text:
    ALPENA CITY WATER CO. v. CITY OF ALPENA.
    1. Error — Questions Not Raised on Trial.
    Questions not raised on the trial will not be considered on writ of error.
    3. Municipal Contracts — Charter Provisions — General Statute.
    A city may make a valid contract with a waterworks company under 3 Comp. Laws, § 8511, notwithstanding such contract violates a charter provision restricting the annual tax levy to a certain per cent, of the assessed valuation.
    3. Same — Exemption from Taxation.
    A contract providing that a waterworks company shall furnish water free of charge for public purposes, in consideration that the city will “save and keep harmless the waterworks from any city or school tax,” is not invalid as an exemption of property from taxation.
    4. Same — After-Acquired Property.
    Such provision applies to all the waterworks which it is necessary to erect in the proper conduct of the business, though acquired after the execution of the contract.
    5. Same — Construction—Highway Tax.
    A highway tax levied by authority of the city for highways under its control is a city tax, within the meaning of such contract.
    6. Same — Evidence.
    Where, for 20 years, a city has received and paid quarterly for all the water it contracted for, evidence that the company failed to furnish the best quality of water, and that it allowed mains in the Streets to be frozen up and the hydrants to become out of repair, is inadmissible in an action by the company to recover taxes it was compelled to pay, and from which the city agreed to save it harmless.
    Error to Alpena; Emerick, J.
    Submitted October 8, 1901.
    (Docket No. 2.)
    Decided May 19, 1902.

      Assumpsit by the Alpena City Water Company against the city of Alpena to recover money paid for taxes. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.

      I. S. Canfield, for appellant.

      Joseph H. Cobb", for appellee.
   Montgomery, J.

In 1878 the common council of the defendant city adopted a resolution declaring it to be expedienteo have constructed in the city waterworks, for the purpose of supplying the city and the inhabitants thereof with water, and that it was inexpedient for the city itself to build such works. Following upon this, and on the 14th of October, 1878, a contract was entered into with the plaintiff, by the terms of which the plaintiff undertook to construct and maintain a system of waterworks in the city, and to furnish water to the city at certain stated prices; and section 9 of the contract is, in part, as follows:

“Said second party further agrees to furnish, free of charge, during all the term aforesaid, water to and for the use of all public buildings owned, used, or occupied by said city, all public school buildings and yards, all city offices, parks, for as many public fountains and watering troughs as the common council of said city.may require, and for city jail. In consideration, however, said first party shall save and keep harmless the waterworks aforesaid from any city or school tax during said period.”

The evidence shows that, for all the period since these waterworks were put in, the water for which charge was made was accepted by the city, and the bills for such water were paid as rendered by the water company. This action is brought to recover city, highway, and school taxes paid for the years 1886 to 1899, inclusive.

When the plant was erected, and for several years thereafter, the same was located upon leased ground. In 1888 or 1889 what is known in the record as the “Shore Property ” was acquired by the plaintiff, and a steam plant erected, on the shore of Thunder Bay; and the Morse dam, so called, was purchased by the plaintiff at or about the same time. Although the water company owned this dam, only a portion of the power was used for its purposes. The remainder, with nearly all the surrounding land, was leased to and occupied by persons who used the same for other purposes.

The circuit judge held that the plaintiff was entitled to recover the taxes which it had been required to. pay upon its waterworks. He held that the term “waterworks aforesaid ” should be held to include the shore property, so called, which it became necessary to employ in the business, and upon which a house, to inclose its machinery and to maintain a pumping station, had been erected. But as to the Morse property, so called, he held that it was impossible to divide and apportion the tax which should be recovered by the plaintiff, and refused to allow any recovery for the same. The defendant alone brings error.

The questions presented are: First, the validity of the contract; second, whether the city had power to exempt the plaintiff from taxes; third,, does section 9, above referred to, exempt after-acquired property? fourth, does the term “city or school” include highway taxes? and, fifth, whether defendant was not entitled to have the question of plaintiff’s nonperformance of the contract submitted to the jury.

The question is presented whether the mayor and recorder could bind the city, without the council first authorizing them to execute the contract. We do not discover that this question was raised on the trial, and we shall not discuss it.

The principal contention seems to be that the contract was in excess of the'authority of the city. We think that the question of authority is settled by the case of Menominee Water Co. v. City of Menominee, 124 Mich. 386 (83 N. W. 127), and that a discussion of the question here involved would be only a repetition of what is there decided.

It is contended that it was not within the power of the city to exempt the company from taxation. We think that is not the question here involved. It is a question of whether the city, in consideration of the furnishing for its use of certain water by the plaintiff, could stipulate to itself pay the taxes which should be assessed for certain purposes. The stipulation is not a stipulation to exempt from taxation, but to save the plaintiff harmless from taxes, which could only be done by payment being made by the city. The case, upon this question, is controlled by Ludington Water-Supply Co. v. City of Ludington, 119 Mich. 480 (78 N. W. 558).

We think it is also clear that the undertaking applied to all the waterworks which it was necessary for the plaintiff to erect in the proper conduct of its business.

It is contended that the ‘ ‘ city tax, ” as used in this contract, does not include the highway tax. The language of the contract is “any city or school tax.” The highway tax is levied by the authority of the city, and the highways are under its control; and we think it cannot be said that the highway tax is not a city tax, within the meaning of this language.

Tt is further contended that the court was in error in refusing to admit testimony showing a nonperformance of the contract by the plaintiff. The undisputed testimony shows that the city received and paid for all the water which was stipulated to be furnished. What the defendant offered to show was that the plaintiff had not furnished as good water as Thunder Bay provides; that it had allowed mains in the streets to be frozen up in the winter time, the hydrants to become out of order, so that they could not be used in case of a fire, and other things of that nature. The circuit judge was of the opinion, and stated, that the contract was entered into more than 30 years ago; that both parties had acted upon it, — the water company by furnishing some water and some service, for which the city had paid from quarter to quarter; that this state of facts had been made to appear by the evidence, and was not in dispute; and he held that in this action to recover, under section 9, for these taxes which plaintiff had been compelled to pay, it was not competent to litigate the entire subject of the administration of the contract. We think there was no error in this ruling.* The alleged defaults of the plaintiff related to other portions of the contract. The compensation for the service provided for by the other portions of the contract had been paid by the city, and, if the city is ever to be concluded, it would seem that such an adjustment between the parties would be sufficient to conclude it.

We find no error in the record, and the judgment will be affirmed.

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


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    PEOPLE v. GREGORY.
    1. Indorsing Names of Witnesses on Information — Notice.
    It is not error to allow the names of witnesses to be indorsed upon the information in a criminal case on the day of trial, and before the jury is sworn, where the prosecuting attorney testifies that he gave notice to respondent’s attorney eight days before the trial, and as soon as he learned that the witnesses were material and necessary.
    3. Hearsay Testimony Stricken Out by Trial Court.
    Where hearsay evidence is admitted, but subsequently stricken out on motion, the court will not assume that the jury disregarded their duty and considered such testimony.
    3. Incompetent Evidence — Nonprejudicial Error.
    A case will not be reversed because an officer was permitted to testify to the statements of defendant’s wife, where the point was so fully covered by other evidence that no doubt could have existed in the minds of the jurors.
    4. Evidence — Possession of Burglarious Tools.
    Testimony that burglars’ tools were found on a farm some time after the burglary is admissible, where the testimony shows that respondent was the only person living on the farm, and that he had worked the farm for two years prior to that time.

      Error to Calhoun; Smith, J.
    Submitted November 21, 1901.
    (Docket No. 210.)
    Decided May 19, 1902.
    Joseph Gregory was convicted of burglary, and sentenced to imprisonment for 10 years in the State prison at Jackson.
    Affirmed.
    Respondent was convicted of the burglary of the store of • one Randall, located at Tekonsha, on the night of November 29, 1897. The information charges him with breaking and entering with intent to steal the goods and chattels therein, and also with the stealing, taking, and carrying away from the store goods to the amount of $1,000, consisting of silks, satins, etc. The evidence showed that certain silk goods taken from Mr. Randall’s store were found August 13, 1898, in a room at 904 East Main street, Jackson, this State, sewed up in a mattress, and spread out over a feather bed. At the time the search was made and the goods found, Mrs. Gregory, the wife of respondent, was in the bed; and in that room were her clothing, writing desk, money, etc. During the years 1897 and 1898, and up to the time of his arrest, respondent and his wife lived together at that house, which was the home of Mrs. Snover, respondent’s mother-in-law. ■ At odd times he worked a little farm south of Jackson, also owned by Mrs. Snover, and spent some of his time there, and some of his time at the boarding house. Mrs. Gregory helped her mother about the house and did the chamber work at 904 East Main street, and was there all the time, except on some occasions when she was at the farm while her husband was there. No explanation was given by Mrs. Snover, Mrs. Gregory, or the respondent, or any one else, as to how the silk goods, identified as the goods taken at the time of the burglary, came to be sewed up in the mattress found on the bed where Mrs. Gregory was sleeping. In the same room were also found many letters addressed to the respondent. The next day after the finding of the goods, search was made at the little farm worked by respondent, and certain burglarious tools were there found, — some in the house, some in the woodshed, and some in a manure pile near the barn. The respondent was arrested at the fair grounds in the city of Jackson some time in the forenoon, and was in the charge of an officer at the time the goods were found in the bed occupied by his wife. v
    The theory of the prosecution, on which it was sought to convict the respondent, was that the burglary in question was committed by one Ryan and the respondent. The evidence showed that there had been a slight snow just prior to the burglary, and the tracks of two men were plainly seen in the snow; also the track of a vehicle going from the burglarized store, in an easterly direction, towards Jackson. Ryan had been convicted of this burglary prior to the trial of the present case. The evidence also showed that Ryan was also stopping with the respondent at the time of the commission of the crime, as he had been doing a month previous, and continued to do for a month after.

