text:
    ATTORNEY GENERAL, ex rel. DINGEMAN, v. LACY.
    1. Constitutional Law — Local Legislation — Courts — Yauditt ob Statute.
    The provisions of article 5, section 30, of the Constitution, which provides that no local act shall be passed by the legislature if a general act can be made applicable, and that local acts shall be approved by the electors of the district to be affected before they may become law, were intended to abolish the abuses prevalent in the legislature in the enactment of special legislation and to secure to the people of the State the right to control their local affairs within the community affected.
    2. Same — Courts—General Laws.
    The section of article 7 vesting the judicial power in the Supreme Court, circuit courts, etc., requires the establishment of inferior courts under general laws enacted by the legislature; local legislation being prohibited by necessary implication.
    3. Same — Classification—Population.
    Since the Constitution was intended to prohibit local or special acts except under the conditions specified therein, its provisions cannot be evaded by classifying counties or divisions according to population for the purpose of establishing inferior courts.
    4. Same — Domestic Relations, Court of — Local Acts.
    Act No. 186, Pub. Acts 1913, creating a court of domestic relations in counties having upwards of 250,000 population, is local in its purpose and effect and violates the above-mentioned sections of the Constitution.
    5. Same — Classes.
    In order to warrant the legislature in so classifying municipalities or other subdivisions of the State, it is necessary to find justification therefor in some substantial difference in conditions arising out of the greater number of inhabitants, and in no case may such a classification be sustained where it is a manifest subterfuge.
    6. Same — Juvenile Courts — Probate Courts.
    In depriving the probate court of jurisdiction in cases of juvenile delinquency, the statute (section 10) further violates the Constitution, article 7, sec. 13.
    7. Same — Courts—Jurisdiction oe Circuit Courts.
    And it is also invalid because the act attempts to deprive - the circuit court of Wayne county of a portion of its appellate jurisdiction conferred by section 13, art. 7, Constitution.
    S. Same — Courts—De Facto Judge — Domestic Relations.
    Acts of the judge of the court of domestic relations created in Wayne county pursuant to the invalid legislation are not open to jurisdictional objections, being the acts of a de facto officer.
    Information in the nature of quo warranto by Grant Fellows, attorney general, on the relation of Harry J. Dingeman, against Arthur J. Lacy, judge of the court of domestic relations for the county of Wayne, to try respondent’s title to said office. Respondent demurred to the information. Demurrer overruled and judgment of ouster entered.
    Submitted January 30, 1914.
    (Calendar No. 25,902.)
    Decided April 17, 1914.

      Grant Fellows, Attorney General (Fred A. Baker, Robert T. Speed, and Elbridge F. Bacon, of counsel), for relator.

      Otto Kirchner and Jasper C. Gates (Alfred Lucking, of counsel), for respondent.

      William L. Carpenter, for board of supervisors of Wayne county.

      This is a proceeding in quo warranto to test the title of respondent to the office of judge of the court of domestic relations in the city of Detroit. Respondent’s right to the office is questioned solely upon the ground that the statute creating the court in which he sits as judge is unconstitutional. The title and the first eleven sections of the act (Act No. 186, Pub. Acts 1913) follow:

      “The people of the State of Michigan enact: “Section 1. There shall be in each county of this State, which has a population of upwards of two hundred fifty thousand, a court of domestic relations, which shall be a court of record, having one judge whose term of office shall commence on the first day of September, nineteen hundred thirteen. The office of the judge of the court of domestic relations hereby created, shall be deemed vacant from and after the taking effect of this act, and shall be filled by appointment by the governor of the said State, and such judge shall hold office until the next general election.
    “An act to provide and establish a court of domestic relations in each county of this State, which has a population of upwards of two hundred fifty thousand, to define its jurisdiction and for the purpose of this act to provide for additional circuit judges in such counties.
    “Sec. 2. At the first general election held in said counties, respectively, after this act shall take effect, the qualified electors of each such county shall, in the manner prescribed by law for the election of circuit judges, elect a judge of the court of domestic relations of such county, and his term of office shall continue until the first day of January, nineteen hundred eighteen. Thereafter all judges shall be elected every six years, at the April election next preceding the expiration óf the term of the then incumbent. In case of a vacancy in the office of judge of the court of domestic relations, the governor shall fill said vacancy, and the incumbent so appointed shall hold office until the next general election. The provisions of law relative to nomination and election of circuit judges shall in all cases govern the nomination and election of judges of the court of domestic .relations.

      “Sec. 3. Said judge, by virtue of his office, shall be a circuit judge of the circuit court of the same county, and as such it shall be his duty to hear and determine all suits for divorce, all suits for annulment of marriage, and all other such suits, actions and proceedings shall be for that purpose assigned to him by the presiding judge of said circuit court. _ The court of domestic relations shall have original jurisdiction to hear, try and determine all criminal cases wherein the crime, misdemeanor, offense or felony charged shall have been committed within the county in which said court of domestic relations is located, which crime, misdemeanor, offense or felony shall be because of violation of the laws: First, compelling the support of wife and minor children by the husband and father; second, forbidding the desertion and abandonment of wife or minor children by the husband and father; third, prohibiting contributing to the delinquency of children; fourth, compelling the compulsory education of children; and fifth, forbidding cruelty to children. Said court shall have original jurisdiction to hear, try and determine all actions brought to compel the support of illegitimate and bastard children under the laws of the State of Michigan.
    “In furtherance of the foregoing purposes, said courts of domestic relations shall also have original jurisdiction of all prosecution and proceedings in behalf of the people of the State for all crimes, misdemeanors and offenses arising under the laws of this State, and committed within the limits of their respective counties, except in cases which, under the constitution of this State, may be exclusively cognizable by the police courts and justice of the peace of such counties, under and by virtue of the following statutes of this State, to wit:
    “Act number two hundred sixty-four of the public acts of eighteen hundred eighty-nine, entitled ‘An act relative to disorderly persons,’ etc., being section nine hundred twenty-three of the Michigan Compiled Laws of eighteen hundred ninety-seven, so far as the same relates to the abandonment or threat to abandon wives or children, and refusal or neglect to_ support them; _
    _ “Act number one hundred fifty-six of the Public Acts of eighteen hundred ninety-three, entitled ‘An act to provide a penalty for cruelty to children/ being section eleven thousand five hundred seven of the Compiled Laws of eighteen hundred ninety-seven, as amended by act number two hundred thirteen of the Michigan Public Acts of eighteen hundred ninety-seven ;
    “Act number one hundred forty-four of the Michigan Public Acts of nineteen hundred seven, entitled ‘An act to prevent a desertion and abandonment of wife or children by persons charged by law with the maintenance thereof; to make such abandonment and desertion a felony and to prescribe punishment therefor ; to provide for the care of the dependent wife and children, and to repeal act number thirty-nine of the Public Acts of nineteen hundred three /
    “Act number two hundred eighty-four of the Michigan Public Acts of nineteen hundred seven, entitled ‘An act to provide punishment for wife desertion in certain cases/ . .
    “Act number three hundred fourteen of the Michigan Public Acts of nineteen hundred seven, entitled ‘An act to provide for. the punishment of the persons responsible for or contributing to the delinquency of children /
    “Act number two hundred of the Public Acts of nineteen hundred five, entitled ‘An act to provide for the compulsory education of children, for penalty for failure to comply with the provisions of this act, and to repeal all acts or parts of acts conflicting with the provisions of the same, as amended by act number seventy-four of the Public Acts of nineteen hundred seven, and act number two hundred fifty-five of the Public Acts of nineteen hundred eleven.’
    “And under and by virtue of any and all other statutes amendatory of, or supplementary to any of the statutes above specified, and any and all . other statutes relating to crimes, misdemeanors and offenses above specified.
    “Sec. 4. In all cases determined by any police court or justice of the peace within the limits of their respective counties, under either or any of the statutes hereinbefore specified, an appeal may be taken to the court of domestic relations of the same county, in the same manner and with the same effect as prescribed by the general laws of the State for appeals from convictions by justices of the peace within this State to the circuit court in criminal cases; and said courts of domestic relations are hereby given exclusive jurisdiction of all appeals from convictions under said statutes.
    “Sec. 5. Said court of domestic relations shall have power to issue all lawful writs and process, and to do all acts which may be necessary and proper to carry into complete effect the powers and jurisdiction given by this act. And further, in all prosecution and proceedings for the punishment of misdemeanors, under and by virtue of the statutes above mentioned, to issue all writs and process, and to do all acts which justices of the peace within their respective jurisdictions may issue and do by the laws of this State, and shall therein as far as applicable be governed by the provisions of law regulating criminal cases and proceedings before justices of the peace.
    “Sec. 6. In the hearing and trial of all cases pending in the circuit courts of the same county, the trial ■of all felonies and the trial and hearing of all causes ;and proceedings in the exercise of its appellate jurisdiction, the practice and proceedings of said court of domestic relations shall be the same as those prescribed by law for circuit courts in this State, in like cases, unless otherwise limited by this act; and the rules prescribed by the Supreme Court for the guidance and practice of circuit courts shall be the rules of said court of domestic relations in its proceedings above specified in this section so far as the same may be applicable; but it shall have the same power and make rules for its practice and proceedings as is by law given to circuit courts, or the judges thereof.
    “Sec. 7. Whenever a husband shall, without good and sufficient cause, desert his wife, or shall have deserted his wife, or being of sufficient ability to support her, shall refuse or neglect to properly provide for and suitably maintain her, being a resident of this State, the court of domestic relations of any county in this State in which said husband or wife shall reside, shall, on the application of the wife by petition, allot, assign, set apart and decree to her as alimony, the use of such part of her husband’s real and personal estate, or such pronortions of his earnings, income or revenue, as the court may determine, in its discretion, and during the pendency of the proceeding may require the husband to pay such sums to carry on the proceeding, or for her support as it shall deem necessary, in like manner as provided by section eight thousand six hundred twenty-eight of-the Compiled Laws of eighteen hundred ninety-seven, in case of suits for divorce.
    “Sec.- 8: In every proceeding pursuant to the preceding section the proceedings and practice therein shall be the same, -as near as may be, as is now provided for by law in cases of a petition or bill for divorce and alimony, and said' court of domestic relations shall have and exercise the same power and authority therein.
    “Sec. 9. In all proceedings brought pursuant to the two last preceding sections, the court may order and decree concerning the care, custody and maintenance of the minor children of the parties, and may determine with which of the parties the children, or any of them, shall remain, and during the pendency of the proceeding, may assign and decree to the wife the possession of any of the real and personal estate of the husband, and the court may decree the payment of a fixed sum of money for the support of such wife, and minor children, and that the payment of the same be secured upon real estate, or otherwise, at such times and in such manner as may be proper, and may enforce the performance of such decree by the sale of the real estate of the husband, or otherwise, as may be necessary. And the court shall have power to change the allowance from time to time, according to the circumstances, and may revoke such allowance altogether on satisfactory proof of a voluntary and permanent reconciliation: Provided, however, that such allowance shall be only during the joint lives of such husband and wife.
    “Sec. 10. In relation to any and all children of parents who shall or may be brought before said court, under and by virtue of the provisions of sections seven, eight and nine of this act, and of parents who shall be parties to any suit for divorce, or for the annulment of marriage, said court of domestic relations shall have and exercise all the jurisdiction, power and authority of juvenile courts, under and by virtue of

