text:
    HOWELL v. LANSING CITY ELECTRIC RAILWAY CO.
    1. Street Railways — Duty to Passengers.
    A street-railway company owes to its passengers a high degree of diligence and care in respect to the character of its rolling stock.
    3. Same — Negligence—Defective Appliances — Question for Jury.
    In an action against a street railway for injuries to a passenger, where there was testimony that the brake-rod had broken the day previous to the accident, but was repaired so that the brakeman had no reason to doubt the efficiency of the brake until he tried to use it, and it was found after the accident that the brake-rod was useless for want of a bolt, the question of negligence, when taken in connection with the fact of the accident, was for the jury.
    3. Same — Incompetent Motorman.
    There being testimony that the motorman did not know that he could stop the car by reversing the motor, that his tutelage had been brief, and that he did not turn off the current, but lost his judgment in the emergency, the question of his competency and the character of his conduct was also for the jury.
    4. Same — Unexpected Dangers.
    A passenger on a street car is entitled to reasonable protection against dangers, though imminent and unexpected; and it is not necessarily a defense that, in the face of such a danger, the motorman lost his usual ability to-control the car.
    5. Same — Jumping from Car — Impending Collision — Contributory Negligence.
    A passenger on a street car who jumps therefrom under the excitement due to an imminent collision is not guilty of contributory negligence.
    6. Same — Evidence—Instructions.
    Where, in an action against a street railway for injuries to a passenger, plaintiff testified that she knew she did not jump from the car, but was thrown off while standing near the door, holding onto some irons, as the car rounded a curve at a high rate of speed just prior to its collision with another car, and one of the several passengers who were on the car testified that she was thrown against another person, and no one testified to seeing plaintiff jump off, there was nothing requiring an instruction to the jury on the theory that plaintiff jumped from the car.
    7. Personal Injuries — Permanency—Damages—Evidence.
    Evidence examined, and held to warrant the submission to the jury of the question of the permanency of plaintiff’s injuries.
    8. Same — Instructions.
    An instruction that, if plaintiff will never recover from her injuries, they are permanent, and she should be awarded such damages for future pain and suffering as the jury may be convinced she will experience, implies the necessity for a finding of “reasonable certainty of permanence.”
    9. Same — Life Expectancy.
    Damages for prospective suffering' from permanent injuries must be based on the life expectancy of the injured person at the time of the trial, and not upon that expectancy prior to the injury.
    10. Same — Instructions.
    Charge examined, and held open to the construction of authorizing a recovery on the latter theory.

      11. Appeal — Instructions—Exceptions.
    Under the statute, error may be assigned upon a charge though no exception was taken at the trial.
    Error to Ingham; Wiest, J.
    Submitted February 25, 1904.
    (Docket No. 106.)
    Decided April 26, 1904.
    Case by Sarah E. Howell against the Lansing City Electric Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Cahill & Wood, for appellant.

      Frank L. Dodge and G. P. Black, for appellee.
   Hooker, J.

The defendant’s motorman lost control of the car he was in charge of, upon a grade on Washington avenue, in the city of Lansing. At the foot of the grade was a switch, and just beyond the switch the track turned upon Franklin avenue, which is intersected by Washington avenue at that point. It was customary for cars to meet and pass at the switch, and, as the uncontrolled car passed over or beyond the switch, the other car was visible, approaching on Franklin avenue a few hundred feet distant, and Was seen by the plaintiff across the corner. In her alarm she arose and started for the door, and either went upon the platform and jumped from or was thrown from it, or, as her counsel claim, stood at the door and was thrown from the car as it turned the sharp curve in the road at the corner. The car proceeded until it collided with the other car. That she suffered a serious injury is not denied, but counsel for the defense allege that it was due to her own want of care, which is claimed to have amounted to contributory negligence. The negligence charged was: (1) Allowing the car to be' out of repair, whereby the brake was ineffective; (2) putting the car in charge of an incompetent motorman; (3) negligence of the motorman in managing the car.

There was testimony in the case that the .brake-rod had broken the day previous to that of the accident, and that it was repaired; that the brakeman had no reason to doubt the efficiency of the brake until he tried to use it, when it failed. There was another brake at the opposite end of the car. The motorman attempted to stop the car with this, but failed. So far as the proof indicates anything upon the subject, the,motorman may have been justified in believing that the car could be stopped by the use of the brake. It was found after the accident that the brake-rod was useless for want of a bolt. Evidence was given tending to show the degree of care which had been given to this car, and the failure of the repair to last more than 24 hours is some evidence of the character of such repair.

The defendant owed to its passengers a high degree of diligence and care in transporting them, and that involved the character of the rolling stock. It is not to be expected that a passenger can easily prove the exact particular in which the locomotive which draws his train is defective, or where the bridge which gives way with the train was weak, or the exact particular in which the company is wanting in diligence to prevent or avert a catastrophe. Therefore, in such cases, the circumstances of the accident may sometimes justify an inference of negligence. This was a question which it was proper for the court to leave to the jury, under the circumstances shown.

The same may be said of the competency and conduct of -the motorman. There was testimony tending to show that the motorman did not know that he could stop the •car by reversing the motor; that his tutelage had been brief; and, although there was proof showing the opposite, the question was one for the jury. Again, there was testimony tending to show that he did not turn off the current, and that he lost his judgment and did not know what to do in the emergency. The passenger is entitled to reasonable protection against all of these dangers, and it is not necessarily a defense that the motorman was confronted by an imminent and unexpected danger, whereby he lost his usual ability to control the car. While proper allowance should be made for such conditions, it is the duty of those who run cars and trains to put them in charge of competent men, and a reasonable degree of presence of mind may be an essential to competency. ,

Counsel contend that the conclusion is irresistible that plaintiff was not thrown from the car as alleged, but must have jumped from the car when in motion, and insist that there was therefore a failure to prove the case as alleged, and also that contributory negligence was proved. They say, further, that, at all events, that question should have been left to the jury. We are not aware that any one testified to seeing the plaintiff jump from the car. Miss Hazelton testifies that, as the car swung rapidly around the corner, its centrifugal force threw her against some one, while the evidence is strong that it was at this point that the plaintiff was thrown from or left the car, being-thrown some 18 or 20 feet, as were several other passengers who jumped from the car. There was no occasion to submit the question of her jumping from the car, as there is no evidence showing it. We think the undisputed evidence shows that it would not have been contributory negligence had she jumped, under the danger and excitement of the occasion, but the contention is made that in such case she could not properly have recovered, by reason of a variance, her declaration alleging that she was thrown from the car. The plaintiff testified that she knew that she did not jump; that she stood at the door looking towards the west, holding onto some irons with both hands; that she was thrown off. There is nothing so inconsistent in the idea that the centrifugal force should have broken her hold and thrown her from the car as to justify the jury in finding that she jumped off, without other evidence, and the court was not called upon to instruct them to consider that theory. Even if counsel are right in contending that she was upon the platform, and? not in the door, it does not follow that she jumped off, or wás not thrown off, while, if she was where they contend •that she was, it gives added force to the theory that she was the person against whom Miss Hazelton was thrown.

The plaintiff was a married woman, and no damages were claimed by reason of a loss of earnings or earning •capacity. The damages were limited to pain and suffering, past and prospective. The claim was made that her injury was permanent, and damages were asked covering the period of her life. We are of the opinion that it was •proper to leave the question of permanent injury to the jury, under the testimony given. Dr. Thoms testified that it was his opinion that the injury would not be entirely recovered from. It was an injury to the brain, and her •condition up to the time of the trial was shown. The court instructed the jury that, “if the plaintiff will never recover from them, then they are permanent, and she is to be awarded, if she recovers, damages, not only for the pain and suffering she has experienced up to this time, but such damages for pain and suffering and disability as you may be convinced from the evidence she will experience in the future as a result of such injuries;” and we think this implied that a finding of “reasonable certainty •of permanence” was essential.

Counsel introduced the mortality tables, for the purpose •of proving plaintiff’s expectancy of life. It was his theory that her prospective pain and suffering should be compensated for. It is to be supposed that her pain and suffering up to the time of trial were included. It was also proper to include damages for prospective suffering for such time as the jury should find that she would suffer them, but not beyond her expectancy of life, and this means her expectancy at the time of the trial. Counsel contend that the jury were permitted to allow damages on the basis of the expectancy before she was injured. If so, this was manifestly wrong. See Olivier v. Railway Co., 134 Mich. 367 (96 N. W. 434). A man who must contemplate death may be supposed to have more intense mental suffering than others, and may recover accordingly. But he cannot be supposed to be likely to suffer such increased anguish beyond the time that he in his present condition is likely to live. We think the charge is open to such construction. The court said to the jury, “You are to determine from the evidence the probable period it may reasonably be expected she might have lived in the condition she was at the time of this injury; ” and the jury might naturally infer that damages should cover that, period.

“The plaintiff may not live for any particular period,, and you should consider the contingencies of sickness, and you should make a reasonable deduction for such contingency, and for others, if any, that the evidence may disclose might lessen her reasonable prospect of living for the period mentioned in the table of mortality. * * *
“She should receive the present worth of such future damages. It is at your discretion to give such an amount as you may think right for mental suffering and physical, pain and suffering endured by the plaintiff up to this time and from this time forward, and for such pain and suffering as you are satisfied from the evidence in the case that, she may experience in the future.”

