author: McAlvay, C. J. Ostrander, J.

text:
    COFFEY v. McGAHEY.
    1. Fraudulent Conveyances — Bulk Sales Act — Sales—Equity— Jurisdiction — Creditors’ Suits — Judgment.
    The objection in a suit to enforce a claim against purchasers of the business of complainant’s debtor, who did not comply with the “sales in bulk” law, that the complainant was not a judgment creditor and was not entitled to relief in equity, should be presented by demurrer; it comes too late at the hearing.
    2. Same — Equity—Jurisdiction—Creditors’ Suits.
    By the terms of the “sales in bulk” law (Act No. 223, Pub. Acts 1905, 2 How. Stat. [2d Ed.] §2612), creditors are given the remedy of impounding property of their debtor, who has not complied with the conditions of the law, 181 Mich. — 15. although, the claim or claims have not been first reduced to judgment.

    3. Same — Adequate Remedy at Law — Equity.
    The remedy of garnishment, conferred by the statute, is not exclusive, but the right to a receiver and other equitable relief necessarily results from the terms of the statute which creates a trust fund in the hands of the purchaser for the benefit of the seller’s creditors.
    4. Same — Adequate Remedy at Law.
    Averments that the debtor absconded after transferring his stock of merchandise, that the provisions of statute were not followed in making the conveyance, and that the purchaser disposed of and transferred the • property to another defendant who is disposing of it, make out a case of equitable cognizance.
    5. Same — Waiver—Saues.
    A waiver, being the intentional relinquishment of a known right, is not to be inferred against a complaining creditor, who did not know the circumstances or the fact that the statute had been violated in making the sale of merchandise.
    Ostrander, J., dissenting.
    Appeal from Kalamazoo; Knappen, J.
    Submitted April 15, 1913.
    (Docket No. 62.)
    Decided July 24, 1914.
    Bill by William J. Coffey against William A. Mc-Gahey and others for the appointment of a receiver, accounting, and injunction. From a decree for complainant, defendants appeal.
    Affirmed.

      Samuel W. Oxenford, for complainant.

      Jesse R. Cropsey (Don B, Sharpe, of counsel), for defendant Baker.

       As to the remedy of creditors where sale is made in violation .of bulk sales law, see note in 39 L. R. A. (N. S.) 374.
      On the question of the constitutionality of bulk sales legislation, see notes in 2 L. R. A. (N. S.) 331 and 20 L. R. A. (N. S.) 160.

   McAlvay, C. J.

This is an appeal by the defendant Herman D. Baker from a decree entered in this cause against him and his codefendants in the circuit court for the county of Kalamazoo, in chancery.

The facts are as follows: Defendant McGahey, who had for some time owned and conducted a certain saloon in the city of Kalamazoo, on July 22, 1908, sold and conveyed the entire stock in trade, fixtures, and personal property owned and used by him in and about said business to defendant Baker in bulk. In making this sale, these parties in no form or manner complied with the provisions of Act No. 228, Pub. Acts 1905 (2 How. Stat. [2d Ed.] § 2612), known as the “bulk sales act.” This was the only property owned by McGahey, and defendant Baker had been acquainted with him but a few days. On the date of said sale defendant Baker took immediate possession of all of said property and proceeded to continue the business. Defendant McGahey absconded for parts unknown, and his whereabouts have not since been known. He was brought into court by publication. Defendant Baker continued this business until August 14, 1908, when he sold and transferred to defendant Felix Schmidt for the sum of $2,500 all the stock in trade, fixtures, tools, and personal property of every kind owned and used by him in and about the said business, being the property purchased from McGahey. Neither of the parties to this sale conformed in any manner to the provisions and requirements of the said “bulk sales act.” Defendant Schmidt' upon his purchase immediately took possession, and was engaged in carrying on the business when this suit was instituted. Complainant had been employed by defendant McGahey some time previous to the date of the sale to Baker in and about these premises as a carpenter in charge of the carpenter work in repairing and remodeling the building occupied by defendant McGahey as a residence upstairs and as his business place on the ground floor, and so worked for him up to and including the date of sale, at which time he was indebted to him in the sum of over $200.

Complainant filed his bill of complaint in this cause against these defendants for himself and in behalf of all the creditors of defendant McGahey, setting up at length the foregoing facts, and asking the aid of the court in equity in the premises, to decree the amount due him from McGahey, and that defendants Baker and Schmidt be declared receivers of all of the said stock of merchandise and fixtures, and the proceeds and avails thereof, for his benefit and that of the other creditors who might intervene, and that Baker, and Schmidt come to a full accounting for the said property and the proceeds of the same, and that a receiver be appointed in their stead, and that pending the action an injunction be granted.

To this bill of complaint, defendants Baker and Schmidt filed their several answers under oath. The answer of defendant Baker, which is the only one necessary to be considered by this court, he alone having appealed, admits all but three of the charges of the bill of complaint, and the record shows those were admitted upon the hearing of the cause.

Defendant on this appeal contends that the court in equity has no jurisdiction of this cause, for the reasons that complainant is not a judgment creditor, that complainant has a complete and adequate remedy at law, and in any event that the record shows complainant has waived any right of action which he might have had against defendant Baker or the goods in question.

Defendant did not demur to the bill of complaint or claim the right of demurrer in his answer on jurisdictional grounds. It does appear that, when complainant was sworn as a witness and proceeded to prove the indebtedness of McGahey to him, an objection was made to the admission of any such evidence, unless it appeared that the claim had been reduced to judgment. Such a question cannot be raised after an answer upon the taking of proofs at a hearing. This court has repeatedly held that such an objection comes too late if made for the first time at the hearing of the cause. Stockton v. Williams, Walk. Ch. (Mich.) 120; Wales v. Newbould, 9 Mich. 45, and authorities cited; F. H. Wolf Brick Co. v. Lonyo, 132 Mich. 162 (93 N. W. 251, 102 Am. St. Rep. 412); Negaunee Iron Co. v. Iron Cliffs Co., 134 Mich. 264 (96 N. W. 468).

In each of the foregoing cases this court has held the question of jurisdiction should have been raised by demurrer, where the grounds of the objection appear upon the face of the bill; that, after defendants have answered, put the case at issue upon the merits, and taken proofs on that issue, they cannot raise the question of jurisdiction. The same rule has been recognized by the Federal courts. Hollins v. Iron Co., 150 U. S. 371 (14 Sup. Ct. 127).

In all cases where the question has been raised before this court, it has held that the question of jurisdiction is waived, when no demurrer is imposed until after issue is joined, and proofs are taken.

Appellant contends that it appears that complainant is not a judgment creditor, and therefore has no standing in a court of equity. The admitted facts show that defendant McGahey disposed of all of his property, absconded from the jurisdiction of this State, and his whereabouts could not be ascertained-; that process could not be had upon him in Michigan. It would have been impossible under the circumstances for complainant to obtain a judgment against the principal defendant McGahey. We find from the authorities it is not an inflexible rule that a judgment at law must be obtained by a creditor before resort to equity. There are exceptions to this rule in cases where a judgment cannot be obtained because the debtor is dead, or has absconded from the State, and has no property in the State. This was recognized by this court in Earle v. Kent Circuit Judge, 92 Mich. 285, 289 (52 N. W. 615), where the court said:

“The complainant claims that while the general rule in all the States, statute or no statute, is that there must be a judgment and a return of. execution unsatisfied before a resort can be had to equity, still that there are, and always have been, exceptions to this general rule in special cases, as where a judgment cannot be obtained because the debtor is dead, or has absconded, or removed from the State, or is a nonresident. This claim is supported by the following among other cases [citing many authorities].

“The statute * * * cannot be said to point out the only conditions of equitable relief in cases of this kind. If it should be held to apply only to home judgments, as the New York statute, of which ours is a copy, has been interpreted in that State (Tarbell v. Griggs, 3 Paige [N. Y], 207 [23 Am. Dec. 790]), it would not, in our opinion, bar equitable relief in cases where a compliance with the statute was rendered impossible by the death, absconding, or removal from the State, or nonresidence of the debtor.”'

In the case cited, from which these excerpts are taken, the amended bill showed that a New York judgment had been obtained, yet the court recognized the exceptions to the general rule. Further, the remedy in the instant case is given by the statute, by which any and all creditors may, as soon as knowledge comes to them that the requirements of the statute have not been followed, proceed immediately, not to set aside the sale, but to impound the property or its proceeds. Upon application of any of the creditors, “any purchaser shall become a receiver and be held accountable,” etc., is the reading of the statute, and for this reason the judgment creditor rule does not apply.

The contention that complainant has a complete and adequate remedy at law is based upon the decisions of this court in construing the bulk sales act. The bill of complaint was filed in behalf of complainant and all other creditors of defendant McGahey. It sets up an equitable cause of action, and shows that this property is being sold and disposed of by defendants, and complainant will be left remediless, unless the court interferes. Its charges and averments of fact are not in dispute. There is no pretense on the part of appellant that any of - the requirements of the bulk sales act were followed by either party to the sale. The defendant McGahey had absconded. after the transfer of all his property to defendant Baker, who in turn sold the property to defendant Schmidt before the institution of this suit. The bill prays for an accounting, a receiver, and an injunction.

The bill of complaint is not filed upon the theory of a judgment creditor’s bill, or a bill in aid of execution, but upon the theory that the statute made the transfer to defendant Baker absolutely void as to creditors; that creditors of McGahey are entitled to reach this property and apply it upon their claims; that for such purpose it is necessary to have a receiver, an injunction, and an accounting. It is contended by complainant that by reason of the circumstances of this case he has no adequate remedy at law.