      act number three hundred twenty-five of the Public Acts of nineteen hundred seven, during the pendency of such proceedings.
    “Sec. 11. The judge may appoint one or more persons to act as probation officers and such other clerical assistance as may be necessary, to be paid from such funds as may be appropriated for the purpose from time to time by the county board of supervisors. The judge of said court may appoint other probation officers who shall receive no compensation from the public treasury for the duties performed under such appointment. A probation officer shall hold office during the pleasure of the court and shall act upon all cases in obedience to the orders of the court: Provided,

    that the court shall notify the State board of corrections and charities of the appointment of all probation officers who shall make such reports to said board as said board may from time to time demand.”
    Certain constitutional provisions are involved: “Article VII.
    “Section 1. The judicial power shall be vested in one Supreme Court, circuit courts, probate courts, justices of the peace and such other courts of civil and criminal jurisdiction, inferior to the Supreme Court, as the legislature may establish by general law, by a two-thirds vote of the members elected to each house.”
    “Sec. 8. The State shall be divided into judicial circuits in each of which there shall be elected one circuit judge. The legislature may provide by law for the election of more than one circuit judge in any judicial circuit. A circuit court shall be held at least four times in each year in every county organized for judicial purposes. Each circuit judge shall hold court in the county or counties within the circuit in which he is elected, and in other circuits as may be provided by law.”
    “Sec. 13. In each county organized for judicial purposes, there shall be a probate court. The jurisdiction, powers and duties of such courts and of the judges thereof shall be prescribed by law, and they shall also have original jurisdiction in all cases of juvenile delinquents and dependents.”

      “Article VIII.
    “Sec. 17. The legislature may by general law confer upon organized townships such powers of a local, legislative and administrative character, not inconsistent with the provisions of this Constitution, as it may deem proper.”
    “Sec. 20. The legislature shall provide by a general law for the incorporation of cities, and by a general law for the incorporation of villages; such general laws shall limit their rate of taxation for municipal purposes, and restrict their powers of borrowing money and contracting debts.
    “Sec. 21. Under such general laws, the electors of each city and village shall have power and authority to frame, adopt and amend its charter, and, through its regularly constituted authority, to pass all laws and ordinances relating to its municipal concerns, subject to the Constitution and general laws of this State.”
    “Article V.
    “Sec. 21. No law shall embrace more than one object, which shall be expressed in its title,” etc.
    “Sec. 30. The legislature shall pass no local or special act in any case where a general act can be made applicable, and whether a general act can be made applicable shall be a judicial question. No local or special act shall take effect until approved by a majority of the electors voting thereon in the district to be affected.” .
   Brooke, J.

(after stating the fact). Considering the history of legislation under the Constitution of 1850, it is apparent that there had grown up a pernicious practice on the part of the legislature in passing local acts. The practice was bad in two very important particulars. In the first place, much of the legislation thus enacted constituted a direct and unwarranted interference in purely local affairs and an invasion of the principles of local self-government. In the second place, such legislation affecting as it did certain limited localities in the State, the senators and representatives from unaffected districts were usually complaisant, and agreed to its enactment without the exercise of that intelligence and judgment which all legislation is entitled to receive from all the members of the legislature. This course led to many abuses (principally in amendments to city charters), some of which found their way into the courts, and were there redressed so far as the Constitution then in force would permit.

With these evils in mind, the Constitution of 1909 was formulated and adopted by the people. From a reading of the provisions above quoted and others of a similar character, it is, we think, entirely clear that it was the settled purpose of the framers of the new instrument and of the people who adopted it to forever insure to the people the right to control their affairs purely local, and to secure for all general legislation grave attention and the application of the collective wisdom of the legislators.

Assuming that we are correct in this premise, it is pertinent to inquire whether the object has been achieved. Based upon a classification by population, we find that the legislature of 1909 passed two acts purely local in application. In 1911 five such acts were passed, and in 1913 there were thirteen. Some of these may be justified under the new Constitution; but, regarding them as a whole, it is evident that, if classification by population is broadly sustained, local legislation may now be as freely enacted as before the adoption of the new Constitution, thus evading and avoiding the salutary check which that instrument sought to impose.

We take it to be conceded by counsel for respondent that the court of domestic relations is a new or “other” court within the meaning of article 7, § 1, of the Constitution, and that to be valid it must be established by “general law.”

We note, but disagree with the contention of one of respondent’s counsel (Mr. Gates), that there is nothing in section 1, art. 7, which, either expressly or by implication, prohibits the legislature from establishing “other courts of civil and criminal jurisdiction inferior to the Supreme Court by a local law.” The section in question authorizes the establishment of such courts by general law. If the contention is sound, the use of the word “general” was wholly superfluous. The language' is unambiguous, and by necessary implication prevents the establishment of such courts by local laws.

It is, however, contended that the act in question is valid as a general law. The act is limited in its operation by its title to “each county of this State which has a population of upwards of two hundred fifty thousand.” It is conceded that Wayne county is the only county having the requisite population. It is said that, if the normal increase in Kent county continues, that county will come under the operation of the act between 20 and 30 years hence. It is certain .that the law can never become operative in a vast majority of the counties of the'State. Personally, I am of the opinion that under the new Constitution all general legislation based upon classification of population, except such as is therein specifically authorized, is forbidden. Some of my associates, however, do not agree with me in this view. For the purposes of this case, therefore, I will assume that some general legislation based upon such classification may be valid. Under this assumption, is the act in question a valid general law?

Dillon, in his work on Municipal Corporations, vol. 1, § 151, says:

“But classification by population cannot be made arbitrarily and without reason. There must be some reason, in the nature of things, for the distinctions adopted. The size of the municipality as evidenced by its population must have a reasonable relation to the subject-matter of the legislation, and must furnish some fairly apparent reason for legislation differing from that applicable to other municipalities having a substantial difference in population.”

The cases where such classification has been sustained are collected in note 5 to the section. There are many cases where classification by population has been held invalid, among them the following: People v. Election Commissioners, 221 Ill. 9 (77 N. E. 321, 5 Am. & Eng. Ann. Cas. 562) ; State v. City of Des Moines, 96 Iowa, 521 (65 N, W. 818, 31 L. R. A. 186, 59 Am. St. Rep. 381); State v. Downs, 60 Kan. 788 (57 Pac. 962) ; St. Louis v. Dorr, 145 Mo. 466 (41 S. W. 1094, 46 S. W. 976, 42 L. R. A. 686, 68 Am. St. Rep. 575); Wanser v. Hoos, 60 N. J. Law, 482 (38 Atl. 449, 64 Am. St. Rep. 600) ; Bauer v. Williams, 118 Cal. 401 (50 Pac. 691).

In the Henneberger Case, 155 N. Y. 420 (50 N. E. 61, 42 L. R. A. 132), the court said:

“Although this act is drawn in general terms, if its provisions are such in number and character as unduly, with reference to the constitutional purpose, to restrict its operation, and, to all intents, to confine it to a particular locality, then, I think it comes as much under condemnation as though it designated the locality by name. While an act might be general, if it affected all towns of a class and that class was based on population, or some other condition, which might be recognized as possibly common to a class, or which might permit of classification, if it contain such added limitations as to restrict its operation to what must always be, in the nature of the case, a very limited number of specified localities, if not, in fact, one, then it is local within the constitutional sense.”

Later, in the case of People v. Dunn, 157 N. Y. 528 (52 N. E. 572, 43 L. R. A. 247), the same court sustained the statute authorizing a special jury in certain cases in each county of the State having a population of 500,000 or more. After distinguishing the case from the Henneberger Case, supra, the court said:

“There is nothing in this act to limit its general application in all cases where the population of the county has attained a certain size, and such a condition might reasonably be considered as possible generally.”

A consideration of all the eases cited, as well as many others, convinces us that a classification by population can never be sustained where it is, as in the case at bar, a manifest subterfuge. The act under consideration might with equal propriety have been limited in its operation by its title to the county of Wayne. Its “general” character is not established by the use of other words which mean the same thing. The clássification attempted cannot find excuse in necessity. Under the Constitution, additional circuit judges may be created as necessity requires. If changing social conditions require a broadening of their powers, that may be readily supplied through suitable legislation.