Again, in response to a question from a juror, he .said:

“A Juror: The question we want to ask is, What is the expectancy of this woman’s life from this date on ?
‘ ‘ The Court: In this State, gentlemen, we have what is known as a ‘ table ’— Of course, it does not apply to any one in particular, but it is a table of expectancy that we use in the trial of lawsuits. By the table a person in good health at the age of 25 may reasonably expect to live for 38 years to come. That table is not final. This case, of course, you will decide having in mind what the evidence discloses regarding the plaintiff’s health previous to the accident, and, of course, that table will be something of a guide to you, but you will decide the case, of course, from the evidence regarding her health especially previous to the accident. If she was a person of fairly good health at that time, then it is reasonable to suppose that she may have expected to live 38 years; but, as I said in my charge, you must take into consideration the possibility of sickness, that she may not live any considerable length of time, but reach such a conclusion from all the-evidence in the case as appears reasonable to you.”

This question showed that this juror correctly had in mind the expectancy from the time of the trial, but the answer given by the court to his question indicated that his understanding was incorrect, and that the proper period was to be determined upon her condition previous to the accident. We think that, had this particular point been discussed below, the circuit judge would have noted the distinction, which seems to have escaped both court and counsel upon the trial, and is raised here for the first time. Even an exception to the charge would probably have led the judge to correct this error. But, under the statute which permits counsel to assign error upon a charge without exception, we have no alternative but to reverse the judgment. We have before expressed doubts of the wisdom of a law which subjects parties to the expense of new trials upon points not raised in the lower courts.

The judgment is reversed, and a new trial ordered.

Moore, C. J., Carpenter and Montgomery, JJ., concurred. Grant, J., took no part in the decision.


source: Caselaw Access Project

author: Carpenter, J.

license: Public Domain

text:
    PHELPS v. AUDITOR GENERAL.
    1. Asylum Boards — Employment oe Counsel — Drafting Laws.
    The duty to prepare proposed legislation is by the Constitution imposed upon the legislature; and the board of trustees of the Michigan Asylum for. the Insane has no authority to obligate the State to pay for services of counsel in drafting a proposed revision of the asylum laws of the State.
    2. Same — Unlawful Expenditures — Authority of Auditor General.
    Under 1 Comp. Laws, § 1207, providing that the auditor general shall audit all vouchers for expenditures made on account of a State institution, so far as the same shall appear to be for lawful purposes, he cannot be compelled to audit an expendíture by the authorities of an asylum for an unlawful purpose, though made in good faith.
    3. Same — Maintenance Bills — Construction of Statute.
    Under Act No. Iá8, Pub. Acts 1899, prohibiting the auditor general from drawing his-warrant for the benefit of a State institution until vouchers for disbursements of money previously drawn shall have been audited as provided by law, he cannot be compelled to pay the maintenance bills of an asylum until an unlawful expenditure, which he had previously refused to audit, has been repaid into the treasury.

      Mandamus by Edwin J. Phelps, as treasurer of the Michigan Asylum for the Insane, to compel Perry E. Powers, auditor general, to draw his warrant for the payment of certain bills.
    Submitted February 26, 1904.
    (Docket No. 210.)
    Writ denied April 26, 1904.
    Knappen, Kleinhans & Knappen, for relator.

      Charles A. Blair, Attorney General, and Henry E. Chase, Deputy Attorney General (Charles W. McGill, of counsel), for respondent.
   Carpenter, J.

January 30, 1903, the board of trustees of the Michigan Asylum for the Insane paid from its treasury to attorneys employed by it the sum of $199.39 for services in drafting a revision of the asylum laws of the State. April 25, 1903, the auditor general refused to audit the voucher for said payment, and directed the asylum authorities to cover the amount thereof into the asylum treasury. This direction was not complied with. Early in October the asylum authorities presented in due form their bills for the maintenance of patients and inmates for the quarter ending September 30, 1903. Respondent refused to honor and provide for the payment of said bills on the ground of said alleged improper payment to counsel, and the refusal of the authorities to repay the amount thereof into the treasury. Relator thereupon brings these proceedings for a mandamus directing said respondent to honor and provide for the payment of said maintenance bills for the quarter ending Septemoer 30, 1903.

As stated in the brief of relator, there are involved in this case three questions:

“1. The power of the asylum board to employ counsel for the purposes .stated.
“2. The right of the auditor general to reaudit bills actually incurred by the asylum board of trustees for asylum purposes, and audited and allowed by that board, and paid by the asylum trustees on such authority.
“3. The right of the auditor general to hold up the maintenance bills of the asylum for the purpose of compelling reimbursement on account of payments made under the circumstances above stated.”

We will discuss each of these questions separately:

Had the asylum authorities authority to obligate the State to pay for services of counsel in drafting proposed legislation ? This question was involved in Cahill v. Board of State Auditors, 127 Mich. 487 (86 N. W. 950, 55 L. R. A. 493), where it was decided that the governor of the State lacked such authority. That decision did not, as contended by relator’s counsel, rest “upon the proposition that the governor’s duties, under the Constitution, are plainly executive merely, — to ‘take care that the laws be faithfully executed.’ ” That decision is authority for the proposition that the duty to prepare proposed legislation is, in contemplation of the Constitution, vested in the members of the legislature, and that no official has authority to obligate the State to pay for the performance of such duty without statutory authority, and that the governor did not possess such authority by reason of his constitutional obligation (see section 8, art. 5) to “ give to the legislature * * * information by message of the ■condition of the State, and recommend such measures to them as he shall deem expedient.” Under this construction, that decision rules the present case, and compels the conclusion that the asylum authorities had no power to ■obligate the State for the expenditure under consideration.

Had respondent the right to refuse to audit the voucher for the expenditure in question ? Many authorities are cited which hold that the board of asylum trustees acted in a quasi judicial capacity in incurring and paying the obligation in question, and that for that reason their action should be sustained. If respondent’s right to review this expenditure depended upon common-law principles, these authorities might apply. But the right in question does not depend upon the principles of the common law, but upon the construction of a statute. The statute governing the matter is section 3 of Act No. 148 of the Public Acts of 1873 (section 1207, 1 Comp. Laws), which reads;

“Such account current, abstract, vouchers, and receipts, when received by the auditor general, shall be examined by him, and, if found correct, shall be so indorsed by him; and all vouchers for expenditures, so far as the amount thereof shall appear to be for lawful purposes, he shall audit.”

It is contended by relator that, under the proper construction of this language, respondent has a right to refuse to audit an expenditure — that is, “to review the exercise of authority by the asylum trustees — only when it is shown that such authority has been exercised in actual bad faith, or when it is so 'plainly beyond authority as tO' raise a clear and inevitable presumption of bad faith.” If this construction is correct, respondent had no right to refuse to audit the expenditure, and relator is entitled to a. mandamus, for it is clear not only that the board of trustees acted in good faith, but that the services in question were well worth the sum paid, and were efficiently performed. We cannot, however, assent to that construction. Respondent is to audit the expenditure when it “shall appear to be for lawful purposes,” and this necessarily implies that he shall not' audit an expenditure which shall appear to be for an unlawful purpose. Manifestly, he is to judge of the lawfulness of the purpose, not by an outside inquiry into the motives of those who authorized the expenditure, but by the expenditure itself. According to relator’s contention, respondent’s statutory obligation to audit expenditures which “appear to be for lawful purposes ” requires him to audit some expenditures which appear to’ be for an unlawful purpose; that is, expenditures made in good faith for an unlawful purpose. We do not think the language of the section susceptible of this construction. We do not think it can be construed as requiring respondent to audit any expenditure, no matter with what motives it may have been made, which does not “ appear to be for lawful purposes.”

Had the auditor general power to decline to pay the maintenance bills of the asylum for the quarter ending September 30, 1903, because of this unlawful disbursement made by the asylum authorities in the preceding quarter? This depends upon the proper construction of section 1209, 1 Comp. Laws, as amended by Act No. 148 of the Public Acts of 1899. The material portion of that section, as amended, is:

“And the auditor general is hereby prohibited from drawing his warrant until itemized vouchers, showing quantities, prices per unit, and totals for all material, labor, or services covered by the disbursements of money previously drawn, for either current expenses or building and special purposes, whether the money thus disbursed be received from the State treasury or from some other source or sources, shall be presented, examined, and audited, as provided in section 3 of this act” (section 1207, heretofore quoted).

This language seems to us clear and unambiguous, and susceptible of but one construction. Until itemized vouchers, covering disbursements of money previously drawn, shall be presented, examined, and audited, as provided in section 1207, the auditor general is prohibited from drawing his warrant. When the auditor general, acting legally, as in this case, refused to audit vouchers for prior disbursements, he is prohibited by this section from drawing the warrant next applied for, and therefore he could not comply with relator’s request.

It is urged with much force that this construction prevents the asylum getting a fund necessary for its maintenance, because of a prior unlawful expenditure, and therefore may cause great hardship. This is an argument which might with much force be addressed to the legislature, but it is clearly -insufficient to justify us in annulling the legislative will, so clearly expressed.

It results from these views that, the mandamus prayed for will be denied; but it is not a case in which costs should be awarded.

The other Justices concurred.


author: Montgomery, J.

text:
    PERE MARQUETTE RAILROAD CO. v. GRAHAM.
    1. Evidence — Mortgage Foreclosure — Appeal.
    An objection that a master’s deed on foreclosure should not have been admitted in evidence without the files and records cannot be raised for the first time on appeal.
    2. Same — Recitals in Deed — Title.
    Where defendant introduced in evidence a deed to himself containing a recital that plaintiff’s grantor owned the premises in dispute, the recital constituted some evidence of title in plaintiff.
    3. Railroad Mortgages — After-Acquired Property.
    A mortgage by a railroad company may be made to cover after-acquired real estate.

      4. Same — Description op Premises.
    A railroad mortgage which covers its roadbed and all lands and depot grounds, whether in possession or to be afterwards acquired, and a master’s deed on foreclosure in- the same language, without a more specific description, will convey title, as against a stranger, to a parcel of land adjacent to the main line of the railroad, and adapted to use in its business, acquired by the company after the execution of the mortgage.

