text:
    WATSON v. E. E. NAUGLE TIE CO.
    1. Sales — Breach—Contracts—Rescission for Failure to Perform.
    After the constructive delivery of timber from seller to buyer, the defendant having failed to pay for it and a suggestion being made that a new contract be executed to meet the situation, the parties failed to come to an adjustment, and the letters between them including their negotiations are held not to amount to a rescission of the original contract by plaintiff.
    2. Same — Failure to Pay Price — Rescission.
    Rescission of a contract of sale is not shown by testimony that the seller demanded that defendant either pay for or release the timber, and the latter’s agent stated they would see about it, and the seller could not get them to release the property, but that the defendant later informed a prospective purchaser of the timber that he might take it and that the defendant made no claim to it.
    Error to Chippewa; Steere, J.
    Submitted November 9, 1909.
    (Docket No. 179.)
    Decided December 10, 1909.

      Assumpsit by Thomas H. Watson against the E. E. Naugle Tie Company for goods sold and delivered. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      Horace M. Oren, for appellant.

      Davidson & Hudson, for appellee.
   Hooker, J.

A former judgment for the plaintiff in this cause was reversed for the reason that the circuit judge had directed a verdict for the price of certain ties and posts, designated as the Mclnnis timber and Demerest timber, instead of leaving to the jury the question whether there had been a surrender or discharge of the contract as to the ties and posts. See 148 Mich. 675 (112 N. W. 752). He did leave that question to the jury as to poles. Defendant afterwards was permitted to make certain amendments to his plea, and the cause was tried again; plaintiff recovering upon his claim relating to the Mclnnis timber. Defendant has again appealed, and the only question before us is whether the court erred in declining to direct a verdict for defendant.

Nothing but the Mclnnis timber is involved upon this record. Among the amendments to the plea was the following, viz.:

“ Even though as respects said items there had been an acceptance thereof by, and constructive delivery thereof to, the defendant whereby title had become vested in defendant, yet that prior to the taking of actual possession thereof by defendant, and before payment of the purchase price or any portion thereof by defendant, the plaintiff rescinded the contract for the sale and purchase of each and all of said items and retook the same from the constructive possession of said defendant, and thereby barred himself from recovery for said items in his said suit.”

Defendant’s points are stated in his brief:

“ Rescission or discharge of the original contract, as respects the Mclnnis timber, was affected by a subsequent written contract between plaintiff and defendant, and the jury should have been so charged and verdict directed. * # #
“Rescission or discharge of the original contract as respects the Mclnnis timber was later again effected by a parol executed contract, the facts and terms of which were undisputed, and the effect of which should have been declared by the court in directing a verdict of no cause of action for the timber in question.”

Was the contract rescinded by plaintiff in writing ? Counsel for the defendant concede that the title to the timber in controversy had vested in the defendant, and that it bore defendant’s mark. It should have been shipped before August 16, 1903, but defendant had failed to furnish a vessel to carry the same. An inspection of this timber had proven unsatisfactory and had been canceled by mutual consent, and it had been agreed that it should be again inspected when it should be loaded, though this probably involved merely a recount of poles.

On October 16th plaintiff wrote defendant as follows:

“De Tour, Mich., October 16, 1903.
“E. E. Naugle Tie Co.,
“Chicago, Ill.
Gents: Not receiving any reply to my letter of 10th, would now ask that you accept the balance of my timber on the shore where it now lies and pay for same, I having fulfilled my part of the contract, and it would not be reasonable for you to expect me to pay double price for trying to load this now. Water is cold and men scarce, everything will be to disadvantage as you know through no fault of mine, as I stood ready to load at any time, and have repeatedly requested you to send boats. What I now ask is that you instruct your Mr. Jacobi to inspect and pay for on the beach and settle up in full, so that I can commence this winter’s operations as everything (as far as timber is concerned) is virtually tied up pending a settlement of last winter’s work. People I bought off last winter are ready to contract and go into camp, but will not until last winter’s work has been straightened up and as there is other buyers on the ground this year it makes it more binding to be ready to do business at any time the camp men are, so hoping you will give this your immediate attention and greatly oblige,
“Yours truly,
“ T. H. Watson.”

Advancements had been made bn all timber furnished, and on November 17th, 25th, and 27th plaintiff made statements of account, which admittedly charged defendant only with timber taken away by it, and applied by way of credit upon the same all advancements. We understand that defendant claims for this only that it left the matter in a situation that gave the plaintiff the right to rescind the contract as to this timber. That may perhaps be safely conceded, but it still leaves the question ‘‘ whether he did rescind.” On Noverdber 25th defendant wrote, as follows:

“ I was taking with Mr. Willson about your account when he was in Chicago Monday, and we both want to get it in proper shape at the earliest possible moment, and Mr. Willson agreed with me that he would send an inspector to tally up the balance of the material we bought from you, and he is in Alpena today, and I think he will be in the Soo, Michigan, within two or three days, and you can either telephone him, or arrange the details by addressing him, care Iroquois Hotel.
“Yours truly,
“E. E. Naugle, President.”

2-Dic. E. E. N.

Mr. Dean was sent to inspect this timber, but did not succeed in doing so. Defendant’s letter of December 29th shows this:

“Mr. T. H. Watson,
“ De Tour, Mich.
Dear Sir: Your letter addressed to me at the Soo has reached me. Mr. Dean told me that it was impossible to cross Drummond Island at the time he left there and I have not heard that there is a safe crossing yet, although there may be now. He also told me that he saw several of your operators on the island and that they told him it was impossible to tally and inspect the poles as they were piled upon the island at this time of the year, therefore I did not send him back there. * * * If it is true that the material cannot be inspected and tallied now, the only way that I know to handle the posts and poles that are still on the island would be to make a new contract for a specified amount of poles of certain lengths and sizes, to be delivered the first thing in the spring and to make such payments upon them as we might mutually agree upon. This, however, is only a suggestion, and I should be glad to hear from you upon it.”

It is evident that there had been no claim of rescission up to this time. Plaintiff wrote in answer:

“ Mr. Geo. Willson,
“Sault Ste. Marie, Mich.
Dear Sir: Replying to yours of 29th will say regarding your suggestion relative to all of my timber not being loaded, this I know was all loaded and I have Mr. Jacobi’s tally of same. The boats that Mr.' Jacobi was not present at the loading I had copy of and Mr. Dean together with myself compared your Chicago inspection with our copy and they compare within a trifle and when your Mr. Jacobi brought in his tally of the other cargoes I paid my men that got this timber out accordingly and now I must have a settlement for same. I have waited and done without my money now for a year and now must insist on a settlement in full if not I shall proceed at once to enter suit. As for your Mr. Dean not going over to the island to count up, that does not annoy me, as the timber is worth the money where it is. I care nothing about what you did not take, it is what you have got I"want pay for.”

Does this correspondence conclusively constitute a rescission? We think not. The defendant was careful to make “only a suggestion of a new contract.” The plaintiff declined to discuss the matter, merely saying “that did not annoy him.” The court properly refused to take this question from the jury.

Was there a subsequent oral rescission ? During the following spring Watson met Willson at the Soo, and made a demand that defendant either pay for or release this timber. O’Dell, a member of the defendant, was with Willson. After a conference, Watson says that the answer made was, “We will see about it.” There was testimony that plaintiff had made a contract for other timber to be cut with one Gilpin, and that he was willing to receive this lumber upon it. Watson says he went to the Soo to get them to release it and take their mark off, but got no satisfaction, and went home. He heard no more from them, but it appears that a few weeks later Willson told Gilpin that defendant did not claim the poles, and that he, Gilpin, was at perfect liberty to take them if he wished. He did not take them, however. We are of the opinion that this should be considered neither a readjustment nor a rescission. It was an offer to defendant which, had it been accepted at the time, would have relieved it from liability, but there is nothing to indicate that it was a standing offer, or that plaintiff understood at the termination of the interview that he had released or settled his claim. The testimony shows clearly that defendants did not perform their contract, that plaintiff never released them, and, while he offered to defendant an alternative for full performance, it was not accepted, and there is no ground for holding that the offer should be consid. ered tantamount to a rescission or to an agreement which would have the effect of revesting title in plaintiff and relieving, defendant of its obligation to perform its contract.

The judgment is affirmed.

Blair, C. J., and Montgomery, Ostrander, and Brooke, JJ., concurred.


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    WEESSIES v. VAN DYKES ESTATE. APPEAL OF HOEK.
    1. Estates of Decedents — Executors and Administrators— Allowance of Claims — Services of Member of Family.
    The'presumption of law that services rendered hy a member of decedent’s family were rendered gratuitously for the common benefit, does not bar a claim by a son-in-law for board furnished his wife’s deceased father, who lived in a separate home on the premises, if the jury find that the parties understood that compensation should be made.

    2. Witnesses — Competency—Statutes—Facts Equally Within Knowledge of Deceased.
    The claimant’s wife who cooked food for her father and assisted in caring for him is not an agent of the claimant in making or continuing the contract, under Act No. 30, Pub. Acts 1903, which excludes the testimony of the agent.
    Error to Kalamazoo; Knappen, J.
    Submitted November 8, 1909.
    (Docket No. 178.)
    Decided December 10, 1909.
    Harm Weessies presented a claim against the estate of Harm Van Dyke, deceased, for services rendered. The claim was allowed in part by the commissioners, and Walter Hoek, executor, appealed to the circuit court.. A judgment for contestant on a verdict directed by the court is reviewed by claimant on writ of error.
    Reversed.

      Osborn & Mills, for appellant.

      John J. Hollander, for appellee.

       As to implied contract to pay for services to relative not living as part of same family, see note to Mark v. Boardman (Ky.), 1 L. R. A. (N. S.) 819.

   Ostrander, J.