The bulk sales act has been before this court for consideration and construction several times, and, from an examination of the decisions of these cases, it is clear that, while the court has held a remedy by garnishment was permissible, it has refused to hold that it was the exclusive remedy under the statute. In the decisions upon the questions raised under this statute, this court has been unanimous only in holding that the law is constitutional, and that in case of a sale void thereunder the seller is a necessary party. To deny jurisdiction to a court in equity would be contrary to a fair interpretation of this statute, which, by its title and the language used in it, indicates that it was enacted for the purpose of preventing frauds by debtors upon creditors, and made certain transfers “void as against the creditors of the seller,” if the requirements of the act were ignored, and, further, made the purchaser in such cases a “receiver” to be held accountable to the creditors of the seller upon application of any of such creditors.

This is not a statement of the arguments made by counsel in previous cases in favor of exclusive jurisdiction in equity, but is in support of the proposition that it was the legislative intent not to deprive equity of jurisdiction. The statute creates a trust fund in the hands of the purchaser for the benefit of all creditors. The profession understands that the usual proceeding where an application is made to a court by a creditor against a receiver or trustee is by a bill or petition in equity, and such proceeding is not like one in garnishment where the reward inures only to the benefit of the swift creditor, but is a proceeding where every creditor is entitled to his just proportion of a trust fund. Cases are arising under this statute where an action at law is not an adequate remedy.

Bixler v. Fry, 157 Mich. 314 (122 N. W. 119), was a case quite similar to the instant case. In one of the opinions written by Mr. Justice Moore, it was said:

“The questions raised by this record have not been passed upon by this court, and, so far as we are advised, by any court. The effect of the demurrer to the bill is to admit the truth of its averments. * * * The case is unlike the two cases already cited, which were proceedings in behalf of a single creditor. The bill is filed, not only in behalf of the complainant, but in behalf of all the other creditors. It calls for an accounting and for a receivership. It is not necessary to quote the provisions of Act No. 223, Pub. Acts 1905, as they are so easily accessible, but we think a reading of them establishes the authority of a court of equity to interfere in such a case as is stated in the bill of complaint.”

In the instant case all allegations setting up a case warranting equitable relief are contained in the bill of complaint. It makes a stronger case for complainant than that stated in Bixler v. Fry, supra. These facts alleged are admitted, and from them it appears that complainant has no adequate remedy at law. He has brought himself within the rule which permits the maintenance of a bill by one who is not a judgment creditor, if under the circumstances of this case such a showing is necessary.

Appellant also contends that in any event the complainant is not entitled as a creditor to recover under this void sale for the reason that he waived all rights under the statute. The record shows that this claimed waiver occurred after the completion of the sale, and was entirely without consideration, during a brief conversation had by McGahey, in the presence of Baker, with complainant, who knew nothing about the sale or the circumstances surrounding it, or that it had been made contrary to the provisions of law. This contention requires but brief consideration. It is too well settled to require citation of authorities that there can be no waiver of rights without knowledge of the facts upon which it is based. A waiver has been aptly defined, as follows:

“It is an intentional relinquishment of. a known right, or such conduct as warrants an inference of a relinquishment of such right.”

The record shows no waiver on the part of complainant.

Our construction, therefore, is that by the provisions of this act jurisdiction is given to courts in equity to grant relief to creditors. This jurisdiction is not exclusive. Musselman Grocer Co. v. Kidd, Dater & Price Co., 151 Mich. 478 (115 N. W. 409).

The decree of the circuit court in favor of complainant and against defendant and appellant Herman D. Baker is as to him in all respects affirmed, with costs of both courts in favor of complainant and against such defendant and appellant.

A decree will be entered in this court accordingly.

Brooke, Kuhn, Stone, Moore, and Steere, JJ., concurred with McAlvay, C. J. Bird, J., concurred in the result.

Ostrander, J.

(dissenting). The opinion of Mr. Justice McAlvay covers considerable ground, and is prepared so as to rule several distinct points. He first rules that, because no demurrer was interposed, defendant (appellant) was precluded at the hearing below, and is precluded in this court, from raising the question of the jurisdiction of a court of equity in the premises. Secondly. He rules that the remedy in the instant case, by which I suppose he means the remedy sought by the bill, is given by the statute, meaning, of course, the sales in bulk act—

“By which any and all creditors may, as soon as knowledge comes to them that the requirements of the statute have not been followed, proceed immediately, not to set aside the sale, but to impound the property or its proceeds. * * * The judgment creditor rule does not apply.”

Thirdly. He rules that the bill was not filed—

“Upon the theory of a judgment creditor’s bill, or a bill in aid of execution, but upon the theory that the statute made the transfer to defendant Baker absolutely void as to creditors; that creditors of Mc-Gahey are entitled to reach this property and apply it upon their claims; that for such purpose it is necessary to have a receiver, an injunction, and an accounting.”

Fourthly. He rules that the sales in bulk act gives jurisdiction to equity to grant relief to creditors, but that the jurisdiction so given is not exclusive. All of these rulings are of such general importance as to justify a somewhat critical study of their soundness.

If the statute referred to does not give this complainant a remedy, if he is required to resort to general equity jurisdiction and equity rules to maintain his right to file the bill, he must be a judgment creditor. Nothing is better settled than that a simple contract creditor whose claim is not reduced to judgment, and who has no express lien upon his debtor’s property, has no standing in a court of equity to obtain seizure of the debtor’s property and its application to his debt. We have, further, a statute which recognizes the general rule (1 Comp. Laws, §§ 436, 437) in defining the jurisdiction of chancery courts. Certain facts must appear to sustain a judgment creditor’s bill, and not appearing, the court cannot proceed. Vanderpool v. Notley, 71 Mich. 422 (39 N. W. 574); Grenell v. Ferry, 110 Mich. 262 (68 N. W. 144). Jurisdiction in such cases is not acquired because a defendant fails to question it. None of the cases cited in the opinion sustains a contrary doctrine. In Hollins v. Iron Co., 150 U. S. 371 (14 Sup. Ct. 127), it appearing that such a suit had been dismissed upon the merits, it was held that it should have been dismissed for want of jurisdiction. Want of jurisdiction of the subject-matter may be urged at any time.

He is right in finding that the bill in this cause is not, and was not intended to be, a judgment creditor’s bill. The solicitor for complainant leaves us in no doubt upon the subject. He says, in the brief:

“Section 3 [referring to .the sales in bulk law] carves out a new remedy, not before known to the law.”

And also:

“One cannot read this statute without at once con-eluding that it was the intention of the legislature to give the general creditor one new, complete remedy by one action and not compel him to pursue his remedy through several courts.”

In this connection it may be observed that the decree appealed from is nothing more or less than a money judgment against appellant Baker primarily and against defendant Schmidt secondarily. There is no decree against the goods and no provision in the decree for selling them to satisfy complainant’s demand.

The second and the fourth rulings which I have referred to are the important ones. They agree only in part with complainant’s theory.

The statute makes a sale of goods in bulk void as to creditors of the seller, unless accompanied by certain specified formalities. What, in such cases, is the remedy of the creditor of the seller? If the statute gives a remedy, it is clearly a remedy in equity. If it was the legislative intention that the merchandise transferred in violation of the statute, or the value thereof, should be a fund for payment of the debts of the seller, the remedy is in equity.

In Musselman Grocer Co. v. Kidd, Dater & Price Co., 151 Mich. 478 (115 N. W. 409), it was the contention of appellants that:

“The legislature meant that on the application of any creditor, and after hearing, the court would make an order declaring the purchaser to hold the goods for the benefit of all the creditors of the seller pro rata.”

The contention was overruled; the justices sitting in that case holding that:

“It would destroy the intent of the legislature in passing the act to require the intervention of a court of equity.”

The action was garnishment, and a personal judgment against the purchaser of the goods for the amount of the seller’s debt to the plaintiff was fiffinnsd

In Bixler v. Fry, 157 Mich. 314 (122 N. W. 119), which was a suit in equity, the bill of complaint charged that one R. S. Drew was a retail merchant who became indebted to the complainant for merchandise and also became indebted to others; that Drew sold his stock of goods to defendant Fry, in bulk, without complying with the statute, whereby said Fry “became and is a receiver and liable to said creditors for all goods * * * that have come into his possession by virtue of the said sale.” It was charged that Drew was insolvent. In behalf of complainant and all other creditors of Drew, it was prayed that Fry appear and answer, that he be decreed to hold all of said goods, etc., as receiver and in trust for creditors of Drew, that he come to an accounting and turn over to the court sufficient of the goods to pay Drew’s debts, the property to be disposed* of and proceeds distributed under the order and direction of the court. No personal judgment against Fry was asked for; but the attempt was to follow the goods as a fund for payment of creditors. The bill was filed according to the theory that the statute, by its terms, imported, if it did not create, an equitable remedy. The court below overruled a demurrer to the bill, and in an opinion used the language following:

“Section 3 of Act No. 223 of the Public Acts of 1905, Michigan, reads:

“ ‘Any purchaser, transferee, or assignee shall upon application of any of the creditors of the seller, transferror or assignor, become a receiver and be held accountable,’ etc.

“The purchaser, transferee, or assignee does not become a receiver and accountable until appointed as such, and he cannot be so appointed, except by a court of chancery. To delay the appointment until the creditors become judgment creditors would render the statute practically of no benefit in many cases. I do not care to be responsible for such a construction, but rather prefer to give the construction that will secure the results evidently intended by the legislature. Whether Drew ought not to have been made a party, is a question I do not now pass upon, as later he may be added, if deemed necessary. This would seem true, unless made a party, no claim can be made out against Drew in this proceeding. Judgment would have to first be obtained in an action at law against him before the funds in the hands of the receiver could be applied to the liquidation of complainant’s claim. The necessity of the case demands that the purchaser be placed in a position of responsibility at the earliest possible moment. Largely for this reason, I overrule the demurrer, granting the usual time to plead.”