      5. Corporations — Ownership of Real Estate — Constitutional Limitation.
    The provision of the State Constitution that a corporation shall not hold real estate for a longer period than 10 years, unless such real estate shall be actually occupied by the corporation in the exercise of its franchises, can he enforced only at the instance of the public.
    6. Railroad Mortgages — Foreclosure — Delay in Occupying Land — Intent of Mortgage. .
    The fact that a railroad company delays for 10 years to take possession of land claimed under the foreclosure of a mortgage describing the property conveyed in general terms only is not conclusive evidence that the land was not intended to be.covered by the mortgage.
    Error to Berrien; Coolidge, J.
    Submitted February 25, 1904.
    (Docket No. 108.)
    Decided April 26, 1904.
    Ejectment by the Pere Marquette Railroad Company against Edmond A. Graham and others. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Reversed.

      Frederick W. Stevens (Victor M. Gore, of counsel), for appellant.

      M. L. Howell and Lawrence G. Fyfe, for appellees.
   Montgomery, J.

This is an action of ejectment tore-cover the south two-thirds of lot 451 of the city” of St. Joseph, “being the premises now occupied by the Riverside House, so called,” which premises are situated at the southerly end of plaintiff’s railroad bridge across the St. Joseph river, and contiguous to its main-line track. At the conclusion of plaintiff’s case the circuit judge directed a verdict for defendants, and plaintiff brings error.

There was a conflict in the testimony upon two points, ihe first being whether the property in question was really a part of the south two-thirds of lot 451, and the other whether defendants had acquired title by adverse possession. The record distinctly states that these two questions were open questions under the testimony, and,- in so far as the defendants’ brief attempts to treat them otherwise, we are not warranted in adopting their conclusions.

The plaintiff derived its title through a mortgage given by the Chicago & Michigan Lake Shore Railroad Company to James F. Joy and Henry P. Baldwin, as trustees, a master’s deed given under foreclosure thereof, and by mesne conveyances from the purchasers under the foreclosure. The circuit judge directed the verdict on grounds stated as follows:

“ In this case I have thought it over carefully, and I simply decide this case on one point, and that is, the master’s deed, under the circumstances, did not pass title to this specific property, the Riverside Hotel. Now, in this case it appears that defendant Graham got a deed of this Riverside Hotel, and that he has occupied it for 14 years and over. Now, the mortgage given by the railroad company does not describe any specific property, and the master’s deed does not describe any specific property, and my opinion is that, not having described any specific property, and not having taken possession or done any act within 10 years after the making of the mortgage or the making of the master’s deed, the plaintiff has no title to this land.”

Defendants now contend that plaintiff failed to show a valid foreclosure, for the reason that the files and records of the proceedings in chancery were not introduced, nor was the order confirming the sale introduced. The objection to the introduction of the master’s deed did not disclose a purpose to raise any such question, nor does it appear that the circuit judge considered this question, or that the point was in any other manner made below. If it be urged, however, that the plaintiff was bound to show title before it could ask the judgment of the court in its favor, it may be answered that the defendant Graham introduced a deed to himself containing the following recital, having reference to the lot in question, among others:

“The south two-thirds of said above-named lotfe being owned by Chicago & West Michigan Railway Company, which owns all in excess of 200 feet in depth, and which owns also the right of said railway company to use the track and maintain the same through a portion of said lots to the docks and along docks as now used and operated, without rent or charge.”

As plaintiff showed a chain of title from the Chicago •& West Michigan Railway Company, this recital, taken in connection with the conveyance to the plaintiff, constitutes some evidence of title in it. While such recitals between a party to the record and a stranger work no estoppel, they are some evidence of the facts recited. 24 Am. & Eng. Enc. Law (2d Ed.), p. 61; Merrifield v. Parritt, 11 Cush. 590, 598.

The plaintiff’s case, then, was not wholly barren of evidence of title, and the defendants are not in position to insist that the questions upon which the case was determined below are not open for consideration here. Apart from the question of the regularity of the foreclosure proceedings, which need not be considered, it is only necessary to state that the mortgage given by the railroad company undertook to mortgage its property then owned and to be thereafter acquired, in language following:

“ All the following present and in the future to he acquired property of said railroad company, and all the right, title, interest, and equity of redemption therein; that is to say: All the railroad of the said party of the first part, located and constructed and to he located and constructed, extending from the point at New Buffalo where the Chicago & Michigan Lake Shore Railroad intersects the Michigan Central Railroad, to Manistee, in the county of Manistee and State of Michigan, and including the termini of said road and the land occupied thereby, and also including the right of way for said railroad, the roadbed, superstructure, iron, ties, supplies, chairs, bolts, nuts, splices, all lands and depot grounds, station houses and depots, viaducts, bridges, timbers, materials, and property, purchased or to he purchased, for the construction or equipment of said railroad; all engines, tenders, cars, machinery, and all kinds of rolling stock, whether now owned or to he purchased by said party of the first part in the future; and all franchises, rights, and privileges of said party of the first part, and all property acquired by virtue of and under authority ihereof, now in possession- or hereafter to be acquired, including all machine shops, tools, implements, and personal property used therein or upon or along the line of said railroad, or at its stations, or any of them, wherever situated; and including all the appurtenances and appendages of said railroad and the property of said company, and all the net revenues, income, and profits of the said party of the first part which, may have been or shall hereafter be derived from said railroad and property.”

It appears that the land in question had been conveyed to the mortgaging railroad company some two years prior to foreclosure, and the deed given by the master on foreclosure described the following property:

“All and singular the railroad of the Chicago & Michigan Lake Shore Railroad, which extends from the point at New Buffalo, county of Berrien and State of Michigan, where the Chicago & Michigan Lake Shore Railroad intersects with the Michigan Central Railroad, to Montague, in the county of Muskegon, and thence by way of Pent-water, in the county of Oceana, to Manistee, in the county of Manistee and State of Michigan. [Here follows a like description of the branches.] Including all the termini of said railroad and branches, and all the present and future to be acquired property of the said railroad company, and all its right, title, and interest and equity of redemption therein, and all of the said railroad, and all of the land occupied by the same, and including the right of way for said railroad, the roadbed, superstructure, iron, ties, supplies, chairs, bolts, nuts, splices, all lands and depot grounds, station houses and depots, viaducts, timbers, materials, and property, purchased or to he purchased, for the construction or equipment of said railroad; all engines, tenders, cars, and machinery, and all kinds of rolling stock, whether now owned or to he purchased by said railroad company for use on said roads; and all the franchises, rights, and privileges of said railroad company, and all property acquired by virtue and authority thereof, now in possession or hereafter to be acquired, including all machine shops, tools, implements, and personal property used therein or upon or along the line of said railroad, or at its stations, or any of them, wherever situated; and including all the appurtenances and appendages of said railroad and the property of said company, and ail the net revenues, income, and profits of, the said railroad company which may have been or shall be derived from said railroad and property connected therewith; together with all and singular the rights, titles, members, privileges, hereditaments, and appurtenances to the same belonging Or in anywise appertaining. To have and to hold,” etc.

It is well settled that after-acquired property may be made the subject of a railroad mortgage. It is very common in practice, and such mortgages have been universally sustained. Galveston Railroad v. Cowdrey, 11 Wall. 459; Thompson v. Railroad Co., 132 U. S. 68 (10 Sup. Ct. 29). Defendants’ counsel contend that the clauses above quoted are not broad enough to cover this property in question. We do not see how the language could have been much more clear than that employed in this instrument. We do not overlook the analysis of language made in the brief of counsel for defendants, but we think too narrow a construction is placed upon some of the language employed. That the purpose of this broad language was to include all the after-acquired property which the railroad company should see fit to acquire, having any relation to the business of the corporation, is, we think, perfectly manifest. That this property, being adjacent to the main line of the company, was adapted to use in its business, is, we think, also manifest.

It is contended that the decree and the master’s deed should have more specifically' described the property. The master’s deed follows with sufficient accuracy the terms of the mortgage. It does not appear that any question arises under the recording laws, or that any one has been misled by the general description employed. The question would appear to be whether, as between the mortgaging railroad company and the purchasers, the title to this property passed. We are unable to state what appears of record in the foreclosure proceedings. It is not made to appear that the railroad company objected to the method of foreclosure, or to the form of the decree. Nor does it appear that it raises the question as to whether the mortgage covered the property here in controversy.„ It would be a wide stretch to say that this decree, if one was made conforming to the recitals in the master’s deed, is absolutely void, and should be so held in a collateral attack by a stranger to the proceeding.

.The land in question being apparently conveyed by this mortgage and master’s deed, we fail to see the significance of the 10-years delay. As before stated, the question as to whether the statute of limitations had run was a question of fact upon the evidence. Delay to bring suit for a less period than the statute of limitations would not defeat the plaintiff’s title. If the question be deemed an open one as to whether this land was adapted to use by the railroad company in connection with its road, there was enough in the record to justify the submission of that question to the jury, even if the delay to take possession of it for 10 years should be deemed evidence bearing upon the question.

It is true there is a constitutional provision of this State that a corporation shall not hold real estate for a longer period than 10 years, except such real estate as shall be actually occupied by such corporation in the exercise of its franchises. Const, art. 15, § 12. But it is well settled that this constitutional provision does not give the right to a mere squatter upon real estate to assert the lapse of title against the corporation, but that this provision can be enforced only at the instance of the public. 5 Thomp. Corp. § 5795, and cases cited. The circuit judge appears not to have rested his determination upon this ground, but, as we infer, treated the failure of the railroad company to take possession of the land within 10 years as conclusive evidence that there was no intention to use it for construction or equipment, and concluded from this that it was not within the terms of the mortgage. This conclusion, we think, is faulty, in that it makes the subsequent course pursued by the railroad company determine the question of what was intended by the mortgage itself, and this conclusively.