      Richard Price, for appellant.

      Horace M. Oren, Attorney General, and Jesse M. Hatch, Prosecuting Attorney, for the people.
   Grant, J.

(after stating the facts). The first error alleged is that the court erred in permitting the prosecuting attorney to indorse the names of two witnesses upon the information on the day of the trial, and before the jury was sworn to try the case. The prosecuting attorney testified that he gave notice to one of the defendant’s attorneys immediately upon receiving information that these two witnesses were essential. That was the 22d day of January, — eight days before the trial. We think the prosecuting officer moved promptly, and that the court committed no error in allowing their names to be indorsed.

A deputy sheriff testified that he followed the tracks .of a vehicle from the scene of the burglary out upon a highway, and that he met two men in a buggy. He was permitted to state what these two men said to him about meeting a buggy, describing it, the condition of the horse, etc. Subsequently the court, upon motion, struck this testimony out. It is urged that it was of a damaging character, and that the injury to the defense was not cured by striking it out. We do not think the testimony was of such a character, under the record, as to justify a reversal of the case for the error, if error it was, which the court itself cured by striking out the testimony. We cannot assume that the jury were so forgetful of their duty as to hot disregard this testimony after it was stricken out.

It is next urged that the court erred in permitting an officer to testify that the wife of the defendant, at the time the room was searched, stated that the room and the bed in which the goods were found were hers, and in admitting in evidence the goods found, done up in cretonne, and hid in the bed upon which she was then lying. It was openly proved by other testimony that this was her room, that her husband occupied it with her, and that many of his letters were found there. Even if this testimony had been excluded, no doubt could have existed in the mind of the jury that this was Mrs. Gregory’s room, and was occupied by her and her husband. The point is without merit.

It is next urged that it was error to permit the introduction of evidence to show the finding of the burglarious tools upon the premises of Mrs. Snover at the time of the respondent’s arrest. It is true that this was some time after the alleged burglary. The testimony .on the part of the prosecution tended to show that he was the only one •living upon the farm where the tools were found, and that he worked the farm during the years 1897 and 1898, and that he alternated between the farm and the boarding house of Mrs. Snover, where his wife lived. We think the testimony was properly admitted.

We find no error upon the record, and the judgment is affirmed.

Hooker, O. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit.


author: Montgomeby, J. Grant, J.

text:
    WALL v. ALBION COLLEGE.
    Deed Absolute — Mortgage—Implied Promise to Pay.
    Where a man. conveyed land to his sister for a certain price, with the understanding that, when the money paid by her should be realized from, the profits of the land, it should be reconveyed, and the whole transaction indicates that security was intended, equity will imply a promise on his part to repay within a reasonable time, and the deed will therefore be decreed to be a mortgage. Grant, J., dissenting.
    Appeal from Eaton; Wiest, J., presiding.
    Submitted January 10, 1902.
    (Docket No. 58.)
    Decided May 19, 1902.
    Bill by John Wall against Albion College and others to have a deed declared a mortgage, and to be allowed to redeem. From a decree for complainant, defendant college appeals.
    Affirmed.

      Garry G. Fox and Powers & Stine, for complainant.

      Loud & Stewart, for appellant.
   Montgomeby, J.

John Wall, the complainant, on March 3, 1892, owned in fee simple the south 50 acres of the E. \ of the S. E. £ of section 25 in Eaton township, Eaton county, Mich. He was a married man, but he and his wife had separated, and at such time did not live together. The premises were worth $2,000. A mortgage had been foreclosed, and at such date the equity of redemption was about to expire. The amount required to redeem aggregated $950. The wife refused to execute either a deed or a mortgage, and the complainant was compelled to pay her $500 for so doing. The complainant negotiated a sale of the entire premises to one Joel P. Britten for $2,000; but subsequently a different arrangement was effected, whereby Britten took the south 35 acres, and Ruth F. Wall, a maiden sister of complainant, took the north 35 acres. The deed to Britten was executed by complainant and wife March 3, 1893; Britten paying $1,000 for such south 35 acres. The deed to Ruth F. Wall of the north 35 acres was executed at the same time, John and his wife joining in the execution of such deed. The complainant paid his wife the $500 he had agreed to pay her.

- The contract entered into between complainant and his sister was oral, and substantially as follows: Ruth was to furnish John with $450, — the amount lacking to redeem from the mortgage; — and John was to give her a deed of the 35 acres, and Ruth was to have possession and all of the rents and avails thereof. She was to pay the taxes and meet the necessary expenses, and when the land paid her back, or when she got her money back out of it, she was to redeed to John. Ruth, not having the money, made arrangements to, and did, borrow the $450 from one Frank Rose. She immediately assumed possession, and from that time until her death, which occurred April 31, 1899, she had and received all the avails of said 35 acres; and complainant claims that she received therefrom the amount loaned, together with the interest and expenses, before her death, and was equitably bound to reconvey the 35 acres back to him. Ruth Wall died without having redeeded the property, and this bill is filed for the purpose of having this deed declared a mortgage, and redeeming from the same. The circuit judge made a decree in favor of the complainant, and the defendant the Albion College appeals.

The evidence is overwhelming and convincing that it was intended that complainant retain an interest in this land, and it is manifestly inequitable that he should be deprived of it. But it is contended by defendants that certain testimony given by complainant in a certain probate proceeding shows that this was not technically a mortgage, for the reason that there was no agreement on his part to repay the monejr, and no debt created. It is true that complainant testified in the probate proceeding:

“ I do not claim that there was any obligation on me to pay her any of this $450. The deed paid her, and she got her pay, and when she got her pay she would deed it back to me.”

An argument may be built up from this, it is true, that there was no understanding that there was any obligation upon the part of complainant to repay this money. It is altogether likely that neither party expected that he would be under the necessity of doing so, as it was evidently expected that the money should be realized from the land itself. But, in our view of the case, the whole transaction indicates that security was intended, and that it was complainant’s obligation which was being paid from the proceeds of the land, and that equity, at least, would raise a promise on his part to repay within a reasonable time. We also think the testimony supports the finding that the deceased was repaid her advances, interest, and taxes. We think the case falls within Sowles v. Wilcox, 127 Mich. 166 (86 N. W. 689), and that the decree should be affirmed, with costs of this court to complainant.

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

Grant, J.

(dissenting). The complainant, on March 3, 1892, owned 50 acres of land. He was married, but he and his wife had separated. The land was mortgaged for $950. His wife refused to execute a deed or mortgage, except upon payment to her of $500. Complainant carried on negotiation with one Britten for a sale of the land for a consideration of $2,000. This fell through. He subsequently sold 25 acres to Britten for $1,000. He deeded the other 25 to his sister, Ruth, by warranty deed, in which the consideration was stated at $625. The actual consideration is claimed to be $450. Ruth died testate April 21, 1899. By her will, after disposing of her personal estate, she directed her executors to pay annually to the complainant and his brother, Charles, or to the survivor of them, the rents and avails of this land and of the balance of her farm, 60 acres, and after the death of both she devised said land to the defendant Albion College.

Complainant filed this bill to set aside the deed made by him to Ruth, on the ground that it was a mortgage, and that said mortgage has been paid out of profits from the land. Complainant’s counsel state their claim as follows:

“A parol contract was entered into between complainant and his sister substantially as follows: Ruth was to furnish John with $450, — the amount lacking to redeem from the mortgage, — and John was to give her a deed of the 25 acres, and Ruth was to have possession and all of the rents and avails thereof. She was to pay the taxes and meet the necessary expenses, and when the land paid her back, or when she got her money back out of it, she was to redeed to John.”