From the order overruling the demurrer, the defendant appealed. Two of the eight justices who heard the argument were of opinion that the bill was demurrable because Drew was not made a party defendant, and two favored an affirmance of the decree upon the ground that the statute “establishes the right of a court of equity to interfere in such a case.” Four of the justices were of opinion that prior decisions of the court disposed of the contention that the statute itself provided for or indicated a proceeding in rem, or for the exclusive jurisdiction of courts of equity, and held that a court of equity would assume jurisdiction only when such jurisdiction was warranted by general rules.

Having held that to require the intervention of a court of equity in such cases would destroy the intention of the legislature, having held that, the purchaser of the stock of goods is liable in garnishment, having held (Porter v. Goudzwaard, 162 Mich. 158 [127 N. W. 295]), that a creditor of the seller of a stock of goods in bulk may attach the goods, it would seem to be settled that the statute we are considering does not give a remedy. It would seem that the court had heretofore been of opinion that creditors of the seller have an adequate remedy at law. And the opinions referred to cannot be harmonized with the theory that the goods sold constitute a trust fund for creditors.

If the effect of these decisions is not that the purchaser of the goods is liable to the creditors of the seller to the extent of the value of the goods, and that such creditors have such, and only such, remedies as, independent of the particular statute, are afforded by law, then I have misunderstood them. If my Brother McAlvay’s conclusions are sustained, we come to this proposition, viz.: Any creditor of a seller of a stock of goods in bulk may, at Ms election, pursue the buyer at law, or pursue the goods or their proceeds in equity, without having secured a judgment at law; equitable jurisdiction being grounded upon the statute itself.

How, in practice, can such a proposition be sustained? If the first creditor who acts files a bill in equity, are other creditors thereby deprived of the right to pursue the purchaser in actions at law? If, in a particular case, some creditor institutes garnishment proceedings or attachment and garnishment proceedings, and some creditor later files a bill in equity, will the equity court administer so much of the fund as shall remain after the plaintiff in the law action is satisfied, or will it dislodge the plaintiff in the law case and oblige all creditors to accept an equitable division of the property or of its proceeds? These are questions which at once suggest themselves.

The statute either leaves creditors to such remedies as existed when the law was passed or else it provided a new remedy. If it provided a new remedy, it did so in the words:

“Any purchaser * * * who shall not conform to the provisions of this act shall, upon application of any of the creditors of the seller, * * * become a receiver and be held accountable to such creditors for all the goods, wares, merchandise, and fixtures that have come into his possession by virtue of such sale.”

If it provided a new remedy, it is necessarily an exclusive remedy. The unlawful sale is void. The goods, as to his creditors, belong to the vendor. The vendee is a receiver “accountable to such creditors for all the goods * * * that have come into his possession by virtue of such sale.”

In my opinion, it would have been logical if in the initial case presented this court had agreed with the contention of the appellant and had held that the legislative intention, in case the law was disobeyed, was to make the buyer a trustee for creditors of the seller, responsible to all creditors alike for the value of the goods. Such a holding and such a construction of the act would affirm the idea of a new and complete remedy under the statute and preclude the idea that the swift creditor may recoup himself, even to the extent of the entire value of the goods sold, in garnishment or other proceedings at law. But the court rejected this construction of the act and in so doing, I repeat, necessarily decided that no new remedy was given by the statute. Independent of statute, a simple contract creditor has no remedy in equity.

If the construction then placed upon the act was wrong, it can be remedied by overruling the decision and those which followed it. I do not favor such a course, believing the remedy at law to be fairly adequate.

One other proposition remains to be considered, and that is whether the bill can be sustained as a judgment creditor’s bill, upon the ground that it was impossible by reason of the debtor’s absence to obtain a judgment. It was filed upon no such theory, but according to a theory which I have stated. Moreover, there is not here present as there was in Earle v. Kent Circuit Judge, 92 Mich. 285 (2 N. W. 615), the fact that the demand could not be satisfied by an action at law. Plaintiff might have proceeded by attachment and garnishment.

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


source: Caselaw Access Project

author: Bird, J. Brooke, J.

license: Public Domain

text:
    CITY OF BATTLE CREEK v. GOGUAC RESORT ASSOCIATION, LTD.
    1. Waters and Watercourses — Riparian Rights — Cities — Water Supply.
    Where complainant, a municipal corporation, purchased land on the border of a small lake for the purpose of constructing a system of water supply, and the vendor made the conveyance with knowledge of the intention to expend money in building a ¡pumping station, neither he nor his assignee or successor in title was entitled to pollute the waters of the lake by using his adjacent resort for bathing purposes.
    2. Same — Damages—Diversion—Municipal Corporations.
    The right of a. riparian owner in the water of an inland lake is usufructuary only, but the diversion for municipal purposes will not be restrained, unless the use results in injury to the complaining proprietor.,
    3. Same.
    The grantee of the proprietor who made the sale to such municipality could not complain of any use which would be valid, as to original grantor, and also, would be enjoined from polluting the water in any manner which the grantor could not himself do.

      4. Same — Drinking Purposes — Injunction.
    Pollution of the water of a lake by bathing is an unreasonable and unlawful use as to a city which is entitled to make use of the water for drinking and domestic purposes.
    Stone, Ostrander, Bird, and Moore, JJ., dissenting.
    Appeal from Calhoun; North, J.
    Submitted April 25, 1913.
    (Docket No. 88.)
    Decided July 24, 1914.
    Bill by the city of Battle Creek against the Go'guac Resort Association, Limited, and others for an injunction. From a decree for complainant, defendants appeal.
    Affirmed.

      D. C. Salisbury (O. S. Clark, of counsel), for complainant.

      Stewart & Sabin, for defendants.
   Bird, J.

The complainant, as well as the defendant association, are riparian owners on Lake Goguac. This lake is near the city of Battle Creek, and covers 360 acres, and is fed by subterranean springs. Complainant purchased a parcel of land bordering on the lake in 1886, and commenced to take therefrom its water supply in 1887. From that time on, its consumption of the water increased, until it reached upwards of 3,000,000 gallons per day at the time this suit was filed. The defendant association is the owner of lands bordering on the lake adjoining those of complainants. It maintains a summer resort and bathing beach during the summer months. Complainant has for some time objected to the bathing at the resort, on the theory that it polluted and rendered the water unfit for the use of its inhabitants. Its protests were not heeded by the association, nor by the other defendants who own and manage it. In order to enforce what it conceived to be its rights, this bill was filed to perpetually restrain the defendants from operating their bathing beach. The chancellor who heard the case granted the relief prayed, and the defendants have appealed. The most serious question raised by defendants is that the complainant has no such right to the use of the water as entitled it to the relief granted.

Both complainant and defendants are riparian owners, and as such, in common with others, they own the bed of the lake, and by virtue of such ownership both have a right to a reasonable use of its waters for domestic, agricultural, and mechanical purposes. Clute v. Fisher, 65 Mich. 48 (31 N. W. 614); 40 Cyc. p. 635. Unless the complainant can show that it has some right other than that which arises by reason of riparian ownership, it has no greater right in the waters than have the defendants. As a riparian owner, the complainant has no right to divert the water for the purpose of selling it to the inhabitants of Battle Creek. Stock v. City of Hillsdale, 155 Mich. 375 (119 N. W. 435); Smith v. City of Rochester, 92 N. Y. 463 (44 Am. Rep. 393); Ulbricht v. Water Co., 86 Ala. 587 (6 South. 78, 4 L. R. A. 572, 11 Am. St. Rep. 72); Lord v. Water Co., 135 Pa. 122 (19 Atl. 1007, 8 L. R. A. 202, 20 Am. St. Rep. 864); Sparks Manfg. Co. v. Town of Newton, 57 N. J. Eq. 367 (41 Atl. 385).

The question therefore gets around to this: Whether one riparian owner is entitled to equitable relief as against another riparian owner, to aid him in diverting the water to uses other than for riparian purposes. If this were a suit by complainant to protect its right to some reasonable use of the water incidental to its riparian ownership, it would present a different question, but when it seeks relief of this character to facilitate its business of unlawfully diverting the water, it prays for relief to which it is not entitled as a mere riparian owner. But counsel argue that the complainant’s right is something more than a riparian right, and point to a legislative act whereby, the city was authorized to go beyond its corporate limits to acquire water rights and, when acquired, to protect such rights against pollution. Act No. 428, Local Acts of 1887. We are unable to see how this act has any force in these proceedings. That act authorized the complainant to go beyond its corporate limits and acquire water rights by purchase or condemnation, which right it did not then have until the act was passed. Houghton Common Council v. Mining Co., 57 Mich. 547 (24 N. W. 820). In pursuance of this act, the city purchased a small parcel of land on the shore. The city has never exercised its authority under this act, except to become a riparian owner. If in pursuance of this act complainant had acquired all the water rights at Goguac Lake, either by purchase or condemnation, it would then be in a position to insist upon what it is now insisting upon. The act does not attempt to enlarge the riparian rights of the complainant at the expense of the other riparian owners, and indeed the legislature would have no authority to confer such rights upon the city without compensation being made therefor.

Another claim made by complainant is that it has acquired the right by prescription to take its water supply from the lake. Defendants’ riparian rights began in 1885, before complainant’s did. When complainant purchased, it was with the view of putting down wells; later it installed an intake. As the use of the water by the city increased,,the lake was lowered to such an extent that defendants filed a bill to restrain complainant from lowering the water and interfering with their riparian rights. The city recognized the rights of the defendants and other riparian owners by diverting Minges brook into the lake, which action brought the lake back to its normal level, since which time it has been so maintained. After diverting Minges brook into the lake, the chancery suit was discontinued by stipulation. The record shows no such adverse use of the water as would ripen into a prescriptive right; but, even if we assume to the contrary, the right acquired would be no more than the right to take the water subject to the use which the defendants and their predecessors in title have made of it since the resort was established in 1885. The prime object of the city in filing this bill was not to establish its own right to use the water as it has been using it, but to restrain defendants from making the use of it which they have made since 1885. If this relief is to be granted, it should be based upon some right. The city has shown no prescriptive right, and as a riparian owner it would be entitled to no such relief. Were the city attempting to establish its right to take the water as it has done in the past, other questions might arise which are not important on this record.