Appellant presented the following claim against the estate of Harm Van Dyke, deceased:

“For board, washing, care, etc., of Harm Van Dyke, six years preceding his decease, at §4.. §1,248 00
“For extra services and care of said Harm Van Dyke during the last year of his life, after he was stricken with paralysis, and during his last sickness............--------------------- 104 00
“For rent of lot, taxes, and insurance paid and incurred for Harm Van Dyke during the last six years of his life.......................... 150 00
§1,502 00”

The commissioners on claims allowed the sum of $1,000. The executor, upon the demand of a legatee, took an appeal to the circuit court, where a verdict for the estate was directed. A motion for a new trial was made, and was denied, whereupon a judgment was entered upon the verdict with the direction to certify the same to the probate court. The principal question presented is whether there was testimony from which the jury might have found that the deceased expressly or impliedly contracted to pay for services and for board and washing furnished by the appellant during the six years preceding his death. Harm Van Dyke died November 28, 1906; at the age of 89 years. Appellant is his son-in-law — the husband of his daughter. The testimony tends to prove that for 20 years prior to his death Harm Van Dyke lived alone in a small two-room house which he had built with his own money on the lot belonging to the appellant, only about four or five feet from the house of the appellant. Prior to that time, he had for some years been a member of the family of the appellant, living in the house with his daughter and her husband. For a while after he built his house he took his meals at the house of appellant, but because he did not agree with a hired man, and because he was annoyed by appellant’s children, he withdrew himself. Thereafter meals were taken by appellant, his wife, or their children to his cottage, and there the deceased was cared for during his life and during his last illness by appellant and his wife, assisted to some extent during his last sickness by the neighbors. The deceased bought his fuel, hired his washing done when the wife of appellant was unable to do it, and bought for himself some minor supplies, such as tea, sugar, tobacco, bread, and eggs. At times, but not for seven or eight years before his death, he worked for appellant, and was paid wages without deduction for his board or care. He was possessed of some money invested at interest. He left a will, which was probated, in which he disposed of his property to persons other than the appellant and his wife. He makes reference to them in the third item of his will, which reads as follows:

“To my children, William Van Dyke and Mrs. Harm Weessies, I leave nothing, because for a long time they have been very unkind to me. I have thought this matter over carefully and feel that they deserve no part or portion of my property.”

This will was made July 14, 1900. It is the testimony of appellant’s wife that some 16 or 18 years before his death appellant told the deceased that he was not able to care for him unless he paid something for his board; that the deceased, without saying very much, did say that he was able to pay for everything he got. Upon another occasion, when appellant’s wife carried a meal to him at his house, he gave her 75 cents, and said: “Here is your board.” She took it and gave it to her husband. He asked her what it was for and she said: “Board from father.” Appellant said: “You take that back, and tell him I don’t want that. That ain’t enough.” She did so. Decedent took the money, and put it in his pocketbook, saying nothing. This occurred some 12 or 13 years before his death. The executor of the estate, who was also made a legatee, testified that decedent came to him one day, and wanted to know how much appellant owed in the way of a mortgage, was told that he could not tell him, when he went away. The next day he came again, repeated the inquiry, and was told to go to Mr. Osborn who had charge of the mortgages, and he could tell him about it. Mr. James W. Osborn testified that some time in 1901 or 1902 (it will be noticed that this was after the decedent had made his will) decedent came to his office and inquired if there were any mortgages there against appellant, was asked why he wanted to know, and said that Walter Hoek (his executor) sent him there.

“ He said that he had lived in with Weessies for years, and that he wished to pay him for it, and it was with a view of ascertaining what Weessies owed that he wished to provide for — to assist Weessies. He said that Weessies was a man in poor health, that they had much sickness, and that Weessies was not as strong a man as he was when he was young. I then took the mortgages and prepared a statement of the amount that was owing on them. * * * I showed the mortgages to Mr. Van Dyke. * * * He had the amount of these mortgages; the balance of interest computed up to that time. I handed that to the old gentleman because he told me what use he desired to make of it. He said that he had boarded there, and that he wanted to pay them.”

I have here set out, in substance, the testimony and the circumstances relied upon by the appellant. He never presented a bill to deceased, or, so far as is disclosed, asked him to pay or asserted a claim. Deceased never paid him anything. It is clear that the deceased and the appellant and his wife were not for many years living together as a family, receiving mutual benefit and comfort from property which they enjoyed in common. On the contrary, deceased had withdrawn himself from the family, and, while he lived upon the immediate premises, and so close to the house of appellant that, when it was necessary, he could, as he did, attract attention by rapping on the window of his own house, he lived separate and was furnished his meals, and accepted the care and attention of appellant and his wife and children in his separate domicile. The law will not imply from the discharge by a child of a purely filial duty an obligation of the parent to pay for the service. And, when the family relation exists, much which is done for and furnished to a member of the family by another or by other members is presumed to be gratuitously done or furnished. It is the relation, and the presumption arising therefrom, which is held to negative the existence of an implied contract to pay for what is accepted. See Decker v. Kanous’ Estate, 129 Mich. 146 (88 N. W. 398), and cases referred to in the opinion; In re Colburn’s Estate, 153 Mich. 206 (116 N. W. 986, 126 Am. St. Rep. 479); Hialey v. Hialey’s Estate, 157 Mich. 45 (121 N. W. 465). But, under the circumstances disclosed by this record, there is, in my opinion, no conclusive presumption that the appellant was furnishing deceased his board gratuitously. It became a question of fact whether deceased and appellant understood that compensation was to be made. Ashley v. Smith’s Estate, 152 Mich. 197 (115 N. W. 1052). It may be that some distinction should be made between the items set forth in the account presented against the estate —between the cost of the sustenance actually furnished to, and accepted by, deceased at the expense of claimant and some of the care bestowed by his wife, the daughter of deceased, upon her father. As a new trial must be had, it is unnecessary to anticipate the instructions proper to be given upon this subject.

It is contended that by the provisions of Act No. 30, Pub. Acts 1903, the testimony of claimant’s wife was incompetent. The provision relied upon is understood to be the following:

“ No person who shall have acted as an agent in the making or continuing of a contract with any person who may have died, shall be a competent witness in any suit involving such contract, as to matters occurring prior to the death of such decedent, on behalf of the principal to such contract,” etc.

There is nothing in the record tending to prove that the wife or claimant acted in any capacity in making or continuing a contract with the deceased. She overheard a conversation between the parties and testified to it. She carried money and a message from her father to her husband, and returned the money and a message to her father. She testified to the occurrence. The fact that she may have cooked some or all of the food furnished by her husband and delivered some or all of it to her father does not constitute her the agent of her husband within the meaning of this statute.

The judgment of the circuit court is reversed, and a new trial granted, with costs against the estate.

Blair, C. J., Montgomery, Hooker, and Brooke, JJ., concurred.


author: Brooke, J.

text:
    PEOPLE v. ANDERSON.
    Intoxicating Liquors — Criminal Law — Beer.
    Testimony that a witness purchased beer of the respondent in a local-option county, warrants a conviction without proof of its intoxicating qualities.
    Error to Wexford; Chittenden, J.
    Submitted November 12, 1909.
    (Docket No. 163.)
    Decided December 10, 1909.
    Norman B. Anderson was convicted of violating the local-option law.
    Affirmed.

      D. E. McIntyre, for appellant.

      William H. Yearnd, Prosecuting Attorney, for the people.
   Brooke, J.

Respondent was convicted of an alleged violation of the local-option law. The information charged that on May 11, 1908, he sold and furnished to one Frank Wrigglesworth a certain quantity of malt, brewed, fermented, spirituous, and intoxicating liquor, to wit, 36 pint bottles of beer. Wrigglesworth testified that he bought a case of beer from the firm of Stewart & Anderson, and that he paid Anderson $2.50 for it. He could not recall the date, but testified that he got the beer in the alley by the storehouse of Stewart & Anderson. “ I understood that was where I would find it. It was after 8 o’clock when I got the beer.” James Dolan, a patrolman of the city of Cadillac, testified that on May 11, 1908, at about 8 o’clock in the evening, he saw Wrigglesworth drive up to the storehouse of Stewart & Anderson, and put a case of some kind into his hack, and drive away.

Respondent was not sworn, nor was any testimony given in his behalf. In this court respondent contends that his conviction should be set aside, because there is no testimony that a sale was made of “malt, brewed, fermented, spirituous and intoxicating liquor;” the word “beer,” used by Wrigglesworth in his testimony, not necessarily importing any of the qualities of the prohibited liquor. Upon this point the authorities are not agreed, but we think the weight of authority is against the contention of respondent. U. S. v. Ducournau, 54 Fed. 138; Snider v. State, 81 Ga. 755 (7 S. E. 631, 12 Am. St. Rep. 350); Welsh v. State, 126 Ind. 71 (25 N. E. 883, 9 L. R. A. 664); State v. Teissedre, 30 Kan. 477 (2 Pac. 108, 650); State v. Tisdale, 54 Minn. 105 (55 N. W. 903); State v. Effinger, 44 Mo. App. 81; Kerkow v. Bauer, 15 Neb. 150 (18 N. W. 27); Murphy v. Inhabitants of Montclair, 39 N. J. Law, 673; Whitcomb v. State, 2 Tex. Civ. App. 301 (21 S. W. 976); Briffitt v. State, 58 Wis. 39 (16 N. W. 39, 46 Am. Rep. 621); State v. Spiers, 103 Iowa, 711 (73 N. W. 343). See Black on Intoxicating Liquors, § 17, and cases cited. The sale of beer by the respondent having been proven, it was competent for him to show that it was not intoxicating, but he must show it, if he relies upon it as a defense.

The other assignment of error has been considered, but no discussion of it is deemed necessary.

The judgment is affirmed.