The domestic relations of the inhabitants of the counties of Wayne, Jackson, or Ogemaw are essentially the same. The same problems touching these relations are presented in every community, though with a frequency varying with the population. There is no reason, founded in logic, why the residents of Wayne county should be subjected to regulations in their domestic relations which are not applicable to residents in all other parts of the State.

The act is clearly unconstitutional, because it in terms (section 10) deprives the probate court of jurisdiction in certain cases of juvenile delinquents and dependents, which jurisdiction is expressly conferred upon the probate courts by section 13, art. 7, of the Constitution.

The act (section 4) is plainly in conflict with the last-named section, in that it deprives the circuit court of the county of Wayne, or at least the other judges thereof, of appellate jurisdiction in certain enumerated cases. This the legislature may not do. People, ex rel. Allen, v. Kent Circuit Judge, 37 Mich. 474; People, ex rel. Heath, v. Kent Circuit Judge, '37 Mich. 372. Circuit courts are constitutional courts, and the jurisdiction conferred by the Constitution cannot be diminished by legislative enactment. Nichols v. Judge of Superior Court, 130 Mich. 187 (89 N. W. 691), and cases cited.

The court of domestic relations is created by legislative enactment. A judge of that court cannot lawfully be clothed with a jurisdiction conferred by the Constitution upon a constitutional officer. State v. Hastings, 10 Wis. 525; Ex parte Corliss, 16 N. D. 470 (114 N. W. 962). See, also, People, ex rel. Allen, v. Kent Circuit Judge, supra; Allor v. Wayne County Auditors, 43 Mich. 76 (4 N. W. 492).

Inasmuch as respondent, under the authority of a legislative enactment, assumed to exercise a portion of the jurisdiction of the circuit court, which is a constitutional court, we are of opinion that such of his judicial acts as are within the jurisdiction of the circuit court should be considered as those of a de facto judge, not open to question upon jurisdictional grounds.

For the reasons assigned, we feel constrained to overrule respondent’s demurrer, and direct a judgment of ouster.

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


source: Caselaw Access Project

author: Kuhn, J.

license: Public Domain

text:
    PECK v. DETROIT UNITED RAILWAY.
    1. Constitutional Law — Franchise—Limitation.
    - A franchise granted to a street railway corporation hy the city of Detroit, reserving to the city the power of revocation at will, and providing for no definite term, is not void under section 29, art. 8, of the Constitution, whereby franchises for a longer period than 30 years are prohibited, since the grant cannot extend beyond the period limited by the Constitution.
    2. Same — Municipal Ownership — Franchises.
    Where the common council of the city of Detroit passed a franchise with a proviso that if the city should engage in the operation of street railways it should purchase the tracks and equipment of the portion covered by such franchise at a price to be determined by agreement or by arbitration, the proviso did not violate the Constitution by limiting the power of the council to revoke the resolution, and could not be construed as having that effect.
    Appeal from Wayne; Mandell, J. Submitted
    January 19, 1914.
    (Docket No. 115.)
    Decided May 4, 1914.
    Bill by Barton L. Peck and another against the Detroit United Railway and city of Detroit for an injunction to restrain the construction of a line of street railway proposed to be built under a municipal franchise. From an order sustaining defendants’ demurrer complainants appeal.
    Affirmed.

      Keena, Lightner, Oxtoby & Oxtoby, for complainants.

      Hinton E. Spalding and John C. Donnelly, for defendant Detroit United Railway.

      Richard I. Lawson, for defendant city of Detroit.

      The complainants, who are the owners of property abutting on Larchmont avenue, in the city of Detroit, filed this bill of complaint to restrain the construction of the proposed Junction Avenue Crosstown Line, which was to be built under authority of a resolution of the common council of that city, of date September 30, 1913. This action involves the validity of this resolution, which is as follows:
    “Whereas, upon the terms of a temporary arrangement between the city of Detroit and the Detroit United Railway, made August 7, 1913 (see Journal Common Council, 1913, pages 1125, 1127), it was understood among other things that the Detroit United Railway would build a crosstown line on or near Junction avenue in connection with existing tracks upon particular lines or streets to be approved by the common council of said city, and that the work of construction should be started in the year 1913 and completed as soon as practical, and that such crosstown line or extension should be constructed and operated under the same terms, in substance, as the Hamilton Boulevard extension was constructed and is being operated (for the terms of said Hamilton Boulevard extension, see Journal Common Council, year 1911, pages 619, 620) ; and whereas, the said common council has determined upon and fixed the lines or streets upon which said crosstown or junction line or extension shall be located and constructed, to wit: Double track on Junction avenue from West Jefferson avenue to Michigan avenue; thence east on Michigan avenue to Thirty-third street; thence single track on Thirty-third street north to Van Court; thence on Van Court single track north to Larchmont; thence single track on Larchmont east to Grand River avenue; thence north on Grand River avenue double track to Allendale; thence west on Allendale single track to Thornton; thence south on Thornton single track to Thirty-fourth street; thence south on Thirty-fourth street single track to Michigan avenue; thence along Michigan double track to Junction avenue:
    “Now, therefore, be it resolved that consent, permission and authority is hereby granted to the Detroit United Railway to enter upon said above-named streets and avenues, and construct thereon a street railroad with all necessary side tracks, turnouts, switches, poles, wires and overhead power equipment and connect the same and operate its cars on said streets and avenues under the same terms and conditions under and by virtue of which it is operating that portion of its system constructed under authority of the said Hamilton Boulevard extension above referred to, except as herein otherwise provided.
    “And be it further resolved and understood that if the city of Detroit shall be lawfully authorized to engage in the ownership and operation of street railways and shall so engage in such ownership and operation and shall desire to operate a part of its system over said streets and avenues it shall purchase the tracks and equipment constructed under this consent, together with the equipment necessarily furnished and acquired by said company for the operation of cars over and upon said streets and tracks and shall pay therefor a sum of money equal to the cost thereof, less depreciation to be ascertained at the time of the purchase thereof by the city, the same to be agreed upon by the parties hereto or if they should fail to agree the said sum to be determined by a board of arbitrators, one member of which shall be selected by the company, another by the mayor of the city of Detroit, and the third by the two thus chosen, and a decision of said board or a majority thereof shall be final ; provided that the board of street railway commissioners of the city 'of Detroit or any member thereof shall have the supervision of the construction of said tracks and shall have free access to the books and vouchers of said company for the purpose of ascertaining the cost of said tracks and construction together with any other information, in whatever form it may be, which said street railway company may have which shows the cost of such construction.
    “And be it further resolved, that in connection with this permit it is further understood that the company will carry passengers over said tracks for the following rates of fare:
    “(1) Seven tickets for twenty-five cents, each of which tickets shall be good for a ride for any distance in one direction over said tracks hereby authorized.
    “(2) Upon the payment of a fare at the rate of seven tickets for twenty-five cents or a five-cent fare a transfer shall on demand be issued to any connecting or intersecting line according to the usual custom.
    “ (3) The existing provisions now in force on other lines for workingmen’s tickets, so-called, eight tickets for twenty-five cents, also shall be in force on said line.
    “(4) Single cash fare shall be five cents with now existing transfer privileges.
    “Be it further resolved, that it is further understood that said railway company by its acceptance hereof gains no term rights in said streets and avenues by reason of installing the equipment herein permitted, and that the common council or the people of the city of Detroit at their pleasure or caprice may revoke the permit hereby granted and said company shall forthwith remove from the streets and avenues the property permitted to be placed therein by it under this grant.
    m “It is further understood and agreed between said city of Detroit, said common council and said railway company that the making of this grant and the acceptance thereof by said company shall not be deemed to be a waiver of any rights of said city of Detroit or of said railway company with reference to the construction, maintenance and operation of said line of railway or street railway track now owned, maintained and operated in said city and that each party hereto saves and reserves all its rights whatever they may be the same as though this grant had not been made and accepted.
    “Be it further resolved, that the preamble to this resolution be, and the same is hereby constituted, a part and parcel of this resolution and it is so understood.
    “And be it further resolved, that this permit is void if not accepted within ten days after its approval by the mayor.”
    It is contended that this resolution is void because it is in conflict with section 29, article 8, of the State Constitution, which provides:
    “Sec. 29. _ No franchise or license shall be granted by any municipality of this State for a longer period than thirty years”—

      and is also in conflict with section 25, article 8, which provides:
    “Sec. 25. No city or village shall have power to abridge the right of elective franchise, to loan its credit, nor to assess, levy or collect any tax or assessment for other than a public purpose. Nor shall any city or village acquire any public utility or grant any public utility franchise which is not subject to revocation at the will of the city or village, unless such proposition shall have first received the affirmative vote of three-fifths of the electors of such city or village voting thereon at a regular or special municipal election; and upon such proposition women taxpayers having the qualification of male electors shall be entitled to vote.”
    A decree was entered sustaining the demurrers filed by the defendants. Complainants elected to stand on the bill of complaint without amendment, as it set forth all the facts in the case, and the decree accordingly dismissed the bill. From this decree, complainants have appealed.
   Kuhn, J.