In view of the conclusion reached upon this question, it will be unnecessary to consider the other questions raised. The decree of the trial court will be reversed, and the bill dismissed, with costs to defendants.

Stone, Ostrander, and Moore, JJ., concurred with Bird, J.

Brooke, J.

I find myself unable to agree with the conclusions of my Brother Bird in this case. In addition to the facts stated by him in his opinion, it should be noted that the complainant city of Battle Creek purchased the land upon which it located its waterworks from one Surby, who was at that time and for many years had been conducting a summer resort in a small way upon the banks of the lake. He sold to the city a portion of his land with the knowledge that the city intended to erect a pumping station thereon and to supply its citizens with, drinking water from the lake. His resort business at that time was insignificant, though the record tends to show that bathing by his patrons was indulged in to some extent. Surby not only stood by and saw the city expend a large amount of money in the establishment of its plant, but actually sold the land to the city to be used for that purpose. Some time after the city had placed in operation its waterworks, the defendant resort association purchased from Surby his adjacent lands, and rebuilt the buildings and added many attractions in order to induce large patronage; among these was the establishment of a bathing beach with dressing rooms and other necessary accommodations for its patrons. It further appears that at the time the city established its pumping station upon the shores of the lake, the lake had no visible inlet or outlet, but was supposed to be fed by springs. The use of the water by the complainant city had a tendency to reduce the mean level in the lake, and after some years the recession of the waters became so marked as to cause much complaint from other riparian owners, whereupon the city secured the right to divert a small stream called Minges brook from its natural course into the southerly end of the lake, since which time it has been able, through a proper manipulation of the waters of such brook, to maintain the lake at its normal level, although in the meantime the daily consumption of the city has reached something like 3,000,000 gallons. It will thus be seen that the taking of the water from the lake by the complainant inflicts no injury upon the defendant or other riparian owners. It further appears that since the establishment of said plant the city limits of the city of Battle Creek have been extended so that they now embrace the entire site of the waterworks plant upon the banks of the lake as well as a further very considerable frontage, apparently used as a public park.

My Brother Bird’s opinion proceeds upon the theory that the use complainant is making of the waters of this lake is both unreasonable and unlawful. Under the circumstances disclosed by this record, I find myself unable to agree with him on either proposition. No person has a property right in water. The right is usufructuary only, and the modern authorities all tend to establish the principle that one riparian owner may not restrain the use of the water by another riparian owner for nonriparian purposes, unless such use results in injury to the first. The very recent case of Stratton v. Mt. Hermon Boys’ School, 216 Mass. 83 (103 N. E. 87), is instructive upon this point. There the defendant, a riparian owner, took the water from a running stream and diverted it to nonriparian lands upon a different watershed, for use upon lands wholly separated from its riparian lands. The case contains a very full review of all the authorities. It is there said:

“The question in such a case is not whether the diversion, being for a legitimate use, is in quantity such as is reasonable, having regard to all the circumstances, as it is in cases of distinctly riparian uses, but only whether it causes actual damage to the person complaining. * * * That there can be no recovery for a diversion of water for a proper use, so small in quantity and of such character that it occasions no injury to the present or future use of the lower riparian land is recognized in other jurisdictions” — citing cases.

I am further of the opinion that the complainant is entitled to the relief prayed upon the ground of estoppel. As before pointed out, the parties held title as riparian owners from a common grantor, Surby. It is to my mind entirely clear that Surby, having sold a part of the land belonging to him upon the shore of the lake for the purpose of enabling the city to establish a system of waterworks for the supplying of drinking water to its inhabitants, would not be heard to say that he had the right to make such use of the waters upon his adjoining lands as would render waters taken by the city unfit for the contemplated use. When the resort association purchased from Surby, it purchased with constructive knowledge that the city had bought from its grantor, and with actual knowledge of the fact that the city was then taking its supply of drinking water from the lake by means of its plant, plainly visible. Under the circumstances I am of opinion that Surby’s grantee is under exactly the same disability that would attach to Surby had he attempted to render his grant valueless by a pollution of the waters immediately after the grant was made.

I am further unable to agree with the proposition that the use which the defendant resort association is making of the waters of the lake is, under the circumstances, either reasonable or lawful. In the case of People v. Hulbert, 131 Mich. 156 (91 N. W. 211, 64 L. R. A. 265, 100 Am. St. Rep. 588), the court held, though with some apparent difficulty, that Mr. Hulbert, a riparian owner, could not be punished for bathing in this lake, although his act was in violation of a legislative enactment. Act No. 428, Local Acts 1887. Whatever may be said of the propriety of this decision, and its soundness is questioned by complainant, it is apparent that the court was mindful of the possibility of future developments when it very carefully limited the effects of the decision to the single point then in issue. Mr. Justice Moore, in concluding his opinion, said:

“In what we have said we do not mean to intimate that an upper proprietor may convert his property into a summer resort, and invite large numbers of people to his premises for purposes of bathing, and give them the right possessed only by the riparian owner and his family. We are undertaking to decide only the case which is presented here.”

This court thus clearly foreshadowed its probable action if such a case arose. It is unnecessary to predicate complainant’s right to relief upon the fact that the health of 30,000 people is endangered by defendants’ unlawful acts. The city as a riparian owner, with but a single resident upon the land who used or was entitled to use the waters of the lake for drinking purposes, would have the absolute right to enjoin his neighbor from making such use of the water as would render it unfit for drinking purposes.

Defendants filed a cross-bill, in which it asks that complainant be restrained from diverting any of the waters of the lake through its pipes. Even if complainant’s use of the water was wrongful, injunctive relief would be denied. Stock v. City of Hillsdale, 155 Mich. 375 (119 N. W. 435).

I am of opinion that the decree of the circuit court should be affirmed, with costs to complainant.

McAlvay, C. J., and Kuhn, and Steere, JJ., concurred with Brooke, J.


author: Bird, J.

text:
    REUTER HUB & SPOKE CO. v. HICKS.
    1. Constitutional Law — Corporations — Annual Reports — Default in Filing — Directors and Officers- — Liability.
    Act No. 232, Pub. Acts 1903, as amended (4 How. Stat. [2d Ed.] §§ 9532, 9543), charging the directors of a corporation with liability for the debts thereof in case of failure to file its annual report in the office of the secretary of State, is sufficiently entitled as “an act to revise and consolidate the laws providing for the incorporation of manufacturing and mercantile companies or any union of the two, and for the incorporation of companies for carrying on any other lawful business, except such as are precluded from organization under this act by its express provisions, and to prescribe the powers and fix the duties and liabilitiés of such corporations.”
    2. Same.
    The title is sufficient, although it does not indicate that a penalty is prescribed as to the individual directors.
    3. Same — Due Process of Law.
    No penalty being exacted until the parties have had their day in court, the statute does not violate the constitutional requirement of due process of law.
    4. Corporations — Liability of Directors — Annual Reports.
    Where a corporation was in default for filing its annual report as required by Act No. 137, Pub. Acts 1907, as amended (4 How. Stat. [2d Ed.] § 9543), the directors were not relieved of liability for an indebtedness incurred after the filing of the last report, because the annual report was, in fact, filed two days after the 11th of March; as soon as the liability became fixed, it remained enforceable against the directors, though the action was not instituted during the period of default.
    Certiorari to Clinton; Searl, J.
    Submitted April 29, 1913.
    (Docket No. 41.)
    Decided July 24, 1914.
    Assumpsit by Reuter Hub & Spoke Company against John C. Hicks and another to enforce the statutory liability of defendants as directors of a corporation which made default in filing its annual report. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Claude R. Buchanan and F. A. Stace, for plaintiff.

      William M. Smith and Wilson & Cobb, for defendants.
   Bird, J.

On the 7th day of September, 1908, the Michigan Wagon & Manufacturing Company became indebted to plaintiff for a car load of spokes in the sum of $1,842.25. Failing to make payment as agreed, the plaintiff began this suit to recover for the same against the defendants, who were directors of the Michigan Wagon & Manufacturing Company, because of the failure of the company to file its annual report with the secretary of State for the year ending on the last day of February, 1909. Defendants demurred to the declaration, and have thereby raised three questions which demand a solution:

(1) For the reason that section 12 of Act No. 232 of the Public Acts of 1903 as amended is unconstitutional and void, in that the law containing said section embraces more than one object, and, further, that the object is not embraced within its title in violation of section 21 of article 5 of the Michigan Constitution.

(2) For the reason that said section is in violation of the “due process” clause of the fourteenth amendment to the Federal Constitution.

(3) It not appearing in the declaration that the corporation was in default when the suit was commenced, it cannot be maintained.

The title of Act No. 232 reads:

“An act to revise and consolidate the laws providing for the incorporation of manufacturing and mercantile companies or any union of the two, and for the incorporation of companies for carrying on any other lawful business, except such as are precluded from organization under this act by its express provisions, and to prescribe the powers and fix the duties and liabilities of such corporations.”

The gist of appellant’s contention is that Act No. 232 of the Public Acts of 1903 (4 How. Stat. [2d Ed.] § 9532 et seq.), is unconstitutional, because of the fact that its title gives no hint that the act included a fine upon the directors or a confiscation of their property for a default of the corporation. This objection raises the question as to whether it is necessary for the title of an act regulating or prohibiting a business to recite that a penalty is prescribed for a violation of certain of its provisions. This question was directly decided in Hartford Fire Ins. Co. v. Raymond, 70 Mich. 485 (38 N. W. 474), and it was there held that such an omission would not render the act unconstitutional. To the same effect are the cases of Robison v. Miner, 68 Mich. 549 (37 N. W. 21); People v. Miller, 88 Mich. 383 (50 N. W. 296); People v. Huntley, 112 Mich. 569 (71 N. W. 178); Westgate v. Township of Adrian, 161 Mich. 333 (126 N. W. 422); Johnson v. Sergeant, 168 Mich. 444 (134 N. W. 468).

