworks — Necessity for Estimates.
    Where the common council of a village, organized under the general law, obtained from engineers estimates of the expense of installing and maintaining a waterworks system and improving the electric lighting plant belonging to the village, and, without official action upon the acceptance or adoption of the estimate, adopted a resolution calling a special election and submitting to the electors the question of borrowing a sum of money substantially less than the estimate furnished by the engineers, there was not a substantial compliance with section 2893, 1 Comp. Laws, and the action of the council and the election which followed were void.
    2. Same — Borrowing Money — Popular Vote — Waterworks— Maintenance.'
    A submission to the electors of a village, organized under the general law, of a proposition to borrow a certain sum of money for the “construction and maintenance of waterworks,” there being nothing to show what proportion was to be used for construction and how much for maintenance, was void, since the statute (sections 2890-2900, 1 Comp. Laws) does not authorize the borrowing of money for the maintenance of waterworks.
    Appeal from Emmet; Shepherd, J.
    Submitted January 8, 1908.
    (Docket No. 13.)
    Decided July 3, 1908.

      Bill by Henry Richardi against the village of Bellaire, its president, clerk, and common council, to enjoin the borrowing of money for the establishment of a waterworks system. From a decree dismissing the bill, complainant appeals.
    Reversed, and decree entered for complainant.

      Fitch B. Williams, for complainant.

      Leavitt & Guile, for defendants.
   McAlvay, J.

The village of Bellaire is incorporated under the general laws of the State. For the year A. D. 1905, its assessed valuation was $316,845; for the year A. D. 1906, $286,725. The complainant is a large taxpayer of said village. This action is brought to restrain the defendants from borrowing money alleged to be voted by the people at a special election held June 18, 1906. It is claimed that the proper proceedings were not had to authorize the proposed action. The defendants answered the bill of complaint and claimed that the action of the village authorities was regular, and that the bill of complaint ought to be dismissed. A hearing was had in open court. The circuit judge filed a written opinion, as follows :

“The bill filed in this cause seeks to enjoin the defendants from raising money by bonds to install waterworks,- and to improve an electric light plant owned by the city. Complainant bases his claim for relief on several grounds; the following, only, being insisted upon in the argument:

“First. That there is no record of any estimate of the contemplated cost of the improvements.
“Second. That the instrument prepared by the engineers employed by the village council, and claimed to be an estimate, does not fill the requirement, because it places the estimate of the expense at a sum materially larger than the village is authorized by its charter to borrow.
Third. That the amount sought to be raised is more than 5 per cent, (the statutory limit) of the last preceding tax roll.
“1. I find that the alleged estimate was procured by action of the council of defendant, was in writing and on file in the village clerk’s office at the time of the adoption of the resolution submitting to the electors the question of making the loan in question, which is a sufficient record of the fact of the existence of the estimate.
“2. The fact that the estimated cost of the improvements was more than the village was authorized to borrow may or may not have been a good reason for not adopting the resolution to bond, but did not divest the council of the power to borrow an amount less than the estimate.
“3. The amount sought to be raised was not in excess of 5 per cent, of the 1905 tax roll. The assessment for 1906 was materially less; but the roll for that year (1906) did not become a ‘tax roll’ until June 18th, the day of the election, and after the closing of the polls.
“ In my opinion the roll of 1905, being the ‘last preceding ’ one at the time of the action of the council, is the one which limits the power to bond. Therefore a decree may be made dismissing the bill, with costs.”

The case is brought here by appeal; the complainant making the same claims here that he did in the court below.

The record shows that for a number of years the village owned and operated a municipal electric lighting plant, and a dam and water power, and was operating the same when this action was brought. It also shows that at the time of the commencement of this action, and for a number of years prior thereto, the village of Bellaire derived its water supply for fire protection and domestic use from a plant owned and operated by the Bellaire Water Supply Company, a corporation of which the complainant is the manager and principal owner; that the contract between the village and the last-named company was about to expire. On April 10, 1906, the common council of the village of Bellaire took action looking to the raising of the dam and increasing the efficiency of the electric lighting plant owned by said village, and at the same time took action looking to the construction and maintenance of a waterworks system for said village, by appointing a committee consisting of three of its members, together with the president of the village, “to ascertain and estimate the cost of raising the dam at the electric lighting plant of the village to increase the efficiency of said electric lighting plant and to increase the power at said plant to its full capacity.”