Blair, C. J., and Ostrander, Hooker, and Moore, JJ., concurred.


text:
    O’TOOLE v. OHIO GERMAN FIRE INSURANCE CO.
    1. Insurance — Defenses, Notice of — Amendment.
    The refusal of the trial court to permit, after the closing of plaintiff’s evidence, an amendment of the plea and notice of defense, so as to set up the defense of change of title in plaintiff, is discretionary.
    2. Same — Hearsay—Self-Serving Declarations.
    Evidence in rebuttal that plaintiff, before being accused of any offense, called up the sheriff by telephone and urged him to investigate the fire, is competent to disprove her guilt.
    3. Evidence — Husband and Wife — Confidential Communications.
    Letters of a wife to her husband containing confidential communications are admissible as evidence tending to show that she destroyed insured property by fire, where they came into the possession of third persons, without collusion, by finding. 8 Comp. Laws, § 10213.
    4. Insurance — Title — Change of Ownership — Effect of Attachment.
    The levy of an attachment on insured property, without the knowledge of the owner, subsequent to the issuance of the policy, is insufficient to avoid the policy.
    5. Appeal and Error — Assignments of Error.
    An assignment of error that the court erred in failing to submit to the jury the question of waiver of defenses is too general to be considered on appeal.

      Error to Lenawee; Chester, J.
    Submitted November 11, 1909.
    (Docket No. 82.)
    Decided December 10, 1909.
    Assumpsit by Myrtle E. O’Toole against the Ohio German Eire Insurance Company on a policy of insurance. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed.

      Bird & Sampson, for appellant.

      D. B. Morgan and Smith, Baldwin & Alexander, for appellee.
   Ostrander, J.

The policy of insurance sued upon — a Michigan standard form — is dated November 12, 1901. The barn, a portion of the property insured, burned November 5, 1906. This suit was begun by summons April 2, 1907; the declaration being filed April 10, 1907. The trial began February 7, 1908. With its plea the defendant gave notice that it would rely upon a number of the conditions, violations of which would avoid the policy, among them the one relating to a change other than by death of the insured in the interest, title, or possession of the subject of insurance. The specification in this behalf was that upon a day named a writ of attachment had been levied upon the property. It also gave notice that it would show (I omit the verbiage) that plaintiff fired the barn, or caused it to be fired, with intent to defraud the defendant. The assignments of error relied upon will be referred to in the order in which they are presented in the brief for appellant.

It appeared at the trial that, when the policy was 'issu.ed, plaintiff represented that she was sole owner of the property, when, in fact, it was owned by herself and her husband by entireties; that, the fact being discovered, a rider was placed upon the policy correctly stating the title. About a year before the fire plaintiff again became of record the sole owner of the legal title, a fact not discovered by defendant until the trial had begun. After plaintiff’s case was closed, the court was moved to permit defendant to amend the notice so as to set up specifically the change in the title last above mentioned. The motion was denied, and error is assigned upon the ruling. The proofs of loss contained the statement that the interest of plaintiff in the destroyed property was a total interest, except as to the interest of a certain mortgagee. The statement of counsel to the trial court was that the change of ownership was first discovered from an examination of the records of title made after the trial was begun. The ruling of the court is sustained upon the authority of First Baptist Church of Jackson v. Insurance Co., 119 Mich. 203 (77 N. W. 702).

The second and third assignments of error are based upon rulings which permitted two witnesses for the plaintiff, who in the order of proof preceded her, to detail certain statements made by plaintiff. To one of the witnesses, her statement, made by telephone, was directed. The other heard her talking at the telephone. Neither witness was incompetent to testify to what they heard plaintiff say. What she said, in their presence, was a fact within their knowledge. It is said that the effect of the rulings was to bring to the attention of the jury self-serving statements of the plaintiff. The fact is that she called the office of the sheriff, and said, in substance, that she would like to have the matter of the fire investigated, that there were suspicious circumstances connected with the burning of the barn. The evidential fact sought to be proved was that plaintiff invited an investigation — set one on foot, or sought to do so, the inference being that such conduct was inconsistent with guilty knowledge. The particular act of telephoning and the utterances accompanying it were relevant because the defendant in its notice had informed plaintiff that she was charged, either as principal or as accessory, with burning the insured barn. The testimony for defendant had been concluded. The conduct of plaintiff, her acts and declarations before and after the fire, supposed to be favorable to the theory of defendant, had been brought to the attention of the jury, including statements which were interpreted as declarations that she intended to burn the barn. The particular conduct and utterances of plaintiff occurring at a time before she had been charged with setting the fire, whether making for her innocence or her guilt, were relevant, and no reason is perceived for excluding them.

Two letters and the accompanying envelopes were produced by the defendant, offered in evidence, and excluded upon the objection and ground that they were privileged communications. The letters were communications made by the wife to, and received by, the husband. They were read into the record, and, aside from any presumption, should be regarded as confidential communications. See 4 Wigmore on Evidence, § 2336. Testimony was introduced tending to prove that the letters were found in a room temporarily occupied by the husband, under circumstances indicating that they had escaped from his clothing to the floor of the room. The person who found them occupied no fiduciary or other confidential relation to either spouse. It is not claimed, and there appears to be no foundation for such a claim, that there was collusion between the husband and the one who found them, or between the husband and the defendant. From the finder, but indirectly, they came into the possession of the defendant. They contain relevant and material, if competent, testimony in the nature of admissions of the plaintiff. We need not discuss the proposition advanced by appellant, that the statute privilege should be held to be waived or withdrawn in cases where the communications relate to a projected fraud or crime, to be committed or participated in by one or both of the spouses. See Appleton on Evidence, p. 167. Assuming, but not deciding, that in a proper case the rule contended for ought to be applied, inspection of these letters does not condemn them as within the rule. It is when they are read in the light of many circumstances which they do not disclose or refer to that they take on the character ascribed to them by counsel, and then only as one may find the truth of many other alleged facts to be. In determining the correctness of the ruling of the trial court, we must consider the letters as confidential communications from a wife to her husband, concerning which he could not be examined without her consent and his own, which judicial process would not compel him to produce in evidence against or for her or himself. It is manifest, and has already been indicated, that the sole reason which is or can be adduced for receiving the letters in evidence is the one that because the letters were lost by the husband and were found by a stranger, who thus became possessed, and through whom defendant became possessed of the original documents of communication, there .has also been' lost, not the confidential character of the utterances, but the common-law and statute privilege of the parties to the communications. There are adjudications, notably Mercer v. State, 40 Fla. 216 (24 South. 154, 74 Am. St. Rep. 135), which appear to proceed upon the theory that such a communication is not competent evidence, is “privileged from exposure in evidence in and of itself, regardless of the custody from which it was produced at the trial.” The manner in which the letters there considered came into the possession of the prosecution was not disclosed. In Liggett v. Glenn, 51 Fed. 381 (2 C. C. A. 286), the privilege of a client with respect to communications made to his attorney was involved. A certain document of agreement between counsel and clients was filed by the attorney in probate court in support of a claim for services made upon the estate of a deceased client. Without his knowledge or consent, other counsel procured the contract from the probate court, and offered it as an admission in writing by another signer that he was a stockholder in a certain corporation, and held the number of shares set opposite his signature. Decision might perhaps have been rested upon the ground that the client was protected from voluntary disclosures of the attorney. But, in reversing the ruling admitting the document in evidence, it is said that—

“The admissibility of the communication, in our judgment, is not dependent upon the manner in which control thereof is obtained from the counsel, but upon the inherent character of the communication itself. If the admission or statement sought to be put in evidence was made by reason of the confidential relation existing between client and counsel, it becomes a privileged communication, and, as such, it is not competent evidence against the client. Its competency is not dependent upon the mere manner in which knowledge thereof may be obtained from counsel.”

No authorities are referred to. See, also, Lanctot v. State, 98 Wis. 136 (73 N. W. 575, 67 Am. St. Rep. 800); Ward v. State, 70 Ark. 204 (66 S. W. 926). But the better rule, and the one most consonant with reason, is that the communications are not, because confidential in character, incompetent as evidence for or against the person making them. The applicable language of the statute —it is declaratory of the common law (Hagerman v. Wigent, 108 Mich. 192 [65 N. W. 756]) is:

“Nor shall either, during the marriage or afterwards, without the consent of both, be examined as to any communication made by one to the other during the marriage. * * * ” 3 Comp. Laws, § 10213.

This has not been construed as applying to all communications made by one spouse to the other, but only to those which are confidential in their nature. Ward v. Oliver, 129 Mich. 300 (88 N. W. 631). The communication is privileged, but it is the privilege of the parties (Maynard v. Vinton, 59 Mich. 139, 152 [26 N. W. 401, 60 Am. Rep. 276]; Derham v. Derham, 125 Mich. 109, 112 [83 N. W. 1005]), and may be waived. It is not alone the confidential character of the communication, but it is that and also the relation of the parties which is the foundation of the privilege.

“ The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.” 4 Wigmore on Evidence, § 2285.