The learned circuit judge held that the deed was a mortgage, and that Ruth had received enough from the rents ■ and profits to pay the amount, interest, and taxes. He so found from statements made by her to third parties at various times before her death. He entered a decree for the complainant.

The parol statements on which the decree is based are not very satisfactory. The finding convicts Ruth of a deliberate violation of her agreement. For seven years she occupied, managed, and finally disposed of this property as her own. Death has sealed her lips, and the evidence must be very convincing before converting a warranty deed into some other instrument. If the transaction between the two made the deed a mortgage, we might possibly be compelled to reach the same conclusion as did the circuit judge. But in my opinion, granting the transaction to be as claimed, it was not a mortgage, but a contract to reconvey. There was no debt to be secured. Complainant owed nothing, and did not bind himself to pay anything. A debt is essential to the existence of a mortgage. 1 Jones, Mortg. § 265; Blumberg v. Beekman, 121 Mich. 647 (80 N. W. 710); McMillan v. Bissell, 63 Mich. 66 (29 N. W. 737). John Wall contested his sister’s will. Upon the trial in that case he testified:

“I do not claim that deed was intended to be a mortgage. I do not claim that there was any obligation on me to pay her any of this $450, or that, if there is a balance due on it, that I am obliged to pay it. The deed paid her, and she got her pay, and when she got her pay she would deed it back to me.”

In 1897 complainant filed a bill of divorce against his wife, in which he alleged that on February 15, 1892, he requested his wife to go and live with him; that she refused; that at that time he was the owner of 50 acres of land; that he had subsequently sold it for $1,500, out of which he paid the mortgage of $950, and gave her the remaining $500 in cash. In answer to a cross-bill filed by her, he again stated that he had no property, except some horses, buggy, and harness. Under this record, I find that the agreement, if one was made, was an agreement to reconvey, and, not being in writing, is void, under the statute of frauds.

The decree should be reversed, and bill dismissed, with costs of both courts.

Long, J., did not sit.


text:
    WALSH v. GOULDEN.
    1. Directors of Corporation — Agency in Sale of Stock — Misrepresentation.
    Defendants, who were^irectors in a gaslight company, secured an option from all the stockholders to purchase their stock at double its par value. At the same time they held an option with another company to sell the entire stock and property of the gaslight company for the same price, of which agreement complainant was aware when he disposed of his stock to defendants. Subsequently defendants sold all the stock and property of the company to a new company for double its par value and an additional sum to pay the debts. After complainant gave the option, and after the making of the agreement to sell to the new company, but before such sale was completed, the new concern agreed to give each of the defendants 35,000 in bonds and 31,200 in stock of the new company if they would become directors thereof. Held, that defendants, not having made any false representations or secret agreement by which they were to profit at the expense of the stockholders, were not liable to complainant for any portion of the stock and bonds thus received.
    2. Fraud — Evidence.
    He who charges fraud is bound to prove it by substantial evidence.
    3. Principal and Agent — Dealings Between.
    An agent may purchase of his principal, so long as he acts in good faith, and his principal is informed of the situation.
    4. Fiduciary Relation of Directors to Corporation — Fraud.
    Directors of a corporation stand in a fiduciary relation to the corporation itself, but not to the stockholders when dealing with them for the purchase or sale of stock; and some actual misrepresentation is necessary to constitute fraud.
    Appeal from St. Clair; Tucker, J., presiding.
    Submitted January 30, 1902.
    (Docket No. 50.)
    Decided May 19, 1902.
    Bill by Robert Walsh against James Goulden, Albert D. Bennett, and Junius E. Beal for an accounting on the sale of certain corporate property and stock. From a decree dismissing the bill, complainant appeals.
    Affirmed.
    Complainant was a stockholder in the Port Huron Gaslight Company. The defendants were stockholders and directors. The capital stock was 140,000, in shares of $50 each. A rival company had existed for some time in the city, and both companies had been making little or no profits for some time. Efforts had been made to consolidate, and thus prevent a disastrous rate war, and place the companies upon a reasonably paying basis. They did not succeed. In 1897 efforts were made to dispose of both properties to a new company, and an option was given by the stockholders to sell out at $84 per share. This project failed. Subsequently the defendants and officers of the rival company opened negotiations with certain parties for a sale of the properties. The defendants carried on these negotiations, and the result was the execution of an agreement with each stockholder. They were all alike. The one made by the complainant reads as follows:
    “Articles of agreement, made and entered into this 18th day of November, 1897, by and between Junius E. Beal, a resident of the city of Ann Arbor, in the county of Washtenaw and State of Michigan, party of the first part, and Robert Walsh, a resident of the city of Port Huron, party of the second part, witnesseth, that
    “ Whereas, the said party of the second part is the owner of 105 shares of stock in the corporation known and designated as the Port Huron Gaslight Company, a corporation organized and existing under and by virtue of the laws of this State; and
    ‘ ‘ Whereas, the said party of the first part is desirous of purchasing the right to purchase said shares of stock at any time within ninety days from the date of this contract, at and for the price of two dollars for every dollar’s worth of stock so held by the said party of the second part as aforesaid :
    “Now, therefore, for and in consideration of the sum of five dollars, to him in hand paid by the said party of the first part to the said party of the second part at the time of the ensealing and delivery of these presents, the receipt where-of is hereby confessed and acknowledged, it is hereby stipulated and agreed by and between said parties to this contract that the said party of the second part, for and in . consideration of the sum of two dollars for every one dollar of stock so held and owned by him in said corporation aforesaid, hereby agrees to sell, assign, and deliver the same to said party of the first part at any time within ninety days after the date of this contract.”
    For a further statement, we adopt the following from the finding of the circuit judge:
    “At or about the time of procuring the options from the stockholders to Beal, the three defendants gave to Lynn and Baxter what purported to be an option to purchase the entire plant of the Port Huron Gaslight Company at $80,000; the concern to be taken subject to all its outstanding liabilities. Just previous to the expiration of this option, Lynn and Baxter paid $500 to defendants for an extension of it. That $500 was paid into the treasury of the company, and divided among the stockholders.
    “In the spring of 1898, arrangements between the defendants, Goulden, Bennett, and Beal, for a sale of the company to Lynn and Baxter, of Detroit, seem to have been perfected; and Mr. Bennett and Mr. Beal secured from the several stockholders (the complainant among others) their stock in the company, assigned in blank. This stock was all obtained within a few days prior to March 27, 1898, and was taken to Detroit by Bennett, to be turned over to the new concern. At the time the stockholders delivered their stock assigned in blank, receipts were given to each of them, except complainant, in the following form: ‘Received from--shares of the Port Huron Gaslight Company stock, for which I agree to pay-dollars on or before April 1st, 1898;’ the number of shares in each receipt being filled in according to the number of shares held by the party signing the receipt, and also the amount of each receipt corresponding to two dollars for every dollar, par value, of the stock so receipted for. The receipts given-to the Port Huron stockholders were all signed by A. D. Bennett personally, and receipts given to the Ann Arbor stockholders were all signed by Beal personally. Complainant insisted upon his stock being paid for before it was delivered to Bennett; and Bennett, on the date of the delivery to him of the stock by complainant, paid for the same in full, at $100 per share, in accordance with the terms of the option. * * *
    “The arrangements for a sale of the company to Lynn and Baxter provided that $80,000 was to be paid, by them for the stock and assets of the company, and that they were to take care of its liabilities. ' They declined to take the assets and liabilities as they existed, and settle for themselves, and insisted that the defendants should provide for the same for a specified sum to be agreed upon, and the sum of $16,000 in cash was paid to the defendants by the new company for the purpose of taking care of its outstanding indebtedness. They were also to have and use for that purpose whatever might be collected or gotten from the outstanding accounts due the Port Huron Gaslight Company and its plumbing department. The total outstanding indebtedness of the concern amounted to, approximately, $19,000. The defendants gave a bond to take care of all liabilities of the concern. * * * The $16,000 in cash received, and the proceeds of the outstanding accounts due the concern, were insufficient to take care of those outstanding liabilities; and there can be no liability on the part of the defendants, or either of them, on account of any moneys received by them with which to care for the liabilities of the concern.
    ‘1 The first arrangement of the defendants for a deal with Lynn and Baxter had fallen through; and about 10 days prior to the consummation of the final deal, which was on March 27, 1898, the gentlemen interested in the formation of the company concluded that it would be .essential to the success of the new concern that some of the old stockholders resident in Port Huron should remain or become members of the new company, the franchise of which required a majority of the directors of the company to be residents of Port Huron, and as a consideration for the defendants remaining in the new company, and giving it the benefit of their experience, business standing in Port Huron, etc., offered them bonds in the new company in the sum of $5,000 each and $1,200 in stock. This proposition was, after some demur, accepted, so that each of the defendants received from the new company $1,200 of stock, face value, and $5,000 in bonds. This stock and these bonds received by the defendants were no part of the consideration for the sale of the plant, and the sole consideration therefor was the agreement on the part of the defendants to continue their connection with the new company.
    “The said defendants received the $80,000 provided to be paid by Lynn and Baxter for the total stock of the Port Huron Gaslight Company, out of which they paid to the several stockholders the amounts called for by their options,— $100 per share for the stock held by each. They also paid all the outstanding liabilities and bonded indebtedness of the company.
    “There is nothing to indicate any fraud, breach of trust, or unfair dealing by the defendants, or either of them, with the complainant or any other stockholder of said concern, or with the company which they represented.”
    The case was heard upon pleadings and proofs taken in open court. Decree was entered for the defendants.