(after stating the facts). It is the complainants’ contention that under section 29, article 8, of the Constitution, the grant in question is invalid, because it contains no maximum term limit beyond which it cannot run, although the right of revocation is reserved to the grantor. What is the grant in question? The most that can be claimed for it is that it is a revocable right. It is immaterial whether it is termed a grant, license, franchise, or permit. Its important feature in this discussion is that whatever it is termed, it is revocable at the will of the city, whenever the public interest requires its termination. By its terms this is to be determined by the common council or the people of the city of Detroit, at their pleasure or caprice. The resolution clearly provides that no term right shall be acquired by the railway company because of the acceptance of the grant by it, and by virtue of the provisions of said section 29, article 8, of the Constitution, which is a clear limitation on the power to grant franchises or licenses, this grant of power could not extend beyond the period of 30 years fixed by the section, even if it should not be revoked by the granting power before the expiration of that time. In the absence of a time limitation in the grant, it must be assumed that it cannot extend beyond the term fixed by the Constitution. Boise, etc., Water Co. v. Boise City, 230 U. S. 84 (33 Sup. Ct. 997). Not being a grant for a longer period than 30 years, which is prohibited by the Constitution, and, complying with section 25 of article 8 in that it is “subject to revocation at the will of the city,” we are clearly of the opinion that the resolution making the grant was not in violation of any constitutional prohibition.

It is also contended that the council’s resolution should be held void because it contains a proviso that, in case the city shall engage in municipal ownership and operation of street railways, and shall desire to operate on the streets mentioned in the resolution, it shall purchase the tracks and equipment therefor at a price to be fixed by agreement or arbitration. This provision cannot be construed to be a limitation upon the power to revoke the .permit. This power can be exercised without complying with any conditions. It can be exercised at the will of the common council or the city, and is independent of any other provision. The question of whether or not the city could be compelled to purchase the property and equipment of the railroad as provided for in the resolution, in case the right of revocation is exercised, is a question not involved here.

The decree of the court below dismissing the bill of complaint is affirmed, with costs to defendants.

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


author: Ostrander, J.

text:
    STATE BOARD OF AGRICULTURE v. AUDITOR GENERAL.
    1. Colleges and Universities — Michigan State Agricultural College — Board of Agriculture — Statutes.
    The provisions of section la of Act No. 324, Pub. Acts 1913, providing that no part of the appropriation granted by this act or of any other .appropriation for the Michigan agricultural college should be available in case a sum in excess of $35,000 from any or all sources should be expended in any one fiscal year for the maintenance of the mechanical and engineering department, are to be construed as limiting the expenditures for the maintenance of the department specified to $35,000 and to make unavailable for college purposes all of its funds in case the maximum named should be exceeded.
    2. Same — Construction of Statutes.
    While the act might stand without this provision if the clause was intended as merely admonitory, the language is not so construed, but is held, to have been intended as a eontrollin'g limitation.
    3. Constitutional Law — Colleges—Michigan Agricultural College.
    Under the Constitution, art. 11, §§ 10 and 11, the legislature is required to maintain the agricultural college, and by section 8, the State board of agriculture is given control and supervision of its funds, so that it exceeded the power of the legislature to limit the amount which the board of agriculture might expend to maintain the engineering and mechanical department. Act No. 324, Pub. Acts 1913.
    4. Same — Taxation.
    The statute being invalid, its provisions for increasing the tax for the benefit of the college to one-sixth of a mill must be declared ineffectual, and it is held, that the conditions of section la were so mutually connected with and dependent on the remainder of the law as to invalidate the entire act.
    Mandamus by the State board of agriculture against Oramel B. Fuller, auditor general, to compel respondent to draw certain warrants on the State treasurer.
    Submitted April 7, 1914.
    (Calendar No. 26,187.)
    Writ granted May 29, 1914.

      Stevenson, Carpenter, Butzel & Backus (Beaumont, Smith & Harris, of counsel), for relator.

      Grant Fellows, Attorney General, and L. W. Carr, Assistant Attorney General, for respondent.
    Under the Constitution and laws of the State, money may be drawn from the State treasury only upon the warrant of the auditor general. On the 23d of March last the auditor general declined to draw warrants for certain sums asked for by the State board of agriculture, basing his action upon the legislative declaration found in Act No. 324 of the Public Acts of 1913, which appropriates and orders to be levied for the use of the agricultural college, in the year 1913 and thereafter, annually one-sixth of a mill on each dollar of the taxable property in the State, and concludes as follows:
    “Sec. 1 (a.). No part of this or any other appropriation, shall be available in case a sum in excess of thirty-five thousand dollars from any or all sources, shall be expended in any one fiscal year for the maintenance of the mechanical and engineering department.”
    When the warrants were refused, a sum in excess of the requisitions stood credited to the agricultural college fund. Requisitions previously honored advised the auditor general that a sum in excess of $35,000 had been expended in maintaining the mechanical and engineering department of the college since June 30, 1913.
    The State board of agriculture filed its petition for an order requiring the auditor general to draw the refused warrants and such others as it might be entitled to. The auditor general made answer, and, upon the petition and answer, there being no disputed facts, the matter has proceeded to a hearing. It is asserted, in concluding the petition, that, if the auditor general’s construction of the act of 1913 is the correct one, it prevents relator’s performing duties imposed by the Federal statutes and those imposed upon it by the Constitution of the State; that the appropriation, in view of the condition, is not one which it is free to accept or reject. It cannot reject the appropriation without disobeying constitutional mandates; it cannot accept it and perform the condition without denying itself the exercise of constitutional powers. The condition is not within the title of the act. The act may be construed to limit the expenditure of moneys raised by taxation and appropriated by the act, in which case it has been complied with. If it may not be so construed, the condition is altogether unconstitutional, and relator is entitled to receive the appropriation.
    In behalf of the respondent auditor general the attorney general contends that:
    “An examination of the conditions found in section 1 (a) of the act under consideration demonstrates that the provisions are in no wise ambiguous, and there can be no serious question as to the purpose of the legislature in attaching this condition. Undoubtedly it was the same purpose that prompted the condition attached in the regents’ case involving the homeopathy department. It is not a question for this Court, we respectfully submit, nor is it a question for the administrative officers of the State, whether the agricultural college shall continue as a competitor against another institution maintained at State expense of over $200,000 per year; nor is it a question for this Court or the administrative officers of the State whether this legislation is wise in policy or not; nor is it a question, we respectfully submit, for relator board to determine. The money in the treasury of the State was the property of the State; none of it was the property of the agricultural college until appropriated by the legislative branch of the State government. That branch of the State government has the exclusive control of appropriations to State institutions, and may prescribe the amount and condition upon which any of the public institutions of the State can withdraw the same. If, in the wisdom of the legislature, it is inadvisable to continue two appropriations to two institutions which are duplicating work in the State, neither the courts, the administrative officers, or administrative boards can set aside such action.
    “Relator understood clearly the conditions under which this appropriation was made; it understood clearly that, if the act was valid, its engineering department must be curtailed; and, while protesting against the power of the legislature to attack such conditions, it continued to make its requisitions upon the auditor general and to receive the money appropriated to it under this and other acts, and to use such money contrary to the conditions found in this act. The people, by the Constitution of 1908, gave to relator powers never before possessed by the controlling board of the agricultural college, the same powers exercised by the regents of the university, but they still reserved to their representatives chosen each two years the right to determine the appropriations to be made, not only to the other State institutions, but also to the university and the agricultural college. The respondent is but carrying out the conditions imposed under the act in question. Relator’s present position, if unfortunate, arises from its failure to recognize that the legislature, and the legislature alone, holds the purse strings of the State.”
    To understand and to dispose of the contention presented, it is necessary to refer to facts appearing in the pleadings or evidenced by the Constitution of the State and Federal and State statutes. By the Constitution of 1909 the State board of agriculture is made, what before it was not, a constitutional board and body corporate. It is given general supervision of the college and direction and control of “all agricultural college funds.” Article 11, § 8. Sections 10 and 11 of article 11 read, respectively, as follows:
    “Sec. 10. The legislature shall maintain the uni-

      versity, the college of mines, the State agricultural college, the State normal college, and such State normal schools and other educational institutions as may be established by law.
    “Sec. 11. The proceeds from the sales of all lands that have been or hereafter may be granted by the United States to the State for educational purposes and the proceeds of all lands 'or other property given by individuals or appropriated by the State for like purposes shall be and remain a perpetual fund, the interest and income of which, together with the rents of all such lands as may remain unsold, shall be inviolably appropriated and annually applied to the specific objects of the original gift, grant or appropriation.”
    Agricultural college funds, when the Constitution was adopted, consisted of sums paid for tuition, receipts from sales of products of the institution, a grant of money by the Federal" government, the interest paid by the State upon money received from sales of land granted by the Federal government (the proceeds of the sales having been covered into the State treasury), and, lastly, the proceeds of a tax of one-tenth of a mill levied annually upon the valuation of taxable property of the State pursuant to the provisions of Act No. 232 of the Public Acts of 1901 (4 How. Stat. [2d Ed.] § '9808). The condition attached to the Federal grant of lands was:
    “That all moneys derived from the sale of the lands aforesaid by the States to which the lands are apportioned, and from the sales of land scrip hereinbefore provided for, shall be invested in stocks of the United States or of the States, or some other safe stocks, yielding not less than five per centum upon the par value of said stocks; and that the moneys so invested shall constitute a perpetual fund, the capital of which shall remain forever undiminished (except so far as may be provided in section fifth of this act), and the interest of which shall be inviolably appropriated, by each State which may take and claim the benefit of this act, to the endowment, support, and maintenance