A communication made by a husband to his wife may be privileged. The same communication made by him to a daughter, or a son, or a sister, is not privileged, although precisely the same reasons in fact may exist for preserving the confidence inviolate. The privilege is in derogation of the general rule that all persons may be compelled to testify concerning facts inquired about in courts of justice. It should be made effective, but ought not to be extended by the courts to cases where there has been no injury to the relation of the parties by the betrayal of the confidence reposed. And so it has been held, and, we think, correctly, that where the communication, oral or written, has, without collusion. or voluntary disclosure, escaped the custody and control of the parties communicating or the custody or control of their agents or representatives, it is not privilege. The communication being offered by some one other than the parties thereto courts have in some instances refused to inquire as to the manner in which it was obtained. The cases are not numerous; the rulings are not harmonious. Some of them are collected in 23 Am. & Eng. Enc. Law (2d Ed.), p. 95 et seq. Precisely in point are State v. Mathers, 64 Vt. 101 (23 Atl. 590, 15 L. R. A. 268, 33 Am. St. Rep. 921); State v. Hoyt, 47 Conn. 518 (36 Am. Rep. 89); Gannon v. People, 127 Ill. 507 (21 N. E. 525, 11 Am. St. Rep. 147); State v. Buffington, 20 Kan. 599 (27 Am. Rep. 193); Com. v. Griffin, 110 Mass. 181; Geiger v. State, 6 Neb. 545. See, also, 1 Greenleaf on Evidence (15th Ed.), §§ 254, 254a, and notes, and note to State v. Falsetta, 10 Am. & Eng. Ann. Cas. 177, 179 (43 Wash. 159, 86 Pac. 168). See, generally, 4 Wigmore on Evidence, §§ 2332-2341. The precise question seems never to have been before presented in this court. In People v. Durfee, 62 Mich. 487 (29 N. W. 109), a deputy sheriff was allowed to testify to a conversation between attorney and client overheard by the witness. In Cluett v. Rosenthal, 100 Mich. 193 (58 N. W. 1009, 43 Am. St. Rep. 446), it was held that information obtained by a witness by means of a trespass or other tortious conduct may be received when offered by one not responsible for the tort. These decisions, as well as those which in holding that a privilege is involved refuse the rule that the evidence is under all circumstances incompetent, permit us to adopt and to apply what we have indicated as being in our opinion the correct rule. The letters should have been received in evidence.

The court was not in error in refusing to give defendant’s first or third request to charge or in refusing to submit to the jury the question whether defendant had waived any of its defenses. The first request has relation to the alleged change of ownership, and has been considered in connection with the ruling refusing an amendment to the notice of special defenses. As. to the other requests, we are referred to no authority to support the contention that the levying of a writ of attachment upon land, the buildings appurtenant being insured, there being no change of possession, is such a change in interest or title as avoids the policy of insurance. Ostrander on Fire Insurance (2d Ed.), p. 249. We are not informed by the record, that plaintiff knew of the attachments.

The 17th assignment of error, which is that the court erred in failing to submit to the jury the question of whether the defendant had waived any of its defenses, and the 19th assignment, which is substantially the same, are too general. However, they are in effect mere repetitions of those already considered.

The court submitted to the jury one question of fact, which was: Did the fire occur by or through the intentional agency of the plaintiff ? Upon the part of the appellee it is contended that because the policy of insurance was payable to the Lenawee County Savings Bank as its mortgage interest might appear, with the provision that as to this interest the insurance should not be invalidated by any act or neglect of the mortgagor or the owner of the property, because the bank after the fire assigned to plaintiff and she in one count o£ her declaration declares as such assignee, therefore the judgment should be in any event affirmed. It appears that the mortgage liens of the said bank exceeded in amount the face of the policy of insurance. We think the question is not properly before us for decision. It did not appear to have been presented in the court below, and, in any event, it was not there determined. On the contrary, the case was determined upon an entirely different theory of .plaintiff’s right.

The judgment is reversed, and a new trial granted.

Blair, C. J., and Montgomery, Hooker, and Brooke, JJ., concurred.


text:
    AMERICAN TELEPHONE & TELEGRAPH CO. v. SECRETARY OF STATE.
    Foreign Corporations — Telegraph and Telephone — Authority to Transact Business — Mandamus.
    Under statutes of Michigan separating the functions of telegraph and telephone companies and restricting the right of one company to engage in the two kinds of business, mandamus will not issue in favor of a foreign corporation to compel the secretary of State to issue a certificate of authority to transact both kinds of business in Michigan, although the corporation is authorized so to do in the State where it is organized.
    Mandamus by the American Telephone & Telegraph Company to compel Frederick C. Martindale, secretary of State, to issue a certificate of authority.
    Submitted November 18, 1909.
    (Calendar No. 23,663.)
    Writ denied December 10, 1909.

      Angelí, Boynton, McMillan & Bodman, for relator.

      John E. Bird, Attorney, General (Arthur P. Hicks, of counsel), for respondent.
   Brooke, J.

The relator is a corporation, organized in 1885, under an act of the legislature of the State of New York, entitled: “An act to provide for the incorporation and regulation of telegraph companies.” By judicial construction of the courts of the State of New York, it has been determined that companies organized under this act, including relator, may lawfully conduct a telephone business as well as a telegraph business. Hudson River Telephone Co. v. Railroad Co., 56 Hun, 67 (9 N. Y. Supp. 177); 61 Hun, 140 (15 N. Y. Supp. 752); 135 N. Y. 393 (32 N. E. 148, 17 L. R. A. 674, 31 Am. St. Rep. 838); Eels v. Telegraph Co., 143 N. Y. 133 (38 N. E. 202, 25 L. R. A. 640); City of Rochester v. Telephone Co., 52 App. Div. (N. Y.) 6 (64 N. Y. Supp. 804); Village of Carthage v. Telegraph Co., 185 N. Y. 448 (78 N. E. 165, 113 Am. St. Rep. 932). In October, 1908, relator applied to the secretary of State for a certificate of authority to do both a telephone and telegraph business in the State of Michigan. Respondent refused to issue the certificate, whereupon relator applied to this court for a writ of mandamus to compel its issuance.

The statute under which authority is granted foreign corporations to do business in Michigan is Act No. 310, Pub. Acts 1907. The proviso contained in section 4 thereof is as follows:

“Provided, That no such foreign corporation shall be permitted to transact business in this State, unless it be incorporated, in whole or in part, for the purpose or object for which a corporation may be formed under the laws of Michigan, and then only for such purpose or object. And the secretary of State shall, in the certificate which he issues, state under what act such corporation is to carry on business in this State, and such corporation shall have all the powers-, rights, and privileges, and be subject to all the restrictions, requirements, and duties, granted to, or imposed upon, corporations organized under such act.”

Sections 6667 to 6687, 2 Comp. Laws, provide for the incorporation and regulation of telegraph companies. The original act was passed by the legislature in 1847 (Act No. 4, Laws 1847). It was enlarged and re-enacted in 1851 (Act No. 59, Laws 1851), and various additions were made thereto down to the year 1878 (Act No. 14, Laws 1873). In the year 1883 the legislature passed an act authorizing the formation of telephone companies (Act No. 129, Pub. Acts 1883). For more than a quarter of a century the legislature has seen fit to keep separate these two lines of activity. This course has been followed, too, during a period in which the telephone business of the State has grown from an insignificant enterprise to one of great magnitude. At its inception messages could not readily be transmitted long distances, and many communities were without service. Today the telephone line extends to nearly every village in the State, and a very large and constantly increasing number of rural inhabitants enjoy its use. Wherever the telegraph line is, there, too, is the telephone. In the hands of independent agencies, it may well be that a healthy competition for the transmission of information by electricity will ensue. We are of opinion that the legislative enactments touching the question indicate a policy on the part of the State to afford its people a choice of two agencies of independent ownership. It is quite clear. that, in the light of the separate enactments and the policy indicated thereby, we could not hold a domestic corporation capable of transacting both kinds of business. We think it logically follows that no foreign corporation should be given a privilege denied to those of our own creation, particularly when to do so would be subversive of the policy of the State.

It is urged by relator that the construction by the home State of corporate powers is binding everywhere, citing, among others, the case of Thompson v. Waters, 25 Mich. 214 (12 Am. Rep. 243). An examination of that case shows that, while the court did in fact hold a foreign corporation legally entitled to exercise in Michigan certain functions possessed by it under its home charter, that conclusion was reached only upon the ground that the legislature had never prohibited the exercise of such functions by a foreign corporation within the State. Indeed, legislation was found which seemed to the court to indicate an intent favorable to their exercise. In discussing the question of comity there involved, Chief Justice Christianoy said:

“ The rule seems to be generally and well settled that the corporate existence, rights of making and enforcing contracts, of acquiring property, and of transacting busij ness (not requiring the exercise of official corporate action or franchises within the State) of a corporation created by the laws of one State will be recognized and protected in another, subject only to the qualification that the enjoyment and exercise of such rights shall not be contrary to the laws or settled policy of the State in which they are sought to be enjoyed or exercised, or prejudicial to the interests of such State or its citizens. * * *
“ A corporation, however, in any aspect in which it is here essential to consider it, is but an artificial person, whose strictly legal existence, by force of obligatory law, is confined to the State which has created it and endowed it with its powers, capacities, and rights, and it can only exercise those powers, capacities, and rights in another State by the permission, express or implied, of the sovereign or legislative power of the latter, which must be its own judge how far and upon what conditions it is consistent with its own domestic policy and the interests of its citizens to accord such recognition. * * *
As it is not, then, the comity of the courts, but that of the State, and the question is upon the adoption, or qualified adoption, in this State of the laws, or rather certain incidents growing out of the laws, of Indiana, it follows that the power of determining the question whether, and how far, or with what modification, or upon what conditions, the laws of that State, or any rights dependent upon them, shall be recognized here, belongs to the legislative or lawmaking power of the State, and that the judiciary, whose province is only to declare and not to make the law, must be guided in their decision by the principle and policy adopted by the legislature of this State in reference to this question.”

Applying the foregoing reasoning to the facts in the case at bar, we find there is no room for doubt as to the legislative intent or the policy of the State. For reasons good or bad, but satisfactory to itself, and presumably in the interests of its citizens, the State has chosen, with great deliberation and certainty, to maintain as separate and distinct agencies telephone and telegraph companies. To overturn this settled policy on the part of the State would, it seems to us, be as unwise as unwarranted.

Counsel for relator urge that, inasmuch as relator has power in New York to do two things, it at all events has the right to choose which of those two things it will do in Michigan; both being lawful. A sufficient answer to this proposition is that no such case is presented by the application. Relator applied for a certificate to do both, and seeks a mandamus to compel the issuance of such certificate.