      Avery Bros. & Walsh, for complainant.

      Phillips & Jenks and A. J. Saiuyer & Son, for defendants.
   Grant, J.

(after stating the facts). The learned counsel for complainant state the theory of their case as follows:

1. Defendants secured complainant’s stock, and all the other stock, by fraud in misrepresenting material facts, and in concealing the secret agreement.
3. Defendants acted as trustees of the complainant and other stockholders, i. e., a fiduciary relation existed between them; and, when such relation exists, the trustee cannot retain a secret profit from the execution of the trust.
3. Defendants, being directors, could not profit by the sale, when such sale was brought about or influenced by their official action.
4. A trustee or agent cannot make a secret profit for himself as a result of his agency or trusteeship.
5. The agent cannot be a purchaser.

The principles of law stated in the above propositions are not disputed. Although the sale of the stock was a very advantageous one for the stockholders, yet, if the defendants were che mere conduits through which these stockholders were to transfer their stock to Lynn and Baxter, and there had existed a secret agreement between them and defendants that the former were to pay the latter a consideration for procuring the sale of the stock, they would undoubtedly not be permitted to profit by such a transaction. The question, therefore, has become one entirely of fact; and the two questions are, Did the defendants make false representations as to material facts ? and, Was there a secret agreement by which they were to profit at the expense of other stockholders ? We find no evidence whatever of any misrepresentation of facts, material or immaterial. The stockholders were fully informed as to the situation. They knew the condition of their own company, had met and voted to dispose of the property at $2 for $1 for their stock, and had, by the agreement of November 18th, either made Mr. Beal their agent to carry out the sale, or had modified their resolution of sale by agreeing to sell their stock to him at the same rate. The defendants possessed no information which complainant and the other stockholders did not also possess. If Lynn and Baxter had failed to take the property, it is difficult to see what legal objection the stockholders could make to transferring their stock to Mr. Beal upon payment under their contract with him, regardless of the parties to whom he was to convey. All prior oral and written negotiations and agreements were merged in this written contract. It did not mention any other vendee than Mr. Beal. Had the complainant desired to limit the right to sell to Lynn and Baxter, and to make Beal his agent to effect the transfer, appropriate language should have been used for that purpose. What possible difference did it make to complainant to whom Mr. Beal sold, provided he got the price agreed upon ? Assuming, however, that the defendants stood in the position of agents to carry out the wishes of the stockholders^ the question remains, Was there an agreement, at the time the sale was agreed upon, by which Lynn and Baxter, or the corporation to be formed by them, were to give the defendants bonds and stock in the new corporation ? There is no testimony whatever to even indicate that such an arrangement existed or was contemplated, either at the time of the execution of the contract to sell or the extension of that contract. There is no testimony that any such arrangement was even thought of, much less spoken of, until after the arrangements were made for the transfer of the stock, and about 10 days before it was actually transferred to the new corporation. He who charges fraud is bound to prove it, and that by substantial evidence. In order to sustain a decree against defendants, it must be found that they deliberately testified falsely, or else that the transaction is a fraud in law, no matter when the stock and bonds were given to them, or what the consideration, if any, was. Their testimony stands uncontradicted by any witness or any circumstances. The circumstances under which the bonds and stock were given to defendants are thus stated by Mr. Beal:

“Mr. Lynn, within a week or 10 days of the final closing of the sale, met me, and said :
“ ‘We want you to stay in the company, sure, and I have got these bonds to sell. I want you to sell some of the bonds in Ann Arbor for us; and then I have got some other projects, too, — other gas companies, — I want you to be interested with me. You can control capital of your own and others in Ann Arbor, and I want to go in with you.. I want to have you go in with this company.’
“And I have heard Mr. Goulden and Mr. Bennett, several times (and had agreed with them, too), express their determination when they sold the stock to get right out. They didn’t want anything more to do with it. We saw there was a big storm coming here when the price of gas was_raised, and a fight before the council, probably, for a charter, so that they just wanted to get out. They had expressed themselves that way.
Q. In your presence ?
“A. In my presence several times, and I had agreed with them.
‘ ‘ Q. Agreed with whom ?
“A. With Mr. Bennett and Mr. Goulden.
Q. That you would get out ?
“A. Yes; that we would close right out. And then Mr. Lynn came to me and said that Goulden and Bennett would stay in if I would; if I would stay in, why, they would give us five thousand of the bonds apiece. They had, of course, a lot more bonds — Mr. Lynn — than was actually paid for the plants, and those bonds were theirs; and they were very anxious to sell the bonds, and were selling them at a discount, at times, and also with a stock bonus of 25 per cent. Anybody that would take $1,000 of bonds would have $250 of stock.
Q. The stock bonus went with the bonds ?
“A. Yes; that went with the bonds. And Mr. Lynn said:
“ ‘ Mr. Goulden and Mr. Bennett will stay in if you do, and I want to have you. We need you three. You understand the business up there, and have a knowledge of the situation; and, in this fight that is going to come on us, we want your hearty support and help and assistance, and, if you will do that, we will give you the bonds and the accompanying stock.’
Q. He would give you how much of the bonds ?
“A. Five thousand of bonds and 25 per cent, of stock. * * *
“ Q. After having this conversation with Lynn, did you then see Mr. Bennett and Mr. Goulden, to see whether or not they had agreed to accept this offer if you did ? Did you talk that over with them ?
“A. Yes.
Q. Before you finally consummated it ?
“A. Yes.
Q. Now, let me see if I understand you. The contract was finally closed that day ?
“A. Yes.
Q. Did that five thousand that was paid you, or paid to either of these men, have anything to do with the price of the plant, according to the actual terms of your agreement ?
“A. Nothing whatever. That had been settled long before.”

Mr. Bennett’s version of the transaction is the same. This is all the evidence on the subject.

Under’ this record, complainant received every cent he contracted for. He was not deceived. The terms of the sale had been agreed upon, and a contract made, not only between the complainant, the other stockholders, and Mr. Beal, but also between Mr. Beal and Lynn and Baxter, by which he agreed to transfer the stock to them upon the payment of §80,000. When about to execute the papers to carry out the contract between Beal and Lynn and Baxter, they wanted defendants to remain as stockholders in the new corporation, and defendants Bennett and Goulden as directors. They at first strenuously objected, and for reasons which to them seemed good. They were finally persuaded to enter the new company, — all as stockholders, and the two as directors, — upon receipt of $5,00.0 of bonds, and the bonus stock which accompanied the same. There was nothing bad, in morals or in law, about this transaction. Lynn and Baxter owned the stock and bonds, and had the legal right to give it away or to sell it upon any consideration they chose. The defendants, had the moral as well as legal right to purchase the bonds and to become stockholders upon any terms they chose to make with those who had the stock and bonds to sell. Their full duty to the stockholders of the old company was performed. We agree with the circuit judge that there is nothing in the transaction which indicates fraud, or reflects upon the honor and integrity of the defendants.

Counsel’s statement that an agent cannot be a purchaser states the rule too broadly. An agent may purchase from his principal, so long as he acts in good faith, and his principal is informed of the situation. If the defendants or Mr. Beal had at one time been the agents for complainant to sell his stock, and afterwards complainant made a contract, with full knowledge of all the facts, to sell his stock to Mr. Beal, that contract would be binding. Directors, of course, stand in a fiduciary relation to the corporation itself. They do not stand in that relation, however, when dealing with other stockholders for the purchase or sale of stock. In the purchase and sale of stock between stockholders there must be some actual misrepresentation in order to constitute fraud. Mere silence is not sufficient. The books of the corporation are open to all stockholders alike, and' each may inform himself of the condition of the company. 1 Cook, Corp. § 320; Rose v. Barclay, 191 Pa. St. 594 (43 Atl. 385, 45 L. R. A. 392); Carpenter v. Danforth, 52 Barb. 581; Grant v. Attrill, 11 Fed. 469. Other cases of the like import are cited in the defendants’ brief.

Decree is affirmed, with costs.