      of at least one college, where the leading object shall be, without excluding other scientific and classical studies, and including military tactics, to teach such branches of learning as are related to agriculture and the mechanic arts, in such manner as the legislature of the States may respectively prescribe, in order to promote the liberal and practical education of the industrial classes in the several pursuits and professions in life.”
    And the Federal grants of money were made to the State for the more complete endowment and maintenance of such agricultural college as had been or might be established in accordance with the original land grant act. Formal acceptances of the Federal bounty were made by the legislature (Acts Nos. 46 and 140, Session of 1863; Act No. 80, Session of 1891), and it was formally devoted to the maintenance of the agricultural college. Including the interest paid by the State, the proceeds of Federal bounty amount to more than $120,000 annually. Although one purpose of the Federal grants was the teaching of mechanic arts, and instruction was in some degree afforded in mechanic arts, it was more than 20 years after the first grant was made before a mechanical department was established at the college. Act No. 42, Public Acts 1885. Since it was established, the State board of agriculture has been repeatedly expressly charged with the maintenance of the department. Section 15 of Act No. 188, Public Acts of 1861, an act which reorganized the college, provides a course of instruction as follows:
    “The course of instruction shall embrace the English language and literature, mathematics, civil engineering, agricultural chemistry, animal and vegetable anatomy and physiology, the veterinary art, entomology, geology, and such other natural sciences as may be prescribed, technology, political, rural and household economy, horticulture, moral philosophy, history, bookkeeping, and especially the application of science and the mechanic arts to practical agriculture in the field.”
    To refer to no other instances, in Act No. 232, Public Acts of 1901, is found the following condition:
    “The Michigan State board of agriculture shall maintain at all times a sufficient corps of instructors in all the courses of study of the agricultural college as at present constituted, * * * the same being known as the agricultural department, the mechanical department and the woman’s department; * * * and shall make a fair and equitable division of the funds provided by this act in accord with the wants and needs of said courses of study. * * * ”
    And the concluding language of the section is:
    “Should the State board of agriculture fail at any time to maintain any of said departments as herein provided, the terms of this act shall be suspended until further action by the legislature.”
    The mechanical department has grown in importance until it now represents an investment of more than $227,000. To maintain it during the year ending June 30, 1913, there was expended $27,000 for supplies, machinery, and maintenance of buildings, and about $34,000 for salaries of professors and instructors.
    Following the enactment of the law in question here and before any money had been drawn under it, the State board of agriculture made a statement in writing, copies of which were sent to the State officers, in which statement, after reviewing the history of the mechanical and engineering department of the college and the Federal and State legislation pertaining thereto, the following conclusions are set forth:
    “The board is advised by reputable legal counsel, and it believes, that under the Constitution of the State, the legislature has no authority to enact the limiting provision hereinbefore first referred to, and especially that it had no power to limit or determine the use of the Federal funds. However, without in any manner accepting the provisions of said limitation, and without waiving our right to insist upon its invalidity, we respectfully make the following declaration of our intention in reference to said mechanical and engineering department:

      “(a) We shall continue that department as now conducted and as it may legitimately grow and develop.

      “(b) We shall limit the annual expenditure of State funds in this department to $35,000.00.
    “(c) For the remainder of the necessary expenditure we shall use a sufficient portion of the funds of the Federal government.

      “(d)- The secretary is instructed to mail certified copies of this statement, and the action of the board in reference thereto, to the governor, the auditor general, the State treasurer, the attorney general and to the president of the senate and the speaker of the house.”
    As matter of bookkeeping, the auditor general credits the agricultural college fund with all moneys belonging to it. During the fiscal year beginning July 1, 1913, and until the month of March, 1914, requisitions upon the fund were honored until a sum in excess of $400,000 had been paid upon the requests of the State board of agriculture, there remaining, in the fund in March, 1914, when further demands were refused, a sum in excess of $190,000.
   Ostrander, J.

(after stating the facts). In attempting to find the meaning to be given to section 1 (a.), it will be assumed that the legislature knew that, independent of the immediate appropriation, there was a fund already devoted to the needs of the college larger than any sum likely to be used to maintain the particular department. If the purpose was to limit the total sum which should be expended to maintain that department, it could not be accomplished by limiting the amount which might be taken from the immediate appropriation. If there was no purpose to limit the total amount which might be expended, the provision is wholly insensible. In any event, the words “from any and all sources” may not be disregarded. Section 1 (a) cannot be held as intended merely to place a limitation upon the amount to be taken from the immediate appropriation to be used in maintaining the mechanical and engineering department.

While no reading and no analysis of the language employed leaves one entirely certain of the meaning of the provision, it seems most reasonable to say that the purpose was to limit expenditures for maintaining the particular department to $35,000 annually, and to make unavailable for the use of the college all of its funds in case the maximum thus fixed was exceeded. I do not overlook the language, “No part of this' or any other appropriation shall be available,” nor the actual occurrence of a result which was inevitable; namely, that unless the declaration of the relator board was to be accepted for the fact some part of the immediate and of other appropriations would of necessity be available, if the college was to continue to exist, since it could not be known before the fact whether relator would or would not expend more than $35,000 in maintaining the particular department. Some question might be raised also about the meaning of the words “or any other appropriation.” The reference might be to an unexpended appropriation or the term “appropriation” used to designate, and not improperly, the earlier legislation which devoted the Federal gifts to the maintenance of the college. But I think we must say that the legislative purpose expressed in this statute is the one to which the respondent has given effect, and, assuming the law to be valid, respondent cannot be required to issue to relator further warrants for money.

We must either say this, or else conclude that section 1 (a) was added to the act as an admonition, and not a command, or a condition; that it expresses the opinion of the legislature with respect to the manner in which the agricultural college funds shall be employed. If it was an admonition merely, the act could, of course, stand without it. Because of the language employed in section 1 (a) I do not feel warranted in concluding that it is admonitory only. It is therefore necessary to determine whether the legislature has, as it is claimed, exceeded its constitutional powers, and, if it has, then the state of the applicable law.

If section 1 (a) be held to be valid, its eifect would be legislative supervision of the college. To determine that a department of the college which has been maintained at a cost of $60,000 annually for instructors and supplies -shall be from a given date maintained at a cost of $35,000 annually for instructors and supplies is to determine that it shall have fewer supplies, or fewer, or less capable, instructors, or both. It is something more than reducing a general appropriation so that the expenses in some or in all departments of the college must be reduced, leaving the proper supervisors to determine how efficiency can be best maintained under new conditions. The Constitution has given to the relator the general supervision of the college and the direction and control of all agricultural college funds. So long as the relator employs them for the purposes intended by the grant, it is beyond the power of the legislature to control the relator’s use of the funds received from the Federal government and long ago appropriated to the agricultural college. Undoubtedly the grant of funds was to the State, .and the disposition of them wholly within the power of the State, acting through its legislature, in accordance with the conditions of the trust imposed. Montana, ex rel. Haire, v. Rice, 204 U. S. 291 (27 Sup. Ct. 281); Wyoming, ex rel. Wyoming Agricultural College, v. Irvine, 206 U. S. 278 (27 Sup. Ct. 613). See, also, Massachusetts Agricultural Col lege v. Marden, 156 Mass. 150 (30 N. E. 555). I am called upon to neither affirm nor deny the proposition that the legislature may now. appropriate the Federal fund, in whole or in part, to some other institution, withdrawing it, or some of it, from the agricultural college, so long as it keeps faith with the congress. The legislature has not withdrawn it from the college nor appropriated it, or any part of it, to another institution. It remains an agricultural college fund, within the meaning of the Constitution, devoted, under the supervision and direction of the relator, to the college and to the purposes expressed in the grant, in State legislation, and, finally, in the Constitution of the State. It is required to be “annually applied to the specific objects of the original gift, grant or appropriation.” Necessarily it must be so applied, under existing conditions, by the constitutional supervisors of the fund, and of the college, and not by the legislature. It follows that the legislature exceeded its powers in attempting to deprive the relator of its constitutional control of agricultural college funds derived from the Federal government. The constitutional powers of the State board of agriculture with respect to the college and its funds are the same as those of the board of regents of the university with respect to the university and its funds, and authority for the conclusion stated may be found in Sterling v. Regents of the University, 110 Mich. 369 (68 N. W. 253, 34 L. R. A. 150); Board of Regents v. Auditor General, 167 Mich. 444 (132 N. W. 1037), as well as in Bauer v. State Board of Agriculture, 164 Mich. 415 (129 N. W. 713).

I assume that the legislature, in amending the original bill by adding section 1 (a) thereto, acted in good faith and with the highest motives. I am obliged to find that in doing so constitutional-powers were exceeded. I am obliged to find, further, that the legislative intent was to deprive the college of all funds, however derived, upon the contingency expressed in the act. This being so, the question is whether it can be said that the act would have passed without the condition.

In deciding this question, we are not concerned with, do not inquire into, and cannot know the purpose and intent of legislators. We must look at the law itself and judicially ascertain the intent of the legislature.

“If a statute attempts to accomplish two or more objects, and is void as to one, it may still be in every respect complete and valid as to the other. But if its purpose is to accomplish a single object only, and some of its provisions are void, the whole must fail unless sufficient remains to effect the object without the aid of the invalid portion. And if they are so mutually connected with and dependent on each other, as conditions, considerations, or compensations for each other, as to warrant the belief that the legislature intended them as a whole, and if all could not be carried into effect the legislature would not pass the residue independently, then if some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected must fall with them.” Cooley’s Constitutional Limitations (6th Ed.), p. 211.