The judgment will be reversed, and a new trial ordered.

Moore, C. J., and Carpenter, J., concurred. Grant and Hooker, JJ., took no part in the decision.


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    NATIONAL LOAN & INVESTMENT CO. v. CITY OF DETROIT.
    1. Building and Loan Associations — Taxation—Exemptions— Constitutional Law — Title to Act.
    2 Comp. Laws, § 7590, exempting building and loan associations from taxation upon the mortgages held by them, enacted in a statute eiititled “An act to provide for the incorporation and regulation of * * * building and loan associations,” does not contravene section 20, art. 4, of the Constitution, which provides that no law shall embrace more than one object, which shall be expressed in its title.

      2. Same.
    The legislature has the power to exempt from taxation the stock of building and loan associations, and the mortgages held by such corporations.
    '3. Same — Repeal of Statute.
    Section 17 of the building and loan act (2 Comp. Laws, § 7590), exempting from taxation the stock of and the securities held by such associations, was not repealed by the general tax law subsequently enacted (1 Comp. Laws, § 3824 et seq.), providing that all property, real and personal, within the j urisdiction of the State, “not expressly exempted by law,” shall be subject to taxation.

      ■Certiorari to Wayne; Brooke, J.
    Submitted February 26, 1904.
    (Docket No. 113.)
    Decided April 26, 1904.

      Mandamus by the National Loan &. Investment Company against the city of Detroit and the common council -of said city, to compel the reduction of an assessment. From an order granting the writ, respondents bring certiorari.

    Affirmed.

      De Forest Paine (Fred A. Baker, of counsel), for re-1 lator.
    P. J. M. Hally, for respondents.
   Montgomery, J.

A mandamus was issued by the circuit court directing the common council to reduce relator’s assessment. This order is brought before us for review on certiorari. The case turns upon the following questions : First, whether section 17 of the act for the incorporation of building and loan associations is within the title; second, whether such provision, if within the title, is constitutional, — that is, whether it is within the power of the legislature to exempt from taxation stock held in such corporations and mortgages held by the associations; third, whether section 17 is repealed by the general tax law of 1893.

The title to the building and loan act is “An act to provide for the incorporation and regulation of certain corporations generally known as building and loan associations.” 2 Comp. Laws, § 7574 et seq. Section 20, art. 4, of the Constitution, which provides that no law shall embrace more than one object, which shall be expressed in its title, is invoked, and the contention is made that the title gives no indication of a purpose to relieve the associations from the payment of taxes. We have frequently held that this section is not to be given a narrow or strained construction, and that, if the provisions of the statute are germane to the subject expressed in the’title, this section is sufficiently complied with. The question here presented is ruled by two cases,—Hall v. Judge of Superior Court of Grand Rapids, 88 Mich. 438 (50 N. W. 289), and Board of Sup’rs of Chippewa Co. v. Auditor General, 65 Mich. 408 (32 N. W. 651). See, also, McMorran v. Great Hive L. O. T. M., 117 Mich. 398 (75 N. W. 943). The statute is valid.

The question of the power of the legislature to exempt property from taxation has, we consider, been settled by the cases of People v. Auditor General, 7 Mich. 84, and Walcott v. People, 17 Mich. 91.

The sections of the general tax law which bear upon the question of the repeal of section 17 of the building and loan act (3 Comp. Laws, § 7590) are as follows:

. Section 1. That all property, real and personal, within the jurisdiction of this State, not expressly exempted, shall be subject to taxation.” 1 Comp. Laws, § •3824. ■
“Sec. 2. For the purpose of taxation, real property shall include all lands within the State, and all buildings and fixtures thereon and appurtenances thereto, except such as are expressly exempted by law.” 1 Comp. Laws, § 3825.
‘ ‘ Sec. 8. For the purposes of taxation, personal property shall include: * * *
“7. All shares in corporations organized under the laws of this State, when the property of such corporations is not exempt or is not taxable to itself, or when the personal property is not taxed. * * *
“ 13. All other personal property not herein enumerated, .and not especially exempted by law.” 1 Comp. Laws, § 3831.
“Sec. 11. All corporate property, except where some other provision is made by law, shall be assessed to the corporation as to a natural person, in the name of the corporation.” 1 Comp. Laws, § 3834.

¡Repeals by implication are not favored, but it is scarcely necessary to invoke this rule, as it seems to us that the rights under section 17 of the building and loan act are .-expressly saved.

The order of the circuit court will be affirmed.

The other Justices concurred.


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    BOARD OF EDUCATION OF DETROIT v. UNION TRUST CO.
    Public Moneys — Bank Deposits — Trust Funds — Insolvency— Preferences.
    Where money belonging to a board of education and a library commission was deposited to their credit, with their knowledge and consent, in a bank whose cashier was their treasurer, with the expectation by the board and commission that interest should be allowed on daily balances, the fact that such treasurer was also cashier did not convert the deposit into a trust fund, so as to entitle them to a preference on the failure of the bank, by virtue of 1 Comp. Laws, § 1197 et seq., prohibiting public officials from commingling public funds with their own. Board of Fire & Water Com’rs of Marquette v. Wilkinson, 119 Mich. 655, distinguished.
    Appeal from Wayne; Donovan, J.
    Submitted April 8, 1904.
    (Docket No. 28.)
    Decided April 26, 1904.
    Petitions by- the board of education of the city of Detroit and the Detroit Library Commission against the Union Trust Company, as receiver of the City Savings-Bank, to have certain deposits declared to be held in trust. From a decree dismissing the petitions, petitioners appeal..
    Affirmed.

      Timothy E. Tarsney, for petitioners.

      Boioen, Douglas, Whiting & Murfin, for defendant..
   Montgomery, J.

The defendant bank closed its doorson the 10th of February, 1902, and the board of education at that time had on deposit, credited to the several funds of the board, $464,000. There was to the credit of the library commission $38,551.60. Henry R. Andrews was the treasurer of the board of education and ex officiotreasurer of the Detroit Library Commission. The moneys were deposited in the bank with the knowledge of the board of education, the deposits being made at times by the secretary and at times through Andrews as treasurer, but in all cases with an expectation on the part of the board that there should be interest allowed on daily balances of 2% per cent. This course had been pursued by the board for more than one year under Andrews as treasurer, and for a much longer period with his predecessors. The finance committee of the board examined the books, papers, and vouchers of the secretary, and also the treasurer’s vouchers, every three months, and were acquainted with the fact that these funds were deposited in the bank, and that the interest was being credited thereon. The library commission was also cognizant of the fact that these funds were deposited in the bank, and that interest was being credited thereon. The petitioners claim that the funds of the board of education and the library commission constitute special deposits, and became impressed, upon being deposited, with a trust in favor of petitioners, and that this trust may be impressed upon any assets of the bank at the time of the failure, or at least upon the cash on hand and the cash items.

The question of first importance is whether these funds so deposited are to be treated as trust funds in the first instance. Counsel for petitioners relies upon Act No. 131, Pub. Acts 1875 (1 Comp. Laws, § 1197 et seq.), the provisions 6f which, so far as they relate to the questions involved here, are as follows:

“Sec. 2. It shall be the duty of every officer charged with the receiving, keeping, or disbursing of public moneys to keep the same separate and apart from his own money, and he shall not commingle the sáme with his own money, nor with the money of any other person, firm, or corporation.
“Sec. 3. No such officer shall, under any pretext, use nor allow to be used any such moneys for any purpose other than in accordance with the provisions of law; nor shall he use the same for his own private use, nor loan the same to any person, firm, or corporation without legal authority so to do.
“ Sec. 4. In all cases where public moneys are authorized to be deposited in any bank, or to be loaned to any individual, firm, or corporation, for interest, the interest accruing upon such public moneys shall belong to and constitute a general fund of the State, county, or other public or municipal corporation, as the case may be. ”

It is contended by counsel that as Andrews, the treasurer, was cashier of the bank, the question is ruled by Board of Wire & Water Com'rs of Marquette v. Wilkinson, 119 Mich. 655 (78 N. W. 893, 44 L. R. A. 493). In that case Wilkinson, who was treasurer of the board, was also the banker, and it was held that this act (No.331) prohibited him from commingling the funds with his personal funds. It was further said that, if section 424 (section 2) be construed liberally, and if the court should say ‘ ‘ that it was not designed to prohibit a treasurer from depositing his funds in a bank in the ordinary way, we should be required to except deposits in banks in which he has a pecuniary interest. The deposit with Campbell & Wilkinson was in violation of this law, and no order of the board could make it lawful. Still more clearly improper was the practice adopted by Wilkinson of using this fund with his. own money in his own banking business. This was a trust fund, as much as though Wilkinson had been a farmer, or broker, or contractor, or merchant, and had used the fund in his business. ”

The present case is clearly distinguishable from the Wilkinson Case. The record does not disclose that Andrews, the treasurer, was even a stockholder in the bank. It is true he occupied the position of cashier, but that he profited in any i^ay by the deposit of the money in the bank does not appear. Certainly the bank was a distinct legal entity; and, if section 4 is to be construed as authorizing the board of education and the library commission to legalize deposits in the bank in the regular way in consideration of interest payments thereon, it must be assumed that such deposits are subject to the incidents of all deposits upon interest. It would be doing violence to all experience to say that it was intended that the bank should keep this fund intact as a special deposit, and at the same time pay interest thereon to the depositor. In this respect the case is not unlike that of Retan v. Union Trust Co., 134 Mich. 1 (95 N. W. 1006).