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

       Viz.: Tippecanoe Co. Com’rs v. Reynolds, 44 Ind. 509 (15 Am. Rep. 245); Deaderick v. Wilson, 8 Baxt. 108; Alexander v. Rollins, 84 Mo. 657; Crowell v. Jackson, 53 N. J. Law, 656 (23 Atl. 426); Gillett v. Bowen, 23 Fed. 625; Smith v. Hurd, 12 Metc. (Mass.) 371 (46 Am. Dec. 690); Spering’s Appeal, 71 Pa. St. 11 (10 Am. Rep. 684); Allen v. Curtis, 26 Conn. 456; Bloom v. Loan Co., 152 N. Y. 114 (46 N. E. 166).


author: Moore. J.

text:
      In re ASCHER.
    Criminal Procedure — Mistrial—Twice in Jeopardy.
    Where, after the jury is sworn in a criminal case, the court finds that a juror is so biased that he is unfit to sit in the cause, the jury may be discharged, and the respondent will not be deemed to have been placed in jeopardy by the proceedings.

      Habeas corpus by Edward Ascher to the sheriff of Wayne county, with ancillary writ of certiorari to Judge Murphy, of the recorder’s court of Detroit, to obtain a discharge from custody on a charge of murder.
    Submitted February 20, 1902.
    (Calendar No. 19,140.).
    Petitioner remanded May 19, 1902.

      George F. Monaghan, for petitioner.

      Ormond F. Hunt, Prosecuting Attorney, and Henry A. Mandell, Assistant Prosecuting Attorney, for the people.
   Moore. J.

The petitioner is now detained by the sheriff of the county of Wayne, pending an indictment ■charging him with the murder of Valmore C. Nichols. The petition filed in this cause for his discharge shows that said charge is still pending and undetermined in the recorder’s court of the city of Detroit. Petitioner claims he has once been in jeopardy, within the meaning of the Constitution of the State and of the United States, and cannot again be tried, but is entitled to his discharge. '

After the jury was obtained and a portion of the witnesses for the people were sworn, information came to the trial judge in relation to some of the jurors and the officers having charge of the jury, which led him to make an investigation. In his return to the writ of certiorari the trial judge returned that this investigation was made by him with no one present except .the court stenographer and the person he was then examining.

“ The investigation and inquiries so made are supplemented by my observation of the conduct of juror Henry Gr. Poupard in open court in his seat in the jury-box during the progress of this trial, the fiagrancy of which led me to make a statement to him in the presence of all the jurors herein in the court-room upon the adjournment of court at noon upon Tuesday, the 12th day of November, 1901. The said investigation and inquiries were made for the purpose of determining whether or not the jurors herein, or any of them, were, when impaneled herein, unbiased and unprejudiced jurors, and otherwise qualified to sit herein; and also for the purpose of determining whether or not, since the impaneling of the jurors herein, the said jurors, or any of them, have, by their conduct or statements, so conducted themselves as to interfere with the due and orderly administration of justice to that extent where the rights of the people or the defendant herein were imperiled or endangered. The further purpose of such investigation and inquiries was to ascertain whether or not the officers, or any of them, in charge of the jurors herein had been guilty of any misconduct, and, if so, whether such misconduct would, in the event of a conviction herein, be such as to nullify the proceedings had. From such investigation, inquiries, and from the personal observation of the court, I do specifically find and determine the facts to be:
“That juror Henry G. Poupard, upon his voir dire examination herein, purposely and willfully concealed a material fact when asked about it. Upon his voir dire examination said juror Henry G. Poupard stated that he did not know any member of the family of this defendant, other than Mr. Simon Ascher. His voluntary statement to me under oath, upon Thursday, the 14th day of November, 1901, is that, while engaged as a saloon keeper in the city of Detroit, he had business dealings with Louis Ascher, the brother of said defendant, and that said dealings covered a considerable period of time, and that he now is a debtor of the said Louis Ascher in a small sum of money as the result of said dealings. In the light of the subsequent conduct and statements made by the said juror Henry G. Poupard during the progress of this trial, as ascertained by me from the said investigation and inquiries, and from personal observation of him, I am led to the conclusion, and do conclusively find, that, at the time he was impaneled herein, he was not an impartial and unbiased juror, and I do conclusively find that, in order to be accepted as a juror herein, he fraudulently and willfully concealed from the court and counsel his bias and prejudice, which so existed both at the time and before he was sworn and impaneled herein as a juror.
“Ifurther find and determine that, from the inception of this trial, the said juror Henry G. Poupard has frequently, by his statements and by his manner in making such statements, expressed to his colleagues disbelief in the testimony given by the witnesses herein; that he has expressed his belief in the innocence of the said defendant to his fellow jurors; that he has said, in the presence of some of his fellow jurors, that the officials were persecuting the defendant herein, and that the police officers in this case were endeavoring to procure a conviction of defendant herein, whether guilty or innocent; that he has repeatedly endeavored to influence some of his colleagues by criticising, ridiculing, and belittling the testimony of the witnesses sworn herein. I further specifically find and determine that upon the night of Saturday, the 9th day of November, 1901, at the Hotel Normandie, in this city, the said Henry G. Poupard was guilty of gross misconduct in purchasing and furnishing to some of his fellow jurors herein an excessive quantity of intoxicating liquor, and in then and there procuring the intoxication of Patrolman Daniel O’Keefe, who was then in charge of the said jurors. I further specifically find and determine that upon the night of Saturday, the 9th day of November, 1901, at said Hotel Normandie, the said juror Henry G. Poupard did hold communications with Charles Lewis and Edward W. Harmeyer, who were not jurors herein, without receiving permission from the court, and that such •communications were had in the presence of no officers in charge of the jurors herein! I find and determine that at the inception of this case, and before the taking of testimony had begun, the said juror Henry G. Poupard was biased and prejudiced against the people, and in favor of the defendant herein, to such an extent as to disqualify him serving as a juror herein; that his conduct and statements following the taking of testimony grew out of the bias so held by him; and that he has made a studied and persistent effort to create a like .bias in the minds of the other jurors herein.
“I find and determine that juror John E. Sauer, throughout this trial, and from its inception, has exhibited a strong and studied bias and prejudice; that at no time since he was impaneled herein has he been an impartial juror. I further find and determine that he has studiously shown his bias and prejudice for the purpose of influencing other jurors herein, and that he has ridiculed ánd belittled the testimony of witnesses sworn, herein in the presence of his fellow jurors. I further find and determine that, for the purpose of discrediting the testimony of one of the witnesses herein, the said John E. Sauer willfully misstated the reasons for the reversal of this case by the Supreme Court of this State. I further conclusively find and determine that upon the night of Saturday, the 9th day of November, 1901, at the Hotel Normandie, the said John E. Sauer was guilty of gross misconduct in being a party towards the procurement of the intoxication of Patrolman Daniel O’Keefe, and that his misconduct in that regard was of such a character as would, in the event of the conviction of the defendant herein, nullify the proceedings here had and require a new trial of the issue herein involved.
“I further find and determine that upon the night of Saturday, the 9th day of November, -1901, while in charge alone of the jurors herein at the Hotel Normandie, in this city, Patrolman Daniel O’Keefe became and was intoxicated, and that his intoxication incapacitated him from discharging the duty then and there devolving upon him, and that, by reason of such intoxication, unauthorized communication was had by juror Henry G. Poupard with Charles Lewis and Edward W. Harmeyer, they not being jurors herein, and that there was then and there opportunity given the jurors herein for other unauthorized and improper communications with persons with whom communication was then and there improper. I further find and determine that, in my opinion, the misconduct of the said officer was of such a character that, in the event of a conviction of the defendant herein, the facts being disclosed to the court, a new trial of this cause would be required.
“From the foregoing findings of fact I have concluded that it is within my power, and that it is my imperative duty, to discharge the jury herein impaneled from further consideration of this case, and formally do declare this trial to be a mistrial.”

The findings of fact were duly entered upon the court journal. In the presence of counsel for the respondent and the respondent himself, the court then made an order in which the findings of fact were recited, and that the trial was a mistrial, and discharging the jury from further consideration of the case, and remanding the respondent to the custody of the sheriff pending a new trial. Counsel for the respondent moved the court for his discharge, which motion was overruled, and this proceeding is brought.

It is claimed the question is one of greater importance than the personal rights of the respondent, and involves the integrity of the right of trial by jury. It is said that no person shall be placed twice in jeopardy for the same offense; nor shall he be deprived of life, liberty, or property without due process of law. Const. U. S. Amend, art. 5. No one will question this right of a person accused of crime. ■ The trouble arises in determining when one is placed twice in jeopardy.