The writ is denied.

Blair, C. J., and Grant, Montgomery, and Ostrander, JJ., concurred.


text:
    W. A. STURGEON & CO. v. BOARD OF ASSESSORS OF THE CITY OF DETROIT.
    1. Mandamus — Adequate Remedy at Law — Taxation oe Personal Property — Statutes.
    Mandamus will not issue to compel the board of assessors to strike from the roll an assessment upon personal property erroneously determined to belong to relator, the remedy at law being adequate. 1 Comp. Laws, § 3876.

      3. Same — Taxation—Personal Property.
    It is a general rale that mandamus will not issue where it would be unavailing; and the rule is applicable where, in the usual course, a mandamus proceeding could not be determined before the assessment roll has left the hands of assessors to whom the writ should be directed.
    3. Same — Remedies—Defenses.
    The prayer of a petition for mandamus cannot be granted where it asks that an assessment be struck from the rolls and shows that the relator is liable to assessment upon a portion of the valuation.
    Certiorari to Wayne; Hosmer, J.
    Submitted November 17, 1909.
    (Calendar No. 23,467.)
    Decided December 10, 1909.
    Mandamus by W. A. Sturgeon & Company to compel the board of assessors and the common council of the city of Detroit to strike an assessment from the tax rolls. An order denying the writ is reviewed by relator on writ of certiorari.
    Affirmed.

      William Lucking, for relator.

      Walter Barlow (P. J. M. Hally, of counsel), for respondents.
   Brooke, J.

The complainant, a corporation, previously doing business in the city of Detroit, filed an application for mandamus in the circuit court, praying that the respondents be compelled to strike an assessment of $50,000 made against them from the assessment rolls for the current year. The writ was denied at circuit, and the case is here on certiorari.

The claim made is that previous to the 1st day of April the relator had parted with the title to a quantity of diamonds, which the respondents, with full knowledge of the facts, placed and retained upon said roll against the protest of relator. The assessment was for $50,000, and it is admitted that - the diamonds are included within it at a valuation of $50,000. The answer alleges that these diamonds were in relator’s possession on April 27th, and properly assessable to it, and that their value was $50,000, the amount of the personal assessment made. It should be remarked that the petition for mandamus shows that relator’s whole assets since March 29th consisted of bills receivable approximating $46,000, and bills payable approximating $41,000. On the face of the petition, then, it appears that the relator should have been assessed upon at least $5,000.

We are of the opinion that the writ should be denied for three reasons:

(1) There is an adequate remedy at law, and mandamus is not the proper remedy.
(2) The roll is not now under the control of the respondents, and they cannot make the change.
(3) The court should not relieve relator from his entire personal tax, as he prays, in the face of his admission that he had $5,000,-personal property, subject to taxation.

Adequate Legal Remedy. That one assessed a personal tax upon property owned by another may be relieved from the tax levied against him, is settled by the cases cited by counsel for relator. That he has another remedy than mandamus, is settled by the same cases. City of Detroit v. Wayne Circuit Judge, 127 Mich. 604 (86 N. W. 1032); Woodmere Cemetery Ass’n v. Township of Springwells, 130 Mich. 466 (90 N. W. 277); Nester v. Township of Baraga, 133 Mich. 640 (95 N. W. 722); City of Detroit v. Transportation Co., 140 Mich. 174 (103 N. W. 557). In City of Detroit v. Wayne Circuit Judge, it was indicated that the collection of the assessment might be enjoined, and the validity of the assessment and tax inquired into. In Woodmere Cemetery Ass’n v. Township of Springwells, and Nester v. Township of Baraga, the action was assumpsit to recover taxes paid under protest. In City of Detroit v. Transportation Co., the defense was made in an action brought to collect the taxes. This is a remedy provided by statute. See 1 Comp. Laws, § 3876. If there is any case holding that mandamus is a proper remedy in this class of. cases, counsel have failed to cite it. There are many considerations of public policy which forbid such a remedy.

(1) It subjects the rolls to the unnecessary alterations.
(2) It prevents an orderly and seasonable completion of. the rolls.
(3) It must often happen, as in this case, that, before a final decision can be made, the roll is out of the possession of the officer proceeded against, and the remedy sought cannot be enforced.

Possession of the Roll. It is a general rule that a mandamus will not issue where it will be unavailing. See Merrill on Mandamus, § 75, and cases cited. Presumably the roll is in the hands of the proper officer for collection. The charter provides that the assessors shall complete the roll before April 1st (Detroit Charter [1904], § 213), and shall return-the roll to the common council on the third Tuesday of April (§ 217). Section 219 provides for review and appeal to common council and for confirmation by the council, after which the roll shall remain as the basis of all taxes, etc., and taxes shall become payable forthwith upon the receipt of the ward tax rolls by the receivers of taxes, which the law plainly implies shall be prior to the 1st day of August.

Striking out Entire Assessment. The bare statement of this ground heretofore made is all that need be said about it. Confessedly relator should pay on $5,000 of personal property. We are aware that the point upon which we dispose of this case was not raised by counsel. We cannot do them the injustice to believe it was overlooked.' Apparently both sides are willing to have the matter finally disposed of here. To do this would be to make one more confusing precedent on the subject of mandamus. The case is one which should be settled in an action at law, where it can be judicially determined whether the relator did or did not own this property. It is apparent that assessors must often determine the ownership of property for the purpose of assessment, and questions of the correctness of their determinations must often arise. Their judgment should not be reviewed on mandamus, and the question may frequently be one upon which a jury should pass.

The order of the learned circuit judge is affirmed.

Blair, C. J., and Moore, McAlvay, and Brooke, JJ., concurred.


author: Grant, J.

text:
    KLATT v. WAYNE PROBATE JUDGE.
    1. Constitutional Law — Statutes—Partial Invalidity — Probate Courts — Executors and Administrators.
    An order of the probate court for the private sale of property by an administrator or executor may be made in accordance with the first three sections of Act No. 209, Pub. Acts 1909, which is not unconstitutional because the fourth section is invalid for failure of the title to embrace its object. Const. 1850, Art. iv, § 20.
    2. Same — Statutory Construction.
    An unconstitutional provision or section in a statute will not affect the other provisions of the law unless they are essentially and reasonably connected in substance.
    8. Estates of Decedents — Sale of Real Estate — Probate Courts — Private Sale.
    There being no limit to the value of real estate which could be sold at private sale, under Act No. 261, Pub. Acts 1905, amending chapters 243 and 244, 3 Comp. Laws, wherein a limitation of §500 was made; and a subsequent statute, Act No. 209, Pub. Acts 1909, being construed to refer to the statute as amended, it is proper to order a private sale by an administrator of real property worth more than §500.

      Certiorari to Wayne; Mandell, J.
    Submitted November 16, 1909.
    (Calendar No. 23,674.)
    Decided December 10, 1909.
    Mandamus by Henry C. Klatt, administrator of the estate of Andrew Hollister, deceased, to compel Edgar O. Durfee, probate judge of Wayne county, to issue an order of sale. An order granting the writ is reviewed by respondent on writ of certiorari.
    Affirmed.

      Bussel, Campbell, Bulkley & Ledyard, for relator.

      Angelí, Boynton, McMillan & Bodman, for respondent.
    The legislature, by Act No'. 121, Pub. Acts 1897, enacted that:
    “Whenever it shall be made to appear to the probate court that it is necessary for the preservation of the estate, or to prevent a sacrifice thereof, or for the best interest of all concerned therein, his executor or administrator may sell his real estate for that purpose upon obtaining a license therefor.”
    That act was held unconstitutional and void because in violation of section 20, article 4, of the Constitution, that “no law shall embrace more than one object which shall be expressed in its title.” Bresler v. Investment Ass’n, 156 Mich. 3 (120 N. W. 21). In 1909 the legislature passed Act No. 209, entitled:
    “An act to provide for the sale of real estate or any interest therein, under license of the probate court, by executors, administrators and guardians.”
    That act authorizes the sale of real estate “when it shall appear to the court that a sale of such real estate is necessary to preserve the estate or to prevent a sacrifice thereof, or to carry out the provisions of the will.” Section 3 reads:
    “Proceedings for obtaining a license for the sale of real estate and the sale thereof by executors, administrators and guardians shall be in accordance with the provisions of chapters two hundred forty-three and two hundred forty-four of the compiled laws of eighteen hundred ninety-seven, when not inconsistent herewith.”
    Section 4 reads:
    “All sales of real estate made by executors, administrators or guardians under license of the probate court, pursuant to the provisions of chapter two hundred forty-three of the compiled laws of eighteen hundred ninety-seven are hereby declared to be valid.”
    The relator filed a petition in the probate court of Wayne county setting forth that it was necessary for the preservation of the estate to sell certain real estate described in the petition, and praying for an order of sale. The respondent refused the order for two reasons:
    (1) The act was unconstitutional, in that it contained two objects, only one of which was expressed in the title.
    (2) That the act, if valid, authorized proceedings to sell property at private sale only when the value was $500 or under.
    The administrator applied to the circuit court for a writ of mandamus to review the order of the probate court. The circuit court reversed the decision of the probate court, and held the act to be constitutional, and that it authorized the sale in excess of the value of $500. The case is now before us for review on certiorari.
   Grant, J.

(after stating the facts). The learned counsel for both parties concede that the enabling section 4 of the act is void. There is nothing in the title to the act to indicate any purpose on the part of the legislature to pass an enabling act to validate void sales made under an unconstitutional act. The provisions of section 4 are entirely foreign to the purpose mentioned in the title. We therefore concur in the conclusion reached by counsel that section 4 is void under the constitutional provision above cited. The case therefore presents two questions:

Can the act be sustained as a valid, complete act with section 4 eliminated ? Under the rule approved by this court in Robison v. Miner, 68 Mich. 549 (37 N. W. 21), and Mathias v. Cramer, 73 Mich. 5 (40 N. W. 926), the question must be answered in the affirmative. Without section 4 the act is complete. There is no necessary connection between that section and the other provisions of the act. The case clearly falls within the rule stated, by Mr. Justice Long:

“ An unconstitutional provision or section in a statute, will not affect the other provisions of the law unless they are essentially and inseparably connected in substance.” Mathias v. Cramer, supra.