It was further provided by the resolution, appointing said committee “that said committee further estimate the expense and so far as practicable determine the cost of constructing and maintaining a suitable waterworks system for the village,” and “that such committee take the preliminary steps to secure the services of a competent engineer to make all necessary surveys, plans, and specifications for such increase of power, and for the installation of a waterworks system.” The committee conferred with the Riggs & Sherman Company, consulting engineers, of Toledo, Ohio, and on the 19th of April, 1906, a representative of that firm came to Bellaire, and with the committee looked over the ground and made certain measurements at the dam and water power. On April 23, 1906, the committee, by report of that date of record in the council proceedings, referred to the common council of said village an offer in writing made by said Riggs & Sherman Company to make surveys, plans, specifications, and estimates of cost of both such improvements at the dam and water power, and for a waterworks system for said village, for a certain consideration therein specified. Which written offer was accepted by the common council of said village by resolution of record in the council proceedings.

The Riggs & Sherman Company was notified of the acceptance By the common council of its said offer, and the sketch map, therein referred to, was sent by the clerk of the common council. On May 19, 1906, the said Riggs & Sherman Company sent and furnished the common council of said village itemized estimates of the expense of such proposed waterworks system, amounting in the aggregate to $23,940.55, and of the proposed improvements at the dam and water power, amounting to $5,700. Accompanying said estimates was a letter from the Riggs & Sherman Company showing wherein said estimates for a waterworks system could be modified and the expense thereby materially lessened. By the use of a water tower instead of a reservoir it was shown a saving of $1,200 or $1,300 would be effected; and by the use of different pipe it was shown a saving of $2,000 could be made. Said estimates and letters went into the official custody of said village clerk and remained a file in his office. The estimates were laid before the common council of said village and discussed prior to the adoption of the resolution calling for a special election to vote upon the proposition hereinafter mentioned.

On May 23, 1906, the common council of said village, by resolution of record in the council proceedings, submitted to vote of the electors of said village two distinct and separate propositions, as follows:

“Resolved, That a special election in and for the village of Bellaire is hereby ordered to be held at the common council room in said village on Monday, the 18th day of June, A. D. 1906, for the purpose of voting upon the following distinct and separate propositions, to wit:
“ Proposition Number 1: To borrow the sum of $15,800 for the construction and maintenance of waterworks in said village of Bellaire.
“ Proposition Number 2: To raise by loan the sum of $6,200 for necessary corporate purposes, to wit, for the purpose of raising and repairing the dam and enlarging the power house of the electric lighting plant now owned and operated by the village of Bellaire.
“ The contents of the ballots on proposition number 1, toread: In favor of borrowing the sum of $15,800 for constructing and maintaining waterworks for the village of Bellaire.
“Yes ( )
“No ( )
“ The contents of the ballots on proposition number 2, to read: In favor of raising by loan the sum of $6,200 for raising and repairing the dam and enlarging the power house of the electric lighting plant of the village of Bellaire.
“ Yes ( )
“No ( )”

The necessary notices were given, a special election was held and both propositions were carried by more than a two-thirds vote. The above is all that appears of record as to the estimates and the action taken in relation thereto. Was what was done a substantial compliance with the provisions of the statute ? See 1 Comp. Laws, §§ 2890 to 2900. '*

The requirement of the statute that the village, before borrowing, appropriating, or spending money for the purpose of construction of water works, shall, by its council, cause to be made an estimate of the expense thereof, has not been complied with. The approximate estimate furnished by the engineers was tentative, and was for no fixed amount. It was accompanied by written instructions and suggestions whereby it could be reduced in amount, as the following statement clearly shows:

“ It occurs to us that with the suggestions in this letter the council can use the estimate of figures in a way that will enable you to submit a proposition within the bonding limit.”

No official action upon the acceptance or adoption of the estimate was ever had. This we consider necessary, for the reason that without such action, there is no official declaration of the amount required.

From this so-called estimate, no one can tell what amount the council has determined was required for such waterworks. In fact, the council has never determined the amount required to construct these waterworks, either by adopting an estimate, or by independent resolution. There is no indication in proposition number 1, submitted to the electors, as to what proportion was for construction, and how much was to be used for maintenance. The statute does not authorize money to be borrowed for maintenance of waterworks.