It is claimed the proceedings heretofore had in this case show the respondent has been placed in jeopardy, and that he should now be discharged; citing Cooley, Const. Lim. 327; People v. Harding, 53 Mich. 485 (19 N. W. 155); People v. Taylor, 117 Mich. 585 (76 N. W. 158). The - courts of the English-speaking people have for centuries been exceedingly jealous of the right of persons accused of crime to a fair and impartial trial. This has been provided for, not only by the action of the courts, but, in this country, by making provisions in the written constitutions intended to bring about this result. Section 29, art. 6, of the Constitution of Michigan provides, “No person, after acquittal upon the merits, shall be tried for the same offense.” While this language differs from that used in the United States Constitution, the law of jeopardy is doubtless the same under both provisions. Village of Northville v. Westfall, 75 Mich. 603 (42 N. W. 1068).

At one time, the doctrine of placing the accused in jeopardy but once was invoked as a bar to a second trial where a jury had disagreed, or a member of the panel had been taken so ill the trial could not proceed, or had died; but such a claim would no longer be made. In People v. Harding, 53 Mich. 481 (19 N. W. 155), where the jury had disagreed, it was contended the respondent had been placed in jeopardy, and, as the record did not show it had been judicially determined the jury were unable to agree, nor any necessity for their discharge, that the respondent could not again be put upon trial. In disposing of the case Justice Cooley said:

‘ ‘ This case is therefore to be determined on common-law rules; and the respondent relies upon People v. Jones, 48 Mich. 554 (12 N. W. 848), as ruling it. That case is not very fully reported. The record showed that the respondent was put on trial before a jury duly impaneled and sworn; that the prosecution went into the proofs and rested; that thereupon the jury was discharged, and a new information filed against the respondent for the same offense, upon which he was tried and convicted. The proceedings on the first information were pleaded as a bar to the second, and this court sustained the bar. No reason appeared for discharging the jury, and the discharge stood upon the record as an act of the court, not shown to have been assented to or compelled by any necessity. On each of the trials appearing in the record before us, the jury reported to the court an inability to agree, and were immediately discharged by its order. It is conceded on behalf of respondent that, when it is found impossible for the jury to agree, the judge may lawfully discharge them for that reason, and the discharge is not an acquittal; but it is contended that the record must show that the judge found that a necessity for the discharge existed; and upon the validity of this contention the case must turn.
‘ ‘ There is no doubt the report of the jury that they cannot agree is the proper evidence upon which the judge should act in determining upon the impossibility of their reaching a verdict. But he may not be satisfied with their first report, and has a right to keep them together for further consultation as long as in his opinion there is reasonable ground for believing they may finally agree. The whole subject, however, is referred to his judgment; and when he decides, no one can question his conclusion. And if in this case he had directed an entry upon the journal of the court that, being satisfied the jury could not agree, he directed their discharge, no question could be made of the right to proceed to a new trial. But while it would be very proper to make such an entry, it has never been the practice in this State to do so. The fact that the judge, on receiving the report of the jury of their inability to agree, directs their discharge, is understood to be an assent on his part to their own conclusion, and a determination by him that the necessity for their discharge without a verdict has arisen. And we think this a proper view to take of his action. Any other would be technical, and tend in many cases to defeat justice.”

In People v. Taylor, 117 Mich. 583 (76 N. W. 158), the respondent having been once acquitted, it was held he could not be put upon trial again; but in disposing of the case Justice Hooker used the following language:

“This case should be distinguished from a class of cases where, after a jury is impaneled and charged with the defendant and his case, some intervening necessity compels the discharge of the jury, e. g., the death or sickness of a juror, the ending of the term, a disagreement, etc., and possibly a continuance, granted upon the motion of the defendant. The case of Stewart v. State, 15 Ohio St. 155, is such a case. After the jury was sworn, it was discovered that one of the jurors had been on the grand jury which found the indictment in the case. The defendant’s counsel objected to proceeding to trial with the jury thus impaneled, but declined to waive any of the defendant’s rights. The jury was discharged, and a conviction by another jury was sustained. Such a case was People v. Gardner, 62 Mich. 312 (29 N. W. 19). There a question arose over the regularity of the jury, and a new one was called up'on the defendant’s objection to the first. It was said by Mr. Justice Champlin that ‘he has no right to complain that his objection was sustained, and the discharge of the jury with his consent cannot be set up as an acquittal.’ ”

See People v. White, 68 Mich. 648 (37 N. W. 34).

These cases clearly recognize the doctrine that occasions' may arise after the trial is entered upon, making it necessary to stop the trial and discharge the jury, without it necessarily following that respondent has béen so placed in jeopardy that he cannot again be put upon trial. While the precise question involved in this case has not been before this court, it is not a new question. In U. S. v. Morris, 1 Curt. C. C. 23 (Fed. Cas. No. 15,815), after the trial was entered upon, a jury was discharged under circumstances very similar to the case at bar. In holding that the respondent might again be put upon trial the court said:

“ The rule of the common law, as shown by the authorities cited by the defendant’s counsel, is that neither party has a right of challenge, after the juror is sworn, for cause then existing. But it by no means follows that it is not in the power of the court, at the suggestion of one of- the parties, or upon its own motion, to interpose and withdraw from the panel a juror utterly unfit, in the apprehension of every honest man, to remain there. Suppose a prisoner on trial for his life should inform the court that a juror had been bribed to convict him, that the fact was unknown to him when the juror was sworn, and that he had just obtained plenary evidence of it, which he was ready to lay before the court, is the court compelled to go on with the trial? Suppose the judge, during the trial, obtains by accident personal knowledge that one of the jurors is determined to acquit or convict without any regard to the law or the evidence, is he bound to hold his peace F In my judgment, such a doctrine would be as wide of the common law as it would be of common sense and common honesty. The truth is that this rule, like a great many other rules, is for the orderly conduct of business. There must be some prescribed order for the parties to make their challenges, as well as to do almost everything else in the course of a trial. As matter of right, neither party can deviate from this order. And it is the duty of the court to enforce these rules, which are for the general good, even if they occasion inconvenience and loss in particular cases. But there goes along with all of them the great principle that, being designed to promote the ends of justice, they shall not be used utterly to subvert.and defeat it; being intended as a fence against disorder, they shall not be turned into a snare. They do not tie the hands of the court, so that when, in the sound discretion of the court, the public justice plainly requires its interposition, it may not interpose; and it would be as inconsistent with authority as with the great interests of the community to hold the court restrained.
“A very eminent English judge has treated this rule concerning challenges just as I believe it should be treated. Chief J ustice Abbott says:
‘“I have no doubt that if, from inadvertence or any other cause, the prisoner or his counsel should have omitted to make the challenge at the proper moment, the strictness of the rule which confines him to make his challenge before the officer begins to administer the oath would not be insisted on by the attorney general, or, if insisted upon by him, would not be allowed by the court.’ The Derby Case, Joy, Conf. 220.
“ That is, like other rules of procedure in trials, it is in the power of the court to dispense with it when justice requires.
“ But the interposition of the court may be placed on even higher ground, supported by authority which in this court is decisive. In U. S. v. Perez, 9 Wheat. 579, the question came before the Supreme Court whether it was in the power of the circuit court to discharge a jury in a capital case, and afterwards put the prisoner on trial by another jury. The distinction between capital cases and misdemeanor, under the provision of the Constitution of tbe United States, cited by tbe defendant’s counsel, is very plain; yet, speaking even of capital cases, the court say:
“‘We think that, in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, ■or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject, and it is impossible to define all the circumstances which would render it proper to interfere.’
“.That a court would interfere far more readily in a case of misdemeanor there can be no doubt, and it is so asserted in terms by Story, J., in U. S. v. Coolidge, 3 Gall. 364 (Fed. Cas. No. 14,858). In U. S. v. Shoemaker, 2 McLean, 114 (Fed. Cas. No. 16,279), and U. S. v. Gilbert, 3 Sumn. 19 (Fed. Cas. No. 15,304), it will be found that Justices Washington, Story, and McLean have all acted in their circuits upon these principles.
“Now, if the court has such a discretion, and if, as the Supreme Court say, it is to be' exercised even in capital cases, where the ends of public justice would otherwise be defeated, what case can be imagined more fit for its interposition than one where the court finds that a juror is so biased, either against the prisoner or the government, that he is unfit to sit in the cause ? The truth is that it is an entire mistake to confound this discretionary authority of the court, to protect one part of the tribunal from corruption or prejudice, with the right of challenge allowed to a party. And it is, at least, equally a mistake to suppose that, in a court of justice, either party can have a vested right to a corrupt or prejudiced juror, who is not fit to sit in judgment in the case. I hazard nothing in saying that no such right is known to the common law.”