See, also, Cooley on Constitutional Limitations (7th. Ed.), p. 246.

Does the act limit the authority of the probate court to private sales where the value of the real estate exceeds $500? But for Act No. 261, Pub. Acts 1905, the respondent’s contention should undoubtedly be sustained. Act No. 209, Pub. Acts 1909, requires the proceedings under it to be in accordance with the provisions of chapters 243 and 244 of the Compiled Laws of 1897, when not inconsistent therewith. By section 9166, chap. 244, the probate judge was authorized to license private sales where the value of the real estate did not exceed $500. Act No. 261, Pub. Acts 1905, amended this section and eliminated this limitation, and authorized private sales of real estate regardless of their value. When, therefore, the act of 1909 was passed there was no limitation of value as a condition to private sales. The amendment became a part of the original act, and subsequent acts will be construed as having reference to the act as amended, although the statute does not in express terms include amendatory acts. Hatch v. Calhoun Circuit Judge, 127 Mich. 174 (86 N. W. 518); People v. Railroad Co., 145 Mich. 140 (108 N. W. 772).

It follows that the probate court had authority to authorize this sale, and the judgment is affirmed. No costs will be allowed.

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


author: Montgomery, J.

text:
    BAUMGARTH v. FIREMEN’S FUND INSURANCE CO.
    1. Costs — Assignments—Liability of Assignee.
    Costs are taxable in the Supreme Court against the persons beneficially interested as assignees of a cause of action by virtue of an assignment made prior to the commencement of the action, within the terms of 3 Comp. Laws, § 11381.
    2. Appeal and Error — Nature of Writ — Continuation of the Action.
    The issuance of a writ of error from the Supreme Court is a continuation of the original cause, not a new proceeding.
    Assumpsit by Morris C. Baumgarth and Rudolph Baumgarth, copartners as Baumgarth Bros., against the Firemen’s Fund Insurance Company on a policy of insurance : On motion of defendant for the taxation of costs against plaintiff’s assignees.
    Submitted November 16, 1909.
    (Calendar No. 22,573.)
    Motion granted December 10, 1909.

      Haug & Yerkes (Lucking, Emmons & Helfman, of counsel), for the motion.

      Bernard B. Belling and Butzel & Butzel, contra.

   Montgomery, J.

Plaintiffs having recovered judgment in the circuit court against the defendant, the defendant upon writ of error procured a reversal of that judgment. (152 Mich. 479 [116 N. W. 449].) A motion is now made by the defendant to have the costs taxed against Adolphus Fixel, A. Krolik & Co., and Imerman Bros., in whose interest an assignment of the claim of plaintiffs against the defendant was made, and in whose interest the suit was prosecuted; it appearing from affidavits on file that these parties contributed to the expense of the prosecution of the case.

The statute relied upon is section 11281, 3 Comp. Laws, which reads:

“ When any action shall be brought in the name of another, by an assignee of any right of action, or by any person beneficially interested in the recovery in such action, such assignee or person shall be liable for costs in the same cases, and to the same extent, in which a plaintiff would be liable, and the payment of such costs may be enforced by attachment in all cases where judgment is not by law required to be rendered therefor against such assignee or person interested,”

This section appears to have been taken from the Revised Statutes of New York. Under that statute, the courts of New York have held in Whitney v. Cooper, 1 Hill (N. Y.), 629, that an assignee of a claim in suit, although the assignment simply gave him a lien upon the recovery, was liable under this statute to respond for costs. This was reaffirmed in Carnahan v. Pond, 15 Abb. Prac. (N. Y.), 194. See, also McHench v. McHench, 7 Hill (N. Y.), 204. Both parties in the present case rely upon the rule of construction that, in the adoption of a statute of a sister State, it is to be presumed that the statute was adopted with reference to the judicial construction given to such statute in the sister State. The cases above cited would seem to make it clear that, had the defendant recovered in the circuit court, he would have been entitled to tax the costs against the parties beneficially interested.

But it is contended upon the authority of Bendernagle v. Cocks, 19 Wend. (N. Y.) 151, that the party beneficially interested is not liable for costs incurred where the nominal party prevails in the court below, and the case is brought to this court by writ of error. It was held in that case that a writ of error is to be treated as a new suit, and not a continuation of a suit below, and that, therefore, the party in interest was merely defending in the court of appeals and was not a volunteer, and therefore was not liable for the costs under this statute. This ease in no way negatives the right to recover against the parties beneficially interested, if they, in fact, are to be treated as the moving parties in the case. But there is authority for the view that in New York the writ of error is regarded as a new suit. But such is not our understanding of the effect of a writ of error in Michigan. In Michigan, the writ of error should be considered as a continuation of the original suit. This is the rule in other States. See Hart v. Mills, 38 Tex. 513; Hinchman v. Rutan, 31 N. J. Law, 499. An analogous question arose in this State in McLean v. Isbell, 44 Mich. 129 (6 N. W. 210), in which case it was contended that the removal of a case from justice’s court to the circuit by certiorari was analogous to a writ of error, and that the suing out of a writ of error was the institution of a new action and not the same as commenced in justice’s court, and therefore that security for costs in such action (instituted in justice’s court) was not liable for the costs on certiorari. The court, however, held against this contention. After citing the Federal cases on the subject, the court said:

“ In considering the point now in question, this explanation of the theory of a writ of error is an important factor, and it follows from it that, in case the analogy ascribed to the certiorari is true, the latter was not only not a separate suit, but was, in fact, a proceeding in the nature of an appeal. Its purpose was ‘ entirely defensive.’ Hence the ground of reasoning relied on to maintain the objection decisively overrules, it. The doctrine quoted to prove that the statute did not warrant the entry of judgment against the surety turns out to be authority for the view of the court below that it did warrant it.”

We think the motion should prevail.

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


text:
    GRAND RAPIDS & INDIANA RAILROAD CO. v. CHEBOYGAN CIRCUIT JUDGE.
    1. Mandamus — Change of Venue — Motions.
    On a motion for a change of venue alleging local prejudice, which was denied by the finding and return of the circuit judge, the framing of an issue of fact will not be compelled by writ of mandamus, and the trial delayed until its determination.
    2. Same — Venue—Waiver of Right to Change.
    Setting a cause for trial on a day certain at the relator’s request operates.as a waiver of the right to review a previous refusal to grant a change of venue.
    3. Same — Discretion to Deny Change of Venue — Statutes.
    The statutes authorizing a change of venue on motion do not require the granting of the motion as an imperative right. Act No. 67, Pub. Acts 1909.
    4. Constitutional Law — Amendment of Statutes.
    Act No. 67, Pub. Acts 1909, which contains a proviso that a change of venue may be procured on motion in causes pending in the manner provided by 1 Comp. Laws. § 309, as amended by Act No. 309, Pub. Acts 1905, does not re-enact the repealed provisions of such Act No. 309, in view of the constitutional prohibition against a revision or amendment, by mere reference to an act.

      Mandamus by the Grand Rapids & Indiana Railroad Company to compel Frank Shepherd, circuit judge of Cheboygan county, to vacate an order denying a change of venue.
    Submitted November 16, 1909.
    (Calendar No. 23,638½.)
    Writ denied December 10, 1909.

      James H. Campbell, for relator.

      Benjamin & Quay (De Vere Hall, of counsel), for respondent.
   Montgomery, J.

This is an application for a mandamus to compel the respondent to enter an order removing the case of James Foley against the relator from Cheboygan county to Emmet county for trial. It is claimed, first, that upon the affidavit being filed, showing that the plaintiff in such action has an undue influence on the citizens of Cheboygan county, it became the imperative duty of the court, as a matter of law, to grant the motion for change of venue, on the authority of Preston Nat. Bank v. Wayne Circuit Judge, 142 Mich. 272 (105 N. W. 757); and, second, that the circuit judge was guilty of an abuse of discretion in failing to grant the motion.

The return of the circuit judge shows that he was not convinced that there was any prejudice against the defendant in Cheboygan county, or that it could not have a fair trial, and went further and stated that, while a trial, at the Emmet circuit would be more convenient for the witnesses, there was more likely to be prejudice there against the plaintiff than there was to be prejudice against the defendant in Cheboygan. Upon this return the petitioner has asked that an issue be framed. We think upon this question the case of Lyle v. Cass Circuit Judge, 157 Mich. 33 (121 N. W. 306), should be held controlling. It would be unseemly that an issue of fact should be raised upon the return of the circuit judge, and this case delayed in the circuit until that question should be tried. If any right exists to review such an order by writ of mandamus, the return of the circuit judge, showing, as it does, that counsel for defendant procured the case to be set down for a day certain for trial, would be sufficient to waive that right.

But it is contended that, as a matter of law, the circuit judge erred in refusing to grant this motion; in other words, that upon the filing of the affidavit in support of the motion it became his imperative duty to grant the motion, and that the facts stated in the affidavit could not be controverted. Such we held was the effect of section 10, Act No. 309, of the Public Acts of 1905, an act which the legislature very wisely amended at the next session of the legislature, by Act No. 161, Pub. Acts 1907. It is claimed, however, that by Act No. 67, Pub. Acts 1909, the legislature by a proviso has re-enacted the provisions of the act of 1905. This proviso reads as follows:

“ In any and all suits, proceedings, causes or actions now pending in any of the circuit courts of this State, whether the court has general or special jurisdiction, a change of venue may be had in the manner provided and in accordance with said section ten of act number one hundred fifty-seven of the public acts of eighteen hundred fifty-one, as amended by said act number three hundred nine of the public acts of nineteen hundred five, and the provisions of said act shall be continued in full force and effect for such purpose.”