Was the treasurer authorized to make this deposit on interest? As before stated, in some cases the deposits were made by the secretary without the intervention of the cashier at all. The accounts in the bank were kept with the school board. Both petitioners took the benefit •of credits of interest from time to time upon these deposits, and, while formal action authorizing deposit at the bank is not shown, reports from time to time were made to the boards, and they had full knowledge of the fact that the funds were deposited as a general deposit. More than this, it can be said that the consideration upon which Andrews was named as treasurer was that the fund should be.deposited in this very bank upon interest. It maybe a hardship that these public funds should suffer a loss, but it is evident that two policies were open, — the one to preserve the funds intact by placing them in the hands of the treasurer; the other to increase the funds by securing interest- thereon, relying upon the treasurer’s bond to make good any deficit. We cannot escape the conclusion that both the library commission and the board of education pursued the latter course, and that these funds became a ■general deposit, subject to the risks incident to an ordinary deposit in the bank.

The order of the circuit judge denying the prayer of the petitioners will be affirmed.

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

       1 How. Stat.


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    LEE v. LONGWELL.
    1. Assault — Evidence—Disposition of Defendant — Other Offenses.
    In an action for assault, it was not error to permit defendant to be cross-examined as to an assault upon a third person, for the purpose of showing his disposition, as against an objection that it occurred after the assault upon plaintiff.
    2. Trial — Instructions.
    Where, in an action for assault, the issue was not complicated, and the court charged the jury that, if the facts were as testified to by defendant and his witnesses, there could be no recovery, it was not error to refuse specific requests presenting, 'defendant’s theory.
    Error to Van Burén; C.arr, J.
    Submitted April 13, 1904
    (Docket No. 52.)
    Decided April 26, 1904.
    Case by Wilson Lee against James M. Longwell for an assault. From a judgment for plaintiff, defendant brings, error.
    Affirmed.

      Thomas J. Cavanaugh, for appellant.

      Barnard & Lewis, for appellee.
   Montgomery, J.

This is an action for an assault. The-plaintiff recovered on a trial before a jury, and defendant brings error. The testimony on the part of the plaintiff tended to show that, as he was passing by the defendant’s, place, defendant was engaged in sprinkling his lawn; that, as plaintiff came qpposite to where defendant was. standing, the latter turned the nozzle of his hose to the walk, in froht of plaintiff, and then turned it so that the water was carried into plaintiff’s face; and that, as plaintiff attempted to put up his hand to protect himself, the defendant seized hold of him, gave him a shove, and pushed him into a hole which had been dug there, causing serious injuries. Defendant’s version was that plaintiff first seized him, coming up from behind, and that all that ensued was a mere friendly scuffle. The question for the jury was, therefore, whether the scuffle was friendly, and the injury to the plaintiff accidental, or whether the defendant assaulted plaintiff in the rude and insolent manner detailed by plaintiff.

Dr. Maynard was called by plaintiff to testify to the sickness following upon the assault. On cross-examination he was asked as to testimony given on a trial of a case to which plaintiff was a party, which testimony tended to-show that plaintiff was then (in 1901) suffering from senile dementia; the purpose being, as now stated by counsel in his brief, to affect the credibility of the plaintiff by showing an impaired memory, and also that, if he suffered any injury, it was the result of a fainting spell. The record states that an objection was made to the rest of the testimony on the former trial being called to the attention of the witness as to plaintiff’s accident, and how it affected him. The nature of this testimony is not stated in the record, nor is the question which was ruled out given.. We think enough does appear, however, to show that a very full cross-examination was permitted on this subject, and the ground was fully covered.

The defendant, as before stated, claimed that the plaintiff himself first engaged him in a friendly scuffle. On cross-examination, the plaintiff’s counsel was permitted, without objection, to interrogate defendant as to whether-he was in the habit of playing pranks on people. Pursuing this subject, he was asked if he did not throw cayenne-pepper in a colored boy’s eyes. This was objected to, and the only ground urged was that it occurred after the assault upon the plaintiff. It is clear that, if the testimony was competent as tending to show the disposition of defendant (a point we deem it unnecessary -to decide, but as to which see People v. Seaman, 107 Mich. 357 [65 N. W. 203, 61 Am. St. Rep. 326]), time was not important, and the ruling was not erroneous on that ground.

Error is assigned upon the refusal of the court to give certain requests presenting defendant’s theory to the jury. But as the issue was riot involved, and as the court charged that, if the facts were as testified to by defendant and his witnesses, there could be no recovery, we think defendant was not prejudiced by the failure to give the specific instructions asked.

The ruling upon the motion for a new trial was not so clearly erroneous as to justify a reversal of the circuit judge’s order. Indeed,'were we to decide the question as in the first instance, we would not be able to reach a different result.

Judgment affirmed.

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


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    UNION TRUST CO. v. PRESTON NATIONAL BANK OF DETROIT.
    1. Banks — Certified Checks — Bona Fide Holder.
    A certified check is valid in the hands of a bona fide holder for value, although the maker had no funds in the bank when it was certified.
    2. Same — Statutes—Construction.
    The general banking law (sections 6103, 6107, 6108, and 6147, 2 Comp. Laws), forbidding and making it a crime for a bank officer or employe to certify a check when the amount thereof does not stand to the credit of the drawer on the books of the bank, does not make a check so certified invalid in the hands of a bona'fide holder for value.
    Error to Wayne; Donovan, J.
    Submitted April 7, 1904.
    (Docket No. 22.)
    Decided April 26, 1904.

      Assumpsit by the Union Trust Company, receiver of the City Savings Bank of Detroit, against the Preston National Bank of Detroit, to recover the amount of a deposit. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Reversed.

      Geer, Williams & Halpin and H. R. Martin, for appellant.

      Walker & Spalding, for State Savings Bank (contending with appellant).

      Bowen, Douglas, Whiting & Murfin (John G. Donnelly and Frederick W. Whiting, of counsel), for appellee.
   Carpenter, J.

Plaintiff brought this suit to recover a conceded balance of #21,585.11 owing by defendantto the City Savings Bank at the time plaintiff was appointed receiver. Defendant sought to set off against this indebtedness the sum of #100,000, represented by a check drawn on said City Savings Bank January 24, 1902, by F. C. Andrews, payable to defendant’s order, and certified in due form by the teller of the insolvent bank. It appeared that, at the time this check was certified, its maker, Andrews, instead of having funds to his credit in said bank, had overdrawn his account, as shown by the bank’s books, “to-the amount of #405,000.” The defendant offered to prove that it received said check, after certification, on the day it was drawn, in the usual course of business, and paid to said Andrews, the maker, full value therefor, and at that time had no notice or knowledge of any infirmity in said check, or of the fact that the account of said Andrews was overdrawn. This evidence was excluded, on the ground that said check was invalid in the hands of a bona fide holder, and a verdict directed for the plaintiff for the amount of the deposit in defendant’s hands. The sole question presented by this record relates to the correctness of this holding.

It is authoritatively settled and conceded that at common law the fact that the maker of á certified check had no funds in the bank affords no defense, if the check, negotiable in form, as in this case, has passed into the hands of a bona fide holder. See Merchants’ Bank v. State Bank, 10 Wall. 604; Farmers’ & Mechanics’ Bank v. Butchers’ & Drovers’ Bank, 16 N. Y. 125 (69 Am. Dec. 678). This case is not, however, to be determined solely by common-law principles. The correctness of the holding of the trial court depends upon the proper construction of certain statutory provisions in our banking .act relative to the certification of checks. Section 6108, 2 Comp. Laws, being section 19 of the general banking act, reads:

“ It shall not be lawful for any officer, clerk, agent, or ■employé of a bank to certify a check, unless the amount thereof actually stands to the credit of the drawer upon the books of the bank, or to resort to any device, or receive any fictitious obligations, direct or collateral, in order to evade the provisions of this prohibition; and any officer, clerk, agent, or employé who shall attempt any such evasion shall, upon conviction thereof, be deemed guilty of a misdemeanor, and punished as provided in section fourteen of this act.”

Other sections of the banking act, viz., section 14 (section 6103, 2 Comp. Laws), section 18 (section 6107, 2 Comp. Laws), and section 58 (section 6147, 2 Comp. Laws), make the violation of section 19 a crime.

In construing this act, we have not the benefit of decisions of other courts construing a precisely similar act, for, with the exception of the national banking act, which will be hereafter referred to, there is no similar act.

It will thus be seen that the certification in question was forbidden by law, and punishable as a crime. The statute does not, however, expressly declare that the check so certified shall be void in the hands of a bona fide holder. Indeed, it does not expressly declare that it shall be void in the hands of one who is not a bona fide holder. The fact, however, that the certification is forbidden and made a crime, compels the inference that the legislature intended to avoid such certification between the original parties (see Heffron v. Daly, 133 Mich. 613 [95 N. W. 714]); and this, it is almost unnecessary to say, avoids it in the hands of every one not a bona fide holder. It by no means follows, however, because a contract made in violation of law, common or statutory, is void between the original parties, that, if given the form of negotiable paper, it is void in the hands of a bona fide holder. Indeed, it is the distinguishing characteristic of the law of negotiable paper that, when a contract takes that form, it is not, in the hands of a bona fide holder, subject to the defense which avoided it in the hands of the original parties. Negotiable paper in the hands of a bona fide holder is not open to the defense that the contract from which it arose was illegal or forbidden by the principles of the com-mon law. A note given to compound a felony is good in the hands of a bona, fide holder. Clark v. Bicker, 14 N. H. 44; Wenhoorth v. Blaisdell, 17 N. H. 275. Nothing less than a. statutory enactment will subject negotiable paper in the -hands of a bona fide holder to the defense of illegality in its inception.