The case of Simmons v. U. S., 142 U. S. 148 (12 Sup. Ct. 171), was a case very similar to this, The opinion is by Justice Gray, who said:

“The general rule of law upon the power of the court to discharge the jury in a criminal case before verdict was laid down by this court more than 60 years ago, in a case presenting the question whether a man charged with a capital crime was entitled to be discharged because the jury, being unable to agree, had been discharged, without his consent, from giving any verdict upon the indictment. The court, speaking by Mr. Justice Story, said:
“ ‘We are of opinion that the facts constitute no legal bar to a future trial. The prisoner has not been convicted or acquitted, and may again be put upon his defense. We think that, in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, courts should be extremely careful how they interfere with any of the chances of life in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion rests, in this as in other cases, upon the responsibility of the judges, under their oaths of office.’ U. S. v. Perez, 9 Wheat. 579.
“A recent decision of the court of queen’s bench, made upon a full review of the English authorities, and affirmed in the exchequer chamber, is to the same effect. Winsor v. Reg., L. R. 1 Q. B. 289, 390, 6 Best & S. 143, and 7 Best & S. 490.
“There can be no condition of things in which the necessity for the exercise of this power is more manifest, in order to prevent the defeat of. the ends of public justice, than when it is made to appear to the court that, either by reason of facts existing when the jurors were sworn, but not then disclosed or known to the court, or by reason of outside influences brought to bear on the jury pending the trial, the jurors, or any of them, are subject to such bias or prejudice as not to stand impartial between the government and the accused. As was well said by Mr. Justice Curtis in a case very like that now before us:
“ ‘ It is an entire mistake to confound tliis discretionary authority of the court, to protect one part of the tribunal from corruption or prejudice, with Jthe right of challenge allowed to a party. And it is, at least, equally a mistake to suppose that, in a court of justice, either party can have a vested right to a corrupt or prejudiced juror, who is hot fit to sit in judgment in the case.’ U. S. v. Morris, 1 Curt. C. C. 23, 37 (Fed. Cas. No. 15,815).
“Pending the first trial of the present case, there was brought to the notice of the counsel on both sides, and of the court, evidence on oath tending to show that one of the jurors had sworn falsely on his voir dire that he had no acquaintance with the defendant; and it was undisputed that a letter since written and published in the newspapers by the defendant’s counsel, commenting upon that evidence, had been read by that juror and by others of the jury. It needs no argument to prove that the judge, upon receiving such information, was fully justified in concluding that such a publication,- under the peculiar circumstances attending it, made it impossible for that jury, in considering the case, to act with the independence and freedom on the part of each juror requisite to a fair trial of the issue between the parties. The judge having come to that conclusion, it was clearly within his authority to order the jury to be discharged, and to put the defendant on trial by another jury; and the defendant was not thereby twice put in jeopardy, within the meaning of the fifth amendment to the Constitution of the United States.”

Both of these cases were cited with approval in Thompson v. U. S., 155 U. S. 271 (15 Sup. Ct. 73).

In our effort to see that the rights of persons accused of crime are protected, we should not overlook the fact that thé people also have interests that should be safeguarded. It is a right of which the accused cannot be deprived to have his case tried by an impartial jury. The people have an equal right to have their case tried by a jury no member of which has obtained a place thereon for the purpose of preventing a righteous verdict. If, during the progress of the trial, the trial judge learns, or it is satisfactorily made to appear to him, that one or more jurors had obtained places on the jury intending to convict the accused whatever the evidence, can there be any doubt that it is not 'only his right, but his duty, to say there has been a mistrial? Can there be any doubt of the converse of this proposition ? The accused has a right to' a trial by a fair and impartial' jury; but he has no vested right to a trial by a jury some member of which is not impartial, but who obtained his place thereon for the purpose of acquitting the accused, whatever might be the evidence. The trial judge would not be justified in discharging a jury and declaring a mistrial for slight cause; but if the facts exist as found by the trial judge after a careful investigation made by him, it would be a reflection upon the administration of justice to say the trial must proceed. Thb conduct of the two jurors and of the court officer indicates a very strong probability that improper influences were at work which might affect the verdict of the jury, and justified the conclusions of the trial judge.

The other questions argued by counsel have been considered, but we do not deem it necessary to discuss them. The application for the discharge of the respondent is denied.

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


author: Moore, J.

text:
    MacKINNON v. AUDITOR GENERAL.
    1. Taxes — Title by Certificate — Assessment.
    Where a person has paid, to the government the full purchase price of lands, and obtained a certificate, but not a patent, thereof, and the land is assessed for several years as real estate, instead of personal property, as required by the tax law of 1882, and it does not appear that he applied to the board of review to have it assessed as personal property, or paid any greater tax than he should have paid, mandamus will not lie to compel the auditor general to cancel tax sales of said lands and refund the taxes paid.
    2. Mandamus — When Lies.

      Mandamus is a discretionary writ, and will not issue unless it be made to appear that justice requires it.

      Mandamus by Donald C. MacKinnon to compel Perry F. Powers, auditor general, to cancel certain tax sales, and to refund the amount paid thereon.
    Submitted April 8, 1902.
    (Calendar No. 19,189.)
    Writ denied May 19, 1902.

      Fred H. Abbott, for relator.

      Horace M. Oren, Attorney General ( Charles W. McGill, of counsel), for respondent.
   Moore, J.

The following statement of facts, taken from the brief of the attorney general, does not materially differ from that contained in the. brief of counsel for relator :

At the county treasurer’s sale in October, 1886, relator purchased lot 1 of block 5 and lot 7 of block 4 of the recorded plat of the village of Iron River for the.taxes of 1883 and 1884. He purchased the same lands at the auditor general’s office in August, 1888, for the taxes of 1885, and at the county treasurer’s sale in October, 1888, for the taxes of 1886, and in May, 1890, for the taxes of 1887.

It appears that in 1878 relator located 80 acres of land with certain scrip issued by virtue of a decree rendered on the 16th day of December, 1873, by the Supreme Court of the United States, in section 26, in township 43 N., range 35 W., and received a certificate in full satisfaction thereof under date of August 1, 1878. In the same year Alexander MacKinnon located 160 acres of land under certain scrip issued by virtue of a decree of the Supreme Court of the United States rendered on the 28th day of January, 1878, in section 26, township 43 N., range 35 W., and received a certificate in full satisfaction thereof. In May, 1880, the relator executed to Alexa'nder MacKinnon a quitclaim deed purporting to convey to him an undivided one-half of the 80 acres located by relator, and Alexander MacKinnon at the samé time executed and delivered to relator a quitclaim deed which purported to convey to the relator an undivided one-half of the lands which had been so located and entered by Alexander MacKinnon; which deeds were duly recorded in the office of the register of deeds of the county in which the lands were located. In 1881 Alexander MacKinnon and the relator executed and recorded in manner and form as required by law a town plat embracing the lands so located and entered by them, which plat was named and is known as the “Plat of the Village of Iron River,” and of which said lot 1 of block 5 and lot 7 of block 4 of the recorded plat of the village of Iron River is a part.

Relator alleges that, after the relator and Alexander McKinnon located the lands in question, their right to locate said lands with said scrip was duly contested before the commissioner of the general land office at Washington, and an appeal from the decision of said commissioner was taken to the secretary of the interior; but in this case the fact of such contest is immaterial, because the final decision rendered by the secretary of the interior fully sustained the right of relator and Alexander MacKinnon to locate the lands with the scrip. It also appears that, where lands were located with the aforesaid mentioned scrip, it was thought the laws of the United States made no provision for issuing a patent to the persons locating such lands thereunder, and patents for the lands were not issued until sometime in the year 1895, Congress having passed an act of May 30, 1894, authorizing the issuing of such patents.

By virtue of the above-mentioned quitclaim deeds the relator and Alexander MacKinnon became the joint owners of the lands located by them as aforesaid, and exercised absolute ownership over them, and executed and recorded-said plat of the village of Iron River, and were exercising such ownership at the time the said lots were assessed for the taxes of 1883, 1884, 1885, 1886, and 1887; and it does not appear but that th°e said relator is still the owner of an undivided one-half of said lots as such ownership existed at the time of his said purchases for the taxes in question. On the theory that said lands were not subject to taxation for the years in question as real estate, and that as such purchaser relator is entitled to a cancellation of said sales by the auditor general, and a refunding of the amount paid, together with the interest théreon, a writ of mandamus is prayed for.

The respondent denies that the relator is entitled to the relief prayed for. The relator bases his right to relief solely upon the theory -that the lands in question were not subject to taxation as real property. His counsel concedes that the interest in said lands which the MacKinnons held jointly was subject to taxation as personal property under section 3 of the tax law of 1883, but that it could not be taxed as real estate, and therefore relator is entitled to have his money refunded.