Perhaps the argument of counsel goes somewhat further than this question when it is stated by him that, if the title indicates that a penalty may be prescribed for the corporation, no words are used to indicate that the directors are involved therein. It is common knowledge that the affairs of a corporation are generally directed and controlled by a board of directors. The .board of directors is an essential element of the corporation, and it is through such board that a corporation usually acts, and therefore we think it would follow that a title which prescribed certain duties and powers of a corporation would carry with it notice to the legislator and layman that new duties might be imposed upon the directors of such corporations.

The State, by reason of its repeated and unsuccessful efforts to enforce obedience to certain provisions of its incorporation laws, respecting the making and filing of annual reports, has placed certain duties upon the corporation and directors with reference to the making and filing of such annual reports and provided penalties for a failure to observe them. These duties and penalties apply alike to all corporations and directors of a class. None of the prescribed class is exempt. And no penalty is exacted from any director until he has had his day in court. We fail to see anything in this legislation which violates the “due process clause” of the fourteenth amendment of the Federal Constitution.

The third point raised is that, inasmuch as the corporation filed its report on the 13th day of March, and was thereby in default only two days, and this suit was not begun till the 31st of March, the default was thereby cured, and that no suit could be thereafter maintained against the directors. The contention, in short, amounts to this: That no suit can be maintained against a director unless it is commenced during the period of default. That portion of Act No. 137, Pub. Acts 1907 (4 How. Stat. [2d Ed.] § 9543), which is material to this question, reads:

“If any corporation neglect or refuse to make and file the reports required -by this section within the time herein specified, and shall continue in default for ten days thereafter, its corporate powers shall be suspended thereafter until it shall file such reports, and it shall not maintain an action in any court of this State upon any contract entered into during the time of such default; and any director of such corporation so in default, who has neglected or refused to join in the making of such report, shall be liable for all the debts of such corporation contracted since the filing of the last report of such corporation,” etc.

It was obviously the intention of the legislature to penalize both corporation and directors for a failure to file the annual reports. It appears to be just as clear that the legislature intended to relieve the corporation of its default as soon as it complied with the law. There is nothing, however, in the statute which indicates that the legislature intended to relieve the directors from liability after it became fixed by filing the report. The directors on the 11th day of March became liable for all the debts of the corporation contracted since the filing of the last report. After this liability once became fixed, we must presume that it continues, unless there is something in the statute which relieves them. If the legislature intended that directors should be relieved of the liability when the report was filed it is very singular that it did not make use of some language which would evidence that intent, inasmuch as it did that precise thing with reference to the corporation. We think the intention of the legislature was to make the debts contracted since the filing of the last report a fixed liability against the directors on March 11th, and that they are not relieved therefrom by the subsequent filing of the report.

The judgment of the trial court is affirmed.

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


author: Brooke, J. McAlvay, C. J.

text:
    FROHLICH v. DEACON.
    Actions — Survival—Estates of Decedents — Fraud — Unlawful Conspiracy — Abatement and Revival.
    By an equally divided, court it is determined, on demurrer to a declaration of executors of a decedent’s estate, that no right of action survived where the defendants conspired together to restrict commerce and trade and thereby injured and destroyed the manufacturing business of the deceased; that the action was not for fraud and deceit _ so as to survive under 3 Comp. Laws, §§ 10421, 10422, or §10117 (5 How. Stat. [2d Ed.] §§13954, 13955).
    McAlvay, C. J., and Kuhn, Bird, and Moore, JJ., dissenting.
    Error to Wayne; Hosmer, J.
    Submitted June 16, 1913.
    (Docket No. 2.)
    Decided July 24, 1914.
    Case by Edward Frohlich, executor, and,Hannah. Frohlich, executrix, against John F. Deacon and others, for conspiracy and unlawful combination and restraint of trade. An order sustaining a demurrer to the declaration is reviewed by the plaintiffs on writ of error.
    Affirmed.

      Lucking, Emmons & H elf man, for appellants.

      James O. Murfin, for appellee Miller Lumber Co.

      Geer, Williams, Martin & Butler, for appellee City Lumber Co.
   Brooke, J.

The opinion of Chief Justice McAlvay proceeds upon the assumption, which I think is warranted in law, that the cause of action set up in plaintiffs’ declaration does not survive at common law, nor under section 10117, 3 Comp. Laws (5 How. Stat. [2d Ed.] §12761). He holds, however, that said cause of action does survive under sections 10421, 10422, 3 Comp. Laws (5 How. Stat. [2d Ed.] §§13954, 13955). Under those sections it is apparent that only those causes of action survive where the injured party in his lifetime might have brought “an action on the case for fraud or deceit.” The question, therefore, arises: Are the alleged illegal acts ascribed to defendants such acts as would have sustained an action on the case for fraud or deceit brought by plaintiffs’ testator, in his lifetime? Upon this point, Mr. Justice McAlvay says:

“The conduct charged in the declaration by plaintiffs against defendants may, without misnomer, be labeled fraudulent. It may further be said that this declaration was intended to state a cause of action for deceit brought about by fraud.”

With this conclusion I find myself unable to agree. The essential elements of actionable fraud are said to be:

(1) That defendant made a material representation; (2) that it was false; (3) that when he made it he knew that it was false, or made it recklessly, without any knowledge of its truth, and as a positive assertion; (4) that he made it with the intention that it should be acted upon by plaintiff; (5) that plaintiff acted in reliance upon it; and (6) that he thereby suffered injury.

20 Cyc. p. 13.

In Parker v. Armstrong, 55 Mich. 176 (20 N. W. 892), it is said:

“The cause of action being the successful use of false pretenses to get plaintiff to pay for the notes passed off on him, the declaration must, in order to support such a judgment as was rendered, show— first, what pretenses were made; second, that they were made by the defendants in person, or by authority and design; third, that they were material; fourth, that they were false and fraudulent, and deceived complainant; and, fifth, what defendants obtained by them.”

The term “fraud and deceit” implies deception by means of fraudulent representations or otherwise, resulting in injury. While the adjective “fraudulent” is frequently used in the declaration to characterize the acts alleged to have been committed by the defendants, the use of that term alone is not sufficient to fix the quality of the acts, or to give them a legal significance which they do not intrinsically possess. It is nowhere averred in the declaration that the illegal acts alleged to have been committed by defendants misled or deceived plaintiffs’ testator, nor that in consequence of those acts, being so misled, he acted to his injury. The acts described were illegal and oppressive. They were not deceptive nor fraudulent. The commission of those acts by the defendants gave to plaintiffs’ testator in his lifetime a right of action on the case under the statute or at common law; but such an action cannot by any stretch of the imagination be considered one for fraud and deceit.

Without further considering the other objections raised by the demurrer to plaintiffs’ declaration, I am of opinion that the foregoing conclusion is inevitable, and therefore fatal to plaintiffs’ right to recover.

The order sustaining defendants’ demurrer should be affirmed.

Stone, Ostrander, and Steére, JJ., concurred with Brooke, J.

McAlvay, C. J.

In this case the trial court sustained the demurrers of defendants to an amended declaration. Plaintiffs have brought the case to this court for review upon a writ of error asking for a reversal of the judgment entered upon the order sustaining such demurrers.

The facts in the case set forth in the amended declaration, which if well pleaded are admitted by the demurrers, are as follows:

Plaintiffs are executor and executrix of Simon Frohlich, deceased. The declaration, in three separate counts, charges a fraudulent conspiracy at common law on the part of defendants to ruin and destroy the credit, reputation, and business of the plaintiffs’ testator, and also a violation of the anti-trust laws of this State.

Simon Frohlich, prior to January 1, 1906, owned and operated a factory in the city of Detroit. He was engaged in the manufacture and sale of sash, doors, and other building material. At this time he enlarged his business to include buying, manufacturing, wholesaling, retailing, and jobbing lumber and building materials, under the name and style of Frohlich Glass Company, investing in such enterprise a cash capital of $70,000. In two years he doubled the number of his employees and built up a business of $12,000 sales per month. He had prospects of continued expansion and success.

Defendants were competitors of Simon Frohlich and engaged in the lumber business, doing more than 90 per cent, of the wholesale, retail, and jobbing business in lumber in Detroit, and comprising about 75 per cent, of the lumber dealers. They fraudulently and unlawfully entered into a conspiracy and combination on or about June 1, 1907, actionable at the common law, and for the purpose of creating and carrying out restrictions in trade and commerce, contrary to the laws of Michigan, and for the purpose of destroying the credit, reputation, and business of Simon Frohlich.

By this combination and fraudulent conspiracy and their subsequent illegal acts in carrying out the same, defendants succeeded in ruining the lumber business of Simon Frohlich, and forcing him to sell practically all its tangible assets to one of them at an inadequate price of $20,000 less than its value, and in driving him out of this business.

Eighteen individuals, firms, and corporations are joined as defendants in this suit. Of these, 15 have demurred, and the grounds of these demurrers presented and relied upon in their briefs are as follows:

“(1) The declaration is not sufficiently specific, and does not set forth a cause of action.

“(2) Such action does not survive the death of Simon Frohlich*

“ (3) Simon Frohlich was estopped by reason of the sale of the tangible assets of his' business.”