Whether the reference to the amendment of 1907 was left out of this proviso by inadvertence, it is impossible to say. Certainly, if the effort was by this proviso to repeal the provisions of the act of 1907, which materially modified the act of 1905, it is in direct conflict with the provisions of section 21 of article 5 of the Constitution, which provides that no law shall be revised, altered, or amended by reference to the title amended, but the act revised and the section or sections of the act altered or amended shall be re-enacted and published at length. This clearly was not done. The act as it stood after the amendment of 1907 was, under the relator’s contention, repealed without any attempt to re-enact or publish the original act of 1905 at length. The legislature has not accomplished the result of re-enacting the law of 1905. We doubt very much whether such was the legislative intent.

The writ of mandamus will be denied.

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


author: Brooke, J. Ostrander, J.

text:
    ZIMMER v. BOARD OF SUPERVISORS OF BAY COUNTY.
    1. Constitutional Law — Judicial Power — Courts.
    A statute by which a committee on appeal is appointed by members of the board of supervisors who consider themselves aggrieved by an apportionment of taxes between townships and cities, giving the committee power to summon witnesses, consider evidence and determine whether the equalization is just, confers quasi judicial powers. Act No. 292, Pub. Acts 1909.
    2. Same — Courts—Words and Phrases.
    Such committee is not a court within the meaning of Constitution, Art. 7, § 1, requiring a two-thirds vote of the legislature to establish additional courts.
    3. Same — Local Self-Government — Counties—Taxation.
    It is in violation of the constitutional principle of local self-government for the legislature to enact a statute which authorizes a dissatisfied member of the board of supervisors to create a committee of three consisting of nonresidents of the county, of whom the dissenting member is authorized to name one, and who are required by the act to determine whether or not the apportionment among townships and cities is just.
    4. Same — Legislative Authority — Taxation.
    The legislature has no power under the Constitution to clothe one or two supervisors of a county with authority to name a tribunal which shall have the right to assume and perform the duties devolving upon the board itself under the law.

      5. Courts — Disqualification of Judges — Statutes —Constitutional Law.
    A statute which permits a supervisor, aggrieved by the apportionment of a tax, to name one of the members of a board or committee to act as an appeal tribunal, violates the rule that no man may be a judge or select the judge of a case in which he has an interest.
    Certiorari to Bay; Collins, J.
    Submitted November 29, 1909.
    (Calendar No. 23,746.)
    Decided December 21, 1909.
    Mandamus by Nicholas D. Zimmer to compel the board of supervisors of Bay county to convene and apportion the State and county taxes in accordance with the report of a committee on appeals acting under the provisions of Act No. 292, Pub. Acts 1909. An order denying the writ is reviewed by relator on writ of certiorari.
    Affirmed.

      Pierce & Kinnane, for relator.

      Gillett & OlarJc, for respondent.
   Brooke, J.

Relator is a duly qualified supervisor of Bangor township, one of the political divisions of Bay county. The board of supervisors of said county consists of 39 members, 23 of whom were elected from the city of Bay City, and 16 from the townships. At the annual meeting, held in October, 1909, the board made and adopted an equalization of the valuations of the several townships of said Bay county, and of the city of Bay City. Whereupon relator, considering his township (Bangor ) aggrieved by the action of the board in said equalization, filed a petition for the purpose of appealing therefrom to the committee on appeal, in accordance with the provisions of Act No. 292, Public Acts 1909, and named an ex-supervisor of an adjoining (Saginaw) county, one Cameron C. Speer, as the first member of said committee on appeal. Notice of said appeal having been duly served upon the chairman of the board, he, the chairman (George Hartingh, supervisor of Pinconning township), proceeded in accordance with the provisions of the statute to name the second member of said committee on appeal, in the person of one George W. Kenney, an ex-supervisor of Arenac county. Speer and Kenney then met, and named one James Spiker, an ex-supervisor of Midland county, as the third member of said committee.

The committee organized by electing a chairman and clerk, and held sessions from November 8th to 13th, inclusive, hearing the testimony of all persons who appeared before it, examined the assessment rolls, and inspected, to some extent, the real estate in the city of Bay City and the adjoining townships, and on November 13th filed its “decision and determination,” which is, in part, as follows :

“ Said committee on appeal, after due consideration of all matters relating to the equalization of the valuations of the several townships of Bay county, and the city of Bay City, made by the board of supervisors of said county at the October, 1909, session of said board, being the equalization appealed from in this proceeding, do hereby find, decide, determine, and decree as follows: (a) That the equalization made by the board of supervisors of said county, at its October, 1909, session, is unfair, unjust, and discriminatory, and that the valuations of said county have been improperly equalized by said equalization, made by said board as aforesaid. (5) That said equalization, made by the board of supervisors of said county at its October, 1909, session, as aforesaid, be, and the same is hereby, revised, altered, and amended by adding to the valuations of the real estate of the city of Bay City, as equalized at the said October session of said board of supervisors, as aforesaid, the sum of $1,474,036, and deducting from the valuations of the real estate of the townships of said county, severally, as equalized at the said October session of said board, the sums respectively set opposite the name of each township, viz.” (amounting in the aggregate to $1,474,036).

The clerk of said board, acting under the provisions of said act, proceeded to call a meeting of the board to be held on November 18, 1909, for the purpose of apportioning the State and county taxes, to be raised by said county for 1909, in accordance with the equalization made by said committee on appeal. On the day appointed for said meeting the 16 supervisors from the townships were present, but the 23 from the city, apparently by concert of action, absented themselves, thereby preventing the assembly of a quorum, and the transaction of any business. Relator thereupon filed his petition in the circuit court, praying for mandamus to compel the city members of the board to attend and proceed to apportion the State and county taxes for the year 1909, in accordance with the report of the committee on appeal. The circuit court denied the writ, and relator has brought the case here by writ of certiorari.

It is urged by the respondent: First, that said act is unconstitutional and void, because it attempts to confer upon the “committee on appeal” judicial powers; and, second, because it deprives counties of the inherent right of local self-government.

Does the act confer judicial powers upon the committee ? The act provides:

“ The said committee on appeal shall, at the time herein provided for, forthwith examine the appellant’s petition, and if in the judgment of said committee, there be a showing to the effect that the equalization complained of is unfair, unjust, inequitable, or discriminatory, it shall proceed at once to investigate and pass upon complaints, relative to the assessment and taxation of property, and the action of the said board of supervisors, in connection with the equalization and valuation of said county. The said committee on appeal shall have the authority to consider and pass upon the action and determination of the said board of supervisors, in equalizing said valuations, and may consider complaints relative to the assessment and taxation of property.' The said committee on appeal shall have the right to order the said board of supervisors to reconvene and to cause the assessment rolls of said county to be brought before it, and it may summon the several supervisors of said county before it, to give evidence in relation to said equalization, and may take such further action and may make such further investigation in the premises, as it may deem necessary. * * * If the said committee on appeal, after due consideration, decide that the valuations of said county have been improperly equalized, it shall proceed to make such deductions from, or additions to, the valuations of the respective townships, wards, or cities, as may be deemed proper. * * * As soon as said board of supervisors has reconvened, it shall immediately proceed to apportion the State and county taxes, to the several assessing districts, in accordance with the equalization so made.”

We think it is apparent from the above quotation that the legislature did confer quasi judicial powers upon the committee. It has power to summon witnesses, to hear evidence, and to determine whether or not the equalization made by the board of supervisors is just.

In the case of State, ex rel. Ellis, v. Thorne, 112 Wis. 81 (87 N. W. 797, 55 L. R. A. 956), where a somewhat similar act was under consideration, it was held that the act conferred judicial powers, but that it was not in conflict with the Constitution of that State. Our Constitution (article 7, § 1) provides:

“ 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.”

An examination of Senate Journal (volume 2, p. 1288) shows that the act in question did not receive a two-thirds vote of the members of the Senate. This act, therefore, if the committee on appeal is to be considered a “court of civil and criminal jurisdiction ” within the meaning of the constitutional provision supra, must fail, for the reason that it did not'receive the requisite number of votes. We are, however, of the opinion that the committee on appeal should not be considered a “court” within the meaning of the Constitution. It is quite clear that it is both necessary and expedient for the legislature to confer judicial or quasi judicial functions upon executive or administrative officers, the exercise of which is merely occasional or incidental. To call every such officer a judge, and his office a court, would, we think, be entirely unwarranted. See Attorney General v. Jochim, 99 Mich. 358 (58 N. W. 611, 23 L. R. A. 699, 41 Am. St. Rep. 606), where it is held that the exercise of judicial or quasi judicial power by the governor of the State was not unconstitutional.

Does the act deprive counties of their inherent right of local self-government? It is relator’s claim that upon this point the case at bar is ruled by Board of State Tax Commissioners v. Board of Assessors, 124 Mich. 491 (83 N. W. 209); Board of State Tax Commissioners v. Quinn, 125 Mich. 128 (84 N. W. 1). An examination of the first of these two cases, which upon the point under consideration rules the second, will clearly demonstrate the ground upon which the decision went. At page 496 Chief Justice Montgomery, speaking for the court, says:

“It was not distinctively a matter of local concern. The State is concerned in the proper assessment of property, not only as to its own interests, as they are affected by the collection or failure to collect the funds necessary-to carry on government, but, as the supreme authority in the State, the legislature is required, by section 12, Art. 14, of the Constitution, to see to it that assessments be made upon property at its real value.”

Can it be said of the act under consideration that the State has an interest in the activities of the committee on appeal, or that they are not “distinctively a matter of local concern ?” We think not. The concluding sentence of section 34 of the act is as follows:

Provided further, That the said committee on appeal, shall not increase the aggregate valuation of said county.”