A great many questions are raised which we do not deem it necessary to discuss. When the relator and Alexander MacKinnon located these lands, they paid for them in full, and obtained the full equitable title. Nothing stood in the way of their having legal title, except the mere issuance of a patent, which, when issued, would relate back to the time when they obtained their certificates. They entered into possession of these lands, and treated them as though they were the absolute owners of them. They platted them, and recorded their plat. It is impossible to read this record without concluding that not only the assessing officers, but the relator and Alexander MacKinnon, supposed the interest the MacKinnons had in the lands was property assessable as real estate. Their interest was no more real or valuable whether it was called real estate or personal property. Had it been assessed as personal property, if the assessor had done his duty, it would have been assessed at the same amount for which it was assessed as real estate. The MacKinnons being the owners of this property, it was their duty to pay taxes upon it. The law provides for a board of review, before whom the property owner may appear, if he desires, and ask for a change in his assessment.- Section 18 of the tax law of 1883 provides, among other things, as follows :

“They shall correct all errors in the names of persons and the descriptions of property upon such roll, and in the assessment and valuation of property thereon, and they shall cause to be done whatever else may be necessary to make said roll comply with the provisions of this act.” Act No. 9, Pub. Acts 1883.

Practically the same provisions are found in all of the later tax laws. If the MacKinnons had appeared before this board of review, and suggested their assessment should be changed from a real-estate assessment to a personal-property assessment, is there any doubt as to the power of the board to act ? It is not made to appear they did this. Because the property was not assessed as personal property, but was assessed as real estate, it is now, after the lapse of many years, sought to avoid the payment of any taxes thereon, and to have the money refunded for taxes which the relator at one time thought ought to be paid. This claim does not appeal to our sense of justice, nor accord with our idea of the duty the property owner owes to the State, which makes his person and property secure. It has been held many times in this court that the issuance of the writ of mandamus is not a matter of right, but is a matter of discretion. Before it should issue, it should be made to appear that justice requires its issuance. Tennant v. Crocker, 85 Mich. 328 (48 N. W. 577), Van Akin v. Dunn, 117 Mich. 421 (75 N. W. 938).

The writ is denied, with costs.

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


author: Moobe, J.

text:
    HOWELL v. SHANNON.
    1. School District^ — Consolidation of — Petition for.
    The right of a board of school inspectors to set off a new district, or consolidate old ones, does not depend upon a petition for such action.
    2. Same — Consent of Taxpayers — Delay in Testing Organization.
    Where a school district de faeto, formed by the consolidation of other districts, has been in existence for more than two years, most of which time proceedings by bill in equity to set aside the organization have been allowed to drag along in the circuit court, the Supreme Court will not set aside the action of the board of school inspectors because they may have been mistaken in determining that a majority of the resident taxpayers were in favor of consolidation.
    Appeal from Shiawassee; Smith, J.
    Submitted April 9, 1902.
    (Docket No. 39.)
    Decided May 19, 1902.
    Bill by Thomas J. Howell and others against Aymer E. Shannon and others, composing the board of school inspectors of Fairfield township, to set aside the consolidation of certain school districts. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      Watson & Chapman, for complainants.

      A. L. Chandler and Smith & Hood, for defendants.
   Moobe, J.

The original bill of conaplaint in this case was filed September 16, 1899. The amended bill of complaint was filed December 21, 1900. The case is commenced for the purpose of setting aside an order made by the board of school inspectors consolidating two school districts. The circuit judge was of the opinion the complainants had mistaken their forum; that, if they felt aggrieved at the action of the school inspectors, they should have appealed to the township board; and dismissed the bill of complaint. The case is brought here by appeal.

The record discloses that July 15, 1899, there was filed with the clerk of the board of school inspectors a statement, signed by the director of school district No. 7, that at the annual meeting a majority of the resident taxpayers had voted to consolidate school district No. 7 with school district No. 5; that the vote was 15 yeas, 2 nays. A like notice was received, signed by the director of school district No. 5, in which it was stated: “The question being that school district No. 5 consolidate with school district No. 7, and was carried in favor of consolidation, there being a majority of the resident taxpayers of said district voting in favor of consolidation, and the vote was found yeas 17 and nays 14.”

The school inspectors caused notices to be posted that they would hold a meeting August 1st to consider the matter of such consolidation. At that meeting, because of representations made, it was decided not to consolidate the districts, as the action of school district No. 5 was by some considered illegal. A special meeting of school district No. 5 was had, when the question of consolidation was again submitted, when it was declared the vote stood in favor of consolidation 14, opposed 15. The regularity of this meeting was questioned, and defendants claim the vote of the annual meeting to consolidate was not rescinded.

The board of school inspectors appointed a meeting for August 30th, to again consider the question of consolidation. Proper notices were posted by the township clerk of this meeting. The record discloses that a large number of the resident taxpayers from both districts were present and were heard by the board. The board also examined the assessment roll for the purpose of determining whether a majority of the resident taxpayers of each district were in favor of consolidation, and became satisfied they were. The board then made an order reciting that, both of said school districts having voted in favor of consolidation, the two districts were consolidated, and the new district was called No. 5. An order was also made designating a place for holding the first meeting on the 7th of September, proper notices of which meeting were served. The meeting was held, and the’ district officers were chosen. A school site was secured, and one of the school buildings was moved upon the new site before the first bill of complaint was filed in the case.

The parties in interest doubtless having some question as to the regularity of the proceedings up to the time of the filing of the bill, another special meeting was held in school district No. 5, when it was claimed a majority of the resident taxpayers again voted in favor of consolidation, the vote being 26 y_eas, 12 nays. The board of inspectors held another meeting, and again declared the two districts consolidated. A school meeting of the consolidated district was again held, school-district officers chosen, and a school has been maintained in the new district from thát time until this, and the district has drawn its proportion of public moneys.

The case, though commenced in September, 1899, and a decree made by the circuit judge in December, 1900, has been allowed to drag along, and was not presented to this court until the April term, 1902. In the meantime the only school district in fact in the consolidated territory for two years and eight months has been the new school dis- ■ tr’ict No. 5.

It has been held that the right of a board of school inspectors to set off a new school district does not depend upon a petition for said action. Gentle v. Board of School Inspectors, 73 Mich. 40 (40 N. W. 928). 2 Comp. Laws, § 4654, does not provide in what way it shall be shown to the board of school inspectors that a majority of the resident taxpayers had consented to the consolidation of the school districts. In Clement v. Everest, 29 Mich. 19, in considering the action of a board of school inspectors, Justice Campbell used the following language:

“Irregularities are common and unavoidable in the organization of such bodies; and both law and policy require that they shall not be disturbed except by some direct process authorized by law, and then only for very grave reasons. The policy of our law is to place the whole work of local administration in the hands of the people of the locality, and it cannot be expected that town officers will be always able to conform their actions to the strict rules of technical accuracy. In such matters as concern the public, and do not interfere with private property or liberty, such action as creates municipal bodies and gives them corporate existence cannot be questioned without creating serious disturbance. If the regularity of their organization can be kept open to question indefinitely, no one could ever be sure that any of the taxes or other matters concerning his town were valid, and the whole public business might be blocked by litigation. There are some matters affecting private rights which are scrutinized strictly, because no one can be deprived of private rights without conformity to law. Where one man’s property is taken for public purposes without his consent, the taking must be justified by regular action. But where the organization of a local corporation, as a town or district, is left to the will of any particular body of electors or officers, and they proceed to execute their powers and complete the organization, their executed will ought to stand if there has been a substantial compliance with the policy of the law giving them jurisdiction. Every presumption is to be made in favor of the regularity of such action; and where there is a valid law, and an organization under it which proceeds from the lawful agencies, it should be regarded as entitled to legal standing, unless measures are speedily taken to assail such action by some competent authority. Where an appeal is granted, it must be lawfully prosecuted. Where there is no appeal, the courts will never enlarge their remedies to interfere, where they can avoid it, with existing corporate bodies provided for by law, on any formal ground. The same rule which recognizes the rights of officers de facto recognizes corporations de facto; and this is necessary for public and private security. There are probably few towns or school districts where there has not been some looseness in proceedings to organize them. Such carelessness seldom leads to serious mischief, and where it does there are 'usually sufficient remedies without needless intermeddling.”

For the purposes of this case we do not deem it necessary to express any opinion as to whether the circuit judge was right in holding complainants have mistaken their remedy or not. The record discloses the board. of school inspectors satisfied itself that a majority of the resident taxpayers consented to the consplidation of the two districts, and, acting in good faith, proceeded to consolidate them. The new district at once proceeded to secure a new site, upon which a school building was moved, and where a school has been maintained. A school district de facto has been in existence all this time. We think no sufficient showing has been made to authorize us at this late date-to overturn the action of the board of school inspectors. People v. Every, 38 Mich. 405; Everett Tp. School Dist. No. 3 v. Wilcox Tp. School Dist. No. 1, 63 Mich. 51 (29 N. W. 489).

The decree is affirmed, with costs.

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