The second ground of demurrer relied upon by defendants raises in our opinion the most important question in the case. It requires the construction of the statute under which the action is brought in assumpsit, and upon which plaintiffs rely. The exact question is for the first time before this court. This is Act No. 195 of the Public Acts of 1897, entitled:

“An act to provide for bringing actions of assumpsit in certain cases, and to provide that in such cases the cause of action shall survive.”

The entire act reads:

“Sec. 1. In all cases where, by the fraudulent representations or conduct of any person, an injury has been or shall be produced, either to the person, property or rights of another, for which an action on the case for fraud or deceit may by law be brought, an action of assumpsit may be brought to recover damages for such injury, and in all such cases a promise shall be implied by law to pay all just damages arising from such fraud or deceit and may be so declared.

“Sec. 2. The causes of action specified in section one of this act shall, upon the death of the person injured, survive to his personal representatives.”

Sections 10421 and 10422, 3 Comp. Laws (5 How. Stat. [2d Ed.] §§ 13954, 13955).

The act in question, as its title indicates, is to provide that certain actions sounding in tort may be brought in assumpsit, and also to provide that in all cases where this may be done the causes of action shall survive. This presupposes the fact that before the enactment of this statute such actions could not have been brought in assumpsit, nor would the causes of action have survived. It will therefore be necessary, first, to determine the class of actions which may be brought under this statute in assumpsit, from which it will logically follow that all such causes of action will survive.

In this State provision is made for the survival of actions, as follows:

“In addition to the actions which survive by the common law, the following shall also survive: that is to say: actions of replevin, and trover, actions of assault and battery, false imprisonment, for goods taken and carried away, for negligent injury to persons, for damages done to real or personal estate, and actions to recover real estate where persons have been induced to part with the same through fraudulent representations and deceit.” Section 10117, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 12761).

To this is added, by the act under consideration, the provisions as quoted in sections 10421, 10422, supra.

All such actions specifically mentioned survive by force of these statutes, whether or not they were assignable at the common law. Rights of action which survive are also assignable. Stebbins v. Dean, 82 Mich. 385-388 (46 N. W. 778).

Section 10117, supra, was adopted by this State verbatim (except the portions italicized) from the State of Massachusetts. In construing this statute, this court, in Stebbins v. Dean, supra, in an opinion written by Mr. Justice Grant, adopted and followed the construction placed upon it by the Massachusetts courts, holding that the statute “was intended to include only those cases where injury is occasioned to property by the direct wrongful act of a party upon the property,” citing Cummings v. Bird, 115 Mass. 346. Wisconsin, following Michigan, adopted the same statute, and in a line of decisions has given to it a like construction. The same is true of the courts of several of the States.

Upon the construction of this statute, where similar phraseology is used, there appears to be no disagreement among the better authorities.

The contention of the demurring defendants is that by the words of this new act under consideration no change has been made in this respect, and that the rule laid down in the case of Stebbins v. Dean, supra, controls in this case. They insist that the cause of action plaintiffs declare upon essentially sounds in tort, and is based upon an alleged conspiracy entered into by defendants to create and carry out a trust and monopoly, a restriction in trade and commerce in lumber and building material to injure plaintiffs’ testator and drive him out of business, in violation of the common law, and of the Michigan anti-trust act, so called, as a result of which conspiracy plaintiffs’ testator suffered damage to his business in his lifetime, and that under all the authorities such causes of action do not survive.

The dispute upon this question, then, is narrowed to a single proposition, and that is whether Act No. 195, Pub. Acts 1897, supra, by its express provisions, has made a change in the law by adding to the list of causes of action which survive.

This statute includes all cases arising from injuries produced by the false representations or conduct of any person for which an action on the case for fraud or deceit might be brought at law, and gives the person injured a right to bring an action in assumpsit for such injuries. The nature of the injuries are specified as injuries “either to the person, property or rights of another.”

Dealing with the instant concrete case', we must determine whether, upon the facts stated in the declaration, plaintiffs’ testator could have brought an action on the case at law for fraud or deceit against defendants to recover damages for the injury received.

The conduct charged in the declaration by plaintiffs against defendants may, without misnomer, be labeled fraudulent. It may further be said that this declaration was intended to state a cause of action for deceit brought about by fraud. In a similar case the action has been so recognized by the Supreme Court of Wisconsin in Murray v. Buell, 76 Wis. 657 (45 N. W. 667, 20 Am. St. Rep. 92). This was an action for conspiracy to monopolize the coal business in Milwaukee to the injury of plaintiff’s business, referring to which in a later case, Lane v. Frawley, 102 Wis. 373 (78 N. W. 593), that court said:

“That action is in all respects analogous to the action of deceit, resulting in loss and damage.”

And of the case then under consideration it said:

“This, then, being a tort action for deceit to recover general damages caused by the fraud, and not to recover back specific property obtained by fraud, it is vigorously debated whether or not it survives.”

In both these Wisconsin cases, supra, it was held that the actions did riot survive by reason of the Wisconsin statutes which have at no time contained language indicative of the intention that they should survive.

The instant case is a tort action for deceit to recover general damages to the business of plaintiffs’ testator caused by fraud during his lifetime, and not to recover damages for injuries to specific tangible property. If a recovery can be had, it will be because this court holds that the right of action survived under the statute in question.

This statute makes provision for a right of action in assumpsit for injuries done “either to the person, property or rights of another.” By the addition of the words “or rights of another,” it must be held that the clear intent of the legislature was to add to the actions which, survived in this State another class of actions which were not theretofore included, namely: all actions for damages for injuries caused by the fraudulent representations or conduct of any person to the “rights of another.”

The damages for which the instant suit has been brought are included in that class, and, as already stated, are damages, not to the specific property of plaintiffs’ testator, but to his business. Such injury to his business was an injury to his rights.

The statute of the State of New York provides for the survival of actions for “wrongs done to the property, rights or interests of another.” This language has been frequently before' the court of last resort of that State for construction. In Cregin v. Railroad Co., 75 N. Y. 192 (31 Am. Rep. 459), Mr. Justice Rapallo, speaking for the court said:

“The rights and interests, for tortious injuries to which this statute preserves the right of action, have frequently been considered, and it is generally conceded that they must be pecuniary rights or interests, by injuries to which the estate of the deceased is diminished. * * * Where an injury to pecuniary interests is shown, the intent of the statute seems plain that the cause of action shall survive, notwithstanding that such injury be caused by a tort,_ provided it be not one of the torts specifically mentioned and excepted.”

That this New York statute declaring that causes of action for injuries to “property, rights and interests shall survive” is much broader than the statutes of Wisconsin, Massachusetts, and the former statute of Michigan is apparent, and is recognized and ad-, mitted by defendants in one of their briefs. It is also recognized by the Supreme Court of Wisconsin in John V. Farwell Co. v. Wolf, 96 Wis. 10-18 (70 N. W. 289, 290, 37 L. R. A. 138, 65 Am. St. Rep. 22), where the court said:

“The New York statute provides that 'actions for all wrongs done to property, rights or interests of another shall survive.’ It is held that this language is so broad and comprehensive as to cover all injuries to rights of property, and is not confined to injuries, * * * as such — that it includes actions for damages for conspiracies to defraud and damages for deceit. Bond v. Smith, 4 Hun, 48; Haight v. Hayt, 19 N. Y. 464; Lyon v. Park, 111 N. Y. 350 [18 N. E. 863]; Brackett v. Griswold, 103 N. Y. 425 [9 N. E. 438]. These cases turn entirely on the meaning of the significant words 'property, rights and interests.’ ”

In our statute under construction the words “or rights of another” are of much broader significance than any of the language used in section 10117, 3 Comp. Laws, quoted supra, and are as comprehensive as the words quoted from the New York statute; and section 2 of the act provides that:

“The causes of action specified in section one of this act shall, upon the death of the person injured, survive.”

’ Both upon reason and authority the conclusion cannot be avoided that the instant case is within the provisions of section 1 of this act, and that the cause of action by virtue of section 2 survived.

This same question was before the supreme court of the State of Wisconsin in Lane v. Frawley, supra, and upon the statute which contained words identical with those in the New York statute and those in the act of this State under consideration.

The contention was that the words were entitled to the same construction as given to them by the courts of the State of New York, and therefore the action in the case under consideration should be held to have survived. The section in the Wisconsin statute containing these words contained no words of survival as did the New York statute, and also our Act No. 195 under consideration. The court held the section was not intended to provide for the survival of any action, but merely to regulate the proceedings in such actions as otherwise survived.

An examination of that opinion makes it clear that, had the section contained specific words of survival, the court would have held that the cause of action survived. Our legislature has declared that such causes of action shall survive in words so clear that the intent cannot be mistaken.

The remaining grounds for demurrer do not require extended consideration. An examination of the amended declaration satisfies us that the pleader has stated a good cause of action both at the common law and under the Michigan anti-trust laws. The document is necessarily of great length, and must be considered as a whole. To make it more specific would, in our opinion, require that the evidence be pleaded. Similar declarations in actions in case for damages for wrongful acts in interrupting and destroying plaintiff’s business and injuring the reputation of his business which contained no more specific allegations than are set forth in the declaration under consideration have been held by this court to state a cause of action. Olliver v. Perkins, 92 Mich. 304-315 (52 N. W. 609); Church v. Anti-Kalsomine Co., 118 Mich. 219 (76 N. W. 383).

The Federal courts have sustained similar declarations in cases brought under the Sherman anti-trust law (Act July 2, 1890, chap. 647, 26 U. S. Stat. 209 [U. S. Comp. Stat. 1901, p. 3200]). Wheeler-Stengel Co. v. Window Glass Ass’n, 152 Fed. 864, 81 C. C. A. 658 (10 L. R. A. [N. S.]) 972; Monarch Tobacco Works v. Tobacco Co. (C. C.), 165 Fed. 774-779; People’s Tobacco Co. v. Tobacco Co., 170 Fed. 396, 95 C. C. A. 566; Hale v. Supply Co. (C. C.), 181 Fed. 267.