It is manifest that the State has no interest in the matter. The county as a whole pays the same tax to the State, whether it pays according to one equalization or the other. The burden is simply, in part, lifted from one township or ward, and imposed upon another township or ward. The action of the committee produces a purely local result. Its action, however, relieves one portion of the local community from taxation in a measure, and imposes upon another an additional burden. This result is reached through the intervention of a nonresident body of men not representatives of the people of the county in which they act, and is repugnant to the well-settled principles of local self-government, so frequently asserted and upheld by an unbroken line of decisions of this court. People v. Hurlbut, 24 Mich. 44 (9 Am. Rep. 103); People v. Murray, 89 Mich. 276 (50 N. W. 995, 14 L. R. A. 809, 28 Am. St. Rep. 294); Township of Ada v. Kent Circuit Judge, 114 Mich. 77 (72 N. W. 35); Moreland v. Millen, 126 Mich. 381 (85 N. W. 882); Board of Road Com'rs of Wayne County v. Board of Auditors, 148 Mich. 255 (111 N. W. 901); Davidson v. Hine, 151 Mich. 294 (115 N. W. 246, 15 L. R. A. [N. S.] 575, 123 Am. St. Rep. 267).

We have said the committee on appeal is not representative of the people of Bay county. The method of its appointment provided by the act clearly shows that it was the intention of the legislature to provide for its creation from nonresident elements, without appeal to the citizens of the county in which it is to act.

The legislature has no power, under the Constitution, to clothe one or two supervisors of a county with authority to name a tribunal which shall have the right to assume and perform the duties devolving upon the board itself, under the law. The board of supervisors is elected by the people of the county, and represents the people of the county. The committee on appeal, appointed in the manner set out in the act, represents nobody, unless it can be said to represent the supervisor who called it into being, by filing his claim of appeal and naming one of its three members.

A familiar rule of law is that no man may be a judge in his own case. It is equally true that no man may appoint a tribunal (or any constituent part thereof) to determine a case in which he is interested. In conferring the power of appointment upon a supervisor the legislature does not appeal to his discretion. Indeed the power is only to be exercised when “he considers his township or city aggrieved.” In other words, when, as a representative of his township, he has become a partisan with a grievance, he may name one of three of a tribunal to pass upon and adjudicate that grievance. The legitimate result of such a course is a tribunal unfair and partisan in character. No law permitting such consequences can be sustained. Atchison, etc., R. Co. v. Clark, 60 Kan. 826 (58 Pac. 477, 47 L. R. A. 77); Meyers v. Shields, 61 Fed. 713; Brinkerhoff v. Brumfield, 94 Fed. 422.

No better illustration of the vice of such legislation could be afforded than the case at bar. Relator and the chairman of the board, both being supervisors of townships, and being of the so-called minority, upon said board, name two members of the committee. To say that, in the exercise of this power of appointment, it is to be presumed that the supervisors will select impartial and unprejudiced men is idle. It entirely ignores one of the commonest of human attributes, selfishness. In fact the act seems to contemplate that the dissatisfied supervisor shall name a partisan ; at any rate, he is not enjoined, either in terms or by implication, to select a man of fairness and impartiality. The two, thus selected, agree on a third. As the committee in the case at bar is constituted, it is quite immaterial whether he be a fair man or otherwise, as the two already selected constitute a majority of the committee and control his action. What this committee did in the premises has been outlined supra. Whether its action evidences unfairness and discrimination or not is a matter of no consequence. If what it did do is legal, then what it could do in a like case would be proper, and we would doubtless see discrimination, not only of the townships against the city, or the city against the townships, but discrimination of one or two townships against all the rest, or of one or two wards against all the rest, and this, too, resulting from the acts of men not resident in the county, not elected by its citizens, and not responsible to any one for the proper, fair, and impartial performance of their duties.

The action of the learned circuit judge in denying the writ, upon the ground that the act is unconstitutional, is affirmed.

Grant, Montgomery, Hooker, and McAlvay, JJ.j concurred with Brooke, J.

Ostrander, J.

The proceeding in which boards of supervisors of counties examine the assessment rolls of the townships and wards to ascertain whether the values of real estate have been uniformly estimated, and, if it determines that such values as they appear upon the rolls are relatively unequal, add to or deduct from the total assessed valuation of such townships and wards, or some of them, an amount which will, in the judgment of the board, produce an equal and uniform valuation of real estate, is a familiar proceeding, a step in the system established for the collection of public revenues. It is upon the footing established in this proceeding that the levy apportioned by the State to the county is again, apportioned to the taxing districts within the county. By Act No. 292, Pub. Acts 1909, the tax law was amended so as to provide for a review of the action of boards of supervisors in this behalf, and it is this provision for a review and for an equalization of rolls by a committee on appeal which is, in this proceeding, attacked. The grounds upon which the constitutionality of the provision is assailed are (1) that judicial power is conferred upon the committee on appeal; (2) that it deprives counties of the inherent right of local self-government; (3) the tribunal or agency which is created is not an impartial one; (4) the subject-matter of the amendment is not germane to the subject-matter of the original act, and not within the title thereof; (5) the áct as amended is incomplete and defective — not a workable law. The circuit court for Bay county was asked to compel such action of the board of supervisors as would permit the law to be carried into effect. This the court declined to do, having reached the conclusion that the legislature had no power to provide for a review of the equalization made by the board of supervisors except by a board of State officers of higher authority and more extensive powers than those possessed by the board of supervisors, and that the law does not provide for an impartial tribunal. There is therefore involved here the always grave responsibility of considering whether an act of the legislature should be declared to be invalid. The contentions presented, excepting, perhaps, the one last stated, may be considered together.'

It is clear that the power of the legislature extends so far as to provide for a system for the levying and collecting of taxes, including the designation of the agencies to be employed. Board of State Tax Com'rs v. Board of Assessors, 124 Mich. 491 (83 N. W. 209). See, also, State, ex rel. County of Brown, v. Myers, 52 Wis. 628 (9 N. W. 777); 1 Cooley on Taxation (3d Ed.), p. 43. We are familiar with legislation which provides for appeals from the determination of certain officers to certain other officers or boards, and this in matters purely local in character. Examples will be found in 2 Comp. Laws, §§ 4042, 4043, 4707; Act No. 272, Pub. Acts 1899, in which, in chapter 5, the probate court is authorized to appoint, in appeals from the assessment of drain taxes, a board of review of disinterested and competent freeholders not residents of the township or townships affected by said drain.” It is as well within the legislative power to provide the agency which shall finally determine when a proper equalization has been made, as it is to provide the agency which shall determine when taxable property has been properly listed and valued upon assessment rolls. The legislative provision is no more an invasion of the right of local self-government in one case than it is in the other. And an amendment to a general tax law, which does no more than to provide for a review of the equalization and supply an agency for such review, is an amendment within the title of the original act. If it had been included in the original act, there could be no question that the provision was within the title. If the legislation in question does no more than this, and is otherwise capable of enforcement, it cannot be said to be an unconstitutional exercise of legislative power, or to be invalid, because a new agency or tribunal, which does no more — has no greater powers in the premises — than the board of supervisors has always exercised, ought not to be held to be a court or a body exercising judicial powers, within the meaning of the Constitution. The controlling question, therefore, is whether the law merely provides for a new or additional proceeding in the general system, and for a new agency, or whether it does more or less than this.

Having admitted that within certain constitutional restrictions, not applicable here, the power of the legislature in matters concerning the levying and collecting of taxes is plenary, a successful attack upon the law in question must proceed upon the theory of a failure, in the particular instance, to accomplish what the legislature had power to accomplish. The powers given by the act to the committee on appeal are no other or greater than those exercised, time out of mind, by boards of supervisors, and the act is not open to the criticism that excessive powers are granted, or powers too limited to accomplish the evident purpose of the legislature. Invalidity of the legislation, if it is invalid, must arise out of the manner provided for constituting the committee on appeal. It is well to notice the provision with some care. The committee must be selected from ex-supervisors of adjoining counties. An ex-supervisor, when chosen, must act under penalty of fine or imprisonment, or both. Therefore one conscious of a lack of ability, or knowing himself to be not indifferent, must nevertheless serve. No oath is required, no right to object to the committee is secured. The selection of the committee is not made by the legislature, or by any responsible officer of the State, nor is the indifference of the members of the committee a condition which is even referred to. A member of the committee, though a nonresident of the county, may be owner of property in the county. The committee is selected — the tribunal is created — by interested parties. It is a maxim of the law, older than our Constitutions, that no man may be constituted a judge in his own cause. It is applicable to every case where an aggrieved party is permitted to select the judge. Private rights may, by agreement of parties, so be submitted to arbitration that courts may enforce the awards. 3 Comp. Laws, chap. 302. But in the matter before us, public as well as private interests are involved, and may be determined by an agency selected by representatives of the parties aggrieved. In the somewhat similar Wisconsin statute, to which attention has been directed, the circuit judge is required to appoint the commissioners ; who may not be owners of real estate in the county; must be appointed upon notice to the board of supervisors; be sworn to faithfully and impartially discharge the duties imposed. State, ex rel. County of Brown, v. Myers, supra; State, ex rel. Ellis, v. Thorne, 112 Wis. 81 (87 N. W. 797, 55 L. R. A. 956). We are constrained to say that the legislature in the act in question has constituted neither a State nor a local agency of taxation, but has, inadvertently no doubt, delegated to aggrieved parties the selection of a committee empowered to undo what the regularly elected officers of the townships and wards of the county have done officially. A privately constituted and officially irresponsible committee is empowered to review and perform the duties of responsible officials.

We are required to, and do, affirm the order of the circuit court for Bay county. No costs are awarded.

Blair, C. J., and Moore, J., concurred with Ostrander. J.