What, then, is the effect of a statute which merely prohibits the making of a particular contract, and punishes its making as a crime? How shall we determine what consequences the legislature intended should follow a violation of this law ? Manifestly by applying in its construction the principles of the common law.

“ Statutes are not, and cannot be, framed to express in words their entire meaning. They are framed, like other compositions, to be interpreted by the common learning of those to whom they are addressed, — especially by the common law, in which it becomes at once enveloped, and which interprets its implications and defines its incidental consequences. That which is implied in a statute is as much a part of it as what is expressed.” 2 Suth. Stat. Constr. .§ 334.

In accordance with these principles, we would assume, and, as heretofore stated, we do assume, that the legislature intended to make such contract void between the parties; and we would likewise assume that it did not intend, if the contract took the form of negotiable paper, to affect its validity in the hands of a bona fide holder. But plaintiff’s counsel contend that it is settled by authority that, when a contract is prohibited and made a crime by statute, such a contract, if it takes the form of negotiable paper, is void in the hands of a bona fide holder; and they rely upon the following authorities: 1 Clark & M. Priv. Corp. § 225; Endl. Interp. Stat. § 449; 2 Suth. Stat. Constr. § 336; Anson, Cont. 172; Heffron v. Daly, 133 Mich. 613 (95 N. W. 714); State Life-Ins. Co. v. Strong, 127 Mich. 346 (86 N. W. 825); Loranger v. Jar-dine, 56 Mich. 518 (23 N. W. 203); Bowditch v. Insurance Co., 141 Mass., at page 293 (4 N. E. 798, 55 Am. Rep. 474); Union Nat. Bank v. Railway Co., 145 Ill. 208 (34 N. E. 135); Cincinnati Mut. Health Assur. Co. v. Rosenthal, 55 Ill. 85 (8 Am. Rep. 626); Borough of Milford v. Milford Water Co., 124 Pa. St. 610 (17 Atl. 185, 3 L. R. A. 122);Edgerly v. Hale, 71 N. H. 138 (51 Atl. 679); Woods v. Armstrong, 54 Ala. 152 (25 Am. Rep. 671); McConnell v. Kitchens, 20 S. C. 430 (47 Am. Rep. 845); Texarkana, etc., R. Co. v. Lumber Co., 67 Ark. 542 (55 S. W. 944); Snoddy v. Bank, 88 Tenn. 573 (13 S. W. 127, 7 L. R. A. 705, 17 Am. St. Rep. 918).

None of these authorities, except Texarkana, etc., R. Co. v. Lumber Co. and Snoddy v. Bank, which will receive attention later in this opinion, related to a case of negotiable paper in the hands of a bona fide holder. All that can justly be claimed for these authorities, with the exceptions above referred to, is that they hold that, when the making of a contract is prohibited and made a crime by statute, it is void as between the original parties, or — what is the same thing- — -as between parties who do not stand in the attitude of a bona fide holder of negotiable paper arising therefrom. It is true that many of these decisions say that such a contract is void, and one of them (see Borough of Milford v. Milford Water Co.) says that it ‘ ‘ is utterly void, and there is no power that can breathe life into such a dead thing.” This language must, however, in accordance with every just principle of construction, be understood as applying to the case before the court. It may not be improper to describe the particular contracts under consideration as void, and as utterly void. But it by no means follows that negotiable paper issued on such contract would be void in the hands of a bona fide holder for value. These authorities cannot be regarded as authority for the proposition for which plaintiff’s counsel cite them. They are not inconsistent with the rule (which we deem it our duty to undertake to show is well settled by authority) that, though a contract is prohibited and made a crime by statute, that contract, if it takes the form of negotiable paper, is valid and enforceable in the hands of a bona fide holder. Says Mr. Daniel, in his work on Negotiable Instruments, § 197:

“The bona fide holder for value, who has received the paper in the usual course of business, is unaffected by the fact that it originated in an illegal consideration, without any distinction between cases of illegality founded in moral crime or turpitude, which are termed ‘ mala in se, ’ and those founded in positive statutory prohibition, which are termed ‘mala prohibita.’ The law extends this peculiar protection to negotiable instruments because it would seriously embarrass mercantile transactions to expose the trader to the consequences of having the bill or note passed to him impeached for some covert defect.”

In Vinton v. Peek, 14 Mich. 287, defendant was an accommodation maker of a negotiable promissory note dated on Monday, but in fact made on the preceding Sunday, contrary to the statute expressly prohibiting, under penalty of a fine, “any manner of labor, business, or work, except only works of necessity and charity.” See 1 Comp. Laws 1857, § 1574. It was held that the note was valid and enforceable in the hands of a bona fide purchaser, because “the statute has not declared that notes made contrary to the Sunday law shall be void under all circumstances. Their invalidity is only to be implied from the prohibition of Sunday business, and under such a statute a bona fide holder is protected.”

State Capital Bank v. Thompson, 42 N. H. 369, is almost precisely like the above case.

In New v. Walker, 108 Ind. 365 (9 N. E. 386, 58 Am. Rep. 40), a negotiable note was taken in violation of a statute requiring, under a penalty, to be stated therein, “Given for a patent right.” The court held this note valid in the hands of a bona fide holder, saying (pages 374, 375):

“Our opinion is that a statute making it a crime to take promissory notes in a prohibited transaction does not make the notes void in the hands of innocent purchasers, although the person who violates the statute commits a crime. This conclusion is well sustained by authority,” — citing, among other cases, Palmer v. Minar, 8 Hun, 342, and Cook v. Weirman, 51 Iowa, 561 (2 N. W. 386), which are similar to the principal case.

In Smith v. Bank, 9 Neb. 31 (1 N. W. 893), the court expressed its disapproval of a statement in Kittle v. DeLamater, 3 Neb. 325:

‘ ‘ Or, if the note be founded upon an illegal consideration, prohibited by some positive statute, no recovery can be had, even though the indorsee may not be privy to the original transaction.”

In Hart v. Machine Co., 72 Miss. 809 (17 South. 769), it was held that negotiable paper issued in violation of a statute of Tennessee forbidding corporations doing business in that State without compliance with its provisions was valid in the hands of a bona fide holder, the court saying (pages 833, 834):

“The statute, while forbidding foreign corporations from doing business in the State without compliance with its conditions, does not declare, by express terms, that any contracts made with delinquent corporations shall be void, nor does it denounce as invalid any securities given by or to it under such contracts. The English and some of the American statutes against usury and gaming declared that all assurances and securities given in consideration thereof should be void. Under such declarations, it has very generally been held that negotiable paper, even in the hands of a bona fide holder, is void, because of the language of the law. But where only the contract is declared void, and there is no declaration of nullity against securities, it is held that while, as between the parties, and those taking with notice or after maturity, no recovery can be had, a bona fide holder will be protected. ”

In Press Co. v. Bank, 7 C. C. A. 248, 58 Fed. 321, notes issued in violation of a statute forbidding foreign corporations doing business except in compliance with its terms were held valid in the hands of a bona fide holder, the court saying (page 249, 7 C. C. A., page 322, 58 Fed.):

“ It is urged that public policy forbids a recovery; that to hold otherwise will nullify the statute. We do not think so. If the legislature intended the consequences claimed, we would expect it to say so.”

In Lynchburg Nat. Bank v. Scott, 91 Va. 652 (22 S. E. 487, 29 L. R. A. 827, 50 Am. St. Rep. 860), it was contended that a note obligating the maker to pay usurious interest was void in the hands of a bona fide holder. The court answered that contention by saying (page 659):

“If the maker of a negotiable note contests the right of one who has acquired it by indorsement, for value, before maturity, and without notice of any defense, to recover of him the amount of the note, he niust, to prevail, be able to show a statute that in express terms, or by necessary implication, declares the note to be void.”

So it has been held:

“If a statute declares a security void, it is void in whosesoever hands it may come. If, however, a negotiable security be founded on an illegal consideration, — and it is immaterial whether it be illegal at common law or by statute, — and no statute says it shall be void, the security is good in the hands of an innocent holder, or of any one claiming through such a holder.” Glenn v. Bank, 70 N. C. 191; Smith v. Bank, 9 Neb. 31 (1 N. W. 893); Grimes v. Hillenbrand, 4 Hun, 354; Hill v. Northrup, 4 Thomp. & C. 120; Converse v. Foster, 32 Vt. 828; Lauter v. Trust Co., 29 C. C. A. 473, 85 Fed. 894; Hatch v. Burroughs, 1 Woods, 439 (Fed. Cas. No. 6,203).

Other authorities hold that "when a statute, expressly or by necessary implication, declares the instrument absolutely void, it gathers no vitality by its circulation, in respect to the parties executing it.” 1 Daniel, Neg. Inst. § 197; Pope v. Hanke, 155 Ill., at page 625 et seq. (40 N. E. 839, 28 L. R. A. 568); Thompson v. Samuels, (Tex ) 14 S. W. 143.