There are some facts which we may and do know which aid us in this inquiry. We know that in the year 1901, and until the year 1913, the State appropriation for the agricultural college was one-tenth of a mill. In 1913, by the act in question here, this appropriation was increased, upon condition, to one-sixth of a mill. The appropriation made in 1901 does not fail if the act of 1913 is held invalid. The college will still receive the proceeds of a tax of one-tenth of a mill upon the taxable property of the State, and it appears that upon this basis something remains in the treasury. It is contended that the decision of this court in Moreland v. Millen, 126 Mich. 381 (85 N. W. 882), supports the ruling that the act may stand, notwithstanding the invalid condition, and that to hold otherwise is to overrule the decision, in that case. I have read the opinions delivered in that case with care and with no disinclination to sustain the relator in this controversy. The cases seem to me to be wholly unlike. For the purposes of the decision in that case, it was assumed in the majority opinion that the legislature, in the act there in question, sought to improve the method of administering public works in the city of Detroit. The act made radical changes in the existing law. It provided finally that a superintendent of public works should be appointed, for a designated, but short, period of time, by the governor of the State, and thereafter by the mayor of the city. It was held that the legislature exceeded its powers in providing for the provisional appointment, but that the whole law was not thereby made invalid. It was held further that, an office having been created by the act, the mayor might proceed at once to fill it by appointment. In that case the invalid portion of the act provided for a mere detail; in this case it is the condition upon which an increased appropriation is made. It is as though the legislature, in 1913, had for that year, and each succeeding year, provided a fund for the college, and for a further sum to be given it upon condition.

The whole act must fail, and, this being so, the respondent should be advised (it is unlikely that a writ will be necessary) that the act of 1913 is void; that the act of 1901 is in force; that the fund deri/ed from the Federal government and a fund equal to the one created by that act are within the control of the relator.

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


author: Bird, J.

text:
    LEHMAN v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO.
    1. Attorney General — Fee—Contingent Compensation.
    Where plaintiffs made with an injured party an oral agreement to take his case as attorneys and prosecute the claim for one-third of the proceeds if the client should pay expenses, and, if not, the attorney should have 50 per cent, of the amount to he secured, and where plaintiffs proceeded with the suit and the client paid none of the costs and defendant settled with the client direct after having notice of the contingent contract, there was evidence to sustain a verdict for plaintiffs for half the amount obtained by the compromise.
    2. Champerty and Maintenance — Contracts—Validity.
    Although it was champertous at common law to agree to divide the subject matter of litigation between client and attorney, and for the latter to advance the expense of suit, the former rule has been abolished in Michigan by statute. 3 Comp. Laws, §§ 10054, 11254 (5 How. Stat. [2d Ed.] §§ 12704, 14432).
    3. Attorney and Client — Notice—Compromise.
    Evidence that plaintiffs, in a suit to recover their share of proceeds secured by a client in compromising a personal injury claim, had notified the defendant railroad and all its attorneys that they had the case on a contingent basis, presented a question of fact for the jury on the issue of notice.
    4. Same.

      Held, also, that a verdict for plaintiffs was not contrary to the weight of the evidence.
    Error to Wayne; Hosmer, J.
    Submitted November 13, 1912.
    (Docket No. 4.)
    Decided June 1, 1914.
    Case by Michael J. Lehman and others against Elmer Wood, the Detroit, Grand Haven & Milwaukee Railway Company, Harrison Geer, and others. Judgment for plaintiffs. Defendants bring error.
    Affirmed.

      W. V. Butler, for appellants.

      Frank C. Moriarty, for appellees.
   Bird, J.

It is the claim of the plaintiffs, who were practicing attorneys in the city of Detroit in August, 1909, that they were employed by one Elmer Wood to prosecute a personal injury case for him against the defendant railroad company for injuries which he received from a gunshot wound at the hands of one of the company’s detectives. After Wood received the injury, he was removed to a hospital, where plaintiff Lehman visited him at his request. Mr. Lehman made him a proposition that he would take the case if the necessary expenses were paid for one-third of what he recovered by suit or compromise, and, if he (Wood) did not pay the expenses, he would retain 50 per cent, of what was recovered. If nothing was recovered, no charge would be made. It is claimed defendant Wood accepted this proposition and requested plaintiffs to commence suit at once, as he was then uncertain as to whether he would survive his injuries. In pursuance of this understanding, plaintiffs commenced the suit, paid the filing fee to the clerk and the sheriff’s fee for making service of the process, attended the trial of the criminal case against the detective, made investigations, took the deposition of plaintiff Wood, and looked up witnesses. After rendering these services, the case was compromised for $1,200 by the attorneys for the railroad company directly with Wood, through the intervention of Mr. Murphy, the employer of Wood. It was claimed by plaintiffs that they notified Mr. Murphy and all of the attorneys representing the railroad company before the settlement was made that they had the case upon a contingent basis. Failing to receive their fees in accordance with their contract, they brought this suit to enforce them against Wood, the railroad company, its attorneys, and Mr. Murphy.

The questions raised by defendants’ assignments of error are:

(1) Was there a completed contract between the parties?
(2) If there were one, was it a void contract?
(’3) Should a verdict have been directed in behalf of defendants Geer, Williams, and Murphy?
(4) Was the verdict against the weight of the evidence?

1. The testimony disclosed that Mr. Lehman stated to Mr. Wood the terms upon which he would take the case, namely: One-third of the amount recovered if Wood paid the expenses, and 50 per cent, if he did not. There is testimony to the effect that Wood assented to this proposition and requested Mr. Lehman to proceed with the suit at once, and that afterwards Wood neither paid nor offered to pay any of the expenses. This testimony was sufficient to justify the jury in finding that Wood accepted the 50 per cent, proposition.

2. It is urged that, if the contract were a completed one, it is invalid by reason of the agreement of plaintiffs to pay the necessary expenses of the litigation. It is conceded -that since the passage of section 11254, 3 Comp. Laws (5 How. Stat. [2d Ed.] §14432), it has been lawful for an attorney to contract with his client on a contingent basis with respect to his fees, but that he may not agree to pay the expenses of the litigation because it is in violation of section 1136, 1 Comp. Laws (5 How. Stat. [2d Ed.] §12554). That section provides that:

“No attorney, solicitor or counselor, by himself, or by or in the name of any other person, shall lend or advance, * * * or procure to be lent or advanced, any money, or any bond, bill of exchange, draft or other thing in action, to any person, as an inducement to the placing, or in consideration of having placed, in the hands of such attorney, solicitor or counselor, or in the hands of any other person, any debt, demand, or thing in action, for collection.”

By the common law, champerty was defined to be “a bargain with a plaintiff or defendant to divide the land or other thing sued for between them if they prevail at law; the champertor agreeing to carry on the suit at his own expense (citing Bouvier’s Institutes of American Law, vol. 4, p. 236).” Backus v. Byron, 4 Mich. 535. The facts upon which plaintiff recovered in this case are clearly within the common-law definition of champerty, and are also within the inhibition .of the foregoing statute. But it is contended by the plaintiffs that subsequent legislation in this State has wiped away the common and statute law with reference to champerty. The first inroad made upon them was “when the legislature enacted that lands in the adverse possession of another might be conveyed, and also that choses in action might be assigned,” and it is doubtful whether the laws relating to champerty have had any place in our jurisprudence since the passage of those statutes. Wildey v. Crane, 63 Mich. 720 (30 N. W. 327). But, if they have, the passage of Act No. 58 of the Laws of 1867 (3 Comp. Laws, §11254 [5 How. Stat. (2d Ed.) §14432]), would seem to have completed what the other statutes began. That section in part provides:

“That all existing laws, rules, and provisions of law, restricting or controlling the right of a party to agree with an attorney, solicitor, or counsel, for his compensation, are repealed, and hereafter the measure of such compensation shall be left to the agreement, express or implied, of the parties.”

This statute has been construed frequently by this court, and, on several occasions where the facts have been similar to those under consideration, it has followed Wildey v. Crane, supra, in holding that common-law champerty was repealed by the foregoing statute. Town v. Tabor, 34 Mich. 262; Wildey v. Crane, 63 Mich. 720 (30 N. W. 327) ; Denman v. Johnston, 85 Mich. 387 (48 N. W. 565) ; Smedley v. Dregge, 101 Mich. 200 (59 N. W. 411); In re Service’s Estate, 155 Mich. 179 (118 N. W. 948); Foley v. Railway Co., 157 Mich. 67 (121 N. W. 257) ; Grand Rapids, etc., R. Co. v. Cheboygan Circuit Judge, 161 Mich. 181 (126 N. W. 56, 137 Am. St. Rep. 495); Dreiband v. Candler, 166 Mich. 49 (131 N. W. 129).

Section 1136 was an early statute, and, as it was in affirmance of the provisions of common-law champerty, we are of the opinion that it, too, was abrogated by sections 11254 and 10054.

3. It is said that a verdict should have been directed in behalf of defendants Geer, Williams, and Murphy. This contention is without much force when Mr. Lehman’s testimony is considered, that he advised Mr. Murphy and all the attorneys of the railroad before the settlement was made that he had the case on a contingent basis. This testimony made the question of notice one of fact for the jury.

4. There was much- conflict in the testimony on some of the material questions involved in the case; these questions were submitted to a jury, and we do not think the court was in error in refusing to set aside their verdict on the ground that it was against the weight of the evidence.

The judgment is affirmed.

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


text:
    CHIODO v. WILLIAMS.
    1. Equity — Practice—Taxation—Writ of Assistance.
    Under Act No. 211, Pub. Acts 1905 (1 How. Stat. [2d Ed.] §2021), making the deed of the State land commissioner prima, facie evidence of title, a petition for writ of assistance to obtain possession of tax homestead lands purchased by third parties and conveyed to the petitioner, was sufficient without alleging the regularity of the proceedings leading up to the issuance of such deed where the petition showed the due execution and delivery of State deeds and making of a demand on the defendant, who was in possession and to whom the petitioner exhibited the deeds conveying title to him.
    2. Same — Writ of Possession — Ejectment—Remedy.
    The trial court correctly held that a writ of possession was the proper remedy to put the purchaser of tax homestead lands in possession, that the action of ejectment, was not the sole remedy. 1 Comp. Laws, § 3959, as amended (1 How. Stat. [2d Ed.] §1911).
    3. Taxation — State Tax Lands.
    After six months from the date on which deeds to the State of tax homestead lands have been recorded under section 127 of the general tax law, Act No. 107, Pub. Acts 1899 (1 How. Stat. [2d Ed.] § 1898), the owner of the premises is precluded from contesting the validity of the proceedings.
    Appeal from Muskegon; Sessions, J.
    Submitted January 13, 1913.
    (Docket No. 85.)
    Decided June 1, 1914.
    Petition by Emanuel Chiodo against John Williams for a writ of assistance. From an order granting the writ, defendant appeals.
    Affirmed.