The section of the statute under consideration, i. e., section 2893, 1 Comp. Laws, reads in part as follows:

“ Before any money shall be borrowed, appropriated, raised or expended for the purchase or construction of waterworks in any village, the counoil shall cause to be made an estimate of the expense thereof, and the question of raising the amount required for such purpose shall be submitted to the electors of the village, at its annual election, or at a special election called for that purpose by the council, as provided for in this act, and shall be determined as tw* thirds of the electors voting at such election by ballot shall decide.”

Under this section, the voter would have a right to rely upon the fact that $15,800 was the amount required. Nowhere in this record appears an answer to the important question, What was the amount required ? Fifteen thousand eight hundred dollars was not that amount, nor is it claimed that $23,940.55, as the required amount, has ever been submitted to the people.

It is not necessary to discuss the other questions raised. The action of the council was void, as were also the election proceedings which followed. The decree should be reversed and a decree entered in favor of complainant, as prayed, with costs of both courts.

Blair, Ostrander, Hooker, and Moore, JJ„, concurred.


text:
    QUAY v. DULUTH, SOUTH SHORE & ATLANTIC RAILWAY CO.
    1. Jury — Excusing Juror for Cause — Discretion of Court.
    A trial judge may, in the exercise of his discretion, excuse a juror for cause at any time before the introduction of evidence.
    2. Same — Harmless Error.
    Error, if any, in excusing a juror after he had been sworn, is not prejudicial, where the cause was submitted to an impartial jury, since this court could not require the cause to be tried before the jury first sworn.
    3. Damages — Loss of Profits — Fires—Railroads. .
    The measure of damages for the destruction by fire, set by defendant railroad company’s engine, of logs piled along its right of way for shipment to a mill to be manufactured into shingles, is the value of the logs plus the rental value of the mill during the period the owner lost its use through the burning of his logs; the element of loss of profits being too uncertain for submission to the jury.
    4. Railroads — Fires — Negligence — Defective Smokestacks — Questions for Jury.
    Whether defendant railroad company’s engine was properly equipped and managed so as to constitute a defense under the statute (section 6295, 2 Comp. Laws) to an action for negligent fire, held, under the evidence, to be a question for the jury.
    Error to Mackinac; Shepherd, J.
    Submitted January 10, 1908.
    (Docket No. 31.)
    Decided July 3, 1908.
    Case by Lafayette Quay, George W. Quay, and Edward S. Quay, copartners as D. Quay & Sons, against the Duluth, South Shore & Atlantic Railway Company for the negligent burning of certain logs. There was judgment for plaintiffs, and defendant brings error.
    Reversed.

      Henry Hoffman (A. E. Miller, of counsel), for appellant.

      Benjamin & Quay, for appellees.
   Blair, J.

Plaintiffs instituted this suit to recover damages for the destruction by fire of about 300,000 feet of cedar logs alleged to have been caused by sparks from one of defendant’s locomotives. The logs were piled along defendant’s right of way for shipment over its road to St. Ignace, whence plaintiffs intended to have them towed to Cheboygan for manufacture into shingles at their shingle mill at that place, as defendant understood. The declaration alleged, and the evidence tended to prove, that, in consequence of the burning of said logs, “ plaintiffs ran out of stock for their said shingle mill and were therefore compelled to close down their mill about a month before the usual closing'time, thereby causing them to lose great profits which they otherwise would have made through the operation of said mill and the manufacture of said logs into shingles.”

On the examination of the jury, Mr. Mulcrone, one of the panel, was asked upon his voir dire if he sold any meat to the defendant, to which question he replied: “Yes, I furnish some to their dining cars.” A challenge for causé having been overruled and plaintiffs’ peremptory challenges having been theretofore exhausted, the jury were sworn, and thereupon (it being Saturday) court adjourned to the ensuing Monday at 10 o’clock a. m. On the opening of court on Monday, and before any testimony was taken in the cause, plaintiffs’ counsel announced that it had come to their attention that the juror Mulcrone had a contract with defendant, whereby he furnished to it about $400 worth of meats per month. Against defendant’s objection and exception, the court permitted Mulcrone to be re-examined, whereupon he testified: That he had been selling meats to defendant for eight or ten years, and had furnished it some that day. “I furnish them daily for their dining cars on this route.” That his bills ran from $300 to $600 a month. “I haven’t got any signed contract. They merely buy from me. They didn’t sign any contract.” Thereupon plaintiffs’ challenge for cause was allowed, and Mr. Mulcrone excused, to which ruling defendant’s counsel excepted. The panel having been completed, the trial proceeded, resulting in a verdict for plaintiffs, and defendant has removed the record to this court for review upon writ of error, relying upon the following assignments of error:

“(1) Because of the error committed by the circuit judge in excusing, after the jury had been sworn to try said case, Patrick Mulcrone, one of said jurors, and completing said panel by calling other talesmen, and proceeding with the trial of the cause with this new jury.
“ (3) Because of the error committed in admitting testimony against defendant’s objection and exception, touching damages other than the value of the property burned, being for damages for losses alleged to have been suffered in the loss of profits that would have resulted in the manufacture of the timber, if same had not been burned.
“ (3) Because the circuit judge refused the requests of the defendant to the jury, numbered 1 to 5 inclusive.”

This point is without merit. As we said in Scripps v. Reilly, 38 Mich. 13:

“ It is the aim and policy of the law to have a fair and impartial jury, and, to this end, it would be the clear duty of the court, up to the last minute, to permit counsel to further examine the jurors.”

In accordance with the principle of that decision, we hold that the trial judge may exercise his discretion to excuse a juror for cause at any time before the introduction of evidence. This holding is supported by authority and is in harmony with the policy of the law to secure a trial by an impartial jury. 34 Cyc. p. 314, and cases cited.

Even if it should be held that the ruling of the court was erroneous, we could not correct the error, since we could not require the case to be tried before the jury first sworn. All that the defendant would secure by a reversal for this error would be the right to try the case before an impartial jury, and this it has already had.- The error, therefore, would not be prejudicial.

The contention of counsel for defendant under this head, as stated in his brief, is as follows :

“ The testimony was inadmissible for two reasons: (a) Because plaintiffs were not entitled to profits they claimed they would have made in the manufacture of the shingle timber, if the. same had not been burned, the proper measure of damages being the value of the timber burned at the time and place of burning. (6) Because the alleged profit, as appears from the testimony in this case, was too uncertain, speculative and remote to form any basis for recovery.”

The testimony of plaintiff Lafayette Quay, which defendant objected to and moved to strike out, tended to show:

“ That the logs were gotten out as part of the 1906 season stock to manufacture into shingles to keep their mill at Cheboygan running. That the mill started up about the 14th of April, 1906, and shut down about the first week in November, on account of having no more timber to run their mill; that if they had had timber they could have run along until Christmas; that they were unable to obtain other logs to replace those burned, although they had been in the market for logs all season; that logs are purchased a year ahead to stock a mill, and that it is very often impossible to obtain stock for a mill in July and August, as the logs are usually placed long before this time; that cedar shingle timber usually grows where it- is difficult to lumber in the summer time and has to be lumbered and purchased in the winter time, as cedar is usuually from swampy places and close to rivers that cannot be driven during the summer time, and the logs have to be driven in the spring when the water is high; that the only shingle timber he heard of after the fire was some that was brought to Cheboygan by Capt. Perue and which he desired to purchase but Perue would not sell, and, instead, contracted with plaintiffs to .have his logs manufactured into shingles at plaintiffs’ Cheboygan mill, and which they did so manufacture during the season of 1906; that it would have taken 30 or 35 days to have cut the logs burned into shingles at plaintiffs’ mill, running days only, but, running the mill day and night, it would have taken them 18 to 20 days; that, if they had cut these logs into shingles, they would have been able to dispose of them, as they not only sold all the shingles they manufactured that season, but had demand and could have sold three times the amount of their cut; that it would have cost plaintiffs 75 cents per 1,000 or a little less to load the logs on cars at Allenville, $2 to freight logs from Allenville to St. Ignace; 25 cents a 1,000 to tow the logs from St. Ignace to Cheboygan; that there would not be any loss of logs in towing them from St. Ignace to Cheboygan at that time of year; that there are not many windstorms in July or August to bother; that they were in shelter at ■ St. Ignace before leaving and would not go out in a storm; that never in their experience in towing logs between St. Ignace and Cheboygan did they lose any logs in the lake; that it costs 55 cents per 1,000 to manufacture the shingles at the mill, including loading them on cars. * * * I know what it costs to manufacture shingles at the mill by figuring it up a good many times — knowing what we cut and figuring the expenses. We figure it for one day. We usually figure it up at night whether we are in debt or not, and we figure it up by the week, and then, as we have pay day twice a month, we figure up the expenses of running the mill and that it costs us 55 cents per 1,000 to manufacture them — that includes putting them in the car. This includes the labor of the men employed at the mill and the incidental expenses of band iron, nails, and oil; but that it did not include his own services nor the bookkeeper’s services or interest on the investment or taking into consideration any breakdowns. * * *
“Q. When you speak of 55 cents per 1,000, you speak of the manufacture of shingles when everything else is running, without any breakdowns or any break or in the way of strikes or any interruptions ?
“A. No; that is what it costs to manufacture shingles —55 cents a thousand.
“Q. If you have a strike, it would cost you more ?
“A. I don’t know. We never had any.”