We have already referred to the fact that two of the authorities cited by plaintiff’s counsel, viz., Snoddy v. Bank, 88 Tenn. 573 (13 S. W. 127, 7 L. R. A. 705, 17 Am. St. Rep. 918), and Texarkana, etc., R. Co. v. Lumber Co., 67 Ark. 542 (55 S. W. 944), arose upon negotiable paper in the hands of a bona fide holder. Snoddy v. Bank is authority for this proposition: “ Notes given in. consideration of a contract against morals, public policy, and public statutes are void in any hands.” This, as we have already shown, and as we understand plaintiff’s counsel to concede, is opposed to almost unanimous authority, and cannot, therefore, be accepted as a correct declaration of the law. In Texarkana, etc., R. Co. v. Lumber Co., suit was brought upon a negotiable promissory note made by the plaintiff corporation, contrary to the constitution and statutes of the State of Texas, for the accommodation of its president. It was held that this note was void in the hands of a bona fide holder. The argument of the court in support of this contention is this:

“A contract prohibited by the constitution or statute of a State, although negotiable in form, is not so in fact, and. no innocence or ignorance on the part of the holder will make it enforceable. It is an absolute nullity,” — citing 1 Daniel, Neg. Inst. § 807, and decisions of the Supreme Court of the United States and of the Supreme Court of Texas.

The decisions referred to do not sustain the proposition for which they are cited. The section of Daniel cited has reference to cases where an express statutory provision declares a note void. We cannot follow this authority without repudiating our own decision of Vinton v. Peck, 14 Mich. 287, and the almost unanimous authority of other courts.

Plaintiff’s counsel assert that the case at bar is not ruled by decisions which hold that negotiable paper based upon an illegal consideration is valid in the hands of a bona fide holder. They insist that such cases are not authority, because the statute under consideration in this case did not merely make the consideration illegal; it actually “prohibited and penalized” the making of the contract itself. We are unable to see that this circumstance, if it affords a sound distinction, distinguishes the case at bar from several of the cases above referred to. In Vinton v. Peck, supra, the particular act which was prohibited and punishable by fine was the making of the note in suit. It is true that the statute did not in express berms prohibit the making of the note, but, when it prohibited the doing of any business, it did prohibit the making of the note, for, as was expressly said by the supreme court of New Hampshire in State Capital Bank v. Thompson, 42 N. H., at page 370,—

“ Under the construction of our statute prohibiting unnecessary labor on Sunday, the execution and delivery of a promissory note upon Sunday has been declared ‘ business of a person’s secular calling,’ * * * and, as such, is prohibited under a penalty.”

So, in New v. Walker, 108 Ind. 365 (9 N. E. 386, 58 Am. Rep. 40), a bona fide holder was allowed to recover on a note given for a patent right in violation of a statute which prohibited, under a penalty, the delivery of the note without the insertion of the clause that it was {‘ given for a patent right.” It is idle to say that the .making of this note was not prohibited by a penal statute. See, also, Palmer v. Minar, 8 Hun, 342; Cook v. Weirman, 51 Iowa, 561 (2 N. W. 386). The only distinction that can he drawn between those cases and the case at bar is in the nature and extent of the punishment for making the contract prohibited by law. Such an inconsequential distinction will not change a rule of law.

We conclude, therefore, that, though the making of a contract is prohibited and made a crime by statute, yet that contract, if it takes the form of negotiable paper, is valid in the hands of a bona fide holder for value. We think it also settled that negotiable paper in the hands of a bona fide holder for value is not subject to any defense which would avoid it in the hands of the original' holder, unless-some statute, either expressly or by necessary implication, so declares. We affirm the proposition, denied by plaintiff’s counsel, that though the statute, “by necessary implication, make the contract made in violation thereof absolutely void as to nonnegotiable contracts, and as to negotiable contracts in the hands of persons having knowledge of the defects, yet * * * the statute will not be considered to have that effect should the contract be negotiable in form, and be found in the hands of a bona fide holder.” No strength is added to the foregoing proposition by saying that the statute, by implication, makes void all nonnegotiable contracts, and negotiable contracts in the-hands of persons having knowledge of the defect; for it follows from elementary legal principles that all such contracts are unenforceable if the original contract in the hands of the first parties thereto cannot be enforced. Nor is strength added to the proposition by saying that such contracts are ‘ ‘ absolutely void. ” If they cannot be enforced in the hands of the original holder’s, we see no reason for quarreling with a person who chooses to call them absolutely void, though others might describe them as voidable. See Thompson v. Samuels, (Tex.) 14 S. W. 143. It follows that plaintiff’s counsel deny that negotiable paper can be enforced in the hands of a bona fide holder for value, if it arises from a contract which, by implication of law, is void or unenforceable between the original parties. In our judgment, the principle so denied is a correct statement of the law. If it were otherwise, all negotiable paper arising out of illegal and forbidden transactions would be void in the hands of bona fide holders for value, and yet nothing is better settled, by principle and authority, as we have already shown, than that such paper is valid.

There remains to be considered this question: Does the statute, by necessary implication, or by implication, even, make the check void in the hands of a bona fide holder for value? We have already seen that such implication cannot be found from the circumstance that the certification is prohibited and made a crime. It is insisted, however, that the intent of the legislature to make the check void in the hands of a bona fide holder is indicated by other circumstances. It is contended that the purpose of the legislature in enacting this law was “to protect the citizens, depositors, and stockholders against just such an act as was committed in the case at bar,” viz., an attempt to withdraw the funds of the bank by means of a check falsely certified, and that, to make this purpose effectual, the check must be held void in the hands of a bona fide purchaser. If it were true that the sole purpose of the statute was to protect the depositors and stockholders of a bank against the criminal acts of its own officials, this argument would be very forcible. Are we warranted in declaring that the sole purpose of the legislature in passing this statute was to protect banks and their depositors from the consequences of criminal misconduct of their officials, and that there were not other purposes, which would fail if plaintiff’s construction of the act prevails ? We must bear in mind that the legislature, in passing this statute in 1887, had not learned the lessons taught by the disastrous failure of the City Savings Bank in 1902, which occasions this litigation, though counsel do not agree as to precisely what lessons are taught by this failure. We shall not, therefore, be materially aided — indeed, we are rather likely to be misled — if wé look to that disaster to throw light upon the legislative purposes. The, legislature has not, by this statute, expressly declared its purpose. Its purpose, then, is to be inferred. While we are bound to infer that one of its purposes was to protect th8 bank and its depositors from the criminal conduct of its officials, it is likewise to be inferred that there was a broader purpose, viz., to promote safe banking generally. We may infer the legislative purpose on the assumption that the law was made to be observed, as well as on the assumption that it would be violated. If the law is observed, we can readily see that it will benefit, and thus infer the legislative purpose to benefit, not merely the depositors and stockholders of banks whose officers are called upon to certify checks, but all persons taking such checks. In other words, the observance of this law tends to increase the certainty of the payment of certified checks and to promote safe banking.

In the case at bar, the allowance of the certified check will inure to the benefit of the stockholders of defendant bank, and to the damage of the depositors of the City Savings Bank, represented by plaintiff. But the law we declare in this case will certainly apply to a case, if such a case should, as it may, arise, where the allowance of such a check inures to the benefit of the depositors of the bank which takes it, and damages no one but the stockholders of the bank whose officials criminally certified it. Such a case would be presented here if the payment of the check under consideration would not sensibly impair the capital of the City Savings Bank, and if the funds withdrawn by its means from defendant had. rendered it impossible for the latter to pay its depositors. And in such a case, under plaintiff’s contention, the court should say that the legislature intended to prefer the interest of the stockholders of the bank whose officers were guilty of criminal misconduct, to that of the depositors of another bank damaged by such misconduct. We do not think we are warranted in imputing to the legislature such an intent. We think it not improper to infer that it was the legislative purpose to protect the interests of the stockholders and depositors of all banks, and not merely the stockholders and depositors of particular banks whose officials might be guilty of criminal misconduct.

The language of the statute prohibiting the certification does not compel the conclusion that its sole purpose was to protect the bank and its depositors against the criminal misconduct of its officials. Certification of a check is prohibited and made a crime “unless the amount thereof actually stands to the credit of the drawer upon the books of the bank.” It will thus be observed that certification is forbidden even though the drawer has funds in the bank which do not stand to his credit upon the bank’s books, and certification is not forbidden if the amount of the certified check is credited upon the books, though that credit is fictitious. In making the last statement, we have not forgotten that plaintiff contends that the statute does forbid certification where the entry upon the books is fictitious ; but, as stated above, we do not agree with this contention. The statute in such case forbids the fictitious ■entry; it does not forbid the false certification resulting therefrom. In many cases the distinction might be unimportant ; in others it might be very important. Suppose the bookkeeper or cashier of the bank made the fictitious •entry, and the teller, acting in the best of faith, relying thereon, certified a check. No reasonable construction of the act would make this certification a crime, or bring it within the statutory prohibition. It will thus be seen that ■certification is prohibited in a class of cases where the depositors and stockholders of the bank whose officers violated the law cannot be injured, and it is permitted in a class of cases where they are injured. If the sole purpose of the act had been to protect the depositors and stockholders of the bank whose officers were guilty of this misconduct, different language would have been used. We are not, therefore, warranted in saying that this act was passed solely for the purpose of protecting the bank and its depositors from the criminal misconduct of its officers. We are warranted in declaring that there was a legislative purpose in passing this act which would be defeated by the construction contended for by plaintiff.

If the section is construed as plaintiff contends,— if checks duly certified are void in the hands of bona fide holders because the amount thereof did not stand to the credit of the drawer on the books of the bank, — this consequence follows: Certified checks, instead of being, as heretofore, the negotiable paper of the bank, and passing as current upon the faith of the bank’s credit, will pass, if at all, only upon the credit of the particular bank official who certified it. Every person to whom a certified check is offered will be called upon to determine, not the credit of the certifying bank, not the authority of the certifying official, but the integrity and diligence of that official. Though one may have all confidence in such integrity and diligence, he may hesitate to take the check, because he fears that others to whom he may wish to transfer it lack such confidence. It will result, therefore, that certified checks, instead of being regarded in commercial circles with credit and favor, as heretofore, will be regarded with a degree of suspicion, and are likely to be discredited. If the legislature intended this consequence, —and they must have intended it if they intended that the act should receive the construction contended for by plaintiff, — it seems strange that they left their intent to be ascertained as a matter of doubtful inference; it seems strange that they still left to banks the power of certifying checks, without any clear suggestion that such power was so greatly limited. “If the legislature intended the con sequences claimed, we should expect it to say so.” Press Co. v. Bank, 7 C. C. A., at page 249, 58 Fed. 322.