      Turner & Turner, for appellant.

      Cross, Vanderwerp, Foote & Ross, for appellee.
   Bird, J.

The petitioner applied to. the Muskegon circuit court, in chancery, for a writ of assistance to put him into possession of lot No. 8, block 156, revised map of 1903, in the city of Muskegon, which had been deeded to the State by the auditor general under the provisions of the general tax law in December, 1908. Following the deed to the State, the parcel was withdrawn from homestead entry by the auditor general and commissioner of the State land office, and afterwards restored to the market, and in October, 1909, was sold by the commissioner of the State land office to Alfred Davidson and Herman Woycke, who received a deed therefor; the same being issued in pursuance of section 131, Act No. 206 of the Public Acts of 1893, as amended. A year later, in October, 1910, Davidson and Woycke conveyed the same to petitioner, and he caused a demand for possession to be served upon the defendant, the former owner, who was yet in possession, at the same time exhibiting to him the deed from the commissioner of the State land office to Davidson and Woycke, and also their deed to petitioner. The defendant resisted the demand, and this proceeding was instituted, and, after a hearing thereon, it resulted in an order granting the writ. From this order, defendant appeals.

The sufficiency of the petition is attacked for want of proper allegations showing the regularity of the tax proceedings leading up to the giving of the deed by the commissioner. The petition alleged that-the petitioner’s grantors received a deed of the land in question from the commissioner of the State land office for the consideration of $225, in pursuance of section 131, Act No. 206 of the Public Acts of 1893, as amended, and that the same was duly recorded in the county of Muskegon on the 19th day of October, 1909, and that the said parcel was thereafter conveyed by Davidson and Woycke to petitioner; that following the conveyance to petitioner he caused a demand for possession to be served on defendant, together with an exhibition to him of the aforesaid deeds. These allegations were sufficient when considered in connection with Act No. 211 of the Public Acts of 1905 (1 How. Stat. [2d Ed.] § 2021), making the deed of the commissioner in such cases prima facie evidénce of title in fee. Griffin v. Kennedy, 148 Mich. 588 (112 N. W. 756); Beuthien v. Dillon, 160 Mich. 396 (125 N. W. 363).

The further objection is made that petitioner has mistaken his. remedy; that a writ of assistance will not lie because that writ is always, under our practice, based upon a decree of the court; but that ejectment is the proper remedy.

Counsel,' in making this point, overlook the fact that, when the State acquired the title to this lot, it was perforce of at least one decree of a court of equity, and it may have been perforce of more than one decree. No reason is suggested under the general practice why the State would not have been entitled to a writ of assistance had- it applied for one before it parted with the title. If the State were entitled to the writ, it would follow that a court of equity would have the power to issue one in behalf of the grantee of the State. 3 Standard Enc. of Procedure, 143; Ketchum v. Robinson, 48 Mich. 618 (12 N. W. 877). But whether it is consistent with the general practice or not, the legislature having declared in positive terms that the purchaser may be put into possession by the circuit court, the question of practice must be regarded as settled. Section 137 of the tax law (1 How. Stat. [2d Ed.] § 1907), provides that:

“The circuit court may, on application, put the purchaser of any lands sold under the provisions of this act in possession of the premises by writs of assistance.”

Section 140 provides that no writ of assistance shall issue until six months after the statutory notice shall •be served, “except where such title shall be obtained under the provisions of section 131 of this act.”

The title involved in this proceeding having been obtained under said section 131, there would seem to be no valid objection to the petitioner enforcing his right of possession by a writ of assistance.

Defendant offers various other objections to the validity of the commissioner’s deed to petitioner’s grantors; but it would be without profit to consider them, as we are of the opinion that he is in no position to contest the validity of the deed. The statute gave him six months after the deed to the State was recorded in Muskegon county to contest its validity. Having failed to question the proceedings within that time, he will now be precluded from doing so. Section 127, general tax law; Beuthien v. Dillon, supra.

The order is affirmed, with costs to the petitioner.

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


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    HYMAN v. KADROVACH.
    1. Justices op the Peace — Appeal—Amendment—Appidavit.
    If the affidavit which is required in ease of an appeal from justice’s court is lost or mislaid, the circuit court may-permit another one to be filed upon a sufficient showing that the affidavit was in fact filed. 1 Comp. Laws, § 10276 (5 How. Stat. [2d Ed.] §12977).
    2. Same — Bond—Amendment.
    The court also has authority to permit the appellant to amend the bond given on appeal so as to comply with the statute as to justification hy the surety. 1 Comp. Haws, § 922 (5 How. Stat. [2d Ed.] § 12368).
    Error to Leelanau; Mayne, J.
    Submitted November 13, 1913.
    (Docket No. 113.)
    Decided June 1, 1914.
    Case in justice’s court by Herman Hyman against Joseph Kadrovach. From a judgment for defendant, plaintiff appealed to the circuit court. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      John W. Patchin, for appellant.

      Fred PI. Pratt, for appellee.
   Bird, J.

This litigation was begun in justice’s court. The defendant was there given a judgment on the 29th day of July, 1910. On August 2d following the plaintiff appealed the case to the circuit court. At the outset of the trial in the circuit court defendant’s counsel moved to dismiss the appeal for the reasons:

(1) That no affidavit for appeal was on file in the circuit court.
(2) That the surety on the appeal bond had failed to justify his pecuniary responsibility in writing and under oath.

These objections being called to the attention of the trial court, recourse was had to the files of the case, and after an examination of them the reasons assigned appeared to be well taken; whereupon plaintiff’s attorney asked for and received permission to remedy the omissions on condition that he should make a showing on oath that an affidavit was filed with the justice. The court then ordered the trial to proceed, suggesting that the amendment of the record might be perfected later. During the trial the motion to dismiss was renewed, but was overruled, and the corrections were not actually made until after verdict. Following the verdict, and on the same day, a showing was made, a new affidavit filed, and a justification by the surety was indorsed on the bond.

It is now argued by defendant that the action of the trial court in permitting the trial to proceed to verdict without an affidavit for appeal on file was error, for the reason that, without such affidavit, the court was without jurisdiction.

In the return of the justice the following recital is made:

“And I do further return that the affidavit and bond herewith returned were delivered to me on the 2d day of August, 1910, instant,” etc.

From this return and the affidavit of plaintiff that he filed an affidavit on the 2d of August, it sufficiently appears that an affidavit for appeal was filed. If it were mislaid or lost, it was within the power of the trial court to permit another one to be filed. The amendment appears to have been permitted under the authority of section 924, 1 Comp. Laws (5 How. Stat. [2d Ed.] §12370), which provides that no appeal shall be dismissed upon the ground of a defective affidavit, if appellant shall file one which shall meet the requirements of the statute.

This section is not applicable. The objection made was, not that the affidavit was defective, but that there was no affidavit. The situation disclosed by the record is that the affidavit was made and filed with the justice and returned by him to the circuit court and subsequently became mislaid or lost. The statute with reference to the restoration of lost records would be applicable thereto (section 10276 et seq. [5 How. Stat. (2d Ed.) § 12977]), and we think the showing made by plaintiff was sufficient under this statute to justify the order made by the court.

In permitting the appeal bond to be amended so as to comply with the statute, the court was well within his authority. 1 Comp. Laws, § 922 (5 How. Stat. [2d Ed.] § 12368). This statute was passed to meet just such a situation. The defendant raises no questions other than those affecting the appeal.

As we find no error in those assignments, the judgment will be affirmed.

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


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    WESTOVER. v. GRAND RAPIDS RAILWAY CO.
    1. Negligence — Contributory Negligence — Personal Injuries.
    An ordinarily prudent man in crossing a highway or street ear track will be watchful of any vehicle or street car which he may observe approaching, until he has passed the danger point and reached a place of safety: it is the duty of a driver to keep observing an approaching street car sufficiently to enable him to determine the safety of his course.

    2. Street Railways — Personal Injuries — Highways.
    In an action for wrongful death of a passenger who was killed in an automobile when it attempted to cross the track of a street railway company, the driver claiming that he looked and saw a car but believed he had sufficient time and proceeded to cross the track, the trial court did not err in charging the jury that it was the duty of the driver to observe the speed of the car from the time he first saw it until he went upon the track: merely looking at the ear once at a distance was not enough, and the language should be construed to mean that the driver’s duty required him to continue his observation sufficiently to enable him to verify the safety of his decision.

      3. Negligence — Automobiles—Motor Vehicle Law — Speed.
    Nor was it error to- instruct the jury that the driver on approaching the intersection of two streets must have his automobile under control and operate it at such speed as was reasonable and proper and if he failed to do so he was guilty of contributory negligence; that the motor vehicle law forbids the operation of a motor car on a city street at more than 15 miles an hour and failure to observe this rule would be negligence: there was no impropriety in defining the statutory duty of those driving automobiles on the highway.
    4. Same — Speed.
    Violation of the statutory regulation as to speed was negligence per se and would bar plaintiff’s recovery.
    5. Same.