The remaining ground for demurrer relied upon is that plaintiffs’ testator was estopped from bringing this action by reason of having sold his business prior to his death. The declaration shows that, after Simon Frohlich’s business was ruined, the unlawful acts of defendants as charged and his factory ceased operations, he was forced to and did sell all the tangible personal property used by him in connection with his business to one of the defendants at a price $20,000 less than its value. This sale carried with it no rights of action or other intangible property or interests. If he had a cause of action against defendants, this sale in no way disposed of it. This ground for demurrer is therefore not meritorious. Our conclusion is that the demurrers should have been overruled.

The judgment of the circuit court should be reversed and set aside, with permission to the demurring defendants, after notice of this decision, to plead to the declaration within the usual time allowed by rule.

Kuhn, Bird, and Moore, JJ., concurred with Mc-Alvay, C. J.


author: Per Curiam.

text:
    ATTORNEY GENERAL v. JOY.
    Quo Warranto — Rehearing—Delay—Motions.
    A rehearing must be denied after a period of nearly 30 years have elapsed from the date of final determination of a quo warranto case, involving the right of the Detroit, Grand Haven & Milwaukee Railway Company to exercise its corporate franchise, when the motion was based principally on public records accessible in former proceedings, and the matters of evidence claimed to be newly discovered were not conclusive of the relator’s contentions in the case.
    Quo warranto proceedings by Jacob J. Van Riper, Attorney General, against James F. Joy and others to determine the right of the respondents to exercise the corporate privileges and franchises of the Detroit, Grand Haven & Milwaukee Railway Company. On motion for rehearing.
    Submitted January 29, 1914.
    (Calendar No. 7,666.)
    Denied July 24, 1914.

      Roger I. Wykes, for the motion.

      L. C. Stanley, contra.

   Per Curiam.

Primarily this is a petition for rehearing in the above-entitled cause,'filed by Roger I. Wykes, attorney general, on December 30, 1912. It consists of a printed volume containing 192 pages. Petitioner also asks that, if for any reason a rehearing cannot be granted, permission be given to file an original bill of review to present the questions outlined in the petition.

This case, now sought to be opened, is a quo warranto proceeding and was decided nearly 30 years ago, in 1884, being reported in 55 Mich. 94 (20 N. W. 806), where it occupies .12 pages of the printed record. The opinion is written by Justice Cooley, and he states that he treated the issues as purely legal questions. It involved the validity and interpretation of certain railroad legislation (including, an act passed January 29, 1859 [Act No. 37, Laws 1859], to legalize certain loans made by the Detroit & Milwaukee Railway Company), under which the Detroit, Grand Haven & Milwaukee Railway Company now claims its corporate existence. This court then held, contrary to the contention of the attorney general, that certain legislation enabling the company to take a new name and extend its line did not create a new corporation, and defendants were not guilty of certain acts of usurpation charged against them in that connection.

An examination of the original record shows that the case was thoroughly litigated and able briefs were filed by counsel on both sides. Attorney General Van Riper, assisted by Edward Bacon, represented the State, and G. V. N. Lothrop, E. W. Meddaugh, and George Jerome represented the respondents. It is undisputed that all attorneys then connected with the case and the justices who participated in the opinion are now deceased, as well as most, if not all, respondents.

Several attempts made in various ways and courts to enforce collection of certain specific taxes levied under subsequent legislation against the Detroit, Grand Haven & Milwaukee Railway have failed as being in disregard of the special charter under which it operated, the validity of said charter having been settled by the Van Riper Case, and therefore res judicata. People, ex rel. Attorney General, v. Railway Co., 157 Mich. 144 (121 N. W. 814); Powers v. Railway, 201 U. S. 543 (26 Sup. Ct. 556).

Two cases are now pending in which it is sought to enforce collection of the specific tax from the Detroit, Grand Haven & Milwaukee Railway; one in the Federal court (Detroit, etc., R. Co. v. Fuller [D. C.], 205 Fed. 86), in which proceedings against the railway under Act No. 95, Pub. Acts 1911, were enjoined (which we are informed has been appealed), and one in the Kent county circuit court in chancery, in which a demurrer to the State’s petition, which goes into these matters very exhaustively, was overruled and defendant given leave to answer, such ruling of the trial court having been sustained in this court (169 Mich. 72 [135 N. W. 87]). We understand this case has not yet been heard.

Relator here moves against the original source of embarrassment in all subsequent litigation and seeks to eliminate it by a reversal of this, so-called, Joy decision on a rehearing, the ground urged for granting a rehearing being newly discovered evidence, not available or known to relator when the case was heard and since secured, mostly from the historical collections of C. M. Burton of Detroit, who, in his work of collecting historical material, came into possession of a large quantity of private papers, including many letters, formerly belonging to, or in the hands of, H. H. Emmons, for a long period attorney of the Detroit & Milwaukee Railway and the Detroit & Milwaukee Railroad Companies. It is claimed these and certain court records of Wayne county since discovered present the matter in an entirely different light, showing that respondents as stockholders and officials of the railway prepared and pushed the legislation in question and subsequently organized and operated the road under its provisions upon the theory and under the claim that it was a new corporation, independent and distinct from that which had previously existed, in direct conflict with their contention before the court in this case.

Discovery of most of the new information upon which petitioner relies was made in 1908, though it is claimed further search among court records and the Emmons papers has disclosed additional matters of importance since that time, and it is contended that had such evidence been presented to the court in the case at bar when originally heard and decided an entirely different result must have followed.

In the case of People, ex rel. Attorney General, v. Railway Co., 157 Mich. 144 (121 N. W. 814), supra, the very elaborate record shows that much of the matter now sought to be presented to this court was there presented and urged, and argued pro and con at great length. It was there earnestly contended by respondents’ counsel that, even if the whole question was not res judicata and all the alleged newly discovered evidence remained in the record to be passed upon by the court, it did not aid in construing the statutes, and could not change the result; that if competent to consider it tended in parts to support either contention, was ambiguous, not convincing, not binding upon the corporation, and could not operate as an estoppel against it, and was an attempt to prove and establish a legal proposition by admissions, assertions, opinions, and theories of attorneys and others long since dead and not then available to explain or contradict; that, taken as a whole, it was far from convincing of relator’s contention and constituted no competent evidence which should change the result or influence the court in construing the statutes under consideration.

While the court there declined to consider the matter and held the Joy Case controlling, as res judicata, it can be said that, with substantially all the testimony before it which petitioner now relies upon, the court, had it felt free to consider it, would find it yet a serious question, and encounter difficult problems in reaching a contrary opinion.

The gist of petitioner’s contention, based upon newly discovered evidence, is that the Detroit, Grand Haven & Milwaukee Railway Company and its predecessors had, previous to 1884, construed Act No. 96, Laws 1859, as making the companies new corporations, independent and distinct from those previously existing and which they succeeded; that they had so declared and insisted, and had dealt with the public and conducted their business on that basis.

This contention and these proofs have been previously before this and other courts in the extensive tax litigation between the parties. The only thing-new here is the manner and purpose of presenting them.

Conceding all that is claimed for this evidence, the find in Mr. Burton’s collection, made in 1908, can be said to but supplement and make more clear that which was a matter of public record in 1884. Mr. Emmons, attorney of the companies for many years, is shown to have been an industrious letter writer and briefmaker. He claimed to be the author of the railway act of 1859, and in construing it contended that, under certain foreclosure proceedings and reorganization of the companies, new corporations were created. Of his views there can be no question. He so advised the companies’ officials, and they so regarded it. That position was taken by him and other attorneys of the companies in litigation in which they were involved, and the records of the courts in cases where the companies were parties show this in the pleadings and briefs filed as clearly, and with much more legal force, than the letters and private memoranda which he and other officers of the company wrote.

These public records were as available to relator in 1884, when this case was tried, as they are to petitioner now. Suggestions from the Burton find may account for a search of the Wayne county records which resulted in their discovery, but they were there then, available public records, as they are now.

If, as claimed and this petition shows, it was the consistent and persistent contention of the companies and their officials at all times, in court and out, for over 20 years, that they were new corporations, distinct from and independent of the old, which claim was substantiated by numerous public records, it was certainly no secret which it is to be assumed escaped the knowledge of able counsel preparing a case in which a contrary contention confronted them. What they knew, what they thought, why they did not produce the testimony now urged, or what respondents’ defense to such evidence would have been, are all mere matters of conjecture. They are all dead now and cannot tell us.

In the passing years this railroad has conducted its business and others have done business with it on the basis of its legal existence as declared by this opinion, which has more than once been cited and relied upon by both court and counsel.

In the intervening years new conditions have arisen, and recent legislation relative to taxation of railroads has been enacted which it is claimed , makes it desirable, for the State, that this case should now be opened and the opinion reversed, on a line of proposed evidence then available in its most significant particulars, as it seems to us, but not then produced, for reasons we can only surmise, but on the surmise that it was unknown to the then attorney general and his associate. The importance to the State of the issues involved was certainly not unknown. The two exhaustive briefs then filed by the attorney general and his associate indicate that they were alive to the question of the railroad company escaping taxation under its claimed charter and that it was as prominently a matter of public interest then as now. Amongst other things, they say in their briefs, and sound the alarm, as follows:

“Repeatedly these questions have been the subject of legislative inquiry, and at almost every session of the legislature for the past 20 years or more the subject of the relations of the body of men claiming to be the Detroit, Grand Haven & Milwaukee Railway Company to the State has been referred to the committee on railways, or to a committee specially appointed to investigate the standing of this company and its legal status, and in almost every instance these committees have reported that this company had no legal existence, and have in several instances recommended that the attorney general be instructed to institute proper legal proceedings to determine the rights and liabilities of this organization, and the extent and validity of the franchises and immunities claimed and exercised by it. * * * The respondents claim to -be incorporated under a special charter. If in the record before this court they have stated what this charter is, they mean that it is the charter granted in 1834 to the Detroit & Pontiac Railroad Company, with certain amendments duly accepted, so that the de facto corporation known as the Detroit, Grand Haven & Milwaukee Railway Company can forever have immunity from all taxation under the general railroad laws of this State, and can forever have the corporate right to levy and collect freight charges and passenger fares unlimited by law, and can forever be above and beyond the power of the legislature to amend, alter, and repeal without the consent of the alleged corporation.