It is suggested, rather than urged, by plaintiff’s counsel,, that on the authority of Spitzer v. Village of Blanchard, 82 Mich. 234 (46 N. W. 400), the statute under consideration should be construed as denying to the teller authority to bind his principal, the bank, by the certificate under consideration. In Spitzer v. Village of Blanchard it was held that bonds issued by a village in excess of the amount authorized by its incorporation act are void in the hands of a bona fide holder, the court saying (page 246):

“ The amount of the bonds tobe issued was known, and appears upon the face of the bonds. The assessed valuation and the vote of the electors are matters of public record, and are open to all the world for inspection and ascertainment, and are as accessible to intending purchasers as other persons. The limitation of power upon the common council appears in the public statute, and is presumed to be known by all dealing with corporate authorities or in corporate bonds.”

To show the distinction between that case and the casóat bar, we quote from other language in that opinion (page 244):

“Where there is a total want of power,.under the law, in the officers or board who issue the bonds, then the bonds will be void in the hands of innocent holders; the distinction being between questions of fact and questions of law. If it is a question of fact, and the board or officers are authorized by law to determine the fact, then their determination is final and conclusive.”

If it were necessary to further distinguish that case from the case at bar, we cannot do better than quote the language of distinguished jurists. Said Mr. Justice Selden in Farmers’ & Mechanics’ Bank v. Butchers’ & Drovers’ Bank, 16 N. Y. 135 (69 Am. Dec. 678):

“ It is, I think, a sound rule that where the party dealing with an agent has ascertained that the act of the agent corresponds in every particular in regard to which such party has, or is presumed to have, any knowledge, with the terms of the power, he may take the representation of the agent as to any extrinsic fact which rests peculiarly within the knowledge of the agent, and which cannot be-ascertained by a comparison of the power with the act. done under it.”

Said Justice Davis in New York, etc., R. Co. v. Schuyler, 34 N. Y., at page 73:

“ Where the principal has clothed his agent with power to do an act upon the existence of some extrinsic fact necessarily and peculiarly within the knowledge of the agent, and of the existence of which the act of executing the power is itself a representation, a third person dealing with' such agent in entire good faith pursuant to the apparent power may rely upon the representation.”

If authority is needed for the proposition, which seems obvious, that the certification in question related to an act peculiarly within the teller’s knowledge, we refer to Oakland County Sav. Bank v. State Bank of Carson City, 113 Mich. 284 (71 N. W. 453, 67 Am. St. Rep. 463).

It is also urged that it was the intention of the framers of the general banking act to follow generally the provisions of the national banking law, and that we are warranted in inferring an intent to avoid a check falsely certified, in the hands of a bona fide holder, from certain changes, — particularly from the fact that, when section 19 (2 Comp. Laws, § 6108) was framed, language was omitted which in the corresponding section of the national banking law, viz., section 5208, Rev. Stat. U. S., clearly indicated the purpose of Congress to make such checks valid. This contention deserves attention. Section 5208, Rev. Stat. U. S., makes it unlawful to certify any check, not, as provided in section 19, unless the amount actually stands to the credit of the drawer on the books of the bank, but unless the drawer “has on deposit * * * an amount of money equal to the amount specified in such check.” Then follows the provision omitted from section 19: “Any check so certified by duly authorized officers shall be a good and valid obligation against the association.” It will be observed that the language omitted in framing section 1-9, in form, at least, and possibly in reality (see 1 Morse, Banking [4th Ed.], § 414), makes the prohibited check valid, even though not in the hands of a bona fide holder. The omission of this sentence, therefore, in.section 19, may well be attributed to some other purpose than the intent to make such checks void in the hands of a bona fide purchaser. We can well understand the reluctance of a legislature to use language which, even by inference, made such checks valid in whosesoever hands they might be.

It results from these views that the trial court erred in denying defendant the right to prove that it received this check after certification, on the day it was drawn, in the usual course of business, and paid full value therefor, without notice or knowledge of any infirmity, or of the fact that the account of the drawer was overdrawn.

The court has received unusual aid from the excellent arguments and briefs of counsel representing the parties, interested in this litigation. Without such aid, we could not have reached so speedy a decision.

Judgment reversed, and new trial ordered.

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


author: Per Curiam.

text:
    SKUTT v. KENT CIRCUIT JUDGE.
    Mandamus — Amendments—Writ of Error — Remedy.

      Mandamus is not a proper remedy to review the action of a circuit judge in vacating an order permitting an amendment to a plea, as the remedy by writ of error is Adequate.

      Mandamus by Henry Skutt to compel Alfred Wolcott, circuit judge of Kent county, to vacate an order setting aside an order allowing an amendment to a plea.
    Submitted April 5, 1904.
    (Calendar No. 20,445.)
    Writ denied May 5, 1904.

      Smedley & Corwin, for relator.

      C. H. Gleason (Arthur Lowell, of counsel), for respondent.
   Per Curiam.

Relator was defendant in a suit reversed by this court because a settlement made with the plaintiff was not admissible under the plea of the general issue. See Sunlin v. Skutt, 133 Mich. 208 (94 N. W. 733). After the remittitur was filed in the circuit court, respondent granted a motion of defendant to amend his plea by adding notice of settlement. Later, respondent set aside the order granting said motion, on the ground that he had exceeded his power in granting it. The position of the respondent was that, the case having been appealed from the justice to the circuit court, the granting of said motion made such-a change of the issue as to be prohibited by the decisions of this court. See Loranger v. Davidson, 110 Mich. 605 (68 N. W. 426), and cases there cited. Relator claims that respondent had power to make the first-mentioned order, and seeks by mandamus to compel the vacation of said last-mentioned order.

Under the decision of Anderson Carriage Co. v. Pungs, 127 Mich., at page 546 (86 N. W. 1040), relator can, if he is right in his present contention, obtain complete relief by having a final judgment against him reviewed upon writ of error. We are bound to say, under our recent decisions (see St. Clair Tunnel Co. v. St. Clair Circuit Judge, 114 Mich. 417 [72 N. W. 249], Blackburn v. Alpena Circuit Judge, ante, 48 [98 N. W. 754], and Cattermole v. Ionia Circuit Judge, ante, 274 [99 N. W. 1]), that the remedy by writ of error is entirely adequate, and that therefore the mandamus applied for should be denied, with costs.


text:
    DICKSON v. JUDGE OF RECORDER’S COURT OF DETROIT.
    • 1.'Sheriffs — Courts—Summoning Jurors.
    Section 12 of Act No. 201, Pub. Acts 1893, creating a board of jury commissioners for courts of record in Wayne county, which provides that the clerk of the court shall make out a venire facias for the summoning of jurors, and deliver the same to the sheriff, applies to the recorder’s court of Detroit, and is mandatory, requiring the venire to be delivered to the sheriff.
    2. Same — Mandamus—Parties.
    The clerk of the recorder’s court, though acting under the direc- . tion of the judge thereof, was properly impleaded with the latter in mandamus proceedings by the sheriff to compel the delivery of such venire to him.

      Mandamus by Henry A. Dickson, sheriff of Wayne county, against James Phelan, judge of the recorder’s court of the city of Detroit, and John A. Grogan, clerk of said court, to compel the delivery to relator of a venire facias for the summoning of certain jurors.
    Submitted April 26, 1904.
    (Calendar No. 20,512.)
    Writ granted May 5, 1904.

      Charles D. Joslyn, for relator.

      James H. Pound, for respondents.
   Per Curiam.

Respondent Grogan, clerk of the recorder’s court, by direction of his co-respondent, judge of said court, delivered to the superintendent of the metropolitan police of Detroit a venire facias for the summoning of jurors for said court. Relator seeks by these proceedings a mandamus compelling the delivery of said venire facias to him.

Section 12 of Act No. 204 of the Public Acts of 1893, creating a board of jury commissioners for courts of record in the county of Wayne, provides that, after the drawing of jurors, the clerk of thp court ‘ ‘ shall immediately make out a venire facias, and deliver the same to the sheriff of Wayne county, which shall command him, or any of his deputies, to summon the persons therein named to be and appear in said court at the term thereof for which they were drawn to serve as petit jurors, and not depart from the same until discharged, under penalty as the court may impose.” Section 17 of said act requires-the sheriff to “proceed as soon as possible to summon such jurors forthwith to attend such court.”

In our judgment, these sections and the law containing them apply both to the recorder’s court of the city of Detroit and the circuit court for the county of Wayne. They apply both to the regular jurors and talesmen named in the venire facias under consideration. See sections 12,16,17, and 18 of said act. Their provisions are mandatory, and no-official has a right to disregard them. If any provisions of earlier laws authorized the delivery of this venire facias to the superintendent of police, such provisions are inconsistent with the above sections, and are expressly repealed by section 27 of said Act No. 204 of the Public Acts of 1893. '

It was not improper to make the respondent clerk a party to these proceedings. We recognize that it was his moral duty to obey the direction of the judge. But relator cannot obtain the relief to which he is entitled unless a mandamus issues against both respondents.

Having reached the conclusion that relator is the only official who can legally summon these jurors, we can give no consideration to the argument that it would he more economical to have them summoned by some other official. We should usurp power never' granted us should we change laws in the interest of economy or for any other reason.

The mandamus prayed for will issue, but without costs.