      Held, also, that the charge of the court to the effect that the street car ordinarily has the right of way, as modified by an explanation of the duty of the motorman to keep his car under control and check it so- as to avert peril to those who are making lawful use of the streets, was not erroneous or misleading.
    Error to superior court of Grand Rapids; Stuart, J.
    Submitted January 24, 1913.
    (Docket No. 31.)
    Decided June 1, 1914.
    Case by Carrie M. Westover, as executrix of the estate of Charles M. Westover, deceased, against the Grand Rapids Railway Company for the unlawful killing of plaintiff’s intestate. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      George E. Nichols, for appellant.

      Kleinhans & Knapp en (M. L. Dunham and Charles E. Ward, of counsel), for appellee.

       As to the duty of the operator of an automobile when near street cars, see note in 38 L. R. A. (N. S.) 493.

   Bird, J.

In the early evening of November 3, 1910, Henry J. Horrigan was driving his automobile in a westerly direction on Briggs avenue, in the city of Grand Rapids. In the automobile with him were his wife and her parents, Mr. and Mrs. Westover. It was Ms intention, when he reached the intersection of Briggs and Grandville avenues, to cross over the street car tracks and drive south on Grandville avenue. As he approached Grandville avenue, he looked to the south and saw the headlight of an approaching street car. His estimate of the distance it was away was 200 feet. He was going from 6 to 8 miles an hour, and concluded he could cross in safety before the street car arrived at the intersection. He proceeded across; but before he cleared the east track the car struck the automobile, turning it over, and throwing the occupants out, and injuring Mr. Westover so badly that he died within a few hours thereafter. Mrs. Westover, the widow, brings this suit, as executrix, to recover for the negligent killing of her husband. The negligence complained of was the excessive speed of the car, a failure to observe the ordinance, which limits the speed to 15 miles an hour, and the failure of the motorman to have the car under control in passing the intersection of these avenues. The defendant denied the charge of excessive speed, denied that it violated the ordinance, and charged that the driver of the automobile was guilty of contributory negligence in attempting to cross in front of the car, and also in operating his automobile at an excessive and unreasonable speed. Upon these issues the case was tried and submitted to the jury, who returned a verdict for the defendant. The plaintiff brought error, and her principal assignments of error are based upon the charge of the court.

One portion of the charge complained of is as follows:

“(1) If you find that Horrigan was inattentive to the rate of speed at which the car was coming, that would be negligence on his part, as it was his duty under the circumstances to have noticed the speed at which the car was coming, as far as he could do so. It was Mr. Horrigan’s duty to observe the speed of the car from the time he first saw it and up to the time he went onto the track. Merely looking at the car once at a distance was not enough; he should have continued to observe the speed until he got to the track, and if h& failed to do this, the plaintiff cannot recover.”

That portion of the charge which appears in italics is attacked on the ground that it instructed the jury that the driver of the automobile was guilty of negligence if he did not continue to observe the street car from the time he first saw it until he went onto the track. The driver testified that, when within 5 or 6 feet of the east line of Grandville avenue, he first saw the approaching headlight. He thought the car was then 200 feet away. He had to travel 6 feet to Grand-ville avenue and upwards of 24 feet beyond that to a place of safety. If, when he had gone half that distance, another observation had convinced him that it was dangerous to cross ahead of the car, it would have been his duty to stop. We think it can be said as a matter of law that, when an ordinarily prudent person is about to cross a highway, whether on foot (Zoltovski v. Gzella, 159 Mich. 620 [124 N. W. 527, 26 L. R. A. (N. S.) 435, 134 Am. St. Rep. 752]), on a bicycle (Measel v. Railway, 166 Mich. 688 [132 N. W. 453]), or in a carriage or automobile, and he observes an approaching street car or any other vehicle which may obstruct his passage, he is watchful of it or them until he has passed the danger point and reaches a place of safety. As to whether he has done so in any given case is usually a question of fact to be determined from all the circumstances by a jury. But counsel argue that the rule laid down by the court is too strict, in that it placed the duty upon the driver to look continually at the car after he first saw it until the danger of collision was passed. A fair construction of the language means that it was the duty of the driver to continue his observation sufficiently after he first saw it to enable him to verify the safety of his decision, or to revise it if necessary to avoid a collision. This is a reasonable construction of the language used by the court, and is a reasonable requirement, and one usually followed by ordinarily, prudent people when crossing the highway.

The court, in compliance with defendant’s requests, instructed the jury that:/ •

“The statutes, of the State also required Mr. Horrigan, on approaching the intersection of Grandville avenue and Briggs avenue, to have his automobile under control, and to operate it at such speed as was reasonable and proper, having regard to the traffic then on Grandville avenue, and for the safety of the public, and if he failed to do so, he was negligent, and, if this negligence contributed té Mr. Westover’s death, the plaintiff cannot recover. -The statutes of this State made it unlawful for Mr. Horrigan to operate his automobile on Briggs avenue at a higher rate of speed than 15 miles an hour. If, approaching Grandville avenue, he was running his automobile at a greater rate of speed than 15 miles an hour, he was guilty of negligence, and if such negligence in any degree contributed to the accident, plaintiff cannot recover.”

These instructions were evidently based upon Act No. 318 of the Public Acts of 1909 (2 How. Stat. [2d Ed.] §§ 2487, 2493) , known as the automobile law. The criticism made upon the first paragraph is that it was not applicable to the facts as they were established by the proofs. In view of the claims made by defendant on the trial, that the driver of the automobile was guilty of contributory negligence in operating his automobile at a speed which was improper and unreasonable, and in excess of that prescribed by the statute, we see no impropriety in defining to the jury the statutory duty of those driving automobiles upon the public highway.

The other paragraph is criticised because the court instructed the jury that, if the driver of the automobile was running his car at a speed in excess of 15 miles an hour, he was guilty of negligence. It is said that, even if he were operating the automobile at a speed in excess of 15 miles an hour, it was not negligence per se, but only evidence of negligence. It is argued that this instruction was error, and was harm-, ful to the- plaintiff’s case.

In some jurisdictions it has been held that a violation of an ordinance or a statute is negligence per se; but this court has not followed that rule with reference to violations of ordinances. Cook v. Johnston, 58 Mich. 437 (25 N. W. 388, 55 Am. Rep. 703) ; Flater v. Fey, 70 Mich. 644 (38 N. W. 656); Sterling v. City of Detroit, 134 Mich. 22 (95 N. W. 986) ; Blickley v. Luce’s Estate, 148 Mich. 233 (111 N. W. 752). It has, however, followed the rule with reference to violations of statutes, and it has been many times held that a violation of a statute was negligence per se. Billings v. Breinig, 45 Mich. 65 (7 N. W. 722) ; Syneszewski v. Schmidt, 153 Mich. 438 (116 Ñ. W. 1107) ; Little v. Bousfield & Co., 154 Mich. 369 (117 N. W. 903) ; Van Doom v. Heap, 160 Mich. 199 (125 N. W. 11) ; Tabinski v. Manufacturing Co., 168 Mich. 392 (134 N. W. 653).

While in some cases involving the statute the violation has been spoken of as “evidence of negligence,” we think there has been no intention to depart from the rule that a violation of a statute imposed under the police power of the State is negligence per se. The portion of the charge complained of in this connection having been based on the statutory provisions regulating the operation of automobiles, the trial court was in no error in giving the request.-

It is also said that the trial court was in error in giving defendant’s fourteenth request, which was as follows:

“When a street car and an automobile are approaching a street intersection, the street car has the right of way, and if it is necessary to avoid an accident, it is the duty of the automobile to stop and allow the street car to pass on ahead of it.”

Counsel contends that, if this request- had been properly qualified, it would not have been objectionable, but, as it stands, it is not the law, for thte'reason that, if a motorman should discover that the track was about to be occupied by an automobile in making a crossing, it would be his duty to stop, if necessary, to avoid a collision; and it is further claimed that--the whole charge is characterized “by emphasizing duties of the party attempting to cross the tracks, without also explaining the duties of the motorman in connection therewith.”

Counsel have evidently overlooked the fact that this request was not given as requested. The trial court inserted the word “ordinarily” after the words “street car,” making the charge read, “the street car ordinarily has the right of way,” etc. Before giving this request, the trial court gave some rules of law bearing upon the reciprocal duties of the street railway company and other parties using the highways, and, among these observations, the following occur:

“People who are traveling upon the streets of this city have a right to rely to some extent upon the watchfulness and prudence of the motorman in charge of the cars, and upon his ability to stop his car within a reasonable distance, and it 'would be the duty of the motorman in this case, who represented the defendant, and who was in charge of the car, to be cautious and vigilant, and not to run his car at an unlawful or dangerous rate of speed, and to- keep a sharp lookout, and to give reasonable and timely warning of the approach, of his car to travelers upon the street, or who were about to cross the tracks ahead of his car, and to check and stop his car when it seemed necessary to do so.
“A traveler upon the streets of this city is not required to refrain from crossing whenever a car is in sight, and there may be cases where he may properly exercise his judgment upon the question of when he should attempt to cross the tr'ack, and it may happen that he has miscalculated the distance the street car is away from him. The question is: Did he act as an ordinarily prudent man would have acted in attempting to cross?
“If an ordinarily prudent man under the circumstances would have attempted to cross, he is not necessarily guilty of contributory negligence, although he miscalculated the distance.
“The rights to travel the streets of this city as between the street cars and travelers, and at the intersections thereof, are reciprocal, and it is the duty of the motorman to watch and so far as practicable keep his car under control.”

In view of the jury having been instructed in this manner, we think the criticism of counsel is not well taken. We have examined the other errors assigned, but find no reversible error in them.

The judgment of the lower court is affirmed.

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