“This claim of respondents to special charter rights to avoid general law taxation leaves annually a large amount of specific taxes for the people to pay, which the alleged corporation ought to pay. The published reports of State officers leave no doubt as to the damage to the people.”

This may be said to be the keynote of language used and contentions made in behalf of the State in subsequent litigation on the subject of taxation against said railroad company, and was presented to the court with equal prominence in this case when heard 30 years ago.

Knowing that the charter rights of the company had been publicly mooted and made a recurring subject of legislative inquiry for 20 years, it would seem incredible that the attorney general’s department, or even the courts, of that day should be ignorant of any claims as to its legal status and charter rights made by the company in its constant dealing with the public and frequent litigation, of which public records were available.

This case was instituted to obtain an interpretation of the statutes and an adjudication of the law on that subject. The significance of what interested parties at different times claimed the law to be, though such claims were inconsistent, might not be regarded by all members of the bar as of equal importance in interpreting an enactment. We cannot assume in this application for a rehearing that such claims would be controlling. It would not be unreasonable to assume that the then attorney general, though -knowing of these inconsistent claims now rediscovered and here urged, did not regard them of -serious importance in construing the legislation then before the court.

Whatever the facts may be, and as before stated it is mere conjecture, we are impelled to hold that at this late date the court would not be justified in granting a rehearing. Therefore said petition for a rehearing must be, and the same is hereby, denied.

Kuhn and Bird, JJ., did not sit.


author: McAlvay, C. J.

text:
    VERNAKES v. CITY OF SOUTH HAVEN.
    Injunction — Equity — Criminal Proceedings as Adequate Remedy — Ordinances—Judgment.
    Complainant’s bill for an injunction was demurrable on the theory that he had another adequate remedy, upon averments contained in the pleading, that every legal question involving his license to do transitory business and the validity of an ordinance revoking it had been raised in a case instituted in justice’s court, in which the complainant was charged with violating such ordinance of the defendant municipality, which cause the complainant had removed to the circuit court by writ of certiorari, and the court having determined the questions involved adversely to the claims of the complainant, who took no appeal.
    Appeal from Van Burén; Des Voignes, J.
    Submitted November 17, 1913.
    (Docket No. 129.)
    Decided July 24, 1914.
    Bill by Thomas Vernakes against the city of South Haven for an injunction and other relief. From a decree for defendant, complainant appeals.
    Affirmed.

      Thomas J. Cavanaugh, for complainant.

      Fred C. Cogshall, for defendant.
   McAlvay, C. J.

The bill of complaint in this cause was filed in the circuit court for the county of Van Burén, in chancery, by complainant, alleging, among other things, that he was a resident of the United States and came to the city of South Haven, which is a resort town, and which invites and encourages people temporarily to engage in business; that it is a fourth-class city, with a mayor and six aldermen as a governing body, and also has a small police force; that on May 17, 1909, under an ordinance entitled “An ordinance relative to licenses,” it adopted a system of issuing licenses to temporary merchants permitting them to conduct business in buildings, tents, or inclosures,' and also licenses to those who wished to sell wares from carts and stands on sidewalks and in streets, alleys, and public places in the city; that complainant, who is a Greek by birth, had been permitted and allowed under a license to conduct his business during the year 1911, and in 1912 he made application for, and was granted by the governing body of the city, the two licenses over which this dispute arises, one giving him the privilege to engage in business on a certain lot in said city owned by a private citizen, and the other to run a pop corn wagon, for which licenses he paid into the city treasury the sum of $30, that being the amount fixed and required by the proper officer; that, relying upon such licenses, he selected and rented one of the best business locations in the city from a private citizen at an agreed rental exceeding the sum of $100, upon which lot he built a tent house in which, under license No. 1, to conduct his business; that he purchased a stock of goods of considerable value, part of which was perishable, and moved into said tent house upon said premises ; that he also procured and operated a pop corn wagon as permitted under his license No. 2; that he proceeded to, and did, conduct his business under both of said licenses at a good profit from June 1 to July 19, 1912, in a lawful manner and as he had been allowed to do during the year 1911; that the police officers, because of his peculiar Greek accent in crying his wares, made fun of and annoyed him, and, because he resented this, some of the officers of the city threatened him that he must desist absolutely from crying his wares; this he refused to do, and, without any notice or hearing, on July 18, 1912, in the nighttime, the city council convened and arbitrarily passed a resolution revoking both of his licenses, thereby destroying his business and taking his property, all without authority of law, which has and will cause him irreparable damage, to the amount of $1,000 and upwards; that he had violated no law of the city or State in any manner, and, upon advice of counsel, he continued to carry on his business under both licenses in an orderly and peaceable mariner the following day, whereupon complaint was made against him that he had on that day, without a license, kept upon a sidewalk within said city a cart for the sale of goods, wares, and merchandise, upon which complaint he was arrested, gave bail, and his trial was set for July 26th; that again, on July 80th, he was arrested for a like offense; that his trial was set for August 6th following; that he was threatened with arrest every day so long as he conducted and maintained his business and sold wares in said city; that he was justly apprehensive of daily arrest and imprisonment unless he complied with the arbitrary and unlawful demands of said city authorities and moved out; that he had committed no breach of the peace or violated any law, and that it appeared to be the disposition of the officers of said city to destroy his business and drive him out of the city.

Complainant also alleged that this ordinance was invalid for many reasons which are set forth at length; that, if valid, his licenses were revoked arbitrarily, and without cause or notice, and in violation of his rights under them, an injury to himself, his business and property, and that the revocation was not acted upon at a proper meeting properly called, nor was the revocation by the proper ^authority designated in the ordinance.

The bill of complaint also alleges that, as threatened by the officers, he was arrested repeatedly upon the same charge; that after complainant’s arrest upon the first warrant issued against him, July 19, 1912, he gave bail for his appearance, and a trial was had in justice’s court without a jury upon the questions of law involved, the facts being undisputed; that complainant was found guilty and sentenced to pay a fine of $25 within 5 hours, together with costs, or be committed to jail for 80 days; that the case was removed by him upon a writ of certiorari to the circuit court in said county, and this paragraph of the bill of complaint concludes as follows:

“That every legal question involving the validity of the ordinance, the right of the city council to revoke your orator’s license, and other rights in which both parties were interested are raised in said proceedings and can be determined by this court at its next session.”

Other allegations contained in his bill of complaint need not be stated.

Complainant prayed the court to determine the invalidity of such ordinance, and, if the ordinance should be held to be valid, that all proceedings of the common council and officers of the city in revoking his licenses without notice and in destroying his business and other acts before mentioned be declared to have been done without authority of law and to be illegal and void. He also prayed for an injunction against the city, its officers and agents, from further prosecuting these suits against him and from commencing other and further suits of like character under said ordinance. Upon filing this bill of complaint an order was granted requiring defendant to show cause why an injunction as prayed should not issue, and in the meantime a temporary restraining order was granted.

To this bill of complaint defendant demurred, for the reason that complainant had not stated such a case in his bill as entitles him to any relief in a court of equity, because he had an adequate and complete remedy in a suit at law. From the order entered by the court sustaining the demurrer and dismissing his bill of complaint, complainant has appealed to this court.

There is no dispute here upon the facts as stated in the bill of complaint. The solé question involved is the question of jurisdiction raised by the demurrer.

This bill was filed and a restraining order issued August 5, 1912, after the removal of the case against complainant under the ordinance to the circuit court by writ of certiorari. The record in the instant case shows that the ordinance case was tried and the judgment of the justice’s court convicting complainant for a violation of the ordinance was affirmed. This appears from the opinion filed by the circuit judge in the instant case upon dissolving the injunction and sustaining the demurrer of defendant, which opinion contains the greater part of the opinion of the court filed in the certiorari case, and no claim is made on the part of complainant that such is not the fact.

This opinion was filed May 5, 1913, and the decree sustaining the demurrer and dismissing the bill was granted May 8, 1913. The record in this case does not show, nor is it claimed by appellant, that any steps have been taken to review the judgment of the circuit court in the certiorari case. For this reason it is insisted on the part of defendant and appellee that by complainant’s admission in the bill of complaint above quoted all matters in dispute in this litigation have been disposed of by the circuit court against the contention of complainant.

While we are impressed with the fact that the allegations of the bill show conduct upon the part of the police officers of the city of South Haven toward complainant, admitted by the demurrer, which is anything but creditable to such officers, this case must be determined upon the questions of law presented. At the time the bill was filed and the injunction issued we find that the theory of complainant was that every legal question involved in this cause relative to the validity of the ordinance, the right of the city to revoke licenses, and other rights in which both parties were interested were raised in the certiorari proceedings, and could be determined in these proceedings by the circuit court at its next session. This appears in terms from the paragraph we have quoted supra from the bill of complaint. The certiorari case was tried and all legal questions involved in that case were passed upon by the court, and a judgment against complainant was duly rendered. Complainant has not sought to review that case in this court.

After a careful consideration of the contention made by complainant in his bill of complaint we are constrained to hold that if he was aggrieved by the determination of the certiorari case in the circuit court against him he had a complete and adequate remedy at law by the removal of that case to this court for review. It is therefore unnecessary to give consideration to questions presented in this case.

The decree of the circuit court is affirmed.

Brooke, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.