In Allis v. McLean, 48 Mich. 428, it was held that for failure on the part of a manufacturer to furnish machinery known to be desired for the purpose of fitting out a mill, such failure resulting in an interruption of the business of the manufacturer and a consequent loss of profits, profits could not be recovered for the reason that the profits of running a sawmill are too uncertain, indefinite, and contingent. They depend on many circumstances, among which are capital, skill, supply of logs, supply and steadiness of labor; that one man may fail while another prospers, and the same man may fail at one time and prosper at another, although the prospective outlook seemed equally favorable at both times. This case was followed in John Hutchinson Manfg. Co. v. Pinch, 91 Mich. 156, although upon another point in the case — that is, as to whether rental value of a mill might be recovered under such circumstances — Allis v. McLean was overruled, but upon the main question, as to whether profits as such were too uncertain and speculative to be recovered, Allis v. McLean was approved. On the other hand, there is a line of cases beginning with Leonard v. Beaudry, 68 Mich. 312, and including Fell v. Newberry, 106 Mich. 542, and Industrial Works v. Mitchell, 114 Mich. 34, in which it has been held that profits are a proper measure of damages in any case where loss of profits results from the wrong of the defendant, and where such profits can be ascertained with reasonable certainty. In other words, the court has no hesitancy in awarding damages corresponding to profits, but that the only limitation in applying that rule is that they must first have been in contemplation of parties (in case of contract) and that they must not be uncertain. In Leonard v. Beaudry it was held that where there was a distinct contract to cut a certain amount of lumber at a certain price per thousand, and the owner of the mill had been deprived of the opportunity of performing the contract, the loss to him was the difference between what it would have cost him to perform the contract and the stipulated price, and that such damages were not too speculative. So in Fell v. Newberry, 106 Mich. 542, it was held that where the owner of timber agreed to furnish and stock a mill, although the amount was not agreed upon, yet that the capacity of the mill could be shown for the time agreed upon, and that the loss of profits in manufacturing such quantity would be recoverable. The same thing was held in Barrett v. Veneer Works, 110 Mich. 6. We are of the opinion that the proper measure of damages in this case, under our previous decisions, is the value of the logs destroyed plus the rental value of the mill during the period plaintiffs lost its use through the burning of their logs. It follows that the court erred in permitting the plaintiffs to recover the profits they might have made from working up their logs.

Defendant’s requests 1 to 5, inclusive, required the court to instruct the jury to direct a verdict in favor of defendant, upon the ground that there was no evidence of negligence on the part of defendant; that the undisputed evidence showed that its locomotives were properly equipped; that their machinery, smokestacks and fire boxes were in good order; that the screens or nettings used on said engines were of a form, kind, and pattern as good as any that is known, and were suitable for the purpose for which they were used; and that the engines were properly managed at the time and place in question; making a conclusive defense under section 6295, 2 Comp. Laws. Without reciting the evidence, we content ourselves with saying that the evidence in this case was much stronger to take the case to the jury than in Dolph v. Railway Co., 149 Mich. 278, in which case we held that there were questions of fact for the jury upon these questions.

The judgment is reversed, and new trial ordered.

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